State v. Armington

[Cite as State v. Armington, 2019-Ohio-1713.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2018-A-0062
- vs - :

DOUGLAS E. ARMINGTON, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2018 CR
00045.

Judgment: Affirmed.

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Samuel L. Altier, 1027 Lake Avenue, Ashtabula, OH 44004 (For Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Douglas E. Armington, appeals the judgment of the Ashtabula

County Court of Common Pleas, which accepted his plea of no contest and sentenced

him for operating a vehicle while under the influence of alcohol (“OVI”), a felony of the

fourth degree. After a review of the record and pertinent law, we affirm, finding his

contention that the trial court committed prejudicial error by overruling his motion to

suppress without merit.
 Substantive and Procedural History

{¶2} In the early morning hours of December 3, 2017, Geneva Police Officer

Shaun Gonzalez (“Officer Gonzalez”) was on patrol when he noticed the vehicle in front

of him weaving within the lane. The vehicle veered across a double yellow line

surrounding the traffic markings that precede the left turn lane and made an erratic left

turn. It continued weaving, alternating between driving on the fog and traffic lines. After

observing the vehicle drive on the fog line on four separate occasions, he initiated his

overhead lights and sirens to stop the vehicle.

{¶3} Appellant (“Mr. Armington”), the driver of the vehicle, did not have any

identification, but he gave his social security number. Officer Gonzalez ran Mr.

Armington’s information through LEADS, his mobile data system, and discovered Mr.

Armington was driving under a number of suspensions, including a habitual alcoholic

suspension.

{¶4} Officer Gonzalez observed Mr. Armington’s eyes were red and glassy, he

had a thick tongue speech, “kind of slurred,” was “fumbling for his wallet,” and smelled of

alcohol. Officer Gonzalez decided to administer field sobriety tests and conducted the

horizontal gaze nystagmus, walk and turn, and one-legged stance tests. Mr. Armington

failed all three.

{¶5} At that time, Officer Gonzalez believed Mr. Armington was impaired and

placed him under arrest for OVI and driving under suspension. He administered a

portable breathalyzer. Later testing at the station revealed a .158 BAC level.

{¶6} Mr. Armington was indicted on two counts of OVI, felonies of the fourth

degree, this being his fourth OVI offense, in violation of R.C. 4511.19(A)(1)(a)(G)(1)(d),

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and driving under OVI suspension, a misdemeanor of the first degree, in violation of R.C.

4510.14(A).

{¶7} Mr. Armington filed a motion to suppress, arguing he was subjected to a

warrantless seizure without reasonable suspicion that a traffic law was violated. Further,

he claimed any possible violations occurred outside the municipality of Geneva and

Officer’s Gonzalez’s jurisdiction in violation of his Fourth and Fourteenth Amendment

rights.

{¶8} At a hearing before the trial court, the state presented the testimony of

Officer Gonzalez along with a dash cam video of the traffic stop.

The Location of the Traffic Stop

{¶9} Officer Gonzalez testified his regular patrol route is to drive southbound on

Rt. 534 to Clay Street. A portion of Rt. 534 (S. Broadway) and Clay Street are outside

the Geneva city limits and fall within Harpersfield Township, Ashtabula County. Officer

Gonzalez first observed Mr. Armington’s vehicle while heading southbound on Rt. 534

near its intersection with Clay Street. The officer’s attention was drawn to Mr. Armington’s

vehicle when it crossed into and drove on the diversion bubble at the beginning of the left

turn bay at the intersection of Rt. 534 and Clay Street and then made a wide left turn onto

the white fog line at the edge of the road. A diversion bubble is marked using two solid

yellow lines to form both sides of the bubble at the beginning of the left turn bay or lane

where the bubble separates traffic in opposite directions. There are yellow cross-hatch

marking inside the bubble, as is the case at this intersection. Mr. Armington then

continued driving eastbound for approximately a quarter of a mile in Harpersfield

Township before reaching the Geneva city limits.

