[Cite as State v. Bayliff,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY

STATE OF OHIO, CASE NO. 2-10-08

PLAINTIFF-APPELLEE,

v.

BRANDON B. BAYLIFF, OPINION

DEFENDANT-APPELLANT.

Appeal from Auglaize County Municipal Court Trial Court No. 2009 CRB 00262

Judgment Affirmed

Date of Decision: August 23, 2010

APPEARANCES:

Rob C. Wiesenmayer, for Appellant

Edwin Pierce, for Appellee Case No. 2-10-08

Rogers, J.

{¶1} Defendant-Appellant, Brandon Bayliff, appeals from the judgment

of the Municipal Court of Auglaize County, denying his motion to suppress

evidence, convicting him on one count of possessing a dangerous drug, and

sentencing him to six months of non-reporting community control. On appeal,

Bayliff argues that the trial court erred in denying his motion to suppress where

insufficient evidence was presented that the police officer possessed sufficient

probable cause necessary to effectuate a traffic stop. Based on the following, we

affirm the judgment of the trial court.

{¶2} In May 2009, Bayliff was charged by complaint with one count of

possessing a dangerous drug in violation of R.C. 4729.51(C)(3), a misdemeanor of

the first degree. The complaint arose from an incident whereby Bayliff was

stopped by a police officer from the Cridersville Police Department for a traffic

violation; Bayliff granted the officer permission to search his vehicle; and, the

officer found one tablet of Tramadol, for which Bayliff did not have a

prescription. Subsequently, Bayliff entered a not guilty plea to the charge.

{¶3} In August 2009, Bayliff filed a motion to suppress the prescription

drug found in his vehicle on the basis that the officer did not have sufficient

probable cause to stop his vehicle; that the stop of the vehicle was excessively

prolonged; and, that the officer did not have a sufficient basis to search his vehicle.

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Additionally, Bayliff argued that his custodial statements were obtained in

violation of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights under the

United States Constitution. In regards to his argument pertaining to the illegal

stop of his vehicle, Bayliff specifically contended that the officer’s claim that he

failed to properly stop at a stop sign was unsupported by the videotape of the

traffic stop; that the officer’s view of the intersection was obstructed; and, that the

evidence did not support the officer’s second contention for the vehicle stop

regarding his improperly illuminated license plate.

{¶4} In October 2009, a hearing was held on the motion to suppress, at

which Patrolman Dennis Foxvog testified on direct examination that he is a police

officer with the Cridersville Police Department; that, on April 5, 2009, he

observed a vehicle traveling from west North Street onto Shawnee Road; that he

was at the intersection of Reichelderfer and Main Street; that the vehicle did not

stop or slow down at the stop sign at the intersection; that he followed the vehicle

and also noticed that the light illuminating the rear license plate was very dim;

and, that he initiated a traffic stop on the basis of those two violations.

{¶5} Patrolman Foxvog continued that he was approximately eighty feet,

or one block, from the intersection where the vehicle failed to stop at the stop sign;

that he was facing the vehicle at the time; that, as he approached the vehicle to

initiate a traffic stop, he could only see the letters and numbers on the license plate

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when his headlights were shining on the license plate; that the license plate could

only be observed approximately ten feet away without the aid of his headlights;

that he was ten or fifteen feet from the vehicle when he initiated the traffic stop;

that, when he asked for Bayliff’s license, registration, and proof of insurance, he

appeared very nervous, with his hands shaking and eyes wandering; that he asked

Bayliff why he was shaking, and Bayliff replied that he was nervous; that he then

asked Bayliff if there was anything in the vehicle that he should be concerned

about, and Bayliff responded that there was not; that he asked Bayliff for

permission to search the vehicle, to which Bayliff assented; that he then returned

to his police cruiser and radioed Officer Joseph to assist him in searching the

vehicle; that Officer Joseph arrived approximately a minute-and-a-half later; that,

upon their search of the vehicle, they found a pill container with what appeared to

be antibiotics and another type of pill; that the pill bottle had a label, but he did not

believe the label contained Bayliff’s name; that Bayliff admitted that his mother

had given him one of the pills in the bottle, which was later found to be a

Tramadol tablet, but that he had a prescription for the other pills; that he told

Bayliff he would not be charged with anything other than possessing the drugs;

that from the time he stopped Bayliff to the time he found the pills in Bayliff’s

vehicle was approximately fifteen minutes; and, that if he would have issued

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Bayliff a citation for the two observed violations, it would have taken him

approximately fifteen to twenty minutes.

{¶6} On cross-examination, Patrolman Foxvog testified that he wears

glasses when reading and using the computer, but that he did not believe he was

wearing them on the day of the stop; that, in his previous traffic stops, he had

encountered people that were nervous; that he was approximately ten or fifteen

feet from Bayliff’s vehicle when he was able to read his license plate; that he was

still following Bayliff and had not yet stopped him when he was able to read

Bayliff’s license plate; that, subsequent to conducting the stop of Bayliff’s vehicle,

he checked Bayliff’s driver’s license number in the computer, found that Bayliff

only had one previous traffic ticket, and decided to issue him a warning; and, that

he believed he could see the stop sign at which Bayliff failed to stop, even though

it was dark at the time.

{¶7} Following Patrolman Foxvog’s testimony, the trial court stated the

following from the bench:

* * * Gentleman, I also, just so, for your information, cause everybody just loves to do just how far you think it is, according to the county’s website from Main Street to North Street is over 200 yards, closer to 220. So it’s just for your information. That’s uh-what the county’s website would indicate.

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(Oct. 2009 Motion to Suppress Hearing, Tr., p. 70). Subsequently, the hearing

was continued at the request of the State to determine the authenticity of the

videotape from the traffic stop.

{¶8} In November 2009, the motion to suppress hearing continued, at

which Patrolman Foxvog further testified on re-direct examination that, when he

observed Bayliff’s vehicle approaching the intersection at North Street and

Shawnee Road, there were no obstructions between himself and the vehicle; that

he was approximately fifty yards from Bayliff’s vehicle as it approached the

intersection; that he had been at the intersection since the last hearing, and he still

believed the distance to be approximately fifty yards; that, as soon as Bayliff’s

vehicle turned onto Shawnee road, he noticed that Bayliff’s license plate was not

fully illuminated; that he then proceeded to follow Bayliff; that, while following

Bayliff, he turned off his headlights for “one split second” and was unable to see

Bayliff’s license plate (Nov. 2009 motion to suppress hearing, tr., p. 6); that the

right side of the license plate was very dim, and the left side was totally

unreadable; and, that he accidently initially advised Bayliff that he failed to stop at

a stop sign on Elizabeth Street, and subsequently advised him that the stop sign

was on West North Street.

{¶9} Subsequently, the trial court displayed a map of the area around the

traffic stop on a screen in the courtroom, and the following discussion took place:

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Trial Court: Officer, while he’s looking, can you see the screen of that TV in front of you there?

Patrolman Foxvog: I can.

***

Trial Court: Yea, we are not going to play with wrong directions. We’re not going to play with wrong distances. He’s testifying fifty yards and County says six hundred forty-four feet.

State: From?

Trial Court: Main Street to North Street.

State: The intersection of

Trial Court: Main Street and North Street

State: From the intersection of Main Street and North Street to?

Trial Court: It’s on the GS. It will show up on there and you can look at it. You can get up and look at it officer.

Patrolman Foxvog: Thank you.

Trial Court: Should be a red line on there for the intersection if you would see it. Main Street? And it goes up, the red line goes up the center of Shawnee and or Reichelderfer Road. * * * [A]nd that red line goes up to North Street. And what does the, what does that show as distance from that up on the upper left hand side?

Patrolman Foxvog: Six hundred forty-four feet.

Trial Court: That’s red line is approximately where you were when uh, he, uh, went through the intersection?

Patrolman Foxvog: Correct.

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Trial Court: And North Street is where he through [sic] the intersections? Correct?

Patrolman Foxvog: Yes.

Trial Court: Well that’s a little more than fifty yards. That would be quite a bit more than fifty yards. Fifty yards would be a hundred and fifty feet, so this is more than four times that so, we’re more than two hundred yards, right?

Patrolman Foxvog: Correct.

Trial Court: You think that this is a better estimate of-then what gave [sic] in your testimony?

Patrolman Foxvog: Yea.

(Id. at pp. 10-13).

{¶10} On re-cross-examination, Patrolman Foxvog testified that there were

approximately four buildings between where he was and where Bayliff

approached the intersection, and that, as he pulled behind Bayliff, he could not

determine if Bayliff’s license plate was illuminated.

{¶11} Sergeant Josh Joseph of the Cridersville Police Department testified

that he assisted Patrolman Foxvog with his traffic stop of Bayliff; that, when he

arrived at the scene, Patrolman Foxvog informed him that he stopped Bayliff for

failing to stop at a stop sign and for having an improperly illuminated license

plate, and that Bayliff consented to a search of the vehicle; that he also asked

Bayliff if he consented to the search, and Bayliff confirmed that he consented; that

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he did not notice whether the license plate was not properly illuminated; that, upon

their search of Bayliff’s vehicle, they discovered a prescription medication bottle

with two different types of pills contained therein; that he asked Bayliff about the

pills, and Bayliff stated they were for a tooth that he had pulled, and that one of

the pills he received from his mother; and, that he believed the name on the

prescription bottle was Bayliff’s, but he could not recall.

{¶12} Bayliff testified that, on the night of the traffic stop, he was traveling

on North Street and turned onto Shawnee Road; that he came to a complete stop at

the stop sign at the intersection of North Street and Shawnee Road; that a car

followed him as he turned onto Shawnee Road, but he did not realize it was a

police cruiser; that he did not see the vehicle turn its lights off and back on; that,

after he was pulled over, he became nervous; that the officer asked him about

being nervous and he indicated that he had “anxiety problems” (id. at p. 54); that

the officer asked to search his vehicle, and he granted him permission; that he

gave no “qualification or reservation” when he gave permission to search his

vehicle (id. at p. 60); that the medication bottle found in his vehicle had his name

on the outside; that the medication was an antibiotic for his wisdom teeth; that

there was one pill in the bottle that was different from the rest, but he was not sure

what type of pill it was; that he did not know who the pill belonged to; that he told

the officers that the other pill in the bottle might have come from his mother’s

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medicine drawer “because there’s all kinds of stuff. [His] uncle died of cancer and

he had a lot of medications and stuff” (id. at p. 61); and, that he did not take the

pill.

{¶13} In December 2009, the trial court denied the motion to suppress,

stating the following in its journal entry:

One additional issue came from the hearing. The officer testified that it was 50 yards from the intersection of Shawnee and Main to the intersection of North and Shawnee. The Court checked the county website and reviewed with the officer that the GIS map showed at least 215 yards between the intersections.

***

The Court finds that while the evidence of whether or not the officer had reasonable cause to stop the defendant due to running or rolling a stop sign, the officer did have reasonable cause to make the stop due to the dimly illuminated license plate light. The officer did ascertain by turning off his headlights that the license plate was not properly illuminated and did subsequently check the light in the presence of the defendant. There was no evidence presented that the license plate was properly illuminated. Thus, even if the court would determine that the evidence of the failure to stop was insufficient, the stop was proper based upon the license plate charge.

(Dec. 2009 Journal Entry, pp. 2-3).

{¶14} In January 2010, Bayliff withdrew his not guilty plea and entered a

plea of no contest to possessing a dangerous drug in violation of R.C.

4729.51(C)(3). The trial court accepted the plea, entered a conviction, and

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sentenced him to non-reporting community control sanctions, in addition to

imposing a $100 fine and a six-month operator’s license suspension.

{¶15} It is from the trial court’s denial of his motion to suppress that

Bayliff appeals, presenting the following assignment of error for our review.

THE CRIDERSVILLE POLICE OFFICER DID NOT HAVE SUFFICIENT EVIDENCE TO MAKE A TRAFFIC STOP OF APPELLANT.

{¶16} In his sole assignment of error, Bayliff argues that the trial court

erred in denying his motion to suppress. Specifically, he contends that insufficient

evidence was presented at the suppression hearing to establish probable cause for

the traffic stop, as the officer’s testimony did not provide a sufficient basis for a

conclusion that he failed to stop at the stop sign or that his license plate was

improperly illuminated. We disagree.

{¶17} “Appellate review of a decision on a motion to suppress evidence

presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13,

, citing United States v. Martinez (C.A.11, 1992),

. The trial court serves as the trier of fact and is the primary judge of the

credibility of the witnesses and the weight to be given to the evidence presented.

State v. Johnson (2000),

. Therefore, when an appellate

court reviews a trial court’s ruling on a motion to suppress, it must accept the trial

court’s findings of facts so long as they are supported by competent, credible

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evidence. State v. Roberts,

,

, ¶100, citing State

v. Fanning (1982),

. The appellate court must then review the

application of the law to the facts de novo.

citing State v.

Burnside,

,

, ¶8.

{¶18} The Fourth Amendment to the United States Constitution and

Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and

seizures, and require the suppression of any evidence seized as a result of an

unreasonable search and seizure. Mapp v. Ohio (1961),

; State

v. Jones,

,

, overruled on other grounds by

State v. Brown,

,

.

{¶19} The constitutionality of a traffic stop rests upon a determination of

whether the police officer had a sufficient reasonable articulable suspicion of

criminal activity, which is determined by evaluating the objective facts

surrounding the stop. State v. Vlachos, 3d Dist. No. 17-08-24,

,

¶¶10-11, citing State v. Bobo (1988),

; Dayton v. Erickson,

,

. A reasonable articulable suspicion is

‘“specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant the intrusion.”’ State v. Stephenson, 3d Dist. No.

14-04-08,

, quoting Bobo,

. A police

officer’s testimony alone is sufficient to establish reasonable articulable suspicion

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for a stop. See State v. Claiborne, 2d Dist. No. 19060,

.

