State v. Bashada

[Cite as State v. Bashada, 2017-Ohio-8501.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellant : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
STEPHEN M. BASHADA : Case No. CT2017-0039
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2017-0078
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 8, 2017
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
D. MICHAEL HADDOX C. JOSEPH MCCOY
Prosecuting Attorney CARL E. MCCOY
57 East Main Street
By: GERALD V. ANDERSON II Newark, Ohio 43055
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0039 2
Baldwin, J.
{¶1} Plaintiff-appellant State of Ohio appeals from the Journal Entry of the
Muskingum County Court of Common Pleas granting defendant-appellee Stephen
Bashada’s Motion to Suppress.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 22, 2017, the Muskingum County Grand Jury indicted appellee
on one count of possession of drugs (Oxycodone) in violation of R.C. 2925.11(A), a felony
of the fifth degree, one count of possession of drugs (hashish) in violation of R.C.
2925.11(A), a minor misdemeanor, and one count of possession of drugs (marijuana) in
violation of R.C. 2925.11(A), a minor misdemeanor. At his arraignment on March 29,
2017, appellee entered a plea of not guilty to the charges.
{¶3} Thereafter, on June 1, 2017, appellee filed a Motion to Suppress. Appellee,
in his motion, argued, in part, that the trooper who stopped his vehicle did not have
reasonable articulable suspicion that appellee was engaged in criminal activity when
conducting the stop and that all evidence seized as a result of the stop should be
suppressed. A hearing on the Motion to Suppress was held on June 20, 2017. The
following testimony was adduced at the hearing.
{¶4} Ohio State Highway Patrol Trooper Samuel K. Hendricks testified that on
June 5, 2016, he was sitting on Interstate 70 when he observed appellee, who he
estimated as approximately 30 years old, slow down just prior to the 55 mile per hour
zone. The Trooper testified that as he started catching up with appellee, appellee got off
on the Fifth Street ramp. When he ran a registration check on appellee’s vehicle, Trooper
Muskingum County, Case No. CT2017-0039 3
Hendricks received information that the vehicle was a black 2015 Honda hatchback
owned by a 57 year old female from Loveland, Ohio. According to the Trooper, the vehicle
that he observed was dark gray. He was unsure of the year of the vehicle.
{¶5} Because he was concerned that the vehicle might have been stolen based
on the issue with registration, Trooper Hendricks initiated a traffic stop. He testified that
he immediately observed criminal behavior. Trooper Hendricks testified that appellee only
rolled down the window a couple of inches and that appellee was very nervous and had
trouble getting his driver’s license out because his hands were trembling. Trooper
Hendricks further testified that while he was waiting for appellee to produce insurance, he
observed marijuana debris loose around the gear shift area. He then had appellee exit
the vehicle and sit in his cruiser. Appellee, according to the Trooper Hendricks, told him
that he had marijuana in the center console of the vehicle. After the Zanesville Police
arrived, Trooper Hendricks searched appellee’s vehicle and found a small amount of
marijuana, a marijuana vaporizer, and some hash butter. In the luggage on the backseat,
he found an orange pill bottle containing three dosage units of oxycodone hydrochloride.
Trooper Hendricks, when asked, testified that he did not believe that appellee had a
prescription for them.
{¶6} On cross-examination, Trooper Hendricks testified that at the time he ran
the registration check on the vehicle, he had not observed any traffic violations. He
testified that he decided to run the vehicle’s license plates because it appeared that
appellee tried to avoid him by abruptly exiting the highway and that appellee was
excessively nervous after the vehicle was stopped. Trooper Hendricks also testified that
he decided to stop the vehicle because appellee slowed down when he saw the Trooper
Muskingum County, Case No. CT2017-0039 4
and exited the highway, because the color of the vehicle did not match the registration,
and because the out of county vehicle was registered to a 57 year old woman. Trooper
Hendricks indicated that he was concerned that the vehicle had been stolen and the
plates on the vehicle had been changed.
{¶7} The following testimony was adduced when Trooper Hendricks was asked
by the trial court whether the year and make listed on the vehicle registration matched the
vehicle that appellee was driving:
{¶8} THE WITNESS: That - - on the registration, yeah. I confirmed with the VIN,
sir, yes. The vehicle had belonged to his [appellee’s] mother.
{¶9} THE COURT: And it was the - - it was the same year and the same model,
correct, that came up on your - - when you ran your registration in your vehicle - -
{¶10} THE WITNESS: Yes.
{¶11} THE COURT: - - before you stopped him?
{¶12} THE WITNESS: Yes. I’m not sure as far as the year until I check with the
VIN after I made the stop. I checked the VIN, the vehicle identification number, on the -
- the car with the vehicle identification number that the BMV had listed.
{¶13} THE COURT: When you saw that vehicle, you had no reason to believe it
was not the one that came up on the registration.
{¶14} THE WITNESS: Yes, I did, just because the color didn’t match?
{¶15} THE COURT: So it went from a dark gray to black?
{¶16} THE WITNESS: Right. It was a dark gray vehicle, like - - maybe like a
charcoal - - not even really a charcoal. But like probably the - - the prosecutor’s coat to,
Muskingum County, Case No. CT2017-0039 5
I mean, black. It was definitely you could tell the difference, a black and gray. It was not
- - like I said, it wasn’t like a teal color car is listed as green so - -
{¶17} Transcript at 36-37.
{¶18} At the conclusion of the hearing, the trial court granted appellee’s Motion to
Suppress, finding that there was no reasonable articulable suspicion to stop appellee’s
vehicle. The trial court’s decision was memorialized in a Journal Entry filed on June 20,
2017.
{¶19} Appellant then filed a Motion for Leave to Appeal Pursuant to App.R. 5 (C).
This Court, as memorialized in a Judgment Entry filed on July 10, 2017, sustained such
motion.
{¶20} Appellant now raises the following assignment of error on appeal:
{¶21} THE TRIAL COURT ERRED WHEN IT FOUND THAT THE TROOPER DID
NOT HAVE REASONABLE SUSPICION TO STOP THE DEFENDANT’S VEHICLE
BASED ON IMPROPER REGISTRATION.
I
{¶22} Appellant, in its sole assignment of error, argues that the trial court erred in
granting appellee’s Motion to Suppress. We disagree.
{¶23} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App. 3d 486, 597 N.E.2d
1141(4th Dist.1991); State v. Guysinger, 86 Ohio App. 3d 592, 621 N.E.2d 726(4th
Muskingum County, Case No. CT2017-0039 6
Dist.1993). Second, an appellant may argue the trial court failed to apply the appropriate
test or correct law to the findings of fact. In that case, an appellate court can reverse the
trial court for committing an error of law. State v. Williams, 86 Ohio App. 3d 37, 619 N.E.2d
1141 (4th Dist. 1993). Finally, assuming the trial court's findings of fact are not against
the manifest weight of the evidence and it has properly identified the law to be applied,
an appellant may argue the trial court has incorrectly decided the ultimate or final issue
raised in the motion to suppress. When reviewing this type of claim, an appellate court
must independently determine, without deference to the trial court's conclusion, whether
the facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio
App.3d 93, 641 N.E.2d 1172 (8th Dist.1994); State v. Claytor, 85 Ohio App. 3d 623, 620
N.E.2d 906 (4th Dist.1993); Guysinger, supra. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996), “[A]s a
general matter determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal.”
{¶24} At issue in the case sub judice is whether or not the stop of appellee’s
vehicle by Trooper Hendricks was legal. Before a law enforcement officer may stop a
vehicle, the officer must have a reasonable suspicion, based upon specific and articulable
facts that an occupant is or has been engaged in criminal activity. Terry v. Ohio, 392 U.S.
1, 22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Reasonable suspicion constitutes something
less than probable cause. State v. Carlson, 102 Ohio App. 3d 585, 590, 657 N.E.2d 591
(9th Dist.1995). The propriety of an investigative stop must be viewed in light of the totality
of the circumstances. State v. Bobo, 37 Ohio St. 3d 177, 524 N.E.2d 489 (1988),
paragraph one of the syllabus. In a situation where the officer has observed a traffic
Muskingum County, Case No. CT2017-0039 7
violation, the stop is constitutionally valid. Dayton v. Erickson, 76 Ohio St. 3d 3, 9, 1996–
Ohio–431, 665 N.E.2d 1091. In sum, “ ‘ * * * if an officer's decision to stop a motorist for
a criminal violation, including a traffic violation, is prompted by a reasonable and
articulable suspicion considering all the circumstances, then the stop is constitutionally
valid.’ “ State v. Adams, 5th Dist. Licking No. 15 CA 6, 2015–Ohio–3786, ¶ 23, quoting
State v. Mays, 119 Ohio St. 3d 406, 2008–Ohio–4539, 894 N.E.2d 1204, ¶ 8.
