State v. Petty

[Cite as State v. Petty, 

.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY

STATE OF OHIO,                                 :    Case Nos. 18CA26
                                                              18CA27
        Plaintiff-Appellee,                    :

v.                                             :    DECISION AND
                                                    JUDGMENT ENTRY
MATTHEW E. PETTY,                              :

        Defendant-Appellant.                   :    RELEASED 10/11/2019


                                            APPEARANCES:

Brian A. Smith, Brian A. Smith Law Firm, LLC, Akron, Ohio, for appellant.

Daniel Everson, City of Marietta Law Director’s Office, Marietta, Ohio, for appellee.

Hess, J.
      {¶1}       A state trooper stopped Matthew E. Petty and charged him with operating

a motor vehicle under the influence and possession of marijuana. Petty pleaded no

contest, and the Marietta Municipal Court sentenced him to 90 days in jail, with 80 of the

days suspended, suspended his driving privileges for two years, fined him, and sentenced

him to a two-year probationary period.

        {¶2}     Petty asserts that the trial court erred in denying his motion to suppress

because the officer did not have reasonable suspicion to make the traffic stop. Petty

argues that the left turn statute does not require a driver to turn into the lane closest to

the center line. We find that although the left turn statute does not require a driver to turn

into the lane closest to the center line, we find the officer’s belief that the statute requires

such a turn is an objectively reasonable mistake of law. Therefore, the officer had
Washington App. Nos. 18CA26, 18CA27                                                         2


reasonable suspicion to make the stop. The trial court properly denied Petty’s motion to

suppress. We reject his argument and affirm his conviction.

                                          I. FACTS

       {¶3}   Trooper Jordan C. Hutton observed Petty driving a vehicle unusually slow

in the City of Marietta at 1:00 am in the morning. Trooper Hutton continued to observe

Petty until he stopped at a traffic light. Trooper Hutton reported that Petty’s front tires were

in front of the marked stop bar at the flashing red traffic light. His vehicle then turned left

into the outside lane of the four-lane roadway. After observing these violations, Trooper

Hutton activated his lights and initiated a traffic stop. Trooper Hutton detected the smell

of alcohol and performed field sobriety tests. Petty failed the field sobriety tests and

refused breath and urine tests. After a K-9 officer performed an exterior sniff of the

vehicle, authorities searched Petty’s car and discovered marijuana and a smoking pipe.

       {¶4}   Trooper Hutton issued traffic violations for operating a motor vehicle under

the influence in violation of R.C. 4511.19(A)(1)(a) and (A)(2); a stop signal violation under

R.C. 4511.13(C); possession of drug paraphernalia in violation of R.C. 2925.141; and

possession of marijuana in violation of R.C. 2925.11(C)(3). Perry pleaded not guilty and

filed a motion to suppress all the evidence from the traffic stop on the ground that Trooper

Hutton had no probable cause for the stop.

       {¶5}   At the suppression hearing the state introduced the dashboard video from

Trooper Hutton’s cruiser. Trooper Hutton testified that he witnessed Petty’s vehicle

stopped at a flashing red light signal with the front vehicle tires stopped beyond the

marked stop bar. Petty then turned left and immediately turned to the far outside lane of

the four-lane road. Trooper Hutton testified that he stopped Petty because of both the
Washington App. Nos. 18CA26, 18CA27                                                         3


marked stop bar violation and the improper turn violation. Trooper Hutton agreed that

because of the location of the marked stop bar, there is an inadequate view of oncoming

traffic and it is necessary to stop at the marked stop bar and then pull farther up in front

of the bar to see if it is safe to turn. Trooper Hutton testified that under R.C. 4511.36(A)(2),

when making a left-hand turn onto a four-lane road, the driver is required to turn into the

lane closest to the center lane; it is a violation to turn into the outside lane.

       {¶6}   The trial court found that there was no marked stop bar violation. The trial

court found that at that stop location, when the signal is controlled by a flashing red light

at night, and not the normal working light, it is necessary to stop at the marked stop bar

and then, as Trooper Hutton agreed, move forward in order for better visibility to make a

turn with safety. The trial court reviewed the dashboard video and determined that

Trooper Hutton’s cruiser approached Petty’s vehicle from a distance behind Petty and it

was not possible to determine if Petty had initially stopped behind the mark stop bar.

Trooper Hutton’s testimony was not probative on this point.

       {¶7}   However, the trial court found that Petty violated R.C. 4511.36(A)(2) by

making an improper left turn because the statute requires motorists to turn left into the

lane closest to the center lane – not the far outside lane. The trial court found that

although this is a de minimis violation of the traffic law, it is a violation and provided

reasonable suspicion for making the stop. The trial court denied Petty’s motion to

suppress on the ground that the officer had reasonable suspicion to stop Petty based on

a left turn violation of R.C. 4511.36(A)(2).

       {¶8}   Petty changed his plea to no contest to possession of marijuana and

operating a vehicle under the influence and the state dismissed the remaining charges.
Washington App. Nos. 18CA26, 18CA27                                                       4


The trial court sentenced him to 90 days in jail, with 80 of the days suspended, suspended

his driving privileges for two years, fined him, and sentenced him to a two-year

probationary period.

                              II. ASSIGNMENT OF ERROR

       {¶9}   Petty assigns the following error for our review:

       1. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
          SUPPRESS, IN VIOLATION OF APPELLANT’S RIGHTS UNDER THE
          FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED
          STATES CONSTITUTIONS AND ARTICLE I, SECTION 14 OF THE
          OHIO CONSTITUTION.

                               III. STANDARD OF REVIEW

       {¶10} In general “appellate review of a motion to suppress presents a mixed

question of law and fact.” State v. Codeluppi, 

, 

, 

. “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.” State v. Burnside, 

, 2003-Ohio-

5372, 

. “Consequently, an appellate court must accept the trial court's

findings of fact if they are supported by competent, credible evidence.” 

 “ ‘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.’ ” 

, quoting 

.

                                 IV. LAW AND ANALYSIS

                                   A. General Principles

       {¶11} To determine whether the trial court erred in denying the motion to

suppress, we must consider the reasonableness of the traffic stop. “The Fourth
Washington App. Nos. 18CA26, 18CA27                                                       5


Amendment to the United States Constitution and the Ohio Constitution, Article I, Section

14 prohibit unreasonable searches and seizures.” State v. Emerson, 

,

, 

. This constitutional guarantee is protected by the

exclusionary rule, which mandates the exclusion at trial of evidence obtained from an

unreasonable search and seizure. 

       {¶12} This case involved an investigatory stop, which must be supported by a

reasonable, articulable suspicion that the driver has, is, or is about to commit a crime,

including a minor traffic violation. See State v. Hudson, 4th Dist. Gallia No. 17CA19,

, ¶ 14; State v. Fowler, 4th Dist. Ross No. 17CA3599, 

, citing United States v. Williams, 

 (6th Cir.2013), and Florida

v. Royer, 

, 

, 

 (1983). “To justify a

traffic stop based upon reasonable suspicion, the officer must be able to articulate specific

facts that would warrant a person of reasonable caution to believe that the driver has

committed, or is committing, a crime, including a minor traffic violation.” State v. Taylor,

, 

, ¶ 18 (4th Dist.). The existence of reasonable suspicion

depends on whether an objectively reasonable police officer would believe that the

driver's conduct constituted a traffic violation based on the totality of the circumstances

known to the officer at the time of the stop. 

       {¶13} Moreover, a police officer may stop the driver of a vehicle after observing

even a de minimis violation of traffic laws. See State v. Williams, 4th Dist. Ross No.

14CA3436, 

, ¶ 9, citing Whren v. United States, 

, 

, 

 (1996), and Dayton v. Erickson, 

, 

(1996), syllabus. “[A] traffic stop with the proper standard of evidence is valid regardless
Washington App. Nos. 18CA26, 18CA27                                                       6


of the officer's underlying ulterior motives as the test is merely whether the officer ‘could’

have performed the act complained of; pretext is irrelevant if the action complained of

was permissible.” See State v. Koczwara, 7th Dist. Mahoning No. 13MA149, 2014-Ohio-

1946, ¶ 22, citing Erickson at 7 and 11, 

.

