State v. Weideman - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State v. Weideman, 94 Ohio St.3d 501, 2002-Ohio-1484.]

THE STATE OF OHIO, APPELLANT, v. WEIDEMAN, APPELLEE.
[Cite as State v. Weideman (2002), 94 Ohio St.3d 501.]
Criminal law -- Where law enforcement officer, acting outside statutory
territorial jurisdiction, stops and detains a motorist for an offense
committed and observed outside officer's jurisdiction, the seizure of the
motorist by the officer is not unreasonable per se under the Fourth
Amendment -- Officer's statutory violation does not require suppression
of all evidence flowing from the stop.
(Nos. 00-1869 and 00-2126 -- Submitted October 31, 2001 -- Decided April 3,
2002.)
CERTIFIED by and APPEAL from the Court of Appeals for Portage County, No. 98-
P-0109.
__________________
SYLLABUS OF THE COURT
Where a law enforcement officer, acting outside the officer's statutory territorial
jurisdiction, stops and detains a motorist for an offense committed and
observed outside the officer's jurisdiction, the seizure of the motorist by
the officer is not unreasonable per se under the Fourth Amendment.
Therefore, the officer's statutory violation does not require suppression of
all evidence flowing from the stop.
__________________

MOYER, C.J. The state of Ohio appeals the judgment of the Portage
County Court of Appeals that reversed the trial court's denial of defendant's
motion to suppress following her conviction for driving while under the influence
of alcohol.

SUPREME COURT OF OHIO

On May 24, 1998, Ravenna Police Officer David S. Rarrick was working
the midnight shift. Officer Rarrick left the Ravenna city limits to check on a
fellow Ravenna police officer, who had failed to radio his status to the dispatcher.
After confirming that the officer was in no distress, Officer Rarrick drove back
toward Ravenna.

While stopped at an intersection approximately half a mile outside
Ravenna, Officer Rarrick observed a car coming toward him, traveling "well left
of center." As he observed the car, it went off the right side of the road twice and
again traveled left of center.

Officer Rarrick stopped the vehicle and radioed the police dispatcher to
request that the Ohio State Highway Patrol or the sheriff's office be sent to the
scene because he was making a traffic stop outside his jurisdiction. As Officer
Rarrick approached the car, driven by defendant Pamela Weideman, he smelled a
strong odor of alcohol and observed that her eyes were bloodshot. Officer Rarrick
performed a horizontal gaze nystagmus test and noticed that Weideman's eyes
could not smoothly follow a moving object. Based on these indicators, Officer
Rarrick had Weideman step out of the car to perform a finger-to-nose sobriety test
to ensure that he had enough reason to detain Weideman until the state police
arrived. Officer Rarrick then informed Weideman that she was being detained
until the state police arrived, and retained possession of her car keys, driver's
license, vehicle registration, and insurance card. He did not arrest Weideman.

Approximately ten to fifteen minutes after Officer Rarrick stopped
Weideman, Sergeant Dunbar of the Ohio State Highway Patrol arrived. After
speaking to Officer Rarrick, Sergeant Dunbar conducted his own series of field
sobriety tests. Sergeant Dunbar concluded that Weideman was under the
influence of alcohol and placed her under arrest.

Weideman was transported to the Ravenna Highway Patrol Post, where
she submitted to a breath-alcohol test, which registered 0.239 grams of alcohol
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January Term, 2002
per two hundred ten liters of breath. As a result, Weideman was cited for driving
under the influence of alcohol in violation of R.C. 4511.19(A)(1) and driving with
a prohibited breath-alcohol content in violation of R.C. 4511.19(A)(3).

Weideman filed a motion to suppress in which she argued that Officer
Rarrick had "no lawful cause" to stop and detain her, and that there was no
probable cause to arrest her without a warrant. The trial court overruled
Weideman's motion to suppress because, in the words of the trial court, Officer
Rarrick had the "right to be in the area of the stop" and "noticed what could be
perceived as a hazard."

