State v. RasheedState v. Rasheed
Kati E. Tharp, for appellant.
ZMUDA, P.J.
I. Introduction
{¶ 1} This is an appeal from the judgment of the Sylvania Municipal Court, finding appellant, Ranya Rasheed, guilty of operating a vehicle under the influence of
A. Facts and Procedural Background
{¶ 2} On May 28, 2019, two police officers from the Sylvania Township Police Department responded to the Starbucks parking lot located at 5231 Monroe Street, Toledo, Ohio, after they received a complaint from an identified citizen, J.R., stating that he observed two individuals smoking marijuana in a parked black BMW. Upon arrival, the officers observed appellant, the driver of the vehicle, attempting to pull out of the parking lot and onto Monroe Street. A traffic stop ensued, at which the officers conducted field sobriety tests and determined that appellant was under the influence of marijuana. Appellant was ultimately issued a citation for operating her vehicle under the influence of alcohol or drugs in violation of
{¶ 3} After pleading not guilty to the charged offense, appellant filed a motion to suppress on February 19, 2020. In her memorandum in support of her motion, appellant argued that the officers who stopped her did not have reasonable suspicion to believe she was under the influence of drugs, and thus had no legitimate grounds to ask her to submit to field sobriety tests. Concerning the officers’ reliance upon J.R.‘s reported observation of her use of marijuana prior to the stop, appellant contended that such reliance was misplaced since the officers made no attempt to determine the extent of J.R.‘s knowledge
{¶ 4} On July 21, 2020, the matter proceeded to a hearing before a magistrate on appellant‘s motion to suppress. At the hearing, the state called three witnesses. Appellant did not call any witnesses.
{¶ 5} As its first witness, the state called J.R. During his testimony, J.R. indicated that he observed appellant smoking marijuana as she sat behind the wheel in her BMW sedan, which was parked next to his vehicle in the Starbucks parking lot. J.R. detected what he described as “the unmistakable odor” of marijuana emanating from appellant‘s vehicle as he approached his vehicle.
{¶ 6} Upon witnessing appellant smoking marijuana, J.R. exited his vehicle, called 911, and walked to the back of appellant‘s vehicle to read her license plate number to the dispatcher. During his conversation with the dispatcher, J.R. provided his name, address, and phone number.
{¶ 7} J.R. testified that appellant “sped off to the right heading towards Marshalls and then stopped for a moment and then continued around” after she noticed that he was standing behind her vehicle. Police officers arrived on the scene “within moments.” J.R. departed from the parking lot, but he was contacted by law enforcement shortly thereafter and asked to return to make a statement. He complied.
{¶ 9} Once stopped, Brackett approached the driver‘s side of appellant‘s vehicle and asked appellant to exit. Brackett testified that he detected an odor of marijuana emanating from the vehicle as he approached. As appellant exited her vehicle, Brackett detected an odor of marijuana coming from her. Brackett began to ask her identification questions and noticed that her behavior was “sluggish” and “abnormal.” Brackett went on to describe appellant‘s demeanor in the following manner:
Her behavior consistently looked like it would be something that it would be somebody that was under the influence of marijuana. Her eyes were glassy. I mean, her, she had the odor of marijuana coming from her person. She had a giggled response to many questions, or the questions that I had asked her and then it was somewhat of a delayed response or like a sluggish response to when she would answer my questions.
{¶ 11} For its final witness, the state called Brackett‘s partner, detective Randy Moll, who testified that he observed Brackett‘s administration of the field sobriety tests. According to Moll, who was training Brackett at the time of the stop, Brackett administered the tests in substantial compliance with NHTSA standards.
{¶ 12} After Brackett finished the field sobriety tests, Moll decided to conduct advanced roadside impaired driving enforcement (“ARIDE“) tests. During his testimony, Moll explained his reasoning behind the decision to conduct ARIDE tests. Specifically, Moll testified that he had reason to believe appellant was under the influence of marijuana based upon the “very strong” odor of marijuana emanating from her person, as well as her “red, bloodshot eyes, very droopy eyelids, delayed speech, [and] lethargic” demeanor. Moll stated that field sobriety tests “are designed to detect impairment in
{¶ 13} The additional testing conducted by Moll involved asking appellant to open her mouth and stick out her tongue. According to Moll, a marijuana-impaired individual oftentimes presents with a dry mouth and a thick coating of saliva on the tongue, which was present with appellant. Further, Moll stated that he had appellant tilt her head back and close her eyes to check for eyelid tremors that are characteristic of marijuana impairment. Such eyelid tremors, according to Moll, were “very distinct in [appellant].” Moreover, appellant‘s right eye did not converge when stimulated to do so, which Moll identified as another indicator of marijuana impairment.
