State v. Hawkins (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Hawkins, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 

            THE STATE OF OHIO, APPELLEE, v. HAWKINS, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State v. Hawkins, Slip Opinion No. 

.]
When an officer encounters a vehicle the whole of which is painted a different color
        from the color listed in the vehicle-registration records and the officer
        believes, based on his experience, that the vehicle or its displayed license
        plates may be stolen, the officer has a reasonable, articulable suspicion of
        criminal activity and is authorized to perform an investigative traffic stop.
     (No. 2018-1177—Submitted April 24, 2019—Decided October 16, 2019)
               CERTIFIED by the Court of Appeals for Fayette County,
                         No. CA2017-07-013, 

.
                                   __________________
        KENNEDY, J.
        {¶ 1} This case was accepted as a certified conflict between judgments of
the Twelfth District and Fifth District Courts of Appeals. The Twelfth District
certified the issue in conflict as follows:
                              Supreme Court of Ohio




               “Does the discrepancy between the paint color of a vehicle
       and the paint color listed in vehicle registration records accessed by
       a police officer provide the officer with reasonable articulable
       suspicion to perform a lawful investigative traffic stop where the
       officer believes the vehicle or its displayed license plates may be
       stolen[?]”

, 

, 

, quoting the court of
appeals’ journal entry.
       {¶ 2} We answer the question in the affirmative and hold, based on these
facts, that when an officer encounters a vehicle the whole of which is painted a
different color from the color listed in the vehicle-registration records and the
officer believes, based on his experience, that the vehicle or its displayed license
plates may be stolen, the officer has a reasonable, articulable suspicion of criminal
activity and is authorized to perform an investigative traffic stop.
       {¶ 3} Accordingly, we affirm the judgment of the Twelfth District Court of
Appeals.
                     FACTS AND PROCEDURAL HISTORY
                                    Traffic Stop
       {¶ 4} Around 3:00 a.m. on May 20, 2016, Washington Court House Police
Officer Jeffery Heinz was completing a traffic stop when a vehicle drove past his
patrol car and Heinz heard his license-plate reader beep. A license-plate reader
(“reader”) is a computer-controlled camera system installed in some law-
enforcement vehicles. The cameras, which are mounted to the trunk of the vehicle,
capture images of the license plates of cars nearby. The system beeps to alert the
officer that a plate has been captured, and an image of the plate is displayed on the
computer’s screen.




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       {¶ 5} Upon hearing the beep, Heinz looked at the computer screen and saw
an image of a license plate with a Franklin County sticker. He ran the license-plate
number and was informed by the dispatcher that the license plate was registered to
a white 2001 GMC SUV. Heinz looked in his rearview mirror and saw that the
vehicle, a GMC SUV, was black. He finished the traffic stop and began searching
for the vehicle.
       {¶ 6} Heinz located the vehicle and initiated a traffic stop. The driver,
appellant, Justin Hawkins, pulled over. Heinz explained to Hawkins that the color
discrepancy was the reason for the stop and asked to see Hawkins’s identification.
Hawkins told Heinz that he did not have identification with him. Heinz was able
to verify that the vehicle’s identification number matched the number registered
with the Bureau of Motor Vehicles (“BMV”) while he was attempting to learn
Hawkins’s personal information.
       {¶ 7} Hawkins provided Heinz with a Social Security number; however, the
dispatcher informed Heinz that the number was not associated with the name
Hawkins. Heinz then verified with Hawkins his name and date of birth and asked
him again for his Social Security number. Hawkins provided a second Social
Security number. At this time, Hawkins informed Heinz that he was running low
on gas. Heinz told Hawkins the location of a gas station.
       {¶ 8} Hawkins pulled away, and Heinz followed in his patrol car. While
following Hawkins, Heinz was notified by the dispatcher that the second Social
Security number also was not Hawkins’s. Heinz, still following Hawkins, then
provided the dispatcher with Hawkins’s name and date of birth. The dispatcher
advised Heinz that Hawkins did not have a valid driver’s license and that there was
an outstanding warrant out of Delaware County for Hawkins’s arrest.
       {¶ 9} Heinz activated his lights to initiate a second traffic stop. Hawkins
pulled his vehicle over, and Heinz approached. Heinz informed Hawkins of the
outstanding warrant, and Hawkins sped away at a high rate of speed.




