[Cite as Alliance v. Lilly, 2017-Ohio-5788.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
CITY OF ALLIANCE : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff Appellee : Hon. W. Scott Gwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : ROGER K. LILLY : Case No. 2016CA00220 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal Court, Case No. 2016 TRC 00589
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 10, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAITLYN R. SCHNEIDER SHAWN O. ROBERTSON JENNIFER ARNOLD 2201 South Union Avenue MATTHEW KUHN Alliance, OH 44601 Law Directors Office 470 East Market Street Alliance, OH 44601 Stark County, Case No. 2016CA00220 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Roger Lilly appeals the September 22, 2016 judgment
denying his motion to suppress of the Alliance Municipal Court of Alliance, Ohio. Plaintiff-
Appellee is the City of Alliance.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 28, 2016, at 1:58 a.m., Alliance Police Officer Michael Donley
was patrolling the area near Oxford and Webb Streets. Donley was behind appellant’s
car when he observed appellant making a right hand turn. Appellant swung too wide -
nearly to the opposite curb - and then remained in the opposite lane of travel for half a
block beyond the corner. Based on this traffic infraction, Donley initiated a traffic stop.
{¶ 3} Asked why he executed the turn as he did, appellant told Donley “because
the building was in the road,” referring to a fire damaged building at the corner of Webb
and Oxford. Appellant claimed he was attempting to navigate around debris from the
building that had spilled into the street.
{¶ 4} Donley cited appellant for the improper turn, a seatbelt violation and operating
his vehicle under the influence. He drove appellant home, and then returned to the corner
of Webb and Oxford. Donley observed nothing in the street that would justify appellant’s
navigation of the turn. Officer Donley’s observations were captured on his POV camera.
{¶ 5} Appellant filed a motion to suppress arguing that the traffic stop was unlawful.
On August 12, 2016, a hearing was held on the matter. Officer Donley testified for the city
and his dash camera video and POV video were admitted into evidence. Appellant
testified on his own behalf and presented photos of the fire damaged building which he
had taken the morning after the traffic stop. Stark County, Case No. 2016CA00220 3
{¶ 6} The trial court overruled appellant’s motion, finding the facts elicited from
Officer Donley and supported by his dash camera supported a finding for probable cause
to issue a traffic citation. Thereafter, appellant entered a plea of no contest. The trial court
found him guilty and convicted him. Appellant requested and was granted a stay of
execution of sentence pending this appeal. He raises one assignment of error:
I
{¶ 7} "THE TRIAL COURT ERRED IN NOT SUPPRESSING THE EVIDENCE IN
THIS MATTER AS THERE WERE NO SPECIFIC AND ARTICULABLE FACTS TO GIVE
RISE TO REASONABLE ARTICULABLE SUSPICION THAT THE DEFENDANT-
APPELLANT WAS INVOLVED IN CRIMINAL ACTIVITY OR VIOLATING ANY TRAFFIC
LAWS."
{¶ 8} Appellant claims the trial court erred in denying his motion to suppress
because the evidence established the Alliance Police lacked reasonable articulable
suspicion to initiate the traffic stop. We disagree.
{¶ 9} 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 Stark County, Case No. 2016CA00220 4
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. As the United States Supreme Court held in
Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de novo
on appeal.”
{¶ 10} In Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the
United States Supreme Court determined that “a police officer may in appropriate
circumstances and in an appropriate manner approach a person for purposes of
investigating possible criminal behavior even though there is no probable cause to make
an arrest.” However, for the propriety of a brief investigatory stop pursuant to Terry, the
police officer involved “must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that intrusion.” Id.
at 21. Such an investigatory stop “must be viewed in the light of the totality of the
surrounding circumstances” presented to the police officer. State v. Freeman, 64 Ohio
St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus.
{¶ 11} “ ‘As a general matter, the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic violation has occurred.’“ Stark County, Case No. 2016CA00220 5
Katz, Ohio Arrest, Search and Seizure, Section 17:4, at 479 (2013 Ed.), quoting Whren
v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
{¶ 12} Appellant was cited under Alliance City Ordinance Section 331.10 which
provides that when making a right turn, the driver of a motor vehicle shall make the turn
while remaining “as close as practicable to the right-hand curb or the edge of the
roadway.”
{¶ 13} Appellant essentially argues the traffic stop was unreasonable because
debris in the road made it necessary for him to negotiate a wide right turn. Even if that
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[Cite as Alliance v. Lilly, 2017-Ohio-5788.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
CITY OF ALLIANCE : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff Appellee : Hon. W. Scott Gwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : ROGER K. LILLY : Case No. 2016CA00220 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal Court, Case No. 2016 TRC 00589
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 10, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAITLYN R. SCHNEIDER SHAWN O. ROBERTSON JENNIFER ARNOLD 2201 South Union Avenue MATTHEW KUHN Alliance, OH 44601 Law Directors Office 470 East Market Street Alliance, OH 44601 Stark County, Case No. 2016CA00220 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Roger Lilly appeals the September 22, 2016 judgment
denying his motion to suppress of the Alliance Municipal Court of Alliance, Ohio. Plaintiff-
Appellee is the City of Alliance.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 28, 2016, at 1:58 a.m., Alliance Police Officer Michael Donley
was patrolling the area near Oxford and Webb Streets. Donley was behind appellant’s
car when he observed appellant making a right hand turn. Appellant swung too wide -
nearly to the opposite curb - and then remained in the opposite lane of travel for half a
block beyond the corner. Based on this traffic infraction, Donley initiated a traffic stop.
