State v. Bello-Mancilla , 2017 Ohio 8003 ( 2017 )

[Cite as State v. Bello-Mancilla, 2017-Ohio-8003.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 16AP-787
v. : (M.C. No. 2016 TRC 144540)
Marco A. Bello-Mancilla, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 29, 2017
On brief: Richard C. Pfeiffer, Jr., City Attorney, and Alex
Fowler, for appellee. Argued: Alex Fowler.
On brief: John A. Bell, for appellant. Argued: John A.
Bell.
APPEAL from the Franklin County Municipal Court
SADLER, J.
{¶ 1} Defendant-appellant, Marco A. Bello-Mancilla, appeals from a judgment of
the Franklin County Municipal Court in favor of plaintiff-appellee, State of Ohio. For the
reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 6, 2016, appellant was cited for failing to drive within marked
lanes, in violation of R.C. 4511.33, a minor misdemeanor, failing to wear a safety belt, in
violation of R.C. 4513.263, a minor misdemeanor, and operating while under the
influence of alcohol ("OVI"), in violation of both R.C. 4511.19(A)(1)(a) and (A)(2),
misdemeanors of the first degree. On August 9, 2016, appellant filed a motion to suppress
evidence seeking exclusion of "[t]he testimony of the arresting officer as to any
observations made of the Defendant's conduct at an[y] time after the said officer initiated
the traffic stop * * * on June 6, 2016." (Def.'s Mot. to Suppress Evidence at 1.)
No. 16AP-787 2
{¶ 3} The trial court conducted an evidentiary hearing on the motion on
September 15, 2016. At the suppression hearing, Trooper William Bogantz of the Ohio
State Highway Patrol testified that on June 6, 2016, he was on patrol near I-71, north of
Columbus, in Franklin County, Ohio. Bogantz was in his marked state highway patrol
cruiser, and he was wearing his uniform. The cruiser was equipped with a video recorder.
The trial court admitted the dash-cam video tape into evidence as State's Exhibit A, and
the prosecutor played the video as Bogantz testified. The initial time indicated on the
dash-cam video is just past 2:59 a.m.
{¶ 4} Bogantz stated that he first encountered appellant's blue Acura vehicle
when he turned north on Busch Boulevard from westbound Dublin-Granville Road.
According to Bogantz, appellant had stopped his vehicle at the traffic light in the left turn
lane nearest the median, preparing to make a left turn onto eastbound Dublin-Granville
Road. Bogantz testified that he made a U-turn on Busch Boulevard and pulled behind
appellant's vehicle in the left turn lane. According to Bogantz, appellant's vehicle "was the
only vehicle on the roadway at the time in my view, so I turned around and got behind it."
(Tr. at 9.) Bogantz described the reason for the subsequent traffic stop as follows:
The reason for the traffic stop, I was behind a – it was a blue
Acura on Busch Boulevard stopped at the light at State Route
161. As I was behind the vehicle, there were two left-turn
lanes. The vehicle was in the left of the two left-turn lanes. As
the vehicle – When the light turned green and the vehicle
made its left turn, it did not stay in the left lane. It drifted
across to the right lane and it even went over the right – the
solid white line on the right side of the roadway.
(Tr. at 8.)
{¶ 5} On cross-examination, Bogantz acknowledged that the dash-cam video
shows another vehicle ahead of his in the distance as Bogantz approached the intersection
on westbound Dublin-Granville Road. When appellant's trial counsel asked Bogantz why
he decided to make a U-turn in order to get behind appellant's vehicle, he answered "I
don't recall." (Tr. at 22.) When the trial court asked Bogantz whether he had already
decided to initiate a traffic stop of appellant's vehicle when he made the U-turn, Bogantz
responded: "I had not. He had not committed no violation at the time." (Tr. at 26.)
Bogantz also acknowledged that U-turns are generally prohibited in an intersection.
No. 16AP-787 3
{¶ 6} At the close of the suppression hearing, the trial court announced its
decision denying appellant's motion to suppress. On October 27, 2016, appellant pleaded
no contest to all four charges. The trial court convicted appellant and sentenced appellant
to 180 days in jail, with 158 days suspended and two days of jail-time credit, a fine of
$525, and two years of post-release control.1
{¶ 7} Appellant timely appealed to this court from the trial court judgment. The
trial court stayed execution of sentence pending the appeal.
