State v. Payne

[Cite as State v. Payne, 2012-Ohio-4696.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 11CA3272
:
vs. : Released: September 25, 2012
:
RODNEY W. PAYNE, II, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Stephen K. Sesser, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, Chillicothe, Ohio,
for Appellee.
_____________________________________________________________

McFarland, J.:

{¶1} Appellant, Rodney W. Payne, II, appeals his conviction in the

Ross County Court of Common Pleas after he pled no contest to one count

of possession of cocaine. Appellant’s appellate counsel has advised this

Court that, after reviewing the record, he cannot find a meritorious claim for

appeal. As a result, Appellant’s counsel has moved to withdraw under

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). We find no merit

to the sole assignment of error and further, after independently reviewing the

record, find no additional error prejudicial to the Appellant’s rights in the
Ross App. No. 11CA3272 2

trial court proceedings. The motion of counsel for Appellant requesting to

withdraw as counsel is granted, and this appeal is dismissed for the reason

that it is wholly frivolous.

FACTS

{¶2} On January 21, 2011, Appellant was indicted on one count of

possession of cocaine, a violation of R.C. 2925.11, a felony of the second

degree. On February 24, 2011, Appellant filed a motion to suppress

evidence allegedly obtained pursuant to unlawful stop and detention. The

motion to suppress came on for hearing on March 16, 2011.

{¶3} At the suppression hearing, the only witness was Trooper

Michael Wilson on behalf of the State of Ohio. Trooper Wilson testified that

he was trained at the Ohio State Highway Patrol Academy and has been

employed as a road trooper with the Ohio State Highway Patrol since 2004.

At the Academy, he successfully completed a technical crash investigator

program.

{¶4} On June 4, 2010, he initially observed Appellant on eastbound

U.S. 35 in Ross County, Ohio, near the State Route 50 “split.” Appellant

was driving a Chevrolet HHR (body style similar to a PT Cruiser), a four-

door vehicle with a rear hatch and dark tinted windows. Trooper Wilson

recalled the road was dry and traffic was light to moderate. Appellant was in
Ross App. No. 11CA3272 3

the right hand lane on U.S. 35 traveling three-lengths behind another

vehicle, at 56 miles per hour. Trooper Wilson determined the speed of

Appellant’s vehicle by activating the front radar unit which demonstrated the

trooper’s vehicle was 56 miles per hour as he paced Appellant’s vehicle. He

further testified he was trained as to the formula1 for calculating a

“following too close” violation, but the general rule of thumb was “one car

length for every ten miles an hour.” Based on his training and experience,

he opined that under these conditions, traveling 56 miles per hour at three

car lengths between vehicles, it would be “pretty hard” to avoid a collision

by simply applying the brakes if the lead vehicle stopped.

{¶5} Trooper Wilson further testified that as Appellant and he

approached the Route 50 split from U.S. 35, there was a roll-back tow truck

on the right edge berm with a vehicle being loaded onto the tow truck. The

driver was standing outside of the truck, next to the white fog line. The

yellow flashing strobe lights on top of the truck were activated. And, the

trooper noted Appellant failed to slow down or move over to avoid the tow

truck. Appellant continued to maintain the right lane. The trooper also

testified there were no other vehicles in the way which would have

1
He testified to the formula for calculating a “following too close” violation as such: “ [it] is feet per
second travel due to the vehicle speed of say fifty-six miles per hour, the distance from the second vehicle
to the lead vehicle and there’s a math equation that equates to how many feet per second to traveling.”
Ross App. No. 11CA3272 4

prevented Appellant from changing lanes upon seeing the tow truck and

driver.

{¶6} After observing the two violations, Trooper Wilson decided to

stop the vehicle. He called in the license plate to the dispatch and was

advised that the vehicle was a rental. Once he found a safer location, he

activated his lights and Appellant moved his vehicle to the right berm.

Trooper Wilson testified that his vehicle was equipped with a camera system

which was working correctly on the date of Appellant’s stop. However, the

violations were not captured on video.

{¶7} Trooper Wilson also testified when he approached the passenger

side, Appellant identified himself and asked why he had been stopped.

Appellant handed the trooper an overdue Enterprise rental agreement. He

further testified Appellant was nervous, speaking fast, and overly talkative.

Appellant explained he earlier departed from Columbus, Ohio and was on

his way to Huntington, West Virginia to see his sick grandmother. He also

indicated his own vehicle was “in the shop.” At this point, Trooper Wilson

radioed for Trooper Mikesh to come to the scene. Trooper Wilson testified

he radioed for Trooper Mikesh 40-45 seconds after the stop occurred.

{¶8} Trooper Wilson requested Appellant exit the vehicle because he

knew Trooper Mikesh was on her way to do a canine search. Appellant
Ross App. No. 11CA3272 5

asked the trooper to turn off the ignition. While doing so, Trooper Wilson

saw debris of green leafy substance which he believed to be marijuana in the

center console. Trooper Wilson then Mirandized Appellant. He advised

Appellant the vehicle was going to be searched and requested and performed

a pat-down search. Trooper Wilson and Trooper Mikesh searched the

vehicle. Trooper Mikesh conducted a dog sniff and informed Trooper

Wilson that the canine alerted on the left side of the vehicle. Trooper

Wilson searched that area a few minutes, opened the rear hatch, and located

a suitcase which contained men’s shoes and white bags of powder appearing

to be cocaine.

{¶9} Trooper Wilson testified it took him 45 minutes to investigate

the discrepancy in the rental agreement. He summarized the indicators of

criminal activity he observed as (1) the overdue rental car, (2) the violation

of “following too closely,” (3) Appellant’s nervousness, and (4) the trip from

Columbus to Huntington. Trooper Wilson suspected drug activity.

{¶10} The trial court denied the motion to suppress on the record on

the suppression hearing date.2 On April 5, 2011, the court accepted

Appellant’s plea of no contest. On August 8, 2011, the court’s judgment

entry of sentence was journalized.

2
The Ross County Common Pleas docket sheet does not reflect that any entry denying the motion to
suppress was filed in this matter.
Ross App. No. 11CA3272 6

{¶11} This appeal is timely filed. We have allowed Appellant

sufficient time to respond to counsel’s brief. To date, no response has been

received.

ANDERS BRIEF

{¶12} Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396

(1967), counsel may ask permission to withdraw from a case when counsel

has conscientiously examined the record, can discern no meritorious claims

for appeal, and has determined the case to be wholly frivolous. Id. at 744;

State v. Adkins, 4th Dist. No. 03CA27, 2004-Ohio-3627, ¶8. Counsel’s

request to withdraw must be accompanied with a brief identifying anything

in the record that could arguably support the client’s appeal. Anders at 744;

Adkins at ¶8. Further, counsel must provide the defendant with a copy of the

brief and allow sufficient time for the defendant to raise any other issues, if

the defendant chooses to. Id.

{¶13} Once counsel has satisfied these requirements, the appellate

court must conduct a full examination of the trial court proceedings to

determine if meritorious issues exist. If the appellate court determines that

the appeal is frivolous, it may grant counsel’s request to withdraw and

address the merits of the case without affording the appellant the assistance

of counsel. Id. If, however, the court finds the existence of meritorious
Ross App. No. 11CA3272 7

issues, it must afford the appellant assistance of counsel before deciding the

merits of the case. Anders at 744; State v. Duran, 4th Dist. No. 06CA2919,

2007-Ohio-2743, ¶7.

{¶14} In the current action, Appellant’s counsel advises that the

appeal is wholly frivolous and has asked permission to withdraw. Pursuant

to Anders, counsel has filed a brief raising one potential assignment of error

for this Court’s review.

POTENTIAL ASSIGNMENT OF ERROR

I. THE TRIAL COURT ERRED WHEN IT DENIED PAYNE’S
MOTION TO SUPPRESS.

LEGAL ANALYSIS

{¶15} In his sole assignment of error, Appellant contends that the trial

court erred when the motion to suppress was overruled. Our review of a

decision on a motion to suppress “presents mixed question of law and fact.”

State v. McNamara, 124 Ohio App.3d 706, 710, 707 N.E.2d 539 (4th

Dist.1997) citing United States v. Martinez (C.A. 11, 1992), 949 F.2d 1117,

1119. At a suppression hearing, the trial court is in the best position to

evaluate witness credibility. State v. Dunlap, 73 Ohio St.3d 308, 314, 652

N.E.2d 988 (1995). Accordingly, we must uphold the trial court’s findings of

fact if competent, credible evidence in the record supports them. Id. We
Ross App. No. 11CA3272 8

then conduct a de novo review of the trial court’s application of the law to

the facts. State v. Anderson, 100 Ohio App.3d 688, 691, 654 N.E.2d 1034

(4th Dist.1995); State v. Fields, 4th Dist. No. 99CA11, WL1125250 (Nov.

29, 1999).

{¶16} Specifically, Appellant contends that there are issues as to (1)

whether or not Trooper Wilson had probable cause to initiate a traffic stop of

the vehicle Payne was driving, and (2) whether or not Trooper Wilson

exceeded the scope of the stop when he did not allow Payne to leave after

issuing the ticket for violations of R.C. 4511.34 and R.C. 4511.213. For the

reasons which follow, we disagree. We therefore affirm the trial court’s

ruling on Appellant’s motion to suppress.

{¶17} The Fourth Amendment to the United States Constitution and

Article I, Section 14 of the Ohio Constitution provide for “[t]he right of the

people to be secure***against unreasonable searches and seizures***.”

Searches and seizures conducted without a prior finding of probable cause

by a judge or magistrate “are per se unreasonable under the Fourth

Amendment, subject to only a few specifically established and well-

delineated exceptions.” California v. Acevedo, 500 U.S. 565, 111 S.Ct.,

1982 (1991); State v. Tincher, 47 Ohio App.3d 188, 548 N.E.2d 251 (1988).

If the government obtains evidence through actions that violate an accused’s
Ross App. No. 11CA3272 9

Fourth Amendment rights, that evidence must be excluded at trial. State v.

Lemaster, 4th Dist. No. 11CA3236, 2012-Ohio-971, 2012 WL 762542,¶8.

{¶18} The Supreme Court of Ohio has stated that “[p]robable cause is

certainly a complete justification for a traffic stop,” but the court has ‘not

held that probable cause is required.’” State v. Ward, 4th Dist. No. 10CA30,

2011-Ohio-1261, 2011 WL 917854, at ¶13, quoting State v. Mays, 119 Ohio

St. 3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, at ¶23. Instead, to justify a

traffic stop based upon less than probable cause, an officer must be able to

articulate specific facts that would warrant a person of reasonable caution to

believe that the person has committed, or is committing, a crime, including a

minor traffic violation. See Terry v. Ohio, 392 U.S. 1, 21, 88. S.Ct. 1868

(1968). See, also, Mays at ¶8. Chillicothe v. Frey, 156 Ohio App.3d 296,

2004-Ohio-927, 805 N.E.2d 551 at ¶14; State v. Garrett, 4th Dist. App. No.

05CA802, 2005-Ohio-5155, 2005 WL 2389635, ¶10. Reasonable suspicion

sufficient to conduct a stop exists if there is “at least a minimal level of

objective justification for making the stop.” Illinois v. Wardlow, 528 U.S.

119, 123, 120 S.Ct. 673 (2008). As we explained in State v. Emerick, 4th

Dist. No. 06CA45, 2007-Ohio-4398, 2007 WL 2410892, at ¶15:

“A traffic stop may pass constitutional muster even
where the state cannot convict the driver due to a failure in
meeting the burden of proof or a technical difficulty in
enforcing the underlying statute or ordinance.***The very
Ross App. No. 11CA3272 10

purpose of an investigative stop is to determine whether
criminal activity is afoot. This does not require scientific
certainty of a violation nor does it invalidate a stop on the basis
that the subsequent investigation reveals no illegal activity is
present.”

{¶19} A court that must determine whether a law enforcement officer

possessed a reasonable suspicion or probable cause to stop a vehicle must

examine the “totality of the circumstances.” Id., at ¶13. See, e.g., United

States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct.744 (2002). Moreover, the

touchstone of a Fourth Amendment analysis is the reasonableness of the

intrusion. Emrick, ¶13. See, e.g., State v. Dunfee, 4th Dist. No. 02CA37,

2003-Ohio-5970, 2003 WL 2253819, ¶ 25, citing Pennsylvania v. Mimms,

434 U.S. 106, 108-109, 98 S.Ct. 330, (1997).

{¶20} A police officer may stop the driver of a vehicle after observing

a de minimis violation of traffic laws. State v. Guseman, 4th Dist. No.

08CA14, 2009-Ohio-952, 2009 WL 537198, at ¶20, citing, State v. Bowie,

4th Dist. No. 01CA34, 2002-Ohio-3553, 2002 WL 1565710, at ¶8, 12, and

16, citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996).

See, also, Dayton v. Erickson, 76 Ohio St.3d 3, 655 N.E.2d 1091 (1996),

syllabus.

{¶21} In the case sub judice, we agree with the trial court’s apparent

conclusion that Trooper Wilson had reasonable articulable suspicion to stop
Ross App. No. 11CA3272 11

the vehicle in question for violations of both R.C. 4511.34 and R.C.

4511.213. Regarding the court’s ruling on R.C. 4511.34, the transcript of

the suppression hearing reveals counsel for the State argued:

“This is an easy case. I know the court has some
questions about the following too close; I believe the case law
will bury(sic) out number one that the statute is constitutional
that has been challenged and dealt with and any, any cursory
review of the case law will bare (sic)that out. As far as the rule
of thumb, I know the court has an issue for the definition of car
length, but again, including the fourth district, virtually every
district in this case has discussed that as a rule of thumb, they
do not have any issues with it, they take and apply it in those
situations, including situations in which a vehicle is traveling
the posted speed limit but still following too close. So either
way, you’re looking at a violation there. As far as the ability to
get over, you can see in the video that the trooper is far enough
back from the defendant that he has got plenty of room to move
over if he so chose without-

{¶22} To which the court responded: “I’m not even- like I say, I’m

not even worried about that-.” The trial court further stated: “I find he had a

reasonable basis to determine that there was a violation of 4511.213.”

Finally, the trial court stated that the motion to suppress was overruled.

Generally, an appellate court will presume that a trial court overruled a

motion on which it did not expressly rule, where it is clear that that is what

the trial court actually intended to do. State v. Lewis, 164 Ohio App.3d 318,

2005-Ohio-5921, (10th Dist. 2005),¶9. See Newman v. Al Castrucci Ford

Sales, Inc. 54 Ohio App.3d 166, 561 N.E.2d 1001, (1988), ¶4. See also, In
Ross App. No. 11CA3272 12

re Sites, 4th Dist. No. 05CA39, 2006- Ohio- 3787, 2006 WL 2045814, fn. 6,

(Motions not expressly ruled on are deemed impliedly overruled.) The trial

court overruled the motion explicitly with regard to the “emergency vehicle”

statute, R.C. 4511.213 and the motion in full at the end of the transcript. We

presume therefore that the trial court, although not explicitly stated, intended

to overrule the motion with regard to the “following too closely” statute as

well. We agree with the trial court’s ruling that Trooper Wilson acted on

the bases of reasonable articulable suspicion with regard to both traffic

citations.

A. Following too closely

R.C. 4511.34, space between moving vehicles, states in pertinent part:

“The operator of a motor vehicle, streetcar, or trackless trolley
shall not follow another vehicle, streetcar, or trackless trolley
more closely than is reasonable and prudent, having due regard
for the speed of such vehicle, streetcar, or trackless trolley, and
the traffic upon and the condition of the highway.”

{¶23} In Ward, above at ¶15, we noted that “[a]n officer’s direct

observation that a vehicle is following another vehicle too closely provides

probable cause to initiate a lawful traffic stop.” See also State v. Kelly, 188

Ohio App.3d 842, 2010-Ohio-3560, 937 N.E.2d 149, at ¶ 15, citing State v.

Perry, 12th Dist. No. CA2004-11-016, 2005-Ohio-6041, 2005 WL

3031741, at ¶12.
Ross App. No. 11CA3272 13

{¶24} Here, Trooper Wilson testified that he observed Appellant in

the right-hand lane of U.S. 35, traveling approximately three car lengths

behind another vehicle at a rate of 56 miles per hour. He alluded to his

formal training for calculating a “following too close” violation and testified

that he relied on the “rule of thumb” regarding “one car length for every ten

miles per hour.” Trooper Wilson also testified as to his opinion that it would

be difficult to avoid a collision under the conditions Appellant was traveling.

Finally, Trooper Wilson testified as to his training at the highway patrol

academy and his experience as a road trooper since 2004. Admittedly, this

violation was not captured on Trooper Wilson’s in car camera system.

Counsel argues that under the conditions of dry weather and light to

moderate traffic, Appellant’s “following too close” did not pose a threat of

crash or other danger. However, Appellant presented no evidence to

contradict Trooper Wilson’s direct observations. Based on Trooper

Wilson’s testimony as to the totality of the circumstances, we agree that the

trial court correctly found a reasonable articulable basis for Trooper Wilson

to stop Appellant for following too closely.

B. Public safety vehicles
Ross App. No. 11CA3272 14

{¶25} Appellant further argues there was no probable cause to stop his

vehicle for violation of R.C. 4511.213, approaching stationary public safety

vehicle displaying emergency light, which states in pertinent part:

(A) The driver of a motor vehicle, upon approaching a
public safety vehicle, an emergency vehicle, or a road service
vehicle that is displaying the appropriate visual signals by
means of flashing, oscillating, or rotating lights, as prescribed
in section 4513.17 of the Revised code, shall do either of the
following:

(1) If the driver of the motor vehicle is traveling on a highway
that consists of at least two lanes that carry traffic in the same
direction of travel as that of the driver’s motor vehicle the
driver shall proceed with due caution and, if possible and with
due regard to the road, weather, and safety conditions, shall
change lanes into a lane that is not adjacent to that of the
stationary public safety vehicle, an emergency vehicle, or a
road service vehicle.

Again, in examining the totality of the circumstances, we agree with

the trial court that Trooper Wilson had a reasonable basis for stopping

Appellant’s vehicle for this traffic violation. The only evidence in this

matter is the officer’s testimony, which demonstrated a reasonable

articulable suspicion that Appellant committed a traffic violation.

Regarding the R.C. 4511.213 violation, Trooper Wilson testified that

as he followed Appellant on U.S. 35, approaching the Route 50 split,

he observed a tow truck to the right edge berm, loading a vehicle. The

driver was standing outside of the truck and the yellow lights on the
Ross App. No. 11CA3272 15

truck were activated. Trooper Wilson testified that Appellant failed to

slow down or change lanes to avoid the truck when there were no

other vehicles which would have prevented him from doing so.

Again, this violation was not recorded on the trooper’s in car camera

system.

{¶26} Counsel now argues that Appellant possibly did not see

the tow truck. However, Appellant failed to elicit any testimony on his

behalf, as to this issue or any other, at the suppression hearing. The

trial court was free to consider Trooper Wilson’s credibility and

apparently found his testimony believable. The trial court was in the

best position to evaluate this evidence. See, e.g., State v. Dunlap,

above. Based on the totality of the circumstances, we agree with the

trial court’s ruling as to the violation of R.C. 4511.213.

C. Length of Detention

{¶27} Counsel argues that the length of detention of Appellant was

unreasonable and that the minor traffic violations unlawfully expanded to a

full-blown search for drugs. 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.” Florida v.

Royer, 460 U.S. 491, 500, 103 S.Ct. 1319 (1983); see, also, State v. Gonyou,
Ross App. No. 11CA3272 16

108 Ohio App.3d 369, 372, 670 N.E.2d 1040 (6th Dist.1995) and State v.

Hughes, 4th Dist. No. 97CA2309, 1998 WL 363850. The rule set forth in

Royer is designed to prevent law enforcement officers from conducting

“fishing expeditions” for evidence of a crime. See generally, Gonyou;

Sagamore Hills v. Eller, 9th Dist. No. 18495, 1997 WL 760693; see, also,

Fairborn v. Orrick, 49 Ohio App.3d 94, 95, 550 N.E.2d 488, 490 (2nd

Dist.1988), (stating that “the mere fact that a police officer has an articulable

and reasonable suspicion sufficient to stop a motor vehicle does not give that

police officer ‘open season’ to investigate matters not reasonably within the

scope of his suspicion”).

{¶28} “When a law enforcement officer stops a vehicle for a traffic

violation, the officer may detain the motorist for a period of time sufficient

to issue the motorist a citation and to perform routine procedures such as a

computer check on the motorist's driver's license, registration, and vehicle

plates.” State v. Aguirre, 4th Dist. No. 03CA5, 2003-Ohio-4909, 2003 WL

22136234, at ¶ 36, citing State v. Carlson, 102 Ohio App.3d 585, 598, 647

N.E.2d 591(9th Dist.1995). “In 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., citing State v. Cook,
Ross App. No. 11CA3272 17

65 Ohio St.3d 516, 521-522, 605 N.E.2d 70 (1992), (fifteen minute detention

was reasonable); United States v. Sharp, 470 U.S. 675, 105 S. Ct. 1568

(1985), (twenty minute detention was reasonable).

{¶29} A lawfully detained vehicle may be subjected to a canine check

of the vehicle's exterior even without the presence of a reasonable suspicion

of drug-related activity. State v. Rusnak, 120 Ohio App.3d 24, 28, 696

N.E.2d 633 (6th Dist.1997). Both Ohio courts and the United States

Supreme Court have determined that “the exterior sniff by a trained

narcotics dog to detect the odor of drugs is not a search within the meaning

of the Fourth Amendment to the Constitution.” State v. Jones, 4th Dist. No.

03CA61, 2004 WL 3090198, ¶24; United States v. Place, 462 U.S. 696, 103

S.Ct. 2637 (1983). Thus, a canine check of a vehicle may be conducted

during the time period necessary to effectuate the original purpose of the

stop. Jones, at ¶24.

{¶30} In this matter, Trooper Wilson testified that because he had

observed the two traffic violations, he decided to stop Appellant’s vehicle.

In doing so, he called in the license plate to dispatch and discovered the

vehicle was a rental. Upon his approach to Appellant’s passenger side,

Appellant identified himself and immediately handed Trooper Wilson the
Ross App. No. 11CA3272 18

overdue rental agreement. Trooper Wilson testified it took him about 45

minutes to resolve the rental agreement issue.

{¶31} Trooper Wilson also testified that he believed there were

several indicators of criminal activity present, namely: (1) the overdue rental

car, (2) the “following too close” violation, (3) Appellant’s nervous

behavior, and (4) Appellant’s point of origination being Columbus, Ohio

and his ultimate destination being Huntington, West Virginia. Appellant

surrendered the rental agreement without being asked and volunteered the

information about his trip. All this was within a few seconds of Trooper

Wilson’s approach to the passenger side. Trooper Wilson testified that he

radioed for the other trooper to come to the scene with the canine unit within

40-45 seconds after the stop occurred.

{¶32} Here, the record demonstrates that Trooper Wilson diligently

conducted his investigation of the rental agreement, which took 45 minutes.

He requested the canine unit to assist shortly after the stop occurred, and the

canine check took place within this same 45-minute span of time.

Therefore, we conclude that Trooper Wilson did not unlawfully expand the

scope of the stop, and the detention of the vehicle was reasonable.

{¶33} Having conducted a de novo review, we conclude that the State

demonstrated reasonable bases for stopping Appellant’s vehicle for
Ross App. No. 11CA3272 19

violations of R.C. 4511.34 and R.C. 4511.213, and further, that the length

and scope of Appellant’s detention was reasonable. The trial court’s

findings are supported by the record. As such, we also conclude that the

potential assignment of error advanced by appellate counsel is wholly

without merit. The motion of counsel for Appellant requesting to withdraw

as counsel is granted. This appeal is dismissed for the reason that it is

wholly frivolous.

APPEAL DISMISSED

Harsha, J., dissenting:

{¶34} Because I conclude there is arguable merit to the issue of

whether the trooper exceeded the lawful scope of the traffic stop, I would

assign new counsel and decide the merits of that issue.
Ross App. No. 11CA3272 20

JUDGMENT ENTRY

It is ordered that the APPEAL BE DISMISSED and that the Appellee
recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, P. J: Concurs in Judgment and Opinion.
Harsha, J: Dissents with Dissenting Opinion.

For the Court,

BY: _________________________
Matthew W. McFarland, Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.