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State v. Blair

December 3, 2008

STATE OF OHIO APPELLEE
v.
DEMETIRUS M. BLAIR APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 07 08 2801.

The opinion of the court was delivered by: Carr, Presiding Judge.

DECISION AND JOURNAL ENTRY

{¶1} Appellant, Demetrius Blair ("Blair"), appeals the judgment of the Summit County Court of Common Pleas which denied his motion to suppress and found him guilty of possession of cocaine and possession of marijuana. This Court affirms.

I.

{¶2} On August 22, 2007, Blair was arrested. On September 4, 2007, Blair was indicted on one count of possession of cocaine in violation of R.C. 2925.11(A), one count of possession of marijuana in violation of R.C. 2925.11(A), and one count of failing to use a turn signal in violation of R.C. 4511.39. On September 25, 2007, Blair filed a motion to suppress "any and all evidence obtained during the illegal search and seizure of the Defendant." On October 30, 2007, a hearing was held on Blair's motion to suppress, and on November 14, 2007, the trial court denied the motion. On the February 28, 2008, the jury returned a verdict of guilty for count one only, possession of cocaine, because Blair waived his right to a jury trial as to count 2. On March 13, 2008, the trial court found Blair guilty of count 2, possession of marijuana, and dismissed the charge contained in count 3. On April 10, 2008, Blair was sentenced to a definite term of one year for punishment of the crime of possession of cocaine, and two days for punishment of the crime of possession of marijuana. Furthermore, the trial court ordered the sentences to be served concurrently. Blair timely appeals.

II.

ASSIGNMENT OF ERROR

"THE TRIAL COURT ERRED IN DENYING APPELLANT'S SUPPRESSION MOTION."

{¶3} Blair argues that the trial court erred in failing to suppress the evidence found in his vehicle on the day of his arrest. This Court disagrees.

{¶4} This Court has found that the appropriate standard of review of a trial court's ruling regarding "a motion to suppress presents a mixed question of law and fact." State v. Swan, 9th Dist. No. 22939, 2006-Ohio-2692, at ¶8, citing State v. Long (1998), 127 Ohio App.3d 328, 332. Because the trial court assumes the role of trier of fact during a suppression hearing and is in the best position to evaluate "the credibility of witnesses and resolve questions of fact[,]" Swan at ¶8, citing State v. Hopfer (1996), 112 Ohio App.3d 521, 548, "[a] reviewing court 'must accept the trial court's findings of fact if they are supported by competent, credible evidence.'" State v. Cutlip, 9th Dist. No. 08CA009353, 2008-Ohio-4999, at ¶7, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8. "However, the application of the law to those facts will be reviewed de novo." State v. Metcalf, 9th Dist. No. 23600, 2007-Ohio-4001, at ¶6, citing State v. Searls (1997), 118 Ohio App.3d 739, 741.

{¶5} In order to make a lawful stop of a vehicle, "the officer must have a reasonable suspicion, based upon specific and articulable facts, that an occupant is or has been engaged in criminal activity." State v. Johnson, 9th Dist. No. 03CA127-M, 2004-Ohio-3409, at ¶6, citing State v. Gideon (1992), 81 Ohio App.3d 617, 618. Furthermore, "[i]n analyzing whether reasonable suspicion existed, this Court looks to 'the facts available to the officer at the moment of the seizure or the search' and considers whether those facts would 'warrant a man of reasonable caution in the belief that the action taken was appropriate.' (Internal quotations omitted.)" State v. Smiley, 9th Dist. No. 23815, 2008-Ohio-1915, at ¶19, quoting State v. Bobo (1988), 37 Ohio St.3d 177, 178-79. Ultimately, "[t]he propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances." Id. at paragraph one of the syllabus, citing State v. Freeman (1980), 64 Ohio St.2d 291.

{¶6} However, the United States Supreme Court and the Supreme Court of Ohio have both found "that any violation of a traffic law gives rise to a reasonable suspicion to make an investigatory stop of a vehicle." (Emphasis omitted.) Johnson at ¶11, citing Whren v. United States (1996), 517 U.S. 806; State v. Wilhelm (1998), 81 Ohio St.3d 444; Dayton v. Erickson (1996), 76 Ohio St.3d 3; See, also, State v. Barbee, 9th Dist. No. 07CA009183, 2008-Ohio-3587, at ¶9. More specifically, the Supreme Court of Ohio in Erickson provided:

"[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 even if the officer had some ulterior motive for making the stop, such as a suspicion that ...


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