Date: 06-30-2022

Case Style:

State of Oklahoma v. Clay A. Ballenger

Case Number: 2022 OK CR 11

Judge: J. Anthony Miller

Court: District Court Tulsa County Oklahoma

Plaintiff's Attorney: Tulsa County District Attorney's Office in Tulsa

Defendant's Attorney:

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Description:

Tulsa, Oklahoma criminal defense lawyer represented Defendant charged with misdemeanor DUI.

¶1 On May 11, 2021, Appellee, Clay A. Ballenger, was charged with misdemeanor Driving Under the Influence of Alcohol, in violation of 47 O.S.Supp.2018, § 11-902, in Tulsa County District Court, Case No. CM-2021-1695. On June 27, 2021, Ballenger filed a Motion to Suppress Evidence and Brief in Support challenging, inter alia, the legality of his warrantless arrest. A hearing on Ballenger's motion was held on July 23, 2021. After hearing testimony from multiple witnesses and argument from both parties, the Honorable J. Anthony Miller, Special Judge, took the matter under advisement. On August 2, 2021, Judge Miller sustained Ballenger's motion finding that Ballenger's warrantless arrest violated 22 O.S.Supp.2014, § 196 and suppressed all evidence flowing from the arrest.

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¶4 On August 27, 2020, around 9:30 p.m., Andrew Peters and Damiana Haynes, both seventeen years old, were driving in the area of 101st and Yale in Tulsa when they observed a maroon F-150 truck run a red light while making an illegal left turn in a construction zone. After passing through the intersection, the couple's vehicle ended up behind the truck. The driver of the truck was later identified as Clay Ballenger, an off-duty Tulsa police officer.

¶5 Peters and Haynes observed Ballenger's truck repeatedly drive off the road "toward the trees" and into the grass. Peters would honk and the truck would return to "the correct lane" and then "go into the opposing [oncoming traffic] lane" and Peters would honk again. "Because the truck was swerving on and off the road[,]" the couple continued following the truck for a "couple miles" and into Ballenger's neighborhood. Ballenger ultimately pulled his truck into his driveway where his Tulsa police car was parked, striking the back bumper of the police car with his truck. Shortly thereafter, Ballenger opened the driver's side door, hung his leg out the door, and then went still.

¶6 Although the collision "wasn't that bad[,]" Haynes called 911 and reported what she and Peters had witnessed. Collectively, Haynes and Peters told the 911 operator, inter alia, that they had observed the truck run a red light, swerve all over the road, pull into a driveway and "straight up ram[ ] the cop car" that was parked in the driveway. Haynes explained that they had followed the truck to make sure the driver got home safely. She further described for the 911 operator how the driver was just sitting in his vehicle with his door partially opened and appeared to be passed out. From information provided by Haynes and Peters, the 911 operator quickly identified Lieutenant Ballenger as the driver of the truck and officers were dispatched to the scene. Haynes and Peters remained at the scene and spoke with the police when they arrived a short time later.

¶7 Tulsa Police Lieutenant Christopher Moudy was the first officer to arrive at the scene. Moudy made contact with the couple and obtained more details about what they observed. He then waited for Tulsa Police Captain Richard Meulenberg to arrive at the scene. Captain Meulenberg, the only shift commander working that night, was specifically called because the incident involved a Tulsa police officer. Meulenberg arrived around 10:00 p.m. and was briefed by Lt. Moudy. Afterward, Meulenberg approached the driver's side door of Ballenger's truck. Lieutenant Moudy served as his "backer" and stood approximately ten yards behind Meulenberg while he confronted Ballenger in his truck. Ballenger's truck door was "slightly open[ed]" and the vehicle was not running. Meulenberg shined his flashlight inside the vehicle and opened the door a bit more. Meulenberg and Moudy each recognized Ballenger sitting in the driver's seat. Ballenger was unconscious and there was no key in the ignition. Meulenberg shook Ballenger to wake him up. Ballenger smelled of alcohol and his speech was slow. It also took Ballenger "a little longer to answer questions."

¶8 Notably, Captain Meulenberg and Lieutenant Ballenger had known each other, both casually and professionally, for many years. Meulenberg was thus familiar with Ballenger's "manner of speech and the way he normally seems[.]" He had also observed Ballenger in the past when he was under the influence of alcohol. Based on his initial observations of Ballenger in his truck that night, Ballenger "appeared to be either under the influence [of alcohol] or . . . severely fatigued." However, after Meulenberg had the opportunity to further interact with Ballenger and observe his "behaviors, mannerisms, [ ] speech, [and] odor[,]" Meulenberg ruled out fatigue as the cause of Ballenger's questionable behavior. When Ballenger exited his truck, he was unsteady on his feet and Meulenberg had to help steady him. Further, Ballenger displayed a "longer gap of understanding" as Meulenberg spoke with him outside of his truck, and his responses to questions were notably delayed.

¶9 Tulsa Police Officer Jimmy Jones was called to the scene to assist due to his experience with DUIs. When he arrived, Ballenger was outside of his truck with Captain Meulenberg and Lieutenant Moudy. Like Meulenberg and Moudy, Jones recognized Ballenger when he saw him. Jones was wearing a face mask that covered his mouth and nostrils when he approached and made face-to-face contact with Ballenger. Despite his mask, Jones smelled an odor of alcohol coming from Ballenger. Jones further noted that Ballenger would "shut his eyes for at least ten seconds, and then he would open them slowly back up." When he did so, he would start to sway. Based on his training and experience, Jones found this significant, explaining that it is typical for intoxicated individuals to "lose their bearings of space" when they close their eyes, and "start to sway to try to gain balance."

¶10 All three officers at the scene observed that the front bumper of Ballenger's truck was touching the back bumper of his squad car. Lieutenant Moudy found Ballenger's keys under the driver's seat of his truck and moved the truck back a foot to see if there was any damage to either vehicle. No damage was observed. Moudy did not smell the odor of alcohol in Ballenger's vehicle when he retrieved the keys.

¶11 At Captain Meulenberg's direction, Officer Jones read Ballenger the Oklahoma Implied Consent Law from the standard form used by the Tulsa Police Department. As he did so, Ballenger just stared at Jones as if he was looking through him. Meulenberg described Ballenger's demeanor as follows:

[Ballenger] seemed to be . . . listening, but he seemed a bit confused about the questioning. . . . [H]e didn't answer the question. . . . [H]e asked for no clarification but didn't answer the question.

So we engaged in a elongated, you know, back-and-forth where I had asked him to answer the question because I could not answer the question for him.

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I asked several times, and [ ] he didn't make any statement. . . . [H]e had physical cues, that he seemed like he was hearing what I was saying. And then I told him a final time, I said, if you don't answer this question I'm going to take that as a refusal, and we are going to proceed.

(Tr. 46). Failing to respond, Ballenger was placed under arrest and transported to the Tulsa County jail by Meulenberg.

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¶18 Warrantless arrests are governed by 22 O.S.Supp.2014, § 196, which strictly limits the circumstances under which a warrantless misdemeanor arrest is permitted. "Absent one of the enumerated exceptions, a warrant must be obtained to arrest a person for a misdemeanor offense." State v. Iven, 2014 OK CR 8, ¶ 9, 335 P.3d 264, 267. When the lawfulness of a warrantless misdemeanor arrest is challenged, the State bears the burden of proving that the challenged arrest falls within one of the enumerated statutory exceptions. Id., 2014 OK CR 8, ¶ 9, 335 P.3d at 268. The State argues on appeal, as it did below, that Ballenger's arrest was statutorily authorized by 22 O.S.Supp.2014, § 196(1) because he committed the crime of APC in the presence of the officers. We agree.

¶19 "[A] peace officer may make a warrantless arrest for a misdemeanor based on his personal observations at the time, as long as the observations amount to probable cause for arrest[.]" Tomlin v. State, 1994 OK CR 14, ¶ 21, 869 P.2d 334, 339. Probable cause for an arrest exists "when there are facts within the officer's knowledge sufficient to warrant a prudent man in believing that the subject has committed an offense[.]" Mike v. State, 1988 OK CR 205, ¶ 6, 761 P.2d 911, 913. Probable cause may be established by circumstantial evidence, but it must be based on more than mere suspicion. See DeVooght v. State, 1986 OK CR 100, ¶ 11, 722 P.2d 705, 709 (direct evidence is not required to prove probable cause); Ajeani v. State, 1980 OK CR 29, ¶ 4, 610 P.2d 820, 823 ("[M]ere suspicion or subterfuge will [not] justify a warrantless misdemeanor arrest; nor will information supplied by a third person suffice."); Shirey, 1957 OK CR 100, ¶ 18, 321 P.2d 981, 987 (same). The facts in this case show Ballenger's arrest was legally justified based on the personal observations of Captain Meulenberg and other officers at the scene that night at Ballenger's house.

¶20 The crime of actual physical control is committed when an intoxicated person has direct influence, i.e., control, over the vehicle, even if that person is unconscious. See OUJI-CR (2d) No. 6-20 (elements of APC); OUJI-CR (2d) No. 6-35 (defining "actual physical control"). See also Mason v. State, 1979 OK CR 132, ¶¶ 5-8, 603 P.2d 1146, 1148 (unconscious individual may be in actual physical control of an automobile). Beyond the information supplied by Peters and Haynes, police found Ballenger unconscious in the driver's seat of his truck with his keys nearby underneath his seat. When awakened and removed from his truck, Ballenger smelled of alcohol, was unsteady on his feet, and struggled to keep his eyes open. He displayed a "longer gap of understanding" when spoken to, and his response time to questions was notably delayed. While being read his rights under Oklahoma's implied consent law, Ballenger appeared confused by the situation and just stared. Further, Captain Meulenberg's past social interactions with Ballenger gave him a unique insight into Ballenger's mannerisms when "sober and not-sober." Based on Ballenger's behaviors, speech, and odor that night, Meulenberg concluded he was intoxicated. Officer Jones, drawing from his training and experience, likewise opined that Ballenger was under the influence of alcohol.

¶21 The officers' observations at the scene that night amounted to probable cause to arrest Ballenger for APC. That Ballenger's truck was parked in his own driveway with the engine turned off when officers arrived is not dispositive of whether Ballenger was in actual physical control of his vehicle that night. See State v. Silas, 2020 OK CR 10, ¶¶ 7-12, 470 P.3d 339, 341-42 (finding driveways are "private roads" under 47 O.S.Supp.2018, § 11-902);1 Kyle v. State, 1986 OK CR 117, ¶¶ 5-7, 722 P.2d 1218, 1219 (despite the defendant having just exited his vehicle and the vehicle being turned off, a "reasonable inference" still could be made that he was "behind the wheel of the vehicle, before getting out, and that he could have started the vehicle and driven away"); Hughes v. State, 1975 OK CR 83, ¶¶ 4-8, 535 P.2d 1023, 1024 (even though the defendant was asleep in the front seat and the car engine was turned off, a "legitimate inference" could be drawn that the defendant "placed himself behind the wheel of the vehicle and could have at any time started the vehicle and driven away"). Contrary to the trial court's findings, Ballenger's misdemeanor arrest was based on more than the information provided by third parties or mere suspicion. Rather, the facts and circumstances within the officers' knowledge were sufficient to warrant a prudent man in believing that Ballenger was in the commission of APC. See Mike, 1988 OK CR 205, ¶ 6, 761 P.2d at 913. From the officers' personal observations, a reasonable inference could be made that Ballenger was intoxicated, had direct influence over his truck, and could have driven away at any time. Ballenger's arrest thus was not without probable cause.

¶22 The State presented sufficient evidence to show probable cause existed to arrest Ballenger for actual physical control of a motor vehicle while intoxicated. Police lawfully effectuated a warrantless arrest of Ballenger pursuant to 22 O.S.Supp.2014, § 196(1). Judge Miller's suppression of the evidence was an abuse of discretion. The district court's order granting the motion to suppress must be reversed and the matter remanded for further proceedings. This resolution renders moot the State's remaining claim regarding application of the good faith exception to the exclusionary rule.

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Outcome: ¶23 The District Court's order quashing Ballenger's arrest and suppressing the evidence derived from it is REVERSED and this case is REMANDED for further proceedings not inconsistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2022), the MANDATE is ORDERED issued upon delivery and filing of this decision.

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