[Cite as State v. Trego, 2017-Ohio-6932.]




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




STATE OF OHIO,
                                                           CASE NO. 2-17-04
       PLAINTIFF-APPELLEE,

       v.

KENNETH R. TREGO,                                          OPINION

       DEFENDANT-APPELLANT.



                    Appeal from Auglaize County Municipal Court
                             Trial Court No. 16TRC4799

                                      Judgment Affirmed

                               Date of Decision: July 24, 2017



APPEARANCES:

        Andrew R. Bucher for Appellant

        Randy A. Lamarr, Jr. for Appellee
Case No. 2-17-04


WILLAMOWSKI, J.

          {¶1} Defendant-appellant Kenneth R. Trego (“Trego”) brings this appeal

from the judgment of the Auglaize County Municipal Court denying his motion to

suppress the evidence based upon an improper stop. For the reasons set forth below,

the judgment is affirmed.

          {¶2} On July 20, 2016, Trego was driving his vehicle in Auglaize County

when a concerned citizen called 911 to report a driver who may have been impaired.

The citizen identified himself and told the dispatcher that the vehicle was traveling

at 20 mph in a 50 mph zone, was weaving within its lane, and was jerking back and

forth. The citizen also indicated that the driver was also braking frequently. The

citizen followed the vehicle while on the phone with the 911 dispatcher and

continued to report his location and observations, including a description of the

driver. The dispatcher notified Officer Chris McKinney (“McKinney”) of the New

Bremen Police Department who responded to the vehicle’s location.              Once

McKinney was in view of the citizen, the citizen pointed out the vehicle that was

being followed. McKinney then initiated a traffic stop to learn the condition of the

driver.

          {¶3} After stopping the vehicle, McKinney identified the driver of the

vehicle as Trego and determined that he matched the description of the driver given

by the citizen. McKinney detected a strong odor of an alcoholic beverage coming

from Trego and also observed that Trego’s eyes appeared red and glassy. Trego

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was subsequently arrested and cited with an OVI charge in violation of R.C.

4511.19(A)(1)(a). Doc. 1. On October 4, 2016, Trego filed a motion to suppress

any evidence from the stop. Doc. 28. Trego alleged that McKinney lacked

reasonable suspicion to stop Trego’s vehicle. A hearing was held on the motion on

November 17, 2016. Doc. 40. On November 21, 2016, the trial court denied the

motion to suppress. Id. On February 9, 2017, Trego changed his plea from one of

not guilty to no contest. Doc. 52. The trial court then found Trego guilty of the

charged offense and sentenced Trego to twenty days in jail with all jail time

suspended provided Trego complied with the terms of community control. Id. The

trial court also ordered Trego to pay a fine of $375.00 and suspended his license for

six months. Id. Trego filed his notice of appeal on February 27, 2017. Doc. 62.

On appeal Trego raises the following assignments of error.

                            First Assignment of Error

       The trial court did not rely upon competent, credible evidence in
       forming its findings of fact.

                           Second Assignment of Error

       The trial court erred [when] it found the seizure of [Trego] did
       not violate the Fourth Amendment of the United States
       Constitution or Article I, §14 of the Ohio Constitution.

For the purpose of clarity, we will address the assignments of error out of order.




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Case No. 2-17-04


                               Constitutionality of the Stop

          {¶4} In the second assignment of error, Trego claims that the trial court erred

in denying his motion to suppress because the officer lacked a reasonable suspicion

of criminal activity to stop his vehicle.

          While [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
          (1968)] and much of its progeny stand for the proposition that a
          police officer generally needs a reasonable suspicion, based on
          specific and articulable facts, that an occupant of a vehicle is or
          has been engaged in criminal activity, nothing in the Fourth
          Amendment requires that the “specific and articulable facts”
          relate to suspected criminal activity. Were we to insist that every
          investigative stop be founded on such suspicion, we would be
          overlooking the police officer’s legitimate role as a public servant
          designed to assist those in distress and to maintain and foster
          public safety. That is, law enforcement officers may legitimately
          approach persons and vehicles for purposes other than criminal
          investigation.

State v. Norman, 136 Ohio App.3d 46, 53, 1999-Ohio-961, 735 N.E.2d 953 (3d

Dist.).

          Because of the extensive regulation of motor vehicles and traffic,
          and also because of the frequency with which a vehicle can
          become disabled or involved in an accident on public highways,
          the extent of police-citizen contact involving automobiles will be
          substantially greater than police-citizen contact in a home or
          office. Some such contacts will occur because the officer may
          believe the operator has violated a criminal statute, but many
          more will not be of that nature. Local police 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.”