{¶ 3} Asked why he executed the turn as he did, appellant told Donley “because
the building was in the road,” referring to a fire damaged building at the corner of Webb
and Oxford. Appellant claimed he was attempting to navigate around debris from the
building that had spilled into the street.
{¶ 4} Donley cited appellant for the improper turn, a seatbelt violation and operating
his vehicle under the influence. He drove appellant home, and then returned to the corner
of Webb and Oxford. Donley observed nothing in the street that would justify appellant’s
navigation of the turn. Officer Donley’s observations were captured on his POV camera.
{¶ 5} Appellant filed a motion to suppress arguing that the traffic stop was unlawful.
On August 12, 2016, a hearing was held on the matter. Officer Donley testified for the city
and his dash camera video and POV video were admitted into evidence. Appellant
testified on his own behalf and presented photos of the fire damaged building which he
had taken the morning after the traffic stop. Stark County, Case No. 2016CA00220 3
{¶ 6} The trial court overruled appellant’s motion, finding the facts elicited from
Officer Donley and supported by his dash camera supported a finding for probable cause
to issue a traffic citation. Thereafter, appellant entered a plea of no contest. The trial court
found him guilty and convicted him. Appellant requested and was granted a stay of
execution of sentence pending this appeal. He raises one assignment of error:
I
{¶ 7} "THE TRIAL COURT ERRED IN NOT SUPPRESSING THE EVIDENCE IN
THIS MATTER AS THERE WERE NO SPECIFIC AND ARTICULABLE FACTS TO GIVE
RISE TO REASONABLE ARTICULABLE SUSPICION THAT THE DEFENDANT-
APPELLANT WAS INVOLVED IN CRIMINAL ACTIVITY OR VIOLATING ANY TRAFFIC
LAWS."
{¶ 8} Appellant claims the trial court erred in denying his motion to suppress
because the evidence established the Alliance Police lacked reasonable articulable
suspicion to initiate the traffic stop. We disagree.
{¶ 9} 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 Stark County, Case No. 2016CA00220 4
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. As the United States Supreme Court held in
Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de novo
on appeal.”
{¶ 10} In Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the
United States Supreme Court determined that “a police officer may in appropriate
circumstances and in an appropriate manner approach a person for purposes of
investigating possible criminal behavior even though there is no probable cause to make
an arrest.” However, for the propriety of a brief investigatory stop pursuant to Terry, the
police officer involved “must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that intrusion.” Id.
at 21. Such an investigatory stop “must be viewed in the light of the totality of the
surrounding circumstances” presented to the police officer. State v. Freeman, 64 Ohio
St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus.
{¶ 11} “ ‘As a general matter, the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic violation has occurred.’“ Stark County, Case No. 2016CA00220 5
Katz, Ohio Arrest, Search and Seizure, Section 17:4, at 479 (2013 Ed.), quoting Whren
v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
{¶ 12} Appellant was cited under Alliance City Ordinance Section 331.10 which
provides that when making a right turn, the driver of a motor vehicle shall make the turn
while remaining “as close as practicable to the right-hand curb or the edge of the
roadway.”
{¶ 13} Appellant essentially argues the traffic stop was unreasonable because
debris in the road made it necessary for him to negotiate a wide right turn. Even if that
were true, as stated by our brethren from the Eleventh District in State v. Cronin, 11th
Dist. Hamilton No. C-100266, 2011-Ohio-1479 ¶ 11-12:
Probable cause can exist even if the officer incorrectly determines
that a traffic violation has occurred or if the officer misunderstands the law
that the driver is allegedly violating.* * *The test is whether an objectively
reasonable police officer would believe that a traffic violation has occurred
based upon the totality of the circumstances.* * *This is an objective
standard, not a subjective one.* * *
The proper focus is not on whether a defendant could have been
stopped because a traffic violation had in fact occurred, but on whether the
officer had probable cause to believe an offense had occurred. * * *
(Footnotes omitted.) Stark County, Case No. 2016CA00220 6
{¶ 14} In its judgment entry overruling appellant’s motion to suppress, the trial
court found:
The Court finds the officer’s testimony credible and the cruiser
camera convincing as to the fact that the Defendant’s vehicle effected an
extremely wide right turn into the left lane of traffic. The Court does not find
that the justification offered by Defendant (i.e. debris at edge of roadway)
as being credible or sufficient to explain a right hand turn which was so wide
and continued for so long as Defendant maintained his vehicle in the left
lane of traffic. Defendant’s own photographs show that a motor vehicle was
safely operated and parked with in several feet of the edge of the roadway.
The Court further finds that the same facts elicited from sworn
testimony by the officer and supported by the cruiser camera are sufficient
to support probable cause for issuing the traffic citation.
{¶15} After a review of the record, we agree with the trial court’s ruling. We note
that appellant not only negotiated a wide right turn, but further remained in the left lane
for half a block before finally returning to the proper lane of travel. Given the officer’s
observation of these infractions, reasonable, articulable suspicion existed to support the
traffic stop. Stark County, Case No. 2016CA00220 7
{¶16} The sole assignment of error is overruled.
ise, Earle, Jr., J.
Delaney, J. and
Gwin, J. concur.
EEW/sg 628