       {¶14} And the mere fact that an officer may have wrongly believed that a

defendant could be convicted of the traffic offenses would not obviate reasonable

suspicion for the stop. See Bowling Green v. Godwin, 

, 2006-Ohio-

3563, 

 (“The trial court correctly concluded that the fact that appellee

could not be convicted of failure to obey a traffic-control device is not determinative of

whether the officer acted reasonably in stopping and citing him for that offense. Probable

cause does not require the officer to correctly predict that a conviction will result”); see

also Heien v. North Carolina, 

, 

, 

 (2014)

(officer's mistake of law in stopping a vehicle with one functioning brake light, when the

state vehicle code requires only one working brake light, was a reasonable mistake that

did not violate the Fourth Amendment's prohibition against unreasonable searches and

seizures); State v. Levine, 4th Dist. Washington No. 18CA19, 

,

citing 

 State v. Hudson, 4th Dist. Gallia No. 17CA19, 

, ¶ 14-

17, appeal not allowed, 

, 

, 

.

                          B. Failure to Stop at Marked Stop Bar

       {¶15} The trial court made the factual determination based on the dashboard

video and Trooper Hutton’s testimony that Petty had not committed a marked stop bar

violation. Then the trial court made the legal determination that Trooper Hutton’s mistaken
Washington App. Nos. 18CA26, 18CA27                                                         7


belief that Petty committed a marked stop bar violation was not objectively reasonable

under the circumstances.

       {¶16} Because the trial court is the trier of fact and is in the best position to resolve

factual questions, we must accept the trial court’s findings of fact if they are supported by

competent, credible evidence. State v. 

. The dashboard video, which

showed the considerable distance the cruiser was behind Petty’s stopped vehicle as

Trooper Hutton approached Petty, the length of time Petty’s vehicle remained stopped,

the sequences of brake light activity on Petty’s vehicle, and Trooper Hutton’s testimony

concerning the need to stop and then pull forward again to gain visibility needed provide

competent, credible evidence to support the trial court’s finding that Petty did not commit

a marked stop bar violation. Thus, we accept the trial court’s factual finding that no marked

stop bar violation occurred.

       {¶17} However, even though Trooper Hutton was mistaken about this fact, “the

Fourth Amendment allows for some mistakes on the part of government officials, giving

them ‘fair leeway for enforcing the law in the community’s protection.’ ” Heien v. North

Carolina, at 536, quoting Brinegar v. United States, 

, 

, 

 (1949); State v. Levine, at ¶ 24. “The limit is that ‘the mistakes must be those

of reasonable men.’ ” Heien at 536, quoting Brinegar at 176.

       {¶18} Therefore determining whether a traffic stop violates the Fourth Amendment

“requires an objective assessment of a police officer's actions in light of the facts and

circumstances.” Bowling Green v. Godwin, 

, 

, 

. “The existence of probable cause [or reasonable suspicion] depends

on whether an objectively reasonable police officer would believe that [the driver's]
Washington App. Nos. 18CA26, 18CA27                                                      8


conduct * * * constituted a traffic violation, based on the totality of the circumstances

known to the officer at the time of the stop.” Id. at ¶ 16. A traffic stop complies with the

Fourth Amendment's reasonableness requirement if an officer possesses probable cause

or a reasonable suspicion to believe that a driver committed a violation. See State v.

Levine, 4th Dist. Washington No. 18CA19, 

, appeal not allowed, 

, 

, 

; State v. Crocker, 

,

, ¶ 62 (4th Dist.); State v. Littlefield, 4th Dist. Ross No. 11CA3247, 2013-

Ohio-481, ¶ 15; State v. Matzinger, 

, 

, ¶ 31-33 (4th Dist.).

Here, based on the dashboard video showing the distance and location of Trooper

Hutton’s cruiser from Petty’s vehicle, Trooper Hutton was approaching Petty’s vehicle in

the same lane as Petty and from behind, it was physically impossible to determine the

location of Petty’s front vehicle tires during the entire time Petty was stopped at the

flashing red light. Based on the totality of the circumstances, we find that an objectively

reasonable police officer would not believe that a marked stop bar violation had occurred.

Thus, the trial court properly found no reasonable suspicion for a stop based on a marked

stop bar violation.

                                  C. Improper Left Turn

       {¶19} Although there was no basis for a stop under a marked stop bar violation,

the trial court found the stop justified because of a left turn violation. Trooper Hutton

observed Petty make a left turn into the far, outside lane on a four-lane roadway. The

trial court found that Petty had violated R.C. 4511.36(A)(2) when he turned left into the

far, outside lane rather than the inside lane closest to the center line – a de minimis
Washington App. Nos. 18CA26, 18CA27                                                       9


violation of traffic law – but a violation that provided reasonable suspicion that an improper

left turn violation occurred.

       {¶20} Rules for turning at intersections are provided in R.C. 4511.36. R.C.

4511.36(A)(2) provides:

       At any intersection where traffic is permitted to move in both directions on
       each roadway entering the intersection, an approach for a left turn shall be
       made in that portion of the right half of the roadway nearest the center line
       thereof and by passing to the right of such center line where it enters the
       intersection and after entering the intersection the left turn shall be made so
       as to leave the intersection to the right of the center line of the roadway
       being entered. Whenever practicable the left turn shall be made in that
       portion of the intersection to the left of the center of the intersection.

       {¶21} At the suppression hearing, Petty’s counsel cited, State v. Kirkpatrick, infra,

and argued that R.C. 4511.36(A)(2) requires that the driver “square into the turn” and

“says nothing about whether the driver must take the turn into the right or left side of the

right lane.” See State v. Kirkpatrick, 

, 

, (1st Dist.). The

trial court rejected this argument and cited its own prior decision in State v. Attaway,

Marietta Municipal Court No. 17TRC4979, unreported, in which it found that a left turn

into the far outside lane violated R.C. 4511.36(A)(2).

       {¶22} The interpretation of R.C. 4511.36(A)(2) appears to be a case of first

impression in our district. We recently interpreted right turns under R.C. 4511.36(A)(1),

which states “Approach for a right turn and a right turn shall be made as close as

practicable to the right-hand curb or edge of the roadway.” See State v. 

 In

Levine, we found the officer had reasonable suspicion to make a stop where the driver

made a right turn into two neighboring lanes of travel – a wide swing – even when the two

lanes run in the same direction. The wide swing constituted a marked lanes violation

under R.C. 4511.36(A)(1) and R.C. 4511.33(A)(1) (requiring drivers traveling on two or
Washington App. Nos. 18CA26, 18CA27                                                                   10


more lane roads to drive as nearly as practicable entirely within a single lane or line of

traffic). See also State v. Lewis, 4th Dist. Scioto No. 08CA3226, 

(interpreting R.C. 4511.36(A)(3) involving turns where traffic is restricted to a single

direction).

        {¶23} In State v. Coles, 4th Dist. Athens No. 95CA166, 

 (June 7,

1996), we found that an officer has reasonable suspicion to make a stop where the driver

made a wide left turn outside the marked lane and drove through three or four metered

spaces before returning to the travelled portion of the roadway. The state argued that the

driver’s wide left turn was sufficient to justify the stop considering that the defendant

travelled well outside of the proper lane, through three or four parking spaces before

entering the far left lane. Id. at *2. We found that the marked lane violation provided

reasonable suspicion for the stop. Id.

        {¶24} However, in dicta,1 we discussed the left turn violation and found that the

driver arguably violated the left turn statute, R.C. 4511.36(B) (now R.C. 4511.36(A)(2))

because of the “extreme wideness” of the turn:

        The appellant arguably violated this statute when he made his wide left turn
        in that he failed to enter the road he was turning onto in the lane just right
        of center. At least one other court has held that a wide left turn in which the
        driver drives through parking spaces is sufficient to justify a stop for a traffic
        offense. See City of Bryan v. Alwood (Sept. 14, 1979), [6th Dist.] Williams
        App. No WMS-79-4, [

].

