[Cite as State v. Jenkins, 2010-Ohio-5943.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 14-10-10

        v.

ANTHONY K. JENKINS, II,                                   OPINION

        DEFENDANT-APPELLANT.




                        Appeal from Marysville Municipal Court
                            Trial Court No. TRD 1000687

                                      Judgment Affirmed

                           Date of Decision: December 6, 2010




APPEARANCES:

        Jeffery A. Linn, II for Appellant

        Anthony W. Eufinger for Appellee
Case No. 14-10-10


ROGERS, J.

       {¶1} Defendant-Appellant, Anthony K. Jenkins, II, appeals the judgment

of the Marysville Municipal Court convicting him of driving while under

suspension pursuant to R.C. 4510.14. On appeal, Jenkins argues that the trial

court erred in overruling his motion to suppress, claiming that the police officer

lacked probable cause to justify the stop of his vehicle. Finding that the police

officer had a reasonable articulable suspicion that Jenkins was driving under a

suspended license and was not within his limited driving privileges, we affirm the

judgment of the trial court.

       {¶2} In February 2010, Jenkins was cited for one count of driving while

under suspension for operating a vehicle while under the influence of alcohol

(hereinafter “OVI”) in violation of R.C. 4510.11(A). The citation specified that

the “suspension type” was “OVI.” Thereafter, Jenkins entered a plea of not guilty.

       {¶3} In April 2010, Jenkins filed a motion to suppress all evidence related

to the traffic stop on the basis that the police officer did not have reasonable

articulable suspicion to justify the traffic stop. Thereafter, a hearing was held on

the motion to suppress, at which the following testimony was heard.

       {¶4} Officer Robert Bartholomew of the City of Marysville Police

Department testified that, on Sunday, February 21, 2010, at approximately 6:18

p.m., he was stationed in his patrol cruiser on Watkins Road in Marysville, Union



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County; that he observed a northbound vehicle approaching him on Watkins Road;

that his visual estimation of the vehicle’s speed was forty-five m.p.h.; that the

speed limit on that stretch of the road was thirty-five m.p.h.; that he did not check

the speed using radar; that he entered the license plate into his LEADS system and

observed that the owner of the vehicle had a suspended license; that he pulled onto

Watkins Road behind the vehicle, and confirmed the suspended license status with

the dispatcher; that the dispatcher also informed him that there were limited

driving privileges associated with the suspended license, but did not explain the

times or dates of the limitations; that the vehicle entered State Route 33, and he

followed the vehicle, drove side-by-side with the vehicle, and observed that the

driver, Jenkins, matched the physical description of the owner relayed to him by

the dispatcher; that there was also a passenger in the vehicle; that, due to the

circumstances, he believed Jenkins was not driving within his privileges; that he

initiated a stop of the vehicle; that he asked Jenkins where he was going, and

Jenkins replied that he was going to the movies and that this was not covered by

his limited driving privileges; that, prior to the stop, he did not know where

Jenkins’ place of employment was or what his hours of employment were; that he

did not observe Jenkins leaving any place unlikely to be permitted by limited

driving privileges, such as a bar; that he did not include the fact that it was the

weekend as a factor causing him to make the stop in his report; that he knew



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Jenkins’ address from the LEADS report, and determined that he was traveling

away from his residence; that he stopped Jenkins approximately one or two miles

away from where he first observed Jenkins’ vehicle; and, that it would not have

been prudent for him to pull Jenkins over before he did because there was not a

safe area to stop until they were on State Route 33, and because he could not

identify the driver as the owner of the vehicle until they were both travelling on

State Route 33.

        {¶5} At the close of evidence, the trial court denied Jenkins’ motion to

suppress, stating from the bench that the police officer had reasonable articulable

suspicion to stop the vehicle based on the observed speeding violation as well as

the information regarding Jenkins’ license suspension.                           Thereafter, Jenkins

withdrew his plea of not guilty and entered a plea of no contest to driving while

under OVI suspension pursuant to R.C. 4510.14.1 The trial court then found

Jenkins guilty and sentenced him to a thirty-day jail term, with twenty-seven days

suspended on the condition of successful completion of three years of probation,

and ordered him to pay a $600 fine, with $300 deferred on the condition of

successful completion of three years of probation.




1
  We note that the Judgment Entry provided that “this cause came on for hearing/trial upon the charge of
violation of R.C./Ord.# 4510.45 entitled SUSP/REV OVI” (Apr. 2010 Judgment Entry, p. 1). However,
the trial court’s citation to R.C. 4510.45 appears to be a typographical error, as this code section regards
certification of immobilizing and disabling devices.


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                                 Assignment of Error No. I

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S
       MOTION TO SUPPRESS BECAUSE THE OFFICER
       LACKED PROBABLE CAUSE TO JUSTIFY A STOP OF
       APPELLANT’S VEHICLE FOR SPEEDING, VIOLATING
       APPELANT’S [SIC] RIGHTS AS GUARANTEED BY THE
       FOURTH AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION AND COMPARABLE
       PROVISIONS OF THE OHIO CONSTITUTION.

                                 Assignment of Error No. II

       DESPITE THE TRIAL COURT’S ANALYSIS REGARDING
       THE SPEED, OFFICER BARTHOLOMEW WAS NOT
       JUSTIFIED IN STOPPING APPELLANT’S VEHICLE FOR
       SUSPICION OF DRIVING UNDER SUSPENSION BECAUSE
       THE OFFICER WAS AWARE THAT APPELLANT
       POSSESSED PRIVILEGES, AND THEREFORE, THE STOP
       VIOLATED APPELLANT’S RIGHTS AS GUARANTEED BY
       THE FOURTH AND FOURTEENTH AMENDMENTS TO
       THE UNITED STATES CONSTIUTION [SIC] AND
       COMPARABLE      PROVISIONS   OF    THE   OHIO
       CONSTITUTION.

       {¶6} Due to the nature of Jenkins’ arguments, we elect to address his

assignments of error together.

                         Assignments of Error Nos. I and II

       {¶7} In his first and second assignments of error, Jenkins argues that the

trial court erred in overruling his motion to suppress evidence from the traffic stop.

Specifically, in his first assignment of error, Jenkins contends that the police

officer lacked probable cause to justify the stop of the vehicle for speeding. In his

second assignment of error, Jenkins specifically contends that the police officer


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lacked probable cause to justify the stop of the vehicle on suspicion of driving

under suspension because the officer was aware that he had some driving

privileges, albeit limited.

       {¶8} “Appellate review of a decision on a motion to suppress evidence

presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13,

2006-Ohio-601, ¶12, citing United States v. Martinez (C.A.11, 1992), 949 F.2d

1117. 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. Therefore, when an appellate

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

court's findings of facts so long as they are supported by competent, credible

evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶100, citing State

v. Fanning (1982), 1 Ohio St.3d 19, 20. The appellate court must then review the

application of the law to the facts de novo.        Roberts, supra, citing State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8.

       {¶9} The Fourth Amendment to the United States Constitution and

Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and

seizures. Neither the Fourth Amendment to the United States Constitution nor

Section 14, Article I of the Ohio Constitution explicitly provides that violations of

its provisions against unlawful searches and seizures will result in the suppression



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of evidence obtained as a result of such violation, but the United States Supreme

Court has held that the exclusion of evidence is an essential part of the Fourth

Amendment. Mapp v. Ohio (1961), 367 U.S. 643, 649; Weeks v. United States

(1914), 232 U.S. 383, 394. The primary purpose of the exclusionary rule is to

remove the incentive to violate the Fourth Amendment and thereby deter police

from unlawful conduct. State v. Jones, 88 Ohio St.3d 430, 434, 2000-Ohio-374,

overruled on other grounds by State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-

3931.

        {¶10} At a suppression hearing, the State bears the burden of establishing

that a warrantless search and seizure falls within one of the exceptions to the

warrant requirement, Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph two

of the syllabus; State v. Kessler (1978), 53 Ohio St.2d 204, 207, and that it meets

Fourth Amendment standards of reasonableness. Maumee v. Weisner, 87 Ohio

St.3d 295, 297, 1999-Ohio-68, citing 5 LaFave, Search and Seizure (3 Ed.1996),

Section 11.2(b).

        {¶11} When a law enforcement officer accosts an individual and restricts

his freedom of movement, the Fourth Amendment is implicated.              State v.

Stephenson, 3d Dist. No. 14-04-08, 2004-Ohio-5102, ¶16, citing Terry v. Ohio

(1968), 392 U.S. 1. Generally, in order for a law enforcement officer to conduct a

warrantless search, he must possess probable cause, which means that “‘there is a



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fair probability that contraband or evidence of a crime will be found in a particular

place.’” State v. Carlson (1995), 102 Ohio App.3d 585, 600, quoting Illinois v.

Gates (1983), 462 U.S. 213, 214. However, even where probable cause is lacking,

it is well-established that a law enforcement officer may temporarily detain an

individual where he has a reasonable articulable suspicion that the individual is

engaging in criminal activity. State v. Bobo (1988), 37 Ohio St.3d 177, 179, citing

Terry, 392 U.S. at 21.

       {¶12} Reasonable articulable suspicion is “‘specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant

the intrusion.’” Stephenson, 2004-Ohio-5102, at ¶16, quoting Bobo, 37 Ohio St.3d

at 178. 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, quoting United States v. Cortez (1981), 449 U.S. 411, 417-418. Further, an

officer who witnesses a traffic violation possesses probable cause, and a

reasonable articulable suspicion, to conduct a traffic stop. Id. Stephenson, 2004-

Ohio-5102, at ¶17.

       {¶13} R.C. 4510.14 governs the offense of driving while under OVI

suspension and provides, in pertinent part:



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       (A) No person whose driver’s or commercial driver’s license or
       permit or nonresident operating privilege has been suspended
       under section 4511.19, 4511.191, or 4511.196 of the Revised Code
       or under section 4510.07 of the Revised Code for a conviction of
       a violation of a municipal OVI ordinance shall operate any
       motor vehicle upon the public roads or highways within this
       state during the period of the suspension.

       (B) Whoever violates this section is guilty of driving under OVI
       suspension. The court shall sentence the offender under Chapter
       2929. of the Revised Code, subject to the differences authorized
       or required by this section.

       {¶14} In conjunction with R.C. 4510.11, Ohio’s statute governing general

offenses of driving while under suspension, this Court has previously held that a

police officer who runs a check of a license plate and discovers that the vehicle’s

owner’s license is under suspension has a reasonable articulable suspicion to make

a valid investigatory stop. State v. Cromes, 3d Dist. No. 17-06-07, 2006-Ohio-

6924, ¶32, citing Rocky River v. Saleh (2000), 139 Ohio App.3d 313, 327.

       {¶15} Additionally, in State v. Mack, 9th Dist. No. 24328, 2009-Ohio-

1056, the Ninth District Court of Appeals has examined a similar situation where

the police officer knew the owner of the vehicle had a suspended license with

limited driving privileges, but did not have any specific information concerning

when, where, and for what purpose the driver was permitted to operate her vehicle.

The Court of Appeals found that the drivers’ suspended license combined with the

fact that the stop took place at 2:00 a.m. demonstrated the officer had a reasonable

articulable suspicion for an investigatory stop of the vehicle.


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       {¶16} The Fourth Appellate District, in State v. Elliot, 4th Dist. No.

08CA50, 2009-Ohio-6006, also examined a similar situation where a police officer

observed a vehicle leaving a bar parking lot at approximately 1:00 a.m. The

Fourth District found that “[a] police officer has a constitutionally legitimate basis

to stop a vehicle when: 1) the officer learns that the registered owner of the vehicle

has a suspended license with limited driving privileges; and 2) both the late hour

when the driver is operating the vehicle and the location from which the vehicle is

driven provide a reasonable inference that the driver may not be operating the

vehicle within the scope of his limited driving privileges.” 2009-Ohio-6006, at ¶2.

       {¶17} The situation sub judice differs from Mack and Elliot, supra, because

Jenkins was observed operating his vehicle during the early evening hours as

opposed to during the very late night or very early morning hours. Additionally,

the situation differs from Elliot in that Jenkins was not observed leaving a bar or

some other type of venue unlikely to be permitted by limited driving privileges.

Nevertheless, we find applicable the more general findings of Elliot concerning

the relevancy of the hour during which the driver is operating his vehicle, and the

location from which the vehicle is driven. Here, Officer Bartholomew testified

that he observed Jenkins operating his vehicle at 6:18 p.m. on a Sunday evening;

that he learned through dispatch that Jenkins’ license was suspended, but that he

had limited driving privileges; that Jenkins had a passenger in his vehicle; and,



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that Jenkins was traveling away from his address. We find that, from the totality

of these circumstances, Officer Bartholomew had a reasonable articulable

suspicion that Jenkins may not have been driving within his limited privileges and

was permitted to stop the vehicle to investigate further.

       {¶18} Accordingly, we overrule Jenkins’ second assignment of error.

       {¶19} Further, as we have found that the stop of the vehicle was justified

on the grounds at issue in Jenkins’ second assignment of error, we need not

determine whether the stop was also permitted on the grounds that Officer

Bartholomew visually estimated Jenkins to be traveling at a speed in excess of the

speed limit. Thus, we find Jenkins’ first assignment of error to be moot and

decline to address it. See App.R. 12(A)(1)(c).

       {¶20} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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