State v. TrimbleState v. Trimble
Criminal Appeal from the Municipal Court, Ravenna Division, Case No. 2009 TRC 14716R.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Mordechai Osina and Theresa M. Scahill, Assistant Prosecutors, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
J. Chris Sestak, Student Legal Services, Inc., Kent State University, 164 East Main Street, Suite 203, Kent, OH 44240 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Justin J. Trimble, appeals the judgment of the Portage County Municipal Court, Ravenna Division, denying his motion to suppress and his subsequent conviction for operating a vehicle under the influence of alcohol (OVI), a violation of
{¶3} Trooper Lamm asked appellant to step out of his vehicle and come into the Brimfield Township Police Station. Appellant complied. Once inside the station, Trooper Lamm continued to detect the smell of alcohol and noticed slurred speech. Appellant performed the following sobriety tests: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. Appellant scored six points on the HGN test, performed poorly on the walk-and-turn test, and passed the one-leg stand test. Appellant also admitted to drinking one SPARKS beverage, a caffeinated alcoholic drink. Trooper Lamm arrested appellant for OVI and Mirandized him.
{¶5} Appellant filed a timely notice of appeal raising the following assignment of error:
{¶6} The trial court erred in overruling appellant‘s motion to suppress.
{¶7} Under this assigned error, appellant presents three issues for our review; we will consider his first two issues in a consolidated fashion. First, appellant argues that the trial court erred in overruling his motion to suppress because he was under arrest from the moment he was escorted into the station and, at that time, there was not probable cause to arrest him. Second, appellant maintains that because the field sobriety tests were not administered until after he was under arrest, the tests are inadmissible.
{¶8} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8. The appellate court is bound to accept the trial court‘s factual findings, given they are supported by sound evidence. Id., citing State v. Fanning (1982), 1 Ohio St.3d 19. Thereafter, the appellate court applies the law, de novo, to the facts discovered by the trial court to independently determine whether the facts meet the appropriate legal standard. Ornelas v. U.S. (1996), 517 U.S. 690, 696.
{¶10} Encounters between police and citizens can generally be classified into one of three categories: consensual encounter, brief investigatory stop, and formal arrest. Each category requires a heightened evidentiary standard. Consensual encounter, the first level, requires the lowest evidentiary standard. State v. Trevarthen, 11th Dist. No. 2010-L-046, 2011-Ohio-1013, at ¶12. When an officer approaches an individual in or near a parked car, the encounter is considered consensual. State v. Ball, 11th Dist. No. 2009-T-0013, 2010-Ohio-714, at ¶12, quoting State v. Staten, 4th Dist. No. 03CA1, 2003-Ohio-4592, at ¶18.
{¶11} Because a request that an individual perform field sobriety tests is a greater invasion of one‘s liberty interests, these tests must be separately justifiable by specific, articulable facts, which show a reasonable basis for the request. State v. Evans (1998), 127 Ohio App.3d 56, 62. (Citation omitted.) Reasonableness is shown by considering the circumstances in whole. Id. at 61.
{¶12} In Evans, this court outlined a non-exclusive list of factors to consider in order to determine whether a police officer has reasonable suspicion to justify
{¶13} (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 (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. 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. No single factor is determinative. State v. Evans, 127 Ohio App.3d at 63, fn. 2.
{¶14} Courts generally defer to the law enforcement officer‘s judgment in deciding to conduct field sobriety tests when the officer‘s decision was based on a number of factors. Id.
{¶16} Trooper Lamm testified that he approached appellant‘s vehicle to determine if he was a licensed driver. When an officer approaches an individual in a parked car, the encounter is consensual. State v. Ball, 2010-Ohio-714, at ¶12, quoting State v. Staten, 2003-Ohio-4592, at ¶18. Trooper Lamm had an affirmative duty to ensure that the arrestee in his custody was released to a licensed driver. As testified to by Trooper Lamm, it is protocol of the Ohio State Highway Patrol to release arrestees only to licensed, non-inebriated drivers. However, when Trooper Lamm approached appellant‘s vehicle, he smelled a strong odor of alcohol coming from inside the car. Trooper Lamm also testified that he noticed slurred speech and glazed eyes. This, coupled with the time and day of the occurrence, provided the specific, articulable facts necessary to provide a reasonable basis for asking appellant to submit to field sobriety tests.
{¶17} In his third argument, appellant contends the arrest was unconstitutional because Trooper Lamm did not have probable cause to arrest him before he entered the Brimfield Police Station. However, Trooper Lamm testified that appellant was not arrested until after he performed three field sobriety tests inside the police station. Trooper Lamm had a reasonable suspicion to ask appellant to undergo field sobriety tests once he noticed the smell of alcohol, glazed eyes, and slurred speech at appellant‘s vehicle. It was not until Trooper Lamm had administered a series of field
{¶18} The decision reached in this case is consistent with this court‘s earlier decisions in Phipps, Trevarthen, and Hurtek. In Phipps, this court held it is not necessary that an officer have reasonable suspicion to approach a parked car. State v. Phipps, 11th Dist. No. 2006-P-0098, 2007-Ohio-3842, at ¶20-21. Like Phipps, Trooper Lamm approached the vehicle only to ensure appellant was a licensed driver and that the arrestee in his custody was being released according to Ohio State Highway Patrol policy.
{¶19} Similarly, in Hurtuk, the appellant drove to the Ohio State Patrol Post to pick up a friend arrested for OVI. State v. Hurtuk, 11th Dist. Nos. 2008-P-0077 & 2008-P-0096, 2009-Ohio-1004, at ¶4. The officer in that case noticed slightly stuttered speech, glazed eyes, and a smell of alcohol when he approached the vehicle. Id. This court held that the officer‘s conduct in asking the appellant to undergo field sobriety tests did not require special justification following the officer‘s observations. Id. at ¶14. In the instant matter, Trooper Lamm‘s conduct is also not suspect.
{¶20} Most recently, in Trevarthen, this court held that a consensual encounter occurs when a trooper approaches a vehicle to determine whether the driver is licensed. State v. Trevarthen, 11th Dist. No. 2010-L-046, 2011-Ohio-1013, at ¶19. In Trevarthen, the appellant was arrested for OVI after an Ohio State Highway Patrol trooper approached him in the parking lot of the Lake County Jail. The appellant was at the station to pick up an arrestee being released following his own OVI arrest. Id. The
{¶21} Comparable to the facts in Phipps, Trevarthen, and Hurtek, Trooper Lamm approached appellant‘s parked vehicle to confirm that the arrestee in custody was being released to a licensed driver. Appellant‘s glazed eyes, slurred speech, and the smell of alcohol gave Trooper Lamm the specific, articulable facts necessary to further investigate whether he was in violation of
{¶22} Appellant argues that once he was escorted into the Brimfield Police Station, he was under arrest. Appellant contends that he was deprived of his liberty beyond a mere investigatory stop, urging this court to find these facts analogous to those in Hayes v. Florida (1985), 470 U.S. 811. In Hayes, police were investigating a series of burglary-rapes occurring in Punta Gorda, Florida. With very little specific evidence tying Hayes to the crimes, police interviewed him and 30 to 40 other men. Id. at 812. Without a warrant, the police revisited Hayes’ home and told him to accompany them to the police station to obtain his fingerprints or he would be arrested. Id. Hayes was later convicted for burglary and rape. Id.
{¶23} In Hayes, the Supreme Court of the United States reversed the state‘s conviction, stating: *** [t]he line is crossed when the police, without probable cause or a
{¶24} Appellant also cites to Dunaway v. New York (1979), 442 U.S. 200. Similarly, the court in Dunaway found the defendant was involuntarily seized. Id. at 212.
{¶25} In this case, appellant was not involuntarily removed from his home nor was he transported to the police station. Rather, appellant transported himself to the police station in order to pick up his friend. Trooper Lamm testified that he returned to the inside of the police station to process appellant‘s driver‘s license. Trooper Lamm testified that appellant‘s minimal transportation was necessary to verify appellant‘s license; it was not an intrusion into his Fourth Amendment rights to undergo field sobriety tests inside the station as opposed to the station‘s parking lot.
{¶26} Appellant‘s assignment of error is without merit.
{¶27} For the foregoing reasons, the decision of the Portage County Municipal Court, Ravenna Division, is affirmed.
MARY JANE TRAPP, J.,
THOMAS R. WRIGHT, J.,
concur.