[Cite as State v. Hampton,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-210423 TRIAL NO. B-2101597 Plaintiff-Appellant, :

: O P I N I O N. VS. :

DEARRIUS HAMPTON, :

Defendant-Appellee. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 27, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

The Law Office of Wendy R. Calaway, Co., LPA, Wendy R. Calaway, and The Lewis Law Firm, Inc. LPA, Cornelius “Carl” Lewis, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} A traffic stop premised on tailgating ended with the indictment of

defendant-appellee Dearrius Hampton on multiple drug-related felonies. Mr.

Hampton moved to suppress the evidence against him, arguing that the stop ran afoul

of his constitutional rights. The trial court agreed and granted his motion to suppress,

finding that the officer lacked probable cause or reasonable suspicion to effectuate the

traffic stop. The state now appeals, but because competent and credible evidence

supports the trial court’s determination and the court correctly applied the governing

legal standard, we affirm its judgment.

I.

{¶2} Mr. Hampton first caught the eye of a police officer who was part of the

Regional Narcotics Unit task force while driving a silver Dodge Charger on

southbound I-75 allegedly at a rate of speed slower than the surrounding traffic. As

Mr. Hampton passed by him, the officer noticed the car’s heavily-tinted windows and

Tennessee license plates. Based on those initial observations, and knowing that the

out-of-state plates prevented him from stopping Mr. Hampton for a window-tint

violation, the officer pulled out and followed the vehicle to scrutinize his driving

habits.

{¶3} By the time the officer caught up to Mr. Hampton, the Charger was

purportedly tailgating the vehicle in front of it. Mr. Hampton changed lanes and began

similarly following a second car at a distance that the officer believed unsafe for the

conditions. According to the investigative report, at this point, the officer queried the

Tennessee license plate, ascertained that the vehicle was a rental, and decided to stop

2 OHIO FIRST DISTRICT COURT OF APPEALS

Mr. Hampton for tailgating because rental companies do not (in his experience) tint

their car windows and he hoped to find evidence of drug trafficking.

{¶4} After stopping Mr. Hampton, the officer deployed the drug-sniffing

canine that was riding along with the task force and the dog alerted to the presence of

a drug odor emanating from the Dodge Charger. The task force officers found a small

bag of drugs in the center console left cup holder and three bags of drugs on the rear

passenger floor board inside a microwaveable popcorn box. After his arrest, Mr.

Hampton lodged objections to the stop, claiming that because he was legally operating

the car, the officer lacked any justification to initiate the traffic stop, contravening his

Fourth Amendment rights. The trial court agreed, suppressing the evidence as “fruits

of the poisonous tree,” and the state now appeals.

II.

{¶5} Our review of the trial court’s decision granting the motion to suppress

presents a mixed question of law and fact. State v. Winfrey, 1st Dist. Hamilton No. C-

070490,

. “In considering a motion to suppress, the trial court

is in the best position to decide the facts and to evaluate the credibility of the

witnesses.”

And while “we must accept the trial court’s findings of fact if they are

supported by competent and credible evidence,” we will review de novo the trial court’s

application of the law to those facts. Id.; State v. Jordan,

,

(1st Dist.) (“We defer to the trial court’s factual findings if they are supported

by competent and credible evidence, but we review de novo the court’s application of

the law to those facts.”).

{¶6} Traffic stops initiated by law enforcement officers constitute seizures

under the Fourth Amendment, thus “any traffic stop must comply with the Fourth

3 OHIO FIRST DISTRICT COURT OF APPEALS

Amendment’s reasonableness requirement.” State v. Brown, 1st Dist. Hamilton No.

C-190186,

, citing Whren v. United States,

,

,

(1996). Ohio law recognizes two types of

constitutionally permissible traffic stops, and “[t]he applicable standard depends on

the type of traffic stop.” State v. Johnson, 1st Dist. Hamilton Nos. C-010621 and C-

010622,

, ¶ 5. The first type of traffic stop, an investigative stop,

occurs when a police officer lacks probable cause to stop a defendant based on the lack

of a first-hand observation of a traffic violation. Even absent probable cause, “a traffic

stop is constitutionally valid if an officer has a reasonable and articulable suspicion

that a motorist has committed, is committing, or is about to commit a crime.” State v.

Mays,

,

,

(“[W]e have not

held that probable cause is required. Probable cause is a stricter standard than

reasonable and articulable suspicion * * * which is all the officer needs to justify a

stop.”).

{¶7} Seeking to avail itself of this option, the state asserts that, at the very

least, the officer’s suspicion that Mr. Hampton violated an Ohio traffic law was

reasonable and justified an investigative stop of the car. But the state failed to develop

that argument on appeal or direct us to specific and articulable facts giving rise to

suspected criminal activity that required further investigation by the officer,

particularly given that he pulled the vehicle over for allegedly driving too close to

another car. As a result, the driving offense (if any) was completed by the time that he

stopped the car, leaving nothing to investigate. See Johnson at ¶ 6 (limiting this type

of stop to situations where the officer “does not necessarily witness a specific traffic

violation”). On these facts, therefore, reasonable suspicion cannot support the stop.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶8} We accordingly confine our analysis to the typical noninvestigatory

stop that officers perform after witnessing specific traffic violations, premised on

probable cause. This second type of constitutionally-permissible traffic stop is

reasonable under the Fourth Amendment when supported by probable cause “ ‘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.’ ” State v. Mosley, 1st Dist.

Hamilton No. C-200448,

, quoting City of Dayton v. Erickson,

,

(1996); State v. Slaughter, 1st Dist. Hamilton Nos.

C-170110, C-170111 and C-170112,

(“A police officer’s decision to

stop an automobile is reasonable where the officer has probable cause to believe that

a traffic violation has occurred. Probable cause is a complete justification for a traffic

stop.”).

{¶9} According to the state, the officer had probable cause to stop Mr.

Hampton because he witnessed Mr. Hampton twice violating R.C. 4511.34 by

following the vehicles in front of him too closely. In assessing the officer’s belief that

Mr. Hampton violated Ohio law, the trial court should examine the circumstances and

historical facts “from the standpoint of an objectively reasonable police officer. * * *

Determination of probable cause that a traffic offense has been committed, ‘like all

probable cause determinations, is fact-dependent and will turn on what the officer

knew at the time he made the stop.’ ” (Emphasis deleted.) City of Bowling Green v.

Godwin,

,

,

, quoting United

States v. Ferguson,

(6th Cir. 1993). “Thus, the question whether a

traffic stop violates the Fourth Amendment to the United States Constitution requires

5 OHIO FIRST DISTRICT COURT OF APPEALS

an objective assessment of a police officer’s actions in light of the facts and

circumstances.”

{¶10} Turning to Mr. Hampton’s alleged violation, R.C. 4511.34 renders it

unlawful for the operator of a motor vehicle to follow another vehicle “more closely

than is reasonable and prudent, having due regard for the speed of such vehicle * * *

and the traffic upon and the condition of the highway.” “Although R.C. 4511.34(A)

does not provide a specific standard for determining when a motorist is following

another vehicle more closely than is reasonable and prudent, numerous courts have

concluded that a motorist’s failure to follow another vehicle at a distance greater than

one car length for every ten miles per hour the motorist’s vehicle is traveling may, in

some circumstances, indicate that the motorist is in violation of R.C. 4511.34.” State

v. Holmes,

,

, ¶ 29 (3d Dist.). The officer testified that

based on the cars around them, he believed Mr. Hampton was traveling the posted

speed of 55 m.p.h. and following the cars in front of him at a distance of one to one

and a half car lengths.

{¶11} During the hearing on the motion to suppress, Mr. Hampton’s counsel

presented video evidence obtained from the Ohio Department of Transportation. The

videos captured only Mr. Hampton’s second alleged violation of R.C. 4511.34, though

the officer confirmed the first violation was substantially the same, leaving the trial

court with no reason to analyze it differently. The video depicted the Dodge Charger

traveling in the southbound center lane of I-75 first near the Shepherd Lane exit, and

then again closer to the Lockland split. The trial court concluded that Mr. Hampton

appeared to be at least two car lengths behind the vehicle in front of him. In the state’s

view, and relying on the officer’s estimated speed of 55 m.p.h., probable cause existed

6 OHIO FIRST DISTRICT COURT OF APPEALS

that Mr. Hampton was in violation of the statute unless five and a half car lengths of

distance separated him and the cars in front of him at all times. The state faults the

trial court for substituting its own judgment in place of the officer about what

constitutes a safe driving distance.