{¶25} In the case sub judice, Trooper Hendricks testified that he did not observe
appellee commit any traffic violations and that one of the reasons that he stopped
appellee was because the vehicle was dark gray while the registration indicated that it
was black.
{¶26} This Court recently addressed the issue of discrepancy in paint color in
State v. Unger, 5th Dist Stark. No. 2016 CA 00148, 2017-Ohio-5553. In Unger, the
appellant filed a Motion to Suppress, arguing, in part, that the arresting officer did not
have reasonable articulable suspicion to stop his vehicle. After the trial court denied his
motion, the appellant appealed. This Court, in our decision reversing the decision of the
trial court, noted that at the hearing on the motion, the Sergeant who stopped the
appellant indicated that he made the decision to run the appellant's vehicle's license plate
through I–Links because he found it suspicious that a vehicle would drive slowly by him
three times while he was in the midst of another traffic stop. We further noted that on
cross-examination, the Sergeant indicated that he had maintained his suspicion “based
on the [vehicle's] color alone” being different than what the records system showed.
{¶27} In holding that the trial court had erred in denying the Motion to Suppress,
this Court, in Unger, held, in relevant part, as follows at paragraphs 19-20:
Muskingum County, Case No. CT2017-0039 8
We herein must again “recognize that these cases often present
close calls, both for the courts and the law enforcement officers on the
scene.” State v. Hall, 5th Dist. Stark No. 2015 CA 00213, 2016–Ohio–5787,
70 N.E.3d 1154, ¶ 26. The briefs before us in the case sub judice provide
no case law directly on point, and our research reveals somewhat limited
discussion in Ohio of the role of a vehicle's paint scheme per se as it relates
to a law enforcement officer's suspicion of criminal activity in connection
with a traffic stop. One Ohio case references the existence of an “after-
market” paint job on a late-model car, but the vehicle paint factor in that
instance was accompanied by several other observations articulated by the
arresting officer. See State v. Wynter, 2nd Dist. Miami No. 97 CA 36, 1998
WL 127092. However, the Supreme Court of Arkansas and the Supreme
Court of Florida have both recently held that a discrepancy between the
color of a defendant's vehicle and the color listed in registration records
accessed by a police officer does not of itself provide the officer with
reasonable suspicion to perform an investigatory traffic stop. See Schneider
v. State, 2015 Ark. 152, 459 S.W.3d 296 (2015); State v. Teamer, 151 So. 3d
421 (Fla. 2014).
Upon review of the record and the circumstances presented herein,
we find a discrepancy in an automobile's paint color found via a database
check, particularly where the vehicle is already ten years old, even when
combined with the fact of the vehicle passing a stationary police officer three
times over the course of a few minutes, cannot be classified as a reasonable
Muskingum County, Case No. CT2017-0039 9
suspicion of motor vehicle theft sufficient to justify a warrantless stop, as
maintained by the arresting officer in this case. We therefore hold the trial
court erred in denying the motion to suppress in this regard.
{¶28} We find, based on the holding in Unger, that the discrepancy in the paint
color of the vehicle that appellee was driving did not give Trooper Hendricks reasonable
articulable suspicion that appellant was engaged in criminal activity. The statutes that
appellant cites, namely. R.C. 4503.21 and 4549.08, do not contain any requirement
related to the registered color of a vehicle. Moreover, as noted by the trial court, “there’s
not reasonable suspicion based on [appellee] slowing down, he might have been
speeding, exiting when it’s a legal, proper exit.” Transcript at 42. As is noted above,
Trooper Hendricks testified that he did not observe appellee commit any traffic violations.
{¶29} Based on the foregoing, we find that the trial court did not err in granting
appellee’s Motion to Suppress.
{¶30} Accordingly, the judgment of the Muskingum County Court of Common
Pleas is affirmed.
By: Baldwin, J.
Gwin, P.J. and
John Wise, J. concur.