State v. Barrett

2019 Ohio 4270

Opinion

[Cite as State v. Barrett, 2019-Ohio-4270.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellant Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 19 CA 23 JEFFREY BARRETT

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 18 CR 955

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: October 15, 2019

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

GARY BISHOP BENJAMIN D. KITZLER PROSECUTING ATTORNEY SPAULDING & KITZLER, LLC JOSEPH C. SNYDER 3 North Main Street, Suite 803 ASSISTANT PROSECUTOR Mansfield, Ohio 44902 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 19 CA 23 2

Wise, John, P. J.

{¶1} Appellant State of Ohio appeals the decision of the Court of Common Pleas,

Richland County, granting a motion to suppress evidence filed by Defendant-Appellee

Jeffrey D. Barrett in an OVI case. The relevant facts leading to this appeal are as follows.

{¶2} On October 28, 2018, shortly before 2:00 A.M., Sergeant Coby Holloway of

the Ohio State Highway Patrol was observing traffic while on patrol in his marked cruiser.

At approximately 1:52 A.M., a 2003 Pontiac being driven by Appellee Barrett passed him

in the opposite direction on Trimble Road, Richland County, Ohio. Sergeant Holloway

clocked appellee’s speed at 50 miles per hour in a 35 MPH zone. Tr. at 23. Sergeant

Holloway proceeded to make a traffic stop after appellee made a right-hand turn onto

Cook Road.

{¶3} The trooper approached and found appellee to be the sole occupant of the

Pontiac. Tr. at 28. He also detected an “odor of alcohol” coming from within the vehicle.

Tr. at 34. He further noted that appellee avoided eye contact with him by looking away

and ruffling through some papers from his glove compartment. Tr. at 33-34. This behavior

struck Sergeant Holloway as an indicator of intoxication, based on his training. Tr. at 34-

35.

{¶4} Eventually, appellee turned to face Sergeant Holloway. As they spoke, the

trooper noticed appellee’s “glassy bloodshot eyes” and detected that his speech was

slightly slurred. Tr. at 35. As appellee spoke with him, Sergeant Holloway also detected

that the smell of alcohol was becoming stronger and was specifically coming from

appellee. Tr. at 35-36. When asked how much he had had to drink that night, appellee

said "none." Tr. at 36. When asked about his speed, appellee stated he had been going Richland County, Case No. 19 CA 23 3

45 MPH. Tr. at 37. Appellee then protested that there had been a car in front of him, and

that it that must have been the one that had been speeding. Id.

{¶5} Sergeant Holloway then asked appellee to step out of the vehicle. Tr. at 37-

38. He inquired of appellee where he was coming from. Appellee responded that he had

been at a birthday party. Tr. at 38.

{¶6} The trooper decided to perform field sobriety testing on appellee, including

a horizontal gaze nystagmus (“HGN”) test, further discussed infra. After the testing was

finished, the trooper offered appellee the opportunity to take a portable breath test, which

he declined. Appellee was thereafter placed under arrest and taken to the Mansfield

OSHP Post. Appellee submitted to a breath test at that location.

{¶7} On November 21, 2018, appellee was indicted on one count of operating a

motor vehicle while under the influence (R.C. 4511.19(A)(1)(a)/(G)(1)(d)), a felony of the

fourth degree based on his prior offenses, and operating a vehicle with a prohibited

alcohol concentration (breath) (R.C. 4511.19(A)(1)(d)/(G)(1)(d)), also a felony of the

fourth degree.

{¶8} On December 6, 2018, appellee appeared for arraignment and entered a

plea of not guilty.

{¶9} On February 11, 2019, after obtaining leave from the trial court, appellee

filed a motion to suppress the results of the HGN test administered by Sergeant Holloway

and the BAC test conducted at the Highway Patrol post.

{¶10} On March 18, 2019, a hearing on the motion was conducted. At the hearing,

appellee stipulated that he was limiting his challenge to the claims that the traffic stop was Richland County, Case No. 19 CA 23 4

improper and that there was no probable cause to arrest. Tr. at 5-6. At the conclusion of

the hearing, the court took the matter under advisement.

{¶11} On March 26, 2018, via a judgment entry, the trial court granted appellee’s

motion to suppress.

{¶12} On March 27, 2018, the State of Ohio filed a notice of appeal and Crim.R.

12(K) certification. It herein raises the following sole Assignment of Error:

{¶13} “I. THE TRIAL COURT ERRED IN GRANTING APPELLANT’S [SIC]

MOTION TO SUPPRESS.”1

I.

{¶14} In its sole Assignment of Error, Appellant State of Ohio contends the trial

court erred in granting Appellee Barrett’s motion to suppress the results of his breath test

taken after his arrest. We agree.

