[Cite as State v. Leder, 2019-Ohio-2866.]




                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




 STATE OF OHIO,                                    :

        Appellee,                                  :       CASE NO. CA2018-10-072

                                                   :                OPINION
     - vs -                                                          7/15/2019
                                                   :

 BRADLEY R. LEDER,                                 :

        Appellant.                                 :




           CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
                             Case No. 2018TRC7515



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, Batavia, Ohio 45103, for appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 301 East
Main Street, Batavia, Ohio 45103, for appellant



        S. POWELL, J.

        {¶ 1} Appellant, Bradley R. Leder, appeals the decision of the Clermont County

Municipal Court denying his motion to suppress. For the reasons outlined below, we affirm.

                                     Facts and Procedural History
                                                                   Clermont CA2018-10-072

       {¶ 2} On May 29, 2018, a complaint was filed charging Leder with operating a

vehicle while under the influence of alcohol in violation of both R.C. 4511.19(A)(1)(a) and

(A)(1)(d). The complaint also charged Leder with two "turn signal violations" for failing to

properly use his turn signal in violation of R.C. 4511.39(A). The charges arose after Trooper

Haggerty with the Ohio State Highway Patrol initiated a traffic stop of Leder's vehicle after

he observed Leder commit what he believed was at least one, if not more, traffic violations;

namely, Leder's failure to properly use his turn signal in violation of R.C. 4511.39(A) on two

separate occasions, as well as a marked lane violation in violation of R.C. 4511.33(A)(1).

Leder later submitted to a breath-alcohol test that indicated he had a breath-alcohol-content

of .150.

       {¶ 3} On July 24, 2018, Leder filed a motion to suppress. In support of his motion,

Leder argued Trooper Haggerty lacked a reasonable suspicion to initiate a traffic stop of his

vehicle. The trial court held a hearing on Leder's motion on September 4, 2018. The lone

witness to testify at the suppression hearing was Trooper Haggerty. Trooper Haggerty's

testimony was supplemented by a video recording of the traffic stop taken from Trooper

Haggerty's cruiser camera. The following is a summary of Trooper Haggerty's testimony

and evidence taken from that video recording.

       {¶ 4} On May 28, 2018 at 4:03 a.m., Trooper Haggerty was parked perpendicular

to I-275 looking east across all three lanes of northbound traffic near Union Township,

Clermont County, Ohio. At that time, Trooper Haggerty observed a vehicle pass his cruiser

traveling nine miles per hour below the posted 65 mile per hour speed limit. The vehicle

caught Trooper Haggerty's attention due to the vehicles' "slow rate of speed."           It is

undisputed that Leder was the driver of the vehicle in question.

       {¶ 5} Approximately 15 seconds after observing Leder's pass, Trooper Haggerty

pulled his cruiser onto I-275 and began following Leder northbound towards the exit ramp

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from I-275 to State Route 125. Upon his approach to the exit ramp, Trooper Haggerty

testified that he witnessed Leder change lanes without properly using his turn signal in

violation of R.C. 4511.39(A). Pursuant to that statute, "[w]hen required, a signal of intention

to turn or move right or left shall be given continuously during not less than the last one

hundred feet traveled by the vehicle[.]" Specifically, as Trooper Haggerty testified:

              So there's three lanes on the interstate, there's three lanes and
              then there's an off ramp to 125 so he merges onto the off ramp
              and then turns his turn signal on late; if he used it properly he
              would have to use his turn signal on 100 feet prior to changing
              lanes or turning right.

       {¶ 6} Similarly, when asked if it was his "perception" that Leder was already in the

exit lane when he used his turn signal, Trooper Haggerty testified:

              Yes, he already changed lanes and then turned his turn signal
              on. It would be the same as if I'm in the left lane then I turn in
              the right and I'm in the right lane and then I go and flick my turn
              signal on.

Trooper Haggerty testified he witnessed Leder commit this traffic violation from

approximately 900 to 1,000 feet behind Leder's vehicle.

       {¶ 7} Upon exiting onto the off ramp from I-275 to State Route 125, Trooper

Haggerty observed Leder travel down the exit ramp towards a red traffic light. Trooper

Haggerty testified he then watched as Leder "rolls through the red light, he doesn't blow it

but he slightly rolls through it" before making a right hand turn onto State Route 125. Similar

to Leder changing lanes from I-275 onto the exit ramp to State Route 125, Trooper Haggerty

testified Leder made this right hand turn onto State Route 125 "and as he's making it he

turns his right turn signal on late again[.]"    The video recording taken from Trooper

Haggerty's cruiser camera confirms this testimony.

       {¶ 8} Trooper Haggerty testified he then witnessed Leder commit what he believed

was a marked lane violation when "his right two tires touch the white dotted line to the right


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of the vehicle." Pursuant to R.C. 4511.33(A)(1), "[a] vehicle * * * shall be driven, as nearly

as is practicable, entirely within a single lane or line of traffic[.]" As Trooper Haggerty

testified while watching the video recording taken from his cruiser camera:

              Q: Okay, thank you, stop [the video recording]. I guess I missed
              it, I didn't see any marked lanes violation there, did you, Officer?

              A: I did, sir.

              Q: Where did you see it?

              A: His right two tires touched the white dotted line, doesn't go
              over the line, it just touches them.

              Q: You were able to see that from your vehicle?

              A: Yes, sir.

       {¶ 9} Trooper Haggerty also testified:

              Q: So you think right there you were able to see the –

              A: Approximately a second after, a second before, yes.

              Q: Well, we'll keep moving.

              A: Stop. Keep going. Stop. That white line right there he just
              passed, he just touched that line, you see a white dotted line
              right there.

              Q: Well, I don't see him touching anything but that's my
              perception. Is that where you think it happened?

              A: Yes, sir.

       {¶ 10} Following this testimony, the trial court questioned Trooper Haggerty

regarding Leder's exit from I-275 onto the exit ramp to State Route 125, during which

Trooper Haggerty testified:

              Q: You had indicated before that you made the observation that
              100 feet prior to changing lanes he had changed a lane without
              using the turn signal?

              A: Yes.


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              Q: Which lanes do you believe he moved to and from?

              A: You're supposed to turn your signal on to signal that you're
              taking the off ramp but he takes the off ramp and then he's about
              underneath that sign right there is when he flicks his turn signal
              on.

              Q: So it's your testimony that he was already on the off ramp
              then turned his turn signal on to make that –

              A: Correct, Your Honor.

              Q: To make that lane change?

              A: Yes, Your Honor.

       {¶ 11} Thereafter, when asked by the trial court about Leder's right hand turn onto

State Route 125 and the alleged marked lane violation committed a short time later, Trooper

Haggerty testified:

              Q: Okay.

              A: And then as well when he's turning right onto 125 he's late as
              well turning his turn signal on.

              Q: Okay. And the marked lanes violation is the one that you had
              just indicated?

              A: Yes, Your Honor.

       {¶ 12} After a brief recess to compare Trooper Haggerty's testimony to that of the

video recording taken from Trooper Haggerty's cruiser camera, the trial court judge returned

to the bench and issued a decision denying Leder's motion to suppress. In so holding, the

trial court noted that it had found Trooper Haggerty's testimony "to be both reasonable and

credible" when comparing it to the video recording taken from his cruiser camera.

Specifically, as the trial court stated when issuing its decision:

              [T]he sole issue is whether or not [Trooper Haggerty] had
              reasonable and articulable suspicion to stop Mr. Leder's motor
              vehicle. The testimony was that on May 28th of 2018 at
              approximately I believe 4:03 A.M. starting on I-275 in Clermont
              County, Ohio Trooper Haggerty was stationary at that location,

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              the defendant's vehicle drove past him, Trooper Haggerty
              testified that on I-275 there are three lanes, ultimately there's an
              off ramp lane that you can exit onto State Route 125 and that
              he indicated that, he being Trooper Haggerty, indicated that he
              observed Mr. Leder's vehicle not make a proper lane change
              within the 100 feet requirement under 4511.39 as he was trying
              to exit at that location.