II. ASSIGNMENT OF ERROR
{¶ 8} Appellant sets forth a single assignment of error as follows:
The Trial Court erred to the substantial prejudice of the
Defendant-Appellant and abused its discretion when it
overruled the Motion to Suppress the testimony of the officer
who initiated a traffic stop of the Defendant-Appellant
without probable cause and in violation of his rights under the
Fourth Amendment to the United States Constitution and
Article I, Section 1.14 of the Ohio Constitution.
III. STANDARD OF REVIEW
{¶ 9} " 'Appellate review of a motion to suppress presents a mixed question of law
and fact.' " State v. Neal, 10th Dist. No. 15AP-771, 2016-Ohio-1406, ¶ 7, quoting State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. " 'When considering a motion to
suppress, the trial court assumes the role of fact finder and, accordingly, is in the best
position to resolve factual questions and evaluate witness credibility.' " Neal at ¶ 7,
quoting Columbus v. Body, 10th Dist. No. 11AP-609, 2012-Ohio-379, ¶ 9, citing Burnside
at ¶ 8, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). " 'As such, an appellate court
must accept the trial court's factual findings if they are supported by competent, credible
evidence.' " Neal at ¶ 7, quoting Body at ¶ 9, citing Burnside at ¶ 8, citing State v.
Fanning, 1 Ohio St.3d 19 (1982). " 'Accepting these facts as true, the reviewing court must
then independently determine, without deference to the trial court's conclusion, whether
the facts satisfy the applicable legal standard.' " Neal at ¶ 7, quoting Body at ¶ 9, citing
Burnside at ¶ 8.
1 The trial court merged the two OVI convictions for purposes of conviction and sentence.
No. 16AP-787 4
IV. LEGAL ANALYSIS
{¶ 10} In appellant's sole assignment of error, appellant argues that the trial court
erred by denying his motion to suppress because Bogantz violated appellant's
constitutional rights by initiating a traffic stop without sufficient cause. We disagree.
{¶ 11} " 'It is well-established that stopping an automobile, thus temporarily
detaining its occupants, constitutes a seizure under the Fourth Amendment to the United
States Constitution.' " State v. Phillips, 10th Dist. No. 14AP-79, 2014-Ohio-5162, ¶ 16,
quoting State v. Dorsey, 10th Dist. No. 04AP-737, 2005-Ohio-2334, ¶ 17, citing Delaware
v. Prouse, 440 U.S. 648, 653 (1979). "Further, 'the seizure of a person without the
authority of a warrant is per se unreasonable, and therefore unconstitutional, unless an
exception applies.' " Phillips at ¶ 16, quoting Dorsey at ¶ 17, citing Katz v. United States,
389 U.S. 347, 357 (1967). " 'One such exception is commonly known as an investigative or
Terry stop.' " Phillips at ¶ 16, quoting Dorsey at ¶ 17, citing Terry v. Ohio, 392 U.S. 1(1968).
{¶ 12} "To legitimately effectuate a traffic stop [under Terry], an officer must have
a reasonable and articulable suspicion of criminal activity." State v. Johnson, 10th Dist.
No. 16AP-689, 2017-Ohio-5527, ¶ 18, citing State v. Young, 6th Dist. No. E-13-011, 2015-
Ohio-398, ¶ 21, citing State v. Hageman, 180 Ohio App.3d 640, 2009-Ohio-169, ¶ 11 (6th
Dist.). See also State v. McCandlish, 10th Dist. No. 11AP-913, 2012-Ohio-3765, ¶ 10
(observation of a traffic violation by an officer is enough for reasonable and articulable
suspicion to stop a vehicle). "Reasonable suspicion entails some minimal level of
objective justification, 'that is, something more than an inchoate and unparticularized
suspicion or "hunch," but less than the level of suspicion required for probable cause.' "
State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854, ¶ 17 (10th Dist.), quoting State v.
Jones, 70 Ohio App.3d 554, 556-57 (2d Dist.1990), citing Terry at 27. "In evaluating
reasonable suspicion to support the propriety of a traffic stop, a reviewing court must
consider the totality of the circumstances surrounding the stop as ' "viewed through the
eyes of the reasonable and prudent police officer on the scene who must react to events as
they unfold." ' " State v. Smith, 10th Dist. No. 13AP-592, 2014-Ohio-712, ¶ 10, quoting
McCandlish at ¶ 7, quoting State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991).
{¶ 13} R.C. 4511.33(A) provides in relevant part:
No. 16AP-787 5
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:
(1) 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.
