State v. Beaureguard, 2006-A-0080 (6-29-2007)State v. Beaureguard, 2006-A-0080 (6-29-2007)
OPINION
{¶ 1} Appellant, Terry A. Beauregard, appeals from the judgment entry of the Ashtabula County Court, Eastern District, denying his motion to suppress evidencе. For the reasons expressed herein, we affirm.
{¶ 2} On April 28, 2006, at approximately 11:30 p.m., Officer N. Houser of the North Kingsville Police Department was dispatched to the Country Village Apartments to investigate a “suspicious vehicle.” After arriving at the apartment complex, Houser
{¶ 3} Officer Houser exited his cruiser and approached the vehicle and observed the individual sleeping. Houser tapped on the window and the man awakened. The officer motioned for the individual to roll down his window and the man complied. When asked where he was coming from, the man responded that he was coming from Ashtabula. When asked what time it was, the man responded that it was around 3:00 a.m. When asked where hе was, the man told Houser he was still in Ashtabula about a mile from Route 11.
{¶ 4} During their conversation, Officer Houser observed the man was disoriented and his speech was slow. Houser additionally noticed the man smelled of alcoholic beverage and had bloodshot eyes. The man told Officer Houser he was coming from a bar in Ashtabula and was tired so he pulled off the road to takе a nap. After Houser checked his information, the man was ultimately identified as appellant. Houser then administered field sobriety tests to determine if appellant was intoxicated.
{¶ 5} On May 2, 2006, a traffic complaint was filed against appellant for Physical Control of a Vehicle While Under the Influence, in violation of
{¶ 6} “The trial court erred to the prejudice of the defendant-appellant in overruling his motion to suppress.”
{¶ 7} When considering a motion to suppress evidence, the trial court sits as the trier of fact and must weigh the evidence and judge the credibility of witnesses. State v. Boczar, 11th Dist. No. 2004-A-0063, 2005-Ohio-6910, at ¶ 10. A reviewing court will not disturb the trial court‘s factual findings where they are supported by competent, credible evidence. State v. Mills (1992), 62 Ohio St.3d 357, 366. After acceрting the trial court‘s factual conclusions, an appellate court reviews the trial court‘s application of law de novo. Boczar, supra.
{¶ 8} Under his sole assignment of error, appellant first аrgues he was seized in violation of his
{¶ 9} The
{¶ 10} The United States Supreme Court has identified a variety of factors that may cause an encounter between the police and a citizen to lose its cоnsensual nature. Factors indicating that a seizure has occurred include the presence of multiple police officers, the display of a weapon by the police, thе use of language suggesting that compliance with requests is mandatory, and the physical touching of the individual. United States v. Mendenhall (1980) 446 U.S. 544, 554; see, also, City of Willowick v. Stephenson (July 16, 1999), 11th Dist. Nos. 98-L-144, 98-L-145, 98-L-146, and 98-L-147, 1999 Ohio App. LEXIS 3337, *5. “An encounter that is consensual at the outset can shift into the dоmain of a
{¶ 11} With this in mind, the record reveals Officer Hauser was dispatched to thе apartment complex as a result of a complaint regarding a “suspicious vehicle.” The resident asserted the vehicle had been in the apartment parking lot for about аn hour and a half. When the officer arrived, the vehicle was parked in a grassy area off of the
{¶ 12} “I tapped on the window, he looked up at me. I motioned for him to roll down the window. When he rolled down the window, he — I asked him wherе he was coming from. He stated, Ashtabula. I asked him then, did he know what time it was without looking at the clock? He said, around 3:00 A.M. I asked him, from where Ashtabula? So where do you — where are you now? He stated he‘s still in Ashtabula about a mile from Route 11.”
{¶ 13} With the following in mind, we do not believe appellant was seized for
{¶ 14} Next, appellant asserts Officer Hauser did not possess specific, articulable facts that appellant was violating оr was about to violate the law to justify his initial intrusion. Because we hold the initial encounter was merely a consensual encounter, the officer did not need specific, articulable facts to support his decision to approach appellant‘s vehicle. It is worth underscoring that “* * * there is nothing in either the State
{¶ 15} Appellant‘s exhortations notwithstanding, we decline to adopt a principle that would require reasonable suspicion of a crime for every encounter in which an officer approaches a parked vehicle. We believe that such a principle would be out of step with a law enforcement оfficer‘s legitimate role as a public servant whose duties include assisting those in need and fostering public safety. Id. at 53. Under these circumstances, Officer Hauser was justified in approaching appellant‘s vehicle without a reasonable basis to suspect criminal activity. Appellant‘s second argument lacks merit.
{¶ 16} Appellant‘s final argument asserts Officer Hauser‘s request thаt he perform field sobriety tests was unsupported by reasonable suspicion. Again, we disagree.
{¶ 17} It is well-established that an officer may not request a motorist to perform field sobriety tests unlеss that request is independently justified by 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.” Village of Kirtland Hills v. Strogin, 11th Dist. No. 2005-L-073, 2006-Ohio-1450, at ¶ 13, citing, Village of Waite Hill v. Popovich, 11th Dist. No. 2001-L-227, 2003-Ohio-1587, at ¶ 14.
{¶ 18} Here, Officer Hauser testified he encountered appellant on a Friday night, asleep in his car, with its engine running. When appellant regained consciousness, Hauser testified he “seemed disoriented,” had slow speech, projected a scent of “alcoholic beverage,” and possessed bloodshot eyes. Furthermore, after engaging appellant in a brief conversation, appellant volunteered he was coming home from a bar. Viewed as a whole, we believe Officer Hauser had sufficient indicia of intoxication to establish rеasonable suspicion to request appellant to submit to field sobriety testing. Appellant‘s final argument and sole assignment of error is accordingly overruled.
{¶ 19} For the reasons discussed above, appellant‘s single assignment of error lacks merit and the judgment of the Ashtabula County Court, Eastern District, is therefore affirmed.
DIANE V. GRENDELL, J., MARY JANE TRAPP, J., concur.