[Cite as State v. Aslinger, 2012-Ohio-5436.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               PREBLE COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2011-11-014

                                                     :          OPINION
    - vs -                                                      11/26/2012
                                                     :

JUSTIN ASLINGER,                                     :

        Defendant-Appellant.                         :



       CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                           Case No. 10-CR-10593



Martin P. Votel, Preble County Prosecuting Attorney, Kathryn M. Worthington, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee

Daniel J. O'Brien, 1210 Talbott Tower, 131 North Ludlow Street, Dayton, Ohio 45402, for
defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Justin Aslinger, appeals his conviction for possession of

heroin from the Preble County Court of Common Pleas.

        {¶ 2} On November 6, 2010, Preble County Deputy Sheriff Brad Moore stopped a car

driven by Jefferson Dallas Davis after it crossed left of center while traveling on State Route

35. Deputy Moore was waiting at this location based on information he obtained from Davis,
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who had become an informant. According to Deputy Moore's testimony, Davis contacted him

and informed him that he drives appellant to Dayton on a regular basis to purchase heroin.

He further testified that he then drives appellant back to appellant's house where he cuts up

the heroin for distribution in Preble County.

       {¶ 3} Deputy Moore testified that on November 5, 2010, Davis called him on two

occasions. First, to tell him the he was driving appellant to Dayton to purchase heroin, and

then again to inform him they had returned. On November 6, 2010, Davis called Deputy

Moore again to advise him that he and appellant were travelling to Dayton to purchase

heroin, and that they would return through Preble County on State Route 35 between noon

and two in the afternoon. Davis told Deputy Moore that he would give him a signal to let him

know the heroin had been purchased and was in the car. Deputy Moore testified that at

approximately 12:51 p.m., he saw Davis's vehicle enter Preble County driving left of center,

down the middle of the roadway.

       {¶ 4} Having witnessed the traffic violation, and believing this to be the signal from

Davis, Deputy Moore stopped the vehicle. Appellant was sitting in the front passenger seat.

Upon identifying the driver as Davis, Deputy Moore attempted to identify appellant, who then

provided his brother's name and social security number rather than his own. At that point

Deputy Moore also noticed a bag of what he believed to be heroin or cocaine on the driver's

side floorboard.

       {¶ 5} Within three minutes, Deputy Matt Lunsford arrived with his drug detection

canine Brit. Brit gave a positive alert to the front passenger side door area. At that point,

Deputy Moore and Deputy Robert Schneider had Davis and appellant exit the vehicle, patted

them down and sat them on the side of the road while Deputy Moore searched the vehicle.

The search of the vehicle revealed only the bag Deputy Moore had previously seen. That

bag was later determined to contain heroin.
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       {¶ 6} Subsequently, Deputy Moore drove appellant back to the sheriff's office. While

appellant spoke with Deputy Moore during the transport, Deputy Moore did not ask appellant

any questions. Appellant was advised of his rights upon arrival at the sheriff's office, as

evidenced by the signed Miranda waiver.

       {¶ 7} Appellant was indicted on December 6, 2010, for possession of heroin.

Appellant moved to suppress any information obtained as a result of what he alleged was an

illegal stop, seizure, search and detention. A hearing on the motion to suppress was held on

February 18, 2011. The motion was denied in an entry dated April 14, 2011. Subsequently,

appellant pled no contest to possession of heroin in violation of R.C. 2925.11(A)(C)(6)(e), a

felony of the first degree. Appellant was sentenced to three years in prison.

       {¶ 8} Appellant now appeals from that conviction, raising two assignments of error for

our review.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} DID THE TRIAL COURT PREJUDICIALLY ERR IN FINDING THAT PREBLE

COUNTY LAW ENFORCMENT [SIC] OFFICERS DID NOT VIOLATE [APPELLANT'S]

RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND ARTICLE 1, SECTION 14 OF THE OHIO CONSTITUTION WHEN THEY SEIZED AND

DETAINED HIM WITHOUT CONSENT, WITHOUT A VALID WARRANT, WITHOUT

PROBABLE CAUSE TO ARREST BUT MERELY WITH A HOPE AND A HUNCH MR.

ASLINGER WAS THEN AND THERE ENGAGED IN FELONIOUS CRIMINAL CONDUCT.

       {¶ 11} Appellant argues that he was illegally stopped, searched, detained and

questioned as Deputy Moore lacked reasonable suspicion to believe that appellant was

engaged in criminal conduct. In support of his argument, appellant alleges that Davis' vehicle

did not cross left of center and therefore that action could not have been a signal from Davis

to Deputy Moore, nor the justification for a traffic stop. He further argues that the information
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provided by Davis to Deputy Moore was nothing more than a fabricated and duplicitous

scheme intended to give the appearance of cooperation so that Davis could "cut a deal."

Appellant therefore asserts that the trial court erred in denying his motion to suppress any

information obtained as a result of the stop, seizure, search and detention.

       {¶ 12} A trial court's ruling on a motion to suppress presents an appellate court with a

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

3353, ¶ 12. When considering a motion to suppress, the trial court assumes the role of the

trier of fact. Id. Because the trial court can personally observe the witnesses, the trial court

is in the best position to evaluate their credibility and thus to resolve any disputed factual

issues. Id. A reviewing court will accept the trial court's findings of fact so long as they are

supported by competent, credible evidence. Id. However, a reviewing court "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." Id.

       {¶ 13} In order to arrest a person without a warrant an officer must have probable

cause. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225 (1991). The test for establishing

probable cause to arrest without a warrant is whether the facts and circumstances within an

officer's knowledge were sufficient to warrant a prudent individual in believing that the

defendant had committed or was committing an offense. Id. In making this determination,

we examine the totality of the facts and circumstances. State v. Homan, 89 Ohio St.3d 421,

427, 2000-Ohio-212; State v. Oglesby, 12th Dist. No. CA2004-12-027, 2005-Ohio-6556, ¶

17.

       {¶ 14} In the present case, Deputy Moore had received information from Davis and

others that appellant was purchasing and distributing heroin. During the February 18, 2011

suppression hearing, Deputy Moore testified as to why he believed the information Davis was
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providing was true:

              [DEPUTY MOORE]: I had spoken through confidential
              informants that advised me that [appellant] lives on 35. He also
              goes by the nickname of Fatty. Buys large amounts of heroin
              and then distributes it throughout the county and Richmond.

              [MS. MANNING]: So the information provided by those
              informants matched that of what Davis had told you?

              [DEPUTY MOORE]: Yes.

       {¶ 15} Deputy Moore and Davis had agreed that if there was heroin in the car, Davis

would give him a sign. Deputy Moore noticed the vehicle cross the centerline and continue

that way as it entered Preble County. That action permitted Deputy Moore to stop the vehicle

either out of recognition that the traffic violation was intended as Davis's signal that heroin

was in the car, or simply based on the commission of the traffic violation itself. Appellant

argues that the police cruiser video failed to show the vehicle crossing the centerline. Having

reviewed the video, we agree with appellant. However, the camera on the cruiser was facing

perpendicular to the road on which Davis' vehicle was traveling. Therefore, the only time

Davis' vehicle was visible on the cruiser video was the moment it passed directly in front of

the cruiser. Accordingly, the video provides no evidence to contradict Deputy Moore's

testimony that the vehicle crossed the centerline.

       {¶ 16} After having stopped the vehicle, Deputy Moore recognized that the name

appellant provided was incorrect. In addition, he noticed what he believed to be a bag of

heroin or cocaine on the driver's side floorboard. Finally, a drug detection canine gave a

positive alert to the passenger side front door. Given the totality of the circumstances, we

find that Deputy Moore had sufficient knowledge to warrant a prudent individual in believing

that appellant had committed or was committing an offense. Accordingly, there was probable

cause to arrest appellant.

       {¶ 17} A warrant is not required for a search incident to a valid arrest. State v. Rice,
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69 Ohio St.2d 422, 428 (1982), citing Michigan v. DeFillippo, 443 U.S. 31, 35, 99 S.Ct. 2627,

2631 (1979). In light of the foregoing, having found that Deputy Moore had probable cause

to arrest appellant, we find no error in the trial court's denial of appellant's motion to suppress

any information obtained as a result of the stop, seizure, search and detention.

       {¶ 18} Accordingly, appellant's first assignment of error is overruled.

       {¶ 19} Assignment of Error No. 2:

       {¶ 20} DID THE TRIAL COURT PREJUDICIALLY ERRED [SIC] IN FINDING THAT

STATEMENTS ALLEGEDLY MADE BY [APPELLANT] WERE ADMISSIBLE IN SPITE OF

THE ILLEGAL AND FORCEIBLE [SIC] AND COERCIVE STOP, SEIZURE, SEARCH,

DETENTION AND ARREST OF [APPELLANT] IN VIOLATION OF THE FRUIT OF THE

POISONOUS TREE RULE (Wong Sun v. U.S. (1963) 371 U.S. 471).

       {¶ 21} Having found that the stop and arrest of appellant was valid under the first

assignment of error, appellant's second assignment of error is not well-taken.

       {¶ 22} Accordingly, appellant's second assignment of error is overruled.

       {¶ 23} Judgment affirmed.


       S. POWELL, P.J., and YOUNG, J., concur.


       Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief
Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.




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