Standard of Review

{¶15} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437

1 The State of Ohio, as the appellant herein, has failed to include or attach with its brief a copy of the judgment entry under appeal. See Loc.App.R. 9(A). Richland County, Case No. 19 CA 23 5

N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Curry

(1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d

623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d

726. The United States Supreme Court has held that as a general matter determinations

of reasonable suspicion and probable cause should be reviewed de novo on appeal. See

Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d

911.

Trooper’s Investigation after Stop / Detainment for Field Sobriety Tests

{¶16} A single suspected traffic violation provides reasonable suspicion for an

officer to stop a vehicle. See State v. Panaro, 9th Dist. Medina No. 16CA0067-M, 2018-

Ohio-1005, 108 N.E.3d 1187, ¶ 15 (citations omitted). In the case sub judice, the trial

court determined that the original traffic stop of appellee’s vehicle for suspected speeding

was proper, however, the court also found “that the Trooper lacked sufficient information

from the entirety of the events following the stop, in order to arrest the [appellee] for OVI.”

Judgment Entry, March 26, 2019, at 2. We will therefore proceed to consider the post-

stop events.

{¶17} A request made of a validly detained motorist to perform field sobriety tests

is generally outside the scope of the original stop, and must be separately justified by

other specific and articulable facts showing a reasonable basis for the request. State v.

Albaugh, 5th Dist. Tuscarawas No. 2014 AP 11 0049, 2015-Ohio-3536, ¶ 18, quoting

State v. Anez (2000), 108 Ohio Misc.2d 18, 26–27, 738 N.E.2d 491. Although requiring a

driver to submit to a field sobriety test constitutes a seizure within the meaning of the

Fourth Amendment, courts have generally held that the intrusion on the driver's liberty Richland County, Case No. 19 CA 23 6

resulting from a field sobriety test is minor, and the officer therefore need only have

reasonable suspicion that the driver is under the influence of alcohol in order to conduct

a field sobriety test. See State v. Bright, 5th Dist. Guernsey No. 2009–CA–28, 2010-Ohio-

1111, 2010 WL 1035466, ¶ 17, citing State v. Knox, 2nd Dist. Greene No. 2005–CA–74,

2006-Ohio-3039, 2006 WL 1661628. In reviewing this issue, we apply a “totality of the

circumstances” approach. See, e.g., City of Fairfield v. Lucking, 12th Dist. Butler No.

CA2002–12–303, 2004-Ohio-90, 2004 WL 47400, ¶ 8, citing State v. Freeman (1980), 64

Ohio St.2d 291, 414 N.E.2d 1044.

{¶18} Reasonable suspicion constitutes something less than probable cause.

State v. Logan, 5th Dist. Richland No. 07–CA–56, 2008–Ohio–2969, ¶ 15, citing State v.

Carlson (1995), 102 Ohio App.3d 585, 590. Also, it is well-established that an officer's

reasonable articulable suspicion does not require proof beyond a reasonable doubt that

the defendant's conduct has satisfied the elements of the offense. State v. Willis, 5th Dist.

Licking No. 14 CA 103, 2015–Ohio-3739, ¶ 25, citing Westlake v. Kaplysh, 118 Ohio App

.3d 18, 20, 691 N.E.2d 1074 (8th Dist.1997).

{¶19} In this instance, when Sergeant Holloway approached appellee’s vehicle

(after a clocking of 15 MPH over the speed limit at a time of approximately 2:00 AM) and

asked for license and registration, appellee “began just mainly focusing over on the

passenger side of the vehicle[,] *** kind of going through the glove box ***.” Tr. at 34.

According to the trooper, appellee avoided eye contact and was “trying to use a cover up

technique” by leaning over toward the glove compartment and indiscriminately ruffling

papers. Id. Even at that stage, the trooper was able to detect an odor of alcohol. Tr. at

35. When appellee finally faced him, Sergeant Holloway noticed “glassy bloodshot eyes” Richland County, Case No. 19 CA 23 7

and observed that appellee’s speech was “slightly slurred.” Tr. at 35. The odor of alcohol

became “stronger” at that point as well. Tr. at 36. Appellee denied consuming alcohol that

night, but later stated he had been at a birthday party. Tr. at 36, 37.

{¶20} In State v. Smith, 5th Dist. Licking No. 09–CA–42, 2010-Ohio-1232, we

reiterated that under well-settled Ohio law, “where a non-investigatory stop is initiated and

the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of

intoxication, such as an admission of having consumed alcohol, reasonable suspicion

exists.” Id. at ¶ 34, citing State v. Wells, 2nd Dist. Montgomery No. 20798, 2005-Ohio-

5008 (additional citations omitted). See, also, State v. Beeley, 6th Dist. Lucas No. L–05–

1386, 2006-Ohio-4799, 2006 WL 2640228, ¶ 16; State v. Hall, 5th Dist. No. 2015 CA

00213, 2016-Ohio-5787, 70 N.E.3d 1154, ¶ 24.

{¶21} In sum, in the case sub judice, the record indicates the trooper, making a 2

AM traffic stop, noticed an odor of alcohol from appellee’s vehicle and then from

appellee’s person, and that appellee displayed glassy, bloodshot eyes. Appellee also

slightly slurred his speech, and although he denied consuming alcohol that night, he

stated he had been at a birthday party.2 The trooper also believed appellee was initially

trying to cover up his physical condition by inordinately leaning toward his glove

compartment. We additionally reiterate that appellee had been clocked at 15 MPH over

the speed limit in that area. While this Court has concluded a defendant’s speeding is not

2 We note the trial court accepted that appellee had been speeding and smelled of alcohol, and it further concluded that appellee had “passed the field sobriety tests, had talked coherently, parked his vehicle properly and had no other indications of impairment, except for the officer’s testimony as to the HGN.” Judgment Entry, March 26, 2019, at 2. The court did not elaborate in its entry or at the conclusion of the hearing on the question of appellee’s observed slurred speech. Richland County, Case No. 19 CA 23 8

“conclusive evidence” of impaired driving, the fact of speeding may be combined with

observations of physical manifestations of alcohol consumption. See State v. Eiler, 5th

Dist. Tuscarawas No. 2006AP030019, 2007-Ohio-1076, ¶ 20.

{¶22} We therefore find, upon a de novo review, that the trooper articulated

sufficient reasonable grounds to justify his request to have appellee engage in field

sobriety testing.

Probable Cause to Arrest

{¶23} Our remaining issue is whether there was probable cause to arrest

appellee, which resulted in his breath being tested that night at the patrol post.

{¶24} “It has been repeatedly emphasized that probable cause is a fluid concept

that is based upon a case-by-case evaluation of the totality of the circumstances.” State

v. Todd, 5th Dist. Ashland No. 14 COA 005, 2014-Ohio-4489, ¶ 31, citing State v. Reid,

9th Dist. Lorain No. 12CA010265, 2013–Ohio–4274, ¶ 26 (Belfance, P.J., dissenting)

(internal quotations and additional citations omitted). A police officer has probable cause

for an arrest if the facts and circumstances within his or her knowledge are sufficient to

cause a reasonably prudent person to believe that the defendant has committed the

offense. State v. Cummings, 5th Dist. Stark No. 2005–CA–00295, 2006–Ohio–2431, ¶

15, citing State v. Heston, 29 Ohio St.2d 152, 280 N.E.2d 376 (1972). However, field

sobriety tests are not mandatory for establishing probable cause. See State v. Winn, 7th

Dist. Mahoning No. 00CA229, 2001-Ohio-3465. See, also, State v. Thompson, 5th Dist.

Richland No. 18CA9, 2018-Ohio-5308, ¶ 61.

{¶25} In the case sub judice, Sergeant Holloway did perform the three

standardized field sobriety tests at the scene. On the “walk and turn” test, the trooper Richland County, Case No. 19 CA 23 9

observed one clue. Tr. at 43. On the one-legged stand test, he also observed one clue.

Id. However, on the HGN test, the trooper found the existence of “six out of six” clues. Tr.

at 41. We note that “* * * all three [standardized] field sobriety tests need not be

administered for any one test result, properly administered, to be admissible into evidence

for consideration in determining probable cause for arrest.” State v. DeVault, 6th Dist.

Ottawa No. OT-12-027, 2013-Ohio-2942, ¶ 16, quoting State v. Markin, 10th Dist. Franklin

No. 01AP-1208, 149 Ohio App.3d 274, 2002-Ohio-4326, 776 N.E.2d 1163, ¶ 15

(emphases omitted).

{¶26} As appellee urges in his response, a review of the dash-cam video reveals

appellee interacting coherently with the trooper and maintaining steadiness on his feet

after exiting his vehicle. Absolutely no physical resistance to the trooper or attempt to flee

is seen anywhere on the video. Appellee, without being verbally abusive, did express

being very upset at certain points in the encounter because, among other things, the

trooper’s radar gun readout had been automatically erased before appellee had a chance

to look at it, and because appellee’s car was being impounded despite the proximity of

the stop to his residence. However, this Court has found probable cause to arrest under

circumstances of speeding, glassy eyes, and an odor of alcohol (with the additional fact

of a clear admission to drinking) without even taking HGN results into account. See State

v. Emmons, 5th Dist. Ashland No. 14-COA-016, 2014-Ohio-5842, ¶¶ 25-26.

{¶27} Accordingly, upon review of the totality of the facts and circumstances

presented herein, we find reversible error in the trial court's granting of suppression in

favor of appellee, as probable cause existed for the OVI arrest. Richland County, Case No. 19 CA 23 10

{¶28} The State’s sole Assignment of Error is sustained, and the matter will be

remanded for further proceedings before the trial court.

{¶29} For the reasons stated in the foregoing, the decision of the Court of

Common Pleas, Richland County, is hereby reversed and remanded.

By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.

JWW/d 0918