State v. Dean

[Cite as State v. Dean, 2013-Ohio-313.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
ALAN R. DEAN : Case No. 12-CA-60
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court,
Case No. 12TRC02814
JUDGMENT: Reversed
DATE OF JUDGMENT: February 1, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
J. MICHAEL KING ROBERT E. CALESARIC
35 South Park Place 35 South Park Place
Suite 35 Suite 150
Newark, OH 43055 Newark, OH 43055
Licking County, Case No. 12-CA-60 2
Farmer, J.
{¶1} On March 18, 2012, Pataskala Police Officer Joshua Silverman stopped
appellant, Alan Dean, for impeding traffic. Upon investigation, appellant was charged
with driving under the influence in violation of R.C. 4511.19 and unreasonable slow
speed in violation of R.C. 4511.22.
{¶2} On April 24, 2012, appellant filed a motion to suppress, claiming an illegal
traffic stop. A hearing was held on June 13, 2012. By judgment entry filed June 18,
2012, the trial court denied the motion.
{¶3} On June 29, 2012, appellant pled no contest to the charge. By judgment
entry filed same date, the trial court found appellant guilty and sentenced him to sixty
days in jail, fifty-four days suspended.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "APPELLEE DID NOT MEET ITS BURDEN AND ESTABLISH THAT
OFFICER SILVERMAN HAD PROBABLE CAUSE OR REASONABLE SUSPICION TO
STOP APPELLANT."
I
{¶6} Appellant claims the trial court erred in denying his motion to suppress as
Officer Silverman lacked reasonable suspicion of criminal activity to warrant the stop of
his vehicle. We agree.
{¶7} 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.
Licking County, Case No. 12-CA-60 3
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 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist. 1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th 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 (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 (8th Dist. 1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist. 1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶8} In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court
determined that "a police officer may in appropriate circumstances and in an appropriate
manner approach a person for purposes of investigating possible criminal behavior
even though there is no probable cause to make an arrest." However, for the propriety
of a brief investigatory stop pursuant to Terry, the police officer involved "must be able
to point to specific and articulable facts which, taken together with rational inferences
Licking County, Case No. 12-CA-60 4
from those facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory
stop "must be viewed in the light of the totality of the surrounding circumstances"
presented to the police officer. State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph
one of the syllabus.
{¶9} Appellant claims there was no evidence of impaired driving to warrant the
stop. He argues slow speed is insufficient to establish reasonable suspicion of criminal
activity.
{¶10} The undisputed evidence establishes Officer Silverman was traveling in
the opposite direction when he observed appellant traveling at a slow speed (28 m.p.h.
in a 45 m.p.h. zone). T. at 7-8. Officer Silverman made a u-turn and pulled behind a
vehicle that was behind appellant's vehicle. T. at 8. As soon as the road became two
lanes, the vehicle behind appellant passed him. Id.{¶11} Officer Silverman continued to follow appellant's vehicle and observed him
slow down to 15-20 m.p.h. in a 35 m.p.h. zone. T. at 9, 17. Appellant then activated his
right turn signal for 500 feet and passed by seven to eight business driveways before
turning onto Main Street. T. at 9-10. The turn was wide and "real slow." T. at 10.
Appellant activated his right turn signal again and turned onto Third Street. T. at 10, 19.
Officer Silverman then pulled appellant over for impeding traffic, slow speed, and
"abnormal" driving. Id. We note the speed limit on Main Street was 25 m.p.h. T. at 18.
Officer Silverman's observations of appellant's driving encompassed a one mile
distance. T. at 13-14; Defendant's Exhibit B.
{¶12} R.C. 4511.22(A) governs slow speed and states, "[n]o person shall stop or
operate a vehicle, trackless trolley, or street car at such an unreasonably slow speed as
Licking County, Case No. 12-CA-60 5
to impede or block the normal and reasonable movement of traffic, except when
stopping or reduced speed is necessary for safe operation or to comply with law."
{¶13} Many appellate courts have addressed the stopping of a vehicle for slow
speed. State v. Cockrell, 4th Dist. No. 93CA1957 (July 25, 1994); State v. Hagerty,
11th Dist. Nos. 2001-P-0083 and 2001-P-0084, 2002-Ohio-3379; State v. Bacher, 170
Ohio App.3d 457 (2007). The distinguishing fact in these cases is whether traffic was
impeded or obstructed:
Also, although one may be stopped for going substantially under
the speed limit, generally such a defendant has been found to have been
seriously impeding traffic or going unreasonably slow to create a safety
risk before a stop is justified. State v. Poynter (1992), 78 Ohio App.3d 483(defendant was travelling ten miles an hour in a forty-five zone); State v.
Wright (Oct. 17, 1990), Pickaway App. No. 89-CA-19, unreported (a line of
cars had backed up behind defendant).
Cockrell, supra, at *3.
{¶14} This district has also adopted the view that slow speed alone is insufficient
to warrant a traffic stop. See, State v. Beghin, 5th Dist. No. 2003CA00297, 2004-Ohio-
2654. The prevailing view is that "slow speed" without some demonstration of impeding
or obstruction of traffic is insufficient to validate a stop; however, each case must be
examined in light of its own specific facts and circumstances.
Licking County, Case No. 12-CA-60 6
{¶15} In the matter sub judice, appellant was not impeding traffic. As soon as
the road widened, the other vehicle behind him passed and Officer Silverman freely
admitted he too could have passed appellant. The road was wet with foggy conditions
and it was 1:00 a.m. T. at 12, 14, 21. The foggy conditions did not obstruct the officer's
visibility for the one mile of observation. T. at 24.
{¶16} We find for the officer to conclude that something was "abnormal" (T. at
22) was tantamount to a hunch and was not based upon specific and articulable facts
that criminal activity was afoot. While many impaired drivers drive slowly, many
unimpaired drivers do too. If traffic is not impeded or obstructed, there is no criminal
activity.
{¶17} Based upon the facts of this case, we find the trial court erred in denying
appellant's motion to suppress.
{¶18} The sole assignment of error is granted.
Licking County, Case No. 12-CA-60 7
{¶19} The judgment of the Municipal Court of Licking County, Ohio is hereby
reversed.
By Farmer, J.
Delaney, P.J. and
Hoffman, J. concur.
_s/ Sheila G. Farmer_______________
_s/ Patricia A. Delaney_____________
_s/ William G. Hoffman_____________
JUDGES
SGF/sg 111
[Cite as State v. Dean, 2013-Ohio-313.]
IN THE COURT OF APPEALS FOR LICKINGCOUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ALAN R. DEAN :
:
Defendant-Appellant : CASE NO. 12-CA-60
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Licking County, Ohio is reversed. Costs to appellee.
_s/ Sheila G. Farmer_______________
_s/ Patricia A. Delaney_____________
_s/ William G. Hoffman_____________
JUDGES