[Cite as Middleburg Hts. v. Wojciechowski, 2015-Ohio-3879.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 102216




                CITY OF MIDDLEBURG HEIGHTS
                                                          PLAINTIFF-APPELLEE

                                                    vs.

                      RICHARD WOJCIECHOWSKI
                                                          DEFENDANT-APPELLANT




                                JUDGMENT:
                          REVERSED AND REMANDED



                                    Criminal Appeal from the
                                     Berea Municipal Court
                                    Case No. 13 TRC 01789-1

        BEFORE:           E.T. Gallagher, J., E.A. Gallagher, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: September 24, 2015
ATTORNEY FOR APPELLANT

Christine A. Russo
11005 Pearl Road, Suite 4
Strongsville, Ohio 44136


ATTORNEY FOR APPELLEE

Peter H. Hull
Middleburg Heights Prosecutor
Middleburg Heights City Hall
15700 E. Bagley Road
Middleburg Heights, Ohio 44130
EILEEN T. GALLAGHER, J.:

     {¶1} Defendant-appellant, Richard Wojciechowski (“Wojciechowski”),
appeals his OVI convictions and assigns the following errors for our review:

     1. The trial court erred in failing to grant appellant’s motion to
     suppress because the officer stopped and detained the appellant
     without reasonable suspicion of a traffic violation or criminal
     activity, and failed to suppress the evidence obtained thereafter.

     2. The trial court erred in failing to suppress the evidence based
     upon an illegal arrest, search, and seizure of appellant.

     3. The trial court erred in failing to suppress appellant’s
     statements, as he was not properly advised of his Miranda rights.

     4. The trial court erred in admitting the appellant’s breath test,
     when the officer who administered the test was not present to fully
     testify, and it was not fully authenticated.

     5. Counsel for appellee erred in failing to admit the current
     version of the National Highway Traffic Safety Administration
     (“NHTSA”) Manual.

     6. The trial court erred in failing to suppress the results of the
     blood alcohol test over the objection of appellant, reasoning that
     the defense failed to raise an issue to the machine itself.

     7. The trial court erred in applying the proper case law and facts
     in his finding of fact and conclusions of law.

     {¶2} We find merit to the appeal and reverse the trial court’s judgment.

                    I. Facts and Procedural History
      {¶3} Wojciechowski was charged with operating a vehicle under the

influence of alcohol in violation of R.C. 4511.19(A)(1)(a), having a prohibited

blood alcohol content in violation of R.C. 4511.19(A)(1)(d), and weaving in

violation of R.C. 4511.33(A).      Wojciechowski filed a motion to suppress

evidence of the field sobriety tests, the results of a breath test, and any

statements he made to police after he was stopped. Wojciechowski argued

that the officer who stopped him lacked the necessary reasonable suspicion and

probable cause to effect a legal traffic stop.

      {¶4} At the suppression hearing, Officer Ryan Nagy (“Nagy”), of the

Middleburg Heights Police Department, testified that as he was driving

northbound on Pearl Road, he observed Wojciechowski’s truck traveling in the

same northbound direction. After following Wojciechowski’s truck for some

distance, Nagy observed the truck weaving and set his dash camera to record

its movements. Nagy explained that the dash camera is constantly recording

but does not maintain more than three minutes of the video at a time unless

an officer presses the “record” button.     When an officer presses the record

button, the camera captures and preserves the previous three minutes of film

and continues recording until the officer stops it.

      {¶5} The video, which was played at the suppression hearing and is part

of the record, begins as Nagy turns onto Pearl Road from a parking lot near

Webster Road. On cross-examination, Nagy testified that Wojciechowski did
not commit any traffic violations until he approached and crossed Bagley Road.

(Tr. 28 - 30.) Nagy followed the truck as he ran the license plates and stopped

Wojciechowski shortly after he made a proper left hand turn onto West 130th

Street. (Tr. 32-33.) Nagy testified that because Wojciechowski failed all the

field sobriety tests administered during the stop, he arrested him.

Wojciechowski admitted he had consumed seven beers, and a blood alcohol test

indicated that Wojciechowski’s blood alcohol content was over the legal limit.

(Tr. 17-18, 21.)

      {¶6} The court, relying solely on Nagy’s testimony, denied the motion to

suppress. Wojciechowski subsequently pleaded no contest to all the charges

and now appeals the trial court’s ruling on his motion to suppress.

                           II.   Law and Argument

      {¶7} In the first assignment of error, Wojciechowski argues the trial

court erred in denying his motion to suppress evidence. He contends officer

Nagy lacked the reasonable suspicion required for a lawful traffic stop.

      {¶8} Appellate review of a motion to suppress involves a mixed question

of law and fact. “In a motion to suppress, the trial court assumes the role of

trier of fact and is in the best position to resolve questions of fact and evaluate

witness credibility.” State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172

(8th Dist.1994). The reviewing court must accept the trial court’s findings of

fact in ruling on a motion to suppress if the findings are supported by
competent, credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 8.

      {¶9} An appellant may challenge a trial court’s ruling on a motion to

suppress by (1) challenging the court’s findings of fact, or (2) arguing that the

trial court failed to correctly apply the law to the facts. Where the appellant

challenges the court’s factual findings, as in the instant case, the appellate

court must determine whether the trial court’s findings of fact are against the

manifest weight of the evidence.       State v. Harris, 5th Dist. Perry No.

14-CA-00032, 2015-Ohio-2480, ¶ 10. In other words, an appellate court must

accept the trial court’s findings of fact if they are supported by competent,

credible evidence. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982).

      {¶10} The Fourth Amendment of the U.S. Constitution, which is

enforceable against the states through the Due Process Clause of the

Fourteenth Amendment, provides: “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause.” See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081

(1961). Article I, Section 14 of the Ohio Constitution has language almost

identical to the Fourth Amendment and affords Ohioans the same protections

against unreasonable searches and seizures. State v. Robinette, 80 Ohio St.3d

234, 245, 685 N.E.2d762 (1997).
      {¶11} A traffic stop constitutes a seizure and implicates Fourth

Amendment protections. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59

L.Ed.2d   660   (1979).     Nevertheless,    a   warrantless   traffic   stop   is

constitutionally valid if the officer making the stop has “a reasonable

suspicion,” based on specific and articulable facts, that “criminal activity may

be afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967);

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

      {¶12} Reasonable suspicion for a “Terry stop” requires something more

than an “inchoate and unparticularized suspicion or ‘hunch.’” Terry at 27.

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

the circumstances “as viewed through the eyes of the reasonable and prudent

police officer on the scene who must react to events as they unfold.” State v.

Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).

      {¶13} The Ohio Supreme Court has held that a traffic stop is

constitutionally valid when a law enforcement officer witnesses a motorist

“drift” over lane markings, in violation of R.C. 4511.33. Mays at syllabus.

However, the Mays court further held that movement within one lane is not “a

per se violation giving rise to reasonable suspicion, nor does inconsequential

movement within a lane give law enforcement carte blanche opportunity to

make an investigatory stop.”     Id. at ¶ 20, citing State v. Hodge, 147 Ohio

App.3d 550, 2002-Ohio-3053, 771 N.E.2d 331 (7th Dist.). In Mays, the court
determined that an officer had reasonable suspicion to effect a traffic stop

because the officer observed the defendant’s vehicle twice cross over the white

fog line “by approximately one tire width.” Id. at ¶ 2, 24.

      {¶14} Nagy testified that he observed Wojciechowski cross over the fog

line and enter the adjacent lane at least three times. (Tr. 10.) However, the

video recording taken from Nagy’s dash camera controverts his testimony.

Nagy testified that he followed Wojciechowski for several blocks before he

noticed any traffic violations:

      Q: Okay. So knowing that, there is not any time prior thereto,
      where and when did he leave his lane of travel?

      THE COURT: Prior to what point in time? You said, prior.

      [COUNSEL]: He —

      THE COURT: All right. So starting when you pulled onto Pearl
      Road, right? I think [counsel] would like you to testify the points
      at which you observed, not the recording necessarily, but you
      observed the defendant * * * going * * * out of their [sic] lane?

      THE WITNESS: When I was closer to Bagley Road, and heading
      north of Bagley is when I started to observe the violations.

      THE COURT: Okay.

      THE WITNESS: But the recorder jumped back until * * * I was
      turning around (inaudible.)

      THE COURT: And again, Officer Nagy, I appreciate what you’re
      saying. Let’s — I think the confusion is here. Let’s not worry
      about what’s on the recording.

      THE WITNESS: Okay.
     THE COURT: Okay. Her question is, “When did you observe
     when the defendant was weaving over his lanes[?]” Okay?

     THE WITNESS: Okay.

     THE COURT: So you can just testify based on that. All right?

     THE WITNESS: Okay.

     THE COURT: Go ahead, [counsel].

     Q: ([BY COUNSEL]) So it was around Bagley Road —

     A: Correct.

     *    *    *

     Q: Okay. And your definition of not maintaining a single lane of
     travel, is actually traveling into another lane, correct?

     A: Correct.

     Q: Okay. Now, you testified that the videotape was accurate of
     what events were depicted, correct?

     A: Yes.

     Q: So if we go back to Bagley Road, we’re going to see that he
     actually left his lane and went into another lane. Is that your
     testimony?

     A: As we traveled, yes, on Pearl Road, north of Bagley.

     Q: Okay. So just — let’s watch.

     {¶15} Thereupon, defense counsel replayed the dash camera video in

open court and on record. As the video was playing, defense counsel asked
Nagy to point out where in the video Wojciechowski crossed over the lane line

and entered another lane. The following exchange ensued:

      THE COURT: Start pointing out as we’re going along here where
      you see him going over the line. Okay?

      THE WITNESS: Okay. There.

      THE COURT: This is Bagley coming up at that light?

      THE WITNESS: Yes, sir. There.

      Q: ([BY COUNSEL]): He didn’t cross over the line, did he?

      A: Sure, he did.

      Q: Okay. So it’s your testimony he actually crossed into the other
      lane?

      A: Yes.

      Q: Did we pass Bagley?

      A: Yes.

(Tr. 31.)

      {¶16} Nagy testified that he did not see any traffic violations until they

approached Bagley Road, which is approximately half a mile from Webster

Road where the film begins. (Tr. 28, 34.) Although Nagy set the dash camera

to record after observing the violations, he explained that the camera captured

and saved the prior three minutes of video that was recorded before pressing

the record button.
        {¶17} As previously stated, the video was admitted into evidence and

is part of the record. We reviewed the video, in its entirety, several times and

never once observed Wojciechowski’s truck cross a line. The video contradicts

Nagy’s testimony when he points to specific places in the video where he

declares Wojciechowski crossed over the lane line, when it is clear to us that

Wojciechowski never crossed a single line.

        {¶18} There are a few seconds in the video where Nagy moves beside

Wojciechowski’s truck because he was trying to see the truck’s license plate.

Nagy testified that Wojciechowski also crossed a lane line at this particular

location. We are unable to verify whether Wojciechowski’s truck maintained

a single lane or crossed the lane line during this portion of the film because the

recording does not show the lane lines. If we had not previously observed

inconsistencies between the video and Nagy’s testimony, we would have

deferred to the trial court’s factual findings and affirmed the trial court’s

judgment. However, ostensible discrepancies in the evidence compels us to

find that the trial court’s judgment is not supported by competent, credible

evidence.

        {¶19} The first assignment of error is sustained.

        {¶20} Having determined that the trial court erred in failing to grant

Wojciechowski’s motion to suppress, the remaining assignments of error are

moot.
     {¶21} Judgment reversed.       Case remanded to the trial court with

instructions to grant Wojciechowski’s motion to suppress.

     It is ordered that appellant recover from appellee costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this court directing the

Berea Municipal Court to carry this judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR
