[Cite as State v. Cox, 2014-Ohio-5619.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2014-P-0015 - vs - :
PATRICK D. COX, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Municipal Court, Kent Division, Case No. 2013 TRC 13233R.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Rhys Brendan Cartwright-Jones, 42 North Phelps Street, Youngstown, OH 44503 (For Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Patrick D. Cox appeals from the judgment entry of the Portage County
Municipal Court, Kent Division, denying his motion to suppress in a drunken driving
case. He contends the arresting officer lacked reasonable suspicion to administer field
sobriety tests. Finding no error, we affirm.
{¶2} At 1:26 a.m., Saturday, September 29, 2013, Sgt. Brian M. Vail of the
Ohio State Highway Patrol was parked at the Rootstown Administration Building on St. Rte. 44, when he observed a Volkswagen Jetta heading north. The speed limit at that
point is 40 miles per hour: the sergeant estimated the car was travelling at 48 miles per
hour. He turned on his speed laser, which revealed the car’s actual speed was 50 miles
per hour. Sgt. Vail activated his lights, and pulled the car over in a nearby Giant Eagle
parking lot.
{¶3} Mr. Cox was the driver of the speeding car. When Sgt. Vail approached,
Mr. Cox rolled down his window. The sergeant noticed a strong odor of alcohol
emanating from the car, and that Mr. Cox’s eyes were glassy. However, Mr. Cox had
parked perfectly; had no trouble obtaining and turning over his license, insurance, and
registration; and was polite and cooperative. He denied drinking that evening.
Evidently, his girlfriend was also in the car.
{¶4} Sgt. Vail asked Mr. Cox to step out of the car. When he did so, the
sergeant noticed that Mr. Cox smelled strongly of alcohol, himself. Field sobriety tests
were administered, which Mr. Cox failed. Following his arrest, he agreed to a
breathalyzer test, which he also failed.
{¶5} Mr. Cox was charged with driving a vehicle under the influence of alcohol
in violation of R.C. 4511.19(A)(1)(a), and speeding in violation of R.C. 4511.21(A). He
moved to suppress. Hearing went forward February 26, 2014. February 28, 2014, the
trial court filed its judgment entry denying the motion. April 4, 2014, Mr. Cox pled no
contest to the OVI charge. The trial court sentenced him to 180 days in jail (177
suspended); court costs and a fine of $1075 ($700 suspended); and, suspended his
driver’s license for six months.
2 {¶6} This appeal timely ensued. The sole assignment of error reads: “The
Court erred in denying Patrick Cox’s motion to suppress.”
{¶7} In Kirtland Hills v. Strogin, 11th Dist. Lake No. 2005-L-073, 2006-Ohio-
1450, ¶11-16, this court stated:
{¶8} “At a suppression hearing, the trial court, acting in its role as the trier of
fact, is in the best position to resolve questions of fact and evaluate the credibility of
witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, * * *. When reviewing a trial
court’s decision on a motion to suppress, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence. State v.
Guysinger (1993), 86 Ohio App.3d 592, 594, * * *; State v. Frazier (Oct. 6, 2000), 11th
Dist. No. 99-T-0109, 2000 Ohio App. LEXIS 4660, at 5. Then, an appellate court must
independently review whether the trial court applied the correct legal standard. State v.
Anderson (1995), 100 Ohio App.3d 688, 691, * * *.
{¶9} “‘The Fourth Amendment of the United States Constitution, as well as
Article One, Section Fourteen, of the Ohio Constitution, guarantees “the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.” When a police officer stops an
automobile and detains its occupants, a “seizure” is committed within the meaning of
the Fourth and Fourteenth Amendments of the United States Constitution.’ State v.
Wojtaszek, 11th Dist. No. 2002-L-016, 2003-Ohio-2105, at ¶15, citing Delaware v.
Prouse (1979), 440 U.S. 648, * * *, paragraph two of the syllabus.
3 {¶10} “‘It is well established that an officer may stop a motorist upon his or her
observation that the vehicle in question violated a traffic law.’ State v. Boczar, 11th Dist.
