[Cite as State v. Dunlap , 2022

- Ohio

- 3007.]



## IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY

STATE OF OHIO,

Plaintiff

- Appellee,

- v

-

JESSICA F. DUNLAP,

Defendant

- Appellant. CASE NO. 2021

- G

- 0037

Criminal Appeal from the

Court of Common Pleas

Trial Court No. 2021 C 000046

O P I N I O N

Decided: August 29, 2022

Judgment: Reversed and remanded

James R. Flaiz , Geauga County Prosecutor, and Nicholas A. Burling , Assistant

Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For Plaintiff

Appellee).

R. Robert Umholtz , Geauga County Public Defender, and Dawn M. Gargiulo , Assistant

Public Defender, 211 Main Street, Chardon, OH 44024 (For Defendant

- Appellant).

MATT LYNCH, J.

{¶1} Defendant

- appellant, Jessica F. Dunlap , appeals h er conviction for

Improperly Handling Firearms in a Motor Vehicle in the Geauga County Court of Common

Pleas, on the grounds that the court erred by denying h er Motion to Suppress. For the

following reasons , we reverse the decision of the court below and remand for further

proceedings consistent with this opinion.

{¶2} On April 2 0 , 2021, the Geauga County Grand Jury issued an Indictment,

charging Dunlap with Improperly Handling Firearms in a Motor Vehicle, a felo ny of the2

Case No. 2021

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- 0037 fourth degree, in violation of R.C. 2923.16( B ).

{¶3} Dunlap filed a Motion to Suppress on June 11 , 2021. She argued that

reasonable suspicion to stop the vehicle on the grounds that the registered owner had an

invalid license terminated once the poli ce determined that the driver was not the

registered owner. The State’s Response argued that the minimal intrusion of verifying

the driver’s identity and determining whether the vehicle was stolen was permissible.

{¶4} A suppression hearing was held on August 10, 2021, jointly with co

defendant Je’Brel Lewis , at which the following testimony was presented:

{¶5} Patrolman Andrew Centrackio of the Chester Township Police Department

testified that for the entirety of his shift o n March 15, 2021, he was in a parking lot running

random registration checks on passing vehicles. He entered the tag of a Kia Forte into

the Law Enforcement Automated Data System (LEADS), which showed the registered

owner , Dunlap, was a suspended driver. At that time, he had not yet observed the driver

but had reviewed Dunlap’s identifying information in LEADS , including her height, weight,

and gender. Centrackio performed a traffic stop of the vehicle.

{¶6} Upon approaching the vehicle, Centrackio observed that the driver did not

match Dunlap ’s description , whom he knew to be a white female, and was instead an

African American male , later identified as Lewis . A female , later identified as Dunlap, was

in the passenger seat. Centrackio informed Lewis that t he reason for the stop was the

invalid license of the registered owner. Centrackio asked Lewis if he had a valid license.

Lewis responded that he believed his license was valid

, pointed to the passenger

, and

stated he believed she had a valid license. C entrackio then asked for Lewis’ license and

was provided a state identification card. The dash cam video recording shows that upon3

Case No. 2021

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- 0037 taking the identification, Centrackio indicated “if you’re valid, you guys are good to go.”

Centrackio testified that he requested identification to document the driver in his report

and to confirm that Lewis was legally able to drive the vehicle

. Centrackio entered Lewis’

information into LEADS and determined he had a suspended driving status and

outstan ding warrants

.

{¶7} Since there was no valid driver, Centrackio contacted a tow truck for the

vehicle. As the warrants indicated the potential that Lewis was armed, Centrackio asked

him whether there was a weapon in the vehicle. Lewis confirmed that there w as and

,

when asked of its location, he pointed to the front passenger side door compartment, said

it was unloaded, and granted permission to enter the vehicle. A firearm was recovered

as well as a loaded magazine.

{¶8} On August 11, 2021, the trial court issue d an Order denying Dunlap ’ s

Motion to Suppress and adopted its decision ruling on Lewis’ suppression motion.

Therein, it determined that “the officer was confronted with a new potential for criminal

activity even after discovering Dunlap was not driving t his vehicle” and had grounds to

question “if the registered owner of the vehicle was not driving it, then who was?” It found

that the detention of Lewis to determine his identity after a legitimate traffic stop was

constitutional.

{¶9} Dunlap entered a plea of no contest to the charge in the indictment o n

September 21, 2021

. She was sentenced to a term of two years of monitored time.