       {¶ 13} Continuing, the trial court then stated:

              Trooper Haggerty indicated and the Court saw on the video as
              well that when Mr. Leder was turning right from the exit ramp
              onto 125 that while there was a turn signal it looked like it was
              about at least at the beginning stages of the actual turn and
              maybe about halfway through that right turn onto 125. Trooper
              Haggerty also indicated a marked lanes violation where he saw
              that the defendant's vehicle had touched the white dotted lines
              on one occasion.

       {¶ 14} Concluding, the trial court stated:

              [W]ith the testimony that's here that I have found both to be
              reasonable and credible I do find that there was a reasonable
              and articulable suspicion for Trooper Haggerty to stop Mr.
              Leder's car on that occasion, so at this point in time * * * the
              motion to suppress is going to be overruled or denied.

       {¶ 15} On September 11, 2018, Leder entered a plea of no contest to driving under

the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) in exchange for the other

charges being dismissed. After engaging Leder in the necessary plea colloquy, the trial

court accepted Leder's no contest plea and entered a finding of guilt. The trial court then

sentenced Leder to 90 days in jail, with 87 of those days suspended, placed Leder on

community control for a period of two years, and ordered Leder pay a $375 fine. The trial

court also mandated Leder complete 16 hours of community service and suspended Leder's

driver's license for one year.

                                           Appeal

       {¶ 16} Leder now appeals from the trial court's decision denying his motion to

suppress, raising one assignment of error for review. In his single assignment of error,


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Leder argues the trial court erred by denying his motion to suppress upon finding Trooper

Haggerty had reasonable suspicion to initiate an investigative traffic stop of his vehicle. We

find no merit to Leder's claim.

                                    Standard of Review

       {¶ 17} Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-

4769, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When

considering a motion to suppress, the trial court, as the trier of fact, is in the best position

to weigh the evidence to resolve factual questions and evaluate witness credibility. State

v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. Therefore, when

reviewing the denial of a motion to suppress, this court is bound to accept the trial court's

findings of fact if they are supported by competent, credible evidence. State v. Durham,

12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 14.               "An appellate court,

however, 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." State v. Cochran, 12th Dist. Preble No.

CA2006-10-023, 2007-Ohio-3353, ¶ 12.

             Reasonable Suspicion to Initiate an Investigative Traffic Stop

       {¶ 18} "Ohio recognizes two types of lawful traffic stops." State v. Stover, 12th Dist.

Clinton No. CA2017-04-005, 2017-Ohio-9097, ¶ 8. One of those lawful traffic stops "is an

investigative stop, also known as a Terry stop, in which the officer has reasonable suspicion

based on specific or articulable facts that criminal behavior is imminent or has occurred."

State v. Bullock, 12th Dist. Clinton No. CA2016-07-018, 2017-Ohio-497, ¶ 7, citing Terry v.

Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868 (1968).          While the concept of "reasonable and

articulable suspicion" has not been precisely defined, "[t]he reasonable-suspicion standard

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is less demanding than the probable-cause standard used when analyzing an arrest." State

v. Hairston, Slip Opinion No. 2019-Ohio-1622, ¶ 10, citing United States v. Sokolow, 490

U.S. 1, 7, 109 S.Ct. 1581 (1989). The determination whether an officer had reasonable

suspicion to initiate an investigative stop "must be based on the totality of circumstances

'viewed through the eyes of the reasonable and prudent police officer on the scene who

must react to events as they unfold.'" Id., quoting State v. Andrews, 57 Ohio St.3d 86, 87-

88 (1991).

                                           Analysis

       {¶ 19} After a thorough review of the record, we find no error in the trial court's

decision denying Leder's motion to suppress. That is to say the trial court did not err by

finding Trooper Haggerty had reasonable suspicion to initiate an investigative traffic stop of

Leder's vehicle after he observed Leder commit what he believed was at least one, if not

more, traffic violations; namely, Leder's failure to properly use his turn signal in violation of

R.C. 4511.39(A) on two separate occasions, as well as a marked lane violation in violation

of R.C. 4511.33(A)(1). Although we find no mistake occurred in this case, this outcome

would not change even if Trooper Haggerty was mistaken in his belief that a traffic violation

had in fact occurred. This is because "[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. Kirkpatrick, 1st Dist. Hamilton Nos.

C-160880 thru C-160882, 2017-Ohio-7629, ¶ 6, citing Heien v. North Carolina, __ U.S. __,

135 S.Ct. 530, 540 (2014). Trooper Haggerty's belief that Leder committed at least one, if

not more, traffic violations was objectively reasonable under the facts and circumstances of

this case.

       {¶ 20} Despite this, Leder argues the trial court erred by denying his motion to

suppress since Trooper Haggerty's testimony was "not worthy of belief." However, the trial

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court, as the trier of fact, was free to accept or reject any or all of the testimony presented

by Trooper Haggerty offered at the suppression hearing. State v. Cummins, 12th Dist.

Clermont No. CA2018-07-051, 2019-Ohio-1496, ¶ 45, citing State v. Frye, 5th Dist. Stark

No. 2006CA00363, 2007-Ohio-7111, ¶ 48.           The trial court found Trooper Haggerty's

testimony "both credible and reliable." This court cannot, and will not, "second-guess a trial

court's decision to believe the testimony in the record." State v. Young, 12th Dist. Clermont

No. CA2005-08-074, 2006-Ohio-1784, ¶ 17. This is particularly true here when considering

the trial court had the benefit of comparing – and in fact did compare – Trooper Haggerty's

testimony with that of the video recording of the traffic stop taken from his cruiser camera.

       {¶ 21} Leder also argues the video recording taken from the cruiser camera

"debunks" Trooper Haggerty's testimony that he observed Leder commit what he believed

were two violations of R.C. 4511.39(A) and one violation of R.C. 4511.33(A)(1). This court,

also having the benefit of reviewing the video recording taken from Trooper Haggerty's

cruiser camera, finds no merit to Leder's claim. Although not recorded in high definition,

the video recording taken from the cruiser camera contains sufficient competent, credible

evidence to support the trial court's decision finding Trooper Haggerty had reasonable

suspicion to believe Leder committed at least one, if not more, traffic violations. This court

is bound to accept the trial court's findings of fact if they are supported by competent,

credible evidence. Durham, 2013-Ohio-4764 at ¶ 14. Such is the case here.

       {¶ 22} For instance, as it relates to Leder's failure to properly use his turn signal in

violation of R.C. 4511.39(A), this court is unable to determine from our review of the video

recording the exact distance from which Leder used his turn signal to exit from I-275 onto

the exit ramp to State Route 125. However, just as Trooper Haggerty testified, the video

recording clearly shows Leder did not use his turn signal 100 feet before turning from the

exit ramp on I-275 to State Route 125. The video recording instead shows Leder activated

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his turn signal while in the process of making that right-hand turn as he rolled through a red

traffic light. This gave Trooper Haggerty reasonable suspicion that he had just observed

Leder, at the very minimum, commit a violation of R.C. 4511.39(A). See, e.g., Bowling

Green v. Barger, 6th Dist. Wood No. WD-05-082, 2006-Ohio-6187, ¶ 28 (arresting officer

had reasonable suspicion to initiate an investigative traffic stop where appellant failed to

use his turn signal 100 feet prior to turning); State v. Acord, 4th Dist. Ross No. 05CA2858,

2006-Ohio-1616, ¶ 14-15 (arresting officer "held a reasonable belief and/or had probable

cause" to initiate an investigative traffic stop where appellant "activate[d] her turn signal just

before making a left turn").

       {¶ 23} The Ninth District Court of Appeals reached a similar result in State v. Panaro,

9th Dist. Medina No. 16CA0067-M, 2018-Ohio-1005. In that case, appellant was charged

with driving under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and (A)(1)(h).

Id. at ¶ 2. Appellant was also charged with failing to properly use his turn signal in violation

of R.C. 4511.39(A). Id. Upon entering a not guilty plea, appellant filed a motion to suppress.

In support of his motion, appellant alleged the arresting officer lacked reasonable suspicion

to initiate an investigative traffic stop of his vehicle. Id. at ¶ 5. The trial court disagreed and

found the arresting officer had reasonable suspicion to initiate a traffic stop based on

appellant's "failure to properly use a turn signal 100 feet prior to making a left hand turn as

observed by the officer" in violation of R.C. 4511.39(A). Id. at ¶ 12.

       {¶ 24} Appellant appealed the trial court's decision arguing the trial court erred by

finding he "failed to put his turn signal on 100 feet prior to turning." Id. at ¶ 5. The Ninth

District disagreed and held:

              [T]he trial court's finding that [appellant] failed to use his turn
              signal for 100 feet prior to turning left was supported by
              competent, credible evidence. From the video, it is impossible
              to tell how far [appellant] was from the intersection when he
              activated his turn signal. [The arresting officer], however, did

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              testify that while [appellant] did use his turn signal when turning,
              he failed to use it 100 feet prior to turning. The officer further
              testified that it was not until [appellant] was nearly at the
              intersection that he utilized his turn signal. It is clear that the
              trial court found [the arresting officer's] testimony credible, as
              the trial court relied on it. As the video does not discredit [the
              officer's] testimony, we cannot say that the trial court's finding is
              unsupported by the evidence.

(Internal citations omitted.) Id. at ¶ 14. Therefore, because appellant did not argue that "if

he indeed failed to use his turn signal 100 feet prior to turning left he would have violated

the statute," the Ninth District found appellant "has not demonstrated that the initial stop

violated the constitution." Id. at ¶ 15.

       {¶ 25} The Ninth District's decision in Panaro is analogous to the case at bar. The

trial court in this case, just like the trial court in Panaro, was able to compare Trooper

Haggerty's testimony with that of the video recording taken from Trooper Haggerty's cruiser

camera. Upon review of that video recording, both the trial court in Panaro and the trial

court in this case found the arresting officer had reasonable suspicion to believe the officer

had just witnessed the defendant commit a violation of R.C. 4511.39(A). We agree that this

observation, standing alone, provided Trooper Haggerty with reasonable suspicion to

initiate an investigative traffic stop of Leder's vehicle. See State v. Lowman, 82 Ohio App.3d

831, 837 (12th Dist.1992) (reasonable suspicion existed for trooper to conduct an

investigative traffic stop where the trooper witnessed appellant fail to properly use his turn

signal when entering the highway).         This is true irrespective of whether Leder also

committed a marked lane violation in violation of R.C. 4511.33(A)(1). "A police officer's

observation of a person violating a traffic law is sufficient to give rise to the officer's

reasonable conclusion that the person is engaged in criminal activity." State v. Campbell,

9th Dist. Medina No. 05CA0032-M, 2005-Ohio-4361, ¶ 11.

       {¶ 26} The fact that Leder may not have been found guilty of any of the charges


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alleged in the complaint bares no significance on this court's holding. Whether the evidence

would be sufficient to support a finding of guilt is beyond the scope of this opinion. Again,

the issue to be resolved at the suppression hearing was whether Trooper Haggerty had a

reasonable suspicion to initiate a traffic stop of Leder's vehicle. "That the state may fail to

prove an offense by proof beyond a reasonable doubt does not mean that the much lower

standard of probable cause did not exist to support the offense in the first instance." State

v. Mansour, 12th Dist. Warren No. CA2015-06-051, 2016-Ohio-755, ¶ 26. The same is true

as it relates to the even lower, less-demanding reasonable suspicion standard.

       {¶ 27} Leder nevertheless directs this court's attention to the decision in State v.

Marcum, 5th Dist. Licking No. 12-CA-88, 2013-Ohio-2652, wherein the Fifth District Court

of Appeals found "the Trooper did not have reasonable, articulable suspicion to stop

appellee based on her action in driving on the white fog line[.]" Id. at ¶ 17. Leder also

directs this court's attention to the decision in State v. Shaffer, 3d Dist. Paulding No. 11-13-

02, 2013-Ohio-3581, a case in which the Third District Court of Appeals similarly found

appellant's "driving onto the white fog line one time for a matter of three seconds" was,

standing alone, insufficient to establish requisite reasonable suspicion to stop appellant's

vehicle for a marked lane violation. Id. at ¶ 27; see also State v. Smith, 3d Dist. Marion

County No. 9-17-05, 2017-Ohio-5845 (affirming trial court's decision granting a motion to

suppress upon finding officer had no reasonable suspicion to initiate a traffic stop because

"no traffic violation occurred" when the defendant was observed driving "on top of the white

edge line"); Mentor v. Phillips, 11th Dist. Lake No. 99-L-119, 2000 Ohio App. LEXIS 6207

(Dec. 29, 2000) (officer did not have probable cause to stop appellant for a marked lane

violation where appellant drove "onto the white markings and then back over").

       {¶ 28} However, unlike in Marcum and Shaffer, and by extension Smith and Phillips,

the record in this case indicates Trooper Haggerty initiated a traffic stop of Leder's vehicle

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for much more than observing Leder driving onto a marked lane line one time. Compare

Lebanon v. Evans, 12th Dist. Warren CA2009-08-116, 2010-Ohio-4402, ¶ 13-14 (municipal

court did not err by finding trooper had a reasonable suspicion to initiate a traffic stop where

the trooper testified he observed appellant's "tires hit the dotted lines" "a couple of times").

The record instead indicates Trooper Haggerty initiated a traffic stop of Leder's vehicle after

he observed what he believed constituted two violations of R.C. 4511.39(A) and one

violation of R.C. 4511.33(A)(1).

       {¶ 29} "[A]n officer who has probable cause necessarily has a reasonable and

articulable suspicion, which is all the officer needs to justify a stop." State v. Mays, 119

Ohio St.3d 406, 2008-Ohio-4539, ¶ 22. "Consequently, an officer who reasonably suspects

that a traffic violation has occurred need not determine whether a driver's conduct might be

excused before initiating a traffic stop." State v. Rubsam, 9th Dist. Medina No. 18CA0089-

M, 2019-Ohio-2153, ¶ 8, citing Id. at ¶ 16-17. That is to say "[a]n officer is not required to

determine whether someone who has been observed committing a crime might have a legal

defense to the charge."      Mays at ¶ 17.       To hold otherwise would necessitate law

enforcement officials to act as the trier of fact – either a jury or the trial court – prior to

conducting an otherwise legally permissible and constitutionally protected traffic stop.

                                         Conclusion

       {¶ 30} The trial court did not err by denying Leder's motion to suppress upon finding

Trooper Haggerty had reasonable suspicion to initiate an investigative traffic stop of Leder's

vehicle. This is true "even if the officer had some ulterior motive for making the stop, such

as a suspicion that the violator was engaging in more nefarious criminal activity." Dayton

v. Erickson, 76 Ohio St.3d 3 (1996), paragraph one of the syllabus. "It is the role of a trial

court in a suppression hearing such as this to determine whether there was sufficient

evidence of the officer having reasonable and articulable suspicion to effectuate a traffic

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stop and then whether there was probable cause to arrest the defendant for the charges."

State v. Hatfield, 5th Dist. Morrow No. 10-CA-8, 2011-Ohio-597, ¶ 38. Therefore, because

we find Trooper Haggerty conducted a lawful investigative traffic stop of Leder's vehicle,

Leder's single assignment of error lacks merit and is overruled.

      {¶ 31} Judgment affirmed.


      PIPER and M. POWELL, JJ., concur.




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