author: Baldwin, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Jeremy STUTLER, Defendant-Appellant
    No. 2017CA00094
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT: April 24, 2018
    JOHN D. FERRERO, Prosecuting Attorney, By: KATHLEEN O. TATARSKY, Assistant Prosecuting Attorney, Appellate Section, 110 Central Plaza, South-Suite 510, Canton, Ohio 44702-1413, For Plaintiff-Appellee
    MICHAEL A. PARTLOW, 112 S. Water Street, Suite C, Kent, Ohio 44240, For Defendant-Appellant
    JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. Craig R. Baldwin, J.
   Baldwin, J.

{¶ 1} Appellant, Jeremy Stutler, appeals the May 10, 2017 decision of the Stark County Court of Common Pleas denying his request for Level IV privileges pursuant to R.C. 2945.401. Appellee is the state of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶ 2} Appellant was charged with murder in 2011, and found not guilty by reason of insanity in the Stark County Court of Common Pleas. The trial court committed appellant to Twin Valley Behavioral Healthcare, a maximum security mental health facility. In January of 2014, appellant was transferred to Northcoast Behavioral Healthcare.

{¶ 3} A similar request was considered by this Court in 2015. On February 2, 2015, Dr. Joy Stankowski, M.D., the Chief Clinical Officer of Northcoast Behavioral Healthcare authored a letter requesting appellant be granted Level IV medical privileges for community trips with staff/case manager supervision.

{¶ 4} The State requested a second opinion from Dr. Arcangela Wood, a psychologist and the Director of Psycho-Diagnostic Clinic of Akron. Dr. Wood opined it would be reasonable for Appellant to be granted Level IV privileges; however, she listed a number of conditions at the end of the letter necessary for the granting of said privileges. Both parties stipulated to the reports at the May 4, 2015 hearing.

{¶ 5} Following the hearing on May 4, 2015, the trial court denied the request for a change to Level IV privileges via Judgment Entry of May 8, 2015. We agreed "* * * with the reasoning set forth in Hubbard , supra, and [found] a trial court retains discretion to deny a request for increased privileges even if the evidence in opposition to the requested modification presented by the state does not rise to the level of clear and convincing evidence." State v. Stutler , 5th Dist. No. 2015CA00099, 2015-Ohio-5518, 55 N.E.3d 600, ¶ 13. We concluded that the trial court had not abused its discretion and affirmed the trial court's decision.

{¶ 6} On January 27, 2017, Dr. Stankowski delivered a letter to the Stark County Common Pleas Court with an Application for Level IV Privileges, completed by Sara G. West, M.D., attached. "The purpose of this report is to request an advancement in movement for Mr. Stutler, from Level III and Level IV medical, to Level III and Level IV medical and community." The record does not clearly describe the distinction between the two levels, though it is clear that there are fewer restrictions on Level IV and the intent was to allow the appellant supervised "off ground trips that are therapeutic" as well as "other appropriate events." After reviewing records and information provided to her, Dr. West stated "[i]t is my opinion with reasonable medical certainty that, in consideration of public safety and Mr. Stutler's liberty interests, the least restrictive setting for Mr. Stutler's treatment is continued hospitalization at Northcoast Behavioral Healthcare with advancement to Level IV community privileges."

{¶ 7} On February 24, 2017 the court ordered appellant to submit to an examination by the Psycho-Diagnostic Clinic. On April 27, 2017, Arcangela S. Wood, Psy.D. of the Psycho-Diagnostic Clinic submitted a comprehensive 30 page report after meeting with appellant for 90 minutes on March 21, 2017. She was aware of the plan to allow appellant Level IV privileges in the community and she approved the plan contingent upon adoption of several conditions to protect public safety. She also concluded that the risk of Mr. Stutler's committing any future violent acts was moderate, and that appellant would experience stress with the transition of going on supervised outings in the community and with increased contact with community members.

{¶ 8} The trial court conducted a hearing pursuant to R.C. 2945.401(D) on May 4, 2017. The aforementioned reports were submitted to the court and the testimony of Dr. Wood, Dr. West and appellant was presented to the court. At the conclusion of the hearing the court denied the request for Level IV privileges concluding in its entry of May 10, 2017 that "The Court is not convinced in this short time that improvement has advanced enough to Level IV Privileges." (Trial Court Entry, page 6). Appellant filed a notice of appeal on June 9, 2017 and submitted two assignments of error:

{¶ 9} I. THE TRIAL COURT'S DETERMINATION THAT APPELLANT SHOULD BE DENIED A CHANGE TO LEVEL IV-COMMUNITY PRIVILEGES IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

{¶ 10} II. THE TRIAL COURT HAD NO DISCRETION TO DENY THE LEVEL CHANGE REQUESTED IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE INDICATING THAT THE LEVEL CHANGE SHOULD NOT BE GRANTED.

STANDARD OF REVIEW

{¶ 11} We review the trial court's decision for an abuse of discretion.

The nature and conditions of the insanity acquittee's confinement are a determination which lies within the sound discretion of the trial court. State v. Johnson (1987), 32 Ohio St.3d 109, 112, 512 N.E.2d 652, 655-656. The trial court may choose to reject the recommendations of both the state and the acquittee and order the acquittee to a more secure setting without abusing its discretion. State v. Gladding (1991), 72 Ohio App.3d 16, 21, 593 N.E.2d 415, 417-418. Furthermore, the court does not abuse its discretion by rejecting the recommendation of the hospital caring for the acquittee; rather, the court is assumed to have an independent role in the determination. State v. Swiger (June 6, 1995), Tuscarawas App. No. 94 AP 100073, unreported, 1995 WL 495393.

State v. Crossan , 122 Ohio App.3d 511, 514, 702 N.E.2d 157, 159 (4th Dist.1997).

{¶ 12} Appellant's tenure in the custody of the state and any adjustments to his status are controlled by the terms of R.C. 2945.401 which state in relevant part that:

(A) A defendant found incompetent to stand trial and committed pursuant to section 2945.39 of the Revised Code or a person found not guilty by reason of insanity and committed pursuant to section 2945.40 of the Revised Code shall remain subject to the jurisdiction of the trial court pursuant to that commitment, and to the provisions of this section, until the final termination of the commitment as described in division (J)(1) of this section. * * *
* * *
(D)(1) Except as otherwise provided in division (D)(2) of this section, when a defendant or person has been committed under section 2945.39 or 2945.40 of the Revised Code, at any time after evaluating the risks to public safety and the welfare of the defendant or person, the designee of the department of mental health and addiction services or the managing officer of the institution or director of the facility or program to which the defendant or person is committed may recommend a termination of the defendant's or person's commitment or a change in the conditions of the defendant's or person's commitment.
* * *
(G) In a hearing held pursuant to division (C) or (D)(1) of this section, the prosecutor has the burden of proof as follows:
* * *
(2) For a recommendation for a change in the conditions of the commitment to a less restrictive status, to show by clear and convincing evidence that the proposed change represents a threat to public safety or a threat to the safety of any person.
(H) In a hearing held pursuant to division (C) or (D)(1) or (2) of this section, the prosecutor shall represent the state or the public interest.
(I) At the conclusion of a hearing conducted under division (D)(1) of this section regarding a recommendation from the designee of the department of mental health and addiction services, managing officer of the institution, or director of a facility or program, the trial court may approve, disapprove, or modify the recommendation and shall enter an order accordingly.

{¶ 13} We reviewed the trial court's denial of a similar request in 2015 and, in affirming the trial court's decision, we found "a trial court retains discretion to deny a request for increased privileges even if the evidence in opposition to the requested modification presented by the state does not rise to the level of clear and convincing evidence." State v. Stutler , supra , at ¶ 13. We see no reason to alter our finding in this case and continue to hold that the trial court retains its discretion even if the prosecutor opposes the change and does not provide clear and convincing evidence of a threat to public safety or a person.

{¶ 14} Appellant contends that the state has failed to provide clear and convincing evidence of a threat to public safety or a threat to the safety of any person and, as a result, the trial court has no discretion to reject the recommendations of Northcoast Behavioral Healthcare and must therefore grant the requested privileges. Such an interpretation of the Code would render a portion of R.C. 2945.401 meaningless and would be inconsistent with related portions of Chapter 2945.

{¶ 15} Revised Code Section 2945.401(I) states:

At the conclusion of a hearing conducted under division (D)(1) of this section regarding a recommendation from the designee of the department of mental health and addiction services, managing officer of the institution, or director of a facility or program, the trial court may approve, disapprove, or modify the recommendation and shall enter an order accordingly. (Emphasis added).

{¶ 16} This grant of discretion is not contingent upon any proof, but is a clear and unambiguous grant of discretion to the trial court. The appellant contends that the discretion vanishes if the prosecutor does not carry its burden, but the language of the Code does not support that result. While R.C. 2945.401(G)(2) does state that the prosecutor has the burden of proof "to show by clear and convincing evidence that the proposed change represents a threat to public safety or a threat to the safety of any person" that section does not restrict the trial court's actions. Compare the provisions from R.C. 2945.40 which provide a requirement of clear and convincing evidence and remove the trial court's discretion:

* * * if the court finds there is not clear and convincing evidence that the person is a mentally ill person subject to court order or a person with an intellectual disability subject to institutionalization by court order, the court shall discharge the person* * * * *
(F) If * * * the court finds by clear and convincing evidence that the person is a mentally ill person subject to court order, the court shall commit the person* * *

R.C. 2945.40(E), (F)

{¶ 17} An analogous limitation to discretion is found in the civil commitment statutes:

(B) Unless, upon completion of the hearing the court finds by clear and convincing evidence that the respondent is a mentally ill person subject to court order, it shall order the respondent's discharge immediately.
(C) If, upon completion of the hearing, the court finds by clear and convincing evidence that the respondent is a mentally ill person subject to court order, the court shall order the respondent for a period not to exceed ninety days to * * *

R.C. 5122.15(B), (C). See also R.C. 5924.504(A)(2) and R.C. 118.04(C).

{¶ 18} The Legislature did not include a mandated action in R.C. 2945.401, but instead expressly preserved the discretion of the trial court. Protecting the trial court's discretion is more consistent with our obligation to "read words and phrases in context and construe them in accordance with rules of grammar and common usage' " State ex rel. Barley v. Ohio Dept. of Job & Family Servs. , 132 Ohio St.3d 505, 2012-Ohio-3329, 974 N.E.2d 1183, ¶ 20, quoting State ex rel. Russell v. Thornton , 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 11 and to give effect to every word and clause in the statute when we are seeking to interpret legislative intent." State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn. , 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 18.

{¶ 19} Appellant cites to the holding of the 11th District in State v. Hubbard , 11th Dist. Trumbull No. 97-T-0144, 1999 WL 1080755 ( Hubbard I ) in support of his assertion that the failure to submit clear and convincing evidence robs the trial court of discretion. That court stated:

"However, in apparent reaction to the Supreme Court of Ohio's holding in Johnson , the Ohio General Assembly enacted R.C. 2945.401(G)(2) requiring the state to prove, by clear and convincing evidence, the threat to public safety from a recommended change in the conditions of commitment to a less restrictive setting.

State v. Hubbard , at *4.

The Court in Johnson held that:

*109 Where the sole determination to be made is whether an insanity acquittee, already established as being a mentally ill person subject to hospitalization by court order, should be transferred to a less restrictive treatment setting, no party has the burden of proof. * * * The determination of whether the person should be transferred from his current commitment setting to a less restrictive placement is within the sound discretion of the trial court.

State v. Johnson , supra, syllabus.

{¶ 20} Revised Code 2945.401was enacted in S.B. No. 285, 1996 Ohio Laws 258 and both 2945.401(G)(2) and (I) were contained in the statute as they currently appear. Neither section was a later amendment of the Code, nor has either been amended since adoption. Considering our mandate to give meaning to all words in the Code and the simultaneous enactment of the relevant sections of the Code, we believe the more reasonable interpretation of R.C. 2945.401 is that it was designed to address the lack of the assignment of a burden of proof identified by the Johnson court while still explicitly retaining the discretion described in that case. Any attempt to constrict the discretion of the trial court by imposing a prerequisite of clear and convincing evidence improperly amends the statute by adding language not included by the Legislature. We must "give effect to the words used, not to delete words used or to insert words not used." Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three of the syllabus, as cited in State v. Tuomala, 104 Ohio St.3d 93, 2004-Ohio-6239, 818 N.E.2d 272, ¶¶ 11-12.

{¶ 21} The trial court's discretion is guided by an instruction to "give preference to public safety" when considering appellant's request, R.C.2945.40(F), but appellant's requirement that the court may only exercise its discretion when it finds an "unreasonable risk to the public" is a misconstruction of the language of the Revised Code that conflicts with that obligation. Likewise, appellant's argument that trial court must find that the record contains clear and convincing evidence to deny the requested change and that, without that evidence, the trial court lacks any discretion and must grant the requested change is not supported by the unambiguous language of the Code. Appellant's interpretation will lead to an untenable situation for the trial court. Under the appellant's version, if the trial court concludes the evidence demonstrates that it is more likely than not that granting greater freedom to appellant will threaten public safety or the safety of an individual, the court would be powerless to act. Appellant's position will also eliminate the court's discretion to impose requirements on any grant of privileges and will create confusion where, as in the case before the court, the experts modify their opinion with specific, but different, contingencies that will affect the grant of privileges. The trial must retain discretion to resolve those differences and preserve public safety.

{¶ 22} For the forgoing reasons, we reject appellant's interpretation of the statute.

{¶ 23} We believe a better construction of the statute is provided by the concurrence of Judge Cannon in State v. Hubbard , 11th Dist. Trumbull No. 2013-T-0082, 2014-Ohio-4130, 2014 WL 4672343 ( Hubbard II ):

{¶ 37} I concur with the opinion of the majority. I write separately to clarify this court's standard of review, due primarily to appellant's suggestion that the relevant statute was amended "in order to clear up confusion concerning the amount of discretion afforded a trial court in these types of proceedings * * *." However, appellant does not recognize that the amendment to the statute only limited the discretion of the trial court in a manner that is adverse to appellant.
{¶ 38} R.C. 2945.401(E) indicates that, in making any determination, "the trial court shall consider all relevant factors, including, but not limited to * * *: (1)
Whether, in the trial court's view, the defendant or person currently represents a substantial risk of physical harm to the defendant or person or others[.]" See, e.g., State v. Roden, 8th Dist. Cuyahoga No. 86841, 2006-Ohio-3679, 2006 WL 2023556, ¶ 9.
*6 {¶ 39} I believe the legislative intent behind R.C. 2945.401 has always been to give the trial court broad discretion in approving changes in the course of treatment for those persons committed under R.C. 2945.39 or R.C. 2945.40. However, the statute was amended to include a method by which the state can object and thus prevent the trial court from releasing an institutionalized individual or from allowing a proposed, less restrictive status. R.C. 2945.401(G)(2). If the state establishes, by clear and convincing evidence, that the requested change is "a threat to public safety or a threat to the safety of any person," the trial court no longer has discretion to approve the proposed, less restrictive status. Id.
{¶ 40} Some of the cases reviewing this issue suggest that there must be clear and convincing evidence before the trial court is permitted to disapprove movement to a less restrictive status. See, e.g., State v. Aduddell, 5th Dist. Stark No.2010-CA-00137, 2011-Ohio-582, 2011 WL 441343, ¶ 33-34. However, I do not believe that is how the statute was intended to be applied. The trial court's discretion is only limited, pursuant to R.C. 2945.401(G)(2), if the state establishes "by clear and convincing evidence that the proposed change represents a threat." If, however, the state does not meet its burden of proof, it is still within the trial court's discretion to disapprove the proposed, less restrictive status.

State v. Hubbard , at ¶¶ 37-40

{¶ 24} We approved this construction of R.C. 2945.401 in State v. Stutler, supra.

{¶ 25} Appellant contends that because the concurrence is dicta, we should refrain from adopting its rational in this case. We are cognizant of the nature of the concurrence, but dicta in one matter can be persuasive in another, and we find this is one of those circumstances. Rauhaus v. Buckeye Local School Dist. Bd. of Educ., 6 Ohio St.3d 320, 323, 453 N.E.2d 624 (1983) ; See also State v. Rhein , 5th Dist. Holmes No. 97CA591, 1999 WL 1071672, *3 (Sept. 29, 1999). This interpretation gives meaning to all parts of the relevant code section, preserves the trial court's discretion, and provides a limitation to the discretion that preserves public safety but does not infringe on appellant's rights. If the prosecutor supplies the court with clear and convincing evidence of a threat to safety, we expect that will have an impact on the court's discretion. However, when the evidence falls short of clear and convincing evidence, the trial court may exercise its discretion to ensure preservation of the public safety. This discretion will not be unlimited and must focus on public safety and may consider other factors such as those listed in 2945.40 (E).

{¶ 26} Judge Cannon's concurrence in Hubbard suggests that our opinion in Aduddell , supra is inconsistent with this interpretation of the statute. The facts in Aduddell are not inconsistent with our determination that the trial court retains discretion to act despite the absence of clear and convincing evidence. In Aduddell the appellant was to be transferred from "from his current maximum security setting to a locked civil unit at Heartland Behavioral Health" Aduddell , at ¶ 8 and we found that "[t]he state presented no evidence that appellant's transfer would put the public at risk. The state offered no evidence of Heartland's inability to properly house an insanity acquittee such as appellant." Aduddell at ¶ 33, (Emphasis added). Our focus was the lack of any evidence of a threat to safety. We did not have the opportunity to address whether the trial court retained any discretion as there was no need to do so.

{¶ 27} In contrast, the record of this case contains evidence of a threat to public safety and a threat to the safety of any individual. Dr. Wood of the Psycho-Diagnostic Clinic engaged in a 90 minute clinical interview of appellant, listed the records she reviewed and provided a comprehensive report regarding the history of appellant's illness and treatment. Dr. Wood also rated appellant on the HCR-20 violence risk assessment instrument and concluded that "Mr. Stutler's risk of future violence appears to be within the moderate range at the present." (Psycho-Diagnostic Report, p.29). She also noted that appellant's "mental illness constitutes a substantial disorder of thought, mood and perception" that can "grossly impair[ ] his judgement and behavior and the capacity to recognize reality. It also impairs his ability to meet the ordinary demands of life." (Psycho-Diagnostic Report, p.29). She notes his compliance with his medication and his improvement since his commitment and concludes that "[i]t is my opinion, with reasonable psychological certainly, that the least restrictive setting consistent with public safety and Mr. Stutler's treatment needs is commitment to Northcoast Behavioral Healthcare with level 4 movement." Dr. Wood supplemented her opinion by adding several suggested rules for implementing Level IV privileges while preserving public safety. Despite apparent approval for Level IV privileges, Dr. Wood's hearing testimony contains a statement that weakens her support when she states: "My opinion, as indicated in my report, was that if the Court deemed it so, that he would be appropriate for Level IV movement." (Transcript, 05/14/17 Hearing, p. 9, lines 18-21). That phrase, "if the Court deemed it so" is troubling as it indicates doubt or uncertainty in her opinion or, perhaps, recognition that the court must evaluate all of the information provided to it to make a final decision.

{¶ 28} The report of Dr. West of Northcoast Behavioral Healthcare does little to address public safety and instead focuses on the progress of the appellant and what would be in his best interest. Revised Code 2945.401(D)(1) mandates that Dr. West evaluate "the risks to public safety" prior to submitting an application for a change in status, but the only reference to public safety is an oblique reference on page four of the report where Dr. West states: "It is my opinion with reasonable medical certainty that, in consideration of public safety and Mr. Stutler's liberty interests, the least restrictive setting for Mr. Stutter's treatment is continued hospitalization at Northcoast Behavioral Healthcare with advancement to Level IV community privileges." Dr. West did not provide any assessment regarding appellant's future risk of violence and, while her report does contain some limitations on the grant of Level IV privileges, those suggestions do not incorporate all of the requirements imposed by Dr. Wood's opinion. Considering R.C. 2945.40(D)(1)'s requirement that Northcoast behavioral health make a report "after evaluating the risk to public safety" the absence of any express reference to that evaluation is concerning.

