CITY OF CLEVELAND v. BUFORD

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Cleveland Municipal Court, Ohio.

CITY OF CLEVELAND, Plaintiff v. Michael BUFORD, Defendant.

No. 2016 TRC 09893.

Decided: September 28, 2016

Assistant City Prosecutor Katherine Keefer appeared for City of Cleveland, Plaintiff. Assistant Public Defender David King appeared for Michael Buford, Defendant.

COURT'S FINDING AND OPINION ON PLAINTIFF'S MOTION TO SUPPRESS

Reporter's Note: No appeal has been filed from the court's decision in this case.

On March 16, 2016, defendant Michael Buford was stopped by Ohio Highway Patrol Trooper Patrick Reagan. As a result of the stop, the defendant was charged with violations of R.C. 4511.19A(1)(A), Driving While Under the Influence of Alcohol or Drugs; R.C. 4511.19(A)(1)(D), Driving While Under Influence of Alcohol or Drugs with Concentration of eight-hundreds of one per cent or more but less than seventeen-hundreds of one percent, and R.C. 4513.263(B)(1), Seat Belt Requirements. The remarks section of the citation stated, “unsafe speed warning.” The defendant filed a motion to suppress challenging the basis for the stop and the execution of the field sobriety tests.

At the suppression hearing, Trooper Reagan testified that he observed the defendant for approximately five to eight seconds operating his vehicle at a high rate speed in a 25mph zone. When asked where his laser speed-measurement device was, the trooper responded that it was in the trunk of his cruiser. The trooper determined the defendant was driving 35mph from his unaided visual estimation. He testified that he had been trained in visual estimation of speed. After observing the defendant, the trooper pulled behind him and followed him briefly. The trooper's report stated that the defendant committed two lane violations by driving over the marked lane. Upon review of the trooper dash video of the defendant, the trooper conceded that there were no lane violations. Additionally, the defendant was not charged with a lane violation. When asked on cross examination why the defendant was stopped, Trooper Reagan replied he was stopped for speeding. In essence, the defendant was stopped for an unaided visual estimation of speed violation. Given the elimination of the marked lane violations, the court directed the parties to focus on the basis of the stop. If the stop was not valid, then there was no need to examine any subsequent actions because they should not be considered.

The Fourth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment, and Article 1, Section 10 of the Ohio Constitution, protect individuals from unreasonable searches and seizures.1 A traffic stop is valid if an officer has a reasonable and articulable suspicion that a motorist has committed, is committing or is about to commit a crime.2 Considering all the circumstances, an officer's decision to stop a motorist for a traffic violation must be prompted by a reasonable and articulable suspicion that a traffic violation has been committed.3 The Supreme Court of Ohio has emphasized that probable cause is not required to make a traffic stop.4 In 2010, the Court held that a speed determination made by an officer trained in visual estimation of speed was sufficient evidence to support a speeding conviction.5

However, in 2011, the General Assembly reacted to the court's reliance of unaided visual estimation of speed and enacted R.C. 4511 .091(C). This legislation prohibits the use of unaided visual estimation of speed in most cases. R.C. 4511.091(C) states in pertinent part:

No person shall be arrested, charged, or convicted of a violation of any provisions of divisions (B) to (O) of Section 4511.21 or Section 4511.211 of the Revised Code or a substantially similar municipal ordinance based on a peace officer's unaided visual estimation of the speed of a motor vehicle, trackless trolley or street car. This division does not do any of the following:

(a) Preclude the use by a peace officer of a stopwatch, radar, laser, or ․

(b) Apply regarding any violation other than a violation of divisions (B) to (O) of Section 4511.21 or ․

(c) Preclude a peace officer from testifying that the speed of operation of a motor vehicle ․ was at a speed greater or less than a speed described in division (A) of Section 4511.21․

In essence, unaided visual estimation of speed by a peace officer may now only be utilized as the sole evidence in speeding violations in school zones6 and situations where the motorist is traveling at such speed that he cannot bring the motor vehicle to a stop within the assured clear distance ahead given the road and traffic conditions. The legislation has superseded and overruled the notion that officers may use unaided visual estimates of speed for arrest, charging and conviction.7

Since unaided visual estimation of speed is prohibited, the question becomes whether an officer has a reasonable and articulable suspicion to stop a vehicle for speeding when the speed of the vehicle was measured by the officer's unaided visual estimation. In Ohio v. Miller,8 the court sustained defendant's sole assignment of error on an unaided visual estimation of speed stop. In Miller, the defendant challenged the sufficiency of evidence to support the reason for the officer to stop her motor vehicle. The basis of the stop was the revving of the engine of a stick-shift vehicle and unaided visual estimation of speed in slight excess of the speed limit. The court found that revving of the engine alone is insufficient suspicious activity to justify an investigatory stop of a motor vehicle. Consequently, the court focused on the unaided visual estimation of speed as the sole consideration to justify the stop. The court held that officers are statutorily prohibited from arresting or even charging a driver for a speeding violation based upon the officer's unaided visual estimation of speed of the motor vehicle.9

In Miller, the court further stated,

Allowing an officer to stop a vehicle on their subjective impressions that a vehicle is traveling in slight excess of the legal speed limit may permit officers to do just what the legislature had abolished. In other words, permitting an investigative stop when the officer cannot arrest or charge based upon his unaided visual estimate of speed in slight excess of the speed limit effectively eliminates any protection against profiling and arbitrary detentions.10

The court in Miller concluded, “under the facts in the case at bar, the officers intruded upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches,”11 citing Terry v. Ohio.12 Miller rejected the unaided visual estimation of speed as reasonable and articulable suspicion for speeding and cited Beck v. Ohio:13

․ simple ‘good faith on the part of the arresting officer is not enough.’ ․ If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects', ‘only in the discretion of the police.’14

The case before this court is very similar to Miller, in that the only basis for the stop was the trooper's unaided visual estimation of speed. The trooper's report stated he observed the defendant drive over the marked lanes twice. However, the video does not support that observation. Additionally, as noted above, the defendant was not charged with marked lane violation nor speeding. The officer estimated the speed to be 35mph in a 25mph zone. In Miller, the court stressed the standard of a slight excess of speed cannot be supported on mere visual observation. R.C. 4511.091(C) allows for unaided visual estimates where the rate of speed is improper due to the road or traffic conditions or where the driver cannot bring the motor vehicle to a stop within the assured clear distance ahead. The trooper's testimony in this case does not satisfy either of these conditions. There was no testimony regarding adverse road or traffic conditions. Additionally, there was no testimony that the defendant failed to maintain an assured clear distance. Therefore, unaided estimation of speed cannot be considered.

In State v. Laizure15 , the court rejected the allegation of speeding too fast for the road conditions of ice and snow. In Laizure, the officer testified that he believed the driver was traveling too fast for the snow and ice and estimated the speed of the motor vehicle to be 35 to 40mph in a 25mph zone. The officer testified that he had not been trained in visual estimation in over 15 years. The court stated,

the legislature has expressly allowed for officers to testify, and for drivers to be convicted upon unaided visual estimates of speed within a school zone. Had the legislature intended to permit investigatory stops outside the parameters of a school zone, they clearly would have allowed for the exception.16

It is clear that the Ohio legislature desired to limit the use of unaided visual estimation of speed in direct and immediate response to the Ohio Supreme Court's earlier sanction of it. The Miller court extensively set forth the rationale for the limitation. In summary, an unaided visual estimation of speed does not satisfy the constitutional requirement of reasonable and articulable suspicion of speeding in most cases. Here, the defendant was stopped for allegedly traveling at an unaided estimate of speed of 35mph in a 25mph zone. Since the trooper's method to determine speed is statutorily prohibited, he cannot reasonably articulate the defendant's speed. Consequently, the defendant's motion to suppress is granted.

FOOTNOTES

1.  State v. Mays, 119 Ohio St.3d 406, 408, 2008–Ohio–4539, 894 N.E.2d 1204, 1207, citing State v. Orr (2001), 91 Ohio St.3d 389, 391, 745 N.E.2d 1036.

2.  Delaware v. Prouse (1979), 440 U.S. 648, 663, 99 S.Ct. 1391, 1391, 59 L.Ed.2d 660; Berkemer v. McCarty (1984), 468 U.S. 420, 439, 104 S.Ct. 3182, L.Ed.2d 317, quoting United States v. Brignoni–Ponce (1975), 422 U.S. 873, 881.

3.  Dayton v. Erickson, 76 Ohio St.3d 3, 7, 665 N.E.2d 1091, 1094, 1996–Ohio–431, citing United States v. Botero–Ospina (10th Cir.1995), 71 F.3d 783, 787, overruling United States v. Guzman (10th Cir.1988), 864 F.2d 1512.

4.  Ohio v. Miller, 2012 WL 6712789, 2012–Ohio–6147, citing State v. Mays, 119 Ohio St.3d 406, 2008–Ohio–4358, 894 N.E.2d 1204 ¶ 23.

5.  Barberton v. Jenny, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N . E.2d 1047.

6.  R.C. 4511.21.

7.  State v. Laizure, 2016–Ohio–3252 ¶ 15; State v. Helke, 46 N.E.3d 188, 191, 2015–Ohio–4402 ¶ 17.

8.  Ohio v. Miller, 2012 WL 6712789, 2012–Ohio–6147, citing State v. Mays, 119 Ohio St.3d 406, 2008–Ohio–4358, 894 N.E.2d 1204 ¶ 23.

9.  Id.

10.  State v. Miller, 2012 WL 6712789 ¶ 12, *2, 2012–Ohio–6147.

11.  Id.

12.  Terry v. Ohio (1968), 392 U.S. at 22, 88, S.Ct. 1868, 20 L .Ed.2d 889.

13.  Beck v. Ohio (1964), 379 U.S. 89, 97, 85 S.Ct. 223, 229.

14.  Laizure, supra, citing Beck.

15.  Laizure, supra.

16.  Id.

EMANUELLA GROVES, Judge.