The court of appeals reversed and remanded, holding that the trial court
erred when it overruled defendant's motion to suppress, because "the observed
traffic offense and the stop and detention occurred outside of Officer Rarrick's
territorial jurisdiction." R.C. 2935.03(A)(1) governs a police officer's jurisdiction
to arrest and states:

"A sheriff, deputy sheriff, marshal, deputy marshal, municipal police
officer, township constable, police officer of a township or joint township police
district * * * shall arrest and detain, until a warrant can be obtained, a person
found violating, within the limits of the political subdivision * * * in which the
peace officer is appointed, employed, or elected, a law of this state, an ordinance
of a municipal corporation, or a resolution of a township."

The court of appeals reasoned that the extraterritorial stop in this case was
unlawful and thus per se unreasonable under the Fourth Amendment.

The court of appeals certified a conflict pursuant to S.Ct. Prac.R. IV,
finding that its judgment conflicted with those of the Ninth District in State v.
Filler (1995), 106 Ohio App.3d 731, 667 N.E.2d 54; the Sixth District in State v.
Tennison (Apr. 14, 1989), Wood App. No. WD-88-41, unreported, 1989 WL
35534; the Fourth District in State v. Brown (Apr. 16, 1999), Pickaway App. No.
98CA27, unreported, 1999 WL 259649; and the Second District in State v.
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SUPREME COURT OF OHIO
Hammons (Aug. 28, 1998), Montgomery App. No. 16931, unreported, 1998 WL
543363.

The case is now before this court upon our determination that a conflict
exists (case No. 00-1869) and upon the allowance of a discretionary appeal (case
No. 00-2126).

The question certified by the court of appeals is "[w]hether a stop and
detention of a motorist by a police officer, who is beyond his or her jurisdictional
limits, for an offense observed and committed outside the officer's jurisdiction
automatically constitutes a per se unreasonable seizure under the Fourth
Amendment, thereby triggering the mandatory application of the exclusionary
rule to suppress all evidence flowing from the stop." (Emphasis sic.) We apply
previous decisions of this court and reverse the judgment of the court of appeals.

We find no precedent in the decisions of this court for the holding of the
court of appeals. Rather, this court has consistently considered the totality of the
circumstances in determining whether a violation of a statutory standard is
unreasonable per se thus requiring suppression of evidence.
In
Kettering v. Hollen (1980), 64 Ohio St.2d 232, 234-235, 18 O.O.3d
435, 437, 416 N.E.2d 598, 600, we stated, "The exclusionary rule has been
applied by this court to violations of a constitutional nature only," and continued,
"It is clear * * * that the exclusionary rule will not ordinarily be applied to
evidence which is the product of police conduct violative of state law but not
violative of constitutional rights."

The issue in Hollen was similar to that in the case sub judice. A police
officer violated state law by making an extraterritorial warrantless arrest. A
significant difference between the two cases is that in Hollen the police officer
made the extraterritorial arrest "based on probable cause that a crime was
committed within the officer's jurisdiction, and * * * the officer was in hot pursuit
of the misdemeanant." Id. at syllabus. (R.C. 2935.03 had not yet been amended
4

January Term, 2002
to authorize extraterritorial arrests after hot pursuit.) Here the probable cause for
the detention of the defendant was created outside the detaining officer's
jurisdiction. There was no hot pursuit.
In
Hollen, we applied well-settled law, citing State v. Myers (1971), 26
Ohio St.2d 190, 196, 55 O.O.2d 447, 450, 271 N.E.2d 245, 249 (exclusionary rule
would not be applied to statutory violations falling short of constitutional
violations, unless legislation required suppression); see, also, Hilliard v. Elfrink
(1996), 77 Ohio St.3d 155, 672 N.E.2d 166; State v. Droste, 83 Ohio St.3d 36,
697 N.E.2d 620, syllabus ("Absent a violation of a constitutional right, the
violation of a statute does not invoke the exclusionary rule"). We are not
persuaded that we should change the standard used to decide whether a statutory
violation rises to the level of a constitutional violation.

A balancing analysis has been used by this court in similar cases where
there was a violation of state statute. In Hollen, the court considered the totality
of the circumstances to determine whether the police officer had sufficient
probable cause to make the stop. It was clear that the police officer in Hollen had
probable cause to stop and arrest the driver after witnessing the driver's erratic
driving. Hollen, 64 Ohio St.2d at 235, 18 O.O.3d at 437, 416 N.E.2d at 600. The
opinion continues, "[W]e find no Fourth Amendment violation, given the
probable cause to make the seizure." Id. See, also, State v. Downs (1977), 51
Ohio St.2d 47, 63-65, 5 O.O.3d 30, 39-40, 364 N.E.2d 1140, 1150-1151 (sheriff's
violation of Crim.R. 41, in not returning a search warrant to the judge, did not rise
to the level of a constitutional violation); State v. Davis (1978), 56 Ohio St.2d 51,
56, 10 O.O.3d 87, 89-90, 381 N.E.2d 641, 645 (taking of a minor's fingerprints in
violation of R.C. 2151.313 does not require the exclusion of fingerprint evidence);
State v. Geraldo (1981), 68 Ohio St.2d 120, 126-129, 22 O.O.3d 366, 370-372,
429 N.E.2d 141, 146-148 (violation of R.C. 4931.28, prohibiting telephone
wiretapping, does not require suppression of evidence); State v. Griffith (1996),
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SUPREME COURT OF OHIO
74 Ohio St.3d 554, 660 N.E.2d 710 (police violation of defendant's right to
counsel under R.C. 2935.20 does not require suppression of evidence of breath-
alcohol content); State v. Droste, Ohio St.3d at 39-40, 697 N.E.2d at 623 (state
liquor control officers' violation of R.C. 5502.61, by making a stop outside their
authority, does not trigger exclusionary rule, because defendant's constitutional
rights were not violated).

In all of these cases a law enforcement officer violated a statute. But in
each, the violation of a statute did not rise to the level of a constitutional violation.
However, the court has used the same basic analysis in at least one other case to
determine that the state statutory violation did rise to the level of a constitutional
violation. In State v. Jones (2000), 88 Ohio St.3d 430, 432, 727 N.E.2d 886, 888,
police officers arrested a person for jaywalking and thereby violated R.C.
2935.26(A), which prohibits arrests for minor misdemeanors. The court applied a
balancing test and stated that "the government's interests in making a full
custodial arrest for a minor misdemeanor offense, absent any R.C. 2935.26
exceptions, are minimal and are outweighed by the serious intrusion upon a
person's liberty and privacy that, necessarily, arises out of an arrest." Id. at 440,
727 N.E.2d at 894-895. Under this rationale, we concluded that a full custodial
arrest for a minor offense was an unreasonable seizure and therefore a
constitutional violation. The Jones case demonstrates that although we have not
adopted a per se rule, the violation of a state statute may rise to the level of a
constitutional violation.
In
Jones, we applied the two-prong test adopted by the United States
Supreme Court for determining whether a governmental action violates the
reasonableness requirement of the Fourth Amendment. 88 Ohio St.3d at 437, 727
N.E.2d at 892, citing Wyoming v. Houghton (1999), 526 U.S. 295, 299, 119 S.Ct.
1297, 1300, 143 L.Ed.2d 408, 414. The first prong is to determine whether the
action was regarded as an unlawful seizure when the Fourth Amendment was
6

January Term, 2002
adopted. We restated the second prong as follows: "If, however, at the time of
the Fourth Amendment's ratification there was no clear practice either allowing or
forbidding the type of governmental action at issue, then its reasonableness is
judged by weighing the competing interests involved." Id.

The governmental action in the case sub judice is a stop and detention.
Under the first prong of the Fourth Amendment reasonableness test we must
attempt to discern whether, at common law in 1791, police officers, who were
outside their statutory jurisdiction, were permitted to stop and detain drivers of
vehicles. We know of no such case at common law, and thus conclude that there
was no clear practice either allowing or forbidding the government action of
stopping such a vehicle. Therefore, because this situation was not contemplated
at common law, we move to the second prong of the reasonableness test.

The second prong balances the interests of the government in making the
stop and the rights of the affected driver. The government's interest in promoting
public safety by stopping and detaining persons driving erratically outweighs the
momentary restriction of the driver's freedom.

The trial court and the court of appeals concluded that Officer Rarrick had
probable cause to stop Weideman. The trial court did not err when it concluded
that defendant's manner of operating her motor vehicle gave Officer Rarrick
sufficient probable cause to make the stop. After the stop, the strong smell of
alcohol, Weideman's bloodshot eyes, and the results of the horizontal gaze
nystagmus test all amounted to probable cause for Officer Rarrick to detain
Weideman until Sergeant Dunbar arrived at the scene.

The state's interest in protecting the public from a person who drives an
automobile in a manner that endangers other drivers outweighs Weideman's right
to drive unhindered. These two factors demonstrate that Officer Rarrick's
violation of R.C. 2935.03 does not rise to the level of a constitutional violation.
As Officer Rarrick's detention of defendant under the circumstances presented
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SUPREME COURT OF OHIO
here did not violate the Fourth Amendment, the trial court was not required to
suppress evidence obtained as a result of the stop and detention. Where a law
enforcement officer, acting outside the officer's statutory territorial jurisdiction,
stops and detains a motorist for an offense committed and observed outside the
officer's jurisdiction, the seizure of the motorist by the officer is not unreasonable
per se under the Fourth Amendment. Therefore, the officer's statutory violation
does not require suppression of all evidence flowing from the stop. Accordingly,
the trial court did not err when it overruled Weideman's motion to suppress. The
judgment of the court of appeals is reversed, and the trial court's judgment is
reinstated.
Judgment reversed.

DOUGLAS, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.

RESNICK, J., concurs in judgment.

COOK, J., concurs in judgment only.

PFEIFER, J., dissents.
__________________

COOK, J., concurring in judgment only. The majority correctly
concludes that a law enforcement officer's violation of R.C. 2935.03(A)(1), in
and of itself, is not a violation of the Fourth Amendment. And as the majority
acknowledges, Officer Rarrick had probable cause to stop Pamela Weideman for
drunk driving. We need not go any further to determine that the traffic stop
passed constitutional muster. A traffic stop is generally reasonable under the
Fourth Amendment where the police have probable cause to believe that the
detainee has committed a traffic violation. Whren v. United States (1996), 517
U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95; Dayton v. Erickson
(1996), 76 Ohio St.3d 3, 665 N.E.2d 1091, syllabus. Thus, the majority's Fourth
Amendment balancing analysis is largely, if not entirely, superfluous. See Whren,
517 U.S. at 817, 116 S.Ct. at 1776, 135 L.Ed.2d at 100 (subject to "rare
8

January Term, 2002
exceptions," the result of Fourth Amendment balancing "is not in doubt where the
search or seizure is based upon probable cause").

Even if the majority's Fourth Amendment balancing analysis were
necessary, I would decline to join the opinion because of its apparent reliance on
this court's holding in State v. Jones (2000), 88 Ohio St.3d 430, 432, 727 N.E.2d
886, 888. Although some of the legal principles relied upon in Jones may retain
some vitality, the ratio decidendi of the case--that a full custodial arrest for a
minor misdemeanor violates the Fourth Amendment--is no longer a correct
statement of law in light of recent United States Supreme Court precedent. See
Atwater v. Lago Vista (2001), 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549.
With these observations, I concur in the judgment.
__________________

PFEIFER, J., dissenting. Ravenna Police Officer David S. Rarrick did a
good thing on May 24, 1998. By stopping Pamela Weideman's vehicle and
taking her keys, Officer Rarrick may have saved lives. In this case, it was the
most he could do. And that should have been enough.

Officer Rarrick did good police work, but good police work does not
always have to lead to a conviction. The fact that Officer Rarrick's stop of
Weideman was unlawful is enough to show that it was unreasonable. Because of
R.C. 2935.03(A)(1), Officer Rarrick had no authority to stop and detain
Weideman. Certainly, being stopped and detained by a governmental agent who
has no authority to do so violates the Fourth Amendment prohibition against
unreasonable searches and seizures. I would affirm the judgment of the court of
appeals.
__________________

Victor V. Vigluicci, Portage County Prosecuting Attorney, and Kelli K.
Norman, Assistant Prosecuting Attorney, for appellant.

Antonios C. Scavdis, for appellee.
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SUPREME COURT OF OHIO

Betty D. Montgomery, Attorney General, and David M. Gormley, State
Solicitor, urging reversal for amicus curiae Attorney General of Ohio.
__________________
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