[Cite as State v. Brugnone, 2016-Ohio-6964.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio/City of Bowling Green Court of Appeals No. WD-15-067
Appellee Trial Court No. 15 TRC 03418
v.
Anthony J. Brugnone, III DECISION AND JUDGMENT
Appellant Decided: September 23, 2016
*****
Matthew L. Reger, Bowling Green Prosecuting Attorney, for appellee.
Andrew R. Mayle, Jeremy S. Ray, and Ronald J. Mayle, for appellant.
JENSEN, P.J.
{¶ 1} Defendant-appellant, Anthony J. Brugnone, III, appeals the October 9, 2015
judgment of the Bowling Green Municipal Court convicting him of operating a motor
vehicle while under the influence of alcohol, and, more specifically, the court’s
September 25, 2015 judgment denying his motion to suppress evidence. For the reasons
that follow, we affirm. I. Background
{¶ 2} At 2:40 a.m. on May 30, 2015, Trooper Ann Malone, of the Ohio State
Highway Patrol, was traveling south on Dunbridge Road in Bowling Green, Ohio, when
she encountered Brugnone’s vehicle stopped in the northbound lane and two pedestrians
walking along either side of it. She activated her lights and turned into the northbound
lane behind Brugnone’s vehicle. The pedestrians—two young women—had already
gotten into the vehicle. Trooper Malone told Brugnone to pull the vehicle off to the side
of the road. She then approached the driver’s side of the vehicle and asked if there was a
problem. Brugnone told her that the women had been drinking, so he picked them up to
take them to the nearby Meijer.
{¶ 3} Trooper Malone smelled alcohol, observed that Brugnone’s eyes were
bloodshot and glassy, and detected that Brugnone’s speech was slurred. She ordered
Brugnone to exit the vehicle and led him to her patrol car. She asked if he had a pocket
knife on him. He told her he did. She retrieved the pocket knife from him, directed him
to get into the front seat of the patrol car, and asked one of the passengers to pop the
trunk of Brugnone’s vehicle. She threw the pocket knife into the trunk and returned to
Brugnone.
{¶ 4} Trooper Malone asked Brugnone if he had been drinking. He initially
denied that he had, but she told him she could smell alcohol on him and he conceded that
he had had two Angry Orchard beers three hours before. She administered the horizontal
gaze nystagmus test, a portable breath test, and field sobriety testing. Based on the
2. results of these tests, she concluded that there was probable cause to believe that he was
under the influence of alcohol.
{¶ 5} Brugnone was charged with operating a vehicle under the influence of
alcohol (“OVI”), a violation of R.C. 4511.19(A)(1)(a), and operating a vehicle with a
prohibited alcohol content, a violation of R.C. 4511.19(A)(1)(d). He moved the trial
court to suppress evidence, arguing that Trooper Malone had no basis to remove him
from his car and to prolong the stop to pursue an OVI investigation. The trial court
conducted a suppression hearing on August 27, 2015, at which Trooper Malone testified.
Footage from the vehicle’s dashboard camera was viewed, and the parties briefed the
motion. On September 25, 2015, the trial court denied Brugnone’s motion. Brugnone
withdrew his previous plea of not guilty, and entered a guilty plea to the OVI charge.
The remaining charge was dismissed. The trial court imposed a 33-day jail sentence, 30
days of which were suspended. Brugnone appealed and he assigns the following error for
our review:
Because the arresting officer did not have a warrant or an
independent basis to prolong Mr. Brugnone’s detention beyond the purpose
of her initial encounter with Brugnone, the trial court erred in not
suppressing the evidence that the trooper gathered as result of her
prolonged warrantless detention of appellant.
This error is reflected in the trial court’s decision and judgment entry
of September 25, 2015. The issue here is that the state to fulfill its burden
of justifying the warrantless prolonged detention. [sic] “Warrantless
3. seizures are presumptively unconstitutional.” State v. Christian, 6th Dist.,
2004 WL 1293253, ¶ 11. “Therefore, the prosecution has the burden of
proving that the warrantless search at issue was justified under one of the
recognized exceptions to the warrant requirement.” Id.
II. Law and Analysis
{¶ 6} Brugnone argues that Trooper Malone had no basis to remove him from his
vehicle, prolong the stop, and pursue an OVI investigation. He insists that the odor of
alcohol could have emanated from anyone in the car. He denies that his speech was
slurred and claims that Trooper Malone’s contention to the contrary is demonstrably
false. He explains that his purportedly bloodshot eyes—which the trooper viewed for
mere seconds—can easily be explained by the late hour. And he maintains that he calmly
followed all instructions, safely pulled to the side of the road when he was asked to, and
had the presence of mind to activate his hazard lights.
{¶ 7} Appellate review of a motion to suppress is a mixed question of law and
fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. On a
motion to suppress, the trial court assumes the role of finder of fact and, as such, is in the
best position to determine witness credibility and resolve factual disputes. State v.
Codeluppi, 139 Ohio St.3d 165, 10 N.E.3d 691, 2014-Ohio-1574, ¶ 7, citing State v.
Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On appeal, we must accept the
trial court’s factual findings as true if supported by competent and credible evidence.
State v. Durnwald, 163 Ohio App.3d 361, 2005-Ohio-4867, 837 N.E.2d 1234, ¶ 28 (6th
Dist.). We then independently determine, without deference to the trial court’s
4. conclusion, whether the facts meet the appropriate legal standard. State v. Jones-
Bateman, 6th Dist. Wood No. WD-11-074, 2013-Ohio-4739, ¶ 9, citing State v. Claytor,
85 Ohio App.3d 623, 626, 620 N.E.2d 906 (4th Dist.1993).
{¶ 8} Trooper Malone testified at the suppression hearing that upon seeing
Brugnone’s vehicle stopped and the two female pedestrians walking alongside the
vehicle, she stopped “to make sure that everybody was okay and to check on them.” She
claimed that she immediately detected “the strong odor of alcohol, the bloodshot, glassy
eyes and the slurred speech coming from the defendant.” After directing Brugnone to sit
in her cruiser, she saw that he held on to her patrol car to keep his balance, and he
ultimately admitted that he had been drinking. She said that the combination of these
factors caused her to conclude that she needed to administer field sobriety testing,
however, she conceded that she had decided to investigate further before asking
Brugnone to exit his vehicle.
{¶ 9} “[W]hen an officer’s objective reasons for prolonging detention in a traffic
stop are unrelated to the purpose of the initial stop, the continued detention must be
predicated on ‘articulable facts giving rise to a suspicion of some illegal activity
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Brugnone, 2016-Ohio-6964.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio/City of Bowling Green Court of Appeals No. WD-15-067
Appellee Trial Court No. 15 TRC 03418
v.
Anthony J. Brugnone, III DECISION AND JUDGMENT
Appellant Decided: September 23, 2016
*****
Matthew L. Reger, Bowling Green Prosecuting Attorney, for appellee.
Andrew R. Mayle, Jeremy S. Ray, and Ronald J. Mayle, for appellant.
JENSEN, P.J.
{¶ 1} Defendant-appellant, Anthony J. Brugnone, III, appeals the October 9, 2015
judgment of the Bowling Green Municipal Court convicting him of operating a motor
vehicle while under the influence of alcohol, and, more specifically, the court’s
September 25, 2015 judgment denying his motion to suppress evidence. For the reasons
that follow, we affirm. I. Background
{¶ 2} At 2:40 a.m. on May 30, 2015, Trooper Ann Malone, of the Ohio State
Highway Patrol, was traveling south on Dunbridge Road in Bowling Green, Ohio, when
she encountered Brugnone’s vehicle stopped in the northbound lane and two pedestrians
walking along either side of it. She activated her lights and turned into the northbound
lane behind Brugnone’s vehicle. The pedestrians—two young women—had already
gotten into the vehicle. Trooper Malone told Brugnone to pull the vehicle off to the side
of the road. She then approached the driver’s side of the vehicle and asked if there was a
problem. Brugnone told her that the women had been drinking, so he picked them up to
take them to the nearby Meijer.
