State v. Gibson

2022 Ohio 3862, 199 N.E.3d 1028

Opinion

[Cite as State v. Gibson, 2022-Ohio-3862.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 21CA011847

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE LAVELL GIBSON COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. 21CR104074

DECISION AND JOURNAL ENTRY

Dated: October 31, 2022

CARR, Judge.

{¶1} Appellant, the State of Ohio, appeals from the decision of the Lorain County Court

of Common Pleas, granting a motion to suppress filed by Appellee, Lavell Gibson. This Court

reverses and remands for further proceedings.

I.

{¶2} While on patrol one evening, Officer Joanna Catalano responded to the intersection

of Lorain Boulevard and Midway Boulevard based on a report of a reckless driver. She spotted

the stopped vehicle at issue obstructing the intersection and pulled behind it to investigate. Gibson,

the driver, was alone inside the vehicle. Officer Catalano observed that he had bloodshot, glossy

eyes and slurred speech. She also detected an odor of alcohol coming from his vehicle and asked

Gibson whether he had been drinking. Although he initially said he had not consumed any alcohol

that evening, Gibson then changed his statement and said he had consumed two drinks a few hours 2

earlier. When Officer Catalano asked Gibson if he would be willing to submit to field sobriety

testing, Gibson agreed.

{¶3} Due to safety concerns and other logistical considerations, Officer Catalano

decided to transport Gibson to the nearby police station to conduct his field sobriety tests. Pursuant

to departmental policy and for her safety, she patted him down and handcuffed him before placing

him in the back of her cruiser and driving him to the station. Meanwhile, a second officer remained

with Gibson’s vehicle and waited for a tow truck to arrive. Gibson failed the field sobriety tests

Officer Catalano administered at the station. He also refused to undergo a chemical test.

{¶4} As a result of the foregoing incident, Gibson was charged with violating R.C.

4511.19(A)(1)(a) (operating a vehicle under the influence of alcohol (“OVI”)) and R.C.

4511.19(A)(2) (OVI with a prior OVI conviction and refusal to submit to a chemical test). He

moved to suppress the evidence against him on the basis that, at the time Officer Catalano arrested

him, she lacked probable cause for his arrest. It was Gibson’s position that Officer Catalano

arrested him when she handcuffed him, placed him in the back of her cruiser, and transported him

to the police station. The State responded in opposition to the motion to suppress, and Gibson

filed a reply. Following a suppression hearing, the trial court granted Gibson’s motion to suppress.

{¶5} The State now appeals from the trial court’s suppression ruling and raises one

assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY GRANTING APPELLEE’S MOTION TO SUPPRESS EVIDENCE.

{¶6} In its sole assignment of error, the State argues that the trial court erred when it

granted Gibson’s motion to suppress. It is the State’s contention that Gibson was not placed under 3

arrest until he refused to submit to a chemical test at the police station. Alternatively, the State

argues that Officer Catalano had probable cause to arrest Gibson when she transported him to the

police station. For the following reasons, this Court sustains the State’s assignment of error.

{¶7} A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual

questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357,

366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if they are

supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion of the trial

court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124

Ohio App.3d 706 (4th Dist.1997).

{¶8} “Encounters with police span a continuum from consensual encounters to

investigatory stops to seizures tantamount to an arrest.” State v. Mason, 9th Dist. Summit No.

27715, 2016-Ohio-7081, ¶ 20. Consensual encounters do not trigger Fourth Amendment

protections, but investigatory detentions require reasonable suspicion and arrests require probable

cause. Id. Because investigatory detentions do not require probable cause, id., they must be

limited in scope and duration. Florida v. Royer, 460 U.S. 491, 500 (1983). If a detention “exceeds

the bounds of an investigatory stop, it may be tantamount to an arrest.” State v. Snyder, 9th Dist.

Medina No. 06CA0018-M, 2006-Ohio-6911, ¶ 13.

{¶9} The question of whether an officer had probable cause to arrest a defendant “is a

fact-intensive inquiry * * *.” State v. Davis, 9th Dist. Summit No. 29273, 2020-Ohio-473, ¶ 19.

“An officer has probable cause to arrest an individual for impaired driving if, ‘at the time of arrest, 4

the officer had sufficient facts derived from a reasonably trustworthy source to cause a prudent

person to believe the suspect was driving under the influence.’” State v. Spees, 9th Dist. Medina

No. 17CA0061-M, 2018-Ohio-2568, ¶ 30, quoting State v. Hopp, 9th Dist. Summit No. 28095,

2016-Ohio-8027, ¶ 8. This determination “‘is made from the totality of the circumstances.’” State

v. White, 9th Dist. Wayne No. 05CA0060, 2006-Ohio-2966, ¶ 24, quoting State v. Shull, 5th Dist.

Fairfield No. 05-CA-30, 2005-Ohio-5953, ¶ 20. “[A]n officer need not administer field-sobriety

tests, nor witness erratic driving in order to have probable cause to arrest a driver for driving under

the influence.” State v. Delong, 9th Dist. Lorain No. 18CA011306, 2018-Ohio-5262, ¶ 15. The

State may “‘rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred

speech, confused appearance) to demonstrate that a person’s physical and mental ability to drive

was impaired.’” State v. Slone, 9th Dist. Medina No. 04CA0103-M, 2005-Ohio-3325, ¶ 9, quoting

State v. Holland, 11th Dist. Portage No. 98-P-0066, 1999 WL 1313665, *5 (Dec. 17, 1999). “The

amount of evidence necessary for probable cause to suspect a crime is being committed is less

evidence than would be necessary to support a conviction of that crime at trial.” State v. McGinty,

9th Dist. Medina No. 08CA0039-M, 2009-Ohio-994, ¶ 11.

{¶10} The trial court made each of the following findings of fact. Around 8:12 p.m.,

Officer Catalano received a dispatch regarding a black, four-door sedan driving recklessly around

the intersection of Lorain Boulevard and Midway Boulevard. She arrived in the area within

minutes of the dispatch and saw a vehicle matching that description. The vehicle was stopped in

front of the stop bar on the road and was obstructing the intersection. After pulling behind the

vehicle and activating her cruiser’s lights, Officer Catalano approached the vehicle on foot to speak

with the driver. She identified Gibson as the driver of the vehicle. 5

{¶11} As Officer Catalano spoke with Gibson, she noted he had bloodshot and glossy

eyes as well as slurred speech. She also detected the odor of alcohol coming from his vehicle and

asked Gibson if he had been drinking. Gibson initially denied that he had been drinking but then

said he had consumed two drinks earlier that evening. When Officer Catalano asked Gibson if he

would submit to field sobriety testing, Gibson agreed to take the tests.

{¶12} Officer Catalano had Gibson exit his vehicle. Because she and Gibson were

standing in the middle of an intersection, Officer Catalano did not feel it was safe to conduct the

field sobriety tests in that location. The trial court found that there were “several parking lots in

the area, including a new parking lot that [was] well-lit at a nearby Get Go,” but that, “for her

safety,” Officer Catalano “believed the best place to conduct the tests was at the police station.”

As a result, Officer Catalano transported Gibson to the Elyria Police Department while a second

officer remained on scene to oversee the towing of his vehicle. Before placing Gibson in the back

of her cruiser to transport him to the police station, Officer Catalano patted him down and placed

him in handcuffs.

{¶13} The trial court found that Officer Catalano’s actions in placing Gibson in the back

of her police cruiser for transport “did not automatically transform [her] investigatory detention

into a formal arrest that require[d] probable cause.” Even so, the court determined that the

investigative detention Officer Catalano conducted lasted longer than was reasonably necessary

for her to confirm or dispel her suspicions. The court found that “the safety concerns related to

the location of the stop did not justify continued detention in the back of [her] cruiser to allow

[her] to handcuff Gibson, make a decision to tow his vehicle, and transport him all the way to the

police department when conditions to perform the [field sobriety] test were not necessarily unsafe

though not preferred.” The court found that Gibson was under arrest “prior to [] arriving at the 6

Elyria Police Department” and, at that time, Officer Catalano lacked probable cause to arrest.

Consequently, the trial court granted Gibson’s motion to suppress.

{¶14} The State argues that the trial court erred when it concluded that Gibson’s arrest

occurred before he and Officer Catalano arrived at the police station. According to the State,

Officer Catalano lacked the intent to arrest Gibson at that time. Further, the State challenges the

trial court’s factual finding that parking lots near the scene of the stop “were not necessarily

unsafe[.]” It is the State’s position that Gibson remained under investigative detention until he

refused a chemical test at the police station. Alternatively, the State argues that Officer Catalano

possessed probable cause to arrest Gibson at the scene based on her observations and the totality

of the circumstances.

{¶15} Because this Court need only accept the trial court’s factual findings as true if they

are based on competent, credible evidence, we begin by outlining the evidence introduced at the

suppression hearing. See Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8. Officer Catalano

was the only witness who testified at that hearing and offered the following testimony.

{¶16} At 8:12 p.m., Officer Catalano received a dispatch about a black, four-door sedan

driving recklessly around the area of Lorain Boulevard and Midway Boulevard. It only took her

a few minutes to arrive in the area and, as she drove, she received updated information from the

dispatcher. She learned that the vehicle had stopped at the intersection of Lorain Boulevard and

Midway Boulevard. Upon her arrival, she spotted the vehicle and pulled behind it. Officer

Catalano testified that the vehicle was stopped in one of two left-turn lanes and was obstructing

the intersection because it had stopped past the stop bar. Although the traffic light was changing,

Office Catalano stated, the vehicle remained stationary. Once she activated her cruiser’s overhead

lights, Officer Catalano went to speak with the vehicle’s driver. 7

{¶17} Officer Catalano identified Gibson as the vehicle’s driver. She testified that, when

she spoke with Gibson, his eyes appeared to be bloodshot and glossy. Gibson’s speech was also

“very slurred[,]” and Officer Catalano detected an odor of alcohol coming from his vehicle. When

Officer Catalano asked Gibson whether he had had anything to drink, he initially said no. He then

changed his statement and said he had consumed two drinks earlier that evening. At that point,

Officer Catalano asked Gibson whether he would be willing to undergo field sobriety testing, and

Gibson agreed to perform the tests.

