[Cite as State v. Pullin , 2020-Ohio-787.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : PARNELL JOHN PULLIN : Case No. 2019CA00105 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2019 TRC 1419

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 2, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant BEAU D. WENGER JEFFREY JAKIMIDES 218 Cleveland Avenue SW 325 East Main Street Canton, OH 44702 Alliance, OH 44601Stark County, Case No. 2019CA00105 2

Wise, Earle, J. {¶ 1} Defendant-Appellant Parne ll John Pullin appeals the May 2 0, 2019 judgment of the Canton Municipal Court, Stark County, Ohio whic h denied his motion to suppress. Plaintiff-Appellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} On March 3, 2019 at approximately 1:00 a.m., Stark County Sheriff's Deputy Alan Raber was in the vicinity of the Brick House bar in Canton Township. As he approached the area he noted the vehicle in front of him appear ed to be traveling at a speed greater than the posted 35 miles per hour. Raber began pa cing the vehicle, using the speedometer in his cruiser. The suspect vehicle accelerated as Raber followed, reaching 39 miles per hour as the driver, later identified as P ullin, approached the Brick House accelerating away from Raber. This concerned Raber as pat rons of the bar park on one side of the street and cross the street on foot to acces s the bar. Due to this fact, there have been numerous car-pedestrian incidents in front of t he bar. Before initiating a traffic stop for speeding, Raber ran the plate on the vehicle a nd determined the registered owner of the vehicle, Pullin, had a suspended operator's licens e. {¶ 3} Upon approaching the vehicle, Raber detected a strong odo r of alcohol emanating from Pullin. Ultimately Pullin was arrested and charg ed with speeding, operating a motor vehicle under the influence of alcohol, and d riving under suspension. {¶ 4} Pullin filed a motion to suppress, alleging Raber lacked reasonable suspicion to initiate the stop. On April 29, 2019, a hearing wa s held on the matter wherein Deputy Raber was the sole witness. After taking the matter unde r advisement, the trial court overruled Pullin's motion via judgment entry on May 20, 2 019. On June 29, 2019,Stark County, Case No. 2019CA00105 3 Pullin entered pleas of no contest to the charges, and was foun d guilty. The trial court imposed a mandatory fine and jail time, 6 points on Pullin's li cense and a one year license suspension. {¶ 5} Pullin filed an appeal and the matter is now before this court for consideration. He raises one assignment of error: I {¶ 6} "IN DENYING APPELLANT'S MOTION TO SUPPRESS, THE TRIAL COURT ERRONEOUSLY RELIED ON A DECISION THAT HAD BEEN SUPERSEDED BY THE ENACTMENT OF R.C. 4511.091 (C), WHICH STATES THAT A PEAC E OFFICER'S UNAIDED VISUAL ESTIMATION OF THE SPEED OF A MOTOR VEH ICLE IS INSUFFICIENT BASIS FOR AN ARREST. IN LIGHT OF THAT ENACTMENT , OHIO COURTS HAVE FOUND THAT PACING ME THODS EVEN MORE RIGOROUS THAN THOSE AT ISSUE HERE ARE INSUFFICIENT TO JUSTIFY A TRAFFIC STOP AND HAVE THUS SUPPRESSED EVIDENCE R ESULTING FROM SUCH STOPS." {¶ 7} In his sole assignment of error, Pullin argues that by pa cing his car, Deputy Raber did not have sufficient evidence to initiate a traffic st op. Pullin bases his argument on the fact that the trial court relied on outdated and superse ded law to arrive at its decision that the traffic stop was warranted. While we agree th e trial court relied on case law which has been superseded by statute, we nonetheless find i t arrived at the proper conclusion. {¶ 8} There are three methods of challenging a trial court's ru ling on a motion to suppress. First, an appellant may challenge the trial court's f indings of fact. In reviewing a challenge of this nature, an appellate court must determine w hether said findings of factStark County, Case No. 2019CA00105 4 are against the manifest weight of the evidence. State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E. 2d 1141(1991); State v. Guysinger , 86 Ohio App.3d 592, 621 N.E.2d 726 (1993). Second, an appella nt 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 c ommitting an error of law. State v. Williams , 86 Ohio App.3d 37, 619 N.E.2d 1141 (1993). 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 arg ue the trial court has incorrectly decided the ultimate or final issue raised in the m otion to suppress. When reviewing this type of claim, an appellate court must independe ntly determine, without deference to the trial court's conclusion, whether the facts me et the appropriate legal standard in any given case. State v. Curry , 95 Ohio App.3d 93, 641 N.E.2d 1172 (1994); State v. Claytor , 85 Ohio App.3d 623, 620 N.E.2d 906 (1993); Guysinger , supra. As the United States Supreme Court held in Ornelas v. U.S. , 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), "... as a general matter determin ations of reasonable suspicion and probable cause should be reviewed de novo on appe al." {¶ 9} When ruling on a motion to suppress, the trial court assu mes the role of trier of fact and is in the best position to resolve questions of fac t and to evaluate the credibility of witnesses. See State v. Dunlap , 73 Ohio St.3d 308, 314, 1995-Ohio-243, 652 N.E.2d 988; State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). {¶ 10} Before a law enforcement officer may stop a vehicle, the officer must have a reasonable suspicion, based upon specific and articulable fac ts that an occupant is or has been engaged in criminal activity. Terry v. Ohio , 392 U.S. 1, 22, 88 S.Ct. 1868, 20Stark County, Case No. 2019CA00105 5 L.E.2d 889 (1968). Reasonable suspicion constitutes something l ess 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 t he totality of the circumstances. State v. Bobo , 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus. In a situation where the officer has observed a traffic violation, the stop is constitutionally valid. Dayton v. Erickson , 76 Ohio St.3d 3, 9, 1996-Ohio-431, 665 N.E.2d 1091. In sum, " ' * * * if an officer's decision to stop a moto rist for a criminal violation, including a traffic violation, is prompted by a reasonable and articulable suspicion considering all the circumstances, then the stop is constitutio nally valid.' " State v. Adams , 5th Dist. Licking No. 15 CA 6, 2015-Ohio-3786, ¶ 23, quoting State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 8. {¶ 11} First, the state argues Pullin has waived any argument r egarding the trial court's reliance upon case law superseded by statute. Because t he trial court's grounds for denying appellant's motion to suppress were unknown until s uch a time as the trial court issued its judgment entry, however, we find the matter is properly before us. {¶ 12} Next, in finding Deputy Raber had reasonable articulable suspicion to initiate a traffic stop of Pullin's vehicle, the trial court re lied on two cases. First, this court's decision in State v. Hammen , 5th Dist. Stark No. 2012-Ohio-3628 wherein we stated: "Appellant concedes a driver may be stopped for speeding, but c hallenges the “pacing” method used to determine his speed. * * * [M]any Ohio courts h ave found that pacing a car is an acceptable manner for determining speed. More specifi cally, it has been held that: A police officer's visual perception that a motor vehicle was speeding, coupled with years of experience, constitutes specific and articulable facts which provide the policeStark County, Case No. 2019CA00105 6 officer with reasonable grounds to make an investigatory stop." Id . ¶ 27, internal citations and quotations omitted. {¶ 13} The trial court further cited the Supreme Court of Ohio in City of Barberton v. Jenney , 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047 which found a police officer's unaided visual estimation of a vehicle's speed, by it self, was sufficient evidence of the vehicle's speed to support a conviction for speeding. {¶ 14} Effective September 30, 2011, however, the legislature i n response to Jenney enacted R.C. 4511.091 which prohibits the use of unaided visua l estimation of speed in most circumstances. The relevant portion provides:

No person shall be arrested, charged, or convicted of a violati on of any provisions of divisions (B) to (O) of Section 4511.21 or Se ction 4511.211 of the Revised Code or a substantially similar municip al ordinance based on a peace officer's unaided visual estimation of the speed of a motor vehicle, trackless trolley, or streetcar. This division does not do any of the following: Preclude the use by a peace officer of a stopwatch, radar, lase r, or other electrical, mechanical, or digital device to determine th e speed of a motor vehicle; * * *

{¶ 15} In 2012 we examined the statute in State v. Miller , 5th Dist. No. 2005CA25, 2012-Ohio-6147. In that matter, the basis for the traffic stop was appellant revving the engine of a stick-shift vehicle and an unaided estimation of sp eed. We found revving anStark County, Case No. 2019CA00105 7 engine was an insufficient basis for an investigatory stop. We then turned to the officer's unaided visual estimation of the appellant's speed, referenced R.C. 4511.091(C)(1) and noted at paragraph 12:

Thus, the notion that officers may use unaided visual estimates of speed for arrest, charging, and conviction have been superseded and overruled by legislation. Allowing an officer to stop a veh icle on their subjective impressions that a vehicle is traveling in sli ght excess of the legal speed limit may permit officers to do just what th e legislature had abolished. In other words, permitting an invest igative stop when the officer cannot arrest or charge based upon his un aided visual estimate of speed in slight excess of the speed limit ef fectively eliminates any protection against profiling and arbitrary deten tions.

{¶ 16} We concluded under the facts in Miller , that the "officers intruded upon constitutionally guaranteed rights based on nothing more substa ntial than inarticulate hunches. Terry , 392 U.S. at 22, 88 S.Ct. 1868, 20 L.Ed.2d 889. And simple goo d faith on the part of the arresting officer is not enough. * * * If subje ctive good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers and effects, only in th e discretion of the police." Miller at ¶ 15 internal quotations and citations omitted. {¶ 17} The facts here, however, are distinguishable. The estima tion of speed in this matter was not unaided. Rather, Deputy Raber paced appella nt's vehicle as he hadStark County, Case No. 2019CA00105 8 been taught in during his OPATA traffic training, as he had pra cticed during field training, and as used in his day-to-day traffic enforcement during his tw o plus years with the sheriff's department. T. 7-10. Raber explained he used the spe edometer in his cruiser, a mechanical device, as he followed Pullin and noted Pullin's spe ed accelerated from 36 to 39 miles per hour as he followed, and as appellant approached t he Brick House bar. T. 11. {¶ 18} In support of his argument that pacing is inadequate to justify a traffic stop, Pullin relies on State v. Jarosz , 11th Dist. Portage No. 2013-P-0050, 2013-Ohio-5839. Jarosz , however, is distinguishable from the instant matter. As point ed out by the state, the Jarosz court upheld the trial court's decision granting appellant's m otion to suppress not based on a finding that pacing is an invalid method of dete rmining the speed of another vehicle, but rather based on the trial court's finding that the testimony of the law enforcement officer involved lacked credibility vis-à-vis video from his cruiser camera. Jarosz at ¶ 21. {¶ 19} What is more, we have previously found reasonable, in State v. Hammen , 5th Dist. No. 2012CA00009, 2012-Ohio-3628, a trial court's find ing that a defendant was speeding when the defendant outpaces a law enforcement officer utilizing pacing as a measure of the speed of a defendant's vehicle. Here Pullin was doing just that. His speed increased from 36 to 39 miles per hour as Deputy Raber followe d him, with Raber needing to increase his speed to maintain a two-car length dist ance between himsel f and Pullin over a quarter mile. T. 11.Stark County, Case No. 2019CA00105 9 {¶ 20} We find Deputy Raber had reasonable articulable suspicio n to initiate a traffic stop based on the fact that Pullin was exceeding the po sted speed of 35 miles per hour. The sole assignment of error is overruled. {¶ 21} The judgment of the Canton Municipal Court denying appel lant's motion to suppress is affirmed.

By Wise, Earle, J. Hoffman, P.J. and Gwin, J. concur.

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