[Cite as State v. Lewis, 2019-Ohio-3630.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 19 CA 000001 FRANK L. LEWIS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 17CR11-0295
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 9, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. McCONVILLE JOHN S. PYLE PROSECUTING ATTORNEY PUBLIC DEFENDER 117 East High Street, Suite 234 110 East High Street Mount Vernon, Ohio 43050 Mount Vernon, Ohio 43050 Knox County, Case No. 19 CA 000001 2
Wise, John, P. J.
{¶1} Defendant-Appellant Frank L. Lewis appeals his sentence entered in the
Knox County Common Pleas Court following a guilty plea to one count of Possession of
Drugs.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant procedural facts leading to this appeal are as follows.
{¶4} On November 21, 2017, the Knox County Grand Jury indicted Frank L.
Lucas on one count of Possession of Drugs, a felony of the third degree, in violation of
R.C. §2925.11(A).
{¶5} On April 16, 2018, Appellant, through counsel, filed a motion to suppress.
{¶6} On May 18, 2018, the trial court conducted a hearing on Appellant’s motion
to suppress.
{¶7} At the suppression hearing, the trial court heard testimony from Patrolman
Joshua Kirby of the Mount Vernon Police Department, who testified that on November
12, 2017, sometime after 1:00 a.m., he initiated a traffic stop on a maroon Cadillac
travelling on Howard Street in the City of Mount Vernon, Ohio. (T. at 12-14). The Cadillac
was being driven by Appellant Frank Lewis. (T. at 14). The speed limit on Howard Street
is 25 miles per hour. (T. at 12-17).
{¶8} Ptl. Kirby stated that before initiating the stop, he made two observations.
First, he visually estimated the speed of Mr. Lewis' vehicle at 30 miles per hour. (T. at
12). Ptl. Kirby explained that he had been trained in the visual estimation of vehicle speed
at the Ohio State Highway Patrol Academy in 2016. (T. at 5- 6). Ptl. Kirby also used the Knox County, Case No. 19 CA 000001 3
Python 3 radar unit in his cruiser to measure the Cadillac's speed at 29 miles per hour.
(T. at 13). Ptl. Kirby stated that pursuant to his training, he tracked the vehicle for four (4)
seconds with the radar unit, confirming the 29 mph speed. (Id.) Ptl. Kirby had likewise
been trained in the use of speed measuring devices at the OSP Academy. (T. at 5).
{¶9} Patrolman Kirby also testified that he knew about "several reports of drug
activity in and around" Appellant’s residence. (T. at 18). He testified that he had gotten
this information on various calls that he had handled as well as information from fellow
officers, including one of his shift supervisors, Corporal Young. Ptl. Kirby also knew that
Appellant was in the vehicle based on his prior observation of Appellant and the vehicle
at a Speedway station earlier. (T. at 17).
{¶10} When Ptl. Kirby pulled Appellant over, he requested assistance from Ptl.
Wheeler, a MVPD K9 officer, who arrived less than four minutes later. (T. at 18). He also
stated that it was his intention to issue Appellant a warning for his speed. (T. at 19). Ptl
Kirby testified "unless it's an excessive speed I'll issue a warning ticket first for a first
offense." (Id.)
{¶11} MVPD Patrolman Nicholas Myrda, who also responded to the scene,
testified that when he arrived Ptl. Wheeler was at the scene and performing a K9 sniff of
the vehicle. (T. at 33). After the K9 sniff, Appellant was discovered to be in possession
of 3.2 grams of methamphetamine, which exceeds the bulk amount. (Plea T. at 10).
{¶12} By Judgment Entry filed May 31, 2018, the trial court denied Appellant’s
motion to suppress.
{¶13} On October 31, 2018, Appellant entered a plea of no contest to the charge. Knox County, Case No. 19 CA 000001 4
{¶14} On January 22, 2019, at the sentencing hearing, the trial court sentenced
Appellant to a prison term of thirty (30) months.
{¶15} Appellant now appeals, raising the following Assignment of Error:
ASSIGNMENT OF ERROR
{¶16} “I. THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S
MOTION TO SUPPRESS, IN VIOLATION OF MR. LEWIS' RIGHTS UNDER THE
FORTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, §
14 OF THE OHIO CONSTITUTION BECAUSE THE ARRESTING OFFICER COULD
NOT POINT TO ANY SPECIFIC AND ARTICULABLE FACTS WHICH WOULD LEAD
HIM TO BELIEVE THAT THE APPELLANT WAS DRIVING IN A MANNER THAT
VIOLATED OHIO R.C. §4511.21 (A).”
I.
{¶17} In his sole Assignment of Error, Appellant argues the trial court erred in
denying his motion to suppress. We disagree.
{¶1} 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.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third 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 the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437
N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry Knox County, Case No. 19 CA 000001 5
(1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d
623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d
726. The United States Supreme Court has held that as a general matter determinations
of reasonable suspicion and probable cause should be reviewed de novo on appeal. See
Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d
911.
{¶2} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. Terry v. Ohio (1968), 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d
1271.
{¶3} As we have previously recognized, “[t]he Ohio Supreme Court has
emphasized that probable cause is not required to make a traffic stop; rather the standard
is reasonable and articulable suspicion.” State v. Lewis, 5th Dist. Licking No. 18-CA-17,
2018-Ohio-3681, ¶ 21, citing State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894
N.E.2d 1204, ¶ 23. Concisely stated, “[u]nder Terry [supra], police officers may briefly
stop and/or temporarily detain individuals in order to investigate possible criminal activity
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[Cite as State v. Lewis, 2019-Ohio-3630.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 19 CA 000001 FRANK L. LEWIS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 17CR11-0295
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 9, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. McCONVILLE JOHN S. PYLE PROSECUTING ATTORNEY PUBLIC DEFENDER 117 East High Street, Suite 234 110 East High Street Mount Vernon, Ohio 43050 Mount Vernon, Ohio 43050 Knox County, Case No. 19 CA 000001 2
Wise, John, P. J.
{¶1} Defendant-Appellant Frank L. Lewis appeals his sentence entered in the
Knox County Common Pleas Court following a guilty plea to one count of Possession of
Drugs.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant procedural facts leading to this appeal are as follows.
{¶4} On November 21, 2017, the Knox County Grand Jury indicted Frank L.
Lucas on one count of Possession of Drugs, a felony of the third degree, in violation of
R.C. §2925.11(A).
{¶5} On April 16, 2018, Appellant, through counsel, filed a motion to suppress.
{¶6} On May 18, 2018, the trial court conducted a hearing on Appellant’s motion
to suppress.
{¶7} At the suppression hearing, the trial court heard testimony from Patrolman
Joshua Kirby of the Mount Vernon Police Department, who testified that on November
12, 2017, sometime after 1:00 a.m., he initiated a traffic stop on a maroon Cadillac
travelling on Howard Street in the City of Mount Vernon, Ohio. (T. at 12-14). The Cadillac
was being driven by Appellant Frank Lewis. (T. at 14). The speed limit on Howard Street
is 25 miles per hour. (T. at 12-17).
{¶8} Ptl. Kirby stated that before initiating the stop, he made two observations.
First, he visually estimated the speed of Mr. Lewis' vehicle at 30 miles per hour. (T. at
12). Ptl. Kirby explained that he had been trained in the visual estimation of vehicle speed
at the Ohio State Highway Patrol Academy in 2016. (T. at 5- 6). Ptl. Kirby also used the Knox County, Case No. 19 CA 000001 3
Python 3 radar unit in his cruiser to measure the Cadillac's speed at 29 miles per hour.
(T. at 13). Ptl. Kirby stated that pursuant to his training, he tracked the vehicle for four (4)
seconds with the radar unit, confirming the 29 mph speed. (Id.) Ptl. Kirby had likewise
been trained in the use of speed measuring devices at the OSP Academy. (T. at 5).
{¶9} Patrolman Kirby also testified that he knew about "several reports of drug
activity in and around" Appellant’s residence. (T. at 18). He testified that he had gotten
this information on various calls that he had handled as well as information from fellow
officers, including one of his shift supervisors, Corporal Young. Ptl. Kirby also knew that
Appellant was in the vehicle based on his prior observation of Appellant and the vehicle
at a Speedway station earlier. (T. at 17).
{¶10} When Ptl. Kirby pulled Appellant over, he requested assistance from Ptl.
Wheeler, a MVPD K9 officer, who arrived less than four minutes later. (T. at 18). He also
stated that it was his intention to issue Appellant a warning for his speed. (T. at 19). Ptl
Kirby testified "unless it's an excessive speed I'll issue a warning ticket first for a first
offense." (Id.)
{¶11} MVPD Patrolman Nicholas Myrda, who also responded to the scene,
testified that when he arrived Ptl. Wheeler was at the scene and performing a K9 sniff of
the vehicle. (T. at 33). After the K9 sniff, Appellant was discovered to be in possession
of 3.2 grams of methamphetamine, which exceeds the bulk amount. (Plea T. at 10).
{¶12} By Judgment Entry filed May 31, 2018, the trial court denied Appellant’s
motion to suppress.
{¶13} On October 31, 2018, Appellant entered a plea of no contest to the charge. Knox County, Case No. 19 CA 000001 4
{¶14} On January 22, 2019, at the sentencing hearing, the trial court sentenced
Appellant to a prison term of thirty (30) months.
{¶15} Appellant now appeals, raising the following Assignment of Error:
ASSIGNMENT OF ERROR
{¶16} “I. THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S
MOTION TO SUPPRESS, IN VIOLATION OF MR. LEWIS' RIGHTS UNDER THE
FORTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, §
14 OF THE OHIO CONSTITUTION BECAUSE THE ARRESTING OFFICER COULD
NOT POINT TO ANY SPECIFIC AND ARTICULABLE FACTS WHICH WOULD LEAD
HIM TO BELIEVE THAT THE APPELLANT WAS DRIVING IN A MANNER THAT
VIOLATED OHIO R.C. §4511.21 (A).”
I.
{¶17} In his sole Assignment of Error, Appellant argues the trial court erred in
denying his motion to suppress. We disagree.
{¶1} 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.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third 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 the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437
N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry Knox County, Case No. 19 CA 000001 5
(1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d
623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d
726. The United States Supreme Court has held that as a general matter determinations
of reasonable suspicion and probable cause should be reviewed de novo on appeal. See
Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d
911.
{¶2} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. Terry v. Ohio (1968), 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d
1271.
{¶3} As we have previously recognized, “[t]he Ohio Supreme Court has
emphasized that probable cause is not required to make a traffic stop; rather the standard
is reasonable and articulable suspicion.” State v. Lewis, 5th Dist. Licking No. 18-CA-17,
2018-Ohio-3681, ¶ 21, citing State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894
N.E.2d 1204, ¶ 23. Concisely stated, “[u]nder Terry [supra], police officers may briefly
stop and/or temporarily detain individuals in order to investigate possible criminal activity
if the officers have a reasonable, articulable suspicion that criminal activity may be afoot,
including a minor traffic violation.” State v. Saunders, 5th Dist. Muskingum No. CT2017-
0052, 2018-Ohio-2624, ¶ 27, quoting State v. Swift, 2nd Dist. Montgomery No. 27036,
2016–Ohio–8191, ¶ 10 (internal quotations omitted).
{¶4} Reasonable suspicion constitutes something less than probable cause.
State v. Logan, 5th Dist. Richland No. 07–CA–56, 2008–Ohio–2969, ¶ 15, citing State v. Knox County, Case No. 19 CA 000001 6
Carlson (1995), 102 Ohio App.3d 585, 590. A single suspected traffic violation provides
reasonable suspicion for an officer to stop a vehicle. See State v. Panaro, 9th Dist. Medina
No. 16CA0067-M, 2018-Ohio-1005, 108 N.E.3d 1187, ¶ 15 (citations omitted).
{¶18} In the instant case, the trial court found Ptl. Kirby had reasonable, articulable
suspicion to stop Appellant based on his visual estimation of Appellant doing 30 mph and
the radar-measured speed of 29 mph in a 25 mph speed zone.
{¶19} Appellant herein argues that the State was also required to show that
Appellant was driving unsafely because the speeding violation occurred on a city street
where driving in excess of the posted speed limit was prima facia violation and not a per
se violation.
{¶20} In rejecting such argument, the Ohio Supreme Court noted, “the question
of whether appellant might have a possible defense to a charge of speeding is irrelevant
in our analysis of whether an officer has a reasonable and articulable suspicion to initiate
a traffic stop. An officer is not required to determine whether someone who has been
observed committing a crime might have a legal defense to the charge.” State v. Mays,
119 Ohio St.3d 406, 2008-Ohio-4538 at ¶ 23.
{¶21} Further, it is well-established that an officer's reasonable articulable
suspicion does not require proof beyond a reasonable doubt that the defendant's conduct
has satisfied the elements of the offense. State v. Willis, 5th Dist. Licking No. 14 CA 103,
2015-Ohio-3739, ¶ 25
{¶22} We accept the trial court's conclusion that Appellant's violation of the traffic
laws gave Ptl. Kirby reasonable suspicion to stop Appellant's vehicle as the factual
findings made by the trial court are supported by competent and credible evidence. Knox County, Case No. 19 CA 000001 7
{¶23} Appellant’s assignment of error is overruled.
{¶24} For the reasons stated in the foregoing opinion, the decision of the Knox
Count Court of Common Pleas is affirmed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/d 0827