[Cite as State v. Cooperstein, 2015-Ohio-4508.]




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

 STATE OF OHIO                                         :
                                                       :
         Plaintiff-Appellee                            :   Appellate Case No. 26638
                                                       :
 v.                                                    :   Trial Court Case No. 14-TRC-4108
                                                       :
 JOEL M. COOPERSTEIN                                   :   (Criminal Appeal from
                                                       :    Miamisburg Municipal Court)
         Defendant-Appellant                           :
                                                       :

                                                  ...........

                                                  OPINION

                            Rendered on the 30th day of October, 2015.

                                                  ...........

CHRISTINE L. BURK, Atty. Reg. No. 0050559, Miamisburg Prosecutor’s Office, 10 North
First Street, Miamisburg, Ohio 45342
       Attorney for Plaintiff-Appellee

JOHN S. PINARD, Atty. Reg. No. 0085567, 120 West Second Street, Suite 603, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

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

HALL, J.

        {¶ 1} Joel M. Cooperstein appeals from his conviction and sentence following a

no-contest plea to one count of operating a motor vehicle while under the influence of
                                                                                             -2-


alcohol (OVI), a first-degree misdemeanor.

       {¶ 2} In his sole assignment of error, Cooperstein contends police lacked a

reasonable, articulable suspicion of criminal activity to justify an investigative stop that led

to his arrest. Therefore, he argues that the trial court should have sustained his motion to

suppress the evidence supporting his OVI conviction.

       {¶ 3} The trial court held a January 21, 2015 hearing on Cooperstein’s suppression

motion. The only witness was Shawn Todd, a Miami Township police officer. He testified

that he was patrolling in a commercial area near Prestige Place and State Route 741 at

1:48 a.m. on July 3, 2014. While doing so, he observed Cooperstein’s car stopped on a

dead-end access road. Todd explained that the road went off of Prestige Place and ran

between the rear of the Discount Tire Company and the Double Tree Hotel. (Tr. at 7, 61).

However, the access road did not connect to the tire store or hotel parking lot. (Id. at 61-

62). It ran to a Cub Foods parking lot, but access to that lot was blocked by a barricade

because the grocery store had gone out of business. (Id. at 7, 61). Todd acknowledged

that the access road was “not a through road to or from anywhere” and was “not travelled

normally.” (Id. at 7, 62). He also testified that thefts had been reported from the hotel

parking lot, and he knew the area had problems with prostitution and drugs. (Id.). He knew

about these problems because he had roughly 19 years of experience as a patrol officer,

and he “actively enforce[d] those crimes in that area[.]” (Id. at 5, 59).

       {¶ 4} Based on Cooperstein’s presence on a normally-untraveled access road to

nowhere in the middle of the night in a commercial area known for thefts, drugs, and

prostitution, Todd decided to approach the stopped vehicle. As Todd attempted to do so

in his cruiser, Cooperstein drove away. (Id. at 8). Todd followed and made a traffic stop.
                                                                                          -3-

(Id.). He proceeded to interact with Cooperstein, who appeared to be under the influence

of alcohol. (Id. at 10-11). The officer then performed field-sobriety tests. Based on Todd’s

observations and Cooperstein’s performance on the tests, the officer arrested him for

driving under the influence. (Id. at 36).

       {¶ 5} In a February 20, 2015 entry and order, the trial court overruled Cooperstein’s

suppression motion, reasoning:

              The only real issue in this case is the propriety of the stop of the

       Defendant’s motor vehicle. The basis for the Defendant’s motion is that the

       officer did not observe the Defendant commit any traffic offenses.

              From the testimony it appears that the Officer initiated contact with

       the Defendant based on specific and articulable facts, which when taken

       together with rational inferences from those facts, warranted the stop. The

       Officer observed the Defendant’s vehicle parked and running at the end of

       a dead-end street at 1:45 a.m. in a high crime area where thefts,

       prostitution, and drug activity are a common occurrence. The Officer used

       his years of experience to determine, within the parameters outlined in Terry

       v. Ohio, that his suspicion of criminal activity was reasonable, which justified

       his stopping the Defendant’s vehicle.

(Doc. #17 at 1).

       {¶ 6} On appeal, Cooperstein argues that Todd lacked a reasonable, articulable

suspicion of criminal activity to justify stopping hm. Cooperstein asserts that he was on a

“legal road” with painted lines and a stop sign, that he had not committed any traffic

violations, that there was nothing suspicious about his vehicle, and that police were not
                                                                                           -4-


specifically looking for him for any reason. He insists that his mere presence on the road

at that time of night in a high crime area was not enough to justify a Terry stop. In support,

Cooperstein contends the facts of his case are analogous to State v. Rhude, 91 Ohio

App.3d 623, 632 N.E.2d 1391 (12th Dist.1993), State v. Studley, 2d Dist. Greene No.

2010 CA 81, 2011-Ohio-5563, and State v. Lindsey, 2d Dist. Montgomery No. 24943,

2012-Ohio-3105.

       {¶ 7} “In reviewing a decision of a trial court on a motion to suppress, an appellate

court gives broad deference to a trial court’s findings of fact. * * * But whether the facts

found by the trial court justify suppression of the evidence is a question of law subject to

de novo review.” State v. Anderson, 2d Dist. Montgomery No. 24678, 2012-Ohio-441, ¶

10. Here the facts, as established by Todd’s suppression-hearing testimony, are not in

dispute. Applying those facts to the legal issue before us, we find that Todd had a

reasonable, articulable suspicion of criminal activity justifying an investigative stop of

Cooperstein’s vehicle.

       {¶ 8} Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 29 L.Ed.2d 889 (1968), an

officer may conduct an investigative stop “if the officer has a reasonable suspicion, based

upon specific and articulable facts, that criminal behavior has occurred or is imminent.”

State v. Burdette, 2d Dist. Montgomery No. 25587, 2013-Ohio-4395, ¶ 11, citing Terry at

20-21, 30-31. “An officer’s inchoate hunch or suspicion will not justify an investigatory

stop. Rather, justification for a particular seizure must be based upon specific and

articulable facts that, taken together with the rational inferences from those facts,

reasonably warrant that intrusion. The facts must be judged against an objective

standard: whether the facts available to the officer at the moment of seizure or search
                                                                                           -5-


would warrant a person of reasonable caution in the belief that the action taken was

appropriate.” State v. Cosby, 177 Ohio App.3d 670, 2008-Ohio-3862, 895 N.E.2d 868, ¶

17 (2d Dist.).

       {¶ 9} Here Officer Todd did identify specific and articulable facts that, along with

rational inferences, created a reasonable suspicion of criminal activity. He saw

Cooperstein’s vehicle stopped near 2:00 a.m. on a dead-end access road that previously

had led to a now-defunct grocery store. According to Todd, the road no longer led

anywhere and had been barricaded at one end. Todd knew from personal observation

and experience that this access road was not normally travelled. He knew too that the

area had problems with thefts, prostitution, and drugs—including thefts from the nearby

hotel parking lot. The totality of these facts supported an objectively reasonable belief that

Cooperstein may have been involved in criminal activity. This is particularly true given the

absence of any apparent, legitimate reason for Cooperstein’s vehicle to be where Todd

observed it. In our view, the circumstances known to the officer warranted further

investigation under Terry.

       {¶ 10} In reaching our conclusion, we find the case law on which Cooperstein relies

to be of limited assistance. In Rhude, police observed the defendant driving appropriately

around 1:30 a.m. in an area where several burglaries had been reported. He turned down

one driveway before pulling back out, driving a short distance, and pulling into another

driveway. Rhude at 625-626. The Twelfth District found no articulable suspicion for an

investigative stop, reasoning:

                 In the present case, Officer Wallace did not observe appellee driving

       erratically or violating any traffic or other laws. Appellee was driving at a
                                                                                           -6-


       reasonable speed of approximately thirty m.p.h. in a thirty-five m.p.h. zone.

       The fact that a person pulls out of one driveway and into another a short

       distance down the road in an area where several burglaries had been

       reported is not sufficient to constitute reasonable suspicion, particularly

       where one of the driveways leads to the person’s own residence. The stop

       of appellee under these circumstances cannot rest on merely a hunch or

       vague suspicion.

Id. at 626.

       {¶ 11} In Studley, police observed the defendant driving a van a little slower than

the posted speed limit around 3:15 a.m. As the defendant turned into a residential plat in

Beavercreek, police ran the license plate and determined that the van was registered to

an owner in Riverside. Studley at ¶ 2-3. Police were aware of approximately 40 unsolved

vehicle break-ins and thefts in the area of the plat within the preceding month. Id. at ¶ 3.

An officer followed the van, whose occupants keep looking back and moving around as it

slowed down and sped up through intersections before eventually circling back near

where it first had been seen. Id. On appeal, this court found (with one judge dissenting)

no articulable suspicion for a traffic stop or a search of the van, reasoning:

              According to [the officer], in the course of the four to five minutes that

       he followed the van before initiating the stop, he observed no traffic

       violations nor indicia of criminal activity. Furthermore, the trial court’s

       characterization of the area as a “high crime area” is not supported by the

       evidence. A rash of vehicle thefts does not make a residential neighborhood

       a high crime area, which is normally characterized by drugs, guns and other
                                                                                             -7-


       consistent criminal activity.



              Even if we were persuaded of the lawfulness of the initial stop, the

       facts do not justify a request to go on a fishing expedition for evidence of

       some prior theft. There were no additional facts gleaned from the stop to

       support the officer’s initial suspicion regarding criminal activity. Thus, when

       a motorist is not observed violating any traffic or other laws, and where a

       police officer is not specifically looking for a particular individual or vehicle,

       the officer lacks reasonable suspicion to stop and search said vehicle.

Id. at ¶ 61-62.

       {¶ 12} In Lindsey, police similarly observed the defendant driving below the speed

limit in a residential area in Washington Township around 3:00 a.m. The officer who saw

the defendant knew that there had been a series of break-ins in Washington Township

but not limited to the area where the officer was patrolling. Lindsey at ¶ 2-3. The defendant

slowed and braked when he observed the officer’s patrol car. The officer followed the

defendant’s vehicle until it started to repeat a circular path it already had travelled. At that

time, the officer made a traffic stop. Id. at 4. The trial court subsequently sustained the

defendant’s motion to suppress evidence found during the stop. On the State’s appeal,

this court found the case indistinguishable from Studley, reasoning:

              Under the totality of the circumstances, Dep. Fazzari did not possess

       a reasonable, articulable suspicion to initiate a traffic stop of Lindsey. Dep.

       Fazzari admitted that Lindsey did not commit any traffic or equipment

       violation justifying a traffic stop. Although the immediate area had been
                                                                                         -8-


       subject to a string of vehicle break-ins in recent months, no break-ins had

       been reported on that date of the stop, nor was anyone matching Lindsey’s

       description or the description of his vehicle implicated therein. While it was

       early in the morning, Dep. Fazzari observed nothing indicating that criminal

       activity was afoot. In fact, Dep. Fazzari conceded that he “wasn't sure what

       [Lindsey] was doing,” and that was his basis for initiating the stop. Clearly,

       Dep. Fazzari did not possess a reasonable, articulable suspicion that

       Lindsey had committed a criminal act justifying the initial stop. Simply being

       unsure of what a suspect is doing is a wholly insufficient basis upon which

       to stop and question an individual.

               Upon review, we find that the instant case is not distinguishable from

       our recent decision in Studley, 2d Dist. Greene No. 2010 CA 81, 2011-Ohio-

       5563. Both cases involved individuals traveling in slowly moving vans at

       approximately three a .m. in residential areas that had recently been struck

       with a series of vehicle break-ins. In neither case did the arresting officer

       observe the suspects commit any traffic or equipment violations. The only

       apparent difference is that the officer in Studley observed individuals in the

       van make furtive movements prior to the initiation of the traffic stop, whereas

       in the instant case, Dep. Fazzari did not observe any furtive movements

       until after he turned on his flashing lights. This minor difference, however,

       is irrelevant. * * *

Id. at ¶ 18-19.

       {¶ 13} Having reviewed Rhude, Studley, and Lindsey, we find that they are
                                                                                        -9-


sufficiently distinguishable to be of limited assistance given the fact-sensitive nature of

the issue before us. In each of those cases, there was little suspicious about the presence

of the defendant’s vehicle on the road other than the late hour and the fact that crimes

had been reported. In Rhude the defendant merely had pulled into driveways, and in

Studley and Lindsey the defendants had appeared to be traveling somewhat aimlessly.

These circumstances were not enough to create a reasonable suspicion of criminal

activity.1 The facts of the present case bear little resemblance to the facts of Rhude,

Studley, or Lindsey, making a comparison of the cases not particularly useful.

Cooperstein was not seen driving appropriately late at night in a residential area where

some crimes had been reported. Rather, he was seen parked on an access road that

effectively went nowhere, where cars normally did not travel, in the middle of the night in

a commercial area known for thefts, drugs, and prostitution. In our view, these

circumstances are articulably and sufficiently more suspicious than the circumstances

police observed in Rhude, Studley, and Lindsey.

       {¶ 14} Although the issue is perhaps a close one, we conclude that Officer Todd

identified specific and articulable facts that, along with rational inferences, created a

reasonable suspicion of criminal activity and warranted further investigation under Terry.

Accordingly, the trial court properly denied Cooperstein’s suppression motion.

       {¶ 15} The assignment of error is overruled, and the trial court’s judgment is



1 We note, however, that in Studley, one member of the appellate panel dissented, finding
that an investigative stop was justified. See Studley at ¶ 68-70 (Grady, J., dissenting).
Thereafter, in Lindsey, the author of the present opinion wrote a separate concurrence
explaining that, although he had concurred in judgment in Studley, he had not been
troubled so much by the initial stop of Studley’s vehicle as he had been by a subsequent
search of the vehicle and its occupants. Lindsey at ¶ 26-27 (Hall, J., concurring).
                                                                                        -10-


affirmed.

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

FAIN, J., concurs.
FROELICH, P.J., dissenting:
       {¶ 16} I dissent.

       {¶ 17} The officer, while on State Route 741, observed the Appellant’s vehicle

apparently stopped on a nearby dead-end road. By the time the officer was able to catch

up, the Appellant had proceeded to the intersection of 741 and Prestige Place and

stopped at the stop sign.

       {¶ 18} If the vehicle were still stopped on the access road, the officer would have

been justified in stopping the Appellant. However, with the facts in this record, there was

not a reasonable and articulable basis to believe that the occupant of the vehicle was

involved in criminal activity.

                                       ..........

Copies mailed to:


Christine L. Burk
John S. Pinard
Hon. Robert W. Rettich, III