{¶ 29} We find that the trial court retains its discretion to either approve or disapprove the application for a change in status at the conclusion of a hearing under R.C. 2945.401(D) and that, in the case sub judice, the trial court did not abuse that discretion in finding that appellant continues to be mentally ill, must be confined to Northcoast Behavioral Healthcare and that the requested Level IV Privileges create a threat to public safety or the safety of an individual and must be denied.

{¶ 30} The decision of the Stark County Court of Common Pleas is hereby affirmed. Costs are assessed to appellant.

John Wise, P.J. and Gwin, J. concur.

      In the trial court's order of January 10, 2017, the court references a letter of December 12, 2016 from Northcoast Behavioral Healthcare to the court regarding a request for Level IV privileges but that letter was not in the record. Appellant filed a motion on January 5, 2017 requesting the court issue an order to Northcoast Behavioral Healthcare to produce a report regarding Level IV privileges and the January 10, 2017 entry granted that request.


source: Caselaw Access Project

author: DONOVAN, J. FROELICH, J., concurring:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Andrew MELMS, Defendant-Appellant
    NO. 27685
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on May 18, 2018
    MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 85219, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee
    ANGELINA JACKSON, Atty. Reg. No. 77937, Assistant Public Defender, Montgomery County Public Defender's Office, 117 S. Main Street, Suite 400, Dayton, Ohio 45422, Attorney for Defendant-Appellant
   DONOVAN, J.

{¶ 1} This matter is before the Court on the August 8, 2017 Notice of Appeal of Andrew Melms. Melms appeals from the trial court's July 28, 2017 Judgment Entry of Conviction, following a no contest plea to one count of aggravated possession of drugs, namely fentanyl, in violation of R.C. 2925.11(A), a felony of the fifth degree. His appeal is specifically addressed to the trial court's denial of his motion to dismiss his indictment on the basis of immunity from prosecution, pursuant to R.C. 2925.11(B)(2)(b), which went into effect on September 13, 2016, and is known as the "911 Good Samaritan Law." We hereby affirm the judgment of the trial court.

{¶ 2} At the outset, we note that the "crisis in opioid deaths has reached epidemic proportions in the United States (33,091 in 2015), and currently exceeds all other drug-related deaths or traffic fatalities." Report: Governor Chris Christie, "The President's Commission on Combating Drug Addiction and the Opioid Crisis," Washington, D.C., November 1, 2017, pg. 31. These data from the Centers for Disease Control and Prevention are expected to rise even higher in 2016 and 2017.

{¶ 3} Melms was indicted on July 21, 2016. He failed to appear for a scheduled August 4, 2016 arraignment, and a warrant was issued for his arrest. On March 23, 2017, Melms appeared and entered a plea of not guilty. On April 6, 2017, he filed a "Request for Intervention in Lieu of Conviction and Time Waiver."

{¶ 4} On May 31, 2017, Melms filed a "Motion to Dismiss Indictment as Defendant is a 'Qualified Individual' under O.R.C. 2925.11(B)(2)." The memorandum in support of the motion provides the following facts:

On May 30, 2016, Defendant was arrested by Officer Joshua Bowling of the Dayton, Ohio, police department for possession of fentanyl, a felony of the fifth degree. He was found alone, slumped over and nearly unconscious in the front passenger seat of a vehicle located at Love's Travel Stop, 2217 S. Edwin [C.] Moses Blvd., Dayton, Ohio. Dayton Paramedics were called and responded to the scene. Defendant was then taken to the Montgomery County Jail. Defendant had a traffic warrant out of Clark County Jail, Springfield, Ohio. Defendant was transferred to the Clark County Jail from Montgomery County Jail on June 1, 2016. Subsequently, Defendant was transferred from Clark County Jail to the Tri-County Jail (Champaign County) on child support issues. Defendant was released from the Tri-County Jail on July 2, 2016. Defendant was incarcerated from the time of his arrest on May 30, 2016, until July 2, 2016.
On July 8, 2016, Defendant sought medical assistance because he suffered from a drug overdose on May 30, 2016. Six gel caps of fentanyl were recovered from the scene. Defendant sought treatment with Dayton Opiate Recovery Clinic located at 8401 Claude Thomas Road, Dayton, Ohio. See attached letter from Melanie Briggs, CMA of the Dayton Opiate Recovery Clinic dated April 18, 2017. The letter from Dayton Opiate Recovery Clinic has been provided to the prosecutor.
* * * Defendant sought treatment for his opiate addiction (6) six days after he was released from incarceration. Defendant has been taking subox[o]ne since July of 2016.

{¶ 5} Melms asserted that he was immune from prosecution pursuant to R.C. 2925.11(B)(2)(b) , which provides as follows:

* * *
(b) Subject to division (B)(2)(f) of this section, a qualified individual shall not be arrested, charged, prosecuted, convicted, or penalized pursuant to this chapter for a minor drug possession offense if all of the following apply:
(i) The evidence of the obtaining, possession, or use of the controlled substance or controlled substance analog that would be the basis of the offense was obtained as a result of the qualified individual seeking the medical assistance or experiencing an overdose and needing medical assistance.
(ii) Subject to division (B)(2)(g) of this section, within thirty days after seeking or obtaining the medical assistance, the qualified individual seeks and obtains a screening and receives a referral for treatment from a community addiction services provider or a properly credentialed addiction treatment professional.
(iii) Subject to division (B)(2)(g) of this section, the qualified individual who obtains a screening and receives a referral for treatment under division (B)(2)(b)(ii) of this section, upon the request of any prosecuting attorney, submits documentation to the prosecuting attorney that verifies that the qualified individual satisfied the requirements of that division. The documentation shall be limited to the date and time of the screening obtained and referral received.

{¶ 6} R.C. 2925.11(B)(2)(a) provides the following definitions:

* * *
(iv) "Minor drug possession offense" means a violation of this section that is a misdemeanor or a felony of the fifth degree.
* * *
(viii) "Qualified individual" means a person who is not on community control or post-release control and is a person acting in good faith who seeks or obtains medical assistance for another person who is experiencing a drug overdose, a person who experiences a drug overdose and who seeks medical assistance for that overdose, or a person who is the subject of another person seeking or obtaining medical assistance for that overdose as described in division (B)(2)(b) of this section.
(ix) "Seek or obtain medical assistance" includes, but is not limited to making a 9-1-1 call, contacting in person or by telephone call an on-duty peace officer, or transporting or presenting a person to a health care facility.

{¶ 7} Melms argued that he was not subject to prosecution for the following reasons:

1. Defendant was not on community control or post release control;
2. Defendant obtained medical assistance while experiencing a drug overdose;
3. Defendant sought an assessment and referral within (6) days of being released from incarceration from the Tri-County Jail;
4. Defendant was indicted for a minor drug offense * * *;
5. Defendant provided referral for treatment to the prosecuting attorney.

{¶ 8} Melms argued that he "should be allowed dismissal of his charge[ ] because he was unable to seek treatment until he was released from incarceration from three different jails after his initial arrest. Once defendant was released from incarceration he obtained an assessment and referral and is currently in treatment." Melms argued that it "would be fundamentally unfair for him to be denied the benefit of immunity from the statute." He asserted that "there is a violation of his Equal Protection Rights under both the U.S. and Ohio Constitutions. Specifically, Defendant was incarcerated and was unable to seek the treatment within the 30-day timeframe after overdosing. * * * A denial of the dismissal would infringe upon his fundamental rights." Attached to the motion is correspondence from "Melanie Briggs, CMA," of the Dayton Opiate Recovery Clinic that provides that Melms was "seen at our office" on May 3, 2016, July 8, 2016, and February 9, 2017.

{¶ 9} The State opposed the motion on June 5, 2017. The State asserted that because Melms sought treatment at the Dayton Opiate Recovery Clinic on July 8, 2016, 39 days after his arrest, "the State is not required to grant immunity in this case." According to the State, R.C. 2925.11(B)(2)(b)(ii) contains "no language implying that the thirty days start any time other than when the individual seeks or obtains medical assistance." The State argued that Melms obtained medical assistance on May 30, 2016, and that the statute "does not provide any exception for an individual who spends the entire thirty days in custody. Had the legislature intended the thirty day clock to start running from the time of release from jail, the statute would have reflected that." On July 20, 2017, Melms filed supplemental documents to his motion to dismiss, namely a "Follow Up Visit Progress Note," dated July 8, 2016, which provides that Melms reported using heroin that day, was experiencing withdrawal symptoms, and "will start [suboxone ] tomorrow."

{¶ 10} The State responded that there "are no records from Defendant indicating that he received any treatment from July 8, 2016 through February 9, 2017. Further, there are no records of what treatment he received on February 9, 2017 or if he continued to receive treatment after that date." The State asserts that while Melms "was in jail for the entirety of the thirty days, * * * that does not change the mandate of the statute," and since "the screening occurred outside of the thirty day window, dismissal of the charges is not required, but rather at the State's discretion."

{¶ 11} In its decision overruling Melms' motion, the trial court determined as follows:

Defendant appears to have met the requirements of ORC Section 2925.11(B) except for subsection (ii), which requires that treatment be sough[t] within thirty days of receiving medical assistance for a drug overdose. Defendant argues that the thirty-day period should be tolled for the time that he was in jail. The statute, however, does not provide an exception to the thirty-day period for any reason. If the General Assembly had desired to toll the period while a person was in jail, it could have done so. Further, the Court notes that there is no evidence of any follow-up treatment by Defendant until one treatment date on February 9, 2017. Thus, it does not appear to this Court that Defendant has made a serious attempt to seek treatment.
Because Defendant did not obtain the assessment and referral within thirty days of his obtaining medical assistance as required by O.R.C. Section 2925.11(B)(2)(b)(ii), Defendant is not a qualified individual immune from prosecution under the statute.

