A police officer’s suspicion of wrongdoing based on a vehicle’s out-of-state license plates and entry and exit from a dead-end private drive late at night were not a sufficient basis to stop and question the driver, according to a September 5 decision of the Ninth District Court of Appeals. Based on its finding of insufficient cause for a traffic stop, the court of appeals held that evidence obtained through that stop was inadmissible against the driver, and vacated his conviction for DUI.

Bret Browning was stopped by Copley Township police officer Ryan Price at approximately 12:40 a.m. after Price observed Browning get into his vehicle as the officer approached in a patrol car, and proceed into a private drive that the officer knew had no outlet.

Price testified that he considered Browning’s car suspicious because of the time of day, the fact that the car had out-of-state license plates, and Ryan’s knowledge that the drive Browning had entered led only to two or three private homes at which Ryan had never observed a vehicle with out-of-state plates.  The officer parked near the outlet of the private drive and waited for approximately three minutes, at which time Browning emerged from the private drive, turned onto an adjacent state highway, and drove away without violating any traffic laws.

Based on his observations, Ryan followed and stopped Browning’s car.  Through the stop Ryan obtained evidence  that Browning was under the influence of alcohol, and placed him under arrest for DUI.

At trial in the Barberton Municipal court, Browning moved to suppress the evidence obtained through the traffic stop, arguing that Ryan did not have a “reasonable suspicion” that Browning had committed any illegal act, and therefore the traffic stop was an unreasonable seizure prohibited by the U.S. and Ohio constitutions.  The trial court denied the motion to suppress.  Browning changed his plea from not guilty to no contest.  The court found him guilty of DUI and sentenced him to a fine, license suspension, and a three-day stay in a state-approved inpatient alcohol treatment program in lieu of jail time.

Browning appealed the denial of his motion to suppress, and execution of his sentence was stayed pending the outcome of the appeal.

In a 2-1 decision written by Judge Carla D. Moore, the Ninth District held that the observations cited in Officer Ryan’s trial testimony did not constitute a sufficient basis for a valid stop of Browning’s vehicle under standards set by state and federal court decisions including the U.S. Supreme Court’s holding in Terry v. Ohio (1968) that an investigatory traffic stop is justified only when police have “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

Judge Moore contrasted the facts of this case with State v. Floyd, a decision announced earlier this year in which the 9th District held that a late night traffic stop of a truck in a commercial area was justified partially because police were aware of a number of recent nighttime burglaries of nearby businesses.

Judge Moore wrote: “Here, unlike Floyd where the officer sincerely, and reasonably, believed that a burglary may be in progress, Officer Price did not state any reasonable, articulable suspicion for stopping Mr. Browning. Officer Price admitted that he only stopped Mr. Browning because he was driving ‘a suspicious vehicle in the area.’  Further, he admitted that (1) there had not been any recent burglaries in that particular area, (2) he did not recall seeing anything denoting that Mr. Browning initially stopped his car on private property, (3) it did not appear that Mr. Browning was casing a house, and (4) he did not observe Mr. Browning commit any traffic infraction or criminal activity. Additionally, Officer Price testified that ‘I know it’s a dead end, so I figured, well, if they’re legit, maybe they’ll turn around and come back. So I went down the road a little bit, sat in my cruiser, and sure enough the car came back out, got on State Route 21, and went southbound.’ (Emphasis added.) Then, Officer Price contradicted himself, stating ‘I figured it might have been someone who could have been visiting from out of state, but being that they came right back out, I thought I’d better pull them over and see what’s going on.’ (Emphasis added.)”

Based upon the foregoing testimony, even though Officer Price did not believe that Mr. Browning was engaged in criminal activity, he still initiated the traffic stop. As stated above, an officer’s reliance upon a mere hunch is not sufficient to justify a stop. In light of Officer Price’s decision to initiate a stop to see what Mr. Browning might be up to, we cannot say that Officer Price had a reasonable, articulable suspicion of criminal activity to justify the traffic stop. Therefore, the trial court erred in denying Mr. Browning’s motion to suppress.”

Judge Moore’s decision was joined by Judge Eve V. Belfance.

Judge Beth Whitmore dissented, stating that in her view the totality of the circumstances surrounding Officer Ryan’s stop of Browning’s vehicle were sufficient to support a reasonable suspicion of unlawful conduct, and therefore she would affirm the trial court’s denial of Browning’s motion to suppress evidence obtained through the traffic stop.

State v. Browning, 2012-Ohio-4026
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2012/2012-ohio-4026.pdf
Criminal Appeal From: Barberton Municipal Court
Judgment Appealed From Is: Reversed and Remanded
Date of Judgment Entry on Appeal: September 5, 2012

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