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State v. Brown

Court of Appeals of Ohio, Second District, Montgomery

May 19, 2017

STATE OF OHIO Plaintiff-Appellant
v.
TOBY BROWN, JR. Defendant-Appellee

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2016-CR-2621

          MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Attorney for Plaintiff-Appellant.

          KRISTINE COMUNALE, Atty. Attorney for Defendant-Appellee.

          OPINION

          HALL, P.J.

         {¶ 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 checkpoint.
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 their activity.
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 personnel encounter.
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 marijuana.
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 ...

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