[Cite as State v. Haas, 2012-Ohio-2362.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 7-10-15

        v.

DUSTIN A. HAAS,                                           OPINION

        DEFENDANT-APPELLANT.




                        Appeal from Napoleon Municipal Court
                           Trial Court No. TRC1000612AB

                                      Judgment Reversed

                              Date of Decision: May 29, 2012




APPEARANCES:

        William F. Hayes for Appellant

        Paul A. Skaff for Appellee
Case No. 7-10-15


ROGERS, P.J.

       {¶1} Defendant-Appellant, Dustin Haas (“Haas” or “Appellant”), appeals

the judgment of the Napoleon Municipal Court convicting him of operating a

vehicle under the influence pursuant to R.C. 4511.19(A)(1). On appeal, Haas

argues that the trial court erred in overruling his motion to suppress, claiming that

the police officer lacked the requisite reasonable articulable suspicion of a

violation of R.C. 4511.66, prohibition of parking on a state highway. Finding that

the officer did not have a reasonable articulable suspicion that Haas was parking

on a state highway, we reverse the judgment of the trial court.

       {¶2} In March 2010, Haas was cited for O.V.I. in violation of R.C.

4511.19(A)(1)(d) and parking on a highway in violation of R.C. 4511.66. In July

2010, Haas filed a motion to suppress all evidence related to the traffic stop as the

police officer did not have a reasonable articulable suspicion to justify the traffic

stop. After a hearing on the motion, the trial court overruled it. Subsequently,

Haas entered a plea of no contest and was found guilty. The trial court imposed a

sentence of 30 days in jail with 27 days suspended, a $400.00 fine and a six-month

license suspension. The Appellant timely filed a notice of appeal.

       {¶3} During the hearing on the motion to suppress, the following testimony

was heard.




                                         -2-
Case No. 7-10-15


       {¶4} Deputy Sheriff Sean Wymer of Henry County testified that on March

16, 2010 at about 2:30 A.M., he was on duty in the village of McClure heading

northbound on State Route 65; that he saw a vehicle stopped in the southbound

lane of State Route 65 with its lights on and a female outside the vehicle; that the

vehicle impeded the southbound lane of traffic; that as he passed the vehicle, it

“pulled off” (Hearing Tr., p. 6); that he “turned on the vehicle” (Hearing Tr., p. 6);

that as he approached the vehicle it turned onto a side street; that when he turned

onto the side street, the vehicle was parked in the first driveway; that he passed the

driveway, turned around, came up to the vehicle, and activated his overhead lights;

that he and the auxiliary officer approached both sides of the vehicle; that

someone exited the vehicle; that he identified the driver as Haas; that he detected

an odor of alcohol; that he administered standard field sobriety tests; and, that the

reason for the stop was the positioning of the vehicle in the roadway.

       {¶5} On cross-examination, Deputy Wymer testified that the vehicle was

stopped inside the business and/or residential district of McClure; that he cited

Haas for violation of R.C. 4511.66, stopping in the roadway, but that he was not

familiar with that section of the code; that he was not aware that that section of the

code requires the person stopped on the roadway to be outside of the business or

residential district; that Haas was not outside of the business or residential district

of McClure; that he pulled into the driveway behind the vehicle, blocked the


                                         -3-
Case No. 7-10-15


vehicle in the driveway, and activated his overhead lights; that Haas was not free

to leave at that point; and, that the auxiliary officer ordered a passenger to return to

the vehicle. Lastly, Deputy Wymer testified that the reason he stopped Haas was

to “investigate why he was parked on the roadway.” Hearing Tr., p.15.

         {¶6} Alicia Reinbolt (“Alicia”) testified that on the night of March 16,

2010, she left an establishment and was walking on the sidewalk along State Route

65 in the town of McClure when she called Haas to pick her up. She testified that

when Haas came to pick her up, he stopped on the side of the road, not in the lane

of travel; that after she got in the car they went to a friend’s house; that when they

pulled in the driveway, she saw the police parked behind them; that she attempted

to exit the car, but that the police ordered her to get back in the car; and, that she

did not feel free to leave due to the officer’s screaming.

