[Cite as State v. Miller, 2012-Ohio-6147.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. Patricia A. Delaney, P.J.
                                                :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee    :       Hon. William B. Hoffman, J.
                                                :
-vs-                                            :
                                                :       Case No. 2012-CA-25
ANITA JO MILLER                                 :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Fairfield Municipal
                                                    Court Case No. 2011TRC11881

JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT ENTRY:                             December 26, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ANDREW MAKOSKI                                      AARON CONRAD
Assistant Prosecutor                                Conrad Law Office
City of Lancaster                                   120 ½ E. Main Street
121 E. Chestnut St.                                 Lancaster, OH 43130
Lancaster, OH 43130
[Cite as State v. Miller, 2012-Ohio-6147.]


Gwin, J.,

        {¶1}     Defendant-appellant Anita J. Miller [“Miller”] appeals the March 29, 2012

Judgment Entry of the Fairfield County Municipal Court denying her motion to suppress

evidence. Plaintiff-appellee is the State of Ohio.

                                   FACTS AND PROCEDURAL HISTORY

        {¶2}     On November 27, 2011, Miller was charged with violating R.C.

4511.19(A)(1)(a), operating a vehicle under the influence of alcohol. Subsequently she

filed a motion to suppress arguing, among other things, that there was no reasonable

and articulable suspicion to stop and detain her. On March 26, 2012, an oral hearing

was held on Miller's motion to suppress. At that hearing, the following testimony was

presented.

        {¶3}     On November 27, 2011, Officer David Thompson and Officer Marla

Morehouse of the Lancaster Police Department were investigating a report of an open

door at an address in Fairfield County, Ohio. While crossing the street, Officer

Thompson heard the revving of the engine of Miller’s vehicle that was one block away

stopped at a traffic signal. Officer Thompson testified he heard the revving of the engine

for approximately 2 seconds. Officer Thompson was standing in the roadway as Miller’s

vehicle approach him. Officer Thompson visually estimated the speed of the vehicle to

be greater than the posted speed limit of 25 miles per hour. Officer Thompson used his

flashlight to signal Miller to stop her vehicle. Miller stopped pursuant to the officer's

directives and informed the officer that she did not have a license. Officer Thompson

then instructed Miller to pull to the side of the road. Officer Thompson proceeded to cross
Fairfield County, Case No. 2012-CA-25                                                     3


the street to conclude the open door investigation. Officer Morehouse began interacting with

Miller. Miller was thereafter arrested for OVI and operating with a suspended license.

       {¶4}   On March 29, 2012, the Court filed a Journal Entry overruling Miller's

motion to suppress because Miller’s revving the engine of her stick shift vehicle while

stopped at an intersection allowed Officer Thompson to pull Miller’s vehicle over to

conduct an investigatory stop.

       {¶5}   On May 10, 2012, Miller changed her plea from "not guilty to "no contest"

to the OVI charge and was sentenced by the trial court to a jail sentence of 30 days, a

fine of $600.00 and court costs. The court further suspended Miller’s driver’s license for

two years, and to serve two years probation.

                                   ASSIGNMENT OF ERROR

       {¶6}   Miller raises one assignment of error,

       {¶7}   “I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S

MOTION TO SUPPRESS.”

                                           ANALYSIS

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

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2000-Ohio-5372 797 N.E.2d

71, ¶8. When ruling on 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 to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988(1995); State v.

Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583(1982). Accordingly, a reviewing court

must defer to the trial court's factual findings if competent, credible evidence exists to

support those findings. See Burnside, supra; Dunlap, supra. However, once an
Fairfield County, Case No. 2012-CA-25                                                          4


appellate court has accepted those facts as true, it must independently determine as a

matter of law whether the trial court met the applicable legal standard. See Burnside,

supra, citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist. 1997);

See, also, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That

is, the application of the law to the trial court's findings of fact is subject to a de novo

standard of review. Ornelas, supra. Moreover, due weight should be given “to

inferences drawn from those facts by resident judges and local law enforcement

officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

       {¶9}   In the case at bar, Miller challenges only the stop of her motor vehicle.

