         [Cite as State v. Brown, 2020-Ohio-896.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-190186
                                                        TRIAL NO. B-1804889
        Plaintiff-Appellant,                        :
                                                           O P I N I O N.
  vs.                                               :

TERRANCE BROWN,                                     :

    Defendant-Appellee.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 11, 2020


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Thomas D. Molony Co., L.P.A., and Thomas D. Molony, for Defendant-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS



C ROUSE , Judge.

       {¶1}   The state of Ohio appeals from the trial court’s grant of defendant-

appellee Terrance Brown’s motion to suppress. For the reasons set forth below, we

affirm the trial court’s judgment.

                                Facts and Procedure

       {¶2}   On August 29, 2018, a Hamilton County Grand Jury indicted defendant-

appellee Terrance Brown for one count of having weapons while under a disability, one

count of carrying a concealed weapon, and one count of improperly handling firearms in

a motor vehicle. The charges against Brown stemmed from the discovery of firearms in

his vehicle during a traffic stop for an obstructed temporary license placard. Brown filed

a motion to suppress, challenging the constitutionality of the initial traffic stop. The

following evidence was presented at the suppression hearing.

       {¶3}   At approximately 5:20 p.m. on August 21, 2018, Officer Pat Kemper, a

police officer with the Springfield Township Police Department, observed Brown’s

vehicle traveling westbound on Northbend Road. Kemper pulled out behind the vehicle

to read the temporary license plate and run it through the database.

       {¶4}   Kemper testified that he attempted to read Brown’s temporary license

plate when he reached a “normal following distance, two to three car lengths[.]”

However, Kemper testified that he was unable to read the plate because “it had a tinted

license plate cover.” Kemper tried to read the temporary plate for “a couple hundred

yards.” Eventually, Kemper stopped “directly behind” Brown’s vehicle at a traffic light.

From that distance, “the license plate was clearly visible.” Kemper ran the plate and

received his return. The return showed that Brown’s vehicle was properly registered and

that Brown had no warrants.




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        {¶5}    Kemper subsequently initiated a traffic stop based on his belief that the

tinted license plate cover “obstructed” Brown’s temporary license placard in violation of

R.C. 4503.21.     According to Kemper, he believed a violation of R.C. 4503.21 had

occurred because the cover was “[t]inted enough that it hindered * * * a reasonable view

of the license plate.”

                                    Law and Analysis

        {¶6}    In its sole assignment of error, the state argues that Officer Kemper

lawfully stopped Brown’s vehicle because he reasonably believed that the temporary

license plate was in violation of the Ohio traffic laws due to the fact that the tinted license

plate cover rendered the plate unreadable beyond one car length of the vehicle.

        {¶7}    Appellate review of a motion to suppress is a mixed question of law and

fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. On

appeal, we must accept the trial court’s factual findings as true if they are supported by

competent, credible evidence.       Id.   Accepting these facts as true, we must then

independently determine whether the facts meet the applicable legal standard. Id.

        {¶8}    The Fourth Amendment protects against unreasonable searches and

seizures.   A traffic stop constitutes a seizure within the meaning of the Fourth

Amendment. State v. Slaughter, 1st Dist. Hamilton Nos. C-170110, C-170111 and C-

170112, 2018-Ohio-105, ¶ 10, citing Whren v. United States, 517 U.S. 806, 809-810, 116

S.Ct. 1769, 135 L.Ed.2d 89 (1996). Thus, any traffic stop must comply with the Fourth

Amendment’s reasonableness requirement. Id.

        {¶9}    A traffic stop is reasonable where the officer has probable cause to believe

that a traffic violation has occurred. Id. “A police officer’s observation of a traffic

offense, however minor, constitutes probable cause for such a traffic stop.” State v.

Johnson, 1st Dist. Hamilton Nos. C-010621 and C-010622, 2002-Ohio-2884, ¶ 7.



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          {¶10} However, probable cause is not always required to justify a traffic stop.

State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23. “A

traffic stop may be based on less than probable cause when an officer possesses

reasonable suspicion that a driver has committed, or is committing a crime,

including a minor traffic violation.” Slaughter at ¶ 11. If a reasonable articulable

suspicion exists, the officer may conduct an investigatory stop in order to confirm or

refute his suspicion. State v. Howell, 2018-Ohio-591, 106 N.E.3d 337, ¶ 11-12 (1st

Dist.).

          {¶11} To determine whether an officer possessed probable cause or

reasonable suspicion to stop a vehicle, the court must examine the totality of the

circumstances.      Id. at ¶ 12.    “The existence of probable cause [or reasonable

suspicion] depends on whether an objectively reasonable police officer would believe

that the driver’s conduct constituted a traffic violation.” Id., quoting Bowling Green

v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, ¶ 16.

          {¶12} The state argues that the trial court improperly applied the more

stringent probable-cause standard rather than the reasonable-suspicion standard.

However, it is clear from the trial court’s decision that it analyzed the case under both

standards. The trial court properly determined that it ultimately must view the case

“from the standpoint of an objectively reasonable police officer” and determine whether

the stop was reasonable “under the totality of the circumstances.”

          {¶13} In this case, Kemper stopped Brown’s vehicle for a suspected violation

of R.C. 4503.21, which provides: “No temporary license placard * * * shall be

covered by any material that obstructs its visibility.” The state argues that Kemper

reasonably believed Brown violated R.C. 4503.21 because the term “obstructs” means

to make the visibility of the placard more difficult. To the contrary, Brown argues



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that he could not have violated R.C. 4503.21 because the term “obstructs” means to

cut off visibility, as opposed to hinder visibility. However, we are not required to

make such a determination in this case.

       {¶14} The proper test is not whether a traffic violation occurred, but whether

the officer’s belief that a violation occurred was objectively reasonable. See, e.g.,

State v. Kirkpatrick, 2017-Ohio-7629, 97 N.E.3d 871, ¶ 6 (1st Dist.), citing Heien v.

North Carolina, 574 U.S. 54, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) (“A police

officer’s objectively reasonable belief that a traffic violation has occurred, including

reasonable mistakes of law, can constitute reasonable suspicion to justify a traffic

stop.”); State v. Cronin, 1st Dist. Hamilton No. C-100266, 2011-Ohio-1479, ¶ 11

(“Probable cause can exist even if the officer incorrectly determines that a traffic

violation has occurred or if the officer misunderstands the law that the driver is

allegedly violating.”). “The fact that a defendant could not ultimately be convicted of

[the traffic offense] is not determinative of whether an officer acted reasonably in

stopping him for that offense.” Id. at ¶ 12.

       {¶15} Tinted license plate covers are not a per se violation of the Ohio traffic

laws. Therefore, the trial court was tasked with determining whether Kemper’s belief

that Brown’s temporary license placard violated R.C. 4503.21 was objectively

reasonable.

       {¶16} In this case, the trial court found no credible evidence of obstruction prior

to the traffic stop. In its decision, the court found that the tinted license plate cover was

not coated with dirt, road salt, mud, or debris; the weather was clear; and the sun was

shining.      The court further found that Brown’s license plate characters were

ascertainable from Kemper’s vehicle. In fact, according to Kemper’s own testimony, he

could clearly read all of the relevant information on Brown’s license plate while stopped



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behind him at the traffic light. Based on the totality of the circumstances, the trial court

ultimately found that “Kemper’s testimony that the cover was ‘tinted enough that it

hindered [his] view and [he] felt that it was clearly in [his] opinion obstructing a

reasonable view of the license plate’ is problematic because it is clearly inconsistent with

the evidence.” Thus, regarding Kemper’s hindered view of Brown’s temporary license

plate, the trial court found this testimony lacked credibility and it did not believe that

Kemper observed a violation of R.C. 4503.21.

       {¶17} The state challenges the trial court’s factual findings and argues that the

court erroneously relied on four photographs of the covered plate that were admitted

into evidence at the suppression hearing. We disagree.

       {¶18} On      cross-examination,     defense   counsel    showed     Kemper     four

photographs of a covered license plate—one taken by Kemper and three taken by Brown.

With respect to the first photograph, Kemper agreed that he took it at the time of the

stop, but stated that the sunlight in the photograph was different from the sunlight on

which he based the traffic stop. He testified, however, that it was an “unchanged”

representation of the license plate cover.       With respect to the other photographs,

Kemper agreed that they appeared to be of Brown’s vehicle “based on the damage [to the

back of the vehicle].”    A review of the photographs demonstrates an identifiable

disfigurement of the trunk of Brown’s vehicle. The trial court found that “[d]espite the

plate cover itself not being before the court for consideration, the admitted photographs

provide a clear depiction of the tag and plate cover on the day of the stop.” After a

thorough review of the record and testimony in this case, we find that the court’s

findings were supported by competent, credible evidence.

       {¶19} Where the trial court found no credible evidence of obstruction, we

cannot find that an objectively reasonable police officer would have believed that a



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                      OHIO FIRST DISTRICT COURT OF APPEALS



violation of R.C. 4503.21 had occurred. Consequently, we hold that Kemper’s belief that

Brown’s temporary license placard was obstructed was not objectively reasonable, and

thus, Kemper lacked probable cause or a reasonable suspicion to stop Brown’s vehicle.

                                      Conclusion

       {¶20} The state’s sole assignment of error is overruled and the judgment of

the trial court is affirmed.

                                                                      Judgment affirmed.

M YERS , P.J., and W INKLER , J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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