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Date: 07-15-2019
Case Style:
State of Ohio v. John Gray and State of Ohio v. Alex Boler
Case Number: WD-18-068
Judge: Gregory F. Singer
Court: COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Plaintiff's Attorney: Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellant
Defendant's Attorney: Autumn D. Adams
Brad F. Hubbell
Description:
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On December 12, 2017, Ohio State Trooper Ann Malone was stationary,
observing traffic on a three-lane highway. At approximately 3:00 p.m., Malone checked
the speed of Gray and Boler’s vehicle as it passed her.
{¶ 4} According to Malone’s testimony, Gray and Boler were traveling in the
center lane at 65 m.p.h., in a 70 m.p.h. zone. Malone stated Boler, the driver, was “using
the 10 and 2 position in a closed grip position on the steering wheel, staring straight
ahead, [and] never looked over at [her] stationary position.” Based on the vehicle’s speed
and Boler’s behavior, Malone decided to pursue and pace the vehicle.
{¶ 5} The dash cam video from Malone’s patrol cruiser initially showed Gray and
Boler’s vehicle being trailed by a grey vehicle, with a semi-truck traveling in the far-right
lane between the vehicles. As Malone approached Gray and Boler’s vehicle, she testified
that their speed increased from approximately 67 to 68 m.p.h., in the 70 m.p.h. zone.
Malone traveled next to Gray and Boler for a few moments, to further pace their speed.
Malone testified that Gray and Boler then abruptly decelerated to 60 m.p.h., in the center
lane, which the video reflects resulted in the semi-truck passing by in the far-right lane.
{¶ 6} Malone then pulled behind Gray and Boler’s vehicle and activated her lights.
As Gray and Boler pulled over, the grey vehicle can be seen in the video passing by.
{¶ 7} Malone alleged Boler violated R.C. 4511.25(B)(1), and Ohio Adm.Code
5537-2-09, and that these violations formed the bases for the stop. The stop led to
discovery of numerous credit cards containing stolen information.
4.
{¶ 8} Gray and Boler were charged with forgery in violation of R.C.
2913.31(A)(1) and (C)(1), a felony of the fifth degree; receiving stolen property in
violation of R.C. 2913.51(A) and (C), a felony of the fifth degree; and possessing
criminal tools in violation of R.C. 2923.24(A) and (C), a felony of the fifth degree.
{¶ 9} On March 14, 2018, Boler moved to suppress the evidence discovered
during the stop, and a hearing was held on March 29, 2018. Gray subsequently joined
Boler’s motion on April 27, 2018. In addressing the motions, the court determined that
R.C. 4511.25(B)(1) applies where a driver impedes traffic while traveling too slowly in
the far-left lane. The court also determined that Ohio Adm.Code 5537-2-09 conflicted
with R.C. 4511.25(B)(1), and that the regulation was void for vagueness. Lastly, the
court found no basis for applying the good faith exception.
{¶ 10} The court ordered the evidence suppressed, and the judgment was
journalized on August 30, 2018. The state timely appeals.
Standard of Review
{¶ 11} “Appellate review of a motion to suppress presents mixed questions of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact.” State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100.
The appellate court must accept the trial court’s findings of fact if the facts are supported
by competent, credible evidence. State v. Steed, 2016-Ohio-8088, 75 N.E.3d 816, ¶ 11
(6th Dist.). The appellate court applies a de novo standard of review to determine if the
facts satisfy the applicable legal standard. State v. Bragg, 6th Dist. Lucas No. L-07-1162,
2007-Ohio-5993, ¶ 4.
5.
First Assignment of Error
{¶ 12} The state argues that the trial court improperly added elements to R.C.
4511.25(B)(1) by interpreting it with reference to R.C. 4511.22, and incorrectly
determining that there must be impediment of traffic in addition to slow speed for a
violation. Gray and Boler contend that the trial court was correct in its approach and
interpretation of R.C. 4511.25(B)(1).
{¶ 13} Slow speed alone is generally not enough to justify a traffic stop. See State
v. Huth, 133 Ohio App.3d 261, 265-66, 727 N.E.2d 931 (7th Dist.1999); State v.
Crockrell, 4th Dist. Ross No. 93CA1957, 1994 Ohio App. LEXIS 3372, *8-10 (July 25,
1994); State v. Bahen, 2016-Ohio-7012, 76 N.E.3d 438, ¶ 23 (10th Dist.). Exceptions
exist, including where the slow speed is in violation of R.C. 4511.25 or 4511.22. Huth.
