[Cite as State v. Maxwell, 2014-Ohio-3062.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     GREENE COUNTY

 STATE OF OHIO                                    :
                                                  :      Appellate Case No. 2013-CA-63
           Plaintiff-Appellee                     :
                                                  :      Trial Court Case No. TRC-1302625
 v.                                               :
                                                  :
 CORY MAXWELL                                     :      (Criminal Appeal from
                                                  :      (Fairborn Municipal Court)
           Defendant-Appellant                    :
                                                  :

                                              ...........

                                              OPINION

                                Rendered on the 11th day of July, 2014.

                                              ...........

BETSY A. DEEDS, Atty. Reg. #0076747, Prosecutor’s Office, 1148 Kauffman Avenue,
Fairborn, Ohio 45324
       Attorney for Plaintiff-Appellee

CHRISTOPHER R. BUCIO, Atty. Reg. #0076517, Roberts, Kelly & Bucio, 10 North Market
Street, Troy, Ohio 45373
        Attorney for Defendant-Appellant

                                              .............

FAIN, J.

        {¶ 1}     Defendant-appellant Cory Maxwell appeals from his conviction and sentence for
                                                                                                  2


Operating a Motor Vehicle While Under the Influence of Alcohol, in violation of R.C.

4511.19(A)(1), a misdemeanor of the first degree. Maxwell contends that the trial court erred in

overruling his motion to suppress evidence, because the police officer did not have probable

cause to initiate a traffic stop.

        {¶ 2}     We conclude that the trial court erred in overruling Maxwell’s motion to

suppress. Accordingly, the judgment of the trial court is Reversed, and this cause is Remanded

for further proceedings consistent with this opinion.



           I. Maxwell Is Stopped for a Marked Lanes Violation when He Straddles

                the Center Dotted Line During his Move to the Right-Hand Lane

        {¶ 3}     At around 3:00 a.m. in late March 2013, Beavercreek Police Officer Barry

Wisecup was traveling westbound on Colonel Glenn Highway. Officer Wisecup witnessed

Maxwell, who was in the left lane, turn on his right turn signal and proceed to straddle the center

dotted line for 50-100 feet before moving over into the right lane. Maxwell left his right turn

signal on for approximately 300 yards and then made a right turn onto an exit ramp that led to a

closed entrance to Wright Patterson Air Force Base. About halfway down the exit ramp, Officer

Wisecup initiated a traffic stop of Maxwell’s vehicle for a violation of Beavercreek Ordinance §

72.008, the Marked Lanes Ordinance.

        {¶ 4}     When Officer Wisecup reached Maxwell’s window, he noticed that Maxwell

exhibited a strong odor of an alcoholic beverage. Officer Wisecup also noticed that Maxwell’s

eyes were glassy and bloodshot and that Maxwell slurred his speech. Maxwell admitted to

having earlier consumed one shot of liquor. Officer Wisecup had Maxwell exit the vehicle and
                                                                                                   3


administered field sobriety tests. Maxwell was then arrested.



                                 II. Course of the Proceedings

       {¶ 5}    Maxwell was charged with Operating a Motor Vehicle While Under the

Influence of Alcohol, in violation of R.C. 4511.19(A)(1), a first-degree misdemeanor, and a

violation of Beavercreek Ordinance § 72.008, a minor misdemeanor.

       {¶ 6}    Maxwell filed a motion to suppress “all evidence arising from the stop and arrest

of Defendant.” The trial court overruled Maxwell’s motion. Maxwell then entered into a plea

agreement with the State whereby he agreed to plead no contest to the charge of Operating a

Motor Vehicle While Under the Influence of Alcohol in return for the State dropping the Marked

Lanes charge. The trial court found Maxwell guilty of the OVI offense and sentenced him to one

year in jail. The trial court suspended 263 days of the jail sentence, imposed a $1,000 fine, and

suspended Maxwell’s driver’s license for three years.

       {¶ 7}    From the judgment of the trial court, Maxwell appeals.



                     III. Officer Wisecup Did Not Have Probable Cause

                             to Initiate a Traffic Stop of Maxwell

       {¶ 8}    Maxwell’s sole assignment of error states:

               THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

       MOTION TO SUPPRESS.

       {¶ 9}    In deciding a motion to suppress, the trial court assumes the role of trier of facts

and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.
                                                                                                  4


State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v.

Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of appeals must

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

the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v.

Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true,

the appellate court must then determine as a matter of law, without deference to the trial court’s

legal conclusion, whether the applicable legal standard is satisfied. Id.

       {¶ 10} We conclude that the trial court’s findings of fact are supported by the testimony

of Officer Wisecup. We must determine whether Officer Wisecup’s testimony leads us to the

same legal conclusion that the trial court reached regarding the propriety of the traffic stop.

Based on Officer Wisecup’s testimony, the trial court concluded:

               Testimony from the officer indicated that while on patrol just before 3:00

       a.m. on March 29, 2013, he observed the Defendant’s vehicle straddling the center

       dotted line for several feet and then make a left to right lane change leaving his

       right turn signal on for approximately 300 yards. This happened in a commercial

       area where the businesses were not open at the time in the early morning, so it

       would be unusual for the Defendant to have on his turn signal for that distance if

       he intended to turn into one of the business establishments. As it turned out, he

       turned onto a closed exit ramp to WPAFB.

               Taking all the circumstances together (time of early morning; straddling

       dotted line; lane change left to right; turn signal on for 300 yards with no open

       businesses to access) the officer had sufficient cause to initiate a traffic stop of the
                                                                                                    5


       Defendant.    After the stop, the strong odor; bloodshot, glassy eyes, and his

       admission to one shot of liquor was sufficient justification to conduct the field

       sobriety tests. The results of those field sobriety tests gave the officer sufficient

       probable cause to arrest the Defendant.

Dkt. 41.

       {¶ 11} The Fourth Amendment to the United States Constitution and Article I, Section

14 of the Ohio Constitution guarantee the right to be free from unreasonable searches and

seizures. State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001). “The United States

Supreme Court has stated that a traffic stop is constitutionally valid if an officer has a reasonable

and articulable suspicion that a motorist has committed, is committing, or is about to commit a

crime.” (Citations omitted.) State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d

1204, ¶ 7. “The propriety of an investigative stop by a police officer must be viewed in light of

the totality of the surrounding circumstances.” State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d

1044 (1980), at paragraph one of the syllabus. Therefore, if an officer’s decision to stop a

motorist for a criminal violation, including a traffic violation, is prompted by a reasonable and

articulable suspicion considering all the circumstances, then the stop is constitutionally valid.

Mays at ¶ 8.

       {¶ 12} Police may stop a vehicle based on probable cause that a traffic violation, even a

minor one, has occurred or is occurring.             State v. Frazee, 12th Dist. Warren No.

CA2004-07-085, 2005-Ohio-3513, ¶ 11, citing Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 665

N.E.2d 1091 (1996). Indeed, “evidence of a defendant’s marked lane violation establishes

reasonable suspicion or probable cause for a traffic stop.”         (Citations omitted.)    State v.
                                                                                                                                  6


McEldowney, 2d Dist. Clark No. 06-CA-138, 2007-Ohio-6690, ¶ 38.

       {¶ 13} The police officer in this case initiated a traffic stop of Maxwell’s vehicle for

violating Beavercreek Ordinance § 72.008, which provides, in part:

                   (A) Whenever any roadway has been divided into two or more clearly

       marked lanes for traffic, or wherever within the municipality traffic is lawfully

       moving in two or more substantially continuous lines in the same direction, the

       following rules apply:

                   (1) A vehicle shall be driven, as nearly as is practicable, entirely within a

       single lane or line of traffic and shall not be moved from the lane or line until the

       driver has first ascertained that the movement can be made with safety.1

       {¶ 14} Maxwell contends that his actions in this case do not constitute a violation of the

Marked Lanes Ordinance. Officer Wisecup presented the only testimony regarding Maxwell’s

driving. Officer Wisecup testified as follows regarding his decision to initiate the traffic stop:

                    Q. Okay, what drew your attention -- if you could describe in detail

       where you were when Mr. Maxwell drew your attention.

                   A. Okay. I was going westbound on Colonel Glenn, I’d be coming from

       the area of Grange Hall Road traveling towards Riverside.                                          I noticed Mr.

       Maxwell’s vehicle in front of my cruiser, I noticed as he made a lane change he

       straddled – continually straddled the center line for several feet, Mr. Maxwell then

       left his turn signal on for approximately three hundred yards and ended up making

       a right-hand turn into a closed exit which led to Wright Patt Air Force Base.

         1
             The language in Beavercreek Ordinance § 72.008(A)(1) is virtually identical to the language in R.C. 4511.33(A)(1).
                                                                                           7


         ***

         Q. Okay. And you indicated that Mr. Maxwell, when you initially came

upon him, straddled the center dotted line?

         A. The center dotted line, correct.

         Q. Was there anything in the road that would have impeded his ability to

make the lane change all in one movement?

         A. There was nothing that I saw.

         Q. How long of a time frame did he straddle the line, a couple of seconds

or - -

         A. I would say at least for a couple of seconds. It was enough to draw

my attention to realize that it wasn’t your typical lane change, that it felt out of the

ordinary.

         Q. And then you indicated that – did he have his right turn signal on at

the time the lane movement was made?

         A. I believe so, yes.

         Q. And once he made it into the right-hand lane, the turn signal stayed

on?

         A. It did.

         Q. And you indicated that he went three hundred yards?

         A. I approximated three hundred yards.

         ***

         Q. Did the – his driving behavior factor into your decision at all [to arrest
                                                                                                     8


       him]?

                A. It did. I just felt like a typical lane change is smooth as where Mr.

       Maxwell continued to travel down the center line and I found that uncommon with

       driving behavior.

Tr. 9-11, 21-22.

       {¶ 15} Officer Wisecup further testified regarding his decision to initiate a traffic stop:

                Q. Okay. Now, is there any violation of any statute to turn your right

       turn signal –

                A. Absolutely not. It was just unusual behavior.

                Q.     Well, do you feel his unusual behavior is in violation of any –

       (inaudible) – or statute?

                A. No.

                Q. Okay. So you’ve indicated that the – the straddling was one time,

       correct?

                A. Correct.

                Q. For a short time period – short in terms of distance?

                A.     Distance, over – averaging forty-five mile-an-hour speed limit, I

       would say he straddled it for fifty, a hundred feet.

                Q. Okay. And that would be just a couple of seconds?

                A. Within a few seconds, yeah.

Id. at 26-27.

       {¶ 16} Beavercreek Ordinance § 72.008 provides that a driver must remain within the
                                                                                                                                                9


lane markings “as nearly as is practicable” and that a driver shall not move from a lane “until

the driver has first ascertained that the movement can be made with safety.” The testimony of

record establishes that Maxwell turned on his right-turn signal and then proceeded to change

lanes from the left-hand lane to the right-hand lane, and that during this change in lanes he

straddled the center dotted line for approximately 50-100 feet, all while traveling a speed of 45

miles per hour.

           {¶ 17} Officer Wisecup did not identify any of Maxwell’s actions as being a violation of

the Marked Lanes ordinance. Rather, Officer Wisecup testified that Maxwell’s lane change

“wasn’t your typical lane change” and that “it felt out of the ordinary.” Tr. 11. He based this

solely on the fact that Maxwell straddled the center line for approximately 50-100 feet. This

does not seem like a great distance, especially when one considers that Maxwell was traveling 45

miles per hour. Simple math reveals that Maxwell was traveling 66 feet per second,2 which

means he straddled the center line for between 0.75 and 1.5 seconds while making his lane

change from the left-hand lane to the right-hand lane. In short, this is not a case where a driver

was weaving between lanes, crossing solid center lines on a highway, or otherwise violating the

marked lanes law. Rather, Maxwell straddled a center dotted line for no more than a couple of

seconds while changing lanes.

           {¶ 18} Furthermore, a safe driver, allowing for the possibility that there may be a vehicle

behind him in the lane to his right that is within his blind spot, may wisely prefer a less abrupt

lane change, to give a driver in his blind spot an opportunity to either honk the horn, or slow


            2
                The calculation is 45 miles per hour multiplied by 5,280 feet in a mile divided by 3600 seconds in an hour equals 66 feet per
 second.
                                                                                              10


down to avoid a collision.

       {¶ 19} Officer Wisecup conceded that Maxwell’s act in leaving on his right-turn signal

for an additional 300 yards after changing lanes was not a violation of any statute or traffic

ordinance. Again, mathematically, it would have taken no more than 15 seconds to traverse 300

yards at 45 mph. And even if Maxwell was slowing down to make his right turn, he would have

left his right-turn signal on for no more than about 30 seconds. Many motorists would not take

the trouble to turn their right-turn signal off after making a lane change if anticipating a

subsequent right turn in 300 yards.

       {¶ 20} The trial court cited the fact that Maxwell exited the highway at an entrance to

Wright Patterson Air Force Base that was closed at that hour. This was not a violation of the

traffic laws. Maxwell could have had any number of legitimate reasons for pulling off the

highway. He may have thought he was lost and been wanting to check directions, for example.

Officer Wisecup conceded that it was “very possible” that someone could have exited Colonel

Glenn Highway without knowing that there was no access to the Air Force Base at that point.

       {¶ 21} Based on the facts before us, we conclude that Officer Wisecup’s testimony that

the lane change “wasn’t your typical lane change,” and that “it felt out of the ordinary,” is

insufficient to establish probable case to initiate a traffic stop for an alleged violation of

Beavercreek’s Marked Lanes Traffic Ordinance. Although Officer Wisecup never claimed to

have initiated the stop on suspicion of OMVI, we also conclude that on the record before us, the

aspects of Maxwell’s driving to which Wisecup testified were insufficient to give rise to a

reasonable, articulable suspicion of impaired driving. Therefore, the trial court should have

sustained Maxwell’s motion to suppress evidence resulting from the traffic stop.
                                                                                                11


       {¶ 22} Maxwell’s sole assignment of error is sustained.



                                        IV. Conclusion

       {¶ 23} Maxwell’s sole assignment of error having been sustained, the judgment of the

trial court is Reversed, and this cause is Remanded for further proceedings consistent with this

opinion.

                                         .............

DONOVAN J., concurs.


WELBAUM, J., dissenting.

       {¶ 24} I respectfully dissent with the majority’s holding that Officer Wisecup’s

testimony regarding Maxwell’s driving was insufficient to give rise to a reasonable, articulable

suspicion of impaired driving.

       {¶ 25} It is well-established that “[a] police officer may stop and detain a motorist when

he has a reasonable and articulable suspicion that a motorist has committed, is committing, or is

about to commit any criminal offense, including a traffic offense, and no independent reasonable

and articulable suspicion of other criminal activity is required under Terry [v. Ohio, 392 U.S. 1,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)].” State v. Gladman, 2d Dist. Clark No. 2013 CA 99,

2014-Ohio-2554, ¶ 14, citing State v. Stewart, 2d Dist. Montgomery No. 19961,

2004-Ohio-1319, at ¶ 13. (Other citation omitted.) An officer’s “reasonable suspicion may be

based on behavior that is not illegal.” State v. Worthham, 145 Ohio App.3d 126, 129, 761

N.E.2d 1151 (2d Dist.2001), citing United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104

L.Ed.2d 1 (1989). (Other citation omitted.) In fact, in State v. Hilleary, 2d Dist. Miami No.
                                                                                                      12


88-CA-5, 1989 WL 55637, *3 (May 24, 1989), this court stated that:

       erratic driving alone was a sufficient basis for an articulable and reasonable

       suspicion, justifying an investigative stop to determine the reason for the erratic

       driving, under the holdings of Terry and [Freeman]. The officer may have had a

       duty, morally at least, to investigate the cause of the weaving, in order to protect

       the public, and even [the defendant], for that matter, against such possible causes

       as the driver being unduly mentally fatigued or sleepy, or even some mechanical

       defect of the automobile.

Id., see, also, State v. Green, 2d Dist. Greene No. 2008 CA 104, 2009-Ohio-2540, ¶ 11; State v.
Jackson, 2d Dist. Montgomery No. 21300, 2006-Ohio-1971, ¶ 67; State v. Weierman, 2d Dist.
Montgomery No. 18853, 2001 WL 1598048, * 5 (Dec. 14, 2001).

       {¶ 26} Other appellate courts of Ohio have agreed that erratic driving provides a

sufficient basis for an investigative stop. See, e.g., City of Columbus v. Sayre, 10th Dist.

Franklin No. 97APC10-1435, 1998 WL 303903, *2 (June 9, 1998) (“an officer may stop a

motorist to investigate the cause of erratic driving even if the driving did not rise to the level of a

traffic violation”), citing State v. Aleshire, 10th Dist. Franklin No. 85AP-869, 1986 WL 8671, *3

(Aug. 5, 1986); State v. McCulloch, 6th Dist. Wood No. WD-87-56, 1988 WL 51468, *2 (May

20, 1988) (“[e]rratic driving, in and of itself, is an articulable reason for a police officer to stop a

vehicle”); State v. Miller, 4th Dist. Gallia No. 93 CA 20, 1994 WL 111333, *4 (Mar. 31, 1994)

(“in driving under the influence cases, erratic driving usually forms the factual basis for an

investigative stop”).

       {¶ 27} In the present case, Officer Wisecup’s testimony regarding Maxwell’s driving

sufficiently demonstrates that his driving was erratic. Wisecup testified that as Maxwell moved
                                                                                                  13


into the right-hand lane of travel, he “continually straddled the center line for several feet.” He

testified that this lasted for “a couple of seconds,” and ultimately drew his attention to Maxwell's

vehicle. Trans. (Nov. 27, 2013), p. 10-11. Wisecup also testified that the lane change “felt out

of the ordinary.” Id. at 11. In addition to the lane straddling, Wisecup testified that he observed

Maxwell’s turn signal blinking for 300 yards after he had already moved into the right lane. Id.

at 11. Then, when Maxwell finally made a right-hand turn, he turned into a closed exit ramp,

which “had been closed for some time.” Id. at 12. All of Maxwell’s actions are out of the

ordinary and can be fairly described as erratic driving.

       {¶ 28} It should also be noted that “[w]e determine the existence of reasonable suspicion

by evaluating the totality of the circumstances, considering those circumstances ‘through the eyes

of the reasonable and prudent police officer on the scene who must react to events as they

unfold.’ ” Gladman, 2d Dist. Clark No. 2013 CA 99, 2014-Ohio-2554 at ¶ 14, quoting State v.

Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14. Here, Wisecup observed

Maxwell driving erratically at two or three o’clock in the morning in a business area where

everything was closed.       Trans. (Nov. 27, 2013), p. 23.          Under the totality of those

circumstances, it was reasonable for Wisecup to suspect that Maxwell might be driving while

impaired.   Given this reasonable suspicion, Wisecup’s investigatory stop of Maxwell was

justified, and therefore, I disagree with the majority’s decision holding otherwise.

                                          .............


Copies mailed to:

Betsy A. Deeds
Christopher R. Bucio
Hon. Beth W. Root
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