{¶12} But this fails to take into account the legal standard under R.C. 4511.34.

As the Sixth District recently recognized, “the one car length per ten miles an hour

measurement is not a standard but is one means of estimating what is reasonable and

prudent under the circumstances.” State v. Bui, 6th Dist. Lucas No. L-19-1028, 2021-

Ohio-362, ¶ 32. “To determine whether an officer possessed probable cause or

reasonable suspicion to stop a vehicle, the court must examine the totality of the

circumstances.” Brown, 1st Dist. Hamilton No. C-190186,

.

Establishing probable cause for a violation of R.C. 4511.34 required the state to prove

not that Mr. Hampton followed the cars in front of him at a distance of less than five

and a half car lengths, but that he followed more closely than was reasonable and

prudent in light of the speed of the vehicles, the flow of traffic, and the condition of the

highway. See State v. Woods,

,

(5th Dist.).

{¶13} Contrary to the state’s argument, the trial court did not reject extant

Ohio caselaw on this topic, but instead faithfully applied it. The trial court

appropriately evaluated the distance Mr. Hampton was following in conjunction with

the other factors listed in R.C. 4511.34, and based on the totality of the circumstances

(not just the distance between cars), it found that no probable cause existed for a

violation of R.C. 4511.34. Its review of the video evidence and the testimony of the

officer established that the roads were dry, it was midday and sunny, good visibility

existed with a moderate flow of traffic, the speed limit was 55 m.p.h., and there was

7 OHIO FIRST DISTRICT COURT OF APPEALS

equidistance between the cars in the footage. Indeed, the video depicts several cars

following other cars as close (or more closely) than Mr. Hampton. The trial court

weighed the statutory factors against the spacing of Mr. Hampton’s car and judged

that an objectively reasonable officer would not have probable cause pursuant to R.C.

4511.34 to think that Mr. Hampton was traveling “more closely than is reasonable and

prudent.” See R.C. 4511.34. This strikes us as the proper approach and one that

conforms to other Ohio appellate decisions.

{¶14} Bolstering the trial court’s conclusion, the Sixth District recently

reversed a trial court after it found probable cause for a violation of R.C. 4511.34 based

solely on the one car length per ten m.p.h. standard. On a similar fact pattern, the

Sixth District viewed the video evidence in State v. Bui and concluded that despite the

defendant following at less than one car length per ten m.p.h. behind, “[n]owhere in

the video does it show appellant’s vehicle proceeding on the roadway in an

unreasonable or unsafe manner.” Bui at ¶ 41. In looking only to the distance followed,

the trial court “did not apply the correct standard in analyzing the validity of the traffic

stop, and the court’s findings [were] not based on the totality of the circumstances or

supported by competent, credible evidence.” Bui at ¶ 42. The Sixth District’s reversal

is all the more notable in light of the fact that we must generally give deference to the

trial court’s probable cause assessment. See State v. English, 1st Dist. Hamilton No.

C-080872,

, ¶ 8, citing State v. George,

,

(1989), paragraph two of the syllabus. The trial court here essentially proceeded

in the manner envisioned in Bui and actually evaluated the totality of the

circumstances, providing us with a stronger record on which to affirm its judgment.

8 OHIO FIRST DISTRICT COURT OF APPEALS

And we have no hesitation in deferring to its factual findings based on the record at

hand.

{¶15} The trial court’s analysis comports with the language of R.C. 4511.34.

Accordingly, competent and credible evidence was presented upon which the trier of

fact could find that Mr. Hampton was not following more closely than is reasonable

and prudent. We agree with the trial court’s determination that probable cause was

wanting, and that suppression constitutes the appropriate remedy.

* * *

{¶16} In light of the foregoing analysis, we overrule the state’s sole assignment

of error and affirm the judgment of the trial court.

Judgment affirmed.

ZAYAS, P. J., and BOCK, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

9