Village of McComb v. Douglas Andrews

• Citation: 2000 Ohio 1663
• Decision Date: 22 March 2000
• Docket Number: 00-LW-1074,5-99-41
• Parties: VILLAGE OF MCCOMB, PLAINTIFF-APPELLEE v. DOUGLAS ANDREWS, DEFENDANT-APPELLANT CASE NUMBER 5-99-41
• Court: United States Court of Appeals (Ohio)

2000-Ohio-1663

VILLAGE OF MCCOMB, PLAINTIFF-APPELLEE v. DOUGLAS ANDREWS, DEFENDANT-APPELLANT

No. 5-99-41

00-LW-1074 (3rd)

Court of Appeals of Ohio, Third District Hancock

March 22, 2000

Criminal Appeal from Municipal Court.

MARK D SCHNITKEY, Attorney at Law, Reg. #0006075, 118 West Washington, Napoleon, OH 43545, For Appellant.

DONALD J. RASMUSSEN, Prosecuting Attorney, Reg. #0022439, 314 West Crawford Street, Findlay, OH 45840, For Appellee.

OPINION

BRYANT J.

On October 27, 1998, at approximately 12:48 a.m., Officer Gregory Smith of the Village of McComb Police Department observed Defendant/Appellant, Douglas Andrews, operating a motor vehicle southbound on "186" and within the Village limits. The southbound and northbound lanes of "186" are delineated within the Village by double solid yellow lines indicating no passing permitted.

Officer Smith testified that when he first observed Appellant's vehicle, he noticed that the right rear tire was left of the centerline by one tire width and the tire remained left of center for a distance of at least two feet. Officer Smith testified that he was unsure where the vehicle was coming from and that the tire may have been left of center as a result of the driver simply cutting a turn/corner short. Officer Smith continued to observe Appellant's vehicle and noticed that as the vehicle approached and traversed a steep railroad crossing both left side tires traveled left of the centerline by a complete tire width and the tires remained left of center for approximately three feet.^[1]

As a result of Officer Smith's observations, a traffic stop was initiated and perfected. Subsequently, Appellant was cited for driving under the influence of alcohol, a violation of R.C. §4511.19. Thereafter Appellant filed a Motion To Suppress on the grounds that Officer Smith lacked reasonable articulable suspicion to make the stop of Appellant's vehicle. On June 9, 1999, a suppression hearing was held. At the hearing, the trial court, in overruling the Motion To Suppress, concluded as follows:

All right, the court would find from the evidence that the Defendant was left of center just prior to passing the railroad tracks, and again just after South Street. Both incidents were very, very brief; the officer even stating that he wanted to confirm the first incident with further driver action. The Court will disregard any testimony regarding any action outside of the city limits, because in order for the stop to be valid, the observation had to take place within the jurisdiction of the officer.***

***

That brings us back, then, to the issue of the left of centers. Although the first left of center, according to the officer's testimony, was not sufficient in his mind to justify a stop, it did contribute to his suspicion. The second left of center confirmed that suspicion that there was some improper driver action.***

***

Based on what I've heard here today, it's about as % when it comes to finding the totality of the circumstances to be reasonable, articulable suspicion % it's probably just about as thin as I'm willing to go.***

The Court feels that this may be a good case to find out in the Third District whether or not this is enough for reasonable, articulable suspicion. But based on what I've heard at this point, I'm going to overrule the Motion to Suppress, and set this matter for further proceedings.

(Transcript pages 45, 46, 48, 49). Thereafter Appellant entered a plea of no contest to the driving under the influence charge and the trial court found him guilty of the offense charged. Appellant was sentenced to forty days in jail with twenty suspended, was fined and given a two year operator's license suspension reviewable after one year.

It is from the decision of the trial court overruling the Motion To Suppress that Appellant now appeals, prosecuting one assignment of error.

Assignment of Error

The trial court erred in denying the Defendant-Appellant's Motion To Suppress because the arresting officer lacked a reasonable articulable suspicion to stop and detain the Defendant/Appellant.

We begin our review of the motion to suppress ruling by noting the applicable standards of review for this Court.

Review of a motion to suppress ruling involves a mixed question of law and fact. United States v. McConney (C.A.9 1984), 728 F.2d 1195, certiorari denied (1984), 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46; United States v. Martinez (C.A.11, 1992), 949 F.2d 1117, 1119; United States v. Mejia (C.A.9, 1991), 953 F.2d 461, 464-465; United States v. Wilson (C.A.11, 1990), 894 F.2d 1245, 1254. In a motion to suppress, the trial court assumes the role of the trier of facts, and, as such, is in the best position to resolve questions of fact and to evaluate witness credibility. See, e.g., State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, 981, certiorari denied (1992), 505 U.S. 1227, 112 S.Ct. 3048, 120 L.Ed.2d 915, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584; State v. Clay (1972), 34 Ohio St.2d 250. State v. Payne (1995), 104 Ohio App.3d 364, 367, 662 N.E.2d 60, 61-62; State v. Robinson (1994), 98 Ohio App.3d 560, 570, 649 N.E.2d 18, 25; State v. Rossiter (1993), 88 Ohio App.3d 162, 166, 623 N.E.2d 645, 648. The weight of the evidence is also primarily for the trier of the facts. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus; State v. Smith (1997), 80 Ohio St.3d 89, 105, 684 N.E.2d 668, 685; State v. Brooks (1996), 75 Ohio St.3d 148, 154, 661 N.E.2d 1030, 1036-1037; Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584-585.

Accordingly, in our review, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Brooks, 75 Ohio St.3d at 154, 661 N.E.2d 1030; State v. Williams (1993), 86 Ohio App.3d 37, 41, 619 N.E.2d 1141, 1143; United States v. Lewis (C.A.1, 1994), 40 F.3d 1325, 1332; State v. Harris (1994), 98 Ohio App.3d 543, 546, 649 N.E.2d 7, 9; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard. Id; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911; State v. Anderson (1995), 100 Ohio App.3d 688, 691, 654 N.E.2d 1034. That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review. Harris, supra, 98 Ohio App.3d at 546, 649 N.E.2d at 9; Anderson, 100 Ohio App.3d at 691, 654 N.E.2d at 1036; see, also, Lewis, supra, 40 F.3d at 1332; Wilson, supra, 894 F.2d at 1254.

When a police officer stops a motor vehicle and detains its occupants, he has "seized" it and its occupants within the meaning of the Fourth Amendment to the United States Constitution. See, Terry v. Ohio (1968), 392 U.S. 1, 8, 9, 88 S.Ct. 1868, 1872, 1873, 20 L.Ed.2d 889; Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317; United States v. Mendenhall (1980), 446 U.S. 544, 556-557, 100 S.Ct. 1870, 1878, 64 L.Ed.2d 497 (opinion of Stewart J.); Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The ultimate standard set forth in the Fourth Amendment is reasonableness.

The law governing investigative stops of automobiles is clear. 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, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271. Before stopping a vehicle, a law enforcement officer must have reasonable suspicion, based on specific and articulable facts that an occupant is or has been engaged in criminal activity. See Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; State v. Ball (1991), 72 Ohio App.3d 43, 46, 593 N.E.2d 431, citing Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, and Terry, 392 U.S.1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Thus, if the specific and articulable facts indicate to the officer that the driver of an automobile may be committing a criminal act, which includes a violation of a traffic law, the officer can justifiably make an investigative stop. State v. Carlson (1995), 102 Ohio App.3d 585, 593, 657 N.E.2d 591; State v. Cole (Sept. 13, 1995), Wyandot App. No. 16-94-11, unreported at 4. In a situation where the officer has observed a traffic violation, the stop is constitutionally valid. City of Dayton v. Erickson (1996), 76 Ohio St.3d 3, 9, 665 N.E.2d 1091; State v. Evans (1993), 67 Ohio St.3d 405, 618 N.E.2d 162, certiorari denied (1993), 510 U.S. 1166, 114 S.Ct. 1195, 127 L.Ed.2d 544. With these principles in mind, we turn to the issue raised by the parties in their briefs.

Our inquiry in the case sub judice therefore begins and ends with a consideration of whether Officer Smith had reasonable suspicion, based on specific and articulable facts that an occupant in Appellant's vehicle may be committing a criminal act, including but not limited to a violation of a traffic law.

When one or more left side tires on a vehicle approaching a railroad...