[Cite as State v. Smith, 2017-Ohio-5845.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLANT, CASE NO. 9-17-05 

 v. 

LESLEE SMITH, O P I N I O N 

 DEFENDANT-APPELLEE. 

 

Appeal from Marion County Common Pleas Court 

Trial Court No. 16-CR-0641 

Judgment Affirmed 

Date of Decision: July 17, 2017 

 

APPEARANCES: 

 

Kevin P. Collins for Appellant 

 Sheena Bateman-Carothers for Appellee 
Case No. 9-17-05 

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SHAW, J. 

{¶1} The State of Ohio brings this appeal from the February 23, 2017, 

judgment of the Marion County Common Pleas Court granting the suppression 

motion of defendant-appellee, Leslee Smith (“Smith”). On appeal, the State argues 

that the trial court erred in finding that the officer who performed a traffic stop of 

Smith lacked a reasonable articulable suspicion that a marked lanes violation had 

been committed to stop Smith’s vehicle. For the reasons that follow we affirm the 

judgment of the trial court. 

Facts and Procedural History

{¶2} On June 11, 2016, Smith’s vehicle was stopped by Sergeant Mark 

Menendez of the Ohio State Highway Patrol for failing to drive within the marked 

lanes in violation of R.C. 4511.33. As a result of the traffic stop, drugs were located 

in Smith’s vehicle. Subsequently Smith was indicted for one count of Possession 

of Cocaine in violation of R.C. 2925.11(A)/(C)(4), a felony of the fifth degree, and 

one count of Possession of Heroin in violation of R.C. 2925.11(A)/(C)(6), a felony 

of the fifth degree. Smith pled not guilty to the charges. 

{¶3} On January 20, 2017, Smith filed a motion to suppress arguing that 

video from Sergeant Menendez’s dash camera showed that Sergeant Menendez had 

no lawful cause to stop Smith’s vehicle. Smith contended that the video merely 
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showed that her vehicle’s tires touched the white edge line one time but she never 

drove outside of the marked lanes. 

{¶4} On February 17, 2017, the trial court held a hearing on the suppression 

motion. At the hearing, the State presented the testimony of Sergeant Menendez 

and entered the dash camera video of Sergeant Menendez’s cruiser into evidence. 

The video was viewed multiple times at the hearing. Sergeant Menendez testified 

that he saw things that were not present on the video as he had a slightly different 

vantage point. 

{¶5} The trial court conducted an analysis of the issues and in its judgment 

entry on the matter, the trial court held as follows. 

An evaluation as to whether Sgt. Menendez had reasonable 

suspicion to stop the Defendant’s vehicle depends on the factual 

conclusions reached by this Court. In the instant case, even 

though only one witness testified and only one exhibit was 

introduced, the evidence before the Court is in conflict. The 

conflict is between the testimony of Sgt. Menendez and what is 

clearly depicted on the video. The Court finds that, in this case, 

the video is a [sic] more probative of the facts, as it is not subject 

to fallibility of human perception or memory. 

* * * [The trial court then summarized the testimony of Sergeant 

Menendez and what was depicted on the video.] * * * 

[Based on the evidence presented,] [t]he Court makes the 

following factual findings: 

1. The Defendant’s vehicle stayed within its lane of travel at all 

times while on Vernon Heights Blvd. At 1:44:54, the right 

tires of the Defendant’s vehicle drove on top off [sic] the 

white line separating the parking area from the lane of travel 
Case No. 9-17-05 

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for approximately one second, but never crossed the line. 

This is apparent because the white line can be seen on the 

video both behind and in front of the tires, but is not visible 

where the tires are on top of the white line. 

2. When the Defendant’s vehicle entered Vernon Heights Blvd. 

at 1:43:39, Sgt. Menendez was not in a position where he 

could observe whether or not the vehicle was in its lane of 

travel, as he was too far away, and was perpendicular to the 

vehicle on the driver’s side. The Defendant’s vehicle appears 

to be operating within its lane of travel at that point as well. 

3. At no time did the Defendant’s operation of the vehicle pose 

any risk of safety to the public. There was not a single 

parked car in the parking lane anywhere on Vernon Heights 

Blvd. when the Defendant was driving on that street. 

