Lead Opinion
{¶ 2} McEldowney contends that the trial court should have suppressed the evidence because the arresting officer failed to articulate reasonable suspicion for stopping her car. We conclude that the officer had both probable cause and reasonable suspicion for the stop. Accordingly, the judgment of the trial court is Affirmed.
{¶ 4} Upon approaching the vehicle, Dixon could immediately smell the strong odor of an alcoholic beverage, and observed that the driver (later identified as McEldowney) had red, glassy, bloodshot eyes. Dixon asked McEldowney how much *3 she had to drink and she said that she had a few drinks. McEldowney said she was coming from a wedding and was heading back to Ohio State University. The time was around 1:26 a.m.
{¶ 5} Dixon administered the Horizontal Gaze Nystagmus test and a walk-and-turn test. McEldowney displayed six out of the six clues possible on the HGN test, and seven out of eight clues on the walk-and-turn test. Based on his observations and training, Dixon concluded that McEldowney had consumed enough alcohol to place her over the legal limit. Dixon administered Miranda warnings, handcuffed McEldowney, and took her back to the Highway Patrol post, where she consented to a breath test. The test indicated that McEldowney's alcohol content was 0.140 percent, well over the legal limit.
{¶ 6} McEldowney was charged with one count of driving while intoxicated, one count of driving with over the proscribed amount of alcohol as measured by a breath test, and one count of not staying within marked lanes. Following a suppression hearing, the trial court found that the traffic stop was based on a reasonable and articulable suspicion that McEldowney had violated Ohio's traffic laws. The court also found that Dixon had reasonable, articulable suspicion to detain McEldowney for field sobriety tests, and probable cause, based on the tests, to arrest McEldowney for driving while intoxicated.
{¶ 7} After the court denied the suppression motion, McEldowney pled no contest to driving with over the proscribed amount of alcohol as measured by a breath test. McEldowney was sentenced to a $250 fine and ten days in jail, of which seven *4 were suspended and three days were to be credited for completion of a weekend intervention program. McEldowney's driver's license was also suspended for one year. From this adverse judgment, McEldowney appeals.
{¶ 9} "THE TRIAL COURT SHOULD HAVE ORDERED THE EVIDENCE SUPPRESSED BECAUSE AT THE SUPPRESSION HEARING THE OFFICER FAILED TO ARTICULATE A REASONABLE SUSPICION FOR STOPPING APPELLANT'S CAR."
{¶ 10} Under this assignment of error, McEldowney contends that Trooper Dixon lacked a reasonable suspicion to stop her car because Dixon's testimony did not establish a statutory violation of R.C.
{¶ 11} In the present case, the trial court held that the traffic stop was justified because Dixon had a reasonable and articulable suspicion that McEldowney had violated Ohio's traffic laws. In particular, the court relied on the fact that Dixon observed *5 McEldowney's vehicle cross over the white line on the right edge of Interstate 70 on two occasions. The court also noted in its findings of fact that Dixon had received a report that an auto was being driven erratically, and that Dixon began following the vehicle. Dixon then noticed that the vehicle crossed over the right edge line twice, and that other vehicles following the vehicle were afraid to pass.
{¶ 12} "The following standard governs our review of a trial court's decision regarding a motion to suppress: `[W]e are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard.'" State v.Bradley, Champaign App. No. 2004-CA-15,
{¶ 13} The trial court's findings of fact are supported by competent, credible evidence. Dixon was the only witness at the suppression hearing, and his account of events was straightforward and generally unchallenged. The trial court's conclusion that Dixon had a reasonable and articulable suspicion for the stop is also consistent with the law in our district. See, e.g., State v. Schwieterman, Darke App. No. 1588,
{¶ 14} R.C.
{¶ 15} "Whenever any roadway has been divided into two or more clearly marked lanes for traffic, or wherever within municipal corporations traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following rules apply:
{¶ 16} "(1) A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely 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."
{¶ 17} In Schwieterman, a state trooper saw the defendant weave within his lane and cross the right edge line three times over the course of a mile. On one occasion, the defendant's tire crossed the edge line by about one foot.
