State of Ohio, City of Delaware v. Bialal Maalikul Mulk, 88-LW-3966

• Decision Date: 09 November 1988
• Docket Number: 88-LW-3966,88-CA-20
• Parties: STATE of Ohio, CITY of Delaware, Plaintiff-Appellant, v. Bialal Maalikul MULK, Defendant-Appellee.
• Court: Ohio Court of Appeals

STATE of Ohio, CITY of Delaware Plaintiff-Appellant, v. Bialal Maalikul MULK, Defendant-Appellee.

No. 88-CA-20.

88-LW-3966 (5th)

Court of Appeals of Ohio, Fifth District Delaware

November 9, 1988

Criminal Appeal from Municipal Court, Case No. 88-TR-4695.

Michael C. Hoague, City Prosecutor's Office, Delaware, for plaintiff-appellant.

Shelby V. Hutchins, Hutchins Law Office, Delaware, for defendant-appellee.

Before PUTMAN, P.J., and MILLIGAN and HOFFMAN, JJ.

OPINION

MILLIGAN Judge.

DUI^SUPPRESSION GRANTED^REASONABLE SUSPICION FOR TRAFFIC STOP

In a DUI prosecution, the acting judge of the Delaware County Municipal Court sustained the defendant-appellee's motion to suppress all evidence following the traffic stop.

The court favored us with separate findings of fact and conclusions of law attached and incorporated.

The State, upon certification that the ruling destroyed any reasonable ability to effectively prosecute the case, appealed, assigning a single error:

THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE ON THE BASIS OF A LACK OF REASONABLE SUSPICION TO EFFECT A TRAFFIC STOP, AS THERE WAS IN FACT REASONABLE SUSPICION TO MAKE THE TRAFFIC STOP.

In traffic cases, the Supreme Court of the United States and the Ohio Supreme Court have carved out two progressive steps as necessary prefixes to a lawful arrest for driving under the influence: the burden necessary for the officer's original stop of the vehicle, and the burden necesssary to sustain a specific arrest.

Lawful stop. As a condition precedent to a lawful stop, the law officer must have "some articulable and reasonable suspicion" of illegal activity connected with the persons in the vehicle and/or the operation thereof. Delaware v. Prouse (1979), 440 U.S. 648, 59 L.Ed.2d 660. State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1004.

In Prouse, the Supreme Court expanded upon the concerns expressed in Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, and sought to find a balance between the public interest in the control of lawful use of the highways and personal privacy:

To insist neither upon an appropriate factual basis for suspicion directed at a particular automobile, nor upon some other substantial and objective standard or rule to govern the exercise of discretion "would invite intrusion upon constitutional guaranteed rights based on nothing more substantial than inarticulate hunches."

Standardless and unconstrained discretion is the evil the court has discerned when in previous cases it has insisted that the discretion of the officer in the field be circumscribed, at least to some extent.

Prouse, supra, at 461.

The "credibility of witnesses" call is no more and no less the function of the fact finder, trial court, when the evidence is suppressed as when the suppression motion is overruled.

Here, the question we confront on appellate review is whether the conclusion flows from the found facts, or whether the conclusion, upon the found facts, is contrary to law.

In State v. Caudill (May 29, 1986), Delaware App. No. 86-CA-1, unreported, we reversed a judgment of the Delaware Municipal Court which had sustained a motion to suppress on strikingly similar facts.

In reversing, we held that the trial court erred in finding insufficient, articulable, reasonable suspicion to make a traffic stop. We identified the articulable facts as:

1.An anonymous tip of erratic driving;

2.Somewhat erratic driving observed;

3.A technical speeding violation; and

4.A defective headlight, R.C. 4513.04.

We also observed that the anonymous motorist tip of erratic driving, standing alone, would not constitute reasonable suspicion to justify a stop; the observed minor misdemeanor headlight violation would be sufficient, standing alone, to justify the stop. Caudill, supra.

In the instant case, the anonymous motorist tip identifying the vehicle as being "all over the lanes," is not corroborated by any observed violation of, or suspicion of violation of, any traffic or other criminal statute.

By finding that the officer "did not have reasonable suspicion to stop the car," the trial court impliedly also found that no other justifiable reason for the stop existed, ex.: that the motorist needed assistance, or that the health or safety of the motorist, passengers, or any other person, were in jeopardy.

We conclude that upon the found facts the conclusion is neither against the weight of evidence, contrary to...