[Cite as State v. Kinzy, 2010-Ohio-6499.]

STATE OF OHIO, MONROE COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) 

 ) CASE NO. 09 MO 7 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) OPINION 

 ) 

RICKY A. KINZY, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Monroe 

County Court, Case No. 06 TRC 20. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney L. Kent Reithmiller 

Prosecuting Attorney 

Attorney Thomas Hampton 

Assistant Prosecuting Attorney 

101 North Main Street 

Room 15 

P.O. Box 430 

Woodsfield, OH 43793 

For Defendant-Appellant: Attorney John A. Vavra 

132 West Main Street 

P.O. Box 430 

St. Clairsville, OH 43950 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Dated: December 22, 2010 
[Cite as State v. Kinzy, 2010-Ohio-6499.]

DeGenaro, J. 

{¶1} This timely appeal comes for consideration upon the record in the trial court, 

the parties' briefs and their oral arguments before this Court. Defendant-Appellant, Ricky 

Kinzy, appeals the August 26, 2009 judgment of the Monroe County Court convicting him 

of a second OVI offense. Kinzy argues the trial court erred by denying his motion to 

suppress because his arrest was the result of an illegal investigatory stop on private 

property. 

{¶2} Because Kinzy voluntarily exited his car and approached the Deputy the 

initial encounter was consensual for Fourth Amendment purposes. Moreover, the Deputy 

had a reasonable articulable suspicion of criminal activity that justified the stop, which, 

although mistaken at the time, did not affect the validity of the stop because the mistake 

was objectively reasonable. Accordingly, the judgment of the trial court is affirmed. 

Facts and Procedural History 

{¶3} At 2:45 a.m., on March 27, 2009, Ricky Kinzy and his girlfriend left a local 

bar and started down State Route 145, approximately one-half mile from Kinzy's 

residence. A Sheriff's Deputy turned onto State Route 145 behind Kinzy in order to do a 

business check at Stephen's Tires and Lube. The Deputy performs such routine 

business checks often and conducts them in order to see if the business has been 

vandalized or broken into. 

{¶4} Kinzy's property is located next to Stephen's Tire and Lube with a garage at 

the edge of his property immediately adjacent and to the right of Stephen's Tire and Lube. 

Kinzy’s residence sits further back on his property to the right of the garage and slightly 

behind it. Because the garage has its own driveway separate from the house, Kinzy 

parks in the driveway and walks through the yard to his house. Kinzy testified that the 

garage sits closer to the business than his residence. 

{¶5} After seeing Kinzy pull into what he thought was the driveway leading to the 

garage for the business, the Deputy pulled behind Kinzy to investigate, parking about 

fifteen feet behind Kinzy's vehicle. The Deputy activated neither his lights nor siren. 

Kinzy noticed a car behind him, got out of his truck and approached the cruiser to find out 

who it was. As Kinzy approached, the Deputy got out of the cruiser and noticed that 
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Kinzy smelled strongly of alcohol. The Deputy asked Kinzy to return to his car while he 

checked Kinzy's license. It was not until the Deputy asked for Kinzy's license, that Kinzy 

told him that the driveway in which they were parked was his private property. After 

checking Kinzy's license, the Deputy approached Kinzy's car and noticed a six-pack with 

two bottles missing and an open container. Although Kinzy claimed the open bottle was 

for tobacco spit, the bottle contained no spit and it smelled of beer. 

{¶6} After conducting field sobriety tests which he failed, the Deputy arrested 

Kinzy, who later registered a 0.212 on the breathalyzer test. Kinzy was issued a citation 

for operating a motor vehicle with a prohibited breath alcohol content and for an open 

container violation. 

{¶7} Kinzy filed motions to suppress and dismiss arguing that because the 

Deputy had no reasonable articulable suspicion to stop him, all evidence gained from the 

stop, including the results of the field sobriety test and the breathalyzer, should be 

suppressed. After a hearing on the motion, the parties filed post-hearing briefs and the 

trial judge viewed the scene. 

{¶8} The trial court denied the motions, concluding that the stop was lawful 

because although the Deputy was mistaken that Kinzy was on the business property, the 

mistake was objectively reasonable: 

{¶9} "Based on the two exhibits [photographs of the scene], the nature and 

coloring of the garage and adjacent business and the presence of an equipment trailer in 

the driveway, it certainly would be reasonable for the officer to assume that garage was 

associated with the business rather than the residence. It appears from the two exhibits 

that the garage is actually closer to the business than the defendant's residence. * * * 

[T]he court finds that the officer's belief was objectively reasonable at the time the stop 

was made, even though his belief was subsequently determined to be incorrect." 

{¶10} The State dismissed the open container charge and Kinzy entered a plea of 

no contest to the OVI charge, and because this was a second OVI offense Kinzy was 

sentenced accordingly, which was stayed pending appeal. 

Validity of Stop 
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{¶11} On appeal, Kinzy asserts one assignment of error: 

{¶12} "The court erred in overruling the motion of the Appellant to suppress 

evidence acquired as the result of an illegal investigatory stop." 

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

and fact. State v. McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539. 

Because the trial court is the trier of fact and therefore in the best position to resolve 

factual questions and evaluate the credibility of witnesses, State v. Mills (1992), 62 Ohio 

St.3d 357, 366, 582 N.E.2d 972, an appellate court must accept the trial court's findings 

of fact if they are supported by competent, credible evidence. State v. Burnside, 100 

Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8. Conversely, the appellate court 

conducts a de novo review to determine whether the facts satisfy the applicable legal 

standards at issue in the appeal. Id. 

{¶14} Kinzy argues the Deputy’s investigatory stop was not valid because he 

encountered Kinzy in his private driveway. He further argues that the Deputy's mistaken 

belief that he had pulled onto the property of Stephen's Tire and Lube was not objectively 

reasonable. 

{¶15} There are three types of police encounters with citizens; consensual 

encounters, investigative or Terry stops, and arrests. See Florida v. Royer (1982), 460 

U.S. 491, 501-507, 75 L.Ed 2d 229, 103 S.Ct. 1319. Germane to this appeal are the first 

two. 

{¶16} A police encounter is considered consensual where a person is free to walk 

away from the officer and may refuse to answer questions. State v. Mendenhall (1980), 

446 U.S. 544, 554, 64 L.Ed 2d 497, 100 S.Ct. 1870. Thus, "there has been no intrusion 

upon that person's liberty or privacy as would under the Constitution require some 

particularized and objective justification." Id. An encounter may be deemed consensual 

when a police officer approaches and questions individuals in or near a parked car. See, 

e.g., State v. Johnston (1993), 85 Ohio App.3d 475, 478, 620 N.E.2d 128. It may also be 

consensual even when the encounter takes place on private property. State v. Williams 

(1990), 51 Ohio St.3d 58, 61, 554 N.E.2d 108; State v. Szewczyk (Sept. 14, 1999), 7th 
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Dist. No. 98 CA 20, at *2-3. 

{¶17} In Williams, supra, a deputy was on private property investigating a 

complaint that three persons had been observed leaving a rural, partially wooded private 

property, when he discovered marijuana fields and radioed for backup. Meanwhile, 

Williams arrived at the farmhouse on the property and stopped ostensibly to get 

permission to hunt. The deputy saw Williams, approached him and asked Williams what 

he was doing there. Williams, thinking the plainclothes deputy was another hunter, stated 

that he was there to squirrel hunt. The deputy, knowing it was nearly too late in the day to 

legally hunt and observing that Williams did not have a hunting rifle, directed Williams to 

follow him to his car, where the deputy patted him down and from that seized evidence 

which led to Williams' arrest. The Ohio Supreme Court concluded that the initial 

encounter between the officer and Williams was consensual: 

{¶18} "We observe initially that no apparent 'seizure' of Williams occurred, and 

thus the Fourth Amendment was not implicated, until Deputy Garst asked Williams to 

accompany him to Garst's car. Garst's approach to Williams, and his initial question ('I 

asked him what he was doing there'), cannot be said to have restrained Williams's liberty 

in such a way that he was not free to leave." Id. at 61. 

{¶19} Similarly here, the initial encounter between the Deputy and Kinzy was 

consensual. The Deputy pulled behind Kinzy in a driveway. Kinzy admits that he did not 

initially realize when he stopped his truck that a police cruiser was behind him. Kinzy got 

out of his vehicle and approached the Deputy to ask him what he was doing there. The 

Deputy had not turned on his lights or siren, had not stepped out of his cruiser, and had 

not indicated in any way that he intended to detain Kinzy. Based on the totality of the 

circumstances, the initial contact between Kinzy and the Deputy was consensual. 

{¶20} Kinzy next argues that the Deputy’s belief that Kinzy was parked on the 

business property was unreasonable. Even assuming arguendo the initial encounter was 

not consensual, the Deputy had reasonable suspicion to stop Kinzy. 

{¶21} An investigatory, or Terry stop, occurs when the officer stops to investigate 

unusual or suspicious behavior. The officer "must be able to point to specific and 
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articulable facts which, taken together with rational inferences from those facts, 

reasonably warrant that intrusion." Terry v. Ohio (1968), 392 U.S. 1, 21-22, 88 S.Ct. 

1868, 20 L.Ed 3d 889. An investigatory stop "must be justified by some objective 

manifestation that the person stopped is, or is about to be, engaged in criminal activity." 

U.S. v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621. 

{¶22} The Deputy testified he was doing a routine business check and stopped to 

investigate why someone was on what he thought was Stephen's Tire and Lube property 

at 2:45 a.m. The fact that the Deputy was mistaken does not make the stop invalid as the 

mistake was objectively reasonable. 

{¶23} "[A] police officer's mistake of fact will not lead to the suppression of 

evidence where the mistake was 'understandable' and a reasonable response to the 

situation facing the police officer." State v. Fain (Jan. 21, 1998), 9th Dist. No. 18306, at 

*2, citing Hill v. California (1971), 401 U.S. 797, 804, 91 S.Ct. 1106, 28 L.Ed.2d 484. In 

Fain, the arresting officer believed that the driver of a vehicle was Dwayne Fain, whose 

license the officer believed was expired, rather than the true driver, Haward Fain. Id. 

Based on this mistaken identity, the officer conducted a further investigation by getting 

consent to pat Fain down. Id. The court held that the officer had reasonable, albeit 

mistaken, grounds for continuing the investigation and that the evidence from the further 

investigation should not be suppressed. Id. at *2-3. 

{¶24} Similarly, in State v. Chapa, 10th Dist. No. 04AP-66, 2004-Ohio-5070, the 

court held that an officer's otherwise reasonable suspicion that a crime had occurred, 

based upon his observation of a driver failing to a stop at a stop sign or to activate her 

turn signal, was not rendered unreasonable by the officer's mistaken belief that the stop 

sign was located on public roadway. Id. at ¶17. The court noted there was no indication 

that the officer's mistake as to private nature of property was merely pretense or part of 

deceptive course of conduct. Rather, the officer reasonably believed that roadway was 

public at time he pulled the driver over, and did not discover his mistake until the next 

day. Id. 

{¶25} Many of the cases on point regarding police officer mistake involve probable 
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cause rather than a reasonable, articulable suspicion. However, the same principle 

applies in this case as in those dealing with probable cause, especially since probable 

cause is a higher standard. In Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio3563, 850 N.E.2d 698 the Ohio Supreme Court followed the Ninth Circuit Court of 

Appeals in holding that the issue was about an objective belief that there was a violation: 

{¶26} "We agree with the sentiment expressed in a federal case involving an 

officer who had stopped a vehicle based on the mistaken belief that the windows were 

tinted darker than the law permitted. The court observed that the officer 'was not taking 

the bar exam. The issue is not how well [the officer] understood California's window 

tinting laws, but whether he had objective, probable cause to believe that these windows 

were, in fact, in violation.' United States v. Wallace (C.A.9, 2000), 213 F.3d 1216, 1220. 

{¶27} "Similarly, in this case, the issue is not how well the officer understood the 

city's ordinances requiring the authorization of the posting of traffic-control devices. 

Rather, the existence of probable cause depends on whether an objectively reasonable 

police officer would believe that appellee's conduct in exiting City Lot 2 constituted a 

traffic violation, based on the totality of the circumstances known to the officer at the time 

of the stop." Godwin at ¶15-16. 

{¶28} Likewise, in State v. Walters, Walters argued the police officer lacked 

probable cause to stop him because he had broken no law. State v. Walters, 12th Dist. 

No CA2004-04-043, 2005-Ohio-418, at ¶3. The officer pulled Walters over because he 

violated a "no left turn" sign posted at the exit of a gas station. Id. at ¶2. However, this 

sign did not conform to the Ohio Manual of Uniform Traffic Control. Id. at ¶3. 

Nevertheless, Walters was arrested for DUI. The court held the stop was valid because 

the officer reasonably believed that Walters had committed a traffic violation despite the 

sign not being "posted in compliance with the OMUTCD." Id. at ¶10. 

{¶29} 1Similarly here, the question is not how well the Deputy knew the plat lines 

or how familiar he was with the area, but whether the Deputy's mistake that Kinzy was on 

the business property was objectively reasonable. It was objectively reasonable that the 

Deputy mistook Kinzy's driveway for that of the business. The incident occurred at 2:45 
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a.m. and it would have been dark. Kinzy's garage looks similar to the business’s building 

and the two buildings stand only a dozen or so feet from each other. Kinzy admitted that 

his garage was closer to the business than his residence, which sits to the right and 

behind the garage by a distance of several dozen feet. 

{¶30} And after the initial contact, the Deputy had reasonable suspicion to detain 

Kinzy. The Deputy noticed a strong odor of alcohol and Kinzy admitted he had been 

drinking. The Deputy then asked for Kinzy's license and Kinzy returned to his vehicle. 

When the Deputy approached Kinzy's vehicle to return his license, he observed a sixpack of bottled beer in Kinzy's car with a couple of bottles missing. The Deputy also 

observed an open bottle of beer in one of the vehicle's cup holders. Kinzy claimed this 

was for spitting tobacco, but the Deputy found no evidence of tobacco in the bottle, only 

beer. From Kinzy's conduct the Deputy had reasonable suspicion to have Kinzy perform 

a field sobriety test. 

{¶31} The trial court correctly denied the motion to suppress. The initial encounter 

between Kinzy and the Deputy was consensual, but assuming arguendo it was not, the 

Deputy had a reasonable articulable suspicion to make the stop. That Kinzy was not on 

the adjacent business property as the Deputy thought, but rather on his own private 

property does not change the outcome because the Deputy's mistaken belief was 

objectively reasonable. Accordingly, the judgment of the trial court is affirmed. 

Vukovich, P.J., concurs. 

Waite, J., concurs.