Additionally, no pedestrians or other moving vehicles were 

on the street. Moreover, the Defendant was driving within 

the speed limit. Any slight weaving appeared to be consistent 

with normal operation. At all times, the Defendant’s vehicle 

was being operated in a safe manner. 

* * * 

For these reasons, the Court finds that Sgt. Menedez [sic] did not 

have a reasonable, articulable suspicion to believe that the 

Defendant committed a traffic violation or any other criminal 

offense. 

(Doc. No. 37). The trial court thus found the traffic stop of Smith’s vehicle invalid 

and suppressed the evidence obtained as a result. 

{¶6} It is from this judgment that the State appeals, asserting the following 

assignment of error for our review. 

Assignment of Error 

The trial court erred in granting defendant-appellee’s motion to 

suppress evidence.
Case No. 9-17-05 

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{¶7} In its sole assignment of error, the State argues that the trial court erred 

by granting Smith’s suppression motion. Specifically, the State argues that Sergeant 

Menendez specifically testified that Smith drifted outside of her lane twice, that 

Sergeant Menendez testified that he had a slightly different vantage point from the 

dash camera, and that in the video Smith’s tire clearly drove onto the white line. 

The State argues that under this Court’s decisions in State v. Shaffer, 3d Dist. 

Paulding No. 11-13-02, 2013-Ohio-3581, and State v. Anthony, 3d Dist. Seneca No. 

13-9-26, 2009-Ohio-6717, and pursuant to the Supreme Court of Ohio’s decision in 

State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, the trial court’s factual and 

legal conclusions leading to suppression in this matter were erroneous. 

Standard of Review

{¶8} “Appellate review of a decision on a motion to suppress presents a 

mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003–

Ohio–5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge 

of the credibility of the witnesses and the weight to be given to the evidence 

presented. State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist.2000). 

Therefore, when an appellate court reviews a trial court’s ruling on a motion to 

suppress, it must accept the trial court's findings of facts so long as they are 

supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 
Case No. 9-17-05 

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2006–Ohio–3665, ¶ 100. The appellate court must then review the application of 

the law to the facts de novo. Burnside at ¶ 8. 

Relevant Authority

{¶9} The primary issue before this Court in this case is whether Sergeant 

Menendez had a reasonable articulable suspicion to believe Smith committed a 

marked lanes violation pursuant to R.C. 4511.33. The Supreme Court of Ohio has 

defined “reasonable articulable suspicion” as “specific and articulable facts which, 

taken together with rational inferences from those facts, reasonably warrant the 

intrusion [upon an individual’s freedom of movement].” State v. Bobo, 37 Ohio 

St.3d 177, 178 (1988), quoting Terry v. Ohio, 392 U.S. 1, 21–22 (1968). “The 

‘reasonable and articulable suspicion’ analysis is based on the collection of factors, 

not on the individual factors themselves.” (Emphasis sic.) State v. Mays, 119 Ohio 

St.3d 406, 2008-Ohio-4539, ¶ 12, quoting State v. Batchili, 113 Ohio St.3d 403, 

2007-Ohio-2204, ¶ 11. “A traffic stop is constitutionally valid when a lawenforcement officer witnesses a motorist drift over the lane markings in violation of 

R.C. 4511.33, even without further evidence of erratic or unsafe driving. Mays at 

syllabus. 

{¶10} In this case Sergeant Menendez testified that he stopped Smith’s 

vehicle for a violation of R.C. 4511.33, which reads as follows. 

(A) Whenever any roadway has been divided into two or more 

clearly marked lanes for traffic, or wherever within municipal 
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corporations traffic is lawfully moving in two or more 

substantially continuous lines in the same direction, the following 

rules apply: 

(1) 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. 

Evidence Presented

{¶11} At the Suppression hearing Sergeant Menendez testified that while he 

was on patrol at approximately 1:43 a.m. on June 11, 2016, he was turning left onto 

a tree-lined boulevard that Smith’s vehicle was merging onto from the opposite 

direction. Sergeant Menendez testified that during Smith’s turn, he observed her 

drive over the white line on her right side. Sergeant Menendez testified that he 

thought she may have even hit the curb because it looked like her car “jumped” or 

“bounced.” 

{¶12} Sergeant Menendez testified that he followed Smith’s vehicle and that 

he observed it weaving while driving through the boulevard’s curves, though the 

weaving was done entirely within the marked lane lines. Sergeant Menendez 

admitted that the weaving did not appear to be visible on the dash camera video. 

Sergeant Menendez also testified that Smith’s vehicle was traveling under the speed 

limit, going approximately 28 mph in a 35 mph zone. 

{¶13} After following the vehicle for approximately a minute, Sergeant 

Menendez testified that he observed the vehicle travel outside of the marked lanes 
Case No. 9-17-05 

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for a second time. Sergeant Menendez testified that he then initiated a traffic stop 

for driving outside the marked lanes. 

{¶14} The State entered dash camera footage of Sergeant Menendez’s cruiser 

into evidence. Due to Sergeant Menendez being perpendicular to Smith’s vehicle, 

the first instance where Sergeant Menendez testified he observed Smith’s vehicle 

driving over the white line is not visible. As the trial court noted, there is also no 

indication of Smith’s car hitting the curb or “jumping/bouncing.” To be clear, 

Smith’s vehicle is visible as it turns onto Vernon Heights Boulevard, but nothing on 

the video shows the car either crossing the edge line or “bouncing.” 

{¶15} After the first purported incident, Sergeant Menendez followed Smith 

and while he testified that Smith was weaving within her lane, the video only shows 

perhaps the slightest shift of Smith’s vehicle entirely within her lane of travel. The 

trial court determined this to be consistent with normal travel, particularly when 

considering Smith was driving on a relatively curvy boulevard. 

{¶16} As to the second instance wherein Sergeant Menendez testified that 

Smith drove over the white edge line, the video shows that Smith did, in fact, drive 

onto the white edge line just after a truck passed in the opposite direction with its 

lights appearing fairly bright in the dash camera video. The video does not clearly 

show Smith driving over the white line, but it does show Smith’s vehicle driving 

onto the line. 
Case No. 9-17-05 

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{¶17} When the discrepancies between the video and Sergeant Menendez’s 

testimony were pointed out to Sergeant Menendez by defense counsel and by the 

trial court, Sergeant Menendez testified that he had a slightly different vantage point 

than his dash camera, and that he could see better with his naked eye. Sergeant 

Menendez also testified that there was little-to-no traffic out, that there were no 

parked cars on the street, that conditions were clear, and there were no obstructions 

on the roadway. On examination by the court regarding the video, Sergeant 

Menendez testified that he “guess[ed]” Smith’s vehicle was on top of the line and 

not over the line. 

Argument and Analysis

{¶18} Based on the evidence presented, the trial court found that the dash 

camera footage conflicted with Sergeant Menendez’s testimony and that the dash 

camera footage essentially rendered Sergeant Menendez’s testimony not to be as 

persuasive to the trial court as the video.1

 The trial court found no evidence of 

weaving, no evidence of any driving outside of the marked lanes in the first instance 

(or even onto the white line), and the trial court found that in the second instance, 

Smith’s tires were merely on top of the white edge line, not across it as Sergeant 

Menendez testified. Thus the trial court found no traffic violation warranting a stop 

by Sergeant Menendez. 

 

1

 Although the trial court did not explicitly say it found Sergeant Menendez not to be credible, it is implicit 

in the factual findings. 
Case No. 9-17-05 

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{¶19} On appeal, the State argues that the trial court’s factual and legal 

conclusions were erroneous. Regarding the factual conclusions, the State argues 

Sergeant Menendez’s testimony established a marked lanes violation, and the dash 

camera footage did not contradict his account. However, the trial court found the 

dash camera footage was more probative and thus to be given greater weight than 

Sergeant Menendez’s testimony, and the dash camera footage does support the 

findings made by the trial court. 

{¶20} As to the trial court’s legal conclusions, the State argues that the trial 

court operated on an incorrect assumption. Specifically, the State contends that 

driving onto the white line does not consist of driving entirely within the lane, and 

that the trial court thus erred for operating under the assumption that driving onto 

the white line does not constitute a marked lanes violation. In support of its 

argument, the State cites a number of cases including this Court’s decision in State 

v. Shaffer, 3d Dist. Paulding No. 11-13-02, 2013-Ohio-3581. 

