State v. Spellacy

[Cite as State v. Spellacy, 2019-Ohio-785.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106909
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
THOMAS K. SPELLACY
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-623580-A
BEFORE: Keough, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: March 7, 2019
ATTORNEYS FOR APPELLANT
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
Andrew T. Gatti
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
John L. Reulbach
14701 Detroit Avenue, Suite 575
Lakewood, Ohio 44107
KATHLEEN ANN KEOUGH, J.:
{¶1} Appellant, the state of Ohio, appeals the trial court’s decision granting
defendant-appellee, Thomas K. Spellacy’s, motion to suppress. For the reasons that follow, we
reverse and remand for further proceedings.
{¶2} In November 2017, Olmsted Falls Police Officer Dennis McDonald initiated a
traffic stop of a vehicle driven by Spellacy after Spellacy twice flashed his high-beam headlights
while stopped at a traffic light. As a result of the stop, Spellacy was named in a one-count
indictment charging him with operating a vehicle while under the influence (“OVI”), in violation
of R.C. 4511.19(A)(1)(a). The charge was elevated to a third-degree felony because of a prior
conviction for OVI, in violation of R.C. 4511.19(A)(1), on August 1, 2012. Spellacy was also
cited for failure to dim headlights in violation of R.C. 4513.15(A)(1).
{¶3} Spellacy filed a motion to suppress, contending that the police officer did not have
reasonable suspicion that a traffic offense occurred, to warrant the traffic stop. According to
Spellacy, the two momentary flickers of his high-beam headlights while stopped at a traffic light
did not violate the plain language of R.C. 4513.15(A)(1).
{¶4} Officer McDonald was the sole witness at the suppression hearing but the facts are
not in dispute. On November 23, 2017, at approximately 7:51 p.m., Officer McDonald was
seated in his parked police cruiser at a Sunoco gas station parking lot at the intersection of
Columbia and Cook Roads. Officer McDonald testified that he was observing northbound and
southbound traffic on Columbia Road and traffic entering the intersection from Cook Road.
{¶5} While observing traffic, Officer McDonald noticed four or five cars traveling
southbound on Columbia Road stop at the red light at the intersection. He also observed traffic
approaching northbound on Columbia Road stop at the traffic light. One of the northbound
vehicles pulled into the left turn lane, while a second northbound vehicle pulled into the
northbound curb lane. A few seconds after traffic had stopped in the southbound lane, Officer
McDonald observed the second vehicle back activate its high-beam lights momentarily and then
dim them. The traffic light changed, and traffic from Cook Road began to move through the
intersection. The same vehicle once again activated its high-beam lights and turned them off.
The time frame between the two flashes of high-beam lights was approximately 14 seconds.
The driver of the vehicle in question was later identified as Spellacy.
{¶6} Thereafter, the light for the north and southbound traffic changed to green and traffic
proceeded through the intersection. Spellacy turned right onto Cook Road, heading westbound.
At this time, Officer McDonald activated his overhead lights in order to initiate a traffic stop.
The officer’s dash-cam video corroborated his testimony.
{¶7} Officer McDonald testified that he initiated the traffic stop “[t]o determine why the
driver was flashing his lights at not only the vehicle in front of him, but into oncoming traffic.”
(Tr. 29.) He stated that he believed Spellacy had violated the headlight statute, which he
understood as precluding drivers from “driving with [their] brights on.” (Tr. 30.) Officer
McDonald testified that when he initiated the traffic stop he only intended to give the driver a
warning not to flash his bright lights while in traffic “because it was harming the traffic in front
of him, also the traffic that was approaching him, his location.” (Tr. 29-30.)
{¶8} However, when Officer McDonald approached the driver of the vehicle, he smelled
a strong odor of alcohol and the driver had glassy eyes. After Spellacy refused to submit to any
alcohol-detection tests, he was arrested and cited for OVI, in violation of R.C. 4511.19, and the
traffic infraction of failure to dim headlights, in violation of R.C. 4513.15.
