STATE OF OHIO v. MARK R. SMITH, II
CASE NO. 13 CO 10
STATE OF OHIO, COLUMBIANA COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
June 27, 2014
[Cite as State v. Smith, 2014-Ohio-2933.]
Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Criminal Appeal from the East Liverpool Municipal Court of Columbiana County, Ohio Case No. 12 TRC 2086 JUDGMENT: Affirmed in part. Sentence Vacated. Reversed and Remanded.
For Plaintiff-Appellee: Atty. Robert Herron, Columbiana County Prosecutor, Atty. Timothy J. McNicol, Assistant Prosecuting Attorney, 126 West 6th Street, East Liverpool, Ohio 43920
For Defendant-Appellant: Atty. Dominic A. Frank, Betras, Kopp & Harshman, LLC, 1717 Lisbon Street, East Liverpool, Ohio 43920
{¶1} Appellant Mark R. Smith, II, is appealing the trial court‘s decision to overrule his motion to suppress. An East Liverpool policeman arrested Appellant after receiving an anonymous dispatch that there was a fight on Gardendale Street. The officer found Appellant sitting on his still warm motorcycle with engine and lights off, parked in the middle of Gardendale Street. When asked to show identification, Appellant revealed a holster with a loaded .25 caliber pistol. The officer arrested Appellant for carrying a concealed weapon. The officer noticed that Appellant had slurred speech and an odor of alcohol, and had admitted drinking. The officer conducted field sobriety tests at the police station, which Appellant failed. Appellant refused to take a blood test and was then charged with operating a vehicle while intoxicated (OVI). Appellant filed a motion to suppress all evidence resulting from the traffic stop and the ensuing investigation.
{¶2} Appellant attacks his conviction for three reasons. Appellant first argues that the police had no basis for making an investigatory stop because it was based solely on an anonymous tip. Next, Appellant argues that the field sobriety tests were not administered in substantial compliance with standard testing procedures. Finally, he claims that there was no probable cause to arrest him on OVI. While this record supports the investigatory stop and his OVI arrest, Appellant is correct that there is no evidence that the field sobriety tests were properly administered. In fact, the relevant evidence tends to show that they were not.
{¶3} Because Appellant has successfully argued that the results of the field sobriety test should have been suppressed, the court‘s decision regarding the motion
Case History
{¶4} East Liverpool patrolman Greg Smith was dispatched in response to an anonymous tip about a fight near Gardendale and Smithfield Streets in East Liverpool. When the officer arrived, he saw no evidence that a fight was taking place, but did see two juveniles who were flagging him down. They told the officer that there was a man riding a motorcycle chasing a carload of people and that he was attempting to start a fight. (Tr., p. 6.) Officer Smith could hear and see a motorcycle coming toward him on Gardendale. (Tr., p. 6.) The motorcycle stopped about 100 yards in front of the officer. Smith continued down Gardendale and saw a man sitting on a motorcycle parked in the middle of the street. (Tr., p. 7.) Smith exited the patrol car and approached the motorcycle. Gardendale Street is a city street open to vehicular traffic.
{¶5} Upon reaching the motorcycle, Smith noted that the motorcycle engine was still warm. Smith also noted that Appellant had an odor of alcohol about him, glassy eyes, and that his speech was slurred. Among other things, Appellant said he was riding around looking for drug dealers and that he was going to take care of them. (Tr., p. 9.) When Appellant stood up and pulled his shirt up looking for his wallet, the officer saw a holster containing a weapon. (Tr., p. 10.) The officer arrested Appellant for carrying a concealed weapon. (Tr., p. 10; 7/25/12 Police Report, p. 3.) The officer drove Appellant to the police station and, when they arrived, administered three field sobriety tests. The officer performed the HGN, walk-
{¶6} On July 25, 2012, Appellant was charged with OVI,
{¶7} The suppression hearing was held on December 5, 2012. Officer Smith was the only witness. The court overruled the motion to suppress in a judgment entry filed on December 6, 2012.
{¶8} On January 9, 2013, Appellant entered a written plea agreement to one OVI count, his third OVI in six years, a first degree misdemeanor. A change of plea hearing was held the same day. The court sentenced him to 180 days in jail, 105 days suspended, a driver‘s license suspension for five years, three years of intense probation, a fine of $1,050, and court costs. This appeal followed on February 7, 2013. The assignments of error will be treated out of order for ease of analysis.
