[Cite as State v. Browning, 2012-Ohio-4026.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                         C.A. No.       26143

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BRET BROWNING                                         BARBERON MUNICIPAL COURT
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   11 TRC 1290

                                 DECISION AND JOURNAL ENTRY

Dated: September 5, 2012



        MOORE, Judge.

        {¶1}    Defendant-Appellant, Bret Browning, appeals from the September 13, 2011

judgment entry of the Barberton Municipal Court denying his motion to suppress. For the

following reasons, we reverse.

                                                 I.

        {¶2}    On March 19, 2011, at approximately 12:30 a.m., Copley Township Patrol Officer

Ryan Price observed a car parked on Copley Road in a private drive with a man standing beside

it. Officer Price testified that this “[k]ind of caught [his] attention;” so he put his patrol car in

reverse and “backed on up to get a better look.” At this time, Officer Price noticed that the car

had an out of state license plate and observed Mr. Browning get into the car and proceed down

the private drive.

        {¶3}    Officer Price testified:

        I didn’t know if the person was taking a leak. If they were checking the mail.
        Getting the trash cans. Stopped because they were lost. Being it was an out-of-
                                                2


       state plate, pulled in there to check direction or what, but when he got in the car
       and drove to the back—I know it’s a dead end, so I figured, well, if they’re legit,
       maybe they’ll turn around and come back. So I went down the road a little bit, sat
       in my cruiser, and sure enough the car came back out, got on State Route 21, went
       southbound.

Further, Officer Price testified “[a]s the car was getting on State Route 21 southbound I followed

him behind, turned on my overhead lights and pulled it over.”

       {¶4}    Upon approaching Mr. Browning’s car, Officer Price noticed “right away that his

appearance just wasn’t right.” He described Mr. Browning’s appearance and actions as follows:

       I noticed that his eyes were glassy. The white parts were red. His pupils were
       dilated. When I started talking to him, he kind of had a mumblish kind of slurrish
       type tone to his voice. Asked him if he had been drinking. He stated no. * * * I
       said, “[y]ou’re telling me you’ve had no alcoholic beverage drink whatsoever?
       Not even one?” He stated no.

He also smelled a “moderate to strong” odor of alcohol.

       {¶5}    Officer Price repeatedly asked Mr. Browning to step out of the car in order to

perform field sobriety tests, but he refused to do so. Mr. Browning’s refusal caused Officer Price

to call for back-up. Officer Shindy arrived and assisted Officer Price with physically removing

him from the car.

       {¶6}    At approximately 12:43 a.m., Officer Price placed Mr. Browning under arrest and

issued him a citation for operating a vehicle while under the influence of alcohol (“OVI”), in

violation of R.C. 4511.19(A)(1)(a). The citation was filed in Barberton Municipal Court, and

Mr. Browning entered a plea of not guilty.

       {¶7}    Mr. Browning filed a motion to suppress challenging the constitutionality of the

traffic stop. In his motion, Mr. Browning argued that (1) Officer Price did not have a reasonable

suspicion to perform the traffic stop, and (2) Officer Price did not have probable cause to arrest

him for OVI.
                                                3


       {¶8}    The trial court held a hearing on his motion to suppress. On September 13, 2011,

the trial court journalized a judgment entry denying Browning’s motion to suppress. In its

judgment entry, the trial court stated:

       [Officer Price] testified that (about 12:40 AM), he drove past a vehicle parked at
       the entrance to a private drive and observed a person standing beside the car. He
       then stopped and backed up, at which time a person looked at him and then got in
       the car and proceeded up the drive. [Officer Price] stated he noticed the vehicle
       had out of state license plates and decided to wait to see what the person was up
       to because there were only 3 homes on that drive and there have been numerous
       break-ins around the area.

       After turning around and parking, [Officer Price] observed [Mr. Browning] about
       3 minutes later pulling back out of the drive. He then decided to affect a traffic
       stop to see what [Mr. Browning] was up to.

       ***

       When looking at the totality of the circumstances, upon seeing an out of state
       vehicle in a private drive at 12:30 AM where the driver is out of the vehicle but
       jumps back in upon seeing [Officer Price], pulls up the drive and then comes back
       out a few minutes later, could lead an officer to reasonably believe criminal
       activity may be afoot. The circumstances surrounding [Officer Price’s]
       observations of [Mr. Browning], red, watery eyes, mumbled speech, fumbling for
       identification, and moderate to strong odor of alcoholic beverage, coupled with
       [Mr. Browning’s] refusal to exit the vehicle, does arise to probable cause to arrest.

