[Cite as Lakewood v. Shelton,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95746

CITY OF LAKEWOOD PLAINTIFF-APPELLEE

vs.

RICHARD W. SHELTON, III

DEFENDANT-APPELLANT

JUDGMENT: REVERSED

Criminal Appeal from the Lakewood Municipal Court Case No. 2010 TRC 00543

BEFORE: Jones, P.J., Rocco, J., and Keough, J. RELEASED AND JOURNALIZED: September 1, 2011 ATTORNEY FOR APPELLANT

Richard J. Perez Rosplock & Perez 4230 State Route 306 Suite 240 Willoughby, Ohio 44094

ATTORNEYS FOR APPELLEE

Richard A. Neff City of Lakewood Chief Prosecutor

BY: Pamela L. Roessner Assistant Prosecutor City of Lakewood 12650 Detroit Avenue Lakewood, Ohio 44107

LARRY A. JONES, J.:

{¶ 1} Defendant-appellant, Richard Shelton, III (“Shelton”), appeals the trial court’s denial of his motion to suppress. Finding merit to the appeal, we reverse.

{¶ 2} In 2010, Shelton was charged in Lakewood Municipal Court with operating a

vehicle under the influence (“OVI”) and failure to wear his seatbelt. He filed a motion to

suppress, which was denied after a full hearing. The following pertinent evidence was

presented at the suppression hearing.

{¶ 3} On January 29, 2010, Officer William Comerford (“Comerford”) of the

Lakewood Police Department was traveling in his zone car on Waterbury Road. The officer

observed a 2003 gray Mitsubishi Eclipse, driven by Shelton, traveling down the middle of the

street. The street did not have lane markings. The officer began to follow the car but

testified he could not clearly read the license plate because snow covered the plate. Shelton

turned from Waterbury Road onto Athens Avenue, another unmarked street. Shelton traveled

a short distance down Athens Avenue before turning onto Clarence Avenue. At that point,

Comerford activated his overhead lights and effectuated a traffic stop.

{¶ 4} Comerford testified that he stopped the car because he could not read the license

plate from his vehicle and because the car had been traveling in the middle of the street.

Comerford stated that he was able to read the plate once he walked up to the car. The officer

could not recall if he brushed snow off the plate or if the snow just fell off. The officer also

could not recall if he could see any of the letters or numbers on the license plate before approaching the vehicle.

{¶ 5} No testimony was taken as to what happened after Comerford approached the

vehicle, but the record indicates that Shelton refused a breathalyzer test and was arrested for

OVI.

{¶ 6} The trial court denied the motion to suppress, reasoning that the officer had

reasonable basis for stopping the car because the license plate was obstructed. The trial court

further stated that Shelton’s driving in the middle of the road was not a sufficient basis for the

stop because there was snow piled on the sides of the unmarked street.

{¶ 7} Shelton pleaded no contest to the OVI and seatbelt violation and the trial court

sentenced Shelton to 30 days in jail, imposed one-year of community control sanctions, fined

him $600, and suspended his drivers license for two years. The trial court stayed Shelton’s

sentence pending appeal.

{¶ 8} Shelton now appeals, raising one assignment of error for our review:

{¶ 9} “I. The trial court abused its discretion when it denied appellant’s motion to

suppress evidence.”

{¶ 10} In State v. Burnside,

,

,

,

the Ohio Supreme Court explained the standard of review for a motion to suppress as follows:

{¶ 11} “Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact

and is therefore in the best position to resolve factual questions and evaluate the credibility of

witnesses. State v. Mills (1992),

,

. Consequently,

an appellate court must accept the trial court’s findings of fact if they are supported by

competent, credible evidence. State v. Fanning (1982),

,

.

Accepting these facts as true, the appellate court must then independently determine, without

deference to the conclusion of the trial court, whether the facts satisfy the applicable legal

standard. State v. McNamara (1997),

,

.”

