[Cite as State v. Adams,
2019-Ohio-4762.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29330
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DOMINIQUE J. ADAMS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2018-01-0248
DECISION AND JOURNAL ENTRY
Dated: November 20, 2019
SCHAFER, Judge.
{¶1} Defendant-Appellant, Dominique J. Adams, appeals from his conviction in the
Summit County Court of Common Pleas. For the reasons that follow, this Court affirms.
I.
{¶2} In February of 2018, the Summit County Grand Jury issued an indictment
charging Mr. Adams with one count of having weapons while under disability in violation of
R.C. 2923.13(A)(3), a felony of the third degree, and one count of improperly handling firearms
in a motor vehicle in violation of R.C. 2923.16(B), a felony of the fourth degree. The charges
stem from an incident on January 23, 2018, when Akron police initiated a traffic stop of the 2018
Ford Expedition vehicle Mr. Adams was driving. The police decided to stop the vehicle after
they observed that the rear lights of the vehicle were not illuminated, which they determined to
be a safety issue and a traffic violation. After officers approached the vehicle, one of the officers
observed a gun in the back seat and discovered that the weapon was loaded.
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{¶3} Mr. Adams entered a plea of not guilty to both charges. He filed a motion to
suppress contending that, although they stopped his vehicle because it had no tail lights, “there
was no probable cause for the police officer to look inside the vehicle, and as a practical matter it
is highly doubtful that the police officer would be able to observe a dark colored handgun in the
back of a dark vehicle at 1:30 [a.m.]” Accordingly, Mr. Adams argued that officers lacked a
basis for seizing the gun in his vehicle and sought to suppress the introduction of the weapon at
trial.
{¶4} The trial court held a hearing on the motion. The transcript of the suppression
hearing reflects that Mr. Adams abandoned the initial argument raised in his motion. At the
beginning of the suppression hearing, the State informed the trial court as follows:
We are here this afternoon on [Mr. Adams]’s motion to suppress. It is my
understanding that the issue here is - - it is a traffic stop, ultimately a gun is found,
but the initial reason for the stop, the report reads, that the rear lights - - or the rear
lights, the nighttime rear lights were not illuminated.
I believe [Mr. Adams] is contesting that fact and I have two officers here waiting
to testify. And I believe that’s the only issue. The reason for the initial traffic
stop is the only issue here for the [c]ourt to decide.
Mr. Adams acquiesced in the State’s summary of the issue. Trial counsel for Mr. Adams
followed up with a brief opening remark, indicating that
[t]his [incident] happened, I think, in late January of [2018], so the vehicle
couldn’t have been more than four or five months old, and the sheet [provided by
the car rental agency that owned the vehicle] indicates that there were no repair
records for this vehicle. So it is our contention that we have a brand new car[;]
the rear lights were working.
{¶5} At the hearing, Officers Steven Orwick and Brandon Collins of the Akron Police
Department testified that they were on patrol in a marked police cruiser during the early morning
hours of January 23, 2018. At approximately 1:30 a.m., the officers were traveling northbound
on Kelly Avenue when a vehicle passed them in the opposite direction in a southbound lane.
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Both officers observed that the front of the vehicle was illuminated, but the rear lights of the
vehicle were not visible and the back of the vehicle was black. The officers determined that the
lack of rear illumination was a traffic violation as well as a safety issue. Consequently, the
officers made a U-turn and initiated a traffic stop of the 2018 Ford Expedition rental vehicle
driven by Mr. Adams.
{¶6} According to Officer Orwick, the police cruiser was equipped with a dash camera,
but there was no recording of this traffic stop because the equipment was not working at that
time. There was a recording of the stop from the officers’ body cameras showing that some of
the vehicle lights were illuminated after the stop. Both officers acknowledged that the vehicle’s
brake lights are on in the video. Officer Collins testified that the vehicle’s brake lights came on
after they initiated the stop.
{¶7} Mr. Adams did not present any witnesses at the hearing. The parties stipulated to
the evidence, which included the State’s Exhibit 1, a DVD-R containing the body camera
recordings; the State’s Exhibit 2, a 2018 Expedition Owner’s Manual; and Mr. Adams’s Exhibit
A, the Avis Budget Group Subpoena Request. Following the hearing, the trial court issued a
journal entry summarily denying the motion to suppress.
{¶8} Thereafter, Mr. Adams withdrew his prior plea of not guilty and entered a plea of
no contest to the indictment. The trial court accepted his plea, found Mr. Adams guilty of
improperly handling firearms, and dismissed the charge of having weapons while under
disability. The trial court sentenced Mr. Adams to one year of community control. Mr. Adams
timely appealed his conviction, presenting one assignment of error for our review.
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II.
Assignment of Error
The trial court erred when it failed to suppress all evidence and statements
obtained in violation of [Mr. Adams’s] Fourth, Fifth[,] and Sixth
Amendment rights under the United States Constitution and Article I,
Sections Ten and Fourteen of the Ohio Constitution.
{¶9} In his sole assignment of error, Mr. Adams presents the following issue:
“[w]hether there was a legitimate basis for stopping [Mr. Adams’s] vehicle or whether it was a
pretext for a warrantless search.”
{¶10} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶ 8. When the trial court considers a motion to
suppress, it assumes the role of trier of fact and, therefore, it is in the “best position to resolve
factual questions and evaluate the credibility of witnesses.”
Id., citing State v. Mills,
62 Ohio
St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if
they are supported by competent, credible evidence.”
Id. This Court must “then independently
determine, without deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard.”
Id.
{¶11} “[A] pretextual traffic stop occurs when a police officer uses a minor traffic
violation to stop a vehicle in order to inquire into an unrelated, more serious crime for which the
officer may have a hunch, but does not possess the level of suspicion necessary to justify an
investigative detention.” State v. Carlson, 102 Ohio App.3d 585, 589 (9th Dist.1995). The
Fourth Amendment to the United States Constitution, as applied to the states through the
Fourteenth Amendment, and Section 14, Article I of the Ohio Constitution, guarantees the right
of the people to be free from unreasonable searches and seizures by the government. State v.
Orr,
91 Ohio St.3d 389, 391 (2001). However, “[w]here a police officer stops a vehicle based on
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probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable
under the Fourth Amendment to the United States Constitution even if the officer had some
ulterior motive for making the stop, such as a suspicion that the violator was engaging in more
nefarious criminal activity.” Dayton v. Erickson, 76 Ohio St.3d 3 (1996), syllabus. “[A] traffic
stop is constitutionally valid if an officer has a reasonable and articulable suspicion that a
motorist has committed, is committing, or is about to commit a crime.” State v. Mays,
119 Ohio
St.3d 406,
2008-Ohio-4539, ¶ 7, citing Delaware v. Prouse,
440 U.S. 648, 663 (1979).
{¶12} In his merit brief, Mr. Adams argues that the officers’ claims regarding the rear
lights of the vehicle were pretext. Specifically, Mr. Adams contends that the State failed to
present “objective evidence” showing a traffic violation, and either failed to create or failed to
preserve a dash cam video, because the “more probable” reason for the stop was racial profiling.
Mr. Adams asserts that the officers pulled him over because he was “black and driving an
expensive, late model SUV at 1:30 a.m.”
{¶13} Focusing on Mr. Adams’s contention “that the officers lacked a basis to stop his
vehicle[,]” the dissent cites to the trial court’s failure to issue findings of fact in its decision to
overrule the motion to suppress as a basis for reversal. However, considering the narrow issue
presented to the trial court, there is no lack of clarity as to which facts precipitated the trial
court’s decision and, therefore, the trial court’s failure to issue findings of fact does not hinder
our review because any factual dispute would not affect the outcome of this Court’s analysis.
State v. Dennis, 9th Dist. Summit No. 27692, 2016-Ohio-8136, ¶ 6, citing State v. Gilmore, 9th
Dist. Summit No. 27344,
2015-Ohio-2931, ¶ 4, fn. 1. The singular question posed to the trial
court was whether the lights on the rear of the vehicle were—as the officers claimed—not
illuminated prior to the stop. Both officers presented uncontroverted testimony that the rear
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lights were not on prior to the stop. Further, the officers agreed that the brake lights were on, as
depicted in the video, after the stop when the vehicle was parked. At the hearing, counsel for
Mr. Adams asserted that the lights must have been working because this was a new vehicle in
good working order. However, Mr. Adams has not pointed to any evidence in the record to
support his argument that, contrary to the officers’ testimony, the rear lights of the vehicle were
actually illuminated when they decided to stop his vehicle. See App.R. 12(A)(2); App.R.
16(A)(7). Otherwise put, even if the trial court accepted his position that the vehicle and its
lights were in good working order, Mr. Adams did not point to any evidence to establish that the
lights were turned on when the officers observed the vehicle prior to the stop. Thus, there was
no actual dispute of fact for the trial court to reconcile—only Mr. Adams’s argument that the
lights were working, and the officers’ testimony that, regardless of whether the lights were
working, the lights were not on when they decided to stop the vehicle.
{¶14} Moreover, the argument presented on appeal goes well beyond the scope of Mr.
Adams’s argument in the trial court. The record reflects that Mr. Adams did not present any
argument or evidence to the trial court regarding his present contention that the traffic stop was
pretext for an investigatory search of his vehicle. An argument that a stop was pretext cannot be
raised on appeal if it is not first presented to the trial court through a motion to suppress. See
State v. Arbuckle, 9th Dist. Lorain No. 94CA005823, 1995 WL 134751, *4. Because Mr. Adams
did not develop this argument in his motion to suppress or during the suppression hearing, he is
precluded now from raising it for the first time on appeal. State v. Keagle, 9th Dist. Summit No.
29045,
2019-Ohio-3975 ¶12, citing State v. Nestor, 9th Dist. Summit No. 27800, 2016-Ohio-
1333, ¶ 18. A “defendant must make clear the basis of his challenge in his motion to suppress in
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order to preserve the challenge for appeal[.]” Nestor at ¶ 18 citing City of Xenia v. Wallace, 37
Ohio St.3d 216, 218 (1988). Therefore, Mr. Adams’s assignment of error is overruled.
III.
{¶15} Mr. Adams’s assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
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TEODOSIO, P. J.
CONCURS.
CARR, J.
DISSENTING.
{¶16} I respectfully dissent from the judgment of the majority. In his brief, not only did
Adams make an argument about pretext, he also argued that the officers lacked a basis to stop his
vehicle. Accordingly, I would conclude that the issue of whether the officers had a basis to stop
the vehicle is properly before this Court. However, because the trial court failed to make any
findings of fact when it denied the motion to suppress, I would conclude that it is necessary to
reverse the trial court’s judgment and remand the matter to the trial court for it to do so. See
Crim.R. 12(F) (“Where factual issues are involved in determining a motion, the court shall state
its essential findings on the record.”); see also State v. Dennis, 9th Dist. Summit No. 27692,
2016-Ohio-8136, ¶ 6.
APPEARANCES:
KERRY M. O’BRIEN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistnat Prosecuting Attorney, for Appellee.