(Emphasis added.)

       {¶9}    Mr. Browning changed his plea to no contest as to OVI in violation of R.C.

4511.19(A)(1)(a).

       {¶10} The trial court found him guilty and sentenced him to a fine, license suspension,

limited driving privileges with restrictive plates, and 180 days in jail with 177 days suspended.

In lieu of jail time, the trial court ordered Browning to serve 3 days in a state approved

residential alcohol program.

       {¶11} Mr. Browning filed a timely notice of appeal, setting forth one assignment of

error for our consideration. His sentence was stayed pending this appeal.
                                                 4


                                                II.

                                 ASSIGNMENT OF ERROR I

       THE INVESTIGATORY STOP, INVESTIGATORY DETENTION, AND
       ARREST OF [MR. BROWNING] VIOLATED [HIS] FOURTH AND
       FOURTEENTH     AMENDMENT      PROTECTIONS       AGAINST
       UNREASONABLE SEARCH AND SEIZURE UNDER THE U.S. AND OHIO
       CONSTITUTIONS.

       {¶12} “An appellate court’s review of a trial court’s ruling on a motion to suppress

presents a mixed question of law and fact.” State v. Campbell, 9th Dist. No. 05CA0032-M,

2005-Ohio-4361, ¶ 6. “The trial court acts as the trier of fact during a suppression hearing, and

is therefore best equipped to evaluate the credibility of witnesses and resolve questions of fact.”

Id. This Court will accept the factual findings of the trial court if they are supported by some

competent, credible evidence. See State v. Balog, 9th Dist. No. 08CA0001-M, 2008-Ohio-4292,

¶ 7, citing State v. Searls, 118 Ohio App.3d 739, 741 (5th Dist.1997). “However, the application

of the law to those facts will be reviewed de novo.” Balog at ¶ 8.

       {¶13} In his first assignment of error, Mr. Browning argues, among other things, that the

traffic stop amounted to an unconstitutional seizure because the stop was not supported by

reasonable, articulable suspicion. In support of this argument, Mr. Browning contends that

Officer Price did not point to a specific offense that he had committed, or was in the process of

committing, prior to initiating the traffic stop. Based upon the record before us, we agree.

       {¶14} It is well-settled that “[a] traffic stop constitutes a seizure within the meaning of

the Fourth Amendment.” Campbell at ¶ 10, citing Whren v. United States, 517 U.S. 806, 809-810

(1996). “However, an investigative stop of a motorist does not violate the Fourth Amendment if

the officer has a reasonable suspicion that the individual is engaged in criminal activity.”

Campbell at ¶ 10, citing Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999). “To justify a
                                                 5


particular intrusion, the officer must demonstrate ‘specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that intrusion.’” Weisner at

299, quoting Terry v. Ohio, 392 U.S. 1, 21 (1968). “In evaluating the facts and inferences

supporting the stop, a court must consider the totality of the circumstances as ‘viewed through

the eyes of a reasonable and cautious police officer on the scene, guided by his experience and

training.’” State v. Sweatt, 9th Dist. No. 25147, 2010-Ohio-2989, ¶ 7, quoting State v. Bobo, 37

Ohio St.3d 177, 179 (1988), quoting United States v. Hall, 525 F.2d 857, 859 (C.A.D.C.1976).

“Thus, ‘if the specific and articulable facts available to an officer indicate that a driver may be

committing a criminal act, which includes the violation of a traffic law, the officer is justified in

making an investigative stop.’” State v. Hoder, 9th Dist. No. 03CA0042, 2004-Ohio-3083, ¶ 8,

quoting State v. Shook, 9th Dist. No. 93CA005716, 1994 WL 263194, * 2 (June 15, 1994).

However, “‘[a]n officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop.’” State v.

Wagner-Nitzsche, 9th Dist. No. 23944, 2008-Ohio-3953, ¶ 11, quoting United States v. Arvizu,

534 U.S. 266, 274 (2002).

       {¶15} We look to our decision in State v. Wagner-Nitzsche for guidance in the present

matter. In State v. Wagner-Nitzsche at ¶ 2-3, an officer was monitoring Ms. Wagner-Nitzsche’s

house due to alleged drug activity. While watching her house, the officer observed activity at

Ms. Wagner-Nitzsche’s car. Id. at ¶ 3. He waited for the car to leave and attempted to stop it,

however, it made a “hard turn” onto another street and then a “hard turn” into a driveway. Id. at ¶