Subsequently, she filed a renewed motion for a detailed judgment entry on the motion to

suppress and on December 6, 2021, the court issued an entry that restated the reasoning

for denial as stated in the judgment in Lewis’ case.4

Case No. 2021

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- 0037 {¶10} Dunlap timely appeals and raises the following assignment of error:

{¶11} “The trial court erred in denying appellant’s motion to suppress because the

seizure of evidence resulted from an illegal detention.”

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

and fact.” State v. Burnside

, 100 Ohio St.3d 152, 2003

- Ohio

- 5372, 797 N.E.2d 71, ¶ 8

.

“[A]n appellate court must accept the trial court’s findings of fact if they are supported by

competent, credible evidence,” but “must then independently determine, without

deference to the conclusion of the trial court [i.e., de novo], whether the facts satisfy the

applicable legal standard.” Id.

{¶13} The Fourth Amendment to the United States Constitution guarantees that

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall no t be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” Article I,

Section 14 of the Ohio Constitution affords th e same protection. State v. Hoffman

, 141

Ohio St.3d 428, 2014

- Ohio

- 4795, 25 N.E.3d 993, ¶ 11

.

{¶14} “‘The touchstone of the Fourth Amendment is reasonableness’” and

warrantless searches are unreasonable subject to a few exceptions. (Citation omitted.)

State v

. Leak

, 145 Ohio St.3d 165, 2016

- Ohio

- 154, 47 N.E.3d 821, ¶ 14 and 15 . “One

exception to the warrant requirement is a brief investigatory stop based upon reasonable

suspicion of recent, ongoing, or imminent criminal activity.” State v. Luther , 2018

- Ohio

4568, 123 N.E.3d 296, ¶ 18 (11th Dist.) , citing Terry v. Ohio

, 392 U.S. 1, 30, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968)

.5

Case No. 2021

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- 0037 {¶15} “ [ T ] he detention of an individual by a law enforcement officer must, at the

very least, be justified by ‘specific and articulable facts ’ indicating that the detention was

reasonable.” State v. Chatton

, 11 Ohio St.3d 59, 61, 463 N.E.2d 1237 (1984), citing Terry

at 21 . A traffic stop “must be carefully tailored to its underlying justification * * * 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) ; State v. Anderson

, 11th Dist. Lake

No. 2017

- L

- 127, 2018

- Ohio

- 2455, ¶ 15 (“[a]n investigatory stop must be limited in

duration and scope and can last only as long as necessary for an officer to confirm the

suspicion of criminal activity”). The principles in Royer are “desig ned to prevent law

enforcement officers from conducting ‘fishing expeditions’ for evidence of a crime.”

Wickliffe v. Hancock

, 11th Dist. Lake No. 2008

- L

- 174, 2009

- Ohio

- 4257, ¶ 18. If additional

facts provide reasonable suspicion of criminal activity beyo nd that which led to the initial

stop, “‘the officer may detain the vehicle * * * for as long as the new articulable and

reasonable suspicion continues.’” (Citation omitted.) State v. Jackson , 11th Dist. Lake

No. 2011

- L

- 107, 2012

- Ohio

- 2123, ¶ 28. If the re is a lack of reasonable suspicion or other

constitutional grounds for a search and seizure, evidence obtained as a result must be

excluded. State v. Adams

, 144 Ohio St.3d 429, 2015

- Ohio

- 3954, 45 N.E.3d 127, ¶ 181

.

{¶16} On appeal, Dunlap argues that although the initial stop was justified, the

continued detention once the officer determined there was no violation of the law was

contrary to her Fourth Amendment rights, citing in support the Ohio Supreme Court case

of Chatton

, supra

. The State counter s that some appellate districts have held that the

possibility of a vehicle being stolen in these circumstances warrants the continuation of

the stop to determine the identity of the driver.6

Case No. 2021

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- 0037 {¶17} In Chatton , an officer stopped a vehicle for failing to display license plates

but observ ed the plate lying below the rear window upon approaching the vehicle

. The

officer requested the defendant’s driver’s license, which was suspended, and

subsequently recovered a firearm in the vehicle. The Ohio Supreme Court held that since

the officer “no longer maintained a reasonable suspicion” that the vehicle lacked a proper

license or registration, detaining the driver to demand his license “is akin to the random

detentions struck down by the Supreme Court.” Id. at 63, citing Delaware v. Prouse

, 440

U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (“stopping an automobile and

detaining the driver in order to check his driver’s license and the registration of the

automobile are unreasonable under the Fourth Amendment”)

. Further, it held that

“[a]lt hough the police officer, as a matter of courtesy, could have explained to appellee

the reason he was initially detained, the police officer could not unite the search to this

detention, and appellee should have been free to continue on his way without having to

produce his driver’s license .” Chatton at 63.

{¶18} T his court has applied Chatton in circumstances where the officer realized

the suspected crime had not been committed. See State v. Cooke , 11th Dist. Lake No.

98

- L

- 160, 1999 WL 778378, *4 (Sept. 24, 1999) (once the officer determined upon

approaching a vehicle that the temporary placard was visible and was properly displayed,

he no longer had reasonable suspicion and could not further detain appellant to obtain

identifying information regarding his driving status); State v. Molek

, 11th Dist. Portage No.

2001

- P

- 0147, 2002

- Ohio

- 7159, ¶ 30

- 34 (where the office r mistakenly believed a license

plate was obstructed by snow since the letter “E” was actually an “F,” the officer did not

“investigate the cause of the stop” and examine the license plate but, rather, asked the7

Case No. 2021

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- 0037 defendant for his license and registration, the evidence obtained following questioning

was properly suppressed).

{¶19} Here, Dunlap does not dispute that there was reasonable suspicion to

perform a stop of the vehicle once Patrolman Centrackio became aware that the

registered owner had a suspended licens e. Several appellate districts in Ohio have held

that an officer has reasonable suspicion to conduct a stop when he determine s the license

plate is registered to a person who is not permitted to drive, since the “officer can

reasonably infer that the owne r is driving the vehicle

. ” See State v. Jones , 7th Dist.

Belmont No. 03 BE 28, 2004

- Ohio

- 1535, ¶ 11; State v. Kingman , 5th Dist. Ashland No.

02COA032, 2003

- Ohio

- 1243, ¶ 11; State v. Yeager

, 4th Dist. Ross No. 99CA2492, 1999

WL 769965, *5 (Sept. 24, 1999). There is no dispute that the sole justification for the stop

was on this ground. However, upon approaching the vehicle, Centrackio immediately

became aware that Lewis was not the registe red owner given his gender and other

identifying characteristics . Similar to Chatton , at that point, Centrackio no longer

maintained reasonable suspicion of the crime for which the stop occurred. Although

Centrackio testified that he wanted to verify tha t Lewis was licensed, in Chatton , the court

indicated that when reasonable suspicion ceases to exist, there are no grounds to ask for

identification. In the absence of reasonable suspicion, a request for identification would

otherwise be impermissible sin ce the law is clear that “random stops of vehicles to check

the validity of the operator’s driver’s license” have been condemned. State v. Ford , 11th

Dist. Lake No. 2000

- L

- 130, 2001 WL 1647149, *4 (Dec. 21, 2001), citing Chatton at 61.

Centrackio testifi ed that, in addition to seeking Lewis’ identity to determine the validity of

his license, he sought it to complete paperwork relating to the stop. No authority is cited8

Case No. 2021

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- 0037 by the State to support a finding that this provided a legally justifiable reason for continuing

a stop when reasonable suspicion no longer exists.

{¶20} Although the facts justifying the stop in Chatton differ from the present

matter, its holding has been applied under similar circumstances. In State v. Brentlinger,

5th Dist. Delaware No. 19 CAC 05 0032, 2019

- Ohio

- 4989

, an officer performed a random

registration check on a vehicle and found that the reg istered owner, a female, had a

suspended driver’s license. Upon stopping the vehicle, the officer discovered that the

driver was male. At that time, the officer asked for the driver’s license and, as he was

running a license check, detected the odor of a lcohol on the driver. Id. at ¶ 14. The Fifth

District, relying on Chatton , held that the officer “no longer maintained a reasonable

suspicion” when he became aware that the driver’s gender did not match that of the

registered owner. It held that “ [ a ] lth ough the deputy could have explained to Appellant

the reason he was initially detained,” the officer “did not have an independent basis to

extend Appellant’s detention by asking Appellant to produce his identification” and

exceeded the constitutionally per missible scope of the initial detention. Id. at ¶ 19. The

same analysis applies in the present matter. Of note, the United States Supreme Court

has also questioned the existence of reasonable suspicion where an officer observes that

the owner’s identity differs from the driver. It found : “[I]f an officer knows that the

registered owner of the vehicle is in his mid

- sixties but observes that the driver is in her

mid

- twenties, then the totality of the circumstances would not ‘raise a suspicion that the

par ticular individual being stopped is engaged in wrongdoing.’” (Citation omitted.)

Kansas v. Glover

, __ U.S. __, 140 S.Ct. 1183, 1191, 206 L.Ed.2d 412 (2020).

{¶21} The State points to authority from other districts holding to the contrary. We9

Case No. 2021

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- 0037 decline to apply such authority and find it to be factually distinguishable.

{¶22} In State v. Graves, 9th Dist. M edina No. 2202, 1993 WL 261562 (July 14,

1993), the officer ran the vehicle’s license plate and determined the registered driver, a

male, had an outstanding warrant. Upon executing the traffic stop, the officer saw the

driver was female, inquired as to why she was driving, and she responded that she was

the owner’s girlfriend. The officer requested her identification, she produced a county

human services card, and he determined the driver’s license was suspended. Id. at *1.

The court determined that, having learned the vehicle was not being driven by the

registered owner, “there is no prohibition against asking the identity of the driver. The

possibility that a vehicle, not driven by the registered owner, is stolen permits this very

slight intrusion.” Id. a t *2. In another Ninth District case, State v. Me t calf, 9th Dist. Summit

No. 23600, 2007

- Ohio

- 4001, the court found it was proper to ask for identification when

a vehicle was stopped due to the owner’s expired license, and the driver indicated the

owner w as his daughter. Id. at ¶ 2

- 3. The court again held there was no violation of the

defendant’s constitutional rights. Id. at ¶ 12. In State v. Dowdell

, 8th Dist. Cuyahoga No.

90200, 2008

- Ohio

- 3080, the Eighth District also held it was a “slight intrusio n,” due to

concerns of a stolen vehicle, to request identification of the driver although it was known

to the officer that the driver was not the owner whose license was suspended

. Id. at ¶ 9.

{¶23} The foregoing cases stretch the bounds of Chatton and the general principle

that reasonable suspicion ceases once the officer becomes aware the grounds for

instituting the stop are no longer valid. The rationale provided in these cases is that once

a vehi cle is stopped, it is a “slight intrusion” to then ask for identification. The Ohio

Supreme Court’s decision in Chatton appears to be contrary to such a conclusion.10

Case No. 2021

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- 0037 Chatton specifically held that it was improper to ask for identification al though the veh icle

had initially been stopped on lawful grounds. It made no exceptions for “slight intrusions”

following such a stop. Chatton

, 11 Ohio St.3d at 63

, 463 N.E.2d 1237

.

{¶24} In particular, the conclusion that there is reasonable suspicion that a vehicle

is stolen, advanced by the State and foregoing authority

, stretche s this concept beyond

its logical meaning. Reasonable suspicion requires specific articulable facts warrantin g

intrusion and “something more than an inchoate and unparticularized suspicion or

‘hunch.’” (Citations omitted.) State v. Hawkins , 158 Ohio St.3d 94, 2019

- Ohio

- 4210, 140

N.E.3d 577, ¶ 20 . It cannot be said it is uncommon for couples or even friends to drive

each other’s vehicles, or various other circumstances to arise wherein the registered

owner may not be driving. To presume that any car not driven by its owner is stolen

diminishes t he value of the term “reasonable suspicion” and sets the bar for detaining

individuals for further investigation incredibly low.

{¶25} This is particularly true here where there were no facts, other than the driver

not being the owner of the vehicle, present t o support a conclusion that the vehicle was

stolen. The driver was not acting suspiciously and was cooperative with police. A female

matching the owner’s description, which the officer had reviewed prior to approaching the

car, was present in the passeng er seat. There were no signs of tampering with the vehicle

and the stop was not committed because the officer witnessed activity demonstrating a

theft may have occurred, such as speeding away from a location or evading the officer.

Significantly, in Chat ton , the court rejected as justification for continued detention the

officer’s observation that, “in his experience temporary tags were occasionally used to

conceal the identity of stolen vehicles and were otherwise used illicitly.” Chatton at 61.11

Case No. 2021

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- 0037 The co urt held: “If we were to uphold the detention of appellee to check the validity of his

driver’s license upon the generalized statement that temporary tags are sometimes used

in criminal activity, we would be sanctioning, in effect, the detention of the dri ver of any

vehicle bearing temporary tags. We are unwilling to place our imprimatur on searches of

the citizens of this state and their vehicles simply because of the lawful and innocuous

presence of temporary tags. The potential for abuse if such a rule were in effect, through

arrogant and unnecessary displays of authority, cannot be ignored or discounted.” Id. at

62. To hold otherwise creates a slippery slope whereby suspicion arises from ordinary

circumstances such as allowing another to drive one’s vehicle.

{¶26} Further, even if the rationale of these courts were found to be persuasive,

there are significant factual differences in Metcalf and Dowdell. In Metcalf, the officer was

unaware of the owner’s gender or identifying characteristics other than her name when

the stop was conducted and the owner’s name was not immediately identifiable as

belonging to a certain gender (Rikki ). Metcalf

, 2007

- Ohio

- 4001, at ¶ 2. Thus, the officer

did not know immediately upon approaching the driver whether he was the owner of the

vehicle, reasonably warranting further investigation

. Id. at ¶ 8. In Dowdell, there were

facts that could support a reasonable suspicion that the vehic le was stolen, thus providing

potential grounds for continued detention, including that the vehicle had been in a known

drug area and had driven away from a stop sign at a high rate of speed

, “ suggesting that

the occupants were trying to get out of view of the police.” Id. at ¶ 3 and 9. In other

words, there was more than inchoate or unparticularized suspicion, unlike in the present

matter as indicated above. Further, unlike in Metcalf

, the officer immediately knew when

approaching the vehicle that the driver was not the owner.12

Case No. 2021

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- 0037 {¶27} Several courts throughout the country have also reasoned that continued

detention to request the driver’s license in similar circumstances is improper due to a lack

of reasonable suspicion. In Holly v. State

, 918 N.E.2d 323 ( Ind.2009)

, the officer became

aware the driver was not the owner due to his gender. The court found that “once it

becomes apparent that the driver of the vehicle is not the owner then an officer simply

has no reason to conduct additional inquiry” given th at “ [ r ] easonable suspicion to pull a

car over does not confer unconditional authority to request the driver ’ s license and

registration.” Id. at 325

- 326. In State v. Penfield

, 22 P.3d 293 (Wash.App.2001) , the

court observed that

, although “other facts may exist to create suspicion that the driver

may not have the owner ’ s permission to use the automobile or that the driver is engaged

in some other criminal activity

, ” in the absence of such facts, the driver may not be further

detai ned once it is discovered his gender did not match that of the vehicle’s owner

. Id. at

295. See also State v. Pike

, 551 N.W.2d 919, 922 (Minn.1996) (“if the officer knows that

the owner of a vehicle has a revoked license and further, that the owner is a 22

- year

- old

male, and the officer observes that the person driving the vehicle is a 50

- or 60

- year

- old

woman, any reasonable suspicion of criminal ac tivity evaporates”); State v. Coleman i 890

N.W.2d 284, 301 (Iowa 2017) (continued detention to request identification was invalid

where the officer discovered the registered owner was not the driver: “ when the reason

for a traffic stop is resolved and ther e is no other basis for reasonable suspicion, * * * the

driver must be allowed to go his or her way without further ado” ) . In none of these cases

did the courts find that concerns of a stolen vehicle arose

.

{¶28} The State emphasizes that its argument that th e holdings in Graves

,

Metcalf

, and Dowdell should apply is further justified by the public policy of keeping13

Case No. 2021

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- 0037 suspended drivers off of the road. However, as noted above, the law in relation to this

issue, established by the Supreme Court, is that once reasonable suspicion terminates,

there can be no request for identification. It does not make an exception for a policy of

protecting ag ainst suspended drivers. As stated in Chatton and Cooke

, random stops to

determine a license is suspended, as well as extensions of otherwise legitimate stops to

investigate a person’s license status, are impermissible regardless of the benefits of

preven ting driving with a suspended license. Chatton

, 11 Ohio St.3d at 61, 463 N.E.2d

1237; Cooke

, 1999 WL 778378, at *2.

{¶29} As we have determined that the extension of the stop of the vehicle was

improper once Centrackio recognized Dunlap was not the driver, evidence resulting from

the continued detention, i.e., discovery of the firearm, must be suppressed. Adams

, 144

Ohio St.3d 429, 2015

- Ohio

- 3954, 45 N.E.3d 127, at ¶ 181

.

{¶30} The sole assignment of error is with merit.

{¶31} For the foregoing reasons, the judgment of the Geauga County Court of

Common Pleas is reversed and this matter is remanded for further proceedings consistent

with this opinion. Costs to be taxed against appellee

.

CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP , J.,

concur.