State v. Landrum

• Decision Date: 09 March 2000
• Docket Number: No. 99CA531.,99CA531.
• Citation: 137 Ohio App.3d 718,739 NE 2d 1159
• Parties: The STATE of Ohio, Appellee, v. LANDRUM, Appellant.
• Court: Ohio Court of Appeals

137 Ohio App.3d 718

739 NE 2d 1159

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

No. 99CA531.

Court of Appeals of Ohio, Fourth District, Vinton County.

Decided March 9, 2000.

COPYRIGHT MATERIAL OMITTED

Donald A. Cox, for appellant.

Timothy P. Gleeson, for appellee.

HARSHA, Judge.

Marlin J. Landrum appeals from a judgment entered by the Vinton County Court finding him guilty of an overload violation under R.C. 5577.04. He raises the following assignments of error for our review:

"I. The Court erred in denying Defendant's Motion to suppress the arrest of Defendant and weighing of Defendant's truck."

"II. The Court erred in denying Defendant's Motion to dismiss the charges of overload for the reason that Section 5577.04 of the Ohio Revised Code is unconstitutional."

Finding that appellant's first assignment of error has merit, we reverse the trial court's judgment.

Appellant was eastbound on Route 32 in a commercial motor vehicle when he was stopped for a safety inspection by Trooper McKeever of the Ohio State Highway Patrol. Trooper McKeever was working with a commercial motor vehicle safety enforcement officer of the Department of Public Safety and a load inspector when he stopped appellant. After stopping appellant, Trooper McKeever noticed appellant's truck tires were bulging, which he attributed to an overweight violation. After weighing the vehicle, Trooper McKeever cited appellant for a violation of R.C. 5577.04(B)(3) in that his truck was 27,300 pounds over the legal limit.

Appellant filed a motion to suppress the results of the weighing of his vehicle and argued that Trooper McKeever had no articulable reason to stop appellant's vehicle in the first instance. Appellant also filed a motion to dismiss in which he contended that R.C. 5577.04 is unconstitutional as it violates due process requirements.

At the suppression hearing, Trooper McKeever testified that he did not observe appellant commit a traffic infraction and did not observe any safety violations prior to the stop. Appellant was flagged down at the request of the safety inspector in order to conduct an inspection.¹ Trooper McKeever testified that under federal guidelines, commercial trucks can be stopped and inspected at any time.

At the conclusion of the hearing, the trial judge overruled appellant's motion to suppress. Orally, the trial judge found that appellant's stop was allowed by federal law, that Trooper McKeever noticed the bulging tires following the stop and, therefore, probable cause existed to weigh appellant's truck. No specific federal statute that authorizes random stops for safety inspections was cited by the state or the court. The trial court also overruled appellant's motion to dismiss. Appellant was subsequently found guilty of the overload violation, fined $981 and ordered to pay court costs. A timely appeal was filed.

In his first assignment of error, appellant argues that the trial court erred in denying his motion to suppress. Specifically, appellant argues that he was operating his vehicle in a lawful manner when he was stopped by Trooper McKeever. He further argues that R.C. 4513.33 requires that a police officer have reason to believe that the weight of a vehicle and its load are unlawful before requiring the vehicle's driver to stop and submit to a weighing; to stop a vehicle for a safety inspection, a police officer must have some articulable and reasonable suspicion that the vehicle is either unsafe or in violation of state law.

The state relies on R.C. 5503.34 to support its position that random stops of commercial vehicles for safety inspections are lawful. R.C. 5503.34 states:

"Uniformed employees of the commercial motor vehicle safety enforcement unit may stop commercial motor vehicles for the exclusive purpose of inspecting such vehicles to enforce compliance with orders and rules of the public utilities commission as required by division (F) of section 5502.01 of the Revised Code."

The state does not dispute that no suspicion of criminal activity existed, but argues that Trooper McKeever stopped appellant on behalf of the safety inspector and, therefore, the initial stop was lawful.

In a motion to suppress, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. See, e.g., State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, 981-982, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 57, 58, 437 N.E.2d 583, 584-585; see, also, State v. Williams (1993), 86 Ohio App.3d 37, 41, 619 N.E.2d 1141, 1143-1144. Accordingly, in our review, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594, 621 N.E.2d 726, 726-727. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusions, whether they meet the applicable legal standard. Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911; State v. Klein (1991), 73 Ohio App.3d 486, 488, 597 N.E.2d 1141, 1142-1143; Williams and Guysinger, supra.

In its appellate brief, the state relies upon R.C. 5503.34; below, the state relied upon unspecified federal law to support its position that the stop of appellant was lawful. Generally, a party cannot assert new legal theories for the first time on appeal. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43, 70 O.O.2d 123, 124-125, 322 N.E.2d 629, 630-631. However, the Ohio Supreme Court has consistently held that a reviewing court is not authorized to reverse a correct judgment simply because the trial court has stated an erroneous basis for that judgment. Myers v. Garson (1993), 66 Ohio St.3d 610, 614, 614 N.E.2d 742, 745; Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93, 96, 551 N.E.2d 172, 174-175.

Here, the state has not directed us to any federal statute that supports a finding that Trooper McKeever could stop appellant for a random safety inspection. Furthermore, there is no reference to a specific federal statute in the trial record. Therefore, the trial court's judgment cannot be supported on that basis. However, we will consider the state's argument on appeal that the stop was authorized by R.C. 5503.34 to determine if the judgment can be upheld on another basis pursuant to Myers and Joyce, supra.

R.C. 5503.34 allows uniformed employees of the commercial motor vehicle safety enforcement unit to stop commercial motor vehicles for the sole purpose of inspecting the vehicle to enforce compliance with orders and rules of the Public Utilities Commission as required by R.C. 5502.01(F).² R.C. 5502.01(F) provides:

"The department of public safety shall enforce compliance with orders and rules of the public utilities commission and applicable laws in accordance with Chapters 4919., 4921., and 4923. of the Revised Code regarding commercial motor vehicle transportation safety, economic, and hazardous materials requirements.

A brief history of the relationship between the Public Utilities Commission and the Department of Public Safety is necessary to fully understand the significance of this provision. Originally, the authority to inspect commercial vehicles was vested in the Transportation Department of the Public Utilities Commission. The Public Utilities Commission promulgated regulations under R.C. 111.15, which outlines the procedures state agencies must follow when developing administrative rules governing the agency. Rules issued under an agency's statutory authority generally have the force of law. State ex rel. Celebrezze v. Natl. Lime & Stone Co. (1994), 68 Ohio St.3d 377, 382, 627 N.E.2d 538, 542. Most relevant here, the Public Utilities Commission promulgated Ohio Adm.Code 4901:2-5-13, which outlines the procedure to be utilized when enforcing R.C. Chapters 4919, 4921 and 4923. Ohio Adm.Code 4901:2-5-13 specifies the procedures Public Utilities Commission employees must follow in determining which vehicles to inspect and delineates the extent of the inspections. In particular, Ohio Adm.Code 4901:2-5-13(C) provides:

"Authorized employees of the commission's transportation department shall utilize the following criteria in determining which documents, motor vehicles, and cargo to inspect and which employees of an offeror or motor carrier to interview:

"(1) Complaints received and processed by the commission's transportation department headquarters staff and issued to field employees;

"(2) Observed possible violations of any rules and statutes listed in paragraph (A) of this rule;

"(3) Knowledge that the motor vehicle was recently inspected and had serious safety defects at the time of inspection;

"(4) Motor vehicles, motor carriers, and offerors designated by the headquarters staff of the commission's transportation department as `special interest'; or

"(5) Any uniform statistical selection procedure, such as every fifth motor vehicle or every motor vehicle entering an inspection site. Such a selection procedure shall be used when operating at a permanently or temporarily fixed inspection location on public property, private property open to the public, or private property with permission of the owner or person in control of the property, and shall not preclude inspections which meet other criteria in paragraph (C) of this rule. As used in this rule, `temporarily fixed inspection location' shall include a portion of a public highway being patrolled by employees of the commission's transportation department." (Emphasis added.)

The employees of the Enforcement Division of the Transportation Department of the Public Utilities Commission were subsequently transferred to the Department of Public Safety. Am.Sub.S.B. No. 162. Under this personnel transfer, the Department of Public Safety was given authority to enforce compliance with the orders and rules of the ...