[Cite as State v. Wilson, 2017-Ohio-9317.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellant
v.
CALVIN J. WILSON
Defendant-Appellee

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Appellate Case No. 27673
Trial Court Case No. 16-CR-3215
(Criminal Appeal from
Common Pleas Court)

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OPINION
Rendered on the 29th day of December, 2017.
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MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
DANIEL J. O’BRIEN, Atty. Reg. No. 0031461, 131 N. Ludlow Street, 1210 Talbott Tower,
Dayton, Ohio 45402
Attorney for Defendant-Appellee
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FROELICH, J.
{¶ 1} Pursuant to R.C. 2945.67(A) and Crim.R. 12(K), the State of Ohio appeals
the decision of the Montgomery County Court of Common Plea granting Calvin Wilson’s
motion to suppress. For the following reasons, the trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} After a suppression hearing, the trial court found the following facts.
{¶ 3} At approximately 10:55 p.m. on October 1, 2016, Dayton Police Officers
William Davis and Bryan Camden were driving eastbound in their marked cruiser on
Hoover Avenue. The conditions were dark and rainy, and the streets were wet, causing
significant glare from the headlights of approaching traffic; the cruiser’s windshield wipers
were activated. The posted speed limit on Hoover Avenue was 35 miles per hour.
{¶ 4} As the cruiser approached the intersection of Hoover and Elmhurst, Wilson’s
vehicle (a 2015 Chevy Traverse SUV) turned right from Elmhurst onto Hoover in front of
the cruiser.

Officer Davis testified that only two or three car lengths separated the

vehicles when Wilson pulled out and that he (Davis) “had to hit the [brakes] to avoid
running into the rear of [Wilson’s] vehicle;” the trial court found this testimony to be not
credible. Instead, after a review of the cruiser video, the trial court found that Wilson
pulled onto Hoover “no less than 306 feet – or more than eighteen (18) car lengths – in
front of the cruiser.” The trial court further stated that “[a] slamming on of the cruiser’s
brakes would necessarily have precipitated a sudden dip of the cruiser’s nose – a dip
completely absent on the video.” Rather, the trial court found that the cruiser “gently
decelerated” from a speed of 43 miles per hour to the posted speed limit.
{¶ 5} The cruiser followed Wilson’s vehicle to the next intersection, Hoover Avenue

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and North Gettysburg Road. Both vehicles stopped in the left turn lane at the traffic light.
The officers remarked to each other about the out-of-state license plates on Wilson’s
vehicle (a rental) and discussed towing Wilson’s vehicle. When the traffic light turned
green, both vehicles moved forward to turn left onto North Gettysburg. At this juncture
(over one and a half minutes after Wilson pulled onto Hoover), the officers engaged in the
following exchange, which the trial court concluded was “staged”:
Davis: “He pulled out there, pulled right in front of me!”
Camden: “He pulled out in front of us.”1
Davis: “Had to hit the brakes to avoid * * *.”
Camden: “Yeah, they had a – a failure to yield.”
(Footnote added.) After both vehicles turned onto Gettysburg, the officers initiated a
traffic stop due to Wilson’s alleged failure to yield.
{¶ 6} The trial court’s decision did not detail what occurred during the stop; the
decision stated that additional facts were generally unnecessary in light of the court’s
conclusion that the stop was legally infirm. Officer Davis testified that he approached the
driver’s side of Wilson’s vehicle, while Officer Camden approached on the passenger
side. Wilson was the sole occupant. Davis stated that music was playing loudly, and
when Wilson rolled down the driver’s side window, Officer Davis could “smell marijuana
very strongly, and * * * could see smoke coming from the car.”
{¶ 7} According to Officer Davis, he introduced himself to Wilson, told Wilson the
reason for the stop, and asked Wilson if he had a rental agreement. Davis testified that

We find Officer Camden’s response difficult to discern, and we accept the trial court’s
factual finding regarding this statement.
1