{¶9} On cross-examination, Officer McDonald admitted that Spellacy’s vehicle was not
in motion when he activated his high-beam lights, and that the vehicles facing toward Spellacy’s
vehicle were also stationary when he flashed his high-beam headlights. He further admitted that
the flicker of the high beams lasted only for a second each time.
{¶10} In granting Spellacy’s motion to suppress, the trial court specifically found that
Spellacy was stopped at the traffic light when he flashed his high beams; thus he was “not
approaching” oncoming traffic. Additionally, the trial court found that Spellacy did not continue
to use his high beams upon proceeding through the intersection. Accordingly, the trial court, in
its written opinion that was read in open court, found that “the facts relied upon by the officer
were insufficient to establish a reasonable suspicion that a violation of the [law] occurred.” (Tr.
73.)
{¶11} The state appealed pursuant to App.R. 12(K), raising as its sole assignment of error
that the trial court erred in granting Spellacy’s motion to suppress.
{¶12} Appellate review of a trial court’s ruling on a motion to suppress evidence presents
a mixed question of law and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. During a hearing on a motion to suppress evidence, the trial judge acts as the
trier of fact and, as such, is in the best position to resolve factual questions and assess the
credibility of witnesses. State v. Mills, 62 Ohio St. 3d 357, 366, 582 N.E.2d 972 (1992). An
appellate court reviewing a motion to suppress is bound to accept the trial court’s findings of fact
where they are supported by competent, credible evidence. State v. Guysinger, 86 Ohio App. 3d
592, 594, 621 N.E.2d 726 (4th Dist.1993). Accepting these facts as true, the appellate court
independently reviews the trial court’s legal determinations de novo. State v. Djisheff, 11th Dist.
Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶ 19.
{¶13} It is well established that an officer may stop a motorist upon his or her observation
that the vehicle in question violated a traffic law. Dayton v. Erickson, 76 Ohio St. 3d 3, 11-12,
665 N.E.2d 1091 (1996). “[E]ven a de minimis traffic violation provides probable cause for a
traffic stop.” Id. at 9. “‘Trial courts determine whether any violation occurred, not the extent
of the violation.’” Cleveland v. Martin, 2018-Ohio-740, 107 N.E.3d 809 (8th Dist.), quoting
State v. Hodge, 147 Ohio App. 3d 550, 2002-Ohio-3053, 771 N.E.2d 331, ¶ 27 (7th Dist.).
Moreover, an officer is not required to prove the suspect committed an offense beyond a
reasonable doubt or even satisfy the lesser standard of probable cause to believe that the
defendant violated the law. Westlake v. Kaplysh, 118 Ohio App. 3d 18, 20, 691 N.E.2d 1074
(8th Dist.1997).
{¶14} To conduct a constitutionally valid investigatory stop, a police officer must be able
to point to specific and articulable facts that, taken together with rational inferences derived from
those facts, give rise to a reasonable suspicion that the individual has committed, is committing,
or is about to commit a crime. State v. Williams, 51 Ohio St. 3d 58, 60, 554 N.E.2d 108 (1990).
The propriety of an investigative stop by a police officer must be viewed in light of the totality of
the circumstances. State v. Freeman, 64 Ohio St. 2d 291, 414 N.E.2d 1044 (1980), paragraph
one of the syllabus.
{¶15} In this case, Officer McDonald initiated a traffic stop and issued a citation for
violating R.C. 4513.15, which provides in relevant part:
(A) Whenever a motor vehicle is being operated on a roadway or shoulder
adjacent thereto during the times specified in section 4513.03 of the Revised
Code, the driver shall use a distribution of light, or composite beam, directed high
enough and of sufficient intensity to reveal persons, vehicles, and substantial
objects at a safe distance in advance of the vehicle, subject to the following
requirements;
(1) Whenever the driver of a vehicle approaches an oncoming vehicle, such driver
shall use a distribution of light, or composite beam, so aimed that the glaring rays
are not projected into the eyes of the oncoming driver.
{¶16} On appeal, the state argues that the trial court erred in granting the motion to
suppress because Officer McDonald had a reasonable and articulable suspicion that Spellacy
violated a traffic offense to warrant the traffic stop. Specifically, the state contends that under
the totality of the circumstances, Spellacy’s two separate acts of briefly activating his high-beam
lights were sufficient to justify the traffic stop. Alternatively, the state contends that even if
Spellacy did not violate R.C. 4513.15, Officer McDonald had an objectively reasonable belief,
although mistaken, that a traffic violation occurred, thus constituting reasonable suspicion to
justify a traffic stop. Moreover, the state claims that even if the stop was not justified, the trial
court failed to consider the good-faith exception to the exclusionary rule.
{¶17} Spellacy contends that no traffic violation occurred because (1) his vehicle was
stationary; (2) there were no oncoming vehicles; and (3) no testimony was presented that the
headlights glared into the eyes of an oncoming driver. In support, Spellacy cites to State v.
Woods, 86 Ohio App. 3d 423, 621 N.E.2d 523 (4th Dist.1993), and Kaplysh, 118 Ohio App. 3d at
20, 691 N.E.2d 1074, for the proposition that a momentary flicker of high-beam headlights does
not constitute a violation of R.C. 4513.15, and thus is insufficient to constitute reasonable
suspicion to justify a traffic stop. Accordingly, Spellacy maintains that the officer could not
have had a reasonable or articulable suspicion that he violated a traffic offense and therefore, the
trial court was correct in suppressing the traffic stop. Furthermore, Spellacy maintains that any
purported mistake of law was not objectively reasonable because R.C. 4513.15 is clear,
unambiguous, and has been scrutinized under appellate review.
{¶18} In Woods, the Fourth District held that the officers lacked a legal justification for a
traffic stop when Woods was operating her vehicle with its high beams on while rounding a
curve, but immediately activated her low beams when the oncoming vehicle came in view. The
court determined that Woods’s high beams, as with any driver’s, would be activated for a
moment when the approaching car came into view before she could activate her low beams. The
court determined that the “momentary flick onto high beam followed immediately by a return to
low beam cannot be elevated to a violation of R.C. 4513.15.” Id. at 426. The court stated that
suppression of the stop should have been granted because Woods’s conduct did not violate the
law — “nothing to show there was conduct that the statute was designed to prevent, i.e., glaring
rays projected into the eyes of an oncoming driver.” Id. at 425.
 {¶19} In Kaplysh, this court distinguished Woods by concluding that the officer observed
the defendant use his high beams continuously, for at least a minute, unlike in Woods, which
involved only a momentary flicker of high beams. In Kaplysh, evidence showed that the officer,
who was seated in his stopped vehicle, observed a vehicle with its high beams on driven by
Kaplysh approaching an intersection. The vehicle stopped behind another vehicle, and when the
traffic light changed from red to green, Kaplysh proceeded through the intersection and switched
to low beam headlights. The officer testified that he observed the bright lights on Kaplysh’s
vehicle for at least a minute and had to squint because of the intensity of the lights. The officer
concluded that Kaplysh violated the Westlake ordinance requiring drivers to dim their headlights
when they approached oncoming vehicles. The officer conducted a traffic stop, discovered
Kaplysh to be under the influence of alcohol, and arrested him. Kaplysh filed a motion to
suppress, contending that the officer did not have sufficient grounds to justify the warrantless
stop. The trial court agreed.
{¶20} In a split decision, this court concluded that “a driver violates the ordinance by
continuing to use the high-beam headlights of his vehicle ‘upon approaching’ such traffic. The
ordinance requires the driver to shift to the low beam lights at the latest when the glaring rays
project into the eyes of an oncoming driver.” Id. at 20.
{¶21} However, this court specifically rejected the argument that the officer’s stationary
car was not “oncoming,” finding that “[t]his argument ignores the fact that [the officer], as well
as the vehicle in front of his, was moving immediately prior to stopping at the traffic light as
defendant approached from the opposite direction.” Id. at 21. This court found that “the
evidence was sufficient to establish, at a minimum, a reasonable suspicion that the defendant
drove with his high beams illuminated in violation of the ordinance.”
The purpose of the ordinance is to promote safety by preventing any unnecessary
visual impairment resulting from the glare of high beams — an impairment that
could affect a driver whether he be moving at a high speed on a country road or
about to stop or start up at an intersection, where pedestrians are likely to cross.
The trial court was mistaken when it interpreted the ordinance as not requiring
lights to be dimmed until a car passes an oncoming vehicle. As Woods correctly
saw, that glare occurs much earlier and so does the obligation to lower one’s
beams.
Id. at 21.
{¶22} In further addressing the notion of an “oncoming driver,” the First District held that
the use of high-beams, although continuously, did not violate R.C. 4513.15 because the
offending vehicle was not “approaching an oncoming vehicle.” State v. Howell, 1st Dist.
Hamilton No. C-170158, 2018-Ohio-591. The Howell defendant was stopped because she was
driving with her high beams activated while following a state trooper. Upon conducting the
stop, the officer discovered that she was under the influence of alcohol. The First District
concluded that the officer did not have reasonable suspicion to justify the stop because the
vehicle using the high beams must be approaching an oncoming vehicle, not following behind
the vehicle while using the high beams. The court also summarily rejected the argument that the
officer’s mistake of law was reasonable because the court stated that the headlight law was
unambiguous and thus, there could be no mistake of law.
{¶23} Despite the First District’s finding that the headlight statute is clear and
unambiguous, the Second District in State v. Fickert, 2d Dist. Clark No. 2018-CA-15,
2018-Ohio-4349, addressed the same headlight statute and found that the officer’s mistake of law
was reasonable. In Fickert, the officer initiated a traffic stop after Fickert flashed her “brights”
at him shortly before passing him while traveling in the opposite direction. The traffic stop
resulted in Fickert’s arrest for OVI. The trial court granted Fickert’s motion to suppress, finding
that the flicker of high beams lasted approximately a second and did not appear to create any
visual impairment contemplated by the statute, thus making the stop unreasonable. On appeal,
the court discussed prior case law concerning the use of high beams, finding that most of the
cases involved drivers traveling with high beams activated who failed to dim them for oncoming
traffic. However, the court also recognized the holding in Woods that a momentary flicker of
high beams followed immediately by a return to low beam cannot be elevated into a violation of
R.C. 4513.15 to justify reasonable suspicion. Id. at ¶ 16, 23.
{¶24} The Second District concluded that it did not need to reconcile the competing case
law or determine whether Fickert actually violated R.C. 4513.15, recognizing that even if
Fickert’s conduct in momentarily flashing her high beams into oncoming traffic was in violation
of the law, the United States Supreme Court’s decision in Heien v. North Carolina, 574 U.S. __,
135 S. Ct. 530, 190 L. Ed. 2d 475 (2014), allows for reasonable mistakes of law. “‘A police
officer’s objectively reasonable belief that a traffic violation has occurred, including reasonable
mistakes of law, can constitute reasonable suspicion to justify a traffic stop.’” Fickert at ¶ 20,
quoting State v. Kirkpatrick, 2017-Ohio-7629, 97 N.E.3d 871, ¶ 6 (1st Dist.), citing Heien at 536.
Accordingly, upon reviewing the language of R.C. 4513.15(A)(1) and considering the totality of
the circumstances, the Second District held that the motion to suppress should have been denied
because the officer’s objectively reasonable belief that a violation occurred, even if mistaken,
could still constitute reasonable suspicion to justify the stop. Fickert at ¶ 22-23.
{¶25} In Heien, the United States Supreme Court reviewed the propriety of a traffic stop
where the officer stopped a vehicle because one of the vehicle’s two brake lights was not
working. The officer believed that the law in North Carolina required both brake lights to be
operable. This belief turned out to be a mistake of law by the officer, because a single working
brake light was all that the law required. After reviewing the language of the relevant statute,
the court determined that the officer’s mistake about the brake-light law was objectively
reasonable based on the circumstances. Id. at 540. As a result, the court found the officer had
reasonable suspicion to justify the traffic stop. Id.
