State v. Brown

916 N.E.2d 1138, 183 Ohio App. 3d 337
CourtOhio Court of Appeals
DecidedJuly 31, 2009
DocketNo. WD-07-077
StatusPublished
Cited by16 cases

This text of 916 N.E.2d 1138 (State v. Brown) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 916 N.E.2d 1138, 183 Ohio App. 3d 337 (Ohio Ct. App. 2009).

Opinion

Singer, Judge.

{¶ 1} Appellant, Jeremy Brown, appeals from his conviction and sentence for trafficking marijuana and possession of marijuana in the Wood County Court of Common Pleas. Appellant sets forth the following assignments of error:

{¶ 2} “I. The trial court erred to the prejudice of defendant/appellant in failing to suppress the observations of, and evidence obtained by, police as a result of the unconstitutional stop of the appellant’s vehicle. The stop was unconstitutional as the office[r] did not have a reasonable, articulable basis to stop the vehicle under the Fourth Amendment rights under the United States Constitution and Article 1 Section 14 of the Ohio Constitution.

{¶ 3} “II. The trial court erred in denying defendant/appellant’s motion to suppress inasmuch as defendant/appellant was unreasonably detained by investigating authorities when it was clear to the investigating officers, upon initially stopping the defendant/appellant that no crime had occurred and that there was no other legitimate reason to detain defendant/appellant.

{¶4} “III. The offences [sic] charged in the indictment and to which the defendant was found guilty were allied offenses of similar import and the sentences should have been merged pursuant to O.R.C. 2941.25.”

{¶ 5} In his first assignment of error, appellant claims that the trial court committed prejudicial error in failing to suppress all evidence obtained as a result of the unconstitutional stop of appellant’s vehicle.

{¶ 6} A suppression hearing in this case commenced on June 8, 2007. Sergeant John M. Gazarek of the Perrysburg Township Police Department testified that at approximately 8:00 p.m. on March 29, 2007, he was parked at a median on 1-75 when he observed and decided to follow a blue Dodge Grand Caravan with Texas tags traveling north. Sergeant Gazarek testified that he became suspicious of this vehicle upon viewing the driver, a white female, staring straight ahead and driving with her hands placed on the steering wheel in the eight and four position, even though he repeatedly testified that driving in this manner is safe and consistent with what is taught in a driver’s education course. Gazarek [340]*340testified that when he caught up to the vehicle, he ran the vehicle’s tag and discovered the vehicle had been rented in Texas. He also noticed that there were two children seated in the back. Gazarek testified that he then sped up to pass the vehicle, but when he pulled up alongside the driver he viewed the appellant, a black male, for the first time and noticed that they were both staring straight ahead. Gazarek testified that he found this behavior suspicious so he reduced his speed and followed them.

{¶ 7} Gazarek observed that the vehicle traveled in the far right lane at a speed of 60 m.p.h. in a 65 m.p.h. zone for approximately the first two miles, and then reduced its speed upon approaching the rear of a semi tractor-trailer. Gazarek testified that the semi was traveling at a speed of approximately 55 m.p.h., and that he was following the vehicle in the center lane at a speed of 60 m.p.h. The vehicle traveled behind the semi for approximately three miles. When the vehicle attempted to change lanes, Gazarek initiated the stop. Gazarek testified that the vehicle was traveling one-and-one-half car lengths behind the semi, and he stopped the vehicle for following too closely in violation of R.C. 4511.34. Gazarek testified that based on his training and experience, he has learned that following too closely is a common precursor to traffic accidents.

{¶ 8} In reviewing a motion to suppress “an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence.” State v. Montoya (Mar. 6, 1998), 6th Dist. No. L-97-1226, 1998 WL 114325, citing State v. Guysinger (1993), 86 Ohio App.3d 592, 594, 621 N.E.2d 726. “[T]he appellate court must then independently determine as a matter of law, without deferring to the trial court’s conclusions, whether the facts meet the applicable legal standard.” Id., citing State v. Klein (1991), 73 Ohio App.3d 486, 488, 597 N.E.2d 1141.

{¶ 9} The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. State v. Meza, 6th Dist. No. L-03-1223, 2005-Ohio-1221, 2005 WL 635028, ¶ 18. “A seizure occurs when police restrain an individual’s freedom for an investigatory stop, even if it is only a brief detention short of a traditional arrest.” Id., citing Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271. “A police officer may reasonably conduct an investigatory stop of an individual if the officer can point to specific and articulable facts which, under the totality of the circumstances, warrant a reasonable belief that criminal behavior has occurred or is imminent.” Meza at ¶ 18.

{¶ 10} The Supreme Court of Ohio has set out a standard for determining when a stop is constitutional. With respect to the issue of pretext stops, recent case law has held that a stop and detention is not unreasonable under the Fourth [341]*341Amendment when a police officer has probable cause to believe that a traffic violation has occurred, even though the officer was motivated to make the stop by a belief that the violator might be engaged in other, more serious criminal activity. Dayton v. Erickson (1996), 76 Ohio St.3d 3, 665 N.E.2d 1091; Whren v. United States (1996), 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89.

{¶ 11} Here, Gazarek stopped appellant after he determined that appellant’s vehicle was following too closely to the semi, a traffic offense under R.C. 4511.34. Gazarek estimated the distance between the two vehicles to be one and one-half car lengths, and testified in the court below that as a general rule a driver should travel approximately one car length for every ten miles per hour of speed to maintain a safe distance from the vehicle in front of him. Therefore, we must conclude that Gazarek had probable cause to believe that a traffic violation had occurred and probable cause to make the traffic stop.

{¶ 12} Accordingly, we find that the trial court properly denied the motion to suppress on the basis that the stop was unconstitutional. Therefore, appellant’s first assignment of error is not well taken.

{¶ 13} In his second assignment of error, appellant asserts that the trial court committed prejudicial error in failing to suppress all evidence obtained as a result of the unreasonable detainment of appellant. We agree.

{¶ 14} Gazarek testified that when he approached the vehicle, he asked the driver for her license and removed her from the vehicle. Standing at the rear of the vehicle, Gazarek asked the driver where she and her passenger were going and the reason for their trip.

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Cite This Page — Counsel Stack

Bluebook (online)
916 N.E.2d 1138, 183 Ohio App. 3d 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-ohioctapp-2009.