[Cite as State v. Little , 2020-Ohio-4097.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, CASE NO. 1-20-11 PLAINTIFF-APPELLEE,

v. MICHAEL L. LITTLE, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2019 0310 Judgment Affirmed Date of Decision: August 17, 2020

APPEARANCES:

Linda Gabriele for Appellant

Jana E. Emerick for AppelleeCase No. 1-20-11

-2- WILLAMOWSKI, J. {¶1} Defendant-appellant Michael L. Little (“Little”) appeals the ju dgment of the Allen County Court of Common Pleas, alleging that the tr ial court erred by denying his motion to suppress. For the reasons set forth belo w, the judgment of

the trial court is affirmed. Facts and Procedural History {¶2} Officer Christopher Lemke (“Officer Lemke”) works for the Lima Police Department. Tr. 4. At roughly 1:00 A.M. on July 13, 20 19, Officer Lemke was on patrol. Tr. 5. As he was driving westbound on State St reet, Officer Lemke observed a white sport utility vehicle (“SUV”) that was driven by Little make a right turn into the eastbound lane of State Street. Tr. 5, 8, 9. Af ter the SUV completed this turn, it “stopped in the middle of the roadway.” Tr. 5-6, 8. Officer Lemke testified that he was driving in the opposite direction as Litt le was and had to maneuver around Little’s stopped SUV in order to drive past him . Tr. 6, 8-9. {¶3} After he drove past the SUV, Officer Lemke turned his cruiser a round

in the next intersection . Tr. 5. How ever, as Offi cer Lemke wa s turning his cruiser around, the SUV “took off at a high rate of speed.” Tr. 6. Of ficer Lemke began to follow after the SUV. Tr. 6. He then observed the SUV approac h a stop sign. Tr. 6. Officer Lemke testified that he saw Little “slow[] down and hit the brakes” before the SUV “rolled right through the intersection.” Tr. 6, 10. A t this point, Officer Lemke activated the lights of his cruiser and initiated a traff ic stop. Tr. 6, 8. InCase No. 1-20-11

-3- response, Little eventually stopped his SUV, opened his door, a nd fled on foot away from his vehicle. Ex. 1. Tr. 6, 11. Officer Lemke then pursu ed Little on foot and apprehended him. Ex. 1. Tr. 11. Officer Lemke testified that he noticed signs of impairment as he walked Little towards the police cruiser. Tr. 12. {¶4} On August 15, 2019, Little was indicted on one count of operati ng a vehicle under the influence of alcohol, a drug of abuse or a co mbination of them in violation of R.C. 4511.19(A)(1)(b), 4511.19(G)(1)(d) and one co unt of operating a vehicle under the influence of alcohol, a drug of abuse, or a c ombination of them in violation of R.C. 4511.19(A)(1)(a), 4511.19(G)(1)(d). Doc. 5. On October 8, 2019, Little filed a motion to suppress, alleging that the stop of hi s vehicle was illegal. Doc. 26. On October 18, 2019, the trial court held a suppressi on hearing at which

Officer Lemke testified. Tr. 1. The State also offered video footage from Officer Lemke’s body camera and his cruiser’s dashboard camera as evide nce. Ex. 1. On October 24, 2019, the trial court denied Little’s motion to sup press. Doc. 34. {¶5} On January 8, 2020, Little entered a plea of no contest to the first count

in the indictment. Doc. 46. The second count with which Littl e had been charged was then dismissed. Doc. 46. The trial court found Little gui lty of the offense operating under the influence of alcohol, a drug of abuse, or a combination of them in violation of R.C. 4511.19(A)(1)(b). Doc. 47. The trial cou rt sentenced Little on February 20, 2020. Doc. 51.Case No. 1-20-11

-4- Assignment of Error {¶6} The appellant filed his notice of appeal on February 28, 2020. Doc. 53. On appeal, Little raises the following assignment of error: The trial court erred in overruling the Defendant-Appellant’s motion to suppress as law enforcement lacked reasonable suspicion to stop the Defendant-Appellant. Little argues that the trial court’s decision to deny his motio n to suppress was not supported by competent, credible evidence. Legal Standard {¶7} The Fourth Amendment to the United States Constitution guarante es “[t]he right of the people to be secure in their persons, house s, papers, and effects, against unreasonable searches and seizures * * *.” Fourth Amen dment, United States Constitution. The Ohio Constitution offers a parallel p rovision to the Fourth Amendment of the Federal Constitution that has been generally h eld to afford the same level of protection as the United States Constitution. State v. Hoffman , 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette , 80 Ohio St.3d 234, 685 N.E.2d 762 (1997). “[A] police stop of a m otor vehicle and the resulting detention of its occupants has been held to be a seizure under the Fourth

Amendment.” State v. Kerr , 3d Dist. Allen No. 1-17-01, 2017-Ohio-8516, ¶ 13, citing Delaware v. Prouse , 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) {¶8} “In order to initiate a constitutionally permissible traffic st op, law enforcement must, at a minimum, have a reasonable, articulable suspicion to believeCase No. 1-20-11

-5- that a crime has been committed or is being committed.” State v. Smith , 2018-Ohio1444, 110 N.E.3d 944, ¶ 8 (3d Dist.), citing State v. Andrews , 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991). “The Supreme Court of Ohio has defined ‘reasonable articulable suspicion’ as ‘specific and articulable facts which, taken toge ther with rational inferences from those facts, reasonably warrant t he intrusion [upon an individual’s freedom of movement].’” State v. Shaffer , 2013-Ohio-3581, 4 N.E.3d 400, ¶ 18 (3d Dist.), quoting State v. Bobo , 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988), quoting Terry v. Ohio , 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Reasonable suspicion entails some minimal level of objective justification for making a stop—that is, something mo re than an inchoate and unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause.” Kerr, supra , at ¶ 15, quoting State v. Jones , 70 Ohio App.3d 554, 556- 557, 591 N.E.2d 810 (2d Dist. 1990). (Bracketed Insertion Sic.) Smith at ¶ 9. “Furthermore, these circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” Andrews, supra , at 88-89. “A court reviewing the officer’s actions must give due weight to his exp erience and training and view the evidence as it would be understood by those in law enforcement.” Id

. at 88. {¶9} “A police officer may initiate a traffic stop after witnessing a traffic

violation.” Smith at ¶ 10, citing Dayton v. Erickson , 76 Ohio St.3d 3, 11, 665 N.E.2d 1091, 1097 (1996). R.C. 4511.43(A) reads, in its relevant part , as follows: Except when directed to proceed by a law enforcement officer, every driver of a vehicle * * * approaching a stop sign shall s top at a clearly marked stop line, but if none, before entering theCase No. 1-20-11

-6- crosswalk on the near side of the intersection, or, if none, th en at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. R.C. 4511.43(A). See Lima Codified Ordinance 432.18(a). A driver’s failure to comply with a stop sign is a traffic violation that provides a police officer with probable cause to initiate a traffic stop. See State v. Miller , 3d Dist. Marion No. 9- 14-50, 2015-Ohio-3529, ¶ 13; Akron v. Buchwald , 9th Dist. Summit No. 21433, 2003-Ohio-5044, ¶ 15; State v. Mihely , 11th Dist. Ashtabula Nos. 2001-A-0083, 2001-A-0084, 2002-Ohio-6939, ¶ 11. {¶10} “To deter Fourth Amendment violations, the Supreme Court of the United States has adopted an exclusionary rule under which ‘any evidence that is obtained during an unlawful search or seizure will be excluded from being used against the defendant.’” Kerr, supra , at ¶ 17, quoting State v. Steinbrunner , 3d Dist. Auglaize No. 2-11-27, 2012-Ohio-2358, ¶ 12. Thus, the appropri ate remedy for a Fourth Amendment violation is generally the suppression of any illegally obtained

evidence. State v. O’Neal , 3d Dist. Allen No. 1-07-33, 2008-Ohio-512, ¶ 19. {¶11} “Appellate review of a decision on a motion to suppress present s a mixed question of law and fact.” State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio5372, 797 N.E.2d 71, ¶ 8. At a suppression hearing, the trial court assumes the role of t rier of fact and, as such, is in the best position to evaluate the e vidence and the credibility of witnesses. [ Burnside at ¶ 8]. See also State v. Carter , 72 Ohio St.3d 545, 552[, 651 N.E.2d 965] (1995). WhenCase No. 1-20-11

-7- reviewing a ruling on a motion to suppress, deference is given to the trial court’s findings of fact so long as they are supporte d by competent, credible evidence. Burnside at ¶ 8, citing State v. Fanning , 1 Ohio St.3d 19[, 437 N.E.2d 583] (1982). With respect to the trial court’s conclusions of law, however, our standard of review is de novo; therefore, we must decide whether the facts satisfy the applicable legal standard. Id ., citing State v. McNamara , 124 Ohio App.3d 706, 710[, 707 N.E.2d 539] (4th Dist. 1997). State v. Sidney , 3d Dist. Allen No. 1-19-32, 2019-Ohio-5169, ¶ 8. Legal Analysis {¶12} At the suppression hearing, Officer Lemke testified that he saw Little approach a stop sign in his SUV, “slow[] down and hit the brake s” before he “rolled right through the intersection.” Tr. 6. Officer Lemke later a ffirmed that Little’s SUV did not come to a complete stop before entering the interse ction and stated that the SUV went through the intersection at “approximately five/te n miles an hour * * *.” Tr. 17. The prosecution also introduced video footage fro m a camera on the police cruiser’s dashboard. Ex. 1. The stop sign and Little’s brake lights can be discerned on this video footage. Ex. 1. Doc. 34. {¶13} However, whether Little stopped his SUV before he crossed into the intersection is unclear in this footage as the police cruiser w as turning at roughly the same time that Little was approaching the stop sign. Ex. 1. W hen presented with this inconclusive video footage at the suppression hearing, Off icer Lemke indicated that he, from his vantage point, could see that Little rolled t hrough the stop sign without stopping. Tr. 10. He said, “I looked to the right and * * * s[aw] the vehicleCase No. 1-20-11