{¶ 12} Shelton argues that the police officer did not have reasonable suspicion to

initiate a traffic stop and detain him for an OVI investigation when the sole basis for the stop

was that his license plate was obstructed by snow, but the snow fell off the plate making it

unobstructed before the officer initiated contact with him. For the reasons that follow, we

agree.

{¶ 13} The Fourth Amendment to the United States Constitution prohibits warrantless

searches and seizures, rendering them per se unreasonable unless an exception applies. Katz

v. United States (1967),

,

,

. An investigative stop,

or “Terry stop,” is a common exception to the Fourth Amendment warrant requirement. See

Terry v. Ohio (1968),

,

,

. A law enforcement officer may properly stop an individual under the Terry-stop exception if the officer possesses the

requisite reasonable suspicion based on specific and articulable facts that the person is, was, or

is about to be engaged in criminal activity. Delaware v. Prouse (1979),

,

,

; State v. Gedeon (1992),

,

; State v. Heinrichs (1988),

,

; United States v. Cortez

(1981),

,

,

. Whether reasonable grounds for a

stop exist must be viewed in light of the totality of the circumstances. London v. Edley

(1991),

,

. That being said, at a hearing on a motion to

suppress, the state bears the burden of establishing the validity of a traffic stop. See State v.

Foster, Lake App. No. 2003-L-039,

. Likewise, once a warrantless

search is established, it is the state’s burden to show the validity of the search. Xenia v.

Wallace (1988),

,

.

{¶ 14} “Reasonable suspicion” entails some minimal level of objective justification for

making a stop; this is something more than an inchoate and unparticularized suspicion or

“hunch,” but something less than the level of suspicion required for probable cause.

. The existence of reasonable suspicion is based upon an objective and particularized

suspicion that criminal activity was afoot and must be based on a totality of the surrounding

circumstances. State v. Abdulrahman, Cuyahoga App. No. 95159,

, citing State v. Andrews (1991),

,

.

{¶ 15} Comerford testified that he stopped Shelton’s car, in part, because his license

plate was obscured. R.C. 4503.21(A) provides that “[n]o person who is the owner or

operator of a motor vehicle shall fail to display in plain view on the front and rear of the motor

vehicle the distinctive number and registration mark, including any county identification

sticker and any validation sticker issued * * *. All license plates shall be securely fastened so

as not to swing, and shall not be covered by any material that obstructs their visibility.” A

violation of the statute is a minor misdemeanor. R.C. 4503.21(B). The intent of the statute

is to “require that license plates be visible to law enforcement personnel and others who may

have reason to note the number for identification purposes.” State v. Durfee (Mar. 6, 1998),

Lake App. Nos. 96-L-198 and 96-L-199, at *8.

{¶ 16} In arguing that the trial court abused its discretion in denying his motion,

Shelton relies on the Ohio Supreme Court’s holding in State v. Chatton (1984),

,

. In Chatton, the officer stopped the defendant because no license plates

were visible on his vehicle. After approaching the car on foot, the officer saw a temporary

plate lying on the rear deck under the rear window. Consequently, the Court held the officer

lacked reasonable suspicion of any legal violation once he determined that a temporary plate existed. 1

{¶ 17} In Chatton, the Court held “where a police officer stops a motor vehicle which

displays neither front nor rear license plates, but upon approaching the stopped vehicle

observes a temporary tag which is visible through the rear windshield, the driver of the vehicle

may not be detained further to determine the validity of his driver’s license absent some

specific and articulable facts that the detention was reasonable.”

. The Chatton

court opined that “because the police officer no longer maintained a reasonable suspicion that

appellee’s vehicle was not properly licensed or registered, to further detain appellee and

demand that he produce his driver’s license is akin to [a] random detention[.]”

The Court

concluded that “[a]lthough the police officer, as a matter of courtesy, could have explained to

appellee the reason he was initially detained, the police officer could not unite the search to

this detention, and appellee should have been free to continue on his way without having to

produce his driver’s license.”

{¶ 18} Shelton also relies on this court’s holding in State v. Lopez, Cuyahoga App. No.

93197,

, in which this court found that a motion to suppress should have been

granted because the police did not have reasonable suspicion to detain the defendant whose car

At the time Chatton was decided, R.C. 4503.21 did not require temporary plates to be 1

displayed in any particular way or even to be “visibly displayed at all.” Since Chatton, the General Assembly has amended R.C. 4503.21 to require a temporary plate to be displayed in plain view from the rear of a vehicle and to have its visibility unobstructed. displayed a temporary tag which, except for the angle of the rear window or the glare of the

lights, was entirely readable from left to right. In finding that the trial court erred in denying

the motion to suppress, this court found that once the officer observed the defendant’s validly

displayed temporary tag, he had no further reasonable suspicion to detain him for questioning.

{¶ 19} In contrast, the city relies on State v. Phillips, Montgomery App. No. 22918,

, in which the defendant argued that the officer lacked reasonable, articulable

suspicion to justify stopping and detaining him and was required to let him go immediately

upon approaching his car and seeing the license plate number. The defendant claimed that

once the officer was able to read the license plate, there was no legitimate basis for continuing

the stop. The court disagreed, finding that because the defendant’s temporary plate was

obstructed by a tinted cover, dirt, and road salt, the officer continued to have reasonable

suspicion of a statutory violation after he approached the defendant’s car and was allowed to

question the defendant. Id. at ¶12.

{¶ 20} We find this case to be similar to Lopez and distinguishable from Phillips.

Once Comerford got out of his zone car and approached Shelton’s car, he could read the

license plate. And although he testified that he also pulled Shelton over because he had been

driving in the middle of the street, we agree with the trial court’s assessment that Shelton’s

driving in the middle of an unmarked street during winter with snow piled on the sides of the street did not give the officer reasonable suspicion of any criminal activity.

{¶ 21} We are further troubled by the officer’s testimony that he could not remember

whether he brushed the snow off or the snow fell off itself. Because the city bears the burden

of showing that the stop and seizure are justified, the officer’s inability to remember such an

important fact weighs heavily towards suppression. Moreover, the city failed to submit any

evidence regarding Shelton’s detention and the officer’s subsequent OVI investigation.

Again, it is the city’s burden to set forth evidence that a warrantless search and seizure is

justified; the city has failed to do so in this case. 2

{¶ 22} Although Comerford testified that he could not read the entire license plate

when he pulled Shelton over, he was able to read the plate once he got out of his zone car and

started to approach Shelton’s car. Once he could read the license plate, he no longer had any

reason to detain Shelton for an OVI investigation and should have sent him on his way. In

accord with Chatton, Comerford, as a matter of courtesy, could have explained to Shelton the

reason he was initially detained, but he could not “unite the search to this detention,” and on

this record Shelton should have been free to continue on his way without any further detention

Our finding in this case may have been different if, by way of example, Officer Comerford 2

had approached the car as a courtesy to tell Shelton he was free to go and immediately noticed Shelton was intoxicated. Under those circumstances, we would be hesitant to say that the officer was required to release Shelton without further investigation. Since the city chose not to submit any evidence of the detention, however, we are not aware of any of the circumstances of the detention and will not presume anything not entered into evidence during the suppression hearing. or investigation.

{¶ 23} Therefore, we find that the trial court erred in denying Shelton’s motion to

suppress.

{¶ 24} The sole assignment of error is sustained.

Accordingly, judgment is reversed and the case is remanded for

proceedings consistent with this opinion.

It is ordered that appellant recover of appellee his costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Lakewood Municipal Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

LARRY A. JONES, PRESIDING JUDGE

KENNETH A. ROCCO, J., and KATHLEEN ANN KEOUGH, J., CONCUR