from Allen County Common Pleas Court Trial Court No.
Gabriele for Appellant.
L. Kohlrieser for Appellee
Defendant-appellant Toby L. Kerr ("Kerr") appeals
the judgment of the Allen County Court of Common Pleas for
denying his motion to suppress. He challenges this decision
on two grounds: (1) he asserts that the police did not have
reasonable suspicion to conduct an investigatory stop of his
vehicle; and (2) he asserts that the police did not have
probable cause to conduct a warrantless search of his
vehicle. For the reasons set forth below, the judgment of the
lower court is reversed.
and Procedural History
On October 10, 2015, Officer Zane Slusher
("Slusher") was on patrol near a gas station in
Lima, Ohio. Doc. 56 at 6. Though he had only one year of
experience on the police force at this time, Slusher had been
involved in several criminal investigations in this area and
was aware that this location was known for having high levels
of drug activity. Id. at 3, 7. At roughly 8:40 p.m.,
Slusher was sitting in his cruiser when he observed a car,
which was driven by Kerr, pull into the gas station parking
lot. Id. at 8. A pedestrian walked up to the
vehicle, reached into the driver's side of the vehicle
through the open window, then quickly turned around, and
walked away. Id. The entire interaction between the
pedestrian and the driver lasted only a few seconds.
Id. at 10. Kerr then drove his vehicle out of the
gas station parking lot, having never exited the vehicle
while he was on the premises of the gas station. Id.
At the time of this interaction, Slusher was about three
hundred feet away from where this interaction occurred and
was unable to determine what, if anything, was exchanged
during this interaction. Though Slusher had never before
witnessed a hand-to-hand drug transaction during his time in
law enforcement, he believed that he had witnessed one of
these illegal exchanges. Id. at 17. On the basis of
his observations, Slusher radioed Officer Aaron Montgomery
("Montgomery") and informed him of this suspicious
behavior. Id. at 34. On the basis of this
information, Montgomery pursued the car described by Slusher,
activated his lights, and conducted a stop of Kerr's
vehicle. Id. at 35. At the suppression hearing,
Montgomery testified that this was an investigatory stop
based strictly on Slusher's observations as reported to
Montgomery over the radio. Id. . at 35-36.
Montgomery's patrol car was equipped with a video and
audio recorder, and the recording of this stop was admitted
into evidence. Ex. A. The video shows that Montgomery pulled
Kerr over at 8:41 p.m. Id. Montgomery testified
that, as he approached Kerr's vehicle, he saw Kerr
reaching around his seat with his right arm, making furtive
movements, and "digging towards the center
console." Doc. 56 at 36. Upon seeing these movements,
Montgomery instructed Kerr to place his hands on the steering
wheel and then ordered Kerr to come out of the vehicle.
Id. at 37. Montgomery, who had a police dog with him
in his cruiser, warned Kerr that he would deploy the dog if
Kerr was not cooperative. Id.
Once Kerr was outside his vehicle, Montgomery informed him
that he was being detained-not arrested-and handcuffed him.
Id. Ex. A. Montgomery testified that he smelled the
odor of alcohol as Kerr exited the vehicle. Id. at
38. The video shows that two other police officers arrived at
the scene within thirty seconds of Montgomery approaching
Kerr's vehicle. Ex. A. These two officers helped to
handcuff Kerr and then escorted Kerr to the rear of his
vehicle. Id. At this point, in the process of
searching Kerr's person, one of the officers reached his
hand into each of Kerr's pockets without first performing
a pat-down of Kerr's outer clothing. Id.
At 8:42 p.m., Slusher arrived at the scene and immediately
told one of the officers supervising Kerr to put him in the
back of his patrol car. Doc. 56 at 41. Ex. A. At this point,
Montgomery had opened the rear, driver's side door of
Kerr's vehicle and was searching the backseat.
Id. While one officer and Slusher accompanied Kerr
to one of the patrol cars, another officer remained with
Montgomery at Kerr's vehicle. Id. Montgomery
said to this remaining officer, "Man, we just gotta, we
just gotta find it. He, uh, he put it back here with his
right hand. Stuffed it back here in this back seat area. So
we just need to find it." Ex. A. The remaining officer
then walked from where Montgomery was standing to the other
side of the vehicle, opened the rear door on the
passenger's side of the vehicle, and began searching the
back seat. Id. Montgomery can be seen in the video
pulling multiple articles of clothing out of the back seat
area, shaking them outside of the vehicle, and then dropping
them in the street. Id. During this process,
Montgomery said, "I just gotta f****n' find
During the search, Montgomery and the other officer found a
cup containing a beverage in the back seat. Doc. 56 at 39-40.
The other officer with Montgomery asked, "Are you sure
he wasn't settin' the drink in here, man?"
Id. To which Montgomery replied, "No."
Id. At this point in the recording, Montgomery can
be seen removing a cup from the vehicle and can be heard
saying, "I'm wondering if he didn't put it in
the drink." Id. Montgomery then examined the
contents of the cup and then stated, "Well, that's
one thing he's freakin' out about. He's got
alcohol in it." Id. As Slusher approached
Kerr's vehicle, Montgomery turned towards Slusher and
said, "Well the one thing he did for sure is he put that
drink back there. But what else he put, we gotta find
it." Id. At this point, Slusher is searching
the area around the front seat on the driver's side of
the vehicle, and another officer is still searching the back
seat on the passenger's side of the vehicle. Id.
Montgomery then turned again towards the vehicle and
continued to search the area in the back seat on the
driver's side of the vehicle until he found a small,
empty baggie. Doc. 56 at 40. The baggie was found underneath
a shirt in the back seat and was wet around the edges of the
torn area as if this area had been bitten off. Id.
The outside of the bag had a "minor amount of * * *
white residue" on it. Id. At the suppression
hearing, Montgomery explained that he believed this white
residue was cocaine, though there was not enough of it to
perform a test. Id. at 40-41. Upon finding this
baggie, the video shows that he remarked, "Oh, there it
is. He f*****g ate it." Id. When the other
officer asks, "What was it?" Id.
Montgomery stated that he believed it to be,
"F****n' crack. He f****n' ate it." Id.
See Doc. 56 at 40-41. He then said, "Well, we can
arrest him for tampering." Ex. A. Six seconds after
Montgomery communicated what he had found, Slusher, who was
searching the area around the front seat of the vehicle, can
be heard on the tape, saying, "Uh-oh." Id.
Ten seconds later, Slusher confirmed the discovery of
contraband, saying, "Yep. We got crack."
Id. The cocaine was in a cigarette pack that had
been stored in a compartment in the front door on the
driver's side of the vehicle. Doc. 56 at 14-15. When
Slusher opened the cigarette pack, he found a brown, folded
up piece of paper that had a few "off-white colored
rocks inside." Id. at 15.
On June 16, 2016, Kerr was indicted for possession of cocaine
in violation of R.C. 2925.11(A), 2925.11(C)(4)(a) and pled
not guilty. Doc. 1. Doc. 43. Kerr filed a motion to suppress
on August 18, 2016. Doc. 21. The trial court held a
suppression hearing on October 13, 2016. Doc. 56. After
Slusher and Montgomery testified, the trial judge denied
Kerr's motion to suppress, finding that the stop and
subsequent search were legal. Doc. 36. On November 1, 2016,
however, Kerr changed his plea to no contest at which time
the trial ...