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 {¶10} While on Clay Street, Officer Gonzalez observed Mr. Armington’s vehicle

weave within its lane at least two to three more times, with at least one occasion occurring

while in the city limits of Geneva. Officer Gonzalez initiated the stop within Geneva city

limits.

Motion to Suppress Denied

{¶11} The trial court denied Mr. Armington’s motion to suppress, finding that

“based on the testimony of Officer Gonzalez and the dash camera video footage

presented that, although the initial observance of a traffic violation occurred outside of the

City of Geneva, some of the observances of erratic driving occurred in the City of Geneva

or immediately adjacent to the City of Geneva, and that the stop of Defendant did take

place within the City of Geneva limits.” Further, the court determined the stop itself was

based on a reasonable, articulable suspicion of impaired driving, and the arrest was

supported by probable cause.

{¶12} Mr. Armington subsequently pleaded no contest to one count of OVI, a

felony of the fourth degree. The other two counts were dismissed via a plea agreement.

The court sentenced him to a 24-month prison term of which 60 days were mandatory.

He was also ordered to complete the mandatory alcohol/drug addiction treatment

program; his driver’s license was suspended for four years to run concurrent to any other

suspensions; and a mandatory fine of $1,350 was imposed.

{¶13} Mr. Armington timely appeals, raising the following assignment of error:

{¶14} “The Trial Court committed prejudicial error by Overruling Defendant-

Appellant Douglas E. Armington’s Motion to Suppress.”

Motion to Suppress Standard

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 {¶15} “At a hearing on a motion to suppress, the trial court functions as the trier

of fact, and, therefore, is in the best position to weigh the evidence by resolving factual

questions and evaluating the credibility of any witnesses.” State v. McGary, 11th Dist.

Trumbull No. 2006-T-0127, 2007-Ohio-4766, ¶20, citing State v. Molek, 11th Dist.

Portage No. 2001-P-0147, 2002-Ohio-7159, ¶24, citing State v. Mills, 62 Ohio St.3d 357,

366 (1992); see also State v. Mustafa, 11th Dist. Portage No. 2000-P-0116, 2001-Ohio-

7067, 3-4. Thus, “‘[a]n appellate court must accept the findings of fact of the trial court

as long as those findings are supported by competent, credible evidence.’” Id., citing

State v. Retherford, 93 Ohio App.3d 586, 592 (2nd Dist.1994); City of Ravenna v.

Nethken, 11th Dist. Portage No. 2001-P-0040, 2002-Ohio-3129, ¶13. “After accepting

such factual findings as true, the reviewing court must then independently determine, as

a matter of law, whether or not the applicable legal standard has [been] met.” Id.

Investigatory Stop

{¶16} “A stop is constitutional if it is supported by either a reasonable suspicion or

probable cause.” Id. at ¶22, quoting Molek at ¶25. “[T]he concept of an investigative stop

allows a police officer to stop an individual for a short period if the officer has a reasonable

suspicion that criminal activity has occurred or is about to occur.” Id., quoting State v.

McDonald, 11th Dist. No. 91-T-4640, 1993 Ohio App. LEXIS 4152, 10, (Aug. 27, 1993),

citing State v. Klein, 73 Ohio App.3d 486 (1991). “In justifying the particular intrusion, the

police officer must be able to point to specific and articulable facts which would warrant a

[person] of reasonable caution in the belief that the action taken was appropriate.” Id.,

quoting Molek at ¶25, citing Klein at 488, citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968).

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 {¶17} “As to the determination of whether an officer had a reasonable suspicion

turns upon the specific facts of the case, the Supreme Court has consistently held that

the propriety of such a stop ‘must be viewed in light of the totality of the surrounding

circumstances.’” Id., quoting Molek, citing State v. Bobo, 37 Ohio St.3d 177 (1988), first

paragraph of the syllabus.

Officer Gonzalez’s Territorial Jurisdiction

{¶18} In his first issue for review, Mr. Armington contends that the traffic stop, and

subsequent arrest were constitutionally flawed because the observations made while on

State Route 534 were made outside of Officer Gonzalez’s jurisdiction and not on a

highway immediately adjacent to Geneva’s boundaries.

{¶19} While it is true that Officer Gonzalez testified he observed Mr. Armington

turn erratically and weave outside the Geneva city limits, he also testified that he observed

Mr. Armington driving erratically within the city limits. He also initiated the stop within the

city limits as the following colloquy between Officer Gonzalez and the prosecutor

demonstrates:

{¶20} “[Q.] Okay. The events you have testified to in regards to the stop of the

vehicle, did they occur in the City of Geneva?

{¶21} “[A.] The initial marked lane was outside of the City of Geneva, as well as

the initial turn from 534 onto Clay Street, but two of the infractions where he hit the white

fog line or edge line, edge of roadway line, that was inside the City, as well as him almost

striking, weaving, almost striking the marked lane. That was just past—that was inside

our jurisdiction. That’s when I initiated the traffic stop.”

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 {¶22} Moreover, when Officer Gonzalez observed Mr. Armington driving outside

of the city limits, he was adjacent to the city boundaries on both Rt. 534 and Clay Street.

{¶23} Pursuant to R.C. 2935.03(E)(3): “[a] police officer or village marshal

appointed, elected, or employed by a municipal corporation may arrest and detain, until

a warrant can be obtained, any person violating any section or chapter of the Revised

Code listed in Division E(1) of this section on the portion of any street or highway that is

located immediately adjacent to the boundaries of the municipal corporation in which the

police officer or village marshal is appointed, elected, or employed.” (Emphasis added.)

{¶24} The statute does not define the word “adjacent,” thus we give the word its

common, ordinary meaning. State v. Welch, 125 Ohio App.3d 49, 52 (11th Dist.1997),

citing State v. Hix, 38 Ohio St.3d 129, 131 (1988). Merriam-Webster defines “adjacent”

as “1a. not distant, b. having a common endpoint or border, c. immediately preceding or

following * * *.” https://www.merriam-webster.com/dictionary/adjacent (accessed March

17, 2019).

{¶25} The street map of the area demonstrates that both Rt. 534 and Clay Street

run both in and out of the City of Geneva directly into the next jurisdiction, Harpersfield

Township.

{¶26} Further, Mr. Armington’s reliance on the Supreme Court of Ohio’s recent

decision in State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, is misplaced. In Brown,

the officer admittedly arrested Mr. Brown outside her jurisdiction on an interstate highway

after observing him cross the fog line for a distance of approximately 100 feet. Id. at ¶4.

Critically, the record was silent as to whether the officer was aware Mr. Brown’s license

was suspended and that he had an active warrant in Michigan when she walked her drug

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dog around the vehicle leading to the discovery of 120 oxycodone tablets and a baggie

of marijuana. Id. at ¶5. The Sixth District Court of Appeals held that the stop was

unreasonable and violated the Ohio Constitution because the marked lane violation

occurred outside the officer’s territorial jurisdiction and there were no extenuating

circumstances that called for the township police officer to initiate the extraterritorial stop.

Id. at ¶7. The Supreme Court of Ohio affirmed the judgment of the appellate court

suppressing the evidence. In doing so, the court held “[a] traffic stop for a minor

misdemeanor made outside a police officer’s statutory jurisdiction or authority violates the

guarantee against unreasonable searches and seizures established by Article I, Section

14 of the Ohio Constitution.” Id. at ¶26.

{¶27} Further, Brown is a clarification of the Supreme Court of Ohio’s holding in

State v. Weideman, 94 Ohio St.3d 501 (2002). The officer in Weideman observed the

appellant traveling “well left of center.” The vehicle then “went off the right side of the

road twice and again traveled left of center.” Id. at 502. The question certified by the

court of appeals was “[w]hether a stop and detention of a motorist by a police officer, who

is beyond his or her jurisdictional limits, for an offense observed and committed outside

the officer’s jurisdiction automatically constitutes a per se unreasonable seizure under the

Fourth Amendment * * * .” (Emphasis sic.) Id. at 504.

{¶28} The Supreme Court held that “[w]here a law enforcement officer, acting

outside the officer’s statutorily territorial jurisdiction, stops and detains a motorist for an

offense committed and observed outside the officer’s jurisdiction, the seizure of the

motorist is not unreasonable per se under the Fourth Amendment.” Id. at 506. Thus,

looking at the totality of the circumstances surrounding the stop, the Supreme Court found

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the government’s interest in promoting public safety by stopping and detaining

Wiedeman, who was driving erratically, outweighed the momentary restriction of her

freedom. An officer violating a statute in order to detain a motorist may not rise to the

level of a constitutional violation depending on the totality of the circumstances. Id. at

504.

{¶29} Unlike Wiedeman and Brown, Mr. Armington was stopped and arrested

within the City of Geneva, Officer Gonzalez’s jurisdiction. Moreover, all of Officer

Gonzalez’s observations leading up to the traffic stop and arrest occurred either within

the city limits or on roads adjacent to the boundaries of Geneva. Although Officer

Gonzalez was well within his jurisdiction, it bears noting that a law enforcement officer is

not, nor should he or she be, limited to observing traffic violations only if they occur within

his or her jurisdiction. Nor is the officer required to disregard those observations made

while outside his or her jurisdiction when making the determination to stop a vehicle.

Reasonable Articulable Suspicion

{¶30} In his second issue for review, Mr. Armington contends the traffic stop was

not supported by a reasonable, articulable suspicion of criminal activity because he did

not violate a traffic law. Specifically, he argues the fog line observations made while

within the Geneva city limits are not violations of R.C. 4511.25 (lanes of travel upon

roadways), and he contends that weaving within one’s lane is not enough to trigger a

traffic stop. We disagree.

{¶31} “In order for an investigative stop to fall within constitutional parameters, the

police officer must be able to cite articulable facts that give rise to a reasonable suspicion

that the individual is currently engaged in or is about to engage in criminal activity.” State

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v. James, 11th Dist. Portage 2009-P-0082, 2010-Ohio-4556, ¶16, quoting State v. Gray,

11th Dist. Geauga No. 99-G-2249, 2000 Ohio App. LEXIS 3197, 21 (July 14, 2000), citing

Terry at 6.

{¶32} We, and other courts, have held in similar cases that weaving within one’s

lane is enough to initiate a traffic stop depending on the totality of the circumstances.

Thus, in State v. Gedeon, 81 Ohio App.3d 617 (11th Dist.1992), we held that “weaving

within one’s lane alone presents a sufficient scenario for an officer to conduct an

investigative stop.” Id. at 619; citing, Columbus v. Quinn, 10th Dist. Franklin No. 86AP-

1079 (Dec. 17, 1987) (where the court found that an officer observing a driver varying his

speed between 35 m.p.h. and 45 m.p.h. and weaving within the same lane are sufficient

to stop the driver and investigate); State v. Hilleary, 2d Dist. Miami No. 88-CA-5, 5 (May

24, 1989) (when an officer observes a car weaving within its lane in an area where an

extremely high number of DUI arrests were made, the officer had a reasonable suspicion

to stop the driver and investigate); Montpelier v. Lyon, 6th Dist. Williams No. WMS-86-16.

2 (May 1, 1987) (weaving within one’s traffic lane during the early morning hours is

sufficient to justify an investigative stop. The court elaborated: “[w]eaving, whether within

or outside one’s lane, is indicative of erratic driving which authorizes the police to stop a

vehicle.”).

{¶33} In State v. Messick, 5th Dist. Delaware No. 06CAC090065, 2007-Ohio-

1824, the Fifth District Court of Appeals found, under similar circumstances, “[a]lthough

the weaving could be classified as de minimis, that coupled with the officer’s earlier

observation of appellee’s erratic left turn from the right hand lane gave the officer a

reasonable and articulable suspicion to justify the stop of appellee. The State does not

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have to charge a motorist with a traffic violation in order to use the facts of such a violation

to support a reasonable suspicion to initiate a traffic stop.” Id. ¶15.

{¶34} Moreover, while weaving within one’s lane does not carry any criminal

penalties, it is still a traffic violation pursuant to Geneva Codified Ordinances 432.38(a),

“Weaving; Full time and Attention.” In relevant part, this ordinance provides: “[n]o person

shall operate a motor vehicle or motorcycle upon any street or highway in a weaving or

zigzag course unless such irregular course is necessary for safe operation or in

compliance with law.” Id.

{¶35} Mr. Armington also argues he committed no other traffic violations. We

disagree. When he crossed the double yellow line that surrounds the diversion bubble

appearing on the pavement at the beginning of the left turn lane, Mr. Armington violated

the rules for driving within marked lanes, R.C. 4511.33. Violations of traffic laws not only

give rise to a reasonable suspicion that a crime is or about to occur, but can form probable

cause for a traffic stop. “A traffic stop is reasonable when an officer possesses probable

cause to believe an individual committed a traffic violation.” State v. Davis, 11th Dist.

Portage No. 2005-P-0077, 2006-Ohio-3424, ¶23, citing Whren v. United States, 517 U.S.

806, 809 (1996).

{¶36} In Davis, an officer observed four traffic violations, including a violation of

R.C. 4511.36(A)(3), for turning into the curb lane instead of the left lane on his first turn,

and then, on his second, crossing across both lanes of traffic into a driveway. Id. at ¶4.

We found these traffic violations not only supported a finding of reasonable suspicion but,

under those circumstances, also a finding of probable cause. Id. at ¶22. “Probable cause

is a higher standard than that of reasonable suspicion. Id. at ¶23, citing State v. Smith,

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117 Ohio App.3d 278, 282 (1st Dist.1996). An officer has probable cause to stop a vehicle

where he observes conduct which he reasonably believes violates the law.” Id., citing

State v. Lawless, 11th Dist. Portage No. 98-P-0048, 1999 WL 454627, 9 (June 25, 1999),

citing Beck v. Ohio, 379 U.S. 89, 91 (1964). “An officer is not required to possess proof

of a violation so long as the officer reasonably believes the conduct observed constitutes

a form of the offense in question.” Id., citing State v. Williams, 2d Dist. Montgomery No.

16306, 1997 WL 822672, (Nov.21, 1997).

{¶37} “In evaluating the propriety of an investigative stop, the reviewing court must

examine the totality of the circumstances surrounding the stop as ‘viewed through the

eyes of the reasonable and prudent police officer on the scene who must react to events

as they unfold.’” James at ¶18, citing Gray at 8, quoting State v. Shacklock, 11th Dist.

Trumbull Nos. 98-T-0005 & 98-T-0083, 1999 WL 266620, 4 (Apr. 30, 1999), quoting State

v. Andrews (1991), 57 Ohio St. 86, 87-88 (1991). “The court reviewing the officer’s

actions must give due weight to the officer’s experience and training, and view the

evidence as it would be understood by those in law enforcement.” Id., citing Shacklock

at 4, citing Andrews at 88, citing United States v. Cortez, 449 U.S. 411, fn. 2 (1981).

{¶38} Under the totality of the circumstances, Officer Gonzalez, an experienced

and trained officer with over 50 OVI stops resulting in citations, had a reasonable and

articulable suspicion to initiate a stop within his jurisdiction when he observed, during the

early morning hours, a vehicle driving across a double yellow line that surrounds the

diversion bubble appearing on the pavement at the beginning of the left turn lane then

making an erratic turn while the motorist was outside his jurisdiction. Then, as the officer

drove within his jurisdiction, he observed the motorist repeatedly driving onto the fog line

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and weaving within its lane. Officer Gonzalez also established probable cause to arrest

Mr. Armington for an OVI after observing multiple signs of intoxication—red and glassy

eyes, thick tongue and slurred speech, fumbling for his wallet, and the smell of alcohol,

followed by the failure of all three administered field sobriety tests.

{¶39} Mr. Armington’s sole assignment of error is without merit.

{¶40} The judgment of the Ashtabula County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

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