{¶ 12} On July 26, 2017, Melms entered his plea of no contest, and he was sentenced to community control sanctions for a period not to exceed five years. Melms asserts one assignment of error herein as follows:

THE TRIAL COURT ERRED IN OVERRULING MR. MELMS' MOTION TO DISMISS, WHERE THE FAILURE TO GRANT IMMUNITY FROM PROSECUTION DUE TO CONFINEMENT CONSTITUTED A DENIAL OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.

{¶ 13} Melms further identifies the following three issues as part of his sole assigned error:

1. Denying Mr. Melms immunity from prosecution due to his confinement deprives him of due process and is fundamentally unfair in violation of the Fourteenth Amendment to the United States Constitution and Sections 1 and 16, Article I of the Ohio Constitution.
2. Denying Mr. Melms immunity from prosecution due to his confinement is a denial of the equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution and Section 2, Article I of the Ohio Constitution.
3. Denying Mr. Melms immunity from prosecution due to his confinement is contrary to the policy considerations underlying the immunity statute.

{¶ 14} Melms asserts that he is a qualified individual as defined by R.C. 2925.11(B)(2)(a)(viii), that he received medical assistance for an overdose, pursuant to R.C. 2925.11(B)(2)(b)(i), and that he provided documentation to the prosecutor regarding his screening and referral for treatment, pursuant to R.C. 2925.11(B)(2)(b)(iii). Melms notes that "the State does not dispute that [he] was continuously incarcerated from the date of his overdose until July 2, 2017." Melms asserts that but for his "involuntary confinement, he would have been able to obtain the screening and referral within 30 days of his overdose and would not have been prosecuted. It was simply impossible for him to do so." Melms argues that "the trial court's application of R.C. 2925.11(B)(2)(b) is unconstitutional."

{¶ 15} Melms argues that "[t]his case involves a fundamental right in that Mr. Melms faces deprivation of his physical liberty by virtue of a criminal prosecution." He asserts that "there is no compelling governmental interest that is served by denying Mr. Melms immunity under the circumstances." Melms asserts that since he was "treated differently than a non-incarcerated person," and since "such treatment involves the potential deprivation of [his] physical liberty, strict scrutiny must be applied." According to Melms, he was "subjected to a potential loss of liberty solely because he was incarcerated after his overdose." (Emphasis sic.)

{¶ 16} Melms further argues that "the unequal treatment at issue in this case is not simply one based upon the mere pendency of open traffic or criminal matters, but is also essentially a classification based upon wealth. Had Mr. Melms posted bond and been released on either of his cases, he would have been able to obtain the evaluation within thirty days." He argues that "in this case, the degree of discrimination between incarcerated and non-incarcerated persons is significant, resulting in Mr. Melms being convicted of a felony that involves potential prison time." According to Melms, R.C. 2925.11(B)(2)(b)"was enacted to encourage addicted persons to seek help, which Mr. Melms did as soon as he was physically able to. There is simply no compelling governmental interest that justifies treating him differently than a person who was not confined following an overdose."

{¶ 17} Finally, Melms asserts as follows:

Ohio is in the midst of an unprecedented epidemic of drug addiction and overdoses. R.C. 2925.11(B) was amended to encourage addicted persons not only to seek help at the scene of an overdose, but to also seek follow up treatment without criminal liability. It is widely recognized that criminal charges and convictions carry a host of collateral consequences that can touch nearly every area of a person's life. Mr. Melms did exactly what the statute is encouraging people to do, yet because of a delay of a little over a week that he had no control over, he is now a convicted felon. This result is completely contrary to the policy considerations underlying the immunity statute.

(Emphasis sic and footnote omitted.)

{¶ 18} The State responds in part as follows:

Here, the statute gives a thirty day deadline from the time the medical assistance was rendered. There is nothing ambiguous or uncertain about the deadline. This statute applies to drug users who have just received emergency medical assistance, a group that by its nature is likely to face some period of incarceration. The legislature could have added-but did not-a provision tolling the thirty day clock for time during which an individual is incarcerated. The fact that no such provision was included indicates the legislative intent that the thirty days is just that: thirty days.

{¶ 19} The State further asserts that since "any distinction drawn by the language of this statute or its application is not based on any suspect class and no fundamental right is at issue, the proper analysis is the rational basis test." The State asserts that the "right at stake here is not, as [Melms] claims, freedom from incarceration, but rather an entitlement to prosecutorial immunity. The newly established immunity from prosecution set out in R.C. 2925.11(B) is not a fundamental right."

{¶ 20} According to the State, "the class distinction drawn by this law is based solely on whether an individual has received a screening and referral for addiction services. Nothing in the statute bars that screening and referral from occurring while an individual is incarcerated." The State notes that even if "the class distinction here is drawn on the basis of wealth, the United States Supreme Court and the Ohio Supreme Court have both held that classifications drawn on the basis of wealth are not suspect."

{¶ 21} The State "asks that this Court apply the rational basis test," since "neither a fundamental right nor a suspect class is at issue here." The State notes that "the immunity provision itself and the thirty day deadline both bear a substantial relation to public health, safety, morals, and general welfare of the public. The law offers immunity from prosecution as an incentive for individuals who seek treatment for addiction."

{¶ 22} Finally, the State "agrees with Appellant that the policy objectives of the immunity provision are laudable; addressing the opioid crisis of this region is a worthy cause." The State argues that "a conviction holding Appellant accountable for his actions and requiring community control would be more in line with that objective than would granting him immunity." According to the State, from "a policy perspective, community control sanctions are preferable to simply granting immunity and dismissing the case because they provide a level of accountability he would otherwise be lacking." The State notes that Melms "did not follow through with a screening for [Intervention in Lieu of Conviction]." The State asserts that rather "than actually seeking treatment for addiction, Appellant claims an entitlement to immunity under a provision whose requirements he did not meet."

{¶ 23} In reply, Melms asserts that the "arbitrary 30-day time frame of R.C. 2925.11(B)(2)(b)(ii) as applied to Appellant violated his rights to due process and the equal protection of the law."

{¶ 24} We review the trial court's denial of Melms' motion to dismiss de novo.

State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 19 (2d Dist.). " 'De novo review requires an independent review of the trial court's decision without any deference to the trial court's determination.' * * *." Id.

{¶ 25} We initially note that " '[a] regularly enacted statute of Ohio is presumed to be constitutional and is therefore entitled to the benefit of every presumption in favor of its constitutionality[,] * * * unless such enactments are clearly unconstitutional beyond a reasonable doubt.' * * *." State v. Vanover , 2d Dist. Clark No. 2014-CA-80, 2015-Ohio-345, 2015 WL 409224, ¶ 17.

{¶ 26} Regarding Melms' argument that it was fundamentally unfair to deny him immunity and that he was denied due process, we first note that it is undisputed that Melms was arrested on May 30, 2016, following his overdose. In his memorandum in support of his motion to dismiss, he acknowledges that he was transferred on June 1, 2016 to the Clark County Jail, pursuant to an outstanding warrant, where he was held until he was transferred to the Tri-County Jail sometime before his release therefrom on July 2, 2016. Melms was not indicted for the instant offense until July 21, 2016, and the trial court did not order bail set until August 18, 2016, after Melms failed to appear at his August 4, 2016 arraignment. In other words, Melms was not being held in jail in lieu of bond on the instant drug offense, and while his possession offense triggered the potential application of R.C. 2925.11(B)(2)(b), his confinement from June 1, 2016 until his July 2, 2016 release was on an unrelated case(s).

{¶ 27} As this Court has noted:

As a threshold matter, a person alleging a due process violation must first demonstrate a deprivation of a protected liberty or property interest. State v. Hayden, 96 Ohio St.3d 211, 773 N.E.2d 502, 2002-Ohio-4169, ¶ 6, cert. denied Hayden v. Ohio (2003), 537 U.S. 1197, 123 S.Ct. 1265, 154 L.Ed.2d 1035, citation omitted.

State v. Heys , 2d Dist. Miami No. 09-CA-04, 2009-Ohio-5397, 2009 WL 3246835, ¶ 10.

{¶ 28} " 'A constitutionally protected liberty interest has been defined as freedom from bodily restraint and punishment.' * * *." Heys at ¶ 12. We cannot conclude that, as applied to Melms, R.C. 2925.11(B)(2)(b) is punitive in nature due to his being lawfully confined during the 30 day period provided in R.C. 2925.11(B)(2)(b)(ii) to seek screening and treatment referral. Melms could have sought a screening and referral while in jail, and the possibility of a prison sentence upon prosecution is not the type of deprivation of liberty that the due process clause protects. Accordingly, Melms' due process argument fails.

{¶ 29} Regarding Melms' assertion that he was denied equal protection, the Ohio Supreme Court has previously noted:

The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." The Equal Protection Clause prevents states from treating people differently under its laws on an arbitrary basis. Harper v. Virginia State Bd. of Elections (1966), 383 U.S. 663, 681, 86 S.Ct. 1079, 1089, 16 L.Ed.2d 169, 181 (Harlan, J., dissenting). "Whether any such differing treatment is to be deemed arbitrary depends on whether or not it reflects an appropriate differentiating classification among those affected; the clause has never been thought to require equal treatment of all persons despite differing circumstances." Id.
Under the Equal Protection Clause, a legislative distinction need only be created in such a manner as to bear a rational relationship to a legitimate state interest. Clements v. Fashing (1982), 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508, 515. These distinctions are invalidated only where "they are based solely on reasons totally unrelated to the pursuit of the State's goals and only if no grounds can be conceived to justify them." Id. ; see, also, Heller v. Doe (1993), 509 U.S. 312, 320, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257, 271 ; Am. Assn. of Univ. Professors, Cent. State Univ. v. Cent. State Univ. (1999), 87 Ohio St.3d 55, 58, 717 N.E.2d 286, 290. This rational basis analysis is discarded for a higher level of scrutiny only where the challenged statute involves a suspect class or a fundamental constitutional right. Clements, 457 U.S. at 963, 102 S.Ct. at 2843, 73 L.Ed.2d at 515-516 ; see, also, Cleburne v. Cleburne Living Ctr. (1985), 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320.

State v. Williams , 88 Ohio St.3d 513, 530, 728 N.E.2d 342 (2000).

{¶ 30} As the Williams Court further noted:

"[A] suspect class is one 'saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.' " Massachusettes [Massachusetts] Bd. of Retirement v. Murgia (1976), 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525, quoting San Antonio Indep. School Dist. v. Rodriguez (1973), 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16, 40. Moreover, the only classifications recognized as "suspect" are those involving race, alienage, and ancestry. Id. at 312, 96 S.Ct. at 2566, 49 L.Ed.2d at 524, fn. 4. * * *

Williams at 530, 728 N.E.2d 342.

{¶ 31} Further,

* * * [r]ecognized fundamental rights include the right to vote, the right of interstate travel, rights guaranteed by the First Amendment to the United States Constitution, the right to procreate, and other rights of a uniquely personal nature. Murgia , 427 U.S. at 312, 96 S.Ct. at 2566, 49 L.Ed.2d at 524, fn. 3 ; see, also, Albright v. Oliver (1994), 510 U.S. 266, 272, 114 S.Ct. 807, 812, 127 L.Ed.2d 114, 122.

Williams at 530, 728 N.E.2d 342.

{¶ 32} We agree with the State that R.C. 2925.11(B)(2)(b) does not require a higher level of scrutiny than that provided by rational basis review. As noted above, Melms argues that but for his confinement he would have been able to comply with R.C. 2925.11(B)(2)(b)(ii), and that he was accordingly treated differently than a non-incarcerated person. We conclude that lawfully confined individuals are not a suspect class warranting extraordinary protection, and that Melms' alleged inability to post bond did not prohibit him from demanding a screening and referral while confined. We further conclude that the statute does not involve a uniquely personal fundamental constitutional right; potential immunity from prosecution is not such a right. Accordingly, rational basis analysis is appropriate.

{¶ 33} As noted in Williams :

Under the rational basis standard, we are to grant substantial deference to the predictive judgment of the General Assembly. See Turner Broadcasting Sys. v. Fed. Communications Comm. (1997), 520 U.S. 180, 195, 117 S.Ct. 1174, 1189, 137 L.Ed.2d 369, 391. The state does not bear the burden of proving that some rational basis justifies the challenged legislation; rather, the challenger must negative every conceivable basis before an equal protection challenge will be upheld. See Heller, 509 U.S. at 320, 113 S.Ct. at 2642, 125 L.Ed.2d at 271.

Id. , at 531, 728 N.E.2d 342.

{¶ 34} We conclude that R.C. 2925.11(B)(2)(b) bears a rational relationship to the legitimate interest of the State in encouraging individuals to seek prompt medical attention or follow-up care for addiction by providing immunity from prosecution as set forth in the statute. Melms' equal protection argument accordingly fails.

{¶ 35} Lastly, Melm's third argument is that the result herein is "completely contrary to the policy considerations underlying the immunity statute." R.C. 2925.11(B)(2)(b) provides a 30-day, and not an unlimited window, to qualify for immunity from prosecution. While Melms argues that he "did exactly what the statute is encouraging people to do," we note that the documentation he submitted reflects that on July 8, 2016, over a month after his overdose, Melms admitted using heroin, and there is no evidence of follow up treatment thereafter until February 9, 2017, seven months later. Granted Melms seemingly was an ideal candidate for immunity, but for the clear and unambiguous 30-day window set forth by the legislature. The remedy lies with the legislature to either eliminate the 30-day restriction or to provide for the exercise of judicial discretion, particularly in those cases of the most vulnerable, often indigent, incarcerated individuals who are unaware of the time limit until after counsel is appointed on the drug offense. In our view, an immediate legislative fix is warranted so that this legislation achieves its laudable goals.

{¶ 36} For the foregoing reasons, Melms' assigned error is overruled, and the judgment of the trial court is affirmed.

TUCKER, J., concurs.

FROELICH, J., concurring:

{¶ 37} On this record, where the Appellant was arrested and incarcerated on unrelated charges and warrants and there is no indication of his requesting or seeking a screening for treatment within the 30 days, I concur in the affirmance.

      We note that R.C. 128.04 further provides as follows:
      (A) Public safety answering point personnel who are certified as emergency service telecommunicators under section 4742.03 of the Revised Code shall receive training in informing individuals who call about an apparent drug overdose about the immunity from prosecution for a minor drug possession offense created by section 2925.11 of the Revised Code.
      (B) Public safety answering point personnel who receive a call about an apparent drug overdose shall make reasonable efforts, upon the caller's inquiry, to inform the caller about the immunity from prosecution for a minor drug possession offense created by section 2925.11 of the Revised Code.

      "Division (B)(2)(b) of this section does not apply to any person who twice previously has been granted an immunity under division (B)(2)(b) of this section. No person shall be granted an immunity under division (B)(2)(b) of this section more than two times." R.C. 2925.11(B)(2)(f).

      "Nothing in this section shall compel any qualified individual to disclose protected health information in a way that conflicts with the requirements of the 'Health Insurance Portability and Accountability Act of 1996,' 104 Pub.L.No. 191, 110 Stat. 2021, 42 U.S.C. 1320d et seq., as amended, and regulations promulgated by the United States department of health and human services to implement the act or the requirements of 42 C.F.R. Part 2." R.C. 2925.11(B)(2)(g).

      We recognize the difficulty involved in seeking such treatment and assessment while incarcerated. Nevertheless, the record does not contain any evidence that such an effort was made and thwarted by Melms' incarceration.

      A survey by this Court of thirty-nine other states with similar statutes establishes none have this time limit.

      We take judicial notice of the fact that at least some jurisdictions are requiring law enforcement to advise overdose victims about the availability of immunity from prosecution. New Carlisle News, "Prosecutor Wilson Advises Law Enforcement on 'Good Samaritan Law' " (March 19, 2017) www.newcarlislenews.net/index.php/local-government/clark-county/2840-prosecutor-wilson-advises-law-enforcement-on-good-samaritan-law (accessed February 16, 2018).


author: SINGER, J.

text:
    STATE of Ohio, Appellee v. Ronnell CLARK, Appellant
    No. WD-17-025
    Court of Appeals of Ohio, Sixth District, Wood County.
    Decided: May 25, 2018
    Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
    William V. Stephenson, Bowling Green, for appellant.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} Appellant, Ronnell M. Clark, appeals from the March 16, 2017 judgment of the Wood County Court of Common Pleas, in which he was sentenced to 12 months incarceration for violating R.C. 2925.03(A)(2), (C)(3)(e), a felony of the third degree. Finding error, we reverse and remand.

Assignments of Error

{¶ 2} Appellant sets forth the following assignments of error:

1) IT WAS ERROR FOR THE TRIAL COURT TO HOLD THAT IT WAS NOT A FOURTH AMENDMENT VIOLATION FOR THE POLICE TO STOP A MOTORIST FOR GOING 69 MPH IN A 70 MPH ZONE, WITH NO OTHER BASIS FOR THE STOP.
2) O.A.C. SECTION 5537-2-09 IS UNCONSTITUTIONALLY VAGUE ON ITS FACE, AND THEREFORE CANNOT LAWFULLY BE USED AS THE BASIS FOR A TRAFFIC STOP.
3) O.A.C. SECTION 5537-2-09 IS UNCONSTITUTIONALLY VAGUE AS APPLIED IN THIS CASE, AND THEREFORE CANNOT LAWFULLY BE USED AS THE BASIS FOR A TRAFFIC STOP, ON THE FACTS PRESENT IN THIS CASE.
4) IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO FAIL TO FIND THAT THE ARRESTING OFFICER LACKED PROBABLE CAUSE TO DO AN INVESTIGATORY SEIZURE AND SEARCH OF APPELLANT.

Facts

{¶ 3} On January 30, 2014, appellant was a passenger of a vehicle ("the vehicle") traveling in a three-lane section of the Ohio Turnpike. Appellant and the driver were allegedly returning to Akron from visiting their aunt in Toledo.

{¶ 4} While traveling in the center lane, the vehicle passed a stationary highway patrol car. In that patrol car was Trooper Alejo Romero III, who testified he was observing eastbound traffic when he noticed the vehicle slowing as it passed him while in the center lane. Romero admitted that, other than the vehicle slowing down, the driver's behavior was not alarming or indicative of criminality.

{¶ 5} Romero proceeded to follow the vehicle closely, in an effort to pace the vehicle and determine its speed. Romero testified there was no other traffic around the vehicle, although the dash-cam video shows a car and truck close ahead of the vehicle as Romero followed. Romero testified that he paced the vehicle at about 66 to 69 m.p.h., and that the posted speed limit was 70 m.p.h.

{¶ 6} Romero followed for approximately one and one-half minutes before activating his patrol lights and signaling for the vehicle to pull over. Romero testified that he believed the driver of the vehicle had violated R.C. 4511.25 and Ohio Adm. Code 5537-2-09. He was only going to issue a warning. The stop occurred during daylight hours, and there was no precipitation or unusual weather conditions.

{¶ 7} The dash-cam video reveals the vehicle immediately complied with the signal and pulled over to the outer shoulder. Romero and another trooper, Kirk Beidelschies, exited the patrol car and approached the passenger side of the vehicle. Romero engaged in conversation with the driver and Beidelschies assessed the interior of the vehicle.