No. 2004-A-0063, 2005-Ohio-6910, at ¶11, citing Dayton v. Erickson (1996), 76 Ohio
St.3d 3, 11-12, * * *. Moreover, this court has repeatedly held that when a police officer
witnesses a minor traffic violation, he or she is warranted in making a stop to issue a
citation. Village of Waite Hill v. Popovich, 11th Dist. No. 2001-L-227, 2003-Ohio-1587,
at ¶14. However, because any further detention is a greater invasion into an
individual’s liberty interests, an officer may not request a motorist to perform field
sobriety tests unless the request is separately justified by a reasonable suspicion based
upon articulable facts that the motorist is intoxicated. State v. Evans (1998), 127 Ohio
App.3d 56, 62, * * *, citing State v. Yemma (Aug. 9, 1996), 11th Dist. No. 95-P-0156,
1996 Ohio App. LEXIS 3361. A court will analyze the reasonableness of the request
based on the totality of the circumstances, viewed through the eyes of a reasonable and
prudent police officer on the scene who must react to events as they unfold. Popovich,
supra, at ¶11; State v. Dye, 11th Dist. No. 2001-P-0140, 2002-Ohio-7158, at ¶18.
{¶11} “In Evans, supra, at 63, we noted a host of factors collected from various
cases which may be considered by a court to determine whether an officer had
reasonable suspicion to administer field sobriety tests under the totality of the
circumstances:
{¶12} “‘(1) the time of day of the stop (Friday or Saturday night as opposed to,
e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling
alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of
coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a
4 cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s
eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak
(slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the
interior of the car, or, more significantly, on the suspect’s person or breath; (8) the
intensity of that odor, as described by the officer (“very strong,(”) “strong,” “moderate,”
“slight,” etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any
actions by the suspect after the stop that might indicate a lack of coordination (dropping
keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of
alcohol consumption, the number of drinks had, and the amount of time in which they
were consumed, if given.
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[Cite as State v. Cox, 2014-Ohio-5619.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2014-P-0015 - vs - :
PATRICK D. COX, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Municipal Court, Kent Division, Case No. 2013 TRC 13233R.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Rhys Brendan Cartwright-Jones, 42 North Phelps Street, Youngstown, OH 44503 (For Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Patrick D. Cox appeals from the judgment entry of the Portage County
Municipal Court, Kent Division, denying his motion to suppress in a drunken driving
case. He contends the arresting officer lacked reasonable suspicion to administer field
sobriety tests. Finding no error, we affirm.
{¶2} At 1:26 a.m., Saturday, September 29, 2013, Sgt. Brian M. Vail of the
Ohio State Highway Patrol was parked at the Rootstown Administration Building on St. Rte. 44, when he observed a Volkswagen Jetta heading north. The speed limit at that
point is 40 miles per hour: the sergeant estimated the car was travelling at 48 miles per
hour. He turned on his speed laser, which revealed the car’s actual speed was 50 miles
per hour. Sgt. Vail activated his lights, and pulled the car over in a nearby Giant Eagle
parking lot.
{¶3} Mr. Cox was the driver of the speeding car. When Sgt. Vail approached,
Mr. Cox rolled down his window. The sergeant noticed a strong odor of alcohol
emanating from the car, and that Mr. Cox’s eyes were glassy. However, Mr. Cox had
parked perfectly; had no trouble obtaining and turning over his license, insurance, and
registration; and was polite and cooperative. He denied drinking that evening.
Evidently, his girlfriend was also in the car.
{¶4} Sgt. Vail asked Mr. Cox to step out of the car. When he did so, the
sergeant noticed that Mr. Cox smelled strongly of alcohol, himself. Field sobriety tests
were administered, which Mr. Cox failed. Following his arrest, he agreed to a
breathalyzer test, which he also failed.
{¶5} Mr. Cox was charged with driving a vehicle under the influence of alcohol
in violation of R.C. 4511.19(A)(1)(a), and speeding in violation of R.C. 4511.21(A). He
moved to suppress. Hearing went forward February 26, 2014. February 28, 2014, the
trial court filed its judgment entry denying the motion. April 4, 2014, Mr. Cox pled no
contest to the OVI charge. The trial court sentenced him to 180 days in jail (177
suspended); court costs and a fine of $1075 ($700 suspended); and, suspended his
driver’s license for six months.
2 {¶6} This appeal timely ensued. The sole assignment of error reads: “The
Court erred in denying Patrick Cox’s motion to suppress.”
{¶7} In Kirtland Hills v. Strogin, 11th Dist. Lake No. 2005-L-073, 2006-Ohio-
1450, ¶11-16, this court stated:
{¶8} “At a suppression hearing, the trial court, acting in its role as the trier of
fact, is in the best position to resolve questions of fact and evaluate the credibility of
witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, * * *. When reviewing a trial
court’s decision on a motion to suppress, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence. State v.
Guysinger (1993), 86 Ohio App.3d 592, 594, * * *; State v. Frazier (Oct. 6, 2000), 11th
Dist. No. 99-T-0109, 2000 Ohio App. LEXIS 4660, at 5. Then, an appellate court must
independently review whether the trial court applied the correct legal standard. State v.
Anderson (1995), 100 Ohio App.3d 688, 691, * * *.
{¶9} “‘The Fourth Amendment of the United States Constitution, as well as
Article One, Section Fourteen, of the Ohio Constitution, guarantees “the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.” When a police officer stops an
automobile and detains its occupants, a “seizure” is committed within the meaning of
the Fourth and Fourteenth Amendments of the United States Constitution.’ State v.
Wojtaszek, 11th Dist. No. 2002-L-016, 2003-Ohio-2105, at ¶15, citing Delaware v.
Prouse (1979), 440 U.S. 648, * * *, paragraph two of the syllabus.
3 {¶10} “‘It is well established that an officer may stop a motorist upon his or her
observation that the vehicle in question violated a traffic law.’ State v. Boczar, 11th Dist.
No. 2004-A-0063, 2005-Ohio-6910, at ¶11, citing Dayton v. Erickson (1996), 76 Ohio
St.3d 3, 11-12, * * *. Moreover, this court has repeatedly held that when a police officer
witnesses a minor traffic violation, he or she is warranted in making a stop to issue a
citation. Village of Waite Hill v. Popovich, 11th Dist. No. 2001-L-227, 2003-Ohio-1587,
at ¶14. However, because any further detention is a greater invasion into an
individual’s liberty interests, an officer may not request a motorist to perform field
sobriety tests unless the request is separately justified by a reasonable suspicion based
upon articulable facts that the motorist is intoxicated. State v. Evans (1998), 127 Ohio
App.3d 56, 62, * * *, citing State v. Yemma (Aug. 9, 1996), 11th Dist. No. 95-P-0156,
1996 Ohio App. LEXIS 3361. A court will analyze the reasonableness of the request
based on the totality of the circumstances, viewed through the eyes of a reasonable and
prudent police officer on the scene who must react to events as they unfold. Popovich,
supra, at ¶11; State v. Dye, 11th Dist. No. 2001-P-0140, 2002-Ohio-7158, at ¶18.
{¶11} “In Evans, supra, at 63, we noted a host of factors collected from various
cases which may be considered by a court to determine whether an officer had
reasonable suspicion to administer field sobriety tests under the totality of the
circumstances:
{¶12} “‘(1) the time of day of the stop (Friday or Saturday night as opposed to,
e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling
alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of
coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a
4 cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s
eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak
(slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the
interior of the car, or, more significantly, on the suspect’s person or breath; (8) the
intensity of that odor, as described by the officer (“very strong,(”) “strong,” “moderate,”
“slight,” etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any
actions by the suspect after the stop that might indicate a lack of coordination (dropping
keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of
alcohol consumption, the number of drinks had, and the amount of time in which they
were consumed, if given. All of these factors, together with the officer’s previous
experience in dealing with drunken drivers, may be taken into account by a reviewing
court in determining whether the officer acted reasonably.’ Id. at fn. 2.
{¶13} “We point out that the foregoing factors are assistive guides in the
determination of reasonable suspicion. Accordingly, no one factor is dispositive and,
moreover, the list does not represent an exhaustive account of factors which can or
should be considered. Boczar, supra, at ¶14. Generally, courts approve a request to
submit to field sobriety testing only where the officer based his or her decision on a
number of these factors. Evans, supra, at 63.” (Parallel citations omitted.)
{¶14} In this case, four Evans factors were present. Mr. Cox was speeding. It
was 1:26 a.m. on a Saturday. His eyes were glassy. Most significant, there was a
strong smell of alcohol emanating from his car; and, when he stepped out, that strong
smell continued to emanate from him. Courts of appeals have upheld the granting of
suppression motions when the odor of alcohol coming from a car did not cling to a driver
5 when the driver exited the car. State v. Swartz, 2d Dist. Miami No. 2008 CA 31, 2009-
Ohio-902, ¶15. In this case, the odor remained.
{¶15} Sgt. Vail had a reasonable suspicion based on articulable facts that Mr.
Cox might be inebriated. Therefore, he could administer field sobriety tests. The
assignment of error is without merit.
{¶16} The judgment of the Portage County Municipal Court, Kent Division, is
affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.
concur.