COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72931 CITY OF BAY VILLAGE : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION THEODORE E. PSHOCK : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court, Case No. 96-TRC-11044. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Gary Hotz Bay Village City Prosecutor 24650 Center Ridge Rd., #210 Westlake, Ohio 44145 For Defendant-appellant: Gerald M. Smith, Esq. Smith & Smith Attorneys 110 Moore Road Avon Lake, Ohio 44012 -2- SWEENEY, JAMES D., J.: Defendant-appellant Theodore E. Pshock (d.o.b. September 30, 1965) appeals from the trial court's order denying his pre-trial motion to suppress evidence1. For the reasons adduced below, we affirm. A review of the record on appeal indicates that on November 7, 1996, at approximately 12:45 a.m., appellant was driving his motorcycle along Lake Road in the City of Bay Village. A female passenger was seated on the motorcycle behind the appellant. It was raining at the time. At some point, Patrolman Jay Elish of the Bay Village Police Department began to follow the motorcycle because the officer thought it was odd that someone would be riding a motorcycle in a heavy rain. (R. 5-7.) Shortly after starting to follow the appellant's vehicle, the officer ran the license plate number of the motorcycle through his patrol car's onboard computer. The computer information indicated that the registered owner of the motorcycle, a male, did not have a motorcycle endorsement on his State of Ohio driver's license, and also relayed the physical characteristics of the registered owner. The officer did not really observe the appellant's driving while gathering his computer information, and the only matching physical characteristic between the computer information and the driver was the fact that the driver was a male. (R. 9.) The officer then pulled the motorcycle over based upon the registered owner's lack of a motorcycle 1Plaintiff-appellee City of Bay Village has not filed an appellate brief. -3- endorsement. After being stopped, the appellant was given a field sobriety test and arrested for driving under the influence of alcohol in violation of R.C. 4511.19(A)(1). After being arraigned and pleading not guilty, appellant filed a motion to suppress, which was heard before a magistrate. The trial court denied the motion and also denied a subsequent motion for reconsideration. After reconsideration was denied, appellant withdrew his plea of not guilty and entered a plea of no contest. Appellant was sentenced as follows: $1,000 fine plus court costs, 180 days in jail with 150 days suspended, conditioned on compliance with two years of active probation, and 5 years of driver's license suspension less credit of 260 days. The sentence was stayed pending appeal. The lone assignment of error states: THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S MOTION TO SUPPRESS. In addressing a similar fact pattern as the one at bar, the court in State v. Epling (Medina, 1995), 105 Ohio App.3d 663, 664, stated: The United States Supreme Court established the basic standard for reviewing the propriety of a traffic stop through its holdings in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Delaware v. Prouse(1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. Under that standard, a law enforcement officer may stop a vehicle when the officer has a reasonable suspicion, based on specific and articulable facts, that an occupant is or has been engaged in criminal activity. Reasonable suspicion is something less than probable cause. State v. VanScoder (1994), 92 Ohio App.3d 853, 855, 637 N.E.2d 374, 375-376. -4- In Epling, the police officer who was following the defendant's vehicle, having not recognized the offending vehicle as being around the area before, called in the vehicle's license plate number and learned from his dispatcher that the owner's driver's license was under suspension and also learned the owner's physical description2. Based on this potential traffic violation, the officer performed an investigative stop, and subsequently arrested the driver/owner for driving under a suspended license. As the Epling court noted in upholding the stop, [B]ecause it is reasonable to infer that an automobile's owner is driving it, the officer had reason to suspect that the driver was committing a traffic offense... Id. at 665; also, see, State v. Owens (1991), 75 Ohio App.3d 523; State v. Bates (August 12, 1987), Medina App. No. 1576-1577, unreported; cf. City of Mansfield v. Crose (April 21, 1994), Richland App. No. 93-CA-79-2, unreported, 1994 WL 171487 (computer check showing that the registered owner of a motorcycle did not have a valid motorcycle endorsement is insufficient to justify an investigatory stop in the absence of any reasonable and articulable suspicion that the owner was, in fact, the driver). As in Epling, officer Elish had specific and articulable facts indicating that the driver of the motorcycle was committing a 2There is no reasonable expectation of privacy in a vehicle's license plate which is displayed in plain view as required by law, therefore the Fourth Amendment of the United States Constitution, which protects only those areas in which an individual has a reasonable expectation of privacy from search and seizure, is not implicated. See New York v. Class (1986), 475 U.S. 106, 89 L.Ed.2d 81, 89-90. Accordingly, the officer could properly request computer information relative to the vehicle's license plate. -5- traffic offense in not having the proper endorsement on his driver's license. Also, the computer's description of the owner matched the physical description of the driver in that both persons were males. Finally, the officer could reasonably presume that the driver of the motorcycle was the owner. Thus, the investigative stop of the appellant was justified. Assignment overruled. Judgment affirmed. -6- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Rocky River Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., and, TIMOTHY E. McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 of decision by the .