State v. McCarthy

[Cite as State v. McCarthy, 2022-Ohio-4738.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29468
:
v. : Trial Court Case No. 2021-CR-4114
:
WILLIAM J. MCCARTHY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 29th day of December, 2022.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

CHRISTIE M. BEBO, Atty. Reg. No. 0087294, Assistant Public Defender, 117 South Main
Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant

.............

WELBAUM, J.
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{¶ 1} Defendant-appellant, William J. McCarthy, appeals from his conviction in the

Montgomery County Court of Common Pleas after he pled no contest to one count of

aggravated possession of drugs. In support of his appeal, McCarthy contends that the

trial court erred by overruling his motion to suppress drug evidence that was seized from

his vehicle. He claims that the drug evidence should have been suppressed because

the investigating police officers unlawfully approached and opened his vehicle without a

warrant in violation of his Fourth Amendment rights. According to McCarthy, the trial

court erroneously determined that the officers had been authorized to approach and open

his vehicle under the community caretaking/emergency-aid exception to the warrant

requirement. McCarthy also claims that the drug evidence should have been

suppressed because it was discovered as a result of the police officers’ unlawfully seizing

his person without a warrant. For the reasons outlined below, we disagree with

McCarthy’s claims and will affirm the judgment of the trial court.

Facts and Course of Proceedings

{¶ 2} On January 13, 2022, a Montgomery County grand jury returned an

indictment charging McCarthy with one count of aggravated possession of drugs

(methamphetamine) in violation of R.C. 2925.11(A), a felony of the third degree. The

charge arose after a Dayton Police officer discovered McCarthy unconscious in the driver-

seat of his vehicle while it was parked in an empty parking lot with its engine running.

While the officer was attempting to shut off McCarthy’s vehicle for safety purposes, the
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officer observed the methamphetamine at issue in plain view on the vehicle’s passenger-

side floorboard.

{¶ 3} McCarthy pled not guilty to the indicted charge and filed a motion to suppress

the drug evidence. In support of the motion, McCarthy argued that the drug evidence

should be suppressed because it was discovered as the result of a warrantless search

and seizure that violated his Fourth Amendment rights. On March 4, 2022, the trial court

held a hearing on the motion. During the hearing, the State presented testimony from

Officers Kenneth Webster and Jacob Savage of the Dayton Police Department. The

State also presented video evidence that was taken from each of the officers’ body and

cruiser cameras during the incident in question. After reviewing the testimony and video

evidence, the trial court made the following findings of fact on the record:

On December 17, [2021,] at approximately 2:19 a.m., Ofc. Kenneth

Webster of the Dayton Police Department was in a marked cruiser wearing

the uniform of the day[;] he was traveling alone. * * * He had been with the

Dayton Police Department for approximately three years. He was in the

area of Huffman Avenue and South Wright Avenue on patrol. He noticed

a white van in the parking lot of what he described as the Buddhist temple.

He noticed that [the vehicle] was running, the lights were on, and he thought

that was suspicious. Particularly, he had seen that vehicle in the parking

lot about 30 minutes before when he had been on patrol in the same area;

he had seen it, [and the vehicle] was still there a half an hour later at

approximately 2:19, and he indicated the engine on the vehicle was quite
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loud. Because of that time of day, 2:19 a.m., it was the only vehicle in a lot

where there was no activity[.] * * * [N]o services [were taking place] at the

temple, nothing else [was] going on, and so [Ofc. Webster] made the

decision to conduct a welfare check to see what was going on with that

vehicle.

[Ofc. Webster] pulled into the lot[.] * * * [T]he officer can be seen

actually on the body camera. He * * * pulled into a parking space, not

necessarily opposite [McCarthy’s vehicle] but he is clearly not blocking in

[McCarthy], and there is sufficient room for [McCarthy] to get out there, as

the whole driving area can be seen on the body camera.

Ofc. Webster did not activate his overhead lights. He knows the

area to be a high drug activity area. He was concerned about a potential

for an overdose, as he has had similar encounters of a similar nature [with]

vehicles in parking lots, sitting in intersections, [and] sitting on the roadway.

