[Cite as State v. Dixon, 2015-Ohio-208.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :      OPINION

                  Plaintiff-Appellee,               :
                                                           CASE NO. 2013-L-103
        - vs -                                      :

JAMEY D. DIXON,                                     :

                  Defendant-Appellant.              :


Criminal Appeal from the Willoughby Municipal Court, Case No. 13 TRC 02379 A.

Judgment: Reversed and remanded.


James R. O’Leary, Baker, Hackenberg & Hennig, 77 North St. Clair Street, #100,
Painesville, OH 44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}      Defendant-appellant, Jamey D. Dixon, aka Peden, appeals the June 17,

2013 judgment entry of the Willoughby Municipal Court, denying her motion to

suppress.        The issue before this court is whether a police officer may approach a

vehicle parked in a residential driveway without a reasonable suspicion that a crime had

occurred or was occurring or indications that the operator of the vehicle was in distress.

For the reasons that follow, we reverse and remand the judgment of the municipal court.
       {¶2}    On March 29, 2013, Officer Nate Reed of the Village of Kirtland Hills

Police Department issued Dixon a traffic citation, charging her with Operating a Vehicle

while under the Influence (“OVI”), in violation of R.C. 4511.19(A)(1)(a) (“[n]o person

shall operate any vehicle * * * under the influence of alcohol”), and OVI, in violation of

R.C. 4511.19(A)(2) (“[n]o person who * * * previously has been convicted of or pleaded

guilty to [OVI] * * * shall do both of the following: (a) Operate any vehicle * * * while

under the influence of alcohol * * *; (b) Subsequent to being arrested for operating the

vehicle, * * * being asked by a law enforcement officer to submit to a chemical test or

tests * * *, refuse to submit to the test or tests”).

       {¶3}    On April 19, 2013, Dixon appeared and entered a plea of not guilty.

       {¶4}    On May 22, 2013, Dixon filed a motion to suppress.

       {¶5}    On June 12, 2013, a hearing was held on Dixon’s motion.

       {¶6}    On June 17, 2013, the municipal court issued a judgment entry, denying

the motion to suppress. The court made the following findings of fact:

       {¶7}    “3. Officer Reed testified that he was on duty and on routine patrol on

March 29, 2013 when he observed a ‘blacked out’ vehicle in a residential driveway at

8350 Kingwood Drive.        Officer Reed testified that he observed one person in the

vehicle, behind the steering wheel. Officer Reed testified that he was familiar with the

family that lived at this residence and he had never seen a vehicle parked in the drive

such as the defendant was parked, some ‘65 yards’ from the residence. The time was

approximately 2:00 AM. Officer Reed explained that what he meant by a ‘blacked out’

vehicle was one which was occupied but all the lights were out.

       {¶8}    “4. Officer Reed testified that the area of this particular residence is in

close proximity to the intersection of Route 615 and Center Street, a high traffic area


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compared to the other roadways in Kirtland Hills. He also had knowledge that a vehicle

had been broken into previously in this driveway; there was an attempt at unlawful

access to the house behind this residence as well as a garage in the area. Under cross

examination, the officer testified that the break-ins were not recent, but this does not

diminish the fact that he had knowledge of those incidents and that they were in this

particular area.

       {¶9}   “5. Officer Reed testified that based on these specific and articulable facts,

he approached the vehicle and made contact with the defendant who was the operator

and sole occupant of the vehicle.       The officer exercised what he described as his

‘community caretaker function’, and believed that a criminal act may have taken place

or was occurring. His reason to approach the defendant, therefore, was to ‘… confirm

or refute his suspicion of criminal activity.’ State v. Moeller, 200[0] WL 1577287 (Ohio

Ct. App. 12th Dist. Butler County 2000), citing Terry v. Ohio, 392 U.S. 1, 21, * * *(1968).

The court finds that the state has met its burden to show the factual basis for the stop,

as the officer provided specific and articulable facts from which rational inferences could

be made to justify the intrusion.” (Parallel citations omitted.)

       {¶10} On October 2, 2013, Dixon entered a plea of no contest to OVI, in violation

of R.C. 4511.19(A)(1)(a). The court imposed a fine of $675, sentenced her to 180 days

in jail (165 days suspended), suspended her license for one year, and placed her on

probation for one year. On motion of the prosecutor, the court entered a nolle prosequi

to the other OVI charge.

       {¶11} On October 16, 2013, Dixon filed a notice of appeal.




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        {¶12} On October 17, 2013, the municipal court stayed execution of Dixon’s

sentence pending appeal.

        {¶13} On appeal, Dixon raises the following assignment of error:

        {¶14} “The trial court erred when it denied the defendant-appellant’s motion to

suppress any evidence gained as part of an unlawful seizure of the defendant-appellant,

in violation of her right to due process and to be free from unreasonable search and

seizure as guaranteed by the Fourth, Fifth, and Fourteenth Amendments of the United

States Constitution and Article I, Sections 10 and 14 of the Ohio Constitution.”

        {¶15} At a suppression hearing, “the trial court is best able to decide facts and

evaluate the credibility of witnesses.” State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-

4629, ¶41. “Its findings of fact are to be accepted if they are supported by competent,

credible evidence, and we are to independently determine whether they satisfy the

applicable legal standard.” Id., citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, ¶8; State v. Wysin, 11th Dist. Portage No. 2013-P-0037, 2013-Ohio-5363, ¶27

“(‘(o)nce the appellate court accepts the trial court’s factual determinations, the

appellate court conducts a de novo review of the trial court’s application of the law to

these facts’) (citation omitted).”

        {¶16} The Fourth Amendment to the United States Constitution provides for

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

against unreasonable searches and seizures.”1 “[W]henever a police officer accosts an

individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v.

1. Article I, Section 14 of the Ohio Constitution provides as follows: “The right of the people to be secure
in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not
be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation,
particularly describing the place to be searched and the person and things to be seized.” Except in
certain circumstances not relevant here, the Ohio Supreme Court “has interpreted Section 14, Article I of
the Ohio Constitution as affording the same protection as the Fourth Amendment.” State v. Robinette, 80
Ohio St.3d 234, 238 (1997).

                                                     4
Ohio, 392 U.S. 1, 16 (1968). “[T]he reasonableness of such seizures depends on a

balance between the public interest and the individual’s right to personal security free

from arbitrary interference by law officers.” United States v. Brignoni-Ponce, 422 U.S.

873, 878 (1975). An action is deemed reasonable under the Fourth Amendment where

the totality of the surrounding circumstances, viewed objectively, justifies the action.

Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (“[a]n action is ‘reasonable’ under the

Fourth Amendment * * * ‘as long as the circumstances, viewed objectively, justify (the)

action’”) (citation omitted); State v. Bobo, 37 Ohio St.3d 177 (1988), paragraph one of

the syllabus (“[t]he propriety of an investigative stop by a police officer must be viewed

in light of the totality of the surrounding circumstances.”)

       {¶17} There are two well-defined situations in which an officer’s seizure of an

individual is permissible under the Fourth Amendment: the investigatory stop and the

community-caretaking/emergency aid exception.

       {¶18} “[A] law enforcement official is permitted to stop and briefly detain a

person for investigative purposes if the officer has a reasonable suspicion supported by

articulable facts that ‘criminal activity may be afoot’ * * *.” State v. Franklin, 97 Ohio

St.3d 1, 2002-Ohio-5304, ¶11, quoting Terry at 30. “Thus, police officers are generally

permitted to approach an individual, even if they have no basis to conclude that he is

suspicious, and may ask questions of and request identification from the individual ‘as

long as the police do not convey a message that compliance with their requests is

required.’” Id., quoting Florida v. Bostick, 501 U.S. 429, 435 (1991).

       {¶19} Under the community-caretaking/emergency aid exception to the Fourth

Amendment, police officers may “stop a person to render aid if they reasonably believe

that there is an immediate need for their assistance to protect life or prevent serious


                                              5
injury.” State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, syllabus. The exception

recognizes that “local law-enforcement officers ‘frequently investigate vehicle accidents

in which there is no claim of criminal liability and engage in what, for want of a better

term, may be described as community caretaking functions, totally divorced from the

detection, investigation, or acquisition of evidence relating to the violation of a criminal

statute.’” Id. at ¶17, quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973).

       {¶20} As Ms. Dixon notes in her brief, Officer Reed indicated both that he was

making an investigative, Terry stop of appellant, and that he was exercising his

community-caretaking function.       In either case, the facts did not justify him in

approaching and questioning appellant, simply because she was stopped on a private

driveway at night.

       {¶21} If this was a Terry stop, then the opinion in United States v. See, 574 F.3d

309 (6th Cir.2009), is instructive. In that case, the Northern District of Ohio found a

Terry stop justified, and denied a motion to suppress, when Officer Williams of the

Cuyahoga County Metropolitan Housing Authority, stopped a parked car in the early

morning hours at a housing project. Id. at 311. On appeal, the Sixth Circuit reversed.

Id. In relevant part, the court found:

       {¶22} “We conclude that this Terry stop was not supported by reasonable

suspicion.   The district court listed the following reasons to support its finding that

Williams had reasonable suspicion: (1) it was 4:30 a.m.; (2) the men were parked in a

high-crime area; (3) before beginning his shift, Williams had been instructed to pay

special attention to non-resident loiterers because of a recent increase in robberies; (4)

there were three men in the car; (5) the car's interior light was off; (6) the car was

parked away from the apartment building in a dim portion of the lot; and (7) the car did


                                             6
not have a front license plate. Williams' testimony does not provide any additional

justifications. Although the fact that the encounter occurred in a high-crime area is

relevant, ‘(a)n individual’s presence in an area of expected criminal activity, standing

alone, is not enough to support a reasonable, particularized suspicion that the person is

committing a crime.’ Illinois v. Wardlow, 528 U.S. 119, 124, * * * (2000); see also United

States v. Caruthers, 458 F.3d 459, 467-68 (6th Cir. 2006). Similarly, the time of day is

relevant, but the fact that it was very early in the morning does not alone provide

reasonable suspicion. Caruthers, 458 F.3d at 467-68. The first three factors cited by

the district court are context-based factors that would have pertained to anyone in the

parking lot at that time and should not be given undue weight.

       {¶23} “Nor did the remaining factors provide Williams with reasonable suspicion

to conduct a Terry search (although he could, of course, have pursued a consensual

encounter with the occupants of the car). At the time that he parked his patrol car in

front of See’s car, Williams was not responding to a complaint, he did not suspect the

men of a specific crime, he had not seen the men sitting in the car for an extended

period of time, he was not acting on a tip, he had not seen the men do anything

suspicious, and the men did not try to flee upon seeing Williams approach. Even if we

assume that Williams noticed that the car did not have a front license plate before he

parked in front of See’s car, this fact does not provide reasonable suspicion because, as

Williams explained, temporary tags are issued for only the back of the car. Accordingly,

the fact that the car did not have a front license plate did not indicate a traffic infraction,

and Williams and the government never explain how the lack of a front license plate

would otherwise raise reasonable suspicion. Apart from the contextual factors of time

and the high-crime status of the area, all that Williams knew at the time he parked his


                                              7
car was that there were three men in an unlit car in the parking lot of a housing complex

and that they had not chosen to park in one of the spots closer to the building.

Considering the totality of the circumstances, Williams did not have reasonable

suspicion that criminal activity was occurring, and the Terry stop was therefore

improper.” Id. at 313-314. (Parallel citations omitted.)

       {¶24} In this case, Officer Reed based his decision to make a stop solely on the

facts that some crimes had occurred in the area; that he had not seen a car parked in

the driveway of the house earlier, that he had not seen a car parked at that particular

point in the driveway before; and, that its lights were off. The area was not a high crime

area; the officer was not responding to a call; he had no suspicion of any traffic

infraction or any other criminal activity. In fact, his testimony indicates he did not even

know the vehicle was occupied, until he turned his floodlight on it. Ms. Dixon did not

attempt to flee. A Terry stop was unjustified.

       {¶25} If this was a community caretaking stop, again, the facts do not justify the

intrusion.   As the Supreme Court of Ohio held in Dunn, supra: “The community-

caretaking/emergency-aid exception to the Fourth Amendment warrant requirement

allows police officers to stop a person to render aid if they reasonably believe that there

is an immediate need for their assistance to protect life or prevent serious injury.” In this

case, no evidence indicates that Officer Reed had any reason to believe Ms. Dixon was

in any imminent harm.

       {¶26} The sole assignment of error has merit.




