State v. BurwellState v. Burwell
{¶1} Defendant-appellant, Edward L. Burwell (“Burwell“), appeals the Putnam County Court‘s judgment overruling his motion to suppress evidence seized as a result of a traffic stop. For the reasons that follow, we affirm.
{¶2} Around 1:52 a.m. on May 23, 2009, Burwell was traveling north on State Route 65 in the village of Ottawa, Putnam County, Ohio. (Aug. 12, 2009 Tr. at 7). Ohio State Highway Patrolman Kingsinger was following Burwell‘s vehicle in a marked State Highway Patrol cruiser about eight to ten (8-10) car lengths behind when he observed Burwell‘s vehicle “travel off the right side of the edge line, right [white] edge line, * * * and turn left into Blackthorn Drive.” (Id. at 6-7, 10). Trooper Kingsinger testified that it appeared as though Burwell was making a wide right turn but then turned left onto Blackthorn Drive. (Id. at 9). Trooper Kingsinger then activated his patrol car‘s overhead lights and initiated a traffic stop. (Id. at 12).
{¶3} When Trooper Kingsinger approached Burwell‘s vehicle, he detected the smell of alcohol coming from the vehicle and noted that Burwell‘s eyes were “slightly glassy and bloodshot.” (Id.). Trooper Kingsinger asked Burwell to exit his vehicle and asked him to sit in his patrol car. (Id. at 13). Once Trooper Kingsinger was seated in his patrol car with Burwell, he discovered that “the odor of alcoholic beverage became stronger on his breath,” so Trooper
{¶4} Burwell was charged, in case no. 2009 TRC 00778, with operating a vehicle under the influence of alcohol (OVI) in violation of
{¶5} On May 27, 2009, Burwell entered a plea of not guilty to the charges. (Doc. No. 2). On July 10, 2009, Burwell filed a motion to suppress evidence seized as a result of the traffic stop. (Doc. No. 18). On August 12, 2009,
{¶6} On September 1, 2009, Burwell withdrew his previously tendered plea of not guilty and entered a plea of no contest to the charge of operating a vehicle while under the influence in violation of
{¶7} On September 30, 2009, Burwell filed a notice of appeal. (Doc. No. 34). Burwell now appeals raising two assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT OVERRULED BURWELL‘S MOTION TO SUPPRESS EVIDENCE WHERE REASONABLE ARTICULABLE SUSPICION DID NOT EXIST FOR A TRAFFIC STOP OR TO DETAIN BURWELL.
{¶8} In his first assignment of error, Burwell argues that the trial court erred by overruling his motion to suppress evidence obtained as a result of the traffic stop. Specifically, Burwell argues that crossing the white edge line without evidence of erratic driving or concerns for his safety does not provide reasonable articulable suspicion for a traffic stop, citing State v. Phillips, 3d Dist. No. 8-04-25, 2006-Ohio-6338. Burwell also maintains that this case is distinguishable from
{¶9} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. State v. Carter (1995), 72 Ohio St.3d 545, 552, 651 N.E.2d 965. When reviewing a ruling on a motion to suppress, deference is given to the trial court‘s findings of fact so long as they are supported by competent, credible evidence. Burnside, 2003-Ohio-5327, at ¶8. With respect to the trial court‘s conclusions of law, however, our standard of review is de novo and we must decide whether the facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.
{¶10} As this Court has stated before, in order to constitutionally stop a vehicle, an officer must, at a minimum, have either: (1) a reasonable suspicion, supported by specific and articulable facts, that criminal behavior has occurred, is occurring, or is imminent; or (2) a reasonable suspicion, supported by specific and
{¶11} An officer‘s “reasonable suspicion” is determined based on the totality of the circumstances. Moore, 2008-Ohio-2407, at ¶11, citing Andrews, 2008-Ohio-625, at ¶8, citing State v. Terry (1998), 130 Ohio App.3d 253, 257, 719 N.E.2d 1046, citing State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271. “‘Specific and articulable facts’ that will justify an investigatory stop by way of reasonable suspicion include: (1) location; (2) the officer‘s experience, training or knowledge; (3) the suspect‘s conduct or appearance; and (4) the surrounding circumstances.” Purtee, 2006-Ohio-6337, at ¶9, citing State v. Gaylord, 9th Dist. No. 22406, 2005-Ohio-2138, ¶9, citing State v. Bobo (1988), 37 Ohio St.3d 177, 178-79, 524 N.E.2d 489; State v. Davison, 9th Dist. No. 21825, 2004-Ohio-3251, ¶6.
{¶12} This Court recently rejected arguments similar to those raised by Burwell in State v. Anthony, 3d Dist. No. 13-09-26, 2009-Ohio-6717, ¶¶13-14. Trooper Kingsinger testified that he initiated the traffic stop after Burwell drifted
{¶13} We are also not persuaded by Burwell‘s attempts to distinguish this case from State v. Mays, 2008-Ohio-4539. To begin with, the record does not support his assertion that Trooper Kingsinger initiated the traffic stop based on a “hunch or gut feeling.” Although Trooper Kingsinger testified that he turned on
{¶14} Aside from Burwell‘s violation of
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT OVERRULED BURWELL‘S MOTION TO SUPPRESS ON THE BASIS THAT THE ARRESTING OFFICER DID NOT HAVE PROBABLE CAUSE TO ARREST BURWELL.
