Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Attorney for
KRISTINE COMUNALE, Atty. Attorney for Defendant-Appellee.
1} The State of Ohio appeals, pursuant to R.C.
2945.67(A) and Crim.R. 12(K), from the trial court's
decision and judgment entry sustaining defendant-appellee
Toby Brown's motion to suppress evidence.
2} In its sole assignment of error, the State
contends the trial court erred in holding that police
officers unlawfully ordered Brown out of his vehicle after
smelling burnt marijuana in his car at a sobriety checkpoint.
3} The facts underlying the present appeal are
derived from the suppression-hearing testimony of three
police officers, the only witnesses at the hearing. Based on
their testimony, the trial court made the following factual
findings in its suppression ruling:
On March 17, 2016 Officer Will Wright was working as a
volunteer at an OVI sobriety checkpoint in Washington
Township, Montgomery County, Ohio. As of March 17, 2016 Will
Wright had been employed by the City of Dayton as a police
officer for twenty-nine years. Officer Wright's general
duties were homeland security officer for the City of Dayton
Police Department. Officer Wright's co-volunteer for the
OVI sobriety checkpoint from the City of Dayton Police
Department was Officer Seiter. Officer Matthew Poulton from
the Montgomery County Sheriff's Office was an additional
officer located at station three of the OVI sobriety
The OVI checkpoint at Miamisburg-Centerville Road and Paragon
Road was supervised by Sergeant Flagg of the Montgomery
County Sheriff's Office. The operation had a manual that
was provided to all of the police officers. The manual
indicated that one of the objectives for the checkpoint was
to arrest impaired drivers. Officer Wright and the other
volunteers received instructions before actually commencing
Miamisburg-Centerville Road at Paragon Road is a four lane or
four-way roadway. The street is a major east-west
thoroughfare in southern Montgomery County. The checkpoint
involved funneling cars by use of cones and signs into one
lane and then there [were] four or five stations for the
actual stop of the vehicle and driver-law enforcement
Detective Will Wright was at station number three at the
checkpoint. Every car was being stopped. Officer Wright was
assisted by two other officers at that particular station.
At about 10:30 p.m. on March 17, 2016 a vehicle operated by
Defendant came to rest at station three. Officer Wright began
to speak to Defendant through the window on the driver's
side of the vehicle. Officer Wright engaged in an
introduction during which he indicated who the officers were
and what they were involved in. He told the driver why the
officers were stopping the car. While Officer Wright was
talking to Defendant Brown he detected an odor of burnt
Detective Wright saw the Defendant's eyes and heard his
speech. From these observations he could not detect any
impairment of the Defendant.
Officer Wright analyzed his tactical plan as follows. He
wished to separate Defendant from any marijuana that may have
been in the car. He felt that everything else, such as
detecting impairment would be done outside of the car. So,
Detective Wright asked Defendant to step out of the motor
vehicle. Defendant opened the door and then dropped a cell
phone charger to the street. The Defendant then bent or moved
down as if to pick up the item and suddenly ran away. He ran
from the south ...