[Cite as State v. Kinzy, 2010-Ohio-6499.]
                              STATE OF OHIO, MONROE COUNTY

                                   IN THE COURT OF APPEALS

                                            SEVENTH DISTRICT


STATE OF OHIO,                                    )
                                                  )    CASE NO. 09 MO 7
        PLAINTIFF-APPELLEE,                       )
                                                  )
        - VS -                                    )          OPINION
                                                  )
RICKY A. KINZY,                                   )
                                                  )
        DEFENDANT-APPELLANT.                      )

CHARACTER OF PROCEEDINGS:                              Criminal Appeal from Monroe
                                                       County Court, Case No. 06 TRC 20.

JUDGMENT:                                              Affirmed.

APPEARANCES:
For Plaintiff-Appellee:                                Attorney L. Kent Reithmiller
                                                       Prosecuting Attorney
                                                       Attorney Thomas Hampton
                                                       Assistant Prosecuting Attorney
                                                       101 North Main Street
                                                       Room 15
                                                       P.O. Box 430
                                                       Woodsfield, OH 43793

For Defendant-Appellant:                               Attorney John A. Vavra
                                                       132 West Main Street
                                                       P.O. Box 430
                                                       St. Clairsville, OH 43950



JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                       Dated: December 22, 2010
[Cite as State v. Kinzy, 2010-Ohio-6499.]
DeGenaro, J.
        {¶1}     This timely appeal comes for consideration upon the record in the trial court,
the parties' briefs and their oral arguments before this Court. Defendant-Appellant, Ricky
Kinzy, appeals the August 26, 2009 judgment of the Monroe County Court convicting him
of a second OVI offense. Kinzy argues the trial court erred by denying his motion to
suppress because his arrest was the result of an illegal investigatory stop on private
property.
        {¶2}     Because Kinzy voluntarily exited his car and approached the Deputy the
initial encounter was consensual for Fourth Amendment purposes. Moreover, the Deputy
had a reasonable articulable suspicion of criminal activity that justified the stop, which,
although mistaken at the time, did not affect the validity of the stop because the mistake
was objectively reasonable. Accordingly, the judgment of the trial court is affirmed.
                                   Facts and Procedural History
        {¶3}     At 2:45 a.m., on March 27, 2009, Ricky Kinzy and his girlfriend left a local
bar and started down State Route 145, approximately one-half mile from Kinzy's
residence. A Sheriff's Deputy turned onto State Route 145 behind Kinzy in order to do a
business check at Stephen's Tires and Lube.             The Deputy performs such routine
business checks often and conducts them in order to see if the business has been
vandalized or broken into.
        {¶4}     Kinzy's property is located next to Stephen's Tire and Lube with a garage at
the edge of his property immediately adjacent and to the right of Stephen's Tire and Lube.
Kinzy’s residence sits further back on his property to the right of the garage and slightly
behind it. Because the garage has its own driveway separate from the house, Kinzy
parks in the driveway and walks through the yard to his house. Kinzy testified that the
garage sits closer to the business than his residence.
        {¶5}     After seeing Kinzy pull into what he thought was the driveway leading to the
garage for the business, the Deputy pulled behind Kinzy to investigate, parking about
fifteen feet behind Kinzy's vehicle. The Deputy activated neither his lights nor siren.
Kinzy noticed a car behind him, got out of his truck and approached the cruiser to find out
who it was. As Kinzy approached, the Deputy got out of the cruiser and noticed that
                                                                                      -2-


Kinzy smelled strongly of alcohol. The Deputy asked Kinzy to return to his car while he
checked Kinzy's license. It was not until the Deputy asked for Kinzy's license, that Kinzy
told him that the driveway in which they were parked was his private property. After
checking Kinzy's license, the Deputy approached Kinzy's car and noticed a six-pack with
two bottles missing and an open container. Although Kinzy claimed the open bottle was
for tobacco spit, the bottle contained no spit and it smelled of beer.
       {¶6}   After conducting field sobriety tests which he failed, the Deputy arrested
Kinzy, who later registered a 0.212 on the breathalyzer test. Kinzy was issued a citation
for operating a motor vehicle with a prohibited breath alcohol content and for an open
container violation.
       {¶7}   Kinzy filed motions to suppress and dismiss arguing that because the
Deputy had no reasonable articulable suspicion to stop him, all evidence gained from the
stop, including the results of the field sobriety test and the breathalyzer, should be
suppressed. After a hearing on the motion, the parties filed post-hearing briefs and the
trial judge viewed the scene.
       {¶8}   The trial court denied the motions, concluding that the stop was lawful
because although the Deputy was mistaken that Kinzy was on the business property, the
mistake was objectively reasonable:
       {¶9}   "Based on the two exhibits [photographs of the scene], the nature and
coloring of the garage and adjacent business and the presence of an equipment trailer in
the driveway, it certainly would be reasonable for the officer to assume that garage was
associated with the business rather than the residence. It appears from the two exhibits
that the garage is actually closer to the business than the defendant's residence. * * *
[T]he court finds that the officer's belief was objectively reasonable at the time the stop
was made, even though his belief was subsequently determined to be incorrect."
       {¶10} The State dismissed the open container charge and Kinzy entered a plea of
no contest to the OVI charge, and because this was a second OVI offense Kinzy was
sentenced accordingly, which was stayed pending appeal.
                                    Validity of Stop
                                                                                      -3-


