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State v. Kerr

Court of Appeals of Ohio, Third District, Allen

November 13, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
TOBY L. KERR, DEFENDANT-APPELLANT.

         Appeal from Allen County Common Pleas Court Trial Court No. CR2016-0237

          Linda Gabriele for Appellant.

          Terri L. Kohlrieser for Appellee

          OPINION

          WILLAMOWSKI, J.

         {¶1} 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.

         Facts and Procedural History

         {¶2} 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 10-11.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 it." Id.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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 ...


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