[Cite as State v. Hundley, 2009-Ohio-6873.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              VAN WERT COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 15-09-10

        v.

KATIE J. HUNDLEY,                                         OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 15-09-12

        v.

KATIE J. HUNDLEY,                                         OPINION

        DEFENDANT-APPELLANT.


                  Appeal from Van Wert County Municipal Court
                  Trial Court Nos. CRB 0900135 and TRC 0900451

                                     Judgments Affirmed

                         Date of Decision:    December 28, 2009


APPEARANCES:

        Shaun A. Putman for Appellant

        Timothy R. Pieper for Appellee
Case Nos. 15-09-10 and 15-09-12


ROGERS, J.

       {¶1} Defendant-Appellant, Katie Hundley, appeals the judgments of the

Van Wert Municipal Court of Van Wert County denying her motion to suppress

evidence regarding charges of operating a vehicle after underage consumption of

alcohol and consuming intoxicating liquor or beer while under the age of twenty-

one in cases 15-09-12 and 15-09-10, respectively. On appeal, Hundley asserts that

the trial court erred by failing to suppress evidence because there was not

sufficient, competent, and credible evidence giving rise to probable cause to

support an investigatory stop of her vehicle. Based on the following, we affirm

the judgments of the trial court.

       {¶2} In February 2009, in case 15-09-121, Hundley was arrested and cited

for one count of operating a vehicle after underage consumption of alcohol in

violation of R.C. 4511.19(B)(3), a misdemeanor of the fourth degree, and one

count of failure to illuminate a rear license plate in violation of R.C. 4513.05, a

minor misdemeanor. Additionally, in case 15-09-102, Hundley was charged via

affidavit with consuming intoxicating liquor or beer while under the age of

twenty-one in violation of R.C. 4301.69(E)(1), a misdemeanor of the first degree.

The citation and charge stemmed from an incident during which a state trooper



1
  Case 15-09-12 corresponds to Van Wert Municipal Court of Van Wert County case 0900451(R.C.
4511.19(B)(3)) and case 0900452 (R.C. 4513.05).
2
  Case 15-09-10 corresponds to Van Wert Municipal Court of Wan Wert County case 0900135.


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Case Nos. 15-09-10 and 15-09-12


stopped Hundley for an equipment violation, administered field-sobriety tests, and

subsequently arrested her for underage consumption of alcohol. Subsequently, in

case 15-09-12, Hundley entered pleas of not guilty to operating a vehicle after

underage consumption of alcohol and failure to illuminate a rear license plate.

Additionally, in case 15-09-10, Hundley entered a plea of not guilty to consuming

intoxicating liquor or beer while under the age of twenty-one.

      {¶3} In April 2009, in cases 15-09-10 and 15-09-12, Hundley moved to

suppress the evidence obtained during the traffic stop on the basis that the state

trooper lacked reasonable articulable suspicion required to stop her for

investigatory purposes.

      {¶4} In June 2009, the trial court held a hearing on the motion to

suppress, at which the following testimony was heard.

      {¶5} Trooper Shaun Cook of the Ohio State Highway Patrol testified that,

on February 20, 2009, he was traveling on Middlepoint-Wetzel Road in Van Wert

County when he observed the vehicle in front of him turn and observed that the

rear license plate was not illuminated; that he was able to tell the plate was not

illuminated because, when the vehicle turned, his headlights were not shining on

the rear of the vehicle and the portion of the roadway was not lit; that he was

approximately one and one-half car lengths behind the vehicle; that he initiated a

traffic stop of the vehicle and identified Hundley as the driver; that he informed



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Case Nos. 15-09-10 and 15-09-12


Hundley that he stopped her vehicle because of the license plate light; that, after

he stopped the vehicle, he did not further investigate whether the license plate was

lit; and, that he observed that Hundley’s eyes were bloodshot and glassy and that

there was an alcoholic beverage in the vehicle.

       {¶6} Trooper Cook further testified that, during portions of the video of

the stop, the license plate on Hundley’s vehicle was illuminated, however the plate

was illuminated not by a license plate light, but by the headlights on his vehicle

and the bright white “take down” lights on his vehicle’s overhead light bar

(suppression hearing tr., p. 20); that he could tell the plate was not illuminated by a

license plate light because it would have been hanging from where it was mounted

on the rear of the vehicle; that he did not inspect the vehicle to see if a light was

hanging above the plate for officer safety reasons; that, even though both he and

Hundley had walked in front of his vehicle, temporarily blocking the headlights on

his vehicle, her license plate light remained illuminated; that her license plate light

remained illuminated despite the blockage of his headlights due to the lights on the

overhead light bar of his vehicle; that the license plate appeared more illuminated

than the bumper of Hundley’s vehicle because license plates are made of reflective

material; that, after Hundley and a passenger in the vehicle were secured in the

back of his patrol vehicle, he turned Hundley’s vehicle around and parked it; that

Hundley’s license plate appeared illuminated during the one hundred eighty



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Case Nos. 15-09-10 and 15-09-12


degree turn, but that he believed the light source was from the overhead light bar

on his vehicle and his headlights; and, that his audio recording device was not

working during the stop, so there was no proof other than his own testimony that

he talked to Hundley about her license plate light.

         {¶7} After the close of testimony, the trial court overruled Hundley’s

motion to suppress, finding that “the officer had probable cause to stop the

Defendant.”3 (Suppression Hearing Tr., p. 44). Thereafter, Hundley withdrew her

not guilty pleas to all counts in cases 15-09-10 and 15-09-12, and entered pleas of

no contest to all counts. The trial court accepted Hundley’s pleas and found her

guilty of all counts. On her conviction for operating a vehicle after underage

consumption of alcohol in violation of R.C. 4511.19(B)(3), the trial court

sentenced Hundley to a thirty-day jail term with twenty days suspended and ten

days deferred pending her completion of a driver’s intervention program, imposed

two years of probation4, and imposed a nine-month license suspension. On her

conviction for consuming intoxicating liquor or beer while under the age of




3
  We note that, although the trial court found that Trooper Cook was able to initiate the stop based on the
heightened standard of probable cause, all that is needed to commence an investigatory stop of a vehicle is
reasonable articulable suspicion. See Delaware v. Prouse (1979), 440 U.S. 648; Terry v. Ohio (1968), 392
U.S. 1.
4
  We note that the trial court referred to “probation” in both the journal entries of sentence, although R.C.
2929.25, effective January 1, 2004, provides that courts may impose “community control” and not
“probation” on misdemeanor offenders. However, the trial court's misnomer does not change our result in
this case.


                                                    -5-
Case Nos. 15-09-10 and 15-09-12


twenty-one in violation of R.C. 4301.69(E)(1), the trial court sentenced Hundley

to a thirty-day jail term, with twenty days suspended and eight days deferred

pending her completion of twenty-four hours of community service, and imposed

two years of probation. On her conviction for failing to illuminate a rear license

plate in violation of R.C. 4513.05, the trial court ordered Hundley to pay a $10

fine.

        {¶8} It is from the trial court’s denial of her motion to suppress in cases

15-09-10 and 15-09-12 that Hundley appeals, presenting the following assignment

of error for our review.

        THE TRIAL COURT WHEN IN DENYING [SIC]
        APPELLANT’S MOTION TO SUPPRESS WHERE THERE
        WAS NO COMPETENT CREDIBLE EVIDENCE TO
        SUPPORT A VIOLATION OF R.C. 4513.05(A), THUS GIVING
        NO RISE TO PERFORM AN INVESTIGATORY STOP OF
        APPELLANT’S VEHICLE.

        {¶9} In her sole assignment of error, Hundley argues that the trial court

should not have overruled her motion to suppress because no competent, credible

evidence existed to support a violation of R.C. 4513.05; and, thus, that Trooper

Cook had no reasonable articulable suspicion to conduct an investigatory stop of

her vehicle. Specifically, Hundley contends that the videotape of the traffic stop

demonstrated that, when both Hundley and Trooper Cook passed between her

vehicle and the patrol vehicle, a shadow appeared on the bumper because the light

source (the headlights on the patrol vehicle) was impeded, but that the license


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Case Nos. 15-09-10 and 15-09-12


plate remained fully illuminated with no shadow or dimming, indicating another

light source illuminated the plate, such as a functional plate light; that, when

Trooper Cook turned Hundley’s vehicle around, the license plate remained

illuminated up to the point that it was no longer visible; and, that Trooper Cook

admitted that he did not investigate the functionality of the license plate light after

initiating the traffic stop. We disagree that Trooper Cook had no reasonable

articulable suspicion to conduct an investigatory stop of Hundley’s vehicle.

       {¶10} “Appellate review of a decision on a motion to suppress evidence

presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13,

2006-Ohio-601, ¶12, citing United States v. Martinez (C.A.11, 1992), 949 F.2d

1117. The trial court serves as the trier of fact and is the primary judge of the

credibility of the witnesses and the weight to be given to the evidence presented.

State v. Johnson (2000), 137 Ohio App.3d 847, 850. Therefore, when an appellate

court reviews a trial court’s ruling on a motion to suppress, it must accept the trial

court’s findings of facts so long as they are supported by competent, credible

evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶100, citing State

v. Fanning (1982), 1 Ohio St.3d 19, 20. The appellate court must then review the

application of the law to the facts de novo.         Roberts, supra, citing State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8.




                                         -7-
Case Nos. 15-09-10 and 15-09-12


       {¶11} The Fourth Amendment to the United States Constitution and

Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and

seizures. Neither the Fourth Amendment to the United States Constitution nor

Section 14, Article I of the Ohio Constitution explicitly provides that violations of

its provisions against unlawful searches and seizures will result in the suppression

of evidence obtained as a result of such violation, but the United States Supreme

Court has held that the exclusion of evidence is an essential part of the Fourth

Amendment. Mapp v. Ohio (1961), 367 U.S. 643, 649; Weeks v. United States

(1914), 232 U.S. 383, 394. The primary purpose of the exclusionary rule is to

remove the incentive to violate the Fourth Amendment and thereby deter police

from unlawful conduct. State v. Jones, 88 Ohio St.3d 430, 434, 2000-Ohio-374,

overruled by State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931.

       {¶12} At a suppression hearing, the State bears the burden of establishing

that a warrantless search and seizure falls within one of the exceptions to the

warrant requirement, Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph two

of the syllabus; State v. Kessler (1978), 53 Ohio St.2d 204, 207, and that it meets

Fourth Amendment standards of reasonableness. Maumee v. Weisner, 87 Ohio

St.3d 295, 297, 1999-Ohio-68, citing 5 LaFave, Search and Seizure (3 Ed.1996),

Section 11.2(b).




                                         -8-
Case Nos. 15-09-10 and 15-09-12


      {¶13} When a law enforcement officer accosts an individual and restricts

his freedom of movement, the Fourth Amendment is implicated.              State v.

Stephenson, 3d Dist. No. 14-04-08, 2004-Ohio-5102, ¶16, citing Terry, supra.

Generally, in order for a law enforcement officer to conduct a warrantless search,

he must possess probable cause, which means that “‘there is a fair probability that

contraband or evidence of a crime will be found in a particular place.’” State v.

Carlson (1995), 102 Ohio App.3d 585, 600, quoting Illinois v. Gates (1983), 462

U.S. 213, 214.    However, even where probable cause is lacking, it is well-

established that a law enforcement officer may temporarily detain an individual

where he has a reasonable articulable suspicion that the individual is engaging in

criminal activity. State v. Bobo (1988), 37 Ohio St.3d 177, 179, citing Terry, 392

U.S. at 21. Such detention may be referred to as investigatory detention or a

“Terry” stop.

      {¶14} Reasonable articulable suspicion is “‘specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant

the intrusion.’” Stephenson, 2004-Ohio-5102, at ¶16, quoting Bobo, 37 Ohio St.3d

at 178. In forming reasonable articulable suspicion, law enforcement officers may

“draw on their own experience and specialized training to make inferences from

and deductions about the cumulative information available to them that ‘might




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Case Nos. 15-09-10 and 15-09-12


well elude an untrained person.’” United States v. Arvizu (2002), 534 U.S. 266,

273, quoting United States v. Cortez (1981), 449 U.S. 411, 417-418.

       {¶15} Further, an officer who witnesses a traffic violation possesses

probable cause, and a reasonable articulable suspicion, to conduct a traffic stop.

