[Cite as State v. Woods, 2018-Ohio-3379.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon John W. Wise, P.J.
                                              :       Hon. W. Scott Gwin, J.
                        Plaintiff-Appellant   :       Hon. Earle E. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 18-CA-13
SHAUNE WOODS                                  :
                                              :
                     Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Licking County
                                                  Court of Common Pleas, Case No.
                                                  17CR550

JUDGMENT:                                         Affirmed




DATE OF JUDGMENT ENTRY:                           August 22, 2018

APPEARANCES:

For Plaintiff-Appellant                           For Defendant-Appellee

WILLIAM HAYES                                     JEFFREY STAVOFF
LICKING COUNTY PROSECUTOR                         901 SOUTH HIGH STREET, 2ND FLOOR
BY: DANIEL BENOIT                                 COLUMBUS, OH 43206
ASSISTANT PROSECUTOR
20 S. SECOND STREET, 4TH FLOOR
NEWARK, OH 43055
[Cite as State v. Woods, 2018-Ohio-3379.]


Gwin, J.

        {¶1}    Plaintiff-appellant the State of Ohio appeals the February 16, 2018

Judgment Entry of the Licking County Court of Common Pleas granting defendant-

appellee Shaune Woods [“Woods”] motion to suppress evidence.

                                            Facts and Procedural History

        {¶2}    On November 3, 2015, Trooper Drew Untied was sitting stationary watching

traffic and looking for criminal indicators. Trooper United was accompanied that day by

another trooper, Trooper Michael Wilson. Trooper Wilson observed a vehicle of interest

pass by, noting that the vehicle appeared to be driverless. Driverless means that the

officers could not see any of the occupants of the vehicle. The plate of the vehicle came

back to a rental car. Trooper Untied stated that those involved in criminal activity often

time have rental vehicles to avoid seizure of their own property. The vehicle was dusty,

which is typically uncommon for a rental car, and there were fingerprints in the area of

trunk of the vehicle. The troopers pulled out of their position, and ultimately stopped the

vehicle for a traffic offense of following too close.

        {¶3}    The entirety of the traffic stop was recorded on the dash camera system in

place within the trooper's cruiser.

        {¶4}    After the vehicle was stopped, the driver of the vehicle was identified as

Woods. The passenger was identified as Brooks. The trooper approached Woods and

explained to him the reason that the vehicle had been pulled over.

        {¶5}    The vehicle is subject to search and eventually another officer arrives to

offer some professional courtesy to the troopers. Ultimately, drugs are located within the

passenger side seat of the vehicle, inside the void of the passenger seat.
Licking County, Case No. 18-CA-13                                                           3


       {¶6}   Woods filed a motion to suppress the evidence located as a result of the

vehicle being stopped on September 7, 2017. The state responded in writing on September

15, 2017. An oral hearing was held on October 5, 2017. On February 26, 2018, the trial

court issued a ruling granting Woods’ motion to suppress evidence.

                                       Assignment of Error

       {¶7}   The state raises one assignment of error,

       {¶8}   “I. THE TRIAL COURT ERRED IN GRANTING THE APPELLEE'S

MOTION TO SUPPRESS, BY DETERMINING THAT THE STOP OF THE APPELLEE'S

VEHICLE WAS IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED

STATES CONSITUTION.”

                                           Law and Analysis

       STATE’S RIGHT TO APPEAL.

       {¶9}   A court of appeals has jurisdiction to entertain the state's appeal from a trial

court's decision to suppress evidence only where the state has complied with Crim.R.

12(K). State v. Perez, 1st Dist. Hamilton Nos. C-040363, C-040364, C-040365, 2005-

Ohio-1326, ¶12, citing State v. Buckingham, 62 Ohio St.2d 14, 402 N.E.2d 536(1980),

syllabus (interpreting former Crim.R. 12(J)).

       {¶10} Crim.R. 12(K) states in pertinent part:

              When the state takes an appeal as provided by law from an order

       suppressing or excluding evidence, the prosecuting attorney shall certify

       that both of the following apply:

              (1) The appeal is not taken for the purpose of delay;
Licking County, Case No. 18-CA-13                                                          4


              (2) The ruling on the motion or motions has rendered the state's proof

       with respect to the pending charge so weak in its entirety that any

       reasonable possibility of effective prosecution has been destroyed.

