[Cite as Maumee v. Curran, 2017-Ohio-7008.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


State of Ohio/City of Maumee                      Court of Appeals No. L-16-1172

        Appellee                                  Trial Court No. 16TRC-00692-2

v.

John C. Curran                                    DECISION AND JUDGMENT

        Appellant                                 Decided: July 28, 2017

                                              *****

        John B. Arnsby, City of Maumee Prosecutor, for appellee.

        Charles Herman, for appellant.

                                              *****

        SINGER, J.

        {¶ 1} Appellant, John C. Curran, appeals from the August 18, 2016 judgment of

the Maumee Municipal Court accepting his plea of no contest, convicting him of

operating a motor vehicle under the influence of alcohol, a violation of R.C.

4511.19(A)(1)(a), and sentencing appellant. For the reasons which follow, we affirm.
       {¶ 2} On appeal, appellant asserts the following assignments of error:

              1. The Department of Natural Resources (“DNR”) officer was

       without statutory authority to initiate Appellant’s traffic stop and to detain

       Appellant in violation of Appellant’s right to be free from unlawful search

       and seizure under Article I, Section 14 of the Ohio Constitution where the

       DNR officer made an out of jurisdiction traffic stop and seizure based on a

       violation of O.R.C. Sec. 4511.33 which was not witnessed within or

       adjacent to the DNR officer’s jurisdiction.

              2. The Trial Court Erred in denying Appellant’s Motion to Suppress

       in violation of Appellant’s right to be free from unlawful search and seizure

       under Article I, Section 14 of the Ohio Constitution.

       {¶ 3} Appellant asserts in both assignments of error that the trial court erred in

denying his motion to suppress. Appellant asserted in his motion that an ODNR park

officer made a traffic stop outside the officer’s territorial jurisdiction in violation of state

law (R.C. 4513.39(A)), and infringed appellant’s rights under the Fourth Amendment to

the United States Constitution and Article I, Section 14, Ohio Constitution. Therefore,

appellant argued the evidence derived from the illegal stop must be excluded from

evidence at trial. Appellant argued he was stopped solely for a marked lane violation,

R.C. 4511.33.

       {¶ 4} At the motion to suppress hearing, the following evidence was presented.

Officer Valentine, an Ohio Department of Natural Resources park officer and a certified




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peace officer in the state of Ohio, testified that on January 30, 2016, he was on duty at

9:04 p.m. The officer was driving away from the state forest located near Oak Openings

Metropark toward his post at Maumee Bay State Park, with another park officer, in a

marked patrol vehicle and was wearing his ODNR park uniform. Officer Valentine was

driving westbound on Maumee Western Highway/U.S. 20A, when he observed

appellant’s pickup truck turn onto the same highway and drive eastbound. While they

were approximately a quarter mile apart, the officer became concerned that appellant was

driving outside his lane and might strike the officer’s vehicle. The officer saw the left

two wheels of appellant’s vehicle cross over the center line for approximately one car

length and immediately corrected his path. The officer had begun to take some evasive

action by slowing down and moving toward the right side of the road. If appellant had

not corrected his path several car lengths from the officer, he believed appellant’s vehicle

would have struck the officer’s vehicle.

        {¶ 5} The officer immediately turned around and followed appellant for a little

while to determine whether he was impaired, sleepy, or distracted. The officer observed

appellant from four-to-five car lengths behind appellant. The officer saw appellant cross

over the white line into the shoulder, hit gravel, over correct, and veer over the center line

again before returning to his proper lane. The officer saw two-to-three other vehicles

approaching westbound, which could have been struck if appellant had not corrected his

path.




3.
       {¶ 6} Because the officer did not believe it was safe for appellant to continue

driving, the officer stopped appellant approximately four minutes after the officer had

first observed appellant’s erratic driving. After the officer activated his lights and

appellant began to pull over, appellant nearly struck a newspaper delivery box before

correcting himself and stopping.

       {¶ 7} The record is not clear as to the timing, but the officer testified that he

radioed the Lucas County dispatcher because he knew he did not have jurisdiction in that

area. He was informed there were no sheriff deputies available. Therefore, he

determined that he had to make a stop rather than continue to follow the vehicle. After he

stopped appellant, he updated the dispatcher on where he was located and that he had

stopped a driver who was possibly under the influence of alcohol. The officer testified he

stopped appellant solely because he had been trained that he had a duty as a sworn officer

to stop and question a driver believed to be driving under the influence.

       {¶ 8} After the ODNR officer spoke with appellant and determined that he might

be under the influence, the officer again radioed the dispatcher to determine if an officer

with jurisdiction was available to investigate further and make the arrest. Afterward, a

state trooper arrived who ultimately arrested appellant for operating a vehicle while under

the influence and for a marked lanes violation.

       {¶ 9} The trial court denied the motion to suppress finding State v. Brown, 143

Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, was not controlling because the stop

and detention in this case was based on the observation of ongoing reckless driving.




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Instead, the court found State v. Weideman, 94 Ohio St.3d 501, 764 N.E.2d 997, syllabus,

was controlling.

       {¶ 10} On appeal, appellant argues that the trial court’s opinion was based upon an

erroneous reading of the law and misapplication of the facts regarding the protections

afforded under the Ohio Constitution.

