[Cite as State v. Dean,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : ALAN R. DEAN : Case No. 12-CA-60 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 12TRC02814

JUDGMENT: Reversed

DATE OF JUDGMENT: February 1, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

J. MICHAEL KING ROBERT E. CALESARIC 35 South Park Place 35 South Park Place Suite 35 Suite 150 Newark, OH 43055 Newark, OH 43055 Licking County, Case No. 12-CA-60 2

Farmer, J.

{¶1} On March 18, 2012, Pataskala Police Officer Joshua Silverman stopped

appellant, Alan Dean, for impeding traffic. Upon investigation, appellant was charged

with driving under the influence in violation of R.C. 4511.19 and unreasonable slow

speed in violation of R.C. 4511.22.

{¶2} On April 24, 2012, appellant filed a motion to suppress, claiming an illegal

traffic stop. A hearing was held on June 13, 2012. By judgment entry filed June 18,

2012, the trial court denied the motion.

{¶3} On June 29, 2012, appellant pled no contest to the charge. By judgment

entry filed same date, the trial court found appellant guilty and sentenced him to sixty

days in jail, fifty-four days suspended.

{¶4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶5} "APPELLEE DID NOT MEET ITS BURDEN AND ESTABLISH THAT

OFFICER SILVERMAN HAD PROBABLE CAUSE OR REASONABLE SUSPICION TO

STOP APPELLANT."

I

{¶6} Appellant claims the trial court erred in denying his motion to suppress as

Officer Silverman lacked reasonable suspicion of criminal activity to warrant the stop of

his vehicle. We agree.

{¶7} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. Licking County, Case No. 12-CA-60 3

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning,

(1982); State v. Klein,

(4th Dist. 1991); State v.

Guysinger,

(4th Dist. 1993). Second, an appellant may argue the

trial court failed to apply the appropriate test or correct law to the findings of fact. In that

case, an appellate court can reverse the trial court for committing an error of law. State

v. Williams,

(4th Dist. 1993). Finally, assuming the trial court's

findings of fact are not against the manifest weight of the evidence and it has properly

identified the law to be applied, an appellant may argue the trial court has incorrectly

decided the ultimate or final issue raised in the motion to suppress. When reviewing

this type of claim, an appellate court must independently determine, without deference

to the trial court's conclusion, whether the facts meet the appropriate legal standard in

any given case. State v. Curry,

(8th Dist. 1994); State v. Claytor,

(4th Dist. 1993); Guysinger. As the United States Supreme Court held

in Ornelas v. U.S.,

,

(1996), "…as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."

{¶8} In Terry v. Ohio,

(1968), the United States Supreme Court

determined that "a police officer may in appropriate circumstances and in an appropriate

manner approach a person for purposes of investigating possible criminal behavior

even though there is no probable cause to make an arrest." However, for the propriety

of a brief investigatory stop pursuant to Terry, the police officer involved "must be able

to point to specific and articulable facts which, taken together with rational inferences Licking County, Case No. 12-CA-60 4

from those facts, reasonably warrant that intrusion."

. Such an investigatory

stop "must be viewed in the light of the totality of the surrounding circumstances"

presented to the police officer. State v. Freeman,

(1980), paragraph

one of the syllabus.

{¶9} Appellant claims there was no evidence of impaired driving to warrant the

stop. He argues slow speed is insufficient to establish reasonable suspicion of criminal

activity.

{¶10} The undisputed evidence establishes Officer Silverman was traveling in

the opposite direction when he observed appellant traveling at a slow speed (28 m.p.h.

in a 45 m.p.h. zone). T. at 7-8. Officer Silverman made a u-turn and pulled behind a

vehicle that was behind appellant's vehicle. T. at 8. As soon as the road became two

lanes, the vehicle behind appellant passed him.

{¶11} Officer Silverman continued to follow appellant's vehicle and observed him

slow down to 15-20 m.p.h. in a 35 m.p.h. zone. T. at 9, 17. Appellant then activated his

right turn signal for 500 feet and passed by seven to eight business driveways before

turning onto Main Street. T. at 9-10. The turn was wide and "real slow." T. at 10.

Appellant activated his right turn signal again and turned onto Third Street. T. at 10, 19.

Officer Silverman then pulled appellant over for impeding traffic, slow speed, and

"abnormal" driving.

We note the speed limit on Main Street was 25 m.p.h. T. at 18.

Officer Silverman's observations of appellant's driving encompassed a one mile

distance. T. at 13-14; Defendant's Exhibit B.

{¶12} R.C. 4511.22(A) governs slow speed and states, "[n]o person shall stop or

operate a vehicle, trackless trolley, or street car at such an unreasonably slow speed as Licking County, Case No. 12-CA-60 5

to impede or block the normal and reasonable movement of traffic, except when

stopping or reduced speed is necessary for safe operation or to comply with law."

{¶13} Many appellate courts have addressed the stopping of a vehicle for slow

speed. State v. Cockrell, 4th Dist. No. 93CA1957 (July 25, 1994); State v. Hagerty,

11th Dist. Nos. 2001-P-0083 and 2001-P-0084,

; State v. Bacher,

(2007). The distinguishing fact in these cases is whether traffic was

impeded or obstructed:

Also, although one may be stopped for going substantially under

the speed limit, generally such a defendant has been found to have been

seriously impeding traffic or going unreasonably slow to create a safety

risk before a stop is justified. State v. Poynter (1992),

(defendant was travelling ten miles an hour in a forty-five zone); State v.

Wright (Oct. 17, 1990), Pickaway App. No. 89-CA-19, unreported (a line of

cars had backed up behind defendant).

Cockrell, supra, at *3.

{¶14} This district has also adopted the view that slow speed alone is insufficient

to warrant a traffic stop. See, State v. Beghin, 5th Dist. No. 2003CA00297, 2004-Ohio-

2654. The prevailing view is that "slow speed" without some demonstration of impeding

or obstruction of traffic is insufficient to validate a stop; however, each case must be

examined in light of its own specific facts and circumstances. Licking County, Case No. 12-CA-60 6

{¶15} In the matter sub judice, appellant was not impeding traffic. As soon as

the road widened, the other vehicle behind him passed and Officer Silverman freely

admitted he too could have passed appellant. The road was wet with foggy conditions

and it was 1:00 a.m. T. at 12, 14, 21. The foggy conditions did not obstruct the officer's

visibility for the one mile of observation. T. at 24.

{¶16} We find for the officer to conclude that something was "abnormal" (T. at

22) was tantamount to a hunch and was not based upon specific and articulable facts

that criminal activity was afoot. While many impaired drivers drive slowly, many

unimpaired drivers do too. If traffic is not impeded or obstructed, there is no criminal

activity.

{¶17} Based upon the facts of this case, we find the trial court erred in denying

appellant's motion to suppress.

{¶18} The sole assignment of error is granted. Licking County, Case No. 12-CA-60 7

{¶19} The judgment of the Municipal Court of Licking County, Ohio is hereby

reversed.

By Farmer, J.

Delaney, P.J. and

Hoffman, J. concur.

_s/ Sheila G. Farmer_______________

_s/ Patricia A. Delaney_____________

_s/ William G. Hoffman_____________

JUDGES

SGF/sg 111 [Cite as State v. Dean,

.]

IN THE COURT OF APPEALS FOR LICKINGCOUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ALAN R. DEAN : : Defendant-Appellant : CASE NO. 12-CA-60

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Licking County, Ohio is reversed. Costs to appellee.

_s/ Sheila G. Farmer_______________

_s/ Patricia A. Delaney_____________

_s/ William G. Hoffman_____________

JUDGES