Lead Opinion
{¶ 2} Undisputed testimony at the hearing on Gibson-Sweeney's motion to suppress reveals the following. At approximately 2:49 a.m., on February 12, 2005, Officer Jeffrey Bilicic of the Village of Kirtland Hills Police Department, was in his police cruiser in the right-hand "breakdown lane" on Interstate 90 East in Kirtland Hills, Ohio, having just completed a traffic stop of another vehicle. At the time, the headlights and the red interior dome light of Officer Bilicic's vehicle were on, and his overhead lights were off. There were no lights on that portion of the highway. While entering information into his police log, Officer Bilicic observed a vehicle, driven by appellee, apрroach from behind in his rear-view mirror. After Gibson-Sweeney's vehicle had passed his police cruiser by approximately 100 feet, Officer Bilicic looked up and saw appellee's vehicle drift over the right hand edge line, by a distance of about two to three inches from the inside edge of the tires, and continued so traveling for a distance of approximately 600 feet, before crossing back into the lane of travel.
{¶ 3} Upon observing this, Officer Bilicic re-entered the roadway and followed Gibson-Sweeney's vehicle. Officer Bilicic testified that Gibson-Sweeney's vehicle was "some distancе ahead of him" before he re-entered the roadway, and that her vehicle had subsequently re-entered the lane of travel without any further incident. Officer Bilicic further testified that he was in the process of running the license plate number on Gibson-Sweeney's vehicle, when she pulled into a rest stop lеss than a mile up the road. Officer Bilicic eventually caught up to Gibson-Sweeney's vehicle at the same time she was leaving the roadway to enter the rest stop. Officer Bilicic stated that he then followed her into the rest stop, for the purpose of issuing a citation for a marked lane violation. When asked why he waited for appellee to enter one of the parking spots before activating his overhead lights and approaching appellee's vehicle, Officer Bilicic testified that it would not have been safe to pull her over because of the number of trucks on thе side of the road in the rest area.
{¶ 4} Officer Bilicic then approached appellee's vehicle and informed her of the reason for the stop, at which time Gibson-Sweeney informed him that the reason she had crossed over the line was because she was "paying attention to me at the side of the road." As Bilicic was talking to Gibson-Sweeney, he detected a "strong odor" of alcohol and "observed her eyes to be bloodshot and glassy." When Officer Bilicic asked Gibson-Sweeney how much she had to drink, she responded that she had three beers that night.
{¶ 5} Officer Bilicic then asked Gibson-Sweеney to step out of the vehicle, for the purpose of conducting standardized field sobriety tests. Based on the foregoing observations, and Gibson-Sweeney's performance on the field sobriety tests, she was charged with driving under the influence of alcohol, in violation of R.C.
{¶ 6} On April 14, 2005, Gibson-Sweeney filed a motion to suppress. A hearing was held on appellee's motion on May 11, 2005. In its judgment entry, the court stated that "[b]ased upon the totality of the circumstances, and the credibility of the testimony, the Court finds Officer Biliсic did not have probable cause to stop Defendant's vehicle."
{¶ 7} On June 3, 2005, the court granted Gibson-Sweeney's motion to suppress. The State timely appeals, asserting a single assignment of error:
{¶ 8} "The trial court erred to the prejudice of the State and Village in granting the motion to suppress filеd by the defendant-appellee."
{¶ 9} Our analysis of the case sub judice begins by a discussion of the appropriate standard of review.
{¶ 10} Appellate review of the grant or denial of a motion to suppress presents a mixed question of law and fact. State v.Burnside,
{¶ 11} The
{¶ 12} Kirtland Hills Codified Ordinance No. 331.08(A), which mirrors R.C.
{¶ 13} "Whenever any roadway has been divided into two or more clearly marked lanes for traffic, or wherever traffic is lawfully moving in two or more substantially cоntinuous lines in the same direction, * * * a vehicle shall be driven, as nearly as is practicable, entirely within a single line or lane 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."
{¶ 14} The State maintains that Officer Bilicic's observatiоn of appellee's marked lane violation provided probable cause to believe a traffic offense was committed and, accordingly, the initial stop of Gibson-Sweeney's vehicle was constitutional. Appellee counters, and the trial court agreed, that an investigatory stоp, based upon a de minimis marked lane violation, without some additional evidence suggesting impairment, was in violation of her
{¶ 15} The Supreme Court of Ohio has held that "where a police officer stops a vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable under the
{¶ 16} This court has repeatedly followed the rule ofErickson in situations where the officer has personally observed any violation of a traffic law or ordinance. See Statev. Teter (Oct. 6, 2000), 11th Dist. No. 99-A-0073,
{¶ 17} In the case sub judice, the trial court found on the basis of the testimony at the hearing, and neither party disputes, that appellee crossed the outside edge line of the highway after passing the spоt where Officer Bilicic was sitting in his vehicle, which is a prima facie violation of R.C.
