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City of Bay Village v. Pshock6/18/1998
JUDGMENT: AFFIRMED.
Defendant-appellant Theodore E. Pshock (d.o.b. September 30, 1965) appeals from the trial court's order denying his pre-trial motion to suppress evidence. For the reasons adduced below, we affirm.
A review of the record on appeal indicates that on November 7, 1996, at approximately 12:45 a.m., appellant was driving his motorcycle along Lake Road in the City of Bay Village. A female passenger was seated on the motorcycle behind the appellant. It was raining at the time. At some point, Patrolman Jay Elish of the Bay Village Police Department began to follow the motorcycle because the officer thought it was odd that someone would be riding a motorcycle in a heavy rain. (R. 5-7.) Shortly after starting to follow the appellant's vehicle, the officer ran the license plate number of the motorcycle through his patrol car's onboard computer.
The computer information indicated that the registered owner of the motorcycle, a male, did not have a motorcycle endorsement on his State of Ohio driver's license, and also relayed the physical characteristics of the registered owner. The officer did not really observe the appellant's driving while gathering his computer information, and the only matching physical characteristic between the computer information and the driver was the fact that the driver was a male. (R. 9.) The officer then pulled the motorcycle over based upon the registered owner's lack of a motorcycle endorsement. After being stopped, the appellant was given a field sobriety test and arrested for driving under the influence of alcohol in violation of R.C. 4511.19(A)(1).
After being arraigned and pleading not guilty, appellant filed a motion to suppress, which was heard before a magistrate. The trial court denied the motion and also denied a subsequent motion for reconsideration. After reconsideration was denied, appellant withdrew his plea of not guilty and entered a plea of no contest. Appellant was sentenced as follows: $1,000 fine plus court costs, 180 days in jail with 150 days suspended, conditioned on compliance with two years of active probation, and 5 years of driver's license suspension less credit of 260 days. The sentence was stayed pending appeal.
The lone assignment of error states:
THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S MOTION TO SUPPRESS.
In addressing a similar fact pattern as the one at bar, the court in State v. Epling (Medina, 1995), 105 Ohio App.3d 663, 664, stated:
The United States Supreme Court established the basic standard for reviewing the propriety of a traffic stop through its holdings in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Delaware v. Prouse(1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. Under that standard, a law enforcement officer may stop a vehicle when the officer has a reasonable suspicion, based on specific and articulable facts, that an occupant is or has been engaged in criminal activity. Reasonable suspicion is something less than probable cause. State v. VanScoder (1994), 92 Ohio App.3d 853, 855, 637 N.E.2d 374, 375-376.
In Epling, the police officer who was following the defendant's vehicle, having not recognized the offending vehicle as being around the area before, called in the vehicle's license plate number and learned from his dispatcher that the owner's driver's license was under suspension and also learned the owner's physical description. Based on this potential traffic violation, the officer performed an investigative stop, and subsequently arrested the driver/owner for driving under a suspended license. As the Epling court noted in upholding the stop, ecause it is re
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