[Cite as State v. Bizzell, 2017-Ohio-8902.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :  C.A. CASE NO. 27676
                                                    :
 v.                                                 :  T.C. NO. 2016-CR-3867
                                                    :
 ADRIAN BIZZELL                                     :  (Criminal Appeal from
                                                    :   Common Pleas Court)
          Defendant-Appellant                       :
                                                    :
                                               ...........

                                              OPINION

                            Rendered on the 8th day of December, 2017.

                                               ...........

SARAH HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

CARLO McGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Oakwood, Ohio 45419
    Attorney for Defendant-Appellant

                                              .............

DONOVAN, J.

        {¶ 1} This matter is before the Court on the August 2, 2017 Notice of Appeal of

Adrian Bizzell.       Bizzell appeals from his judgment entry of conviction, following no

contest pleas, to one count of having weapons while under disability (prior offense of
                                                                                             -2-


violence), in violation of R.C. 2923.13(A)(2)(B), a felony of the third degree, and one count

of improper handling of a firearm in a motor vehicle (loaded/no license), in violation of

R.C. 2923.16(B), a felony of the fourth degree. Bizzell was sentenced to nine months

on each count to be served concurrently. We hereby affirm the judgment of the trial

court.

         {¶ 2} Bizzell was indicted on January 17, 2017. On March 1, 2017, he filed a

motion to suppress, and on May 4, 2017, he filed a second motion to suppress. A

hearing was held on the motions on May 22, 2017, wherein Officer Robert Christoffers

testified that he has been employed by the City of Dayton Police Department since April

of 2016. Christoffers stated that after midnight on December 13, 2016, he stopped a

vehicle driven by Bizzell in front of 552 Pierce Street. According to Christoffers, Bizzell

was driving a red pickup truck, and Christoffers “just first noticed the car leaving the Twin

Towers neighborhood and turning onto Xenia and turning back into the neighborhood on

Nassau.” Christoffers stated that he observed a traffic violation “at the stop sign at

Nassau and Clover, which also connects to Pierce. It’s like a weird five way intersection.”

According to Christoffers, Bizzell failed to signal 100 feet prior to turning right. He stated

that he was behind Bizzell as Bizzell slowed down “for the stop sign. Probably within I’d

say the last five to 10 feet of the stop sign is when he turned his signal on to signal to the

right, and then proceeded to turn right.” Christoffers testified that the Twin Towers

neighborhood is “off Xenia Avenue. It’s one of the hotspots on the east side of the city

for prostitution and drugs.”

         {¶ 3} Christoffers identified a DVD of his cruiser cam video of the traffic stop, which

he testified accurately depicts the stop. Christoffers stated that he approached the driver’s
                                                                                            -3-


side of Bizzell’s vehicle and advised him that the reason for the stop was Bizzell’s failure

to signal 100 feet prior to turning. Christoffers testified that when he asked Bizzell for his

driver’s license, Bizzell indicated that it was in his other vehicle. Based upon his lack of

identification, Christoffers stated that he asked Bizzell to get out of his vehicle in order to

place him in his cruiser to ascertain his identity. Prior to patting Bizzell down for weapons,

Christoffers stated that he asked him “if he had anything on him that was a safety risk to

me. He stated he did not. He then exited the vehicle. And I had just asked again do

you have anything on you, to which he stated there was a weapon in the car.” Christoffers

stated that he “asked him where [the weapon] was for my safety, and to which he stated

it was under the driver’s seat.”

       {¶ 4} Upon learning about the presence of a weapon, Christoffers stated that he

placed Bizzell in handcuffs “just for my safety to kind of keep him a little bit more

contained.” Christoffers stated that he then placed Bizzell in his cruiser and requested a

second crew. Christoffers stated that he asked Bizzell for his personal information, and

that Bizzell’s vehicle “was inventoried.” He stated that he found a small digital scale

“consistent with weighing items, usually drugs.”          Christoffers stated that a semi-

automatic pistol was retrieved from under the driver’s seat. Christoffers testified that he

photographed the weapon in its location before removing and unloading it. He stated

that he read Bizzell “his Miranda rights from the card from the Prosecutor’s office.”

