DocketNumber: Case No. 00 CA 05
Judges: ABELE, J.
Filed Date: 8/30/2000
Status: Non-Precedential
Modified Date: 4/18/2021
This is an appeal from a Hocking County Municipal Court judgment of conviction and sentence. Robert Stevens, defendant below and appellant herein, entered no contest pleas to the following offenses: (1) driving while under the influence of alcohol, in violation of R.C.
Appellant raises the following assignment of error for review:
"DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT REFUSED TO SUPPRESS ALL EVIDENCE BECAUSE DEFENDANT WAS STOPPED WITHOUT A REASONABLE, ARTICULABLE SUSPICION OF WRONGDOING IN THE FIRST INSTANCE?"
Our review of the record reveals the following facts pertinent to the instant appeal. On May 8, 1999, at approximately 1:00 a.m., Ohio State Highway Patrol Trooper Ross Thompson, while traveling eastbound on State Route 56, a two-lane road divided by a double-yellow line, noticed appellant's vehicle approaching from the west. Thompson stated that when he first observed appellant's vehicle, the vehicle was straddling the centerline and the headlights were on the westbound side of the road. Trooper Thompson decided to follow appellant.
Shortly thereafter, Trooper Thompson observed the vehicle's left tires on the yellow center line. The trooper stated that part of appellant's vehicle extended over the center line and onto the left (other) side of the road. At that point, Trooper Thompson stopped appellant.
Upon contact with appellant, Trooper Thompson noticed an alcoholic odor emanating from the vehicle. Appellant subsequently was charged with operating a motor vehicle while under the influence, driving while under suspension, failure to wear a safety belt, and driving left of center.
On July 14, 1999, appellant filed a motion to suppress all evidence stemming from the May 8, 1999 traffic stop. Appellant argued, inter alia, that the arresting officer lacked any reasonable suspicion of criminal activity to conduct the traffic stop.
After conducting a hearing regarding appellant's motion to suppress evidence, the trial court, on August 23, 1999, overruled appellant's motion. Appellant subsequently pleaded no contest to the four charges. Appellant filed a timely notice of appeal. In his sole assignment of error, appellant contends that the trial court erred by overruling his motion to suppress. In particular, appellant argues that the trial court should have suppressed the evidence obtained after the traffic stop because the stop violated appellant's
The state asserts that the trial court correctly determined that Trooper Thompson observed appellant commit a left-of-center traffic violation and, thus, the trooper possessed a reasonable, articulable suspicion of criminal activity to stop appellant's vehicle. We agree with the state.
We initially note that appellate review of a trial court's decision regarding a motion to suppress evidence involves mixed questions of law and fact. See State v. Long (1998),
The
A traffic stop initiated by a law enforcement officer implicates the
"Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizures of `persons' within the meaning of [the
Fourth Amendment]. * * * An automobile stop is thus subject to the constitutional imperative that it not be `unreasonable' under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. * * *."
Id.,
In the absence of probable cause to believe that the driver of a vehicle has committed a traffic violation, a law enforcement officer generally may not stop the vehicle unless the officer observes facts giving rise to a reasonable suspicion of criminal activity. See, generally, Terry v. Ohio (1968),
Based upon the foregoing well-established principles of law, we conclude that Trooper Thompson's initial stop of appellant complied with the
[W]hen a police officer observes a vehicle driving left of the centerline, that officer has witnessed what appears to be a violation of the law. As such, an officer would have a reasonable, articulable suspicion that a violation had occurred, i.e., that the driver improperly drove left of center, and would be in a position to stop that vehicle."
Appellant cites several cases in support of his proposition that Trooper Thompson's stop of his vehicle violated the
In State v. Glasscock (1996),
Similarly, in State v. Johnson (1995),
Likewise, in State v. Pennington (June 30, 1999) Wood App. No. WD-98-086, unreported, the issue revolved around whether the officer possessed reasonable suspicion that the defendant had been driving while under the influence, not whether the defendant had committed a traffic violation. In Pennington, the officer observed the defendant's vehicle touching, but not crossing, the center line several times. The Pennington court held that the driver's conduct gave the officer reasonable suspicion of criminal activity, i.e., driving under the influence, to stop the defendant.
In State v. Matlack (Nov. 2, 1995), Athens App. No. 95 CA 1658, unreported, we distinguished Gullett, supra, and State v.Drogi (1994),
"In Gullett, we held that the officer did not state sufficient articulable facts to justify an investigative stop where the driver crossed the right edge line twice over a distance of one and one-half miles. The record in Gullett did not show how far or for what length of time the driver crossed the edge line, and there was no other evidence of erratic driving. Although the state charged Gullett under R.C.
4511.19 , the statute involved for the initial stop was R.C.4511.33 (improper lane change). R.C.4511.33 provides that `[a] vehicle * * * shall be driven, as nearly as is practicable, entirely within a single lane * * *.' Clearly, `as nearly as is practicable' means there can be exceptions. Gullett also involved a right turn. R.C.4511.36 requires a right turn to be made as close as practical to the right-hand edge of the roadway. Based on the totality of these circumstances, the improper lane change violation in Gullett `was not properly factually developed by the arresting officer.' State v. Faulkner (Jan. 15, 1994), Lawrence App. No. 93 CA 12, unreported, at 5.The Drogi court dealt with similar facts except that the driver crossed one foot over the centerline and then crossed the right edgeline. The road was a four-lane divided interstate highway. The centerline involved divided two lanes of traffic heading in the same direction. The Drogi court held that the officer did not have reasonable suspicion to make the investigative stop.
Contrary to the trial court's conclusion, the facts of the case sub judice do not fit within the parameters of Drogi or Gullett. It is undisputed that appellee's vehicle crossed the centerline three times. The double yellow center lines divided the opposite lanes of travel. Appellee's vehicle did not cross a right edgeline or a centerline dividing two lanes of traffic heading the same way. Traveling left of center is a traffic violation by itself."
(footnote omitted) (emphasis added)
Unlike Glasscock, Johnson, and Brite, in the case at bar Trooper Thompson stopped appellant's vehicle because appellant committed a traffic violation. Thus, the instant case, involving a left of center violation, falls within the parameters ofMatlack. Moreover, unlike Drogi, the case sub judice does not involve a failure to stay within marked lanes of travel that is moving in the same direction.
Appellant further appears to assert that: (1) "technical" traffic violations do not sufficiently give rise to reasonable suspicion, much less probable cause, to stop a vehicle; (2) one traffic violation does not permit an officer to stop a vehicle; (3) momentary "bobbling" does not permit a traffic stop; and (4) simply riding on the line does not permit a traffic stop. AsErickson and Whren clearly state, however, the observance of traffic violations, even minor violations, justifies a traffic stop and fulfills the
We note, however, that in the instant case the trial court found that appellant's vehicle crossed the double yellow line dividing opposite lanes of travel, a violation of the traffic laws. The trial court did not find, and the record does not support a finding, that appellant's conduct in driving his vehicle constituted a momentary "bobble" or that appellant merely drove his vehicle "on the line." We, as a reviewing court, must defer to the trial court's factual findings. See Dunlap, supra.
Appellant also argues that the "public policy `emergency exception'" did not permit the traffic stop. Appellant did not, however, raise this issue during the trial court proceedings, and has, therefore, waived the issue for purposes of appeal. Consequently, we will not address the argument.
Accordingly, based upon the foregoing reasons, we overrule appellant's assignment of error and affirm the trial court's judgment.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Municipal Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. Evans, J.: Concur in Judgment Opinion
_________________________ Peter B. Abele Judge
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.
(A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows:
(1) When overtaking and passing another vehicle proceeding in the same direction, or when making a left turn under the rules governing such movements;
(2) When an obstruction exists making it necessary to drive to the left of the center of the highway, provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;
(3) When driving upon a roadway divided into three or more marked lanes for traffic under the rules applicable thereon;
(4) When driving upon a roadway designated and posted with signs for one-way traffic;
(5) When otherwise directed by a police officer or traffic control device.
R.C.
No vehicle or trackless trolley shall be driven upon the left side of the roadway under the following conditions:
(A) When approaching the crest of a grade or upon a curve in the highway, where the operator's view is obstructed within such a distance as to create a hazard in the event traffic might approach from the opposite direction;
(B) When the view is obstructed upon approaching within one hundred feet of any bridge, viaduct, or tunnel;
(C) When approaching within one hundred feet of or traversing any intersection or railroad crossing.
This section does not apply to vehicles or trackless trolleys upon a one-way roadway, upon a roadway where traffic is lawfully directed to be driven to the left side, or under the conditions described in division (A) (2) of section
4511.25 of the Revised Code.