        * * * In view of the totality of the circumstances, such as the extreme
        wideness of the appellant’s left turn and the fact that he drove through
        several parking spaces, we find that the officer had reasonable articulable
        suspicion that the appellant was operating his vehicle in violation of the law.


1  Courts have defined dicta as “statements made by a court in an opinion that are not necessary for
the resolution of the issues.” State v. Lewis, 4th Dist. Lawrence No. 10CA24, 

, quoting
Gissiner v. Cincinnati, 1st Dist. Hamilton No. C–070536, 2008–Ohio–3161, ¶ 15 (citations omitted).
Washington App. Nos. 18CA26, 18CA27                                                          11

State v. Coles, at *3.

       {¶25} In State v. 

 the appellate court interpreted the left turn

statute, R.C. 4511.26(A)(2). 

. The appellate court acknowledged

that it had previously determined that the left turn statute “lends itself to the interpretation”

that drivers turning left must turn into the lane nearest the center line. See State v.

Stadelmann, 1st Dist. Hamilton No. C-130138, 

. However, it decided that

the rationale of the dissenting judge in Stadelmann was more persuasive and adopted

the dissent:

       Former Judge, now Ohio Supreme Court Justice Patrick DeWine dissented
       in Stadelmann, stating that R.C. 4511.36(A)(2) was clear and
       unambiguous:

               It simply requires the driver ‘square into the turn,’ as we are all
               taught in drivers' education class. The driver must proceed
               through the intersection and across the center line before turning
               left. The statute says nothing about whether the driver must
               make the turn into the right or left side of the right lane. Under
               the plain language of the statute, a turn into either side is
               perfectly legal.

       Stadelmann at ¶ 14.

State v. Kirkpatrick, 

, 

 (1st Dist.), appeal not

allowed, 

, 

, 

. The court disagreed with

the finding in Stadelmann that R.C. 4511.36(A)(2) is ambiguous. “The plain language of

R.C. 4511.36(A)(2) does not prohibit a driver from turning into the outside, right lane,

instead of the inside, left lane.” Id. at ¶ 13.

       {¶26} We agree with the rationale in Kirkpatrick and find that R.C. 4511.36(A)(2)

is not ambiguous and does not prohibit a driver from turning into the far outside lane when

making a left turn onto a roadway with two or more lanes. It “simply requires the driver
Washington App. Nos. 18CA26, 18CA27                                                           12

‘square into the turn.’ ” 

, quoting Stadelmann dissent, ¶ 14. The state

argues that this interpretation of the statute would hypothetically place a right turning

driver heading southbound in the same space at the same time with a left turning driver

heading northbound. We disagree. The left turning driver must yield the right of way to

any vehicle approaching in the opposite direction. See R.C. 4511.42(A) (“The operator of

a vehicle * * * intending to turn to the left within an intersection* * * shall yield the right of

way to any vehicle * * * approaching from the opposite direction, whenever the

approaching vehicle * * * is within the intersection or so close to the intersection * * * as

to constitute an immediate hazard”).

       {¶27} Although R.C. 4511.36(A)(2) does not prohibit a left turn into the far right

lane, Trooper Hutton’s belief that Petty’s turn violated the statute is an objectively

reasonable mistake of law in this case. The Cole decision found that R.C. 4511.36(A)(2)

“arguably” required a driver to turn into the lane just right of center, albeit in dicta. “The

Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of

fact or of law—must be objectively reasonable. We do not examine the subjective

understanding of the particular officer involved.” Heien v. North Carolina, 

,

, 

 (2014); Bowling Green v. Godwin, 

, 

, 

 (2006) (“We agree with the sentiment

expressed in a federal case involving an officer who had stopped a vehicle based on the

mistaken belief that the windows were tinted darker than the law permitted. The court

observed that the officer ‘was not taking the bar exam. The issue is not how well [the

officer] understood California's window tinting laws, but whether he had objective,
Washington App. Nos. 18CA26, 18CA27                                                       13


probable cause to believe that these windows were, in fact, in violation.’ ”). Thus, the trial

court properly denied Petty’s motion to suppress.

