State v. Bilal

2022 Ohio 3892

Opinion

[Cite as State v. Bilal, 2022-Ohio-3892.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellant : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : HUSSEIN BILAL : Case No. 22CA00004 : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 21-CR-00299

JUDGMENT: Reversed

DATE OF JUDGMENT: October 31, 2022

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

ROBERT N. ABDALLA MICHAEL R. DALSANTO 20. S. Second Street P.O. Box 98 Newark, OH 43055 Newark, OH 43058 Licking County, Case No. 22CA00004 2

Wise, Earle, P.J.

{¶ 1} Plaintiff-Appellant state of Ohio appeals the January 25, 2022 judgment of

the Licking County Court of Common Pleas which granted Defendant-Appellee Hussein

Bilal's motion to suppress.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On May 23, 2021 Newark Police Officer Trey Brown noticed a silver Ford

Fusion bearing a temporary tag which he could not read as it appeared to have something

covering the numbers. Brown initiated a traffic stop and was still unable to read the tag

until he got out of his cruiser and stood at the rear of the Fusion. He observed the tag had

been secured with a clear adhesive tape which had peeled up in places and become dirty,

making the tag difficult to read. Brown relayed the tag number to dispatch then

approached the passenger side of the vehicle. Brown told the occupants why he had

pulled them over and asked the driver for his operator's license. Nearly contemporaneous

to Brown's inquiry, dispatch advised the temporary tag on the Fusion was expired. Brown

then discovered the driver had an expired operator's license and no one else in the car

could produce identification. The vehicle was therefore impounded. During an inventory

search, a loaded firearm was located under the front passenger seat where appellee was

seated.

{¶ 3} On June 2, 2021, the Licking County Grand Jury returned an indictment

charging appellee with improperly handing firearms in a motor vehicle in violation of R.C.

2923.16(B), a felony of the fourth degree.

{¶ 4} Appellee pled not guilty to the charge and on October 13, 2021, filed a

motion to suppress. Appellant argued among other things that there was no probable

cause or reasonable suspicion to initiate a traffic stop, and even if there were, the stop Licking County, Case No. 22CA00004 3

exceeded the scope and duration of a legal traffic stop. Appellant filed a response on

January 12, 2022.

{¶ 5} A hearing was held on appellee's motion on January 19, 2022. The state

presented testimony from Officer Brown, elicited the above outlined facts, and played

portions of the dash camera video of the stop. At the conclusion of the hearing, the trial

court ruled from the bench finding:

Well, here's why I have to grant the motion. For some reason, and I

can't put my finger on when, Ohio changed their temporary tags. It

used to be you'd get a big tag like this (indicating size of tag), it'd be

on the back, it's visible. They went to some condensed version of

temporary tags, I'm saying this antidotally, but they're very very hard

to read. They are. I'm not disputing that at all

I don’t think there's a problem with the initial stop, but when the officer

gets to the point where he sees what the license plate is and can

read it, the basis for the stop is, um, extinguished. And I'm basing

this on State v. Chatton, 11 Ohio St.3d 59, which the critical part of

the case says "Consequently, where a police officer stops a motor

vehicle which displays neither front nor rear license plates, but upon

approaching the stopped vehicle observes a temporary tag, which is

visible through the rear windshield, the driver of the vehicle may not

be detained further to determine the validity of the driver's license –

of the driver's license absent some specific and articulable facts that

the detention was reasonable." I think Chatton is the case here. Now Licking County, Case No. 22CA00004 4

Chatton doesn't have much applicability as it used to because the

legislature changed the law on how to display tags. That's not

relevant here. The evidence was that the temporary tag was where

it was supposed to be, that he had a difficult time reading it. I think

that gives him the right to say "Hey, I'm going to pull this guy over."

But once he gets to the point where he can see it, Chatton says you

can't keep, um – that's the way I interpret this code section here. And

I'm looking at 4503.182, which talks about temporary tags and then

4503.21.

The Officer's testimony that – that he couldn't see it but that as he

approached, um, he described a part of it as "peeling off" and then

he described that as "clear masking tape." There's no evidence the

driver did anything or anyone else did anything to obscure or obstruct

visibility. Probably just an accumulation of grit, grime, dust, and also

the age of a temporary tag that's made out of cardboard. But I think

the critical distinction on this case is that the officer got close enough

to it that he could read it, radio it in that – that terminates the stop

under Chatton.

So, for those reasons, I will – I don't need to address the other

issues in the case because of my resolution of this matter. I'll a – for

these reasons I'll grant the Defendant's motion to suppress.

{¶ 6} Transcript of suppression hearing 41-43. Licking County, Case No. 22CA00004 5

{¶ 7} On January 20, 2022, the state filed a motion to reconsider. On January 25,

2022, the trial court issued its judgment entry granting appellee's motion to suppress. On

January 27, 2022, appellant filed its notice of appeal. On February 2, 2022, the trial court

issued a judgment entry denying appellant's motion to reconsider.

{¶ 8} The matter is now before this court for consideration. Appellant presents

three assignments of error for our consideration as follow:

I

{¶ 9} "WHETHER THE COURT HAD AUTHORITY TO ISSUE A JUDGMENT

ENTRY DENYING THE STATE'S MOTION TO RECONSIDER AND WHETHER THAT

JUDGMENT ENTRY CONSTITUTES A PART OF A RECORD ON THIS INSTANT

APPEAL."

II

{¶ 10} "WHETHER LAW ENFORCEMENT OFFICERS HAD A SUFFICIENT

BASIS TO INITIATE A TRAFFIC STOP."

III

{¶ 11} "WHETHER OFFICERS IMPERMISSIBLY EXPANDED THE TRAFFIC

STOP BY REQUESTING THE DRIVER'S AND VEHICLE OCCUPANT'S

INFORMATION."

IV

{¶ 12} "WHETHER THE BASIS FOR THE TRAFFIC STOP TERMINATED UPON

OFFICER BROWN BEING ABLE TO READ THE TEMPORARY TAGS."

{¶ 13} For ease of discussion, we address appellant's assignments of error out of

order. Appellant's second assignment of error appears to be more a statement than an Licking County, Case No. 22CA00004 6

argument or assignment of error. In it, appellant points out the trial court found Officer

Brown possessed reasonable suspicion to initiate a traffic stop. As set forth in our

statement of facts above, the trial court did find reasonable suspicion existed for the stop.

T. 41. Neither party disputes this fact. We will therefore focus on whether the stop was

improperly expanded.

III, IV

{¶ 14} In its third and fourth assignments of error, appellant argues Officer Brown

had justification to continue the stop after being able to read the temporary tag, and that

State v. Chatton, 11 Ohio St.3d 59, 463 N.E.2d 1237 (1984) is therefore inapplicable to

this case. Under the unique facts of this case, we agree.

Standard of Review

{¶ 15} 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(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(1993). Second, an

appellant may argue the trial court failed to apply the appropriate test or correct law to the

findings of fact, in which 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 motion to

suppress. When reviewing this type of claim, an appellate court must independently Licking County, Case No. 22CA00004 7

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 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (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), "... as a general matter determination

of reasonable suspicion and probable cause should be reviewed de novo on appeal."

{¶ 16} 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 the credibility

of witnesses. 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).

Traffic Stops

{¶ 17} As stated above, the trial court found the initial stop was valid and neither

party disputes that fact. At issue here is whether appellee was properly detained after

Officer Brown was able to read the temporary tag on appellee's vehicle.

{¶ 18} " '[W]hen detaining a motorist for a traffic violation, an officer may delay a

motorist for a time period sufficient to issue a ticket or warning.' " State v. Elliot, 5th Dist.

Guernsey No. 18 CA 22, 2019-Ohio-4411, ¶ 21 quoting State v. Batchili, 113 Ohio St.3d

403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12 quoting State v. Keathley, 55 Ohio App.3d

130, 131, 562 N.E.2d 932 (2nd Dist.1988). The scope and duration of a routine traffic stop

"must be carefully tailored to its underlying justification * * * and last no longer than is

necessary to effectuate the purpose of the stop." State v. Latona, 5th Dist. Richland No.

2010-CA-0072, 2011-Ohio-1253, 2011 WL 917728, ¶¶ 20-21 quoting Florida v. Royer,

460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); see also, State v. Gonyou,

108 Ohio App.3d 369, 372, 670 N.E.2d 1040 (6th Dist.1995). The measure of the time Licking County, Case No. 22CA00004 8

period includes the time sufficient to run a computer check of the driver's license,

registration, and vehicle plates. State v. Elliot, 2019-Ohio-4411, ¶ 21 citing State v.

Bolden, 12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, ¶ 17 citing Delaware v.

Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Additionally, " '[i]n

determining if an officer completed these tasks within a reasonable length of time, the

court must evaluate the duration of the stop in light of the totality of the circumstances

and consider whether the officer diligently conducted the investigation.' " Id., quoting State

v. Carlson, 102 Ohio App.3d 585, 598-599, 657 N.E.2d 591(9th Dist.1995), citing State v.

Cook, 65 Ohio St.3d 516, 521-522, 605 N.E.2d 70 (1992), and United States v. Sharpe,

470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). See also State v. Whitman, 184

Ohio App.3d 740, 2009-Ohio-5647, 922 N.E.2d 293 (5th Dist.); State v. Woodson, 5th

Dist. Stark No. 2007-CA-00151, 2008-Ohio-670, ¶ 21.

{¶ 19} State v. Chatton, 11 Ohio St.3d 59, 463 N.E.2d 1237 (1984) involved a

traffic stop factually similar to the matter at bar. In Chatton, an officer stopped a vehicle

which displayed neither front nor rear license plates. Upon approaching the car however,

the officer observed a valid temporary tag on the car's interior rear deck. Id at 59. Although

the officer realized upon observation that the temporary tag was valid, he proceeded to

inquire into the status of the defendant's driver's license and discovered his license was

suspended. The defendant was therefore placed under arrest for driving under

suspension. Id. Upon searching the vehicle, the officer found a loaded gun underneath

the driver's seat. Id.

{¶ 20} The defendant was indicted for carrying a concealed weapon and moved to

suppress evidence of the gun on the basis the search of his vehicle was unlawful. Id. at

59-60. The trial court overruled the motion to suppress. Id. at 60. The defendant appealed Licking County, Case No. 22CA00004 9

the ruling and the court of appeals reversed the conviction, finding the trial court erred in

not suppressing the evidence of the gun. Id. The court of appeals reasoned any

reasonable suspicion the defendant was violating the law was extinguished upon the

officer's observance of the temporary tag and the detention of the defendant beyond that

moment was unlawful. Id. The Ohio Supreme Court accepted jurisdiction.

{¶ 21} In agreeing with the court of appeals, the Supreme Court stated:

In our view, because the police officer no longer maintained a

reasonable suspicion that appellee's vehicle was not properly

licensed or registered, to further detain appellee and demand that he

produce his driver's license is akin to the random detentions struck

down by the Supreme Court in Delaware v. Prouse, supra.

{¶ 22} Chatton at 63.

{¶ 23} The Court then concluded, "[a]lthough the police officer, as a matter of

courtesy, could have explained to appellee the reason he was initially detained, the police

officer could not unite the search to this detention, and appellee should have been free to

continue on his way without having to produce his driver's license." Id.

Application of Chatton to the Instant Matter

{¶ 24} Brown testified that after he initiated the traffic stop, he was still unable to

read the temporary tag on the Fusion. He had to get out of his cruiser and approach the

vehicle in order to read the tag and call in the number into dispatch. T. 9. After he did so,

he approached the passenger side of the Fusion, told the three occupants why he had

pulled them over, and asked the driver for his operator's license. State's exhibit 1. Under Licking County, Case No. 22CA00004 10

Chatton, Brown could approach the occupants and tell them why he pulled them over, but

would then have to release them "absent some specific and articulable facts that the

detention was reasonable." Chatton at 63.

{¶ 25} But this matter differs from Chatton in one important regard – appellee's

temporary tag was expired and Officer Brown was advised of the same 47 seconds into

the stop. State's exhibit 1. While it is true Brown asked the driver of the Fusion for his

license, news of the expired tag came nearly contemporaneously. Id. We find this is a

specific and articulable fact making continued detention reasonable.

{¶ 26} We further find that application of Chatton under this particular set of facts

would produce an absurd precedent for the officer in the field. In this instance, it would

require Brown to send the occupants of the Fusion on their way and then initiate a second

traffic stop based on the officer's knowledge of the expired tag. We find such a result

unrealistic and decline to extend the holding of Chatton to the facts of this case.

{¶ 27} We find Officer Brown did not improperly extend the traffic stop after being

able to read the temporary tag. The third and fourth assignments of error are sustained.

{¶ 28} Given our resolution of this matter, the question of whether or not the trial

court's judgment entry denying the state's motion for reconsideration is a part of the record

on appeal is moot and we therefore decline to address appellant's first assignment of

error. Licking County, Case No. 22CA00004 11

{¶ 29} The judgment of the Licking County Court of Common Pleas is reversed

and remanded for proceedings consistent with this opinion.

By Wise, Earle, P.J.

Gwin, J. and

Delaney, J. concur.

EEW/rw [Cite as State v. Bilal, 2022-Ohio-3892.]