[Cite as State v. Lindsey, 2012-Ohio-3105.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellant                          :            C.A. CASE NO.     24943

v.                                                   :            T.C. NO.    11 CR 1812
                                                                             11 CR 1833
MATTHEW D. LINDSEY                                   :
                                                                  (Appeal from Common
        Defendant-Appellee                           :            Pleas Court, Criminal Division)

                                                      :
                                              ..........

                                              OPINION

                         Rendered on the       6th       day of       July      , 2012.

                                              ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellant

ADELINA E. HAMILTON, Atty. Reg. No. 0078595 and ALYSIA A. GOSS, Atty. Reg. No.
0086398, Assistant Public Defenders, 117 South Main Street, Suite 400, Dayton, Ohio
45422
      Attorneys for Defendant-Appellee

                                              ..........

DONOVAN, J.

        {¶ 1}      Plaintiff-appellant, State of Ohio, appeals a judgment of the Montgomery
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County Court of Common Pleas sustaining defendant-appellee Matthew Lindsey’s motion to

suppress evidence regarding his stop and arrest by a Mongomery County Sheriff’s deputy on

May 27, 2011. The trial court’s decision was filed on Dec. 2, 2011. The State of Ohio

filed a timely notice of appeal with this court on Dec. 9, 2011.

       {¶ 2}     Deputy Fazzari was on patrol in Washington Township at approximately 3

A.M. on May 27, 2011. Dep. Fazzari was in a marked car patrolling Penbrooke Trail,

Agate Trail and Onyx Trail. Three of these streets form a semicircular loop. Dep. Fazzari

was not dispatched to the area; he was not looking for a particular suspect or a specific

vehicle, rather, he was on routine patrol. The deputy was aware that there had been a series

of vehicle break-ins and thefts from sheds in the Washington Township area. Dep. Fazzari

was also aware that these burglaries were not limited to the area he was patrolling. There

were no reported vehicle descriptions in the crimes.

       {¶ 3}     While Dep. Fazzari was at a stop sign at the intersection of Penbrooke and

Agate Trail, he observed defendant-appellee Lindsey driving through the intersection.

Lindsey was travelling at a low speed, approximately 10 to 15 miles per hour. The speed

limit in the area was 25 miles per hour. As Lindsey’s headlights illuminated Dep. Fazzari’s

patrol car, Lindsey slowed further, braking abruptly. As Lindsey passed, Deputy Fazzari

observed that Lindsey and his passenger were sitting upright; Lindsey’s hands were at the ten

and two o’ clock position on the steering wheel. Dep. Fazzari further observed that Lindsey

was not wearing his seat belt. Dep. Fazzari decided to follow Lindsey, and did so for about

one half of a mile.

       {¶ 4}     When Lindsey turned onto Onyx, effectively repeating the circular path he
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had already driven, Dep. Fazzari turned on his patrol car lights and initiated a stop. After he

activated his siren, Dep. Fazzari saw what he described as “furtive movements” made by the

passenger in the front seat of the vehicle. Additionally, Dep. Fazzari testified that it took

“an extended time” for the driver of the vehicle, later identified as Lindsey, to come to a

stop.    Dep. Fazzari then approached Lindsey’s vehicle and began to speak with him.

Lindsey remained in the vehicle. Dep. Fazzari detected the smell of alcohol about the cabin

of the vehicle, and noticed that Lindsey was not making eye contact. After asking Lindsey

to look at him, Dep. Fazzari noticed that his eyes were watery and bloodshot. Dep. Fazzari

asked Lindsey whether he had been drinking alcohol. Lindsey responded that he had not, at

which point Dep. Fazzari asked Lindsey to exit the vehicle. When asked for identification,

Lindsey responded that he did not have any. The passenger’s pant legs were wet up to his

shins.   Dep. Fazzari also noticed inside the vehicle: a knit hat, black gloves, a large

screwdriver, an open case of beer, a radio, an in-dash type car radio and a woman’s purse or

bag as well as a lady’s apparel shopping bag. Following a police check on the identity of

Lindsey and his passenger, Dep. Fazzari learned that both men were under multiple license

suspensions.

         {¶ 5}   After both men were outside of the vehicle, Dep. Fazzari asked Lindsey

about his destination. Lindsey responded that he was headed to Washington Village. Dep.

Fazzari again asked Lindsey whether he had been drinking alcohol. This time, Lindsey

responded that “he may have had something to sip.” Dep. Fazzari noted that he also

smelled alcohol when talking to Lindsey outside of the vehicle, and that when he asked what

Lindsey “had to sip,” Lindsey replied “beer.” Dep. Fazzari then administered a series of
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standardized field sobriety tests. The tests indicated that Lindsey was intoxicated. Lindsey

was Mirandized and placed under arrest.

       {¶ 6}    Three counts against Lindsey arose out of the traffic stop. Lindsey was

indicted by a Montgomery County Grand Jury on June 21, 2011, for one count of operation

of a vehicle while under the influence of alcohol or a drug of abuse, a violation of R.C.

4511.19(A)(2)/4511.19(G)(1)(d), a felony of the fourth degree.         The indictment also

included a second OVI count, in violation of R.C. 4511.19(A)(1)/4511.19(G)(1)(d), also a

felony of the fourth degree. A second indictment was issued three days later, for one count

of receiving stolen property, in violation of R.C. 2913.51(A), a felony of the fifth degree.

Lindsey moved to suppress all evidence obtained in the traffic stop conducted by Dep.

Fazzari. Lindsey’s suppression hearing was held on September 7, 2011. The trial court

overruled Lindsey’s motion to suppress in a decision filed on Oct. 25, 2011. However,

upon his motion for reconsideration of the October 25, 2011 decision, the trial court

sustained Lindsey’s motion to suppress. The trial court’s decision to sustain the motion was

prompted at least in part by our decision in State v. Studley, 2d Dist. Greene No. 2010 CA

81, 2011-Ohio-5563.

       {¶ 7}    It is from this judgment that the State now appeals.

       {¶ 8}    The State’s sole assignment of error is as follows:

       THE TRIAL COURT ERRED BY SUSTAINING MATTHEW LINDSEY’S

       MOTION      TO    SUPPRESS         WHERE     THE    TOTALITY      OF    THE

       CIRCUMSTANCES DEMONSTRATE THE DEPUTY SHERIFF HAD A

       REASONABLE,         ARTICULABLE         SUSPICION       THAT     CRIMINAL
                                                                                               5

       ACTIVITY WAS AFOOT BY THE TIME LINDSEY ACQUIESCED TO

       THE DEPUTY’S SIGNAL TO STOP HIS VEHICLE.

       {¶ 9}     In its sole assignment, the State contends that the trial court erred when it

sustained Lindsey’s motion to suppress on the basis of our recent holding in Studley, 2d Dist.

Greene No. 2010 CA 81, 2011-Ohio-5563. In Studley, we held that a police officer did not

have a reasonable, articulable suspicion to institute the stop of van in residential area at

approximately 3:15 a.m. when the officer had no information linking the van to criminal

activity, and he observed no traffic violations prior to the stop. Initially, the State argues

that our holding in Studley is based on facts which are distinguishable from the

circumstances involved in the instant case.           In the alternative, if Studley is not

distinguishable, the State asserts that the case was wrongly decided and ought to be reversed.

 For the following reasons, we find that the trial court correctly sustained Lindsey’s motion

to suppress. Moreover, we reaffirm our holding in Studley.

       {¶ 10}    In regards to a motion to suppress, “the trial court assumes the role of trier

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

witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist. 1996),

quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The

court of appeals must accept the trial court’s findings of fact if they are supported by

competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662,

2005-Ohio-3733, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.

1994). Accepting those facts as true, the appellate court must then determine, as a matter of

law and without deference to the trial court’s legal conclusion, whether the applicable legal
                                                                                                6

standard is satisfied. Id.

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

Article I of the Ohio Constitution protect individuals from unreasonable searches and

seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A traffic stop

by a law-enforcement officer must comply with the Fourth Amendment’s reasonableness

requirement. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89

(1996).

          {¶ 12}   A police officer may stop and detain a motorist when he has a reasonable

and articulable suspicion that a motorist has committed, is committing, or is about to commit

any criminal offense, including a traffic offense, and no independent reasonable and

articulable suspicion of other criminal activity is required under Terry. State v. Stewart, 2d

Dist. Montgomery No. 19961, 2004-Ohio-1319, at ¶13; Dayton v. Erickson, 76 Ohio St.3d 3,

665 N.E.2d 1091 (1996). We determine the existence of reasonable suspicion by evaluating

the totality of the circumstances, considering those circumstances “through the eyes of the

reasonable and prudent police officer on the scene who must react to events as they unfold.”

State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047.

          {¶ 13}   “[C]ourts still retain their traditional responsibility to guard against police

conduct which is overbearing or harassing, or which trenches upon personal security without

the objective evidentiary justification which the Constitution requires. When such conduct

is identified, it must be condemned by the judiciary and its fruits must be excluded from

evidence in criminal trials.” Studley, 2d Dist. Greene No. 2010 CA 81, 2011-Ohio-5563,

quoting Terry, 392 U.S. at 15.
                                                                                              7

       {¶ 14}    At the suppression hearing, Dep. Fazzari testified that there had been a

string of break-ins in Washington Township. The break-ins, however, were not confined to

the residential plat area of Penbrooke and Agate Trail. We also note that Dep. Fazzari

testified that the break-ins had been occurring for months.

       {¶ 15}    Additionally, Dep. Fazzari testified that he had not received a call for a

break-in on May 27, 2011, for that immediate area, nor was he looking for a suspect who

matched either Lindsey’s description or a description of the vehicle he was driving.

Moreover, no evidence was adduced which included any description of a suspect or vehicle

used in the prior thefts. Thus, Dep. Fazzari was not on the lookout for a vehicle similar to

the one Lindsey was driving.

       {¶ 16}    When he passed Dep. Fazzari’s cruiser which was located at the corner of

Penbrooke and Agate, Lindsey slowed his vehicle down. Dep. Fazzari testified that other

than suddenly slowing his speed, Lindsey did not commit any traffic or equipment

violations. Although Dep. Fazzari observed that he was not wearing his seatbelt which,

standing alone, is insufficient to initiate a traffic stop, Lindsey was doing nothing out of the

ordinary or against the law. Dep. Fazzari testified that he observed that Lindsey was sitting

up straight in the driver’s seat with his hands in the ten and two o’ clock position on the

steering wheel. Dep. Fazzari also testified that Lindsey failed to acknowledge or make eye

contact with him. Moreover, Dep. Fazzari testified that the speed limit in the immediate

area was twenty-five miles per hour. Thus, the fact that Lindsey was driving at ten to

fifteen miles per hour was neither abnormal nor otherwise remarkable.

       {¶ 17}    Dep. Fazzari further testified that he followed Lindsey as he continued to
                                                                                                8

drive through the neighborhood for approximately one-half of a mile. After several legal

turns through the neighborhood, Lindsey eventually looped back to where he and Officer

Fazzari had first come into visual contact. At this point, Dep. Fazzari turned on his flashing

lights and siren and initiated a traffic stop of Lindsey’s vehicle. Dep. Fazzari testified that it

took an extended period of time for Lindsey to stop his vehicle. We also note that Dep.

Fazzari testified that it was not until after he turned on his flashing lights and initiated the

stop that he observed the passenger in Lindsey’s vehicle make furtive movements.

Regarding his reason for initiating the traffic stop of Lindsey’s vehicle, Dep. Fazzari testified

on cross-examination as follows:

       Dep. Fazzari: I wasn’t sure what he was doing, ma’am, and that’s why I

       stopped him.

       {¶ 18}    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 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
                                                                                             9

stop and question an individual.

       {¶ 19}    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. “Law enforcement officers

may briefly stop and detain an individual for investigation if the officers have a reasonable,

articulable suspicion that criminal activity may be afoot. That is something more than an

unparticularized suspicion or mere hunch, but less than the level of suspicion required for

probable cause. To satisfy that standard, police must be able to point to specific and

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

reasonably warrant the intrusion. (Citations omitted).” Studley, supra, at ¶ 54. In the instant

case, Dep. Fazzari’s testimony fails to establish any specific and articulable facts which

reasonably warrant the stop.

       {¶ 20}    Accordingly, we decline the State’s invitation to reconsider our decision in

Studley. We cannot ignore the Fourth Amendment’s prohibition on unlawful search and

seizure in the context of a traffic stop initiated with no reasonable, articulable suspicion of

criminal activity by the arresting officer. Moreover, we are constrained by the doctrine of
                                                                                            10

stare decisis which requires that we continue to adhere to Studley as the law in the Second

District. “The doctrine of stare decisis is designed to provide continuity and predictability

in our legal system. We adhere to stare decisis as a means of thwarting the arbitrary

administration of justice as well as providing a clear rule of law by which the citizenry can

organize their affairs.” Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 4-5, 539

N.E.2d 103 (1989).

        {¶ 21}    The State’s sole assignment of error is overruled.

        {¶ 22}    The State’s only assignment of error having been overruled, the judgment

of the trial court is affirmed.

                                          ..........

GRADY, P.J., concurring:

        {¶ 23}    I dissented in State v. Studley, 2d Dist. Greene No. 2010CA81,

2011-Ohio-5563, because the officer who performed the stop in that case articulated a

reasonable basis to suspect that the persons in the vehicle he stopped were involved in

criminal conduct.

        {¶ 24}    In Studley, Officer Holley testified that he was aware of approximately forty

vehicle break-ins and thefts within the last month in the particular residential plat through

which the vehicle was travelling, and that no one had been apprehended for those offenses.

That, combined with the time, 3:15 a.m., and the vehicle’s slow rate of speed and the

passenger’s conduct, looking back at the officer and moving from side to side, leaning

forwards and backwards, presented a reasonable basis to suspect that the vehicle’s

passengers had some connection with those unsolved and numerous break-ins and thefts.
                                                                                                11

       {¶ 25}      In the present case, the time was much the same, 3:00 a.m., and the vehicle

was travelling slowly and in a random fashion, at a slow rate of speed. Its driver and

passenger were not moving about, however, and did not otherwise exhibit suspicious

conduct. More importantly, the prior offenses about which the officer was aware were not

specific to the area where the vehicle was seen, but had occurred throughout Washington

Township, a large and populous Dayton suburb. There was not a sufficient nexus with

criminal conduct to support a finding that the stop was reasonable, under those

circumstances.

                                           ..........

HALL, J., concurring:

       {¶ 26}      I agree with the trial court that, based on the specific facts of this case, the

State did not demonstrate that the officer had a reasonable, articulable suspicion that

criminal activity was afoot to justify the stop of the defendant’s car. I write separately to

ponder the elusive distinction between constitutional and unconstitutional early-morning,

residential traffic stops and to explain my decision to concur in judgment in State v. Studley,

2d Dist. Greene No. 2010CA81, 2011-Ohio-5563, which has been used in support of the

decision herein.

       {¶ 27}      In Studley, an officer stopped a vehicle, with no observable traffic violation,

in a residential neighborhood in the early-morning hours. The vehicle appeared to be

traveling aimlessly in an area where there had been numerous recent thefts from

automobiles. But the officer observed suspicious movement before the stop. I concurred in

judgment, without opinion, to suppress the evidence in Studley, not so much because I was
                                                                                                12

concerned about the initial stop of the vehicle but because, after the stop, the officer learned

that the driver had a valid license and that he and his friends were just driving around before

going home. Then, without any objective and particularized indication that there was any

illegal activity, the officer asked if he could search the car and had the three other

passengers, one of whom was Studley, exit the van. I agreed with the part of the Studley

decision that found this to be unreasonable, as “[t]he facts [did] not justify a request to go on

a fishing expedition for evidence of some prior theft.” Id. at ¶ 62. Therefore, in my view, the

evidence in Studley should have been suppressed, which led me to concur in judgment.

       {¶ 28}     In contrast with Studley, the officer in this case did not articulate a

reasonable suspicion to stop the vehicle . The totality of the circumstances established that

the car was driving slowly, possibly aimlessly, at about 3:00 a.m. in a residential

neighborhood. That’s it. The officer stated the driver was sitting erect with both hands on the

wheel, and the driver or passenger did not acknowledge the officer or look at him. But those

facts do not add to a suspicion of criminal activity. The officer stated that after he turned on

his overhead lights to initiate a stop, he observed furtive movement and the car did not stop

right away. But those facts don’t create a reasonable suspicion of criminal activity to support

initiation of the stop. The officer testified he was aware of car break-ins and unlocked

vehicle entries, but he didn’t relate them to this stop. He stated he stopped the vehicle

because of its speed and circling in the area. He explained: “I believe there may be a

problem. I stopped him to investigate the possible problem.” It would seem that the

unusually slow speed would lead to a reasonable inference that the driver was under the

influence, but the officer did not testify to, or explain, that suspicion. In the final analysis, I
                                                                                              13

agree with the trial court that the facts do not demonstrate a reasonable suspicion to initiate a

traffic stop and, therefore, concur.

                                          ..........

Copies mailed to:

R. Lynn Nothstine
Adelina E. Hamilton
Alysia A. Goss
Hon. Dennis J. Langer