He waited for another officer to arrive; actually two other officers arrived.

That was Jacob Savage and his partner, Ashley Fry. The concern was,

based upon their experience, they saw a male slumped over in the driver

seat. Ofc. Webster went to the passenger door. You can see—once the

door is open, you can clearly see what ended up being [McCarthy] slumped

over with his head down between the steering wheel and the driver side

door.

It appeared to * * * Ofc. Webster that [McCarthy] did not appear to
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be conscious. [McCarthy] was wearing baggy clothing and so [Ofc.

Webster] could not tell if [McCarthy] was breathing. There was no motion.

The windows were up. Again, [Ofc. Webster] is on * * * the passenger side.

Ofc. Savage and Ofc. Fry were on the driver’s side. Their concern was that

the vehicle could be in drive, and particularly that the vehicle could enter the

roadway, and so they made the decision to open the passenger’s door [in

an] attempt to turn the vehicle off so that * * * [McCarthy’s] foot wouldn’t go

off the break * * * [.] The door was unlocked. As soon as they opened the

door, Ofc. Webster observed a white bagg[ie] with a crystalline substance

in it that he immediately recognized as being what he believed to be meth[.]

[Ofc. Webster] is [specially] trained in drug detection. He’s had numerous

encounters with crystal meth, and he knows what it looks like, and he

indicated that he comes into contact with it every week or two.

[Ofc. Webster] * * * did not touch [the drugs] immediately. [The

officers] checked to make sure the vehicle was in park[.] [Ofc. Webster]

attempted to remove the keys * * * to make certain that the car was not in

gear and didn’t go out into the roadway, but the ignition was apparently

malfunctioning. You could also see as [Ofc. Webster is] opening the

[passenger-side] door, * * * the other officers were on the other side * * *

opening the [driver-side] door[.] [McCarthy] was very slow to react, and

[the officers] attempt[ed] to check on him. So they remove[d] him [from the

vehicle] and then they pat[ted] him down, and there was another baggie of
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drugs in his pocket.

Plea Hearing Tr. (Mar. 23, 2022), p. 39-42.

{¶ 4} Based on the foregoing findings of fact, the trial court determined that the

officers were engaged in a community caretaking function when they approached and

opened McCarthy’s vehicle to not only rouse McCarthy but to render his vehicle safe so

that it would not go out of the parking lot and hurt anyone. The trial court therefore

concluded that, under the community caretaking/emergency-aid exception to the warrant

requirement, the officers’ conduct of approaching and opening McCarthy’s vehicle without

a warrant did not violate McCarthy’s Fourth Amendment rights. The trial court also

determined that McCarthy had not been unlawfully seized by the officers. Specifically,

the trial court found that the officers’ cruisers were not blocking McCarthy’s vehicle so as

to prevent him from leaving the area and that a reasonable person would not have

believed that he or she was being detained by the officers. Accordingly, the trial court

overruled McCarthy’s motion to suppress in its entirety.

{¶ 5} After the trial court overruled the motion to suppress, on March 23, 2022,

McCarthy pled no contest to a reduced charge of aggravated possession of drugs as a

fifth-degree felony. The trial court accepted McCarthy’s no contest plea, found him guilty

of aggravated possession of drugs, and sentenced him to community control sanctions.

McCarthy now appeals from his conviction, raising a single assignment of error for review.

Assignment of Error

{¶ 6} McCarthy contends that the trial court erred by overruling his motion to
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suppress the drug evidence seized from his vehicle. McCarthy claims that the drug

evidence should have been suppressed because Officer Webster had no lawful basis to

approach and open his vehicle without a warrant. In so arguing, McCarthy claims that

the trial court erroneously determined that the community caretaking/emergency-aid

exception to the Fourth Amendment warrant requirement authorized Officer Webster’s

actions. McCarthy also contends that his encounter with the officers constituted an

unlawful, warrantless seizure of his person based on how many officers were present at

the scene and based on how the officers parked their cruisers behind his vehicle,

approached his vehicle from both sides, and illuminated his driver-side mirror with a

spotlight. We disagree with all of McCarthy’s claims.

Standard of Review

{¶ 7} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial court’s findings

of fact if they are supported by competent, credible evidence. * * * Accepting these facts

as true, the appellate court must then independently determine, without deference to the

conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id.

{¶ 8} After reviewing the entire record, we find that the trial court’s findings of fact

were supported by competent, credible evidence. Therefore, using those findings, we
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will independently determine whether the trial court’s decision to overrule McCarthy’s

motion to suppress was proper under the applicable legal standard.

Community Caretaking/Emergency-Aid Exception

{¶ 9} As previously discussed, McCarthy is challenging the trial court’s application

of the community caretaking/emergency-aid exception to the Fourth Amendment warrant

requirement. Specifically, McCarthy argues that the facts of this case do not support

finding that the officers had an objectively reasonable belief that immediate aid was

required so as to permit the officers to approach and open his vehicle without a warrant.

{¶ 10} The Fourth Amendment to the United States Constitution and Article I,

Section 14, of the Ohio Constitution protect persons from unreasonable searches and

seizures. State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 13.

Searches and seizures conducted without a warrant are per se unreasonable absent a

few, well recognized exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d

127, ¶ 181; State v. Holloway, 2d Dist. Clark No. 2004-CA-70, 2006-Ohio-4797, ¶ 16.

“One such exception is the community caretaking/emergency-aid exception, which is

grounded in interests of public safety.” State v. Glowney, 2d Dist. Montgomery Nos.

27896 and 27897, 2019-Ohio-3390, ¶ 34, citing Leak at ¶ 20. (Other citation omitted.)

{¶ 11} Under the community-caretaking/emergency-aid exception, a law

enforcement officer with objectively reasonable grounds to believe that there is an

immediate need for his or her assistance to protect life or prevent serious injury may
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conduct a community caretaking/emergency-aid stop. State v. Dunn, 131 Ohio St.3d

325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 26. “Community caretaking functions are

‘divorced from the detection, investigation, or acquisition of evidence relating to the

violation of a criminal statute.’ ” State v. Warnick, 2d Dist. Miami No. 2019-CA-14, 2020-

Ohio-4240, ¶ 21, quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37

L.Ed.2d 706 (1973). “Accordingly, * * * police officers are not required to possess

reasonable articulable suspicion of criminal activity when exercising community

caretaking functions/emergency aid.” (Citations omitted.) State v. Klase, 2019-Ohio-

3392, 131 N.E.3d 1054, ¶ 17 (2d Dist.).

{¶ 12} For example, “law enforcement officers without reasonable suspicion of

criminal activity may approach vehicles that they believe may need assistance as part of

the officers’ ‘community caretaking functions.’ ” State v. Hlinovsky, 7th Dist. Belmont No.

09 BE 19, 2011-Ohio-6421, ¶ 60, citing State v. Elliott, 7th Dist. Columbiana No. 01 CO

53, 2002-Ohio-3018, ¶ 8-9. Such police-citizen interaction constitutes a consensual

encounter that does not implicate Fourth Amendment protections. Florida v. Bostick,

501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); State v. Starcher, 7th Dist.

No. 13 JE 1, 2013-Ohio-5533, ¶ 22.

{¶ 13} “Consensual encounters occur when the police merely approach a person

in a public place and engage the person in conversation, and the person remains free not

to answer and to walk away.” State v. Lewis, 2d Dist. Montgomery No. 22726, 2009-

Ohio-158, ¶ 21, citing United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870,

64 L.Ed.2d 497 (1980). Therefore, “[a] consensual encounter can occur when a police
 -10-

officer approaches and questions individuals in or near a parked car.” (Citations

omitted.) State v. Schott, 2d Dist. Darke No. 1415, 1997 WL 254141, *3 (May 16, 1997).

See also State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854, 936 N.E.2d 529, ¶ 20

(10th Dist.) (“when a police officer merely approaches and questions persons seated

within parked vehicles, a consensual encounter occurs that does not constitute a seizure

so as to require reasonable suspicion supported by specific and articulable facts”); State

v. Windle, 4th Dist. Athens No. 16 CA 1 2017-Ohio-7813, ¶ 30 (“officers could lawfully

approach [defendant’s] parked vehicle and knock on the window to rouse him without any

specific justification because such contact is a consensual encounter that does not

implicate the Fourth Amendment”).

{¶ 14} We take this opportunity to stress that no objective justification is required

for an officer to engage in a consensual encounter. Bostick at 434; State v. Retherford,

93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). In the past, courts have issued

opinions implying otherwise with regard to motorists parked in public places. See, e.g.,

State v. Thayer, 2d Dist. Clark No. 2667, 1990 WL 125704, (Aug. 31, 1990) (finding

officers reasonably believed that a vehicle needed assistance given that the vehicle was

sitting off the side of the road next to a cornfield, a place where cars are not normally

stopped, between two and three in the morning); State v. Pelsue, 11th Dist. Portage No.

95-P-0149, 1997 WL 286174, *5 (May 23, 1997) (finding that an officer who observed a

truck in the middle of the roadway at 1:39 a.m. with its engine running, bright lights

shining, and turn signal flashing without moving for some time acted reasonably in

investigating whether the truck was a disabled vehicle or stranded motorist); State v.
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Norman, 136 Ohio App.3d 46, 54, 735 N.E.2d 953 (3d Dist.1999) (stating that “[w]hen

approaching a vehicle for safety reasons, the police officer must be able to point to

reasonable, articulable facts upon which to base [his or] her safety concerns”). However,

we wish to clarify that no objective justification is required for an officer to approach a

motorist parked in a public place.

{¶ 15} In this case, because Officer Webster approached McCarthy’s parked

vehicle at a public place to see if McCarthy needed assistance, the approach was a

consensual encounter that does not implicate Fourth Amendment protections.

Therefore, contrary to McCarthy’s claim otherwise, it was lawful for Officer Webster to

approach McCarthy’s vehicle.

{¶ 16} We also find that it was lawful for Officer Webster and the other responding

officers to open McCarthy’s vehicle without a warrant after seeing that McCarthy was

unconscious and slumped over between the steering wheel and the driver-side door.

“When an officer finds an unconscious, disoriented or injured person in a vehicle, it is

reasonable for the officer to enter the vehicle to give aid and to determine the cause of

the condition.” State v. Croston, 4th Dist. Athens No. 01CA22, 2001 WL 1346130, *3

(Oct. 30, 2001), citing LaFave, Search and Seizure, 3rd Ed. § 7.4. Under those

circumstances “officers [have] a right to open the vehicle’s door to at least communicate

with [the driver] about his condition.” State v. Hall, 2017-Ohio-446, 84 N.E.3d 263, ¶ 8

(10th Dist.).

{¶ 17} In this case, the officers opened the doors to McCarthy’s vehicle not only to

see if McCarthy needed medical assistance for an overdose, but to confirm that the
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vehicle was in park before rousing McCarthy so as to ensure that the vehicle did not go

out of the parking lot and injure anyone. In other words, when the officers opened the

vehicle for those purposes, they were acting under the community caretaking/emergency-

aid exception to the warrant requirement. While carrying out that function, Officer

Webster saw the methamphetamine inside McCarthy’s vehicle in plain view. Because

Officer Webster found the drugs while engaging in a community caretaking/emergency-

aid function, the warrantless entry into the vehicle did not require suppression of the drug

evidence.

Seizure

{¶ 18} McCarthy also claims that the drug evidence should have been suppressed

because it was discovered as the result of the police officers’ unlawfully seizing him during

their initial approach of his vehicle.

