[Cite as State v. Bashada, 2017-Ohio-8501.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :     JUDGES:
                                              :     Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellant                 :     Hon. John W. Wise, J.
                                              :     Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
STEPHEN M. BASHADA                            :     Case No. CT2017-0039
                                              :
        Defendant - Appellee                  :     OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Muskingum County
                                                    Court of Common Pleas, Case No.
                                                    CR2017-0078




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   November 8, 2017




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

D. MICHAEL HADDOX                                   C. JOSEPH MCCOY
Prosecuting Attorney                                CARL E. MCCOY
                                                    57 East Main Street
By: GERALD V. ANDERSON II                           Newark, Ohio 43055
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street, P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0039                                             2




Baldwin, J.

      {¶1}    Plaintiff-appellant State of Ohio appeals from the Journal Entry of the

Muskingum County Court of Common Pleas granting defendant-appellee Stephen

Bashada’s Motion to Suppress.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On February 22, 2017, the Muskingum County Grand Jury indicted appellee

on one count of possession of drugs (Oxycodone) in violation of R.C. 2925.11(A), a felony

of the fifth degree, one count of possession of drugs (hashish) in violation of R.C.

2925.11(A), a minor misdemeanor, and one count of possession of drugs (marijuana) in

violation of R.C. 2925.11(A), a minor misdemeanor.      At his arraignment on March 29,

2017, appellee entered a plea of not guilty to the charges.

      {¶3}    Thereafter, on June 1, 2017, appellee filed a Motion to Suppress. Appellee,

in his motion, argued, in part, that the trooper who stopped his vehicle did not have

reasonable articulable suspicion that appellee was engaged in criminal activity when

conducting the stop and that all evidence seized as a result of the stop should be

suppressed. A hearing on the Motion to Suppress was held on June 20, 2017. The

following testimony was adduced at the hearing.

      {¶4}    Ohio State Highway Patrol Trooper Samuel K. Hendricks testified that on

June 5, 2016, he was sitting on Interstate 70 when he observed appellee, who he

estimated as approximately 30 years old, slow down just prior to the 55 mile per hour

zone. The Trooper testified that as he started catching up with appellee, appellee got off

on the Fifth Street ramp. When he ran a registration check on appellee’s vehicle, Trooper
Muskingum County, Case No. CT2017-0039                                               3


Hendricks received information that the vehicle was a black 2015 Honda hatchback

owned by a 57 year old female from Loveland, Ohio. According to the Trooper, the vehicle

that he observed was dark gray. He was unsure of the year of the vehicle.

       {¶5}   Because he was concerned that the vehicle might have been stolen based

on the issue with registration, Trooper Hendricks initiated a traffic stop. He testified that

he immediately observed criminal behavior. Trooper Hendricks testified that appellee only

rolled down the window a couple of inches and that appellee was very nervous and had

trouble getting his driver’s license out because his hands were trembling.          Trooper

Hendricks further testified that while he was waiting for appellee to produce insurance, he

observed marijuana debris loose around the gear shift area. He then had appellee exit

the vehicle and sit in his cruiser. Appellee, according to the Trooper Hendricks, told him

that he had marijuana in the center console of the vehicle. After the Zanesville Police

arrived, Trooper Hendricks searched appellee’s vehicle and found a small amount of

marijuana, a marijuana vaporizer, and some hash butter. In the luggage on the backseat,

he found an orange pill bottle containing three dosage units of oxycodone hydrochloride.

Trooper Hendricks, when asked, testified that he did not believe that appellee had a

prescription for them.

       {¶6}   On cross-examination, Trooper Hendricks testified that at the time he ran

the registration check on the vehicle, he had not observed any traffic violations. He

testified that he decided to run the vehicle’s license plates because it appeared that

appellee tried to avoid him by abruptly exiting the highway and that appellee was

excessively nervous after the vehicle was stopped. Trooper Hendricks also testified that

he decided to stop the vehicle because appellee slowed down when he saw the Trooper
Muskingum County, Case No. CT2017-0039                                              4


and exited the highway, because the color of the vehicle did not match the registration,

and because the out of county vehicle was registered to a 57 year old woman. Trooper

Hendricks indicated that he was concerned that the vehicle had been stolen and the

plates on the vehicle had been changed.

       {¶7}   The following testimony was adduced when Trooper Hendricks was asked

by the trial court whether the year and make listed on the vehicle registration matched the

vehicle that appellee was driving:

       {¶8}   THE WITNESS: That - - on the registration, yeah. I confirmed with the VIN,

sir, yes. The vehicle had belonged to his [appellee’s] mother.

       {¶9}   THE COURT: And it was the - - it was the same year and the same model,

correct, that came up on your - - when you ran your registration in your vehicle - -

       {¶10} THE WITNESS: Yes.

       {¶11} THE COURT: - - before you stopped him?

       {¶12} THE WITNESS: Yes. I’m not sure as far as the year until I check with the

VIN after I made the stop. I checked the VIN, the vehicle identification number, on the -

- the car with the vehicle identification number that the BMV had listed.

       {¶13} THE COURT: When you saw that vehicle, you had no reason to believe it

was not the one that came up on the registration.

       {¶14} THE WITNESS: Yes, I did, just because the color didn’t match?

       {¶15} THE COURT: So it went from a dark gray to black?

       {¶16} THE WITNESS: Right. It was a dark gray vehicle, like - - maybe like a

charcoal - - not even really a charcoal. But like probably the - - the prosecutor’s coat to,
Muskingum County, Case No. CT2017-0039                                                5


I mean, black. It was definitely you could tell the difference, a black and gray. It was not

- - like I said, it wasn’t like a teal color car is listed as green so - -

        {¶17} Transcript at 36-37.

        {¶18} At the conclusion of the hearing, the trial court granted appellee’s Motion to

Suppress, finding that there was no reasonable articulable suspicion to stop appellee’s

vehicle. The trial court’s decision was memorialized in a Journal Entry filed on June 20,

2017.

        {¶19} Appellant then filed a Motion for Leave to Appeal Pursuant to App.R. 5 (C).

This Court, as memorialized in a Judgment Entry filed on July 10, 2017, sustained such

motion.

        {¶20} Appellant now raises the following assignment of error on appeal:

        {¶21} THE TRIAL COURT ERRED WHEN IT FOUND THAT THE TROOPER DID

NOT HAVE REASONABLE SUSPICION TO STOP THE DEFENDANT’S VEHICLE

BASED ON IMPROPER REGISTRATION.

                                                      I

        {¶22} Appellant, in its sole assignment of error, argues that the trial court erred in

granting appellee’s Motion to Suppress. We disagree.

        {¶23} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. 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); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(4th
Muskingum County, Case No. CT2017-0039                                                 6


Dist.1993). Second, an appellant may argue the trial court failed to apply the appropriate

test or correct law to the findings of fact. In that case, an appellate court can reverse the

trial court for committing an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d

1141 (4th Dist. 1993). Finally, assuming the trial court's findings of fact are not against

the manifest weight of the evidence and it has properly identified the law to be applied,

an appellant may argue the trial court has incorrectly decided the ultimate or final issue

raised in the 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, 641 N.E.2d 1172 (8th Dist.1994); State v. Claytor, 85 Ohio App.3d 623, 620

N.E.2d 906 (4th Dist.1993); Guysinger, supra. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “[A]s a

general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal.”

       {¶24} At issue in the case sub judice is whether or not the stop of appellee’s

vehicle by Trooper Hendricks was legal. Before a law enforcement officer may stop a

vehicle, the officer must have a reasonable suspicion, based upon specific and articulable

facts that an occupant is or has been engaged in criminal activity. Terry v. Ohio, 392 U.S.

1, 22, 88 S.Ct. 1868, 20 L.E.2d 889 (1968). Reasonable suspicion constitutes something

less than probable cause. State v. Carlson, 102 Ohio App.3d 585, 590, 657 N.E.2d 591

(9th Dist.1995). The propriety of an investigative stop must be viewed in light of the totality

of the circumstances. State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988),

paragraph one of the syllabus. In a situation where the officer has observed a traffic
Muskingum County, Case No. CT2017-0039                                              7

violation, the stop is constitutionally valid. Dayton v. Erickson, 76 Ohio St.3d 3, 9, 1996–

Ohio–431, 665 N.E.2d 1091. In sum, “ ‘ * * * if an officer's decision to stop a motorist for

a criminal violation, including a traffic violation, is prompted by a reasonable and

articulable suspicion considering all the circumstances, then the stop is constitutionally

valid.’ “ State v. Adams, 5th Dist. Licking No. 15 CA 6, 2015–Ohio–3786, ¶ 23, quoting

State v. Mays, 119 Ohio St.3d 406, 2008–Ohio–4539, 894 N.E.2d 1204, ¶ 8.

       {¶25} In the case sub judice, Trooper Hendricks testified that he did not observe

appellee commit any traffic violations and that one of the reasons that he stopped

appellee was because the vehicle was dark gray while the registration indicated that it

was black.

       {¶26} This Court recently addressed the issue of discrepancy in paint color in

State v. Unger, 5th Dist Stark. No. 2016 CA 00148, 2017-Ohio-5553. In Unger, the

appellant filed a Motion to Suppress, arguing, in part, that the arresting officer did not

have reasonable articulable suspicion to stop his vehicle. After the trial court denied his

motion, the appellant appealed. This Court, in our decision reversing the decision of the

trial court, noted that at the hearing on the motion, the Sergeant who stopped the

appellant indicated that he made the decision to run the appellant's vehicle's license plate

through I–Links because he found it suspicious that a vehicle would drive slowly by him

three times while he was in the midst of another traffic stop. We further noted that on

cross-examination, the Sergeant indicated that he had maintained his suspicion “based

on the [vehicle's] color alone” being different than what the records system showed.

       {¶27} In holding that the trial court had erred in denying the Motion to Suppress,

this Court, in Unger, held, in relevant part, as follows at paragraphs 19-20:
Muskingum County, Case No. CT2017-0039                                             8


            We herein must again “recognize that these cases often present

     close calls, both for the courts and the law enforcement officers on the

     scene.” State v. Hall, 5th Dist. Stark No. 2015 CA 00213, 2016–Ohio–5787,

     70 N.E.3d 1154, ¶ 26. The briefs before us in the case sub judice provide

     no case law directly on point, and our research reveals somewhat limited

     discussion in Ohio of the role of a vehicle's paint scheme per se as it relates

     to a law enforcement officer's suspicion of criminal activity in connection

     with a traffic stop. One Ohio case references the existence of an “after-

     market” paint job on a late-model car, but the vehicle paint factor in that

     instance was accompanied by several other observations articulated by the

     arresting officer. See State v. Wynter, 2nd Dist. Miami No. 97 CA 36, 1998

     WL 127092. However, the Supreme Court of Arkansas and the Supreme

     Court of Florida have both recently held that a discrepancy between the

     color of a defendant's vehicle and the color listed in registration records

     accessed by a police officer does not of itself provide the officer with

     reasonable suspicion to perform an investigatory traffic stop. See Schneider

     v. State, 2015 Ark. 152, 459 S.W.3d 296 (2015); State v. Teamer, 151 So.3d

     421 (Fla. 2014).

            Upon review of the record and the circumstances presented herein,

     we find a discrepancy in an automobile's paint color found via a database

     check, particularly where the vehicle is already ten years old, even when

     combined with the fact of the vehicle passing a stationary police officer three

     times over the course of a few minutes, cannot be classified as a reasonable
Muskingum County, Case No. CT2017-0039                                               9


       suspicion of motor vehicle theft sufficient to justify a warrantless stop, as

       maintained by the arresting officer in this case. We therefore hold the trial

       court erred in denying the motion to suppress in this regard.

       {¶28} We find, based on the holding in Unger, that the discrepancy in the paint

color of the vehicle that appellee was driving did not give Trooper Hendricks reasonable

articulable suspicion that appellant was engaged in criminal activity. The statutes that

appellant cites, namely. R.C. 4503.21 and 4549.08, do not contain any requirement

related to the registered color of a vehicle. Moreover, as noted by the trial court, “there’s

not reasonable suspicion based on [appellee] slowing down, he might have been

speeding, exiting when it’s a legal, proper exit.” Transcript at 42. As is noted above,

Trooper Hendricks testified that he did not observe appellee commit any traffic violations.

       {¶29} Based on the foregoing, we find that the trial court did not err in granting

appellee’s Motion to Suppress.

       {¶30} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

John Wise, J. concur.
