[Cite as State v. Ali, 2014-Ohio-3757.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-13-076
Appellant Trial Court No. 13-TRC-03248
v.
Bassam Ali DECISION AND JUDGMENT
Appellee Decided: August 29, 2014
*****
Matthew L. Reger, Bowling Green Prosecutor, for appellant.
Andrew R. Bucher, for appellee.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Bowling Green Municipal Court
that granted appellee Bassam Ali’s motion to suppress. Because the arresting officer
lacked reasonable suspicion to stop appellee’s vehicle, we affirm the trial court’s
judgment.
{¶ 2} On May 3, 2013, appellee was charged with operating a motor vehicle while
under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and (A)(2), as well
as with a marked lanes violation pursuant to R.C. 4511.33. After a pretrial conference,
appellee filed a motion to suppress. A motion hearing was held on October 10, 2013, and
by judgment entry filed November 6, 2013, the trial court granted the motion. The trial
court found that, based upon the dash-cam video from the arresting officer’s patrol car
and the officer’s testimony, there was no credible evidence of a marked lanes violation
and no reasonable articulable suspicion that any criminal activity was occurring under the
totality of the circumstances. The state now appeals, setting forth the following single
assignment of error:
The trial court committed reversible error when it found that the
reasons articulated by an officer for stopping a vehicle did not establish
reasonable suspicion for a stop under the Fourth Amendment.
{¶ 3} When reviewing a trial court’s decision on a motion to suppress, we accept
the trial court’s findings of fact so long as they are supported by credible evidence. State
v. Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d 726 (4th Dist.1993). “[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, 73 Ohio App.3d 486, 488, 597 N.E.2d 1141 (4th Dist.1991).
{¶ 4} In this case, appellant state of Ohio argues that the stop was constitutionally
valid and the trial court erred by finding that the video recorded from the arresting
2.
officer’s patrol car did not show a violation or provide a reasonable articulable suspicion
to stop appellee. Appellant argues further that there is a conflict between two recent
decisions of this court on appeals from trial court rulings on motions to suppress in cases
arising from traffic stops. The decisions appellant cites are State v. DeVault, 6th Dist.
Ottawa No. OT-12-027, 2013-Ohio-2942, decided by this court on July 5, 2013, and State
v. Parker, 6th Dist. Ottawa No. OT-12-034, 2013-Ohio-3470, decided August 9, 2013.
The trial court in this matter applied our decision in Parker when it found that the alleged
violation of marked lanes was not established through evidence presented by the state.
{¶ 5} Applying Parker, the trial court herein stated: “[T]his court finds based
upon the testimony, video, and the law, that there was no marked lanes violation.
Defendant’s tires never crossed completely over any lane marking.”
{¶ 6} We note that in affirming Parker, this court stated: “This court has reviewed
said recording and can see no evidence that appellant ever crossed the lines of travel
before he was stopped. It is evident that appellant’s vehicle sometimes traveled on the
marked lanes but this is not a violation of R.C. 4511.33. See State v. Franklin, 5th Dist.
Licking No. 11-CA-128, 2012-Ohio-3089.”
{¶ 7} In contrast, upon reviewing the trial court’s ruling denying the defendant’s
motion to suppress in DeVault, supra, this court noted that the arresting officer testified
he observed the defendant’s vehicle weaving off the right side of the road for
approximately six seconds.
3.
{¶ 8} The basis for the officer’s stop herein was R.C. 4511.33(A)(1), which
provides that:
[w]henever any roadway has been divided into two or more clearly
marked lanes for traffic, or wherever within the municipal corporations
traffic is lawfully moving in two or more substantially continuous lines in
the same direction, the following rules apply:
A vehicle or trackless trolley shall be driven, as nearly as is
practicable, entirely within a single lane or line of traffic and shall not be
moved from such lane or line until the driver has first ascertained that such
movement can be made with safety.
{¶ 9} An investigative stop of a motorist does not violate the Fourth Amendment
if the officer has a reasonable suspicion that the individual is engaged in criminal activity.
Maumee v. Weisner, 87 Ohio St.3d 295, 299, 720 N.E.2d 507 (1999), citing Terry v.
Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Before a law enforcement
officer may stop a vehicle, the officer must have a reasonable suspicion, based upon
specific and articulable facts, that an occupant is or has been engaged in criminal activity.
State v. Gedeon, 81 Ohio App.3d 617, 618, 611 N.E.2d 972 (11th Dist.1992).
Reasonable suspicion constitutes something less than probable cause. State v. Carlson,
102 Ohio App.3d 585, 590, 657 N.E.2d 591 (9th Dist.1995). The propriety of an
investigative stop must be viewed in light of the totality of the circumstances. State v.
Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph two of the syllabus.
4.
{¶ 10} The trial court in this case made its decision, “[b]ased upon the greater
weight of the believable evidence.” Upon review, it is clear that the trial court found the
arresting officer’s testimony to lack credibility. Further, the trial court noted that the
arresting officer acknowledged that the video did not reveal a marked lanes violation.
{¶ 11} At the suppression hearing, Sergeant Nathan Henn of the Ohio State
Highway Patrol testified that he was on duty during the early morning hours of May 3,
2013. He testified that he first noticed appellee’s vehicle because it was weaving within
its lane. After the officer accelerated and drew closer to appellee’s vehicle, he observed
the “driver side tires cross the yellow fog line by approximately two tire widths.” He
further testified that he observed appellee’s vehicle drift and cross the center lane divider
“by approximately the same distance, two tire widths.” The officer’s dash cam videotape
of the stop was admitted into evidence. Sergeant Henn acknowledged that the violations
are not observable in the video but stated that he observed said violations from 50 yards
behind appellee’s vehicle. The trial court found, however, that the video indicates
Henn’s cruiser was approximately 700 feet behind appellee’s vehicle, based on Henn’s
rate of speed as he followed appellee through an intersection before the stop. This court
has reviewed the dash cam video from the trooper’s patrol car and can see no evidence
that appellee crossed the lines of travel before he was stopped.
{¶ 12} Based on the foregoing, we find that the trial court’s determination that the
evidence did not show a violation of R.C. 4511.33 or provide a reasonable, articulable
suspicion for the stop is supported by competent and credible evidence. Therefore, the
5.
trial court did not err by granting appellee’s motion to suppress. Accordingly, appellant’s
sole assignment of error is not well-taken.
{¶ 13} On consideration whereof, the judgment of the Bowling Green Municipal
Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
6.
State v. Ali
Combined Opinion