City of Maumee v. John F. Johnson, 93-LW-2768

• Decision Date: 03 September 1993
• Docket Number: 93-LW-2768,L-92-343
• Parties: City of Maumee, Appellant v. John F. Johnson, Appellee Court of Appeals Trial Court No. 92-C-04519
• Court: United States Court of Appeals (Ohio)

City of Maumee, Appellant v. John F. Johnson, Appellee

Trial Court No. 92-C-04519

No. L-92-343

93-LW-2768 (6th)

Court of Appeals of Ohio, Sixth District, Lucas County.

September 3, 1993

John B Arnsby, for appellant.

Mark D Schnitkey, for appellee.

DECISION

The city of Maumee filed this accelerated appeal after the Maumee Municipal Court granted a motion to suppress filed by appellee, John F. Johnson. Appellee was originally stopped by two officers from the Maumee Police Department for operating his 1981 Pontiac Bonneville over the legal speed limit. After he was stopped, appellee was charged with violating sections 333.01(a)(1) and 333.01(a)(3) of the Maumee Municipal Code both of which relate to operating a motor vehicle while under the influence of alcohol. Appellee filed a motion to suppress, alleging that the arresting officers had no reasonable, articulable suspicions for the initial stop rendering the information obtained subsequent to the stop inadmissible.

A hearing on the motion to suppress was conducted. Both officers involved in the stop and arrest of appellee testified. Both officers stated that they formed an opinion that appellee was speeding after visually observing his car lean when he drove it around a curve in the road. The posted speed limit for that portion of the road was thirty-five miles per hour. Both officers testified that: (1) they have made numerous stops of drivers for speeding; (2) they are familiar with how vehicles appear when they are traveling over, under, or in compliance with the thirty-five miles per hour speed limit; (3) they have operated radar on that stretch of road and have made stops for speeding based upon radar readings; (4) they did not use radar and they did not pace clock appellant's car to determine that he was speeding; (5) the lean they saw when appellant's car rounded the curve in the road is consistent with the lean observed in the past when vehicles were driven around the curve at a speed higher than thirty-five miles per hour; (6) they made a u-turn and accelerated to sixty-five miles per hour to catch up with appellee's car, since he was traveling southbound and they were traveling northbound when they originally saw his car and determined that he was speeding; (7) they kept visual contact with appellant's car and observed that the brake lights never came on to indicate that he was slowing his rate of speed; (8) after they caught up with appellant's car, they followed him for some distance and appellant was not speeding; (9) appellee stopped his car in a Burger King parking lot after the dome lights on the police cruiser were activated.

At the close of the hearing, the trial court announced that the motion to suppress would be granted. On October 5, 1992, a judgment entry was filed by the Maumee Municipal Court which stated in pertinent part:

"The Court finds that the plaint [sic] has utterly failed to produce any reasonable articulable testimony that the defendant's vehicle was speeding. In view of the foregoing, the defendant's motion to suppress evidence is granted. Any evidence adduced by the plaintiff after the stop of the defendant is suppressed."

After the entry of the judgment, the city of Maumee filed this appeal to present one assignment of error for our consideration, which is:

"The trial court erred in granting the Defendant-Appellee's motion to suppress evidence as Sergeants Brainard and Tullis possessed the requisite reasonable and articulable suspicion to stop the Defendant-Appellee's vehicle."

We begin by noting that the Supreme Court of Ohio has ruled that reviewing courts must keep in mind that it is the function of the trial court to weigh the evidence and to determine the credibility of witnesses when the issue on review is a ruling on a motion to suppress. State v. DePew (1988), 38 Ohio St.3d 275, 277, certiorari denied (1989), 489 U.S. 1042; State v. Fanning (1982), 1 Ohio St.3d 19; see, also State v. Torres (Apr. 6, 1990), Wood App. No WD-89-37, unreported. This court's...