Court of Appeals of Ohio, Second District, Montgomery
Court Case No. 16TRD8507 (Criminal Appeal from Municipal
DANIELS, Atty. Reg. No. 0084957, 335 West Third Street, Room
372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
MARAGANO, Atty. Reg. No. 0090163, 117 South Main Street,
Suite 400, Dayton, Ohio 45422 Attorney for
1} Frank Johnson appeals from his conviction and
sentence in Dayton Municipal Court following a no-contest
plea to driving while under an OVI suspension.
2} In his sole assignment of error, Johnson contends
the trial court erred in overruling a suppression motion he
filed prior to his plea.
3} The only witness at the suppression hearing was
Dayton police officer Gary Roesser. He testified that he
observed Johnson commit a traffic violation while driving on
September 2, 2016. Specifically, Roesser saw Johnson's
vehicle approaching a stop sign at the intersection of
Delphos and Oakridge in Dayton. There was no marked stop line
at the intersection. Nor was there a crosswalk. Roesser
testified that Johnson drove into the intersection to the
point where "he was almost a car length past the stop
sign." (Tr. at 8). Roesser estimated that Johnson's
vehicle was two to three feet into the intersection.
(Id.). The officer was unsure whether Johnson
actually made a complete stop. In any event, he testified:
"I know that he clearly went past the stop sign, into
the intersection before he did come to a stop, if he
did." (Id. at 10). On cross examination,
Roesser agreed with defense counsel that the reason for the
traffic stop was Johnson's act of "stopping past the
stop sign." (Id. at 12).
4} We have reviewed State's Exhibit # 1, the
cruiser cam video of the traffic stop. Although this was
introduced as an exhibit, and it is evident that at least the
part containing the traffic violation itself was played
during the hearing, the court did not make specific reference
to the video in its decision overruling the motion to
suppress. We note, however, after reviewing the entire video,
that upon stopping Johnson, Officer Roesser said "you
have to stop before the stop sign, " and later,
"you've got to stop in front of the stop sign."
These are incorrect statements of the applicable law. We do
not know whether the trial court reviewed these portions of
the video. Nonetheless, based on our analysis below, the
trial court did not err in overruling the motion to suppress.
5} Johnson argued below that stopping past,
rather than at, the stop sign did not violate the
applicable ordinance, Dayton Revised Code of General
Ordinances (R.C.G.O.) section 71.44(A). The trial court
overruled the suppression motion, reasoning:
Evidence obtained from a stop for what officers thought was a
traffic offense need not be suppressed if the officer's
mistake of law was reasonable, State v. Greer, 114 Ohio
App.3d 299, 305, 683 N.E.2d 82 (2ndDist.1996),
State v. Perkins, 2nd Sist. (sic) No. 2011-CA-24,
2012-Ohio-2544, in 6.
Based upon the officer's testimony, he believed that a
traffic offense had occurred and his belief was reasonable.
Therefore the officer was justified in stopping the
defendant's vehicle for what he believed was a traffic
6} On appeal, Johnson argues that he did not violate
R.C.G.O. section 71.44(A) by stopping past the stop sign and
that Roesser made an objectively unreasonable
mistake of law by concluding otherwise. Johnson contends this
is so because the ordinance clearly and unambiguously does
not prohibit stopping past a stop sign when there is no
marked stop line or crosswalk.
7} Upon review, we find Johnson's assignment of
error to be unpersuasive. R.C.G.O. section 71.44(A), which is