{¶26} The United States Supreme Court stated:
We have repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment
is ‘reasonableness.’” Riley v. California, 573 U.S. [373], [381], 134 S. Ct. 2473,
189 L. Ed. 2d 430 (2014) (some internal quotation marks omitted). To be
reasonable is not to be perfect, and so the Fourth Amendment allows for some
mistakes on the part of government officials, giving them “fair leeway for
enforcing the law in the community’s protection.” Brinegar v. United States, 338
U.S. 160, 176, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). We have recognized that
searches and seizures based on mistakes of fact can be reasonable. The
warrantless search of a home, for instance, is reasonable if undertaken with the
consent of a resident, and remains lawful when officers obtain the consent of
someone who reasonably appears to be but is not in fact a resident. See Illinois v.
Rodriguez, 497 U.S. 177, 183-186, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). By
the same token, if officers with probable cause to arrest a suspect mistakenly
arrest an individual matching the suspect’s description, neither the seizure nor an
accompanying search of the arrestee would be unlawful. See Hill v. California,
401 U.S. 797, 802-805, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971). The limit is that
“the mistakes must be those of reasonable men.” Brinegar, supra, at 176, 69
S. Ct. 1302.
But reasonable men make mistakes of law, too, and such mistakes are no less
compatible with the concept of reasonable suspicion. Reasonable suspicion
arises from the combination of an officer’s understanding of the facts and his
understanding of the relevant law. The officer may be reasonably mistaken on
either ground. Whether the facts turn out to be not what was thought, or the law
turns out to be not what was thought, the result is the same: the facts are outside
the scope of the law. There is no reason, under the text of the Fourth
Amendment or our precedents, why this same result should be acceptable when
reached by way of a reasonable mistake of fact, but not when reached by way of a
similarly reasonable mistake of law.
Heien at 536.
{¶27} In this case, Spellacy readily admits in his appellate brief that “McDonald was
simply mistaken in his belief that two momentary flicks of one’s bright lights, particularly under
the facts described, was a violation of the law.” (Appellant’s brief at 6.) Nevertheless, Spellacy
contends that Officer McDonald’s mistake of law was not objectively reasonable under Heien
because, unlike the law at issue in Heien, the headlight law here is clear, unambiguous, and has
been interpreted by reviewing courts that momentary flickers of high-beam headlights followed
immediately by a return to low beam does not constitute a violation of R.C. 4513.15(A)(1).
{¶28} The case law in Ohio interpreting R.C. 4513.15(A)(1) and similarly worded
municipal ordinances, seems to hinge on specific facts — whether the vehicle using high beams
stationary or moving; whether the impeded vehicle stationary, approaching, or in front of the
vehicle using high beams; whether there was testimony of vision impairment. Even applying
these specific facts, however, there is no clear consensus on when a motorist violates R.C.
4513.15(A)(1) or what facts are sufficient to justify “reasonable suspicion.” See, e.g., State v.
Hinton, 2d Dist. Clark No. 2833, 1992 Ohio App. LEXIS 1202 (Mar. 16, 1992) (failure to dim to
oncoming traffic sufficient to justify stop); State v. Barnes, 2d Dist. Montgomery Nos. 15159 and
15160, 1996 Ohio App. LEXIS 1404 (Apr. 5, 1996) (continuous use of high beams despite no
oncoming traffic sufficient to justify stop); Kaplysh, 118 Ohio App. 3d 18, 691 N.E.2d 1074,
(observation of use of high beams even when oncoming traffic stationary sufficient to justify
stop); State v. Burghardt, 6th Dist. Erie No. E-98-060, 1999 Ohio App. LEXIS 3318 (July 16,
1999) (failure to dim even after police office signaled with own brights); State v. Mullins, 5th
Dist. Licking No. 2006-CA-00019, 2006-Ohio-4674 (failure to dim caused glare in oncoming
driver’s eyes sufficient to justify stop); State v. Gist, 2d Dist. Montgomery No. 22823,
2009-Ohio-4791 (failure to dim sufficient even where no evidence of glare complained of);
Howell, 1st Dist. Hamilton No. C-170158, 2018-Ohio-591 (failure to dim when following
vehicle insufficient to justify stop).
