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State v. Berry3/31/2003
DECISION AND JUDGMENT ENTRY
This case is before the court on appeal from the Bowling Green Municipal Court, which granted appellee Jill Berry's motion to suppress evidence. Because we find that the police officer did not have reasonable articulable suspicion to warrant stopping appellee's vehicle, we find that the decision of the Bowling Green Municipal Court should be affirmed.
. On June 2, 2002, at approximately 1:00 a.m., Officer Jeffrey Lowery of the Bowling Green Police Department observed a car exiting a municipal parking lot at a place where "Do Not Exit" signs had been posted. Officer Lowery stopped the vehicle and spoke with its driver, who was later identified as appellee. Lowery asked appellee for her driver's license, registration, and proof of insurance. As Lowery continued talking with appellee, he noticed a "slight to moderate" odor of consumed alcoholic beverage. Lowery then began investigating the case for a Driving While Under the Influence of Alcohol ("DUI") charge. Appellee was subsequently arrested for DUI, and once at the police station, she took a breath test and tested over the legal limit. She was charged with: (1) DUI; (2) driving with a prohibited alcohol concentration; (3) driving with a suspended license; and (4) failure to obey a traffic control device.
. Appellee moved the trial court to suppress evidence from the stop, arguing that the "Do Not Exit" sign was unenforceable since it was not a sign recognized in the Ohio Manual of Uniform Traffic Control Devices ("OMUTCD"). The state agrees that the sign did not conform to the OMUTCD. Therefore, the only issue before the trial court was whether the stop was nonetheless valid given that Lowery did not know that the sign was unenforceable when he stopped appellee. The trial court granted the motion to suppress, finding that the sign was not one recognized by the OMUTCD and that, according to Lowery's testimony, the sign was placed three to five feet from the ground instead of six to seven feet, as required by the OMUTCD. Since the officer had no basis to stop appellee other than the sign, the trial court held that Lowery did not have reasonable, articulable suspicion to stop appellee, and the court therefore granted the motion to suppress. Appellant now appeals, setting forth the following assignment of error:
. "The trial court erred in ruling that failure to comply with a sign not in compliance with the Regulations of the Ohio Manual of Uniform Traffic Control Devices will not provide enough reasonable suspicion to support a traffic stop."
. Appellate review of a decision on a motion to suppress presents a mixed question of law and fact. State v. Davis (1999), 133 Ohio App.3d 114, 117. Since a trial court deciding the motion to suppress acts as a fact-finder, an appellate court must accept the trial court's findings of fact as true if supported by competent, credible evidence. State v. Kobi (1997), 122 Ohio App.3d 160, 167-168. However, an appellate court reviews de novo the trial court's application of the law to the facts. Id. In this case, since the parties agreed on the facts, the trial court was not required to make any factual findings. Therefore, we are left with a de novo review of the trial court's ruling that a sign not conforming to the OMUTCD will not provide reasonable, articulable suspicion to support a traffic stop.
. The Fourth Amendment to the United States Constitution prohibits unlawful seizures of individuals. However, a police officer may constitutionally effect an investigatory stop of an individual when the officer has reasonable suspicion based on "specific and articulable facts" that the individual is engaging in criminal behavior
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