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State v. Peek

Court of Appeals of Ohio, Fifth District, Licking

June 19, 2017

STATE OF OHIO Plaintiff - Appellee
v.
BENJAMIN PEEK Defendant-Appellant

         Appeal from the Licking County Municipal Court, Case No. 16TRD05706

          For Plaintiff-Appellee CAROLINE J. CLIPPINGER

          For Defendant-Appellant MICHAEL R. DALSANTO

          Hon. Patrica A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.

          OPINION

          Baldwin, J.

         {¶1} Defendant-appellant Benjamin Peek appeals the denial of his Motion to Suppress by the Licking County Municipal Court. Plaintiff-appellee is the State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} On June 6, 2016, a complaint was filed charging appellant with driving under an OVI suspension in violation of R.C. 4510.14, a misdemeanor of the first degree. At his arraignment on June 14, 2016, appellant entered a plea of not guilty to the charge.

         {¶3} On July 25, 2016, appellant filed a Motion to Suppress, arguing that law enforcement did not have reasonable suspicion of criminal activity to support the traffic stop in this case. A hearing on appellant's motion was held on September 6, 2016.

         {¶4} At the hearing, Officer Anthony Southard of the Granville Police Department testified that he was working on June 5, 2016 at approximately 12:45 a.m. and was in uniform in a marked cruiser. He testified that while on routine patrol, he was doing random registration checks on license plates. According to the Officer, dispatch informed him that the registered owner of appellant's vehicle was under an OVI suspension with limited driving privileges. The Officer then stopped appellant to verify his driving privileges. When Officer Southard spoke with appellant, appellant told him that he had work privileges, but was "unable to produce those as well as registration and the insurance." Transcript of suppression hearing at 10-11. Appellant told the Officer that he worked at Roosters.

         {¶5} Officer Southard testified that the late hour factored into his decision to stop appellant. He testified that most people are "not on their way to work at 12:45 at night, Or, getting off work at 12:45 at night. It's usually like a 3:00 or 4:00 a.m. shift that they're doing a shift change of something like that." Transcript of suppression hearing at 12. Appellant was cited for driving under an OVI suspension.

         {¶6} On cross-examination, Officer Southard testified that if he runs the LEADS report and sees that a driver has limited driving privileges, he automatically pulls him or her over unless there is an emergency regardless of the time of day or night. He admitted that he did not observe appellant commit any traffic violations and that the stop was to verify the driving privileges. The Officer also admitted that he did not know any of the details about appellant's driving privileges when he initiated his stop of appellant. When asked what percentage of people who have limited driving privileges are permitted to be driving at 12:45 a.m., Officer Southard did not know, but speculated that it was a smaller percentage because most people work during the day. When asked, he admitted that it was true that all types of jobs have late hours and that, when he initiated the stop in this case, he could not rule out that appellant was employed at that type of job.

         {¶7} The following testimony was adduced when Officer Southard was asked on redirect whether he takes into consideration the totality of the circumstances when making a traffic stop:

Yeah, I mean, It's late, his - light traffic, he's in front of me, I ran the plate, it came back suspended, stopped the vehicle, I was going to speak with him. If he had been coming from work, fantastic, show me your privileges, have a nice night. He didn't have any privileges on the - he was on 37. He works in Newark, he lives in Newark, why come all the way through Granville on to 37 to back to 16 East to go back to Newark? That ...

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