Standard of Review of a Motion to Suppress
{¶9} A trial court‘s decision on a motion to suppress presents a mixed question of fact and law. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. During a suppression hearing the trial court is itself the trier of fact, and is therefore in the best position to resolve factual questions and evaluate the credibility
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED HIS MOTION TO SUPPRESS AND FOUND THE OFFICER HAD REASONABLE ARTICULAR [SIC] SUSPICION TO EEFECTUATE [SIC] AN INVESTIGATORY STOP CONTRARY TO APPELLANT‘S FOURTH AMENDMENT RIGHT.
{¶10} Appellant argues that Officer Smith relied solely on an anonymous tip to effectuate an investigatory stop of Appellant as he sat on his motorcycle in the middle of Gardendale Street in East Liverpool. Appellant argues that an uncorroborated anonymous tip cannot justify a warrantless search or seizure. In response the state points out that Officer Smith relied on more than an anonymous tip before he approached Appellant and asked for identification, and that the anonymous tip was corroborated in a number of ways. The state‘s assertion here is correct.
{¶11} Police may make an investigative stop of a vehicle when they have a reasonable articulable suspicion that criminal activity has occurred. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. [A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of
{¶12} An anonymous tip cannot support probable cause for a stop without corroboration. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Stops based on such a tip require corroboration that establishes sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).
{¶13} In this case, the officer had reasonable suspicion of criminal activity based on not one, but three reports of a fight or an attempt to fight on Gardendale Street. The details of the three reports were confirmed as the officer approached the
{¶14} Even if the officer did not have reasonable suspicion of criminal activity, he was permitted to ask Appellant for identification simply because Appellant was illegally parked in the middle of the street on his motorcycle. This was not based on an anonymous tip but on the officer‘s own observations. There is no Fourth Amendment seizure when an officer simply asks the occupant of a parked vehicle for identification. State v. Phipps, 11th Dist. No. 2006-P-0098, 2007-Ohio-3842, ¶19. In State v. Johnston, 85 Ohio App.3d 475, 620 N.E.2d 128 (4th Dist.1993), the appellate court held that [l]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place. * * * More pertinently, the mere approach and questioning of persons seated within parked vehicles does not constitute a seizure so as to require reasonable suspicion supported by specific and articulable facts. (Citations omitted) Id. at 478; see also, State v. Boys, 128 Ohio App.3d 640, 642, 716 N.E.2d 273 (1st Dist.1998) (when the police approach and question the occupants of a parked vehicle, their conduct does not constitute a seizure and does not require a reasonable and
{¶15} The record reflects that the anonymous tip was corroborated, and that the officer had the authority to ask Appellant for identification because he was parked illegally in the middle of the street as he sat on his motorcycle. There is no evidence in this case that arises from an illegal traffic stop or unlawful detention. Therefore, Appellant‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED HIS MOTION TO SUPPRESS THE TESTIMONY/EVIDENCE OF THE ARRESTING OFFICER REGARDING THE RESULTS OF APPELLANT‘S FIELD SOBRIETY TETS [SIC] AS SAME WHERE NOT ADMINISTERED IN SUBTANTIAL [SIC] COMPLIANCE WITH THE TESTING STANDARDS AND PROCEDURES.
{¶16} Appellant argues that the field sobriety tests were not performed correctly and should have been suppressed. Appellant argues that Officer Smith completely failed to administer field sobriety tests in accordance with the NHTSA standards, and for that reason, the test results should have been suppressed. Appellant argues that the officer should have conducted a medical assessment
{¶17}
{¶18} We have held that some evidence of the NHTSA or other testing standards is required to prove compliance with the administration of field sobriety tests. It is only logical that in order to prove substantial compliance with a given standard, there must be at minimum some evidence of the applicable standard for comparative purposes. Accordingly, where the suppression motion raises specific challenges to the field sobriety tests, the state must produce some evidence of the testing standards, be it through testimony or via introduction of the NHTSA or other similar manual or both. State v. Bish, 191 Ohio App.3d 661, 2010-Ohio-6604, 947 N.E.2d 257, ¶27. Once the issue is properly raised by the Appellant, the burden shifts to the state to prove by clear and convincing evidence that it substantially complied with NHTSA, or other similar standards, in administering the field sobriety tests. Id. at ¶24.
