[Cite as State v. Woolf, 2016-Ohio-3251.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2015CA00195
WILLIAM LEE WOOLF                              :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No. 2015-
                                                   CR-0618

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            May 31, 2016


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    AARON KOVALCHIK
STARK COUNTY PROSECUTOR                            116 Cleveland Avenue N.W.
BY: RONALD MARK CALDWELL                           808 Courtyard Centre
110 Central Plaza South, Ste. 510                  Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2015CA00195                                                         2

Gwin, P.J.

       {¶1}   Appellant, William Woolf [“Woolf”] appeals the September 10, 2015

judgment of the Stark County Court of Common Pleas, Stark County, Ohio overruling his

motion to suppress.

                                  Facts and Procedural History

       {¶2}   In 2015, Woolf, was charged by indictment with one count each of failure to

comply [R.C. 2921.331(B) and (C)(5)(a)(ii)] and operating a vehicle while under the

influence ("OVI") [R.C. 4511.19(A)(1)(a), (d), or (e)]. During the pretrial stage of this

prosecution, Woolf filed a suppression motion, making two main arguments. First, he

could not be convicted of the failure to comply since the pursuing officer did not have a

valid operator's license at the time of the pursuit. And second, that the seizure was illegal

because the officer used excessive force and inappropriate language while effecting the

stop of Woolf.

       {¶3}   The trial court requested a stipulated statement of facts, which was provided

by the parties. [“Court’s Exhibit 1”]. After considering this stipulation of facts, the trial

court overruled the motion. The court concluded that these facts did not establish a

violation of Woolf s rights against unreasonable searches and seizures. Specifically,

              The defendant asserts that because the Officer making the arrest

       was in violation of the Rules and Regulations of the Alliance Police

       Department by not having a valid driver's license, and further because the

       Officer used abusive language and unnecessary and excessive force during

       the course of the arrest, that said failures and actions on the part of the

       police Officer invalidated the arrest and should result in a suppression of
Stark County, Case No. 2015CA00195                                                                3


       any and all evidence seized, collected, observed, photographed or recorded

       as a result of the search, seizure and interrogation conducted on or about

       April 12, 2015.

               While the conduct of the police Officer in failing to have a driver's

       license and the allegation of excessive force are matters to be considered

       by the Alliance Police Department and if true, the subject of possible

       disciplinary action or a civil action by the defendant, the same do not render

       invalid the actions of the Officer who was under the color of authority.

Transcript of Proceedings, Pretrial Hearing Sept. 9, 2015 at 4-5.

       {¶4}    After this suppression ruling, Woolf opted to plead no contest and to appeal

the ruling instead of standing trial. At this hearing, the trial court had the prosecution read

into the record the bill of particulars, without objection, upon which the court made its

factual basis for its finding of guilt. With regard to the willfully fleeing charge, this recitation

provided the following:

               [Woolf] was operating a motorcycle in the area of West Ely Street

       and Buckeye Avenue in Alliance, Stark County, Ohio, when Alliance Police

       Department attempted to stop him for driving under suspension and/or

       fictitious plates.

                       The officer activated lights and/or sirens.

                       Defendant refused to stop and accelerated [,] reaching

       speeds of over 100 miles per hour.
Stark County, Case No. 2015CA00195                                                     4


                      Defendant eventually drove through a yard and was thrown

       from the motorcycle due to hitting a mud puddle hole. There were several

       people in the yard when this occurred.

                      This also occurred in a residential area with a posted 25 mile

       per hour speed limit.

Transcript of Plea & Sentence, Sept. 23, 2015 at 9-10. Regarding the OVI charge, the

recited bill of particulars provided,

              Defendant had a strong odor of alcohol coming from his person and

       red glassy eyes. He urinated on himself in the police cruiser.

              He provided a breath sample of .084 percent and a urine sample of

       .12 percent.

Transcript of Plea & Sentence, Sept. 23, 2015 at 10.

       {¶5}   After accepting Woolf s plea and convicting him, the trial court sentenced

him to an aggregate prison term of nine months on the failure to comply charge and a

concurrent 180-day jail sentence for the OVI conviction.

                                        Assignments of Error

       {¶6}   Woolf raises two assignments of error,

       {¶7}   “I. APPELLANT'S CONSTITUTIONAL RIGHTS AS GUARANTEED BY

THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND

ARTICLE 1 SECTION 14 OF THE OHIO CONSTITUTION WERE VIOLATED WHEN

THE TRIAL COURT OVERRULED THE MOTION TO SUPPRESS.
Stark County, Case No. 2015CA00195                                                         5


       {¶8}   “II. THE TRIAL COURT ERRED BY NOT CONSIDERING THE USE OF

EXCESSIVE FORCE BY LAW ENFORCEMENT AS A FACTOR IN APPELLANT'S

MOTION TO SUPPRESS.”

                                               I.

       {¶9}   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

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.
Stark County, Case No. 2015CA00195                                                          6


       {¶10} In his first assignment of error, Woolf challenges the trial court's suppression

ruling, arguing that the court erred in finding that Officer McCord's lack of a valid driver's

license did not vitiate the legality of his traffic stop of Woolf. According to Woolf, McCord

could not make a legal stop since was not permitted to drive.

       {¶11} In Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d

89(1996) the United States Supreme Court held:

               The temporary detention of a motorist upon probable cause to

       believe that he has violated the traffic laws does not violate the Fourth

       Amendment's prohibition against unreasonable seizures, even if a

       reasonable officer would not have stopped the motorist absent some

       additional law enforcement objective.

Whren at 1771. Less than one month later, the Ohio Supreme Court reached a similar

decision in City of Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091(1996). In

Erickson, the Court stated:

             Where a police officer stops a vehicle based on 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 even if the

       officer had some ulterior motive for making the stop, such as a suspicion

       that the violator was engaging in more nefarious criminal activity.

Id. at syllabus.

   {¶12}     In State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, the

defendant argued that his actions in the case – twice driving across the white edge line –

were not enough to constitute a violation of the driving within marked lanes statute, R.C.
Stark County, Case No. 2015CA00195                                                         7


4511.33. Id. at ¶ 15. The appellant further argued that the stop was unjustified because

there was no reason to suspect that he had failed to first ascertain that leaving the lane

could be done safely or that he had not stayed within his lane “as nearly as [was]

practicable,” within the meaning of R.C. 4511.33(A)(1). In rejecting these arguments, the

Supreme Court noted, “the question of whether appellant might have a possible defense

to a charge of violating R.C. 4511.33 is irrelevant in our analysis of whether an officer has

a reasonable and articulable suspicion to initiate a traffic stop. An officer is not required

to determine whether someone who has been observed committing a crime might have

a legal defense to the charge.” Id. at ¶ 17.

       {¶13} In the case at bar, there is no evidence that Woolf knew that Officer McCord

did not have a valid driver license when he signaled Woolf to pull over. Woolf has not

challenged the officer’s reasons for attempting the traffic stop. Accordingly, the fact that

Officer McCord had probable cause to stop Woolf is unchallenged.

       {¶14} We note that Officer McCord was in uniform in a marker police vehicle.

Officer McCord did not cease to be a police officer simply because he was without a driver

license. No official action, nor any type of disciplinary action of any kind had been

commenced against the officer before the traffic stop.

       {¶15} “The need to protect or preserve life or avoid serious injury is justification

for what would be otherwise illegal absent an exigency or emergency.” Brigham

City v. Stuart, 547 U.S. at 403, 405-406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), quoting

Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 209 (1978). Accord,

State v. Dunn, 131 Ohio St.3d 325, 2012–Ohio–1008, 964 N.E.2d 1037, syllabus.
Stark County, Case No. 2015CA00195                                                        8


         {¶16} In the case at bar, Officer McCord was duly hired and serving as a police

officer for the City of Alliance. The fact that he subsequently lost his driver license may

or may not affect his employment. However, on the date in question, Officer McCord was

acting under color of law of a known and valid appointment. He simply failed to comply

with a precedent or requirement that he have or maintain a valid driver license. He would

be considered, therefore, a de facto officer who had the authority to make traffic stops.

Cf. State ex rel. Witten v. Ferguson, 148 Ohio St. 702, 76 N.E.2d 886. As this Court has

noted,

                “[W]here an officer holds the office and performs the duties thereof

         with the acquiescence of the public authorities and the public and has the

         reputation of being the officer he assumes to be and is dealt with as such,

         he is, in the eyes of the law, a de facto officer.” State ex rel. Witten v.

         Ferguson, 148 Ohio St. 702, 710, 76 N.E.2d 886 (1947). “The law validates

         the acts of de facto officers as to the public and third persons on the ground

         that, although not officers de jure, they are, in virtue of the particular

         circumstances, officers in fact whose acts public policy requires should be

         considered valid.” State, ex rel. Paul, v. Russell, 162 Ohio St. 254, 257,

         122 N.E.2d 780 (1954).

Swanson v. Maier, 5th Dist. Stark No. 2014CA00208, 2015-Ohio-2141, ¶27.

         {¶17} Accordingly, the fact that Officer McCord did not have a valid driver license

did not convert and otherwise valid traffic stop into an illegal stop and detention.

         {¶18} Woolf’s first assignment of error is overruled.
Stark County, Case No. 2015CA00195                                                         9


                                               II.

       {¶19} Woolf s second assignment of error challenges the trial court's suppression

ruling for not considering the excessive force and language used after the traffic stop.

       {¶20} Contrary to Woolf s representation, the trial court did consider the alleged

excessive force and inappropriate language that was proffered by the defense. The court

specifically noted in its judgment entry ruling on the suppression motion,

              THE COURT: All right. That proffer is made for purposes of the

       record.

              Obviously denied by the state.

              But it is proffered to be considered relative to the motion to dismiss

       along with the stipulated statement of facts.

Transcript of Proceedings, Pretrial Hearing Sept. 9, 2015 at 7.

       {¶21} And the trial court's specific suppression ruling considered the allegations

of excessive force,

              Additionally, the defendant proffered an allegation that the Officer in

       question used excessive force and inappropriate language in violation of

       the Alliance Police Department Rules and Regulations at the time of arrest

       of the defendant. The Court, for purposes of this motion only, takes said

       allegations into consideration.

Judgement Entry, filed Sept. 10, 2015 at 1.

       {¶22} Accordingly, the record does not support that the trial court committed the

error as alleged in Wolfe’s second assignment of error.

       {¶23} Woolf’s second assignment of error is overruled.
Stark County, Case No. 2015CA00195                                                10


      {¶24} The judgment of the Stark County Court of Common Pleas is affirmed.


By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur
