[S]imply because the officers were able to read the plate on a lighted highway and assisted by the headlights of their cruiser does not also mean the plate was properly illuminated as required by law.
State v. Kay
2022 – Ohio – 3538
Fifth District Appellate Court
Stark County, Ohio
October 3, 2022
Canton Police Detective Scott Jones was working with Jackson Township Agent Luke Shanklin. Both officers are members of the Stark County Narcotics Unit Task Force. The two were working a directed patrol operation focusing on problematic bars in Jackson Township, Canton, and Canton Township.
On Saturday July 17, 2021, at approximately 2:30 a.m. the officers began following a pickup truck leaving The Cove, an after-hours bar which has been the scene of drug activity and gun violence. It was raining at the time. As the officers followed the truck on Route 30 East, a lighted highway, they noticed the rear plate light on the truck did not appear to be illuminated. To be sure of their initial observation, Det. Jones turned off the cruiser’s headlights and confirmed the rear license plate was not illuminated.
Based on the lack of rear plate illumination, the officers initiated a traffic stop. Without further examining the rear plate light, Det. Jones approached the passenger side of the truck and Agent Shanklin approached the driver’s side.
Mr. Eddie Kay was seated on the passenger side of the truck. Det. Jones asked him to open his window. Immediately upon observing the interior of the vehicle, Det. Jones could see a glass mason jar tucked between Mr. Kay and the center console of the truck. The jar appeared to contain marijuana. Advised why they were pulled over, Mr. Kay stated he believed the plate light was operable. Det. Jones advised the light was not visible when they were pulled over. The truck was searched and drugs and a weapon were discovered.
On August 19, 2021, the Stark County Grand Jury returned an indictment charging Mr. Kay with one count of possession of a fentanyl-related compound in violation of O.R.C. §2925.11(A)/(C)(11)(f), one count of trafficking in a fentanyl-related compound in violation of O.R.C. §2925.03(A)(2)/(C)(9)(g); one count of possession of cocaine in violation of O.R.C. §2925.11(A)/(C)(4)(e); one count of trafficking in cocaine in violation of O.R.C. §2925.03(A)(2)/(C)(4)(f); one count of having weapons under disability in violation of O.R.C. §2923.13(A)(3)/(B); one count of improperly handing firearms in a motor vehicle in violation of O.R.C. §2923.16(B); and one count of aggravated possession of drugs in violation of O.R.C. §2925.11(A)/(C)(1)(a). Evidently the truck had more drugs in it than some police property rooms.
On August 24, 2021, Mr. Kay entered pleas of not guilty.
On October 27, 2021 Mr. Kay filed a motion to suppress evidence obtained during the search of the truck. On November 8, 2021, a hearing was held on the motion wherein the above outlined facts were elicited. On December 22, 2021 the trial court issued its findings of fact and conclusions of law overruling Mr. Kay’s motion. On December 29, 2021 Mr. Kay entered pleas of no contest to the charges and waived a recitation of the facts. Mr. Kay was subsequently sentenced to six to nine years’ incarceration.
Mr. Kay timely filed an appeal, and the matter is now before this court for consideration.
Analysis
Traffic stops based upon observation of a traffic violation are constitutionally permissible. Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 1996-Ohio-431, 665 N.E.2d 1091. This court has held that any traffic violation, even a de minimis violation, may form a sufficient basis upon which to stop a vehicle. State v. Bangoura, 5th Dist. No. 08 CA 95, 2009-Ohio-3339, 2009 WL 1916902, ¶ 14, citing State v. McCormick, 5th Dist. No.2000CA00204, 2001 WL 111891 (Feb. 2, 2001); State v. Woods, 5th Dist. Licking No. 12-CA-19, 2013-Ohio-1136, 2013 WL 1209351, ¶ 60.
In this case, officers initiated a traffic stop of Mr. Kay’s vehicle because it did not have proper license plate illumination as required by O.R.C. §4513.05(A) which states in relevant part: Either a tail light or a separate light shall be so constructed and placed as to illuminate with a white light the rear registration plate, when such registration plate is required, and render it legible from a distance of fifty feet to the rear. Any taillight, together with any separate light for illuminating the rear registration plate, shall be so wired as to be lighted whenever the headlights or auxiliary driving lights are lighted, except where separate lighting systems are provided for trailers for the purpose of illuminating such registration plate.
