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Date: 01-11-2019

Case Style:

STATE OF OHIO -vs- DAVID YACOBUCCI

Case Number: 18 CAC 07 0055

Judge: W. Scott Gwin

Court: COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: CHRISTOPHER BALLARD

Defendant's Attorney: SHAWN DOMINY

Description:



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After an incident on October 14, 2017, appellant was cited with OVI in
violation of R.C. 4511.19(A)(1)(a) and refusal of a chemical test while having a prior
conviction in violation of R.C. 4511.19(A)(2).
{¶3} Appellant filed a motion to suppress evidence on November 1, 2017.
Appellant argued his detention was not justified because the officers did not have the
requisite reasonable suspicion of criminal activity to justify the detention of his vehicle; his
continued detention was not justified; and his arrest was not justified. Appellant filed a
supplemental memorandum to his motion to suppress evidence on May 9, 2018, arguing
it was unreasonable and unlawful for the trooper to detain him for exercising his right to
freedom of speech.
{¶4} The trial court held a hearing on appellant’s motion on May 11, 2018.
Trooper Darius Patterson (“Patterson”) testified that on October 14, 2017 at 12:30 in the
morning, he was on regular patrol while in uniform and in a marked cruiser. Trooper
Lindsay Barrett (“Barrett”) called for assistance and indicated to him there was a
gentleman interfering with her traffic stop while she had multiple occupants in the car and
a person out of the car for field sobriety tests. Barrett informed Patterson she was in the
parking lot of Tequila Cowboy. Patterson stated he arrived on the scene and Barrett
waved him down, gave him a description of the individual, and pointed to him walking
towards the building. Barrett informed Patterson the individual was interfering with her
Delaware County, Case No. 18 CAC 07 0055 3
investigation by yelling at her during the stop and told Patterson she was concerned
because the individual seemed intoxicated.
{¶5} Patterson testified that when he first made contact with the individual, later
identified as appellant, appellant was very irate, shouting at the top of his lungs, mixing
between German and English, and continued on a long tirade shouting for quite some
time. They initially had a back-and-forth conversation, but Patterson let appellant vent
his anger. Patterson stated they were standing directly next to his vehicle on the driver’s
side. Patterson noticed appellant had a strong odor of alcohol and his eyes were glassy
and bloodshot. Patterson believed appellant was impaired because he was irate, was
screaming in German about the Gestapo, was positioning himself into a Nazi salute while
screaming about the Gestapo, and seemed to be repeatedly shouting the phrases “Zieg
Heil” and “we will stop you; fear the police.” Patterson did not arrest appellant and did not
tell him he was not free to leave; however, Patterson thought appellant would be in
investigative custody.
{¶6} Patterson testified he was concerned for the safety of the public, as there
were lots of people watching the events unfold. Patterson testified to appellee’s Exhibit
2, dash-cam video from his cruiser.
{¶7} The video shows Patterson telling appellant, “Hey come here, Come over
here. Keep your hands out of your pockets.” Appellant is repeatedly screaming and
shouting various phrases, such as “are you the Gestapo,” “Zieg Heil,” you need to be
filming this for YouTube,” “I don’t want to be tasered or shot,” and other German phrases
for a continued period of time while Patterson is attempting to have a conversation with
appellant and telling him he is not going to be shot or tasered. Appellant repeatedly asks
Delaware County, Case No. 18 CAC 07 0055 4
Patterson if he “knows what I’m saying.” The video shows Patterson’s cruiser lights are
activated and the encounter takes place in a parking lot, where multiple patrons are
walking around and cars are coming in and out.
{¶8} Patterson stated that he and a sergeant from the Columbus Police spoke
with the manager of Tequila Cowboy, who stated he did not feel comfortable having
appellant inside the bar. The officers decided they were not going to press charges for
obstructing a stop, but since appellant was clearly impaired, they decided the safe bet
was for him to find a ride home. Patterson advised appellant not to drive, that he should
get a ride, and then parted ways with appellant.
{¶9} After Patterson believed appellant was going to call for a ride, he ended his
cruiser video and was about to leave, when he asked the Columbus Police what was
going on. The Columbus officer told Patterson appellant jumped in a white Buick in the
driver’s seat and was attempting to leave the scene immediately after they told him to call
for a ride. Patterson observed the white Buick pull out of the parking lot on to McCoy
Center. Patterson made contact with appellant and administered field sobriety tests.
{¶10} On cross-examination, Patterson confirmed the information he received that
night was that there was a guy in a white shirt yelling at Barrett and he detained appellant
based on the information Barrett provided. Patterson thought appellant yelling at Barrett
was obstructing official business because it appeared to Patterson that Barrett did not
feel safe handling her business. When asked if Barrett told Patterson she didn’t feel safe,
Patterson stated “she wouldn’t have asked for another unit if she would have.” Patterson
did not recall Barrett saying “disregard.”
Delaware County, Case No. 18 CAC 07 0055 5
{¶11} Patterson stated he had his cruiser lights on when he got around the parked
cars and had his uniform on. Patterson testified he gave appellant instructions to “hey,
come over here. Over here. Keep your hands out of your pockets.” Patterson’s gun was
not drawn.
{¶12} Sergeant Chris Wheeler (“Wheeler”) was finishing up a traffic stop on the
night of October 14, 2017 and overheard some of the traffic stop Barrett was making. He
could hear some shouting and could tell she was concerned someone was interfering
with her traffic stop. Wheeler stated Barrett is a very confident individual who does not
normally call for back-up unless she feels she needs it and he could tell she needed some
back-up. Barrett told Wheeler she was conducting a stop and appellant kept going back
and forth during her stop yelling, being very disruptive, and making it unsafe for her to
conduct her business. Barrett expressed to him that she felt unsafe. Wheeler stated he
could tell appellant was highly intoxicated. In regards to whether to charge appellant,
Wheeler spoke with Columbus police officers and made the decision that, if appellant
could get a ride and leave the premises, they would not charge him because he was trying
to give appellant the benefit of the doubt. Barrett indicated to Wheeler that appellant was
yelling at her and walking around her area of traffic where she couldn’t focus on her stop.
{¶13} On cross-examination, Wheeler confirmed he did not see appellant near
Barrett. Wheeler also reviewed the video from Barrett’s dash-cam. Wheeler stated
Barrett turned to appellant and directed her attention away from her original suspect
because either something was said or something must have startled her. Wheeler could
not understand what appellant was yelling, but stated it was interfering with the traffic
Delaware County, Case No. 18 CAC 07 0055 6
stop. Wheeler stated Barrett stated “she can disregard” one minute after she called for
backup.
{¶14} The video shows appellant walking towards Barrett. Appellant is behind her
with his hands in his pockets and is a few feet away from her. Barrett is conducting a
separate traffic stop with the driver and passengers in another vehicle. As Barrett is
instructing the other driver to get out of the vehicle, she turns toward appellant, away from
the driver she is leading out of the car. When she is turned towards appellant, appellant
is yelling and screaming. Barrett’s belt microphone is not working. However, the yelling
and screaming of appellant is picked up by the microphone inside the police cruiser,
although what appellant is screaming is not decipherable. Barrett turns to face appellant
and watches him walk around her car. Barrett calls for backup. One minute later, Barrett
states, “she can disregard.” During this encounter with appellant, Barrett is focused on
appellant.
{¶15} The trial court issued a judgment entry on May 25, 2018 denying appellant’s
motion to suppress. The trial court noted that, prior to hearing testimony, counsel for
appellant withdrew all issues raised in his motion except the lawfulness of the initial
detention at Tequila Cowboy and whether the horizontal gaze nystagmus test was
administered in substantial compliance with NHTSA standards. The trial court stated it
heard testimony from Patterson and Wheeler, and also viewed the video evidence from
dash-cams located in Patterson’s and Barrett’s police cruisers.
{¶16} The trial court found: Patterson did not verbally threaten appellant, spoke
to him in a quiet, low key manner, the encounter took place in a public place, numerous
people were standing in the area and moving in and out of the building, Patterson’s only
Delaware County, Case No. 18 CAC 07 0055 7
show of authority was the blinking of his overhead lights, and the encounter was
prolonged by appellant’s behavior and his unwillingness to be responsive to the officer’s
questions. The trial court thus concluded the encounter was consensual from the
beginning and remained consensual until appellant left the area.
{¶17} The trial court further found that even if the encounter was not consensual,
the officers possessed adequate and reliable information that appellant had committed or
might commit a crime and investigative detention was warranted under the
circumstances. The trial court stated that, based upon the information available to
Patterson, he had reason to detain appellant to determine whether he should be charged,
and Barrett had not yet completed her OVI investigation and she was entitled to complete
her investigation and then discuss with the other officers whether appellant should be
charged. Further, that video evidence supports the reasonableness of an obstructing
charge and Barrett was justifiably concerned about appellant’s behavior which caused
her to delay her investigation and focus upon him because appellant appears to have
alarmed Barrett and repeatedly screamed at her while she was dealing with another
suspect. The trial court stated Barrett was distracted from her investigation and focused
her attention on appellant for several minutes, she was concerned enough to call back
up, and her “disregard” message did not imply that appellant had not hampered, impeded,
or delayed her investigation. The trial court also found the HGN test was in substantial
compliance with NHTSA standards.
{¶18} On July 24, 2018, a jury found appellant guilty of operating a vehicle while
under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and not guilty of
operating a vehicle while under the influence of alcohol and refusing a chemical test while
Delaware County, Case No. 18 CAC 07 0055 8
having a prior conviction for an OVI in the past twenty years in violation of R.C.
4511.19(A)(2). The trial court sentenced appellant to ten days in jail and two years of
community control.
{¶19} Appellant appeals the May 25, 2018 judgment entry of the Delaware
Municipal Court and assigns the following as error:
{¶20} “I. THE TRIAL COURT ERRED BY OVERRULING THE DEFENDANT
APPELLANT’S MOTION TO SUPPRESS EVIDENCE.”
I.
{¶21} In his sole assignment of error, appellant argues the trial court erred in
denying his motion to suppress.
{¶22} Appellate review of a trial court’s decision to grant or deny a motion to
suppress involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328,
713 N.E.2d 1 (4th Dist. 1998). During a suppression hearing, the trial court assumes the
role of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030 (1996).
A reviewing court is bound to accept the trial court’s findings of fact if they are supported
by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d
1268 (4th Dist. 1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court’s
conclusion, whether the trial court’s decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (4th Dist. 1993), overruled on other
grounds.
Delaware County, Case No. 18 CAC 07 0055 9
{¶23} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court’s findings of fact are against the manifest weight of the evidence. See, 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). 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. Id. Finally, an appellant
may argue the trial court has incorrectly decided the ultimate or final issues raised in a
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, 620 N.E.2d 906 (8th Dist. 1994).
{¶24} The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution prohibit the government from conducting unreasonable
searches and seizures of persons or their property. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968); State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271
(1991). “However, not every contact between a police officer and citizen implicates the
Fourth Amendment. Only when the officer, by means of physical force or show of
authority, has in some way restricted the liberty of a citizen may we conclude that a
‘seizure’ has occurred.” State v. Lopez, 2nd Dist. Greene No. 94 CA 21, 1994 WL 527670
(Sept. 28, 1994), quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Delaware County, Case No. 18 CAC 07 0055 10
{¶25} As we have observed, the law within the State of Ohio recognizes three
types of police-citizen encounters: consensual encounters, Terry stops, and arrests.
State v. Stonier, 5th Dist. Stark No. 2012 CA 00179, 2013-Ohio-2188, citing State v.
Taylor, 106 Ohio App.3d 741, 667 N.E.2d 60 (2nd Dist. 1995).
{¶26} A consensual encounter occurs when a police officer approaches a person
in a public place, engages the person in conversation, requests information, and the
person is free to refuse to answer and walk away. Id. The United States Supreme Court
“[has] held repeatedly that mere police questioning does not constitute a seizure.” Florida
v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). “[M]erely approaching
an individual on the street or in another public place[,]” seeking to ask questions for
voluntary, uncoerced responses, does not violate the Fourth Amendment. United States
v. Flowers, 909 F.2d 145 (6th Cir. 1990). “[E]ven when officers have no basis for
suspecting a particular individual, they may generally ask questions of that individual; ask
to examine the individual’s identification; and request consent to search his or her
luggage.” Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The
person approached, however, need not answer any question put to him, and may
continue on his way. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229
(1983). Moreover, he may not be detained even momentarily for his refusal to listen or
answer. Id. So long as a reasonable person would feel free “to disregard the police and
go about his business,” California v. Hodari D, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d
690 (1991), the encounter is consensual and no reasonable suspicion is required.
Bostick, 501 U.S. at 434.
Delaware County, Case No. 18 CAC 07 0055 11
{¶27} The Ohio Supreme Court has held that a police officer’s statement, “Hey,
come here a minute,” while nominally couched in the form of a demand, is actually a
request that a citizen is free to regard or disregard. State v. Smith, 45 Ohio St.3d 255,
544 N.E.2d 239 (1989), reversed sub nom. Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288,
108 L.Ed.2d 464 (1990); State v. Crossen, 5th Dist. Ashland No. 2010-COA-027, 2011
Ohio-2509.
{¶28} In United States v. Mendenall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d
497, the United States Supreme Court made the following observation: “[w]e conclude
that a person has been “seized” within the meaning of the Fourth Amendment only if, in
view of all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.” Examples of circumstances that might indicate a
seizure, even where the person did not attempt to leave, would be the threatening
presence of several officers, the display of a weapon by an officer, some physical touching
of the person of the citizen, or the use of language or tone of voice indicating compliance
with the officer’s request might be compelled. Id.
{¶29} A consensual encounter does not implicate the Fourth Amendment’s
protection against unreasonable searches and seizures unless the police officer has
restrained the person’s liberty by a show of authority or physical force such that a
reasonable person would not feel free to decline the officer’s request or otherwise
terminate the encounter. Id. at 747-48.
{¶30} “The second type of encounter is a ‘Terry stop’ or an investigatory detention.
The investigatory detention is more intrusive than a consensual encounter, but less
intrusive than a formal custodial arrest. The investigatory detention is limited in duration
Delaware County, Case No. 18 CAC 07 0055 12
and purpose and can only last as long as it takes a police officer to confirm or to dispel
his suspicions.” Id. at 748. Such a stop is valid if the officer had reasonable and
articulable suspicion of criminal activity. Id. at 749. 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 which, taken together with rational inferences from those
facts, reasonably warrant than intrusion. Id. 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 (1980). A determination of
probable cause is made from the totality of the circumstances. Factors to be considered
include an officer’s observation of some criminal behavior by the defendant, furtive or
suspicious behavior, flight, events escalating reasonable suspicion into probable cause,
association with criminals and locations. Katz, Ohio Arrest, Search and Seizure (2001
Ed.), 83-88 Sections 3.12-3.19.
{¶31} In this case, the trial court first found the encounter was consensual from
the beginning and remained so until appellant left the area. Appellant contends he was
seized by Patterson, under the totality of the circumstances, because Patterson was in a
marked cruiser, activated his lights, wore his uniform, yelled instructions at him, and there
was the threatening presence of several officers.
{¶32} Upon review, under the totality of the circumstances, we conclude this was
a consensual encounter such that the Fourth Amendment was not implicated. While
Patterson displayed his lights and had on a uniform, he did not physically touch or
threaten appellant, did not order appellant into the cruiser, did not draw his weapon, did
not indicate non-compliance would lead to arrest, and did not block appellant’s way.
Delaware County, Case No. 18 CAC 07 0055 13
Appellant did not ask if he was free to leave. The video shows that Patterson did not
verbally threaten appellant and at all times spoke in a quiet and calm manner and
attempted to reason with appellant. The encounter took place in a public area with
patrons walking in and out of the establishment. While Patterson testified there were
other officers present, the record does not indicate that they were close to appellant or
were otherwise behaving in a threatening manner. The encounter occurred at 12:30 in
the morning, and was prolonged by appellant’s behavior and unwillingness to respond to
questions, as he continually screamed and shouted at Patterson while Patterson was
attempting to have a rational conversation with him.
{¶33} Appellant cites State v. Romacko, 5th Dist. Tuscarawas No. 2015 AP 0063,
2016-Ohio-1512, in support of his argument that the encounter was not consensual. In
Romacko, we found the simple observation of the appellant leaving home in broad
daylight where two drug overdoses had occurred in the past two weeks without any other
furtive behavior and where the officer’s language or tone of voice indicated compliance
with his request might be compelled was a seizure. However, as detailed by the facts
presented above, we find Romacko factually distinguishable from the instant case.
{¶34} Appellant also cites Patterson’s testimony that he thought appellant would
be in investigative custody. However, as this Court has previously stated, the officer’s
subjective intention is immaterial. State v. Berry, 5th Dist. Tuscarawas No.
2018AP060027, 2017-Ohio-8113. The subjective intent of the officer to allow the
individual to leave is irrelevant; the test is objective and is based upon whether a
reasonable person would have felt free to leave. State v. Wallace, 145 Ohio App.3d 116,
Delaware County, Case No. 18 CAC 07 0055 14
761 N.E.2d 1143 (6th Dist. 2001), citing United States v. Mendenhall, 446 U.S. 544, 100
S.Ct. 1870, 64 L.Ed.2d 497 (1980).
{¶35} The trial court further found that, even if the encounter was not consensual,
the officer had adequate, reliable information that appellant committed or might commit a
crime, specifically obstructing official business. Appellant argues Patterson did not have
a justification for seizing him because Patterson did not have a reasonable suspicion he
engaged in criminal activity. We agree with the trial court.
{¶36} The propriety of an investigative stop must be viewed in light of the totality
of the circumstances surrounding the stop “as viewed through the eyes of the reasonable
and prudent police officer on the scene who must react to events as they unfold.” State
v. Reece, 5th Dist. Delaware No. 17 CAC 03 0019, 2018-Ohio-150, citing State v.
Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991). Although an officer’s reliance on a
mere “hunch” is insufficient to justify a stop, the likelihood of criminal activity need not rise
to the level required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard. United States v. Cortez, 449 U.S. 411, 101
S.Ct. 690, 66 L.Ed.2d 621 (1981).
{¶37} Patterson testified the information he received was that appellant had
approached Barrett and yelled at her while she was doing an unrelated traffic stop and
she was concerned because he seemed intoxicated. Once Patterson made contact with
appellant, the encounter was prolonged by appellant’s behavior. The video shows
appellant walking towards Barrett with his hands in his pockets. As Barrett is taking the
driver out of the car during the traffic stop, she turns towards appellant and away from the
driver. Appellant is yelling and screaming as he is several feet away from Barrett. Barrett
Delaware County, Case No. 18 CAC 07 0055 15
turns to face appellant and asks for another unit because there is a man yelling at her.
Barrett watches appellant walk around her car while she is attempting to deal with a
suspect from another incident outside of her vehicle, delaying her investigation.
{¶38} When asked on cross-examination why Patterson thought appellant was
obstructing official business, Patterson testified it was because it appeared to him that
Barrett did not feel safe handling her business. Barrett did not tell Patterson she did not
feel safe, but Patterson testified “she wouldn’t have asked for another unit if she would
have.” Wheeler testified that Barrett is a very confident individual who does not normally
call for back-up unless she feels she needs it and Wheeler could tell she needed it.
Barrett expressed to Wheeler that she felt unsafe because appellant kept going back and
forth during her stop.
{¶39} Appellant contends there was not sufficient evidence that he obstructed
Barrett’s investigation because, shortly after she called for backup, she radioed “she can
disregard.” However, as noted by the trial court, this comment does not necessarily
suggest Barrett was telling all officers to disregard her request and may have been in
reference to a particular person. Further, Barrett’s “disregard” message does not mean
appellant did not hamper, impede, or delay the investigation.
{¶40} Based upon our review of the record, we find appellee demonstrated a
reasonable articulable suspicion of criminal activity. See State v. Willey, 5th Dist. Stark
No. 2014CA00222, 2015-Ohio-4572 (finding appellant’s argumentative demeanor stalled
the investigation and was sufficient evidence for conviction of obstructing official
business); State v. Shepherd, 5th Dist. Richland No. 14CA63, 2015-Ohio-4330 (finding
when the focus shifted to the appellant’s behavior there was sufficient evidence from
Delaware County, Case No. 18 CAC 07 0055 16
which a rational trier of fact could conclude he acted with the specific intent to prevent,
obstruct, or delay the officer in his lawful duties); State v. Saunders, 5th Dist. Muskingum
No. CT2017-0052, 2018-Ohio-2624 (finding the State demonstrated a reasonable
articulable suspicion of criminal activity even though the appellant was not actually
charged).
{¶41} Finally, appellant argues he was illegally seized by exercising his right to
free speech. We disagree. Officers did not charge appellant with anything as a result of
his initial contact with them when he was yelling and screaming at them; rather, he was
charged after he got into his car and started driving. Additionally, Patterson testified the
information that he had from Barrett was that appellant was yelling and screaming at her
while she was trying to conduct a traffic stop and that he may be intoxicated. There is no
evidence that Patterson approached appellant based on the content of his speech to
Barrett or that the encounter was prolonged based upon the content of appellant’s
speech.

Outcome: Based on the foregoing, appellant’s assignment of error is overruled.

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Defendant's Experts:

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