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Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706. Under

appropriate circumstances, an officer may intrude on a person’s privacy to perform

a community caretaking function without reasonable, articulable suspicion of

criminal activity. Norman, supra at 54. The key question is whether the action of

the officer is reasonable given the circumstances. Id. “When approaching a vehicle

for safety reasons, the police officer must be able to point to reasonable, articulable

facts upon which to base [any] safety concerns.” Id.

       {¶5} In 2012, the Ohio Supreme Court addressed the issue of community

caretaking functions and the Fourth Amendment in State v. Dunn, 131 Ohio St.3d

325, 2012-Ohio-1008, 964 N.E.2d 1037. The facts in Dunn were that dispatch

received a call indicating that a driver was armed and had indicated specific plans

to kill himself. Id. at ¶ 2. The caller identified the vehicle that was being driven,

the identity of the driver, and gave the police the location of the vehicle. Id. An

officer saw the vehicle and subsequently stopped the vehicle. Id. at ¶ 3-4. The

defendant was later indicted on one count of improper handling of a firearm in a

motor vehicle. Id. at 7. The defendant filed a motion to suppress claiming that the

stop of his vehicle violated his Fourth Amendment rights. Id. The trial court

overruled the motion to suppress finding it to be a reasonable. Id. at ¶ 8. The

appellate court reversed the conviction and the State appealed to the Supreme Court

of Ohio. Id. at ¶ 9. The Court held “that the [community caretaking] exception to

the Fourth Amendment warrant requirement allows police officers to stop a person

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to render aid if they reasonably believe that there is an immediate need for their

assistance to protect life or prevent serious injury. Id. at ¶ 22.

       {¶6} Here, the parties stipulated to the authenticity of the recording of the

911 call. Dispatch received a call a little after 3:00 a.m. from a person who

identified himself by name, address, and phone number. He told the dispatch

operator that he was following and watching a red Honda which was being jerked

around within its lane of travel, was traveling excessively slow, and was frequently

braking. The caller told dispatch of the location as he continued to follow the

vehicle. He indicated that he believed the driver might have something wrong as he

appeared to be elderly because he had gray hair. Based upon this information,

dispatch contacted McKinney and informed him of a possible reckless driver. Tr.

4.

       {¶7} McKinney testified that based upon the information relayed to him by

dispatch he had no concerns of criminal activity. Tr. 5. Instead, McKinney was

concerned that it may be an elderly person who was lost or had vehicle problems.

Tr. 5. These safety concerns were why McKinney decided to stop the vehicle. Tr.

5. When McKinney was near the caller and the red vehicle, the caller put his hand

out of the window and pointed out the car that was the subject of the call. Tr. 7.

This identification of the vehicle and the driver by the caller, the time of the night,

and the actions of the driver described by the caller were the facts upon which

McKinney relied in his decision to stop the vehicle. Tr. 8. These facts do provide

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reasonable, articulable facts upon which a reasonable person could conclude that

McKinney was exercising his caretaking function. This falls within an exception to

the Fourth Amendment. Thus, the second assignment of error is overruled.

                               Competent, Credible Evidence

       {¶8} In his first assignment of error, Trego alleges that the trial court did not

rely upon competent, credible evidence in denying the motion to suppress. “An

appellate review of the trial court's decision on a motion to suppress involves a

mixed question of law and fact.” State v. Fittro, 3d Dist. Marion No. 9-14-19, 2015-

Ohio-1884, ¶ 11.

       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.
       State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.
       Consequently, an appellate court must accept the trial court's
       findings of fact if they are supported by competent, credible
       evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437
       N.E.2d 583. 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. State v. McNamara (1997), 124 Ohio
       App.3d 706, 707 N.E.2d 539.

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

       {¶9} Trego in this case stipulated to the 911 call being admitted. Tr. 2.

Although the caller was present at the suppression hearing, the parties agreed that

they did not need him to testify and that he was released from his subpoena. Tr. 2.

The remainder of the evidence was the testimony of McKinney. Trego cross-


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Case No. 2-17-04


examined McKinney. Trego presented no evidence in support of his motion. The

trial court found the recording and the testimony of McKinney to be credible and

persuasive. On appeal, Trego presents no argument as to why the evidence was not

credible other than the legitimacy of the stop, which was addressed above. Given

that there was evidence presented and no argument was presented as to why it was

not credible, this court does not find that the trial court erred in relying on it. The

first assignment of error is overruled.

       {¶10} Having found no error in the particulars assigned and argued, the

judgment of the Auglaize County Municipal court is affirmed.

                                                                 Judgment Affirmed

PRESTON, P.J. and SHAW, J., concur.

/hls




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