[Cite as State v. Houck, 2011-Ohio-6359.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs- Case No. 11-CA-49 GARY L. HOUCK
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 11-TR-C-00619
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 8, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
J. MICHAEL KING ROBERT E. CALESARIC Assistant Prosecutor 35 South Park Place, Suite 150 City of Pataskala Newark, Ohio 43055 35 South Park Place, Suite 35 P.O. Box 4010 Newark, Ohio 43058-4010 Licking County, Case No. 11-CA-49 2
Hoffman, P.J.
{¶ 1} Plaintiff-Appellant the State of Ohio appeals the April 21, 2011 Judgment
Entry of the Licking County Municipal Court granting the motion to suppress evidence
filed by Defendant-appellee Gary L. Houck.
STATEMENT OF THE CASE AND FACTS
{¶ 2} On January 23, 2011, Appellee Gary Houck was charged with OVI, in
violation of R.C. 4511.19(A)(1)(a) and (d) and a marked lanes violation, in violation of
R.C. 4511.33.
{¶ 3} On February 17, 2011, Appellee filed a motion to suppress the results of
his breath test. On March 3, 2011, filed a supplemental motion to suppress challenging
the underlying traffic stop.
{¶ 4} At the suppression hearing, Ohio State Highway Patrol Trooper Lanning
testified to observing Appellee’s vehicle pull from a side street onto State Route 16 in
the City of Pataskala, Licking County, Ohio. He noticed the vehicle travelled under the
posted speed limit, and swerved back and forth within its lane of travel. He testified at
one point the vehicle crossed the yellow center line, at which point he then proceeded to
conduct a traffic stop. Trooper Lanning’s vehicle was equipped with a video recording
device mounted next to the rear view mirror. Trooper Lanning testified the picture quality
is not very good, and not “nearly as good as the human eye.” The video does not
demonstrate Appellee’s vehicle crossing the center line.
{¶ 5} Via Judgment Entry of April 21, 2011, the trial court granted the motion to
suppress finding Appellee did not commit a marked lanes violation.
{¶ 6} The State of Ohio now appeals, assigning as error: Licking County, Case No. 11-CA-49 3
{¶ 7} “THE TRIAL COURT ERRED WHEN IT GRANTED THE DEFENDANT-
APPELLEE’S MOTION TO SUPPRESS.”
{¶ 8} 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 (1982),
1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger (1993),
86 Ohio App.3d 592. 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 (1993), 86 Ohio
App.3d 37. 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 (1994), 95
Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623; Guysinger As the United
States Supreme Court held in Ornelas v. U.S. (1996), 116 S.Ct. 1657, 1663, “... as a
general matter determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal.”
{¶ 9} Appellee asserted in the motion to suppress the officer lacked a
reasonable articulable suspicion to initiate a traffic stop herein. Licking County, Case No. 11-CA-49 4
{¶ 10} In Dayton v. Erickson (1996), 76 Ohio St.3d 3, 665 N.E.2d 1091, the
Supreme Court of Ohio followed the decision of the United States Court of Appeals for
the Sixth Circuit in United States v. Ferguson (C.A.6, 1993), 8 F.3d 385, and held:
{¶ 11} “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.”
{¶ 12} In this case, the video tape introduced at trial affirmatively demonstrates
Appellee’s vehicle did not appear to swerve back and forth and does not appear to drive
left of center. The video reveals the roadway is wet, snowy and slushy in spots and the
berm is covered with snow. At one point in the video, Appellee approaches a
pedestrian walking toward his vehicle on the south berm in the snow and slush, and
Appellee could have acted as a reasonable driver and gave way to the left for the safety
of the pedestrian. The trooper admits seeing the pedestrian on the video, but denies
seeing him prior to the stop.
{¶ 13} In State v. Lloyd (1998), 126 Ohio App.3d 95, the Seventh District
addressed the issue raised herein, holding:
{¶ 14} “It is established law that ‘an officer does not need probable cause to
make a traffic stop; reasonable suspicion based on specific and articulable facts that a
traffic law is being violated or that criminal activity is occurring is sufficient to meet
constitutional requirements.’ In re Eric W., Alleged Delinquent Child (1996), 113 Ohio
App.3d 367, 369–370, 680 N.E.2d 1275, 1276, citing State v. Wireman (1993), 86 Ohio Licking County, Case No. 11-CA-49 5
App.3d 451, 453, 621 N.E.2d 542, 543–544; see, also, Delaware v. Prouse (1979), 440
U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673–674.
