[Cite as State v. Turner,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellant, : CASE NO. CA2018-11-082

: OPINION - vs - 3/1/2021 :

RYAN TURNER, :

Appellee. :

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2018 TRC 11581

D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellant

Faris & Faris, LLC, Zachary F. Faris, 40 South Third Street, Batavia, Ohio 45103, for appellee

HENDRICKSON, P.J.

{¶1} This matter is before us on remand from the Ohio Supreme Court pursuant to

State v. Turner, Slip Opinion No.

("Turner II"), for consideration of an issue

not previously ruled on by this court in the state's appeal of a Clermont County Municipal

Court decision granting the motion to suppress of appellee, Ryan Turner. Because the

state failed to raise an argument in the court below that the traffic stop of Turner's motor Clermont CA2018-11-082

vehicle was lawful, even in the absence of probable cause or reasonable articulable

suspicion, due to the officer's reasonable mistake of law, we find the issue waived and

therefore affirm the decision of the trial court granting Turner's motion to suppress.

I. FACTS & PROCEDURAL HISTORY

{¶2} The facts related to Turner's motion to suppress were set forth in great detail

in State v. Turner, 12th Dist. Clermont No. CA2018-11-082,

("Turner

I"). Rather than repeat them in full, we limit our recitation of the facts to those pertinent to

resolving the issue on remand.

{¶3} On August 5, 2018, Ohio State Highway Patrol Trooper Jordan Haggerty

stopped Turner as Turner was driving on Old State Route 74, a two lane, two-way road in

Union Township, Clermont County, Ohio for failing to drive within the marked lanes. Turner

was charged with committing a marked lanes violation under R.C. 4511.33 and with

operating a motor vehicle while under the influence of alcohol ("OVI") in violation of R.C.

4511.19(A)(1)(a) and (d).

{¶4} Turner pled not guilty to the charges and filed a motion to suppress evidence

relating to the OVI charge on the basis that Trooper Haggerty did not have probable cause

or reasonable and articulable suspicion to initiate the traffic stop. At a hearing on Turner's

motion to suppress, Trooper Haggerty testified that he had observed the vehicle driven by

Turner drift to the right, with the sedan's two right tires touching the solid, white fog line on

the right side of the road. The sedan's right tires did not cross the fog line, but merely

touched the line. This was the sole basis for the traffic stop of Turner's vehicle.

{¶5} At the conclusion of the motion to suppress hearing, the trial court heard

argument from the parties as to the merits of Turner's motion. The state argued that the

traffic stop was lawful as there was probable cause and reasonable and articulable

suspicion to believe a marked lanes violation had occurred when the tires touched the fog

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line. Turner maintained the stop was unlawful, as there was neither probable cause nor

reasonable and articulable suspicion to make the stop as his tires had not crossed the fog

line. The trial court invited the parties to submit a memorandum and/or case law dealing

with the issue of whether touching, but not crossing a marked lane line constituted a

violation of the marked-lanes statute. Turner submitted a memorandum on November 7,

2018. The state did not submit a memorandum.

{¶6} On November 14, 2018, the trial court granted Turner's motion to suppress,

concluding that a reasonable, prudent police officer would not have believed that a marked-

lanes violation had occurred. The trial court stated that although it could not see the one-

time touch of the fog line by Turner's tires on the trooper's dash-cam video, it would take

Trooper Haggerty at his word that Turner's tires had touched the line. The court

nonetheless concluded that touching the fog line did not establish probable cause that a

violation of R.C. 4511.33(A)(1) had occurred.

{¶7} The state appealed the trial court's decision, arguing that Trooper Haggerty

had reasonable and articulable suspicion to effectuate the traffic stop as he believed Turner

had committed a marked lanes violation. Alternatively, the state contended that even if

there was not sufficient reasonable and articulable suspicion for the stop, the stop was

nonetheless lawful as "the officer made a reasonable mistake of law." See Turner I, 2019-

Ohio-3950 at ¶ 9.

{¶8} In a split decision, the majority in Turner I, reversed the trial court's decision,

holding that "[d]riving on a marked lane is not fully inside or 'entirely within' a single lane of

traffic. As such, an officer who observes a motorist driving on a marked lane line has

reasonable and articulable suspicion that the driver has violated R.C. 4511.33 and may

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conduct a traffic stop." Id. at ¶ 19.1 Given the majority's conclusion that there was

reasonable and articulable suspicion to justify the traffic stop of Turner's vehicle, the court

determined that it was "unnecessary to address the state's 'mistake of law' argument." Id.

at ¶ 22.

{¶9} Following the decision in Turner I, this court certified our decision as being in

conflict with decisions from the First, Third, Fifth, Sixth, Eighth, and Eleventh District Courts

of Appeals, as those courts had determined that traveling on a marked lane line was not a

violation of the marked-lanes statute, R.C. 4511.33, and therefore did not create probable

cause or reasonable and articulable suspicion for a traffic stop. State v. Turner, 12th Dist.

Clermont No. CA2018-11-082 (Entry Granting Motion to Certify Conflict) (Nov. 22, 2019).

The supreme court accepted jurisdiction over the certified conflict.

{¶10} In Turner II, the supreme court modified the certified question upon a

determination that the proper inquiry was "whether the officer had 'probable cause to believe

that a traffic violation has occurred.'" Turner II,

, quoting Whren v.

United States,

,

(1996). Therefore, the issue before the

court was whether an officer has probable cause to conduct a traffic stop of a motor vehicle

for a marked lanes violation under R.C. 4511.33(A)(1) when the officer observes the tires

of a vehicle driving on, but not across a marked lane line. Id. at ¶ 1-2. The court answered

the question in the negative, holding that

based on the plain language of R.C. 4511.33(A)(1), the definitions set forth in R.C. 4511.01, and the statutory scheme as a whole, * * * the single solid white longitudinal line on the right-hand edge of a roadway – the fog line – merely

1. In Turner I, the dissent found that the Manual of Uniform Traffic Control Devices, "as incorporated into R.C. Chapter 4511, defines a lane of travel as including the fog line such that a mere touching or driving upon the fog line does not violate R.C. 4511.33(A)." State v. Turner, 12th Dist. Clermont No. CA2018-11-082, 2019- Ohio-3950, ¶ 36. The dissent, therefore, found there was not probable cause nor reasonable and articulable suspicion for the traffic stop and indicated that the trial court's decision granting the motion to suppress should be affirmed. Id. at ¶ 29, 36.

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"discourages or prohibits" a driver from "crossing" it; it does not prohibit "driving on" or "touching" it.

Id. at ¶ 3, citing Manual of Uniform Traffic Control Devices ("MUTCD") Section 3A.06(B)

(Jan. 13, 2012). The supreme court found that Turner's touching of the fog line was not a

violation of R.C. 4511.33(A)(1) and did not create probable cause for the traffic stop. Id. at

¶ 29 and 35. However, because the issue of the state's alternative "reasonable mistake of

law" argument had not been addressed on direct appeal, the supreme court remanded the

matter for consideration of "whether the trooper's reasonable mistake of law validated the

stop." Id. at ¶ 38.

II. ANALYSIS

{¶11} "The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution prohibit unreasonable searches and seizures, including

unreasonable automobile stops." Bowling Green v. Godwin,

, 2006-Ohio-

3563, ¶ 11. When a defendant files a motion to suppress alleging the traffic stop constituted

an unlawful seizure, "the state bears the burden of demonstrating the validity of [the] traffic

stop." State v. Bui, 6th Dist. Lucas No. L-19-1028,

, ¶ 29, citing State v.

Foster, 11th Dist. Lake No. 2003-L-039,

. See also Xenia v. Wallace,

(1988), paragraph two of the syllabus; State v. Adkins, 12th Dist. Butler

Nos. CA2014-02-036 and CA2014-06-141,

, ¶ 28.

{¶12} In the case before us, the state asserted a new justification for the validity of

the traffic stop for the first time on appeal; that is, the officer's "reasonable mistake of law."

This justification was not argued or presented to the trial court as a basis for authorizing or

validating the traffic stop. The state did not submit a memorandum in opposition to

appellant's motion to suppress in which it asserted the "reasonable mistake of law"

argument, and it failed to raise the argument altogether at the suppression hearing.

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{¶13} "A first principle of appellate jurisdiction is that a party ordinarily may not

present an argument on appeal that it failed to raise below." State v. Wintermeyer,

,

, citing Goldfuss v. Davidson,

(1997). This court has consistently applied this principal, holding that "a party cannot raise

new issues or legal theories for the first time on appeal because such issues or theories are

deemed waived." State v. Keating, 12th Dist. Clermont No. CA2019-08-064, 2020-Ohio-

2770, ¶ 27, citing State v. Kirk, 12th Dist. Clermont No. CA2019-07-053,

. "This waiver 'applies to arguments not asserted either in a written motion to suppress

or at the suppression hearing.'" Kirk at ¶ 25, citing State v. Walker, 1st Dist. Hamilton No.

C-150757,

.

{¶14} As the record reflects that the state failed to raise in the trial court an argument

that the traffic stop of Turner's vehicle was lawful, even in the absence of probable cause

or reasonable articulable suspicion, due to the officer's reasonable mistake of law, we find

that this issue is not properly before this court. See Keating at ¶ 26-27; Kirk at ¶ 25.

Accordingly, the state's assignment of error contending the trial court erred in granting the

motion to suppress is overruled.

III. CONCLUSION

{¶15} Based on the record before us, we find that the trial court did not err in granting

Turner's motion to suppress.

{¶16} Judgment affirmed.

M. POWELL and S. POWELL, JJ., concur.

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