              The appeal from an order suppressing or excluding evidence shall

       not be allowed unless the notice of appeal and the certification by the

       prosecuting attorney are filed with the clerk of the trial court within seven

       days after the date of the entry of the judgment or order granting the motion.

       ***

       {¶11} Our review of the record reveals a certifying statement timely filed by the

prosecutor as outlined in Crim.R. 12(K). We therefore have jurisdiction to proceed to the

merits of this appeal.

STANDARD OF APPELLATE REVIEW.

       {¶12} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. 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 witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing

court must defer to the trial court's factual findings if competent, credible evidence exists

to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio

App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,

675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as

true, it must independently determine as a matter of law whether the trial court met the
Licking County, Case No. 18-CA-13                                                       5

applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio

App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534

U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,

116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial

court's findings of fact is subject to a de novo standard of review Ornelas, supra.

Moreover, due weight should be given “to inferences drawn from those facts by resident

judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

ISSUE FOR APPEAL.

      A. Whether the Troopers had probable cause to conduct a traffic stop of Woods’

          vehicle.

      {¶13} The Fourth Amendment to the United States Constitution guarantees “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures * * *.” The Fourth Amendment is enforced against

the States by virtue of the due process clause of the Fourteenth Amendment of the United

States Constitution.   Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d

1081(1961). The stop of a vehicle and the detention of its occupants by law enforcement,

for whatever purpose and however brief the detention may be, constitutes a seizure for

Fourth Amendment purposes. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59

L.Ed.2d 660(1979), citing United States v. Martinez-Fuerte, 428 U.S. 543, 556-558, 96

S.Ct. 3074, 49 L.Ed.2d 1116(1976).

      {¶14} The Supreme Court of Ohio has observed, “‘[a]uthorities seem to be split as

to whether a traffic stop is reasonable when supported merely by reasonable suspicion,

or whether the heightened standard of probable cause must underlie the stop.’” City of
Licking County, Case No. 18-CA-13                                                        6

Bowling Green v. Godwin, 110 Ohio St.3d 58, 850 N.E.2d 698, 2006–Ohio–3563, ¶ 13,

quoting Gaddis ex rel. Gaddis v. Redford Twp. (E.D.Mich.2002), 188 F.Supp.2d 762, 767

There are actually two types of “traffic” stops, and each has a different constitutional

standard applicable to it. In State v. Moller, the Court of Appeals observed,

              First is the typical non-investigatory traffic stop, wherein the police

      officer witnesses a violation of the traffic code, such as crossing over the

      centerline of a road, and then stops the motorist for this traffic violation.

      Second is the investigative or “Terry “ stop, wherein the officer does not

      necessarily witness a specific traffic violation, but the officer does have

      sufficient reason to believe that a criminal act has taken place or is

      occurring, and the officer seeks to confirm or refute this suspicion of criminal

      activity. See Terry v. Ohio (1968), 392 U .S. 1, 21, 88 S.Ct. 1868, 1879-

      1880.    A non-investigatory traffic stop must be supported by probable

      cause, which arises when the stopping officer witnesses the traffic violation.

      See Whren v. United States (1996), 517 U.S. 806, 810, 116 S.Ct. 1769,

      1772; Pennsylvania v. Mimms (1977), 434 U.S. 106, 109, 98 S.Ct. 330, 332.

      By contrast, an investigatory Terry stop is proper so long as the stopping

      officer has “reasonable articulable suspicion” of criminal activity. Terry, 392

      U.S. at 21, 88 S.Ct. at 1879-1880.

12th Dist. Butler No. CA99-07-128, 2000 WL 1577287(Oct. 23, 2000); Accord, State v.

Baughman, 192 Ohio App.3d 45, 2011-Ohio-162, 947 N.E.2d 1273 (12th Dist.), ¶14;

State v. Nwachukwa, 3rd Dist. Marion No. 9-15-03, 2015-Ohio-3282, ¶24; ¶26.
Licking County, Case No. 18-CA-13                                                        7


       {¶15} The cause for a non-investigatory traffic stop has been succinctly stated by

the Supreme Court of Ohio: “Where a police officer stops a vehicle based upon probable

cause that a traffic violation has occurred or was occurring, the stop is not unreasonable

under the Fourth Amendment to the United States Constitution[.]” Dayton v. Erickson, 76

Ohio St.3d 3, 11-21, 1996-Ohio-431, 665 N.E.2d 1091. Probable cause is defined in

terms of “facts or circumstances ‘sufficient to warrant a prudent man in believing that the

(suspect) had committed or was committing an offense.’” Gerstein v. Pugh, 420 U .S.

103, 111, 95 S.Ct. 854, 861(1975), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223,

225(1964).

       {¶16} In the case at bar, Trooper Untied testified that he observed Woods violate

R.C. 4511.34, Space between moving vehicles,

              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.

              The driver of any truck, or motor vehicle drawing another vehicle,

       when traveling upon a roadway outside a business or residence district shall

       maintain a sufficient space, whenever conditions permit, between such

       vehicle and another vehicle ahead so an overtaking motor vehicle may enter

       and occupy such space without danger. This paragraph does not prevent

       overtaking and passing nor does it apply to any lane specially designated

       for use by trucks.
Licking County, Case No. 18-CA-13                                                         8


                Outside a municipal corporation, the driver of any truck, or motor

         vehicle when drawing another vehicle, while ascending to the crest of a

         grade beyond which the driver’s view of a roadway is obstructed, shall not

         follow within three hundred feet of another truck, or motor vehicle drawing

         another vehicle.   This paragraph shall not apply to any lane specially

         designated for use by trucks.

                Motor vehicles being driven upon any roadway outside of a business

         or residence district in a caravan or motorcade, shall maintain a sufficient

         space between such vehicles so an overtaking vehicle may enter and

         occupy such space without danger. This paragraph shall not apply to

         funeral processions.

         {¶17} In the case at bar, the trial court's ruling granted the motion to suppress

on the basis that the stop of the Appellee's vehicle was unconstitutional. The trial court

noted,

                The video shows moderately heavy traffic traveling on a major

         interstate highway at reasonable speeds for the conditions and under the

         posted limits. It shows that the cruiser maintained its position in the left

         lane several car lengths behind the Defendants’ vehicle, which was in the

         right lane, essentially in the driver's blind spot. It depicts that, over the

         course of several miles, the vehicles in the left lane in front of the cruiser

         start merging into the right hand causing the vehicles in that lane to lightly

         brake in order to maintain appropriate spacing.
Licking County, Case No. 18-CA-13                                                       9


             Why would the left lane drivers be merging right? Simple. There's

      a cop car behind them, in the left lane. Most reasonable drivers merge

      right when a vehicle behind them appears to want to go faster, especially

      when it's the police. In fact, given the circumstances, it was required under

      R.C. 4511.25(B)(1). But regardless of the reason, it caused right lane

      traffic to become more congested. As a result, vehicles braked to slow

      down and accommodate. That's what the defendant did in this case. He

      did not violate R.C. 4511.34, by "following too closely."

                                           ***

             Based on the evidence presented, and for the reasons set forth above,

      the Court finds that there was not probable cause to believe that a traffic

      violation had been committed. The Court reaches this conclusion based

      primarily on the video taken from the cruiser. The Court finds that the video

      was more reliable and more accurate than the other evidence offered. And

      at times, the video simply contradicted the trooper's version of what

      occurred.

             For example, Trooper Untied testified it took the driver a long time to

      come to a stop after he initiated his lights. The video contradicts this claim.

      Once the driver was ordered to pull over, he did so in a reasonable and

      timely manner.

             He also claimed that the vehicle very dusty and that there were

      fingerprints on the lift gate, which he took as a sign that the vehicle must

      have been a long term rental and therefore used in the drug trade. The video
Licking County, Case No. 18-CA-13                                                      10


      showed otherwise. In fact, the vehicle in the video appeared as clean any

      other vehicle on the highway that day. After all, it was an early November

      evening in Ohio. Who knows what the weather conditions had been like

      the week, days, or even hours before the stop. It’s Ohio. The point is weather

      can change quickly here. If that's the threshold by which traffic stops are

      made, then we're all in jeopardy. And if it was dirty, so what? Having a

      dusty vehicle with fingerprints on the hatch back or tailgate, is not evidence

      of a traffic violation or reason to believe a crime is being committed.

             Another claim worthy of mention is Trooper Wilson's testimony that

      what drew his attention to this vehicle was that he noticed the vehicle

      appeared to be "driverless" when it passed them at the 113 mile post. He

      stated that there were no visible occupants in the vehicle and speculated

      that the driver and any passengers must have pushed their seats back in

      order to avoid detection. Keep in mind that according the government's

      version of events, this vehicle passed their stationary location at 60-70

      miles per hour in the blink of an eye. Trooper Untied testified that he did

      not even notice the vehicle as it passed. And the fact that Trooper Wilson

      claims that his inability to see a person behind the wheel - in that split

      second - and therefore, something nefarious must be going on does not

      bolster his credibility, it subverts it. If there were credible evidence to

      support a claim that a driver or occupant laid his or her seat back in order

      to avoid detection, one might expect other evidence might be offered to

      support the observation. But none was. There were no photographs of
Licking County, Case No. 18-CA-13                                                     11


      the interior compartment of the vehicle, there were no comments or

      questions heard on the recording about not having seen the occupants

      when they passed by.        Nor was there any testimony about furtive

      movements taking place inside the vehicle before the stop was made.

Decision and Entry Granting Defendant’s Motion to Suppress, Feb. 16, 2018 at 3; 5-6.

      {¶18} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

the Ohio Supreme Court examined the denial of a motion to suppress in a prosecution

for driving under the influence in which the defendant alleged that the state had failed

to substantially comply with certain requirements of the Ohio Administrative Code in

conducting his blood-alcohol test. The Court stated,

             Appellate review of a motion to suppress presents a mixed question

      of law and fact. When considering 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. State

      v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently,

      an appellate court must accept the trial court’s findings of fact if they are

      supported by competent, credible evidence. State v. Fanning (1982), 1

      Ohio St.3d 19, [20], 1 OBR 57, 437 N.E.2d 583. Accepting these facts as

      true, the appellate court must then independently determine, without

      deference to the conclusion of the trial court, whether the facts satisfy the

      applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d

      706, 707 N.E.2d 539.”

Burnside at ¶ 8. In the case at bar, in order to establish probable cause, the state had
Licking County, Case No. 18-CA-13                                                          12


the burden to provide credible evidence that Woods followed 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. Here, the record contains competent, credible evidence that

supports the trial court’s conclusion that Woods did not. A review of the video evidence

and the testimony of the troopers does not establish that Woods followed 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. As the trial court noted the video shows moderately

heavy traffic traveling on a major interstate highway at reasonable speeds for the

conditions and under the posted limits. As the right-hand lane in which Woods was

traveling became more congested by vehicles merging into the lane from the left-hand

lane Woods braked to accommodate the slower traffic. It does not appear that any of

the vehicles were traveling six or more car lengths behind the vehicle that they were

following. Accordingly, competent, credible evidence was presented that Woods was

not following 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.

       {¶19} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011–

Ohio–6524, 960 N.E.2d 955, ¶ 118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.
Licking County, Case No. 18-CA-13                                                         13


843, 74 L.Ed .2d 646 (1983). As an appellate court, we neither weigh the evidence nor

judge the credibility of witnesses.     State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d

972(1992). Our role is to determine whether there is relevant, competent and credible

evidence, upon which the fact finder could base its judgment. Cross Truck Equipment

Co., Inc. v. Joseph A. Jeffries Co., 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Reviewing courts should accord deference to the trial court’s decision because

the trial court has had the opportunity to observe the witnesses’ demeanor, gestures, and

voice inflections that cannot be conveyed to us through the written record, Miller v. Miller,

37 Ohio St. 3d 71(1988).

       {¶20} In Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d 1273

(1984), the Ohio Supreme Court explained: "[a] reviewing court should not reverse a

decision simply because it holds a different opinion concerning the credibility of the

witnesses and evidence submitted before the trial court. A finding of an error in law is a

legitimate ground for reversal, but a difference of opinion on credibility of witnesses and

evidence is not.” See, also State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),

syllabus 1.

       {¶21} Accordingly, the trial court's determination that the troopers did not have

probable cause to stop Woods is supported by competent, credible evidence, and

therefore the trial court properly granted Woods’ motion to suppress.
Licking County, Case No. 18-CA-13                                                   14


      {¶22} The state’s sole assignment of error is overruled.

      {¶23} The Judgment of the Licking County Court of Common Pleas is affirmed.




By Gwin, J.,
Wise, John, P.J., and
Wise, Earle, J., concur
