State v. Woods , 117 N.E.3d 1017 ( 2018 )

[Cite as State v. Woods, 2018-Ohio-3379.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon John W. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellant : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 18-CA-13
SHAUNE WOODS :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
17CR550
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 22, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
WILLIAM HAYES JEFFREY STAVOFF
LICKING COUNTY PROSECUTOR 901 SOUTH HIGH STREET, 2ND FLOOR
BY: DANIEL BENOIT COLUMBUS, OH 43206
ASSISTANT PROSECUTOR
20 S. SECOND STREET, 4TH FLOOR
NEWARK, OH 43055
[Cite as State v. Woods, 2018-Ohio-3379.]
Gwin, J.
{¶1} Plaintiff-appellant the State of Ohio appeals the February 16, 2018
Judgment Entry of the Licking County Court of Common Pleas granting defendant-
appellee Shaune Woods [“Woods”] motion to suppress evidence.
Facts and Procedural History
{¶2} On November 3, 2015, Trooper Drew Untied was sitting stationary watching
traffic and looking for criminal indicators. Trooper United was accompanied that day by
another trooper, Trooper Michael Wilson. Trooper Wilson observed a vehicle of interest
pass by, noting that the vehicle appeared to be driverless. Driverless means that the
officers could not see any of the occupants of the vehicle. The plate of the vehicle came
back to a rental car. Trooper Untied stated that those involved in criminal activity often
time have rental vehicles to avoid seizure of their own property. The vehicle was dusty,
which is typically uncommon for a rental car, and there were fingerprints in the area of
trunk of the vehicle. The troopers pulled out of their position, and ultimately stopped the
vehicle for a traffic offense of following too close.
{¶3} The entirety of the traffic stop was recorded on the dash camera system in
place within the trooper's cruiser.
{¶4} After the vehicle was stopped, the driver of the vehicle was identified as
Woods. The passenger was identified as Brooks. The trooper approached Woods and
explained to him the reason that the vehicle had been pulled over.
{¶5} The vehicle is subject to search and eventually another officer arrives to
offer some professional courtesy to the troopers. Ultimately, drugs are located within the
passenger side seat of the vehicle, inside the void of the passenger seat.
Licking County, Case No. 18-CA-13 3
{¶6} Woods filed a motion to suppress the evidence located as a result of the
vehicle being stopped on September 7, 2017. The state responded in writing on September
15, 2017. An oral hearing was held on October 5, 2017. On February 26, 2018, the trial
court issued a ruling granting Woods’ motion to suppress evidence.
Assignment of Error
{¶7} The state raises one assignment of error,
{¶8} “I. THE TRIAL COURT ERRED IN GRANTING THE APPELLEE'S
MOTION TO SUPPRESS, BY DETERMINING THAT THE STOP OF THE APPELLEE'S
VEHICLE WAS IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED
STATES CONSITUTION.”
Law and Analysis
STATE’S RIGHT TO APPEAL.
{¶9} A court of appeals has jurisdiction to entertain the state's appeal from a trial
court's decision to suppress evidence only where the state has complied with Crim.R.
12(K). State v. Perez, 1st Dist. Hamilton Nos. C-040363, C-040364, C-040365, 2005-
Ohio-1326, ¶12, citing State v. Buckingham, 62 Ohio St. 2d 14, 402 N.E.2d 536(1980),
syllabus (interpreting former Crim.R. 12(J)).
{¶10} Crim.R. 12(K) states in pertinent part:
When the state takes an appeal as provided by law from an order
suppressing or excluding evidence, the prosecuting attorney shall certify
that both of the following apply:
(1) The appeal is not taken for the purpose of delay;
Licking County, Case No. 18-CA-13 4
(2) The ruling on the motion or motions has rendered the state's proof
with respect to the pending charge so weak in its entirety that any
reasonable possibility of effective prosecution has been destroyed.
The appeal from an order suppressing or excluding evidence shall
not be allowed unless the notice of appeal and the certification by the
prosecuting attorney are filed with the clerk of the trial court within seven
days after the date of the entry of the judgment or order granting the motion.
***
{¶11} Our review of the record reveals a certifying statement timely filed by the
prosecutor as outlined in Crim.R. 12(K). We therefore have jurisdiction to proceed to the
merits of this appeal.
STANDARD OF APPELLATE REVIEW.
