COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71931 CITY OF BEREA : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION RONDELL SARRETT : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JULY 9, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Berea Municipal Court Case No. 96 TRC 2915-01 JUDGMENT: Reversed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: DEAN E. DEPIERO, ESQ. Assist. Law Director and Assist. Pros., Olmsted Twp. City of Berea, 11 Berea Commons Berea, Ohio 44017 For Defendant-Appellant: TIMOTHY MILLER, ESQ. Assistant Prosecutor 5750 W. 54th St. Parma, Ohio 44129 PATRICIA ANN BLACKMON, A.J.: Rondell Sarrett, defendant-appellant, appeals from his conviction and sentence upon his no contest plea to shortcutting to -2- avoid a traffic control device, driving under the influence of alcohol, and having a prohibited breath concentration of alcohol above .10. Sarrett assigns the following three errors for our review: I. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF A VIOLATION OF BEREA CODIFIED ORDINANCE 731.41 SHORTCUTTING: AVOIDING TRAFFIC CONTROL DEVICES WHEN THE ONLY EVIDENCE PRESENTED, THAT IS THE TESTIMONY OF THE ARRESTING OFFICER, WAS UNCONTROVERTED IN THAT NO TRAFFIC LIGHT WAS AVOIDED. II. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY IN ORDER TO ARREST APPELLANT FOR DUIA. III. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE STOP OF DEFENDANT FOR AVOIDING A TRAFFIC CONTROL DEVICE WAS ONLY A PRETEXT AND THEREFORE IN VIOLATION OF DEFENDANT'S FOURTH AMENDMENT RIGHTS. Having reviewed the record and the legal arguments of the parties, we reverse the decision of the trial court. The apposite facts follow. On September 19, 1996, Berea patrolman Joe Grecol observed Sarrett sleeping in his minivan, which was parked in the parking lot of a local bar. Grecol shined a light into the car and sounded his airhorn but Sarrett did not respond. Grecol exited his patrol car, knocked on the driver's side window of the van to awaken Sarrett, and asked him to roll down the window. Unable to roll down the window, Sarrett opened the door instead. Grecol detected a strong odor of alcohol and asked Sarrett to step out of the van. While speaking to Sarrett, Gercol noticed Sarrett's speech was slurred. Gercol advised Sarrett not to drive and suggested that he -3- call a cab or arrange for a ride. Thereafter, Gercol resumed his patrol. About fifteen minutes later, Gercol received information via his police radio that Sarrett was driving the van on Thacker Street. In their stipulation of facts, the parties described the area as follows: The area in question can best be described as a triangle. The Burger King across from Wing's [restaurant] is bordered on the east by Front Street and on the west by North Rocky River Drive. Front Street continues north for approximately 1,000 feet where it ends at North Rocky River Drive at an acute angle. At the northern point of the triangle is Kilbane's Gas Station. Therefore, the three points of the triangle are (1) the Burger King parking lot at Front Street; (2) the Burger King parking lot at North Rocky River Drive; and (3) the intersection of Front Street and North Rocky River Drive. Gercol, who was parked at Kilbane's gas station, spotted Sarrett go from Thacker across Front Street, then drive through the parking lot of the Burger King restaurant which appeared closed. Sarrett exited the Burger King parking lot onto North Rocky River Drive and ended up at the intersection of North Rocky River Drive and Front Street. Gercol stated that Sarrett could have gone the same way by turning right on Front Street instead of going through the Burger King parking lot. Thereafter, Gercol stopped Sarrett at the traffic light, administered several field sobriety tests, then arrested Sarrett for driving under the influence of alcohol and having a breath alcohol concentration above .10. He was also charged with shortcutting to avoid a traffic control device. A -4- subsequent breathalyzer test revealed Sarrett's breath alcohol level was .144%. Sarrett filed a motion to suppress the evidence obtained by Officer Gercol after the stop of his vehicle, claiming there was no probable cause for the stop. After a hearing, the trial court denied the motion to suppress. Thereafter, Sarrett pleaded no contest to the charges against him. He was convicted and sentenced to 180 days in jail (all but 30 days were suspended), one year suspension of his driver's license, and a $1000 fine for driving with a prohibited breath alcohol concentration. He was placed on 3 years active probation and ordered to attend a drunk driving school. Sarrett was also fined $100.00 plus costs for driving under the influence and fined $20.00 plus costs for shortcutting. This appeal followed. Sarrett argues the trial court erred in convicting him of violating Berea Codified Ordinance 731.41 (Shortcutting) in light of Officer Grecol's testimony that he did not avoid a traffic light. Berea Codified Ordinance 731.41 provides: (b) No person shall operate a vehicle across public or private property for the purpose of avoiding compliance with a traffic control device. (c) It shall be prima-facie evidence of a violation of this section for the operator of a vehicle to cross public or private property as provided herein without using the service of such property, stopping the engine or both. -5- The stipulated facts include the following statement about Sarrett's drive through Burger King. Patrolman Grecol saw the Defendant driving his van on Thacker; saw him go into the parking lot of the Burger King which he believed to be closed at the time because the lights were not on. (Emphasis added.) In a statement of facts prepared by Officer Gercol on September 19, 1996, he wrote: I was at Kilbane's Marathon station and observed the male pull across Front St. into the Burger King lot and then pull onto N. Rocky River Dr. and head N/B. Burger King was closed at the time and there was no reason for him to go that way. (Emphasis added.) Officer Gercol stated he believed Sarrett went through the Burger King lot in order to avoid an intersection. In its brief before this court, the City of Berea argues Sarrett was attempting to enter onto Rocky River Drive in order to avoid compliance with the light at Front Street. However, the record is devoid of any testimony about whether the light was red at Front Street at the time of the alleged shortcutting. Also, there is no evidence that the light was green on the North Rocky River side. Without such testimony, and in light of the fact that Sarrett's path took him to the same traffic signal, it is speculative to conclude that Sarrett's decision to go through the Burger King lot was an attempt to avoid compliance with the light. Since the officer gave no indication during his testimony that he noted the color of the light at the time of the alleged -6- shortcutting, we conclude he lacked a factual basis for his suspicion that Sarrett was attempting to avoid a traffic control device. Accordingly, Officer Gercol's stop of Sarrett's car looks like a pretext to investigate the possibility that Sarrett was driving under the influence. Consequently, his stop of Sarrett's car was improper. We are mindful of the Supreme Court's decision in Dayton v. Erickson (1996), 76 Ohio St.3d 3. The Erickson court upheld a police officer's stop of a motorist for failure to use a turn signal despite the driver's argument that the stop was a pretext to investigate whether she had been driving without a license. In Erickson, the Ohio Supreme Court stated that the question whether a Fourth Amendment violation occurred in this case depends upon an objective assessment of the officer's actions at the time of the traffic stop, and not upon the officer's actual (subjective) state of mind. Id. at 6. The significant difference between this case and Ericksonis that, in Erickson, it was undisputed that Erickson failed to use her turn signal. In this case, the record does not contain a factual basis for a charge of shortcutting. During their initial encounter, Sarrett was seen sleeping in a parked car with the engine off. Officer Gercol noticed that Sarrett smelled of alcohol, was disoriented, and had slurred speech. At the time, Gercol did not order Sarrett to perform any field sobriety tests. When Gercol saw Sarrett again, he was driving the van. Gercol did not observe any of the usual signs that Sarrett was driving under the influence of alcohol. Sarrett -7- was not speeding, weaving, or otherwise driving erratically. However, when Sarrett passes through the Burger King parking lot, Gercol decides to stop Sarrett's car. He testified that he stopped Sarrett's car for two reasons because Sarrett cut through private property to avoid an intersection and because he believed Sarrett was intoxicated. Because Gercol lacked the requisite factual basis to support his claimed suspicion that Sarrett was shortcutting, and because he did not observe anything about Sarrett's driving to indicate he was under the influence, we conclude the stop of Sarrett's car was pretextual. Sarrett's third assignment of error is well taken. In light of our decision on this assignment of error, we conclude Sarrett's other assignments of error are moot. This case is reversed. This cause is reversed. It is, therefore, considered that said Appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. TIMOTHY E. McMONAGLE, J., CONCUR. KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also s.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71931 CITY OF BEREA : -9- : CONCURRING : : AND Plaintiff-Appellee : : DISSENTING v. : : OPINION RONDELL SARRETT : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 9, 1998 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I respectfully dissent from the majority's reversal of defendant's drunk-driving convictions. The majority contends the traffic stop in this case was pretextual and invalid. (Ante at p. 6.) This conclusion misapplies pretext analysis. Dayton v. Erickson (1996), 76 Ohio St.3d 3; Whren v. U.S. (1996), 517 U.S. 806. As long as a legitimate basis for the stop exists, as in this case, the subjective motivation of the police for making the stop is irrelevant. Id. The initial encounter between Officer Gercol and defendant-- when Gercol observed defendant passed out in his parked van, smelled alcohol on his breath, heard his slurred speech, and discovered his impairment--was consensual and did not constitute a search or seizure within the scope of the Fourth Amendment. E.g., Willowick v. Sable (Dec. 12, 1997), Lake App. No. 96-L-189, unreported at p. 4: *** Numerous other Ohio courts have held that a police approach and encounter with a stationary vehicle is consensual in nature, thereby making the provisions of the Fourth Amendment inapplicable. See e.g., Cuyahoga Falls v. Sandstrom (June 21, 1995), Summit App. No. 17000, unreported; State v. Smith (Oct. 16, 1995), Madison App. No. CA95-03-009, unreported; State v. -2- Kiggans (Nov. 20, 1995), Stark App. No. 1995CA00157, unreported; State v. Osborne (Dec. 13, 1995), Montgomery App. No. CA 1551, unreported. State v. Osborne, supra, cited several federal and state court opinions for this well-established proposition, including U.S. v. Castellanos(D.C. Cir. 1984), 731 F.2d 979 and U.S. v. Pajari (8th Cir. 1983), 715 F.2d 1378. Accord Latta v. Kerte (10th Cir. 1997), 118 F.3d 693; 3 LaFave, Search and Seizure (2d ed. 1987), Section 9.2(b) at pp. 408-416. The reason Officer Gercol did not arrest defendant immediately on the initial encounter outside the bar was that defendant was not operating his parked vehicle, and, therefore, the officer had not observed a completed offense. Officer Gercol specifically warned defendant, however, not to drive in his condition. Instead of following the warning, defendant began to drive away, a mere fifteen minutes later, shortly after Officer Gercol resumed his patrol. Once defendant began operating his vehicle, Officer Gercol had, at an absolute minimum, sufficient reasonable suspicion to conduct an investigative stop to determine whether defendant was driving while under the influence of alcohol. E.g., State v. Taggart (June 2, 1997), Butler App. No. CA96-09-175, unreported. That suspicion was based on specific and articulable facts derived lawfully from his own personal observations, which the majority recited ante at pp. 5 and 7. This is a simple case. Officer Gercol knew from defendant's behavior and appearance during their initial encounter that defendant was appreciably impaired and under the influence of alcohol. When he observed defendant driving away minutes later, he knew that defendant was operating his motor vehicle in that -3- condition. Officer Gercol was entitled to put two and two together to conclude that defendant completed the offense of driving under the influence. Id. I would not require Gercol to ignore the obvious. Nor is he required to risk public safety and wait until he observes defendant commit an additional traffic law moving violation to stop defendant as he drove away. Id. The validity of the stop does not depend upon whether defendant also cut through the restaurant parking lot as he drove away, because the circumstances present a preexisting independent lawful basis for the stop. The majority's focus on whether defendant committed the shortcutting offense is misplaced for this reason. Gercol was not required to observe defendant commit two crimes before stopping him. While I agree with the majority that the prosecution failed to prove beyond a reasonable doubt at trial that defendant committed the second crime of shortcutting in this case, that failure does not invalidate the stop, because Gercol had a preexisting and independent lawful basis sufficient to stop defendant for the first offense of driving under the influence. No pretext was necessary to stop him. See State v. Taggart, supra. In the words of the Supreme Court, [i]f the officer is legally authorized to stop the vehicle, any additional `underlying intent or motivation' does not invalidate the stop. Dayton v. Erickson, supra at 7, quoting U.S. v. Bloomfield (8th Cir. 1994), 40 F.3d 910, 915. Because the majority ignores legally sufficient and independent grounds to justify the investigative traffic stop in this case, I am unable to join in its opinion. I concur in the -4- reversal of defendant's shortcutting conviction, but respectfully dissent from the reversal of defendant's no-contest-plea .