{¶ 14} R.C. 4511.25(B), provides in pertinent part:
(1) Upon all roadways any vehicle or trackless trolley proceeding at
less than the prevailing and lawful speed of traffic at the time and place and
under the conditions then existing shall be driven in the right-hand lane
then available for traffic, and far enough to the right to allow passing by
faster vehicles if such passing is safe and reasonable, except under any of
the following circumstances:
(a) When overtaking and passing another vehicle or trackless trolley
proceeding in the same direction;
(b) When preparing for a left turn;
6.
(c) When the driver must necessarily drive in a lane other than the
right-hand lane to continue on the driver’s intended route.
{¶ 15} R.C. 4511.22(A), provides:
No person shall stop or operate a vehicle * * * at such an
unreasonably slow speed as to impede or block the normal and reasonable
movement of traffic, except when stopping or reduced speed is necessary
for safe operation or to comply with law.
{¶ 16} The Seventh District Court analyzed both statutes in Huth, holding that
Huth violated R.C. 4511.25(B), because her slow speed caused cars to back up behind her
as she drove in the far-left lane. Id. at 267. Huth set cruise control and traveled at 60-65
m.p.h., in a 65 m.p.h. zone. Id. Despite her traveling at or around the speed limit, the
court noted that other vehicles could have proceeded at a constant 65 m.p.h., and her duty
was to move to the right lane. Id. at 267. A focus was placed on Huth’s speed
fluctuating below 65 m.p.h., to 60 m.p.h., and how other cars had to pass her using the
center lane. Id. at 265-67. The court held that the R.C. 4511.25(B) violation was
supported by the showing that Huth’s slow speed impeded traffic, as this was evidence
the vehicle was traveling slower than the prevailing speed of traffic at the time. Id.
{¶ 17} We find both R.C. 4511.25(B) and R.C. 4511.22(A), supra, aim to prevent
traffic impediments and unsafe conditions due to the unreasonably slow speed of drivers
proceeding in the far-left lane.
7.
{¶ 18} The state specifically argues that the trial court committed error by adding
R.C. 4511.22(A)’s necessary element of traffic impediment, to R.C. 4511.25(B). The
August 30, 2018 judgment entry, in pertinent part, states:
Therefore, the Sixth District, in reviewing R.C. 4511.25(B)(1) in
Clark, supra states that slow speed is not enough for a stop but there must
be a showing that a vehicle is being operated at a slow speed that is less
than the prevailing speed that is unreasonable for the existing conditions.
Considering the conclusion in Clark, supra regarding R.C.
4511.25(B)(1) with the well-held principle applicable to R.C. 4511.22 that
slow speed alone is not a violation of the law, it is this Court’s conclusion
that simply articulating that a vehicle is traveling slower than the speed
limit on any road in Ohio— single lane roads to multilane interstates and
every other kind of road— without a showing that traffic was impeded or
that the slow speed was unreasonable for the conditions cannot be a basis
for a stop.
{¶ 19} Although we find that traffic impediment in the far-left lane may be
sufficient, but not necessary, to violate R.C. 4511.25(B), the state’s contention that the
trial court committed error by requiring an element of impediment mischaracterizes the
judgment. In the entry, the court specifically held that a violation of R.C. 4511.25(B)
occurs when in addition to driving slowly in the far-left lane, there is “a showing that
traffic was impeded or that the slow speed was unreasonable for the conditions * * *[.]”
(Emphasis added.).
8.
{¶ 20} Accordingly, the state’s first assignment of error is not well-taken.
Second Assignment of Error
{¶ 21} The state argues that Malone lawfully stopped and searched Boler because
Boler operated the vehicle in violation of R.C. 4511.25(B), and because of other indicia
of criminality. Gray and Boler assert the evidence does not reveal such violation or
indicia of criminality, and that the resulting stop and search were unconstitutional.
{¶ 22} “The Fourth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State v.
Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. To effectuate a
traffic stop, an officer must have probable cause to believe the driver is violating a traffic
law or there is reasonable suspicion that the vehicle or its occupant is subject to seizure
for violating the law. Delaware v. Prouse, 440 U.S. 648, 661-663, 99 S.Ct. 1391, 59
L.Ed.2d 660 (1979). When police stop a vehicle without probable cause or reasonable
suspicion, the seizure is unconstitutional and evidence derived from such a stop must be
suppressed. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
{¶ 23} We first point to Clark as an example, where an officer stopped Clark’s
vehicle on the grounds that Clark violated both Ohio Adm.Code 5537-2-09 and R.C.