-8- slowing down and so I kept eyes on the vehicle. As I turned ri ght the vehicle let off the brake and continued through the intersection.” Tr. 10. {¶14} The dashboard camera was not in a position to capture Little’s actions clearly as he approached the stop sign. Ex. 1. But this does not mean that Officer Lemke was not in a position to see Little’s actions as he appro ached the stop sign. Thus, while this video footage does not confirm Officer Lemke’s testimony, this video footage also does not contradict his testimony. The fact that the trial court

relied on Officer Lemke’s statements in the absence of video fo otage that confirmed his testimony does not mean that the trial court erred. See State/City of Toledo v.

Reese , 2018-Ohio-2981, 112 N.E.3d 514, ¶ 23 (6th Dist.) (wherein the trial court relied an officer’s testimony as to the pace of a vehicle even though the video footage did not capture the relevant speed readings). {¶15} Officer Lemke’s testimony provided the trial court with some competent, credible evidence from which it could determine that Little failed to comply with a stop sign. Since the trial court’s decision was based on some competent, credible evidence, this Court will not disturb the t rial court’s factual findings and will turn to examining the trial court’s legal con clusion in this matter. After finding that Officer Lemke’s testimony was “credible,” th e trial court determined that he “had an objectively reasonable justification for making the stop” because he observed Little fail to stop his SUV at the stop sig n. Doc. 47.Case No. 1-20-11

-9- {¶16} The failure to comply with a stop sign is a violation of R.C. 4511.43(A) and/or Lima Codified Ordinance 432.18(a). See R.C. 4511.43(A); Lima Codified Ordinance 432.18(a). Since Officer Lemke witnessed Li ttle commit a traffic violation, Officer Lemke had more than the reasonable, articulable suspicion that was required to initiate a traffic stop of Little’s SUV. This traffic violation, by itself, can serve as a sufficient legal basis for the traffic s top in this case. State v.

Pratt , 4th Dist. Pickaway No. 99CA53, 2000 WL 1281217, *2-3 (Sept. 5 , 2000);

State v. Akers , 2016-Ohio-7216, 72 N.E.3d 135 (7th Dist.). After reviewing t he trial court’s decision, we do not find any error in the trial court’s application of the law

to these facts. {¶17} On appeal, Little also argues that he did not impede traffic in violation of R.C. 4511.22(A) and/or Lima Codified Ordinance 434.06(a) by stopping on the roadway. Little asserted that he stopped to allow the police c ruiser to have the necessary space to pass through that stretch of roadway. Tr. 1 9. At the suppression hearing, Officer Lemke had testified that he believed that Litt le had impeded traffic by stopping in the roadway. We note that the trial court never found that Little committed the violation of impeding traffic. Doc. 34. {¶18} However, we ultimately do not need to address the issue of whet her Little stopping in the roadway provided Officer Lemke with a re asonable, articulable suspicion to initiate a traffic stop because Office r Lemke later witnessed Little fail to comply with a stop sign. As we have already not ed, Little’s failure toCase No. 1-20-11

-10- comply with a stop sign provided Officer Lemke with a sufficien t legal justification to initiate a traffic stop. Thus, whether Officer Lemke had a reasonable, articulable suspicion that could have served as grounds to stop Little’s ve hicle earlier is

irrelevant in this case. {¶19} In the end, Officer Lemke’s testimony provided some competent,

credible evidence from which the trial court could conclude tha t Little had committed the traffic violation of failing to comply with a sto p sign and could conclude that Officer Lemke had a legal justification to conduc t a traffic stop. After reviewing the evidence produced at the suppression hearing, we conclude that the trial court did not err in denying Little’s motion to suppress. Thus, Little’s sole assignment of error is overruled.

Conclusion {¶20} Having found no error prejudicial to the appellant in the parti culars assigned and argued, the judgment of the Allen County Court of Common Pleas is

affirmed. Judgment Affirmed SHAW P.J. and ZIMMERMAN J., concur.

/hls