{¶ 18} Accordingly, we reverse the judgment of the Willoughby Municipal Court and remand for proceedings consistent with this opinion.
Ford, P.J., concurs,
O'Toole, J., dissents with a Dissenting Opinion.
Dissenting Opinion
{¶ 19} For the following reasons, I respectfully dissent.
{¶ 20} At a hearing on a motion to suppress, the trial court functions as the trier of fact. Accordingly, the trial court is in the best position to weigh the evidence by resolving factual questions and evaluating the credibility of witnesses. State v.Mills (1992),
{¶ 21} On review, an appellate сourt must accept the trial court's findings of fact if they are supported by competent and credible evidence. State v. Retherford (1994),
{¶ 22} The
{¶ 23} Whether a traffic stop violates the
{¶ 24} That being said, if the surrounding circumstances establish that a police officer witnessed an individual violate a traffic law, the officer has probable cause to affect a constitutional stop. State v. Montes, 11th Dist. No. 2003-L-072,
{¶ 25} In the case sub judice, the trial court's decision granting appellee's motion to suppress determined that Officer Billicic did not have probable cause to initiate a stop of appellee's vehicle. The trial court determined that appellee's alleged traveling over marked lanes was not a reasonable justification to initiate the stop, as that act standing alone was insufficient to demonstrate a marked lane violation. Furthermore, "although the appellate courts of this state are in genеral agreement that not every edge line crossing by amotorist permits police to conduct a traffic stop, instances oferratic or substantial roadway line crossing will vest a policeofficer with probable cause to perform such a stop." (Emphasis added.) State v. Schofield (Dec. 10, 1999), 11th Dist. No. 98-P-0099,
{¶ 26} "* * * [T]here must be some indicia of erratic driving to warrant an investigative stop beyond some incident of modest or minimal weaving in one's lanе alone." State v. Spikes (June 9, 1995), 11th Dist. No. 94-L-187,
{¶ 27} To justify his stop in this case, the police officer charged appellee with a marked lanes violation оf the Kirtland Hills ordinance mirroring R.C.
{¶ 28} "(a) Whenever any roadway has been divided into two or more clearly marked lanes for traffic or wherever traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following apply:
{¶ 29} "(1) A vehicle shall be driven, as nearly as is practicable, entirеly 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."
{¶ 30} Contrary to the state's assertion that failure to drive in a marked lane is an automatic violation, the statute itself permits the driver discretion to crоss marked lanes if the driver ascertains that the movement can be made safely. The trial court's findings of fact and the officer's uncontroverted testimony in this matter establish that appellee moved outside her lane, but in a manner compromising no one's safety. The trial court determined that apрellee's de minimus lane infringement did not constitute a traffic violation. Reviewing this matter for abuse of discretion, we are bound by the trial court's finding.
{¶ 31} The traffic code exists to protect all citizens using our roadways; its overriding purpose is to allow the safe operation of motor vehicles. It does nоt impose strict liability and an automatic violation every time someone goes slightly outside their lane. It is up to the trial court to determine if a violation of both aspects of the statute has occurred; i.e., that a lane has been crossed, and that it was unsafe to do so. In this case, the trial court determined that there was no violation. Citizens do not throw their
{¶ 32} Appellant argues that even a de minimus traffic violation provides a police officer with the requisite probable cause to stop a vehicle. Appellant cuts its argument to fitErickson. Erickson is not about de minimus violations. It is about drivers committing an actual violation which includes objectively unsafe operation of a motor vehicle. Police cannot just follow a driver in the knowledge that eventually an over the line error will occur, allowing them to swoop in and evaluate the driver for intoxication. Police have the authority to stop motorists for probable cause for drunk driving. They do not need to disguise a DUI stop as a marked lane violation. The common habits of all drivers in going down steep hills, negotiating narrow roads, drifting to the right while adjusting the radio in the middle of the night, and keeping toward the center to avoid a dark and dangerous soft shoulder should not precipitate a traffic stop.
{¶ 33} In Erickson, the Ohio Supreme Court concluded that minor traffic violations provide probable cause for a police stop. Id. at 11-12. It did not conclude that the police could stop motorists who did not violate a traffic law. R.C.
{¶ 34} The majority's analysis fails to consider the еntire language of the statute as written. The trial court correctly determined that there was no probable cause for a stop in this case, since there was no statutory violation.
{¶ 35} My independent examination of the relevant law has established that the applicable legal standard has been met. The trial court did not err in granting appellee's motion to suppress. I hereby respectfully dissent from the judgment of the majority.