COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70097, 70098 : CITY OF CLEVELAND : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION BRIAN CARR (70097) : FAYE KATON (70098) : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 22, 1997 CHARACTER OF PROCEEDING: Criminal appeals from Cleveland Municipal Court Case Nos. 95-TRC-23021 and 95-TRC-12397, respectively. JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: CAROLYN WATTS ALLEN, ESQ. DANIEL E. SHIELDS, ESQ. Chief Prosecuting Attorney 2000 Standard Building 1370 Ontario Street REUBEN J. SHEPERD, ESQ. Cleveland, Ohio 44113 Assistant City Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendants-appellants, Brian Carr and Faye Katon, appeal from the trial court's decision to deny defendants' motion to suppress. Defendant Carr pled no contest to charges of driving under the influence, driving while intoxicated, driving while under suspension, seat belt violation, open container, and driving on a sidewalk, and defendant Katon pled no contest to charges of open container and owner lending vehicle for use. On appeal, defendants' sole argument is that the trial court erred in denying their motion to suppress, because the arresting officer did not have a reasonable suspicion that a traffic offense had occurred. For the reasons that follow, we reverse the judgment of the court below. The charges against defendants arose from a stop of their automobile on May 12, 1995. On that night Carr was driving a car owned by Katon. While looking for a parking spot in the entertainment district known as the "Flats," defendant-Carr attempted to pull into a parking lot. After Carr noticed the entrance was chained off, he started to back up. His path was blocked, however, by a police cruiser that had pulled up behind him. At the suppression hearing, the officer testified that he stopped the car because it had been driven on the sidewalk. Defendants argue that the car was not on the sidewalk, merely on the apron of the entrance to the parking lot. At the suppression hearing, the state admitted into evidence, a videotape taken from - 3 - a camera mounted inside the police cruiser. Additionally, the following relevant persons testified. Officer James Simone, the arresting officer, was the first witness to testify. He stated that, on the night in question, he had just issued a parking ticket to another driver when he noticed the defendants' car "attempt to negotiate a U-turn by driving up on the sidewalk." Simone immediately drove behind the vehicle to prevent the driver from backing up. The officer cited the driver, inter alia, for driving on the sidewalk, but not for making an illegal U-turn, because, he explained, the car did not complete the U-turn. Officer Simone described the position of the car as follows: Q. How much of this car would you say was on this sidewalk. A. Probably three quarter's of the vehicle. Q. Okay. And the remaining part that was not on the sidewalk, what part of land would you say it was on? What would you describe? A. The rear bumper was hanging over the curb. Q. So, it would have been actually in the street itself? A. Just hanging over. The car itself is positioned on an angle to the -- running -- I was -- my car was parallel to the curb. His car was angled away from me. * * * I would have never stopped him had he made a turn into the driveway. I would have no reason. I stopped him as he was on the sidewalk. Q. Okay. Now, and did he in fact -- any of the tires of his car, do you believe were they ever on this driveway at all? - 4 - A. I don't think so. I mean, I don't think so. No, they weren't. The driveway was to -- West of where he made his turn. There is a driveway there, but he was East of it. The car -- the only rear end part where I stopped him was on the street. The rest of the car was on the sidewalk. Q. Okay. A. In fact, I instructed his friend later on to move up onto the sidewalk, when they move up next to the car. Q. So, the part of his vehicle -- the point we stopped the tape; some portion of the vehicle is actually on the roadway? A. Just hanging over the curb. Q. One of his tires? A. The rear end. Q. And the rest of the car is on what portion? A. It is on the concrete walk. The rest of the road itself is asphalt. Q. Pedestrian sidewalk? A. The sidewalk, yes. (Tr. 10-20.) On cross-examination, he admitted that the car being on the sidewalk was the only reason for the stop. (Tr. 30.) He also acknowledged that when he pulled behind the car, the reverse lights were on and the car was backing up. Id. Ernest Pope, a sidewalk inspector for the City of Cleveland Division of Sidewalk Engineering