{¶18} Officer Catalano testified that a second officer arrived on scene during her

exchange with Gibson, and the two discussed the situation. She testified that the stop occurred in

the middle of the intersection, so it was a “very dangerous place” to be and not an appropriate

location for the field sobriety tests she needed to administer. Although there were some

surrounding businesses and stores, Officer Catalano and her fellow officer decided that she

(Officer Catalano) should transport Gibson to the nearby police station to administer the tests.

Officer Catalano testified that their decision to transport Gibson to the station was based on several

factors. First, the transport to the station would ensure that Officer Catalano was not alone with

Gibson when she conducted the tests. Second, Officer Catalano knew the police station would

offer a flat, well-lit surface for the field sobriety tests. Third, the police station was “less than five

minutes away.”

{¶19} Officer Catalano testified that she patted down and handcuffed Gibson before

placing him in her cruiser and driving him to the police station. She stated that she performed both

actions to comply with departmental policy and to ensure her safety. Regarding Gibson’s vehicle,

Officer Catalano testified that a decision was made to tow it from the scene because Gibson “was 8

in no state to drive[,]” no one else was available to retrieve it for him, and the vehicle could not

remain sitting in the intersection.

{¶20} Although the State challenges one of the trial court’s factual findings (i.e., that

nearby parking lots “were not necessarily unsafe”), that finding only relates to the State’s

investigatory detention argument. See Royer, 460 U.S. at 500 (1983) (noting that investigatory

detentions must employ “the least intrusive means reasonably available”). The State has not

challenged any of the trial court’s other factual findings, and the record supports the conclusion

that those findings are based on competent, credible evidence. See Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, at ¶ 8. The State has included as an alternative argument that Officer Catalano

had probable cause to arrest Gibson at the scene. Because this appeal may be resolved upon that

alternative argument, this Court need not determine whether the trial court erred when it found that

nearby parking lots “were not necessarily unsafe[.]”

{¶21} Assuming without deciding that Officer Catalano arrested Gibson before

transporting him to the police station, the record supports the conclusion that the arrest was based

on probable cause. The Ohio Supreme Court has found that erratic or reckless driving, when

coupled with other factors such as bloodshot eyes, the smell of alcohol, and an admission to

drinking, amounts to probable cause for an OVI arrest even where no field sobriety tests have been

administered. State v. Homan, 89 Ohio St.3d 421, 427 (2000). Officer Catalano responded to the

scene based on a report of reckless driving and, when she arrived, she found Gibson’s vehicle

blocking the intersection. She observed that Gibson had bloodshot and glossy eyes as well as

“very slurred” speech. See State v. Willard, 9th Dist. Medina No. 04CA0045-M, 2005-Ohio-1627,

¶ 29. She also detected an obvious odor of alcohol coming from his vehicle, and Gibson gave her

inconsistent statements about whether he had consumed any alcohol that evening. See State v. 9

Filip, 9th Dist. Medina No. 16CA0049-M, 2017-Ohio-5622, ¶ 19. “Even if one or more of the

foregoing factors, standing alone, would have been insufficient to establish probable cause, a

probable cause analysis requires a court to consider the totality of the circumstances.” State v.

McQuistan, 9th Dist. Medina No. 17CA0007-M, 2018-Ohio-539, ¶ 15. Based on the totality of

the circumstances herein, we must conclude that Officer Catalano had probable cause to suspect

Gibson was driving while impaired. See Homan at 427; Slone, 2005-Ohio-3325, at ¶ 9, quoting

Holland, 1999 WL 1313665, at *5. Compare State v. Hopp, 9th Dist. Summit No. 28095, 2016-

Ohio-8027, ¶ 11 (concluding that probable cause did not exist where there was no indication of

erratic driving and defendant’s speech was only slightly slurred). The trial court, therefore, erred

when it reached a contrary conclusion and granted Gibson’s motion to suppress. The State’s sole

assignment of error is sustained on that basis.

III.

{¶22} The State’s sole assignment of error is sustained. The judgment of the Lorain

County Court of Common Pleas is reversed, and the cause is remanded for further proceedings

consistent with the foregoing opinion.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27. 10

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

TEODOSIO, P. J. SUTTON, J. CONCUR.

APPEARANCES:

J.D. TOMLINSON, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting Attorney, for Appellant.

DOUGLAS W. MERRILL, Attorney at Law, for Appellee.