         {¶7} Haas testified that on the night of March 16, 2010, Alicia called him to

pick her up; that in doing so, he pulled his car off to the right side of State Route

65; that after he pulled away, he went to his friend’s house; that he turned into the

driveway, turned off the vehicle, and Alicia and another passenger began to

approach the house; that the officer’s vehicle pulled in the driveway behind him

prohibiting him from exiting the driveway; that the officers yelled at Alicia and

the other passenger to get back in the vehicle; and, that he did not feel free to

leave.


                                          -4-
Case No. 7-10-15


       {¶8} The parties stipulated as to the officer’s credentials; that the officer

was in uniform in a marked cruiser during the time in question; and, that the event

occurred in the village of McClure in the residential district.

       {¶9} The trial court entered judgment overruling defendant’s motion to

suppress, finding that, based on the totality of the circumstances, “it was

reasonable to view the conduct of the driver as being suspicious.” Judgment

Entry, Docket No. 20.      It is from this decision Haas appeals presenting the

following assignment of error for our review.

                             Assignment of Error No. I

       THE TRIAL COURT ERRED TO THE PREJUDICE OF
       DEFENDANT/APPELLANT IN FAILING TO SUPPRESS
       THE OBSERVATIONS OF, AND EVIDENCE OBTAINED BY,
       THE    POLICE   AS    A    RESULT   OF    THE
       UNCONSTITUTIONAL STOP OF THE APPELLANT’S
       VEHICLE. THE STOP WAS UNCONSTITUTIONAL AS THE
       OFFICER   DID   NOT    HAVE   A   REASONABLE,
       ARTICULABLE BASIS TO STOP THE VEHICLE UNDER
       THE FOURTH AMENDMENT OF THE UNITED STATES
       CONSTITUTION.

       {¶10} In his sole assignment of error, Haas asserts that the trial court’s

denial of his motion to suppress was unconstitutional according to the Fourth

Amendment of the United States Constitution as the officer did not have a

reasonable articulable suspicion to effect a stop.         Specifically, because the

evidence showed that Haas’s actions were lawful and could not have been

unlawful, the search was unconstitutional. We agree.

                                          -5-
Case No. 7-10-15


       {¶11} The State contends that the trial court did not err as the officer’s stop

was constitutional. Specifically, the State contends that the officer had probable

cause or alternatively, reasonable articulable suspicion to justify the stop, based on

an objective assessment of the officer’s observations. Further, the State argues

that it would be unreasonable to expect every law enforcement officer to know the

details of every traffic offense and to make an accurate, immediate judgment on

the statute’s applicability to the present circumstance. We disagree.

       {¶12} “Appellate review of a decision on a motion to suppress evidence

presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13,

2006-Ohio-601, ¶ 12, citing United States v. Martinez, 949 F.2d 1117 (11th Cir.

1992). The trial court serves as the trier of fact and is the primary judge of the

credibility of the witnesses and the weight to be given to the evidence presented.

State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000). Therefore, when

an appellate court reviews a trial court’s ruling on a motion to suppress, it must

accept the trial court’s findings of facts so long as they are supported by

competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-

3665, ¶ 100, citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). The appellate

court must then review the application of the law to the facts de novo. Roberts,

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




                                         -6-
Case No. 7-10-15


       {¶13} The Fourth Amendment to the United States Constitution and

Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and

seizures. Neither the Fourth Amendment to the United States Constitution nor

Section 14, Article I of the Ohio Constitution explicitly provides that violations of

its provisions against unlawful searches and seizures will result in the suppression

of evidence obtained as a result of such violation, but the United States Supreme

Court has held that the exclusion of evidence is an essential part of the Fourth

Amendment. Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684 (1961); Weeks v.

United States, 232 U.S. 383, 394, 34 S.Ct. 341 (1914). The primary purpose of

the exclusionary rule is to remove the incentive to violate the Fourth Amendment

and thereby deter police from unlawful conduct. State v. Jones, 88 Ohio St.3d

430, 434, 2000-Ohio-374, overruled on other grounds by State v. Brown, 99 Ohio

St.3d 323, 2003-Ohio-3931.

       {¶14} At a suppression hearing, the State bears the burden of establishing

that a warrantless search and seizure falls within one of the exceptions to the

warrant requirement, Xenia v. Wallace, 37 Ohio St.3d 216 (1988), paragraph two

of the syllabus; State v. Kessler, 53 Ohio St.2d 204, 207 (1978), and that it meets

Fourth Amendment standards of reasonableness. Maumee v. Weisner, 87 Ohio

St.3d 295, 297 (1999), citing 5 LaFave, Search and Seizure (3 Ed.1996), Section

11.2(b).


                                         -7-
Case No. 7-10-15


       {¶15} When a law enforcement officer accosts an individual and restricts

his freedom of movement, the Fourth Amendment is implicated.                  State v.

Stephenson, 3d Dist. No. 14-04-08, 2004-Ohio-5102, ¶ 16, citing Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868 (1968). Generally, in order for a law enforcement

officer to conduct a warrantless search, he must possess probable cause, which

means that “‘there is a fair probability that contraband or evidence of a crime will

be found in a particular place.’” State v. Carlson, 102 Ohio App.3d 585, 600 (9th

Dist. 1995), quoting Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317 (1983).

However, even where probable cause is lacking, it is well-established that a law

enforcement officer may temporarily detain an individual where he has a

reasonable articulable suspicion that the individual is engaging in criminal

activity. State v. Bobo, 37 Ohio St.3d 177, 179 (1988), citing Terry at 21.

       {¶16} Reasonable articulable suspicion is “‘specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant

the intrusion.’” Stephenson at ¶ 16, quoting Bobo at 178. In forming reasonable

articulable suspicion, law enforcement officers may “draw on their own

experience and specialized training to make inferences from and deductions about

the cumulative information available to them that ‘might well elude an untrained

person.’” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744 (2002),

quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690 (1981).


                                        -8-
Case No. 7-10-15


Further, an officer who witnesses a traffic violation possesses probable cause, and

a reasonable articulable suspicion, to conduct a traffic stop. Id.; Stephenson at ¶

17.

       {¶17} The Ohio Supreme Court has reiterated that, “[t]o justify a particular

intrusion, the officer must demonstrate ‘specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant that

intrusion.’” (Emphasis added.) State v. Mays, 119 Ohio St.3d 406, 408-409, 2008-

Ohio-4539, ¶ 12, citing Terry. “The reasonable and articulable suspicion analysis

is based on the collection of factors, not the individual factors themselves.” Id. at

409.

       {¶18} Deputy Wymer, testified several times that the sole reason he

stopped Haas was to investigate why he was stopped on the roadway. Hearing Tr.,

pp. 9, 11, 15. Specifically, during cross-examination, the following exchange

occurred:

       [Appellant’s Attorney]: And the sole reason you stopped him was
       because he was stopped on the roadway, and you believe he was in
       violation of 4511.66? * * *

       [Deputy Wymer]: Yes. (Emphasis added.) Hearing Tr., p. 11.

       In its judgment entry, however, the trial court focused on the
       following:

       Deputy Wymer observed a vehicle stopped on a state highway in the
       early hours of the morning. After he passed the vehicle he observed
       it pull away so he could reasonably conclude is (sic) was not

                                         -9-
Case No. 7-10-15


       disabled and it was occupied. The vehicle then pulled down a side
       street which caused the Deputy to make further inquiry.

       The [c]ourt would find that given the totality of the circumstances it
       was reasonable to view the conduct of the driver as being suspicious,
       thus allowing the stop under the reasoning of Callarman.
       Consequently, the [c]ourt would find that there was sufficient
       credible evidence for Deputy Wymer to have formed a reasonable
       articulable suspicion to justify the temporary stop of the Haas
       vehicle to further his investigation into possible violations of the
       law. Judgment Entry, August 12, 2010.

       {¶19} Although it is proper for a trial court to examine the collection of

factors rather than the individual factors, the trial court erred in considering factors

that Deputy Wymer did not testify to as contributing to the basis for the stop. The

trial court stated in its entry that “[t]he vehicle then pulled down a side street

which caused the Deputy to make further inquiry.” The deputy made no such

statement, and did not indicate that any conduct, other than the stopping on the

street, had caused him any concern. Since the record reflects that Deputy Wymer

decided to initiate the stop solely based on observing Haas parked on the roadway,

the additional factors such as Haas’s driving away from the scene, turning down a

side street, and the time of morning did not influence Deputy Wymer’s suspicion.

The trial court erred in considering these factors in evaluating the reasonableness

of the officer’s stop. See State v. Hageman, 180 Ohio App.3d 640, 644-645, 2009-

Ohio-169, ¶ 19-22 (6th Dist.).




                                         -10-
Case No. 7-10-15


       {¶20} The dissent in this case alleges that the majority has given “* * *

‘unique’ interpretations regarding the appellate review of Fourth Amendment

cases * * *.” We note first that the dissent cites no authorities for its position.

Likewise, the dissent also fell into the trap of embellishing the deputy’s testimony,

suggesting that the officer saw the vehicle “quickly turn onto a side street and

immediately pull into the first available driveway, all before the officer had any

opportunity to actually make a law enforcement stop or even activate his overhead

lights.”   Nowhere in the officer’s testimony is there any allegation that the

defendant’s vehicle “quickly” turned onto a side street, or “immediately” pulled

into the “first available driveway.” These allegations appear for the first time in

the dissent’s characterization of the events. In fact, the deputy’s testimony was

that he saw a person enter Appellant’s vehicle and that it had started to pull away

before he came even with it. Further, the testimony demonstrates that Appellant

passed a couple of cross streets before turning off the main route, and the

uncontroverted testimony was that the driveway he entered was that of a friend.

The dissent’s observations are immaterial anyway since the officer testified that he

had already made his decision to stop the vehicle based on his mistaken notion that

a violation of law had occurred, and that was his sole reason for the stop. No other

facts or circumstances are material to our consideration of the officer’s reasonable

articulable suspicion.   If the officer had found other acts of Appellant to be


                                        -11-
Case No. 7-10-15


suspicious he could have so testified. He did not. We must therefore base our

ruling on the deputy’s decision to stop the vehicle based on the erroneous thought

that he had observed a violation of law, without consideration of subsequent acts

of Appellant, real or imagined.

        {¶21} Under the circumstances of this case, and limiting our consideration

to the matters articulated by the deputy, the proper analysis for determining

whether the officer had a reasonable articulable suspicion to effectuate the traffic

stop is to determine whether the alleged stopping on the roadway, alone, satisfied

the probable cause and/or the reasonable articulable suspicion standard.

        {¶22} R.C. 4511.66 prohibits parking on a highway and reads in pertinent

part:

        Upon any highway outside a business or residence district no person
        shall stop, park, or leave standing any vehicle, whether attended or
        unattended, upon the paved or main traveled part of the highway if it
        is practicable to stop, park, or so leave such vehicle off the paved or
        main traveled part of said highway. (Emphasis added.). R.C.
        4511.66.

        {¶23} Deputy Wymer testified that he was not familiar with this section of

the code. Moreover, the parties stipulated, and the officer testified, that Haas’s

vehicle was not stopped outside a business or residential district as required by the

statute.   The issue we must address, then, is whether an officer can have a

reasonable articulable suspicion that the individual is engaging in criminal



                                         -12-
Case No. 7-10-15


activity, when the behavior cited by the officer is not, in fact, nor could it be,

illegal. We find that an officer cannot.

       {¶24} This court has previously held that an officer lacked reasonable

articulable suspicion to initiate a traffic stop when the defendant clearly did not

violate either of two statutes which the officer testified provided the basis for his

suspicion. State v. Young, 3d Dist. No. 13-03-52, 2004-Ohio-540. In Young, a

Tiffin police officer stopped Linda Young after he observed her make a right turn

from a driveway into the left lane of travel on East Market Street. He also testified

that Young made an improper lane change by failing to signal before driving into

the left lane. The officer testified that he stopped Young for improperly turning

onto East Market Street. Young contended that she violated neither R.C. 4511.33,

rules for driving in marked lanes, as she did not leave one lane of travel and move

into another lane, but rather, turned directly into the outer lane of travel, where she

remained, nor R.C. 4511.36, rules for turns at intersections, as she was not making

a turn at an intersection, but rather was making a turn from her driveway onto a

street. This Court found that since Young violated neither statute that provided the

basis for the officer’s alleged reasonable articulable suspicion, the stop was

unconstitutional, and the trial court should have granted the motion to suppress.

       {¶25} The First District has also held that a stop is unconstitutional where

the defendant’s conduct does not violate the law the officer cites as providing the


                                           -13-
Case No. 7-10-15


basis for his or her reasonable articulable suspicion. In State v. Bacher, Officer

Norton monitored a vehicle, driven by defendant Bacher, traveling 42 and 43

miles per hour in a 65-mile per hour zone. 170 Ohio App.3d 457, 2007-Ohio-727

(1st Dist.). Officer Norton stopped Bacher for violating the slow-speed statute

which requires that the slow-moving vehicle “impede or block the normal and

reasonable movement of traffic.” R.C. 4511.22. The First District held that since

there was no evidence supporting a reasonable suspicion that Bacher was

impeding or blocking traffic or any other criminal activity, the stop was

unconstitutional.

       {¶26} The Sixth District held that the officer did not have a reasonable

articulable suspicion of criminal activity to effectuate a traffic stop when the

defendant’s conduct did not violate the statute which provided the basis for the

officer’s suspicion. In State v. Hageman, Officer Viers observed Hageman turn

left onto High Street into the curb, rather than the inside, lane. 180 Ohio App.3d

640, 2009-Ohio-169 (6th Dist.). Viers stated that the basis for the traffic stop was

the improper turn.     Because both the Bryan Municipal Ordinance and R.C.

4511.36 govern turns at intersections, and because the officer did not know

whether Hageman turned at an intersection or onto High Street from the bowling

alley driveway, the Sixth District held that the officer did not have a reasonable

articulable suspicion to effectuate the stop, and reversed the trial court’s denial of


                                        -14-
Case No. 7-10-15


his motion to suppress. See State v. McDonald, 4th Dist. No. 04CA07, 2004-

Ohio-5395, ¶ 21-25 for further support that a stop is unconstitutional if defendant

did not violate the statute which provided the basis for the stop.

        {¶27} In light of the relevant case law from this and other districts, we hold

that when a defendant’s conduct does not facially violate the traffic statute which

provides the sole basis for the officer’s alleged reasonable articulable suspicion,

the stop is unconstitutional.

        {¶28} In support of its decision, the trial court cites cases which stand for

the proposition that an officer’s reasonable articulable suspicion is not negated by

the failure to ultimately establish that a traffic offense occurred and to attain a

conviction. Stated in other words, courts have held that an officer’s reasonable

articulable suspicion does not require proof beyond a reasonable doubt that the

defendant has satisfied every element of the offense,1 or that an officer adequately

predict the outcome of an arrestee’s legal defenses or ultimate conviction.2 We

agree with this proposition. We assert, however, that there is a difference between

proving elements beyond a reasonable doubt and making a prima facie showing

that the defendant’s conduct has violated the elements of a statute on its face. In




1
 See e.g., Westlake v. Kaplysh (1997), 118 Ohio App.3d 18, 20.
2
  State v. Zervos, 6th Dist. No. L-0901249, 2010-Ohio-1998,¶13; Bowling Green v. Godwin, 110 Ohio
St.3d 58, 62, 2006-Ohio-3563, ¶15; State v. Mays, 894 N.E.2d 1204, 1208, 2008-Ohio-4539, ¶17.

                                              -15-
Case No. 7-10-15


order for a traffic stop to be constitutional, an officer must be able to articulate that

the defendant’s conduct violated a traffic law on its face.3

           {¶29} The trial court cites Bowling Green v. Godwin, 110 Ohio St.3d 58,

2006-Ohio-3563. In that case, the issue addressed by the Ohio Supreme Court

was whether a defendant’s failure to yield to a traffic-control device that lacked

the statutorily required authorization could serve as the basis for a traffic stop.

Ultimately, the Supreme Court held in the affirmative as “[n]othing in the record .

. . justifies the conclusion that an objectively reasonable officer would have had

any reason to doubt their enforceability.” Id. at ¶ 17. Because the traffic sign was

not irregular in size, height, placement, visibility, or distance, there was no way for

the officer to have known that the traffic sign was not authorized by city council

and therefore no reason for the officer to doubt the sign’s validity. Under the facts

of that case, the court reasoned that “probable cause does not require the officer to

correctly predict that a conviction will result.” Id. at ¶ 15.

           {¶30} The trial court sub judice also relied on State v. Zervos, 6th Dist. No.

L-09-1249, 2010-Ohio-1998, which relies heavily on Godwin. In that case, the

officer stopped Zervos for what the officer believed was an illegal U-turn. Zervos

argued that there was no probable cause as the requirement in the U-turn statute

that no U-turn be made if the vehicle cannot be seen by another approaching



3
    See Judge Sherck’s dissent in State v. Nickelson, 6th Dist. No. H-00-036 (2001).

                                                     -16-
Case No. 7-10-15


vehicle was not met due to the absence of other traffic on the road. Ultimately, the

Sixth District affirmed the trial court’s denial of the motion to suppress. Relying

on Godwin, the court held that the lack of sufficient evidence to establish a U-turn

violation has no bearing on the officer’s reasonable suspicion prior to the stop.

We find, however, that in the present case, the trial court’s reliance on Zervos is

misplaced as Godwin is factually distinguishable from the instant case as well as

Zervos.

       {¶31} Primarily, Godwin resolved a very limited issue regarding the

violation of a traffic-control device that lacked proper authorization. This issue

was grounded in whether the officer had probable cause to effectuate a stop when

he had “no reason to doubt [the sign’s] enforceability.” Godwin at ¶17. In

Godwin, everything within the purview of the officer at the time of the stop

indicated that Godwin had violated a traffic-control device. Therefore, there was

probable cause to effectuate a stop. The issue in Zervos, however, was whether an

officer had probable cause to effectuate a stop when Zervos’ conduct simply did

not violate the statute which provided the basis for the stop. Everything within the

officer’s purview at the time of the stop indicated that Zervos had in fact not

violated a traffic law. The dissent noted that “[b]ecause there was no offense and

there was no set of facts to prompt a reasonable suspicion that an offense had

occurred, there was no reason to stop appellant's vehicle.” Id. at ¶ 34. The


                                       -17-
Case No. 7-10-15


majority’s holding that there was reasonable suspicion is unfounded and is a

disconcerting expansion of the holding in Godwin, and we decline to follow it.

       {¶32} Lastly, the trial court relied on the Ninth Circuit’s analysis in United

States v. Wallace, 213 F.3d 1216 (9th Cir. 2000). In that case, the court reasoned

that law enforcement officers, when forming their probable cause, are “not taking

the bar exam.” Id. at 1220. The Ninth Circuit emphasized that the issue is not

how well the officer understood California laws, but whether he had probable

cause to believe that what he observed was a violation of the law. This analysis

simply begs the question, how can a law enforcement officer reasonably believe

conduct violates a law if he does not understand or have a working knowledge of

the law? Which begs another question, to what standard of knowledge of the laws

they are enforcing should we hold our law enforcement officers before they can

infringe upon one’s constitutional right to be free from warrantless seizures?

       {¶33} The State argues that it would be unreasonable to expect our law

enforcement officers to know the details of every traffic offense and to make an

accurate determination of the statute’s applicability. Such requirements, the State

explains, would hamper law enforcement to the extent it would cause “paralysis

by analysis.” We aver that knowledge of the traffic laws is the very essence of a

patrol officer’s job. To require any less than an accurate, working knowledge of

the traffic offenses and to fail to ensure that the one being seized at least


                                        -18-
Case No. 7-10-15


reasonably appeared to have violated a statute on its face gravely deprives citizens

of their constitutional right to be free from warrantless searches and seizures.

       {¶34} This is the unfortunate scenario in the present case. Officer Wymer

unconstitutionally seized Haas under the suspicion that Haas violated a law.

However, the officer’s own testimony revealed that he did not know the

requirements of this very law. Haas was not and could not have been engaged in

the specific criminal activity testified to by Officer Wymer. Yet he was seized and

arrested due to the officer’s lack of knowledge of the very law he was enforcing.

       {¶35} In light of the above, we find that, in analyzing the officer’s stated

reasonable articulable suspicion, the trial court erred by considering factors that

Deputy Wymer did not consider at the time he initiated the traffic stop. Further,

because Haas neither violated nor could have violated R.C. 4511.66, Deputy

Wymer failed to establish a prima facie violation of such statute, rendering his

suspicion of criminal activity unreasonable. Accordingly, we find that Haas’ stop

was unconstitutional and sustain his assignment of error.

                                                                 Judgment Reversed

WILLAMOWSKI, J., concurs.

/jlr




                                        -19-
Case No. 7-10-15


SHAW, J., DISSENTS.

       {¶36} In reversing the trial court, the majority goes far beyond the simple

totality of the circumstances analysis necessary to decide this case, and instead,

bases its decision upon its own “unique” interpretations regarding the appellate

review of Fourth Amendment cases, police practices in general and the proper role

of the arresting officer and the trial judge at a suppression hearing. I respectfully

dissent in order to emphasize that I do not concur with the majority opinion as to

any of these interpretations.

       {¶37} In this case, the officer first observed the defendant’s vehicle to be

stopped with its lights on in the southbound lane of two lane State Route 65 within

the village of McClure at 2:30 a.m. While the officer was passing by and turning

his patrol car around to approach the defendant’s vehicle, the officer observed a

person outside the defendant’s vehicle get into the vehicle, saw the vehicle pull

away, quickly turn onto a side street and immediately pull into the first available

driveway, all before the officer had any opportunity to actually make a law

enforcement stop or even activate his overhead lights.

       {¶38} In fact, the events apparently happened so quickly that the officer

following in his patrol car actually overshot the first driveway and had to proceed

further down the street, turn around in another driveway and drive back to the first

driveway. As the officer pulled his vehicle in front of the first driveway, he then


                                        -20-
Case No. 7-10-15


activated his overhead lights and verbally addressed a female passenger who was

exiting the defendant’s vehicle. Only then did he approach the defendant/operator

of the vehicle.

       {¶39} Assuming this was even a “law enforcement” stop, the majority cites

settled authority establishing that our determination of reasonable, articulable,

suspicion in these cases is properly based upon the totality of the circumstances

within the police officer’s knowledge.          However, by either disregarding or

ineffectively attempting to distinguish this authority, the majority elects instead to

base its decision on the rather bizarre ruling that a court’s evaluation of a Terry

stop is not to be based upon all of the facts and circumstances that the officer

observed prior to the stop, but only upon those facts which the officer identifies as

the primary reason for initiating the investigation.

       {¶40} Thus, the majority notes that the officer in this case testified to at

least five different observations of the defendant’s conduct. These included seeing

the defendant’s vehicle stopped in the roadway with its lights on, at 2:30 a.m.,

suddenly pulling away, quickly turning onto a side street, and immediately pulling

into a driveway. Not mentioned was the additional observation of seeing someone

outside the vehicle getting into the car while it was stopped in the roadway as the

officer first drove by.




                                         -21-
Case No. 7-10-15


       {¶41} However, because the officer testified at the suppression hearing that

it was seeing the vehicle stopped in the roadway that led him to initiate the

investigation, the majority rules that only that one circumstance of the vehicle

being stopped in the roadway may be considered by this court (or the trial court) in

determining whether all of the officer’s subsequent actions were warranted,

notwithstanding that all of the observations testified to by the officer took place

before any detention was initiated by the officer. This defies any authority or

common sense.

       {¶42} In other words, according to the majority, if an officer testifies into

the record as to fifty separate circumstances he personally observed, which in

totality clearly establish a reasonable articulable suspicion, but then testifies that

one of those circumstances was the primary reason he initiated the stop, the trial

court (and the appellate court) are precluded from considering the remaining forty-

nine circumstances testified to by the officer in ruling on the constitutionality of

the stop. And if the one circumstance named by the officer does not, by itself,

establish a specific statutory violation of law, the trial court is compelled to

invalidate the stop, without considering anything else the officer may have

observed prior to initiating the stop.