{¶12} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St. 3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;
State v. Fanning, 1 Ohio St. 3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing
court must defer to the trial court's factual findings if competent, credible evidence exists
to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio
App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App. 3d 142,
675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as
true, it must independently determine as a matter of law whether the trial court met the
Licking County, Case No. 18-CA-13 5
applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534
U.S. 266, 122 S. Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,
116 S. Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial
court's findings of fact is subject to a de novo standard of review Ornelas, supra.
Moreover, due weight should be given “to inferences drawn from those facts by resident
judges and local law enforcement officers.” Ornelas, supra at 698, 116 S. Ct. at 1663.
ISSUE FOR APPEAL.
A. Whether the Troopers had probable cause to conduct a traffic stop of Woods’
vehicle.
{¶13} The Fourth Amendment to the United States Constitution guarantees “[t]he
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures * * *.” The Fourth Amendment is enforced against
the States by virtue of the due process clause of the Fourteenth Amendment of the United
States Constitution. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L.Ed.2d
1081(1961). The stop of a vehicle and the detention of its occupants by law enforcement,
for whatever purpose and however brief the detention may be, constitutes a seizure for
Fourth Amendment purposes. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59
L.Ed.2d 660(1979), citing United States v. Martinez-Fuerte, 428 U.S. 543, 556-558, 96
S. Ct. 3074, 49 L.Ed.2d 1116(1976).
{¶14} The Supreme Court of Ohio has observed, “‘[a]uthorities seem to be split as
to whether a traffic stop is reasonable when supported merely by reasonable suspicion,
or whether the heightened standard of probable cause must underlie the stop.’” City of
Licking County, Case No. 18-CA-13 6
Bowling Green v. Godwin, 110 Ohio St. 3d 58, 850 N.E.2d 698, 2006–Ohio–3563, ¶ 13,
quoting Gaddis ex rel. Gaddis v. Redford Twp. (E.D.Mich.2002), 188 F. Supp. 2d 762, 767
There are actually two types of “traffic” stops, and each has a different constitutional
standard applicable to it. In State v. Moller, the Court of Appeals observed,
First is the typical non-investigatory traffic stop, wherein the police
officer witnesses a violation of the traffic code, such as crossing over the
centerline of a road, and then stops the motorist for this traffic violation.
Second is the investigative or “Terry “ stop, wherein the officer does not
necessarily witness a specific traffic violation, but the officer does have
sufficient reason to believe that a criminal act has taken place or is
occurring, and the officer seeks to confirm or refute this suspicion of criminal
activity. See Terry v. Ohio (1968), 392 U .S. 1, 21, 88 S. Ct. 1868, 1879-
1880. A non-investigatory traffic stop must be supported by probable
cause, which arises when the stopping officer witnesses the traffic violation.
See Whren v. United States (1996), 517 U.S. 806, 810, 116 S. Ct. 1769,
1772; Pennsylvania v. Mimms (1977), 434 U.S. 106, 109, 98 S. Ct. 330, 332.
By contrast, an investigatory Terry stop is proper so long as the stopping
officer has “reasonable articulable suspicion” of criminal activity. Terry, 392
U.S. at 21, 88 S.Ct. at 1879-1880.
12th Dist. Butler No. CA99-07-128, 2000 WL 1577287(Oct. 23, 2000); Accord, State v.
Baughman, 192 Ohio App. 3d 45, 2011-Ohio-162, 947 N.E.2d 1273 (12th Dist.), ¶14;
State v. Nwachukwa, 3rd Dist. Marion No. 9-15-03, 2015-Ohio-3282, ¶24; ¶26.
Licking County, Case No. 18-CA-13 7
{¶15} The cause for a non-investigatory traffic stop has been succinctly stated by
the Supreme Court of Ohio: “Where a police officer stops a vehicle based upon probable
cause that a traffic violation has occurred or was occurring, the stop is not unreasonable
under the Fourth Amendment to the United States Constitution[.]” Dayton v. Erickson, 76
Ohio St. 3d 3, 11-21, 1996-Ohio-431, 665 N.E.2d 1091. Probable cause is defined in
terms of “facts or circumstances ‘sufficient to warrant a prudent man in believing that the
(suspect) had committed or was committing an offense.’” Gerstein v. Pugh, 420 U .S.
103, 111, 95 S. Ct. 854, 861(1975), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223,
225(1964).
{¶16} In the case at bar, Trooper Untied testified that he observed Woods violate
R.C. 4511.34, Space between moving vehicles,
The operator of a motor vehicle, streetcar, or trackless trolley shall
not follow another vehicle, streetcar, or trackless trolley more closely than
is reasonable and prudent, having due regard for the speed of such vehicle,
streetcar, or trackless trolley, and the traffic upon and the condition of the
highway.
The driver of any truck, or motor vehicle drawing another vehicle,
when traveling upon a roadway outside a business or residence district shall
maintain a sufficient space, whenever conditions permit, between such
vehicle and another vehicle ahead so an overtaking motor vehicle may enter
and occupy such space without danger. This paragraph does not prevent
overtaking and passing nor does it apply to any lane specially designated
for use by trucks.
Licking County, Case No. 18-CA-13 8
Outside a municipal corporation, the driver of any truck, or motor
vehicle when drawing another vehicle, while ascending to the crest of a
grade beyond which the driver’s view of a roadway is obstructed, shall not
follow within three hundred feet of another truck, or motor vehicle drawing
another vehicle. This paragraph shall not apply to any lane specially
designated for use by trucks.
Motor vehicles being driven upon any roadway outside of a business
or residence district in a caravan or motorcade, shall maintain a sufficient
space between such vehicles so an overtaking vehicle may enter and
occupy such space without danger. This paragraph shall not apply to
funeral processions.
{¶17} In the case at bar, the trial court's ruling granted the motion to suppress
on the basis that the stop of the Appellee's vehicle was unconstitutional. The trial court
noted,
The video shows moderately heavy traffic traveling on a major
interstate highway at reasonable speeds for the conditions and under the
posted limits. It shows that the cruiser maintained its position in the left
lane several car lengths behind the Defendants’ vehicle, which was in the
right lane, essentially in the driver's blind spot. It depicts that, over the
course of several miles, the vehicles in the left lane in front of the cruiser
start merging into the right hand causing the vehicles in that lane to lightly
brake in order to maintain appropriate spacing.
Licking County, Case No. 18-CA-13 9
Why would the left lane drivers be merging right? Simple. There's
a cop car behind them, in the left lane. Most reasonable drivers merge
right when a vehicle behind them appears to want to go faster, especially
when it's the police. In fact, given the circumstances, it was required under
R.C. 4511.25(B)(1). But regardless of the reason, it caused right lane
traffic to become more congested. As a result, vehicles braked to slow
down and accommodate. That's what the defendant did in this case. He
did not violate R.C. 4511.34, by "following too closely."
***
Based on the evidence presented, and for the reasons set forth above,
the Court finds that there was not probable cause to believe that a traffic
violation had been committed. The Court reaches this conclusion based
primarily on the video taken from the cruiser. The Court finds that the video
was more reliable and more accurate than the other evidence offered. And
at times, the video simply contradicted the trooper's version of what
occurred.
For example, Trooper Untied testified it took the driver a long time to
come to a stop after he initiated his lights. The video contradicts this claim.
Once the driver was ordered to pull over, he did so in a reasonable and
timely manner.
He also claimed that the vehicle very dusty and that there were
fingerprints on the lift gate, which he took as a sign that the vehicle must
have been a long term rental and therefore used in the drug trade. The video
Licking County, Case No. 18-CA-13 10
showed otherwise. In fact, the vehicle in the video appeared as clean any
other vehicle on the highway that day. After all, it was an early November
evening in Ohio. Who knows what the weather conditions had been like
the week, days, or even hours before the stop. It’s Ohio. The point is weather
can change quickly here. If that's the threshold by which traffic stops are
made, then we're all in jeopardy. And if it was dirty, so what? Having a
dusty vehicle with fingerprints on the hatch back or tailgate, is not evidence
of a traffic violation or reason to believe a crime is being committed.
Another claim worthy of mention is Trooper Wilson's testimony that
what drew his attention to this vehicle was that he noticed the vehicle
appeared to be "driverless" when it passed them at the 113 mile post. He
stated that there were no visible occupants in the vehicle and speculated
that the driver and any passengers must have pushed their seats back in
order to avoid detection. Keep in mind that according the government's
version of events, this vehicle passed their stationary location at 60-70
miles per hour in the blink of an eye. Trooper Untied testified that he did
not even notice the vehicle as it passed. And the fact that Trooper Wilson
claims that his inability to see a person behind the wheel - in that split
second - and therefore, something nefarious must be going on does not
bolster his credibility, it subverts it. If there were credible evidence to
support a claim that a driver or occupant laid his or her seat back in order
to avoid detection, one might expect other evidence might be offered to
support the observation. But none was. There were no photographs of
Licking County, Case No. 18-CA-13 11
the interior compartment of the vehicle, there were no comments or
questions heard on the recording about not having seen the occupants
when they passed by. Nor was there any testimony about furtive
movements taking place inside the vehicle before the stop was made.
Decision and Entry Granting Defendant’s Motion to Suppress, Feb. 16, 2018 at 3; 5-6.
{¶18} In State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
the Ohio Supreme Court examined the denial of a motion to suppress in a prosecution
for driving under the influence in which the defendant alleged that the state had failed
to substantially comply with certain requirements of the Ohio Administrative Code in
conducting his blood-alcohol test. The Court stated,
Appellate review of a motion to suppress presents a mixed question
of law and fact. When considering a motion to suppress, the trial court
assumes the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses. State
v. Mills (1992), 62 Ohio St. 3d 357, 366, 582 N.E.2d 972. Consequently,
an appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Fanning (1982), 1
Ohio St. 3d 19, [20], 1 OBR 57, 437 N.E.2d 583. Accepting these facts as
true, the appellate court must then independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard. State v. McNamara (1997), 124 Ohio App. 3d
706, 707 N.E.2d 539.”
Burnside at ¶ 8. In the case at bar, in order to establish probable cause, the state had
Licking County, Case No. 18-CA-13 12
the burden to provide credible evidence that Woods followed another vehicle, streetcar,
or trackless trolley more closely than is reasonable and prudent, having due regard for
the speed of such vehicle, streetcar, or trackless trolley, and the traffic upon and the
condition of the highway. Here, the record contains competent, credible evidence that
supports the trial court’s conclusion that Woods did not. A review of the video evidence
and the testimony of the troopers does not establish that Woods followed another vehicle,
streetcar, or trackless trolley more closely than is reasonable and prudent, having due
regard for the speed of such vehicle, streetcar, or trackless trolley, and the traffic upon
and the condition of the highway. As the trial court noted the video shows moderately
heavy traffic traveling on a major interstate highway at reasonable speeds for the
conditions and under the posted limits. As the right-hand lane in which Woods was
traveling became more congested by vehicles merging into the lane from the left-hand
lane Woods braked to accommodate the slower traffic. It does not appear that any of
the vehicles were traveling six or more car lengths behind the vehicle that they were
following. Accordingly, competent, credible evidence was presented that Woods was
not following more closely than is reasonable and prudent, having due regard for the
speed of such vehicle, streetcar, or trackless trolley, and the traffic upon and the condition
of the highway.
{¶19} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St. 3d 67, 2011–
Ohio–6524, 960 N.E.2d 955, ¶ 118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S. Ct. 457, 86 L. Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.
Licking County, Case No. 18-CA-13 13
843, 74 L.Ed .2d 646 (1983). As an appellate court, we neither weigh the evidence nor
judge the credibility of witnesses. State v. Mills, 62 Ohio St. 3d 357, 582 N.E.2d
972(1992). Our role is to determine whether there is relevant, competent and credible
evidence, upon which the fact finder could base its judgment. Cross Truck Equipment
Co., Inc. v. Joseph A. Jeffries Co., 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,
1982). Reviewing courts should accord deference to the trial court’s decision because
the trial court has had the opportunity to observe the witnesses’ demeanor, gestures, and
voice inflections that cannot be conveyed to us through the written record, Miller v. Miller,
37 Ohio St. 3d 71(1988).
{¶20} In Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 81, 461 N.E.2d 1273
(1984), the Ohio Supreme Court explained: "[a] reviewing court should not reverse a
decision simply because it holds a different opinion concerning the credibility of the
witnesses and evidence submitted before the trial court. A finding of an error in law is a
legitimate ground for reversal, but a difference of opinion on credibility of witnesses and
evidence is not.” See, also State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212(1967),
syllabus 1.
{¶21} Accordingly, the trial court's determination that the troopers did not have
probable cause to stop Woods is supported by competent, credible evidence, and
therefore the trial court properly granted Woods’ motion to suppress.
Licking County, Case No. 18-CA-13 14
{¶22} The state’s sole assignment of error is overruled.
{¶23} The Judgment of the Licking County Court of Common Pleas is affirmed.
By Gwin, J.,
Wise, John, P.J., and
Wise, Earle, J., concur