State v. DuncanState v. Duncan
APPEARANCES:
Peter Scranton, Bowen, Scranton, & Olsen, LLC, Columbus, Ohio, for Appellant.
Jason Holdren, Gallia County Prosecuting Attorney, and Isaac Beller, Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for Appellee.
Smith, P.J.
{¶1} Appellant, Vandonte T. Duncan, appeals the judgment of the Gallia County Court of Common Pleas convicting him of one count of possession of a fentanyl-related compound in violation of
FACTS
{¶2} On August 18, 2022, at approximately 6:30 p.m., Appellant‘s vehicle was stopped while traveling eastbound on U.S. Route 35 in Gallia County, Ohio. After a search of his vehicle was conducted, Appellant was arrested and later indicted for one count of possession of a fentanyl-related compound, a first-degree felony in violation of
{¶3} The suppression motion alleged there was no lawful cause for the stop or the detention, and further alleged that there was no probable cause for the arrest. A suppression hearing was held on April 10, 2023 with the parties having narrowed the issues to the validity of the initial stop. Trooper Joshua Newman testified on behalf of the State. He testified that he was the officer who initiated the stop of Appellant‘s vehicle on the day in question. He explained that he was working drug interdiction on U.S. Route 35 that day and was sitting stationary in the “crossover,” alongside Trooper Atwood. He testified that he witnessed Appellant commit a lane violation by driving over the white fog line. He further
{¶4} As a result, he pulled out and began following Appellant‘s vehicle. He testified that he then observed a second lane violation. He explained it was sunny that day and that he had a clear view of both lane violations. Upon stopping Appellant‘s vehicle and confronting him as to whether he was driving distracted, Appellant made a comment regarding using his “navigation.” A canine sniff and search of the vehicle ensued, resulting in the discovery of what was later determined to be a fentanyl-related compound. Trooper Newman testified that the lane violations he witnessed were not caught on video because he had not yet activated his dashcam when they occurred.
{¶5} On cross-examination, Trooper Newman clarified that Appellant “crossed over the white fog line.” He stated that the white fog line is the “solid white line on the right side.” He further stated that Appellant‘s “tires traveled over the outside edge of the fog line” by a full tire width. When asked, he testified that Appellant‘s marked lanes violation did not create a safety hazard on the day in question.
{¶6} The trial court denied Appellant‘s motion to suppress, finding that Trooper Newman had probable cause to initiate a traffic stop. In reaching its decision, the court reasoned “[t]hat the violations did not occur on camera does not
ASSIGNMENT OF ERROR
I. THE APPELLANT BELIEVES THE TRIAL COURT ERRED WHEN OVERRULING THE DEFENDANT‘S MOTION TO SUPPRESS AS IT RELATED TO THE TRAFFIC STOP. APPELLANT-DEFENDANT DUNCAN ARGUES THAT THERE WAS NO LAWFUL CAUSE FOR THE TRAFFIC STOP, A FAILURE TO DRIVE WITHIN MARKED LANES. THE FINDING WAS CONTRARY TO THE VIDEO EVIDENCE AND OFFICER TESTIMONY PROVIDED IN THE SUPPRESSION HEARING.
{¶7} In his sole assignment of error, Appellant contends that the trial court erred in overruling his motion to suppress, which argued there was no lawful cause to initiate a traffic stop. Appellant further argues that the finding he committed a marked lanes violation was contrary to the video evidence introduced at the suppression hearing. The State responds by arguing that not only was evidence presented that Appellant crossed the fog line more than once, evidence was presented indicating that upon being stopped by law enforcement and being
Standard of Review
{¶8} Generally, “appellate review of a motion to suppress presents a mixed question of law and fact.” State v. Codeluppi, 2014-Ohio-1574, ¶ 7, citing State v. Burnside, 2003-Ohio-5372, ¶ 8. The Supreme Court of Ohio has explained as follows:
When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Citations omitted.) Burnside at ¶ 8.
Legal Analysis
{¶9} “The Fourth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State v. Emerson, 2012-Ohio-5047, ¶ 15. The Supreme Court of Ohio has held that these provisions provide the same protection in felony cases. State v. Hawkins, 2019-Ohio-4210, ¶ 18 (4th Dist.). “This constitutional guarantee is
{¶10} ” ‘[S]earches [and seizures] conducted outside the judicial process, without prior approval by [a] judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ ” (Citations omitted.) State v. Conley, 2019-Ohio-4172, ¶ 17 (4th Dist.), quoting Katz v. United States, 389 U.S. 347, 357 (1967). “Once a defendant demonstrates that he or she was subjected to a warrantless search or seizure, the burden shifts to the state to establish that the warrantless search or seizure was constitutionally permissible.” State v. Dorsey, 2019-Ohio-3478, ¶ 13 (4th Dist.). In this case, it is clear that Trooper Newman acted without a warrant in initiating the traffic stop at issue.
Lawfulness of Stop
{¶11} Appellant argues under his sole assignment of error that the initial stop of his vehicle was unlawful. First, he argues that there was no evidence of a marked lanes violation because there was no dashcam video evidence introduced at the suppression hearing. Second, Appellant appears to argue that because the State failed to introduce evidence that his driving outside of marked lanes created a safety hazard, there was no probable cause for the stop.
“To justify a traffic stop based upon reasonable suspicion, the officer must be able to articulate specific facts that would warrant a person of reasonable caution to believe that the driver has committed, or is committing, a crime, including a minor traffic violation.” State v. Taylor, 2016-Ohio-1231, 62 N.E.3d 591, ¶ 18 (4th Dist.). The existence of reasonable suspicion depends on whether an objectively reasonable police officer would believe that the driver‘s conduct constituted a traffic violation based on the totality of the circumstances known to the officer at the time of the stop. Id.
Moreover, a police officer may stop the driver of a vehicle after observing even a de minimis violation of traffic laws. See State v. Williams, 4th Dist. Ross No. 14CA3436, 2014-Ohio-4897, 2014 WL 5513050, ¶ 9, citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus. “[A] traffic stop with the proper standard of evidence is valid regardless of the officer‘s underlying ulterior motives as the test is merely whether the officer ‘could’ have performed the act complained of; pretext is irrelevant if the action complained of was permissible.” See State v. Koczwara, 7th Dist. Mahoning No. 13MA149, 2014-Ohio-1946, 2014 WL 1877464, ¶ 22, citing Erickson at 7 and 11, 665 N.E.2d 1091.
{¶14} Here, Trooper Newman testified that as he was sitting stationary in the “crossover” on the highway in Gallia County, Ohio, he observed Appellant‘s vehicle heading eastbound. He testified that he initially noticed Appellant because he was sitting upright in a “rigid” position. He then observed Appellant‘s right tires completely cross over the white fog line on the right side of the road. He explained that as a result, he pulled out to follow Appellant. He testified that upon following Appellant, he observed a second marked lanes violation when Appellant again crossed over the white fog line on the right side of the road. He conceded on
{¶15}
{¶16} We initially address Appellant‘s second argument, which contends the State failed to demonstrate that Appellant failed to ascertain that traveling outside of the marked lanes could be done safely and therefore there was no valid basis for the stop. Appellant cites two cases in support of his argument. First, he cites State v. Barner, 2004-Ohio-5950 (9th Dist.), which held that the defendant‘s conviction for failure to drive within a marked lane of traffic was against the manifest weight of the evidence where the State failed to present any evidence that the defendant moved from his lane without first ascertaining that such movement could be done with safety. Second, he cites State v. Ross, 2013-Ohio-1488, ¶ 5 (9th Dist.),
{¶17} However, we find neither of these cases apply to the case sub judice, which challenges the lawfulness of the initial stop, not whether there was sufficient evidence to support a conviction for a marked lanes violation. See State v. Hernandez, 2010-Ohio-2066, ¶ 10-12 (drawing a distinction between the evidence required to sustain a conviction for a marked lanes violation versus the evidence required to demonstrate probable cause to justify a traffic stop founded upon a marked lanes violation), citing State v. Mays, 2008-Ohio-4539, ¶ 25 (holding that “a traffic stop is constitutionally valid when a law-enforcement officer witnesses a motorist drift over the lane markings in violation of
{¶18} Appellant‘s remaining argument under this assignment of error is that “[n]o speed violation nor marked lanes violation occurred.” However, he concedes that Trooper Newman testified that he witnessed two lane violations, the first of which occurred while he was sitting stationary and the second after he pulled out to follow Appellant. Thus, Appellant essentially argues that because the marked
{¶19} In State v. Wooten, 2002-Ohio-1466 (4th Dist.), this Court reversed the grant of a defendant‘s motion to suppress, holding that a police officer‘s failure to make a video and audio tape of a driving under the influence traffic stop did not constitute a violation of due process warranting suppression of evidence. A review of Wooten reveals that although this Court ultimately reversed the trial court‘s grant of the defendant‘s motion to suppress, we cautioned the State as follows:
We believe that the officer‘s failure to use the audio and video equipment could properly be considered by the trier of fact, whether during a motion to suppress evidence hearing to determine the existence of probable cause to arrest or at trial on the merits, in the exercise of its duty to assess witness credibility. In other words, a trier of fact could choose to discount an officer‘s testimony in view of the failure to collect audio and video evidence.
{¶20} Other courts have more recently determined “that a failure of the police to create an audio or video recording, even if the recording could be potentially useful to the defense, does not violate a defendant‘s due process rights.”
{¶21} The Supreme Court of Ohio has recently explained that although driving on or touching the white fog line does not constitute a marked lanes violation, the plain language of
{¶22} Although the trial court, as the trier of fact, was free to discount or outright reject Trooper Newman‘s testimony in the absence of accompanying video footage confirming the trooper‘s testimony, it was also free to accept the testimony, which it apparently did. State v. Hammond, 2019-Ohio-4253, ¶ 56 (4th Dist.); State v. Wooten, supra, at *4. We must accord deference to the trier of fact on credibility issues because “it is in the best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their credibility.” Hammond at ¶ 56. Furthermore, the commission of even a single de minimis traffic violation, of which a marked lanes violation qualifies, provides probable cause to stop a vehicle and here, upon being asked if he was distracted in some way, Appellant appears to have indicated that he had been using his navigation system while driving.
{¶23} In light of the foregoing, we cannot conclude that the trial court erred in denying Appellant‘s motion to suppress based upon the grounds that the initial investigatory stop was invalid. Thus, because we find no merit to the arguments raised under Appellant‘s sole assignment of error, it is overruled. Accordingly, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.