[Cite as State v. Bergk, 2017-Ohio-8210.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
DOROTHY BERGK : Case No. 16-CA-45
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Case No.
16-CR-250
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: October 13, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT THOMAS R. ELWING
Fairfield County Prosecuting Attorney 60 West Columbus Street
Pickerington, Ohio 43147
By: JOSHUA S. HORACEK
Assistant Prosecuting Attorney
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 16-CA-45 2
Baldwin, J.
{¶1} Defendant-appellant Dorothy Bergk appeals from the denial by the Fairfield
County Court of Common Pleas of her Motion to Suppress. Plaintiff-appellee is the State
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 1, 2016, the Fairfield County Grand Jury indicted appellant on one
count of possession of heroin in violation of R.C. 2925.11(A) and 2925.11(C)(6)(a), a
felony of the fifth degree.
{¶3} Appellant, on September 13, 2016, filed a Motion to Suppress. Appellant, in
her motion, sought to suppress approximately 0.15 grams of heroin on the grounds that
the heroin had been seized by the police during an unreasonable investigative detention
and warrantless vehicle search. A hearing on the motion was held on October 14, 2016.
{¶4} At the hearing, Officer Charles Sims of the Lancaster Police Department
testified that on May 2, 2016, he was working patrol in uniform in a marked cruiser when
he went to a drive-thru to get a soda for himself. When he was going through the drive-
thru, an employee of the drive-thru told him that just prior to his arrival, one vehicle had
rear-ended another vehicle. Officer Sims testified that the employee told him that the
woman who was driving the rear vehicle seemed “just not right” and appeared to be off.
Transcript at 31. Because neither vehicle was damaged, neither of the drivers wanted
anything done.
{¶5} As Officer Sims was pulling away from the drive-thru, the same employee
stopped him and told him that the vehicle that had rear-ended the other vehicle was
parked on the side of the building. He testified that the employee asked him to investigate
Fairfield County, Case No. 16-CA-45 3
the vehicle and that she appeared to be concerned for the well-being of the occupants.
Officer Sims testified that he next pulled in behind the vehicle, which was occupied by a
man and a woman, and began to run the license plate. According to Officer Sims, he
pulled in behind the vehicle for purposes of officer safety. He testified that he was
concerned that the driver could be under the influence of alcohol or drugs or could be
having a medical issue.
{¶6} Officer Sims then made contact with the driver of the vehicle, who was
appellant. He asked appellant for identification and she produced the same. Officer Sims
testified that he had recognized both appellant and her passenger from a prior drug
trafficking investigation in 2015. Both appellant and her passenger, in 2015, had been
indicted for trafficking in cocaine, but the charges were later dismissed due to the death
of the confidential informant. Appellant told the Officer that she had not been feeling well.
He testified that “it seemed to me that she wasn’t under the influence, necessarily, right
away, and that she didn’t need an emergency squad right then.” Transcript at 58. He
further testified that appellant did not want to make eye contact with him and that her
passenger was “extremely nervous”, his hands were shaking and he was bouncing his
knee up and down and that he was on the phone. Transcript at 59. The Officer testified
that these were good indicators that the two had something to hide.
{¶7} Shortly after providing appellant’s driver’s license information to dispatch,
Officer Sims called for a canine unit to be dispatched. The following testimony was
adduced when he was asked why he called for the unit:
{¶8} “Harold [appellant’s passenger] was just,-- his nervous behavior was really,
really tipping off ques (sic) to me that something was going on. So his nervous behavior,
Fairfield County, Case No. 16-CA-45 4
Dorothy [appellant] not wanting to make eye contact with me, their drug history in the
past, there was just too many ques (sic) and indicators there that were indicating to me
that something was going on, Why were they even pulled over on the side of the building?
Because she was checking a lighter, is what she said, and she was trying to change the
–why wouldn’t Harold just do that? There was just a lot of ques (sic) and indicators that
something was going on. Something was not right with this vehicle and these people in
this vehicle at that time.”
{¶9} Transcript at 64-65.
{¶10} Officer Sims agreed that when he called for the canine unit, he had not
received confirmation of any suspensions or warrants for appellant and was still waiting
on such information from dispatch. At nine minutes and 49 seconds into the stop,
dispatch informed Officer Sims that appellant was “valid, no restrictions.” Transcript at 51.
At nine minutes and 59 seconds into the stop, Officer Sims advised appellant and her
passenger that the canine unit would be walking around the vehicle. There was evidence
that at approximately ten minutes and 20 seconds into the stop, the canine conducted a
sniff around the vehicle and, within seconds, alerted to the presence of narcotics. Officer
Sims testified that narcotics were found in appellant’s purse.
{¶11} On cross-examination, Officer Sims agreed that he was quickly able to
make the determination that appellant was not under the influence of alcohol or drugs.
He testified that she did not have an odor of alcohol on or about her person or coming
from the vehicle, that her eyes were not bloodshot or watery, and that she was not
slumped over. He agreed that fairly soon into the stop, he made the assessment that
appellant did not have any medical issues and that he made such assessment before
Fairfield County, Case No. 16-CA-45 5
calling for the canine unit. Officer Sims further testified that he was aware that the 2015
indictments against appellant and her passenger for trafficking in cocaine had been
dismissed. He agreed that he allowed appellant and her passenger to drive away from
the scene.
{¶12} On cross-examination, Officer Sims further testified that by the time that the
canine unit started walking around the vehicle, he had received information from dispatch
that appellant was valid and had no restrictions, that he was not investigating any type of
DUI stop, and that he was not investigating or detaining appellant for any type of
community caretaker function as a police officer. He agreed that he did not cite appellant
or her passenger for any offense and that he was not investigating the previous minor
automobile accident.
{¶13} At the conclusion of the hearing, the trial court denied appellant’s Motion to
Suppress. A Judgment Entry memorializing the trial court’s decision was filed on October
28, 2016.
{¶14} Thereafter, on November 7, 2016, appellant withdrew her former not guilty
plea and entered a plea of no contest to possession of heroin. The trial court found
appellant guilty and, pursuant to a Judgment Entry filed on November 14, 2016, placed
her on three years of community control. Appellant was also ordered to pay a fine in the
amount of $500.00 and her driver’s license was suspended for a period of 180 days.
{¶15} Appellant now raises the following assignments of error on appeal:
{¶16} I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
TO SUPPRESS BECAUSE THE INITIAL INVESTIGATIVE DETENTION BY OFFICER
SIMS WAS UNREASONABLE UNDER THE FOURTH AMENDMENT TO THE UNITED
Fairfield County, Case No. 16-CA-45 6
STATES CONSTITUTION AND SECTION 14, ARTICLE I OF THE OHIO
CONSTITUTION.
{¶17} II. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
TO SUPPRESS BECAUSE THE PROLONGED INVESTIGATIVE DETENTION BY
OFFICER SIMS TO SUMMON A DRUG- SNIFFING CANINE AND CONDUCT A
WARRANTLESS SEARCH OF APPELLANT’S AUTOMOBILE WAS UNREASONABLE
UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION.
I, II
{¶17} Appellant, in her two assignments of error, challenges the trial court denial
of her Motion to Suppress.
{¶18} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d
1141(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(4th
Dist.1993). Second, an appellant may argue the trial court failed to apply the appropriate
test or correct law to the findings of fact. In that case, an appellate court can reverse the
trial court for committing an error of law. State v. Williams, 86 Ohio App.3d 37, 619
N.E.2d 1141 (1993). Finally, assuming the trial court's findings of fact are not against the
manifest weight of the evidence and it has properly identified the law to be applied, an
appellant may argue the trial court has incorrectly decided the ultimate or final issue
Fairfield County, Case No. 16-CA-45 7
raised in the motion to suppress. When reviewing this type of claim, an appellate court
must independently determine, without deference to the trial court's conclusion, whether
the facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio
App.3d 93, 641 N.E.2d 1172 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623, 620
N.E.2d 906 (4th Dist.1993); Guysinger, supra. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “[A]s a
general matter determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal.”
{¶19} We note that, in the case sub judice, Officer Sims testified that he pulled his
cruiser behind appellant’s vehicle, effectively blocking it in. Courts have generally held
that, if an officer positions his cruiser so that a person cannot exit a parking lot without
asking the officer to move, the officer has exhibited a show of authority constituting a
seizure. State v. Wallace, 145 Ohio App.3d 116, 122–23, 761 N.E.2d 1143 (6th Dist.
2001); State v. Inabnitt, 76 Ohio App.3d 586, 589–90, 602 N.E.2d 740 ( 2nd Dist. 1991).
{¶20} The issue is whether or not Officer Sims had reasonable suspicion to
conduct an investigatory stop. A traffic stop constitutes a seizure of a person under the
Fourth Amendment of the United States Constitution. Whren v. United States, 517 U.S.
806, 809–810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In Terry v. Ohio, 392 U.S. 1, 22,
88 S.Ct. 1868 (1968), the United States Supreme Court determined “a police officer may
in appropriate circumstances and in an appropriate manner approach a person for
purposes of investigating possible criminal behavior even though there is no probable
cause to make an arrest.” However, for the propriety of a brief investigatory stop pursuant
to Terry, the police officer involved “must be able to point to specific and articulable facts
Fairfield County, Case No. 16-CA-45 8
which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.” Id. at 21. Such an investigatory stop “must be viewed in the light of the totality
of the surrounding circumstances” presented to the police officer. State v. Freeman, 64
Ohio St.2d 291, 414 N.E.2d 1044, paragraph one of the syllabus (1980).
{¶21} However, courts also recognize that a community-caretaking/emergency-
aid exception to the Fourth Amendment warrant requirement is necessary to allow police
to respond to emergency situations where life or limb is in jeopardy. State v. Dunn, 131
Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 21. In dealing with this exception,
“[t]he key issue is whether the officers ‘had reasonable grounds to believe that some kind
of emergency existed * * *. The officer must be able to point to specific and articulable
facts, which, taken with rational inferences from those facts, reasonably warrant intrusion
into protected areas.’ ” State v. White, 175 Ohio App.3d 302, 2008-Ohio-657, 886 N.E.2d
904, ¶ 17 (9th Dist.). (Citations omitted).
{¶22} In the case sub judice, there was testimony that an employee of the drive-
thru informed Officer Sims that one vehicle had rear-ended another and that the driver of
the rear vehicle, a female, seemed “just not right.” Transcript at 31. The employee shortly
thereafter stopped the Officer again and told him that the vehicle had not left the drive-
thru property but was parked on the side of the building. We find, based on these facts,
that Officer Sims had reasonable grounds to believe that an emergency existed and that
his initial investigative detention was not unreasonable.
{¶23} The next issue for determination is whether or not Officer Sims’ prolonged
detention of appellant to summon a drug-sniffing dog to conduct a warrantless search of
appellant’s vehicle was unreasonable. “[A]n investigative detention must be temporary
Fairfield County, Case No. 16-CA-45 9
and last no longer than is necessary to effectuate the purpose of the stop.” Florida v.
Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Indeed, “[t]he
lawfulness of the initial stop will not support a fishing expedition for evidence of crime.”
State v. Gonyou, 108 Ohio App.3d 369, 372, 670 N.E.2d 1040 (6th Dist.1995). Still, “the
detention of a stopped driver may continue beyond the [normal time] frame when
additional facts are encountered to give rise to a reasonable, articulable suspicion of
criminal activity beyond that which prompted the initial stop.” State v. Batchili, 113 Ohio
St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 15.
{¶24} As noted by appellant, Officer Sims, during the suppression hearing,
testified that at the time the canine walked around appellant's vehicle, he had already
received information that appellant was valid and had no restrictions and that he was not
investigating any type of DUI stop, having determined that appellant was not under the
influence of alcohol or drugs. He further testified that he was not, at that time, investigating
or detaining appellant because he was concerned about her well-being or ability to drive
and that he did not issue her any traffic citation. He further agreed that he was not
detaining her for purpose of preparing a report related to the earlier accident. We find,
based on the foregoing, that the prolonged investigative detention of appellant exceeded
the purpose of the initial stop of appellant and was not based on reasonable, articulable
suspicion of criminal activity beyond that which prompted the initial stop.
{¶25} Based on the foregoing, we find that the trial court erred in denying
appellant’s Motion to Suppress.
{¶26} Appellant’s first assignment of error is, therefore, overruled, while
appellant’s second assignment of error is sustained.
Fairfield County, Case No. 16-CA-45 10
{¶27} Accordingly, the judgment of the Fairfield County Court of Common Pleas
is reversed and this matter is remanded for proceedings consistent with this Opinion.
By: Baldwin, J.
Earle Wise, J. concur.
Hoffman, P.J., concurs separately
Fairfield County, Case No. 16-CA-45 11
Hoffman, P.J., concurring
{¶28} I concur in the majority’s analysis and disposition of Appellant’s second
assignment of error.
{¶29} However, I would also sustain Appellant’s first assignment of error. Officer
Sims was told neither vehicle was damaged and neither of the drivers wanted anything
done. The fact the drive-thru attendant described Appellant as “just not right” is
insufficient to justify Appellant’s detention. Although certainly grounds to approach the
vehicle and question Appellant, these circumstances do not provide reasonable,
articulable facts to justify a stop.