State v. Hodge

• Decision Date: 07 June 2002
• Docket Number: No. 01 CA 76.,01 CA 76.
• Citation: 771 N.E.2d 331,2002 Ohio 3053,147 Ohio App.3d 550
• Parties: The STATE of Ohio, Appellee, v. HODGE, Appellant.
• Court: Ohio Court of Appeals

771 N.E.2d 331

147 Ohio App.3d 550

2002 Ohio 3053

The STATE of Ohio, Appellee, v. HODGE, Appellant.

No. 01 CA 76.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Decided June 7, 2002.

COPYRIGHT MATERIAL OMITTED

Paul J. Gains, Mahoning County Prosecuting Attorney, Youngstown, for appellee.

Mark A. DeVicchio, Canfield, for appellant.

DeGENARO, Judge.

{¶ 1} This matter presents a timely appeal from a judgment entry rendered by the Mahoning County Court for Austintown, Ohio, finding appellant Jesse F. Hodge III ("Hodge") guilty of driving under the influence in violation of R.C. 4511.19(A). Upon consideration of the record and the parties' briefs, for the reasons herein the decision of the trial court is affirmed.

{¶ 2} On July 21, 2000, at approximately 1:01 a.m., Hodge was traveling west in his pickup truck on a five-lane-wide section of Mahoning Avenue when Ohio State Highway Patrol Trooper Joel Hughes pulled behind Hodge's truck. Trooper Hughes remained behind Hodge's truck and paced his car to determine Hodge's speed, following Hodge a distance of approximately one-half mile for approximately thirty seconds.

{¶ 3} Trooper Hughes estimated that Hodge's car was traveling at forty to forty-five miles per hour in a thirty-five-mileper-hour zone, but he did not stop him or ultimately cite him for exceeding the posted speed limit. Trooper Hughes next observed Hodge "weaving out of his [curbside] lane." Trooper Hughes explained that by "weaving" he meant "[c]rossing — he was in the left-hand lane, crossing from the right-hand partially into the left-hand." At trial, Trooper Hughes could not say exactly how far Hodge drifted into the adjacent lane but estimated several feet. Trooper Hughes further testified that Hodge's partial crossing into the parallel lane of traffic posed little danger because there was no other traffic on the road at this time. Trooper Hughes also testified that Hodge failed to signal before drifting partially into the left lane. At trial, Trooper Hughes explained that he did not cite Hodge for failure to signal because it is the Highway Patrol's policy not to cite a driver for more than one "rules of the road" violation, and he cited Hodge for the lane violation.

{¶ 4} Trooper Hughes stopped Hodge for three reasons: (1) Hodge's speed in excess of the posted limit, (2) Hodge's failure to signal before partially drifting into the adjacent lane, and (3) Hodge's weaving out of his lane. Before being asked for his license, Hodge attempted to hand his license to Trooper Hughes through the truck window while the window was still up. After Hodge rolled down his window and handed over his license, Trooper Hughes smelled alcohol on and about Hodge. Although admittedly Hodge's speech appeared to be normal, the officer further testified that Hodge's eyes were glassy and bloodshot. Trooper Hughes performed the horizontal nystagmus gaze test and completed an impaired driver report. Last, Trooper Hughes performed a breathalyzer test, in which Hodge registered 0.139 percent. Hodge was cited for DUI in violation of R.C. 4511.19(A)(3) and failure to operate within marked lanes of the road in violation of R.C. 4511.33.

{¶ 5} Hodge filed a motion to suppress on January 11, 2001, which was denied on February 26, 2001. In overruling Hodge's motion the trial court relied upon Dayton v. Erickson (1996), 76 Ohio St.3d 3, 6, 665 N.E.2d 1091. On April 9, 2001, and after pleading no contest, Hodge was convicted for a first offense DUI under R.C. 4511.19(A) and the lane charge was dismissed. Hodge was fined $400, sentenced to thirty days in jail with twenty-seven days suspended, ordered to attend the Driving Intervention Program ("D.I.P."), and his driver's license was suspended for 180 days. Hodge timely filed his notice of appeal with this court on April 9, 2001, and the sentence is suspended pending this appeal.

{¶ 6} Hodge's sole assignment of error alleges:

{¶ 7} "The trial court erred as a matter of law in denying the defendant/appellant's motion to suppress, since there is insufficient evidence in the record to support a finding that the state trooper had a reasonable and articulable suspicion or probable cause that defendant was violating any traffic laws."

