[Cite as State v. Dunlap, 2018-Ohio-3658.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       28762

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
FLOYD J. DUNLAP, JR.                                  COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2015-11-3520

                                 DECISION AND JOURNAL ENTRY

Dated: September 12, 2018



        CALLAHAN, Judge.

        {¶1}     Floyd Dunlap appeals an order of the Summit County Court of Common Pleas

that denied his motion to suppress. This Court affirms.

                                                 I.

        {¶2}     According to Akron police detective Todd Sinsley, he saw a car leave from a

residence where there had been complaints about possible drug dealings and decided to follow it

in an unmarked vehicle. As he was observing the car, he saw it pull over slightly and stop. At

the same time, he saw a woman who was on a cell phone run down to the car from a porch and

begin talking to the driver. After he saw the woman hand what he believed to be money to the

driver, he radioed to nearby officers to stop them, suspecting that they were engaging in a drug

deal.

        {¶3}     Detective Brian Boss and his partner, Lieutenant Michael Yohe, initiated a traffic

stop of the car based on the information that they received from Detective Sinsley. According to
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Detective Boss, as he was approaching the driver, Mr. Dunlap, he saw Mr. Dunlap conceal

something in his hand and then drop it on the floorboard. There was a child in the passenger

seat. Upon learning that Mr. Dunlap was driving under a suspended license, the detective

arrested him. A subsequent search of the car uncovered a number of different types of drugs as

well as a firearm. Following his arrest, Mr. Dunlap told officers about his drug use and about

additional drugs that he had at his house. When officers searched the house, they found the

drugs Mr. Dunlap described.

       {¶4}    The Grand Jury indicted Mr. Dunlap for aggravated trafficking in drugs,

aggravated possession of drugs, trafficking in heroin, possession of heroin, trafficking in cocaine,

possession of cocaine, having weapons while under disability, endangering children, driving

under suspension, and possession of drugs. Mr. Dunlap moved to suppress the evidence against

him, arguing that Detective Boss did not have reasonable suspicion to stop his car and that the

officers violated his Miranda rights. Following a hearing on his motion, the trial court denied it.

After the State dismissed some of the charges, Mr. Dunlap pleaded no contest to the rest. The

trial court found him guilty and sentenced him to a total of four years of imprisonment. Mr.

Dunlap has appealed, assigning as error that the trial court incorrectly denied his motion to

suppress.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS ALL
       EVIDENCE AND STATEMENTS OBTAINED IN VIOLATION OF
       APPELLANT DUNLAP’S FOURTH, FIFTH AND SIXTH AMENDMENT
       RIGHTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I,
       SECTIONS TEN AND FOURTEEN OF THE OHIO CONSTITUTION.
                                                 3


       {¶5}    Mr. Dunlap argues that the trial court should have suppressed the evidence found

in his car because the officers did not have any justification to stop and search it. He also argues

that the court should have suppressed his statements to officers because he did not waive his

Miranda rights. Finally, he argues that the court should have suppressed the evidence found

during the search of his house because it was the fruit of the poisonous tree.

       {¶6}    A motion to suppress evidence “presents a mixed question of law and fact.” State

v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.            “When considering a motion to

suppress, the trial court assumes the role of trier of fact and is therefore in the best position to

resolve factual questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62

Ohio St.3d 357, 366 (1992). Thus, a reviewing court gives deference to and “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, 20 (1982). “Accepting these facts as true, the appellate court

must then independently determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard.” Id. at ¶ 8, citing State v. McNamara, 124

Ohio App.3d 706, 710 (4th Dist.1997).

       {¶7}    Regarding the stop and search of Mr. Dunlap’s car, we note that, although a

police officer generally may not seize a person within the meaning of the Fourth Amendment

unless he has probable cause to arrest him for a crime, “not all seizures of the person must be

justified by probable cause * * *.” Florida v. Royer, 460 U.S. 491, 498 (1983). “A police

officer may stop a car if he has a reasonable, articulable suspicion that a person in the car is or

has engaged in criminal activity.” State v. Kodman, 9th Dist. Medina No. 06CA0100-M, 2007-

Ohio-5605, ¶ 3, citing State v. VanScoder, 92 Ohio App.3d 853, 855 (9th Dist. 1994); see also

State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 8 (explaining that an officer may stop a
                                                 4


vehicle if he has reasonable and articulable suspicion that the driver has committed a traffic

violation). “The purpose of an investigatory stop is to allow a police officer to confirm or dispel

suspicions of criminal activity through reasonable questioning.” State v. Stanley, 11th Dist.

Portage No. 2007-P-0104, 2008-Ohio-3258, ¶ 18, citing United States v. Hickman, 523 F.2d 323,

327 (9th Cir.1975). Before initiating such a stop, a “police officer must be able to point to

specific and articulable facts which, taken together with rational inferences from those facts,

reasonably warrant [the] intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). “[I]t is imperative

that the facts be judged against an objective standard: would the facts available to the officer at

the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that

the action taken was appropriate?” Id. at 21-22, quoting Carroll v. United States, 267 U.S. 132,

162 (1925).

       {¶8}    Detective Boss stopped the car on the direction of Detective Sinsley. According

to Detective Sinsley, as he was following Mr. Dunlap’s car, he saw a woman on a porch hang up

on her cell phone and run down to the car. At the same time, he saw the car pull out of its lane

slightly and stop. He saw the woman approach the car and begin talking to the driver. She then

reached into the car with what appeared to be money and handed it to Mr. Dunlap. Detective

Sinsley testified that, from his experience, he believed that Mr. Dunlap and the woman were

engaging in a hand-to-hand drug deal. According to the Detective, the primary way that his

department makes arrests for street-level drug transactions is to sit in an unmarked vehicle and

watch things. He explained that, since drug transactions are prevalent in Akron, it is just a matter

of selecting the right location. He testified that, over the course of his career, he had witnessed

hundreds of such transactions.
                                                 5


       {¶9}     “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.’” State

v. Taylor, 9th Dist. Summit No. 26693, 2013-Ohio-3906, ¶ 7, quoting United States v. Arvizu,

534 U.S. 266, 273 (2002).       The trial court found Detective Sinsley’s testimony about his

experience and reasons for directing a stop to be credible. Mr. Dunlap has not challenged its

finding. Upon review of the record, we conclude that Detective Sinsley’s observations, in light

of his experience, gave him reasonable, articulable suspicion to direct a traffic stop of Mr.

Dunlap’s car.

       {¶10} The officers who testified also explained that the stop was permitted because Mr.

Dunlap had committed a traffic infraction. According to Detective Sinsley, although Mr. Dunlap

pulled his car slightly out of its lane when he stopped, the car was still blocking his lane of

travel. Lieutenant Yohe also testified that, when he saw Mr. Dunlap’s car, it was in the middle

of the roadway impeding the flow of traffic. Akron Codified Ordinance 73.21(A) provides that

“[n]o person shall stop or operate a vehicle at a slow speed which will impede or block the

normal and reasonable movement of traffic, except when stopping or reduced speed is necessary

for safe operation or to comply with law.” Upon review of the record, we conclude that the

officers also had reasonable, articulable suspicion that Mr. Dunlap had committed a traffic

violation. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, at ¶ 8. We, therefore, reject Mr.

Dunlap’s argument that the traffic stop violated his constitutional rights.

       {¶11} Regarding his Miranda rights, Mr. Dunlap argues that it was impossible for him

to give a knowing, intelligent, and voluntary waiver of his rights because, at the time of the stop,

he had been under the influence of methamphetamine for four or five days. The State has the
                                                6


burden of proving by the preponderance of the evidence that a defendant’s waiver of Miranda

rights was knowing, intelligent, and voluntary. State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-

2708, ¶ 30. Lieutenant Yohe testified that, when he spoke to Mr. Dunlap after Mr. Dunlap’s

arrest, he advised Mr. Dunlap of his Miranda rights. He then asked Mr. Dunlap if he understood

his rights, and Mr. Dunlap answered that he did.         Lieutenant Yohe testified that, in his

observation, Mr. Dunlap appeared to understand his rights.           Although Lieutenant Yohe

acknowledged that Mr. Dunlap told him that he had been using methamphetamine for days, the

lieutenant did not see any overt signs that Mr. Dunlap was high or impaired. According to the

lieutenant, Mr. Dunlap spoke in clear sentences and appeared to have his wits about him. The

trial court found Lieutenant Yohe’s testimony credible, which Mr. Dunlap has not challenged on

appeal. Upon review of the record, we conclude that it does not support Mr. Dunlap’s argument

that his waiver of his Miranda rights was not knowing, intelligent, and voluntary.

       {¶12} Finally, concerning Mr. Dunlap’s fruit of the poisonous tree argument, we note

that it is based on his claim that the stop of his vehicle was not justified and that his Miranda

waiver was invalid. In light of our conclusion that the stop and waiver were valid, we reject his

fruit of the poisonous tree argument. See State v. Henderson, 51 Ohio St.3d 54, 57 (1990). Mr.

Dunlap’s assignment of error is overruled.

                                               III.

       {¶13} Mr. Dunlap’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, P. J.
CARR, J.
CONCUR.


APPEARANCES:

DONALD R. HICKS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