4. The officer “felt [this] was suspicious,” so he waited approximately ten minutes for the car to

leave the residence and then he stopped the car. Id. at ¶ 5. Ultimately, Ms. Wagner-Nitzsche got

out of the car and the officer noticed a pill bottle in her pants pocket. Id. The pill bottle

contained a bag of marijuana, Vicodin pills, and Percocet pills. Id. The officer advised Ms.
                                                 6


Wagner-Nitzsche that, “unless she had a prescription, possession of Percocet was a fifth-degree

felony.” Id. At that time, Ms. Wagner-Nitzsche and the officer went to her house to search for

the prescription. Id. at ¶ 6. While at the house, the officer saw, in plain view, items used in the

production of methamphetamine. Id.        He later obtained a search warrant to recover additional

evidence. Id.

        {¶16} Ms. Wagner-Nitzsche filed a motion to suppress contending that “the traffic stop

of [her] vehicle was not supported by reasonable suspicion, that the initial search of [her] home

was conducted without a warrant, and that the search warrant relied on information that was

illegally gathered and was not supported by probable cause.” Id. at ¶ 7. Under the totality of the

circumstances, the trial court granted the motion stating that the stop “‘was not reasonable and

was not supported by a particularized suspicion that criminal activity was afoot. [The officer’s]

observations amount to nothing more than an unsupported hunch or suspicion that criminal

activity might be afoot since it is possible that someone might be trying to move a Meth lab.’”

Id. at ¶ 8.

        {¶17} In affirming the trial court’s decision, we concluded that the officer did not have

reasonable suspicion to stop Wagner-Nitzsche’s car because “[h]e did not actually see anyone

place anything in the vehicle and stopped it on the mere ‘chance [that] she was moving a meth

lab from her house.’” Id. at ¶ 15. We stated that the officer’s testimony, in this regard, was the

same as if he said that he relied on a mere hunch. Id.

        {¶18} Additionally, the present matter is clearly distinguishable from our recent decision

in State v. Floyd, 9th Dist. No. 11CA010033, 2012-Ohio-990. In Floyd at ¶ 1, a police officer of

16 years observed Mr. Floyd’s truck turn into a driveway and go behind a building at 11:50 p.m.

The officer found this behavior suspicious “because the business that occupied the building was
                                                 7


closed for the day and there had been a number of break-ins in the area.” Id. The officer parked

his cruiser across the street from the building and called for back-up in case there was a burglary

in progress. Id.   Approximately two minutes later, the officer saw Mr. Floyd drive back out

from behind the building and reenter the roadway. Id. At that time, the officer initiated a traffic

stop. Id.

        {¶19} After being arrested for OVI and operating a vehicle with a prohibited blood-

alcohol concentration (“BAC”), Mr. Floyd moved to suppress the evidence because the officer

did not have reasonable suspicion to initiate the traffic stop. Id. The trial court denied his

motion, Mr. Floyd pled no contest to the BAC count, and was convicted of the same. Id. Mr.

Floyd appealed and, in affirming the trial court’s denial of the motion to suppress, we stated:

        Two minutes would not have given a thief much time to break into the business,
        but the driver of the truck could simply have been in the process of casing
        buildings in the area or have quickly loaded something that was behind the
        building into the bed of his truck. Accordingly, although this case presents a
        close question, based on the time of day, [the officer’s] experience, the fact that
        the businesses to which the driveway led were closed, and the fact that there had
        been “numerous break-ins [* * *] burglaries and all kind of crimes committed
        specifically in that area,’ we conclude that, viewing the evidence ‘as it would be
        understood by those in law enforcement,” the totality of the circumstances
        supports the [trial court’s] determination that [the officer] had reasonable and
        articulable suspicion to justify stopping [Mr. Floyd’s] truck.

Id. at ¶ 20, quoting State v. Andrews, 57 Ohio St.3d 86, 88 (1991). (Emphasis added.)

        {¶20} Here, unlike Floyd where the officer sincerely, and reasonably, believed that a

burglary may be in progress, Officer Price did not state any reasonable, articulable suspicion for

stopping Mr. Browning. Officer Price admitted that he only stopped Mr. Browning because he

was driving “a suspicious vehicle in the area.” Further, he admitted that (1) there had not been

any recent burglaries in that particular area, (2) he did not recall seeing anything denoting that

Mr. Browning initially stopped his car on private property, (3) it did not appear that Mr.
                                                 8


Browning was casing a house, and (4) he did not observe Mr. Browning commit any traffic

infraction or criminal activity. Additionally, Officer Price testified that “I know it’s a dead end,

so I figured, well, if they’re legit, maybe they’ll turn around and come back. So I went down the

road a little bit, sat in my cruiser, and sure enough the car came back out, got on State Route 21,

went southbound.” (Emphasis added.) Then, Officer Price contradicted himself, stating “I

figured it might have been someone who could have been visiting from out of state, but being

that they came right back out, I thought I’d better pull them over and see what’s going on.”

(Emphasis added.)

       {¶21} Based upon the foregoing testimony, even though Officer Price did not believe

that Mr. Browning was engaged in criminal activity, he still initiated the traffic stop. As stated

above, an officer’s reliance upon a mere hunch is not sufficient to justify a stop. See Wagner-

Nitzsche at ¶ 11. In light of Officer Price’s decision to initiate a stop to see what Mr. Browning

might be up to, we cannot say that Officer Price had a reasonable, articulable suspicion of

criminal activity to justify the traffic stop. Therefore, the trial court erred in denying Mr.

Browning’s motion to suppress.

       {¶22} Mr. Browning also argued that Officer Price did not have probable cause to arrest

him for OVI. However, because Officer Price did not have reasonable, articulable suspicion to

initiate the traffic stop, we decline to address the secondary issue of probable cause.

       {¶23} Mr. Browning’s sole assignment of error is sustained.

       {¶24} Accordingly, the judgment of the Barberton Municipal Court is reversed and this

cause is remanded for further proceedings consistent with this decision.

                                                                                Judgment reversed,
                                                                               and cause remanded.
                                                 9




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Barberton

Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CARLA MOORE
                                                     FOR THE COURT




BELFANCE, J.
CONCURS.

WHITMORE, P. J.
DISSENTING.

       {¶25} I would affirm the judgment of the trial court because I would conclude that the

court properly denied Browning’s motion to suppress.

       {¶26} The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Accord Ohio
                                                10


Constitution, Article I, Section 14. This Court has identified three types of police encounters in

the context of the Fourth Amendment: (1) consensual encounters, (2) investigatory stops, and (3)

seizures that equate to an arrest. State v. Patterson, 9th Dist. No. 23135, 2006-Ohio-5424, ¶ 11.

To justify an investigative stop, an officer must point to “specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant that intrusion.”

Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999), quoting Terry v. Ohio, 392 U.S. 1, 21

(1968). In evaluating the facts and inferences supporting the stop, a court must consider the

totality of the circumstances as “viewed through the eyes of a reasonable and cautious police

officer on the scene, guided by his experience and training.” State v. Bobo, 37 Ohio St.3d 177,

179 (1988), quoting United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976). A totality of the

circumstances review includes consideration of “(1) [the] location; (2) the officer’s experience,

training or knowledge; (3) the suspect’s conduct or appearance; and (4) the surrounding

circumstances.” State v. Biehl, 9th Dist. No. 22054, 2004-Ohio-6532, ¶ 14, citing Bobo, 37 Ohio

St.3d at 178-179.

       {¶27} Officer Price, an officer with twenty-two years of experience, testified that he first

observed a car parked in a private drive off Copley Road at 12:43 a.m. Officer Price observed a

man standing outside the car when he drove past. Deciding to investigate further, Officer Price

slowed his patrol car, put the car into reverse, and backed up to examine the parked car further.

He noted that the parked car had out-of-state license plates. Officer Price testified that when the

man standing outside the parked car saw Officer Price’s marked police cruiser, the man entered

the car on the driver’s side and drove forward down the private lane. Officer Price decided to

remain in the area because the car aroused his suspicions. He indicated that the private drive on

which he observed the man is a dead end drive that connects the main road to two or three
                                               11


houses, the residents of those houses had been living there for some time, and, as far as Officer

Price knew, none of the residents had out-of-state license plates. Officer Price also was aware

that the police had experienced several problems in that area because one of the homes had been

burglarized at some point in the past. Officer Price decided to drive a short distance down the

road, turn off his headlights, and observe the private drive from his vehicle. Approximately two

to three minutes later, the car emerged from the private drive. Officer Price then executed a

traffic stop.

        {¶28} This Court recently engaged in an in-depth review of reasonable suspicion cases

in State v. Floyd, 9th Dist. No. 11CA010033, 2012-Ohio-990. In Floyd, an officer with sixteen

years of experience observed a truck turn into a driveway and drive behind a building at 11:50

p.m. The officer was aware that the building had closed for the day and that the area had been

the target of numerous burglaries. Approximately two minutes later, the officer saw the truck

emerge from behind the building. The officer then stopped the truck and discovered that its

driver was intoxicated. In concluding that reasonable suspicion for the officer’s stop existed, we

rejected the appellant’s contention that his actions were consistent with innocent behavior. We

held that “[t]he possibility of an innocent explanation * * * does not deprive an officer of the

capacity to entertain a reasonable suspicion of criminal conduct.” Floyd at ¶ 18. Although we

acknowledged that the case presented a “close call,” we concluded that “based on the time of

day, [the officer’s] experience, the fact that the businesses to which the driveway led were

closed, and the fact that there had been numerous break-ins * * * burglaries and all kind of

crimes committed specifically in that area,” reasonable suspicion for the stop existed. (Internal

quotations omitted.) Id. at ¶ 20.
                                                12


       {¶29} As in Floyd, Officer Price had a great deal of experience and encountered

Browning’s car around midnight. Although the private drive led to residential homes, Officer

Price was familiar with the residents of those homes and was not aware that any of the residents

had out-of-state license plates. More importantly, as soon as Browning saw Officer Price, he got

into his vehicle and drove away. He then waited several minutes until it appeared that Officer

Price’s cruiser had gone before emerging from the private drive. Based on his observations,

Officer Price reasonably could have concluded that the driver was not there for a legitimate

purpose (e.g., visiting a resident of one of the homes) and had pulled his car forward in hopes of

evading Officer Price. See, e.g., State v. Walker, 9th Dist. No. 25744, 2011-Ohio-5779, ¶ 17;

State v. Duncan, 9th Dist. No. 07CA0050, 2007-Ohio-6004, ¶ 11. Much like Floyd, the facts in

this case present a “close call.”     Floyd at ¶ 20.     Nevertheless, based on Officer Price’s

experience, the time of day, his familiarity with the area, and the evasive behavior he observed, I

would conclude that Officer Price possessed reasonable suspicion before stopping Browning’s

car.   Although innocent explanations for Browning’s behavior undoubtedly existed, “[t]he

possibility of an innocent explanation * * * does not deprive an officer of the capacity to

entertain a reasonable suspicion of criminal conduct.” Id. at ¶ 18. Because I would conclude

that the trial court properly concluded that Officer Price possessed reasonable suspicion under

the facts and circumstances presented herein, I respectfully dissent.

       {¶30} Having decided that Officer Price lacked reasonable suspicion to stop Browning’s

car, the majority did not reach the issue of probable cause. “[P]robable cause is the existence of

circumstances that warrant suspicion.” State v. Tejada, 9th Dist. No. 20947, 2002-Ohio-5777, ¶

8, quoting State v. Young, 146 Ohio App.3d 245, 2001-Ohio-4284, ¶ 23 (11th Dist.). “[T]he

standard for probable cause does not require a prima facie showing of criminal activity; rather,
                                                13


the standard requires ‘only a showing that a probability of criminal activity exists.’” Tejada at ¶

8, quoting Young at ¶ 23. Moreover, in analyzing whether officers had probable cause to

proceed, reviewing courts will look to the totality of all the facts and circumstances as they

existed at the time of the incident. See State v. Fry, 9th Dist. No. 23211, 2007-Ohio-3240, ¶ 36,

citing Illinois v. Gates, 462 U.S. 213, 233 (1983).

       {¶31} Once Officer Price stopped Browning, he made several observations. Browning’s

eyes were glassy and bloodshot, his pupils were dilated, his speech was slurred, and he was

omitting a moderate to strong odor of alcohol. Nevertheless, Browning refused to admit that he

had consumed any alcohol whatsoever. He also refused to participate in any field testing and

became uncooperative to the point of combative when Officer Price tried to engage him. Officer

Price eventually required assistance to forcibly remove Browning from the vehicle. Officer Price

testified that, based on his observations and over twenty years of experience, Browning was

intoxicated. I would conclude that, based on the totality of the circumstances, Officer Price

possessed probable cause to arrest Browning for a violation of R.C. 4511.19. See State v.

Napier, 9th Dist. No. 11CA0006, 2012-Ohio-394, ¶ 23. As such, I would affirm the trial court’s

decision to deny Browning’s motion to suppress.


APPEARANCES:

STEPHANIE YUHAS, Attorney at Law, for Appellant.

MICHELLE BANBURY, Attorney at Law, for Appellee.
