State v. Adams

[Cite as State v. Adams, 2011-Ohio-4008.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24184
vs. : T.C. CASE NO. 09CR3552
JAMES F. ADAMS : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 12th day of August, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Laura M. Woodruff, Asst.
Pros. Attorney, Atty. Reg. No.0084161, P.O. Box 972, Dayton, OH
45422
Attorney for Plaintiff-Appellee
Mark A. Deters, Atty. Reg. No.0085094, 371 West first Street,
Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, James Adams, appeals from his conviction for
possession of heroin, less than one gram, R.C. 2925.11(A), which
was entered on Defendant’s no contest plea after the trial court
overruled his motion to suppress evidence. On appeal, Defendant
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challenges only the trial court’s decision overruling his motion.
FIRST ASSIGNMENT OF ERROR
{¶ 2} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
TO SUPPRESS, BECAUSE THE POLICE OFFICERS DID NOT HAVE LAWFUL CAUSE
TO STOP APPELLANT.”
{¶ 3} When considering a motion to suppress, the trial court
assumes the role of the trier of facts and is therefore in the
best position to resolve factual questions and evaluate the
credibility of the witnesses. State v. Roberts, 110 Ohio St.3d
71, 2006-Ohio-3665. Consequently, an appellate court must accept
the trial court’s findings of fact if they are supported by
competent, credible evidence. Id. Accepting those facts as true,
the appellate court must then independently determine, without
deference to the trial court’s conclusion, whether those facts
satisfy the applicable legal standard. Id.{¶ 4} Defendant moved to suppress evidence of heroin police
seized in a search of his vehicle in the course of an inventory
search following Defendant’s arrest. The trial court overruled
the motion. The court found that officers had attempted to stop
Defendant’s vehicle for what they reasonably believed was a
violation of R.C. 4511.28. That section prohibits passing upon
the right of another vehicle unless (1) the other vehicle “is making
or attempting to make a left turn” (2) “[u]pon a roadway with
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unobstructed pavement of sufficient width for two or more lines
of vehicles moving lawfully in the direction being traveled by
the overtaking vehicle.” Id. When the officers activated the
lights and siren of their cruiser to effect the stop, Defendant
did not stop. He instead proceeded through the next block, where
another vehicle stopped him from proceeding further. The court
found that when officers apprehended Defendant, they placed him
under arrest for failure to comply with the order or signal of
a police officer, R.C. 2921.331, which is a first degree
misdemeanor.
{¶ 5} Defendant does not complain that the inventory search
of his vehicle was illegal. Neither does he dispute that he failed
to stop when the officers activated the lights and siren of their
cruiser, or that he was unaware they had. Rather, Defendant argues
that he committed no violation of R.C. 4511.28 that permitted
the officers to stop his vehicle.
{¶ 6} “Where a police officer stops a vehicle based on 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 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. (United States v.
Ferguson [C.A.6, 1993], 8 F.3d 385, applied and followed.)” Dayton
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v. Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, Syllabus by the Court.
{¶ 7} Probable cause to arrest exists when a reasonably prudent
person would believe that the person to be arrested has committed
a crime. State v. Timson (1974), 38 Ohio St.2d 122.
{¶ 8} Dayton v. Erickson does not require full probable cause
for a traffic stop. In that case, the Supreme Court relied on
the fact that an officer had probable cause of a traffic code
violation, an observed failure to signal when turning left, to
reject the defendant’s claim that the stop was unconstitutional
because it was a pretext to investigate a suspicion that her driving
privileges had been suspended. Erickson did not reject the lesser
reasonable and articulable suspicion standard of Terry v. Ohio
(1967), 391 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868. We have held
that the Terry standard likewise applies to permit a stop for a
suspected violation of the traffic code arising from conduct which
an officer observes. State v. Buckner, Montgomery App. No. 21892,
2007-Ohio-4329.
{¶ 9} Evidence introduced at the hearing on Defendant’s motion
to suppress shows that the stop of Defendant’s vehicle occurred
on October 23, 2009, in Dayton, at about 7:00 p.m. Dayton Police
Officers Dedrick and Gustwiller were then on patrol and assigned
to the “Phoenix Project.” Officer Dedrick described the Phoenix
Project as “a project that was put in place by Good Samaritan
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Hospital Citywide Development in partnership with the Dayton Police
Department, attempting to improve the neighborhood that surrounds
Good Samaritan Hospital.” (T. 6).
