[Cite as Stat v. Laizure, 2016-Ohio-3252.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :      JUDGES:
                                             :      Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant                :      Hon. Patricia A. Delaney, J.
                                             :      Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
MICHAEL LAIZURE                              :      Case No. 2015 AP 10 0056
                                             :
        Defendant - Appellee                 :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Tuscarawas County
                                                    Court of Common Pleas, Case No.
                                                    2015 CR 04 0101




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   May 26, 2016




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

MICHAEL J. ERNEST                                   MARK A. PERLAKY
Assistant Prosecuting Attorney                      Tuscarawas County Public Defender
125 E. High Avenue                                  153 N . Broadway St.
New Philadelphia, Ohio 44663                        New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2015 AP 10 0056                                                  2



Baldwin, J.

       {¶1}   Plaintiff-appellant State of Ohio appeals from the October 7, 2015 Judgment

Entry of the Tuscarawas County Court of Common Pleas granting the Motion to Suppress

filed by defendant-appellee Michael Laizure.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On April 7, 2015, the Tuscarawas County Grand Jury indicted appellee

Michael Laizure on one count of improperly handling firearms in a motor vehicle in

violation of R.C. 2923.16(B) and (I), a felony of the fourth degree, and one count of

trafficking in marihuana in violation of R.C. 2925.03(A)(2) and 2925.03(C)(3)(a), a felony

of the fifth degree. At his arraignment on May 8, 2015, appellee entered a plea of not

guilty to the charges.

       {¶3}   Appellee, on June 22, 2015, filed a Motion to Suppress, arguing that the

arresting officer did not have reasonable and articulable suspicion or probable cause to

stop appellee’s vehicle. Appellee argued that the marihuana and loaded handgun found

after the stop should, therefore, be suppressed. A hearing on the motion was held on

September 11, 2015.

       {¶4}   At the hearing, Sergeant Michael Hickman of the City of Uhrichsville Police

Department testified that on January 7, 2015, he was working the 7:00 p.m. to 3:00 a.m.

shift. He testified that he observed appellee fail to use his turn signal as he was turning

onto Herrick Street. The officer testified that he was going to stop the vehicle, but it turned

into the Sav-A-Lot parking lot. Appellee, who was the driver of the vehicle, exited his

vehicle and went into the store.
Tuscarawas County, Case No. 2015 AP 10 0056                                                3


       {¶5}   Sergeant Hickman did not follow appellee into the parking lot but rather

turned his cruiser around, drove down the road and positioned his vehicle so that he was

facing the Sav-A-Lot parking lot. According to him, appellee got back into his vehicle and

“shot through the parking lot” out onto Trenton Avenue. Transcript at 6. At the time, it was

snowy and icy outside. The posted speed limit on Trenton is 25 miles per hour. Sergeant

Hickman testified that he felt that appellee was traveling too fast for the roadway

conditions and that he estimated appellee’s speed to be between 35 and 40 miles per

hour. He testified that appellee agreed with him that he was traveling too fast for the road

conditions and above the speed limit. Sergeant Hickman, when asked, stated that he did

not recall having any specific training in the academy as to visually estimating speed, but

that he learned to do so over 15 years in law enforcement. At approximately 8:25 p.m.,

the officer stopped appellee’s vehicle.

       {¶6}   On cross-examination, Sergeant Hickman testified that he began his visual

estimation of appellee’s speed when he was still two blocks away from appellee’s vehicle

and that he did not clock the vehicle on radar.

       {¶7}   After the hearing, both sides filed legal memoranda. The trial court, as

memorialized in a Judgment Entry filed on October 7, 2015, granted appellee’s Motion to

Suppress. The trial court, in its Judgment Entry, stated that it was granting the motion

because Sergeant Hickman was not qualified to visually estimate speed “without

independent verification of the alleged speed for the reason that Sgt. Hickman did not

receive training certified by the Ohio Peace Officer Training Academy or a similar

organization……, rendering Sgt. Hickman, in this case, unqualified, as a matter of law, to

visually estimate the speed of Defendant’s vehicle on the night in question.” The trial court
Tuscarawas County, Case No. 2015 AP 10 0056                                                 4


held that Sergeant Hickman, therefore, did not have “sufficient probable cause to

effectuate the traffic stop” of appellee’s vehicle.

       {¶8}   Appellant now appeals from the trial court’s October 7, 2015 Judgment

Entry, raising the following assignment of error on appeal:

       {¶9}   THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S MOTION

TO SUPPRESS AS SGT. MIKE HICKMAN OF THE UHRICHSVILLE POLICE

DEPARTMENT         PROVIDED        REASONABLE             AND   ARTICULABLE     SUSPICION

WARRANTING A STOP OF THE VEHICLE OPERATED BY THE APPELLEE.

                                                      I

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

granting appellee’s Motion to Suppress.

       {¶11} 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 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 (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
Tuscarawas County, Case No. 2015 AP 10 0056                                                  5


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.”

       {¶12} 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 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.
Tuscarawas County, Case No. 2015 AP 10 0056                                                  6


       {¶13} In the case sub judice, Sergeant Hickman initiated a traffic stop of appellee’s

vehicle due to appellee’s failure to operate his motor vehicle at a reasonable speed based

on the conditions and circumstances on the night in question. At the suppression hearing,

Sergeant Hickman testified that he does not have any specialized training in estimating

speed.

       {¶14} We note that officers are statutorily prohibited from arresting or even

charging a driver for a speeding violation based upon the officer's “unaided visual

estimation of the speed of the motor vehicle.” R.C. 4511.091(C)(1). R.C. 4511.091(C)

provides in pertinent part:

              No person shall be arrested, charged, or convicted of a violation of

       any provisions of divisions (B) to (O) of Section 4511.21 or Section

       4511.211 of the Revised Code or a substantially similar municipal ordinance

       based on a peace officer's unaided visual estimation of the speed of a motor

       vehicle, trackless trolley, or streetcar.1

       {¶15} In Miller, the appellant, who was charged with DUI, was stopped based on

officers’ unaided visual estimates of speed in slight excess of the speed limit along with

the appellant’s revving of the engine of a stick shift vehicle while alone at a stop light. The

appellant filed a Motion to Suppress, arguing that there was no reasonable and articulable




1The General Assembly enacted R.C. 4511.091(C) in 2011 in response to the Ohio
Supreme Court's holding in Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420,
929 N.E.2d 1047, which held that a defendant can be convicted of speeding based
solely on a police officer's visual estimation of speed where the evidence shows the
officer has the proper training and experience. See State v. Kincaid, 5th Dist. Ashland
No.2012–COA–011, 2012–Ohio–4669, ¶ 19–¶ 22.
Tuscarawas County, Case No. 2015 AP 10 0056                                                 7


suspicion to stop her. This Court, in holding that that the trial court erred in denying her

Motion to Suppress, held, in relevant part, as follows at paragraphs 10-14:

              We perceive of no reason why revving the engine of a stick shift

       vehicle while alone at a stop light is “suspicious activity” sufficient to justify

       the investigative stop of the vehicle. The state points to no law that was

       violated by that activity. The record contains only the officers unaided visual

       estimates of speed in slight excess of the speed limit as an additional factor,

       which taken together with the engine revving the state argues justified

       further investigation.

              The officers are statutorily prohibited from arresting or even charging

       a driver for a speeding violation based upon the officer's “unaided visual

       estimation of the speed of the motor vehicle.” R.C. 4511.091(C)(1). R.C.

       4511.091(C) provides in pertinent part:

              No person shall be arrested, charged, or convicted of a violation of

       any provisions of divisions (B) to (O) of Section 4511.21 or Section

       4511.211 of the Revised Code or a substantially similar municipal ordinance

       based on a peace officer's unaided visual estimation of the speed of a motor

       vehicle, trackless trolley, or streetcar.

              Thus, the notion that officers may use unaided visual estimates of

       speed for arrest, charging, and conviction have been superseded and

       overruled by legislation. Allowing an officer to stop a vehicle on their

       subjective impressions that a vehicle is traveling in slight excess of the legal

       speed limit may permit officers to do just what the legislature had abolished.
Tuscarawas County, Case No. 2015 AP 10 0056                                                 8


          In other words, permitting an investigative stop when the officer cannot

          arrest or charge based upon his unaided visual estimate of speed in slight

          excess of the speed limit effectively eliminates any protection against

          profiling and arbitrary detentions.

                  Further, that the legislature did not intend to permit investigatory

          stops of a vehicle on an officer's subjective impressions that a vehicle is

          traveling in slight excess of the legal speed limit can be found within the

          specific exception in R.C. 4511.091(C)(1)(c),

                  (C)(1) * * * This division does not do any of the following:

                  (c) Preclude a peace officer from testifying that the speed of

          operation of a motor vehicle, trackless trolley, or streetcar was at a speed

          greater or less than a speed described in division (A) of section 4511.21 of

          the Revised Code2, the admission into evidence of such testimony, or

          preclude a conviction of a violation of that division based in whole or in part

          on such testimony.

                  Accordingly, the legislature has expressly allowed for officers to

          testify, and for drivers to be convicted upon, unaided visual estimates of

          speed within a school zone. Had the legislature intended to permit

          investigatory stops outside the parameters of a school zone, they clearly

          would have allowed for the exception. (Emphasis added)




2   4511.21 Speed limits; school zones; modifications
Tuscarawas County, Case No. 2015 AP 10 0056                                            9


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

appellee’s Motion to Suppress.       Sergeant Hickman did not have reasonable and

articulable suspicion warranting a stop of appellee’s vehicle.

       {¶17} Appellant’s sole assignment of error is, therefore, overruled.

       {¶18} Accordingly, the judgment of the Tuscarawas County Court of Common

Pleas is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
