State v. ToddState v. Todd
For Plaintiff-Appellee
THOMAS R. GILMAN
ASSISTANT PROSECUTOR
133 South Market Street
Loudonville, Ohio 44842
For Defendant-Appellant
NICHOLAS J. TESTA
DOUGLAS W. SHAW
SHAW & MILLER
555 City Park Avenue
Columbus, Ohio 43215
Wise, J.
{¶1}. Appellant Jeffrey Todd appeals from the decision of the Ashland Municipal Court, which denied his motion to suppress evidence in a prosecution for operating a motor vehicle under the influence of alcohol (“OVI“). The relevant facts leading to this appeal are as follows.
{¶2}. At about 3:50 AM on June 12, 2013, Sergeant Michael Morrisоn and Officer Kara Pearce of the Loudonville Police Department were on patrol in the vicinity of Main Street when they observed a 1994 Oldsmobile with a missing front Ohio license plate. They then observed the vehicle turn off the roadway into a long private driveway. The two officers, knowing the driveway led to the personal residence of a trooper for the Ohio State Highway Patrol, proceeded to follow the Oldsmobile.
{¶3}. As Sergeant Morrison and Officer Pearce approached in their cruiser, the driver, soon identified as Appellant Todd, halted his exit of the stationary Oldsmobile and shut the car door.
{¶4}. The officers went to appellant‘s Oldsmobile and asked him what was going on. Appellant replied that he had been at the “Iron Pony Saloon” and was trying to find Interstate 71, which the officers found odd based on the local road geography. While speaking with appellant, the officers found him to have “very delayed” and “slowed” speech. Suppression Hearing Tr. at 20, 33. They also observed him to have “watery” and “red-rimmed” eyes. Id. at 20, 49, 55. Appellant was noted by Officer Pearce to be “very confused” about where he was and he was described by Sergeant Morrison as “very incoherent.” Id. at 20, 50. Morrison also noted that appellant ” *** had no idea of his surroundings at that point” and that he appeared to have “severe tunnel vision,” by
{¶5}. Officer Pearce thereafter asked appellant to get out of his car. Appellant then agreed to submit to a horizontal gaze nystagmus (“HGN“) field sobriety test, which was performed by Officer Pearce. The HGN test resulted in the officer observing six out of a potential six clues. Appellant at that point refused to submit to any other field sobriety tests.
{¶6}. Appellant was placed under arrest at the scene for OVI in violation of
{¶7}. The trial court conducted a hearing on the motion on September 10, 2013.
{¶8}. On September 30, 2013, appellant filed a post-hearing supplemental memorandum.
{¶9}. On October 8, 2013, the trial court issued a judgment entry denying the motion to suppress.
{¶10}. The case proceedеd to trial, and on January 29, 2014, the jury found appellant guilty of OVI. He was also found guilty of a front license plate violation by the trial court. He was thereupon sentenced, inter alia, to one-hundred eighty days in jail, with ninety days suspended.
{¶11}. Appellant filed a notice of appeal on February 27, 2014. He herein raises the following three Assignments of Error:
{¶13}. “II. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE RESULTS OF THE HORIZONTAL GAZE NYSTAGMUS TEST BECAUSE IT WAS NOT DONE IN SUBSTANTIAL COMPLIANCE WITH NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION (NHTSA) STANDARDS.
{¶14}. “III. THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO SUPPRESS BECAUSE THE ARRESTING OFFICER LACKED PROBABLE CAUSE TO ARREST THE APPELLANT FOR OVI.”
I.
{¶15}. In his First Assignment of Error, appellant contends the trial court erred in failing to suppress the field sobriety testing conducted by the officers at the scene of the traffic stop. We disagree.
{¶16}. There are three methods of challenging on appeal a trial court‘s ruling on a motion to suppress. First, an appellant may challenge the trial court‘s finding of fact. Second, an appellаnt may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this third type of claim, an appellate court must independently determine, without deference to the trial court‘s conclusion, whether the facts meet the appropriate legal standard in the given cаse. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906;
{¶17}. As an initial matter, we note appellant does not per se challengе the officers’ initial stop of appellant‘s vehicle based on the missing license plate and the turn into the private driveway. Our initial task is thus to analyze the reasonableness of the officers’ utilization of field sobriety testing in the context of thе traffic stop at issue.
{¶18}. The
{¶19}. “A request made of a validly detained motorist to perform field sobriety tests is generally outside the scope of the original stop, and must be separately justified by other specific and articulable facts showing a reasonable basis for the request.” State v. Anez (2000), 108 Ohio Misc.2d 18, 26, 738 N.E.2d 491. In reviewing this issue, we apply a “totality of the circumstances” approaсh. See, e.g., City of Fairfield v. Lucking, Butler App. No. CA2002-12-303, 2004-Ohio-90, at ¶ 8, citing State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044.
{¶20}. As set forth in our recitation of facts, appellant had turned into a long private driveway at a very late hour and gave a geographically questionable explanation of his presence in the area. During the stoр, he admitted to having been at an alcohol-
{¶21}. Appellant‘s First Assignment of Error is therefore overruled.
II.
{¶22}. In his Second Assignment of Error, appellant contends the HGN field sobriety test was not conducted by Officer Pearce in substantial compliance with NHTSA standards, and should have been suppressed by the trial court.
{¶23}. Under the general rule of
{¶24}. In the case sub judicе, appellant specifically argues that Officer Pearce gave no indication that verbal instructions for the HGN test were actually provided to
{¶25}. While appellant correctly recites that the State maintains the burden in a suppression hearing to show substantial compliance with field sobriety testing methods, wе hold the limited assertion in appellant‘s motion to suppress in this case was insufficient to put the prosecutor and trial court on notice as to the present specific concerns about Officer Pearce‘s roadside HGN testing procedures under the NHTSA. Cf. State v. Grove, 5th Dist. Fairfield No. 01-CA-41, 2002-Ohio-3677, ¶ 36. As such, we find the waiver doctrine applies against appellant‘s arguments under the circumstances presented.
{¶26}. Appellant‘s Second Assignment of Error is therefore overruled.
{¶27}. In his Third Assignment of Error, appellant contends his arrest by the officers was effectuated without probable cause, and thus the results thereof should have been suppressed by the trial court. We disagree.
{¶28}. Under Ohio law, a police officer has probable cause for an arrest if the facts and circumstances within his knowledge are sufficient to cause a reasonably prudent person to believe that the defendant has committed the offense. State v. Cummings, Stark App.No. 2005-CA-00295, 2006-Ohio-2431, ¶ 15, citing State v. Heston (1972), 29 Ohio St.2d 152, 280 N.E.2d 376. “The arrest merely has to be supported by the arresting officer‘s observations of indicia of alcohol consumption and operation of a motor vehicle while under the influence of alcohol.” State v. Eustis, Knox App.No. 08CA000006, 2008-Ohio-5955, citing State v. Van Fossen (1984), 19 Ohio App.3d 281, 484 N.E.2d 191. In making this determination, the trial court must examine the totality of facts and circumstances surrounding the arrest. See State v. Miller (1997), 117 Ohio App.3d 750, 761, 691 N.E.2d 703; State v. Brandenburg (1987), 41 Ohio App.3d 109, 111, 534 N.E.2d 906. Furthermore, a police officer does not have to observe poor driving performance in order to effect an arrest for driving under the influence of alcohol if all the facts and circumstances lead to thе conclusion that the driver was impaired. See State v. Harrop (July 2, 2001), Muskingum App.No. CT2000-0026, citing Atwell v. State (1973), 35 Ohio App.2d 221, 301 N.E.2d 709.
{¶29}. In the case sub judice, the officers were presented with, inter alia, a driver who had turned into a private driveway (known not to be his own) between 3:00 and 4:00 AM, and who admitted to having visited a saloon. The drivеr, appellant, displayed
{¶30}. Appellant emphasizes that he was not observed driving erratically and that there was no mention of the odor of alcoholic beverage or drugs at the traffic stop. Appellant also notes the sрecific terminology of “slurred” speech and “bloodshot” eyes was not alleged, and that he did not admit to actual consumption of alcohol on the night in question. Appellant also directs us to several appellate decisiоns which, he argues, demonstrate findings of insufficient probable cause “where officers had more evidence of the defendant‘s intoxication than in the present case.” See Appellant‘s Brief at 8, citing Upper Arlington v. Wissinger, 10th Dist. Franklin No. 13AP-922, 2014-Ohio-1601; State v. Kolesar, 10th Dist. Franklin No. 00AP-1435, 2001 WL 1098049; State v. Beagle, 2nd Dist. Clark No. 2002-CA-59, 2003-Ohio-4331; State v. Brown (11th Dist.), 166 Ohio App.3d 638, 852 N.E.2d 1228, 2006-Ohio-1172; State v. Gray, 10th Dist. Franklin No. 01AP-1251, 2002-Ohio-4328.
{¶31}. While the cases сited by appellant help shed light on the issues before us, “[i]t has been repeatedly emphasized that probable cause is a fluid concept that is based upon a case-by-case evaluation of the totality of the circumstances.” State v. Reid, 9th Dist. Lorain No. 12CA010265, 2013-Ohio-4274, ¶ 26 (Belfance, P.J., dissenting), citing Florida v. Harris, –––U.S. ––––, 133 S.Ct. 1050, 1055 (2013). See,
{¶32}. Accordingly, we hold the trial court correctly decided the probable cause issue raised in appellant‘s motion to suppress.
{¶33}. Appellant‘s Third Assignment of Error is therefore overruled.
{¶34}. For the foregoing reasons, the judgment of the Municipal Court, Ashland County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
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