The Ohio Supreme Court has emphasized that probable cause is not required to make

a traffic stop; rather the standard is reasonable and articulable suspicion. State v. Mays,

119 Ohio St.3d 406, 2008-Ohio-4358, 894 N.E.2d 1204, ¶23. Further, neither the United

States Supreme Court nor the Ohio Supreme Court considered the severity of the

offense as a factor in determining whether the law enforcement official had a

reasonable, articulable suspicion to stop a motorist. See, City of Dayton v. Erickson, 76

Ohio St.3d 3, 11-12, 665 N.E.2d 1091(1996); Whren v. United States, 517 U.S. 806,

813, 116 S.Ct. 1769, 135 L.Ed.2d 89(1996).

       {¶10} We perceive of no reason why revving the engine of a stick shift vehicle

while alone at a stop light is “suspicious activity” sufficient to justify the investigative stop

of the vehicle. The state points to no law that was violated by that activity. The record

contains only the officers unaided visual estimates of speed in slight excess of the
Fairfield County, Case No. 2012-CA-25                                                     5


speed limit as an additional factor, which taken together with the engine revving the

state argues justified further investigation.

       {¶11} The officers are statutorily prohibited from arresting or even charging a

driver for a speeding violation based upon the officer’s “unaided visual estimation of the

speed of the motor vehicle.” R.C. 4511.091(C)(1). R.C. 4511.091(C) provides in

pertinent part:

              No person shall be arrested, charged, or convicted of a violation of

       any provisions of divisions (B) to (O) of Section 4511.21 or Section

       4511.211 of the Revised Code or a substantially similar municipal

       ordinance based on a peace officer's unaided visual estimation of the

       speed of a motor vehicle, trackless trolley, or streetcar.

       {¶12} Thus, the notion that officers may use unaided visual estimates of speed

for arrest, charging, and conviction have been superseded and overruled by legislation.

Allowing an officer to stop a vehicle on their subjective impressions that a vehicle is

traveling in slight excess of the legal speed limit may permit officers to do just what the

legislature had abolished. In other words, permitting an investigative stop when the

officer cannot arrest or charge based upon his unaided visual estimate of speed in slight

excess of the speed limit effectively eliminates any protection against profiling and

arbitrary detentions.

       {¶13} Further, that the legislature did not intend to permit investigatory stops of a

vehicle on an officer’s subjective impressions that a vehicle is traveling in slight excess

of the legal speed limit can be found within             the specific exception in R.C.

4511.091(C)(1)(c),
Fairfield County, Case No. 2012-CA-25                                                       6


                 (C)(1) * * * This division does not do any of the following:

                 (c) Preclude a peace officer from testifying that the speed of

       operation of a motor vehicle, trackless trolley, or streetcar was at a speed

       greater or less than a speed described in division (A) of section 4511.21 of

       the Revised Code1, the admission into evidence of such testimony, or

       preclude a conviction of a violation of that division based in whole or in

       part on such testimony.

       {¶14} Accordingly, the legislature has expressly allowed for officers to testify,

and for drivers to be convicted upon, unaided visual estimates of speed within a school

zone. Had the legislature intended to permit investigatory stops outside the parameters

of a school zone, they clearly would have allowed for the exception.

       {¶15} Thus, under the facts in the case at bar, the officers intruded upon

constitutionally guaranteed rights based on nothing more substantial than inarticulate

hunches. Terry, 392 U.S. at 22, 88 S.Ct. 1868, 20 L.Ed.2d 889. “And simple ‘good faith

on the part of the arresting officer is not enough.' * * * If subjective good faith alone were

the test, the protections of the Fourth Amendment would evaporate, and the people

would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of

the police.'” Beck v. Ohio, [379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142(1964] at 97, 85

S.Ct. at 229.” Terry at 22.

       {¶16} Miller’s sole assignment of error is sustained.




       1
           Speed limits; school zones; modifications.
Fairfield County, Case No. 2012-CA-25                                              7


      {¶17} The judgment of the Fairfield County Municipal Court is reversed and this

matter is remanded for proceedings in accordance with our opinion and the law.

By Gwin, J.,

Delaney, P.J., and

Hoffman, J., concur




                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. PATRICIA A. DELANEY


                                            _________________________________
                                            HON. WILLIAM B. HOFFMAN

WSG:clw 1130
[Cite as State v. Miller, 2012-Ohio-6147.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
ANITA JO MILLER                                   :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2012-CA-25




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Fairfield County Municipal Court is reversed and this matter is remanded for

proceedings in accordance with our opinion and the law. Costs to appellee.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN
