State v. Lloyd

• Decision Date: 15 April 1998
• Docket Number: No. 96,96
• Citation: 709 N.E.2d 913,126 Ohio App.3d 95
• Parties: The STATE of Ohio, Appellee, v. LLOYD, Appellant. BA 31.
• Court: Ohio Court of Appeals

Page 95

126 Ohio App.3d 95

709 N.E.2d 913

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

No. 96 BA 31.

Court of Appeals of Ohio Seventh District, Belmont County.

Decided April 15, 1998.

Patricia Jones-Estadt, Belmont County Assistant Prosecuting Attorney, St. Clairsville, for appellee.

Charles H. Bean, St. Clairsville, for appellant.

VUKOVICH, Judge.

Appellant Marcus C. Lloyd appeals his conviction of driving while under the influence of alcohol, in violation of R.C. 4511.19(A)(1) and (3). For the following reasons, we affirm the judgment of the Belmont County Court of Common Pleas.

I. FACTS

On December 24, 1995, appellant left the Beach-Hill Bar and was traveling on U.S. Route 40 when he was stopped by Trooper D.J. Herink of the Ohio State Highway Patrol. Trooper Herink had observed appellant drive over the yellow center line three times and over the right white edge line twice, by a tire width. As Trooper Herink approached appellant, he detected a strong odor of alcohol. He also noticed that appellant had bloodshot eyes and his speech was slurred. Due to these observations, Trooper Herink administered field sobriety tests, which appellant failed. Appellant was cited for violating R.C. 4511.25, driving left of center, and R.C. 4511.19(A)(1), driving while under the influence of alcohol. He was arrested and was taken to the police station in order for Trooper Herink to administer a breath-alcohol-concentration test.

Once at the police station, appellant contacted his attorney, who arrived at the station some time later. Trooper Herink observed appellant for twenty minutes, as is required by R.C. 4511.19(D) and Ohio Adm.Code 3701-53-02(B), before he administered the breath-alcohol test. Appellant registered .209 on the test, at which point Trooper Herink cited appellant for violating R.C. 4511.19(A)(3).

Appellant entered a plea of not guilty on all charges. Thereafter, on January 11, 1996, appellant filed a "Motion to Dismiss for Lack of Probable Cause to Stop." In that motion, appellant moved the court for a dismissal of the charges against him, alleging that Trooper Herink lacked probable cause to make the initial investigatory stop. Moreover, he claimed that since there was a lack of probable cause to make the stop in the first place, Trooper Herink was not entitled to administer field sobriety tests or the breath-alcohol test.

On February 20, 1996, a hearing on appellant's motion took place, during which Trooper Herink and one of the passengers in appellant's vehicle testified. The hearing was recessed, to be reconvened at a later date.

On April 23, 1996, appellant filed a motion to amend, in which he moved the court for an order allowing him to amend his motion to dismiss to read "Motion to Dismiss and/or Suppress Evidence of Field Sobriety and Blood [sic ] Alcohol Content Test." Once the hearing on appellant's motion was reconvened, the state made no objection to the amendment, and appellant and his father testified.

On May 7, 1996, appellant's motion was overruled.

On June 18, 1996, appellant withdrew his not guilty plea and entered a plea of no contest. Accordingly, the trial court found appellant guilty. It is from this conviction that this appeal emanates, in which appellant sets forth three assignments of error for this court's review.

II. MOTION PRACTICE IN CRIMINAL CASES

All of appellant's assignments of error concern his motion to dismiss and/or suppress. We feel it important first to address an issue of semantics which often arises in motion practice in criminal cases. Appellant initially filed what he labeled a "Motion to Dismiss" and later filed a motion to amend the caption to read "Motion to Dismiss and/or Suppress." There is absolutely no provision in the Ohio Rules of Criminal Procedure with respect to a motion to dismiss a criminal case that is founded upon a lack of probable cause. Cleveland v. Shields (1995), 105 Ohio App.3d 118, 123, 663 N.E.2d 726, 729 (Blackmon, J., concurring), citing State v. Hartley (1988), 51 Ohio App.3d 47, 48, 554 N.E.2d 950, 950-951. Accordingly, "[t]he proper remedy for Fourth Amendment violations is suppression of the evidence, not dismissal of the charges." Id., citing Blanchester v. Hester (1992), 81 Ohio App.3d 815, 820, 612 N.E.2d 412, 415. Moreover, the United States Supreme Court has held that "[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." United States v. Crews (1980), 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537, 547; see, also, State v. Reymann (1989), 55 Ohio App.3d 222, 225, 563 N.E.2d 749, 751-752. Therefore, in the case sub judice, if anything, appellant would have been entitled to suppression of some or all of the evidence against him, but he was not entitled to an automatic dismissal of the charges. If the trial court had granted his motion to suppress, the trial court could have determined that without that evidence the state could not establish its case, and at that point, the trial court could have dismissed the matter.

Regardless, even though appellant incorrectly labeled his initial motion as a "Motion to Dismiss," the trial court properly treated the motion as a motion to suppress and held the appropriate hearing. Accordingly, we are governed by the standard of review that pertains to cases that involve motions to suppress.

III. STANDARD OF REVIEW

This court has previously concluded that our standard of review with respect to motions to suppress is whether the trial court's findings are supported by competent, credible evidence. State v. Winand (1996), 116 Ohio App.3d 286, 288, 688 N.E.2d 9, 11, citing Tallmadge v. McCoy (1994), 96 Ohio App.3d 604, 608, 645 N.E.2d 802, 804-805. Naturally, this is the appropriate standard because " '[i]n a hearing on a motion to suppress evidence, the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.' " State v. Hopfer (1996), 112 Ohio App.3d 521, 548, 679 N.E.2d 321, 339, quoting State v. Venham (1994), 96 Ohio App.3d 649, 653, 645 N.E.2d 831, 833. However, once we accept those facts as true, we must independently determine, as a matter of law and without deference to the trial court's conclusion, whether the trial court met the applicable legal standard. State v. Williams (1993), 86 Ohio App.3d 37, 41, 619 N.E.2d 1141, 1143-1144, citing State v. Dreher (July 28, 1992), Highland App. No. 786, unreported, at 5, 1992 WL 188501, and State v. Fausnaugh (Apr. 30, 1992), Ross App. No. 1778, unreported, at 3, 1992 WL 91647.

IV. FIRST AND SECOND ASSIGNMENTS OF ERROR

Appellant addressed assignments of error one and two together in his brief, and we will do likewise. Those assignments read as follows:

"The trial court erred below in not granting defendant-appellant's motions to suppress and/or dismiss and in finding that there was probable cause and/or reasonable suspicion to stop his vehicle, since the same was not sustained by the weight of unrecanted and believable evidence in the case sub judice."

"The trial court erred below in not granting defendant-appellant's motions to suppress and/or dismiss and in finding that there was probable cause to arrest defendant-appellant for D.U.I., since the same was not supported by the admissible and believable evidence in the case sub judice."

In support of his first and second assignments of error, appellant alleges that no probable cause existed for the initial stop of his vehicle and, therefore, the trial court should have granted his motion to suppress and/or dismiss. Specifically, appellant claims that Trooper Herink charged him with driving left of center only as a pretext in order for Trooper Herink to meet the legal standard required for an investigatory stop. He contends that he never crossed either the yellow line or the white line as Trooper Herink had reported. Furthermore, appellant argues that Trooper Herink could not have seen him crossing the marked lines because the lines were covered with snow, which was affirmed by the testimony of one of passengers riding in appellant's vehicle. Finally, appellant claims that U.S. Route 40 is a three-lane road, and not a two-lane road as reported by Trooper Herink, so appellant could not have traveled left of center.

Appellant's first assignment of error alleges that Trooper Herink did not have probable cause and/or reasonable suspicion to stop his vehicle. His second assignment of error claims that Trooper Herink did not have probable cause to arrest appellant for driving under the influence. Accordingly, our analysis will first deal with the stop and then with the arrest.

A. THE STOP

In support of his assignments of error, appellant argues that no probable cause and/or reasonable suspicion existed for the initial stop of his vehicle and that, therefore, the trial court should have suppressed all of the evidence obtained following the stop. Appellant is obviously unclear as to the standard that governs a police officer who is making an initial investigatory stop. It is established law that "an officer does not need probable cause to make a traffic stop; reasonable suspicion based on specific and articulable facts that a traffic law is being violated or that criminal activity is occurring is sufficient to meet constitutional requirements." In re Eric W., Alleged Delinquent Child (1996), 113 Ohio App.3d 367, 369-370, 680 N.E.2d 1275, 1276, citing State v. Wireman (1993), 86 Ohio App.3d 451, 453, 621 N.E.2d 542, 543-544; see, also, Delaware v. Prouse (1979), 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673-674.

The crux of appellant's argument is that the stop at issue was pretextual. ¹ However, generally, an officer's observation of a traffic violation or erratic driving justifies an investigative stop. State v. Johnson (1995), 105 Ohio App.3d 37, 40, 663 N.E.2d 675, 677, citing ...