{¶ 3} Trooper Malone smelled alcohol, observed that Brugnone’s eyes were
bloodshot and glassy, and detected that Brugnone’s speech was slurred. She ordered
Brugnone to exit the vehicle and led him to her patrol car. She asked if he had a pocket
knife on him. He told her he did. She retrieved the pocket knife from him, directed him
to get into the front seat of the patrol car, and asked one of the passengers to pop the
trunk of Brugnone’s vehicle. She threw the pocket knife into the trunk and returned to
Brugnone.
{¶ 4} Trooper Malone asked Brugnone if he had been drinking. He initially
denied that he had, but she told him she could smell alcohol on him and he conceded that
he had had two Angry Orchard beers three hours before. She administered the horizontal
gaze nystagmus test, a portable breath test, and field sobriety testing. Based on the
2. results of these tests, she concluded that there was probable cause to believe that he was
under the influence of alcohol.
{¶ 5} Brugnone was charged with operating a vehicle under the influence of
alcohol (“OVI”), a violation of R.C. 4511.19(A)(1)(a), and operating a vehicle with a
prohibited alcohol content, a violation of R.C. 4511.19(A)(1)(d). He moved the trial
court to suppress evidence, arguing that Trooper Malone had no basis to remove him
from his car and to prolong the stop to pursue an OVI investigation. The trial court
conducted a suppression hearing on August 27, 2015, at which Trooper Malone testified.
Footage from the vehicle’s dashboard camera was viewed, and the parties briefed the
motion. On September 25, 2015, the trial court denied Brugnone’s motion. Brugnone
withdrew his previous plea of not guilty, and entered a guilty plea to the OVI charge.
The remaining charge was dismissed. The trial court imposed a 33-day jail sentence, 30
days of which were suspended. Brugnone appealed and he assigns the following error for
our review:
Because the arresting officer did not have a warrant or an
independent basis to prolong Mr. Brugnone’s detention beyond the purpose
of her initial encounter with Brugnone, the trial court erred in not
suppressing the evidence that the trooper gathered as result of her
prolonged warrantless detention of appellant.
This error is reflected in the trial court’s decision and judgment entry
of September 25, 2015. The issue here is that the state to fulfill its burden
of justifying the warrantless prolonged detention. [sic] “Warrantless
3. seizures are presumptively unconstitutional.” State v. Christian, 6th Dist.,
2004 WL 1293253, ¶ 11. “Therefore, the prosecution has the burden of
proving that the warrantless search at issue was justified under one of the
recognized exceptions to the warrant requirement.” Id.
II. Law and Analysis
{¶ 6} Brugnone argues that Trooper Malone had no basis to remove him from his
vehicle, prolong the stop, and pursue an OVI investigation. He insists that the odor of
alcohol could have emanated from anyone in the car. He denies that his speech was
slurred and claims that Trooper Malone’s contention to the contrary is demonstrably
false. He explains that his purportedly bloodshot eyes—which the trooper viewed for
mere seconds—can easily be explained by the late hour. And he maintains that he calmly
followed all instructions, safely pulled to the side of the road when he was asked to, and
had the presence of mind to activate his hazard lights.
{¶ 7} Appellate review of a motion to suppress is a mixed question of law and
fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. On a
motion to suppress, the trial court assumes the role of finder of fact and, as such, is in the
best position to determine witness credibility and resolve factual disputes. State v.
Codeluppi, 139 Ohio St.3d 165, 10 N.E.3d 691, 2014-Ohio-1574, ¶ 7, citing State v.
Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). On appeal, we must accept the
trial court’s factual findings as true if supported by competent and credible evidence.
State v. Durnwald, 163 Ohio App.3d 361, 2005-Ohio-4867, 837 N.E.2d 1234, ¶ 28 (6th
Dist.). We then independently determine, without deference to the trial court’s
4. conclusion, whether the facts meet the appropriate legal standard. State v. Jones-
Bateman, 6th Dist. Wood No. WD-11-074, 2013-Ohio-4739, ¶ 9, citing State v. Claytor,
85 Ohio App.3d 623, 626, 620 N.E.2d 906 (4th Dist.1993).
{¶ 8} Trooper Malone testified at the suppression hearing that upon seeing
Brugnone’s vehicle stopped and the two female pedestrians walking alongside the
vehicle, she stopped “to make sure that everybody was okay and to check on them.” She
claimed that she immediately detected “the strong odor of alcohol, the bloodshot, glassy
eyes and the slurred speech coming from the defendant.” After directing Brugnone to sit
in her cruiser, she saw that he held on to her patrol car to keep his balance, and he
ultimately admitted that he had been drinking. She said that the combination of these
factors caused her to conclude that she needed to administer field sobriety testing,
however, she conceded that she had decided to investigate further before asking
Brugnone to exit his vehicle.
{¶ 9} “[W]hen an officer’s objective reasons for prolonging detention in a traffic
stop are unrelated to the purpose of the initial stop, the continued detention must be
predicated on ‘articulable facts giving rise to a suspicion of some illegal activity
justifying an extension of the detention.’” (Citations omitted.) State v. Mapes, 6th Dist.
Fulton No. F-04-031, 2005-Ohio-3359, ¶ 40. Only reasonable suspicion that a driver is
intoxicated is required to support further investigation. State v. Beeley, 6th Dist. Lucas
No. L-05-1386, 2006-Ohio-4799, ¶ 14. “Reasonable suspicion is ‘* * * something more
than an inchoate or unparticularized suspicion or hunch, but less than the level of
suspicion required for probable cause.’” (Citations omitted.) Id. at ¶ 15.
5. {¶ 10} The Second District has repeatedly noted that whether articulable and
specific facts exist to justify a prolonged detention for investigative purposes is often a
close issue. Id. at ¶ 16, citing State v. Spillers, 2d Dist. Darke No. 1504, 2000 Ohio App.
LEXIS 1151 (Mar. 24, 2000). To that end, where a de minimus traffic violation or
something other than dangerous driving provides the reason for the initial stop, courts
often conclude that the odor of alcohol alone does not provide reasonable suspicion of
driving under the influence. Id., citing Spillers and State v. Dixon, 2d Dist. Greene No.
2000-CA-30, 2000 Ohio App. LEXIS 5661 (Dec. 1, 2000). However, “[a] strong odor of
an alcohol beverage, bloodshot and glassy eyes and slurred speech are classic
observations indicative of insobriety.” (Internal quotations and citations omitted.) State
v. Kuhl, 6th Dist. Ottawa No. OT-07-032, 2008-Ohio-1641, ¶ 17. In Mapes, we found
that reasonable, articulable suspicion existed to detain the defendant where the officer
observed an odor of alcohol, “somewhat slurred” speech, and glassy and bloodshot eyes,
especially when combined with the fact that it was after 2:00 a.m. Id. at ¶ 42. This is
what Trooper Malone claims to have observed during her 2:40 a.m. encounter with
{¶ 11} It is clear from the dash cam recording that Brugnone’s car was stopped in
the northbound lane of a two-lane road with pedestrians nearby. Upon approaching the
vehicle, Trooper Malone pointed her flashlight into the vehicle, thus allowing her to view
Brugnone’s face. She asked him a question, prompting a sigh and a response from
Brugnone. While it may be debated whether or not Brugnone’s speech was “slurred,”
only Trooper Malone can say what she smelled and what she saw. What she described, if
6. believed, provided a sufficient basis for her to pursue an OVI investigation. See Beeley at
¶ 16, citing State v. Marshall, 2d Dist. Clark No. 2001-CA-35, 2001 Ohio App. LEXIS
5934, *5 (Dec. 28, 2001) (recognizing that where the odor of alcohol is “strong,” this
alone is enough to provide an officer with reasonable suspicion of criminal behavior).
The trial court observed Trooper Malone’s testimony and obviously found it credible. As
such, we find that the trial court’s factual conclusions were supported by competent,
credible evidence.
{¶ 12} We, therefore, find Brugnone’s sole assignment of error not well-taken.
III. Conclusion
{¶ 13} We affirm the October 9, 2015 judgment of the Bowling Green Municipal
Court. The costs of this appeal are assessed to Brugnone under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
7.