[Cite as State v. Smith,
2024-Ohio-6097.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 31052
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOHN DOUGLAS SMITH COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 19 04 1499
DECISION AND JOURNAL ENTRY
Dated: December 31, 2024
CARR, Presiding Judge.
{¶1} Appellant, John Douglas Smith, appeals the judgment of the Summit County Court
of Common Pleas. This Court reverses and remands.
I.
{¶2} The instant controversy arises out of a traffic stop that occurred during the early
morning hours of March 25, 2019. Smith was a front seat passenger in an SUV that was stopped
by Akron police. During the course of the stop, police informed Smith that he could be cited for
a seatbelt violation. When Smith subsequently refused to give his identifying information, he was
removed from the vehicle and placed in handcuffs. Police then conducted a search of Smith’s
person and discovered a baggie containing methamphetamine in the pocket of his pants.
{¶3} The Summit County Grand Jury indicted Smith on one count of aggravated
possession of drugs in violation of R.C. 2925.11(A)/(C)(1)(a). Smith pleaded not guilty to the
charge at arraignment. Smith filed a motion to suppress the evidence obtained as a result of the
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stop. The State filed a brief in opposition to the motion. When the parties appeared for the
suppression hearing, Smith and the State stipulated to the admission of two officer-worn body
camera videos that depicted the stop. The parties agreed that the trial court could make factual
findings based on the body camera video footage and then rule on the motion. No other evidence
was admitted at the suppression hearing. The trial court ultimately issued an order denying the
motion to suppress.
{¶4} Smith pleaded no contest to the sole count in the indictment and the trial court found
him guilty. The trial court sentenced Smith to a one-year term of community control with a number
of conditions.
{¶5} On appeal, Smith raises one assignment of error pertaining to the trial court’s ruling
on the motion to suppress.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY DENYING JOHN SMITH’S MOTION TO
SUPPRESS EVIDENCE OBTAINED IN VIOLATION OF HIS RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES PURSUANT TO
THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.
{¶6} In his sole assignment of error, Smith maintains that the trial court erred in
concluding that there was a lawful basis to place him under arrest. Smith thus contends that the
contraband obtained during the search incident to arrest was inadmissible.
{¶7} The Supreme Court of Ohio has stated as follows:
Appellate review of a motion to suppress presents a mixed question of law and fact.
When considering a motion to suppress, the trial court assumes the role of trier of
fact and is therefore in the best position to resolve factual questions and evaluate
the credibility of witnesses. Consequently, an appellate court must accept the trial
court’s findings of fact if they are supported by competent, credible evidence.
3
Accepting these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 2003-Ohio-5372, ¶ 8.
Background
{¶8} In his motion to suppress, Smith argued that all of the evidence obtained after he
was arrested was inadmissible because he was not charged with an arrestable offense and there
was no basis to conduct a search of his person. The State filed a brief in opposition to the motion
arguing that Smith violated a local ordinance requiring him to wear a seatbelt and that he was
placed under arrest because he failed to provide law enforcement with the information necessary
to issue him a citation.
{¶9} When the parties appeared for the suppression hearing, the State indicated that the
parties had reached a stipulation regarding the authenticity of the body camera videos worn by the
two officers involved in the traffic stop. After noting that the parties had submitted briefs
addressing the legal issues raised in the motion to suppress, the State indicated that the parties were
in agreement that the trial court could make factual findings based on a review of the body camera
videos and then rule on the motion. Smith indicated the State had accurately stated the terms of
the parties’ stipulation and agreement.
{¶10} The trial court set out the following factual findings in support of its ruling denying
the motion to suppress. On the evening of March 25, 2019, Officer Fashempour of the Akron
Police Department was on patrol when he observed a vehicle with expired license plates. Officer
Fashempour activated his overhead lights and initiated a stop of the SUV in question. After
obtaining the identity of the driver, Officer Fashempour learned that the driver was driving under
suspension. Officer Fashempour placed the driver in his cruiser and returned to the SUV, where
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Smith was a front seat passenger. When Officer Fashempour asked Smith for his name, he
indicated that he was “Doug Smith.” Officer Fashempour advised Smith that he would be cited
for failure to wear his seatbelt. Despite multiple requests from Officer Fashempour, Smith refused
to give his social security number or his date of birth.
{¶11} Smith was subsequently placed in handcuffs. A second officer escorted Smith away
from the vehicle. Smith persisted in refusing to give any identifying information, other than his
name. At one point, Smith stated that he did not know his social security number. The second
officer searched Smith and discovered that Smith had a baggie containing a controlled substance
in the pocket of his pants. Smith stated that he did not know about the controlled substance and
that the pants he was wearing did not belong to him. The second officer informed Smith of his
Miranda rights. A search of the vehicle did not reveal any contraband. Thereafter, when Smith
ultimately revealed information that allowed the officers to confirm his identity, the officers
learned that Smith had an outstanding arrest warrant.
{¶12} In the portion of its analysis where the trial court concluded that there was probable
cause to place Smith under arrest, the trial court first found Smith had violated Akron City Code
72.70(B)(3), which prohibits a passenger from sitting in the front seat of an automobile being
operated on any street “unless he is wearing all of the available elements of a properly adjusted
occupant restraining device.” In support of this determination, the trial court found as follows:
[Officer] Fashempour approached the driver’s side of the vehicle within a minute
of activating his lights and sirens. [Smith] was sitting in the front passenger seat.
[Officer] Fashempour stated that he did not see [Smith] have his seatbelt on when
he initially approached the vehicle. In addition, [Smith] did not have his seatbelt
on when [Officer] Fashempour approached him on the passenger side of the
vehicle.
{¶13} Based on the foregoing facts, the trial court determined that Smith had violated
Akron City Code 72.70(B)(3). With respect to whether police had the authority to place Smith
5
under arrest, the trial court answered that question in the affirmative based on the authority of R.C.
2935.26(A)(2), which permits an officer to make an arrest of a minor misdemeanor offender under
circumstances where “[t]he offender cannot or will not offer satisfactory evidence of his identity.”
The trial court concluded that, under the facts of this case, the officers were justified in placing
Smith under arrest because he repeatedly denied their requests for the information necessary to
issue him a citation.
Discussion
{¶14} On appeal, Smith emphasizes that Akron City Code 72.70(B)(3) prohibits front-
seat passengers from riding without a seatbelt in “an automobile being operated on any street[.]”
Smith contends the State failed to present any evidence that he was not wearing a seatbelt at a time
when the SUV in question was being operated.1 Smith argues that several minutes elapsed between
the time the SUV was stopped and the time that Officer Fashempour first observed Smith without
a seatbelt. Smith concludes that because there was no evidence of the seatbelt violation, he had a
lawful right to refuse to provide his identifying information.
{¶15} The Fourth Amendment to the United States Constitution provides that “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated[.]” U.S. Const., amend. IV. The Ohio Constitution
similarly provides “[t]he right of the people to be secure in their persons, houses, papers, and
possessions, against unreasonable searches and seizures shall not be violated[.]” Ohio Const. art.,
I, § 14.
In its merit brief, the State suggests that Smith is not contesting the trial court’s factual
1
findings on appeal. The State’s position in this regard misconstrues the gravamen of Smith’s
argument, which is that the trial court’s determination that he violated the seatbelt ordinance was
predicated on erroneous factual findings.
6
{¶16} “The exclusionary rule is a judicially created remedy for Fourth Amendment
violations.” State v. Castagnola, 2015-Ohio-1565, ¶ 92, citing United States v. Calandra,
414
U.S. 338, 348 (1974). “[E]vidence obtained as a result of an illegal arrest is inadmissible at trial.”
State v. Henderson,
51 Ohio St.3d 54, 56 (1990).
{¶17} Akron City Code 72.70(B)(3) provides, in relevant part, that “[n]o person shall . . .
[o]ccupy, as a passenger, a seating position on the front seat of an automobile being operated on
any street or highway unless he is wearing all of the available elements of a properly adjusted
occupant restraining device.”
{¶18} In turn, R.C. 2935.26(A) provides as follows:
[W]hen a law enforcement officer is otherwise authorized to arrest a person for the
commission of a minor misdemeanor, the officer shall not arrest the person, but
shall issue a citation, unless one of the following applies:
(1) The offender requires medical care or is unable to provide for his own safety.
(2) The offender cannot or will not offer satisfactory evidence of his identity.
(3) The offender refuses to sign the citation.
{¶19} Generally speaking, a police officer cannot arrest an individual for committing a
minor misdemeanor offense absent the existence of one of the enumerated circumstances in R.C.
2935.26(A). See State v. McCall, 2010-Ohio-4283, ¶ 10 (9th Dist.). Here, the trial court’s
application of R.C. 2935.26(A)(2) was predicated on its underlying determination that Officer
Fashempour was authorized to issue a citation to Smith because there was probable cause that
Smith had violated Akron City Code 72.70(B)(3). “Probable cause exists when the facts and
circumstances within the arresting officer’s knowledge are sufficient to warrant a prudent man in
believing that an offense has been committed.” State v. Pavao,
38 Ohio App.3d 178, 178 (9th
Dist. 1987), citing Beck v. Ohio,
379 U.S. 89, 91 (1964). Smith’s argument on appeal focuses on
the trial court’s factual findings pertinent to the underlying seatbelt violation.
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{¶20} A review of Officer Fashempour’s body camera video reveals that Officer
Fashempour initially approached the SUV on the driver’s side and spoke to the driver about the
expired license plates and the license suspension. The portion of the video showing Officer
Fashempour’s initial approach, which resulted in the driver being taken into custody, does not
contain any footage depicting whether or not Smith was wearing his seat belt at that time. The
video reveals that when Officer Fashempour subsequently approached the passenger side of the
SUV, Officer Fashempour immediately asked Smith for his name and identification. Smith gave
his name but said he did not have any identification. After expressing some confusion, Smith
asked if was under arrest. Officer Fashempour answered in the negative but told Smith that he
needed Smith’s social security number. When Smith asked if he was in trouble, Officer
Fashempour responded, “Well, right now you’re not wearing your seatbelt. So, that is a citable
offense.” Smith stated that he took off his seatbelt after the stop. Officer Fashempour then stated,
“See man, you’re not wearing a seat belt, are you? You have to identify yourself to me.” When
Smith stated that he had already given his name, Officer Fashempour asked whether Smith had an
outstanding warrant. Smith again asked if he was under arrest. Officer Fashempour responded
that he could be placed under arrest for failing to identify himself. Smith maintained his refusal
to give any additional information. At that point, Smith was removed from the vehicle and placed
in handcuffs. In the video, Smith can be heard saying, “I had [my seatbelt] on and I took it off.
This vehicle . . . isn’t running, Sir.” Smith then stated that Officer Fashempour could see that
Smith was wearing a seatbelt at the time that Officer Fashempour first approached the SUV.
Officer Fashempour responded, “I did not see it.” Shortly thereafter, the second officer escorted
Smith away from the SUV.
8
{¶21} The second officer’s body camera video picks up at the point where Smith was
removed from the SUV. Although the video shows Smith questioning the basis for his arrest and
refusing to give any identifying information, there is no footage that is probative as to whether
Smith was wearing a seatbelt. Soon after Smith was escorted away from the SUV, the second
officer searched Smith’s person and discovered the baggie containing drugs.
{¶22} Under these circumstances, we are compelled to sustain Smith’s assignment of
error. The State bears the burden at a suppression hearing of demonstrating that a warrantless
search or seizure satisfies Fourth Amendment standards. Maumee v. Weisner, 87 Ohio St.3d 295,
297 (1999). Furthermore, we reiterate that this Court is not required to accept the trial court’s
factual findings when they are not supported by competent, credible evidence. State v. Ray Rogers,
2017-Ohio-357, ¶ 8 (9th Dist.). Pursuant to the parties’ stipulation and agreement discussed above,
the evidentiary basis from which the trial court could make factual findings in this case was limited
to its review of the officer’s body camera videos.
{¶23} Upon this Court’s review of the body camera videos, we cannot say that the trial
court’s finding that Smith committed a seatbelt violation was supported by competent, credible
evidence. Neither body camera video contains footage of the SUV while it was in operation.
While Officer Fashempour’s body camera video captures his initial approach of the SUV, that
portion of the video does not indicate whether Smith was wearing a seatbelt. When Officer
Fashempour approached the passenger side of the vehicle approximately three and a half minutes
after making his initial approach, he immediately asked for Smith’s identification and social
security number. It was only after some intermittent questioning that, in response to Smith asking
if he was in trouble, Officer Fashempour stated, “Well, right now you’re not wearing your
seatbelt.” Officer Fashempour’s comments about the seatbelt reflected present-tense observations.
9
Moreover, the body camera video does not support the trial court’s finding that “[Officer]
Fashempour stated that he did not see [Smith] have his seatbelt on when he initially approached
the vehicle.” The video reveals that Smith repeatedly insisted that he had been wearing his seatbelt
when Officer Fashempour made his initial approach and, at one point, Officer Fashempour
responded, “I did not see it.” Officer Fashempour’s denial in this regard was not akin to an
affirmative statement that he observed Smith without a seatbelt during his initial approach. At
best, Officer Fashempour stated that he could not substantiate Smith’s claim that he was wearing
a seatbelt when the SUV was stopped. If there had been a conventional suppression hearing in
this matter, the State undoubtedly would have inquired of Officer Fashempour regarding whether
he observed Smith wearing a seatbelt during the initial approach. No such inquiry took place,
however, due to the parties’ stipulation and agreement that the trial court could make findings
based solely on its review of the body camera videos. Under these circumstances, we cannot say
that there was an evidentiary basis from which to conclude that Smith violated Akron City Code
72.70(B)(3).
{¶24} As the trial court’s factual findings were not supported by competent, credible
evidence, Smith’s assignment of error is sustained.
III.
{¶25} Smith’s assignment of error is sustained. The judgment of the Summit County
Court of Common Pleas is reversed and the cause remanded for further proceedings consistent
with this decision.
Judgment reversed,
and cause remanded.
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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 Appellee.
DONNA J. CARR
FOR THE COURT
HENSAL, J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
DONALD K. POND, Attorney at Law, for Appellant.
ELLIOT KOLKOVICH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