{¶29} Moreover, the cases interpreting R.C. 4513.15 or similar municipal ordinances
were either decided prior to Heien or did not consider or conduct an “objectively reasonable
mistake of law” analysis. Additionally, the clear and unambiguous wording of R.C. 4513.15
actually prohibits any use of high beam lights, even a momentary flicker, when approaching
oncoming traffic. See, e.g., State v. Westmiller, 2007 ND 52, 730 N.W.2d 134, ¶ 11
(interpreting similar North Dakota statute and holding that the statute does not make any
exceptions for the momentary flashing of high beams).
{¶30} We also find that the Heien “objectively reasonable” test has been applied by Ohio
courts that involve statutes or ordinances that had also previously been interpreted on appellate
review. See Kirkpatrick, 2017-Ohio-7629, 97 N.E.3d 871 (officer’s belief that a driver’s wide
left turn violated R.C. 4511.36 constituted reasonable mistake of law, even after the court
determined that the law was unambiguous; the stop did not warrant suppression); State v. Hill,
5th Dist. Stark Nos. 2015 CA 00078 and 2015 CA 00079, 2016-Ohio-1510 (officer’s
misinterpretation of a local stop-sign ordinance was objectively reasonable; similar stop sign law
interpreted as unambiguous).
{¶31} Accordingly, based on Heien, we agree with the state’s position that even if
Spellacy’s two momentary flickers of his high-beam headlights spanning 14 seconds apart were
not sufficient to constitute a violation of R.C. 4513.15(A)(1), the traffic stop at issue was still
lawful if Officer McDonald reasonably, albeit mistakenly, believed that a violation of the statute
had occurred.
{¶32} “Thus the question whether a traffic stop violates the Fourth Amendment * * *
requires an objective assessment of a police officer’s actions in light of the facts and
circumstances.” Bowling Green v. Godwin, 110 Ohio St. 3d 58, 2006-Ohio-3563, 850 N.E.2d
698, ¶ 14. “The existence of probable cause [or reasonable suspicion] depends on whether an
objectively reasonable police officer would believe that [the driver’s] conduct * * * constituted a
traffic violation, based on the totality of the circumstances known to the officer at the time of the
stop.” Id. at ¶ 16.
{¶33} In this case, Officer McDonald testified that he observed Spellacy activate his high
beams on two different occasions while stopped behind another vehicle at a red light. The
dash-cam video shows that the two flashes occurred briefly, approximately for one second, and
approximately 14 seconds apart. Officer McDonald testified that he initiated the traffic stop to
“determine why he was using his bright lights” and that he believed Spellacy violated the traffic
law because “you can’t drive with your bright lights on.”
{¶34} When reviewing the language of R.C. 4513.15(A)(1) and considering Officer
McDonald’s testimony, an objectively reasonable officer could have concluded that Spellacy
violated R.C. 4513.15(A)(1) when, on two separate occasions, he flashed his high-beam lights
while stopped behind another vehicle at a busy intersection. Moreover, Spellacy was operating
his vehicle at a time and in an area where the use of high beams would be unnecessary or
unwarranted, and while he was stopped at a stoplight. Officer McDonald stated that he
conducted the investigatory stop to see “why he was using his high beams.” Therefore, at the
very least, the totality of the circumstances would permit the officer to effectuate a traffic stop for
the purposes of obtaining explanatory information why Spellacy was flashing his high beams on
two separate occasions. See, e.g., State v. Carlile, 2d Dist. Montgomery No. 17270, 1999 Ohio
App. LEXIS 2181 (May 14, 1999) (flicker of high beams common signal to drivers; officer as a
community caretaker acted reasonably initiating traffic stop; police-citizen contact objectively
reasonable).
{¶35} Based on the totality of the circumstances, even if Officer McDonald was mistaken
that Spellacy violated R.C. 4513.15, or the evidence would be insufficient to prove the elements
of R.C. 4513.15 beyond a reasonable doubt, we find that Officer McDonald had an objectively
reasonable belief that a traffic violation occurred, thus constituting reasonable suspicion to justify
the traffic stop. Accordingly, we find that the trial court erred in granting Spellacy’s motion to
suppress.
{¶36} Judgment reversed and remanded for further proceedings consistent with this
opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR