[Cite as State v. Burns, 2020-Ohio-2848.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellant                     :   Appellate Case No. 28633
                                                 :
 v.                                              :   Trial Court Case No. 2019-CR-1925
                                                 :
 COLONEL LEE BURNS                               :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellee                      :
                                                 :

                                            ...........

                                            OPINION

                               Rendered on the 8th day of May, 2020.

                                            ...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellant

TRAVIS KANE, Atty. Reg. No. 0088191, 130 West Second Street, Suite 460, Dayton,
Ohio 45402
      Attorney for Defendant-Appellee

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

TUCKER, P.J.
                                                                                        -2-


       {¶ 1} On September 17, 2019, Defendant-appellee, Colonel Lee Burns, moved the

trial court to suppress evidence that had been obtained by officers with the City of Dayton

Police Department during a traffic stop. The trial court sustained the motion in an order

entered on December 9, 2019. Appealing from that order, Plaintiff-appellant, the State

of Ohio, argues in a single assignment of error that the order should be reversed because

the trial court applied the wrong standard to its consideration of Burns’s motion.

       {¶ 2} We find the State’s argument to be well taken. Therefore, the order of

December 9, 2019, is reversed, and the case is remanded to the trial court for further

proceedings consistent with this opinion.

                            I. Facts and Procedural History

       {¶ 3} Early in the morning on January 16, 2019, Officer James Gallagher of the

City of Dayton Police Department was patrolling in a marked police cruiser on Bentley

Street in Dayton, near a residence “believed [at the time] to be an active drug house.”

Transcript of Hearing on Motion to Suppress 4:15-5:16, Oct. 17, 2019 (hereinafter

“Hearing Transcript”). As he drove past, Officer Gallagher took note of a vehicle parked

in the alley behind the residence, raising his suspicions. See id. at 6:9-7:3. The officer

then drove to the end of the street and waited for the vehicle to emerge from the alley.

Id. at 7:4-7:8.

       {¶ 4} A few minutes later, Officer Gallagher saw the vehicle being driven from the

alley, and he followed it from Bentley Street to Bickmore Avenue, heading towards the

intersection of Bickmore Avenue and Valley Street. See id. at 7:9-7:17. The driver of

the vehicle—Burns—turned onto Valley Street without activating the vehicle’s turn signal
                                                                                           -3-


at least 100 feet in advance, so Officer Gallagher initiated a traffic stop.1 Id. at 7:18-8:3.

         {¶ 5} After approaching Burns’s vehicle, Officer Gallagher requested permission

to conduct a search, but Burns refused. Id. at 8:17-8:19. The officer requested that a

K-9 unit be dispatched to assist him, returned to his cruiser, and began to prepare a traffic

citation. See id. at 8:20-8:23 and 10:5-10:11. Before he finished the citation, the K-9

unit arrived. Id. at 13:3-13:17. The K-9 unit’s free air sniff resulted in an alert on the

forward, driver’s side door of Burns’s vehicle, leading to a general search. Id. at 13:18-

13:24 and 15:9-15:11. In the vehicle’s trunk, Officer Gallagher found “three or four fairly

large baggies” that contained “what appeared to be methamphetamines.” Id. at 15:12-

16:3. The officer arrested Burns and advised him of his Miranda rights. See id. at 16:7-

17:18.

         {¶ 6} On July 5, 2019, a Montgomery County grand jury indicted Burns for one

count of possession of methamphetamine, a second-degree felony pursuant to R.C.

2925.11(A) and (C)(1)(c). Burns filed a motion to suppress on September 17, 2019, in

which he asked the trial court to suppress all evidence obtained as a consequence of the

traffic stop. Following a hearing, at which the State presented the video captured by the

camera system in Officer Gallagher’s cruiser, the trial court sustained the motion to

suppress in its order of December 9, 2019. The State timely appealed to this court on

December 13, 2019.

                                         II. Analysis

         {¶ 7} For its single assignment of error, the State contends that:


1  Burns did activate his vehicle’s turn signal, albeit fewer than 100 feet from the
intersection of Bickmore Avenue and Valley Street. See Hearing Transcript 9:8-10:4.
                                                                                             -4-


              THE TRIAL COURT ERRED IN GRANTING BURNS’[S] MOTION

       TO SUPPRESS, AS THE TRIAL COURT USED THE INCORRECT LEGAL

       STANDARD IN GRANTING THE MOTION.

