[Cite as State v. McDonald, 2017-Ohio-9250.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY



STATE OF OHIO,
                                                         CASE NO. 13-17-27
       PLAINTIFF-APPELLEE,

       v.

CORY D. MCDONALD,                                        OPINION

       DEFENDANT-APPELLANT.


                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 17 CR 0020

                                     Judgment Affirmed

                          Date of Decision: December 26, 2017



APPEARANCES:

        Danielle C. Kulik for Appellant

        Stephanie J. Kiser for Appellee
Case No. 13-17-27


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Cory D. McDonald (“McDonald”) appeals the

judgment of the Seneca County Court of Common Pleas for denying his motion to

suppress. For the reasons set forth below, the judgment of the lower court is

affirmed.

                           Facts and Procedural History

       {¶2} Patrolman Brett Bethel (“Bethel”) has worked for the Fostoria Police

Department since 2007. Tr. 4. On January 19, 2017, he was preparing to go on his

patrol when a detective reported to him that McDonald was suspected of

transporting narcotics. Tr. 6. Bethel was familiar with McDonald and had cited

him in the past for driving while his license was suspended. Tr. 14. The officers

who had been on the afternoon patrol shift also told Bethel that McDonald had been

spotted driving around town earlier that day in his regular vehicle. Tr. 10. In

response to this information, Bethel had dispatch check McDonald’s driving status

in the Law Enforcement Automated Data System (“LEADS”). Tr. 6. Bethel

consequently discovered that McDonald did not have a valid license at that time.

Tr. 6. Later, during his shift, Bethel was parked in a lot by the side of the road. Tr.

7. In between 11:30 and 11:45 p.m., Bethel saw McDonald drive past him in a blue

sedan. Tr. 14, 15. McDonald was the sole occupant of the vehicle. Tr. 6.

       {¶3} Bethel testified that he was able to identify McDonald without difficulty

because he had encountered McDonald “numerous times throughout [his] career in

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Fostoria, specifically [McDonald] driving that specific vehicle.” Tr. 7. McDonald

also wore “distinctive eyeglasses,” which Bethel could see from his vantage point

on the side of the road. Tr. 7. Knowing that McDonald did not have a valid driver’s

license, Bethel decided to initiate a stop of McDonald’s vehicle. Tr. 8. As the result

of this stop, McDonald was found to be in possession of contraband and was

arrested. Doc. 2.

       {¶4} On February 22, 2017, McDonald was charged with failure to comply

with an order or signal of a police officer in violation of R.C. 2921.331(B),

(C)(5)(a)(ii) and with possession of cocaine in violation of R.C. 2925.11(A),

(C)(4)(a). Doc. 2. On March 1, 2017, McDonald filed a motion to suppress. Doc.

20. The trial court held a hearing on this motion on April 27, 2017. Tr. 1. Bethel

testified as to his observations on the night of January 19, 2017, and stated that the

basis of the stop of McDonald’s vehicle was the fact that McDonald was driving

without a valid driver’s license. Tr. 5-8, 12.

       {¶5} On cross examination, Bethel admitted that his police report

characterized his request for dispatch to check McDonald’s driver status as

“random.” Tr. 11. He indicated that this meant that this check was not part of work

done for the drug task force. Tr. 11-12. On recross examination, the Defense again

questioned Bethel about his use of the word “random” in the police report. Tr. 20.

This exchange occurred as followed:



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      Q. Random to me means like you picked his name out of a hat.
      You say—you said to the prosecutor this was a random running.
      How did you choose him to run then?

      A. Because I was informed by—I was given intel by the drug
      detective as well as the road units from afternoon shift, but it was
      not for anything specific at that time, just be on the lookout, he’s
      driving without a license.

Tr. 20. In closing arguments, the Defense argued that this was a random check of

McDonald’s driving status that was conducted in violation of the Fourth

Amendment. Tr. 23.

      {¶6} On May 10, 2017, the trial court overruled McDonald’s motion to

suppress. Doc. 41. The trial court found that the traffic stop was based upon

probable cause because Bethel knew that McDonald did not have a valid driver’s

license at the time that he saw McDonald driving. Doc. 41. On August 17, 2017,

McDonald entered a plea of no contest to three charges against him: one count of

failure to comply with an order or signal of a police officer in violation of R.C.

2921.331(B), (C)(5)(a)(ii); one count of possession of cocaine in violation of R.C.

2925.11(A), (C)(4)(b); and one count of tampering with evidence in violation of

R.C. 2921.12(A)(1), (B). Doc. 47, 48. McDonald was sentenced on September 8,

2017. Doc. 50. McDonald then filed his notice of appeal on September 14, 2017.

Doc. 52.




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                                Assignment of Error

       {¶7} In this appeal, McDonald challenges the trial court’s decision to deny

his motion to suppress and raises one assignment of error, which reads as follows:

       A trial court commits prejudicial error when an officer admits
       that he was looking for a reason to stop an individual in lieu of
       obtaining a search warrant.

In this assignment of error, McDonald puts forward three arguments. First, he

alleges that Bethel used LEADS inappropriately to run a driver’s license status

check in this case. Second, he points to a portion of Bethel’s police report that

characterizes the driver’s license status check in this case as “random.” He claims

that such random driver’s license checks are not permitted under the Fourth

Amendment. Third, McDonald argues that the stop of his car was pretextual as he

believes the only purpose of stopping his vehicle was to determine whether he was

transporting narcotics. For these reasons, McDonald requests that this Court reverse

the trial court’s decision to overrule his motion to suppress.

                                   Legal Standard

       {¶8} The Fourth Amendment to the United States Constitution guarantees

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures * * *.” Fourth Amendment, United

States Constitution. The Ohio Constitution offers a parallel provision to the Fourth

Amendment of the Federal Constitution that has been held to afford the same level

of protection as the United States Constitution. State v. Hoffman, 141 Ohio St.3d

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428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette, 80 Ohio St.3d

234, 685 N.E.2d 762 (1997). “The primary purpose of the Fourth Amendment is to

impose a standard of reasonableness upon the exercise of discretion by law

enforcement officers in order to ‘safeguard the privacy and security of individuals

against arbitrary [governmental] invasions.’” State v. Carlson, 102 Ohio App.3d

585, 592, 657 N.E.2d 591, 592 (9th Dist.1995), quoting Delaware v. Prouse, 440

U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “The Fourth Amendment does not

proscribe all state-initiated searches and seizures; it merely proscribes those which

are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114

L.Ed.2d 297 (1991), citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967). Thus, “[t]he touchstone of the Fourth Amendment is

reasonableness.” Id.

       {¶9} A reviewing court must first determine whether a search or seizure

within the meaning of the Fourth Amendment occurred. “In determining whether a

particular encounter constitutes a ‘seizure,’ and thus implicates the Fourth

Amendment, the question is whether, in view of all the circumstances surrounding

the encounter, a reasonable person would believe he or she was ‘not free to leave,’

or ‘not free to decline the officers’ requests or otherwise to terminate the

encounter.’” State v. Westover, 2014-Ohio-1959, 10 N.E.3d 211 (10th Dist.),

quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d

497 (1980) and Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d

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389 (1991). Accordingly, a police stop of a motor vehicle and the resulting

detention of its occupants has been held to be a seizure under the Fourth

Amendment. Prouse at 653, citing United States v. Martinez-Fuerte, 428 U.S. 543,

556-558, 96 S.Ct. 3074, 3082-3083, 49 L.Ed.2d 1116 (1976); United States v.

Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).

       {¶10} Under the Fourth Amendment, law enforcement can conduct two

types of constitutionally permissible traffic stops: (1) investigatory traffic stops and

(2) traffic stops based on probable cause. State v. Andrews, 57 Ohio St.3d 86, 565

N.E.2d 1271 (1991); State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894

N.E.2d 1204, ¶ 22. For an investigatory traffic stop to be valid, law enforcement

must have a reasonable and articulable suspicion, under the totality of the

circumstances, that a crime has been or is being committed. State v. Shaffer, 2013-

Ohio-3581, 4 N.E.3d 400, ¶ 18 (3d Dist.), quoting State v. Bobo, 37 Ohio St.3d 177,

178, 524 N.E.2d 489 (1988), quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). For the second type of traffic stop, law enforcement

must have probable cause. “Probable cause ‘means less than evidence which would

justify condemnation,’ so that only the ‘probability, and not a prima facie showing

of criminal activity is the standard of probable cause.’” State v. Duvernay, 2017-

Ohio-4219, --- N.E.3d ---, ¶ 27 (3d Dist.), quoting State v. Gonzales, 3d Dist. Seneca

Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, ¶ 18. “This Court has previously

recognized that probable cause for a traffic stop is provided when an officer had

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probable cause to believe that a traffic violation has occurred or was occurring.”

State v. Blandin, 3d Dist. Allen No. 1-06-107, 2007-Ohio-6418, ¶ 43, citing State v.

Phillips, 3rd Dist. No. 8-04-25, 2006-Ohio-6338, at ¶ 18 (rev’d on other grounds by

State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 1).

       {¶11} Random or pretextual traffic stops of vehicles that lack the minimum

objective justification of reasonable suspicion are not permissible under the Fourth

Amendment. State v. Chatton, 11 Ohio St.3d 59, 61, 463 N.E.2d 1237, 1239 (1984)

(holding a random stop without reasonable suspicion is impermissible to “to check

the validity of the operator’s driver’s license and the vehicle’s registration.”), citing

Prouse, supra. If the officer does make a traffic stop with the required level of

objective justification,

       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.

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

       {¶12} “Under appellate review, motions to suppress present ‘mixed

questions of law and fact.’” State v. Kerr, 3d Dist. Allen No. 1-17-01, 2017-Ohio-

8516, ¶ 18, quoting State v. Yeaples, 180 Ohio App.3d 720, 2009-Ohio-184, 907

N.E.2d 333, ¶ 20 (3d Dist.).

       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.
       Consequently, an appellate court must accept the trial court's

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       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.

(Citations omitted.) State v. James, 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d

Dist.), quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8.

                                  Legal Analysis

       {¶13} In this appeal, the Defense makes three key assertions. We will

address each in turn. First, the Defense argues that Bethel inappropriately accessed

McDonald’s driver’s license status in LEADS. Unauthorized use of LEADS is

prohibited under Ohio law. R.C. 2913.04(C). “Police officers may only run queries

and use the information for a legitimate law enforcement purpose.” State v. Moning,

1st Dist. Hamilton No. C-010315, 2002-Ohio-5097, ¶ 2. In this case, Bethel’s

testimony makes clear that his LEADS check on McDonald’s driver’s license status

was for a “valid law enforcement purpose.” State v. Garn, 2017-Ohio-2969, ---

N.E.3d ---, ¶ 43 (5th Dist.). Bethel was informed by a detective that McDonald was

under investigation for drug trafficking and that McDonald had been seen driving

around the area during the previous patrol shift. Tr. 6. In response, Bethel, who

had cited McDonald in the past for driving while his license was suspended,

investigated McDonald’s driver’s license status. This was a legitimate use of

LEADS as Bethel was using law enforcement resources for the purpose of

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furthering the objective of law enforcement. For this reason, Bethel’s use of

LEADS was not inappropriate as the appellant alleges.

         {¶14} Second, the Defense argues that the driver’s license status check was

random and, therefore, impermissible under Delaware v. Prouse, supra. In support

of this argument, the Defense points to Bethel’s police report, which characterized

the driver’s status check as “random.”1 In making this assertion, the appellant errs

by equating a driver’s license status check in LEADS with the traffic stop of

McDonald’s vehicle. Under Prouse, law enforcement is not permitted to make

random traffic stops without reasonable suspicion for the purpose of checking

whether the driver is properly licensed. Id. at 657. In this case, Bethel did not make

a random traffic stop. Rather, Bethel had probable cause to believe that McDonald

was committing a traffic violation because, at the time of the traffic stop, Bethel had

actual knowledge that McDonald was operating a motor vehicle without a valid

driver’s license.

         {¶15} Third, the Defense argues that this traffic stop was a pretext for

investigating whether McDonald was involved in the transportation of illegal

narcotics and was, therefore, impermissible.                     In this case, Bethel knew who

McDonald was and what type of vehicle McDonald drove. On the night of January



1
  Bethel’s testimony at the suppression hearing indicates that he characterized this driver’s license status
check as “random” because it was not part of a systematic examination of driver’s licenses or performed by
the drug task force agent who was assigned to the formal investigation into McDonald’s suspected drug
trafficking activities. Tr. 6, 11. Bethel, however, did not examine McDonald’s driver’s license status in the
absence of any rationale or through a process of total coincidence.

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19, 2017, Bethel saw McDonald’s car passing his patrol car and was able to identify

McDonald as the driver of that vehicle. Since Bethel knew that McDonald did not

have a valid driver’s license, he knew that McDonald was committing a traffic

violation. Bethel’s stop was not, therefore, pretextual as he performed a traffic stop

to investigate criminal behavior that he had witnessed. Even if Bethel suspected

that McDonald was in the process of committing other crimes, these subjective

beliefs do not negate the fact that Bethel was undertaking, at the time he initiated

this traffic stop, an objectively valid investigation into criminal activity that he had

observed firsthand.    For these reasons, we find that this traffic stop was not

unreasonable and was performed in compliance with the dictates of the Fourth

Amendment.

                                     Conclusion

       {¶16} After examining the facts in the record, we find that the trial court did

not err in denying McDonald’s motion to suppress.            Thus, McDonald’s sole

assignment of error is overruled. Having found no error prejudicial to the appellant

in the particulars assigned and argued, the judgment of the Court of Common Pleas

of Seneca County is affirmed.

                                                                  Judgment Affirmed

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

/hls



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