{¶16} In his second assignment of error, Burwell argues that the trial court erred in overruling his motion to suppress evidence flowing from the officer‘s improper detention, which resulted in his arrest for OVI.2 Specifically, Burwell argues that the fact that Trooper Kingsinger smelled an unquantifiable amount of alcohol from the vehicle—as opposed to from him, observed that his eyes were slightly red and glassy, and that he admitted to drinking was insufficient to justify his continued detention for field sobriety tests. As such, Burwell argues that any evidence seized as a result of his continued detention was inadmissible; and therefore, the trial court erred by overruling his motion to suppress on this basis. We disagree.
{¶17} “The scope and duration of an investigative stop must not exceed what is necessary to complete the purpose for which the initial stop was made.” State v. Lavender, 6th Dist. Nos. WD-06-020, WD-06-021, 2006-Ohio-6632, ¶14, citing Florida v. Royer (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229, and State v. Robinette (1997), 80 Ohio St.3d 234, 685 N.E.2d 762, paragraph one of the syllabus. “In conducting an investigative traffic stop, an officer may detain a motorist for a period of time sufficient to run a computer check on his license, registration, and vehicle plates and to issue him a warning or a citation.” State v. Rusnak (1997), 120 Ohio App.3d 24, 27, 696 N.E.2d 633, citing Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660. “An officer, however, cannot use the lawfulness of an initial stop to conduct a fishing expedition for evidence of another crime.” Lavender, 2006-Ohio-6632, at ¶14, citing State v. Bevan (1992), 80 Ohio App.3d 126, 130, 608 N.E.2d 1099. Whether or not a detention is ‘reasonable’ depends upon the totality of the facts and circumstances of each case. Bobo, 37 Ohio St.3d at 178.
{¶18} Once an officer stops a vehicle for a traffic offense and begins the process of obtaining the offender‘s license and registration, the officer may then proceed to investigate the detainee for operating a vehicle under the influence (OVI) if the officer has a reasonable suspicion that the detainee may be intoxicated based on specific and articulable facts, such as where there are clear symptoms that the detainee is under the influence. State v. Evans (1998), 127 Ohio App.3d 56, 62-63, 711 N.E.2d 761, citing State v. Yemma (Aug. 9, 1996), 11th Dist. No. 95-P-0156.
{¶20} Whether a law enforcement officer possessed reasonable suspicion or probable cause to continue to detain an individual must also be examined in light of the “totality of the circumstances.” State v. Cromes, 3d Dist. No. 17-06-07, 2006-Ohio-6924, ¶38, citing United States v. Arvizu (2002), 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740. The totality of the circumstances test “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.‘” Id., citing Arvizu, 534 U.S. at 273, quoting United States v. Cortez (1981), 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621.
{¶21} Circumstances from which an officer may derive a reasonable, articulable suspicion that the detained driver was operating the vehicle while under the influence include, but are not limited to:
(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop
(e.g., 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 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.
Evans, 127 Ohio App.3d at 63, Fn. 2. “All of these factors, together with the officer‘s previous experience in dealing with [impaired] drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably. No single factor is determinative.” Id.
{¶22} In relevant part, the record indicates that Burwell was stopped around 1:52 a.m. on May 23, 2009, which was the early hours of Saturday morning, after Trooper Kingsinger observed Burwell drift over the right edge (fog) line while swinging right to make a wide turn to the left from State Route 65 onto Blackthorn Drive. (Aug. 12, 2009 Tr. at 7-9); (Joint Ex. 1). After Trooper Kingsinger approached Burwell‘s vehicle, he identified the smell of an alcoholic beverage coming from inside the vehicle and noticed that Burwell‘s eyes appeared
{¶23} The facts here demonstrate that Burwell was stopped after driving over the white edge (fog) line when turning wide right for a left-hand turn in the early hours (1:52 a.m.) of Saturday morning after he had just returned from playing in his band. (Aug. 12, 2009 Tr. at 7-13); (Joint Ex. 1). We also note, although not mentioned during the hearing, that it appeared that Burwell‘s vehicle was slightly weaving within its lane of travel as well. (Joint Ex. 1). In addition to that, Trooper Kingsinger noted that Burwell‘s vehicle—and, more importantly, Burwell himself—smelled of an alcoholic beverage, and that Burwell‘s eyes were “slightly bloodshot and glassy.” (Aug. 12, 2009 Tr. at 12-13). Finally, when asked
{¶24} Burwell‘s citation to various appellate court decisions fails to persuade us otherwise. The Court in State v. Taylor, found that “[t]he act of speeding at a nominal excess coupled with the arresting officers’ perception of the odor of alcohol, and nothing more, did not furnish probable cause to arrest the defendant for driving under the influence.” (1981), 3 Ohio App.3d 197, 197-98, 444 N.E.2d 481 (emphasis in original). The Court in Taylor also expressed the fact that the officer in that case did not even specify whether the odor of alcohol was “pervasive” or “strong,” which it indicated may have changed the outcome of the case. 3 Ohio App.3d at 198. Here, there was more than Trooper Kingsinger‘s perception of the odor of alcohol so this case is clearly distinguishable from Taylor. Likewise, this case is distinguishable from State v. Dixon and State v. Reed, because Burwell, unlike the defendants in those cases, was initially stopped when he drifted over the white edge (fog) line, which, as a moving violation, is indicia of impaired driving ability. (Dec. 1, 2000), 2nd Dist. No. 2000-CA-30
{¶25} For all the foregoing reasons, we overrule Burwell‘s second assignment of error.
{¶26} 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
ROGERS, J., concurs in Judgment Only.
SHAW, J., concurs.