[A] traffic stop that otherwise satisfies the reasonable requirements set forth under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution does not become unreasonable simply because the stop was initiated by a police officer who did not adhere to all traffic laws prior to effectuating that stop. To hold otherwise would stretch the protections against unreasonable searches and seizures afforded to individuals by the United States and Ohio Constitutions beyond anything the forefathers of this great country and great state ever intended.
State v. Johnson
2023 – Ohio – 1320
Twelfth District Appellate Court
Preble County, Ohio
April 24, 2023
On June 7, 2021, the Preble County Grand Jury returned an indictment charging Mr. Daniel Johnson with one count of third-degree felony aggravated possession of drugs and one count of fourth-degree misdemeanor illegal use or possession of drug paraphernalia. The charges arose after Officer Paul S. Eversole with the Eaton Police Department initiated a traffic stop on Mr. Johnson’s vehicle on May 17, 2021. This stop occurred after Mr. Johnson failed to use his turn signal in violation of O.R.C. §4511.39(A) moments after Mr. Johnson was observed in what appeared to be a drug transaction in the parking lot of a vacant grocery store. A canine unit was then called to the scene of the stop. Once there, the canine officer, Rossi, gave a positive alert to the odor of narcotics coming from Mr. Johnson’s vehicle. A subsequent search of Mr. Johnson’s vehicle led to the discovery of approximately 7.8 grams of methamphetamine and a pipe used to smoke methamphetamine was found on Mr. Johnson’s person.
On June 30, 2021, Mr. Johnson entered a plea of not guilty to both charged offenses. Approximately two months later, on September 1, 2021, Mr. Johnson filed a motion to suppress, wherein Mr. Johnson alleged he was subject to an “illegal pursuit and traffic stop” by Officer Eversole. To support this claim, Mr. Johnson argued, in pertinent part, the following:
The video recording of Officer Eversole’s “following” of [Mr. Johnson’s] truck reveals that Officer Eversole, before observing any alleged traffic rule infraction, had to catch up to [Mr. Johnson’s] position. In order to do so Officer Eversole chose to drive his patrol vehicle in excess of 50 miles per hour, moving his vehicle left of center several times going across the double yellow solid lane marker, weaving around and past other motorists, he had to brake the vehicle very hard in order to return to the legal lane of travel, and this went on for several blocks of roadway driving northbound on Aukerman Drive in the City of Eaton. It was not until after several blocks of this type of driving that Officer Eversole engaged his emergency lights signaling [Mr. Johnson] to stop.
Mr. Johnson was driving northbound on Aukerman Drive in the City of Eaton when Officer Eversole stopped him and subsequently discovered over seven grams of methamphetamine. Was Officer Eversole permitted to violate the traffic code to stop Mr. Johnson for violating the same traffic code?
Mr. Johnson also argued that Officer Eversole had “endangered the lives” and “wellbeing of the other motorists on the road that day not to mention the all too real possibility that a child or other pedestrian may have made their way onto the roadway while he was operating his patrol vehicle in this reckless manner.”
Mr. Johnson thereafter concluded his suppression motion by arguing, without any supporting authority, that:
[T]here have to be limits to what is acceptable behavior by the police when engaging with the public in traffic law enforcement. It should not be too much to expect police officers to respect and obey the very laws they are charged with enforcing. Off. Officer Eversole did not in this case and the evidence he seized from [Mr. Johnson] should be suppressed. If Off. Officer Eversole had engaged in a normal and ordinary patrol routine on the day in question he would have never been in a position to have observed the alleged traffic violation which led to the stop in this case.
The trial court scheduled a hearing on Mr. Johnson’s motion to suppress for September 29, 2021. For various reasons, none of which are relevant here, that suppression hearing was then continued several times to just under seven months later, on April 12, 2022. On April 1, 2022, eleven days before the hearing on Mr. Johnson’s motion was scheduled to begin, the state filed a motion to dismiss Mr. Johnson’s suppression motion. To support its motion, the state argued that Mr. Johnson had failed to state with particularity the grounds upon which his motion to suppress was based as required by Crim. 47.
What is Criminal Rule 47?
An application to the court for an order shall be by motion. A motion, other than one made during trial or hearing, shall be in writing unless the court permits it to be made orally. It shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought. It shall be supported by a memorandum containing citations of authority, and may also be supported by an affidavit.
On April 7, 2022, the trial court issued a decision granting the state’s motion to dismiss.
The trial court also noted that, “[T]here is no assertion in [Mr. Johnson’s] motion or memorandum that [his] rights were in any way violated which would even arguably justify the granting of a motion to suppress.”
On July 28, 2022, the trial court held a change of plea hearing. During this hearing, Mr. Johnson entered a plea of no contest to the third-degree felony aggravated possession of drugs charge in exchange for dismissal of the fourth-degree misdemeanor charge of illegal use or possession of drug paraphernalia. The trial court accepted Mr. Johnson’s no contest plea upon finding the plea had been knowing, intelligently, and voluntarily entered. Upon accepting Mr. Johnson’s no contest plea, and when considering the state’s recitation of facts, the trial court then found Mr. Johnson guilty as charged. The following month, on August 15, 2022, the trial court held a sentencing hearing where it sentenced Mr. Johnson to serve an 18-month prison term, less 26 days of jail-time credit. The trial court also notified Mr. Johnson that he would be subject to an optional two-year term of post release control upon his release from prison.
Did Officer Eversole Violate the Tenents of the Terry Doctrine and therefore Mr. Johnson’s Meth Should be Suppressed?
Mr. Johnson argues it was error for the trial court to dismiss his motion to suppress pursuant to Criminal Rule 47 because the motion “clearly stated” the “legal theory” upon which it was based—that being Officer Eversole’s “illegal pursuit and stop” of his vehicle. To support this claim, Mr. Johnson equates the facts of this case to those faced by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). The United States Supreme Court’s decision in Terry, however, addressed under what circumstances a police officer may briefly stop and detain an individual without an arrest warrant or probable cause to make an arrest. This type of investigative stop, which is now more commonly referred to as a Terry stop, occurs when the officer has reasonable suspicion based on specific, articulable facts, that criminal activity is afoot. Terry at 21.
The stop at issue in this case was not a Terry stop. The stop was instead a non-investigatory stop based on probable cause arising from Officer Eversole personally observing Mr. Johnson commit at least one, if not more, traffic violations. Specifically, Officer Eversole observed Mr. Johnson fail to use his turn signal in violation of O.R.C. §4511.39(A). It is well-established that where a law enforcement officer has probable cause to stop a motorist for any criminal violation, including a minor traffic violation, the stop is constitutionally valid. This remains true “even if the officer had some ulterior motive for making the stop, such as a suspicion that the violator was engaging in more nefarious criminal activity.” Dayton v. Erickson, 76 Ohio St.3d 3, 11-12 (1996), Whren v. United States, 517 U.S. 806 (1996)
Mr. Johnson does not dispute that Officer Eversole observed him commit a traffic violation by failing to use his turn signal in violation of O.R.C. §4511.39(A). Mr. Johnson also does not dispute that the canine sniff of his vehicle was constitutionally permissible or that his arrest was supported by probable cause given the presence of drugs and drug paraphernalia found on his person. Mr. Johnson merely challenges the way Officer Eversole operated his police cruiser prior to Officer Eversole initiating the stop of his vehicle. However, while it may be true that Officer Eversole was driving faster than the posted speed limit and weaving around other motorists just prior to effectuating that stop, we fail to see how that had any impact on the question of whether Mr. Johnson’s constitutional rights had been violated. This includes Mr. Johnson’s right to be free from unreasonable searches and seizures as guaranteed to him by the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution.
These reasonableness requirements, however, are only applicable to the traffic stop itself, not to the efforts that a police officer may take to initiate and effectuate that stop. That is to say, a traffic stop that otherwise satisfies the reasonable requirements set forth under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution does not become unreasonable simply because the stop was initiated by a police officer who did not adhere to all traffic laws prior to effectuating that stop. To hold otherwise would stretch the protections against unreasonable searches and seizures afforded to individuals by the United States and Ohio Constitutions beyond anything the forefathers of this great country and great state ever intended.
The Twelfth District Appellate Court Opined in Footnote #3:
Such an interpretation would also severally limit, and in some instances outright eliminate, a police officer’s ability to enforce the rule of law anytime a criminal was traveling above the posted speed limit. Such holding would be, without question, an absurdity and make virtually all laws optional and without consequence so long as the criminal offender was able to escape apprehension by traveling above the speed limit.
Therefore, although Mr. Johnson believes this case presents the perfect opportunity for this court “to ‘pull the reigns (sic)’ so to speak in exercising control over the actions of the police,” we disagree and instead find no error in trial court’s decision to dismiss Mr. Johnson’s motion to suppress pursuant to Criminal Rule 47.
For the reasons outlined above, we find no error in the trial court’s decision to dismiss Mr. Johnson’s motion to suppress … Mr. Johnson’s single assignment of error lacks merit and is overruled.
Information for this article was obtained from State v. Johnson, 2023 – Ohio – 1320.
This case was issued by the Twelfth District Appellate Court and is binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.
- Law enforcement most certainly can violate the law to enforce the law! If Mr. Johnson’s absurd [the court’s adjective] belief was accepted by the court then officers could rarely enforce speed laws simply hoping the driver exited the freeway. An officer could also not work undercover as that would be violating the very laws the undercover officers were attempting to enforce … such as I did when I often purchased crack cocaine during an undercover assignment.
- The additional problem with attempting to inhibit law enforcement from violating a law to enforce the law would be the amount of time the courts would spend on mini-trials about the officers’ actions leading up to the investigative detention or arrest. Courts are busy enough than to accept Mr. Johnson’s view of law enforcement standard operating procedures.
- For more information on traffic stops see https://www.objectivelyreasonable.com/category/traffic-stops/
- Officer Paul S. Eversole should be highly commended for utilizing a minor misdemeanor traffic violation to develop probable cause for a third-degree felony. Well done Officer Eversole!
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