[Cite as State v. Kerr, 2017-Ohio-8516.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,
                                                        CASE NO. 1-17-01
       PLAINTIFF-APPELLEE,

       v.

TOBY L. KERR,                                           OPINION

       DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2016-0237

                       Judgment Reversed and Cause Remanded

                           Date of Decision: November 13, 2017



APPEARANCES:

        Linda Gabriele for Appellant

        Terri L. Kohlrieser for Appellee
Case No. 1-17-01


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Toby L. Kerr (“Kerr”) appeals the judgment of

the Allen County Court of Common Pleas for denying his motion to suppress. He

challenges this decision on two grounds: (1) he asserts that the police did not have

reasonable suspicion to conduct an investigatory stop of his vehicle; and (2) he

asserts that the police did not have probable cause to conduct a warrantless search

of his vehicle. For the reasons set forth below, the judgment of the lower court is

reversed.

                           Facts and Procedural History

       {¶2} On October 10, 2015, Officer Zane Slusher (“Slusher”) was on patrol

near a gas station in Lima, Ohio. Doc. 56 at 6. Though he had only one year of

experience on the police force at this time, Slusher had been involved in several

criminal investigations in this area and was aware that this location was known for

having high levels of drug activity. Id. at 3, 7. At roughly 8:40 p.m., Slusher was

sitting in his cruiser when he observed a car, which was driven by Kerr, pull into

the gas station parking lot. Id. at 8. A pedestrian walked up to the vehicle,

reached into the driver’s side of the vehicle through the open window, then

quickly turned around, and walked away. Id. The entire interaction between the

pedestrian and the driver lasted only a few seconds. Id. at 10. Kerr then drove his

vehicle out of the gas station parking lot, having never exited the vehicle while he

was on the premises of the gas station. Id. at 10-11.


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         {¶3} At the time of this interaction, Slusher was about three hundred feet

away from where this interaction occurred and was unable to determine what, if

anything, was exchanged during this interaction.       Though Slusher had never

before witnessed a hand-to-hand drug transaction during his time in law

enforcement, he believed that he had witnessed one of these illegal exchanges. Id.

at 17.     On the basis of his observations, Slusher radioed Officer Aaron

Montgomery (“Montgomery”) and informed him of this suspicious behavior. Id.

at 34. On the basis of this information, Montgomery pursued the car described by

Slusher, activated his lights, and conducted a stop of Kerr’s vehicle. Id. at 35. At

the suppression hearing, Montgomery testified that this was an investigatory stop

based strictly on Slusher’s observations as reported to Montgomery over the radio.

Id. at 35-36.

         {¶4} Montgomery’s patrol car was equipped with a video and audio

recorder, and the recording of this stop was admitted into evidence. Ex. A. The

video shows that Montgomery pulled Kerr over at 8:41 p.m. Id. Montgomery

testified that, as he approached Kerr’s vehicle, he saw Kerr reaching around his

seat with his right arm, making furtive movements, and “digging towards the

center console.” Doc. 56 at 36. Upon seeing these movements, Montgomery

instructed Kerr to place his hands on the steering wheel and then ordered Kerr to

come out of the vehicle. Id. at 37. Montgomery, who had a police dog with him




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in his cruiser, warned Kerr that he would deploy the dog if Kerr was not

cooperative. Id.

       {¶5} Once Kerr was outside his vehicle, Montgomery informed him that he

was being detained—not arrested—and handcuffed him. Id. Ex. A. Montgomery

testified that he smelled the odor of alcohol as Kerr exited the vehicle. Id. at 38.

The video shows that two other police officers arrived at the scene within thirty

seconds of Montgomery approaching Kerr’s vehicle. Ex. A. These two officers

helped to handcuff Kerr and then escorted Kerr to the rear of his vehicle. Id. At

this point, in the process of searching Kerr’s person, one of the officers reached his

hand into each of Kerr’s pockets without first performing a pat-down of Kerr’s

outer clothing. Id.

       {¶6} At 8:42 p.m., Slusher arrived at the scene and immediately told one of

the officers supervising Kerr to put him in the back of his patrol car. Doc. 56 at

41. Ex. A. At this point, Montgomery had opened the rear, driver’s side door of

Kerr’s vehicle and was searching the backseat. Id. While one officer and Slusher

accompanied Kerr to one of the patrol cars, another officer remained with

Montgomery at Kerr’s vehicle. Id. Montgomery said to this remaining officer,

“Man, we just gotta, we just gotta find it. He, uh, he put it back here with his right

hand. Stuffed it back here in this back seat area. So we just need to find it.” Ex.

A. The remaining officer then walked from where Montgomery was standing to

the other side of the vehicle, opened the rear door on the passenger’s side of the


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vehicle, and began searching the back seat. Id. Montgomery can be seen in the

video pulling multiple articles of clothing out of the back seat area, shaking them

outside of the vehicle, and then dropping them in the street.       Id. During this

process, Montgomery said, “I just gotta f****n’ find it.” Id.

       {¶7} During the search, Montgomery and the other officer found a cup

containing a beverage in the back seat. Doc. 56 at 39-40. The other officer with

Montgomery asked, “Are you sure he wasn’t settin’ the drink in here, man?” Id.

To which Montgomery replied, “No.”             Id.   At this point in the recording,

Montgomery can be seen removing a cup from the vehicle and can be heard

saying, “I’m wondering if he didn’t put it in the drink.” Id. Montgomery then

examined the contents of the cup and then stated, “Well, that’s one thing he’s

freakin’ out about. He’s got alcohol in it.” Id. As Slusher approached Kerr’s

vehicle, Montgomery turned towards Slusher and said, “Well the one thing he did

for sure is he put that drink back there. But what else he put, we gotta find it.” Id.

At this point, Slusher is searching the area around the front seat on the driver’s

side of the vehicle, and another officer is still searching the back seat on the

passenger’s side of the vehicle. Id.

       {¶8} Montgomery then turned again towards the vehicle and continued to

search the area in the back seat on the driver’s side of the vehicle until he found a

small, empty baggie. Doc. 56 at 40. The baggie was found underneath a shirt in

the back seat and was wet around the edges of the torn area as if this area had been


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bitten off. Id. The outside of the bag had a “minor amount of * * * white residue”

on it. Id. At the suppression hearing, Montgomery explained that he believed this

white residue was cocaine, though there was not enough of it to perform a test. Id.

at 40-41. Upon finding this baggie, the video shows that he remarked, “Oh, there

it is. He f*****g ate it.” Id. When the other officer asks, “What was it?” Id.

Montgomery stated that he believed it to be, “F****n’ crack. He f****n’ ate it.”

Id. See Doc. 56 at 40-41. He then said, “Well, we can arrest him for tampering.”

Ex. A. Six seconds after Montgomery communicated what he had found, Slusher,

who was searching the area around the front seat of the vehicle, can be heard on

the tape, saying, “Uh-oh.” Id. Ten seconds later, Slusher confirmed the discovery

of contraband, saying, “Yep. We got crack.” Id. The cocaine was in a cigarette

pack that had been stored in a compartment in the front door on the driver’s side of

the vehicle. Doc. 56 at 14-15. When Slusher opened the cigarette pack, he found

a brown, folded up piece of paper that had a few “off-white colored rocks inside.”

Id. at 15.

       {¶9} On June 16, 2016, Kerr was indicted for possession of cocaine in

violation of R.C. 2925.11(A), 2925.11(C)(4)(a) and pled not guilty. Doc. 1. Doc.

43. Kerr filed a motion to suppress on August 18, 2016. Doc. 21. The trial court

held a suppression hearing on October 13, 2016. Doc. 56. After Slusher and

Montgomery testified, the trial judge denied Kerr’s motion to suppress, finding

that the stop and subsequent search were legal. Doc. 36. On November 1, 2016,


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however, Kerr changed his plea to no contest at which time the trial court found

him guilty and entered a conviction for possession of cocaine. Doc. 43. The trial

court then sentenced Kerr on December 15, 2016. Doc. 57.

       {¶10} Kerr filed a notice of appeal on January 3, 2017. Doc. 48. On

appeal, Kerr raises two assignments of error.

                             First Assignment of Error

       The trial court erred in overruling the defendant-appellant’s
       motion to suppress as law enforcement lacked reasonable
       suspicion to stop the defendant-appellant.

                            Second Assignment of Error

       The trial court erred in overruling the defendant-appellant’s
       motion to suppress as law enforcement lacked probable cause to
       conduct a warrantless search of the defendant-appellant’s
       vehicle.

In this case, the resolution of the first assignment of error makes the issues raised

in the second assignment of error moot. For this reason, we will analyze the first

assignment of error only.

                             First Assignment of Error

       {¶11} In his first assignment of error, Kerr argues that the police did not

have a reasonable and articulable suspicion to conduct a traffic stop of his vehicle.

Kerr argues that the subsequent search of his vehicle was, therefore, illegal, and

that the fruits of this search must be suppressed. For this reason, Kerr argues that

the trial court erred by denying his motion to suppress the contraband that was



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discovered in his vehicle. On the basis of these arguments, he requests that this

Court reverse his conviction.

                                   Legal Standard

       {¶12} The Fourth Amendment to the United States Constitution guarantees

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures * * *.” Fourth Amendment, United

States Constitution.   The Ohio Constitution offers a parallel provision to the

Fourth Amendment of the Federal Constitution that has been held to afford the

same level of protection as the United States Constitution. State v. Hoffman, 141

Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette,

80 Ohio St.3d 234, 685 N.E.2d 762 (1997). “The primary purpose of the Fourth

Amendment is to impose a standard of reasonableness upon the exercise of

discretion by law enforcement officers in order to ‘safeguard the privacy and

security of individuals against arbitrary [governmental] invasions.’”        State v.

Carlson, 102 Ohio App.3d 585, 592, 657 N.E.2d 591, 592 (9th Dist.1995), quoting

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “The

Fourth Amendment does not proscribe all state-initiated searches and seizures; it

merely proscribes those which are unreasonable.” Florida v. Jimeno, 500 U.S.

248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), citing Katz v. United States,

389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, “[t]he touchstone

of the Fourth Amendment is reasonableness.” Id.


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       {¶13} A reviewing court must first determine whether a search or seizure

within the meaning of the Fourth Amendment occurred. “In determining whether

a particular encounter constitutes a ‘seizure,’ and thus implicates the Fourth

Amendment, the question is whether, in view of all the circumstances surrounding

the encounter, a reasonable person would believe he or she was ‘not free to leave,’

or ‘not free to decline the officers’ requests or otherwise to terminate the

encounter.’” State v. Westover, 2014-Ohio-1959, 10 N.E.3d 211, (10th Dist.),

quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64

L.Ed.2d 497 (1980) and Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382,

115 L.Ed.2d 389 (1991). Accordingly, a police stop of a motor vehicle and the

resulting detention of its occupants has been held to be a seizure under the Fourth

Amendment. Prouse at 653, citing United States v. Martinez-Fuerte, 428 U.S.

543, 556-558, 96 S.Ct. 3074, 3082–3083, 49 L.Ed.2d 1116 (1976); United States

v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607

(1975).

       {¶14} The court must then determine what level of objective justification

was required for the intrusion committed through this search or seizure. Police

interactions with members of the public involve varying levels of intrusion into the

constitutionally protected zone of privacy. Westover at ¶ 14 (holding The United

States Supreme Court [has] recognize[d] three categories of police-citizen

interactions: (1) a consensual encounter, which requires no objective justification


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* * * (2) a brief investigatory stop or detention, which must be supported by

reasonable suspicion of criminal activity * * *; and (3) a full-scale arrest, which

must be supported by probable cause.”). Under the Fourth Amendment, the level

of intrusiveness involved in a traffic stop must be objectively justified by a

reasonable, articulable, and particularized suspicion that criminal activity is afoot.

State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991).

       {¶15} Next, the court must determine whether law enforcement’s actions

conformed with the requisite legal standard. “The Supreme Court of Ohio has

defined ‘reasonable articulable suspicion’ as ‘specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant the

intrusion [upon an individual’s freedom of movement].’” State v. Shaffer, 2013-

Ohio-3581, 4 N.E.3d 400, ¶ 18 (3d Dist.), quoting State v. Bobo, 37 Ohio St.3d

177, 178, 524 N.E.2d 489 (1988), quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Reasonable suspicion entails some minimal

level of objective justification for making a stop—that is, something more than an

inchoate and unparticularized suspicion or ‘hunch,’ but less than the level of

suspicion required for probable cause.” State v. Ramos, 155 Ohio App.3d 396,

2003-Ohio-6535, 801 N.E.2d 523, ¶ 13, quoting State v. Jones, 70 Ohio App.3d

554, 556–557, 591 N.E.2d 810 (1990), citing Terry at 27.

       {¶16} The police conduct must be examined under the totality of the

surrounding circumstances. Andrews, supra, at 88. Thus, “[t]he ‘reasonable and


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articulable suspicion’ analysis is based on the collection of factors, not on the

individual factors themselves.” (Emphasis sic). State v. Mays, 119 Ohio St.3d

406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 12, quoting State v. Batchili, 113 Ohio

St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 11.            “Furthermore, these

circumstances are to be viewed through the eyes of the reasonable and prudent

police officer on the scene who must react to events as they unfold.” Andrews,

supra, at 88-89, citing United States v. Hall, 525 F.2d 857, 859 (C.A.D.C.1976);

State v. Freeman, 64 Ohio St.2d 291, 295, 474, 414 N.E.2d 1044, 1047 (1980).

“A court reviewing the officer’s actions must give due weight to his experience

and training and view the evidence as it would be understood by those in law

enforcement.” Andrews, supra, at 89, citing U.S. v. Cortez, 449 U.S. 411, 417,

101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981).

      {¶17} Finally, the court must determine whether the evidence should be

suppressed pursuant to the exclusionary rule.      To deter Fourth Amendment

violations, the Supreme Court of the United States has adopted an exclusionary

rule under which “any evidence that is obtained during an unlawful search or

seizure will be excluded from being used against the defendant.”         State v.

Steinbrunner, 3d Dist. Auglaize No. 2-11-27, 2012-Ohio-2358, ¶ 12, citing Mapp

v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).           Thus,

suppression of illegally obtained evidence is generally the appropriate remedy for

a Fourth Amendment violation. State v. O’Neal, 3d Dist. Allen No. 1-07-33,


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2008-Ohio-512, ¶ 19. At a suppression hearing, the State has the burden of

establishing that a warrantless search or seizure fell into an exception to the

general rule that requires a warrant and complied with the Fourth Amendment

standard of reasonableness. State v. Morlock, 3d Dist. Allen No. 1-12-21, 2013-

Ohio-641, ¶ 12, citing City of Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d

889 (1988).

      {¶18} Under appellate review, motions to suppress present “mixed

questions of law and fact.” State v. Yeaples, 180 Ohio App.3d 720, 2009-Ohio-

184, 907 N.E.2d 333, ¶ 20 (3d Dist.).

      When considering a motion to suppress, the trial court assumes
      the role of trier of fact and is therefore in the best position to
      resolve factual questions and evaluate the credibility of
      witnesses. Consequently, an appellate court must accept the trial
      court's findings of fact if they are supported by competent,
      credible evidence. Accepting these facts as true, the appellate
      court must then independently determine, without deference to
      the conclusion of the trial court, whether the facts satisfy the
      applicable legal standard.

(Citations omitted.) State v. James, 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d

Dist.), quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8.

                                 Legal Analysis

      {¶19} In this case, the police stopped Kerr’s vehicle.          This action

constituted a seizure within the meaning of the Fourth Amendment. In their

testimony, the police not did claim to have had observed illegal activity—such as a


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traffic violation—prior to the stop nor did the police aver to have had probable

cause that Kerr had committed or was in the process of committing a crime. Thus,

this was an investigatory traffic stop. To justify such a seizure under the Fourth

Amendment, the police needed—at a minimum—a reasonable, articulable

suspicion that criminal activity was afoot.

       {¶20} In this case, a police officer witnessed a car pull into a gas station

parking lot. The officer then saw a pedestrian walk up to this car, reach into one

of the car’s open windows, turn around, and walk back towards an apartment

complex. In addition to this observation, the State points to several facts to argue

that the police did have reasonable suspicion to conduct an investigatory traffic

stop: (1) the police officer had received some training in drug enforcement; (2) the

officer was located in an area known for high levels of drug activity; and (3) this

interaction occurred in the evening.

       {¶21} In turn, the Defense argues that the interaction that the police officer

witnessed was not sufficient to give rise to a reasonable, articulable suspicion.

The Defense points to several additional facts to support this contention: (1) the

officer had only one year of patrol experience at this time; (2) the police officer

could not determine whether money or contraband changed hands; (3) the officer

had never before observed a hand-to-hand drug transaction; (4) the officer did not

know the identity or history of either the pedestrian or the driver; (5) the officer

was located one hundred yards away from this interaction; and (6) no other


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criminal offense was observed at any point prior to the stop of Kerr’s vehicle that

could justify this seizure.

         {¶22} After examining the record, we find that the facts available to the

police at the time of the traffic stop—without more—do not constitute a

reasonable, articulable suspicion that criminal activity was afoot.                            Under the

totality of the circumstances, the activities the police officer observed were lawful

in their appearance. He witnessed a pedestrian walk up to a car, reach inside, turn

around, and walk away. See State v. Pettegrew, 8th Dist. Cuyahoga No. 91816,

2009-Ohio-4981; State v. Scales, 8th Dist. Cuyahoga No. 87023, 2006-Ohio-3946,

¶ 14. Compare State v. Fletcher, 8th Dist. Cuyahoga No. 88038, 2007-Ohio-989,

¶ 16; State v. Reed, 2017-Ohio-2644, --- N.E.3d ---, (5th Dist.).1

         {¶23} From his vantage point, the police officer could not even determine

whether an exchange had occurred between the pedestrian and Kerr. See State v.

Terrell, 8th Dist. Cuyahoga No. 80676, 2002-Ohio-4913, ¶ 26 (holding reasonable

suspicion existed where the officer saw money exchanged in a hand-to-hand

transaction in an area known for high levels of drug activity but could not see if

drugs were transferred). Thus, the police officer was not able to cite facts that

1
  In Fletcher, a police officer testified that he observed what he believed to be a hand-to-hand drug
transaction in an area known for high levels of drug activity. Fletcher at ¶ 16. The Eighth District Court of
Appeals distinguished the facts in Fletcher from those in Pettegrew, saying, “The officer must be able to
testify that he saw a hand-to-hand exchange, which he believes was a drug transaction based on the area.”
Pettegrew at ¶ 20. The Court further noted that the officer in Pettegrew did not observe the defendant “and
the unidentified male secretively or furtively exchang[e] something * * *.” Id. We also note that the hand-
to-hand transaction in Fletcher was undertaken while the defendant was on a bike. Id. In Pettegrew, as in
the case presently before this Court, the defendant was sitting inside of a car, and the officer could not see
whether an actual exchange occurred. Id. at ¶ 18.


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articulated why his suspicions were raised by his observations. A belief that

behavior, which is lawful in its appearance and unaccompanied by some indicia of

sinister activities, was of a criminal nature is a mere hunch.

       {¶24} Since the behavior of Kerr and the pedestrian was lawful in its

appearance, the State’s assertion that he had a reasonable and articulable suspicion

ultimately rests upon the location and time of this interaction. An investigative

stop is not justified simply because it occurred in an area that is known for high

levels of criminal activity. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641,

61 L.Ed.2d 357, 362–363 (1979). “To hold otherwise would result in the

wholesale loss of the personal liberty of those with the misfortune of living in high

crime areas.” State v. Carter, 69 Ohio St.3d 57, 65, 630 N.E.2d 355, 362 (1994).

       {¶25} Coupled with any additional indicator of suspicious behavior, this

series of events may have given rise to the reasonable and articulable suspicion

that was necessary to conduct a lawful investigatory stop of Kerr’s vehicle. In the

absence of additional indicators, however, the officer’s belief that he had

witnessed a hand-to-hand drug transaction was a mere hunch. The fact that the

officer’s hunch proved to be correct cannot justify this illegal stop post factum.

Since the stop was not justified by reasonable and articulable suspicion, the fruits

of the search that followed the investigatory traffic stop of Kerr’s vehicle must be

suppressed. For this reason, Kerr’s first assignment of error is sustained.




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                            Second Assignment of Error

       {¶26} Since the first assignment of error, which addresses the legality of

the investigatory stop of Kerr’s vehicle, has been sustained, the questions raised

under the second assignment of error, which concerns the legality of the search of

Kerr’s vehicle, are moot. For this reason, this Court declines to address these

issues pursuant to App.R. 12(A)(1)(c).

                                   Conclusion

       {¶27} Having found error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Allen County Court of Common Pleas is

reversed. This matter is remanded to the trial court for further proceedings in

accord with this opinion.

                                                             Judgment Reversed
                                                           And Cause Remanded

ZIMMERMAN and SHAW, J.J., concur.

/hls




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