[Cite as State v. Hawkins, 2018-Ohio-1983.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                              FAYETTE COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :      CASE NO. CA2017-07-013

                                                    :           OPINION
    - vs -                                                       5/21/2018
                                                    :

JUSTIN HAWKINS,                                     :

        Defendant-Appellant.                        :



      CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                           Case No. CRI20160145



Jess C. Weade, Fayette County Prosecuting Attorney, John M. Scott, Jr., 110 East Court
Street, Washington C.H., Ohio 43160, for plaintiff-appellee

Steven H. Eckstein, 1208 Bramble Avenue, Washington C.H., Ohio 43160, for defendant-
appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Justin Hawkins, appeals from his conviction for the failure

to comply with an order or signal of a police officer, arguing the Fayette County Court of

Common Pleas erred when it denied his motion to suppress. For the reasons stated below,

we affirm the trial court's denial of appellant's motion to suppress and uphold his conviction.

        {¶ 2} At approximately 3:00 a.m. on May 20, 2016, Patrolman Jeffery Heinz, a 14-
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year veteran police officer with the city of Washington Court House, was finishing up a traffic

stop on Draper Street when a black GMC SUV driven by appellant passed his patrol car.

Heinz's onboard license plate reader captured the license plate of the vehicle, and Heinz ran

the license plate number through dispatch to obtain the vehicle's registration information.

Heinz was advised that the license plate was registered to a 2001 white GMC SUV. Heinz

quickly concluded his original traffic stop before locating the black GMC SUV and pulling it

over. Heinz initiated the traffic stop of the SUV because he was concerned that the vehicle

might have been stolen or had a "fictitious registration."

       {¶ 3} After stopping the SUV, Heinz explained to appellant that the color discrepancy

was the reason for the stop and asked appellant for his license, registration, and proof of

insurance. Appellant did not have any identification on him. While obtaining appellant's

personal information, Heinz was able to verify the last six numbers of the GMC's VIN by

providing the numbers to dispatch, who verified that the numbers matched the records of the

Bureau of Motor Vehicles ("BMV").

       {¶ 4} Heinz returned to his patrol car to write appellant a warning and to run the

social security number appellant provided. The social security number belonged to a

different individual. Heinz again approached appellant's vehicle and verified appellant's

name, date of birth, and his social security number. Although Heinz instructed appellant to

"sit tight" while Heinz ran the second social security number, appellant began to slowly drive

away. Heinz followed in his patrol car.

       {¶ 5} While Heinz followed appellant's vehicle, he ran the second social security

number provided by appellant. This number also belonged to someone other than appellant.

Heinz then ran appellant's name and date of birth through dispatch. He was advised that

appellant did not have a valid driver's license and had a warrant for his arrest out of Delaware

County. Heinz activated his patrol car's lights and sirens, and appellant pulled over the SUV
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he was operating. However, after Heinz informed appellant there was a warrant out for his

arrest, appellant "gunned the engine and took off at a rapid rate." Heinz called for assistance

and set off in pursuit of appellant, with his vehicle's lights and sirens activated.

       {¶ 6} After nearly hitting a police cruiser, appellant veered off the road and drove

through yards before striking a bush or a small tree. Appellant then abandoned his vehicle

and fled on foot. He was apprehended by Heinz and arrested. Appellant's vehicle was

inventoried, and two credit cards were found in the glovebox of the SUV. The credit cards

were not in appellant's name and had previously been reported stolen.

       {¶ 7} On June 3, 2016, appellant was indicted on two counts of receiving stolen

property in violation of R.C. 2913.51(A) and (C), felonies of the fifth degree, and one count of

failing to comply with an order or signal of a police officer in violation of R.C. 2921.331(B) and

(C)(5)(a)(ii), a felony of the third degree as appellant's operation of the motor vehicle caused

a substantial risk of serious physical harm to persons or property. Appellant moved to

suppress all evidence relating to his traffic stop on the basis that Heinz "lacked reasonable

and articulable suspicion to make an investigatory stop."            Appellant contended the

"mismatch" between the SUV's color and the color listed on the vehicle's registration did not

provide reasonable suspicion to justify the stop.

       {¶ 8} The only witness to testify at the hearing on appellant's motion was Heinz, who

testified as follows regarding the traffic stop:

              [Prosecutor]: What if any concern to you have that a plate [sic],
              cause it sounds like it matched the type of vehicle, but it didn't
              match the color of the vehicle. What reason would you have for
              any concern?

              Heinz: Yeah typically with my, with my experience when subjects
              will steal a vehicle and that is why BMV started implementing the
              colors is, in years past somebody would steal a vehicle.

              ***


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In years past, with my experience, if someone would steal a
vehicle, they would just go through a parking lot anywhere and
find a vehicle that would match the vehicle in which they were
driving. Throw that [plate] on there and then drive around.

[Prosecutor]: And have you had that experience personally with
vehicles that have been stolen in and around Washington Court
House?

Heinz: Me personally, no. However, in our city, yes. We have
license plates [that] have been taken off and done that, yes.

***

[Defense Counsel]: [You] talked a little bit about your experience
investigating. How many car thefts have you investigated in your
career?

Heinz: Car thefts?

***

I can't put a number, but it's been quite a few.

[Defense Counsel]: As the, have you ever investigated them, or
where you the officer on the scene or how did it, how did that
work?

Heinz: I have both had investigations of vehicle thefts [sic]. I
have also had recovery of stolen vehicles and I have also had
recovery of stolen license plates as well.

[Defense Counsel]: You said you've never experienced a
situation like this. Where a, where as you said, where a plate
may have been switched from a vehicle?

Heinz: Me personally?

[Defense Counsel]: Yes.

Heinz: No.

[Defense Counsel]: Okay.

Heinz: But yes, it is done.

***
[Defense Counsel]: [J]ust for clarification purposes, the only
reason that [appellant] was stopped was due to the color of the

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               vehicle not matching registration?

               Heinz: The, the vehicle did not match the vehicle [sic]. Which at
               the time I believed was [a] fictitious registration.

               [Defense Counsel]: What I asked was the sole reason you
               stopped Mr. Hawkins was because the color of the vehicle did not
               match the color that you were told by a dispatcher that the vehicle
               should have been on the registration?

               Heinz: That would be correct.

       {¶ 9} When questioned about whether driving a vehicle that is a different color than

the color listed on the vehicle's registration is, "in and of itself," a crime, Heinz initially testified

he did not know. However, he then clarified that "[w]e have been told by our prosecutors yes,

it is. It is. However, we do not charge for the color discrepancy." Heinz testified that a

person could, however, be charged with "fictitious registration because the colors [do] not

match."

       {¶ 10} After considering Heinz's testimony, the trial court denied appellant's motion to

suppress, stating that there was "nothing unreasonable or constitutionally infirm with the

conduct of Officer Heinz in this case." The court found "reasonable and articulable suspicion

sufficient to initiate the initial detention * * * to determine the validity of the * * * registration

issue that was raised when * * * he ran the registration through the dispatcher and was

notified that it was to a white vehicle."

       {¶ 11} Following the denial of his motion to suppress, appellant was tried to a jury.

Heinz was the sole witness to testify at trial. Following his testimony, appellant moved for

acquittal pursuant to Crim.R. 29, and his motion was denied. The matter was submitted to

the jury, who acquitted appellant of both counts of receiving stolen property but found him

guilty of failing to comply with the order or signal of a police officer. The jury further found

appellant's operation of the motor vehicle caused a substantial risk of serious physical harm.

Appellant was sentenced to 36 months in prison.
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       {¶ 12} Appellant appealed, raising the following as his sole assignment of error:

       {¶ 13} THE TRIAL COURT ERRED IN FINDING LAW ENFORCEMENT HAD A

REASONABLE AND ARTICULABLE SUSPICION [APPELLANT] WAS ENGAGED IN

CRIMINAL ACTIVITY OR OPERATING HIS VEHICLE IN VIOLATION OF THE LAW IN

DENYING HIS MOTION TO SUPPRESS AND THEREBY ALLOWING IMPROPER

EVIDENCE INTO THE TRIAL IN VIOLATION OF THE FOURTH AMENDMENT OF THE

UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 14 OF THE OHIO

CONSTITUTION.

       {¶ 14} In his sole assignment of error, appellant argues the trial court erred in denying

his motion to suppress as Patrolman Heinz lacked reasonable articulable suspicion to initiate

the traffic stop. He contends the color discrepancy between the paint color of the SUV and

the registration for the vehicle did not provide sufficient suspicion to justify the traffic stop. He

also argues that because the stop was unlawful, all "derivative evidence" should be

suppressed pursuant to the "fruit of the poisonous tree" doctrine and his Crim.R. 29 motion

for acquittal should be granted for lack of sufficient evidence.

       {¶ 15} Our review of a trial court's denial of a motion to suppress presents a mixed

question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve

factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial

of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.

CA2005-03-074, 2005-Ohio-6038, ¶ 10.             "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." Cochran at ¶ 12.
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       {¶ 16} "The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution prohibit unreasonable searches and seizures, including

unreasonable automobile stops." Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-

3563, ¶ 11. "Ohio recognizes two types of lawful traffic stops." State v. Stover, 12th Dist.

Clinton No. CA2017-04-005, 2017-Ohio-9097, ¶ 8. The first involves a non-investigatory stop

in which an officer has probable cause to stop a vehicle because the officer observed a traffic

violation. Id., citing State v. Moore, 12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-4908,

¶ 31. "The second type of lawful traffic stop is an investigative stop, also known as a Terry

stop, in which the officer has reasonable suspicion based on specific or articulable facts that

criminal behavior is imminent or has occurred." Id., citing State v. Bullock, 12th Dist. Clinton

No. CA2016-07-018, 2017-Ohio-497, ¶ 7. See also Moore at ¶ 33, citing Terry v. Ohio, 392

U.S. 1, 21, 88 S.Ct. 1868 (1968). The present case involves the latter of the two stops.

       {¶ 17} With respect to a Terry stop, the concept of "reasonable and articulable

suspicion" has not been precisely defined; it has been described as something more than an

undeveloped suspicion or hunch but less than probable cause. State v. Baughman, 192

Ohio App.3d 45, 2011-Ohio-162, ¶ 15, citing Terry at 20-21. The "reasonable suspicion

standard" under Terry is an objective, not a subjective, one. Stover at ¶ 9, citing State v.

McCandlish, 10th Dist. Franklin No. 11AP-913, 2012-Ohio-3765, ¶ 7. For this reason, the

propriety of an investigative stop must be "viewed in light of the totality of the surrounding

circumstances, from the perspective of a reasonably prudent police officer on the scene

guided by his experience and training." Baughman at ¶ 15, citing State v. Batchili, 133 Ohio

St.3d 403, 2007-Ohio-2204, paragraph two of the syllabus; and State v. Bobo, 37 Ohio St.3d

177 (1988), paragraph one of the syllabus.

       {¶ 18} In the present case, Heinz testified he initiated a traffic stop because appellant

was driving a black GMC SUV when the registration indicated the vehicle was white, and this
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discrepancy led him to believe the vehicle had a fictitious registration or might have been

stolen. This court has not previously addressed the issue of whether the discrepancy

between the color of a defendant's vehicle and the color listed in registration records

accessed by a police officer provides the officer with reasonable suspicion to perform an

investigative traffic stop. Courts that have considered the issue are split.

       {¶ 19} The Seventh Circuit Court of Appeals, the Arkansas Supreme Court, the

Florida Supreme Court, and the Fifth District Court of Appeals have all determined that a

discrepancy in an automobile's paint color found via a database check does not amount to

reasonable suspicion of criminal activity sufficient to justify a warrantless investigatory stop.

See United States v. Uribe, 709 F.3d 646 (7th Cir.2013); Schneider v. State, 459 S.W.3d 296

(Ark.2015); State v. Teamer, 151 So.3d 421 (Fla.2014); State v. Unger, 5th Dist. Stark No.

2016 CA 00148, 2017-Ohio-5553. In many of these cases, the courts considering the issue

have noted that there was no requirement under state law to update a vehicle registration

when an owner changes the color of his or her car. Uribe at 650 (noting "the color

discrepancy itself was lawful, because neither Indiana nor Utah requires a driver to update

his vehicle registration when he changes the color of his car"); Schneider at 299 (noting

Arkansas has no requirement that the owner of a vehicle change the registration to reflect the

color of a vehicle in the event it is painted or the color is otherwise altered); Teamer at 427-

428 (finding a color discrepancy is not "'inherently suspicious' or 'unusual enough' or 'so out

of the ordinary' as to provide an officer with a reasonable suspicion of criminal activity,

especially given the fact that it is not against the law in Florida to change the color of your

vehicle without notifying the DHSMV").         The courts concluded that the lawful color

discrepancy alone was not probative of wrongdoing and therefore did not authorize a traffic

stop. Uribe at 652; Schneider at 299-300; Teamer at 428 ("to find reasonable suspicion

based on this single noncriminal factor would be to license investigatory stops on nothing
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more than an officer's hunch").

       {¶ 20} Other courts that have considered the issue have come out in the other

direction. Appellate courts in Georgia, Indiana, and Idaho have all determined that the

discrepancy between an automobile's paint color and the color reported on a vehicle's

registration amounts to reasonable suspicion of criminal activity to authorize an investigatory

stop when the officer believes the vehicle was stolen or has a fictitious plate. See Smith v.

State, 713 N.E.2d 338, 342 (Ind.App.1999) (finding that the color discrepancy gave an officer

"reasonable suspicion to believe that * * * vehicle had a mismatched plate, and as such,

could be stolen or retagged"); Andrews v. State, 289 Ga. App. 679, 681 (2008) (finding the

color discrepancy gave an officer reasonable and articulable suspicion for the investigatory

stop where the officer had reason to believe the license plate had been improperly switched

or transferred in violation of Georgia law); State v. Creel, 2012 Ida. App. Unpub. LEXIS 267,

*4-5 (2012) (finding that the color discrepancy gave the officer reasonable and articulable

suspicion to initiate the stop where the officer testified the vehicle "could have had fictitious

license plates in violation of I.C. § 49-456(3) or the vehicle could have been stolen and the

plates were from another S-10 pickup"). In these cases, the courts noted that the officer

"was entitled to draw from the facts in light of his experience" and training. Andrews at 681.

See also Creel at * 5.

       {¶ 21} We are persuaded by the approach taken in Smith, Andrews, and Creel and

find that under the facts of the present case, reasonable and articulable suspicion existed to

authorize Heinz's stop of appellant's vehicle. The color discrepancy between the vehicle's

actual paint color (black) and the BMV's registration (white) gave Heinz reason to believe that

the vehicle may have been stolen or the license plate switched from another vehicle. Heinz

testified that although he had not personally experienced a situation where a car thief had

replaced a vehicle's original license plate with a stolen plate taken from a similar vehicle, from
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his 14 years of law enforcement experience he knew that this type of criminal behavior

occurred.   He further testified that such criminal activity had occurred in and around

Washington Court House.

       {¶ 22} Accordingly, for the reasons set forth above, we find that the trial court did not

err in denying appellant's motion to suppress. The discrepancy in the vehicle's color coupled

with Heinz's experience and belief that the vehicle or its plates might have been stolen

provided reasonable and articulable suspicion to authorize the investigatory stop of

appellant's vehicle.

       {¶ 23} Therefore, as the traffic stop was lawful, we find no merit to appellant's

arguments that the evidence flowing from the stop must be suppressed pursuant to the "fruit

of the poisonous tree" doctrine. Heinz trial testimony about the events that occurred leading

up to, during, and after the traffic stop was properly admitted. Through Heinz's testimony the

state presented sufficient evidence to sustain appellant's conviction for failing to comply with

an order or signal of a police officer. Appellant fled from Heinz after being advised there was

a warrant for his arrest. He ignored the police cruiser's lights and sirens – visible and audible

signals to stop his vehicle – and in fleeing from Heinz, caused a substantial risk of harm to

both property and persons. See, e.g., State v. Monnin, 12th Dist. Warren CA2016-07-058,

2017-Ohio-1095, ¶ 13-30.

       {¶ 24} The arguments set forth in appellant's sole assignment of error are therefore

without merit and his assignment of error is overruled.

       {¶ 25} Judgment affirmed.


       RINGLAND and PIPER, JJ., concur.




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