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as Wilson reached over to the glove compartment, he (Davis) noticed in the center
console, in plain view, a “wad of cash” in a cup holder and a clear plastic jar of what
appeared to be marijuana; the trial court expressly found that the marijuana was not in
plain view. Davis further testified that he asked Wilson what was in the center console,
and Wilson admitted that it was marijuana. The officers decided to search the vehicle.
{¶ 8} Officer Davis testified that he asked Wilson to step out of the vehicle, and he
placed Wilson, without handcuffs, in the cruiser. While Officer Camden conducted a
search of Wilson’s vehicle, Officer Davis ran Wilson’s information through the Law
Enforcement Automated Database System (LEADS) and conversed with Wilson. After
Officer Camden located a firearm between the driver’s seat and the center console,
Wilson was arrested for improper handling of a firearm in a motor vehicle. Davis testified
that he issued citations for failure to yield and possession of marijuana (a minor
misdemeanor).
{¶ 9} Davis testified that he provided Miranda warnings to Wilson and that Wilson
answered a few questions and then requested an attorney. For reasons that Davis could
not explain at the suppression hearing, the Miranda warnings and statements by Wilson
following those warnings were not recorded on the cruiser video.
{¶ 10} On January 17, 2017, Wilson was indicted for improper handling of a firearm
in a motor vehicle, in violation of R.C. 2923.16(B), a fourth-degree felony, and having
weapons while under disability, in violation of R.C. 2923.13(A)(2), a third-degree felony.
Wilson subsequently moved to suppress the evidence against him.

The trial court

conducted a hearing on the motion on May 26, 2017, during which Officer Davis was the
sole witness.

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{¶ 11} On July 25, 2017, the trial court granted Wilson’s motion to suppress. With
respect to the basis for the stop, the trial court concluded that the “clearly pretextual stop”
was unlawful. It reasoned:
First, the Court finds as a matter of fact and law that Defendant did
not fail to yield to the cruiser because the cruiser was not proceeding in a
lawful manner. Rather, the cruiser was itself speeding on a dark, rainy
night at low visibility further compromised by road glare. By proceeding in
such a reckless manner – and in violation of both state and local law – Ofc.
Davis forfeited the preferential status afforded a lawful driver under the rightof-way statute.
Further, Defendant did not pull out two to three car lengths in front of
the cruiser causing Ofc. Davis to slam on his breaks. Rather, in pulling
onto Hoover, Defendant allowed at least eighteen (18) car lengths
between his SUV and the cruiser. Indeed, Ofc. Davis merely slowed to the
posted speed limit in order to easily maintain his assured clear distance.
Simply put, Defendant did not create any hazard by pulling ou[t]; rather, any
hazard was caused by the cruiser’s excessive speed under the conditions.
(Emphasis in original.)
{¶ 12} The trial court further found that the good-faith exception to the exclusionary
rule did not apply. The trial court expressly found, as a matter of fact, that Davis’s version
of the incident was “contrived and synthesized – not mistaken.” The court further stated
that, to the extent that Davis was mistaken about his speed, the number of car lengths
between the vehicles, or his slamming on his brakes, “the mistakes are unreasonable on

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their face and not attributable to any honest misunderstanding of fact or law.” The trial
court thus concluded: “The officers observed no specific, articulable facts sufficient to
generate reasonable suspicion, for the traffic stop.

Thus, the same was

unconstitutional and therefore the fruits of the search and seizure are inadmissible and
will be suppressed.” (Emphasis in original.)
{¶ 13} The State appeals from the trial court’s decision.
II. Reasonableness of the Traffic Stop for Failure to Yield
{¶ 14} In its sole assignment of error, the State claims that the “trial court erred
when it found that the officers lacked reasonable articulable suspicion to conduct a valid
traffic stop and suppressed all evidence as fruit of the poisonous tree.”
{¶ 15} In deciding a motion to suppress, the trial court assumes the role of trier of
facts and is in the best position to resolve questions of fact and evaluate the credibility of
witnesses. State v. Pence, 2d Dist. Clark No. 2013 CA 109, 2014-Ohio-5072, ¶ 7, citing
State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996). The court
of appeals must accept the trial court’s findings of fact if they are supported by competent,
credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d
Dist.1994). Accepting those facts as true, the appellate court must then determine as a
matter of law, without deference to the trial court’s legal conclusion, whether the
applicable legal standard is satisfied. Id.
{¶ 16} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, police officers may briefly stop and/or

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temporarily detain individuals in order to investigate possible criminal activity if the officers
have a reasonable, articulable suspicion that criminal activity may be afoot, including a
minor traffic violation. Id.; State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894
N.E.2d 1204, ¶ 7-8; State v. Martin, 2d Dist. Montgomery No. 20270, 2004-Ohio-2738,
¶ 10, citing Terry. A traffic violation gives an officer a reasonable articulable suspicion
justifying a traffic stop, notwithstanding that the traffic stop may also have been a pretext
to investigate suspected drug activity. Mays at ¶ 22; State v. Wilcox, 177 Ohio App.3d
609, 2008-Ohio-3856, 895 N.E.2d 597, ¶ 13 (2d Dist.); State v. Cole, 2d Dist. Montgomery
No. 26576, 2015-Ohio-5295, ¶ 17.
{¶ 17} “ ‘Reasonable, articulable suspicion’ is a ‘less demanding standard than
probable cause and requires a showing considerably less than preponderance of the
evidence.’ ” State v. Fears, 8th Dist. Cuyahoga No. 94997, 2011-Ohio-930, ¶ 5, citing
Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); State v.
Scott, 2d Dist. Clark No. 2013 CA 104, 2014-Ohio-4963, ¶ 12.

The existence of

reasonable suspicion is determined by evaluating the totality of the circumstances,
considering those circumstances “through the eyes of the reasonable and prudent police
officer on the scene who must react to events as they unfold.” State v. Heard, 2d Dist.
Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews, 57 Ohio St.3d
86, 87-88, 565 N.E.2d 1271 (1991).
{¶ 18} On appeal, the State argues that the trial court should not have considered
whether Wilson had a defense to the underlying failure-to-yield charge (the officers’
exceeding the speed limit) and, instead, should have focused on whether the officers had
a reasonable suspicion to believe that a traffic offense occurred. The State further claims

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that the trial court’s decision was not based on competent, credible evidence, and thus
the trial court’s factual findings should not be afforded deference. The State argues that
“the trial court’s physics calculations are inherently flawed, resulting in the trial court’s
erroneous determination of facts.”
{¶ 19} It is apparent that the trial court’s factual findings were based, in large part,
on its careful review of the cruiser video. The cruiser video begins at 22:54:04 military
time (10:54 p.m. and 4 seconds). As found by the trial court, it was a dark, rainy night,
and the cruiser’s windshield wipers were on; there was significant glare. When the video
begins, the cruiser was traveling eastbound at a speed of 37 mph. Wilson’s SUV can be
seen at the intersection of Hoover and Elmhurst at 22:54:43, i.e., 39 seconds later; at this
juncture, the cruiser was still some distance away and was traveling at 43 mph. The
SUV promptly turned onto Hoover (approximately five seconds before the cruiser reached
the intersection).2 As documented on the video, the cruiser braked for three seconds
(22:54:44 to 22:54:47), reducing its speed from 43 mph to 35 mph. Without depressing
the brake, the cruiser slowed for another few seconds to 30 mph, and then accelerated
up to 42 mph, at which time the cruiser braked again.
{¶ 20} Officer Davis testified that, when Wilson turned in front of him, only two or
three car lengths separated the vehicles. From this court’s review of the video, there
was credible evidence for the trial court’s finding that the cruiser braked from 43 mph to

2

The trial court found that Wilson turned at 22:54:42, not 22:54:43. As a result, the trial
court found that Wilson turned six seconds before the cruiser reached the intersection of
Hoover and Elmhurst. The trial court then calculated that the cruiser was 308 feet (35
mph x 1.46667 feet/second x 6 seconds) from the intersection when Wilson turned.
Dividing that distance by the length of the SUV, the court concluded that there were 18
car lengths between the cruiser and Wilson’s vehicle when Wilson turned onto Hoover.

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35 mph and reached the intersection of Hoover and Elmhurst approximately five seconds
after Wilson turned. Even without mathematical calculations and regardless of whether
it was five or six seconds, it is apparent from the cruiser video that there was significantly
more space than Davis claimed in his testimony. Likewise, even without knowing the
exact length of the SUV, the video reflects that Davis underestimated the number of car
lengths between the vehicles when Wilson turned onto Hoover.
{¶ 21} Although the cruiser applied its brakes when Wilson turned onto Hoover,
there is no indication that the cruiser was at risk of hitting the rear of Wilson’s vehicle
when it (the cruiser) decelerated to 35 mph, the posted speed limit. And, while the video
perhaps leaves some room for interpretation, there is competent, credible evidence to
support the trial court’s factual finding that the officer did not “slam” on his brakes and
merely “gently decelerated” to maintain an assured distance from Wilson’s vehicle.
{¶ 22} We turn, therefore, to whether the officers had a reasonable articulable
suspicion of criminal activity to justify the stop of Wilson’s vehicle.
{¶ 23} At the outset, the trial court found that the stop of Wilson’s vehicle was
pretextual, and it expressed concern that some of the officers’ statements suggested
racial profiling. The fact that the stop may have been pretextual does not render it
unconstitutional. E.g., Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.E.2d
89 (1996). As the Ohio Supreme Court has stated, “the question whether a Fourth
Amendment violation occurred * * * depends upon an objective assessment of the officer’s
actions at the time of the traffic stop, and not upon the officer’s actual (subjective) state
of mind.” Dayton v. Erickson, 76 Ohio St.3d 3, 6, 665 N.E.2d 1091 (1996). And while
the United States Constitution “prohibits selective enforcement of the law based on

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considerations such as race,” the United States Supreme Court has indicated that “the
constitutional basis for objecting to intentionally discriminatory application of laws is
the Equal Protection Clause, not the Fourth Amendment.” Whren at 813.
{¶ 24} Davis testified, and the trial court found, that the stop was based solely on
Wilson’s alleged failure to yield. R.C. 4511.43(A) reads:
Except when directed to proceed by a law enforcement officer, every driver
of a vehicle or trackless trolley approaching a stop sign shall stop at a clearly
marked stop line, but if none, before entering the crosswalk on the near side
of the intersection, or, if none, then at the point nearest the intersecting
roadway where the driver has a view of approaching traffic on the
intersecting roadway before entering it. After having stopped, the driver
shall yield the right-of-way to any vehicle in the intersection or approaching
on another roadway so closely as to constitute an immediate hazard during
the time the driver is moving across or within the intersection or junction of
roadways.
(Emphasis added.) In this context, “right-of-way” means “[t]he right of a vehicle * * * to
proceed uninterruptedly in a lawful manner in the direction in which it * * * is moving in
preference to another vehicle * * * approaching from a different direction into its * * * path.”
R.C. 4511.01(UU)(1).
{¶ 25} On this record and with deference to the trial court’s factual findings, we
cannot find error in the trial court’s legal conclusion that the officers lacked a reasonable
suspicion of criminal activity, namely a violation of R.C. 4511.43(A), to justify the traffic
stop. The trial court specifically found that the officers were exceeding the speed limit

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when Wilson turned onto Hoover Avenue and that the cruiser merely “gently decelerated”
to the posted speed limit after Wilson turned onto the road; there was adequate distance
(regardless of the specific number of feet or car lengths) between the cruiser and Wilson.
Given the trial court’s findings, which are substantially supported by the record, the
officers had no reasonable suspicion that Wilson’s actions created an “immediate hazard”
and that he failed to yield when he turned onto Hoover.3 In the absence of a reasonable
suspicion of criminal activity, the trial court did not err in suppressing any evidence found
as a result of the unlawful stop.
{¶ 26} The State’s assignment of error is overruled.
III. Conclusion
{¶ 27} The trial court’s judgment will be affirmed.
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HALL, P.J. and WELBAUM, J., concur.

Copies mailed to:
Mathias H. Heck
Heather N. Jans
Daniel J. O’Brien
Hon. Steven K. Dankof

The State argues that the trial court erred in finding, as a matter of fact and law, that
Wilson did not fail to yield, a matter beyond the scope of a motion to suppress. Whether
or not we might agree with the State that the trial court should not have determined the
merits of whether Wilson failed to yield, the trial court’s statements in that regard were
superfluous considering that the trial court also found that the officers lacked a reasonable
articulable suspicion that Wilson failed to yield, which was the proper question before the
trial court at the suppression hearing.
3