State v. Tony D. Venham

• Decision Date: 08 September 1994
• Docket Number: 94-LW-2542,93 CA 28
• Court: United States Court of Appeals (Ohio)
• Parties: STATE OF OHIO, Plaintiff-Appellee v. TONY D. VENHAM, Defendant-Appellant Case

STATE OF OHIO, Plaintiff-Appellee v. TONY D. VENHAM, Defendant-Appellant

No. 93 CA 28.

94-LW-2542 (4th)

Court of Appeals of Ohio, Fourth District Washington

September 8, 1994

COUNSEL FOR APPELLANT: Teresa D. Schnittke, Assistant Washington County Public Defender, 330 Fourth Street, Marietta, Ohio 45750.

COUNSEL FOR APPELLEE: Robert J. Smith, Marietta City Assistant Law Director, 301 Putnam Street, Marietta, Ohio 45750.

DECISION

ABELE J.

This is an appeal from a judgment of conviction and sentence entered by the Marietta Municipal Court finding Tony D Venham, defendant below and appellant herein, guilty of driving while under suspension, in violation of R.C 4507.02(B).

Appellant assigns the following error:

"THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO GRANT THE DEFENDANT'S MOTION TO SUPPRESS, FILED APRIL 22, 1993."

On March 31, 1993, at approximately 1:30 p.m., Washington County Sheriff's Detective James Moon was aiding another detective in a search for an individual named Stacey R. Ellison, for whom a northern Ohio county had issued an active arrest warrant. At the sheriff's office, Moon had seen a facsimile of Ellison's photograph and a physical description. The detectives drove to the apartment complex at Dodd Circle in Marietta, Ohio in response to a tip that Ellison was there. After inquiry, the detectives learned that Ellison had left the apartment with appellant and several other individuals.

Detective Schuck left the apartment and then began to look for the car as described by the residents. Detective Moon remained in the apartment complex in case Ellison returned. As Moon was waiting near Chisler Drive, the described car passed him. In its judgment entry, the trial court outlined the facts as follows:

"Deputy Moon later saw Mr. Venham's car. When he first saw it, he saw two people in the front seat and one head 'pop up' in the back seat. He activated the lights and siren on his patrol car. The car appearing to be Mr. Venham's was stopped. He called for a backup unit. He then removed the passenger in the front car seat from the car, followed by the passenger in the back seat, and finally the driver, who is the Defendant in this case. The occupants of the automobile told the Deputy that they had dropped Mr. Ellison off prior to being stopped. Mr. Ellison, the person wanted on the warrant, was not with them. Mr Venham produced the license. Deputy Moon had the dispatcher run a computer check to determine if the license was valid. The computer indicated that the Defendant had no operator's license, which the Defendant confirmed. Deputy Moon charged the Defendant with operating under a FRA suspension in violation of Section 4507.02(A)."

Moon established that the individuals in the car were appellant, Ellison's brother and Ellison's brother-in-law.^[1]

Appellant filed a motion to suppress evidence asserting that Deputy Moon did not have a legitimate basis to ask appellant for his license and to run a license record check. At the hearing on the motion to suppress, Detective Moon testified that he did not personally know appellant but that he had seen him around town. Moon recognized, upon appellant's exit from the car, that appellant was not Ellison.

The trial court overruled appellant's motion to suppress evidence. Subsequently, appellant entered a "no contest" plea and the court found appellant guilty as charged. Appellant filed a timely notice of appeal.

I

In his sole assignment of error, appellant asserts that the trial court erred by overruling his motion to suppress evidence. In particular, appellant contends that because Detective Moon determined that appellant was not Ellison, and because Moon established that Ellison was not in the car, Moon did not have a reasonable and articulable suspicion to demand appellant to produce his operator's license and to perform a computer check of appellant's license. We note that appellant does not contest the validity of the initial investigatory atop.

In a hearing on a motion to suppress evidence, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Lewis (1992), 78 Ohio App.3d 51, 605 N.E.2d 451; State v. Warren (Aug. 12, 1991), Hocking App. No. 90CA7, unreported. Thus, the credibility of witnesses during a motion to suppress evidence hearing is a matter for the trial court. A reviewing court should not disturb the trial court's findings on the issue of credibility. State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; State v. Tutt (Apr. 14, 1986), Warren App. No. CA85-09-056, unreported. Accordingly, in our review we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the appropriate legal standard. See State v. Shelpman (May 23, 1991), Ross App. No. 1632, unreported; State v. Simmons (Aug. 3, 1990), Washington App. No. 89CA18, unreported.

In the case sub judice, the trial court concluded that Detective Moon reasonably obtained identification from all of the occupants of the vehicle. We disagree with the trial court.

The Fourth and Fourteenth Amendments to the United States Constitution as well as Section 14, Article I of the Ohio Constitution prohibit any governmental search or seizure, including a brief investigative stop, unless supported by an objective justification. Terry v. Ohio (1968), 392 U.S. 1, 19; State v. Andrews (1991), 57 Ohio St.3d 86, 87 In order to warrant a brief investigatory stop pursuant to Terry, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion. State v. Williams (1990), 51 Ohio St.3d 58, 60. The propriety of an investigative stop by a police officer must be viewed in light of the totality of the circumstances. State v. Bobo (1988), 37 Ohio St.3d 177, paragraph one of the syllabus.

In State v. Finley (June 16, 1988), Ross App. No. 1382, unreported, we wrote:

"In Prouse (Delaware v. Prouse (1979), 440 U.S. 648), supra at 663, the Supreme Court of the United States held that random stops of motor vehicles are violative of Fourth Amendment protections'. . .except in those situations in which there is at least an articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law . . .' (emphasis added). In Ohio, an investigatory stop of a motor vehicle is permissible when specific articulable facts exist to justify a reasonable suspicion that the driver violated the law. State v. Chatton (1984), 11 Ohio St.3d 59; State v. Kilbarger (Oct. 17, 1984), Hocking App. No. 404; State v. Cunningham (Nov. 24, 1986), Ross App. No. 1225."

In the instant case, we note that appellant does not contest the validity of the initial investigatory stop. Appellant contends, however, that Detective Moon improperly detained appellant and requested to see appellant's license after he learned that Ellison was not in the vehicle. Appellant asserts that once Detective Moon recognized that appellant was not Ellison, there was no legitimate reason to detain appellant. Thus, the issue we must address in the case sub judice is whether Detective Moon properly detained appellant after Moon learned that Ellison was not in the vehicle and Moon's initial suspicion which formed the basis of the investigatory stop had been dispelled.

We note that the scope and duration of the investigative stop must be limited to effectuate the purpose for which the initial stop was made. In State v. Berry (Dec. 1, 1993), Washington App. No. 93CA17, unreported, we wrote:

"The scope and duration of the investigative stop must last no longer than is necessary to effectuate the purpose for which the initial stop was made. United States v. Brignoni-Ponce (1975), 422 U.S. 873; State v. Chatton (1984), 11 Ohio St.3d 59, 63; State v. Bevan (1992), 80 Ohio App.3d 126, 129. If circumstances attending an otherwise proper stop should give rise to a reasonable suspicion of some other illegal activity, different from the suspected illegal activity that triggered the stop, then the vehicle and the driver may be detained for as long as that new articulable and reasonable suspicion continues. Under these conditions, the continued detention is lawful, even if the officer is satisfied that the suspicion which initially justified the stop has dissipated. State v. Myers (1990), 63 Ohio App.3d 765, 771. However, the lawfulness of the initial stop will not support a "fishing expedition" for evidence of another crime. Bevan, supra, at 130; see, also, State v. Inabnitt (1991), 76 Ohio App. 3d 586, 590."

In State v. Krum (Sept. 1, 1993), Montgomery App. No. 13668, unreported at 9-15, the court wrote:

"Though an initial stop may, as in this case, have been justified, once an officer's initial suspicion has been dispelled, he may continue to detain an individual to pursue some ancillary matter only if that matter is supported by a reasonable suspicion that some criminal activity is afoot. * * * Reasonable suspicion that the detainee is engaged in criminal activity must exist for as long as the detention does. The lawfulness of the initial stop will not support a 'fishing expedition' for evidence of crime. State v. Bevan (1992), 80 Ohio App.3d 126, 130, 608 N.E.2d 1099. See also State v. Inabnitt (1991), 76 Ohio App.3d 586, 590, 602 N.E.2d 740; State v. Hart (1988), 61 Ohio App.3d 37, 41, 572 N.E.2d 141; State v Sharp, s

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