Additionally, “[w]here 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 Fourth Amendment to the United States Constitution * * *.” Erickson,

. Probable cause is ‘“a reasonable ground for belief of guilt,’”

State v. Moore,

, 49,

, quoting Carroll v. United

States (1925),

, and 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.’” Bowling Green v. Godwin,

,

, ¶14, quoting Ornelas v. United States (1996),

. Moreover, a finding of probable cause is fact-specific and turns upon

what the officer knew at the time he conducted the traffic stop. Erickson,

.

{¶20} Once a traffic stop has been made, its duration “must be tailored to

its justification and the seizure of the driver must last no longer than reasonably

necessary to effect its purpose.” State v. Kazai, 6th Dist. No. WD-03-035, 2004-

Ohio-4147, ¶9, citing State v. Gonyou (1995),

.

However, the duration of a traffic stop may be extended where additional

information is gathered during the stop which provides an independent, reasonable

articulable suspicion that additional offenses have been or are being committed.

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State v. Hundley, 3d Dist. Nos. 15-09-10, 15-09-12,

, citing

Stephenson,

.

{¶21} R.C. 4511.43(A) provides the requirements for all drivers

approaching a stop sign, and states, in pertinent part:

Except when directed to proceed by a law enforcement officer, every driver of a vehicle or trackless trolley approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways.

{¶22} Additionally, R.C. 4513.05(A) provides the requirements for the

illumination of rear license plates, and states as follows:

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. * * *

{¶23} In the case at bar, Patrolman Foxvog testified at the October 2009

hearing that he observed Bayliff fail to stop at the stop sign at the intersection of

North Street and Shawnee Road; that he was approximately eighty feet from the

intersection when he observed the vehicle fail to stop; that he believed he could

see the stop sign even though it was dark at the time; that he followed the vehicle

and also noticed that the license plate was not fully illuminated; that he could only

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see the letters and numbers on the plate if his headlights were shining on it; and,

that he could only see the license plate without the aid of his headlights from ten

feet away.

{¶24} During the November 2009 hearing, Patrolman Foxvog further

testified that there were no obstructions between his position and the intersection

at which Bayliff failed to stop; that he was approximately fifty yards from

Bayliff’s vehicle as it approached the intersection; that, as soon as Bayliff

proceeded through the intersection, he noticed that the vehicle’s license plate was

not fully illuminated; and, that, while following the vehicle, he turned his

headlights off and back on, and was unable to see the license plate while his

headlights were off.

{¶25} Based on the evidence presented at the hearing, we find there was

sufficient probable cause for Patrolman Foxvog’s stop of Bayliff’s vehicle1.

Testimony was presented that Bayliff’s license plate was not properly illuminated

so as to render it visible to a distance of fifty feet; that the license plate could only

be seen without the aid of additional light from a distance of ten or fifteen feet;

and, that this license plate violation was observed prior to the vehicle stop.

{¶26} Furthermore, although the trial court’s journal entry is not

specifically clear as to whether probable cause for the traffic stop existed solely on

1 While we have found probable cause existed for the traffic stop, we reiterate that a reasonable articulable suspicion of criminal activity is all that is required to commence an investigatory stop. See Hundley, 2009- Ohio-6873, at FN3.

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the basis of Bayliff’s failure to stop at a stop sign, we find that the testimony

presented established probable cause exclusively on this ground. While the

credibility of Patrolman Foxvog’s testimony on this issue was called into question

based upon the concern raised by the trial court of the actual distance between

Patrolman Foxvog and the intersection at which Bayliff failed to stop, the standard

for determining whether the stop was proper is whether there was a “a reasonable

ground for belief of guilt,” not that the offense was committed beyond a

reasonable doubt. Moore,

. Accordingly, we find that

Bayliff’s failure to stop at the stop sign also constituted probable cause for the

traffic stop.

{¶27} Finally, we note that, at both the October and November hearings,

the trial court went outside the evidence and conducted its own investigation as to

the distance between the intersection at which Bayliff failed to stop, and the

intersection at which Patrolman Foxvog was located at the time he observed

Bayliff’s failure to stop. According to the trial court’s internet research, the

distance was approximately two hundred yards, despite Patrolman Foxvog’s

testimony at the October hearing that he was eighty feet from the intersection, and

his testimony at the November hearing that he was fifty yards from the

intersection. While the trial court may have discovered the correct distance

between Patrolman Foxvog and Bayliff, it was impermissible for the trial court to

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consider evidence outside the record and conduct its own investigation of the

facts. See, generally, State v. Mattox (1966),

; State v. Denoon

(1966),

. There is no authority for a trial court’s independent

investigation. Nevertheless, the trial court’s actions did not affect the disposition

of this case.

{¶28} Accordingly, we overrule Bayliff’s assignment of error.

{¶29} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI, P.J., and PRESTON, concur.

/jnc

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