{¶21} In Shaffer, we addressed whether an officer had reasonable articulable 

suspicion of criminal activity to stop a vehicle for a marked lanes violation where a 

vehicle’s tires were on the white line but parts of the vehicle, such as the fender and 

mirror, were across the line. We found that the testimony in Shaffer did not support 

a reasonable articulable suspicion to justify a traffic stop for a marked lanes 

violation. In making that finding, we reasoned as follows. 
Case No. 9-17-05 

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In drafting the foregoing subsection [R.C. 4511.33](A)(1), the 

legislature specifically chose the phase “as nearly as is 

practicable” in describing a motorist’s duty to drive within a 

single lane or line of traffic. We believe the language “as nearly as 

is practicable” inherently contemplates some inevitable and 

incidental touching of the lane lines by a motorist’s vehicle during 

routine and lawful driving, without the vehicle being considered 

to have left the lane of travel so as to constitute a marked lanes 

violation as proscribed by R.C. 4511.33(A)(1), such as to avoid 

debris, obstructions or imperfections in the roadway. 

In the alternative, the same subsection notably does not proscribe 

all movement from the marked lane but expressly links any 

movement from the marked lane directly with the element of 

safety—specifically permitting movement from the lane only 

where “the driver has first ascertained that such movement can 

be made with safety.” 

Accordingly it is our conclusion that consideration of the 

statutory factors of practicability and safety is integral to any 

determination of a violation of R.C. 4511.33(A)(1). 

We would be inclined to agree that a reasonable, articulable 

suspicion of a violation of R.C. 4511.33(A)(1) could be established 

by almost any evidence in the record addressing either the 

practicability or the safety of the driving circumstances. This 

conclusion stems in part from the fact that a sudden deviation 

from the lane of travel, where there is nothing in the surrounding 

circumstances to indicate why it was not practicable for the driver 

to remain within the lane, could in itself raise a legitimate safety 

concern sufficient to constitute a reasonable, articulable suspicion 

of a violation of R.C. 4511.33(A)(1) in the right case. 

At the same time, we also recognize that there could always exist 

something in the surrounding conditions or circumstances that 

raises a safety concern regarding the driver’s deviation from the 

lane that completely obviates any need to address the issue of the 

driver’s practicability in maintaining the lane of travel, all of 

which could likewise independently constitute a reasonable, 

articulable suspicion of a violation of R.C. 4511.33(A)(1). 
Case No. 9-17-05 

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However, the fact remains that in this case there is no evidence in 

the record from which any legitimate inference can be drawn 

regarding either one of these requisite statutory elements. As 

noted earlier, the only evidence presented to the trial court was 

Trooper Sisco’s testimony that there was a one-time touching of 

Shaffer’s tires on the white fog line, causing a slight extension of 

the right fender and mirror of the vehicle over the line for 

approximately three seconds. There was no other evidence 

concerning the circumstances surrounding Shaffer’s failure to 

maintain her lane of travel. 

More specifically, there was nothing in Trooper Sisco’s testimony 

as to the traffic, weather or road conditions, or anything else in 

the record to indicate either 1) that there was no apparent reason 

why it was not practicable for Shaffer to remain within the 

lane, or 2) that in this instance, Shaffer’s single and brief 

movement from the lane otherwise presented any apparent issue 

of safety. Accordingly, without some additional evidence in the 

record regarding the surrounding circumstances, traffic and road 

conditions going to the express statutory language regarding 

either practicability or safety, we cannot conclude that the act of 

Shaffer driving onto the white fog line one time for a matter of 

three seconds is alone sufficient to establish the requisite 

reasonable and articulable suspicion to stop Shaffer for a 

violation of R.C. 4511.33(A)(1). 

Shaffer at ¶¶ 21-27. 

{¶22} Although Shaffer reached the opposite conclusion of what the State 

advocates in this case, the State argues that the evidence that was precisely lacking 

in Shaffer is present here. The State contends that it did put forth evidence that there 

was no apparent reason for Smith to travel outside of her lane of travel and that 

Smith’s movement onto the white edge line was not for safety purposes. However, 

in this case it is clear that the trial court did not find the State’s testimony to be as 
Case No. 9-17-05 

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credible as the video evidence.2

 Under such circumstances, the State’s insistence 

that Shaffer would compel a different result here is misplaced.3

 

{¶23} As additional support, the State cites this Court’s decision in State v. 

Anthony, 3d Dist. Seneca No. 13-9-26, 2009-Ohio-6717, wherein this Court 

affirmed a trial court’s determination that a stop was valid where a vehicle crossed 

the white line by two tire-widths. Anthony is easily distinguishable from the case 

before us for multiple reasons. First, the vehicle in Anthony traveled outside its lane 

by two tire-widths, a fact that is not present here. While we do not expressly adopt 

a “tire rule,” that fact is clearly distinguishable. Second, in Anthony we merely 

upheld the trial court’s discretion in determining facts and then found that 

controlling law did not compel a different result. Thus Anthony is unpersuasive in 

these circumstances where we are upholding a trial court’s discretion to determine 

the facts so long as they are supported by competent and credible evidence. 

 

2

 In Shaffer we also expressly declined to adopt the “tire rule” as espoused by other Ohio Appellate Districts, 

wherein there is no marked lanes violation without crossing over the white line. See Wickliffe v. Petway, 

11th Dist. Nos. 2011-L-101, 2011-L-102, 2012-Ohio-2439. We chose to determine these issues on a case by 

case basis. However, the State does mostly ignore our finding in ¶ 21 of Shaffer that it seems inherent in the 

legislature’s word choice that the legislature contemplated “some inevitable and incidental touching of the 

lane lines.” (Emphasis sic.) 

3

 At the trial court level, the State insinuated that our decision in Shaffer was inconsistent with the Supreme 

Court of Ohio’s decision in State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. The trial court disagreed 

and we would emphasize that in Mays, the driver drifted entirely outside his lane of travel multiple times and 

the Supreme Court of Ohio found in those circumstances a stop was valid. While Sergeant Menendez claimed 

that Smith went outside of her lane multiple times, the trial court found this not to be credible in light of the 

video and the video does not dispute the trial court’s finding on the matter. Moreover, Mays does not deal 

with a situation where a vehicle was merely on an edge line. Furthermore, at least one Ohio Appellate Court 

has agreed with our interpretation in Shaffer. See State v. Kneier, 11th Dist. Portage No. 2015-Ohio-P-0006, 

2015-Ohio-3419 (upholding trial court’s determination that officer lacked reasonable articulable suspicion 

to stop vehicle where, inter alia, the DVD of stop disputed officer’s testimony that tire passed over the line). 
Case No. 9-17-05 

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{¶24} Finally, the State argues that a police officer’s testimony alone is 

sufficient to establish a reasonable articulable suspicion for a traffic stop, citing 

State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-1419, in support. 

Harrison at ¶ 24, quoting State v. McClellan, 3d Dist. Allen No. 1-09-21, 2010-

Ohio-314, ¶ 38 (“ ‘A police officer’s testimony alone is sufficient to establish 

reasonable articulable suspicion for a stop.’ ”). We do not dispute the statement that 

a police officer’s testimony can be sufficient to establish reasonable articulable 

suspicion for a stop; however, the State fails to acknowledge that the trial court 

apparently did not find the police officer’s testimony credible in light of the footage 

from his dash camera. Our repeated viewing of the dash camera video supports the 

trial court’s factual findings regarding the video. Although Sergeant Menendez’s 

testimony went further than what can be viewed on the dash camera, the trial court 

found that the camera footage can be viewed more credible and relied upon it. 

{¶25} Under the specific facts and circumstances of this case, we cannot find 

that the trial court erred in finding that Sergeant Menendez lacked a reasonable 

articulable suspicion to conduct a traffic stop of Smith’s vehicle. Therefore, the 

State’s sole assignment of error is overruled. 
Case No. 9-17-05 

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Conclusion 

{¶26} For the foregoing reasons, the State’s assignment of error is overruled 

and the judgment of the Marion County Common Pleas Court is affirmed. 

Judgment Affirmed 

WILLAMOWSKI and ZIMMERMAN, J.J., concur. 

/jlr