[Cite as State v. Barzacchini, 2014-Ohio-3467.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                          JUDGES:
STATE OF OHIO                                     :       Hon. W. Scott Gwin, P.J.
                                                  :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee       :       Hon. Craig R. Baldwin, J.
                                                  :
-vs-                                              :
                                                  :       Case No. 2014CA0009
MATTHEW JAMES BARZACCHINI                         :
                                                  :
                     Defendant-Appellant          :       OPINION




CHARACTER OF PROCEEDING:                              Criminal appeal from the Canton Muncipal
                                                      Court, Case No. 2013TRC07283


JUDGMENT:                                             Reversed and Remanded


DATE OF JUDGMENT ENTRY:                               August 11, 2014


APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JOSEPH MARTUCCIO                                      SAMUEL FERRUCCIO, JR.
Canton City Law Director                              JEFF SERRA
TYRONE D. HAURITZ                                     301 Cleveland Avenue N.W.
Canton City Prosecutor                                Canton, OH 44702
KATIE ERCHICK
Assistant City Prosecutor
218 Cleveland Ave. S.W.
Canton, OH 44701-4218
[Cite as State v. Barzacchini, 2014-Ohio-3467.]


Gwin, P.J.

        {¶1}     Appellant, Matthew J. Barzacchini [“Barzacchini”] appeals the December

20, 2013 judgment of the Canton Municipal Court, Stark County, Ohio overruling his

motion to suppress.

                                         Facts and Procedural History

        {¶2}     On November 2, 2013, Barzacchini was driving southbound on Cleveland

Avenue in Uniontown, Stark County, Ohio. Officer Joshua Pirogowicz of the Uniontown

Police Department was in uniform in a marked police car. His car was stationary facing

westbound next to Cleveland Avenue, near Pontius Street.

        {¶3}     As Officer Pirogowicz sat stationary, Barzacchini’s vehicle drove past him.

Barzacchini’s vehicle had the driver's side window rolled down. Officer Pirogowicz

testified,

                 The driver turned and there was exaggerated arm movements that

        came from the vehicle as well as loud audio- audible noise, screaming,

        yelling, etcetera.

(T. at 6). Officer Pirogowicz was concerned that an assault may have been occurring in

the vehicle. Officer Pirogowicz testified that he could not see the back compartment of

the car. He therefore decided “to initiate a traffic stop based solely on the exigent,

possible exigent, circumstances that were presented in front of me by the defendant.”

Id.

        {¶4}     Officer Pirogowicz pulled onto Cleveland Avenue and followed the vehicle.

Officer Pirogowicz testified he did not witness any indicia of impaired driving or

speeding and that Barzacchini did not commit any traffic violations prior to Officer
Stark County, Case No. 2014CA0009                                                        3


Pirogowicz activating his emergency lights to initiate a traffic stop of the Barzacchini's

vehicle. The vehicle made a right turn onto Broad Vista. Officer Pirogowicz testified that

the vehicle committed a marked lanes violation. Officer Pirogowicz activated his

overhead lights to initiate a traffic stop at approximately 12:12 a.m. in the 3600 block of

Broad Vista. The vehicle did not stop, so Officer Pirogowicz activated his siren. The

vehicle continued to travel for approximately three blocks before pulling into a private

driveway.

       {¶5}   Barzacchini immediately opened his car door. Officer Pirogowicz ordered

him to stay in the car because he could not see inside of the vehicle and did not know if

there were other people in the vehicle and whether an assault had occurred.

       {¶6}   Officer Pirogowicz approached the vehicle to investigate the situation.

During this investigation, Barzacchini remained inside of his vehicle. Officer Pirogowicz

testified that as he is speaking with Barzacchini, he smelled a strong odor of an

alcoholic beverage coming from Barzacchini’s breath. Officer Pirogowicz also observed

blood shot eyes, slurred speech, and very slow and delayed movements. Barzacchini

explained that everything was fine, no assault had occurred and that he was having a

verbal argument with his wife over the phone. Barzacchini admitted to Officer

Pirogowicz that he had consumed a couple of beers at his friend's house.

       {¶7}   At this time, Barzacchini’s wife arrived home and verified that the couple

had been in an argument and that the screaming and arm movements Officer

Pirogowicz had observed were most likely because of the argument. Officer Pirogowicz

testified that at this point, he knew no assault had occurred, However, based on his

observations during his investigation, Officer Pirogowicz asked Barzacchini to step out
Stark County, Case No. 2014CA0009                                                        4


of his vehicle to perform standardized field sobriety tests, after which Barzacchini is

arrested and charged with OVI.

        {¶8}   Barzacchini filed a Motion to Suppress arguing there was no reasonable,

articulable suspicion of criminal activity and/or any lawful cause to stop the his vehicle.

By Judgment Entry filed December 20, 2013, the trial court overruled Barzacchini’s

motion to suppress. In response to Barzacchini’s motion, the trial court filed Findings of

Fact and Conclusions of Law on January 9, 2014.

        {¶9}   Barzacchini pled no contest to charges of operating a motor vehicle under

the influence of alcohol and the marked lanes violation. The Trial Court found him guilty

of both charges.

        {¶10} The Trial Court sentenced Barzacchini to pay a fine of $800.00 plus court

costs on both counts, complete 60 hours of community service, serve ten (10) days at

the Stark County Jail, and suspended the remaining 170 jail days. Additionally, the Trial

Court suspended Barzacchini’s driver's license for a period of one year beginning

November 2, 2013 and assessed six points against the Barzacchini’s driver's license.

                                      Assignments of Error

        {¶11} Barzacchini raises three assignments of error,

        {¶12} “I. THE TRIAL COURT'S FINDINGS OF FACT ARE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND THE TRIAL COURT ERRED IN

DENYING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE BY FAILING TO

APPLY THE APPROPRIATE TEST AND/OR CORRECT LAW TO ITS FINDINGS OF

FACT.
Stark County, Case No. 2014CA0009                                                       5


      {¶13} “II. THE TRIAL COURT ERRED IN HOLDING THAT THE STOP OF THE

APPELLANT'S VEHICLE DID NOT VIOLATE THE APPELLANT'S RIGHTS UNDER

THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION BECAUSE NO REASONABLE AND ARTICULABLE SUSPICION OF

CRIMINAL ACTIVITY EXISTED TO JUSTIFY THE STOP OF THE APPELLANT'S

VEHICLE.

      {¶14} “III. THE TRIAL COURT ERRED IN FINDING THAT EXIGENT

CIRCUMSTANCES EXISTED WHICH ALLOWED OFFICER PIROGOWICZ TO STOP

THE APPELLANT'S VEHICLE WITHOUT A REASONABLE AND ARTICULABLE

SUSPICION OF CRIMINAL ACTIVITY.”

                                            I, II & III.

      {¶15} Because we find the issues raised in Barzacchini’s first, second and third

assignments of error are closely related, for ease of discussion, we shall address the

assignments of error together.

      {¶16} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d

988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111
Stark County, Case No. 2014CA0009                                                         6


Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has

accepted those facts as true, it must independently determine as a matter of law

whether the trial court met the applicable legal standard. See Burnside, supra, citing

State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,

generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That

is, the application of the law to the trial court's findings of fact is subject to a de novo

standard of review Ornelas, supra. Moreover, due weight should be given “to inferences

drawn from those facts by resident judges and local law enforcement officers.” Ornelas,

supra at 698, 116 S.Ct. at 1663.

       {¶17} The Ohio Supreme Court has emphasized that probable cause is not

required to make a traffic stop; rather the standard is reasonable and articulable

suspicion. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4358, 894 N.E.2d 1204, ¶ 23.

Further, neither the United States Supreme Court nor the Ohio Supreme Court

considered the severity of the offense as a factor in determining whether the law

enforcement official had a reasonable, articulable suspicion to stop a motorist. Whren v.

United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89(1996); City of Dayton v.

Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091(1996).

       COMMUNITY CARETAKING EXCEPTION TO FOURTH AMENDMENT

       {¶18} The community caretaking exception to the Fourth Amendment is rooted

in Cady v. Dombrowski, where the U.S. Supreme Court noted that,

              [b]ecause of the extensive regulation of motor vehicles and traffic,

       and also because of the frequency with which a vehicle can become
Stark County, Case No. 2014CA0009                                                       7


      disabled or involved in an accident on public highways, the extent of

      police-citizen contact involving automobiles will be substantially greater

      than police-citizen contact in a home or office. Some such contacts will

      occur because the officer may believe the operator has violated a criminal

      statute, but many more will not be of that nature. Local police officers,

      unlike federal officers, frequently investigate vehicle accidents in which

      there is no claim of criminal liability and engage in what, for want of a

      better term, may be described as community caretaking functions, totally

      divorced from the detection, investigation, or acquisition of evidence

      relating to the violation of a criminal statute.

413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

      {¶19} One of the first cases to enunciate a standard for police stops to assist

motorists, unrelated to penal or regulatory purposes, was United States v. Dunbar, 470

F.Supp. 704 (D.Conn 1979.), aff’d, 610 F.2d 807 (2nd Cir.1979). In this case, an officer

stopped a motorist after observing that the license plate was from a neighboring state

and deducing from the manner in which the driver was proceeding that he was lost. In

Dunbar, the public interest in making the stop versus the individual’s interest in privacy

was the subject of discussion by the court,

             It would be too extravagant to contend that a benign purpose of

      rendering assistance could never justify the stop of a motorist. The most

      rigorous view of the Fourth Amendment would not bar police officers from

      stopping a motorist to inform him that a bridge beyond a bend in the road

      had just been washed away. Some might contend that, as soon as time
Stark County, Case No. 2014CA0009                                                        8


     permitted, even this situation could be handled less intrusively by placing

     barricades to close the road, but a stopping of cars to warn and suggest

     alternate routes scarcely seems unreasonable. Other situations can be

     imagined where a road remains passable, yet police officers legitimately

     promote safety by stopping motorists to inform them about road hazards.

            Aiding a motorist believed to be lost advances no substantial safety

     interest. It is arguable that the lost motorist, if not assisted, might interfere

     with the peacefulness of a neighborhood at 1:00 a.m. by seeking

     directions from a householder, but that concern is tenuous. Moreover, the

     interest in aiding the motorist, for his own benefit or that of the local

     residents, can in most situations be as well served by having the police

     officer make his presence known and leaving to the motorist the decision

     as to whether to stop and seek directions. Thus, while the interest of

     government in aiding a lost motorist may be considered “legitimate” within

     the meaning of [Delaware v.] Prouse [U.S., 440 U.S. 648, 99 S.Ct. 1391,

     59 L.Ed.2d 660 (1979)], it is an interest entitled to extremely slight weight

     in the balance mandated by [United States v.]Brignoni-Ponce, [42 U.S.

     873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)].

            On the individual’s side of the balance, the interest is also not

     especially weighty. The privacy intrusion is brief and normally uneventful.

     However, it does entail the risk of creating “substantial anxiety,” Delaware

     v. Prouse, supra, U.S. at, 99 S.Ct. at 1391, and is a selective stopping that

     is viewed by the Supreme Court as more intrusive than a stopping of all
Stark County, Case No. 2014CA0009                                                   9

      motorists at a given point. See United States v. Martinez-Fuerte, 428 U.S.

      543, 558, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Ortiz,

      422 U.S. 891, 894-895, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975).

             Judicial scales are not well calibrated to compare the slight

      governmental and privacy interests on either side of the balance in this

      case. Two considerations persuade me that the balance ought to be

      struck on the side of privacy. The policy of the Fourth Amendment is to

      minimize governmental confrontations with the individual. That policy is

      not furthered by permitting police officers to stop citizens not even

      remotely suspected of any conduct in violation of criminal or regulatory

      standards, simply for the well-intentioned purpose of providing directions.

      Moreover, however well-intentioned the stopping may have been in this

      case, the risk of abuse is real. The “plain view” principle has spawned

      numerous cases where the police officer says, “I saw him drop the

      package.” See Comment, “Police Perjury in Narcotics ‘Dropsy’ Cases: A

      New Credibility Gap,” 60 Geo. L.J. 507 (1971). The investigative stop

      authority announced in Terry v. Ohio, [supra], has led to cases where the

      officer says, “He looked suspicious.” [Citations omitted.] The Fourth

      Amendment stands against initiating a new line of cases in which the

      officer says, “I thought he was lost.”

Dunbar, 470 F.Supp at 707-708. In Ohio, the Supreme Court has held,

             The community-caretaking/emergency-aid exception to the Fourth

      Amendment warrant requirement allows a law-enforcement officer with
Stark County, Case No. 2014CA0009                                                       10


      objectively reasonable grounds to believe that there is an immediate need

      for his or her assistance to protect life or prevent serious injury to effect a

      community-caretaking/emergency-aid stop.

State v. Dunn, 131 Ohio St.3d 2012-Ohio-1008, 964 N.E.2d 1037, syllabus.

                                 Test as Applied to this Case

      {¶20} In the case at bar, Officer Pirogowicz was not acting within his duties of

detection, investigation, or acquisition of evidence relating to the commission of crimes.

Therefore, we must determine if the officer was acting within a bona fide community

caretaker function.

      {¶21} In the case at bar, Officer Pirogowicz’s concern was aroused as a car

drove past him in the opposite direction on a dark and rainy night. Officer Pirogowicz’s

only indicia were some exaggerated arm movements and some loud audible sounds.

Officer Pirogowicz could not hear what was being said, if anything. Officer Pirogowicz

could not see anyone inside the car other than the driver.

      {¶22} Under these circumstances, Officer Pirogowicz’s generalized concern for

safety could certainly have justified him in approaching the car and making contact with

their occupants in a nonintrusive manner. However, absent more specific signs that the

occupant of the car needed assistance, Officer Pirogowicz was not justified in taking

actions that amounted to a fourth amendment seizure. This is particularly true in the

present case, because, according to Officer Pirogowicz, he witnessed no further signs

of distress coming from the car as he followed it on Cleveland Avenue. Officer

Pirogowicz testified he did not witness any indicia of impaired driving or speeding and
Stark County, Case No. 2014CA0009                                                       11


that Barzacchini did not commit any traffic violations prior to Officer Pirogowicz

activating his emergency lights to initiate a traffic stop of Barzacchini's vehicle.

       {¶23} Officer Pirogowicz testified that he observed the vehicle commit a marked

lanes violation. R.C. 4511.33, provides, in part,

              (A) Whenever any roadway has been divided into two or more

       clearly marked lanes for traffic, or wherever within municipal corporations

       traffic is lawfully moving in two or more substantially continuous lines in

       the same direction, the following rules apply:

               (1) A vehicle or trackless trolley shall be driven, as nearly as is

       practicable, entirely within a single lane or line of traffic and shall not be

       moved from such lane or line until the driver has first ascertained that such

       movement can be made with safety.

                                                ***

       {¶24} From our own review of the video taken from Officer Pirogowicz’s cruiser

camera, we observe that Barzacchini’s vehicle did not travel in one lane and then

change to another lane when the roadway made a soft left turn. Barzacchini was the

only vehicle on this portion of the street when he made the turn and he never actually

went left of center

       {¶25} Accordingly, since Barzacchini did not violate R.C. 4511.33, this could not

provide Officer Pirogowicz with an articulable and reasonable suspicion that Barzacchini

was operating his motor vehicle in violation of the law.

       {¶26} Under the circumstances presented in this case, police would be justified

in stopping a motor vehicle leaving a sporting event, a concert, a rally or any other
Stark County, Case No. 2014CA0009                                                  12


activity upon nothing more than one or more occupant’s ruckus behavior. We do not

believe this to have been intended. The actions that Officer Pirogowicz had witnessed

did not provide a basis to reasonably believe that there was an immediate need for his

assistance to protect life or prevent serious injury. We conclude that the stop of

Barzacchini’s vehicle was not permissible under the community caretaker test as

defined in State v. Dunn, 131 Ohio St.3d 2012-Ohio-1008, 964 N.E.2d 1037.

      {¶27} Barzacchini’s three assignments of error are sustained.

      {¶28} The judgment of the Canton Municipal Court overruling Barzacchini’s

motion to suppress is vacated. This cause is remanded to that court for further

proceedings according to law.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