       {¶43} More significantly perhaps, the majority effectively holds that any

trial judge conducting a suppression hearing, who is charged with making the


                                         -22-
Case No. 7-10-15


legal determination as to whether all of the facts known to the police officer

collectively constitute a reasonable, articulable, suspicion, of criminal activity or

emergency sufficient to justify a Terry stop, is not permitted to consider anything

other than the personal opinion of the police officer as to what he thinks caused

him at the time to initiate the investigation that eventually led to the stop.

       {¶44} In addition to being absurd on its face, the majority holding directly

challenges the constitutional and statutory authority of trial courts and appellate

courts in this state to consider and review all of the evidence properly before it in

evaluating Fourth Amendment issues in criminal cases.

       {¶45} Of course, the ruling of the majority that we must exclusively focus

upon the officer’s stated reasons, motives or personal state of mind instead of the

objective facts observed by the officer in Fourth Amendment cases, also happens

to conflict with numerous case decisions from other courts cited in the majority

opinion and elsewhere. See for example, State v. Jamison 2nd Dist. No. 19357,

2003-Ohio-907, ¶ 13. (Legal issues involved in a Fourth Amendment challenge

are not controlled by the particular reasons given by a law enforcement officer for

why he engaged in the particular intrusion involved.); State v. Crenshaw, 6th

Dist.No. L-02-1337, 2003-Ohio-4860, ¶ 11. State v. Runyon, 12th Dist.No.

CA2010-05-032, 2011-Ohio-263, ¶ 18 (Officer’s underlying subjective intent or

motivation for stopping a vehicle does not invalidate an otherwise valid traffic


                                          -23-
Case No. 7-10-15


stop); State v. Swinderman, 5th Dist. No. 2009-AP-100050, 2010-Ohio-2659, }23;

State v. Thomas, 8th Dist. No. 91891, 2009-Ohio-3461, }49; State v. Salvato (Aug.

13, 1999), 1st Dist. No. C-980939, at *2 (Constitutionality of search is not

determined by officer’s stated reason or motive for the search but on objective

factors articulated by officer. If search is objectively reasonable, officer’s stated

reasons or motive for search are irrelevant.); Brigham City, Utah v. Stuart (2006),

547 U.S. 398, 404 S.Ct. 1943 (“An action is ‘reasonable’ under the Fourth

Amendment, regardless of the individual officer’s state of mind, as long as the

circumstances, viewed objectively, justify [the] action.”

       {¶46} But, the majority does not stop there. The majority also reverses this

case because it finds that the officer failed to prove a valid violation of a criminal

statute in order to justify investigating a car stopped in the public roadway at 2:30

a.m. All because the officer, who did have legitimate safety concerns as well as

the correct traffic offense applicable to this situation in mind, was not aware of the

exact physical boundaries of the village which created an exception to the offense.

       {¶47} Again, the majority seems to acknowledge that this is a Terry

situation involving a temporary investigative detention by the officer. The

majority also seems to acknowledge in principle, the settled authority establishing

that Terry does not require establishing probable cause that a criminal statute has

been violated, but only that the officer establish a reasonable, articulable suspicion


                                        -24-
Case No. 7-10-15


of criminal activity or emergency circumstance to warrant the temporary

detention.     Inexplicably, the majority does not follow this authority either and

proceeds to rule that because the officer failed to establish that the defendant was

in actual violation of the specific traffic offense the officer had in mind, everything

else that the officer saw or did prior to the stop is invalid. As a result, the ruling of

the majority on this issue is also wrong on its face, represents the personal views

of the majority only and does not accurately reflect the authority contained in its

own opinion.

        {¶48} I personally concur with the trial judge that the totality of these

circumstances warranted the limited investigative detention of the officer in this

case.   Thus, I believe the assignment of error should be overruled and the

judgment of the trial court should be affirmed. But whether we affirm or reverse,

our decision should be based upon the proper standards of appellate review

governing Fourth Amendment issues.




                                          -25-
