Lead Opinion
{¶ 2} In October 2006, Bailey was arrested and cited for one count of оperating a vehicle while under the influence of alcohol in violation of R.C.
{¶ 3} In November 2006, Bailey moved to suppress evidence obtainеd from the stop, arguing that the arresting officer observed no traffic violation and had no probable cause to conduct a stop; that he passed the field sobriety tests; and, that the breath alcohol test was not conducted properly.
{¶ 4} In January 2007, the trial court held a hearing on the motion to suppress evidence, during which the following testimony was heard. *3
{¶ 5} Trooper Merrill J. Thompson of the State Highway Patrol testified that on October 14, 2006, he received a dispatch "that Bellefontaine PD had received a call of a pоssible drunk driver. He had just left the city. He was traveling at a high rate of speed in the city. They advised that a Bellefontaine officer was behind this vehicle on 33; however, [the Bellefontaine officer was] out of the city and they were traveling approximately 80 miles an hour on 33" (hearing tr., p. 5); that the Bellefontaine police "did not make — want to make a stop because they were out of their jurisdiction on 33" (hearing tr., p. 43); that the dispatcher gave him the suspect vehicle's description and license plate number; that he encountered thе vehicle described; that he did not observe the driver, Bailey, go left of center, weave, or go off the right side of the roadway; that he observed Bailey make a proper turn with a proper signal; that Bailey "[continued to a stop sign where he had made a complete stop and proceeded to turn right; however, he didn't signal or use his right-hand turn signal when he had made the turn" (hearing tr., p. 6); that, besides failing to signal, Bailey had no other apparent difficulty in making the turn; that, after Bailey failed to signal while turning, he activated his lights and signaled for Bailey to stop; and, that Bailey properly pulled over and properly parked.
{¶ 6} Further, Trooper Thompson testified that, when he approached the vehicle, he smelled an odor of alcohol from the vehicle; that he removed Bailey from the vehicle to see if the odor came from him or his passenger; that Bailey appeared "a little uneasy on his feet walking back to [the police] car" (hearing tr., p. 8); that "once [Bailey] was in *4 the [police] car [he] could still smell the odor of alcohol coming from his рerson when he spoke" (hearing tr., p. 8); that, upon inquiry, Bailey told him he had not had any alcohol to drink; that Bailey's eyes were a little bloodshot and glassy; that he administered the horizontal gaze nystagmus test (hereinafter referred to as "HGN test") on Bailey; that there are a total of six clues indicating that an individual is under the influence of alcohol on the HGN test; that Bailey exhibited all six clues on the HGN test; that he administered the "one-leg stand" test on Bailey; that there are six total clues indicating that an individual is under the influence of alcohol on the "one-leg stand" test; that Bailey put his foot down three times during the "one-leg stand" test, which is a clue; that he administered the "walk and turn" test on Bailey; that Bailey stepped off the line once before the turn and once after the turn; and, that Bailey skipped a number while counting during the "walk and turn" test.
{¶ 7} After direct-examination of Trooper Thompson, the court observed a videotape of the stop.
{¶ 8} On cross-examination, Trooper Thompson testified that he created a written report with his notes concerning the arrest on the same day as thе arrest; that, while he and Bailey were walking to his car, he "smelled a tiny odor" on Bailey's breath (hearing tr., p. 20); that Bailey at no time had a problem entering vehicles or exiting vehicles; that, in the police manual, an individual is considered as having failed a sobriety test if he displays two or more clues on the test; that the report he filled out shows that Bailey *5 displayed only one clue in the "walk and turn" test; that the line Bailey stepped off while walking "[w]as an imaginary line" (hearing tr., p. 25); that the report he filled out shows that Bailey displayed only one clue in thе "one-leg stand" test; that he did not check Bailey's eyes for proper tracking and equal pupil size prior to conducting the HGN test; that the police academy advises that the HGN test should be conducted for a minimum of sixty-eight seconds; that the video shows that he conducted the HGN test on Bailey for less than fifty-two seconds; that Bailey had the ability to understand and follow his directions; that he did not observe any impairment in Bailey's ability to communicate or speak; that Bailey's clothes looked orderly and his face was not flushed; that he did not statе in his report that Bailey's eyes were glassy and bloodshot; that Bailey was cooperative, polite, and did not have mood changes; and, that Bailey did not fail either the "walk the line" or the "one-leg stand" test.
{¶ 9} Paul Butkovich, a private citizen, testified that, on October 14, 2006, he observed Bailey driving erratically1; that he called 911 to report Bailey and was eventually transferred to the Bellefontaine Police Department; that he followed Bailey's truck until it went into a restaurant drive-through, and, at that point, the Bellefontaine Police Deрartment contacted him and he pointed out Bailey's vehicle to them; that he gave his name and telephone number to the police; that he gave Bailey's license plate *6 number to the police; and, that he saw the Bellefontaine police begin to follow Bailey when he exited the restaurant.
{¶ 10} Subsequently, the trial court granted Bailey's motion to suppress, stating, in pertinent part:
Trooper Merrill Thompson of the Ohio State Highway Patrol testified that he received a notice to be on the lookout for a suspected drunk driver on U.S. Route 33 in Logan County. The call originated from a private citizen who observed the vehicle being driven erratically in the city of Bellefontaine. The Bellefontaine Police Department fell in behind the vehicle but abandoned its observation of the vehicle when it entered U.S. Route 33. The court assumes that the Bellefontaine Police Department saw no violations of law, but nonetheless advised the Highway Patrol to be on the lookout for the vehicle traveling westbound on U.S. Route 33.
Trooper Thompson fell in behind the vehicle, being operated by this defendant, just east of the Village of Russell's Point. Trooper Thompson saw no erratic driving on behalf of the defendant, but did stop the defendant's vehicle when he failed to signal a right-hand turn from a stop sign in a residential area.
After escorting the defendant back to his patrol car, the officer testified that he could detect an odor of alcohol about the defendant's person. He also testified that he noticed the defendant's eyes were a little bloodshot and glassy, although counsel for defendant pointed out on cross examination that this observation was not noted any place in the officer's written report or Alcohol Influence Report Form.
The officer testified as to the defendant's performance on three standardized field sobriety tests. On the horizontal gaze nystagmus test the officer testified that he observed all six clues of impairment. He candidly testified, however, that the defendant passed the one-leg stand test and walk and turn test.
The court had the benefit of observing a video tape of the defendant's arrest. This included his operation on U.S. Route 33; his turn into a residential area, together with several other turns and stops; his exit from his vehicle and walk back to the patrol car; and his performance on the one-leg stand test and walk and turn test. The court found nothing in those observations which would have given a *7 reasonable person cause to be concerned about the defendant's ability to safely operate a motor vehicle.
It is well settled in Ohio that the mere commission of a minor traffic violation combined with an odor of alcohol does not constitute probable cause to arrest for operating under the influence of alcohol.
This case, however, adds the additional element of the defendant's failure of the horizontal gaze nystagmus test. While giving some weight to that testimony, the court cannot ignore the fact that the defendant was able to satisfactorily complete the two other sobriety tests that he was requested to take. If the court is asked to consider as scientifically reliable the one-leg stand test and walk and turn test in establishing probable cause to arrest, the court must also be able to rely upon those tests to establish the lack of probable cause.
Based upon the totality of the circumstances, the court is satisfied that the arresting officer had reasonable grounds to stop the defendant's vehicle, but that he lacked probable cause thereafter to arrest the defendant for the charge of operating under the influence of alcohol.
Ironically, after Trooper Thompson testified the State called Paul Butkovich, the private citizen who originally observed the defendant's operation within the city of Bellefontaine. The court rules, however, that it would not be appropriate to consider Mr. Butkovich's observations in determining whether or not Trooper Thompson had probable cause to arrest the defendant. Trooper Thompson had to make his determination of probable cause based upon the information which he had at hand on the afternoon of defendant's arrest (It should be noted that the Trooper was not made aware, even by way of hearsay, as to what Mr. Butkovich had previously seen). The officer cannot be allowed to bolster his determination as to probable cause based upon after-acquired evidence.
(Jan. 2007 Judgment Entry, pp. 1-4).
{¶ 11} It is from this judgment that the State appeals, presenting the following assignments of error for our review. *8
THE COURT ERRED, TO APPELLANT'S PREJUDICE, WHEN IT GRANTED APPELLEE'S MOTION TO SUPPRESS WHEN THE TOTALITY OF THE CIRCUMSTANCES AT THE SCENE GAVE THE LAW ENFORCEMENT OFFICER PROBABLE CAUSE TO BELIEVE THAT A CRIME HAD BEEN COMMITTED.
THE COURT ERRED, TO APPELLANT'S PREJUDICE, WHEN IT HELD THAT EYEWITNESS INFORMATION IS "AFTER-ACQUIRED" EVIDENCE THAT MAY NOT BE USED TO DETERMINE PROBABLE CAUSE TO MAKE AN ARREST.
{¶ 12} Due to the nature of the State's assignments of error, we elect to address them in reverse order. Additionally, the following standard of review applies throughout.
{¶ 14} The
{¶ 15} At a suppression hearing, the State bears the burden of establishing that a warrantless search and seizure falls within one of the exceptions to the warrant requirement, Xenia v. Wallace (1988),
{¶ 17} Under the concеpt of collective knowledge, "a fellow officer's statements can establish probable cause for the issuance of a warrant, [and therefore,] they should also establish probable cause for a warrantless arrest." State v. Henderson (1990),
{¶ 18} Additionally, where information comes from a private citizen who claims to be a witness to or victim of a crime, "* * * the information carrie[s] with it an indicia of reliability and is presumed to be reliable even without specific corroboration of reliability."State v. Pettry (1990), 4th Dist. Nos. 617 618,
{¶ 19} In Devanna, supra, the State presented testimony that a fast food employee called police and identified herself and her еmployer, told the police dispatcher that "she had witnessed an individual in the drive-thru who appeared to be intoxicated * * * [and] that she believed that the individual was intoxicated because his eyes were extremely bloodshot, his speech was extremely slurred, he was slow to respond and there was a cooler in the vehicle containing beer cans," and gave the officer the driver's license plate *12
number and described his vehicle.
{¶ 20} In the case sub judice, any collective knowledge possessed by the law enforcement system adding up to probable cause to arrest Bailey for driving while under the influence of alcohol should be imputed to Trooper Thompson, because, pursuant to Henderson, he was entitled to rely upon any such facts. Therefore, the trial court's statement that Trooper Thompson "had to make his determination of probable cause based upon the information which he had at hand * * *" was erroneous. (Jan. 2007 Judgment Entry, p. 4). However, the evidence presented by the State did not establish that the law enforcement system possessed collective knowledge of any erratic driving by Bailey that would constitute probable cause for his warrantless arrest.
{¶ 21} Trooper Thompson testified that he received a dispatch that Bellefontaine police had received a call of a "possible drunk driver" and that a Bellefontaine police officer had witnessed the driver speeding. However, Trooper Thompson offered no *13
testimony demonstrating that he received information from the dispatch that the Bellefontaine police had witnessеd any erratic driving by Bailey, because speeding alone does not constitute erratic operation of a vehicle. See State v. Gray, 10th Dist No. 01AP-1251,
{¶ 22} Likewise, although Butkovich is presumed reliable and testified extensively to his personal observations of Bailey's erratic driving, the State presented no testimony demonstrating what, if any, information Butkovich relayed to the Bellefontaine Police *14 Department concerning Bailey's erratic driving. This distinguishes the case sub judice from Devanna, supra, and Weisner, supra, where the citizen informants testified that they informed the police dispatcher of specific facts and cirсumstances suggesting that the drivers were under the influence of alcohol. Therefore, because the State did not establish that the law-enforcement community as a whole possessed facts constituting probable cause to arrest, we find that the trial court did not err to the State's prejudice.