{¶ 18} In Schwieterman, we also rejected the argument that a de minimis traffic violation fails to justify a traffic stop. Id. at ¶ 9, citing Whren v. United States (1996),
{¶ 19} "Ohio's `marked lanes' statute requires a driver to remain in a single lane `as nearly as is practicable.' In this context, the word `practicable' means `performable, feasible or possible.' State v.Hodge,
{¶ 20} "`The legislature did not intend for a motorist to be punished when road debris or a parked vehicle makes it necessary to travel outside the lane. Nor, we are quite certain, did the legislature intend this statute to punish motorists for traveling outside their lane to avoid striking a child or animal. We are equally certain that the legislature did not intend to give motorists the option of staying within their lane at their choosing. Common sense dictates that the statute is designed to keep travelers, both in vehicles and pedestrians, safe. The logical conclusion is that the legislature intended only special circumstances to be valid reasons to leave a lane, not mere inattentiveness or carelessness. To believe that the statute was intended to allow motorists the option of when they will or will not abide by the lane requirement is simply not reasonable.'"Schwieterman,
{¶ 21} A few years later, the Third District Court of Appeals issuedPhillips, which *8
affirmed a trial court decision granting a defendant's motion to suppress.
{¶ 22} Instead, the defendant in Phillips was charged with violating R.C.
{¶ 23} On the State's appeal from the suppression decision, the Third District concluded that white right edge lines fall within the statutory definition of traffic control devices. After referring to the Ohio Manual of Uniform Traffic Control Devices and various statutes, the Third District found that a straight white edge line provides "guidance about the roadway and does not provide any instructions." Id. at ¶ 32. The Third District, therefore, concluded that motorists do not disobey instructions of a traffic control device by crossing these lines and that probable cause cannot be based on a violation of R.C.
{¶ 24} Despite the fact that neither side had raised the matter, the Third District *9
went on to consider whether probable cause or a reasonable, articulable suspicion can be based on a violation of R.C.
{¶ 25} Under the second interpretation, that there are two separate requirements: "First, operators of vehicles must drive within a single lane or line of traffic as nearly as practicable. Second, operators of vehicles may not move from a lane or line of traffic until the operator has determined that it can be done with safety. This second interpretation concludes that not satisfying either requirement is a violation of the statute." Id. at ¶ 43.
{¶ 26} The Third District cited a number of cases that follow the second interpretation, including State v. Hodge. Id. at ¶ 43.Hodge is a case that we specifically relied on in Schwieterman. SeeSchwieterman,
{¶ 27} The Third District also discussed the Ohio Supreme Court decision in Wilhelm. In contrast to our holding inSchwieterman, the Third District concluded that the Supreme Court failed to provide any guidance in Wilhelm, other than "summarily overruling" the lower court decision. Id. at ¶ 48. In the absence of appropriate guidance, the Third District found that it was free to adopt its own interpretation of R.C.
{¶ 28} The Third District acknowledged that after Hodge, "Ohio courts have consistently determined that any crossing of the right white edge line provides probable cause that a violation of R.C.
{¶ 29} "[W]hile we stand behind our decisions which have held that any violation of a traffic law, including de minim is traffic violations, give police officers the ability to make a constitutional stop of a motorist, we move away from our decisions which have held that any touching or crossing of a right white edge line, regardless of how major or minor, on its own, is a violation of law per se. In doing so, we adopt the two-pronged interpretation of R.C.
{¶ 30} Upon applying this test to the case at hand, the Third District concluded that the defendant's line crossing was not a violation of law because there was no evidence of either how far or how long the vehicle was over the line. There was also no *11 evidence about whether additional traffic existed on the roadway or whether the defendant had crossed the line without ascertaining if he could do so safely. Furthermore, a review of the officer's videotape showed no evidence of traffic traveling in either direction. Id at ]} 74. Based on these facts, the Third District found a lack of probable cause for the stop. Id.
{¶ 31} The Third District then went on to consider whether the defendant's actions gave rise to a reasonable, articulable suspicion sufficient to justify a stop. However, the Third District rejected this ground also, finding that the officer did not point to any specific and articulable facts that would warrant an investigatory stop.
{¶ 32} Upon review, we decline the invitation to followPhillips. We begin by noting that the impact of Phillips in the Third District is unclear because Phillips has not been cited since it was decided. More importantly, only the author of the lead opinion appears to have definitively agreed on the conclusions made about R.C.
{¶ 33} As an additional matter, we note that the Ohio Supreme Court has accepted a conflict that was certified between Phillips and a decision of the Fifth District Court of Appeals in State v. Mays, Licking App. No. 2006-CA-00097,
{¶ 34} In Mays, the Fifth District followed existing authority, which held that "any traffic violation, even a de minimis violation, would form a sufficient basis upon which to stop a vehicle."
{¶ 35} "While a defendant may argue that there were reasons for which he or she should not have been convicted of a violation of R.C.
{¶ 36} We agree with this statement. See, e.g., State v. Terry (July 14, 2000), Montgomery App. No. 18166,
{¶ 37} The question certified by the Ohio Supreme Court inMays is: "May a police officer who witnesses a motorist cross a right white edge line and without any further evidence of erratic driving or that the crossing was done in an unsafe manner make a constitutional stop of the motorist?" Mays,
{¶ 38} In light of the above discussion, we will continue to follow existing authority in our district, which holds that evidence of a defendant's marked lane violation establishes reasonable suspicion or probable cause for a traffic stop. See *14 Schwieterman,
{¶ 39} The trial court in the present case concluded that Trooper Dixon had a reasonable and articulable suspicion that McEldowney had violated Ohio's traffic laws. We agree with the trial court, even though the court should have first considered whether probable cause existed. See Dayton v. Erickson,
{¶ 40} In Godwin, the Ohio Supreme Court observed that:
{¶ 41} "Probable cause is determined by examining the historical facts, i.e., the events leading up to a stop or search, `viewed from the standpoint of an objectively reasonable police officer.' Ornelas v.United States (1996),
{¶ 42} When Trooper Dixon made the stop, he was aware that he had been called to the location by another police officer who had seen McEldowney driving erratically on the interstate highway. Dixon then followed McEldowney and made his own observations. In addition to seeing the car weave and cross over the right edge line on two occasions, once by well over a foot, Dixon noted that other cars were hanging back and were hesitant to pass McEldowney's vehicle. Although the lane violation was sufficient, the remaining circumstances would also have allowed an objectively reasonable officer to find probable cause for the stop. We note that Dixon's testimony would have sufficed even underPhillips' two-prong approach, since he witnessed McEldowney driving outside her lane, and also witnessed her doing so under circumstances indicating that her movement could present a danger to other vehicles.
{¶ 43} The stop in the present case was also constitutionally valid because Dixon had a reasonable, articulable suspicion of criminal activity. After finding in Phillips that the defendant's action of crossing the right white edge line did not give the officer probable cause for the stop, the Third District went on to consider whether the officer had a reasonable, articulable suspicion that criminal activity was afoot. Phillips,
{¶ 44} Because the motion to suppress was properly granted, McEldowney's single assignment of error is overruled.
BROGAN, J., concurs.
Dissenting Opinion
{¶ 46} I do not agree that because he had observed Defendant-Appellant's vehicle twice cross the white line separating the lane of traffic in which the vehicle was moving from the berm of the shoulder to its right, Trooper Dixon had probable cause to stop Defendant-Appellant's vehicle for a violation of R.C.
{¶ 47} R.C.
{¶ 48} "Whenever any roadway has been divided into two or more clearly marked lanes for traffic, or wherever within municipal corporations traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following rules apply:
{¶ 49} "(1) A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from *17 such lane or line until the driver has first ascertained that such movement can be made with safety."
{¶ 50} A "laned highway" is "a highway the roadway of which is divided into two or more clearly marked lanes for vehicular traffic." R.C.
{¶ 51} The conduct that R.C.
{¶ 52} R.C.
{¶ 53} Nevertheless, I would affirm the trial court's order denying Defendant-Appellant's motion to suppress. Trooper Dixon's observations portray a reasonable basis to suspect that Defendant-Appellant's ability to operate her vehicle safely was impaired because she was under the influence of alcohol and/or drugs, a violation of R.C.