{¶ 8} In State v. Brown (June 1, 1999), 7th Dist. No. 97-CO-27, 1999 WL 343418, this court decided:

{¶ 9} "Our standard of review in an appeal of a suppression issue is twofold. State v. Lloyd (Apr. 15, 1998), Belmont App. No. 96 BA 31, unreported, 2 [126 Ohio App.3d 95, 100, 709 N.E.2d 913]. As the trial court is in the best position to evaluate witness credibility, we must uphold the trial court's findings of fact if they are supported by competent, credible evidence. State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d 988; State v. Fanning (1982), 1 Ohio St.3d 19, 20 , 437 N.E.2d 583; State v. Winand (1996), 116 Ohio App.3d 286, 688 N.E.2d 9. However, we must then conduct a de novo review of the trial court's application of the law to the facts. State v. Anderson (1995), 100 Ohio App.3d 688, 691, 654 N.E.2d 1034; State v. Strassman (Nov. 20, 1998), Athens App. No. 98 CA 10, unreported, at 2 ; Lloyd, supra at 2 [126 Ohio App.3d at 100, 709 N.E.2d 913]. Thus, whether the trial court met the applicable legal standard is a question of law answered without deference to the trial court's conclusion. Id." Brown at 1.

{¶ 10} Although the Fourth Amendment of the United States Constitution does not explicitly provide that violations of its provisions against unlawful search and seizure will result in suppression of evidence obtained as a result of a violation, the United States Supreme Court held that the exclusion of evidence is an essential part of the Fourth Amendment. Weeks v. United States (1914), 232 U.S. 383, 394, 34 S.Ct. 341, 58 L.Ed. 652; Mapp v. Ohio (1961), 367 U.S. 643, 649, 81 S.Ct. 1684, 6 L.Ed.2d 1081. The primary purpose of this exclusionary rule is to remove incentive to violate the Fourth Amendment and thereby deter police from unlawful conduct. State v. Jones (2000), 88 Ohio St.3d 430, 435, 727 N.E.2d 886. Thus, for the evidence against Hodge to serve as the basis for his conviction, the investigative stop must have been lawful.

{¶ 11} In order to make an investigatory stop of a vehicle, a law enforcement officer must merely have reasonable suspicion, not probable cause. State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph two of the syllabus. Reasonable suspicion means the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion [or stop]." Bobo at 178, 524 N.E.2d 489, citing Terry v. Ohio (1968), 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889.

{¶ 12} The traffic law for which Hodge was stopped and cited is R.C. 4511.33, which provides:

{¶ 13} "Whenever any roadway has been divided into two or more clearly marked lanes for traffic, or wherever within municipal corporations traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following rules apply:

{¶ 14} "(A) A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety." (Emphasis added.)

{¶ 15} Hodge was also stopped, although not cited, for speed and lanechange violations.

{¶ 16} Beginning with State v. Drogi (1994), 96 Ohio App.3d 466, 645 N.E.2d 153, this court has repeatedly decided that insubstantial drifts across lane lines did not give rise to reasonable and articulable suspicion sufficient to make a traffic stop. Id. State v. Perko (July 9, 1999), 7th Dist. No. 97-CO-32, 1999 WL 528731; State v. Crites (June 18, 1998), 7th Dist. No. 96 CA 67, 1998 WL 336938; E. Palestine v. Adrian (June 12, 1997), 7th Dist. No. 96-00-41, 1997 WL 321623.

{¶ 17} Subsequent to our decision in Drogi, the United States Supreme Court and Ohio Supreme Court have both held that any violation of a traffic law gives rise to a reasonable suspicion to make an investigatory stop of a vehicle. Whren v. United States (1996), 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89; State v. Wilhelm (1998), 81 Ohio St.3d 444, 692 N.E.2d 181; Erickson, supra (holding that when an officer has an articulable and reasonable suspicion or probable cause to stop a driver for any criminal violation, including a minor traffic violation, the stop is constitutionally valid regardless of the officer's subjective motivation for stopping the driver). Additionally, more than one appellate district has rejected any further reliance upon Drogi. In State v. Spillers (Mar. 24, 2000), 2d Dist. No. 1504, 2000 WL 299550, the Second District ruled:

{¶ 18} "The State contends, and we agree, Drogi, upon which the trial court relied, is of limited precedential value in view of the subsequently-decided Whren v. United States (1996), 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89, and Dayton v. Erickson (1996), 76 Ohio St.3d [3], 665 N.E.2d 1091. As we understand the holdings in both of those cases, a police officer in a marked cruiser may stop a vehicle for any traffic violation no matter how slight, for the purpose of issuing a citation for the violation. See, State v. Stephens (May 22, 1998), Montgomery App. [No.] 16727, unreported ." Id.

{¶ 19} Similarly, in State v. Young (Dec. 31, 2001), 12th Dist. No. CA2001-03-019, 2002 WL 4526, the Twelfth District ruled:

{¶ 20} "Even assuming that [the] traffic violations were de minimis traffic violations, her argument fails. This court has held that even a de minimis traffic violation provides probable cause for a traffic stop, and that any cases to the contrary were effectively overruled by the Ohio Supreme Court in State v. Wilhelm (1998), 81 Ohio St.3d 444, 692 N.E.2d 181 and [Dayton v.] Erickson [1996], 76...