STATE OF OHIO v. ALAN R. DEAN
Case No. 12-CA-60
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 1, 2013
2013-Ohio-313
Hon. Patricia A. Delaney, P.J.; Hon. William B. Hoffman, J.; Hon. Sheila G. Farmer, J.
CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 12TRC02814; JUDGMENT: Reversed
For Plaintiff-Appellee
J. MICHAEL KING
35 South Park Place
Suite 35
Newark, OH 43055
For Defendant-Appellant
ROBERT E. CALESARIC
35 South Park Place
Suite 150
Newark, OH 43055
{¶1} On March 18, 2012, Pataskala Police Officer Joshua Silverman stopped appellant, Alan Dean, for impeding traffic. Upon investigation, appellant was charged with driving under the influence in violation of
{¶2} On April 24, 2012, appellant filed a motion to suppress, claiming an illegal traffic stop. A hearing was held on June 13, 2012. By judgment entry filed June 18, 2012, the trial court denied the motion.
{¶3} On June 29, 2012, appellant plеd no contest to the charge. By judgment entry filed same date, the trial court found appellant guilty and sentenced him to sixty days in jail, fifty-four days suspended.
{¶4} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
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{¶5} “APPELLEE DID NOT MEET ITS BURDEN AND ESTABLISH THAT OFFICER SILVERMAN HAD PROBABLE CAUSE OR REASONABLE SUSPICION TO STOP APPELLANT.”
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{¶6} Appellant claims the trial court erred in denying his motion to suppress as Officer Silverman lacked reasonable suspicion of criminal activity to warrant the stop of his vehicle. We agree.
{¶7} There are three methods of сhallenging on appeal a trial court‘s ruling on a motion to suppress. First, an appellant may challenge the trial сourt‘s findings of fact.
{¶8} In Terry v. Ohio, 392 U.S. 1, 22 (1968), the United States Supreme Court determined that “a police officer may in appropriate circumstances and in an appropriate manner approaсh a person for purposes of investigating possible criminal behavior even though there is no probable cause tо make an arrest.” However, for the propriety of a brief investigatory stop pursuant to Terry, the police officer involved “must be able to point to specific and articulable facts which, taken together with rational inferences
{¶9} Appellant claims there was no evidence of impaired driving to warrant the stop. He argues slow speed is insufficient tо establish reasonable suspicion of criminal activity.
{¶10} The undisputed evidence establishes Officer Silverman was traveling in the opposite direction when he observed appellant traveling at a slow speed (28 m.p.h. in a 45 m.p.h. zone). T. at 7-8. Officer Silverman made a u-turn and pulled behind a vehicle that was behind appellant‘s vehicle. T. at 8. As soon as the road became two lanes, the vehicle behind appellant passed him. Id.
{¶11} Officer Silverman continued to follow appellant‘s vehicle and observed him slow down to 15-20 m.p.h. in a 35 m.p.h. zone. T. at 9, 17. Appellant then activated his right turn signal for 500 feet and passed by seven to еight business driveways before turning onto Main Street. T. at 9-10. The turn was wide and “real slow.” T. at 10. Appellant activated his right turn signal again and turned onto Third Street. T. at 10, 19. Officer Silverman then pulled appellant over for impeding traffic, slow speed, and “abnormal” driving. Id. We notе the speed limit on Main Street was 25 m.p.h. T. at 18. Officer Silverman‘s observations of appellant‘s driving encompassed a one mile distance. T. at 13-14; Defendant‘s Exhibit B.
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{¶13} Many appellate courts have addressed the stopping of a vehicle for slow speed. State v. Cockrell, 4th Dist. No. 93CA1957 (July 25, 1994); State v. Hagerty, 11th Dist. Nos. 2001-P-0083 and 2001-P-0084, 2002-Ohio-3379; State v. Bacher, 170 Ohio App.3d 457 (2007). The distinguishing fact in these cases is whether traffic was impeded or obstructed:
Also, although one may be stopped for going substantially under the speed limit, generally such a defendant has been found to have been seriously impeding traffic or going unreasonably slow to create a safеty risk before a stop is justified. State v. Poynter (1992), 78 Ohio App.3d 483 (defendant was travelling ten miles an hour in a forty-five zone); State v. Wright (Oct. 17, 1990), Pickaway App. No. 89-CA-19, unreported (a line of cars had backed up behind defendant).
Cockrell, supra, at *3.
{¶14} This district has also adopted the view that slow speed alone is insufficient to warrant a traffic stop. See, State v. Beghin, 5th Dist. No. 2003CA00297, 2004-Ohio-2654. The prevailing view is that “slow speed” without some demonstrаtion of impeding or obstruction of traffic is insufficient to validate a stop; however, each case must be examined in light of its own specific facts and circumstances.
{¶16} We find for the officer to conclude that something was “abnormal” (T. at 22) was tantamount to a hunch and was nоt based upon specific and articulable facts that criminal activity was afoot. While many impaired drivers drive slowly, many unimрaired drivers do too. If traffic is not impeded or obstructed, there is no criminal activity.
{¶17} Based upon the facts of this casе, we find the trial court erred in denying appellant‘s motion to suppress.
{¶18} The sole assignment of error is granted.
By Farmer, J.
Delaney, P.J. and
Hoffman, J. concur.
_s/ Sheila G. Farmer_______________
_s/ Patricia A. Delaney_____________
_s/ William G. Hoffman_____________
JUDGES
SGF/sg 111
STATE OF OHIO v. ALAN R. DEAN
CASE NO. 12-CA-60
IN THE COURT OF APPEALS FOR LICKINGCOUNTY, OHIO FIFTH APPELLATE DISTRICT
2013-Ohio-313
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Municipal Court of Licking County, Ohio is reversed. Costs to appellee.
_s/ Sheila G. Farmer_______________
_s/ Patricia A. Delaney_____________
_s/ William G. Hoffman_____________
JUDGES