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

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

As the trier of fact, a trial court “is in the best position to weigh * * * evidence * * * and

evaluate [the credibility of] witness[es],” so an “appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible evidence.” Id., citing State

v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Graves, 12th Dist. Clermont

No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing State v. Cruz, 12th Dist. Preble No.

CA2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting the trial court’s findings of fact as

true, “the appellate court must then independently determine, without deference to the

[trial court’s legal] conclusion[s],” whether the “facts satisfy the applicable * * * standard.”

Burnside at ¶ 8, citing Fanning and State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d

539 (3d Dist.1997).

       {¶ 9} Here, on consideration of Burns’s motion to suppress, the trial court found

that the video captured by Officer Gallagher’s cruiser camera did not allow for a

determination of whether Burns, in fact, failed to activate his vehicle’s turn signal at least

100 feet from the intersection of Bickmore Avenue and Valley Street. See Decision,

Order and Entry Sustaining Defendant’s Motion to Suppress 5.                  The court held

accordingly that “the evidence and testimony [was] insufficient to establish that there was

probable cause for the traffic stop,” and for that reason, it sustained the motion to

suppress.    (Emphasis added.)      Id.   The State argues that the court thereby erred,
                                                                                           -5-


because Officer Gallagher “did not need probable cause to stop [Burns’s] vehicle,” but

only a “reasonable, articulable suspicion.” Appellant’s Brief 5-6.

       {¶ 10} The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968); see also State v. Taylor, 138 Ohio App.3d 139, 145, 740 N.E.2d 704

(2d Dist.2000) (noting “the Fourth and Fourteenth Amendments to the United States

Constitution and Section 14, Article 1” of the Ohio Constitution “protect the same interests

in a consistent manner”). Warrantless searches and seizures violate this prohibition

unless conducted pursuant to one of the “few specifically established and well-delineated

exceptions.” (Citations omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.

507, 19 L.Ed.2d 576 (1967).       One of these exceptions “is commonly known as an

investigative or Terry stop,” which includes the temporary detention of motorists for the

enforcement of traffic laws. State v. Dorsey, 10th Dist. Franklin No. 04AP-737, 2005-

Ohio-2334, ¶ 17, citing Terry.

       {¶ 11} The temporary “detention of [persons] during the stop of an automobile by

the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’

of ‘persons’ within the meaning” of the Fourth Amendment. (Citations omitted.) Whren

v. United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). An

“automobile stop is thus subject to the constitutional imperative that it not be

‘unreasonable’ under the circumstances.”        Id. at 810.    Generally, a police officer’s

decision to stop an automobile will comport with this requirement if the officer has a

“reasonable suspicion” of criminal activity. United States v. Lopez-Soto, 205 F.3d 1101,

1104-1105 (9th Cir.2000); State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894
                                                                                        -6-


N.E.2d 1204, ¶ 23.

      {¶ 12} We hold that the trial court erred by applying the wrong standard to its

consideration of Burns’s motion to suppress. As the State argues, Officer Gallagher

needed only a reasonable suspicion of criminal activity, rather than probable cause, to

justify a traffic stop. Although the video record—a two-dimensional image—created by

Officer Gallagher’s cruiser camera might not permit a definitive, independent

determination of whether Burns activated his vehicle’s turn signal at least 100 feet before

he turned onto Valley Street, Officer Gallagher testified that at some time subsequent to

the stop, he and another officer physically measured the distance between the spot at

which Burns actually signaled a turn and the intersection of Bickmore Avenue and Valley

Street; the distance was 75 feet. See Hearing Transcript 9:8-10:4. At the time he made

the stop, of course, Officer Gallagher had had to rely on mere visual reckoning, yet even

if that estimate were not sufficient to establish probable cause, the question presented to

the trial court was whether the estimate sufficed to support reasonable suspicion.2 The

State’s assignment of error is sustained.

                                     III. Conclusion

      {¶ 13} The trial court applied the wrong standard to its consideration of Burns’s

motion to suppress. Therefore, the court’s order of December 9, 2019, is reversed, and

the case is remanded for further proceedings consistent with this opinion.



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


2 The question of whether the estimate could have sufficed to establish probable cause
is not before us.
                                                                                       -7-




FROELICH, J., concurs.

HALL, J., concurs:

      I concur in the judgment reversing the trial court’s granting of the motion to

suppress. In my opinion, the trial court has already factually determined that the officer

had a reasonable articulable suspicion to initiate the stop. Therefore, upon remand, in my

opinion, further proceedings should start with the trial court’s deciding the remaining

issues raised in the motion to suppress that have not yet been addressed.




Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
Travis Kane
Hon. Dennis J. Adkins