{¶ 19} “A seizure occurs when, in view of all of the circumstances surrounding the

incident, the police officer has either by physical force or a show of authority restrained

the person’s liberty so that a reasonable person would not feel free to decline the officer’s

requests and walk away or otherwise terminate the encounter.” State v. Belcher, 2d Dist.

Montgomery No. 24385, 2011-Ohio-5015, ¶ 22, citing Mendenhall, 446 U.S. 544 at 553,

100 S.Ct. 1870, 64 L.Ed.2d 497. “[W]hether a particular encounter involves a seizure is

fact-specific[.]” State v. Jones, 2d Dist. Montgomery No. 29224, 2022-Ohio-149, ¶ 12.

“Factors that might indicate a seizure include the threatening presence of several police

officers, the display of a weapon, some physical touching of the person, the use of
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language or tone of voice indicating that compliance with the officer’s request might be

required, approaching the person in a nonpublic place, and blocking the citizen’s path.”

Belcher at ¶ 22.

{¶ 20} As previously discussed, McCarthy contends that his encounter with the

police officers in this case constituted an unlawful, warrantless seizure based on how

many officers were present at the scene and based on how the officers parked their

cruisers behind his vehicle, approached his vehicle from both sides, and illuminated his

driver-side mirror with a spotlight. In support of his argument, McCarthy points out that

this court recently held in Jones that police officers demonstrated a show of authority that

established a seizure when they positioned their cruiser in a way that made it difficult,

though not impossible, for an individual to terminate the encounter and drive away.

Jones at ¶ 14.

{¶ 21} Initially, we note that the video evidence in this case established that the

officers’ cruisers were not positioned in a way that made it difficult for McCarthy to back

up and leave the scene. Regardless of that fact, we need not delve into all the factors

that may or may not have established a seizure because McCarthy was unconscious at

the time he claimed he was unlawfully seized. In State v. Yeatts, 2d Dist. Clark No. 2002-

CA-45, 2002-Ohio-7285, this court explained that:

The Mendenhall force or show of authority requirement implies that

the officer’s particular actions would have had an adverse effect on a

reasonable person’s calculus whether to decline the officer’s request or to

terminate the encounter. However, an unconscious subject is incapable of
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exercising any such calculus at all. In that event, the officer’s actions

cannot function to impair the subject’s freedom of movement or his exercise

of his liberty interests. Absent that, no seizure occurs for purposes of the

Fourth Amendment.

Id. at ¶ 18.

{¶ 22} In Columbus v. Ridley, 10th Dist. Franklin No. 13AP-1035, 2014-Ohio-4356,

the Tenth District Court of Appeals applied our holding in Yeatts to a set of facts that were

similar to the instant case and held the following:

As the officers approached appellant’s car, appellant was passed out

and slumped over the driver’s seat. Because appellant was not capable of

deciding whether he was free to leave, the officers’ approach to his car

cannot be considered a restraint of his personal liberty and, therefore,

cannot be a seizure for Fourth Amendment purposes. State v. Yeatts, 2d

Dist. No. 02CA45, 2002-Ohio-7285, ¶ 15-18 (seizure did not occur when

officer approached unconscious defendant in car until defendant woke up).

Without a seizure, appellant’s Fourth Amendment rights were not implicated

by the officers’ conduct.

Ridley at ¶ 11.

{¶ 23} For the reasons discussed in Yeatts and Ridley, McCarthy’s claim that he

was unlawfully seized lacks merit because he was unconscious and incapable of deciding

whether he was free to leave when the officers parked their cruisers behind his vehicle,

approached his vehicle, and illuminated his vehicle with a spotlight. Because of this,
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there was no seizure that implicated McCarthy’s Fourth Amendment rights.

{¶ 24} For all the foregoing reasons, we find that the trial court did not err by

overruling McCarthy’s motion to suppress. Accordingly, McCarthy’s sole assignment of

error is overruled.

Conclusion

{¶ 25} Having overruled McCarthy’s assignment of error, the judgment of the trial

court is affirmed.

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TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Christie M. Bebo
Hon. Mary Katherine Huffman