{¶ 10} As the officers were driving eastbound on Hillcrest
Avenue they saw a green Chevrolet Beretta traveling ahead of them
approach the intersection of Hillcrest and Salem Avenues. Traffic
on Hillcrest was stopped for a red light. The Beretta came to
a stop parallel to another vehicle on its right side, which was
preparing to turn left onto Salem Avenue. Officer Dedrick
testified:
{¶ 11} “There at that intersection at West Hillcrest and Salem
Avenue it’s fairly wide. It is a double-lined marking on the
pavement; I mean there’s no passing there. The width of the lane
is big enough for two vehicles to fit through.” (T. 7).
{¶ 12} When the light changed, the Beretta drove through the
intersection on the right side of the turning vehicle. Traffic
was proceeding from the opposite direction on Hillcrest Avenue,
through the intersection. Officer Dedrick testified: “By passing
the vehicle around the right side and continuing straight through
the intersection, it creates a hazard to the westbound travel –
traveling vehicles if they were to turn left to go south on Salem.
It’s a hazard for an accident.” (T. 8). The officers concluded
that the driver of the Beretta committed a minor misdemeanor (T.
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28-29), which was “passing on the right” (T. 34), and they initiated
a traffic stop to issue the driver a citation.
{¶ 13} The officers activated the overhead lights and siren
of their cruiser. They also used the public address system to
direct the driver of the Beretta to stop. The trial court found
that the Beretta “did not immediately stop and came to a stop at
the next intersection only when a car in the street obstructed
the path of the (Beretta).” (T. 57).
{¶ 14} The trial court further found that the traffic at the
intersections of Hillcrest and Salem Avenues “was heavy,” and that
the officers “observed eastbound on West Hillcrest a green Chevy
Beretta on the right side of the lane in an area that was not for
passing. Essentially they observed the green Beretta pass on the
right side where there is one lane; there is no separate passing
lane. There is only one lane of travel on eastbound Hillcrest.”
(T. 57).
{¶ 15} The court also noted that the officers believed that
Defendant’s vehicle “created a hazard by going around a vehicle
that was turning” (T. 58), presenting “a reasonable suspicion to
stop (Defendant’s) vehicle.” (T. 60). The court concluded:
“Defendant was issued a ticket for passing on the right. He was
arrested for failure to comply, a misdemeanor.” (T. 59). His
arrest led to the inventory search of his vehicle that produced
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the evidence which Defendant’s motion sought to suppress.
{¶ 16} R.C. 4511.28 does not prohibit passing on the right side
of another vehicle which is turning left when the passing vehicle
is proceeding “[u]pon a roadway with unobstructed pavement of
sufficient width for two or more lines of vehicles moving lawfully
in the direction being traveled by the overtaking vehicle.”
(Emphasis supplied). Contrary to the trial court’s suggestion,
the exception that section provides is not limited to a roadway
divided into two marked lanes proceeding in the same direction.
{¶ 17} Officer Dedrick testified that the lane through which
Defendant’s vehicle passed to the right of the vehicle turning
left “is fairly wide” and that “[t]he width of the lane is big
enough for two vehicles to pass through.” Further, any perceived
hazard that may have posed to vehicles turning across Defendant’s
path from the opposite direction would not be chargeable to
Defendant because, as between them, Defendant would have had the
right-of-way. R.C. 4511.42(A). The officers who stopped
Defendant were charged with knowledge of the law in that respect.
In order for a reasonable and articulable suspicion necessary
for a traffic stop to exist, there must be objective evidence that
the officer’s action was justified at its inception. Terry v.
Ohio (1968), 392 U.S. 1, 29 L.Ed.2d 889, 88 S.Ct. 1868. Good faith
is not enough. “If subjective good faith alone were the test,
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the protections of the Fourth Amendment would evaporate, and the
people would be ‘secure in their persons, houses, papers, and
effects’ only in the discretion of the police.” Id., at p. 22,
quoting Beck v. Ohio (1964), 379 U.S. 89, 97, 13 L.Ed.2d 14, 85
S.Ct. 223. Therefore, the trial court erred when it found that
the officers acted on a reasonable suspicion that Defendant’s
conduct violated R.C. 4511.28.
{¶ 18} The trial court did not deny Defendant’s motion to
suppress on the basis of its findings concerning Defendant’s
violation of R.C. 4511.28, however. Rather, the court approved
the inventory search following Defendant’s arrest for a violation
of R.C. 2921.33(A). That section provides:
{¶ 19} “No person shall fail to comply with any lawful order
or direction of any police officer invested with authority to
direct, control, or regulate traffic.”
{¶ 20} Defendant argues that his arrest for a violation of R.C.
2921.331(A), “failure to comply,” was tainted by the lack of a
reasonable suspicion that he committed a violation of R.C. 4511.28,
and therefore the trial court should have suppressed evidence
seized in an inventory search of his vehicle following his arrest.
Defendant relies on the derivative evidence rule, which holds
that evidence is illegally seized, and must be suppressed, when
its discovery was the product of a constitutional violation.
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“There must be a causal connection between the constitutional
violation and the derivative evidence for the latter to be
suppressed. This stands to reason because the latter is excluded
solely because of its connection to the constitutional violation.”
Katz, “Ohio Arrest, Search and Seizure,” 2008 Ed., §28:3. If
knowledge of the derivative evidence is gained from an independent
source, rather than the government’s own illegality, the derivative
evidence may be used. Silverthorne Lumber Co. v. United States
(1920), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.
{¶ 21} In State v. Redd, Montgomery App. No. 20284,
2004-Ohio-4689, we wrote, at ¶19:
{¶ 22} “[T]he ‘lawful order’ of a police officer that R.C.
2921.331(A) contemplates, and with which an offender fails to
comply in order for a violation to occur, is one that involves
the offender's act or omission in operating a motor vehicle which,
by law, an officer is charged with authority to direct, control,
or regulate. The manner of that operation need not be unlawful.
It is only necessary that the officer be charged by law with
authority to direct it and that the offender fails to comply with
the officer's particular direction.”
{¶ 23} Officer Dedrick testified that he and his partner were
“assigned to patrol operations” (T. 6) and that he “is an officer
charged with traffic enforcement in the City of Dayton.” (T. 37).
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Therefore, the “order” the officers issued to Defendant to stop
his vehicle was a lawful order for purposes of R.C. 2921.331(A),
and Defendant’s failure to comply demonstrated probable cause of
a violation of that section.
{¶ 24} The violation of R.C. 2921.331(A) and Defendant’s
resulting arrest were sources of knowledge of the evidence
Defendant’s motion sought to suppress that were independent of
any constitutional violation the initial reason to stop his vehicle
may have involved. The failure to stop followed the constitutional
violation, but its occurrence was the product of Defendant’s
subsequent illegal conduct in not stopping. It is, conceptually,
no different from the discovery of an outstanding warrant following
an illegal stop, which we have held does not support suppression
of evidence seized in a search incident to a resulting arrest.
State v. Walker-Stokes, 180 Ohio App.3d 36, 2008-Ohio-6552. The
trial court did not err when it overruled Defendant’s motion to
suppress evidence.
{¶ 25} The assignment of error is overruled. The judgment of
the trial court will be affirmed.
DONOVAN, J., concurs.
FAIN, J., concurring in the judgment:
{¶ 26} I concur in the judgment because I am satisfied that
Dayton police officers Dedrick and Gustwiller had a reasonable,
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articulable suspicion justifying their stop of the vehicle Adams
was driving, based upon a possible violation of R.C. 4511.28, which
prohibits passing another vehicle on the right if it cannot be
done safely. Under the conditions described by Officer Dedrick,
it may be problematic whether Adams could have been convicted of
that offense, but I am satisfied that the officers had a reasonable
and articulable suspicion sufficient to justify a stop.
{¶ 27} I am less sanguine about a justification of a stop based
upon a failure to stop, without more. Possibly, a failure to stop,
without more (such as speeding away, or driving recklessly), may
justify a stop, but there is a catch-22 aspect of such a holding
that troubles me.
{¶ 28} I do not find helpful an analogy to an otherwise
unjustified stop where one of the occupants of a car is, in fact,
the subject of an outstanding arrest warrant, even though the
stopping police officer is not aware of the warrant. In that case,
a basis for the stop already exists at the time that the officers
make the decision to make the stop. But where officers signal
a motorist to stop, and the motorist, in response, does not stop,
and there was no basis for the stop before the signal to stop is
given, it seems to me that the officers have created, out of nothing,
a basis for the stop.
{¶ 29} I reiterate that I am not prepared to take a position,
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one way or the other, on whether a motorist’s failure to stop,
without more, may serve as a lawful basis for a stop. It is a
conundrum I find unnecessary to resolve in this case, since I am
satisfied that the suspicion of a violation of R.C. 4511.28, by
itself, was a sufficient basis for the stop.
Copies mailed to:
Laura M. Woodruff, Esq.
Mark A. Deters, Esq.
Hon. Mary K. Huffman