[Cite as State v. Adams, 2011-Ohio-4008.]




          IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                     :

        Plaintiff-Appellee                        :   C.A. CASE NO. 24184

vs.                                              :    T.C. CASE NO. 09CR3552

JAMES F. ADAMS                                    :   (Criminal Appeal from
                                                       Common Pleas Court)
        Defendant-Appellant                       :

                                      . . . . . . . . .

                                            O P I N I O N

                   Rendered on the 12th day of August, 2011.

                                      . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Laura M. Woodruff, Asst.
Pros. Attorney, Atty. Reg. No.0084161, P.O. Box 972, Dayton, OH
 45422
     Attorney for Plaintiff-Appellee

Mark A. Deters, Atty. Reg. No.0085094, 371 West first Street,
Dayton, OH 45402
     Attorney for Defendant-Appellant

                                      . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, James Adams, appeals from his conviction for

possession of heroin, less than one gram, R.C. 2925.11(A), which

was entered on Defendant’s no contest plea after the trial court

overruled his motion to suppress evidence.                    On appeal, Defendant
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challenges only the trial court’s decision overruling his motion.

     FIRST ASSIGNMENT OF ERROR

     {¶ 2} “THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION

TO SUPPRESS, BECAUSE THE POLICE OFFICERS DID NOT HAVE LAWFUL CAUSE

TO STOP APPELLANT.”

     {¶ 3} When considering a motion to suppress, the trial court

assumes the role of the trier of facts and is therefore in the

best position to resolve factual questions and evaluate the

credibility of the witnesses.     State v. Roberts, 110 Ohio St.3d

71, 2006-Ohio-3665.   Consequently, an appellate court must accept

the trial court’s findings of fact if they are supported by

competent, credible evidence.    Id.   Accepting those facts as true,

the appellate court must then independently determine, without

deference to the trial court’s conclusion, whether those facts

satisfy the applicable legal standard.      Id.

     {¶ 4} Defendant moved to suppress evidence of heroin police

seized in a search of his vehicle in the course of an inventory

search following Defendant’s arrest.      The trial court overruled

the motion.   The court found that officers had attempted to stop

Defendant’s vehicle for what they reasonably believed was a

violation of R.C. 4511.28.      That section prohibits passing upon

the right of another vehicle unless (1) the other vehicle “is making

or attempting to make a left turn” (2) “[u]pon a roadway with
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unobstructed pavement of sufficient width for two or more lines

of vehicles moving lawfully in the direction being traveled by

the overtaking vehicle.”       Id.   When the officers activated the

lights and siren of their cruiser to effect the stop, Defendant

did not stop.   He instead proceeded through the next block,          where

another vehicle stopped him from proceeding further.            The court

found that when officers apprehended Defendant, they placed him

under arrest for failure to comply with the order or signal of

a   police   officer,   R.C.   2921.331,   which   is    a   first   degree

misdemeanor.

      {¶ 5} Defendant does not complain that the inventory search

of his vehicle was illegal.     Neither does he dispute that he failed

to stop when the officers activated the lights and siren of their

cruiser, or that he was unaware they had.    Rather, Defendant argues

that he committed no violation of R.C. 4511.28 that             permitted

the officers to stop his vehicle.

      {¶ 6} “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.           (United States v.

Ferguson [C.A.6, 1993], 8 F.3d 385, applied and followed.)” Dayton
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v. Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, Syllabus by the Court.

     {¶ 7} Probable cause to arrest exists when a reasonably prudent

person would believe that the person to be arrested has committed

a crime.   State v. Timson (1974), 38 Ohio St.2d 122.

     {¶ 8} Dayton v. Erickson does not require full probable cause

for a traffic stop.    In that case, the Supreme Court relied on

the fact that an officer had probable cause of a traffic code

violation, an observed failure to signal when turning left, to

reject the defendant’s claim that the stop was unconstitutional

because it was a pretext to investigate a suspicion that her driving

privileges had been suspended.   Erickson did not reject the lesser

reasonable and articulable suspicion standard of Terry v. Ohio

(1967), 391 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868.     We have held

that the Terry standard likewise applies to permit a stop for a

suspected violation of the traffic code arising from conduct which

an officer observes.   State v. Buckner, Montgomery App. No. 21892,

2007-Ohio-4329.

     {¶ 9} Evidence introduced at the hearing on Defendant’s motion

to suppress shows that the stop of Defendant’s vehicle occurred

on October 23, 2009, in Dayton, at about 7:00 p.m.    Dayton Police

Officers Dedrick and Gustwiller were then on patrol and assigned

to the “Phoenix Project.”   Officer Dedrick described the Phoenix

Project as “a project that was put in place by Good Samaritan
                                                                    5

Hospital Citywide Development in partnership with the Dayton Police

Department, attempting to improve the neighborhood that surrounds

Good Samaritan Hospital.”    (T. 6).

     {¶ 10} As the officers were driving eastbound on Hillcrest

Avenue they saw a green Chevrolet Beretta traveling ahead of them

approach the intersection of Hillcrest and Salem Avenues.   Traffic

on Hillcrest was stopped for a red light.      The Beretta came to

a stop parallel to another vehicle on its right side, which was

preparing to turn left onto Salem Avenue.          Officer Dedrick

testified:

     {¶ 11} “There at that intersection at West Hillcrest and Salem

Avenue it’s fairly wide.    It is a double-lined marking on the

pavement; I mean there’s no passing there.    The width of the lane

is big enough for two vehicles to fit through.”     (T. 7).

     {¶ 12} When the light changed, the Beretta drove through the

intersection on the right side of the turning vehicle.        Traffic

was proceeding from the opposite direction on Hillcrest Avenue,

through the intersection.   Officer Dedrick testified: “By passing

the vehicle around the right side and continuing straight through

the intersection, it creates a hazard to the westbound travel –

traveling vehicles if they were to turn left to go south on Salem.

 It’s a hazard for an accident.”   (T. 8).   The officers concluded

that the driver of the Beretta committed a minor misdemeanor (T.
                                                                   6

28-29), which was “passing on the right” (T. 34), and they initiated

a traffic stop to issue the driver a citation.

     {¶ 13} The officers activated the overhead lights and siren

of their cruiser.    They also used the public address system to

direct the driver of the Beretta to stop.    The trial court found

that the Beretta “did not immediately stop and came to a stop at

the next intersection only when a car in the street obstructed

the path of the (Beretta).”    (T. 57).

     {¶ 14} The trial court further found that the traffic at the

intersections of Hillcrest and Salem Avenues “was heavy,” and that

the officers “observed eastbound on West Hillcrest a green Chevy

Beretta on the right side of the lane in an area that was not for

passing.    Essentially they observed the green Beretta pass on the

right side where there is one lane; there is no separate passing

lane.   There is only one lane of travel on eastbound Hillcrest.”

 (T. 57).

     {¶ 15} The court also noted that the officers believed that

Defendant’s vehicle “created a hazard by going around a vehicle

that was turning” (T. 58), presenting “a reasonable suspicion to

stop (Defendant’s) vehicle.”      (T. 60).   The court concluded:

“Defendant was issued a ticket for passing on the right.     He was

arrested for failure to comply, a misdemeanor.”      (T. 59).   His

arrest led to the inventory search of his vehicle that produced
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the evidence which Defendant’s motion sought to suppress.

     {¶ 16} R.C. 4511.28 does not prohibit passing on the right side

of another vehicle which is turning left when the passing vehicle

is proceeding “[u]pon a roadway with unobstructed pavement of

sufficient width for two or more lines of vehicles moving lawfully

in the direction being traveled by the overtaking vehicle.”

(Emphasis supplied).    Contrary to the trial court’s suggestion,

the exception that section provides is not limited to a roadway

divided into two marked lanes proceeding in the same direction.

     {¶ 17} Officer Dedrick testified that the lane through which

Defendant’s vehicle passed to the right of the vehicle turning

left “is fairly wide” and that “[t]he width of the lane is big

enough for two vehicles to pass through.”    Further, any perceived

hazard that may have posed to vehicles turning across Defendant’s

path from the opposite direction would not be chargeable to

Defendant because, as between them, Defendant would have had the

right-of-way.    R.C.   4511.42(A).    The   officers   who    stopped

Defendant were charged with knowledge of the law in that respect.

 In order for a reasonable and articulable suspicion necessary

for a traffic stop to exist, there must be objective evidence that

the officer’s action was justified at its inception.          Terry v.

Ohio (1968), 392 U.S. 1, 29 L.Ed.2d 889, 88 S.Ct. 1868.   Good faith

is not enough.   “If subjective good faith alone were the test,
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the protections of the Fourth Amendment would evaporate, and the

people would be ‘secure in their persons, houses, papers, and

effects’ only in the discretion of the police.”     Id., at p. 22,

quoting Beck v. Ohio (1964), 379 U.S. 89, 97, 13 L.Ed.2d 14, 85

S.Ct. 223.   Therefore, the trial court erred when it found that

the officers acted on a reasonable suspicion that Defendant’s

conduct violated R.C. 4511.28.

     {¶ 18} The trial court did not deny Defendant’s motion to

suppress on the basis of its findings concerning Defendant’s

violation of R.C. 4511.28, however.    Rather, the court approved

the inventory search following Defendant’s arrest for a violation

of R.C. 2921.33(A).   That section provides:

     {¶ 19} “No person shall fail to comply with any lawful order

or direction of any police officer invested with authority to

direct, control, or regulate traffic.”

     {¶ 20} Defendant argues that his arrest for a violation of R.C.

2921.331(A), “failure to comply,” was tainted by the lack of a

reasonable suspicion that he committed a violation of R.C. 4511.28,

and therefore the trial court should have suppressed evidence

seized in an inventory search of his vehicle following his arrest.

 Defendant relies on the derivative evidence rule, which holds

that evidence is illegally seized, and must be suppressed, when

its discovery was the product of a constitutional violation.
                                                                        9

“There must be a causal connection between the constitutional

violation and the derivative evidence for the latter to be

suppressed.      This stands to reason because the latter is excluded

solely because of its connection to the constitutional violation.”

 Katz, “Ohio Arrest, Search and Seizure,” 2008 Ed., §28:3.            If

knowledge of the derivative evidence is gained from an independent

source, rather than the government’s own illegality, the derivative

evidence may be used.      Silverthorne Lumber Co. v. United States

(1920), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.

     {¶ 21} In    State   v.   Redd,   Montgomery   App.   No.    20284,

2004-Ohio-4689, we wrote, at ¶19:

     {¶ 22} “[T]he ‘lawful order’ of a police officer that R.C.

2921.331(A) contemplates, and with which an offender fails to

comply in order for a violation to occur, is one that involves

the offender's act or omission in operating a motor vehicle which,

by law, an officer is charged with authority to direct, control,

or regulate. The manner of that operation need not be unlawful.

It is only necessary that the officer be charged by law with

authority to direct it and that the offender fails to comply with

the officer's particular direction.”

     {¶ 23} Officer Dedrick testified that he and his partner were

“assigned to patrol operations” (T. 6) and that he “is an officer

charged with traffic enforcement in the City of Dayton.”         (T. 37).
                                                                  10

 Therefore, the “order” the officers issued to Defendant to stop

his vehicle was a lawful order for purposes of R.C. 2921.331(A),

and Defendant’s failure to comply demonstrated probable cause of

a violation of that section.

     {¶ 24} The violation of R.C. 2921.331(A) and Defendant’s

resulting arrest were sources of knowledge of the evidence

Defendant’s motion sought to suppress that were independent of

any constitutional violation the initial reason to stop his vehicle

may have involved.   The failure to stop followed the constitutional

violation, but its occurrence was the product of Defendant’s

subsequent illegal conduct in not stopping.    It is, conceptually,

no different from the discovery of an outstanding warrant following

an illegal stop, which we have held does not support suppression

of evidence seized in a search incident to a resulting arrest.

State v. Walker-Stokes, 180 Ohio App.3d 36, 2008-Ohio-6552.     The

trial court did not err when it overruled Defendant’s motion to

suppress evidence.

     {¶ 25} The assignment of error is overruled.   The judgment of

the trial court will be affirmed.

     DONOVAN, J., concurs.

     FAIN, J., concurring in the judgment:

     {¶ 26} I concur in the judgment because I am satisfied that

Dayton police officers Dedrick and Gustwiller had a reasonable,
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articulable suspicion justifying their stop of the vehicle Adams

was driving, based upon a possible violation of R.C. 4511.28, which

prohibits passing another vehicle on the right if it cannot be

done safely.   Under the conditions described by Officer Dedrick,

it may be problematic whether Adams could have been convicted of

that offense, but I am satisfied that the officers had a reasonable

and articulable suspicion sufficient to justify a stop.

     {¶ 27} I am less sanguine about a justification of a stop based

upon a failure to stop, without more.   Possibly, a failure to stop,

without more (such as speeding away, or driving recklessly), may

justify a stop, but there is a catch-22 aspect of such a holding

that troubles me.

     {¶ 28} I do not find helpful an analogy to an otherwise

unjustified stop where one of the occupants of a car is, in fact,

the subject of an outstanding arrest warrant, even though the

stopping police officer is not aware of the warrant.   In that case,

a basis for the stop already exists at the time that the officers

make the decision to make the stop.      But where officers signal

a motorist to stop, and the motorist, in response, does not stop,

and there was no basis for the stop before the signal to stop is

given, it seems to me that the officers have created, out of nothing,

a basis for the stop.

     {¶ 29} I reiterate that I am not prepared to take a position,
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one way or the other, on whether a motorist’s failure to stop,

without more, may serve as a lawful basis for a stop.   It is a

conundrum I find unnecessary to resolve in this case, since I am

satisfied that the suspicion of a violation of R.C. 4511.28, by

itself, was a sufficient basis for the stop.




Copies mailed to:

Laura M. Woodruff, Esq.
Mark A. Deters, Esq.
Hon. Mary K. Huffman