                                     V. CONCLUSION

         {¶28} We overrule Petty’s assignment of error and affirm the judgment of the trial

court.

                                                                  JUDGMENT AFFIRMED.
Washington App. Nos. 18CA26, 18CA27                                                                     14


Smith, P.J., concurring:

         {¶29} While I agree with the result contained in the majority opinion, I do so

reluctantly. The United States Supreme Court’s holding in Heien v. North 

essentially held that reasonable mistakes of law are no less compatible with the concept

of reasonable suspicion than reasonable mistakes of fact. Thus, under Heien, law

enforcement’s initiation of a traffic stop based upon the mistaken belief that a legal

violation had occurred is still supported by reasonable suspicion and is justified as long

as the mistake of law is reasonable. While I personally disagree with this concept, I agree

that we are duty-bound to apply the legal principles set forth in Heien.

         {¶30} Although I understand law enforcement officers are “ ‘not taking the bar

exam’ ” every time they initiate a traffic stop,2 in my view they should be held to a higher

standard and should have an accurate understanding of the laws which they purport to

enforce. It appears the Sixth District Court of Appeals has shared this view. See State v

Babcock, 

, 

 (holding “that the exclusionary rule operates

to bar the admission of evidence obtained as a result of a traffic stop based on conduct

that a police officer mistakenly believes is a violation of the law” and noting that two other

districts in Ohio “have refused to allow a mistake of law exception to the application of the

exclusionary rule in situations in which a defendant is stopped for a traffic violation when,

in fact, the defendant's conduct was lawful.”).3 Admittedly, Babcock was decided prior to

Heien.


2  City of Bowling Green v. Godwin, 

, 2006–Ohio–3563, 

, quoting
United States v. Wallace, 

 (C.A.9, 2000).
3 The Babcock court ultimately declined the State’s invitation to apply the reasoning set forth in Godwin to

mistakes of law. 

. It reasoned that permitting “traffic stops founded upon an officer's
mistake of law ‘would defeat the purpose of the exclusionary rule, for it would remove the incentive for
police to make certain that they properly understand the law that they are entrusted to enforce and obey.’ ”

 quoting United States v. Lopez–Soto, 

 (9th Cir.2000); see also United States v.
Washington App. Nos. 18CA26, 18CA27                                                                    15

        {¶31} However, turning our attention back to the holding in Heien, I note that the

Heien Court acknowledged that the ultimate “ ‘touchstone’ ” of the Fourth Amendment is

“ ‘reasonableness.’ ” Heien at 536, quoting Riley v. California, 

 S.Ct. 2473,

2482, 

 (2014). This Court recently determined a mistake of law in a law

enforcement officer’s interpretation of a local ordinance governing right turns at

intersections was not reasonable and thus the traffic stop he initiated based upon his

mistaken understanding of the law was not supported by reasonable suspicion. See State

v. Ware, 

, --N.E.3d-- (4th District). In Ware, however, this Court was not

bound to apply reasoning from other districts, or bound by prior precedent, indicating the

ordinance at issue was ambiguous. Finding the ordinance at issue in Ware was clear

and unambiguous and not subject to varying interpretations, we found the officer’s

mistaken application of the ordinance to be unreasonable and therefore reversed the trial

court’s decision denying Ware’s motion to suppress the evidence obtained as a result of

the illegal stop. 

.

        {¶32} Unfortunately, other districts, as well as this Court, have previously opined

that the statute at issue herein, R.C. 4511.36(A)(2), which governs left turns in

intersections, is ambiguous and thus subject to varying interpretations. See State v.

Stadelmann, 1st Dist. Hamilton No. C–130138, 

 (stating that “[t]he

portion of the statute relevant to our analysis seems to allow for two interpretations.”), but

see Former Judge DeWine’s dissenting opinion (finding the statute to be unambiguous);




Lopez–Valdez, 

 (5th Cir.1999) (“[I]f officers are allowed to stop vehicles based on their
subjective belief that traffic laws have been violated even where no such violation has, in fact, occurred,
the potential for abuse of traffic stops as pretext for effecting stops seems boundless and the costs to
privacy rights excessive”). The Babcock court further opined that Godwin actually involved a mistake of
fact by the officer, not a mistake of law. 

.
Washington App. Nos. 18CA26, 18CA27                                                      16

State v. Cole, 4th Dist. Athens No. 95CA166, 

, *3 (stating in dicta that

“appellant arguably violated this statute when he made his wide left turn in that he failed

to enter the road he was turning onto in the lane just right of center.”) However, of

importance, in a more recent case the First District Court of Appeals determined this

particular statute to be clear and unambiguous. State v. Kirkpatrick, 

, 

 (1st Dist.) (“We disagree with the finding in Stadelmann that R.C.

4511.36(A)(2) is ambiguous. The plain language of R.C. 4511.36(A)(2) does not prohibit

a driver from turning into the outside, right lane, instead of the inside, left lane.”). In

reaching its decision the Kirkpatrick court acknowledged and expressly adopted “[f]ormer

Judge, now Ohio Supreme Court Justice Patrick DeWine[’s]” dissenting opinion in

Stadelmann, supra. Id.

       {¶33} Nonetheless, determining it was bound by its prior reasoning in

Stadelmann, albeit in dicta, that mistakes regarding the application of R.C. 4511.36 were

objectively reasonable, the Kirkpatrick court ultimately held that a mistake by law

enforcement in the enforcement of this statute was an objectively reasonable mistake of

law as contemplated by Heien, and thus it affirmed the trial court’s denial of Kirkpatrick’s

motion to suppress. Id. at ¶ 14. In light of our prior statements in Cole, supra, I believe

we are now constrained to do the same.

       {¶34} Prior to concluding, however, I would note that at least one court has

refused to follow Heien v. North 

 on state law grounds. See Baldwin v.

Estherville, Iowa, N.D. Iowa, Central Division, 

 (2018). The Baldwin

court explained as follows in support of its reasoning:
Washington App. Nos. 18CA26, 18CA27                                                      17


       * * * ‘the mistake-of-law doctrine is broader under the United States

       Constitution than it is under the Iowa Constitution,’ because Iowa does not

       recognize even a reasonable mistake of law as supporting probable cause

       or reasonable suspicion. [State v.] Scheffert, 910 N.W.2d [577,] 585 n.2.

       The Iowa Supreme Court has maintained this distinction even after the

       United States Supreme Court decided in Heien v. North Carolina, [574] U.S.

       [54], 

, 539–40, 

 (2014), that a reasonable

       mistake of law could support reasonable suspicion for a traffic stop.

       Scheffert, 910 N.W.2d at 585 n.2; State v. Coleman, 

, 298

       n.2 (Iowa 2017) (‘Of course, the ruling in [State v.] Tyler [, 

       (2013)] under the Iowa Constitution is unaffected by Heien. Further, the

       approach in Heien would be very difficult to square with our rejection of the

       good-faith exception to the exclusionary rule under article I, section 8 of the

       Iowa Constitution in [State v.]Cline, 617 N.W.2d [277,] 293.).

       {¶35} It does not appear any such precedent has been set by the Supreme

Court of Ohio. In the absence of a distinction in Ohio law similar to the distinction

in Iowa law, I conclude we are bound to follow the dictates of the United States

Supreme Court on this issue. Accordingly, I concur with the opinion of the majority

herein.
Washington App. Nos. 18CA26, 18CA27                                                        18




                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Marietta
Municipal Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules
of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Smith, P.J.: Concurs with Concurring Opinion.
McFarland, J.: Concurs in Judgment and Opinion.


                                           For the Court


                                           BY: ________________________
                                               Michael D. Hess, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.