[Cite as State v. Barnett, 2018-Ohio-2486.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                              STATE OF OHIO,

                                              Plaintiff-Appellant,

                                                       v.

                                          RUFUS BARNETT,

                                         Defendant-Appellee.


                        OPINION AND JUDGMENT ENTRY
                                          Case No. 17 MA 0055


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 2016 CR 1173.

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                 JUDGMENT:
                                                   Affirmed


Atty. Paul Gains, Prosecutor and Atty. Ralph Rivera, Assistant Prosecutor, 21 West
Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellant, and
Atty. Bradley G. Olson, Jr., 26 Market Street, Suite 508, Youngstown, Ohio 44503, for
Defendant-Appellee.

                                                    Dated:
                                                 June 22, 2018
                                                                                         –2–




Donofrio, J.

       {¶1}    Plaintiff-appellant, the State of Ohio, appeals from a Mahoning County
Common Pleas Court judgment granting a motion to suppress evidence obtained when
officers of the Youngstown Police Department impounded and subsequently searched
the vehicle of defendant-appellee, Rufus Barnett.
       {¶2}    The facts in this case are undisputed. Officers Savnik and Caraway from
the Youngstown Police Department were patrolling the south side of the city of
Youngstown on October 11, 2016. Around 1:00 a.m., Officers Savnik and Caraway
began to follow appellee’s car as it was traveling down Oak Hill Avenue (Oak Hill)
towards Mahoning Avenue (Mahoning). Officers Savnik and Caraway followed
appellee’s car for several blocks totaling around 200 yards. At this point, the officers did
not observe appellee commit any traffic violations.
       {¶3}    When appellee arrived at the intersection of Oak Hill and Mahoning
(intersection), Officers Savnik and Caraway were still following him. Oak Hill ends at this
intersection. At Mahoning, Oak Hill heading north turns into two lanes, the left lane to
travel on Mahoning away from downtown Youngstown and the right lane to travel on
Mahoning towards downtown Youngstown. On the right hand side of the intersection on
Oak Hill is a traffic sign that indicates the left lane is a left-turn only lane and the right
lane is a straight-bound lane. Despite the traffic sign indicating the right lane as a
straight-bound lane, a slight right turn must be negotiated when traveling from Oak Hill
to Mahoning heading towards downtown Youngstown. Additionally, there is a traffic sign
at the intersection facing Oak Hill that reads “No Turn on Red.” When appellee arrived
at the intersection, he moved into the right lane and the traffic light was red. Appellee
did not have a turn signal on when he arrived at the intersection.
       {¶4}    After coming to a complete stop at the intersection, when the light turned
green, appellee activated his right turn signal and proceeded on Mahoning into
downtown Youngstown. Officers Savnik and Caraway initiated a traffic stop of appellee
for a violation of R.C. 4511.39 in that appellee did not have his turn signal activated for
at least 100 feet prior to performing a turn.



Case No. 17 MA 0055
                                                                                      –3–


       {¶5}   Officer Savnik then began talking to appellee. Officer Savnik asked
appellee for his operator’s license but appellee could not produce his license and
instead gave Officer Savnik his name and date of birth. Officer Savnik checked
appellee’s name through the LEADS system which indicated that appellee was under
an FRA license suspension. As appellee was the only person in the car, Officer Savnik
frisked appellee for weapons, placed appellee in the back of his squad car, had
appellee’s car impounded, and called a tow truck to retrieve the car.
       {¶6}   After appellee’s car was impounded, Officer Savnik performed an
administrative inventory search of the car. Officer Savnik discovered a package
containing what he believed was heroin in the door panel of the passenger side of
appellee’s car. Officer Savnik then arrested and charged appellee with possession of
heroin in violation of R.C. 2925.11(C)(6)(a), a felony of the fifth degree, and had
appellee transported to the Mahoning County Jail.
       {¶7}   Appellee filed a motion to suppress evidence obtained from the search of
his car. The basis for the motion was that appellee substantially complied with the
requirements of R.C. 4511.39 in that he signaled his intention to make a turn prior to
making a turn. Moreover, appellee argued that the “spirit” of R.C. 4511.39 is not violated
simply because a person may fail to signal an intention to make a turn prior to 100 feet
before the turn is made. Appellee argued that because the stop was unlawful, the
evidence should have been suppressed. In the alternative, appellee argued that even if
the traffic stop was valid, he was made subject to an unlawful arrest because neither
R.C. 4511.39 nor driving under an FRA suspension warranted an arrest as appellee
was placed in the back of Officer Savnik’s cruiser.
       {¶8}   The state’s response to appellee’s motion to suppress argued that Officers
Savnik and Caraway witnessed a traffic violation and had sufficient reasonable
suspicion to initiate the traffic stop of appellee. Additionally, the state argued that
pursuant to the Youngstown Municipal Code and case law, Officer Savnik had authority
to impound appellee’s vehicle and perform an inventory search under the circumstances
surrounding appellee’s traffic stop.
       {¶9}   At the end of the suppression hearing, the trial court instructed counsel for
both the state and appellee to provide the court with additional written arguments



Case No. 17 MA 0055
                                                                                        –4–


pertaining to appellee’s duty to signal at the intersection. The trial court seemed to want
more information regarding appellee’s duty to signal a turn when the posted traffic
device indicates the lane is straight-bound. (Supp. Tr. at 55).
       {¶10} Appellee then filed a supplemental brief after the suppression hearing. In
his supplemental brief, appellee argued that because the signage at the intersection
labeled appellee’s lane of travel as a straight-bound lane, appellee was under no
obligation to signal a turn.
       {¶11} After appellee’s supplemental brief was filed, the state filed a motion to
reopen the suppression hearing on the basis that appellee was now raising new
arguments not addressed in appellee’s original motion to suppress. The record does not
indicate that the trial court ruled on this motion but the state did not raise this issue for
appeal.
       {¶12} Ultimately, the state did file a supplemental brief arguing again that
because appellee had to physically turn his car to the right on Mahoning from Oak Hill,
appellee was required to use his turn signal. In the alternative, the state argued that the
good faith exception to the exclusionary rule applied because Officers Savnik and
Caraway reasonably believed they witnessed appellee commit a traffic violation.
       {¶13} The state also filed a motion to admit stipulations of facts. The motion
contained two facts to supplement the facts elicited at the suppression hearing. Those
facts were: a standard traffic light exists at the intersection where a 45 degree right
angle existed on the green light and a “No Turn on Red” sign was present at the
intersection. There was no apparent ruling on this motion either, but appellee has never
contested these facts.
       {¶14} On March 10, 2017, the trial court granted appellee’s motion to suppress
and ruled that any and all evidence gathered as a result of appellee’s traffic stop was to
be suppressed. The trial court reasoned that appellee was not required to signal a turn
because of the street sign indicating that his lane of travel was a straight-bound lane
and that the good faith exception did not apply due to the lack of sufficient facts
presented by the state. The state timely filed this appeal on March 23, 2017. The state
raises one assignment of error.
       {¶15} The state’s sole assignment of error states:



Case No. 17 MA 0055
                                                                                            –5–


               THE TRIAL COURT SHOULD HAVE DENIED DEFENDANT’S
       MOTION TO SUPPRESS BECAUSE YOUNGSTOWN OFFICER JEFF
       SAVNIK      HAD     PROBABLE         CAUSE      TO    BELIEVE       DEFENDANT
       VIOLATED R.C. 4511.39 WHEN HE EFFECTUATED A TRAFFIC STOP
       OF DEFENDANT’S VEHICLE AND THE EXCLUSIONARY RULE DOES
       NOT APPLY BASED UPON DEFENDANT’S SUSPENDED LICENSE.

       {¶16} The state raises two arguments regarding its sole assignment of error.
The first argument is that Officer Savnik had probable cause to initiate the traffic stop of
appellee for a violation of R.C. 4511.39 when appellee traveled from Oak Hill to
Mahoning without using a turn signal prior to 100 feet before turning. The state supports
this argument with case law citing similar circumstances and a case stating that just
because a conviction could not be obtained on a traffic violation does not negate the
fact that probable cause for a traffic stop exists. The state’s second argument is that
even if the requisite level of suspicion was not present at the time Officer Savnik
initiated the traffic stop of appellee, the attenuation doctrine applies and the exclusion of
any evidence from the inventory search was improper.
       {¶17} 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 witness
credibility. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
The appellate court must accept the trial court’s findings of fact if they are supported by
competent and credible evidence. Id. 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. Id.
       {¶18} Addressing the state’s second argument concerning the attenuation
doctrine first, the state failed to raise this issue with the trial court in its original response
to appellee’s motion to suppress, the suppression hearing itself, or in its response brief
after the hearing on the motion to suppress. The general rule is that “an appellate court
will not consider any error which counsel for a party complaining of the trial court’s
judgment could have called but did not call to the trial court’s attention at a time when
such error could have been avoided or corrected by the trial court.” State v. Anwan, 22


Case No. 17 MA 0055
                                                                                       –6–


Ohio St. 3d 120, 489 N.E.2d 277 (1986) citing State v. Childs, 14 Ohio St. 2d 83, 236
N.E.2d 545 (1968). Because the state did not raise the attenuation doctrine argument
with the trial court, such argument will not be considered in this appeal.
       {¶19} Concerning the state’s requisite level of suspicion argument, the trial
court’s findings of fact during the suppression hearing were previously set forth. As
neither the state nor appellee disputes the facts and the trial court’s findings of fact are
supported by competent and credible evidence from the record, this Court accepts the
trial court’s findings of fact as true.
       {¶20} Applying the law to the facts, the Fourth Amendment to the United States
Constitution and Section 14, Article I of the Ohio Constitution guarantee the right to be
free from unreasonable searches and seizures. State v. Mays, 119 Ohio St.3d 406,
2008-Ohio-4539, 894 N.E.2d 1204 ¶ 7. A traffic stop is constitutionally valid only if an
officer has reasonable and articulable suspicion that a motorist has committed, is
committing, or is about to commit a crime. Id. citing Delaware v. Prouse, 440 U.S. 648,
99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “The propriety of an investigative stop by a police
officer must be viewed in the light of the totality of the surrounding circumstances.” Id.
quoting State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980).
       {¶21} The state’s primary argument is that regardless of the signage at the
intersection, appellee had to physically negotiate a right turn on to Mahoning to head to
downtown Youngstown. The state cites several cases in support of its argument that
regardless of how slight a right turn may be, a signal indicating a right turn is still
necessary pursuant to R.C. 4511.39.
       {¶22} In State v. Baker, 10th Dist. No. 11AP-170, 2011-Ohio-5769, the Tenth
District held that a traffic stop for failing to use a turn signal was reasonable when
defendant-appellant Baker veered right at a “Y” intersection. The Ninth District has held
similarly to the Baker decision on a similar issue in State v. Hoder, 9th Dist. No.
03CA0042, 2004-Ohio-3083. The state even cites this Court’s decision in State v.
Crisafi, 7th Dist. No. 00 CA 0040, 2001-Ohio-3254, where this Court ruled that probable
cause for a traffic stop existed when defendant-appellant Crisafi made a “slight-right”
turn without signaling. While these cases are informative regarding the duty of a
motorist to signal a turn, the case at bar is distinguishable because none of the state’s



Case No. 17 MA 0055
                                                                                          –7–


cited cases address the issue of a street sign informing the respective motorists that
their designated lane of travel was straight-bound.
       {¶23} A strict reading of the relevant Revised Code sections is necessary to
determine if reasonable suspicion to initiate a traffic stop of appellee existed. R.C.
4511.39 itself states “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.” As the traffic sign indicated that appellee’s lane of travel was in fact straight
bound, appellee was not required to signal.
       {¶24} Furthermore, R.C. 4511.01(Q)(Q) defines traffic control device, in part, as
a sign used to regulate, warn, or guide traffic that is placed on, over, or adjacent to a
street by authority of a public agency or official having jurisdiction. The Ohio Manual of
Uniform Traffic Control Devices for Streets and Highways (OMUTCD) is a document
published by the Ohio Department of Transportation and it is the basis for placing and
maintaining traffic control devices pursuant to R.C. 4511.11. Pursuant to R.C.
4511.11(A), local authorities in their jurisdiction shall place traffic control devices that
conform to the OMUTCD to “indicate and carry out sections 4511.01 to 4511.76 * * * of
the Revised Code * * *.”
       {¶25} If the purpose of traffic control devices, including signs, is to indicate and
carry out various traffic infractions, including failure to signal a turn in violation of R.C.
4511.39, then the sign at issue indicates that appellee had no duty to signal a turn when
Officers Savnik and Caraway initiated a traffic stop. Regardless of the physical
necessity to turn slightly to the right when traveling from Oak Hill to Mahoning heading
into downtown Youngstown, appellee was in a lane that was designated by a valid
traffic control device as a straight-bound lane of travel. At no point did the state
challenge the validity of the traffic sign at issue. Ultimately, there was no reasonable
suspicion to initiate a traffic stop of appellee. Whatever the reason Officers Savnik and
Caraway initiated the traffic stop of appellee, the underlying fact is that there was no
suspicion that appellee committed, was committing, or was going to commit a traffic
offense. Appellee complied with a validly placed traffic control device when he traveled
from Oak Hill to Mahoning.         And while at the intersection, but before appellee
proceeded right, he did in fact signal.



Case No. 17 MA 0055
                                                                                        –8–


        {¶26} Furthermore, as the state points out, it is worth noting that there is a
second sign at the intersection facing Oak Hill which reads “no turn on red.” There are
two signs at the intersection: one that indicates the right lane is straight-bound and one
that, potentially, indicates that the right lane is used to turn right. The fact that these
conflicting signs exist creates the issue that it is virtually impossible to completely
comply with all Ohio traffic laws at this particular intersection or any intersection where
conflicting signs may exist. If a person were to signal a turn when traveling from Oak Hill
to Mahoning towards downtown Youngstown, police could use the straight lane
designation sign as reasonable suspicion to initiate a traffic stop. If a person were to not
signal in time, as in this case, then police could use the no turn on red sign as
reasonable suspicion to initiate a traffic stop. The fact that there are conflicting signs at
the intersection that potentially create blanket reasonable suspicion for every car
traveling from Oak Hill to Mahoning is bothersome.
        {¶27} Additionally, the state argues that the trial court held it to a higher burden
of proof than a normal suppression hearing. Citing In re A.J.S., 120 Ohio St. 3d 185,
2008-Ohio-537, 897 N.E.2d 629, the state argues that the burden of establishing
probable cause is “to produce evidence that raises more than a mere suspicion of guilt.”
The state appears to argue that because the trial court granted appellee’s motion to
suppress, the state was held above the standard set forth in J.L.S. This did not happen
here.
        {¶28} Even in the absence of probable cause, an officer may initiate a traffic
stop when the officer has reasonable and articulable suspicion that a crime has been or
is being committed. State v. Foster, 1st Dist. No. C-160424, 2017-Ohio-4036, ¶ 16 citing
State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204. The propriety of
an investigative stop must be viewed in light of the totality of the surrounding
circumstances. State v. Ward, 7th Dist. No. 10 CO 28, 2011-Ohio-3183, ¶ 50 citing
Mays.
        {¶29} Officers Savnik and Caraway followed appellee for about 200 yards. There
is no evidence in the record that appellee was driving erratically. There is also no
evidence in the record that there was anything wrong with appellee’s car such as
broken lights or a missing license plate. The only evidence in the record which explains



Case No. 17 MA 0055
                                                                                           –9–


why Officers Savnik and Caraway stopped appellee was due to his failure to signal
before the intersection. This alone does not rise to the level of reasonable suspicion to
initiate a traffic stop.
        {¶30} Appellee was traveling in a designated straight-bound lane. Pursuant to
R.C. 4511.39, a motorist need only signal when required. By not signaling, appellee was
complying with a validly placed traffic control sign. Viewing the totality of the
circumstances, there was no reasonable suspicion for Officers Savnik and Caraway to
believe that appellee committed or was committing a traffic violation.
        {¶31} The good faith exception does not apply in this case either. In order for the
good faith exception to the exclusionary rule to apply, officers must be acting in an
objectively reasonable manner. See State v. McGee, 7th Dist. No. 12 MA 123, 2013-
Ohio-4165, ¶ 18 citing State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), see
also State v. Dickman, 10th Dist. No. 14AP-597, 2015-Ohio-1915, ¶ 23. Based on the
statute, which mandates a motorist’s duty to signal only when required, and the fact that
appellee was in a lane designated as straight-bound, an objectively reasonable officer
would not have concluded that appellee’s lack of a turn signal was a violation of R.C.
4511.39.
        {¶32} Accordingly, the state’s sole assignment of error is without merit and is
overruled.
        {¶33} For the above reasons, the trial court’s judgment is hereby affirmed.
Waite, J., concurs

Robb, P. J., dissents with dissenting Opinion attached



Robb, P. J., dissenting opinion.

        {¶34} I respectfully dissent from the decision to uphold the trial court’s
suppression of evidence. I believe the police officer possessed reasonable suspicion
that a traffic violation occurred allowing him to stop Appellee’s vehicle.
        {¶35} “[I]f 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. Mays, 119 Ohio St.3d


Case No. 17 MA 0055
                                                                                        – 10 –


406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 8; Delaware v. Prouse, 440 U.S. 648, 663,
99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In other words, a police officer's objectively
reasonable belief that a traffic violation has occurred constitutes reasonable suspicion to
justify a traffic stop. Heien v. North Carolina, __ U.S. __, 135 S.Ct. 530, 536, 190
L.E.2d 475 (2014). A court’s decision on the validity of the traffic stop must be “based
on the collection of factors, not on the individual factors themselves.” Mays, 119 Ohio
St.3d 406 at ¶ 12, quoting State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865
N.E.2d 1282, ¶ 11. The Mays Court explained:

       Probable cause is certainly a complete justification for a traffic stop, but
       we have not held that probable cause is required. Probable cause is a
       stricter standard than reasonable and articulable suspicion. The former
       subsumes the latter. Just as a fact proven beyond a reasonable doubt has
       by necessity been proven by a preponderance, an officer who has
       probable cause necessarily has a reasonable and articulable suspicion,
       which is all the officer needs to justify a stop.

(Citations omitted). Mays, 119 Ohio St.3d 406 at ¶ 23.

       {¶36} In Mays, the defense argued the officer who stopped him for crossing a
lane line had no reason to suspect the defendant failed to ascertain the move could be
safely performed or to suspect the defendant failed to stay within his lane as nearly as
practicable.   See R.C. 4511.33(A)(1) (on certain types of roads a vehicle “shall be
driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall
not be moved from such lane or line until the driver has first ascertained that such
movement can be made with safety.”). The Ohio Supreme Court noted the relevant
statute did provide for certain conditions under which a driver can cross a lane line
without violating the statute but concluded “the question of whether Appellee might have
a possible defense to a charge of violating [the traffic statute] is irrelevant in our analysis
of whether an officer has a reasonable and articulable suspicion to initiate a traffic stop.”
Mays, 119 Ohio St.3d 406 at ¶ 17 (adding the officer need not ascertain whether the
driver might have a legal defense). See also Bowling Green v. Godwin, 110 Ohio St.3d
58, 2006-Ohio-3563, 850 N.E.2d 698, ¶ 6-9, 15-16 (improper signs at exit to city parking


Case No. 17 MA 0055
                                                                                       – 11 –


lot did not invalidate stop of driver who violated the signs as “the fact that appellee could
not be convicted of failure to obey a traffic-control device is not determinative of whether
the officer acted reasonably in stopping and citing him for that offense.”)
       {¶37} As does the majority, I find informative the various appellate cases finding
a traffic stop was reasonable where the motorist failed to use a turn signal when
changing streets at a T intersection or Y intersection. See, e.g., State v. Barker, 10th
Dist. No. 11AP-170, 2011-Ohio-5769, ¶ 12-13 (finding reasonable suspicion to stop
where motorist veered right at Y intersection onto a different street without signaling,
even though the turn was not well-defined); State v. Beacham, 4th Dist. No. 03CA36,
2003-Ohio-6211, ¶ 11, 16 (finding the stop was valid where driver failed to signal a turn
where intersecting street was at a forty-five degree angle as opposed to a traditional
ninety-degree angle); See also State v. Hoder, 9th Dist. No. 03CA0042, 2004-Ohio-
3083, ¶ 16 (rejecting motorist’s testimony that he was not required to use a turn signal
where his lane of travel indicated that he must proceed at the Y intersection onto a
different street); State v. Crisafi, 7th Dist. No. 00-CA-40 (May 3, 2011) (slight right
veering onto different street with greater movement left to stay on current street).
       {¶38} The fact the vehicle’s movement onto a different street may not require a
ninety-degree turn does not eliminate an officer’s reasonable suspicion concerning a
turn signal violation. As the state points out, a right turn had to be physically negotiated
to leave Oak Hill and turn onto Mahoning Avenue at the Spring Common Bridge. The
majority finds the situation here distinguishable from other cases because a street sign
near the intersection portrayed the right lane with a straight arrow.         (And, the sign
portrayed the left lane with an arrow pointing to the left.)       The majority concludes
Appellee was in a lane designated as a straight lane. Because the street on which
Appellee was driving did not continue straight but stopped at the T-like intersection, the
majority believes the straight arrow must mean the right turn is considered straight to
whatever government agency placed the sign and this in turn constitutionally prohibits
an officer from stopping a vehicle who does not use its turn signal to turn right onto the
bridge. I disagree.
       {¶39} As aforementioned, the officer testified a right-hand turn had to be
negotiated from Oak Hill Avenue onto the cross-street of Mahoning Avenue at the



Case No. 17 MA 0055
                                                                                                          – 12 –


Spring Common Bridge. Appellee made that right turn after stopping for the red light
and waiting for it to turn green. The photographs submitted by Appellee depict how an
approaching vehicle’s future movement onto the bridge would be a clear turn to the
right. As for the lane designation sign on a pole on the side of the road, support is not
provided for the proposition that a straight arrow means “straight only.” Otherwise, an
intersection with this signage would not allow a right turn at a standard four-way
intersection. Whether there is currently a way to proceed straight does not eliminate an
officer’s reasonable suspicion to believe a turn signal was required where a vehicle
negotiated a right turn onto a different road. I pose the question: what would happen in
the case of a road which is blockaded for a short-term event or barricaded for a long-
term construction project? Would a driver no longer be required to use his turn signal
as long as the situation existed which impeded a driver’s ability to continue straight onto
the same street? Contrary to the majority’s concern, this situation does not make it
“impossible to completely comply with all Ohio traffic laws * * *.” Using a turn signal to
make an obvious right turn onto a different street after waiting for the light to turn green
at an intersection is not illegal.1
        {¶40} I do not perceive a meaningful conflict between the straight arrow sign and
the street situation; not where the applicable test is whether the officer had reasonable
and articulable suspicion for a traffic violation. Regardless, any conflict between the
sign and the street situation would be a defense to the traffic offense, as opposed to the
per se elimination of reasonable suspicion for a traffic stop.                        The officer was not
required to study the potential defenses to the traffic violation the driver may have
available before activating his lights. See Mays, 119 Ohio St.3d 406 at ¶17. It is the
totality of the circumstances governing reasonable suspicion for a stop, not one
individual circumstance. Id. at ¶ 12, quoting Batchili, 113 Ohio St.3d 403 at ¶ 11.
        {¶41} I would also note the following facts. After the suppression hearing, the


1 The majority expresses concern an officer could use the sign with the straight arrow to stop a driver for
using his right turn signal at this intersection (i.e., the officer could stop a driver for doing what the officer
said Appellee should have done); however, no law is cited prohibiting the cautionary use of a turn signal
at a T or Y intersection (even if, for instance, the movement was onto the same street). See, e.g., State
v. Fears, 8th Dist. No. 94997, 2011-Ohio-930 (no reasonable suspicion for articulated traffic offense as
officers mistakenly thought it was an offense to use turn signal at intersection without turning).



Case No. 17 MA 0055
                                                                                       – 13 –


trial court asked for briefs on the issue of the sign with the straight arrow. The state filed
a brief and separately moved to reopen the suppression hearing due to lack of notice
there was a suppression issue on the topic of signs. Thereafter, on February 9, 2017,
the state filed a “motion to admit stipulation of facts” which facts the parties agreed a
reopened hearing would show. The filing refers to a conversation with defense counsel
and states “both counsel for the State and counsel for the Defendant do not object to
the following facts being admitting into evidence” (apparently in lieu of reopening): (1)
the green light section of the traffic signal contained a green arrow pointing in a forty-
five-degree angle; and (2) a “No Turn on Red” sign was hanging above the intersection.
The filing does not contain defense counsel’s signature. The court’s March 10, 2017
suppression decision does not mention these offered stipulated facts. The state’s brief
refers to the “No Turn on Red” sign. Appellee’s brief also cites this filing in relating the
fact that there was a “No Turn on Red” sign at the stoplight, essentially inviting this court
to consider this fact as well. This fact makes the case for reasonable suspicion even
stronger.
       {¶42} Finally, a review of the United States Supreme Court’s Heien case is
warranted.    In Heien, the state trial court denied a motion to suppress finding
reasonable suspicion to stop a vehicle due to a faulty brake light. The appellate court
reversed and held the statutory language, requiring a car to be “equipped with a stop
lamp,” only mandates a single lamp and thus the officer lacked reasonable suspicion for
the stop. The North Carolina Supreme Court disagreed, holding that even if the driver
did not violate the law, the officer's mistaken understanding of the law was reasonable,
making the stop valid. The United States Supreme Court agreed finding there was
reasonable suspicion justifying the stop under the Fourth Amendment because the
officer’s mistake was objectively reasonable. Heien, __ U.S. __, 135 S.Ct. at 540.
       {¶43} The United States Supreme Court clarified that both a mistake of fact and
a mistake of law can justify a stop if the mistake was objectively reasonable. Id. at 539.
“Reasonable suspicion arises from the combination of an officer's understanding of the
facts and his understanding of the relevant law. The officer may be reasonably mistaken
on either ground.”    Id. at 536.    The Court said its pronouncement related to (and
validated) the constitutionality of the stop itself (and was not merely an exception to the



Case No. 17 MA 0055
                                                                                        – 14 –


exclusionary rule). Id. at 538-539. The Court explained:

      Just as an individual generally cannot escape criminal liability based on a
      mistaken understanding of the law, so too the government cannot impose
      criminal liability based on a mistaken understanding of the law. If the law
      required two working brake lights, [the defendant] could not escape a
      ticket by claiming he reasonably thought he needed only one; if the law
      required only one, [the officer] could not issue a valid ticket by claiming he
      reasonably thought drivers needed two. But just because mistakes of law
      cannot justify either the imposition or the avoidance of criminal liability, it
      does not follow that they cannot justify an investigatory stop. And [the
      defendant] is not appealing a brake-light ticket; he is appealing a cocaine-
      trafficking conviction as to which there is no asserted mistake of fact or
      law.

(Emphasis added.) Id. at 540.

      {¶44} Even if the officer here was mistaken as to the applicability of the turn
signal statute at an intersection such as exists here, any mistake would have been
objectively reasonable.   For all of the foregoing circumstances, I believe there was
reasonable suspicion to stop Appellee after he turned right onto a different street
without complying with the turn signal statute. In according, I would reverse the trial
court’s decision suppressing the heroin evidence.




Case No. 17 MA 0055
[Cite as State v. Barnett, 2018-Ohio-2486.]




        For the reasons stated in the Opinion rendered herein, appellant’s sole
assignment of error is without merit and is overruled. It is the final judgment and order
of this Court that the judgment of the Common Pleas Court, Mahoning County, Ohio, is
hereby affirmed. Robb, P.J. dissents with dissenting Opinion attached. Costs taxed
against appellant.

        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.



                                         NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