In relation to the fifty-foot requirement of O.R.C. §4513.05(A), O.R.C. §4513.03(A)(3) states in relevant part: Whenever in such sections a requirement is declared as to the distance from which certain lamps and devices shall render objects visible, or within which such lamps or devices shall be visible, such distance shall be measured upon a straight level unlighted highway under normal atmospheric conditions unless a different condition is expressly stated.
Mr. Kay’s Arguments and the Court’s Conclusion to Each
Mr. Kay makes three arguments under this assignment of error, specifically:
(1) His plate was sufficiently visible because the officers could read it;
(2) The officers manufactured reasonable suspicion; and
3) Because the atmospheric conditions the night in question were not “normal,” the fifty-foot requirement set forth in O.R.C. §4513.05(A) was inapplicable.
As to his first argument, Mr. Kay points to the testimony of Det. Jones regarding the fact that he was able to read and run the plate on the truck in which he was a passenger without difficulty. He argues this testimony demonstrates his license plate was sufficiently visible. We first note that while Mr. Kay alleges in his brief that the stop took place on a dark highway, the stop took place on a lighted highway and Mr. Kay conceded this fact during the suppression hearing. Next, simply because the officers were able to read the plate on a lighted highway and assisted by the headlights of their cruiser does not also mean the plate was properly illuminated as required by law. Finally, Mr. Kay provides no support for his theory that if a license plate can be read, it need not be properly illuminated.
We therefore find no merit in Mr. Kay’s argument.
Mr. Kay next argues his Fourth Amendment rights were violated because the officers violated the law in order to manufacture reasonable suspicion when they extinguished the cruiser’s headlights. During the suppression hearing, however, Det. Jones testified the officers extinguished the cruiser headlights to confirm their suspicion, not manufacture suspicion. To be certain the plate light was not illuminated before stopping the vehicle, the officers extinguished the cruiser’s headlights for a second. We do not find this very brief investigative tactic in any way violated Mr. Kay’s Fourth Amendment rights. Within this argument, Mr. Kay argues Det. Jones failed to testify that he was within fifty feet of Mr. Kay’s vehicle when he determined the plate light was inoperable. While this is accurate, Det. Jones did testify he able to read the license plate on the truck in order to call it in to dispatch. Additionally, the trial court viewed the dash and body camera videos as has this court. The dash camera video clearly shows the officer’s cruiser within four and five car lengths, or roughly forty to fifty feet, of the suspect vehicle.
We therefore reject Mr. Kay’s second argument.
Mr. Kay’s final argument is contradictory to his first. He argues the weather the night in question was so inclement as to provide an exception to the fifty-foot visibility requirement set forth in O.R.C. §4513.05 therefore failing to provide reasonable suspicion to justify a traffic stop. But Mr. Kay has already conceded the plate on the vehicle was clearly visible in the rain. Moreover, as noted above, we have reviewed the videos. While it was indeed raining the night in question, it was not raining hard enough to impair visibility. We find the weather on the evening in question was within the “normal atmospheric conditions” as referred to in O.R.C. §4513.03(A)(3).
The first assignment of error is overruled.
Information for this article was obtained from State v. Kay, 2022 – Ohio – 3538.
This case was issued by the Fifth District Appellate Court, which is only binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
Lessons Learned:
- Though not mentioned in the analysis of the case, this is a classic pretextual stop. The reason for the stop was based on that the truck had left after hours bar called The Cove by two narcotics detectives working in uniform. These detectives had high law enforcement acumen and utilized an equipment violation to stop the vehicle. Thereafter, the mason jar full of weed provided the probable cause to search the vehicle that produced even more narcotics.
- Kay’s attorney makes a unique argument that the detectives ‘manufactured’ reasonable suspicion. Uhm … no. The reasonable suspicion was established the moment the license plate light went out. The average cost of a license plate light is approximately ten dollars. Mr. Kay made the choice to spend his monies on narcotics rather than at an auto parts store.
- Both Canton Police Detective Scott Jones and Jackson Township Agent Luke Shanklin should be highly commended for their investigative techniques and legal prowess! Well done detectives!
- For more information on pre-textual stops see the following article: Wh(r)en is it lawful to stop a vehicle?.
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