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State v. Hill6/23/2005
JUDGMENT: AFFIRMED.
{ } The State of Ohio appeals the trial court's decision granting the motion to suppress of defendants, Michael Hill ("the passenger") and Nicholas Zarnesky ("the driver"). At 1:30 a.m. one April night, the driver was proceeding down Bagley Road in Berea with two passengers: Jesse Fury ("the juvenile") in the front seat and the passenger Hill in the back. At a well-lighted portion of the road, a police officer passed them and recognized the juvenile, whom he knew to be under eighteen-years-old, in the front seat of the car. Because Berea has a city ordinance prohibiting persons under eighteen from being out between the hours of midnight and 5:00 a.m. unless they fall into certain exceptions, the officer decided to follow the car. One of the exceptions to the curfew ordinance is a juvenile accompanied by a parent, guardian, or responsible person age twenty-one or over. The officer knew that the juvenile was either sixteen or seventeen and that the driver was not twenty-one. The officer admitted that he could not identify the passenger in the back seat or determine his age.
{ } When the car stopped in the driveway of the juvenile's home, the officer stopped his cruiser on the street at the end of the driveway, blocking the car from leaving. By the time the officer approached the car, the juvenile was standing next to it and the passenger had relocated in the front passenger seat. The officer spoke with the juvenile, determined that he had been drinking alcohol, and arrested him for underage drinking and violating curfew. After placing the juvenile in the back of the cruiser, the officer approached the passenger's side of the car. At that point he learned that the passenger was older than eighteen but younger than twenty-one. The officer noticed the smell of alcohol on the passenger and saw a brown paper bag on the floor of the front seat in front of the passenger. He also noted a strong odor of marijuana coming from the car.
{ } At this time, another officer arrived and the first officer moved to the driver's side of the car to speak with the driver. When he asked for permission to search the car, the driver refused. The first officer then requested that an officer from Strongsville bring his police dog to conduct a sniff search of the car.
{ } After the dog's reaction indicated that drugs were present on the passenger's side of the car, the police searched the car and found over a pound of marijuana, some of it bagged in smaller quantities, inside the brown paper bag. They arrested both the driver and the passenger for trafficking in drugs, possession of drugs, and contributing to the delinquency of a minor.
{ } The prosecutors and defense counsels had numerous pretrials in the case. On August 11th, one of the defendants filed a motion to suppress any evidence obtained as a result of the stop. On September 18th, defense counsel filed a motion for discovery. On October 27th, the case was called for trial and for hearing on the motion to suppress. The other defendant joined in the motion on that day. At the beginning of the suppression hearing, the state made an oral motion to strike the motion to suppress for lack of particularity. The court denied the state's motion and proceeded with the hearing. The only witness at the hearing was the officer who had stopped the car and arrested the defendants, although the prosecutor stated that he had other witnesses available.
{ } At the conclusion of the hearing, the court, ruling that the officer lacked probable cause to stop the vehicle, granted the motion to suppress. The state timely appealed with three assignments of error. The first assignment of error is:
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