Id. “‘However, once the stop is made, its scope must be tailored to its justification

and the seizure of the driver must last no longer than reasonably necessary to

effect its purpose.’” Id., quoting Kazazi, 2004-Ohio-4147, at ¶9. Nevertheless,

the officer may prolong the stop if he gathers further information during the stop

that gives rise to an independent reasonable articulable suspicion that other

offenses may have been committed or are being committed. Id., citing Kazazi,

2004-Ohio-4147, at ¶9, citing State v. Robinette (1997), 80 Ohio St.3d 234, 240.

The stop may continue for as long as the new reasonable articulable suspicion

persists. State v. Venham (1994), 96 Ohio App.3d 649, 655; Robinette, 80 Ohio

St.3d at 241.

       {¶16} Trooper Cook initiated a stop of Hundley’s vehicle on the basis of a

violation of R.C. 4513.05(A), which governs illumination of rear license plates

and provides, in pertinent part:

       Either a tail light or a separate light shall be so constructed and
       placed as to illuminate with a white light the rear registration
       plate, when such registration plate is required, and render it
       legible from a distance of fifty feet to the rear. Any tail light,
       together with any separate light for illuminating the rear
       registration plate, shall be so wired as to be lighted whenever the


                                        -10-
Case Nos. 15-09-10 and 15-09-12


        headlights or auxiliary driving lights are lighted, except where
        separate lighting systems are provided for trailers for the
        purpose of illuminating such registration plate.

       {¶17} Hundley argues that no competent, credible evidence existed to

support a violation of R.C. 4513.05; and, thus, that Trooper Cook had no

reasonable articulable suspicion to conduct an investigatory stop of her vehicle.

Specifically, Hundley contends that the videotape of the traffic stop demonstrated

that her license plate remained illuminated during the entire stop, and argues that

Trooper Cook admitted that he did not investigate the functionality of the license

plate light after initiating the traffic stop. Additionally, Hundley argues that her

case is analogous to State v. Phillips, 3d Dist. No. 8-04-25, 2006-Ohio-6338,

overruled in part by State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, in which

this Court found reasonable articulable suspicion was not present to justify a

traffic stop.

       {¶18} In Phillips, supra, the trial court granted a driver’s motion to

suppress evidence, finding that no probable cause or reasonable articulable

suspicion existed to support a trooper’s stop of a driver where the trooper testified

that the defendant had crossed the white edge line and that the defendant’s license

plate was not illuminated.     On appeal, this Court affirmed the trial court’s

decision, finding that it was supported by competent, credible evidence.          In

Phillips, the trooper did not cite the defendant for violating R.C. 4513.05(A); the



                                        -11-
Case Nos. 15-09-10 and 15-09-12


trooper did not inform the defendant prior to his arrest that he was stopped for

violating R.C. 4513.05(A); the defendant introduced evidence that the license

plate light was in working condition the day after the stop; and, the trial court

apparently found the defendant’s version of events to be more credible.

Contrastingly, here, Trooper Cook cited Hundley for violating R.C. 4513.05(A)

and informed Hundley that he stopped her for the license plate light violation;

Hundley introduced no evidence demonstrating that the license plate light was in

working condition; and, the trial court apparently found Trooper Cook’s version of

events to be more credible. Accordingly, we find the case sub judice to be

distinguished from Phillips, supra.

       {¶19} Additionally, Trooper Cook testified that, when Hundley turned in

front of him, the rear license plate of her vehicle was not illuminated because his

headlights were no longer shining on it; that her license plate was illuminated

during the videotape of the stop, but that this was due to the headlights on his

vehicle as well as the lights on his vehicle’s overhead light bar; and, that the

license plate appeared more illuminated than the bumper on Hundley’s vehicle

because license plates are made of reflective material. Accordingly, we find that

competent, credible evidence supported the trial court’s finding that Trooper Cook

had probable cause, let alone reasonable articulable suspicion, to stop Hundley’s

vehicle. This is particularly so given that the trial court is in the best position to



                                        -12-
Case Nos. 15-09-10 and 15-09-12


weigh witness credibility, as it is “best able to view the witnesses and observe

their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.” In re Jane Doe I (1991), 57

Ohio St.3d 135, 138; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80.

       {¶20} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgments of the trial court.

                                                               Judgments Affirmed

PRESTON, P.J. and SHAW, J., concur.

/jlr




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