{¶ 14} R.C. 4511.33 "requires a driver to drive a vehicle entirely within a single lane
of traffic." State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 16. "Thus, '[w]hen an
officer observes a vehicle drifting back-and-forth across an edge line, the officer has a
reasonable and articulable suspicion that the driver has violated R.C. 4511.33.' " State v.
Comer, 10th Dist. No. 13AP-955, 2014-Ohio-5755, ¶ 11, quoting Mays at ¶ 16. See also
Neal (officer's observation of a marked lanes violation justified the initial traffic stop);
State v. Chambers, 3d Dist. No. 5-10-29, 2011-Ohio-1305, ¶ 21 ("After witnessing
[defendant] cross over the white edge line, [the officer] had probable cause, and thus a
reasonable articulable suspicion, that [defendant] violated R.C. 4511.33; and therefore,
the stop was constitutionally valid."); State v. Tarlton, 4th Dist. No. 02CA688, 2002-
Ohio-5795 (upholding stop where officer observed vehicle's left tires cross roadway's
yellow center line by approximately one tire length); State v. Pence, 2d Dist. No. 2013-CA-
109, 2014-Ohio-5072 (deputy had reasonable and articulable suspicion that defendant
committed a traffic offense based on deputy's testimony that he observed defendant drive
left of the center line for two seconds in violation of R.C. 4511.33).
{¶ 15} Appellant's argument at the suppression hearing was that Bogantz made the
decision to stop appellant's vehicle well before appellant committed any traffic violation.
According to appellant's motion to suppress, it "seems likely that [appellant] was singled
out for 'Driving While Mexican.' " (Def.'s Mot. to Suppress Evidence at 9.) The record is
devoid of any testimony by Bogantz that he knew appellant was of Mexican descent prior
to making the traffic stop.
{¶ 16} Moreover, "the Supreme Court has stated that '[w]here a police officer stops
a vehicle based on probable cause that a traffic violation has occurred or was occurring,
No. 16AP-787 6
the stop is not unreasonable under the Fourth Amendment to the United States
Constitution even if the officer had some ulterior motive for making the stop, such as a
suspicion that the violator was engaging in more nefarious criminal activity.' " Johnson at
¶ 25, quoting Dayton v. Erickson, 76 Ohio St.3d 3 (1996), syllabus. See also State v.
Ewing, 10th Dist. No. 09AP-776, 2010-Ohio-1385, ¶ 16; State v. Stokes, 10th Dist. No.
07AP-960, 2008-Ohio-5222, ¶ 29. Consequently, it is not relevant to our Fourth
Amendment analysis whether Bogantz decided to stop appellant's vehicle before he
observed a traffic violation or after. Johnson, Erickson; Ewing; Stokes.
{¶ 17} Similarly, the United States Supreme Court has stated that "the Constitution
prohibits selective enforcement of the law based on considerations such as race. But the
constitutional basis for objecting to intentionally discriminatory application of laws is the
Equal Protection Clause, not the Fourth Amendment." Whren v. U.S., 517 U.S. 806, 813
(1996). See also United States v. Cousin, 448 Fed.Appx. 593, 594 (6th Cir.2012); United
States v. Nichols, 512 F.3d 789, 794-95 (6th Cir.2008); United States v. Ross, 300
Fed.Appx. 386 (6th Cir.2008). " 'Subjective intentions play no role in ordinary, probable-
cause Fourth Amendment analysis.' " Id. at 390, quoting Whren at 813. Ohio appellate
courts that have considered the issue have also rejected the notion that racial profiling
implicates the exclusionary rule under the Fourth Amendment. See, e.g., Chambers at
¶ 22; State v. Coleman, 3d Dist. No. 5-13-15, 2014-Ohio-1483, ¶ 18; Cleveland v. Oko, 8th
Dist. No. 103278, 2016-Ohio-7774, ¶ 20; State v. Dukes, 4th Dist. No. 16CA3745, 2017-
Ohio-7204, ¶ 17.
{¶ 18} In this case, the trial court denied appellant's motion for the following
reasons:
I think the lane change during the turn was illegal because,
when you have two turns – or two lanes turning left at an
intersection like that, you have to stay in the one that you
started out in. And just knowing the area, there's plenty of
time to make the turn into the left lane. And there is a
turning-at-an-intersection law that does state when you're
turning left, you turn into the closest lane to the center, which
I see the violation every day of that, but rarely do I see stops
based upon it. But that coupled with the marked lanes on the
– The tires weren't on the line. They were clearly over the
No. 16AP-787 7
line, so I think that there was a reasonable suspicion for the
stop. The motion to suppress here will be overruled.
(Emphasis added.) (Tr. at 38-39.)
{¶ 19} In our view, Bogantz's testimony, standing alone, supports the trial court's
conclusions. Comer (where dash-cam video was of poor quality to prove the lane
violation, the trial court was correct to rely on officer's testimony). Moreover, the dash-
cam video corroborates the essential details of Bogantz's testimony. The video shows
Bogantz's cruiser heading west on Dublin-Granville Road approaching the intersection
with Busch Boulevard. The time on the video is 24 seconds past 2:59 a.m. Appellant's
vehicle comes into view at 2:59 and 38 seconds. Appellant's vehicle is shown in the
distance, approaching the red traffic light at southbound Busch Boulevard and Dublin-
Granville Road. At the time appellant's vehicle comes into sight, the only other vehicle
visible is an unidentified vehicle traveling some distance ahead of Bogantz's cruiser on
westbound Dublin-Granville Road. Appellant's vehicle then stops in the left turn lane
nearest the median, preparing to make a left-hand turn onto Dublin-Granville Road
eastbound towards I-71.
{¶ 20} As Bogantz approaches the intersection, he steers his cruiser into the right-
hand turn lane of westbound Dublin-Granville Road to make a right turn, with the green
light, onto northbound Busch Boulevard. When Bogantz turns his vehicle right onto
northbound Busch Boulevard, appellant's vehicle remains stopped at the red light.
Bogantz then travels a short distance north on Busch Boulevard, to clear the median,
before making a U-turn and heading back toward the intersection. Bogantz stops his
cruiser behind appellant's vehicle in the left turn lane. Appellant's vehicle is still sitting at
the red light in the left turn lane at that time with the turn signal activated. There is a
second left-hand turn lane immediately to the right of the lane appellant's vehicle
occupies and another lane to the right of that for vehicles either continuing through the
intersection on Busch Boulevard or turning right onto Dublin-Granville Road heading
west. We note that the physical characteristics of the person driving the blue Acura are
not discernable in the dash-cam video as Bogantz turned his cruiser on to Busch
Boulevard.
No. 16AP-787 8
{¶ 21} As appellant continues to wait for the light to turn green, one vehicle is seen
driving through the intersection eastbound on Dublin-Granville Road and, a few seconds
later, another vehicle drives through the intersection westbound. There are no other
vehicles on Busch Boulevard. When the light turns green, appellant's vehicle immediately
crosses the broken white line from the left turn lane nearest the median to the turning
lane to the right, without signaling, and then continues turning in a wide arc before
crossing the solid white line between the right-hand lane of eastbound Dublin-Granville
Road and the curb. The video clearly shows both passenger side tires of appellant's
vehicle entirely across the solid white line marking the curb. At that point in time,
Bogantz activates the overhead lights on his cruiser and appellant's vehicle stops almost
immediately.
{¶ 22} Based on our independent review of the dash-cam video, we agree with the
trial court that appellant committed a clearly observable violation of R.C. 4511.33, just
prior to the traffic stop. The video tape does not reveal any large ruts or other
obstructions in the paved portion of the roadway that would have required appellant to
move his vehicle from one turn lane to the other or to cross the solid white line with both
passenger side tires. Similarly, though Bogantz was mistaken when he testified that
appellant's vehicle was the only vehicle in the area, the video tape confirms that
appellant's vehicle was the only vehicle traveling on Busch Boulevard. Moreover, the trial
court expressly relied on its own review of the dash-cam video in reaching its conclusion.
{¶ 23} Based on the foregoing, we find that the initial traffic stop was supported by
a reasonable suspicion that appellant had committed a marked lanes violation. Mays;
Comer; Neal; Chambers; Tarlton; Pence. Accordingly, we hold that the trial court did not
err when it denied appellant's motion to suppress. Appellant's sole assignment of error is
overruled.
V. CONCLUSION
{¶ 24} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Municipal Court.
Judgment affirmed.
KLATT, J., concurs.
HORTON, J., dissents.
No. 16AP-787 9
HORTON, J., dissenting.
{¶ 25} As the majority notes, the exclusionary rule is not a recognized remedy for
seizures prompted by racial discrimination or other constitutionally impermissible
motives, as long as the circumstances superficially indicate an officer's compliance with
Fourth Amendment requirements. Whren v. United States, 517 U.S. 806, 813 (1996);
United States v. Nichols, 512 F.3d 789, 794 (6th Cir.2008); State v. Chambers, 3d Dist.
