[Cite as State v. Ward, 2011-Ohio-3183.]
                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO                                    )    CASE NO. 10 CO 28
                                                 )
        PLAINTIFF-APPELLANT                      )
                                                 )
VS.                                              )    OPINION
                                                 )
KIMBERLY R. WARD                                 )
                                                 )
        DEFENDANT-APPELLEE                       )

CHARACTER OF PROCEEDINGS:                             Criminal Appeal from the Court of
                                                      Common Pleas of Columbiana County,
                                                      Ohio
                                                      Case No. 09 CR 214

JUDGMENT:                                             Affirmed.

APPEARANCES:

For Plaintiff-Appellant:                              Atty. Robert Herron
                                                      Columbiana County Prosecutor
                                                      Atty. Tammie M. Jones
                                                      Assistant Prosecuting Attorney
                                                      105 South Market Street
                                                      Lisbon, Ohio 44432

For Defendant-Appellee:                               Atty. Douglas A. King
                                                      Hartford, Dickey & King Co., LPA
                                                      91 West Taggart Street
                                                      P.O. Box 85
                                                      East Palestine, Ohio 44113

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                      Dated: June 16, 2011
                                                                                     -2-


WAITE, P.J.

      {1}     The Appellant in this case is the State of Ohio, appealing the decision

of the Columbiana County Court of Common Pleas to sustain a motion to suppress in

a felony drug case. Appellee was charged with one count of possession of heroin.

The charge arose from a police traffic stop in East Liverpool, Ohio. The defendant,

Kimberly Ward (“Appellee”), had just pulled her vehicle away from the parking lane of

a street in downtown East Liverpool when she was stopped by an East Liverpool

police patrolman. Appellee gave false identification information to the officer and was

ultimately arrested for falsification. Her vehicle was inventoried prior to being towed,

and a substance that appeared to be heroin was discovered in the vehicle, leading to

the felony drug possession charge.

      {2}     Appellee subsequently filed a motion to suppress. At the suppression

hearing, the patrolman stated that he stopped the vehicle for failure to use a turn

signal when leaving a street parking space.       The trial court did not believe the

patrolman’s testimony and ruled that there was no probable cause for the traffic stop.

Appellant contends that the trial court used the wrong standard for determining

whether evidence derived from the traffic stop should be suppressed.          Appellant

argues that the court should have determined whether there was reasonable and

articulable suspicion to make the stop based on the totality of circumstances.

Although Appellant is correct that reasonable articulable suspicion is one standard

used for evaluating the propriety of a traffic stop, courts also apply the probable

cause standard when reviewing pretextual traffic stops. In this case, though, the
                                                                                       -3-

prosecutor informed the court that the matter under review was probable cause, and

the testifying officer himself stated that the sole basis for the stop was an alleged turn

signal violation, thus making probable cause the appropriate standard. It is also clear

that, even if we apply the reasonable articulable suspicion standard, the facts of the

case do not support reversing the trial court’s judgment. The judgment of the trial

court is, therefore, affirmed.

                                     History of the Case

       {3}    On or about May 1, 2009, East Liverpool Patrolman Fred Flati observed

Appellee’s vehicle parked just outside the Town Tavern Bar on Market Street in

downtown East Liverpool. He saw a woman standing next to the passenger window

of the vehicle engaging in what he believed was some type of drug transaction. (Tr.,

p. 8.) Patrolman Flati knew that this was a high drug trafficking area. (Tr., p. 9.)

Patrolman Flati turned his police cruiser around, and as he did so, the pedestrian fled

and Appellee pulled out of the parking space. Patrolman Flati initiated a traffic stop

and asked for Appellee’s identification documents. (Tr., p. 12.) Appellee falsified her

identity, giving a wrong name, date of birth and Social Security number. Upon further

investigation and questioning of the passenger, Patrolman Flati was able to obtain

Appellee’s correct name.         (Tr., p. 14.)   Appellee was arrested for falsification.

Patrolman Flati conducted an inventory of her vehicle prior to having it towed to the

impound lot, and during the inventory search he discovered several packets of heroin

inside a camera case. (Tr., p. 16.) Patrolman Flati did not obtain a warrant to search

the vehicle or have Appellee sign a consent form. (Tr., p. 34.) He relied on the East
                                                                                        -4-

Liverpool Police Department’s policy to inventory towed vehicles for the basis of his

search. (Tr., pp. 16-17.)

       {4}     On October 29, 2009, Appellee was indicted in the Columbiana County

Court of Common Pleas for possession of heroin and possession of clonazepam, in

violation of R.C. 2925.11(A). The heroin charge was a fifth degree felony, and the

second charge was a first degree misdemeanor.

       {5}     On July 2, 2010, Appellee filed a motion to suppress evidence obtained

from the traffic stop.      Appellee argued that there was no probable cause or

reasonable articulable suspicion of criminal activity to justify the traffic stop, and that

the search of the containers in the vehicle could not be justified under the law

governing inventory searches. A suppression hearing took place on August 6, 2010.

Patrolman Flati was the only witness at the hearing.

       {6}     Officer Flati testified that he saw a female pedestrian engaging in what

he suspected was a drug deal with the passenger in Appellee’s vehicle while it was

parked on Market Street in East Liverpool. He described the location as a high drug

trafficking area based on his training and experience. He testified that he turned his

cruiser around to talk to Appellee, and that Appellee had “moved slightly away from

the curb” before stopping to speak to Patrolman Flati. (Tr., p. 12.) Flati testified that

he did not tell the pedestrian to stop, nor did he physically attempt to stop her. (Tr.,

p. 19.) He did not ask about the pedestrian when he spoke to Appellee. (Tr., p. 19.)

There was no mention that he asked Appellee or her passenger about the pedestrian

in his police report. (Tr., p. 19.)
                                                                                    -5-

       {7}    Patrolman Flati gave contradictory testimony about the reasons for the

stop. He initially testified that his suspicions were aroused by the unknown exchange

between the pedestrian and passenger in Appellee’s vehicle, and that he wanted to

further investigate what he had seen. (Tr., pp. 9-10.) On cross-examination, though,

he testified that he stopped the vehicle solely because the driver did not use a turn

signal when leaving its parking space:

       {8}    “Q. And this car was properly parked; is that correct?

       {9}    “A. It was at the time, yes.

       {10}   “Q. And you then effected a stop and ordered these people because

you claim that the car tried to leave without putting a turn signal on from the parking

space, the properly parked parking space?

       {11}   “A. Correct.

       {12}   “Q. And that is what caused you to stop this vehicle?

       {13}   “A. Yes.” (Tr., pp. 19-20.)

       {14}   Officer Flati’s police report does not mention the alleged turn signal

violation, and Appellee was not charged with any traffic violation. (Tr., p. 35.)

       {15}   During cross-examination, the court asked Patrolman Flati a few

questions:

       {16}   “THE COURT: Now help me here. They are pulling away and they’re

going in the direction that the car is pointed in; is that correct?

       {17}   “THE WITNESS: Correct. Yes.

       {18}   “THE COURT: It’s exiting a parking space without using a turn signal?
                                                                                       -6-

        {19}   “THE WITNESS: Yes, sir.

        {20}   “THE COURT: Now, do you make a lot of arrests for that in a year?

        {21}   “THE WITNESS: I write some citations for failure to use turn signals.

        {22}   “THE COURT: In a situation like that where they are leaving a parking

spot?

        {23}   “THE WITNESS: I have in the past. I have in the past. Not a lot, but I

have.

        {24}   “THE COURT: About how long has it been since you issued one of

those?

        {25}   “THE WITNESS: Uh, I don’t recall.

        {26}   “THE COURT: Would it be months –

        {27}   “THE WITNESS: Probably a few years, I would say.” (Tr., pp. 29-30.)

        {28}   On redirect, Patrolman Flati stated that he planned to stop the vehicle

regardless of the turn signal violation simply to check out his suspicions. (Tr., p. 31.)

The patrolman’s police report, and the East Liverpool Police Department’s “towed

and impounded vehicle policy”, were admitted into evidence.

        {29}   The trial court sustained the motion to suppress on August 16, 2010.

The court found the testimony regarding the turn signal violation to be less than

credible because it was not mentioned in the police report and no traffic citation was

issued. (8/16/10 J.E., p. 2.) The court stated that “the testimony that the Defendant

was stopped for a turn signal violation to be less than credible * * *.” (8/16/10 J.E., p.

2.) The trial court found no basis for the traffic stop and sustained the motion to
                                                                                    -7-

suppress.    The court’s judgment entry stated that “this stop was not based on

probable cause and therefore, any and all evidence obtained following the same is

the fruit of an unconstitutional search and seizure.” (8/16/10 J.E., p. 3.) This timely

appeal followed.