       {¶11} On appeal, Kinzy asserts one assignment of error:
       {¶12} "The court erred in overruling the motion of the Appellant to suppress
evidence acquired as the result of an illegal investigatory stop."
       {¶13} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.
Because the trial court is the trier of fact and therefore in the best position to resolve
factual questions and evaluate the credibility of witnesses, State v. Mills (1992), 62 Ohio
St.3d 357, 366, 582 N.E.2d 972, an appellate court must accept the trial court's findings
of fact if they are supported by competent, credible evidence. State v. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8. Conversely, the appellate court
conducts a de novo review to determine whether the facts satisfy the applicable legal
standards at issue in the appeal. Id.
       {¶14} Kinzy argues the Deputy’s investigatory stop was not valid because he
encountered Kinzy in his private driveway. He further argues that the Deputy's mistaken
belief that he had pulled onto the property of Stephen's Tire and Lube was not objectively
reasonable.
       {¶15} There are three types of police encounters with citizens; consensual
encounters, investigative or Terry stops, and arrests. See Florida v. Royer (1982), 460
U.S. 491, 501-507, 75 L.Ed 2d 229, 103 S.Ct. 1319. Germane to this appeal are the first
two.
       {¶16} A police encounter is considered consensual where a person is free to walk
away from the officer and may refuse to answer questions. State v. Mendenhall (1980),
446 U.S. 544, 554, 64 L.Ed 2d 497, 100 S.Ct. 1870. Thus, "there has been no intrusion
upon that person's liberty or privacy as would under the Constitution require some
particularized and objective justification." Id. An encounter may be deemed consensual
when a police officer approaches and questions individuals in or near a parked car. See,
e.g., State v. Johnston (1993), 85 Ohio App.3d 475, 478, 620 N.E.2d 128. It may also be
consensual even when the encounter takes place on private property. State v. Williams
(1990), 51 Ohio St.3d 58, 61, 554 N.E.2d 108; State v. Szewczyk (Sept. 14, 1999), 7th
                                                                                       -4-


Dist. No. 98 CA 20, at *2-3.
       {¶17} In Williams, supra, a deputy was on private property investigating a
complaint that three persons had been observed leaving a rural, partially wooded private
property, when he discovered marijuana fields and radioed for backup. Meanwhile,
Williams arrived at the farmhouse on the property and stopped ostensibly to get
permission to hunt. The deputy saw Williams, approached him and asked Williams what
he was doing there. Williams, thinking the plainclothes deputy was another hunter, stated
that he was there to squirrel hunt. The deputy, knowing it was nearly too late in the day to
legally hunt and observing that Williams did not have a hunting rifle, directed Williams to
follow him to his car, where the deputy patted him down and from that seized evidence
which led to Williams' arrest.    The Ohio Supreme Court concluded that the initial
encounter between the officer and Williams was consensual:
       {¶18} "We observe initially that no apparent 'seizure' of Williams occurred, and
thus the Fourth Amendment was not implicated, until Deputy Garst asked Williams to
accompany him to Garst's car. Garst's approach to Williams, and his initial question ('I
asked him what he was doing there'), cannot be said to have restrained Williams's liberty
in such a way that he was not free to leave." Id. at 61.
       {¶19} Similarly here, the initial encounter between the Deputy and Kinzy was
consensual. The Deputy pulled behind Kinzy in a driveway. Kinzy admits that he did not
initially realize when he stopped his truck that a police cruiser was behind him. Kinzy got
out of his vehicle and approached the Deputy to ask him what he was doing there. The
Deputy had not turned on his lights or siren, had not stepped out of his cruiser, and had
not indicated in any way that he intended to detain Kinzy. Based on the totality of the
circumstances, the initial contact between Kinzy and the Deputy was consensual.
       {¶20} Kinzy next argues that the Deputy’s belief that Kinzy was parked on the
business property was unreasonable. Even assuming arguendo the initial encounter was
not consensual, the Deputy had reasonable suspicion to stop Kinzy.
       {¶21} An investigatory, or Terry stop, occurs when the officer stops to investigate
unusual or suspicious behavior. The officer "must be able to point to specific and
                                                                                       -5-


articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion." Terry v. Ohio (1968), 392 U.S. 1, 21-22, 88 S.Ct.
1868, 20 L.Ed 3d 889. An investigatory stop "must be justified by some objective
manifestation that the person stopped is, or is about to be, engaged in criminal activity."
U.S. v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621.
       {¶22} The Deputy testified he was doing a routine business check and stopped to
investigate why someone was on what he thought was Stephen's Tire and Lube property
at 2:45 a.m. The fact that the Deputy was mistaken does not make the stop invalid as the
mistake was objectively reasonable.
       {¶23} "[A] police officer's mistake of fact will not lead to the suppression of
evidence where the mistake was 'understandable' and a reasonable response to the
situation facing the police officer." State v. Fain (Jan. 21, 1998), 9th Dist. No. 18306, at
*2, citing Hill v. California (1971), 401 U.S. 797, 804, 91 S.Ct. 1106, 28 L.Ed.2d 484. In
Fain, the arresting officer believed that the driver of a vehicle was Dwayne Fain, whose
license the officer believed was expired, rather than the true driver, Haward Fain. Id.
Based on this mistaken identity, the officer conducted a further investigation by getting
consent to pat Fain down. Id. The court held that the officer had reasonable, albeit
mistaken, grounds for continuing the investigation and that the evidence from the further
investigation should not be suppressed. Id. at *2-3.
       {¶24} Similarly, in State v. Chapa, 10th Dist. No. 04AP-66, 2004-Ohio-5070, the
court held that an officer's otherwise reasonable suspicion that a crime had occurred,
based upon his observation of a driver failing to a stop at a stop sign or to activate her
turn signal, was not rendered unreasonable by the officer's mistaken belief that the stop
sign was located on public roadway. Id. at ¶17. The court noted there was no indication
that the officer's mistake as to private nature of property was merely pretense or part of
deceptive course of conduct. Rather, the officer reasonably believed that roadway was
public at time he pulled the driver over, and did not discover his mistake until the next
day. Id.
       {¶25} Many of the cases on point regarding police officer mistake involve probable
                                                                                         -6-


cause rather than a reasonable, articulable suspicion. However, the same principle
applies in this case as in those dealing with probable cause, especially since probable
cause is a higher standard. In Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-
3563, 850 N.E.2d 698 the Ohio Supreme Court followed the Ninth Circuit Court of
Appeals in holding that the issue was about an objective belief that there was a violation:
       {¶26} "We agree with the sentiment expressed in a federal case involving an
officer who had stopped a vehicle based on the mistaken belief that the windows were
tinted darker than the law permitted. The court observed that the officer 'was not taking
the bar exam. The issue is not how well [the officer] understood California's window
tinting laws, but whether he had objective, probable cause to believe that these windows
were, in fact, in violation.' United States v. Wallace (C.A.9, 2000), 213 F.3d 1216, 1220.
       {¶27} "Similarly, in this case, the issue is not how well the officer understood the
city's ordinances requiring the authorization of the posting of traffic-control devices.
Rather, the existence of probable cause depends on whether an objectively reasonable
police officer would believe that appellee's conduct in exiting City Lot 2 constituted a
traffic violation, based on the totality of the circumstances known to the officer at the time
of the stop." Godwin at ¶15-16.
       {¶28} Likewise, in State v. Walters, Walters argued the police officer lacked
probable cause to stop him because he had broken no law. State v. Walters, 12th Dist.
No CA2004-04-043, 2005-Ohio-418, at ¶3. The officer pulled Walters over because he
violated a "no left turn" sign posted at the exit of a gas station. Id. at ¶2. However, this
sign did not conform to the Ohio Manual of Uniform Traffic Control.                Id. at ¶3.
Nevertheless, Walters was arrested for DUI. The court held the stop was valid because
the officer reasonably believed that Walters had committed a traffic violation despite the
sign not being "posted in compliance with the OMUTCD." Id. at ¶10.
       {¶29} 1Similarly here, the question is not how well the Deputy knew the plat lines
or how familiar he was with the area, but whether the Deputy's mistake that Kinzy was on
the business property was objectively reasonable. It was objectively reasonable that the
Deputy mistook Kinzy's driveway for that of the business. The incident occurred at 2:45
                                                                                      -7-


a.m. and it would have been dark. Kinzy's garage looks similar to the business’s building
and the two buildings stand only a dozen or so feet from each other. Kinzy admitted that
his garage was closer to the business than his residence, which sits to the right and
behind the garage by a distance of several dozen feet.
       {¶30} And after the initial contact, the Deputy had reasonable suspicion to detain
Kinzy. The Deputy noticed a strong odor of alcohol and Kinzy admitted he had been
drinking. The Deputy then asked for Kinzy's license and Kinzy returned to his vehicle.
When the Deputy approached Kinzy's vehicle to return his license, he observed a six-
pack of bottled beer in Kinzy's car with a couple of bottles missing. The Deputy also
observed an open bottle of beer in one of the vehicle's cup holders. Kinzy claimed this
was for spitting tobacco, but the Deputy found no evidence of tobacco in the bottle, only
beer. From Kinzy's conduct the Deputy had reasonable suspicion to have Kinzy perform
a field sobriety test.
       {¶31} The trial court correctly denied the motion to suppress. The initial encounter
between Kinzy and the Deputy was consensual, but assuming arguendo it was not, the
Deputy had a reasonable articulable suspicion to make the stop. That Kinzy was not on
the adjacent business property as the Deputy thought, but rather on his own private
property does not change the outcome because the Deputy's mistaken belief was
objectively reasonable. Accordingly, the judgment of the trial court is affirmed.
Vukovich, P.J., concurs.
Waite, J., concurs.