and Construction, was a witness on behalf of the defense. He testified as follows: This case, the apron is drive [sic], and apron is 30 feet long. And you have another 39 feet to the end of this property, which all of it belongs to the county. - 5 - Q. Okay. Then, there is another property; is that correct? A. Yes. Q. Okay. Referring back to Defendant's Exhibit number 1; is there a curb along that driveway area? A. No. Q. Okay. Describe for the Court what that is there? What? A. That is an apron. Q. Okay. And could you please describe, in your professional capacity, what an apron is? A. The apron is the part that goes to the street, that -- that meets the street. And the curb is the part that goes from the sidewalk -- I mean -- I'm sorry. The curb is -- the curb is from the sidewalk, back. It is called -- in this case, it is called an integral curb. It is connected to the sidewalk. * * * Q. And that is the driveway leading into the county parking lot? A. Yes. Q. And then it continues on with the sidewalk; that correct? A. Yes. (Tr. 51.) He concluded by stating that, in his professional opinion, the apron is part of the driveway, not part of the sidewalk. While on the stand, Pope was asked to review the videotape. He testified as follows: Q. You see that this car that has pulled over is on a hard concrete surface; don't you, in that video? A. Yes, and it is not actually on the gravel, where this apron is. To me, it looks like he went up in the driveway, because he didn't see if he had jumped a curb, you could have seen it jumping the curb. - 6 - Q. That is not what I asked though; is it? A. I know it is not when [sic] you asked, but I'm just saying that this is a clearing. I didn't see -- didn't look like the car jumped the curb. * * * Q. And could you describe once again where this apron ends, going towards the stop sign? A. The apron ends about -- I'll say about 39, or 40 feet from the stop sign. Q. So sir, in your estimation, was that car on the apron, or the sidewalk? A. To my estimation, from what I could see from the video, it was in the apron. (Tr. 65-66.) The next witness called was Gary Kawamoto who works for the Board of County Commissioner, Division of Parking. His duties include supervision of various parking lots that the county operates. He testified that because of the slope of the driveway, it is hard to tell whether the area was the driveway or the sidewalk. (Tr. 85-86.) Defendant-Carr took the stand in his own behalf. He stated that he was driving north on Elm looking for a place to park when he attempted to enter a parking lot located at the corner of Main and Elm. He described the event in question as follows: "As I proceeded northward on Elm, and attempted to enter the parking lot, I saw a chain. And, so I stopped on the driveway apron and put my car in reverse." (Tr. 91.) Carr stated that he did not go over any bumps or curb nor did he travel down or along the sidewalk. - 7 - Defendant-Katon also testified. She said that she owned the car driven by defendant-Carr but was a passenger in it that night. She confirmed that Carr had turned onto the driveway in order to pull into the parking lot, when they saw a chain blocking the entrance. So Carr put the car in reverse to back out when he noticed a police car behind him. Specifically, Katon testified as follows: A. Upon seeing the chain, Brian put the car in reverse, kind of, to turn -- kind of turned judt [sic] a bit to the left to -- as if to back out, put the car in reverse, and actually did move back just a bit, slammed on the brakes as he was doing that. He said, "There's a policeman behind me" and stopped the car. (Tr. 102.) The trial court denied defendants' motion to suppress, after which defendants filed the instant appeal and assigned the following sole error: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT OVERRULED DEFENDANT-APPELLANTS [SIC] MOTION TO SUPPRESS IN VIOLATION OF THEIR RIGHTS AS GUARANTEED BY THE FOURTH AMENDMENT. It is well established that a police officer may conduct a traffic stop of an individual driving a motor vehicle when the officer has a reasonable suspicion, based on specific and articulable facts, that a criminal violation has occurred. State v. Woods (1993), 86 Ohio App.3d 423, 424-425. The officer is not required to prove the suspect committed an offense beyond a reasonable doubt or even to satisfy the lesser standard of probable cause to believe that defendant violated the law. Moreover, the United States Supreme Court has recently held, unanimously, that the reasonableness of a traffic stop does not - 8 - depend upon the motive of the police officer in