                             ASSIGNMENT OF ERROR

      {30}    “THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE BY

APPLYING       THE   INAPPROPRIATE        STANDARD       IN   FINDING    THAT     THE

INVETIGATORY [sic] TRAFFIC STOP WAS UNCONSTITUTIONAL.”

      {31}    This appeal attempts to overturn a trial court’s ruling on a motion to

suppress. Appellate review of a decision on a motion to suppress evidence presents

mixed questions of law and fact. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-

3665, 850 N.E.2d 1168, ¶100. 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, 739

N.E.2d 1249.    “The trier of fact is free to believe or disbelieve all or any of the

testimony.” State v. Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379, ¶45. When an

appellate court reviews a trial court's ruling on a motion to suppress, it must accept

the trial court's findings of fact so long as they are supported by competent, credible

evidence. Roberts at ¶100, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437

N.E.2d 583. The appellate court must then review the application of the law to the

facts de novo. Id., citing State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71,

2003-Ohio-5372, ¶8.
                                                                                      -8-

       {32}   Appellant contends that the standard that a trial court should use in

determining whether a traffic stop is lawful under the Fourth Amendment is whether

the officer had a reasonable and articulable suspicion criminal activity had occurred

or was occurring. Appellant submits that the trial court used the wrong standard

when the judge evaluated the legality of the traffic stop for probable cause, and by

doing so, erroneously determined that the traffic stop violated the Fourth

Amendment. Appellant also asserts that the trial court should not have looked only at

the alleged traffic violation as the basis for the stop. Appellant submits that there was

reasonable and articulable suspicion that a drug exchange had taken place, and that

this should have justified the traffic stop even if there was no probable cause to stop

the vehicle due to a traffic violation.

       {33}   The Fourth Amendment to the United States Constitution provides

protection against unreasonable searches and seizures, and specifically states that

“no Warrants shall issue, but upon probable cause * * *.” Section 14, Article I, Ohio

Constitution offers substantially the same protections. For a search or seizure to be

reasonable under the Fourth Amendment, it must be based upon probable cause and

executed pursuant to a warrant. State v. Moore (2000), 90 Ohio St.3d 47, 49, 734

N.E.2d 804. This requires a two-step analysis. First, there must be probable cause.

If probable cause exists, then a search warrant must be obtained unless an

exception to the warrant requirement applies. If the state fails to satisfy either step,

the evidence seized in the unreasonable search must be suppressed. Id., citing

Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.              It is well
                                                                                       -9-

established that searches conducted without probable cause and a warrant are per

se unreasonable, subject to certain “jealously and carefully drawn” exceptions. State

v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶10, citing Jones v.

United States (1958), 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Coolidge v. New

Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Katz v. United

States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. Probable cause is “

‘a reasonable ground for belief of guilt.’ ” Carroll v. United States (1925), 267 U.S.

132, 161, 45 S.Ct. 280, 69 L.Ed. 543. Probable cause exists if “ ‘there is a fair

probability that contraband or evidence of a crime will be found in a particular place.’ ”

(Emphasis omitted.) State v. Carlson (1995), 102 Ohio App.3d 585, 600, 657 N.E.2d

591, quoting Illinois v. Gates (1983), 462 U.S. 213, 214, 103 S.Ct. 2317, 76 L.Ed.2d

527.   Probable cause must be based upon objective facts that would justify the

issuance of a warrant by a magistrate. State v. Welch (1985), 18 Ohio St.3d 88, 92,

480 N.E.2d 384.

       {34}   The defendant bears the initial burden to demonstrate that a search

was conducted without a warrant. Coolidge at 455; Xenia v. Wallace (1988), 37 Ohio

St.3d 216, 524 N.E.2d 889.       If the defendant demonstrates that the search was

warrantless, the burden then shifts to the government to demonstrate that the search

fell within an exception to the warrant requirement. Id. at 218, citing State v. Kessler

(1978), 53 Ohio St.2d 204, 373 N.E.2d 1252.            The Ohio Supreme Court has

recognized these exceptions to the requirement that a warrant be obtained prior to a

search: (a) a search incident to a lawful arrest; (b) consent signifying waiver of
                                                                                     -10-

constitutional rights; (c) the stop-and-frisk doctrine; (d) hot pursuit; (e) exigent

circumstances; (f) the plain-view doctrine; (g) the automobile exception; and (h) an

administrative search, e.g., an inventory search of an automobile. State v. Akron

Airport Post No. 8975 (1985), 19 Ohio St.3d 49, 51, 19 OBR 42, 482 N.E.2d 606;

Stone v. Stow (1992), 64 Ohio St.3d 156, 164, 593 N.E.2d 294, fn. 4; State v. Moore

(2000), 90 Ohio St.3d 47, 51, 734 N.E.2d 804. There was no question that the traffic

stop and search in this case were conducted without the benefit of a warrant, and the

burden shifted to the state to establish the legality of the warrantless search. In this

case, the state needed to establish the validity of both the initial traffic stop and the

subsequent inventory search of the vehicle (along with the containers in the vehicle),

which resulted in the discovery of narcotics.

       {35}   There are two basic standards applied to determine whether police

have legitimately stopped a vehicle.      First, police may stop a vehicle based on

probable cause that a traffic violation has occurred: “[W]here a police officer stops a

vehicle based on probable cause that a traffic violation has occurred or was

occurring, 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 (1996), 76 Ohio St.3d 3, 11, 665 N.E.2d 1091. This

type of traffic stop is valid “regardless of the officer's underlying subjective intent or

motivation for stopping the vehicle,” i.e., even if the traffic stop was a pretext for

investigating some other suspicious behavior. Id. at 12. Second, police may make
                                                                                    -11-

an investigative stop of a vehicle when they have a “reasonable articulable suspicion”

that criminal activity has occurred. Id.; see, also, Terry v. Ohio (1968), 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889; Delaware v. Prouse (1979), 440 U.S. 648, 663, 99 S.Ct.

1391, 59 L.Ed.2d 660; United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct.

690, 66 L.Ed.2d 621. Thus, an officer who lacks probable cause, but who reasonably

suspects that a particular person's behavior is criminal, may detain a person briefly to

investigate the circumstances that provoked the suspicion. Berkemer v. McCarty

(1984), 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317.

       {36}   Brief investigative stops based on reasonable and articulable suspicion

are typically referred to as Terry stops based on the aforementioned case of Terry v.

Ohio. To support a Terry stop, “the police officer must be able to point to specific and

articulable facts which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.” State v. Bobo (1988), 37 Ohio St.3d 177, 178,

524 N.E.2d 489. “In justifying the particular intrusion, the police officer must be able

to point to specific and articulable facts which would warrant a man of reasonable

caution in the belief that the action taken was appropriate.” State v. Klein (1991), 73

Ohio App.3d 486, 488, 597 N.E.2d 1141.             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 well elude an untrained person.’ ” United

States v. Arvizu (2002), 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740, quoting

Cortez, supra, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621.
                                                                                    -12-

      {37}   Although the probable cause standard is a more stringent standard than

reasonable suspicion, the two standards often exist together when a traffic stop is

made. “[A]n officer who witnesses a traffic violation possesses probable cause, and

a reasonable articulable suspicion, to conduct a traffic stop.” State v. Jenkins, 3d

Dist. No. 14-10-10, 2010-Ohio-5943, ¶12. An officer’s observation that a vehicle

failed to properly use a turn signal constitutes both reasonable suspicion and

probable cause to justify a traffic stop. See State v. McComb, 2d Dist. No. 21963,

2008-Ohio-425; State v. Steen, 9th Dist. No. 21871, 2004-Ohio-2369.

      {38}   Evidence that is directly derived from exploiting an illegal traffic stop or

arrest is inadmissible at trial and must be suppressed. State v. Henderson (1990), 51

Ohio St.3d 54, 56, 554 N.E.2d 104; Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct.

1684, 6 L.Ed.2d 1081.

      {39}   Appellant contends that the initial traffic stop was based on reasonable

and articulable suspicion, and concludes that the trial court should not have relied on

the probable cause standard to make its final determination. As a preliminary matter,

the state appears to have invited any error that may have occurred in the trial court’s

judgment entry with respect to its use of the phrase “probable cause.” The doctrine

of invited error holds that a litigant may not take advantage of an error which he

himself invited or induced. State v. Campbell (2000), 90 Ohio St.3d 320, 324, 738

N.E.2d 1178. At two points during the suppression hearing the prosecuting attorney

specifically stated to the court that the issue being resolved was whether there was

probable cause for the stop:
                                                                                      -13-

       {40}   “THE COURT: All right. Is the State content to begin the evidence?

       {41}   “MS. JONES: Your Honor, as I review the motion, I believe that it sets

forth issues relative to probable cause for the initial approach of the officer and then

the search itself.

       {42}   “MR. HARTFORD: Correct. That’s correct.

       {43}   “MS. JONES: Then I’m ready to proceed with that understanding, your

Honor.”

       {44}   “* * *

       {45}   “MS. JONES: My understanding is that the purpose of this motion is to

challenge the search that occurred - -

       {46}   “MR. HARTFORD: That’s exactly - -

       {47}   “MS. JONES: - - as well as the probable cause for the stop. * * *” (Tr.,

pp. 3, 25.)

       {48}   Furthermore, the state presented no legal theory to the trial court as to

why the motion to suppress should be denied. The state filed no memorandum in

opposition to the motion, and presented no opening or closing argument at the

suppression hearing explaining how the facts or the law supported the state’s

position. If the state had some objection to the trial court determining probable cause

and resolving the case on that basis rather than on reasonable and articulable

suspicion, it should have raised this matter during the trial court proceedings rather

than waiting for this appeal to first raise its objection. This is a particularly egregious
                                                                                     -14-

failure considering that the prosecutor instructed the court at the suppression hearing

that the matter under review was probable cause.

       {49}   Although the state would like us to focus primarily on a possible error of

law in this case (and as will be explained below, it does not appear that any error of

law took place), the outcome of this appeal is ultimately dependent on the trial court’s

interpretation of the facts and circumstances of the traffic stop. Since we review the

court’s judgment as to the facts for abuse of discretion, and because we defer to the

trial court’s factual determinations in resolving a suppression motion, we are not at

liberty to simply reinterpret the evidence as characterized by Appellant. We may not

overrule a trial court’s determination on this issue simply because we would not have

similarly ruled. Just as we defer to the trial court’s interpretation of the facts when it

overrules a motion to suppress, we also defer to the trial court’s credibility

determinations when it grants a motion to suppress. We have noted that the state’s

only witness gave contradictory testimony regarding the basis for making the traffic

stop. Part of the testimony indicates that the officer was curious about a suspicious

exchange between the passenger in Appellee’s vehicle and a passing pedestrian.

Other parts of his testimony unequivocally state that the reason he stopped

Appellee’s vehicle was because of an alleged traffic violation.          This conflicting

testimony raised credibility issues with the officer’s testimony. It is quite clear from

the record that the trial court did not believe the officer, and without the officer’s

evidence there is no factual basis on which to rule in the state’s favor in this appeal.
                                                                                     -15-

       {50}   Appellant correctly states that the propriety of an investigative stop

must be viewed in light of the totality of the surrounding circumstances. State v.

Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶7. Appellant would

like us to focus our attention on the suspicious circumstances surrounding the

presence of the pedestrian, along with the vague exchange or transaction that may

have taken place at the passenger side of the vehicle, to conclude that there was

reasonable articulable suspicion to make a traffic stop. We must obviously overlook

other aspects of the totality of the circumstances to draw this conclusion. We must

overlook the fact that this mystery pedestrian was not identified, nor did Patrolman

Flati ever attempt to identify her, detain her, find her or talk to her. (Tr., p. 19.) We

must also overlook the absolute lack of particulars about the supposed transaction.

Although the state points out that the area where the alleged exchange took place

was known for drug trafficking, this is only one fact among many that is reviewed

when ruling on the propriety of a Terry stop in situations where the stop occurred in a

high drug trafficking area. In State v. Bobo, for example, the Ohio Supreme Court

found the following facts to be significant in addition to the reputation of the area as a

high crime area: that the stop was late at night; that the officer observed furtive

motions and gestures in that Bobo was “popping up and then ducking down or

leaning forward”; and that the officer had training and experience in investigating

drug transactions. Bobo, 37 Ohio St.3d at 179-180, 524 N.E.2d 489.

       {51}   Other types of facts that are important in reviewing Terry stops in high

drug trafficking areas are whether there was money changing hands, or whether the
                                                                                    -16-

officer saw drugs or other contraband being exchanged.             See, e.g., State v.

Delagraza (2001), 144 Ohio App.3d 474, 479, 760 N.E.2d 860.             It may also be

significant whether the vehicle was parked illegally or in such a way as to conceal it

from view. State v. Hall (Mar. 24, 1994), 8th Dist. No. 64887; State v. McClendon

(Dec. 8, 2009), 10th Dist. No. 09AP-554.

       {52}   In the instant case, there was no mention that the supposed exchange

was somehow furtive or hidden. There was no mention of the officer seeing money

or drugs being exchanged, but only that he thought some type of transaction took

place. The stop took place in the middle of the afternoon, not late at night. The

vehicle was legally parked on a public street. These are all facts that support the trial

court’s decision to grant the motion to suppress.

       {53}   The state emphasizes that, according to Patrolman Flati, the pedestrian

left abruptly or hurriedly when she spotted the police cruiser, but it is not clear how

this is relevant if there was no other indication of criminal activity. The patrolman was

not concerned enough about the pedestrian to ask her to halt, nor did he attempt to

discover who she was or question her. (Tr., p. 19.) It is not considered to be criminal

activity, in and of itself, to turn and walk away at the sight of a policeman or a police

cruiser, so this particular fact may not justify a Terry stop.        United States v.

Mendenhall (1980), 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497.

       {54}   Looking at the totality of the circumstances of this case (other than the

evidence regarding the turn signal violation), and even assuming everything in

Patrolman Flati’s testimony is true, this alleged investigative stop appears
                                                                                       -17-

problematical to justify. Even if the police officer was experienced in dealing with

drug crimes, and if the pedestrian had some type of exchange with the automobile

passenger, and if the area where the stop was made was a high crime area, there

are several other factors that weigh against legitimizing this particular stop.

       {55}   In this specific case, though, we do not have to engage in assumptions

about whether the trial court believed the police officer. The record itself establishes

that the trial court determined the officer was not credible and was not believed. The

court’s judgment entry directly states that the officer’s testimony was “less than

credible”. Patrolman Flati gave conflicting testimony in this case about the reason for

the traffic stop, which undermines his credibility. The trial court sifted through the

contradictory testimony and determined how much of it, if any, was believable. It is

up to the trier of fact to determine credibility, and our review consists only in finding

some competent and credible evidence supporting the trial court’s judgment.

Roberts, supra, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶100. The

court apparently had difficulty accepting that a traffic violation occurred because it

was not in the patrolman’s report and no ticket had been issued. The officer also

stated, at least in part of his testimony, that the sole basis for the stop was the

alleged traffic violation. The record here supports the factual basis that underlies the

trial court’s decision, and thus, there is no error in the court’s legal conclusion that the

sole basis for the stop was an alleged traffic violation, and that there was no probable

cause that the traffic violation occurred.
                                                                                   -18-

      {56}   Finally, turning to the use of the phrase “probable cause” in the trial

court’s judgment entry, it does appear to be the correct standard based on the issue

that was presented to the court. We have noted that the prosecutor indicated to the

court that issue under review was probable cause. We reiterate that, in many traffic

cases such as a turn signal violation, probable cause and reasonable suspicion

amount to the same thing. We have reviewed Patrolman Flati’s testimony in which

he himself stated that he only initiated the traffic stop due to the alleged turn signal

violation. We have referred to Dayton v. Erickson, which sets forth the probable

cause standard for evaluating whether a pretextual traffic stop is valid. It does not

appear from the context of this case that the trial court was required to engage in any

further analysis of reasonable and articulable suspicion because the parties and the

arresting officer narrowed the issue to whether there was probable cause that a traffic

violation had occurred.

      {57}   Without some valid basis for the traffic stop, there was no basis to

detain or arrest Appellee and no basis to tow her vehicle. Hence, there was no basis

to conduct an inventory search of the vehicle. It is unclear whether the inventory

search itself would survive constitutional scrutiny, particularly since it was conducted

at the scene of the arrest rather than after the vehicle had been secured and towed,

but we need not deal with this issue based on our decision to affirm the trial court’s

determination that the initial stop was invalid. The trial court did not believe the

state’s witness, and a proper legal basis for sustaining the motion to suppress was
                                                                                       -19-

stated by the trial court. For these reasons, we overrule Appellant’s sole assignment

of error.

                                       Conclusion

       {58}   In this prosecutor’s appeal, the state argues that the trial court used the

wrong legal standard in sustaining a motion to suppress involving a traffic stop. We

do not agree with Appellant. The state indicated to the court that probable cause

was the relevant issue, and under Dayton v. Erickson, the trial court is to determine

whether probable cause exists to support a pretextual traffic stop. The arresting

officer testified that the basis for the stop was the traffic violation, and the trial court

did not believe the officer’s testimony. Accepting the trial court’s factual finding, and

applying the relevant law, we find no reversible error in the trial court’s decision to

sustain the motion to suppress. Appellant’s sole assignment of error is overruled,

and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

Vukovich, J., concurs.
