State v. Johnson, 5-07-43 (3-17-2008)State v. Johnson, 5-07-43 (3-17-2008)
{¶ 1} Although originally placed on our accelerated calendar, we have elected, pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.
{¶ 2} Defendant-Appellant, Kayla L. Johnson, appeals the judgment of the Findlay Municipal Court of Hancock County denying her motion to suppress evidence regarding a charge of operating a vehicle while under the influence of alcohol. On appeal, Johnson asserts that the trial court erred by failing to suppress the evidence because it resulted from an improper extended detention following a traffic stop. Based on the following, we affirm the judgment of the trial court.
{¶ 3} In December 2006, Johnson was charged by complaint with one count of operating a vehicle after underage consumption of alcohol in violation of
{¶ 4} In January 2007, Johnson entered a plea of not guilty to both counts of the complaint.
{¶ 5} In April 2007, Johnson moved to suppress thе evidence obtained during her detention following the traffic stop.
{¶ 6} In June 2007, the trial court conducted a hearing on Johnson‘s motion to suppress, during which the following testimony was presented.
{¶ 7} Trooper Kyle Shearer of the Ohio State Highway Patrol testified that he was on patrol in a marked car in the City of Findlay on the early morning of December 13, 2006; that, at around 2:45 a.m., he observed a black Pontiac driven by Johnson go past him and noticed that the vehicle did not have a license plate light on it; that he then activated his overhead lights and initiated a traffic stop; that he approached the vehicle and asked Johnson for her driver‘s license, proof of insurance, and registration; and, that he detected an odor of an alcoholic beverage emitting from inside the vehicle.
{¶ 8} Trooper Shearer continued that three passengers were also in the vehicle; that he could not tell who was emitting the alcoholic beverage odor; that he noticed that Johnson‘s eyes were bloodshot and glassy while he was talking with her; that, after viewing Johnsоn‘s driver‘s license, he asked her to step out of the vehicle; that, as he escorted Johnson to his vehicle, he asked her the date and she replied “the 14[th] “(suppression hearing tr., p. 19); that, after placing Johnson in his vehicle, he could smell an odor of an alcoholic beverage on or about her person; that he administered the horizontal gaze nystagmus (“HGN“) test and
{¶ 9} On cross-examination, Trooper Shearer admitted that the sole reason he stopped Johnson was the equipment violation and that she was not driving erratically or violating any traffic laws; that he did not ask the passengers for identification and did not know whether they were of legal age to consume alcohol; that, when he first smelled an odor emitting from the vehicle, he did not know whether Johnson had consumed any alcohol or was a designated driver; that bloodshot eyes can be common late at night; that Johnson‘s heels could have affected her walk during the field sоbriety tests; that Johnson registered a 0.052 grams of alcohol per two hundred ten liters of breath; and, that none of the tests were captured on his vehicle‘s video camera.
{¶ 10} Thereafter, the trial court denied Jоhnson‘s motion to suppress, finding that Trooper Shearer had reasonable suspicion to detain Johnson following the traffic stop and had probable cause to arrest her.
{¶ 11} In August 2007, Johnson withdrew her not guilty plea and entered a negotiated plea of no contest to the operating a vehicle after underage consumption of alcohol count in exchange for a dismissal of the inoperable licеnse plate light count. The trial court accepted Johnson‘s no contest plea and found her guilty of operating a vehicle after underage consumption of alcohol. Subsequently, the trial court sеntenced Johnson to thirty days in jail, with twenty-five days suspended, ordered her to pay a $250 fine, suspended her license for one year with limited privileges, and ordered her to complete a driver‘s intervention program.
{¶ 12} It is from this judgment that Johnson appeals, presenting the following assignment of error for our review.
THE MUNICIPAL COURT ERRED WHEN IT FAILED TO SUPPRESS ALL OF THE EVIDENCE GARNERED BY THE OHIO STATE HIGHWAY PATROL RELATIVE TO THE OVIUAC CHARGE WHICH RESULTED FROM THE EXTENDED DETENTION OF THE DEFENDANT WITHOUT NEW PROBABLE CAUSE OR AN ARTICULABLE SUSPICION AFTER THE INITIAL DETENTION FOR AN EQUIPMENT VIOLATION, TO WIT: DEFECTIVE LICENSE PLATE LIGHT.
{¶ 14} “Appellate review of a decision on a motion to suppress evidence presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13, 2006-Ohio-601, ¶ 12, citing United States v. Martinez (11th Circ. 1992), 949 F.2d 1117. The trial court serves as the trier of fact and is the primary judge of the credibility of the witnesses and the weight to be given to the evidence presented. State v. Johnson (2000), 137 Ohio App.3d 847, 850. Therefore, when an appellate court reviews a trial court‘s ruling on a motion to suppress, it must accept the trial court‘s findings of facts so long as they are supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20. The appellate court must then review the application of the law to the facts de novo. Roberts, supra, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8.
{¶ 15} The
{¶ 16} The temporary detention of a person during а traffic stop is a seizure. State v. Downs, 6th Dist. No. WD-03-030, 2004-Ohio-3003, at ¶ 10, citing State v. Vass, 7th Dist. No. 01CA 4, 2002-Ohio-6887, at ¶ 12, citing Delaware v. Prouse (1979), 440 U.S. 648. The United States Supreme Court has held that “a seizure lawful at its inception can nevertheless violate the
{¶ 17} Morе specifically, a police officer conducting an investigative traffic stop may lawfully detain the motorist for a reasonable amount of time necessary to check his license, registration, and рlates, and to give him a warning or a citation. Lavender, supra, citing State v. Rusnak (1997), 120 Ohio App.3d 24, 27. However, a police officer “[c]annot use the lawfulness of an initial stop to conduct a fishing expedition for evidence of another crime.” Lavender, supra, citing State v. Bevan (1992), 80 Ohio App.3d 126, 130. Instead, а request to perform field sobriety tests “must be separately justified by specific, articulable facts showing a reasonable basis for the request.” State v. Evans (1998), 127 Ohio App.3d 56, 62, citing State v. Yemma (1996), 11th Dist. No. 95-P-0156, 1996 WL 495076. Whether an officer acted reasonably in conducting roadside sobriety tests depends upon the totality of the circumstances. Evans, 127 Ohio App.3d at 63.
{¶ 18} Here, Johnson does not dispute the validity of the initial traffic stop for an equipment violation, to wit: a burned out license plate light. Instead, Johnson asserts that no facts existed to support an independent, articulable suspicion to justify her further detention.1 In support of her argument, Johnson
{¶ 19} Although Johnson‘s case is similar in that she did not drive erratically or have slurred speech, she overlooks an important factor distinguishing this case from those she relied upon — her age. At the time of the incident, Johnson was an eighteen-year old driver of a vehicle in which an odor of an alcoholic beverage emanated. Johnson also exhibited bloodshot, glassy eyes. While an odor of an alcоholic beverage and bloodshot, glassy eyes alone may not be enough to extend the detention of a driver of legal drinking age during a stop for a minor traffic infraction, we cannot say the same of a driver who is not of legal age to even consume alcohol.
{¶ 20} Moreover, we have also reviewed the contents of the video taken from Trooper Shearer‘s vehicle. We note that, after talking with Johnson about her license plate and obtaining her license and registration, Trooper Shearer inquired about her age and learned that she was eighteen. Trooper Shearer then
{¶ 21} Accordingly, we overrule Johnson‘s assignment of error.
{¶ 22} 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.
SHAW, P.J., and WILLAMOWSKI, J., concur.