No. 5-10-29, 2011-Ohio-1305, ¶ 22. Thus, facts indicating an "objective" grounds for
recognizing the existence of probable cause, no matter how inconsequential the offense,
effectively erase an officer's racial motivation from the encounter. For a defendant subject
to intentional racial discrimination in violation of the Equal Protection Clause, the only
apparent remedy is a civil suit brought under 42 U.S.C. 1983. Nichols at 794; Hudson v.
Michigan, 547 U.S. 586, 596-97 (2006) (declining to extend the exclusionary rule to
violations of the Fourth Amendment's knock-and-announce rule). As a state court of
appeals, this court is powerless to affect any change to these established principles of
Fourth Amendment law.
{¶ 26} Thus, relying on Dayton v. Erickson, 76 Ohio St. 3d 3 (1996), the majority
accepts the idea that even if Mr. Bello could prove that Officer Bogantz stopped him
because of his race, its hands would be tied under current Fourth Amendment law to
correct this wrong. Erickson can be distinguished, however, because it was decided
entirely under the Fourth Amendment to the U.S. Constitution. It is within this court's
power to conclude under Article I, Section 14 of the Ohio Constitution that even where
reasonable suspicion exists, pretextual racial profiling is an impermissible basis for a
seizure. This is because:
The Ohio Constitution is a document of independent force. In
the areas of individual rights and civil liberties, the United
States Constitution, where applicable to the states, provides a
floor below which state court decisions may not fall. As long
as state courts provide at least as much protection as the
United States Supreme Court has provided in its
interpretation of the federal Bill of Rights, state courts are
unrestricted in according greater civil liberties and protections
to individuals and groups.
Arnold v. Cleveland, 67 Ohio St.3d 35, 38 (1993), paragraph one of the syllabus.
No. 16AP-787 10
{¶ 27} For example, the Supreme Court of Ohio has held that, where no statutory
exception under R.C. 2935.26 applies, a custodial arrest for a violation of a minor
misdemeanor violates Article I, Section 14 of the Ohio Constitution, and is subject to
suppression under the exclusionary rule. State v. Jones, 88 Ohio St.3d 430 (2000). Even
after the United States Supreme Court held that the Fourteenth Amendment does not
protect against such a seizure for a minor misdemeanor in Atwater v. Lago Vista, 532
U.S. 318 (2001), the Supreme Court of Ohio reaffirmed its holding in Jones as it applied to
the Ohio Constitution, which "provides greater protection than the Fourth Amendment to
the United States Constitution against warrantless arrests for minor misdemeanors."
State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, paragraph one of the syllabus. See
also State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438 (holding that the exclusionary
rule should apply to evidence collected from a seizure by an officer who acted without
statutory jurisdiction, in violation of Article I, Section 14 of the Ohio Constitution).
{¶ 28} The purpose of the exclusionary rule is the deterrence of police misconduct.
United States v. Leon, 468 U.S. 897, 916 (1984). I can think of no more pervasive and
insidious misconduct practiced by the police than the racial profiling of the citizens they
are sworn to protect. In this case, something compelled Officer Bogantz to complete an
illegal U-turn and get behind Mr. Bello's car when it was legally sitting in a left-hand turn
lane with the turn signal activated. The officer's initial explanation was that he did this
because there were no other cars on the road, but Mr. Bello's attorney impeached the
officer with the dashcam recording showing another vehicle on the road at that time. (Tr.
at 9, 22.) Although Mr. Bello was not visible in the recording as Officer Bogantz turned
right, the camera's view only faced forward. The officer would have had a clear line of site
through his side window, making one fact apparent—Mr. Bello was an individual of
Mexican descent. As it is, the record is too incomplete to give a complete picture of
Officer Bogantz's motives.
{¶ 29} Mr. Bello could not elicit testimony or present evidence to support the
argument that he was stopped because of his race. Under the law as it stands, it is unclear
if the trial court would have even allowed him to develop the record on this issue.
Extending the exclusionary rule to seizures arising from racially motivated police
No. 16AP-787 11
misconduct would not only have provided Mr. Bello with a framework for challenging
Officer Bogantz's actions, it would have served as a deterrent to other officers from
engaging in racial profiling. Given the historic and current epidemic of police misconduct
attributed to race-based motives that dash cams and body cams have unmasked, I can
think of no more effective application of the exclusionary rule.
___________________