       {¶ 5} Christoffers testified that Bizzell agreed to speak to him, that he did not

appear to be under the influence of anything, that he appeared to understand their

conversation, and that he did not ask for an attorney. Christoffers stated that he then

transported Bizzell to the Montgomery County jail and “tagged all the evidence into the
                                                                                            -4-


property room.”

       {¶ 6} On cross examination, Christoffers testified that based upon his training and

experience, “Xenia Avenue is a popular street where prostitutes will walk. And cars will

turn and circle in the neighborhood to come back and pick them up if they see a girl. So

when [Bizzell] turned out and turned back into the neighborhood is what caught my

attention to the vehicle.” He stated that he did not ask Bizzell any further questions about

the gun other than its location in the vehicle before he read him his rights. Christoffers

testified that Bizzell was cooperative in the course of the stop, and that his vehicle was

towed thereafter. Christoffers stated that in the course of identifying Bizzell, he learned

that his license was suspended. He stated that Bizzell was alone in the vehicle, that the

vehicle was not registered to him, and that it had Indiana plates. He stated that he

allowed Bizzell to call the registered owner, but that no one arrived to remove the car

before the tow truck.

       {¶ 7} On June 20, 2017, the trial court made oral findings in ruling on the motions

to suppress and issued its Decision the following day. In its oral findings, the court

indicated that it watched the cruiser cam video several times.             After summarizing

Christoffers’ testimony, the court found as follows:

              First of all, with regard to the stop, the Court will find that the officer

       observed a traffic violation and had reasonable suspicion and probable

       cause to stop the vehicle. Then when the Defendant indicated that he did

       not have a driver’s license with him, the office[r] was authorized to remove

       the Defendant from the vehicle and the pat down was incident to placing the

       Defendant in the vehicle.     There was nothing found on the Defendant in
                                                                                         -5-


       the pat down.

               The officer asked if there was anything on the Defendant that would

       hurt him and the Defendant responded spontaneously that he had a gun in

       the car, which was not in response to the question asked by the officer.

               The Court will find there was no violation to Defendant’s Miranda

       rights in the officer asking if he had anything on his person that would poke,

       stick, or hurt him and the Defendant’s response was not responsive to the

       question asked.

               In addition, the Court will find that the officer had not only probable

       cause, but reasonable suspicion to search the vehicle as a result of the

       Defendant’s statement; and further, that the search of the vehicle was

       authorized by the City’s tow policy.        There was no violation of the

       Defendant’s fourth, fifth, or sixth amendment rights in his encounter with

       Officer Christoffers; and the Court will overrule Defendant’s motion to

       suppress.

       {¶ 8} On June 29, 2017, a “Memorandum in Support of Defendant’s Motion to

Suppress” was filed. Therein, Bizzell asserted that Christoffers’ “testimony concerning

the actions of the Defendant prior to the stop is not corroborated by the State’s own

evidence,” namely the video. He asserted that “[n]owhere on the video is the vehicle

driven by Defendant seen doing anything other than travelling eastbound on Xenia then

turning south on Nassau.      The seizure for the turn signal violation occurred shortly

thereafter.”   Also on June 29, 2017, a “Motion to Supplement Record in Motion to

Suppress” was filed by Bizzell. An “Amended Memorandum in Support of Defendant’s
                                                                                        -6-


Motion to Suppress” was filed the same day, attached to which are copies of a black and

white Google Earth photograph of a unmarked intersection and a Google Maps aerial

photograph of the area of the stop.

      {¶ 9} On July 3, 2017, in the course of a pre-trial conference, counsel for Bizzell

indicated that Bizzell would plead no contest. The court indicated that it considered the

issues raised subsequent to its decision on the motions to suppress, and it indicated that

it “reviewed the video and had a different factual assessment of the matter, in that on the

video, from my perspective, the Defendant can clearly be seen not signaling until right

before he turned the corner.” The court indicated that “even after considering these

matters, the motion continues to be overruled.” On July 24, 2017, Bizzell entered his no

contest pleas.

      {¶ 10} Bizzell asserts the following four assignments of error, which we will

consider together:

             THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

      MOTION TO SUPPRESS.

             And,

             WHETHER THE TRIAL COURT ERRED IN FAILING TO

      SU[P]PRESS THE FRUIT OF A WARRANTLESS SEARCH AND

      THEREBY PRECLUDED DEFENDANT’S CONSTITUTIONAL RIGHTS TO

      UNREASONABLE SEARCHES AND DUE PROCESS UNDER THE

      FOURTH, FIFTH, AND FOURTEENTH AMENDMENTS OF THE UNITED

      STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO

      STATE CONSTITUTION.
                                                                                          -7-


              And,

              THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

       FOUND      THAT     OFFICER      CHRISTOFFERS         HAD     REASONABLE

       SUSPICION AND PROBABLE CAUSE TO STOP APPELLANT’S VEHICLE

       FOR MAKING A TURN IN VIOLATION OF R.C. 4511.39.

              And,

              THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION

       TO SUPPRESS STATEMENTS AND EVIDENCE SEIZED INCIDENT TO,

       AND SUBSEQUENT TO, HIS ARREST.

       {¶ 11} Bizzell asserts that a review of the cruiser cam video does not corroborate

Christoffers’ testimony. According to Bizzell, the “video begins recording when Officer

Christoffers is approaching the intersection of Corwin and Xenia Avenue. (see Exhibit 1

and Exhibit 2 attached).” No exhibits are attached to Bizzell’s brief. Bizzell asserts that

“Corwin is the first street intersecting Xenia which leads from the area described by the

Officer as being an area of prostitution and other illegal acts. Nowhere on the video is

the vehicle driven by Defendant seen doing anything other than travelling eastbound on

Xenia then turning south on Nassau.” According to Bizzell, “a review of the facts shows

that prior to coming to a complete stop, Appellant already had engaged his right turn

signal which continued for a distance greater than 100 feet before conflict [sic] with the

terminus of the Pierce Street right of way.” Bizzell argues that Christoffers “was clearly

on the lookout for anyone going in and out of the subject neighborhood for purposes of

engaging in prostitute and drug activity,” and that “there was more interest in investigating

illegal conduct, than in reasonably concluding that it was necessary to engage [in]
                                                                                         -8-


aggressive enforcement of an ill-conceived violation of Ohio’s turn signal law.” Finally,

Bizzell asserts that a “review of the facts in the instant case reflect[s] that Officer

Christoffers had made what appears to be a second specific request of Appellant as to

whether or not there was a gun present.” According to Bizzell, “[t]his occurred: after

Appellant’s vehicle has been stopped pursuant to a traffic stop; after Appellant had been

ordered to exit the vehicle; after Appellant had pursuant to instruction turned his back and

placed his arms behind him. It was at this point in time that Appellant answered in the

affirmative.” Bizzell asserts that under the circumstances, “it was clear to Appellant that

he was not clear to leave. It is also clear that at this point in time no Miranda warnings

had been provided.”

       {¶ 12} The State responds that “Bizzell was required to signal his turn 100 feet

prior to the stop sign,” and that he “committed a turn-signal violation and that the

subsequent traffic stop was constitutionally valid.” According to the State, “the roadside

questioning pursuant to a traffic stop does not constitute a custodial interrogation for the

purposes of Miranda.” The State argues that “Bizzell voluntarily admitted that there was

a gun in the car.” Finally, the State asserts that even “if Bizzell had not told Officer

Christoffers about the gun in the car, the gun would eventually have been found through

a constitutionally-valid inventory search,” based upon Bizzell’s suspended license.

       {¶ 13} As this Court has previously noted:

              “Appellate review of a motion to suppress presents a mixed question

       of law and fact. When considering a motion to suppress, the trial court

       assumes the role of trier of fact and is therefore in the best position to

       resolve factual questions and evaluate the credibility of witnesses.” State v.
                                                                                            -9-

      Koon, 2d Dist. Montgomery No. 26296, 2015–Ohio–1326, ¶ 13,

      quoting State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797

      N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial

      court's findings of fact if they are supported by competent, credible

      evidence. Accepting these facts as true, the appellate court must then

      independently determine, without deference to the conclusion of the trial

      court, whether the facts satisfy the applicable legal standard.” Id. The

      application of the law to the trial court's findings of fact is subject to a de

      novo standard of review. State v. Gordon, 5th Dist. Fairfield No. 14–CA–13,

      2014-Ohio-5027, ¶ 14, citing Ornelas v. United States, 517 U.S. 690, 116

      S.Ct. 1657, 134 L.Ed.2d 911 (1996).

State v. Dowty, 2d Dist. Montgomery No. 26982, 2016-Ohio-4719, ¶ 6.

      {¶ 14} As this Court has further noted:

                When a police officer stops a motor vehicle for a traffic violation, the

      stop      itself   constitutes   a   “seizure”   within   the   meaning   of   both

      the Fourth Amendment of the United States Constitution; Berkemer v.

      McCarty (1984), 468 U.S. 420, 436-37, 104 S.Ct. 3138, 3148, 82 L.Ed.2d

      317, 332-333; and Section 14, Article I, of the Ohio Constitution;

      see Dayton v. Erickson (1996), 76 Ohio St.3d 3, 11, 665 N.E.2d 1091. The

      temporary detention involved in a traffic stop, however, is not considered

      “custody” triggering the Miranda[] protections of Fifth Amendment

      rights.     Berkemer, 468 U.S. at 440. It is, instead, more akin to a

      “Terry stop,” during which a police officer may briefly detain a person and
                                                                                           -10-


      conduct an investigation upon a reasonable suspicion of criminal

      activity. Id. at 439 (citing Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868,

      20 L.Ed.2d 889).

             Thus,    the   initial   inquiry   regarding   the   constitutionality   of

      a traffic stop is whether a police officer's observations “lead him reasonably

      to suspect” that the person he wishes to detain has committed, is

      committing, or will commit a crime. Id. at 439 (quoting United States v.

      Brignoni-Ponce (1975), 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d

      607). When police observe a traffic offense being committed, the initiation

      of a traffic stop does not violate Fourth Amendment guarantees, even if the

      stop was pretextual or the offense so minor that no reasonable officer would

      issue a citation for it. Whren v. United States (1996), 517 U.S. 806, 116

      S.Ct. 1769, 1774-75, 135 L.Ed.2d 89, 98-100.

State v. Wineberg, 2d Dist. Clark No. 97-CA-58, 1998 WL 409021, *2-3.

      {¶ 15} R.C. 4511.39(A) provides:

             (A) No person shall turn a vehicle or trackless trolley or move right or

      left upon a highway unless and until such person has exercised due care to

      ascertain that the movement can be made with reasonable safety nor

      without giving an appropriate signal in the manner hereinafter provided.

             When required, a signal of intention to turn or move right or left shall

      be given continuously during not less than the last one hundred feet traveled

      by the vehicle or trackless trolley before turning * * *

      {¶ 16} “It is well established that even without suspicion of criminal activity, a police
                                                                                            -11-


officer may order a motorist who is stopped for a traffic violation to get out of his car.

State v. Evans (1993), 67 Ohio St.3d 405, 407, 618 N.E.2d 162, citing Pennsylvania v.

Mimms (1977), 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331.” State v. Dozier, 187 Ohio

App.3d 804, 2010-Ohio-2918, 933 N.E.2d 1160, ¶ 8 (2d Dist.). As this Court has further

noted:

                * * * [T]he authority to stop an individual does not necessarily equate

         to authority to search the individual and place him or her in the back seat of

         the   cruiser     to   verify   the   individual's    identification. State   v.

         Roberts, Montgomery App. No. 23219, 2010-Ohio-300, ¶ 16, quoting State

         v. Stewart, Montgomery App. No. 19961, 2004-Ohio-1319 ¶ 16. See,

         also, State v. Evans (1993), 67 Ohio St.3d 405, 409 (stating a Mimms order

         does not automatically bestow upon the police officer the authority to

         conduct a pat-down search for weapons). Instead, we must consider

         whether, based on the totality of the circumstances, the officer had a

         reasonable, objective basis to believe that the motorist is armed and

         dangerous before patting him down for weapons in anticipation of placing

         him in the cruiser. Evans, supra, citing State v. Andrews (1991), 57 Ohio

         St.3d 86. See, also, State v. Dozier, Montgomery App. No. 23841, 2010-

         Ohio-2918, ¶ 8.

State v. Lovins, 2d Dist. Montgomery No. 23530, 2010-Ohio-3916, ¶ 12.

         {¶ 17} We have reviewed the video of the traffic stop, and it is consistent with

Christoffers’ testimony at the suppression hearing.           The video reflects that Bizzell

signaled his right hand turn from Nassau Street onto Pierce Street as he came to a stop
                                                                                         -12-


by the stop sign, with Christoffers directly behind him, and we conclude that the traffic

stop was constitutionally valid, since Bizzell clearly violated R.C. 4511.39. Christoffers

then indicated to dispatch that he initiated the traffic stop based upon Bizzell’s signaling

his turn less than 100 feet before turning, that the vehicles were stopped in front of 552

Pierce Street, and that Bizzell’s vehicle had an Indiana license plate. Christoffers then

approached the driver’s side of the vehicle. When asked for his identification, Bizzell

indicated that it was in his other car, and Christoffers then asked him to step out of his

vehicle. Before Bizzell opened the door to his vehicle, Christoffers asked him if he had

“any weapons on you.” As Bizzell opened the door of the vehicle, he asked Christoffers,

“What did I do?” Christoffers advised him of the traffic violation, and he further advised

him that since he did not have any identification, he intended to place him in his cruiser

to ascertain his identity. Christoffers then asked Bizzell again to step out of his vehicle

and face away from him, and as Bizzell did so, Christoffers again asked him if he had any

weapons, at which point Bizzell advised him that there was a gun in the vehicle.

Christoffers asked him where the gun was located, and Bizzell told him it was under the

seat.   Christoffers, alone, after midnight with someone with a hidden weapon, then

placed Bizzell in handcuffs for his safety, and walked him to the cruiser, asking if he had

any knives or needles on his person. The pat down is not visible on the video and

produced no incriminating evidence, and we conclude that it was constitutionally

permissible, given Bizzell’s statement regarding the presence of the weapon. After

placing Bizzell in the cruiser, a second officer arrived, and Christoffers retrieved the

weapon, unloaded it and placed it on the hood of his cruiser. Christoffers then returned

to the vehicle and completed a search thereof. He then returned to his cruiser and read
                                                                                      -13-


Bizzell his rights, ascertaining his understanding of each individual right. Christoffers

testified that Bizzell was coherent and agreed to talk to him. The video corroborates

Christoffers’ testimony, and Bizzell’s assigned errors are accordingly overruled. The

judgment of the trial court is affirmed.

                                           .............

HALL, P.J. and FROELICH, J. concur.

Copies mailed to:

Sarah E. Hutnik
Carlo McGinnis
Hon. Mary K. Huffman
