[Cite as State v. Reedy, 2012-Ohio-4899.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                       Plaintiff-Appellee      :      Hon. Sheila G. Farmer, J.
                                               :      Hon. John W. Wise, J.
-vs-                                           :
                                               :      Case No. 12-CA-1
JOSHUA REEDY                                   :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Perry County Court of
                                                   Common Pleas, Case No. 11-CR-0055


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            October 17, 2012



APPEARANCES:

For Appellant:                                        For Appellee:

STEVEN P. SCHNITTKE                                   JOSEPH A. FLAUTT
114 S. High St., P.O. Box 536                         PERRY COUNTY PROSECUTOR
New Lexington, OH 43764                               111 N. High St., P.O. Box 569
                                                      New Lexington, OH 43764
[Cite as State v. Reedy, 2012-Ohio-4899.]


Delaney, J.

        {¶1} Appellant Joshua A. Reedy appeals from the September 23, 2011

judgment entry of the Perry County Court of Common Pleas overruling his motion to

suppress and the December 22, 2011 judgment entry sentencing appellant upon his

pleas of no contest. Appellee is the state of Ohio.

                              FACTS AND PROCEDURAL HISTORY

        {¶2} This case arose on December 23, 2010 when Ptl. Robison of the New

Lexington Police Department was on patrol in the private parking lot of a CVS

drugstore. He observed appellant exit a parking lot on the opposite side of the road,

at “Circle K,” and turn left onto the roadway without using a turn signal.

        {¶3} Robison performed a traffic stop of appellant’s vehicle and made contact

with appellant. Upon further investigation appellant was found to be in possession of

several pills including oxycodone and alprazolam.

        {¶4} At the subsequent suppression hearing Robison was appellee’s only

witness and testified the sole reason for the traffic stop was appellant’s failure to

signal upon leaving the parking lot.1

        {¶5} Appellant was charged by indictment with one count of aggravated drug

possession [oxycodone] pursuant to R.C. 2925.11(A) and (C)(1)(a), a felony of the fifth

degree, and one count of drug possession [alprazolam] pursuant to R.C. 2925.11(A)

and (C)(2)(a), a misdemeanor of the first degree.




1
  Appellant asserts Robison did not cite him for failure to use a turn signal. Whether or not a
citation was issued was not addressed at the suppression hearing, and there is no uniform
traffic citation in the record.
Perry County, Case No. 12-CA-1                                                          3


       {¶6} Appellant entered pleas of not guilty and filed a Motion to Suppress

Evidence/Motion to Dismiss on June 27, 2011, asserting the investigating officer had

no probable cause to perform a traffic stop of his vehicle.

       {¶7} A suppression hearing was held on August 8, 2011, and the trial court

ordered the parties to submit Findings of Fact and Conclusions of Law. Both parties

complied.    On September 23, 2011, the trial court overruled appellant’s motion to

suppress, finding the patrolman properly initiated a traffic stop upon appellant’s failure

to use his turn signal when turning left from private property onto a roadway.

       {¶8} Appellant withdrew his pleas of not guilty and entered pleas of no

contest.    The trial court accepted appellant’s change of plea, found him guilty as

charged, and ordered a presentence investigation.             Appellant was ultimately

sentenced to a term of five years on community control on Count One, aggravated

drug possession, and a jail term of 90 days, to be served as 30 days of actual

incarceration and 60 days of house arrest, on Count Two, drug possession.

Appellant’s driver’s license was suspended for six months and he was fined $1000.00.

       {¶9} Appellant now appeals from the trial court’s judgment entry overruling his

motion to suppress.

       {¶10} Appellant raises one Assignment of Error:

       {¶11} “I. THE COURT COMMITTED ERROR IN DENYING THE MOTION OF

DEFENDANT/APPELLANT TO SUPPRESS THE SEARCH OF THE VEHICLE OF

DEFENDANT/APPELLANT IN VIOLATION OF THE FOURTH AMENDMENT OF THE

UNITED STATES CONSTITUTION.”
Perry County, Case No. 12-CA-1                                                            4


                                             I.

        {¶12} Appellant argues the trial court erred in overruling his motion to suppress

because the police officer’s stop of his vehicle was premised upon a mistake of law.

We disagree.

        {¶13} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,

713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes

the role of trier of fact and, as such, is in the best position to resolve questions of fact

and to evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661

N.E.2d 1030 (1996). A reviewing court is bound to accept the trial court’s findings of

fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio

App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the

appellate court must independently determine as a matter of law, without deference to

the trial court’s conclusion, whether the trial court’s decision meets the applicable legal

standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),

overruled on other grounds.

        {¶14} There are three methods of challenging a trial court’s ruling on a motion

to suppress on appeal. First, an appellant may challenge the trial court’s finding of

fact.   In reviewing a challenge of this nature, an appellate court must determine

whether the trial court’s findings of fact are against the manifest weight of the

evidence. See, State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v.

Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (4th Dist.1991). Second, an appellant

may argue the trial court failed to apply the appropriate test or correct law to the
Perry County, Case No. 12-CA-1                                                          5


findings of fact.   In that case, an appellate court can reverse the trial court for

committing an error of law. See, Williams, supra. Finally, an appellant may argue the

trial court has incorrectly decided the ultimate or final issues raised in a motion to

suppress. When reviewing this type of claim, an appellate court must independently

determine, without deference to the trial court’s conclusion, whether the facts meet the

appropriate legal standard in any given case. State v. Curry, 95 Ohio App.3d 93,

96,620 N.E.2d 906 (8th Dist.1994).

       {¶15} In the instant case, the facts are not in dispute.       Instead, appellant

challenges the trial court’s application of the legal standard to those facts. Appellant

argues the issue before us is whether appellant’s failure to signal upon turning left

from a private parking lot is a violation of the law. We find, though, that answering this

question is not central to the analysis. Instead, the issue we must resolve is whether a

police officer may stop an individual when the officer reasonably but mistakenly

believes the conduct is a violation of the law; the answer to this question is “yes.”

State v. Garnett, 10th Dist. No. 09AP-1149, 2010-Ohio-5865, ¶ 13, appeal not

allowed, 128 Ohio St.3d 1447, 2011-Ohio-1618, 944 N.E.2d 696, reconsideration

denied, 128 Ohio St.3d 1504, 2011-Ohio-2420, 947 N.E.2d 685, citing State v.

Gunzenhauser, 5th Dist. No. 09-CA-21, 2010-Ohio-761, ¶ 16.

       {¶16} The Fourth Amendment to the United States Constitution prohibits

warrantless searches and seizures, rendering them per se unreasonable unless an

exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507 19 L.Ed.2d

576 (1967). An investigative stop, or Terry stop, is a common exception to the Fourth

Amendment warrant requirement.        Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1503, 20
Perry County, Case No. 12-CA-1                                                        6


L.Ed.2d 889 (1968).     Because the “balance between the public interest and the

individual’s right to personal security” tilts in favor of a standard less than probable

cause in such cases, the Fourth Amendment is satisfied if the officer’s action is

supported by reasonable suspicion to believe that criminal activity “may be afoot.”

United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607

(1975); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1

(1989). In Terry, the Supreme Court held that a police officer may stop an individual if

the officer has a reasonable suspicion based upon specific and articulable facts that

criminal behavior has occurred or is imminent. See, State v. Chatton, 11 Ohio St.3d

59, 61, 463 N.E.2d 1237 (1984).

      {¶17} The propriety of an investigative stop must be viewed in light of 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.” State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991); State v.

Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988). The Supreme Court of the

United States has re-emphasized the importance of reviewing the totality of the

circumstances in making a reasonable suspicion determination:

      When discussing how reviewing courts should make reasonable-suspicion

      determinations, we have said repeatedly that they must look at the “totality of

      the circumstances” of each case to see whether the detaining officer has a

      “particularized and objective basis” for suspecting legal wrongdoing.        This

      process allows officers to draw on their own experience and specialized training

      to make inferences from and deductions about the cumulative information
Perry County, Case No. 12-CA-1                                                            7


      available to them that “might well elude an untrained person.” Although an

      officer’s reliance on a mere “hunch” is insufficient to justify a stop, the likelihood

      of criminal activity need not rise to the level required for probable cause, and it

      falls considerably short of satisfying a preponderance of the evidence standard.

      United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct.744, 151 L.Ed.2d 740

      (2002), citing United States v. Cortez, 449 U.S. 411, 417-418 (1981).

      {¶18} Traffic stops based upon observation of a traffic violation are

constitutionally permissible. Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 1996-Ohio-

431, 665 N.E.2d 1091. An issue arises, however, when the traffic violation underlying

the stop is questionably a violation of the law. We have previously noted “[u]nder

limited circumstances, courts have held that the exclusionary rule may be avoided with

respect to evidence obtained in a stop based on conduct that a police officer

reasonably, but mistakenly, believes is a violation of the law.” State v. Gunzenhauser,

supra, 2010-Ohio-761, ¶16, citing City of Wilmington v. Conner, 144 Ohio App.3d 735,

740, 761 N.E.2d 663 (12th Dist.2001); State v. Greer, 114 Ohio App.3d 299, 300-301,

683 N.E.2d 82 (2nd Dist.1996). Such cases necessarily involve a mistake of law

rather than a mistake of fact. “Because courts must be cautious in overlooking a

police officer’s mistakes of law, the mistake must be objectively reasonable.” Id.

      {¶19} As in Gunzenhauser, the statute at issue in the instant case “is not free

from ambiguity.”    Where a statue is vague or ambiguous, or requires judicial

construction to determine its scope of meaning, exceptional circumstances exist which

permit courts to extend the good faith exception to the exclusionary rule to not only
Perry County, Case No. 12-CA-1                                                          8

mistakes of fact but also mistakes of law. Greer, supra, 114 Ohio App.3d at 303. The

trial court found appellant violated R.C. 4511.39(A), which states in pertinent part:

       No person shall turn a vehicle or trackless trolley or move right or left upon a

       highway unless and until such person has exercised due care to ascertain that

       the movement can be made with reasonable safety nor without giving an

       appropriate signal in the manner hereinafter provided. When required, a signal

       of intention to turn or move right or left shall be given continuously during not

       less than the last one hundred feet traveled by the vehicle or trackless trolley

       before turning * * *.

Ptl. Robison cited New Lexington 331.14, the relevant portion of which effectively

mirrors R.C. 4511.39(A).

       {¶20} The parties have framed the issue in this appeal as whether “upon a

highway,” pursuant to R.C. 4511.39(A), refers to a driver who is turning out of a private

parking lot onto a roadway. “Highway” is defined in R.C. 4511.01(B)(B) as “the entire

width between boundary lines of every way open to the use of the public as a

thoroughfare for purposes of vehicular travel.” Appellant contends this is inapplicable

to private property and points to other sections of the traffic code which pertain to

yielding the right-of-way from private property but do not require use of a turn signal.

R.C. 4511.44(A).     Appellee and the trial court looked to the common definition of

“upon,” which means “movement in a given position or toward a specified object” to

support the position that movement toward the highway required appellant to use his

turn signal. This ambiguity in the statute constitutes the “exceptional circumstances”

described in Greer, allowing us to conclude the officer’s mistake of law was
Perry County, Case No. 12-CA-1                                                             9


reasonable and does not require application of the exclusionary rule. Moreover, a

number of courts have addressed this issue, in similar contexts.

         {¶21} In State v. Garnett, the appellant contested the traffic stop of his motor

vehicle premised upon a Columbus City Ordinance which is substantially similar to

R.C. 4511.39(A) and New Lexington Traffic Code 331.14. In that case, the Tenth

District Court of Appeals cited our decision in Gunzenhauser, supra, in finding the

exclusionary rule did not apply to the stop because the officer reasonably but

mistakenly believed he observed a violation:

         Whether or not appellant’s failure to use his turn signal constituted an actual

         violation is not essential to our analysis. [The officer] testified that he observed

         appellant turn onto Shanley Drive without using his turn signal, which he

         believed was a violation of Columbus City Code section 2131.14.            State v.

         Garnett, 10th Dist. No. 09AP-1149, 2010-Ohio-5865, ¶ 13, appeal not allowed,

         128 Ohio St.3d 1447, 2011-Ohio-1618, 944 N.E.2d 696, reconsideration

         denied, 128 Ohio St.3d 1504, 2011-Ohio-2420, 947 N.E.2d 685, citing State v.

         Gunzenhauser, 5th Dist. No. 09-CA-21, 2010-Ohio-761, ¶ 16.

The Court found the officer could reasonably have believed appellant violated the

applicable code section.       Similarly, we find Ptl. Robison could reasonably have

believed appellant in the instant case violated New Lexington Traffic Code section

331.4.

         {¶22} In State v. Perkins, the appellant turned onto a public roadway from a

private parking lot without using his turn signal, was traffic stopped, and ultimately

charged with O.M.V.I. The appellant moved to suppress evidence from the stop on
Perry County, Case No. 12-CA-1                                                         10


the basis of no reasonable and articulable suspicion to stop; the trial court overruled

the motion to suppress.

      {¶23} In affirming the trial court’s decision, the Second District Court of

Appeals found the officer saw the appellant turn left without signaling and driving

erratically, and “believed both acts violated traffic laws.”   In a footnote, the Court

stated:

      Never raised is whether [appellant’s] failure to use his turn signal was actually a

      traffic offense. * * * *. The [trial] court never cited either a traffic code or a

      particular offense.    Likely, the court is referring to R.C. 4511.39 or the

      substantially similar provision in [the local traffic code] both of which prohibit a

      person from turning onto a highway without signaling. We question whether

      those provisions apply to turns from private property. Ultimately, whether they

      apply in this case does not really change the conclusion. We have said that

      evidence obtained from a stop for what the officer thought was a traffic offense

      need not be suppressed if the officer’s mistake of law was reasonable. State v.

      Greer, 114 Ohio App.3d 299, 305, 683 N.E.2d 82 (2nd Dist.1996). * * * *.

      State v. Perkins, 2nd Dist. No. 2011-CA-24, 2012-Ohio-2544, fn.6.

      {¶24} In applying these analyses to the facts of the instant case, we find Ptl.

Robison could reasonably believe appellant violated the New Lexington traffic code by

failing to signal when he turned onto the roadway from a private parking lot. Based

upon substantial precedent from this Court and others, determining whether appellant

committed an actual violation is not essential to our analysis. The evidence from the
Perry County, Case No. 12-CA-1                                                    11


traffic stop need not be suppressed because the officer’s mistake of law was

reasonable.

      {¶25} We therefore overrule appellant’s sole assignment of error and affirm the

judgment of the Perry County Court of Common Pleas.

By: Delaney, P.J.

Farmer, J. and

Wise, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. SHEILA G. FARMER



                                      HON. JOHN W. WISE


PAD:kgb
[Cite as State v. Reedy, 2012-Ohio-4899.]


                IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                       Plaintiff-Appellee      :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
JOSHUA REEDY                                   :
                                               :
                                               :   Case No. 12-CA-1
                       Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Perry County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                             HON. PATRICIA A. DELANEY



                                             HON. SHEILA G. FARMER



                                             HON. JOHN W. WISE