4511.25(B) when he traveled in the center lane at 66 m.p.h. in a 70 m.p.h. zone. State v.
Clark, 2018-Ohio-2029, 101 N.E.3d 758, ¶ 6 (6th Dist.). With specific regard to R.C.
4511.25(B), we held it “only requires a driver to be in the far-right lane when he or she is
not traveling at a rate of speed comparable to other reasonable and lawful drivers at that
9.
time and under those conditions.” Id. at ¶ 32. Because we found Clark was traveling at a
comparable rate of speed as nearby vehicles, we held the record was insufficient to
demonstrate he violated R.C. 4511.25(B). Id. at ¶ 35.
{¶ 24} Furthermore, in Lu we held that a driver did not violate R.C. 4511.25(B),
despite traveling 5 m.p.h. under the posted speed limit. State v. Lu, 6th Dist. Wood No.
WD-18-040, 2018-Ohio-5009, ¶ 18. Trooper Malone was also the officer in Lu, and she
testified that Lu violated both R.C. 4511.25(B) and Ohio Adm.Code 5537-2-09. Id. at ¶
18-21. The dash cam video, however, showed that Malone “rapidly accelerating for
about 10 seconds” to catch up to Lu’s car, that Lu passed other vehicles, and that there
was no evidence he was nearby or impeded other traffic. Id. at ¶ 18. We found
competent and credible evidence to support that Lu’s travel within the center lane was
lawful and reasonable, and we affirmed suppression of the evidence because we found
Malone lacked probable cause or reasonable, articulable suspicion. Id.
{¶ 25} Here, we find Gray and Boler were traveling in the center lane at a
consistent speed, maintaining a noticeable distance from the other vehicles. The video
does reveal that, as Malone pulled over and paced next to Gray and Boler, they reduced
their speed for a period of about 20 seconds, and a semi-truck can be seen passing them
in the far-right lane. Malone then almost immediately initiated the stop, and we find at
that point there was insufficient basis to determine that Gray and Boler’s speed was
inconsistent with the prevailing speed of the surrounding traffic.
10.
{¶ 26} The state further contends that Gray and Boler’s speed caused the nearby
gray car to rapidly close the gap between them. To the contrary, we find the video
demonstrates that there was enough space between their vehicles for Malone’s cruiser to
pull in between. Moreover, there is no indication the grey car was impeded when it is
seen traveling in the far left-hand lane after Malone activated her emergency lights.
{¶ 27} Lastly, the state asserts Malone testified that Boler drove the vehicle with
his “hands at 10-and-2 position with that very closed grip on that steering wheel, staring
straight ahead, never looked at my location,” and, that behavior was further indicia of
criminality. We disagree, and consistent with Clark and Lu, supra, find that the
circumstances here did not justify the intrusion upon Gray and Boler’s rights.
{¶ 28} Accordingly, the state’s second assignment of error is not well-taken.
Third Assignment of Error
{¶ 29} The state argues that the trial court erred in determining Ohio Adm.Code
5537-2-09 improperly adds an element of speed to R.C. 4511.25(B). Gray and Boler
assert that the court correctly determined Ohio Adm.Code 5537-2-09 conflicts with R.C.
4511.25(B).
{¶ 30} We decided this specific issue in Clark, in which we found that Ohio
Adm.Code 5537-2-09 conflicted with R.C. 4511.25(B), and thus held the regulation
invalid. Clark, 2018-Ohio-2029, 101 N.E.3d 758, at ¶ 32-37. Under the invalidated
regulation, “[a]nyone traveling 69 m.p.h. or under in that center lane, where the posted
limit is 70 m.p.h. * * * is subject to being stopped * * *.” Id. at ¶ 46. Here, we find Gray
11.
and Boler’s traveling below the speed limit was lawful under R.C. 4511.25(B), but would
violate Ohio Adm.Code 5537-2-09. Thus, the court properly held that the regulation was
invalid.
{¶ 31} Accordingly, the state’s third assignment of error is not well-taken.
Fourth Assignment of Error
{¶ 32} The state asserts that the trial court erred in concluding that Ohio
Adm.Code 5537-2-09 is unconstitutionally vague. Gray and Boler assert that the court
correctly ruled the regulation was void for vagueness.
{¶ 33} “It is well established that vagueness challenges to statutes which do not
involve First Amendment freedoms must be examined in the light of the facts of the case
at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706
(1975). “[A]n ordinance is unconstitutionally vague under a void-for-vagueness analysis
when it does not clearly define what acts are prohibited under it.” Viviano v. City of
Sandusky, 2013-Ohio-2813, 991 N.E.2d 1263, ¶ 13 (6th Dist.), citing Grayned v. City of
Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
{¶ 34} In Clark, we applied the following legal test of Grayned to determine if
Ohio Adm.Code 5537-2-09 was void on vagueness grounds:
1. The regulation must provide fair warning to the ordinary citizen
of what conduct is proscribed,
2. The regulation must preclude arbitrary, capricious, and
discriminatory enforcement, and
3. The regulation must not impinge constitutionally protected rights.
12.
See Clark, 2018-Ohio-2029, 101 N.E.3d 758, at ¶ 55, citing Grayned at 108-109.
{¶ 35} We found the regulation did not meet the first prong of the Grayned test,
and therefore, held the regulation to be unconstitutionally vague. Id. at ¶ 61.
{¶ 36} More specifically, we held that an ordinary citizen would not know what
conduct is proscribed when reviewing language of Ohio Adm.Code 5537-2-09, which we
found confusing when read in conjunction with R.C. 4511.25(B), and in conjunction with
signs located on the highway showing slower traffic can proceed in the center lane. Id.
{¶ 37} Here, the state contends that, unlike in Clark, the trial court failed to apply
the law to the specific facts of this case. We disagree, and hold that Ohio Adm.Code
5537-2-09 is unconstitutionally vague.
{¶ 38} Accordingly, the state’s fourth assigned error is not well-taken.
Fifth Assignment of Error
{¶ 39} The state lastly argues that even if the facts do not show traffic violations,
evidence retrieved after the stop should not have been suppressed because Malone
employed a reasonable interpretation of the law, and because Malone relied on a then
existing valid regulation. Gray and Boler contend that the exclusionary rule properly
applies, and that the court did not commit error in suppressing the evidence.
{¶ 40} If an initial traffic stop was unlawful, the evidence obtained from the illegal
stop may be excluded as fruits of the poisonous tree. Lu, 6th Dist. Wood No. WD-18
040, 2018-Ohio-5009, at ¶ 15, citing Wong Sun v. United States, 371 U.S. 471, 487-88,
83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Evidence will not be excluded, however, if a good
13.
faith exception applies. United States v. Leon, 468 U.S. 897, 918-23, 104 S.Ct. 3405, 82
L.Ed.2d 677 (1984). An officer acts in good faith when he relies on a law that is later
declared unconstitutional. Illinois v. Krull, 480 U.S. 340, 359-69, 107 S.Ct. 1160, 94
L.Ed.2d 364 (1987).
{¶ 41} The U.S. Supreme Court has held that “no justification existed to
differentiate between reasonable mistakes of fact, which may form the basis of a valid
stop, and mistakes of law.” State v. Lane, 6th Dist. Erie No. E-18-008, 2018-Ohio-5284,
¶ 15, citing Heien v. North Carolina, 574 U.S. 54, 135 S.Ct. 530, 190 L.Ed.2d 475
(2014). For the good faith exception to apply to mistakes of law, the officer’s reliance on
the law must be objectively reasonable. Id.
{¶ 42} Here, Malone stopped Gray and Boler on December 12, 2017. Ohio
Adm.Code 5537-2-09 was not held to be void and unconstitutionally vague until Clark
issued on May 25, 2018. Nevertheless, although Malone relied on a regulation that had
not yet been invalidated, we find her reliance was not objectively reasonable.
{¶ 43} As discussed in the first assigned error, Ohio law before Clark mandated
that a stop based solely on slow speed is generally not justified. Huth, 133 Ohio App.3d
261, 727 N.E.2d 931, at 265-66. The existence of this long-established principle leads us
to find that Malone’s reliance on Ohio Adm.Code 5537-2-09 was not objectively
reasonable. Gray and Boler’s motion to suppress evidence was properly granted.
{¶ 44} Accordingly, the state’s fifth assignment of error is not well-taken.
Outcome: The August 30, 2018 judgment of the Wood County Court of Common
Pleas is affirmed. The state is ordered to pay the costs of this appeal pursuant to App.R.
24.
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Defendant's Experts:
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