State v. Williams , 94 Ohio App. 3d 538 ( 1994 )

I respectfully dissent from the majority's decision in this case that the trial court committed reversible error in granting Randy Williams' motion to suppress. I would have affirmed the trial court's decision based upon the following interpretation of the trial court's reasoning for granting the motion to suppress.

The state contends that the trial court erred in concluding "impeding the flow of traffic" is not a traffic violation. According to the state, as a result of this finding, the trial court expanded its error by granting the motion to suppress on an erroneous conclusion.

The majority accepts the state's argument, and, therefore, independently determines whether the trial court erred in applying the substantive law to the facts of this case. Finding that Detectives Garisek and Nolan properly stopped Williams for impeding traffic under R.C. 4511.22 and Section 433.04 of the Cleveland Codified Ordinances, the majority then finds that Det. Garisek was justified in conducting a limited weapons search of the car after observing "furtive gestures."

The majority's analysis is an accurate and in-depth discussion of the law concerning a police officer's right to stop a vehicle for a traffic violation, to order the driver out of the car, and to conduct a search of the car if warranted under the circumstances. However, the analysis misses what I view is the main issue in this case, i.e., whether the trial court believed Det. Garisek's testimony at all. Whether Williams' "impeding the flow of traffic" allowed the traffic stop, and whether his "furtive gestures" justified the subsequent search are irrelevant. A simple review of the record reveals the majority's crucial error.

The trial court had a difficult time with determining why the detectives thought Williams committed a traffic violation. First, the court asked Det. Garisek what ordinance was violated by Williams' vehicle sitting in the street. No ordinance was cited, as the state argued that it did not matter whether Williams actually violated an ordinance; what mattered was the detectives' belief that there was a traffic violation. Since no ordinance could be cited to support a "lawful stop," the trial court elaborated and then concluded:

"THE COURT: We have three Cleveland police detectives as I understand it in a — I mean two Cleveland police detectives, narcotic detectives on patrol in an area that they regard as worthy of patrolling because of the level of incidents of law violations in which they regard as dangerous in a high crime area. They make a turn onto this street because there had been drug trafficking on the street.

"I guess you're just taking a look and you see a car stopped in the middle of the street. They honk the horn. The defendant has testified he didn't hear any car. He said he was moving before he became aware that anybody was even behind him and denies that he was stopped there at the time, which incidentally is not really inconsistent with what the detective testified to.

"If he didn't know the officer was behind him, then he would have no way of knowing that.

"But when the flashers were put on, he pulled over.

"The officer himself testified that it was only a matter of seconds that the car was there. He saw him in a stopped position.

"As is said in our dialogue here, I don't know what this ordinance is that supposively [sic] he violated.

"* * *

"* * * I'm skeptical of the testimony here that says the twodetectives are enforcing the traffic laws.

"* * *

"* * * I have a lot of doubts that the real reason for thisstop was a traffic violation, to take such extraordinary actions.

"And obviously because I have doubts about that, I'm left with further doubts about whether anything like this can be justified on the old saw that we have come in here with what was a Terry stop.

"And frankly, I'm not left with confidence that that happened here. * * *

"Then I'm told here it was a traffic violation. I don'tbelieve it was a traffic stop violation. So I'm going to grant the motion to suppress." (Emphasis added.)

It is apparent from this discourse that the trial court was influenced by the fact that the detectives were in the "high crime" area in order to investigate drug sales taking place on the very street on which they stopped Williams. The trial court also recognized that Williams' vehicle was stopped very briefly. Finally, the trial court expressed its doubt that "the real reason for this stop was a traffic violation." (Emphasis added.)

The trial court had the opportunity to observe the witnesses and then found that the officers' justification that a traffic violation warranted the stop was not a valid one. The court, as the trier of fact, had the discretion to believe or not believe the police officers' version of the events. State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. In light of this edict, the state's assignment of error should have been overruled. SeeState v. Abkeimer (1992), 83 Ohio App. 3d 633, 615 N.E.2d 656 (based on credibility determination, trial court did not err in suppressing evidence where officer only assumed vehicle was speeding).

Moreover, in State v. Gullett (1992), 78 Ohio App. 3d 138,604 N.E.2d 176, the Highland County Court of Appeals recognized that the touchstone of the Fourth Amendment is reasonableness.Id. at 145, 604 N.E.2d at 180-181. The pertinent facts inGullett were as follows: a Highland County Deputy Sheriff spotted a pickup truck driving down a highway at a lawful rate of speed at 2:30 a.m. in December 1990; the deputy followed the truck for about one and one-half miles; the truck "drifted over to the right and crossed the white edge line and then veered back into the lane of travel"; the truck then made a sharp right turn, consequently crossing the edge line which extended into the intersection; no other traffic was present; and there was no other abnormal or erratic driving beyond the crossing over of the edge lines. Id. at 140-141, 604 N.E.2d at 177-178. The driver of the truck, Gullett, was stopped and charged with violating R.C. 4511.33(A), movement from one lane to another on a divided roadway without first ascertaining whether such movement is safe, and R.C. 4511.19(A)(1), operating a motor vehicle while under the influence of alcohol or a drug of abuse.Id. at 141, 604 N.E.2d at 178.

Gullett filed a motion to suppress, which was partially premised on an unlawful stop of his vehicle. Id. The trial court granted the motion to suppress. Id. at 142,604 N.E.2d at 178-179.

The state appealed the trial court's granting of the motion to suppress. In support of the appeal, the state argued that the two incidents of crossing the edge line justified the stop. The appeals court rejected this argument, and reasoned as follows:

"It is at least arguable that the center line and the edge line define the boundaries of a single lane in which a vehicle must be operated. Even so, it does not follow that every crossing of the edge line, regardless of circumstances, constitutionally justifies a stop. Since a stop isper se unreasonable, it was incumbent on appellant [the state] to fully develop the circumstances to justify a non-warrant seizure. The evidence does not disclose if the initial crossing was only momentary or how far the line was crossed. * * *

"The touchstone of the Fourth Amendment is reasonableness.Where a vehicle is driven on a roadway with no other trafficpresent, there was no speeding, erratic driving or otherconduct, except for the edge line incident, to indicate thatappellee was impaired, the balance is in favor of the right ofprivacy and against the need for the stop. Based on the totality of the circumstances, we are not persuaded that sufficient articulable facts, and inferences therefrom, existed to constitutionally justify the stop." (Emphasis added.) Id. at 145,604 N.E.2d at 180-181.

Therefore, even though the statute, R.C. 4511.33, requires that a vehicle be operated within boundaries of a single lane, every crossing of an edge line, regardless of circumstances, does not necessarily constitutionally justify a stop of the vehicle. The Gullett court found that the balance is in favor of the right to privacy and against the need for the stop when there was no other traffic present, or any other indication that the driver was incapable of operating his vehicle.

As applied to the instant case, assuming arguendo that Williams' vehicle was "impeding traffic," a fact the trial court rejected, the officers' nearly immediate stop of the vehicle was not warranted under the circumstances. Det. Garisek and Det. Nolan were in the area of East 140th Street and McElhattan, a "violent, high crime area," investigating mostly drug complaints. Det. Garisek testified that they turned the corner onto McElhattan, and immediately spotted a Chevette driven by Williams "parked" in the middle of the street. A mere fifteen seconds passed by prior to the activation of the overhead lights because the Chevette was "impeding the flow of traffic." Williams' vehicle was the only vehicle in the street; there were no vehicles approaching Williams' vehicle except for the detectives' vehicle. Det. Garisek furthermore did not observe any activity around the Chevette, i.e., there were no pedestrians around the vehicle, or any other suspicious activity.

Just as the court stated in Gullett, I find it to be particularly true here that "[w]here a vehicle is driven on a roadway with no other traffic present, there was no speeding, erratic driving or other conduct, except for the [brief stop in the street], to indicate that appellee was impaired, the balance is in favor of the right of privacy and against the need for the stop." Gullett, 78 Ohio App.3d at 145, 604 N.E.2d at 180-181. As I stated supra, my opinion is that the trial court did not believe there was any traffic violation, but assuming there was, I still would have overruled the state's assignment of error based upon the reasoning in Gullett.

In conclusion, the totality of the circumstances in the present case leads me to conclude that these two detectives, who were out investigating drug complaints in a "violent, high crime area," had an agenda of their own. They used the alleged traffic violation as a ruse to approach the driver, and search his person and vehicle for evidence of a drug violation.

What is most perplexing to me about my conclusion is that the majority in the present case, as well as myself, recently came to a similar conclusion in State v. Medlar (1994), 93 Ohio App. 3d 483, 638 N.E.2d 1105. We recognized therein that a police officer in North Olmsted, a non-high crime area, had an agenda of his own to use a parking violation as a ruse to approach a driver, search his person for evidence of intoxication, and seize him to conduct field sobriety and blood-alcohol content tests. The trial court was under the same impression in this case, and properly granted Williams' motion to suppress. The majority consequently fails to afford the appropriate deference to the trial court's findings and conclusion, and fails to observe what was obviously apparent to the trial court, that Williams was "set up" by the detectives.

Accordingly, I would have overruled the state's assignment of error and affirmed the trial court's decision.