[Cite as State v. Bralek, 2018-Ohio-2496.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28727
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE CHRISTOPHER BRALEK STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 2017TRC02061
DECISION AND JOURNAL ENTRY
Dated: June 27, 2018
SCHAFER, Presiding Judge.
{¶1} Defendant-Appellant, Christopher Bralek, appeals the denial of his motion to
suppress by the Stow Municipal Court. For the reasons that follow, this Court affirms.
I.
{¶2} On March 12, 2017, Officer Myers of the City of Stow Police Department was
traveling southbound on Darrow Road in Stow in the far right lane. Officer Myers twice
observed a light colored SUV also traveling southbound in the left lane drift to the left toward
the double yellow center line before abruptly jerking back toward the white dotted line. Officer
Myers continued to follow the vehicle until he observed the vehicle nearly strike the curb after
turning westbound onto Graham Road. At that time he initiated a traffic stop. Officer Myers
identified Bralek as the driver of the SUV.
{¶3} Bralek was ultimately charged with one count of operating a vehicle under the
influence of alcohol, a drug of abuse, or a combination thereof in violation of R.C. 2
4511.19(A)(1)(a), a misdemeanor of the first degree, one count of operating a vehicle under with
a breath alcohol concentration in violation of R.C. 4511.19(A)(1)(d), a misdemeanor of the first
degree, one count of weaving in violation of Stow Codified Ordinance 331.34(B), a minor
misdemeanor, and one count of open container in violation of R.C. 4301.62, a minor
misdemeanor.
{¶4} Bralek subsequently filed a motion to suppress and at the hearing on the motion,
the parties stipulated that the only issue to be resolved was whether reasonable suspicion existed
to make the initial stop of the defendant’s vehicle. Following the hearing, the trial court denied
Bralek’s motion.
{¶5} Bralek pled no contest to each of the charges and the trial court found him guilty
on each count and sentenced him according to law.
{¶6} Bralek filed this timely appeal, raising one assignment of error for our review.
II.
Assignment of Error
The law enforcement officer that stopped [Bralek] in the matter [at] hand, lacked the necessary reasonable suspicion of criminal [activity] to make said stop, wherefore, his right to be free from unlawful search and seizure was violated per the Fourth Amendment of the United States Constitution.
{¶7} In his sole assignment of error, Bralek contends that the trial court erred by
denying his motion to suppress because Officer Myers lacked reasonable articulable suspicion to
stop him.
{¶8} Appellate review of a trial court’s ruling on a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When
considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore
in the best position to resolve factual questions and evaluate the credibility of witnesses.” State 3
v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, citing State v. Mills, 62 Ohio St.3d 357,
366 (1992). Accordingly, an appellate court must accept a trial court’s findings of fact when
they are supported by competent, credible evidence. Id. However, accepting those facts as true,
the appellate court must independently determine, without deference to the trial court’s
conclusion, whether those facts satisfy the applicable legal standard. Burnside at ¶ 8.
{¶9} The trial court determined that Officer Myers was in uniform, in a marked police
cruiser, and on routine patrol shortly after midnight on March 12, 2017. At that time, Officer
Myers’ attention was drawn to a vehicle proceeding southbound on Darrow Road when he saw it
weaving within its lane by nearly touching the double yellow lines in the center of the roadway
and then “abruptly” correcting until nearly touching the white line. The court found that Officer
Myers observed this weaving twice before he activated his dash-cam after the vehicle turned
westbound on Graham Road. The court further determined that the dash-cam recording showed
the vehicle, in response to the cruiser’s flashing lights, drift to the middle yellow line and
immediately correct to come close to striking the curb near the outside edge of the roadway
before coming to a stop. The court further determined that the dash-cam only has a one minute
look back recording after the activation of the cruiser’s overhead lights. Accordingly, the earlier
weaving described by Officer Myers was not recorded. The trial court concluded that “[w]hile
the taped transaction, in and of itself, would be insufficient to establish reasonable suspicion of
criminal activity, combined with the other observations of the officer in the slightly more than [a]
minute before the recording, the officer could have reasonably believed that driver impairment
was the cause of the irregular course of travel.”
{¶10} Upon review of the trial court’s findings and the record on appeal, we determine
that the trial court’s factual findings were supported by competent credible evidence. See 4
Roberts, at ¶ 100. Officer Myers was the only witness to testify at the suppression hearing.
Although the State played a recording containing footage from the cruiser’s dash cam, the
recording was not admitted into evidence. Nonetheless, Officer Myers did testify that he
observed Bralek’s vehicle weaving within its lane on two separate occasions before activating
the overhead lights on his cruiser.
{¶11} Having concluded that the trial court’s factual findings were supported by
competent credible evidence, we must now determine whether those facts satisfy the applicable
legal standards. See Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The Fourth
Amendment to the United States Constitution, as applied to the states through the Fourteenth
Amendment, and Article I, Section 14 of the Ohio Constitution protect individuals from
unreasonable searches and seizures. The Supreme Court of the United States established the
basic standard for reviewing the propriety of a traffic stop through its holdings in Terry v. Ohio,
392 U.S. 1 (1968), and Delaware v. Prouse, 440 U.S. 648 (1979). Under the standard articulated
in these cases, “a law enforcement officer may stop a vehicle when the officer has a reasonable
suspicion, based on specific and articulable facts, that an occupant is or has been engaged in
criminal activity.” State v. Epling, 105 Ohio App.3d 663, 664 (9th Dist.1995). “Reasonable
suspicion is something less than probable cause.” Id., citing State v. VanScoder, 92 Ohio App.3d
853, 855 (9th Dist.1994). In addition, when “analyzing whether reasonable suspicion existed,
this Court looks to the facts available to the officer at the moment of the seizure or the search and
considers whether those facts would warrant a man of reasonable caution in the belief that the
action taken was appropriate.” (Internal citations and quotations omitted.) State v. Blair, 9th
Dist. Summit No. 24208, 2008-Ohio-6257, ¶ 5. Reasonable suspicion is based on the totality of
the circumstances.
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[Cite as State v. Bralek, 2018-Ohio-2496.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28727
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE CHRISTOPHER BRALEK STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 2017TRC02061
DECISION AND JOURNAL ENTRY
Dated: June 27, 2018
SCHAFER, Presiding Judge.
{¶1} Defendant-Appellant, Christopher Bralek, appeals the denial of his motion to
suppress by the Stow Municipal Court. For the reasons that follow, this Court affirms.
I.
{¶2} On March 12, 2017, Officer Myers of the City of Stow Police Department was
traveling southbound on Darrow Road in Stow in the far right lane. Officer Myers twice
observed a light colored SUV also traveling southbound in the left lane drift to the left toward
the double yellow center line before abruptly jerking back toward the white dotted line. Officer
Myers continued to follow the vehicle until he observed the vehicle nearly strike the curb after
turning westbound onto Graham Road. At that time he initiated a traffic stop. Officer Myers
identified Bralek as the driver of the SUV.
{¶3} Bralek was ultimately charged with one count of operating a vehicle under the
influence of alcohol, a drug of abuse, or a combination thereof in violation of R.C. 2
4511.19(A)(1)(a), a misdemeanor of the first degree, one count of operating a vehicle under with
a breath alcohol concentration in violation of R.C. 4511.19(A)(1)(d), a misdemeanor of the first
degree, one count of weaving in violation of Stow Codified Ordinance 331.34(B), a minor
misdemeanor, and one count of open container in violation of R.C. 4301.62, a minor
misdemeanor.
{¶4} Bralek subsequently filed a motion to suppress and at the hearing on the motion,
the parties stipulated that the only issue to be resolved was whether reasonable suspicion existed
to make the initial stop of the defendant’s vehicle. Following the hearing, the trial court denied
Bralek’s motion.
{¶5} Bralek pled no contest to each of the charges and the trial court found him guilty
on each count and sentenced him according to law.
{¶6} Bralek filed this timely appeal, raising one assignment of error for our review.
II.
Assignment of Error
The law enforcement officer that stopped [Bralek] in the matter [at] hand, lacked the necessary reasonable suspicion of criminal [activity] to make said stop, wherefore, his right to be free from unlawful search and seizure was violated per the Fourth Amendment of the United States Constitution.
{¶7} In his sole assignment of error, Bralek contends that the trial court erred by
denying his motion to suppress because Officer Myers lacked reasonable articulable suspicion to
stop him.
{¶8} Appellate review of a trial court’s ruling on a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When
considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore
in the best position to resolve factual questions and evaluate the credibility of witnesses.” State 3
v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, citing State v. Mills, 62 Ohio St.3d 357,
366 (1992). Accordingly, an appellate court must accept a trial court’s findings of fact when
they are supported by competent, credible evidence. Id. However, accepting those facts as true,
the appellate court must independently determine, without deference to the trial court’s
conclusion, whether those facts satisfy the applicable legal standard. Burnside at ¶ 8.
{¶9} The trial court determined that Officer Myers was in uniform, in a marked police
cruiser, and on routine patrol shortly after midnight on March 12, 2017. At that time, Officer
Myers’ attention was drawn to a vehicle proceeding southbound on Darrow Road when he saw it
weaving within its lane by nearly touching the double yellow lines in the center of the roadway
and then “abruptly” correcting until nearly touching the white line. The court found that Officer
Myers observed this weaving twice before he activated his dash-cam after the vehicle turned
westbound on Graham Road. The court further determined that the dash-cam recording showed
the vehicle, in response to the cruiser’s flashing lights, drift to the middle yellow line and
immediately correct to come close to striking the curb near the outside edge of the roadway
before coming to a stop. The court further determined that the dash-cam only has a one minute
look back recording after the activation of the cruiser’s overhead lights. Accordingly, the earlier
weaving described by Officer Myers was not recorded. The trial court concluded that “[w]hile
the taped transaction, in and of itself, would be insufficient to establish reasonable suspicion of
criminal activity, combined with the other observations of the officer in the slightly more than [a]
minute before the recording, the officer could have reasonably believed that driver impairment
was the cause of the irregular course of travel.”
{¶10} Upon review of the trial court’s findings and the record on appeal, we determine
that the trial court’s factual findings were supported by competent credible evidence. See 4
Roberts, at ¶ 100. Officer Myers was the only witness to testify at the suppression hearing.
Although the State played a recording containing footage from the cruiser’s dash cam, the
recording was not admitted into evidence. Nonetheless, Officer Myers did testify that he
observed Bralek’s vehicle weaving within its lane on two separate occasions before activating
the overhead lights on his cruiser.
{¶11} Having concluded that the trial court’s factual findings were supported by
competent credible evidence, we must now determine whether those facts satisfy the applicable
legal standards. See Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. The Fourth
Amendment to the United States Constitution, as applied to the states through the Fourteenth
Amendment, and Article I, Section 14 of the Ohio Constitution protect individuals from
unreasonable searches and seizures. The Supreme Court of the United States established the
basic standard for reviewing the propriety of a traffic stop through its holdings in Terry v. Ohio,
392 U.S. 1 (1968), and Delaware v. Prouse, 440 U.S. 648 (1979). Under the standard articulated
in these cases, “a law enforcement officer may stop a vehicle when the officer has a reasonable
suspicion, based on specific and articulable facts, that an occupant is or has been engaged in
criminal activity.” State v. Epling, 105 Ohio App.3d 663, 664 (9th Dist.1995). “Reasonable
suspicion is something less than probable cause.” Id., citing State v. VanScoder, 92 Ohio App.3d
853, 855 (9th Dist.1994). In addition, when “analyzing whether reasonable suspicion existed,
this Court looks to the facts available to the officer at the moment of the seizure or the search and
considers whether those facts would warrant a man of reasonable caution in the belief that the
action taken was appropriate.” (Internal citations and quotations omitted.) State v. Blair, 9th
Dist. Summit No. 24208, 2008-Ohio-6257, ¶ 5. Reasonable suspicion is based on the totality of
the circumstances. See United States v. Cortez, 449 U.S. 411, 417–418 (1981). Finally, any 5
violation of the traffic law provides the reasonable suspicion required for an officer to make an
investigatory stop. State v. Johnson, 9th Dist. Medina No. 03CA0127-M, 2004-Ohio-3409, ¶ 11,
citing Whren v. United States, 517 U.S. 806 (1996); State v. Wilhelm, 81 Ohio St.3d 444 (1998);
Dayton v. Erickson, 76 Ohio St.3d 3 (1996); see also State v. Barbee, 9th Dist. Lorain No.
07CA009183, 2008-Ohio-3587, ¶ 9
{¶12} Stow Codified Ordinance 331.42(B) states that “[n]o person shall operate a
vehicle in a weaving or zigzag course unless such irregular course is necessary for the safe
operation or in compliance with the law.” Notably, this ordinance does not require a driver to
operate a vehicle in a weaving or zigzag course over a marked traffic line in order to constitute a
violation. Rather, a violation of this ordinance only requires a driver to operate a vehicle on a
weaving or zigzag course without justification. See City of Twinsburg v. Lisch, 9th Dist. Summit
Nos. 19627 and 19628, 2000 Ohio App. LEXIS 382, 6-7 (Feb. 9, 2000), quoting State v.
Wetshtein, 9th Dist. Summit No. 19014, 1998 Ohio App. LEXIS 5272, 6 (Nov. 4, 1998)
(addressing similar ordinances from other municipalities). Therefore, we conclude that
“[b]ecause he observed that [Bralek] was presently in violation of a traffic ordinance, [Officer
Myers] had both a reasonable suspicion of criminal activity and probable cause to stop [Bralek]’s
vehicle.” Lisch at 10.
{¶13} Therefore, Bralek’s assignment of error is overruled.
III.
{¶14} Bralek’s assignment of error is overruled. The judgment of the Stow Municipal
Court is affirmed.
Judgment affirmed. 6
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Stow Municipal
Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER FOR THE COURT
HENSAL, J. TEODOSIO, J. CONCUR.
APPEARANCES:
MICHAEL T. CALLAHAN, Attorney at Law, for Appellant.
AMBER ZIBRITOSKY, Law Director, and BRENDAN MACKIN, Assistant Law Director, for Appellee.