making the stop. Whren v. United States (1996), 116 S.Ct. 1769, 1774. See also, Dayton v. Erickson (1996), 76 Ohio St.3d 3. As a result, the existence of a lawful basis for the stop precludes examining the officer's motive for stopping him in this case. When reviewing a trial court's decision on a motion to suppress, we defer to the trial court and accept the lower court's findings of fact if supported by competent credible evidence. State v. Klein (1991), 73 Ohio App.3d 486, 488. However, "[a]ccepting the findings of fact of the trial court as true, an appellate court must then independently determine as a matter of law, without deference to the trial court's conclusion, whether the trial court erred in applying the substantive law to the case." State v. Harris (1994), 98 Ohio App.3d 543, 546. The issue in the case at bar is whether the officer had a reasonable suspicion that the driver committed the offense of driving upon the sidewalk. This offense is defined in the City of Cleveland Ordinance 431.37 as follows: (a) No person shall drive any vehicle, other than a bicycle, upon a sidewalk or sidewalk area except upon a permanent or duly authorized temporary driveway or without first obtaining a permit from the Director of Public Service. (b) No person shall drive a vehicle on a street lawn area or the curb of a street, except upon a permanent or duly authorized temporary driveway or when otherwise lawfully authorized. In the case at bar, the trial court denied the motion to suppress, because it found that, although the car was on the apron, there was a violation of the ordinance prohibiting driving - 9 - on the sidewalk. We agree with the finding of the lower court regarding the position of the stopped car; however, we disagree with the court's legal conclusion that this action of driving on the apron violated the ordinance and thus justiffied the traffic stop. The finding that the car was on the apron of the driveway was supported by competent, credible evidence. The record includes not only the testimony of witnesses, but also a videotape made by a camera located on the dashboard of the arresting officer's car, as well as an exhibit piecing together four photographs of the area. The only witness to explain the terms of the ordinance and the details of the area was a city sidewalk inspector. He testified that (1) the driveway is 1 defined by the end of the curb, (2) the apron is 30 feet wide, (3) the apron is part of the driveway, not part of the sidewalk, 2 and (4) applying his definition of the driveway to the videotape, the car never drove over the curb or onto the sidewalk, but rather was on the apron of the driveway. The photographic exhibit confirms that the apron extends unusually far to the left of the entrance to the parking lot. Finally, the videotape shows that when the car is driven away, it pulls away smoothly, consistent with defendants' testimony that the car did not travel over any curb, because it was on the apron. This 1 Such a large apron, which is more than three car lengths, could easily accommodate a car turned sideways, even a car moving briefly backwards. 2 The City provided no contrary definition or measurement. - 10 - cumulative evidence refutes the officer's testimony that the car was "hanging over the curb." Thus, we accept the trial court's finding that the car was positioned on the apron when it was stopped. However, the trial court went on to observe that the area to the left of the entrance was blocked by a pole and posts and, therefore, the apron area was not entirely within the "drive portion" of the driveway. (Tr. 130-131.) The trial court concluded that the apron upon which the car rested was not in the driveway and, therefore, the ordinance had been violated. We disagree. The ordinance prohibits driving on the sidewalk but makes an exception for being on a driveway. The inspector stated that the apron is part of the driveway. Neither the inspector's definition nor the ordinance itself limits the driveway to a "drive portion." Having found that the car was on the apron of the driveway, the trial court erred by not applying the ordinance exception for driving on the driveway. The arresting officer, therefore, did not have a reasonable, articulable suspicion of a traffic violation sufficient to permit a traffic stop. Accordingly, the trial court erred in denying the motion to suppress. Judgment reversed. - 11 - This cause is reversed. It is, therefore, ordered that appellants recover of appellee their costs herein taxed. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and McMONAGLE, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .