{"id":1592,"date":"2007-12-09T07:22:43","date_gmt":"2007-12-08T13:22:42","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-12-08T13:22:42","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1592","title":{"rendered":"Motion to reconsider suppression motion had to be heard when tape of stop was later produced which contradicted officer’s hearing testimony"},"content":{"rendered":"

Defendant filed a motion to suppress a traffic stop, and the officers testified there was no video of the stop. Two months later, the prosecutor gave defense counsel a tape of the stop. A motion to reopen the motion to suppress was denied, and the trial court proceeded to a bench trial, and the tape was played showing that the cops essentially lied about the stop. The fact the trial court viewed the tape at trial was insufficient; the motion for reconsideration should have been heard, and the case is remanded for hearing. State v. Lashuay<\/a>, 2007 Ohio 6365, 2007 Ohio App. LEXIS 5578 (6th Dist. November 30, 2007):<\/p>\n

[*P20] The videotape directly contradicts White’s and Fairbank’s testimony at the suppression hearing. The trial court, when confronted with the existence of new evidence bearing directly on the propriety of the stop, should not have, as it indicated in its order, merely reviewed the parties’ filings on the motion to reopen the hearing. Aside from its own statement, the record is silent as to whether the trial court viewed the videotape before twice denying the motion to reopen the suppression hearing. Assuming, arguendo, that the trial court did view the videotape and found it to have no effect, this would have de facto been a reconsideration of the motion to suppress; in that case, the hearing should have been reopened to allow the parties to argue afresh in light of the new evidence considered. Contrarily, assuming arguendo that the trial court did not view the tape before twice denying the motion, the trial court erred in choosing to resolve factual conflicts raised by the new evidence through reference to the parties’ motions alone. Therefore, whether or not the trial court viewed the videotape before ruling on the motion to reopen, it abused its discretion in refusing to reopen the suppression hearing to consider the new evidence’s effect. Failure to consider the new evidence denied appellant a full and fair opportunity to present his case on the seizure’s validity. Pilot<\/em>, supra; State v. Boggs<\/em> (Mar. 20, 1995), 12th Dist. No. CA94-08-067, 1995 Ohio App. LEXIS 1029. Appellant’s second assignment of error is well-taken.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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