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        {¶ 10} Hawkins was apprehended after crashing the vehicle and fleeing on
foot. Upon his arrest, the vehicle was inventoried and two credit cards that had
been reported stolen were found in the glove compartment.
                              Trial-Court Proceedings
        {¶ 11} On June 3, 2016, Hawkins was indicted on two counts of receiving
stolen property in violation of R.C. 2913.51(A) and (C), felonies of the fifth degree,
and one count of failing to comply with an order or signal of a police officer in
violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of the third degree. He
moved to suppress the evidence obtained relating to the traffic stop on the basis that
Heinz had lacked reasonable suspicion to make an investigatory stop.
        {¶ 12} At the suppression hearing, Heinz was the only witness to testify.
He explained the basis for initiating the traffic stop. He stated that in his experience
the discrepancy between the color in the BMV registration and the actual color of
the vehicle could indicate that the vehicle and the license plates had been stolen.
“[W]ith my experience, if someone would steal a vehicle, they would just go
through a parking lot anywhere and find a vehicle that would match the vehicle in
which they were driving. Throw [the license plate from that vehicle] on there and
then drive around.” He indicated that he had never encountered this personally, but
he knew that it had occurred in the Washington Court House area.
        {¶ 13} The trial court overruled Hawkins’s motion to suppress. After a jury
trial, Hawkins was convicted of failure to comply and acquitted of receiving stolen
property. The trial court imposed a sentence of 36 months in prison.
                            Appellate-Court Proceedings
        {¶ 14} Hawkins appealed to the Twelfth District Court of Appeals and
advanced one assignment of error. He argued that the color discrepancy did not
amount to a reasonable and articulable suspicion of criminal activity on which to
base the traffic stop.




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       {¶ 15} The appellate court disagreed. It affirmed the trial court, concluding
that the color discrepancy was sufficient to raise Heinz’s suspicion that the vehicle
was either stolen or that the license plate had been taken from another vehicle.

, 

. However, the Twelfth District granted
Hawkins’s motion to certify that its judgment was in conflict with the Fifth
District’s judgment in State v. Unger, 5th Dist. Stark No. 2016 CA 00148, 2017-
Ohio-5553. We recognized that a conflict exists. 

, 2018-Ohio-
3637, 

.
                                   ANALYSIS
                                Standard of Review
       {¶ 16} Appellate review of a ruling on a motion to suppress presents a
mixed question of law and fact. State v. Burnside, 

, 2003-Ohio-
5372, 

. An appellate court must accept the trial court’s findings
of fact if they are supported by competent, credible evidence. See State v. Fanning,

, 

 (1982). But the appellate court must decide
the legal questions independently, without deference to the trial court’s decision.

.
                   The Fourth Amendment and Investigatory Stops
       {¶ 17} The Fourth Amendment to the United States Constitution provides:


               The right of the people to be secure in their persons, houses,
       papers, and effects, against unreasonable searches and seizures,
       shall not be violated, and no Warrants shall issue, but upon probable
       cause, supported by Oath or affirmation, and particularly describing
       the place to be searched, and the persons or things to be seized.


       {¶ 18} We have held that in felony cases, Article I, Section 14 of the Ohio
Constitution provides the same protection as the Fourth Amendment to the United




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States Constitution. State v. Jones, 

, 

, 

.
       {¶ 19} “The Fourth Amendment permits brief investigative stops * * *
when a law enforcement officer has ‘a particularized and objective basis for
suspecting the particular person stopped of criminal activity.’ ” Navarette v.
California, 

, 

, 

 (2014), quoting
United States v. Cortez, 

, 

, 

(1981). This rule traces its beginning to Terry v. Ohio, 

, 

,

 (1968), and therefore, the type of stop involved is referred to as a
“Terry stop.” In Terry, the United States Supreme Court “implicitly acknowledged
the authority of the police to make a forcible stop of a person when the officer has
reasonable, articulable suspicion that the person has been, is, or is about to be
engaged in criminal activity.” (Emphasis deleted.) United States v. Place, 

, 

, 

 (1983).
       {¶ 20} Precisely defining “reasonable suspicion” is not possible, and as
such, the reasonable-suspicion standard is “ ‘not readily, or even usefully, reduced
to a neat set of legal rules.’ ” Ornelas v. United States, 

, 

, 

 (1996), quoting Illinois v. Gates, 

,

, 

 (1983). The reasonableness of a Terry stop
“depends on a balance between the public interest and the individual’s right to
personal security free from arbitrary interference by law officers.” United States v.
Brignoni-Ponce, 422 U.S 873, 878, 

, 

 (1975). The
level of suspicion required to meet the reasonable-suspicion standard “is obviously
less demanding than that for probable cause,” and “is considerably less than proof
of wrongdoing by a preponderance of the evidence” but is “something more than
an ‘inchoate and unparticularized suspicion or “hunch.” ’ ”        United States v.
Sokolow, 

, 

, 

 (1989), quoting 

.




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       {¶ 21} To determine whether an officer had reasonable suspicion to conduct
a Terry stop, the “totality of circumstances” must be considered and “viewed
through the eyes of the reasonable and prudent police officer on the scene who must
react to events as they unfold.” State v. Andrews, 

, 

 (1991). “This process allows officers to draw on their own experience
and specialized training to make inferences from and deductions about the
cumulative information available to them that ‘might well elude an untrained
person.’ ” United States v. Arvizu, 

, 

, 

 (2002), quoting 

.
       {¶ 22} “A determination that reasonable suspicion exists, however, need
not rule out the possibility of innocent conduct.” Id. at 277. In permitting
detentions based on reasonable suspicion, “Terry accepts the risk that officers may
stop innocent people.” Illinois v. Wardlow, 

, 

, 

 (2000).
          Heinz Had Reasonable, Articulable Suspicion to Stop Hawkins
       {¶ 23} In this case, Heinz’s suspicions were aroused when he saw a vehicle
the entirety of which was a different color from the color indicated in the BMV
records for the vehicle associated with the license plate that was captured by
Heinz’s reader. The facts that the color discrepancy itself is not a crime and that
there may be an innocent explanation for the discrepancy do not mean that the
discrepancy may be disregarded in determining whether Heinz had reasonable
suspicion. See 

 (reviewing the totality of the circumstances requires
consideration of an observation that “was by itself readily susceptible to an innocent
explanation”).   To assign noncriminal behavior no weight would “seriously
undercut the ‘totality of the circumstances’ principle which governs the existence
vel non of ‘reasonable suspicion.’ ” 

. Behavior and circumstances
that are noncriminal by nature may “be unremarkable in one instance * * * while
quite unusual in another.” 

. An officer is “entitled to make an assessment




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of the situation in light of his specialized training and familiarity with the customs
of the area’s inhabitants.” 

        {¶ 24} In this case, Heinz testified that in his experience, the color
discrepancy could signify that the vehicle either was stolen or had an illegal license
plate. He knew that in the past, car thieves in the area had stolen a vehicle and then
switched the license plates with a vehicle of the same make and model. Based on
his professional experience, Heinz suspected that Hawkins was engaged in criminal
activity. Therefore, we hold that under the totality of the circumstances, Heinz met
the reasonable-and-articulable-suspicion standard necessary to perform a lawful
investigative traffic stop.
                                   CONCLUSION
        {¶ 25} Based on these facts, when an officer encounters a vehicle the whole
of which is painted a different color from the color listed in the vehicle-registration
records and the officer believes, based on his experience, that the vehicle or its
displayed license plates may be stolen, the officer has a reasonable, articulable
suspicion of criminal activity and is authorized to perform an investigative traffic
stop.
        {¶ 26} We affirm the judgment of the Twelfth District Court of Appeals.
                                                                  Judgment affirmed.
        O’CONNOR, C.J., and FRENCH, FISCHER, and DEWINE, JJ., concur.
        STEWART, J., concurs in judgment only.
        DONNELLY, J., dissents, with an opinion.
                                  _________________
        DONNELLY, J., dissenting.
        {¶ 27} This certified-conflict case began here with a poorly worded
question, and it has ended with an erroneous answer. I would answer the conflict




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question in the negative and reverse the judgment of the Twelfth District Court of
Appeals.
        {¶ 28} It is not reasonable for a police officer to infer that a vehicle’s driver
has stolen the vehicle, stolen license plates from a second vehicle, and switched the
license plates whenever the officer notices a discrepancy between the color of a
vehicle and the color listed in its registration records. In direct response to the
conflict question, I would hold that such a discrepancy, by itself, does not provide
the reasonable suspicion necessary to justify an investigatory seizure pursuant to
Terry v. Ohio, 