{¶ 23} Accordingly, we overrule the State's second assignment of error.
{¶ 25} A warrantless arrest is unconstitutional unless the arresting officer has probable cause to make the arrest at the time of the arrest.State v. Timson (1974),
{¶ 26} This Court has upheld trial courts' findings of sufficient indicia of operation under the influence of alcohol to constitute probable cause to arrest where the defendant had glassy eyes, a strong odor of alcohol, and failed all three field sobriety tests administered,State v. Rannes, 3d Dist. No. 8-02-12,
{¶ 27} Here, the State argues that the totality of the circumstances at the scene gave Trooper Thompson probable cause to believe that Bailey was operating a vehicle while under the influence of alcohol. Trooper Thompson was aware that the dispatcher had reported Bailey as a "possible drunk driver" and that a Bellefontaine police officer had observed Bailey speeding. He also testified that he personally observed Bailey exhibiting "[s]igns of impairment" (hearing tr., p. 39). However, Trooper Thompson also testified that he did not see alcohol appreciably impair Bailey's ability to operate his car; that he smelled a "tiny" odor on Bailey's breath; that Bailey at no time had difficulty entering or exiting vehicles; that Bailey's eyes were a "little" bloodshot and glassy, although he did not state this in his report; that Bailey was not impaired in his ability to understand and follow directions, communicate, or speak; that Bailey did not fail either the "walk and turn" or "one-leg stand" test; that he did not do any pre-testing to check Bailey's pupil size or tracking prior to conducting the HGN test; that he did not conduct the HGN test for the minimum amount of time recommended; and, that Bailey was cooperative, polite, and did not have mood changes. This testimony constitutes competent, credible evidence supporting the trial court's finding that Bailey did not exhibit significant indicia that he was under the influence of alcohol. *17
{¶ 28} Because "* * * the trial court is in the best position to evaluate the evidence and the credibility of witnesses," State v.Rauscher, 3d Dist. No. 9-06-42,
{¶ 29} Accordingly, we overrule the State's first assignment of error.
{¶ 30} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed. WILLAMOWSKI, J., CONCURS SEPARATELY.
Notes
Concurrence Opinion
I concur completely in the second assignment of error. I also agree with the majority in the first assignment of error. The parties do not dispute whether there was probable cause for the stop, only whether there was probable cause for the arrest. A review of the record indicates that the trooper knew that Bailey was previously speeding and was suspected of drunk driving. However, no evidence was presented that the trooper knew any reason for the suspected *18 drunk driving. This left only the trooper's own observations to form the probable cause for the arrest.
{¶ 32} Here, the testimony revealed that Bailey had a "tiny odor of alcohol" about him. Tr. 20. Bailey had no problem exiting the vehicle or walking. Tr. 21. After giving the HGN test, the trooper indicated that all six of the factors were present indicating that the test was failed. However, the video indicates that the test was not properly administered in that the officer made no prior observations and did not conduct the test for the proper length of time. The other two tests, while indicating a single factor in each test, were not failed because two factors must be present to fail the tests. The trooper further testified that Bailey followed directions, communicated clearly, and although he appeared uneasy, did not appear unsteady.
{¶ 33} The dissent discusses how all of the factors should be considered. However, the judgment of the trial court indicates that all factors were considered. The trial court was in a better position to judge the credibility of the witnesses and weigh the evidence. Thus, as long as there is competent, credible evidence tо support the trial court's judgment, no abuse of discretion is present. A review of the evidence indicates that the judgment of the trial court is supported by competent and credible evidence. Therefore, I concur in the majority affirming the judgment of the trial court. *19 SHAW, P. J., DISSENTS.
Dissenting Opinion
The trooper in this case testified to at least eight separate factors in support of his probable cause for the arrest in this case. They included 1) a valid radio dispatch from Bellefontaine law enforcement of excessive speeding and possible drunk driver heading his way; followed by personal observation by the trooper of: 2) failure to make a proper turn signal, 3) odor of alcohol, 4) bloodshot and glassy eyes, 5) unsteady on his feet, 6) one clue from the one leg stand test, 7) one clue from the walk and turn test, and 8) six clues and failure of the HGN test.
{¶ 35} In its judgment entry, the trial court rejected the single clues from the one leg stand test and the walk and turn test. Although a trial court would always be free to reject the testimony of a trooper as to a particular test based upon the court's interpretаtion of the trooper's credibility or the court's findings as to the improper administration of the test, the trial court made no such finding here. Instead, the trial court rejected the testimony of the trooper on the basis of an apparent "all or nothing" rule, that if a majority of the clues are passed for a particular test, then the test is completely passed and none of the individual failed clues during that test can be considered in conjunction with the totality of other evidence establishing probable cause.
{¶ 36} The judgment entry of the triаl court further stated as a basis of the court's decision to exclude the two field tests in question, that upon reviewing the video tape of the arrest, "[t]he court found nothing in those observations which would have given a *20 reasonable person cause to be concerned about the defendant's ability tosafely operate a motor vehicle." (Emphasis added.)
{¶ 37} In my view, the "all or nothing" interpretation for field test clues applied by the municipal court is not consistent with the law governing probable cause determinations, including in particular the well established "totality of the circumstances" standards well documented in thе majority opinion. More importantly, while always a general concern of the court system, "reasonable cause to be concerned about the defendant's ability to safely operate a motor vehicle" is not the language of the statutory charge at issue here and is not the appropriate standard, either for evaluating the probable cause to arrest or for the exclusion of evidence by a trial court.
{¶ 38} However, even with the trial court's exclusion of two of the eight factors cited above in suрport of the probable cause to arrest in this case, six legitimate factors remain which the trial court did not reject. Unfortunately, while the trial court did not reject the credibility of the trooper on any of these factors, it appears as though the majority of this court has done just that by rejecting the testimony of the trooper as to the bloodshot and glassy eyes as well as the testimony about the defendant being unsteady on his feet for the reason that the trooper apparently did not enter those facts in his original police report. In my opinion, conducting our own credibility evaluation, especially when it appears to be contrary to the trial court's own findings, is not consistent with the law *21 governing the appropriate appellate review of suppression hearings, again as well documented in the majority's own opinion.
{¶ 39} Even so, four uncontested factors of probable cause would still remain in this case including, the radio dispatch of speeding, the failure to make the left turn signal, the odor of alcohol and the complete failure of the HGN test. However, the majority also rejects the radio dispatch of speeding on the apparent determination that speeding does not constitute "erratic" driving as a matter of law and therefore cannot be considered by a trooper as a factor in the totality of circumstances leading to an OMVI arrest.
{¶ 40} The majority cites certain appellate decisions in support of this proposition. However, those cases have held only that speedingalone may not constitute erratic driving sufficient to support probable cause for an arrest for operating a motor vehicle under the influence. Those decisions do not support the blanket statement of the majority that speeding cannot be considered as erratic driving in support of a probable cause to arrest for OMVI, where, as here, it is one of several factors observed by the officer. There is simply no authority or other appropriate basis for the majority declaration that the report of speeding could not be considered by the trooper as one factor in the totality of circumstances, along with a left turn violation, the odor of alcohol and the failure of the HGN test in the legitimate determination of probable cause in this case.
{¶ 41} In sum, it may well be that the trial court could have reached the result it did in this case based upon legitimate fact-finding determinations had it chosen to do so. *22 Unfortunately, in my view, the decisions of the both trial court and of this court were instead reached only by the application of erroneous and misleading standards for reviewing probable cause determinations and suppression hearings which now run the risk of being promulgated throughout the district. For these reasons I respectfully dissent. *1