{¶ 15} “The crux of Appellee's argument is that the stop at issue was pretextual.
[Citation omitted.] However, generally, an officer's observation of a traffic violation or
erratic driving justifies an investigative stop. State v. Johnson (1995), 105 Ohio App.3d
37, 40, 663 N.E.2d 675, 677, citing State v. Lowman (1992), 82 Ohio App.3d 831, 837,
613 N.E.2d 692, 695–696, and State v. Hilleary (May 24, 1989), Miami App. No. 88–
CA–5, unreported, 1989 WL 55637. The Supreme Court of Ohio has held that the
validity of an investigative stop must be viewed in light of the totality of the surrounding
circumstances. State v. Bobo (1988), 37 Ohio St.3d 177, 178, 524 N.E.2d 489, 490–
491.
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[Cite as State v. Houck, 2011-Ohio-6359.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs- Case No. 11-CA-49 GARY L. HOUCK
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 11-TR-C-00619
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 8, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
J. MICHAEL KING ROBERT E. CALESARIC Assistant Prosecutor 35 South Park Place, Suite 150 City of Pataskala Newark, Ohio 43055 35 South Park Place, Suite 35 P.O. Box 4010 Newark, Ohio 43058-4010 Licking County, Case No. 11-CA-49 2
Hoffman, P.J.
{¶ 1} Plaintiff-Appellant the State of Ohio appeals the April 21, 2011 Judgment
Entry of the Licking County Municipal Court granting the motion to suppress evidence
filed by Defendant-appellee Gary L. Houck.
STATEMENT OF THE CASE AND FACTS
{¶ 2} On January 23, 2011, Appellee Gary Houck was charged with OVI, in
violation of R.C. 4511.19(A)(1)(a) and (d) and a marked lanes violation, in violation of
R.C. 4511.33.
{¶ 3} On February 17, 2011, Appellee filed a motion to suppress the results of
his breath test. On March 3, 2011, filed a supplemental motion to suppress challenging
the underlying traffic stop.
{¶ 4} At the suppression hearing, Ohio State Highway Patrol Trooper Lanning
testified to observing Appellee’s vehicle pull from a side street onto State Route 16 in
the City of Pataskala, Licking County, Ohio. He noticed the vehicle travelled under the
posted speed limit, and swerved back and forth within its lane of travel. He testified at
one point the vehicle crossed the yellow center line, at which point he then proceeded to
conduct a traffic stop. Trooper Lanning’s vehicle was equipped with a video recording
device mounted next to the rear view mirror. Trooper Lanning testified the picture quality
is not very good, and not “nearly as good as the human eye.” The video does not
demonstrate Appellee’s vehicle crossing the center line.
{¶ 5} Via Judgment Entry of April 21, 2011, the trial court granted the motion to
suppress finding Appellee did not commit a marked lanes violation.
{¶ 6} The State of Ohio now appeals, assigning as error: Licking County, Case No. 11-CA-49 3
{¶ 7} “THE TRIAL COURT ERRED WHEN IT GRANTED THE DEFENDANT-
APPELLEE’S MOTION TO SUPPRESS.”
{¶ 8} 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 (1982),
1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger (1993),
86 Ohio App.3d 592. 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 (1993), 86 Ohio
App.3d 37. 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 (1994), 95
Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623; Guysinger As the United
States Supreme Court held in Ornelas v. U.S. (1996), 116 S.Ct. 1657, 1663, “... as a
general matter determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal.”
{¶ 9} Appellee asserted in the motion to suppress the officer lacked a
reasonable articulable suspicion to initiate a traffic stop herein. Licking County, Case No. 11-CA-49 4
{¶ 10} In Dayton v. Erickson (1996), 76 Ohio St.3d 3, 665 N.E.2d 1091, the
Supreme Court of Ohio followed the decision of the United States Court of Appeals for
the Sixth Circuit in United States v. Ferguson (C.A.6, 1993), 8 F.3d 385, and held:
{¶ 11} “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.”
{¶ 12} In this case, the video tape introduced at trial affirmatively demonstrates
Appellee’s vehicle did not appear to swerve back and forth and does not appear to drive
left of center. The video reveals the roadway is wet, snowy and slushy in spots and the
berm is covered with snow. At one point in the video, Appellee approaches a
pedestrian walking toward his vehicle on the south berm in the snow and slush, and
Appellee could have acted as a reasonable driver and gave way to the left for the safety
of the pedestrian. The trooper admits seeing the pedestrian on the video, but denies
seeing him prior to the stop.
{¶ 13} In State v. Lloyd (1998), 126 Ohio App.3d 95, the Seventh District
addressed the issue raised herein, holding:
{¶ 14} “It is established law that ‘an officer does not need probable cause to
make a traffic stop; reasonable suspicion based on specific and articulable facts that a
traffic law is being violated or that criminal activity is occurring is sufficient to meet
constitutional requirements.’ In re Eric W., Alleged Delinquent Child (1996), 113 Ohio
App.3d 367, 369–370, 680 N.E.2d 1275, 1276, citing State v. Wireman (1993), 86 Ohio Licking County, Case No. 11-CA-49 5
App.3d 451, 453, 621 N.E.2d 542, 543–544; see, also, Delaware v. Prouse (1979), 440
U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673–674.
{¶ 15} “The crux of Appellee's argument is that the stop at issue was pretextual.
[Citation omitted.] However, generally, an officer's observation of a traffic violation or
erratic driving justifies an investigative stop. State v. Johnson (1995), 105 Ohio App.3d
37, 40, 663 N.E.2d 675, 677, citing State v. Lowman (1992), 82 Ohio App.3d 831, 837,
613 N.E.2d 692, 695–696, and State v. Hilleary (May 24, 1989), Miami App. No. 88–
CA–5, unreported, 1989 WL 55637. The Supreme Court of Ohio has held that the
validity of an investigative stop must be viewed in light of the totality of the surrounding
circumstances. State v. Bobo (1988), 37 Ohio St.3d 177, 178, 524 N.E.2d 489, 490–
491. Moreover, in reviewing a determination as to the reasonableness of a stop, an
appellate court must give due deference to the police officer's training and experience.
State v. Andrews (1991), 57 Ohio St.3d 86, 88, 565 N.E.2d 1271.
{¶ 16} “In Ohio, when a driver commits only a de minimis marked-lanes violation,
there must be some other evidence to suggest impairment before an officer is justified
in stopping the vehicle. See State v. Gullett (1992), 78 Ohio App.3d 138, 145, 604
N.E.2d 176, 180–181. In Gullett, the Fourth District Court of Appeals concluded that the
mere crossing of an edge line on two occasions did not constitutionally justify the stop.
Similarly, this court has held that where there is no evidence of erratic driving, ‘other
than what can be considered as insubstantial drifts across the lines,’ there is not
sufficient evidence to justify an investigative stop. State v. Drogi (1994), 96 Ohio App.3d
466, 469, 645 N.E.2d 153, 155. However, as discussed above, under certain
circumstances, an incident or incidents of crossing lines in the road may give a police Licking County, Case No. 11-CA-49 6
officer reasonable suspicion to stop a vehicle, depending on those factors that indicate
the severity and extent of such conduct. Id.; State v. Johnson, 105 Ohio App.3d at 40,
663 N.E.2d at 677.”
{¶ 17} When reviewing the traffic stop in the case sub judice under the totality of
the circumstances, we agree with the trial court the officer did not have a reasonable,
articulable suspicion upon which to base the initial stop of Appellee. Accordingly,
Appellant’s sole assignment of error is overruled.
{¶ 18} The April 21, 2011 Judgment Entry of the Licking County Municipal Court
is affirmed.
By: Hoffman, P.J.
Delaney, J. concurs,
Farmer, J. dissents
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
___________________________________ HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY Licking County, Case No. 11-CA-49 7
Farmer, J., dissents
{¶19} I respectfully dissent from the majority's view that Trooper Lanning lacked
a reasonable articulable suspicion to engage in the traffic stop.
{¶20} Although there may be an alternative reason for appellant swerving,
Trooper Lanning testified he did not observe a pedestrian on the side of the road. The
test is not what we now know, but what the trooper believed at the time that led him to
make the stop.
{¶21} This test is subjective; however, the existence of another reason for the
erratic driving does not negate Trooper Lanning's opinion. Because the stop was
predicated on Trooper Lanning’s observation of a de minimis violation, I would find a
reasonable suspicion of criminal activity was established.
{¶22} I would grant the assignment of error and remand the matter to the trial
court for further disposition.
s/ Sheila G. Farmer _______________ HON. SHEILA G. FARMER Licking County, Case No. 11-CA-49 8
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : GARY L. HOUCK : : Defendant-Appellee : Case No. 11-CA-49
For the reason stated in our accompanying Opinion, the April 21, 2011 Judgment
Entry of the Licking County Municipal Court is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY