Court of Appeals of Ohio, Fifth District, Licking
from the Licking County Municipal Court, Case No. 16TRD05706
Plaintiff-Appellee CAROLINE J. CLIPPINGER
Defendant-Appellant MICHAEL R. DALSANTO
Patrica A. Delaney, P.J. Hon. William B. Hoffman, J. Hon.
Craig R. Baldwin, J.
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.
OF THE FACTS AND CASE
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.
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.
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.
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
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.
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 ...