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       {¶27} For the foregoing reasons, the judgment of the Willoughby Municipal Court

is reversed and this matter is remanded for further proceedings consistent with this

opinion.



TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.


                                   _________________



Timothy P. Cannon, P.J., concurring.

       {¶28} I concur with the majority’s decision to reverse the judgment of the trial

court, which denied appellant’s motion to suppress. I write separately to further address

a few points of analysis.

       {¶29} First, the dissent states that “Officer Reed’s estimation of his own conduct

[as ‘an investigative, Terry stop’] is not material to the issue of its reasonableness. * * *

[A]n officer’s ‘subjective intent is irrelevant to determining the type of intrusion that

occurred.’” Infra at fn. 1.    However, it is undisputed that a seizure occurred here.

Officer Reed pulled behind the vehicle and activated his lights.         The state of Ohio

conceded Ms. Dixon was not free to leave at that point.

       {¶30} Second, in support of his seizure of the vehicle, Officer Reed contends he

had just passed that drive minutes before and the vehicle was not there. He also

testified that Ms. Dixon’s vehicle was parked in a driveway near a freeway interchange.

However, these facts are consistent with many perfectly legal reasons why anyone may

have pulled into the driveway—e.g., place a phone call, check directions on a GPS, or

send a text message—activities that are safer to perform when not driving. Although

                                             9
Officer Reed could have observed the vehicle for a period of time to see whether Ms.

Dixon may have been performing one of these tasks, he instead made an immediate

seizure of the vehicle. Under these facts and circumstances, Officer Reed seized Ms.

Dixon before he could have formed a reasonable suspicion of criminal activity.

      {¶31} Third, Officer Reed identified that something was possibly amiss when he

saw Ms. Dixon’s car parked at the bottom of a driveway. However, the fact that he may

have acted in good faith is simply not enough: “[i]f subjective good faith alone were the

test, the protections of the Fourth Amendment would evaporate, and the people would

be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the

police.” Beck v. Ohio, 379 U.S. 89, 97 (1964). There is no doubt that Officer Reed

could have pursued a consensual encounter with Ms. Dixon, as it is well settled that

“law enforcement officers do not violate the Fourth Amendment by merely approaching

an individual on the street or in another public place, by asking him if he is willing to

answer some questions[.]” Florida v. Royer, 460 U.S. 491, 497 (1983). However, as

previously stated, the state of Ohio and Officer Reed concede that this was not a

consensual encounter.

      {¶32} I concur with the majority’s holding that Ms. Dixon’s motion to suppress

should have been granted.


                               ____________________



DIANE V. GRENDELL, J., dissents with a Dissenting opinion.

      {¶33} In the present case, the majority reverses the decision of the lower court

on the grounds that Officer Reed’s conduct did not constitute a Terry stop. I must

respectfully dissent.   The Terry stop is not the only permissible type of encounter

                                           10
between law enforcement and private citizens. By trying to straightjacket the facts of

the present case to a Terry stop, the majority loses sight of the essence of Fourth

Amendment jurisprudence – that the people are to be secure against “unreasonable

searches and seizures.” Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37

L.Ed.2d 706 (1973) (“ultimate standard set forth in the Fourth Amendment is

reasonableness”); State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d

1037, ¶ 17 (“the Fourth Amendment protects citizens from only unreasonable

government searches and seizures”) (emphasis sic).

        {¶34} The question in the present case, then, is not whether Officer Reed’s

conduct constituted a valid Terry stop, but whether it was reasonable in light of the

circumstances. Properly framed, the question can only be answered affirmatively, and

the lower court’s judgment affirmed.2

        {¶35} The nature of Officer Reed’s intrusion with regard to Dixon’s Fourth

Amendment rights must be made clear. A Terry stop is a warrantless stop (or seizure)

and subsequent frisk (or search) of a person whom the officer lacks probable cause to

arrest. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

        {¶36} At the time of the initial encounter in the present case, Officer Reed had

not stopped Dixon’s vehicle, restrained her from leaving the scene, or conducted any

type of search. Officer Reed observed Dixon’s vehicle parked, with its lights out, at the

end of a driveway to a private residence, between 65 and 70 yards away from the


2. The majority notes that Officer Reed characterized his own conduct as “an investigative, Terry stop.”
Supra at ¶ 20. Officer Reed’s estimation of his conduct, however, is not material to the issue of its
reasonableness. It is fundamental in Fourth Amendment jurisprudence that an officer’s “subjective intent
is irrelevant to determining the type of intrusion that occurred.” State v. Gill, 11th Dist. Ashtabula No.
2014-A-0014, 2014-Ohio-4309, ¶ 20. Rather, “[t]he standard for determining the propriety of an officer’s
actions during an investigatory stop is objective in nature.” Id. at ¶ 19; Whren v. United States, 517 U.S.
806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (rejecting the argument that “the constitutional
reasonableness of traffic stops depends on the actual motivations of the individual officers involved”).

                                                   11
house, in the early morning hours. There had been a prior incident involving the break-

in of a vehicle at this address and an attempted home invasion at an adjoining

residence. Officer Reed stopped his patrol car and approached Dixon’s vehicle on foot.

Upon speaking with Dixon, Officer Reed had reason to believe that Dixon was

intoxicated and ordered her out of the vehicle to conduct field sobriety tests.

        {¶37} The concurring opinion acknowledges that Officer Reed had reason to

believe “something was possibly amiss,” but concludes there was no “reasonable

suspicion of criminal activity.” Supra at 31. The circumstances of this case do not

support such a distinction between criminal activity and something being amiss. That

fact that innocent explanations of Dixon’s conduct exist is immaterial – innocent

explanations are always possible. But to speculate that Dixon may have pulled off the

interstate to park at the end of a residential driveway at two in the morning to send a

text message is not reasonable or logical.

        {¶38} The majority concludes that “[a] Terry stop was unjustified.” Supra at ¶ 24.

Given the fact that Officer Reed did not conduct a Terry stop, this conclusion is not

justification for reversing the lower court. A fair assessment of Officer Reed’s conduct is

that this was essentially a consensual encounter in a public space.3 This court has

recognized, and repeatedly affirmed, that such conduct does not violate the Fourth

Amendment. State v. Phipps, 11th Dist. Portage No. 2006-P-0098, 2007-Ohio-3842, ¶

19 (“the act of a police officer approaching an individual in a parked vehicle and asking

him questions does not constitute a ‘seizure’ for the purposes of the Fourth


3. On the character of the driveway for Fourth Amendment purposes, see United States v. Galaviz, 645
F.3d 347, 356 (6th Cir.2011) (“police officers needed no warrant to enter onto the portion of the driveway
[outside the curtilage]”); State v. Mitchem, 1st Dist. Hamilton No. C-130351, 2014-Ohio-2366, ¶ 16 (“the
driveway was not part of the home’s curtilage, but instead constituted a public place”); State v. Swonger,
10th Dist. Franklin No. 09AP-1166, 2010-Ohio-4995, ¶ 15 (“the porch of a residence [not within the
curtilage] has been held to be a public place for purposes of Fourth Amendment analysis”) (cases cited).

                                                   12
Amendment”) (cases cited); State v. Regulus, 2013-Ohio-507, 986 N.E.2d 1105, ¶ 14

(2nd Dist.); State v. Calhoun, 11th Dist. Ashtabula No. 2010-A-0057, 2012-Ohio-1128, ¶

96.

       {¶39} Moreover, such conduct is reasonable in light of the facts of this case:

prior break-ins at the same and adjoining addresses4; the sudden appearance of the car

parked suspiciously at the far end of a long driveway; and the late hour of the night. In

Terry, the United States Supreme Court rejected a “rigid all-or-nothing model of

justification and regulation under the [Fourth] Amendment,” recognizing, instead, that

“the central inquiry under the Fourth Amendment [is] the reasonableness in all the

circumstances of the particular governmental invasion of a citizen’s personal security.”

Terry, 392 U.S. at 17-19, 88 S.Ct. 1868, 20 L.Ed.2d 889. The court concluded that “[i]t

would have been poor police work indeed for an officer of 30 years’ experience in the

detection of thievery from stores in this same neighborhood to have failed to investigate

this behavior further.” Id. at 23.

       {¶40} It would have been just as poor police work for Officer Reed to have failed

to investigate further in the present case, while his decision to investigate is no less

constitutional.




4. The majority obscures the fact that criminal activity had occurred at this same address, glossing
Officer Reed’s testimony as “some crimes had occurred in the area.”

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