       [Cite as State v. Lattimore, 2011-Ohio-2863.]
               IN THE COURT OF APPEALS
           FIRST APPELLATE DISTRICT OF OHIO
                HAMILTON COUNTY, OHIO



STATE OF OHIO,                                   :     APPEAL NO. C-100675
                                                       TRIAL NO. B-1001541
  Plaintiff-Appellee,                            :
                                                       D E C I S I O N.
 vs.                                             :

MARCIANO LATTIMORE,                              :

  Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 15, 2011


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Judge.

           {¶1}   Marciano Lattimore appeals from his convictions on single counts of

carrying concealed weapons, having weapons while under disability, and failing to

comply with an order or signal of a police officer, and two counts of felonious assault

with firearm specifications. For the following reasons, we affirm the judgment of the

trial court.

           {¶2}   On March 7, 2010, two Cincinnati police officers observed Lattimore

pull his vehicle away from a curb without using a turn signal, a violation of Cincinnati

Municipal Code 506-25. The officers pursued Lattimore to stop him for the minor

traffic offense. According to one of the officers, after Lattimore pulled into an

apartment parking lot, both Lattimore and his passenger “immediately went for the

floorboards of the car like they were reaching for something.”1 The officers reacted by

exiting from their cruiser, drawing their guns, and ordering the two men to put their

hands up. But Lattimore was undeterred. He put his vehicle into reverse and rammed

the police cruiser, narrowly missing one of the officers. Lattimore then turned the car

around and drove toward the other officer and hit him in the leg. After Lattimore

crashed his vehicle into a light post and sign, he and his passenger fled the scene on

foot. They were arrested about a minute and a half later.

           {¶3}   According to Lattimore’s arresting officer, “[t]here were officers that

went to secure the car. There were two firearms recovered loaded right where the

defendant and passenger were reaching for.”2 Lattimore moved to suppress this

evidence, but the trial court denied his motion. Upon entering pleas of no contest,

Lattimore was convicted as charged. He now appeals, raising two assignments of error.


1   T.p. 10.
2   T.p. 15.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}     In his first assignment of error, Lattimore asserts that the trial court

erred in denying his motion to suppress. He argues that the traffic stop violated his

constitutional right to remain free from unreasonable searches and seizures,3 and

therefore, the firearms subsequently discovered in his vehicle were inadmissible as

“fruit of the poisonous tree.”4 Lattimore points to the arresting officer’s testimony that

the police had initially followed him because his vehicle had a California license plate.

He also contends in his appellate brief that the traffic offense in this case “is rarely if

ever utilized, thus making the initial stop nothing more than a pretext to look for

contraband or weapons.” We are not persuaded.

       {¶5}     The Ohio Supreme Court held in Dayton v. Erickson5 that “so long as

the officer has probable cause to believe that a traffic violation has occurred or was

occurring, the resulting stop is not unlawful and does not violate the Fourth

Amendment.” Thus, it is “irrelevant what else the officer knew or suspected about the

traffic violator at the time of the stop. It is also irrelevant whether the stop in question is

sufficiently ordinary or routine according to the general practice of the police

department or the particular officer making the stop.”6 In this case, the officers initiated

the traffic stop only after they observed Lattimore violate the Cincinnati Municipal

Code. Accordingly, the traffic stop passed constitutional muster.

       {¶6}     Lattimore also argues that even if the traffic stop was legal, the

subsequent search of his vehicle was an impermissible search incident to arrest. But

because he did not raise this issue before the trial court, he has waived it on appeal.




3  Fourth Amendment to the United States Constitution; Section 14, Article I of the Ohio
Constitution.
4 See State v. Smith, 163 Ohio App.3d 567, 2005-Ohio-5204, 839 N.E.2d 451, at ¶23, quoting
Nardone v. United States (1939), 308 U.S. 338, 60 S.Ct. 266.
5 76 Ohio St.3d 3, 9, 1996-Ohio-431, 665 N.E.2d 1091.
6 Id. at 10.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



        {¶7}     The Ohio Supreme Court held in Xenia v. Wallace7 that “to suppress

evidence obtained pursuant to a warrantless search or seizure, the defendant must

(1) demonstrate the lack of a warrant, and (2) raise the grounds upon which the validity

of the search or seizure is challenged in such a manner as to give the prosecutor notice

of the basis for the challenge.” We do not expect the state to anticipate the specific legal

and factual grounds upon which the defendant seeks to suppress evidence, and

therefore, when a defendant fails to adequately raise the basis of his challenge before

the trial court, he or she waives that issue on appeal.8

        {¶8}     The Second Appellate District considered this issue in the similar case

of State v. McKee.9 There, a police officer stopped McKee in his car, believing that he

had just participated in a drug transaction. After McKee appeared to reach for

something near the door panel, the officer, fearful that he might be retrieving a weapon,

opened the car door and ordered McKee to exit from the vehicle. When the officer

opened the door, he saw marijuana inside. After handcuffing McKee, the officer

returned to the car to retrieve the marijuana and noticed two Vicodin pills where

McKee had been reaching. McKee moved to suppress the drugs, arguing that the traffic

stop was illegal. The trial court denied his motion. On appeal, McKee again contested

the legality of the traffic stop, and he also challenged the subsequent warrantless search

of the car. The appellate court held that McKee had forfeited his right to challenge the

search of the car because he had not raised that issue before the trial court. The court

reasoned that by failing to raise that argument with particularity, McKee had deprived

the state of an opportunity to present evidence to justify the search.10


7 (1988), 37 Ohio St.3d 216, 219, 524 N.E.2d 889. See also Crim.R. 47 (requiring a motion to
“state with particularity the grounds upon which it is made”).
8 Xenia v. Wallace, supra, at fn. 7.
9 2nd Dist. No. 22565, 2008-Ohio-5464.
10 Id. at ¶19. See also State v. Carpenter (Apr. 8, 1998), 9th Dist. No. 2667-M (holding that where
a defendant, in his motion to suppress, questioned the legality of the detention of his vehicle after


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                        OHIO FIRST DISTRICT COURT OF APPEALS



        {¶9}      In this case, Lattimore failed to contest the legality of the search of his

vehicle apart from the legality of the traffic stop itself. Therefore, he cannot raise that

issue before this court. We overrule Lattimore’s first assignment of error.

        {¶10}     In his second assignment of error, Lattimore asserts that the trial court

erred in not ordering and relying upon a presentence investigation report before

sentencing him. We disagree.

        {¶11}     Crim.R. 32.2 provides that in felony cases, a sentencing court shall

“order a presentence investigation and report before imposing community control

sanctions or granting probation.” This rule requires a presentence investigation only as

a prerequisite to granting community control sanctions or probation, “and not as a

prerequisite to all sentencing proceedings.”11 In this case, the trial court imposed a

prison term, not community control. Therefore, the court was not required to order a

presentence investigation report.12 Moreover, the record reflects that when the trial

court proceeded to sentence Lattimore immediately after his pleas of no contest, he did

not request a presentence investigation. Any error is, therefore, waived.13 Accordingly,

we overrule Lattimore’s second assignment of error.

        {¶12}     The judgment of the trial court is affirmed.

                                                                              Judgment affirmed.

D INKELACKER , P.J., and H ILDEBRANDT , J., concur.


Please Note:
        The court has recorded its own entry this date.




a traffic stop, a drug sniff by the officer’s dog, the transportation of the vehicle back to the patrol
post, and the initial search of the trunk, but not a subsequent inventory search, the defendant had
waived the issue of the legality of the inventory search on appeal).
11 State v. Garrison (1997), 123 Ohio App.3d 11, 16, 702 N.E.2d 1222.
12 State v. Sawyer, 1st Dist. No. C-080433, 2010-Ohio-1990, at ¶10.
13 See State v. Toney, 5th Dist. No. 01-CA-004, 2001-Ohio-1959.




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