[Cite as State v. Harris, 2012-Ohio-4237.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                ROSS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 11CA3298
                               :
     vs.                       : Released: September 14, 2012
                               :
LONELL L. HARRIS,              : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Jonathan D. Schmidt, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C.
Marks, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant, Lonell L. Harris, appeals from his conviction in the

Ross County Court of Common Pleas, for cocaine possession and

trafficking. Appellant contends that the trial court erred in denying his

motion to suppress all evidence obtained from an allegedly illegal stop of a

motor vehicle in which he was traveling. After reviewing the record, the

Trooper involved here had a reasonable articulable suspicion that the driver

of the vehicle in which Appellant Harris was traveling violated a traffic law

by following another vehicle too closely. Therefore, the traffic stop was
Ross App. No. 11CA3298                                                           2


justified. As such, the motion to suppress was properly denied. Accordingly,

we affirm the trial court’s judgment.

                                                      FACTS

           {¶2} On May 20, 2010, Ohio State Highway Patrol Trooper Benjamin

Seabolt observed a 2010 silver chevrolet impala, operated by Caprisha [sic]

Bradford, traveling southbound on U.S. Route 23 in Ross County, Ohio.

The trooper first saw a tractor trailer, also headed southbound,

approximately 200-250 yards away from him. The impala was traveling

directly behind the tractor trailer. Given the circumstances, Trooper Seabolt

believed the impala to be following a tractor trailer more closely than was

reasonable and prudent, in violation of R.C. 4511.34, so he initiated a traffic

stop. Trooper Seabolt then encountered Appellant, Lonell L. Harris, who

was riding as a right rear passenger. Trooper Seabolt also discovered

Chyquita Lee, a right front passenger, and another occupant, a female. 1

           {¶3} After Trooper Seabolt stopped the vehicle, he approached the

right passenger side of the vehicle. Ms. Lee initially failed to roll down her

window, however, when she did, Trooper Seabolt detected an odor of

marijuana coming from the vehicle. He also observed loose marijuana

flakes on the right front passenger door, the middle of the front seat, and the


1
    The transcript reveals this female’s last name was “Nunn.”
Ross App. No. 11CA3298                                                            3


middle of the rear seat. The Trooper advised the four of their Miranda rights

and requested that Ms. Bradford exit the vehicle. Trooper Seabolt proceeded

to question her and the other passengers. Ms. Bradford eventually admitted

there was a quarter ounce of crack cocaine in the vehicle. Appellant also

admitted that there was crack cocaine under Ms. Lee’s seat. Trooper Seabolt

thereafter conducted a search of the Impala and subsequently charged

Appellant and Ms. Lee with (1) trafficking in crack cocaine, a violation of

R.C. 2925.03(C)(4)(d), and (2) possession of crack cocaine, a violation of

R.C.2925.11(A). Appellant was eventually indicted on drug abuse and

trafficking, both felonies of the third degree.

      {¶4} On January 14, 2011, Appellant filed a motion to suppress all

evidence obtained as a result of the traffic stop. Appellant asserted that the

trooper lacked reasonable articulable suspicion and/or sufficient probable

cause to stop the vehicle.

      {¶5} The court held a suppression hearing wherein Trooper Seabolt

testified that he was not able to see the silver car until it was approximately

200-250 yards away from him, due to the vehicle’s being so directly behind

and close to the tractor trailer. In the Trooper’s opinion, the impala was

approximately 1.5 car lengths from the tractor trailer. The Trooper visually

estimated the impala’s speed to be approximately 55-60 miles an hour.
Ross App. No. 11CA3298                                                           4


Sixty mph is the posted speed in the area. He further opined that based on

the location of the tractor trailer and the impala, another vehicle could not

have gotten safely between the two. The Trooper also testified that as the

vehicles in question approached him, the tractor trailer continued to move at

the same rate of speed while the impala was gaining on the tractor trailer.

When the vehicles at issue were past the Trooper, approximately 150-200

yards further southbound, Trooper Seabolt believed there was a possibility

the impala was going to strike the tractor trailer in the rear. At this point, the

impala “jerked” into the left hand lane and passed the tractor trailer. The

Trooper then began to pursue the impala. It took approximately two miles

for Trooper Seabolt to catch up with the impala.

      {¶6} The State of Ohio also introduced a DVD of the traffic stop

during the suppression hearing. Neither party objected to the playing of the

DVD. The alleged traffic violation was not captured on the DVD, however,

both defendants made various incriminating statements which were

contained on the DVD.

      {¶7} Appellant also testified at the hearing that the group in the

impala left from Columbus and were headed to Gallipolis to pick up his

brother. The group stopped in Chillicothe at a gas station. Appellant first

saw the Trooper as they were re-entering the highway. Appellant testified
Ross App. No. 11CA3298                                                                                        5


they were attempting to pass a semi in the middle lane and were behind him,

intending to get into the left-hand lane. They were behind the semi a few
                                    2
seconds, “not that long.”               He did not know nor did he attempt to estimate

how close the Impala was to the rear of the semi tractor trailer. Appellant

further testified they were in the far left lane when they passed the Trooper,

and that the Trooper traveled “a nice little distance” before he pulled over

their vehicle.

         {¶8} On April 21, 2011, the court filed its judgment entry denying the

motion to suppress.

         {¶9} On August 31, 2011, Appellant pled no contest to both charges.

The judgment entry of sentence was filed on September 22, 2011. Appellant

now brings his timely appeal, setting forth a single assignment of error for

our review.

                                  ASSIGNMENT OF ERROR

I.       THE TRIAL COURT ERRED IN FAILING TO GRANT THE
         MOTION TO SUPPRESS.

                                        LEGAL ANALYSIS

         {¶10} In his sole assignment of error, Appellant contends that the trial

court erred in failing to grant the motion to suppress all evidence obtained


2
  Appellant first indicated they were behind the semi five to ten seconds. He later indicated it was two to
five seconds.
Ross App. No. 11CA3298                                                             6


from the allegedly illegal stop because there was no probable cause.

Specifically, Appellant argues that there was no evidence of any other

infraction of traffic laws, other than following too close, R.C. 4511.34, and

that the amount of time the Impala was behind the tractor trailer, allegedly 5

seconds, was reasonable and complied with the statute. As such, Appellant

argues the stop of the vehicle was improper and all evidence obtained as a

result of the stop should have been suppressed.

       {¶11} Our review of a decision on a motion to suppress “presents

mixed questions of law and fact.” State v. McNamara, 124 Ohio App.3d

706,710, 707 N.E.2d 539 (1997); citing United States v. Martinez (C.A.11,

1992), 949 F.2d 1117, 1119. When considering a motion to suppress, the

trial court acts as the trier of fact and is in the best position to resolve factual

questions and evaluate witness credibility. State v. Burnside, 100 Ohio St.

3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶8. Accordingly, we must

uphold the trial court’s findings of fact if competent, credible evidence in the

record supports them. State v. Landrum, 137 Ohio App. 3d 718, 722, 739

N.E.2d 1159 (2000). We then conduct a de novo review of the trial court’s

application of the law to the facts. State v. Anderson, 100 Ohio App.3d 688,

691, 654 N.E.2d 1034 (1995); State v. Fields, 4th Dist. No. 99CA11, 1999

WL 1125120,*v2.
Ross App. No. 11CA3298                                                              7


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

Article I, Section 14 of the Ohio Constitution provide for “[t]he right of the

people to be secure***against unreasonable searches and seizures***.”

Searches and seizures conducted without a prior finding of probable cause

by a judge or magistrate “are per se unreasonable under the Fourth

Amendment, subject only to a few specifically established and well-

delineated exceptions.” California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct.,

1982 (1991) (internal citations omitted). State v. Tincher, 47 Ohio App.3d

188, 190, 548 N.E.2d 251 (1988).

      {¶13} The Supreme Court of Ohio has stated that “ ‘[p]robable cause

is certainly a complete justification for a traffic stop,’ but the court has ‘not

held that probable cause is required.’” State v. Ward, 4th Dist. No. 10CA30,

2011-Ohio-1261,¶13, quoting State v. Mays, 119 Ohio St. 3d 406, 2008-

Ohio-4539, 894 N.E.2d 1204, at ¶23. Instead, to justify a traffic stop based

upon less than probable cause, an officer must be able to articulate specific

facts that would warrant a person of reasonable caution to believe that the

person has committed, or is committing, a crime, including a minor traffic

violation. See Terry v. Ohio, 392 U.S. 1, 21, 88. S.Ct. 1868 (1968). See,

also, Mays at ¶8. Chillicothe v. Frey, 156 Ohio App.3d 296, 2004-Ohio-

927, 805 N.E.2d 551 at ¶14; State v. Garrett, 4th Dist. App. No. 05CA802,
Ross App. No. 11CA3298                                                        8


2005-Ohio-5155, ¶10. Reasonable suspicion sufficient to conduct a stop

exists if there is “at least a minimal level of objective justification for

making the stop.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673

(2008). As we explained in State v. Emerick, 4th Dist. No. 06CA45, 2007-

Ohio-4398, ¶15:

             “A traffic stop may pass constitutional muster even
      where the state cannot convict the driver due to a failure in
      meeting the burden of proof or a technical difficulty in
      enforcing the underlying statute or ordinance.***The very
      purpose of an investigative stop is to determine whether
      criminal activity is afoot. This does not require scientific
      certainty of a violation nor does it invalidate a stop on the basis
      that the subsequent investigation reveals no illegal activity is
      present.”


      {¶14} A court that must determine whether a law enforcement officer

possessed a reasonable suspicion or probable cause to stop a vehicle must

examine the “totality of the circumstances.” Id., at ¶13. See, e.g., United

States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct.744 (2002). Moreover, the

touchstone of a Fourth Amendment analysis is the reasonableness of the

intrusion. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98

S.Ct. 330, (1997).

      {¶15} A police officer may stop the driver of a vehicle after observing

a de minimis violation of traffic laws. State v. Guseman, 4th Dist. No.

08CA15, 2009-Ohio-952 ¶20, citing, State v. Bowie, 4th Dist. No. 01CA34,
Ross App. No. 11CA3298                                                          9


2002-Ohio-3553, ¶8, 12, and 16, citing Whren v. United States, 517 U.S.

806, 116 S.Ct. 1769 (1996). See, also, Dayton v. Erickson, 76 Ohio St.3d 3,

655 N.E.2d 1091 (1996), syllabus.

      {¶16} In the case sub judice, we agree with the trial court’s

conclusion that Trooper Seabolt had probable cause to stop the vehicle in

question for a traffic violation. Here, the trial court used a higher standard in

considering the motion. Had the trial court ruled Trooper Seabolt articulated

in the suppression hearing reasonable suspicion that the traffic statute had

been violated, the finding would have been sufficient for this court to affirm.

      R.C. 4511.34, Space between moving vehicles, states in pertinent part:

      “The operator of a motor vehicle, streetcar, or trackless trolley
      shall not follow another vehicle, streetcar, or trackless trolley
      more closely than is reasonable and prudent, having due regard
      for the speed of such vehicle, streetcar, or trackless trolley, and
      the traffic upon and the condition of the highway.”


      {¶17} In State v. Ward, 4th Dist. No. 10CA30, 2011-Ohio-1261, ¶15,

we noted that “[a]n officer’s direct observation that a vehicle is following

another vehicle too closely provides probable cause to initiate a lawful

traffic stop.” State v. Kelly, 188 Ohio App.3d 842, 2010-Ohio-3560, 937

N.E.2d 149, at ¶ 15, citing State v. Perry, 12th Dist. No. CA2004-11-016,

2005-Ohio-6041, ¶12.
Ross App. No. 11CA3298                                                          10


      {¶18} Here, Trooper Seabolt testified he was sitting stationery when

he first observed the tractor-trailer, 200-250 yards away from him. The

vehicle was not visible initially. As the tractor trailer approached him, the

impala seemed to be gaining on the trailer, but the trailer was maintaining

the same speed. When the tractor trailer and the silver impala passed

Trooper Seabolt, he was approximately thirty-five feet away from them and

they were traveling in the middle lane. The trooper further testified that the

impala was approximately 1.5 car lengths from the tractor trailer. He

estimated the impala’s speed at fifty-five to sixty miles per hour and

observed the impala get closer to the tractor trailer than the 1.5 lengths

initially observed. When the vehicles were past the Trooper, approximately

150-200 yards further southbound, he believed that there was a possibility

that the impala was going to strike the tractor trailer in the rear. At this

point, the impala “jerked” to the left into the left hand lane, passed the

tractor trailer, and the trooper decided to pursue. It took approximately two

miles for the trooper to catch up to the impala, a little over a minute.

      {¶19} Trooper Seabolt further explained that the video camera

mounted to the windshield in his cruiser activates when the trooper activates

the overhead lights. When the overhead lights come on, the camera goes

back sixty seconds. Trooper Seabolt recorded the actions and statements of
Ross App. No. 11CA3298                                                         11


the defendants during the traffic stop. He preserved the video and audio

recording by removing the flash drive, downloading it to a computer at the

patrol post, and making a copy of the DVD. Apparently, Trooper Seabolt

did not activate the overhead lights in time to record the “following too

closely” violation.

           {¶20} When cross-examined about his ability to estimate the speed of

traffic approximately 200-250 yards down the road, Trooper Seabolt stated

he was required to pass a test of visual estimate of vehicle speed, plus or

minus three miles an hour, in order to be certified using electronic speed

measuring devices. And, he was trained to estimate vehicles’ speeds whether

they are at steady speed, increasing, or decreasing. Trooper Seabolt further

testified that while he was taught mathematical equations at the academy,
3
    with regard to what is reasonably safe in relationship to R.C. 4511.34, “the

general rule of one car length for every ten miles an hour is the proven safe

and reasonable following distance.” He further explained this general rule

was based upon “mathematical equations I do not have with me today, based

upon the average driver’s reaction time and the amount of feet that you’re

traveling per second at a certain speed.” This evidence adduced at the

suppression hearing supports the conclusion that Trooper Seabolt possessed


3
    We assume this to be the Ohio State Highway Patrol Academy.
Ross App. No. 11CA3298                                                            12


at least reasonable suspicion that the driver of the Appellant’s vehicle

violated R.C. 4511.34. That Ohio courts have held the police may use a

general rule of one car length for every ten miles per hour the car is traveling

as an indicator that a driver has violated [R.C. 4511.34] was discussed at

length in this Court’s decision in Ward, supra, ¶16.

      {¶21} In this case, we reject Appellant’s assertion that Appellee was

required to present evidence as to the length of time the impala followed the

tractor trailer. The statute itself does not specify as to a length of time but

directs that the operator of a motor vehicle shall not follow another vehicle

“more closely than is reasonable and prudent, having due regard for the

speed of such vehicle…the traffic upon and the condition of the

highway….” Despite the fact the violation was not captured on the video,

the trial court had competent credible evidence in the form of Trooper

Seabolt’s testimony. Here, the trial court found the Trooper’s testimony to

be more credible than that offered by Appellant. Trooper Seabolt was able to

articulate specific facts as to the following: where he was when he first saw

the impala; what rate of speed he estimated the impala to be traveling; what

distance he estimated between the impala and the tractor trailer; and what he

believed to be a dangerous situation, should the impala strike the rear of the

trailer. By contrast, the substance of Appellant’s testimony was that the
Ross App. No. 11CA3298                                                          13


impala was “not that long” behind the semi and that the Trooper was a “nice

little distance” before he caught up to the impala and initiated the stop.

Appellant acknowledged he did not know the distance between the two

vehicles, whereas the trooper estimated the distance to be only 1.5 car

lengths. Trooper Seabolt based his estimations on his experience and

training, whereas Appellant mentioned no particular expertise. Appellant’s

version of the incident completely differs where Trooper Seabolt’s testimony

was that when the vehicles passed him, they were both in the middle lane.

By contrast, Appellant testified that they had already passed the semi and

were in the far left-hand lane when they passed the trooper. We note that

observing and evaluating the credibility of the witnesses is the province of

the trial court and we defer to the trial court’s judgment here. See State v.

Dunlap, supra.

      {¶22} Applying the law de novo, we find competent, credible

evidence in the record to support the trial court’s factual findings and

decision. As such, we conclude the trial court did not err by finding the

Trooper had probable cause to initiate a traffic stop for “following too

closely.” Accordingly, Appellant’s sole assignment of error is overruled.

The decision of the trial court is affirmed.

                                               JUDGMENT AFFIRMED.
Ross App. No. 11CA3298                                                        14


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, P.J. and Kline, J: Concur in Judgment and Opinion.

                          For the Court,

                          BY: _________________________
                              Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
