[Cite as State v. Hahn, 2013-Ohio-2308.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. 2012 AP 08 0050
COREY HAHN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the New Philadelphia
                                              Municipal Court, Case No. TRC 1003657
                                              A-B


JUDGMENT:                                     Reversed and Remanded



DATE OF JUDGMENT ENTRY:                       June 3, 2013



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

DOUG JACKSON                                  DONOVAN HILL
PROSECUTING ATTORNEY                          ASSISTANT PUBLIC DEFENDER
150 East High Avenue, Suite 113               153 North Broadway
New Philadelphia, Ohio 44663                  New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2012 AP 08 0050                                                  2

Wise, J.

       {¶1}   Appellant Corey J. Hahn appeals the decision of the New Philadelphia

Municipal Court overruling his motion to suppress.

       {¶2}   Appellee is the State of Ohio.

                        STATEMENT OF THE FACTS AND CASE

       {¶3}    On July 25, 2010, at approximately 12:54 a.m., the New Philadelphia

Police Department received a report of an unknown person outside the residence of 300

11th Street NW, Lot 10 and a noise described as someone trying to open car doors.

       {¶4}   Officer Paul Rossi was dispatched to the residence and arrived just before

1:00 a.m. to speak with the caller. As Officer Rossi was investigating the call, he noticed

a dark green vehicle driving at a high rate of speed leaving from the direction where the

noises had originated (T. at 9). Due to the suspicious driving and the proximity to the

initial noise complaint, Officer Rossi initiated a stop of the vehicle in an effort to identity

the driver and determine whether or not the driver was involved with the noise

complaint.

       {¶5}   Upon initial contact with the driver, later identified as Appellant Corey

Hahn, Officer Rossi observed that Appellant's eyes appeared to be bloodshot and

glassy. (T. at 10). He further noticed a strong odor of alcohol coming from Appellant’s

person. Id. Officer Rossi also saw open cans of Budweiser beer on the backseat floor.

Appellant admitted to drinking earlier in the day, stating that he was heading home for

the evening. Officer Rossi decided to investigate the matter further as Appellant was

traveling in the opposite direction of his home.
Tuscarawas County, Case No. 2012 AP 08 0050                                                   3


       {¶6}   Officer Rossi, with the assistance of Officer Ty Norris, had Appellant

perform field sobriety tests, including the Horizontal Gaze Nystagmus, Walk and Turn,

One Leg Stand, Finger to Nose, and reciting the alphabet, all of which Appellant failed.

       {¶7}   Appellant    was    arrested   for   violating   R.C.   §4511.19A(1)(a)        and

subsequently submitted to a breath test, resulting in a 0.193 BAC.

       {¶8}   In addition to Officer Rossi's own observations, he was able to confirm, via

Defendant's license plate number and vehicle description, that the police dispatch had

received a call earlier in the evening of the same vehicle driving erratically (T. at 11).

       {¶9}   On November 16, 2010, Appellant filed a Motion to Suppress.

       {¶10} On February 18, 2011, an oral hearing was held on the motion to

suppress. At the suppression hearing, Officer Rossi testified for the State.

       {¶11} On February 23, 2011, the Magistrate issued a decision overruling

Defendant's Motion to Suppress.

       {¶12} On February 28, 2011, Appellant filed an Objection to the Magistrate's

Decision.

       {¶13} On May 27, 2011, the trial court held an oral hearing on Appellant’s

objections. In its Judgment Entry filed June 29, 2011, the trial court noted that the

Magistrate acknowledged new case law, State v. Hill, which had not been available

when she issued her decision on February 23, 2011. The trial court remanded the

matter to the Magistrate for reconsideration.

       {¶14} In a decision filed December 28, 2011, the Magistrate reaffirmed her

decision to overrule Defendant's Motion to Suppress.
Tuscarawas County, Case No. 2012 AP 08 0050                                               4


       {¶15} On January 5, 2012, Appellant again filed objections. The matter was set

for oral hearing before a visiting judge.

       {¶16} The oral hearing was held on April16, 2012, and on May 17, 2012, the trial

court issued its Judgment Entry overruling Appellant's objection.

       {¶17} Appellant now appeals, assigning the following error for review:

                                ASSIGNMENT OF ERROR

       {¶18} “I. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S

MOTION TO SUPPRESS CHALLENGING THE PROBABLE CAUSE OF POLICE

OFFICER ROSSI TO CONDUCT A TRAFFIC STOP ON THE DEFENDANT'S

VEHICLE AND SUBSEQUENTLY CHARGE HIM WITH OVI, THE COURT'S DECISION

IN DOING SO WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND

ESTABLISHED CASE LAW.”

                                             I.

       {¶19} In his sole Assignment of Error, Appellant argues the trial court erred in

denying his motion to suppress. We agree.

       {¶20} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. See State v. Klein, 73

Ohio App.3d 486 (1991), State v. Guysinger, 86 Ohio App.3d 592 (1993). Second, an

appellant may argue the trial court failed to apply the correct law to the findings of fact.

In that case, an appellate court can reverse the trial court for committing an error of law.

See State v. Williams, 86 Ohio App.3d 37 (1993). Finally, assuming the trial court's
Tuscarawas County, Case No. 2012 AP 08 0050                                              5


findings of fact are not against the manifest weight of the evidence and it has properly

identified the law, an appellant may argue the trial court has incorrectly applied the law

in deciding the ultimate or final issue raised in the motion to suppress. In reviewing this

type of claim, an appellate court must give deference to the trial court and is governed

by an abuse of discretion standard; i.e., it must determine whether the trial court's

subjective determination of the ultimate issue in the case was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). It is with this

framework in mind that we address Appellant's assignment of error.

       {¶21} When ruling on a motion to suppress, the trial court assumes the role of

trier of fact and is in the best position to resolve questions of fact and to evaluate the

credibility of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243;

State v. Fanning (1982), 1 Ohio St.3d 19, 20.

       {¶22} In his motion to suppress, Appellant argued that the officer stopped his

vehicle without a reasonable, articulable suspicion of criminal activity as required by

Terry v. Ohio (1968), 392 U.S.1.

       {¶23} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibit the government from conducting unreasonable

searches and seizures of persons or their property. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968); State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271

(1991).

       {¶24} At issue in the case sub judice is whether or not Officer Rossi had

reasonable, articulable suspicion to stop Appellant's vehicle. An investigative stop of a

motorist does not violate the Fourth Amendment if the officer has a reasonable
Tuscarawas County, Case No. 2012 AP 08 0050                                               6

suspicion that the individual is engaged in criminal activity. Maumee v. Weisner, 87

Ohio St.3d 295, 299, 1999–Ohio–68, 720 N.E.2d 507, citing Terry v. Ohio, 392 U.S. 1,

22, 88 S.Ct. 1868 20 L.Ed.2d 889. Before a law enforcement officer may stop a vehicle,

the officer must have a reasonable suspicion, based upon specific and articulable facts

that an occupant is or has been engaged in criminal activity. State v. Gedeon, 81 Ohio

App.3d 617, 618, 611 N.E.2d 972 (11th Dist.1992). Reasonable suspicion constitutes

something less than probable cause. Alabama v. White (1990), 496 U .S. 325, 330, 110

S.Ct. 2412, 110 L.Ed.2d 301. But it requires something more than an “inchoate and

unparticularized suspicion or ‘hunch’.” Terry v. Ohio (1968), 392 U.S. 1, 27, 88 S.Ct.

1868, 20 L.Ed.2d 889. “[T]he Fourth Amendment requires at least a minimal level of

objective justification for making the stop.” Illinois v. Wardlow (2000), 528 U.S. 119, 123,

120 S.Ct. 673, 145 L.Ed.2d 570. The propriety of an investigative stop must be viewed

in light of the totality of the circumstances. State v. Bobo, 37 Ohio St.3d 177, 524

N.E.2d 489 (1988), ¶ 2 of the syllabus.

       {¶25} In this case, Officer Rossi was responding to a call from a caller

complaining that his mother called him and she heard “a bunch of people outside her

house and it sounds like they’re breaking into cars” and that he “heard what sounded

like people opening and closing car doors.” (T. at 9, 17). While he was speaking with

the complainant, Officer Rossi saw Appellant’s vehicle leaving the trailer park where the

noises were heard, at a “high rate of speed.” (T. at 9). Officer Rossi admitted that he

did not visually estimate Appellant’s speed, nor was speed the reason he stopped the

vehicle. (T. at 18-20). He stated that he did not stop him for any traffic violation. (T. at

20).   He stated the reason he stopped Appellant was based on a complaint that
Tuscarawas County, Case No. 2012 AP 08 0050                                             7


someone was breaking into cars, the time of night, and the location being a high crime

area. (T. at 13, 17). Officer Rossi admitted he had not verified that any crime had been

committed or that any cars had been broken into prior to stopping Appellant’s vehicle.

(T. at 17-18).

       {¶26} Upon review, we find Officer Rossi did not observe Appellant engage in

any unlawful activity.   He only observed Appellant driving out of the trailer park at

approximately 1:00 a.m. He admits that Appellant had not been observed or identified

as having been involved in any criminal activity. (T. at 22). Based on the totality of the

circumstances, we find Officer Rossi did not have reasonable and articulable suspicion

of criminal activity.

       {¶27} We further find the earlier complaint about the green Ford Escort obtained

by Officer Rossi cannot be used to retroactively support a reasonable and articulable

suspicion of criminal activity because such call was not the reason he stopped

Appellant. (T. at 13).    Accordingly, we conclude the trial court erred in denying

Appellant's motion to suppress.
Tuscarawas County, Case No. 2012 AP 08 0050                                   8


      {¶28} Appellant’s sole Assignment of Error is sustained.

      {¶29} The decision of the New Philadelphia Municipal Court, Tuscarawas

County, Ohio, is reversed and this matter is remanded for further proceedings

consistent with the law and this opinion.


By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
JWW/d 0520
Tuscarawas County, Case No. 2012 AP 08 0050                                     9


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
COREY HAHN                                 :
                                           :
       Defendant-Appellant                 :         Case No. 2012 AP 08 0050




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the New Philadelphia Municipal Court, Tuscarawas County, Ohio, is

reversed and remanded for further proceedings consistent with this opinion.

       Costs assessed to Appellee.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
