[Cite as State v. Houck, 2011-Ohio-6359.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellant 

-vsGARY L. HOUCK 

 Defendant-Appellee 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. Patricia A. Delaney, J. 

Case No. 11-CA-49 

O P I N I O N 

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 DEFENDANTAPPELLEE’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 

 ___________________________________ 

 HON. SHEILA G. FARMER 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY