[Cite as State v. Dukes, 2013-Ohio-1691.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :            C.A. CASE NO. 25488

v.                                                  :            T.C. NO.   12CR1071

EDWARD L. DUKES                                     :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                            ..........

                                            OPINION

                         Rendered on the     26th       day of      April     , 2013.

                                            ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ANTONY A. ABBOUD, Atty. Reg. No. 0078151, 130 W. Second Street, Suite 1818,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

DONOVAN, J.

                 {¶ 1} This matter is before the Court on the Notice of Appeal of Edward
               Dukes,

filed November 20, 2012. Dukes appeals from his conviction and sentence, following a

plea of no contest, to one count of possession of cocaine (less than five grams), in violation

of R.C. 2925.11(A), a felony of the fifth degree. Dukes was sentenced to community

control sanctions for a period not to exceed five years.

       {¶ 2}    Dukes was indicted on June 5, 2012, and on June 19, 2012, he pled not

guilty. On July 5, 2012, Dukes filed a motion to suppress, which the trial court overruled

after a hearing. At the hearing, Officer Jeff Hiber testified that on April 6, 2012, between

9:00 and 10:00 p.m., while on routine patrol, he initiated a traffic stop on a vehicle he

observed leaving Gina’s Liquor Store on Salem Avenue and heading northbound. Hiber

testified, “I stopped the vehicle because upon running the license plate of the vehicle it came

back as being on the City’s tow list.” Hiber stated that the vehicle was on the tow-in-list as

the result of three unpaid parking citations.

       {¶ 3}     Hiber stated that the City of Dayton is owed in excess of $750,000.00 in

unpaid parking citations, and that there was “a change or a revision of the original tow

policy, stating that if you * * * encountered a vehicle that had two or more parking citations

and the vehicle was either parked or moving on a city street that you could stop and tow that

vehicle.” Hiber identified, as Exhibit 1, the “Dayton Police Department General Order

3.02-6 Towing Motor Vehicles,” which provides in part, “I. WHEN TO TOW A VEHICLE

(FOR    TOWS      INVOLVING         PARKING      VIOLATIONS        REFER     TO    PARKING

ENFORCEMENT POLICY, 3_02-3.” Hiber also identified, as Exhibit 3, the “Dayton

Police Department General Order Parking Enforcement 3.02-3," referred to in Exhibit 1,

which provides in part:
                                                                                          3

               I. TYPES OF ENFORCEMENT ACTION

               ***

               B.     Parking Citation - Enforcement action used when vehicle is

       illegally parked but not in a tow zone or on the Tow-in-List. * * *

               C. Towing - Used when an unlawfully parked vehicle presents a

       hazardous condition, is on the Tow-in-List, or is in a Tow Away Zone.

               II.    PARKED MOTOR VEHICLES MAY BE TOWED UNDER

       THE FOLLOWING CIRCUMSTANCES:

               ***

               g. Unlawfully parked motor vehicles on the Tow-in-List on public

       property.

       {¶ 4}        Hiber also identified, as Exhibit 2, “Executive Order No. 7-2012,” dated

April 4, 2012, from Richard S. Biehl, Director and Chief of Police, and directed to “All

Personnel,” which provides as follows:

               Previous Executive Order 9-2011 allowed officers to tow vehicles

       with two (2) or more unpaid parking citations from the public right of way.

       Effective April 4, 2012 officers may now tow vehicles with two (2) or more

       automated traffic control photographic system (ATCPS) - (red light/speed)

       citations.

               Vehicles with two (2) or more unpaid parking and/or ATCPS citations

       will appear on the tow-in list. Vehicles that are on the tow-in list for these

       violations may be towed when the officer comes into contact with the vehicle
                                                                                             4

        operating or parked on a public street. Officers may provide the owner with

        the opportunity to have someone pay the unpaid citations at the Clerk of

        Court Office and return to the scene in a reasonable amount of time prior to

        towing the vehicle.

        {¶ 5}     Hiber testified that when he approached the vehicle at issue, he observed

that it had two occupants, and that Dukes was in the front passenger seat. Hiber stated, “I

made contact with the driver of the vehicle and explained to him the reason why I had

stopped him and asked to see his license and proof of insurance and advised him that I had

found that his vehicle was on the tow list because of the three unpaid parking citations.”

Hiber stated that he “noticed that there was an open container of alcohol in the console in his

vehicle. And in addition there was a cup of alcohol next to the can of what appeared to be

beer in the console.” Hiber stated that the cup contained vodka. Hiber asked the driver to

hand him the open containers, and that the driver complied. Hiber stated that he then

removed the driver from the vehicle, patted him down and placed him in his cruiser for

officer safety.

        {¶ 6}     Hiber testified that he then returned to the vehicle and removed Dukes,

patted him down, and placed him in his cruiser for officer safety as well. Hiber stated that

he returned to the car and observed “bottles of alcohol that were on the floorboard, on the

right side, passenger side, where the passenger had been seated.” In the course of removing

those bottles, Hiber stated that he “discovered a small cellophane baggy with a hard rock - -

rocky substance that - - which is consistent with crack cocaine.” Specifically, Hiber stated

that the substance was located “right where the feet would be if you were sitting on the right
                                                                                              5

front passenger seat, closest right next to the door.”       Hiber stated that he tested the

substance with cobalt reagent and confirmed that it was crack cocaine. Hiber stated that he

returned to his cruiser, informed Dukes that he was under arrest, and read him his rights

from a card provided by the prosecutor’s office. Hiber stated that Dukes indicated his

understanding of each of his rights, and that he “admitted that the crack cocaine was his.”

        {¶ 7}    On cross-examination, Hiber stated that the Executive Order originated from

the police department and not the City of Dayton. Hiber stated that he initiated the stop by

activating his overhead lights, and he stated that the driver and Dukes were not free to leave

in the course of the stop but were “detained.” Hiber stated that the vehicle was towed from

the scene.

        {¶ 8}     On redirect examination, Hiber stated that the crack cocaine was not found

in the course of an inventory search but that he “saw the drugs immediately.” Hiber stated

that the Executive Order was issued to “all working police department personnel.” Hiber

stated that he did not observe a traffic violation prior to stopping the vehicle, and that he

stopped the vehicle because it was on the tow-in list.

        {¶ 9}    In response to questions from the court, Hiber stated that the Executive

Order was “read out loud in roll call by our sergeant - - supervisor, advising to all the patrol

officers of the revision, about the new tow - - towing vehicle policy.” He stated that State’s

Exhibit 3 was revised in December of 2008, and in force and effect at the time he stopped

the vehicle at issue.

        {¶ 10}    In its decision overruling Dukes’ motion to suppress, the court determined

in part as follows:
[Cite as State v. Dukes, 2013-Ohio-1691.]
                 Officers may stop and detain a motorist when observing any traffic

        offense or violation of the law and no independent “reasonable articulable

        suspicion” of other criminal activity is required under Terry. Observations

        of things in plain sight, made from a place where a police officer has a right

        to be, do not amount to a search in the constitutional sense.

                 The Second District, following the Supreme Court, permits officers to

        order occupants out of a vehicle during a lawful traffic stop, given the

        concern for officer safety and the minimal intrusion to the occupants.

                 The U.S. Supreme Court and the Ohio Supreme Court hold that the

        prosecution may not use any statements, whether exculpatory or inculpatory,

        stemming from a custodial interrogation of a defendant, unless it

        demonstrates the use of procedural safeguards to secure a defendant’s

        privilege against self-incrimination. The burden is upon the prosecution to

        prove that a knowing, intelligent and voluntary waiver of a defendant’s

        Miranda rights was obtained or occurred.

                 Here, Officer [Hiber] had authority to stop the car (and tow) pursuant

        to Dayton Police Department General Orders 3.02-6 Towing Motor Vehicles,

        3.02-03 Parking Enforcement, and Executive Order 7-2012. Ordering the

        occupants out of the car was permitted, and certainly Officer [Hiber], upon

        observing open alcohol containers and the baggie of crack cocaine in plain

        view, in no way violated Defendant’s constitutional protections. Further,

        before questioning Defendant, Officer [Hiber] secured Defendant’s knowing,

        intelligent and voluntary waiver of his Miranda rights.
                                                                                        7

     {¶ 11} Dukes asserts one assigned error as follows:

     “THE TRIAL COURT ERRED BY OVERRULING THE MOTION TO

SUPPRESS.”

     {¶ 12} As this Court has previously noted:

              With respect to a motion to suppress, “the trial court assumes the role

     of trier of facts and is in the best position to resolve questions of fact and

     evaluate the credibility of witnesses.” State v. Hopfer (1996), 112 Ohio

     App.3d 521, 548, 679 N.E.2d 321, quoting State v. Venham (1994), 96 Ohio

     App.3d 649, 653, 645 N.E.2d 831. The court of appeals must accept the trial

     court's findings of fact if they are supported by competent, credible evidence

     in the record. State v. Isaac (July 15, 2005), Montgomery App. No. 20662,

     2005-Ohio-3733, citing State v. Retherford (1994), 93 Ohio App.3d 586, 639

     N.E.2d 498. Accepting those facts as true, the appellate court must then

     determine, as a matter of law and without deference to the trial court's legal

     conclusion, whether the applicable legal standard is satisfied. Id. State v.

     Cooper, 2d Dist. Montgomery No. 23719, 2010-Ohio-1120, ¶ 10.

     {¶ 13}      As this Court has indicated:

              The Fourth Amendment to the United Stated Constitution guarantees

     the right of people to be free from unreasonable searches and seizures. The

     purpose of the Fourth Amendment is “to prevent arbitrary and oppressive

     interference by enforcement officials with the privacy and personal security

     of individuals.” United States v. Mendenhall (1980), 446 U.S. 544, 553-54,
                                                                                  8

quoting United States v. Martinez-Fuerte (1976), 428 U.S. 543, 554. It is

important to note that only unreasonable searches and seizures are

unconstitutional.

       It is undisputed that the warrantless stop of an automobile is a

“seizure” within the meaning of the Fourth Amendment. See Delaware v.

Prouse (1979), 440 U.S. 648. In the context of a routine traffic stop, the

officer must have a reasonable, articulable suspicion of criminal activity to

perform the stop. See Terry v. Ohio (1968), 392 U.S. 1. It has generally been

held that the observation of a traffic offense provides a sufficient basis for

such a stop. See, e.g., State v. Richardson (1994), 94 Ohio App.3d 501.

State v. Prendergast, 2d Dist. Montgomery No. 14746-7, 1995 WL 461346

(Aug. 2, 1995).

{¶ 14} As this Court has previously noted:

       The plain view exception authorizes the seizure, without a search

warrant, of an illegal object or contraband that is immediately recognizable as

such when it is in plain view of a law enforcement official. Coolidge v. New

Hampshire (1971), 403 U.S. 443, 465-466, 91 S.Ct. 2022, 29 L.Ed.2d 564;

State v. Davie (1993), 86 Ohio App.3d 460, 464, 621 N.E.2d 548. “Under

[the plain view] doctrine, an officer may seize an item without a warrant if

the initial intrusion leading to the item's discovery was lawful and it was

‘immediately apparent’ that the item was incriminating.” State v. Waddy

(1992), 63 Ohio St.3d 424, 442, 588 N.E.2d 819. State v. Gist, 2d Dist.
                                                                                             9

       Montgomery No. 22823, 2009-Ohio-4791, ¶ 34.

       {¶ 15}     As noted by this Court, in the case of an unlawful traffic stop, evidence

and statements obtained as a result must be suppressed. Cooper, at ¶ 22, citing Wong Sun v.

United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

       {¶ 16}    Title 45 of the Ohio Revised Code sets forth traffic laws governing the

operation of motor vehicles, including motor vehicle crimes. Title VII of the Code of

Ordinances, City of Dayton, Ohio, sets forth the municipal traffic code for the City of

Dayton. We note that fines imposed for parking violations are civil in nature, and it is not a

crime pursuant to Title 45 of the Revised Code or Title VII of the City of Dayton’s Code of

Ordinances to drive a vehicle while owing money on parking citations. Hiber’s testimony is

clear that he initiated the traffic stop herein because the vehicle was on the police

department’s “tow-in-list.”    He did not observe a traffic violation or testify that he

possessed a reasonable articulable suspicion of criminal activity when he stopped the car.

       {¶ 17} We further note that the State’s reliance upon City of Xenia v. McDaniel, 2d

Dist. Greene No. 2000-CA-7, 2000 WL 873212 (June 30, 2000), is misplaced. Therein,

McDaniel was convicted of driving under the influence of alcohol following a traffic stop,

and this Court upheld the stop, which was initiated not for the purpose of investigation but

for the purpose of advising McDaniel that he was no longer welcome at the home of a

woman with whom he had had a relationship. This Court noted, while “cases involving

traffic stops overwhelmingly involve stops made for the purpose of investigating possible

criminal activity, that is not the only proper purpose for which a stop may be made.” Id., *

3. This Court noted that when a stop is initiated for other than an investigatory purpose, the
                                                                                         10

public interest in making the stop must be weighed against the individual’s interest in

privacy. Id.

        {¶ 18}       This Court then determined as follows:

                 In the case before us, the purpose in making the stop was more

        directly intended to benefit a third person - - the unnamed woman with whom

        McDaniel had a relationship - rather than to benefit McDaniel himself.

        However, in view of the past history of a strained relationship, a police

        officer’s having undertaken to be the bearer of a message of personal

        rejection likely to arouse anger on McDaniel’s part may well have served to

        benefit both parties to the relationship, by diminishing the likelihood of an

        angry, and potentially violent, confrontation between the two. Id., *4.

This Court concluded that “it was reasonable for [the officer] to inflict upon McDaniel the

minor, but not negligible, inconvenience of a traffic stop, for the purpose of relaying the

message that he was no longer welcome at the residence of the woman with whom he had a

relationship.” Id.

        {¶ 19}       We disagree with the State’s assertion that the “public’s interest in

obtaining the hundreds of thousands of dollars owed to the City for unpaid parking citations

outweighed Dukes’ privacy interest as a passenger in a vehicle on the Tow List.” Hiber was

not exercising a care-taking function as exhibited in McDaniel and, as noted above, Hiber

did not observe a traffic violation, he lacked a reasonable articulable suspicion of any

criminal activity to justify the stop, and driving a motor vehicle while owing civil parking

fines is not a crime. (We note, contrary to the trial court’s assertion, that Exhibit 3 only
                                                                                            11

allows for the towing of unlawfully parked vehicles on the tow-in-list). In other words, the

protections guaranteed by the Fourth Amendment cannot be altered by means of an

Executive Order issued to police department personnel. Since Dukes’ Fourth Amendment

rights were violated by Hiber’s unlawful stop, the plain view doctrine does not apply to the

crack cocaine which, along with Dukes’ admission that the crack cocaine was his, were

subject to suppression. Accordingly, the trial court erred in overruling Dukes’ motion to

suppress, his assignment of error is sustained, and the judgment of the trial court is reversed

and remanded for proceedings consistent with this opinion.



                                         ..........

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

R. Lynn Nothstine
Antony A. Abboud
Hon. Steven K. Dankof
