[Cite as State v. Liebling , 2012-Ohio-5818.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellant

v.

ADAM LIEBLING Appellee C.A. No. 12CA010203

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 10-CR-80041

DECISION AND JOURNAL ENTRY Dated: December 10, 2012

MOORE, Judge. {¶1} Appellant, State of Ohio, appeals the ju dgment of the Lorain County Court of Common Pleas granting defendant, Adam Liebling’s, motion to suppress. This Court reverses.

I. {¶2} On February 2, 2010, Ohio State Highway Patrol Trooper Todd Roberts (“Trooper Roberts”) conducted a traffic stop of Li ebling’s vehicle which bore California plates. According to Trooper Roberts, Liebling drove outside the “white fog line” once and on the fog line twice. Trooper Roberts asked for Liebling’s license and vehicle registration. He then asked numerous questions about why and how long Lieb ling was in California, how he got there, where he currently lived, and his current destinati on. Roberts then explained that he would issue a warning for the traffic violations if he was able to verify the validity of the vehicle’s registration. He then asked Liebling if he ha d any drugs in the vehicle because he smelled marijuana. Liebling denied there were any drugs in the car, and he was placed in the back of2

Trooper Robert’s patrol car. Throughout the st op, Liebling denied having committed any traffic violations and questioned why Trooper Roberts pulled him over. {¶3} While Trooper Roberts was verifying Lieb ling’s license and registration, a K9 unit arrived. The drug dog immediately alerted to the bed of Liebling’s pick-up truck. Trooper Roberts then informed Liebling that they were go ing to search his car. Officers found more than forty-four pounds of marijuana in Liebling’s vehicle. {¶4} Liebling was indicted on trafficking, in violation of R.C. 2925.03(A)(2), a felony of the second degree; possession of more than 20,000 grams of marijuana, in violation of R.C. 2925.11(A), a felony of the second degree; possession of criminal tools, in violation of R.C. 2923.24(A), a felony of the fifth degree; and dr ug paraphernalia, in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree. {¶5} Liebling filed a motion to suppress argu ing the traffic stop was unconstitutional, and the court held a hearing. At this hearing, only Trooper Roberts testified. The court denied Liebling’s motion. Almost a year later, after Liebling obtained new coun sel, he filed a second motion to suppress and the court held another hearing at which Liebling testified and was cross examined by the State. At this hearing, he withdrew his pending motion, but requested the court

reconsider his first motion to suppress based on his testimony heard that day. The parties stipulated to the admission of the video of the traffic stop taken from Trooper Roberts’ dashboard camera. The court also per mitted the parties to brief the issues. {¶6} On December 27, 2011, Liebling filed a s upplemental memorandum in support of his motion to suppress. The State followed with a memorandum in opposition. Liebling then filed another supplementa l memorandum, raising a new issue of the handling of the drug dog evidenced in the Trooper’s video. The State reque sted a hearing to present evidence on the new3

issue raised. The trial court granted Liebling’ s motion to suppress without ruling on the State’s

request. {¶7} The State now appeals and presents three a ssignments of error for our review. To facilitate the analysis, we address the assignments of error out of order.

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT MISAPPLIED THE LAW TO THE FACTS OF THE CASE AND ERRED IN REACHING THE ULTIMATE CONCLUSION GRANTING LIEBLING’S MOTION TO SUPPRESS. {¶8} In its second assignment of error, the St ate argues that the trial court erred in granting Liebling’s motion to suppress because it us ed the incorrect legal standard required for a valid traffic stop. Appellate review of a motion to suppre ss presents a mixed question of law and fact. When considering a motion to suppre ss, the trial court a ssumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills , 62 Ohio St.3d 357, 366 (1992). Consequently, an appe llate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Fanning , 1 Ohio St.3d 19 (1982). Accepting these facts as true, the appellate court must then independently determine, w ithout deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara , 124 Ohio App.3d 706 (4th Dist.1997).

State v. Burnside , 100 Ohio St.3d 152, ¶ 8. Thus, this Cour t reviews the trial court’s factual findings for competent, credible evidence and co nsiders the court’s lega l conclusions de novo. State v. Payne , 9th Dist. No. 11CA0029, 2012-Ohio-305, ¶ 9. {¶9} The Fourth Amendment to the United St ates Constitution and Section 14, Article 1 of the Ohio Constitution prohibit unreasonable searches and seizures. State v. Kinney , 83 Ohio St.3d 85, 87 (1998). A traffic stop is a seizure within the meaning of the Fourth Amendment.

Whren v. United States , 517 U.S. 806, 809-810 (1996). To justify a traffic stop, an officer must4

have a reasonable suspicion of criminal activity. Maumee v. Weisner , 87 Ohio St.3d 295, 299 (1999). Accord Terry v. Ohio , 392 U.S. 1, 22 (1968). A police officer has sufficient cause to conduct a traffic stop if the officer witn esses a violation of a traffic law. State v. Campbell , 9th Dist. No. 05CA0032-M, 2005-Ohio-4361, ¶ 11. {¶10} After two hearings and extensive briefing, the trial court found that “[t]he State []

failed to meet its burden to demonstrate probable cause to support the traffic stop.” (Emphasis added.) The State, however, was only re quired to prove that the officer had a reasonable suspicion of criminal activity in order to make a valid traffic stop. Weisner at 299. Accordingly, the State’s second assignment of error is sustained, and the case is remanded for the trial court to apply the correct legal standard.

ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED WHEN IT GRANTED [] LIEBLING’S MOTION TO SUPPRESS BASED ON FACTS NOT ADMITTED INTO EVIDENCE.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN GRANTING LIEBLING’S MOTION TO SUPPRESS BASED, IN PART, ON AN ISSUE NOT RAISED IN HIS MOTION TO SUPPRESS AND IN DENYING THE STATE THE OPPORTUNITY TO PRESENT EVIDENCE REGARDING THAT ISSUE. {¶11} In its first and third assignments of error, the State argues that the trial court erred in granting Liebling’s motion to suppress because (1) its findings relied on evidence not in the record, and (2) the court improperly denied the St ate’s request to present additional evidence to rebut an argument raised in Lieb ling’s third supplemental memorandum. {¶12} These issues are not ripe for review, and we decline to address them.5

III. {¶13} The State’s second assignment of error is sustained, and its remaining assignments of error are not ripe for review. The judgment of the Lorain County Court of Common Pleas is reversed, and the cause is remand ed for further proceedings consistent with the foregoing opinion. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry th is judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

CARLA MOORE FOR THE COURT

CARR, J. CONCURS.6

BELFANCE, J. CONCURRING. {¶14} I concur. The sole basis for the stop in this case was an alleged traffic violation, which, if true, would furnish proba ble cause to stop the vehicle. See Whren v. United States , 517 U.S. 806, 810 (1996) (officer may stop vehicle upon probable cause that traffic violation has occurred); Illinois v. Caballes , 543 U.S. 405, 407 (2005). Absent probable cause, law enforcement may not constitutionally stop a vehicle unless the officer observes facts giving rise to a reasonable, articulable suspicion of criminal activity. See State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 8. See also Terry v. Ohio , 392 U.S. 1, 21 (1968). In this case, the trial court’s journal entry does state that it did not fi nd the Trooper’s testimony to be credible thus, suggesting both the absence of probable cause and reasonable articulable suspicion. Hence, any error could be viewed as harmless. However, I agree that, in light of the apparent ambiguity, upon remand the trial court should clarify its journal entry so it makes clear whether it determined that that the officer lacked both probable cause and reasonable articulable suspicion to stop the vehicle.

APPEARANCES: DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellant. JOSEPH LANDUSKY, Attorney at Law, for Appellee.