Mr. Holler’s contention that “Pennsylvania v. Mimms does not apply” is, therefore, incorrect, and the trial court did not err by denying his motion to suppress.

 

State v. Holler

2023 – Ohio – 2528

Ninth District Appellate Court

Wayne County, Ohio

July 24, 2023

 

Mr. Holler is Stopped for an Inoperable Light

On Thursday August 19, 2020, a deputy sheriff working in Chippewa Township stopped Mr. Holler’s vehicle for a traffic violation and for having an inoperative vehicle light. The deputy approached the vehicle, requested Mr. Holler’s driver’s license and registration, and returned briefly to his cruiser to determine whether Mr. Holler had any outstanding warrants. The deputy – who had not yet processed a citation – then approached the vehicle again. After the deputy shined his flashlight in the backseat and asked Mr. Holler whether he had any contraband, Mr. Holler acknowledged that he had consumed one beer and that he was nervous about receiving a citation. The deputy asked Mr. Holler to step from the vehicle.

Chippewa Township is located southwest of Akron in Wayne County and was the location of this traffic stop.  The specific location of the traffic stop was not identified in the appellate court decision.

Beer, a Firearm and Adderall

Once Mr. Holler had done so, the deputy asked whether he had anything illegal in his possession. Mr. Holler told the deputy that he had an open beer in a cooler, and the deputy asked for permission to search the car. Mr. Holler acknowledged that he had a firearm in the car and that he did not have a concealed-carry permit. The deputy informed Mr. Holler that he was going to be detained and, during a pat-down, discovered an Adderall tablet. The deputy found additional contraband when he searched Mr. Holler’s vehicle.

Motion to Suppress is Denied and Mr. Holler Pleas No Contest

Mr. Holler was charged with improperly handling firearms in a motor vehicle, carrying a concealed weapon, aggravated possession of drugs, possession of drugs, and a marked- lanes violation. Mr. Holler moved to suppress all of the evidence gained after the deputy’s request for Mr. Holler to exit the vehicle, characterizing the deputy’s request as an extension of the traffic stop that itself required a reasonable suspicion of criminal activity because the deputy’s motivation was to conduct field sobriety tests. In its decision denying the motion, the trial court concluded that “[T]he traffic stop was lawful and the deputy may briefly detain an individual without reasonably articulable facts giving rise to suspicion of criminal activity.” Mr. Holler changed his plea to no contest, and the trial court sentenced him to twenty-four months of community control.

Mr. Holler Appeals his Conviction to the Trial Court

Mr. Holler appealed the trial court’s order that denied his motion to suppress. This Court reversed, noting that “[U]pon review of the trial court’s entry, it appears that the trial court only considered whether Mr. Holler’s traffic stop and initial detention were lawful … [but] [i]t does not appear that the trial court considered Mr. Holler’s argument that his continued detention was unlawful because it was not based on reasonable suspicion.” State v. Holler, 2021-Ohio-4599.  Consequently, this Court remanded the matter “[F]or the trial court to consider Mr. Holler’s arguments regarding the legality of his continued detention in the first instance.” Id. at ¶ 16. 

Mr. Holler Establishes Probable Cause

On remand, the trial court specifically concluded that the deputy was justified in asking Mr. Holler to exit the vehicle under Pennsylvania v. Mimms, 434 U.S. 106 (1977) and noted that there was no evidence that the deputy asked Mr. Holler to do so for the purpose of field sobriety testing. The trial court also wrote that “[T]he admission of the contraband in his vehicle changed the nature of the traffic stop to a request to search the vehicle” and concluded that “Mr. Holler’s admission, that there was contraband … in his vehicle, provided the deputy justification to request to search the vehicle for contraband as well as make additional inquiries and continue the detention.” The trial court re-entered Mr. Holler’s judgment entry of conviction, and Mr. Holler appealed.

Mr. Holler Appeals His Conviction to the Ninth District Appellate Court

Mr. Holler’s only assignment of error argues that the trial court erred by denying his motion to suppress. This Court does not agree.