, 

, 

 (1968).
        {¶ 29} Additionally, although the certified question focuses on the specific
context of vehicle-registration records, I have grave concerns about the state using
the holding in this case in broader contexts. I would hold that a totality-of-the-
circumstances analysis is inapplicable in cases in which only one fact is relied upon
to justify an investigatory seizure. I would also hold that a police officer’s
knowledge of secondhand anecdotal information from an unidentified source does
not constitute personal experience or specialized training.
        {¶ 30} This case is a far cry from Terry and United States v. Arvizu, 

, 

, 

 (2002), both of which involved multiple
facts that cumulatively led an officer to infer criminal activity, requiring a totality-
of-the-circumstances analysis. Here, instead of having a single inference based
upon a wealth of assorted facts, we have a wealth of inferences based upon a single
fact. And the single fact in this case is that a 15-year-old black GMC SUV was
registered as a 15-year-old white GMC SUV.
        {¶ 31} Rather than asking whether such a color discrepancy alone provides
a police officer with reasonable suspicion that the vehicle or its license plates may
be stolen, the certified question asks whether such a color discrepancy and the
officer’s belief that the vehicle or license plates may be stolen provides a police




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officer with reasonable suspicion that the vehicle or its license plates may be stolen.
My belief is that the certifying appellate court confounded an officer’s inferences
from the circumstances with the circumstances themselves in order to portray the
case as one requiring a consideration of the totality of multiple circumstances.
       {¶ 32} In a review of a police officer’s assertion of reasonable suspicion,
“due weight must be given, not to his inchoate and unparticularized suspicion or
‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from
the facts.” (Emphasis added.) Terry, 

, 

, 

.     An officer’s experience and background are certainly important
considerations when determining whether the inferences he drew from the facts
were reasonable. Id.; 

. But an officer’s inferences drawn from the
facts, as well as the background and experience informing those inferences, are not
part of the facts themselves. Thus, in this case, Officer Jeffery Heinz’s background
and his personal belief that the vehicle driven by Hawkins might have been stolen
cannot be used to pad the sole fact supporting his investigatory seizure of Hawkins
in order to justify a totality-of-the-circumstances analysis.
       {¶ 33} In addition to accepting the false premise that this case involves the
consideration of multiple facts, the majority defends the reasonableness of Officer
Heinz’s inferences by referencing the notion that police officers “ ‘draw on their
own experience and specialized training’ ” when making inferences about those
facts. Majority at ¶ 21, quoting Arvizu, 

, 

, 

. But Officer Heinz did not testify as to any personal experience or specialized
training to justify the connection he drew between vehicle/registration color
discrepancies and the switching of license plates on stolen vehicles.
       {¶ 34} If anything, Officer Heinz’s testimony regarding his personal
experience on the police force suggested that license-plate-switching was not likely
to have happened. Officer Heinz testified that he had been a police officer in




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Washington Court House for over 14 years. Over the course of his career, he had

investigated more vehicle thefts than he could count. He had investigated both

vehicle thefts and license-plate thefts. But he had not once in his entire 14-year
career encountered a situation in which a person had stolen a vehicle and replaced
its license plates with plates that he had stolen from a similar vehicle of a different
color. He assured the court, though, that “it is done.” He did not cite any
specialized training that had led to his understanding that “it is done.” He simply
indicated that such a crime had occurred one or more times in his city. The majority
quotes a portion of Officer Heinz’s testimony in which he implies that his
knowledge of these crimes comes from his own experience. Majority opinion at

¶ 12. But that testimony was clarified when the officer was asked whether he had
personal experience involving stolen vehicles with switched plates and he said that
he did not.
          {¶ 35} Because Officer Heinz’s belief was based on secondhand anecdotal
information from an unknown source rather than personal experience or specialized
training, his personal belief does not add much weight to the analysis, let alone
dispositive weight.     More importantly, Officer Heinz’s testimony about his
secondhand information seemed to be an attempt to demonstrate the likelihood that
a car thief might switch license plates in order to evade detection. But his testimony
in no way demonstrated the likelihood that anyone driving a car with a
vehicle/registration color discrepancy might be a car thief who had switched license
plates.
          {¶ 36} Ohio’s laws and regulations governing vehicle registration, R.C.
Chapter 4503 and Ohio Adm.Code 4501:1-7, do not address vehicle color at all, let
alone require a driver to immediately file a new registration application to update
or correct a vehicle’s registered color. There is nothing unlawful in Ohio about




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driving a vehicle whose color does not match the color listed on the vehicle’s
registration. The baseline here, then, is that driving such a vehicle is consistent

with innocent conduct. If behavior is consistent with innocent conduct, it must be
combined with additional conduct if it is to be used to establish reasonable
suspicion of illegal conduct. Terry, 

, 

, 

;
United States v. Sokolow, 

, 

, 

 (1989);
United States v. Cortez, 

, 

, 

(1981); United States v. Manzo-Jurado, 

 (9th Cir.2006)
(“Seemingly innocuous behavior does not justify an investigatory stop unless it is
combined with other circumstances that tend cumulatively to indicate criminal
activity”).
        {¶ 37} It is true that the proper inquiry for making a determination of
reasonable suspicion is not whether each individual act is innocent or guilty.

, citing Illinois v. Gates, 

, 

, 

 (1983), fn. 13. But it is also true that the reasonable-suspicion inquiry
requires that some acceptable “degree of suspicion” must attach to a noncriminal
act. 

 So what degree of suspicion attaches here? Is driving a vehicle with a
color that does not match the color listed on the vehicle’s registration the kind of
behavior to which reasonable suspicion of illegal activity readily attaches, as is true
of running away after seeing police, Illinois v. Wardlow, 

, 

, 

 (2000), or smelling distinctively of marijuana, United
States v. Ramos, 

 (3d Cir.2006)? Or is this the kind of behavior
that, although unusual, does not yield a high enough degree of suspicion on its own
to justify an investigatory seizure, such as possessing luggage that smells of an
unidentified chemical, United States v. Little, 

 (10th Cir.1994),
wearing a wig and sunglasses, People v. Tate, 

, 853




                                          12
                                      January Term, 

 (2006), or having more than one air freshener in a vehicle, United
States v. Rodriguez-Escalera, 

 (7th Cir.2018)?
         {¶ 38} I believe that driving a vehicle that is a color other than the color
listed on its registration falls solidly in the second category. The majority of
jurisdictions addressing this issue tend to agree: so long as a color discrepancy does
not constitute a violation of state law, then the discrepancy, standing alone, does
not adequately support reasonable suspicion absent some other indicia of criminal
activity. United States v. Uribe, 

 (7th Cir.2013); Schneider v. State,

, 

; State v. Teamer, 

 (Fla.2014);
Commonwealth v. Mason, Va.App. No. 1956-09-2, 

 (Mar. 9,
2010) (unpublished decision); State v. O’Neill, N.H.Super. Nos. 06-S-3456 and 06-
S-3457, 

 (Apr. 17, 2007). Compare Smith v. State, 

 (Ind.App.1999) (court upheld traffic stop; held that mismatch in color
constituted a traffic violation under Indiana law).
         {¶ 39} In this case, it was within the realm of possibility that Hawkins stole
a black 2001 GMC SUV, drove around until he found another 2001 GMC SUV
(which happened to be white), stole the license plates from the white 2001 GMC
SUV, and put those plates on the black 2001 GMC SUV. It was also quite possible
that the vehicle was originally white but was painted black at some point in the
previous 15 years. And it was also quite possible that the vehicle had always been
black and a mistake was made at some point in the Bureau of Motor Vehicles’
(“BMV’s”) record keeping or in the transfer of the vehicle-registration information
to the police.1 Although it is unusual for a vehicle’s color not to match the color
listed on its registration, there is nothing in Hawkins’s suppression hearing

1. The latter circumstance seems to have been the case for the vehicle that Hawkins was driving:
all of the BMV records prior to June 2016 that are in the record before this court do not indicate any
color for the 2001 GMC SUV, and the only document indicating the color as white is a document
that was printed from police records and was submitted by the state.




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establishing that the drivers of such vehicles are not, by and large, innocent
travelers. Thus, subjecting all such drivers to random investigatory seizures offends

the Fourth Amendment’s basic protections. See Reid v. Georgia, 

, 

, 

 (1980).
       {¶ 40} Officer    Heinz’s     testimony    did    not    establish   that   a
vehicle/registration color discrepancy, alone, gives rise to a reasonable suspicion
that the vehicle’s driver is engaged in criminal activity. Instead, Officer Heinz’s
testimony established that he had a hunch that this might be one of those instances
in which the innocent conduct might not actually be innocent. Because nothing
more than an inchoate suspicion of criminal activity was present in this case, I
would reverse the judgment of the Twelfth District Court of Appeals.
                               _________________
       Jess C. Weade, Fayette County Prosecuting Attorney, and John M. Scott Jr.,
Assistant Prosecuting Attorney, for appellee.
       Shannon M. Treynor, for appellant.
                               _________________




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