[Cite as State v. Tyson, 2015-Ohio-3530.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLANT,                          CASE NO. 9-14-49

        v.

BRITTANY MICHELLE TYSON,                              OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 14CR457

                       Judgment Reversed and Cause Remanded

                             Date of Decision: August 31, 2015




APPEARANCES:

        Brent W. Yager for Appellant

        Kevin P. Collins for Appellee
Case No. 9-14-49


PRESTON, J.

       {¶1} Plaintiff-appellant, the State of Ohio, appeals the December 22, 2014

judgment entry of the Marion County Court of Common Pleas granting

defendant-appellee’s, Brittany M. Tyson (“Tyson”), motion to suppress. For the

reasons that follow, we reverse.

       {¶2} This case stems from a January 14, 2014 traffic stop of a vehicle of

which Tyson was a passenger by Ohio Highway State Patrol Trooper Joshua

Beynon (“Trooper Beynon”) after the vehicle’s driver, Bryan S. Miller (“Miller”),

failed to stop at a clearly marked stop line. As a result of the traffic stop, Tyson

was indicted on October 9, 2014 for possession of heroin in violation of R.C.

2925.11(A), (C)(6), a second-degree felony. (Doc. No. 1).

       {¶3} On October 14, 2014, Tyson appeared for arraignment and entered a

plea of not guilty. (Doc. No. 7).

       {¶4} On November 14, 2014, Tyson filed a motion to suppress. (Doc. No.

24). On December 11, 2014, the State filed a response to Tyson’s motion to

suppress. (Doc. No. 31). After a hearing on December 12, 2014, the trial court

granted Tyson’s motion to suppress on December 22, 2014. (Doc. No. 33).

       {¶5} The State filed its notice of appeal on December 23, 2014. (Doc. No.

36). It raises three assignments of error for our review. We will address the




                                        -2-
Case No. 9-14-49


State’s first assignment of error, followed by its second assignment of error.

Based on our conclusion, the State’s third assignment of error is moot.

                            Assignment of Error No. I

       The Trial Court Abused its Discretion by Granting the
       Defendant/Appellees’ Motion to Suppress the Traffic Stop and
       by Applying the Exclusionary Rule.

       {¶6} In its first assignment of error, the State argues that the trial court

abused its discretion by granting Tyson’s motion to suppress because Trooper

Beynon had a reasonable articulable suspicion to stop the vehicle in which she was

riding, which was operated by Miller. In the alternative, the State argues that if

Trooper Beynon mistakenly applied R.C. 4511.43(A) to stop Miller, the

exclusionary rule does not apply since Trooper Beynon was acting in good faith

because he reasonably and mistakenly applied R.C. 4511.43(A).

       {¶7} “Appellate review of a motion to suppress presents a mixed question

of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At

a suppression hearing, the trial court assumes the role of trier of fact and, as such,

is in the best position to evaluate the evidence and the credibility of witnesses. Id.

See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling

on a motion to suppress, deference is given to the trial court’s findings of fact so

long as they are supported by competent, credible evidence. Burnside at ¶ 8,

citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s


                                         -3-
Case No. 9-14-49


conclusions of law, however, our standard of review is de novo; therefore, we

must decide whether the facts satisfy the applicable legal standard. Id., citing

State v. McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997). “De novo review

is independent, without deference to the lower court’s decision.”           State v.

Robertson, 3d Dist. Henry No. 7-14-16, 2015-Ohio-1758, ¶ 17, quoting State v.

Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.

       {¶8} Because the facts are not in dispute, we proceed directly to reviewing

de novo the trial court’s conclusion that Trooper Beynon did not have a reasonable

articulable suspicion to stop Miller.

       {¶9} The Fourth Amendment to the United States Constitution and Article

I, Section 14 of the Ohio Constitution generally prohibit warrantless searches and

seizures, and any evidence that is obtained during an unlawful search or seizure

will be excluded from being used against the defendant. State v. Jenkins, 3d Dist.

Union No. 14-10-10, 2010-Ohio-5943, ¶ 9; State v. Steinbrunner, 3d Dist.

Auglaize No. 2-11-27, 2012-Ohio-2358, ¶ 12.

       Neither the Fourth Amendment to the United States Constitution nor

       Section 14, Article I of the Ohio Constitution explicitly provides that

       violations of its provisions against unlawful searches and seizures

       will result in the suppression of evidence obtained as a result of such




                                         -4-
Case No. 9-14-49


       violation, but the United States Supreme Court has held that the

       exclusion of evidence is an essential part of the Fourth Amendment.

Jenkins at ¶ 9, citing Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684 (1961) and

Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341 (1914).

       {¶10} “A traffic stop constitutes a seizure and implicates the protections of

the Fourth Amendment” but “‘is constitutionally valid if an officer has a

reasonable and articulable suspicion that a motorist has committed, is committing,

or is about to commit a crime.’” State v. Dillehay, 3d Dist. Shelby No. 17-12-07,

2013-Ohio-327, ¶ 13, citing State v. Johnson, 3d Dist. Hancock No. 5-07-43,

2008-Ohio-1147, ¶ 16; State v. Aldridge, 3d Dist. Marion No. 9-13-54,

2014-Ohio-4537, ¶ 10, quoting State v. Mays, 119 Ohio St.3d 406,

2008-Ohio-4539, ¶ 7.     “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, 3d Dist. Paulding No.

11-13-02, 2013-Ohio-3581, ¶ 18, quoting State v. Bobo, 37 Ohio St.3d 177, 178

(1988).   “In determining whether reasonable articulable suspicion exists, a

reviewing court must look to the totality of the circumstances.” Steinbrunner at ¶

14, citing State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991). “A police officer’s

testimony alone is sufficient to establish reasonable articulable suspicion for a


                                        -5-
Case No. 9-14-49


stop.” State v. McClellan, 3d Dist. Allen No. 1-09-21, 2010-Ohio-314, ¶ 38, citing

State v. Claiborne, 2d Dist. Montgomery No. 19060, 2002-Ohio-2696.

       {¶11} In addition to a reasonable and articulable suspicion of criminal

activity, “[p]robable cause is certainly a complete justification for a traffic stop,”

but it is not required to justify a traffic stop. Mays at ¶ 23. “Probable cause” is a

stricter standard than “reasonable and articulable suspicion” and subsumes

“reasonable and articulable suspicion.” Id., citing State v. Evans, 67 Ohio St.3d

405, 411 (1993).     Accordingly, “an officer who witnesses a traffic violation

possesses probable cause, and a reasonable articulable suspicion, to conduct a

traffic stop.” State v. Haas, 3d Dist. Henry No. 7-10-15, 2012-Ohio-2362, ¶ 16,

citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744 (2002). See also

Mays at ¶ 24.

       {¶12} Here, Trooper Beynon stopped Miller for violating R.C. 4511.43(A),

which provides, in relevant part:

       Except when directed to proceed by a law enforcement officer, every

       driver of a vehicle * * * approaching a stop sign shall stop at a

       clearly marked stop line, but if none, before entering the crosswalk

       on the near side of the intersection, or, if none, then at the point

       nearest the intersecting roadway where the driver has a view of

       approaching traffic on the intersecting roadway before entering it.


                                         -6-
Case No. 9-14-49


(Emphasis added.) Because the parties dispute whether Miller stopped at a clearly

marked stop line under R.C. 4511.43(A), we must determine what is required of a

motorist under R.C. 4511.43(A).       We review de novo the interpretation of a

statute. Robertson, 2015-Ohio-1758, at ¶ 17, citing State v. Brennco, Inc., 3d Dist.

Allen No. 1-14-24, 2015-Ohio-467, ¶ 6, citing State v. Straley, 139 Ohio St.3d

339, 2014-Ohio-2139, ¶ 9 and State v. Pariag, 137 Ohio St.3d 81,

2013-Ohio-4010, ¶ 9; State v. Thornsbury, 4th Dist. Lawrence No. 12CA9,

2013-Ohio-1914, ¶ 8.

       {¶13} “‘“The primary goal of statutory construction is to ascertain and give

effect to the legislature’s intent in enacting the statute.”’” Robertson at ¶ 18,

quoting Thornsbury at ¶ 8, quoting State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-

606, ¶ 9. See also Brennco, Inc. at ¶ 6. “To determine the legislative intent, we

first look at the language of the statute itself and if the language is clear and

unambiguous, we apply it as written and no further construction is required.” Id.,

quoting Brennco, Inc. at ¶ 6, citing Straley at ¶ 9 and Pariag at ¶ 11.

       {¶14} However, “[a] statute is ambiguous if its language is susceptible to

more than one reasonable interpretation.” Id., quoting Thornsbury at ¶ 8, citing

State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St.3d 508, 513 (1996). “Only if

a statute is unclear and ambiguous, may we interpret it to determine the

legislature’s intent.” Id., quoting Thornsbury at ¶ 8, citing State v. Chappell, 127


                                         -7-
Case No. 9-14-49


Ohio St.3d 376, 2010-Ohio-5991, ¶ 16. See also State v. Black, 142 Ohio St.3d

332, 2015-Ohio-513, ¶ 38 (“If a statute is ambiguous, ‘courts seek to interpret the

statutory provision in a manner that most readily furthers the legislative purpose as

reflected in the wording used in the legislation.’”), quoting Clyde at 513.

       {¶15} If a statute is ambiguous, the court, in determining the intention of

the legislature, may consider among other matters:

       (A) The object sought to be attained;

       (B) The circumstances under which the statute was enacted;

       (C) The legislative history;

       (D) The common law or former statutory provisions, including laws

       upon the same or similar subjects;

       (E) The consequences of a particular construction;

       (F) The administrative construction of the statute.

(Emphasis added.) R.C. 1.49.

       {¶16} The Revised Code does not define “at” or what it means to stop at a

clearly marked stop line. “In the absence of a definition of a word or phrase used

in a statute, words are to be given their common, ordinary, and accepted

meaning.” Black at ¶ 39, citing Wachendorf v. Shaver, 149 Ohio St. 231 (1948),

paragraph five of the syllabus.




                                         -8-
Case No. 9-14-49


       {¶17} There is little guidance available regarding the common, ordinary,

and accepted meaning of what it means to stop at a clearly marked stop line. In

particular, the Supreme Court of Ohio has not addressed the proper interpretation

of R.C. 4511.43(A) or what it means to stop at a clearly marked stop line. The

current edition of Black’s Law Dictionary also does not define “at.” However,

“at” is defined by Merriam-Webster’s Collegiate Dictionary as “used as a function

word to indicate presence or occurrence in, on, or near.” (Emphasis added.)

Merriam-Webster’s Collegiate Dictionary 77 (11th Ed.2009). Stopping “in, on, or

near” can mean a multitude of things.         Accordingly, we conclude that R.C.

4511.43(A)’s requirement that a motorist stop at a clearly marked stop line is

reasonably susceptible to more than one interpretation.

       {¶18} That stopping at a clearly marked stop line is reasonably susceptible

to more than one interpretation is demonstrated by the split of courts on the issue.

In interpreting nearly identical stop-sign statutes, some courts have concluded that

so long as a driver stops on or near a clearly marked stop line, he or she is in

compliance with the statute. See, e.g., State v. Drushal, 9th Dist. Wayne No.

13CA0028, 2014-Ohio-3088, ¶ 12, abrogated on other grounds by Heien v. North

Carolina, __ U.S. __, 135 S.Ct. 530 (2014); City of Olathe v. McGregor, Ks.App.

No. 108, 316, 2013 WL 5870040, *3 (Oct. 25, 2013); Mumper v. State, Tx.App.

No. 05-08-00141-CR, 2009 WL 201142, *2 (Jan. 29, 2009). Other courts have


                                        -9-
Case No. 9-14-49


concluded that a driver must stop before any part of his or her vehicle crosses a

clearly marked stop line. See, e.g., People v. Wood, 379 Ill.App.3d 705, 708-709

(2008); U.S. v. Mack, D.Vt. No. 5:14-cr-28, 2014 WL 7140604, *8, fn. 6 (Dec. 12,

2014); U.S. v. Smith, M.D.Fla. No. 2:06-cr-42-FtM-29SPC, 2006 WL 2226313, *7

(Aug. 3, 2006); State v. Daniels, 158 So.3d 629, 630-631 (Fla.2014); People v.

Binkowski, 157 Cal.App.4th Supp. 1, 6 (2007); State v. Denner, 298 Wis.2d 249,

726 N.W.2d 357, ¶ 7, fn. 2 (2006). Although this court has not specifically

defined what it means to stop at a clearly marked stop line, we previously affirmed

a stop-sign violation in State v. Rannes where the arresting officer testified that

Rannes “‘made an improper stop’” because “she ‘went past the clearly marked

stop line in the roadway’” and assumed in State v. Aldridge that Aldridge’s failure

to “stop before a marked stop line” was a violation of R.C. 4511.43(A) to justify

the arresting officer’s stop and detention of Aldridge. State v. Rannes, 3d Dist.

Logan No. 8-02-12, 2002-Ohio-4691, ¶ 39-40; Aldridge, 2014-Ohio-4537, at ¶ 2,

5, 10.

         {¶19} Because we conclude that the statute is unclear and ambiguous, we

must apply the principles of statutory interpretation to determine what R.C.

4511.43(A) requires of a motorist.            See Black, 142 Ohio St.3d 332,

2015-Ohio-513, at ¶ 45. To determine the General Assembly’s intent, we will

consider the consequences of a particular construction of the statute, the object


                                       -10-
Case No. 9-14-49


sought to be obtained by the statute, and the administrative construction of the

statute. R.C. 1.49(A), (E), (F).

       {¶20} We conclude that the General Assembly did not contemplate that

stopping astride—where any portion of a vehicle extends across—a clearly

marked stop line would constitute compliance with R.C. 4511.43(A) and hold that

a motorist must stop his or her vehicle before the front-most portion of the vehicle

breaks the plane of the outermost edge of a clearly marked stop line. In other

words, to comply with the statute, a motorist must stop his or her vehicle before

any portion of his or her vehicle crosses the edge of the stop line that is furthest

from the front-most portion of his or her approaching vehicle.

       {¶21} First, the consequences of interpreting “at” under R.C. 4511.43(A) to

permit a motorist to stop on or near a clearly marked stop line does not readily

further any legislative purpose because “[i]f a vehicle stops ‘at’ the stop line by

straddling it, the line does not mark a definite stopping point; it marks a range of

stopping points that varies with the length of a particular vehicle involved.”

(Emphasis added.) Wood, 379 Ill.App.3d at 709. In crafting R.C. 4511.43(A), it

is illogical that the General Assembly would want to establish a range of stopping

points for a motorist as opposed to a definite stopping point. This point is best

described by the Illinois Court of Appeals in Wood:




                                       -11-
Case No. 9-14-49


       In the case of a relatively small passenger automobile, it may not

       make much difference, in terms of road safety, whether the vehicle

       stops behind the line or astride it. However, the vehicles that travel

       on * * * roads come in all shapes and sizes. The trial court’s

       interpretation becomes significantly more problematic if applied to a

       40-foot-long bus that could project well into an intersection before

       its rear wheels reach the stop line. Under the trial court’s

       interpretation of the applicable statutes, the bus would have made a

       proper stop.

Id. See also Binkowski, 157 Cal.App.4th Supp. at 6 (concluding that the California

legislature “could not have intended such an absurd—and potentially perilous—

result” if the court interpreted the stop-sign statute to permit a motorist to stop

astride a clearly marked stop line). In addition, interpreting “at” under R.C.

4511.43(A) in this manner could result in an unconstitutional disparate application

of the statute since it could be applied differently to motorists depending on the

size or length of the vehicle they are operating. See, e.g., State ex rel. Patterson v.

Indus. Comm., 77 Ohio St.3d 201, 204 (1996) (discussing the constitutional

guarantee “that all similarly situated individuals be treated in a similar manner”).

       {¶22} Moreover, the object sought to be attained in regulating Ohio’s

highways is the safety of motorists and pedestrians. Interpreting “at” under R.C.


                                         -12-
Case No. 9-14-49


4511.43(A) to permit a motorist to stop on or near a clearly marked stop line does

not further that purpose. In Daniels, the Florida Court of Appeals concluded that

the stop-sign statute at issue in that case requires a motorist to stop before any part

of his or her vehicle “crosses the line” because “[a] stop line protects other

motorists and pedestrians only if a vehicle stops when its front bumper reaches

that line.” Daniels, 158 So.3d at 631. In making that conclusion, the Florida

Court of Appeals acknowledged that the purpose of a stop-sign statute is “to

require a vehicle to stop before it is in a position where it could impede or hit

pedestrians who might be in a crosswalk, or cross-traffic that could be in an

intersection.” Id. In addition, stop lines are often used to protect other motorists

by providing a point at which a vehicle must stop to allow ample room for large

vehicles to complete turns at an intersection. As a result, we interpret the statute

to require a motorist to stop prior to the point at which the front-most portion of

his or her vehicle will break the plane of the outermost edge of the clearly marked

stop line to most readily further the General Assembly’s purpose in enacting R.C.

4511.43(A).

       {¶23} Further support that the General Assembly did not contemplate that

stopping astride a clearly marked stop line would constitute compliance with R.C.

4511.43(A) can be found in the administrative construction of the statute. In

particular, the Ohio Manual of Uniform Traffic Control Devices (OMUTCD),


                                         -13-
Case No. 9-14-49


which provides the official specifications for highway signs and markings as

mandated by R.C. 4511.09, supports our holding. See State v. Phillips, 3d Dist.

Logan No. 8-04-25, 2006-Ohio-6338, ¶ 25, 30-31 (consulting the OMUTCD for

statutory-construction purposes), abrogated on other grounds by Mays, 119 Ohio

St.3d 406, 2008-Ohio-4539, at ¶ 15; Bowling Green v. Godwin, 110 Ohio St.3d 58,

2006-Ohio-3563, ¶ 4 (noting that the OMUTCD was adopted by the Ohio

Department of Transportation under R.C. 4511.09). Specifically, the OMUTCD

describes the use of a “stop line”: “Stop lines should be used to indicate the point

behind which vehicles are required to stop, in compliance with a traffic control

signal.” (Emphasis added.) OMUTCD, Section 3B.16 (2012 Ed.).

       {¶24} Therefore, we conclude that it is unlawful to stop astride a clearly

marked stop line, and that a motorist must stop his or her vehicle prior to the point

at which the front-most portion of his or her vehicle will break the plane of the

outermost edge of that clearly marked stop line.

       {¶25} Based on that conclusion, we hold that Trooper Beynon had probable

cause to stop Miller since Miller stopped his vehicle astride a clearly marked stop

line. See Mays at ¶ 23, 24; Haas, 2012-Ohio-2362, at ¶ 23. Furthermore, since we

hold that Trooper Beynon had probable cause to stop Miller based on his violation

of R.C. 4511.43(A), we also hold that the exclusionary rule does not apply. Too,

we need not analyze the State’s alternative argument—whether Trooper Beynon


                                        -14-
Case No. 9-14-49


possessed a reasonable articulable suspicion to stop Miller based on a reasonable

mistake of law under Heien. See 135 S.Ct. at 539.

       {¶26} Therefore, the trial court erred in granting Tyson’s motion to

suppress the traffic stop. The State’s assignment of error is sustained.

                           Assignment of Error No. II

       The Trial Court Abused its Discretion in Determining the Scope
       of the Detention of Defendant/Appellee Brittany Tyson was Not
       Permissible as this was Not an Issue Raised by Brittany Tyson.

       {¶27} In its second assignment of error, the State argues that the trial court

abused its discretion by considering an issue not raised by Tyson in her motion to

suppress. Specifically, the State argues that the trial court erred by considering the

duration of Tyson’s detention during the traffic stop.

       {¶28} We apply an abuse-of-discretion standard when reviewing a trial

court’s decision to sua sponte raise and consider suppression issues outside of the

scope of Crim.R. 47. See State v. Pilot, 12th Dist. Clermont Nos. CA2003-03-023

and CA2003-03-024, 2004-Ohio-3669, ¶ 36. See also State v. Land, 3d Dist.

Marion No. 9-13-39, 2014-Ohio-1877, ¶ 13, 19 (concluding that the trial court

abused its discretion in sua sponte raising a motion to suppress). An abuse of

discretion implies that the court’s attitude was unreasonable, arbitrary, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).




                                        -15-
Case No. 9-14-49


       {¶29} Although Tyson did not address the duration of her detention during

the traffic stop in her motion to suppress or at the suppression hearing, the trial

court sua sponte raised that issue at the suppression hearing and concluded in its

judgment entry that she was detained longer than is permissible by law.

       {¶30} “‘It is settled law in Ohio that a motion to suppress evidence must

make clear the grounds upon which the motion is based in order that the

prosecutor may prepare his case and the court may know the grounds of the

challenge in order to rule on evidentiary issues at the hearing and properly dispose

of the merits.’” State v. Byrnes, 2d Dist. Montgomery No. 25860, 2014-Ohio-

1274, ¶ 10, quoting Dayton v. Dabney, 99 Ohio App.3d 32, 37 (2d Dist. 1994),

citing Xenia v. Wallace, 37 Ohio St.3d 216, 218 (1988). In particular, Crim.R. 47

specifies that a motion to the trial court “shall state with particularity the grounds

upon which it is made and shall set forth the relief or order sought.” “The

Supreme Court [of Ohio] has stated that ‘this provision, in the context of the ruling

case law and when applied to a motion to suppress evidence obtained by search

and seizure, requires that the prosecution be given notice of the specific legal and

factual grounds upon which the validity of the search and seizure is challenged.’”

(Emphasis sic.) Byrnes at ¶ 10, quoting Dabney at 37, quoting Wallace at 219.

       {¶31} “Thus, ‘the defendant must make clear the grounds upon which he

challenges the submission of evidence pursuant to a warrantless search and


                                        -16-
Case No. 9-14-49


seizure.’” State v. Duke, 9th Dist. Lorain No. 12CA010225, 2013-Ohio-743, ¶ 11,

quoting Wallace at 218. “The defendant ‘must state the motion’s legal and factual

bases with sufficient particularity to place the prosecutor and the court on notice of

issues to be decided.’” Id., quoting State v. Shindler, 70 Ohio St.3d 54 (1994),

syllabus. “‘“Failure on the part of the defendant to adequately raise the basis of

his challenge constitutes a waiver of that issue on appeal.”’” Id., quoting Dabney

at 37, quoting Wallace at 218.

       {¶32} We hold that the trial court abused its discretion in sua sponte raising

and considering the duration of Tyson’s detention during the traffic stop because

the State was not adequately notified that the duration of Tyson’s detention was an

issue to be decided at the suppression hearing. In her motion to suppress, Tyson

argued that Trooper Beynon did not have a reasonable articulable suspicion to stop

Miller, and she argued, without citation to the record or authority, that the canine

sniff was not in accordance with Ohio State Highway Patrol policy. Since this

case involves the same facts as Miller’s case, the trial court scheduled the hearing

on Tyson’s motion to suppress at the same time as the hearing on Miller’s motion

to suppress. As such, the State responded to Tyson’s and Miller’s motions to

suppress in the same response brief. In its response, the State stated:

       The Defendants’ [sic] raises [sic] several issues in their Motions to

       Suppress. Those issues are; [sic] the officer did not have probable


                                        -17-
Case No. 9-14-49


      cause or reasonable, articulable basis to conduct a traffic stop of the

      vehicle Defendants’ [sic] were in; that Miranda was not properly

      given to Mr. Miller; that the duration of the stop was unreasonable,

      per Mr. Miller and per Ms. Tyson whether or not the canine sniff

      was conducted in a proper manner.

(Underline sic.) (Doc. No. 31).

      {¶33} On appeal, Tyson argues that the State “acknowledges that the trial

court discussed the issue with counsel at the beginning of the suppression

hearing.” (Appellee’s Brief at 6-7, citing Appellant’s Brief at 9). This is a

mischaracterization of what the trial court discussed with counsel at the beginning

of the suppression hearing. In questioning Tyson’s counsel as to her argument

regarding the canine sniff, the following exchange took place:

      [Trial Court]:       Well, I guess I’m trying to understand if it’s a --

                           if that’s part of your Motion to Suppress or not,

                           that issue, so we understand the issues. Not

                           necessarily thee [sic] -- how big your concern

                           is. I mean, it’s -- it seems to me that one of the

                           issues   is    whether   the   Defendants    were

                           unlawfully restrained longer than you know,

                           was appropriate or necessary --


                                         -18-
Case No. 9-14-49


       [Tyson’s Counsel]: I know [Miller’s Counsel] --

       [Trial Court]:       -- which the dog search comes into that a bit if

                            they’re being detained for that purpose. I’m not

                            sure if there’s any other issues here or not. And

                            I don’t know if you’ve raised that issue or not,

                            [Miller’s Counsel]?

       [Miller’s Counsel]: I did, Your Honor. My -- my main issues will

                            be thee [sic] probable cause, reasonable

                            suspicion of the stop as well --

       [Trial Court]:       For the stop --

       [Miller’s Counsel]: -- as the length of detention.

       [Trial Court]:       Length of detention.

       [Miller’s Counsel]: Those are the two primary issues.

(Dec. 11, 2014 Tr. at 3-4). At no time did Tyson indicate that she was challenging

the duration of her length of detention.

       {¶34} Moreover, Tyson argues on appeal that because Miller raised the

issue of the duration of the length of his detention, the State was sufficiently

notified that it needed to present evidence that Tyson was properly detained.

However, that Miller argued the issue in his motion to suppress and at the




                                           -19-
Case No. 9-14-49


suppression hearing does not put the State on notice to address the length of

Tyson’s detention.

       {¶35} At the suppression hearing, the only testimony offered was that of

Trooper Beynon. Tyson’s counsel neither directed questions to Trooper Beynon

related to the duration of Tyson’s detention, nor asserted any argument related to

the duration of her detention to the trial court. (See id. at 36-38, 60, 68-69).

Nevertheless, the trial court at the suppression hearing posed questions to Trooper

Beynon related to the duration of Tyson’s detention. (See id. at 54-59). Although

the trial court posed questions to Trooper Beynon related to the duration of

Tyson’s detention, at no time did the trial court indicate that the duration of her

detention was an issue it was considering, and at no time did the trial court provide

the parties an opportunity to prepare and present arguments on that issue. A trial

court “is free to expand the scope of a suppression hearing beyond the issues

specified in the motion to suppress ‘so long as the matters within the expanded

scope were material to the suppression sought, and so long as the State had a

reasonable   opportunity to     prepare     itself   for   the   hearing.’”   Byrnes,

2014-Ohio-1274, at ¶ 12, quoting State v. Blackburn, 2d Dist. Clark No. 3084,

1994 WL 95224, *4 (Mar. 23, 1994). See also Land, 2014-Ohio-1877, at ¶ 23

(concluding that the trial court erred by not allowing the State time to respond to

the newly raised issue of suppression).          A trial court’s rogue detour at a


                                          -20-
Case No. 9-14-49


suppression hearing does not put the State on notice of an issue to be decided. See

Dabney, 99 Ohio App.3d at 39; Duke, 2013-Ohio-743, at ¶ 12 (“Because the trial

court raised the K-9 reliability issue sua sponte, and that issue was not raised in

Duke’s motion to suppress, the State was not provided with an opportunity to

adequately prepare arguments and present evidence on that issue.”); Byrnes at ¶ 14

(“If the trial court had later changed its mind about the scope of the hearing, it

should have informed the parties so that the second issue could have been fairly

litigated.”).   In Dabney, the Second District Court of Appeals concluded that the

trial court “interjecting a new issue which was not supported by any evidence

whatsoever, and basing its decision to suppress the evidence on th[at] new issue,

without giving the city the opportunity to present evidence on the issue” “was

prejudicial error to the city.” Dabney at 39. Similar to the trial court in Dabney,

the trial court here “crossed the boundary between the judicious and impartial

conduct of a trial and the advocacy of one party’s case.” Id. at 40.

       {¶36} Tyson did not challenge the duration of her detention in her

suppression motion or at the suppression hearing, and the trial court did not

provide the State notice and the opportunity to present evidence on that issue.

Therefore, the trial court abused its discretion by sua sponte raising and addressing

in its judgment entry granting Tyson’s motion to suppress an issue not raised by

Tyson in her motion to suppress or at the suppression hearing.


                                        -21-
Case No. 9-14-49


       {¶37} For these reasons, the State’s second assignment of error is sustained.



                            Assignment of Error No. III

       In the Alternative Even if this Court Determines the Scope of
       Detention Issue Regarding Brittany Tyson is Appropriate the
       Court Abused its Discretion in Determining the Length of the
       Detention of Defendant/Appellee was in Violation of the
       Defendant/Appellee’s Constitutional Rights.

       {¶38} In its third assignment of error, the State argues that if this court

determines the trial court properly determined the scope of Tyson’s detention, the

trial court abused its discretion in determining that the length of her detention

violated her constitutional rights.

       {¶39} In light of our decision to sustain the State’s second assignment of

error, its third assignment of error is rendered moot, and we decline to address it.

Duke, 2013-Ohio-793, at ¶ 14, citing App.R. 12(A)(1)(c).

       {¶40} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

SHAW and WILLAMOWSKI, J.J., concur.

/jlr



                                       -22-