Mr. Holler was Nervous

Mr. Holler has not challenged the trial court’s findings of fact. In its first ruling on the motion to suppress, the trial court found that when the deputy approached Mr. Holler’s vehicle about ninety seconds after initiating the traffic stop, Mr. Holler appeared to the deputy to be nervous. According to the deputy, Mr. Holler’s hands were shaking more than he would have expected under the circumstances, and the deputy noted that Mr. Holler’s stomach was also shaking. In this regard, the trial court found that Mr. Holler appeared to rest his hand on the driver’s side door to prevent his hand from shaking.

Mr. Holler’s Admission of the Open Beer Established Probable Cause to Search

The trial court noted that the deputy returned to the vehicle after about two minutes and, at that point, had not yet started to prepare a citation. After Mr. Holler acknowledged that he had consumed one beer that evening, the deputy asked him to step from the vehicle. The trial court found that the deputy’s articulated purpose for doing so was “particularly about [Mr. Holler’s] nervousness.” According to the trial court’s findings, Mr. Holler admitted that he had an open container of beer in the car soon thereafter and consented to a search of his vehicle, which led to the discovery of further contraband. The trial court also found that about eight minutes passed between the initiation of the stop and Mr. Holler’s admission that he had an open container in the car and, according to the deputy’s testimony, a traffic stop usually lasts ten minutes or longer.

A Unique Legal Argument – Established Case Law Does Not Apply

Mr. Holler’s legal argument is a narrow one: he maintains that Mimms does not apply to this case and, consequently, that the trial court incorrectly concluded that the deputy was justified in asking him to exit the vehicle. In Mimms, the United States Supreme Court considered “the narrow question of whether the order to get out of [a] car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment.” Mimms, 434 U.S. at 109. Noting that it was the officer’s practice to do so during every traffic stop, the Supreme Court characterized the “additional intrusion” of exiting a vehicle as “de minimis”—“[A] mere inconvenience [that] cannot prevail when balanced against legitimate concerns for the officer’s safety.”Id. at 111. See also State v. Evans, 67 Ohio St.3d 405, 408 (1993) (“[A] Mimms order does not have to be justified by any constitutional quantum of suspicion.”).

Pre-Textual Stop is Objectively Reasonable

In a later case, the United State Supreme Court considered another issue related to the constitutionality of traffic stops: whether an officer’s subjective motivation for initiating a traffic stop invalidates objectively reasonable conduct. Whren v. United States, 517 U.S. 806, 811- 812 (1996). Rejecting this argument, the Supreme Court concluded that “[S]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id. at 813. This principle also applies when an officer orders a driver to exit a vehicle once a traffic stop is in progress. Ohio v. Robinette, 519 U.S. 33, 38-39 (1996). In Robinette, a deputy sheriff initiated a traffic stop, obtained the driver’s license, and returned to his cruiser to check for other violations. Finding none, the deputy approached again and ordered the driver to exit the vehicle. In the course of their further interaction, the deputy asked for the driver’s consent to search the vehicle. Id. at 35-36.

[T]he officers’ subjective motivation for continuing the detention is irrelevant.

The Ohio Supreme Court had concluded that the officer’s subjective intention placed the stop outside the parameters of Mimms:

When the motivation behind a police officer’s continued detention of a person stopped for a traffic violation is not related to the purpose of the original, constitutional stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some separate illegal activity justifying an extension of the detention, the continued detention constitutes an illegal seizure. Robinette at 37-38, quoting State v. Robinette, 73 Ohio St.3d 650 (1995), paragraph one of the syllabus. Applying Whren to these facts, however, the United States Supreme Court reversed, concluding that “[T]he subjective intentions of the officer [do] not make the continued detention of [the driver] illegal under the Fourth Amendment” when, under Mimms, an officer orders the driver to exit the vehicle. Robinette, 519 U.S. at 38. Upon remand, the Ohio Supreme Court observed that under Whren and Mimms, “[T]he officers’ subjective motivation for continuing the detention is irrelevant.” State v. Robinette, 80 Ohio St.3d 234, 239 (1997) (“Robinette II”).

Holding

In this case, as in Robinette, the deputy obtained Mr. Holler’s driver’s license and returned to his cruiser. When the deputy approached for a second time, without having prepared a citation in the meantime, he asked Mr. Holler to step from the vehicle for the purpose of determining why he appeared to be more nervous than a driver might usually be. The deputy’s subjective rationale in asking Mr. Holler to step from the vehicle was “irrelevant” for purposes of the Fourth Amendment. Robinette II at 239. See also Whren at 813. Mr. Holler’s contention that “Pennsylvania v. Mimms does not apply” is, therefore, incorrect, and the trial court did not err by denying his motion to suppress. Mr. Holler’s assignment of error is overruled.

Mr. Holler’s assignment of error is overruled.

Dissent

CARR, J. DISSENTING.

I respectfully dissent as I do not believe that there was a lawful basis for Mr. Holler’s continued detention in this case.

Mr. Holler’s demeanor coupled with his admission to drinking a single beer did not give rise to a reasonable suspicion of criminal activity. Furthermore, although the deputy had yet to process a citation, the deputy’s request that Mr. Holler exit his vehicle could not reasonably be justified by officer safety concerns given the way the stop had unfolded to that point. Under these circumstances, I would hold that the trial court erred in denying Mr. Holler’s motion to suppress.

Information for this article was obtained from State v. Holler, 2023 – Ohio – 2528.

State v. Holler, 2023 – Ohio – 2528 was issued by the Ninth District Appellate Court and is binding in the following Ohio Counties: Lorain, Medina, Summit and Wayne.

Lessons Learned:

  1. Pre-Textual Traffic Stops – On June 10, 1996 the U.S. Supreme Court issued Whren v. U.S., 517 U.S. 806 (1996) that provided judicial acceptance of the pre-textual stop doctrine as the court held “[T]he District Court found that the officers had probable cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment.”.  Id at 819.  In this case Mr. Holler was driving a vehicle with an inoperable light and the stop was lawful.  The court does not identify what light is inoperable and though not every inoperable vehicle light is justification for traffic stop, the lawfulness of this stop was not in question.  For more on Whren see Wh(r)en is it lawful to stop a vehicle?.
  2. Is Officer Safety an Element to Remove a Driver from a Lawfully Stopped Vehicle? On December 5, 1977 the U.S. Supreme Court issued Pennsylvania v. Mimms, 434 U.S. 106 (1977) and the court held “We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment proscription of unreasonable searches and seizures.”.  One year after the Mimms decision by the U.S. Supreme Court the Supreme Court of Ohio issued State v. Darrington, 54 Ohio St.2d 321 (1978) and that court held “[I]t was not unreasonable for the officer to request an inspection of appellee’s operator’s license and to request that appellee alight from his vehicle.”.  Id at 324.  Despite these two controlling decisions Ninth District Appellate Court Judge [and former prosecutor] Donna Carr added the element of officer safety to an officer’s ability to remove a person from a vehicle during a lawful traffic stop.  Judge Carr opined “[A]lthough the deputy had yet to process a citation, the deputy’s request that Mr. Holler exit his vehicle could not reasonably be justified by officer safety concerns given the way the stop had unfolded to that point.”.  This is highly unfortunate that an experienced appellate court judge believes that officer safety is an element under Mimms and Darrington.  Fortunately, two other Ninth District Appellate Court judges did not add additional elements not required to remove a driver during a traffic stop.  For more information on Mimms see “Don’t Just Sit There!”.  As everyone knows sometimes Sit Happens and sometimes it does not. If an officer is legally confident he will be tactically confident!
  3. Pre-Sent Arms! The unnamed Wayne County Deputy who conducted this traffic stop should be highly commended for knowing the doctrine established under Whren and Mimms and subsequently carrying out the respective legal doctrines in an objectively reasonable manner.  Well done Wayne County Deputy!

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Robert H. Meader Esq.