{¶ 8} Romero testified he knew the vehicle was a rental, so he asked the driver for his license and the rental agreement. The driver produced both. Romero said, and the video shows, that Romero assessed the interior of the vehicle as he stood and requested and reviewed the information.

{¶ 9} Romero said he began to detect indicia of criminal activity. Specifically, Romero said he sensed a strong odor of deodorizers, which he stated was atypical of rental cars based on his experience. Furthermore, Romero said he noticed two smartphones and three flip phones, and that both the driver and appellant were visibly nervous.

{¶ 10} Romero asked the driver to step out of the vehicle, and the driver did so. Romero frisked and escorted the driver to his patrol car. Romero testified that he was only going to issue a warning at that point.

{¶ 11} Trooper Beidelschies stood and observed the driver's pat-down, and then re-approached the passenger side of the vehicle. He again seemed to be assessing the interior of the vehicle. Beidelschies questioned appellant while standing at the passenger side of the vehicle, and then returned to the patrol car to request from Romero a piece of paper to write down appellant's information because appellant had no identification. Beidelschies again approached appellant, and stood at the passenger side window conversing with appellant for about a minute.

{¶ 12} According to Romero's testimony, Beidelschies noticed "raw marijuana flakes" in the passenger door handle and requested appellant to step out of the vehicle. Appellant was then frisked and placed in the trooper car. Beidelschies proceeded to search the entire vehicle, and there were approximately 21 pounds of cannabis found in the trunk.

{¶ 13} On March 6, 2014, an indictment was filed charging appellant with possession of cannabis in violation of R.C. 2925.11(A) and (C)(3)(e), a felony of the third degree, and trafficking in cannabis in violation of R.C. 2925.03(A)(2) and (C)(3)(e), also a felony of the third degree.

{¶ 14} Appellant moved to suppress the 21 pounds of cannabis on June 26, 2015. A suppression hearing was held on October 17, 2016.

{¶ 15} At the hearing, Romero and appellant provided their testimony and the court reviewed the dash-cam video. The court further recognized and made the parties stipulate that as Romero followed the vehicle they passed both a truck and a trooper car who had pulled over another vehicle and was parked in the outer shoulder.

{¶ 16} On October 20, 2016, the trial court denied the motion to suppress. The primary rationale was that Romero had probable cause to conduct the search where the original stop was to enforce Ohio Adm. Code 5537-2-09 and R.C. 4511.25(B). The court further noted that even if Romero made a mistake in interpreting and enforcing those laws, that such a mistake would be reasonable and would not render the stop invalid. The court also determined the officers had probable cause to search the vehicle because cannabis flakes were in plain view when the officers assessed the interior of the vehicle.

{¶ 17} On November 4, 2016, appellant entered a no-contest plea. The parties stipulated that the possession conviction would merge with the trafficking conviction.

{¶ 18} The court sentenced appellant to 12 months incarceration and a 6-month license suspension, with the possibility of 3 years postrelease control. The sentencing entry was journalized on March 16, 2017, and appellant timely appealed.

Standard of Review

{¶ 19} "Appellate review of a motion to suppress presents mixed questions of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact." State v. Roberts , 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. The appellate court must accept the trial court's findings of fact if supported by competent, credible evidence. State v. Steed , 2016-Ohio-8088, 75 N.E.3d 816, ¶ 11 (6th Dist.). A de novo standard applies to determine if the facts satisfy the applicable legal standard. State v. Bragg , 6th Dist. Lucas No. L-07-1162, 2007-Ohio-5993, 2007 WL 3317272, ¶ 4.

First Assignment of Error

{¶ 20} Appellant first argues Trooper Romero violated appellant's right against unreasonable searches and seizures when Romero stopped the vehicle for driving below the speed limit in the center lane of the Ohio Turnpike. Appellee contends Romero witnessed traffic violations under Ohio Adm. Code 5537-2-09 and R.C. 4511.25(B), and thus had cause to stop the vehicle.

{¶ 21} "The Fourth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches and seizures." State v. Emerson , 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. When a police officer stops a vehicle and detains its occupants, a seizure within the meaning of those provisions has occurred. Delaware v. Prouse , 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Accordingly, to effectuate a traffic stop, an officer must have probable cause to believe the driver is violating a traffic or equipment regulation or there is articulable and reasonable suspicion that the vehicle or its occupant is subject to seizure for violating the law. Id. at 661-663, 99 S.Ct. 1391.

{¶ 22} When police stop a vehicle without either probable cause or a reasonable articulable suspicion of criminal activity, the seizure is violative of constitutional rights and evidence derived from such a stop must be suppressed. Mapp v. Ohio , 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). "Both passengers and the driver have standing regarding the legality of a stopping because when the vehicle is stopped, they are equally seized, and their freedom of movement is equally affected." State v. Carter , 69 Ohio St.3d 57, 63, 630 N.E.2d 355 (1994).

{¶ 23} A "de minimis violation of traffic laws" is generally sufficient to justify a stop. See State v. Dukes , 4th Dist. Scioto Nos. 16CA3745, 16CA3760, 2017-Ohio-7204, 2017 WL 3446816, ¶ 16 ; Whren v. U.S. , 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

{¶ 24} Here, appellant was a passenger in a rental vehicle which was traveling 66 to 69 m.p.h. in the center of a three-lane section of the Ohio Turnpike.

{¶ 25} We note the Ohio Turnpike is a public highway and "Ohio laws governing the operation of motor vehicles on public highways * * * apply to the Ohio Turnpike." State v. Koder , 6 Ohio App.3d 61, 62, 453 N.E.2d 1116 (6th Dist.1982).

{¶ 26} The vehicle passed Trooper Romero's stationary police car. Romero followed and paced the vehicle, eventually signaling and effectuating a traffic stop.

{¶ 27} Romero's testimony at the October 17, 2016 suppression hearing reveals he was enforcing Ohio Adm. Code 5537-2-09 and R.C. 4511.25(B) when stopping the vehicle. Specifically, the transcript of the suppression hearing reflects as follows:

[Tr. Romero]: Well, there's two different rules. One of them is the Ohio Administrative Code and it's 5537-2-09 and that is travel lanes and that is as it relates to the turnpike. As I understand that rule, a driver shall stay in the right lane and shall not move from that lane unless they are passing somebody or at least going the speed limit. So as I understand that rule, if you are going below the speed limit and you are not passing anybody, you are supposed to be in the right lane. That rule also indicates that you cannot be in the far left lane at all unless you are passing. So even if you are going below the speed limit or above the speed limit or anything, you can't be in the far left lane at all unless you are passing.
[Prosecutor]: Is that any different than the Ohio Revised Code?
[Tr. Romero]: The Ohio Revised Code-and that's-I think that section is entitled Lanes of Travel. That is 4511.25 and subsection B. It indicates that a driver shall stay in the right lane and shall not deviate unless they are turning left or passing. So it doesn't indicate anything about speed as the Ohio Administrative Code does.
[Prosecutor]: And were you familiar with those-that Administrative Code and that statute back on January 30th of 2014?
[Tr. Romero]: Yes, sir. That was the reason for the stop.
* * *

{¶ 28} Ohio Adm. Code 5537-2-09 provides:

The operator of a motor vehicle shall drive in the outer and center traffic lanes in the designated direction for traffic, except when lawfully crossing from one lane to another. The operator of a motor vehicle shall use the inner traffic lanes for passing only. Where three traffic lanes are provided for the same direction of travel, heavy commercial vehicles and vehicles operated at a rate of speed below the maximum in effect shall drive in the outer lane and shall use the center lane for passing only.

{¶ 29} R.C. 4511.25(B), in pertinent part, provides:

(1) Upon all roadways any vehicle or trackless trolley proceeding at less than the prevailing and lawful speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, and far enough to the right to allow passing by faster vehicles if such passing is safe and reasonable, except under any of the following circumstances:
(a) When overtaking and passing another vehicle or trackless trolley proceeding in the same direction;
(b) When preparing for a left turn;
(c) When the driver must necessarily drive in a lane other than the right-hand lane to continue on the driver's intended route.

See R.C. 4511.25(B)(1)(a)-(c).

{¶ 30} In this case, and based on review of the language of Ohio Adm. Code 5537-2-09 and R.C. 4511.25(B)(1), we find the regulation improperly adds an element of speed to the statute.

{¶ 31} More specifically, and with regard to what speed triggers the duty to drive in the far-right lane, R.C. 4511.25(B)(1) states: "less than the prevailing and lawful speed of traffic at the time and place and under the conditions then existing[;]" whereas, Ohio Adm. Code 5537-2-09 states: "below the maximum in effect."

{¶ 32} These triggering speeds are inconsistent where "the maximum in effect," Id. , is actually intended to mean the posted speed limit. R.C. 4511.25 does not restrict use of the center lane on a three-lane highway to only traveling at the exact rate indicated by the posted speed limit, because it only requires a driver to be in the far-right lane when he or she is not traveling at a rate of speed comparable to other reasonable and lawful drivers at that time and under those conditions.

{¶ 33} Based on review of the record, including the dash-cam video and testimony of Romero and appellant, we find no competent, credible evidence to support the claim that the vehicle appellant was in was traveling "less than the prevailing and lawful speed of traffic at the time and place and under the conditions then existing." See R.C. 4511.25(B)(1) ; accord State v. Huth , 133 Ohio App.3d 261, 727 N.E.2d 931 (7th Dist.1999) (enforcing statute where driver impeded flow of traffic by remaining in left lane of multi-lane highway while other vehicles passed to the right.).

{¶ 34} We, therefore, reject Romero's claim that the vehicle was operated in violation of R.C. 4511.25(B) before he stopped it.

{¶ 35} Romero stated the vehicle traveled between 66 and 69 m.p.h. as he paced behind and observed it. Our review of the video reflects other vehicles not only traveled in the center lane ahead of the trooper and vehicle, but also that those other vehicles were traveling at a comparable rate of speed. Thus, we find the vehicle appellant was in traveled at the prevailing speed of traffic comparable to other reasonable and lawful drivers, at that time and under those weather conditions, in compliance with R.C. 4511.25(B)(1).

{¶ 36} Consequently, our review of whether Romero had reason to stop appellant solely regards whether the vehicle was operated in violation of Ohio Adm. Code 5537-2-09.

{¶ 37} However, we will not reach and address this particular issue because we determine that Ohio Adm. Code 5537-2-09 is invalid where it conflicts with R.C. 4511.25(B)(1). In particular, we find they both cover the same subject matter, and that Ohio Adm. Code 5537-2-09 improperly adds to the law provided in R.C. 4511.25(B)(1).

{¶ 38} "Administrative rules are designed to accomplish the ends sought by the legislation enacted by the Ohio General Assembly." GMS Mgt. Co. v. Ohio Civ. Rights Comm. , 2016-Ohio-7486, 64 N.E.3d 1025, ¶ 16 (8th Dist.). Therefore, "rules promulgated by administrative agencies are valid and enforceable unless unreasonable or in conflict with statutory enactments covering the same subject matter." State ex rel. Curry v. Indus. Com. of Ohio , 58 Ohio St.2d 268, 269, 389 N.E.2d 1126 (1979). See also Ellis v. Ohio Turnpike Com. , 162 Ohio St. 86, 120 N.E.2d 719 (1954), paragraph one of the syllabus ("The Ohio Turnpike Commission is a statutory body and possesses only such authority and powers as are conferred on it by enactments of the General Assembly.").

{¶ 39} Further, an administrative regulation "may not add to or subtract from" the legislative enactment. See Cent. Ohio Joint Vocational School Dist. Bd. of Edn. v. Admr., Ohio Bur. of Emp. Servs. , 21 Ohio St.3d 5, 10, 487 N.E.2d 288 (1986). "If it does, the rule clearly conflicts with the statute, and the rule is invalid." See State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm. , 117 Ohio St.3d 441, 2008-Ohio-1261, 884 N.E.2d 589, ¶ 14.

{¶ 40} As an example of a regulation invalidated for being inconsistent with a statute, we point to Hoffman v. State Med. Bd. , 113 Ohio St.3d 376, 2007-Ohio-2201, 865 N.E.2d 1259. In Hoffman , the Supreme Court of Ohio ("the Hoffman court") held Ohio Adm. Code 4731-24-04(A) was invalid because it conflicted with R.C. 4760.09. Id. at paragraph one of the syllabus. Ohio Adm. Code 4731-24-04(A)

was adopted by the State Medical Board of Ohio ("the Board") under the authority given in R.C. 4760.19, which states:

The state medical board may adopt any rules necessary to govern the practice of anesthesiologist assistants, the supervisory relationship between anesthesiologist assistants and supervising anesthesiologists, and the administration and enforcement of this chapter. Rules adopted under this section shall be adopted in accordance with Chapter 119. of the Revised Code.

{¶ 41} At that time, Ohio Adm. Code 4731-24-04(A)(2007) stated:

Nothing in this chapter of the Administrative Code or Chapter 4760. of the Revised Code shall permit an anesthesiologist assistant to perform any anesthetic procedure not specifically authorized by Chapter 4760. of the Revised Code, including epidural and spinal anesthetic procedures and invasive medically accepted monitoring techniques. For purposes of this chapter of the Administrative Code, 'invasive medically accepted monitoring techniques' means pulmonary artery catheterization, central venous catheterization, and all forms of arterial catheterization with the exception of brachial, radial and dorsalis pedis cannulation.

{¶ 42} The Board argued this regulation was valid, and that it explicitly prohibited anesthesiologist assistants from performing epidural and spinal anesthetic procedures. Id. at ¶ 3. The appellant, Joseph Hoffman, a certified anesthesiologist's assistant, argued the regulation conflicted with R.C. 4760.09, which lists the authorized activities of anesthesiologist assistants. Id. at ¶ 4.

{¶ 43} The Board pointed to the legislative history of the statute to support that no conflict existed. The Board argued that the legislature did not intend to allow assistants to perform the procedures, and the argument hinged on the meaning of the word "assist" in the statute. Id. at ¶ 18.

{¶ 44} Hoffman, to the contrary, argued that use of the word "assist" was to allow assistants to "insert the needle under the direct supervision of the anesthesiologist during epidural or spinal anesthetic procedures." Id.

{¶ 45} The Hoffman court agreed the outcome depended on the meaning of the word "assist." Id. at ¶ 19. In analyzing the meaning, the court determined "assist" meant "[t]o carry out procedures as requested by the supervising anesthesiologist." Id. at ¶ 25. The court then stated that "[b]ecause the administrative rule prohibits anesthesiologist assistants from performing procedures that the statute permits, the rule clearly conflicts with the statute[.]" Id. at ¶ 34. The regulation was held to be invalid and, thus, unenforceable. Id. at ¶ 36.

{¶ 46} Here, Romero's interpretation of Ohio Adm. Code 5537-2-09 requires that only those cars traveling exactly 70 m.p.h. may use the center lane of a three-lane highway (assuming 70 m.p.h. is the posted speed limit). Anyone traveling 69 m.p.h. or under in that center lane, where the posted limit is 70 m.p.h., hence, is subject to being stopped pursuant to this regulation unless he or she is actively passing or overtaking another vehicle.

{¶ 47} R.C. 4511.25(B) does not have this strict speed requirement. Even Romero recognized this twice in open court. First, he responded in the negative to a question of whether speed was relevant to R.C. 4511.25(B). Second, he testified R.C. 4511.25(B)"doesn't indicate anything about speed as the Ohio Administrative Code does."

{¶ 48} Consistent with the law governing statutory preemption of administrative regulations as articulated in Hoffman , we find the traffic stop here was neither based on a violation of law nor on a valid and enforceable regulation. See Koder , 6 Ohio App.3d at 63, 453 N.E.2d 1116 (stating " R.C. 5537.16 authorizes the Turnpike Commission to issue regulations preempting the Revised Code with respect to speed limits, axle loads, vehicle loads and vehicle dimensions[,]" but recognizing such authorization is limited to dealing with problems not dealt with by the Revised Code).

{¶ 49} Accordingly, appellant's first assigned error is found well-taken and, although this holding is ground to reverse, we review and address the remaining assigned errors.

Second and Third Assignments of Error

{¶ 50} Appellant next argues Ohio Adm. Code 5537-2-09 cannot be used as a basis for a traffic stop where it is unconstitutionally vague on its face and as applied in this case. Appellee argues Ohio Adm. Code 5537-2-09 is constitutional because it clearly and precisely prohibits certain conduct, and because the driver of the vehicle was not deprived of fair warning.

{¶ 51} We initially note that under federal constitutional law, "[i]t is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie , 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). Therefore, we dispose of the second assigned error and only address the third.

{¶ 52} "Under the tenets of due process, an ordinance is unconstitutionally vague under a void-for-vagueness analysis when it does not clearly define what acts are prohibited under it." Viviano v. City of Sandusky , 2013-Ohio-2813, 991 N.E.2d 1263, ¶ 13 (6th Dist.), citing Grayned v. City of Rockford , 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ; State v. Tanner , 15 Ohio St.3d 1, 472 N.E.2d 689 (1984) ; Norwood v. Horney , 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115.

{¶ 53} A law is vague in this manner when it "trap[s] the innocent by not providing fair warning." Viviano at ¶ 13, citing Grayned at 108, 92 S.Ct. 2294.

{¶ 54} To pass muster under this doctrine, an administrative regulation must survive the tripartite analysis set forth in Grayned . See , e.g. , State v. Whites Landing Fisheries, LLC , 2017-Ohio-4021, 91 N.E.3d 315, ¶ 16 (6th Dist.) ; State v. McKnight , 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 239 ; In re Jim's Sales, Inc. , 9th Dist. Lorain No. 04CA008601, 2005-Ohio-4086, 2005 WL 1876173, ¶ 20-21 ; State v. White , 3d Dist. Marion No. 9-96-66, 1997 WL 180307, at *4-5 (Mar. 28, 1997).

{¶ 55} The three prongs are: (1) the regulation must provide fair warning to the ordinary citizen of what conduct is proscribed, (2) the regulation must preclude arbitrary, capricious, and discriminatory enforcement, and (3) the regulation must not impinge constitutionally protected rights. See Viviano at ¶ 15, citing Grayned at 108-109, 92 S.Ct. 2294.

{¶ 56} Under the first prong of Grayned , a regulation must be comprehensible to a person of ordinary intelligence, to the extent that it would inform such a person what conduct is prohibited. Viviano at ¶ 16. As applied, the regulation thus must have been comprehensible to the driver of the vehicle in which appellant was, to the extent that it would inform the driver what conduct is prohibited.

{¶ 57} At issue here is the language of Ohio Adm. Code 5537-2-09, su pra . As articulated above, we find the regulation prohibits vehicles from traveling at a speed below the posted limit, in the center lane of a three-lane roadway, unless the vehicle is passing and overtaking another vehicle to its right. Although we find Ohio Adm. Code 5537-2-09 indicates what is prohibited, we are yet concerned as applied to the particular facts of appellant's case.

{¶ 58} Specifically, we find that a large traffic sign was located within a reasonable distance from where the vehicle was stopped. See Ohio Adm. Code 5537-2-02 ("No person shall fail to comply with any traffic-control sign, signal, marking or device, unless otherwise directed by a police officer."); R.C. 4511.12(A) ("No pedestrian, driver of a vehicle, or operator of a streetcar or trackless trolley shall disobey the instructions of any traffic control device[.]").

{¶ 59} The sign at issue requests trucks and slower traffic to use the right two lanes. See R.C. 4511.351(B) ("The director of transportation shall erect 'keep right except to pass' signs along the right-hand roadway of a freeway that consists of at least three lanes and is part of the interstate system."). There are two arrows pointing and directing such drivers to stay in these lanes. Appellant saw the sign, although he could not confirm the driver did. The same type of sign was visible in the dash-cam video, on the opposite side of the turnpike, after appellant was placed in the trooper car and arrested. We find this sign would certainly cause confusion with regard to, and even contradict, the regulation promulgated in Ohio Adm. Code 5537-2-09.

{¶ 60} Moreover, there was evidence in the record showing the vehicle actually passed another car and, as stipulated to in open court, also passed an active traffic stop while driving in the center lane and being followed by Romero. See R.C. 4511.213(A)(1), (C) (requiring drivers, if possible, to "change lanes into a lane that is not adjacent to that of the stationary public safety vehicle").

{¶ 61} Consequently, we find the various applicable laws and directive in the sign, under the circumstances, would certainly cause confusion as to what conduct is proscribed. Accordingly, appellant's third assignment of error is well-taken.

Fourth Assignment of Error

{¶ 62} Appellant's last argument is that despite whether the traffic stop was lawful the subsequent investigatory search and seizure of appellant were unconstitutional because the arresting officers were on a fishing expedition. Appellee contends the arresting officers noticed indicia of criminal activity subsequent to making the stop and, thus, had reasonable, articulable suspicion to conduct the search and make the seizure.

{¶ 63} As stated in our analysis of the first assigned error, we find Trooper Romero did not have a lawful basis to stop the vehicle. Nevertheless, we address this fourth assigned error and find another ground to reverse.

{¶ 64} The lawfulness of an investigatory stop is governed by Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{¶ 65} In State v. Williams , 51 Ohio St.3d 58, 60-61, 554 N.E.2d 108 (1990), the Supreme Court of Ohio stated that "in order to warrant a brief investigatory stop pursuant to Terry , the police officer involved must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. , citing Terry at 21, 88 S.Ct. 1868.

{¶ 66} Such an investigatory stop "must be viewed in light of the totality of the surrounding circumstances presented to the police officer." State v. Freeman , 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus. The standard for reviewing such conduct is an objective one: "would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief the action taken was appropriate?" Terry , supra , at 21-22, 88 S.Ct. 1868 ; United States v. Wright , 565 F.2d 486, 489 (8th Cir.1977). That is, "an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The officer must be able to articulate something more than an inchoate and unparticularized suspicion or hunch that something is wrong. State v. Rivera , 6th Dist. Lucas No. L-04-1369, 2006-Ohio-1867, 2006 WL 964726, ¶ 18, citing Terry at 27, 88 S.Ct. 1868, and Alabama v. White , 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

{¶ 67} "An officer's intuition, even if ultimately confirmed, will not provide a constitutional basis for an investigatory stop." Id. , citing State v. Mesley , 134 Ohio App.3d 833, 840, 732 N.E.2d 477 (1999).

{¶ 68} In this case, appellee specifically argues the arresting officers had reasonable suspicion illegal activity was occurring because: (1) appellant was in a rented vehicle when pulled over; (2) there were two smartphones and three "flip phones" in the vehicle; (3) appellant and the driver were nervous; (4) the vehicle smelled of strong deodorizers; (5) the driver provided vague answers to questions from the officer; and, (6) there were "marijuana flakes" inside the vehicle in plain view.

{¶ 69} We have reviewed the dash-cam video and testimony in the record, and note that aside from Romero's testimony, there is no additional competent, credible evidence to corroborate that "marijuana flakes" were inside the vehicle and in plain view. Trooper Beidelschies did not testify at the suppression hearing, and there was no evidence in the record in the form of pictures, chemical testing, reported scent of the flakes, or otherwise, to support that any plant "flakes" seen by Beidelschies were indeed an illicit drug.

{¶ 70} Nevertheless, even had the cannabis flakes been present, we cannot say this alone would be sufficient to allow a custodial search of any driver, passenger, or vehicle (so long as R.C. 2935.26 did not otherwise apply under the circumstances) because that amount of drugs would only be a minor misdemeanor. See , e.g. , State v. Grubbs , 2017-Ohio-41, 80 N.E.3d 1075, ¶ 36-44 (6th Dist.).

{¶ 71} In Grubbs , we held that under the totality of the circumstances an officer was not justified in searching Grubbs for a minor misdemeanor offense because the search was not in compliance with R.C. 2935.26. Id. at ¶ 36. In that case, this court reached that conclusion despite testimony from the officer that, as he approached the vehicle after a properly initiated traffic stop, he smelled cannabis, and he saw cash, a pipe, a straw with white powder residue, a pill and pill bottle, and cannabis "roaches" and flakes. Id. at ¶ 37-38. We determined that only a citation should have been given, not a full custodial search. Id. at ¶ 43.

{¶ 72} Therefore, consistent with Grubbs , even if we were to find the vehicle was properly stopped under either Ohio Adm. Code 5537-2-09 or R.C. 4511.25(B) in this case, the totality of the circumstances suggest Troopers Romero and Beidelschies were not justified in searching the driver, car or appellant for the alleged minor misdemeanors. See Ohio Adm. Code 5537-7-01 ; R.C. 4511.25(D).

{¶ 73} Appellee lastly argues that, despite whether the investigatory search was unconstitutional, exceptions to the warrant requirement apply to allow admissibility of any otherwise tainted evidence.

{¶ 74} "Warrantless searches are per se unreasonable." State v. Belcher , 2d Dist. Montgomery No. 24385, 2011-Ohio-5015, 2011 WL 4529405, ¶ 39, citing Katz v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "Warrantless searches and seizures are not illegal, however, if one of the several exceptions to the Fourth Amendment's warrant requirement is demonstrated." Id.

{¶ 75} The first exception appellee applies is the independent source rule, which provides that "evidence observed by police during an illegal entry need not be excluded if the evidence is later discovered during the execution of a valid search warrant issued on information wholly unconnected to the prior entry." Carter , 69 Ohio St.3d at 68, 630 N.E.2d 355. Generally, the requirements are: "(1) no information presented in the affidavit for the warrant was seen during the initial entry, and (2) the agents' decision to seek the warrant was not prompted by what they had seen during the initial entry." Id.

{¶ 76} Here, no warrant was ever sought by the arresting officers. Nevertheless appellee claims that, when considered along with the plain view doctrine, the independent source rule applies and the evidence should not be excluded. Appellee points to State v. McLaughlin , 6th Dist. Erie No. E-12-073, 2014-Ohio-1150, 2014 WL 1344199.

{¶ 77} In McLaughlin , we held evidence should not be excluded because "[the officer] seized the evidence in the car pursuant to the plain view doctrine, independent of the stop and pat down of appellant[.]" Id. at ¶ 16. McLaughlin was seen in a public parking lot, by an anonymous tipster who believed he was involved in a drug transaction. The tipster called in a complaint and the officer responded and approached McLaughlin. McLaughlin was no longer in the parking lot, however, his vehicle was running, unattended and parked on a public street. A pat down ensued and nothing was found on McLaughlin's person. However, the officer began shining his flashlight in the general area to see if any contraband had been discarded. The officer also shined his light into McLaughlin's vehicle and noticed "packages of marijuana on the center console." Id. at ¶ 3. A subsequent search of the vehicle revealed two cellphones and over $6,000 in cash.

{¶ 78} McLaughlin's trial counsel did not move to suppress any evidence, and on appeal McLaughlin claimed this was ineffective assistance. Id. at ¶ 9. We disposed of the claim because we found he would not have been successful in suppressing the evidence. Our rationale was based on the plain view doctrine. However, appellee now argues the independent source rule was implicated because we stated that the officer "discovered the evidence in the car by means unrelated to the initial stop and pat down of appellant." Id. at ¶ 13. We did not consider the constitutionality of the stop and pat down. Id. at ¶ 16.

{¶ 79} We can distinguish McLaughlin from the case here, however. More specifically, we find in McLaughlin there was an anonymous tip, and the perpetrator's vehicle was parked in a parking lot and along a public street. Whereas, appellant here was traveling in a vehicle along a highway and there was no anonymous tip to give rise to reasonable suspicion or probable cause.

Romero testified there was no tip prior to stopping the vehicle.

{¶ 80} The second exception appellee applies is the inevitable discovery doctrine, which provides that "illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation." State v. Lewis , 6th Dist. Lucas Nos. L-09-1224, 2010-Ohio-4202, 2010 WL 3480728, ¶ 48, quoting State v. Perkins , 18 Ohio St.3d 193, 480 N.E.2d 763 (1985), syllabus. "[T]he state must show that there is a high degree of probability that police would have discovered the derivative evidence apart from the unlawful conduct." Id. , citing Perkins at 196, 480 N.E.2d 763.

{¶ 81} Here, we have determined both the stop and subsequent search of the vehicle and seizure of appellant were unconstitutional. Without the illegal stop, search and seizure, we are not sure how the drugs found would have been inevitably discovered.

{¶ 82} Accordingly, we find appellant's fourth assignment of error well-taken.

Conclusion

{¶ 83} The March 16, 2017 judgment of the Wood County Court of Common Pleas is reversed. This cause is remanded to the trial court for further proceedings consistent with this judgment. Appellee is ordered to pay the costs of this appeal pursuant to App. R. 24.

Judgment reversed.

Thomas J. Osowik, J.

Christine E. Mayle, P.J.

CONCUR.


text:
    IN RE MARRIAGE OF Sofia DANG, respondent, and Licong LI, petitioner.
    123595
    Supreme Court of Illinois.
    JULY 11, 2018
    Petition for Leave to Appeal Denied.


text:
    IN RE A.B., a Minor
    (People State of Illinois, respondent, v. Michael B., petitioner).
    No. 123698
    Supreme Court of Illinois.
    July 10, 2018
    Petition for Leave to Appeal Denied.


text:
    IN RE MARRIAGE OF Danielle FATKIN, Appellee, and Todd Fatkin, Appellant.
    No. 123602
    Supreme Court of Illinois.
    June 27, 2018
    Petition for Leave to Appeal Allowed.