[Cite as State v. Sanders, 2017-Ohio-319.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
EDWARD SANDERS                               :       Case No. 2016CA00108
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Canton Municipal
                                                     Court, Case No. 2016TRC00683




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    January 26, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

TASHA FORCHIONE                                      TROY REEVES
218 Cleveland Avenue, SW                             142 East Main Street
Canton, OH 44702                                     Suite 200
                                                     Kent, OH 44240
Stark County, Case No. 2016CA00108                                                       2

Farmer, P.J.

      {¶1}     On January 21, 2016, Ohio State Highway Patrol Trooper Jason Halstead

observed a vehicle with one operating brake light and crossing over the centerline.

Trooper Halstead stopped the vehicle being operated by appellant, Edward Sanders. As

a result of the stop, appellant was charged with operating a motor vehicle under the

influence in violation of R.C. 4511.19(A)(1)(a) and (h) and driving in marked lanes in

violation of R.C. 4511.33.

      {¶2}     On February 15, 2016, appellant filed a motion to suppress, claiming an

illegal stop. A hearing was held on March 15, 2016. By judgment entry filed March 17,

2016, the trial court denied the motion, finding reasonable suspicion to stop the vehicle.

      {¶3}     On May 6, 2016, appellant pled no contest to one of the OVI charges and

the marked lanes violation. By judgment entry filed same date, the trial court found

appellant guilty and sentenced him to one hundred eighty days in jail, all but twenty days

suspended.

      {¶4}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶5}     "THE ARRESTING TROOPER DID NOT HAVE THE NECESSARY

REASONABLE, ARTICULABLE BASIS TO CONDUCT AN INVESTIGATORY STOP OF

THE APPELLANT THEREBY VIOLATING HIS RIGHT TO BE FREE FROM

UNREASONABLE SEARCH AND SEIZURE PROTECTED BY THE OHIO AND UNITED

STATES CONSTITUTIONS."
Stark County, Case No. 2016CA00108                                                       3


                                             II

      {¶6}   "PER THE DOCTRINE OF THE FRUIT OF THE POISONOUS TREE, THE

TROOPER HAD NO PROBABLE CAUSE FOR THE DETENTION OF THE APPELLANT,

NOR PROBABLE CAUSE TO ARREST HIM FOR OVI.                             WHEREFORE, HIS

CONVICTION MUST [BE] REVERSED AND HIS MOTION TO SUPPRESS GRANTED."

                                            I, II

      {¶7}   Appellant claims the trial court erred in denying his motion to suppress, as

Trooper Halstead lacked a reasonable suspicion of criminal activity to warrant an

investigatory stop and therefore, any evidence obtained after the stop should have been

suppressed. We disagree.

      {¶8}   As recently stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio

St.3d 165, 2016-Ohio-154, ¶ 12:



             "Appellate review of a motion to suppress presents a mixed question

      of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

      797 N.E.2d 71, ¶ 8. In ruling on 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, 582 N.E.2d 972 (1992). On

      appeal, we "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, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then

      "independently determine as a matter of law, without deference to the
Stark County, Case No. 2016CA00108                                                          4


       conclusion of the trial court, whether the facts satisfy the applicable legal

       standard." Id.



       {¶9}   As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal."

       {¶10} In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court

determined that "a police officer may in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating possible criminal behavior even

though there is no probable cause to make an arrest." However, for the propriety of a

brief investigatory stop pursuant to Terry, the police officer involved "must be able to point

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

facts, reasonably warrant that intrusion." Id. at 21. Such an investigatory stop "must be

viewed in the light of the totality of the surrounding circumstances" presented to the police

officer. State v. Freeman, 64 Ohio St.2d 291 (1980), paragraph one of the syllabus.

       {¶11} In its March 17, 2016 judgment entry denying the motion to suppress, the

trial court found the following:



              Trooper Halstead testified that the speed limit on S.R. 43 was 55

       mph in that area and that Trooper Halstead had been operating his cruiser

       at the speed limit. Trooper Halstead was unable to estimate defendant's

       speed at the time he began pulling away from the trooper. Trooper Halstead

       did give his opinion that the defendant's speed was in excess of the speed
Stark County, Case No. 2016CA00108                                                         5


       limit as he was pulling away from the trooper. Trooper Halstead initiated a

       traffic stop. It was necessary for the trooper to use both his lights and siren

       to stop the defendant.

              The video of the stop was played during the suppression hearing.

       Prior to viewing the video of the stop, Trooper Halstead testified that he did

       not recall how much over the line the defendant traveled. The video shows

       the defendant's vehicle traveling on the center line. Trooper Halstead

       agreed that, after viewing the video, the defendant's right brake light was

       still working, but was dimmer than defendant's left brake light.

              The Court finds there was reasonable suspicion for the stop of the

       defendant's vehicle based upon the marked lanes violation. The Court

       further finds that, as the defendant is operating his vehicle, he is drifting

       back and forth in the lane. He also operated his vehicle at a speed greater

       than the speed limit of 55 mph.



       {¶12} The central issue is whether Trooper Halstead observed sufficient driver

error to rise to the level of reasonable suspicion of criminal behavior.

       {¶13} Ohio courts have generally recognized that reasonable suspicion does not

equate to probable cause or to the higher standard of beyond a reasonable doubt. State

v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. "The test is not what we now know, but

what the trooper believed at the time that led him to make the stop." State v. Houck, 5th

Dist. Licking No. 11-CA-49, 2011-Ohio-6359, ¶ 20 (Farmer, J., dissenting). This court

has held that any traffic violation, even a de minimis violation, may form a sufficient basis
Stark County, Case No. 2016CA00108                                                        6

for reasonable suspicion to stop a vehicle. State v. Bangoura, 5th Dist. Licking No. 08

CA 95, 2009-Ohio-3339, ¶ 14, citing State v. McCormick, 5th Dist. Stark No.

2000CA00204, 2001 WL 111891 (Feb. 2, 2001). As explained by our brethren from the

Tenth District in State v. Smith, 10th Dist. Franklin No. 13AP-592, 2014-Ohio-712, ¶ 10:



              "Reasonable suspicion entails some minimal level of objective

       justification, 'that is, something more than an inchoate and unparticularized

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

       probable cause.' " State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854,

       ¶ 17 (10th Dist.), quoting State v. Jones, 70 Ohio App.3d 554, 556-57 (2d

       Dist.1990). In evaluating reasonable suspicion to support the propriety of a

       traffic stop, a reviewing court must consider the totality of the circumstances

       surrounding the stop as " 'viewed through the eyes of the reasonable and

       prudent police officer on the scene who must react to events as they unfold.'

       " McCandlish [State v., 10th Dist. Franklin No. 11AP-913, 2012-Ohio-3765],

       at ¶ 7, quoting State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991).



       {¶14} Through the gift of technology, appellate courts can scrutinize the

reasonable suspicion articulated by an officer initiating a stop. However, this does not

give appellate review "carte blanche" in determining factual issues. The weight to be

given to the evidence and the credibility of the witnesses are issues for the trier of fact.

State v. Jamison, 49 Ohio St.3d 182 (1990).
Stark County, Case No. 2016CA00108                                                     7


       {¶15} In this case, the videotape of the stop was played during the suppression

hearing. State's Exhibit 1. Trooper Halstead provided a dialogue and description of his

observations while the videotape was shown. T. at 14-19. The videotape is grainy and

taken in the dark, with the glare of oncoming headlights. Trooper Halstead stopped

appellant's vehicle after following him and observing a cross-over on the centerline. In

fact, one such lane movement occurred when an approaching vehicle was in the opposite

lane. Trooper Halstead was positive the right brake light was nonfunctional prior to

stopping appellant, but upon review, admitted his observation was incorrect, as the light

was functioning, but dim. T. at 21. Trooper Halstead told appellant he was stopped

because of the brake light being out and the lane crossing. T. at 33.

       {¶16} Trooper Halstead believed there was driver error to effectuate the stop. We

find such belief is sufficient to rise to the level of reasonable suspicion.

       {¶17} Upon review, we find the trial court did not err in denying the motion to

suppress.

       {¶18} Assignments of Error I and II are denied.
Stark County, Case No. 2016CA00108                                          8


      {¶19} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




SGF/sg 110