{¶20} Similarly, with respect to the HGN (Horizontal Gaze Nystagmus) test, Smith admitted that he should have performed an assessment of Appellant‘s medical conditions prior to giving the test, and that he did not. “[T]he NHTSA instructs that an officer administering an HGN test should look for possible medical conditions that might compromise the test results.” State v. Robertson, 10th Dist. No. 03AP-277, 2004-Ohio-556, ¶10. In other words, if the defendant had a brain injury or other type of medical condition that would prohibit the officer from administering the test or would affect the outcome of the test, the officer should be aware of that fact prior to administering the test. Smith testified that he just assumed Appellant would have told him of such a condition. (Tr., p. 39.) Smith also admitted that he should have
{¶21} Without some reference point to determine whether or not Smith substantially complied with NHTSA or some other similar standard, it is difficult if not impossible to evaluate whether particular errors in the administration of field sobriety tests invalidate the tests. In a different situation in which the NHTSA standards are admitted as evidence and relied on by the state, the aforementioned errors might not invalidate a finding of substantial compliance with the standards. In this case, however, we have no choice but to declare the field sobriety tests invalid due to lack of clear and convincing evidence that the state substantially complied with the NHTSA standard. Appellant‘s third assignment of error is sustained.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT OVERRULED HIS MOTION TO SUPPRESS AND FOUND THE OFFICER HAD PROBALE [SIC] CAUSE TO ARREST APPELLANT FOR OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE (OVI).
{¶22} Appellant argues that the police did not have probable cause to arrest him for OVI. The legal standard for determining whether the police had probable
{¶23} Probable cause exists when the facts and circumstances within the arresting officer‘s knowledge are sufficient to warrant a man of reasonable caution in the belief that an offense has been committed. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Huber v. O‘Neil, 66 Ohio St.2d 28, 30, 419 N.E.2d 10 (1981); State v. Timson, 38 Ohio St.2d 122, 311 N.E.2d 16 (1974), paragraph two of the syllabus. In determining whether a police officer had probable cause to arrest an individual for violating
{¶24} Appellant contends that he was arrested for OVI on Gardendale Street, and that there was no probable cause to arrest him for OVI at that time. Appellant appears to misunderstand the relevant facts, here. The record reflects that Appellant was initially arrested on Gardendale Street for carrying a concealed weapon, and that while he was being detained on this CCW charge, he was further examined at the
{¶25} We have adopted a non-comprehensive list of factors to consider in determining whether an officer had reasonable suspicion to administer field sobriety tests under the totality of the circumstances: (1) the time of day of the stop; (2) the location of the stop; (3) any indicia of erratic driving before the stop; (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect‘s eyes; (6) impairments of the suspect‘s ability to speak; (7) the odor of alcohol coming from the interior of the car or the suspect‘s person or breath; (8) the intensity of that odor as described by the officer; (10) any actions by the suspect after the stop that might indicate a lack of coordination; 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. State v. Reed, 7th Dist. No. 05BE31, 2006-Ohio-7075, ¶10-11, citing State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761 (1998). All of these factors, together with the officer‘s previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably.
{¶26} The record reflects that, in this case, Appellant admitted he was operating his vehicle, was committing a traffic violation by sitting on his motorcycle with the engine off parked in the middle of a street open to two-way traffic, and had
{¶27} The second question is whether any aspect of the field sobriety tests may be relied upon to support probable cause to arrest for OVI when we have already determined that the results of the field sobriety tests should have been suppressed. In Schmitt, supra, the Ohio Supreme Court held that that virtually any lay witness, including a police officer, may testify as to whether an individual appears intoxicated. Schmitt at ¶12. Schmitt reasoned that even if the results of field sobriety tests were inadmissible, the officer‘s actual observations both before and during the tests are relevant and admissible because they are based upon his or her firsthand observation of the defendant‘s conduct and appearance. Id. at ¶15. Schmitt concluded that an officer may testify as to his or her observations regarding field sobriety tests, whether or not the test results themselves are deemed admissible, in support of probable cause or ultimate conviction for OVI. Id. at ¶11, 16.
{¶28} We have previously held that ‘probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspect‘s poor performance on one or more of these [field sobriety] tests. The totality of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests were administered or where, as here, the test results must be excluded for lack of strict compliance.’ State v. Phillips, 7th Dist. No. 08-MO-6, 2010-Ohio-1547, ¶25, quoting Homan, supra, at 427, superseded on other grounds by statute.
Conclusion
{¶30} Appellant challenged the denial of his motion to suppress on three grounds. He first argued that the police officer had no basis to conduct a brief investigatory stop based solely on an anonymous tip. The record shows that there was more than a single anonymous tip that prompted the investigation, and the tip was corroborated by other evidence. Additionally, police are permitted to ask the driver of a parked vehicle for identification without violating the Fourth Amendment in these circumstances. Appellant also argued that the results of the field sobriety tests should be suppressed due to failure of the state to show substantial compliance with NHTSA standards. Appellant is correct and the test results will be suppressed. Finally, Appellant argues that there was no probable cause to arrest for OVI. The record taken as a whole indicates otherwise. Although the field sobriety test results are not admissible, the arresting officer‘s actual observations of Appellant both before
Donofrio, J., concurs.
DeGenaro, P.J., concurs.