         [Cite as State v. Howell, 2018-Ohio-591.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-170158
                                                         TRIAL NO. C-14TRC-38185A
        Plaintiff-Appellee,                          :

  vs.                                                :           O P I N I O N.

LAKISHA HOWELL,                                      :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 16, 2018



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Carrie Wood, Assistant
Public Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Presiding Judge.

       {¶1}    Defendant-appellant Lakisha Howell has appealed from the trial

court’s entry convicting her upon a no-contest plea to operating a vehicle while under

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

       {¶2}   In two assignments of error, Howell argues that the trial court erred in

denying her motion to suppress based on both the alleged unlawful stop of her

automobile and the alleged unlawful administration of field-sobriety tests.    Because

the stop of Howell’s vehicle was not supported by probable cause or reasonable

suspicion, we hold that the trial court erred in failing to grant her motion to

suppress.

                         Factual and Procedural Background


       {¶3}   On August 6, 2014, Ohio State Highway Patrol Trooper Aaron Shade

conducted a traffic stop of a vehicle driven by Howell. Following the stop, Howell

was cited for failure to dim headlights in violation of R.C. 4513.15 and placed under

arrest for operating a vehicle while under the influence of alcohol in violation of R.C.

4511.19(A)(1)(a) and 4511.19(A)(1)(d).

       {¶4}   Howell filed a motion to suppress challenging the traffic stop, the

administration of field-sobriety tests, and her arrest. At a hearing on the motion,

Trooper Shade testified that he had been patrolling westbound on Interstate 275 at

approximately 2:30 a.m., when Howell’s vehicle approached him from behind.

Howell had her high beams on as she approached, but dimmed them when she got

close to the trooper’s vehicle. Trooper Shade observed Howell “bouncing” a little

back and forth in her lane while she was behind him. He testified that she had not



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committed a lane violation and had not been driving erratically. He explained that

the bouncing did not constitute a marked-lanes violation, but it had raised his

suspicion because it was “abnormal.” Trooper Shade slowed down to allow Howell to

pass him, but she continued to stay behind his vehicle. As Howell exited from the

interstate, Trooper Shade moved behind her and followed her for a short distance.

She did not commit any traffic violations during this time. Trooper Shade testified

that the sole reason he stopped Howell was because she had committed a traffic

violation by failing to dim her headlights on the interstate.

          {¶5}   Upon approaching Howell’s vehicle, Trooper Shade detected an odor

of alcohol coming from within the vehicle, and he asked Howell if she had had

anything to drink. Howell stated that she had drunk one margarita. Trooper Shade

removed her from the vehicle and administered three field-sobriety tests. Based on

Howell’s performance on the field-sobriety tests, the odor of alcohol that he had

detected from within Howell’s vehicle, Howell’s failure to dim her headlights, and the

bouncing within her lane on the interstate, Trooper Shade placed Howell under

arrest.

          {¶6}   The trial court denied Howell’s motion to suppress, finding that the

initial traffic stop had been legal and based upon probable cause. It further found

that the field-sobriety tests had been properly administered. As relevant to the

traffic stop of Howell’s vehicle, the trial court found as a fact that Howell had

operated her motor vehicle behind Trooper Shade on Interstate 275 with her high

beams illuminated, and that Trooper Shade had stopped Howell’s vehicle based on

her failure to dim her headlights. The court specifically found that the stop had been

a noninvestigatory stop. The trial court denied Howell’s motion to suppress upon its




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conclusion that Trooper Shade had probable cause to conduct a noninvestigatory

stop of Howell’s vehicle based on her failure to dim her headlights.

       {¶7}    Howell subsequently pled no contest to a violation of R.C.

4511.19(A)(1)(a) and was found guilty. She appealed, but her appeal was dismissed

by this court because the trial court had not imposed a sentence, and therefore, the

order appealed from was not final and appealable.

       {¶8}    After her appeal was dismissed, the trial court sentenced Howell. She

now appeals from the trial court’s final entry finding her guilty and imposing

sentence. In two assignments of error, she challenges the trial court’s denial of her

motion to suppress.

                                  Standard of Review


       {¶9}    Our review of a trial court’s ruling on 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. We must accept the trial court’s findings of fact if they are

supported by competent and credible evidence, but we review de novo the trial

court’s application of the relevant law to those facts. Id.

                                   Automobile Stop


       {¶10} In her first assignment of error, Howell argues that the trial court

erred in denying her motion to suppress the stop of her automobile and all evidence

gathered following the unlawful stop.

       {¶11} Because a traffic stop constitutes a seizure within the meaning of the

Fourth Amendment to the United States Constitution, the traffic stop must comply

with the Fourth Amendment’s reasonableness requirement. State v. Slaughter, 1st




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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). When an officer witnesses a specific violation of the traffic code, a stop of the

vehicle in which the violation is committed is supported by probable cause. State v.

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

       {¶12} In addition, even in the absence of probable cause, an officer may

initiate a traffic stop when the officer has a reasonable articulable suspicion that a

crime has been, or is being, committed. State v. Foster, 1st Dist. Hamilton No. C-

160424, 2017-Ohio-4036, ¶ 16, citing State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-

4539, 894 N.E.2d 1204, ¶ 7. An investigatory traffic stop is permitted in such a

situation in order for the officer to confirm or refute her or his suspicion. Johnson at

¶ 6. The totality of the circumstances must be examined to determine whether an

officer had a reasonable articulable suspicion to initiate a traffic stop. Slaughter at ¶

12.

       {¶13} Here, the officer testified, and the court found, that his stop was based

on probable cause for the failure to dim, and not an investigatory stop for another

violation such as driving under the influence. Trooper Shade testified that he had

stopped Howell because she had committed a violation of R.C. 4513.15(A)(1) by

failing to dim her headlights as she approached him from behind on the interstate.

R.C. 4513.15(A)(1) provides that:

       (A) Whenever a motor vehicle is being operated on a roadway or

       shoulder adjacent thereto during the times specified in section 4513.03

       of the Revised Code, the driver shall use a distribution of light, or

       composite beam, directed high enough and of sufficient intensity to




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       reveal persons, vehicles, and substantial objects at a safe distance in

       advance of the vehicle, subject to the following requirements;

       (1) Whenever the driver of a vehicle approaches an oncoming vehicle,

       such driver shall use a distribution of light, or composite beam, so

       aimed that the glaring rays are not projected into the eyes of the

       oncoming driver.

       {¶14} Howell argues that she could not have violated R.C. 4513.15(A)(1),

because she had been driving in the same direction as Trooper Shade and had not

projected her high beams into the eyes of an oncoming driver. She is correct. The

plain language of the statute provides that a driver must use a distribution of light

that does not project glaring rays when she or he “approaches an oncoming vehicle.”

In this context, the term “oncoming” unambiguously refers to a vehicle approaching

from the opposite direction. Trooper Shade testified that he had been traveling in

the same direction as Howell. And the record is devoid of evidence that there was

any oncoming traffic at the time that Howell was using her high beams.

Consequently, Trooper Shade was mistaken in his determination that Howell had

committed a violation of R.C. 4513.15.

       {¶15} But “[p]robable 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 test is whether an objectively

reasonable police officer would believe that a traffic violation has occurred based

upon the totality of the circumstances.” State v. Cronin, 1st Dist. Hamilton No. C-

100266, 2011-Ohio-1479, ¶ 11. Given the plain language of the statute regulating the

distribution of light to be used when “the driver of a vehicle approaches an oncoming




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vehicle,” we cannot find that an objectively reasonable police officer would have

believed that a violation of R.C. 4513.15 had occurred in this situation. Trooper

Shade’s mistake of law was not reasonable. Consequently, we hold that Trooper

Shade did not have probable cause to stop Howell’s vehicle for a violation of R.C.

4513.15.

       {¶16} The state argues that even if Trooper Shade lacked probable cause to

stop Howell for the headlight violation, he still had a reasonable suspicion under the

totality of the circumstances to conduct an investigatory stop to determine if Howell

was engaged in criminal activity. The state cites to Trooper Shade’s testimony that

the traffic stop occurred at 2:30 a.m., that Howell had initially failed to dim her

headlights upon coming up behind the trooper’s vehicle, that Howell had bounced

within her lane, and that she had refused to pass the trooper when he slowed his

speed. We find this testimony insufficient to establish a reasonable suspicion that

Howell had been engaged in criminal activity. See Cincinnati v. Stringer, 1st Dist.

Hamilton Nos. C-070392 and C-070393, 2008-Ohio-2056, ¶ 10. While the record

indicates that Howell committed minimal weaving within her lane, it is void of

evidence that she had been driving erratically. State v. Luckett, 1st Dist. Hamilton

Nos. C-070359, C-070360 and C-070361, 2008-Ohio-1441, ¶ 15 (holding that

weaving within one’s own lane must be significant or erratic to justify a traffic stop,

and that “[m]odest weaving within one’s lane, without more, is insufficient”); State v.

Brown, 11th Dist. Trumbull No. 2006-T-0077, 2007-Ohio-4626, ¶ 15 (holding that

modest or minimal weaving within one’s lane is insufficient to justify an investigative

stop for a violation of R.C. 4511.33(A)(1)). We further note that the trial court

specifically found that Trooper Shade had not been conducting an investigatory stop.




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And the record contains no evidence that Trooper Shade suspected impaired driving

prior to pulling Howell over.

       {¶17} Because Trooper Shade lacked both probable cause to stop Howell for

a violation of R.C. 4513.15, and a reasonable suspicion that she had been engaged in

criminal activity, we hold that the trial court erred in failing to grant her motion to

suppress. The first assignment of error is sustained. And we do not reach Howell’s

second assignment of error challenging the trial court’s failure to suppress the

unlawful administration of field-sobriety tests, because it is rendered moot by our

resolution of the first assignment of error.

       {¶18} The trial court’s judgment denying Howell’s motion to suppress is

reversed, and this cause is remanded for further proceedings consistent with the law

and this opinion.

                                               Judgment reversed and cause remanded.


DETERS, J., concurs.
MILLER, J., dissents.

MILLER, J., dissenting.

       {¶19} The trooper testified he initiated a traffic stop because of his mistake of

law regarding the use of bright headlights. But the trooper’s subjective mistake of

that law is not dispositive of whether the stop was reasonable.            “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.”

(Citations omitted.) Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126 S.Ct.

1943, 164 L.Ed.2d 650 (2006); Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091

(1996) (if the traffic stop is objectively reasonable, the officer’s subjective motive for




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making the stop is irrelevant); State v. Salvato, 1st Dist. Hamilton No. C-980939,

1999 WL 636557 (Aug. 13, 1999) (“Whether probable cause to search existed

depends on the objective factors articulated by the officer. If the search is objectively

reasonable, the officer’s stated reason or motive for the search is irrelevant.”). Thus

our focus should be whether the stop was reasonable under the totality of the

circumstances.

       {¶20} The trooper also testified that the use of the high beams and the

vehicle’s bouncing within the marked lane “just raised suspicion.” He also testified

that he viewed her failure to pass him when he slowed to 55 m.p.h. as unusual. Once

the trooper did get behind the vehicle, he “continued to follow her just to see if there

were any other signs.” He indicated these facts were part of the justification for

asking the driver to perform a field-sobriety test, and for arresting her. The facts

articulated by the trooper, in my mind, demonstrate that he subjectively possessed a

reasonable articulable suspicion of impaired driving when he initiated the stop. And

regardless of the trooper’s thoughts, these facts objectively justify the stop, which is

all the Fourth Amendment requires. Accordingly, I respectfully dissent.



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




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