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State of Ohio/City of Bowling Green v. Godwin6/24/2005
the trial court considering the motion to suppress, the reviewing court is bound to accept those findings when they are supported by competent credible evidence. State v. Rutherford (1994), 93 Ohio App.3d 586, 592. In this case, the parties have agreed on the facts. Accepting these facts as true, we must then, independently determine as a matter of law whether these facts meet the applicable standard to justify a traffic stop. Id.
{ } In this case, the officer stopped appellant for what he thought was a traffic violation, an illegal exit from a municipal parking lot. Normally, observation of a traffic violation provides the police with probable cause to initiate a traffic stop. Dayton v. Erickson (1996), 76 Ohio St.3d 3, 9. However, as held by the trial court, there can be no violation of a failure by appellant to obey a traffic control device when the device lacks the proper official authorization.
{ } This court dealt with a similar issue in State v. Berry, 6th Dist. No. WD-02-043, 2003 Ohio 1620. In fact, the Berry case involved the exact same municipal lot. While the lot's signage has changed, our result does not.
{ } In Berry, this court set forth that in "order to form the basis for criminal liability, sign must be 'official', and it must be in a 'proper position' and 'sufficiently legible.'" State v. Berry, supra, at 8; see also City of Maple Heights v. Smith (1999), 131 Ohio App.3d 406, 410. The signage at issue in Berry was not recognized by the Ohio Manual of Traffic Control Devices. As a result, we held that such a sign is a nullity, i.e. it does not exist under Ohio law, and cannot serve as a reasonable basis for a traffic stop. State v. Berry, supra, at 12
{ } In an attempt to correct the problems in Berry, the city of Bowling Green replaced the old signage with those currently at issue. However, the "Wrong Way Do Not Enter" and "No Left/Right Turn" replacement signs lack the proper authorization as required by the Bowling Green Municipal Code. These new signs are not "official." Absent the requisite governmental approval, a traffic control device nears the realm of arbitrary. Though we are drawing a technical distinction, such distinction is necessary in order to separate traffic control devices endorsed by the proper authorities and those possibly placed at a person's whim.
{ } As this court previously held in Berry, "one is not engaged in criminal behavior by violating a non-conforming sign." State v. Berry, supra, at 9.Accordingly, the officer did not observe a traffic violation because the "Wrong Way Do Not Enter" and "No Left/Right Turn" signs were not enforceable. Absent an offense, there is no reason to stop appellant's vehicle.
{ } As a result, appellant's sole assignment of error is found well taken.
{ } Upon consideration whereof, the judgment of the Bowling Green Municipal Court is reversed. Appellee, the city of Bowling Green, is ordered to pay the costs of this appeal for which sum judgment is rendered against appellee on behalf of Wood County and for which execution is awarded. See App.R. 24.
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Arlene Singer, P.J. JUDGE
William J. Skow, J. CONCUR.
Dennis M. Parish, J., dissents and writes separately.
{ } I respectfully dissent from the majority opinion in this case.
{ } It should be noted that this case deals with the exact same parking lot signage that was successfully challenged in the Berry case. In response to Berry, signs fully conformi
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