{¶ 14} Based upon their observations of appellant before and during the foregoing tests, Brackett and Moll determined that she was under the influence of marijuana and decided to arrest her.
{¶ 15} At the conclusion of the hearing on appellant‘s motion to suppress, the trial court took the matter under advisement. On October 9, 2020, the magistrate issued her decision denying appellant‘s motion. In her decision, the magistrate found that Brackett and Mole possessed reasonable suspicion to initiate the traffic stop based solely upon the information provided by J.R. Further, the magistrate determined that the officers had reasonable suspicion to conduct field sobriety tests given their detection of a strong odor of marijuana coming from the vehicle and appellant‘s person, appellant‘s red and glassy
{¶ 16} Upon receipt of the magistrate‘s decision, appellant requested findings of fact and conclusions of law. On December 3, 2020, the magistrate issued her findings of fact and conclusions of law. Three months later, on March 8, 2021, appellant appeared before the trial court and pled no contest to operating a vehicle under the influence of alcohol or drugs. The trial court accepted appellant‘s plea, found her guilty of the charged offense, and sentenced her to 180 days in jail, 177 days suspended. Appellant‘s timely notice of appeal followed.
B. Assignments of Error
{¶ 17} On appeal, appellant assigns the following error for our review:
- The Trial Court erred in denying the defendant‘s Motion to Suppress.
II. Analysis
In her sole assignment of error, appellant argues that the trial court erred in denying her motion to suppress.
A. Standard of Review
{¶ 18} Our review of the trial court‘s denial of appellant‘s motion to suppress “presents a mixed question of law and fact.” State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 40, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court‘s factual findings if they are supported by competent credible evidence, and “independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Wesson at ¶ 40, quoting Burnside at ¶ 8.
{¶ 19} The
B. Appellant‘s Arguments
{¶ 20} The facts are not in dispute in this case. At the suppression hearing, the arresting officers acknowledged that their sole justification for initiating the traffic stop was the information J.R. provided to the dispatcher. Once the traffic stop was initiated and the officers encountered appellant for themselves, they detected the odor of marijuana emanating from appellant‘s person and determined that they possessed the requisite reasonable suspicion to prolong the traffic stop for the purpose of conducting field sobriety tests. After completing the field sobriety tests, Brackett and Moll determined that appellant was driving under the influence of marijuana and decided to arrest her.
i. Reasonable Suspicion to Justify the Traffic Stop
{¶ 22} In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that a police officer may stop an individual when the officer has a reasonable suspicion, supported by specific and articulable facts and rational inferences from those facts, that the individual is engaged in criminal activity. See also Navarette v. California, 572 U.S. 393, 396, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (“The Fourth Amendment permits brief investigative stops – such as the traffic stop in this case – when a law enforcement officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.‘“); State v. Tidwell, 165 Ohio St.3d 57, 2021-Ohio-2072, 175 N.E.3d 527, ¶ 19.
{¶ 24} In Tidwell, supra, the Ohio Supreme Court recognized that reasonable suspicion may be based upon information supplied by another person, so long as that information bears some indicia of reliability. Tidwell at ¶ 24, citing Navarette at 397. In an earlier decision, the Ohio Supreme Court explained that when a traffic stop is based entirely upon information provided by an informant, “the determination of reasonable suspicion will be limited to an examination of the weight and reliability due that tip.” Maumee v. Weisner, 87 Ohio St.3d 295, 299, 720 N.E.2d 507 (1999). “The appropriate analysis, then, is whether the tip itself has sufficient indicia of reliability to justify the investigative stop.” Id.
{¶ 25} The reliability of information provided by informants is impacted by the classification of the informant. Three categories of informants have been identified by the Ohio Supreme Court, and we recently articulated these categories as
a citizen informant, who has witnessed criminal activity and is presumed credible; a known informant, who is generally part of the “criminal milieu” and the affiant must attest to the informant‘s veracity, reliability, or basis of knowledge or must independently corroborate the information; and an anonymous informant, generally considered unreliable and requires independent police corroboration.
State v. Connin, 6th Dist. Fulton No. F-20-005, 2020-Ohio-6867, ¶ 18, citing State v. Long, 2020-Ohio-4090, 157 N.E.3d 362, ¶ 24-27 (6th Dist.).
{¶ 26} Here, the parties agree that J.R. was an identified citizen eyewitness. Indeed, J.R. testified at the suppression hearing that he provided his name, address, and phone number during his conversation with the 911 dispatcher. As such, J.R. was clearly a citizen informant. See Weisner at 302 (informant was classified as a citizen informant where he provided his name and phone number during a phone conversation with a police dispatcher).
{¶ 27} The classification of J.R. as a citizen informant is important, even though it “does not itself determine the outcome of this case,” and is only “one element of our totality of the circumstances review of this informant‘s tip, weighing in favor of the informant‘s reliability and veracity.” Weisner at 302; see also Tidwell at ¶ 39 (cautioning that the “categorical classifications of informants may be instructive but are not necessarily outcome determinative“). As the report of criminal activity (i.e. smoking
{¶ 28} Appellant argues that such presumptive reliability should be set aside in this case because J.R. merely assumed the substance appellant was smoking was marijuana, and J.R. had no way of actually knowing whether it was marijuana. Appellant‘s argument ignores the degree of confidence J.R. expressed in his conclusion that appellant was smoking marijuana in her vehicle. J.R. testified that he detected an obvious odor of marijuana emanating from appellant‘s vehicle as he approached the vehicle. Further, J.R. indicated that appellant appeared to be smoking marijuana based upon her placement of what appeared to be a marijuana joint to her lips. While perhaps J.R. could not be certain of his conclusion that appellant was smoking marijuana, his observations were nonetheless reliable.
{¶ 29} Like the informant in Weisner, J.R. personally observed the facts he reported to the police dispatcher. “Typically, a personal observation by an informant is due greater reliability than a secondhand description.” Id., citing Illinois v. Gates, 462 U.S. 213, 233-234, 103 S.Ct. 2317, 76 L.Ed.2d 527. J.R. reported his firsthand observations to the police dispatcher immediately after making them. Such immediacy “lends further credibility to the accuracy of the facts being relayed, as it avoids reliance upon the informant‘s memory.” Id.
{¶ 31} Upon consideration of the totality of the circumstances in this case, we find that the information provided by J.R. was sufficiently reliable to justify a traffic stop. J.R. is a presumptively reliable identified citizen whose tip was based upon his personal observation and his desire to protect the roadways from intoxicated drivers. This reliable tip was sufficient, standing alone, to give rise to a reasonable suspicion that appellant was engaged in criminal activity and thereby permit Brackett and Moll to initiate the traffic stop. Consequently, we reject appellant‘s first argument that the information provided by J.R. was not sufficient to give the officers reasonable suspicion in order to effectuate the traffic stop.
ii. Reasonable Suspicion to Conduct Field Sobriety Tests
{¶ 32} In his second argument, appellant contends that Brackett and Moll lacked reasonable suspicion to prolong the traffic stop in order to conduct field sobriety tests.
{¶ 34} In Murray, supra, we set forth some of the factors that Ohio courts have relied upon to determine whether an officer has reasonable suspicion to conduct field sobriety tests. In particular, we stated:
Ohio courts recognize that a number of factors may supply an officer with reasonable suspicion to conduct field sobriety tests, including, but not limited to (1) the time of day that the stop occurred; (2) the area that the stop occurred; (3) whether there was erratic driving that might point to a lack of coordination; (4) the existence of a ‘cognizable report’ that the
driver might be intoxicated; (5) the appearance of the suspect‘s eyes; (6) impairments related to the individual‘s speech; (7) an odor of alcohol on the car or on the person; (8) the strength of that odor; (9) lack of coordination after the stop; (10) “the suspect‘s demeanor“; and (11) the suspect‘s admission of alcohol consumption.”
Murray at ¶ 20, citing Evans at 63, fn. 2; see also Dye at ¶ 65, and State v. Wysong, 6th Dist. WD-21-009, 2021-Ohio-3516, ¶ 20 (setting forth the same factors first summarized by the Eleventh District in Evans).
{¶ 35} Upon application of these factors to the facts of this case, we find that several of the factors (factors five, six, seven, eight, and ten) weigh in favor of a finding of reasonable suspicion. Brackett and Moll initially stopped appellant upon receiving J.R.‘s report that she was smoking marijuana. Brackett testified that he detected an odor of marijuana coming from appellant‘s vehicle as he approached. After appellant exited the vehicle, Brackett continued to detect the odor of marijuana on her person. Brackett further testified that he noticed appellant acting “sluggish” and “abnormal” as he interacted with her. Additionally, Brackett observed that appellant‘s eyes were glassy. Similarly, Moll testified that he had reason to believe appellant was under the influence of marijuana based upon her “red, bloodshot eyes, very droopy eyelids, delayed speech, [and] lethargic” demeanor.
{¶ 37} The officers’ observations of appellant prior to the field sobriety testing, coupled with J.R.‘s eyewitness report of appellant‘s marijuana consumption, provided the officers with a reasonable basis to believe that appellant was under the influence of marijuana. Thus, the officers’ request to conduct field sobriety testing was supported by reasonable suspicion and did not violate appellant‘s
iii. Probable Cause to Arrest
{¶ 38} In appellant‘s third argument, she asserts that Brackett and Moll were without probable cause to arrest her based upon the results of the field sobriety tests they conducted in this case.
{¶ 39} In order to determine whether Brackett and Moll had probable cause to arrest appellant, we must consider whether, at the time of the arrest, they “had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that [appellant] was driving under the influence.” (Citation omitted.) State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000), superseded by statute on other grounds as stated in
{¶ 40} Here, appellant argues that the results of the field sobriety tests conducted by Brackett did not support the probable cause determination that she was under the influence of marijuana at the time of the traffic stop. Further, appellant contends that Moll‘s administration of ARIDE tests did not reveal “any physiological signs that her driving abilities, coordination, balance, etc. were in any way impaired such that [the probable cause] standard is unmet.”
{¶ 41} At the outset, we reiterate that probable cause to believe a driver is operating her vehicle while under the influence of alcohol or a drug of abuse may arise independent of field sobriety testing. Masin at 33. This is true even where a defendant passes field sobriety tests. State v. Krzemieniewski, 9th Dist. Medina No. 15CA0015-M, 2016-Ohio-4991, ¶ 17 (“The fact that Krzemieniewski passed the field sobriety tests does not negate the other indicia of impairment observed by Officer Harrison.“). To prove impairment of a defendant‘s driving ability, “the state can rely not only on coordination tests such as the field sobriety tests but also on physiological factors such as slurred speech, bloodshot eyes, and the odor of [marijuana].” Cleveland v. Giering, 2017-Ohio-8059, 98 N.E.3d 1131, ¶ 30 (8th Dist.), citing Solon v. Hrivnak, 8th Dist. Cuyahoga No. 100411, 2014-Ohio-3135, ¶ 17.
{¶ 43} Moreover, we find that the results of the field sobriety tests, especially the ARIDE tests, further strengthened the officers’ belief that appellant was driving under the influence. Indeed, according to the officers’ testimony at the suppression hearing, appellant failed the walk and turn test and exhibited physiological symptoms of marijuana impairment, including a dry mouth and a thick coating of saliva on the tongue, “very distinct” eyelid tremors, and a failure of appellant‘s right eye to converge upon
{¶ 44} In sum, we find that the totality of the circumstances, including the arresting officers’ detection of a strong odor of marijuana, appellant‘s red and glassy eyes, sluggish behavior, and giggly responses, J.R.‘s eyewitness report of appellant‘s smoking of marijuana moments before the arrest, appellant‘s failure of the walk and turn test, and Moll‘s observation of several physiological indicators of marijuana impairment, were sufficient to warrant Brackett and Moll in believing that appellant was under the influence of marijuana. Thus, we reject appellant‘s argument that the officers had no probable cause to arrest her for operating her vehicle under the influence of marijuana.
{¶ 45} Having already found that the traffic stop and field sobriety tests in this case were supported by reasonable suspicion, and in light of our determination that appellant‘s arrest was supported by probable cause, we find that the trial court properly denied appellant‘s motion to suppress. Accordingly, we find appellant‘s sole assignment of error not well-taken.
In light of the foregoing, the judgment of the Sylvania Municipal Court is affirmed. The costs of this appeal are assessed to appellant under
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
Gene A. Zmuda, P.J. JUDGE
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.