       {¶ 11} Appellant first argues that none of the extenuating circumstances

permitting an extra-territorial stop provided under R.C. 2935.03(E)(4) apply in this case.

We agree. It is undisputed in this case that the ODNR peace officer made a stop and

detention outside his territorial jurisdiction, in violation of R.C. 4513.39, and that none of

the exceptions of R.C. 2935.02(D) or (E) permitting an extra-territorial detention apply in

this case.

       {¶ 12} Second, appellant argues the trial court erred in relying upon Weideman.

We agree in part. Weideman does set forth the analysis needed to determine whether the

Fourth Amendment of the United States Constitution was infringed. However, because

Article I, Section 14, of the Ohio Constitution can afford greater protection than the

Fourth Amendment of the United States Constitution, the trial court was required to

address that issue separately. On appeal, appellant challenges only the trial court’s

determination of the infringement of his rights under the Ohio Constitution.

       {¶ 13} With respect to that issue, the trial court should have applied the balancing

test of State v. Brown, 143 Ohio St.3d, 2015-Ohio-2438, 39 N.E.3d 496, and State v.

Jones, 88 Ohio St.3d 430, 437, 727 N.E.2d 886, overruled in part by Brown at ¶ 21.




5.
       {¶ 14} The exclusionary rule is a judicially-created remedy to safeguard

constitutional rights by excluding evidence from a trial which was obtained as a result of

an unlawful (unreasonable) search and seizure in violation of the Fourth Amendment.

Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914)

(announcing the exclusionary rule), and Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684,

6 L.Ed.2d 1081 (1961) (extending the exclusionary rule to the states through the

Fourteenth Amendment). The Ohio Supreme Court has never expressly adopted or

defined the scope of the exclusionary rule with regard to unreasonable searches and

seizures under Article I, Section 14, of the Ohio Constitution. But, the court has

excluded evidence obtained as a result of a traffic stop made in violation of a statute

governing the officer’s territorial jurisdiction. Brown; see also Cincinnati v. Alexander,

54 Ohio St.2d 248, 255, 375 N.E.2d 1241 (1978), fn. 6. Compare State v. Lindway, 131

Ohio St. 166, 2 N.E.2d 490 (1936), paragraph four of the syllabus (“[E]vidence obtained

by an unlawful search is not thereby rendered inadmissible, and, if otherwise competent

and pertinent to the main issue, will be received against an accused”).

       {¶ 15} In resolving the issue of a violation of the Ohio Constitution, in the 2015

Brown case, the Ohio Supreme Court looked to its prior holding in State v. Brown, 99

Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175, syllabus, for support. In the 2003

Brown case, a suspected drug dealer was arrested for jaywalking (rather than being cited

for a minor misdemeanor as required by statute). The defendant was searched incident to

his arrest and drugs were found. The Ohio Supreme Court held that Article I, Section 14




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of the Ohio Constitution provided greater protection than the Fourth Amendment to the

United States Constitution and reaffirmed application of the balancing test set forth in

State v. Jones, 88 Ohio St.3d 374, 727 N.E.2d 886 (2000), overruled in part by Brown,

(the Jones balancing test is limited to violations of the Ohio Constitution). Balancing the

interests of government and the individual, the trial court concluded that a violation of the

statute, which limited the officer’s jurisdiction to arrest for a minor misdemeanor (R.C.

2935.26), resulted in an unreasonable search and seizure under the Ohio Constitution.

       {¶ 16} In the 2015 Brown case, a traffic stop was made by a township patrol

officer on an Interstate highway two and one-half miles after the officer observed a

marked lane violation (crossing over the fog line), which was outside the officer’s

territorial jurisdiction pursuant to R.C. 4513.39 and 2935.03(A)(1). The officer

discovered the driver had a suspended license and an active felony warrant. The officer’s

drug dog alerted to the presence of drugs and drugs were found in the vehicle. The Ohio

Supreme court held the stop also violated the protection against unreasonable searches

and seizures afforded by Article I, Section 14 of the Ohio Constitution. Balancing the

interests of the government to stop an individual for a marked lane violation and the

rights of the individual, the court concluded that the government’s minimal interest was

outweighed by the intrusion upon the individual’s liberty and privacy.

       {¶ 17} Applying the Brown/Jones balancing test in this case, we find that the

balance weighs in favor of the government. The ODNR officer initiated the traffic stop

after observing appellant’s vehicle commit three marked line violations within a short




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period of time and nearly strike two vehicles before correcting his path. The officer

reasonably concluded that appellant was driving impaired and, because another officer

was not immediately available, the ODNR officer determined that he needed to make an

immediate stop to protect the public even though the officer knew he was outside of his

territorial jurisdiction.

       {¶ 18} We find the case before us is distinguishable from the facts in both the

2003 and 2015 Brown cases. In both Brown cases, there was no immediate need to arrest

or stop the individual and both cases appear to involve pre-textual stops, which was not

the situation in this case. In the case before us, there was an immediate safety

justification for the stop. Therefore, the momentary invasion of appellant’s liberty and

privacy interests was minimal compared to the risk his impaired driving posed to himself

and others. Therefore, we find appellant’s assignments of error not well-taken.

       {¶ 19} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Maumee

Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                        Judgment affirmed.




8.
                                                                      Maumee v. Curran
                                                                      C.A. No. L-16-1172




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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