State v. Ellis ( 2020 )

[Cite as State v. Ellis, 2020-Ohio-3910.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2020CA00004
ANTHONY P. ELLIS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County
Municipal Court, Case No. TRC1902700
JUDGMENT: Affirmed in part; Reversed in part
DATE OF JUDGMENT ENTRY: July 30, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RANDALL T/ ULLOM JONATHAN T/ TYACK
Lancaster Law director MADISON MACKAY
By: JOSEPH SABO 536 S. High Street
Assistant Law Director Columbus, OH 43215
59 N. Main Street
London, OH 43140
Fairfield County, Case No. 2020CA00004 2
Gwin, P.J.
{¶1} Defendant-appellant Anthony Ellis [“Ellis”] appeals the October 9, 2019
judgment entry of the Fairfield Municipal Court overruling his motion to suppress.
Facts and Procedural History
{¶2} On March 30, 2019 at approximately 2:00 a.m., Fairfield County Deputy
Sheriff Justin Mann was driving north on Center Street in Pickerington, Fairfield County,
Ohio. He was in uniform, driving a marked sheriff’s cruiser. Deputy Mann noticed an SUV
go left of center in front of his vehicle. In between the deputy’s vehicle and the SUV was
a silver sedan that appeared to be following the SUV.
{¶3} The SUV stopped in the middle of the roadway at East Street and North
Center Street and remain stopped for approximately 4-5 seconds before making a right
hand turn onto East Street. ST. at 10.1 The silver sedan continued to follow the SUV.
Deputy Mann followed the two vehicles onto East Street. The SUV tuned right onto
Columbus Street, aka State Route 256 and crossed over the center line for the second
time. ST. at 11. At the intersection of East Street and Columbus Street the SUV and the
silver sedan turned right back onto Columbus Street where Deputy Mann observed
another marked lane violation. ST. at 11. At the intersection of Columbus Street and Hill
Road North, the SUV and the silver sedan turned into the parking lot of the Circle K on
the southwest side of the intersection. ST. at 11. Both the SUV and the silver sedan
turned into the rear entrance. Deputy Mann turned into the first entrance and came nose
to nose with the SUV. ST. at 12. The silver sedan turned into a parking spot in the rear of
the building approximately 50 feet away. ST. at 13. Deputy Mann activated his overhead
1 For clarity, the transcript of the October 8, 2019 hearing on Ellis’ motion to suppress will be
referred to as “ST.”
Fairfield County, Case No. 2020CA00004 3
lights to effectuate a traffic stop of the SUV. ST. at 12. Deputy Mann contacted dispatch
and began to speak when he saw the driver side door of the SUV open and the driver,
later identified as Ellis, began to exit the SUV. ST. at 13. Deputy Mann pulled his service
weapon and ordered Ellis to get back inside the SUV. ST. at 13. Deputy Mann testified
that he did not know if Ellis was going to run or to confront him and he drew his weapon
to protect himself. ST. at 14. Ellis complied with Deputy Mann’s directives, got back inside
the SUV, closed the door and rolled down the window. ST. at 15-16. Deputy Mann called
for back-up because the SUV and the silver sedan were both in the parking lot.
{¶4} Deputy Mann holstered his weapon and approached the driver’s side
window of the SUV. Deputy Mann advised Ellis of the reason for the stop and asked Ellis
where he had been and where he was going. ST. at 15. Deputy Mann immediately
noticed an “obvious and strong odor of an alcoholic beverage emitting from the vehicle.”
ST. at 16. The deputy also noted, glassy, bloodshot eyes and slurred or thick tongue
speech. ST. at 16-17.
{¶5} Ellis told the deputy that he was coming from a friend’s house. Ellis denied
that he had been drinking when asked by Deputy Mann. ST. at 17. Deputy Mann left the
SUV and went to speak with the driver of the silver sedan.
{¶6} The sole occupant of the silver sedan was a female who told the deputy that
she had met Ellis at a bar and was following him home to make sure that Ellis got home
safely. ST. at 18. She told the deputy that she arrived at the bar after Ellis. ST. at 19.
She further reported witnessing Ellis consume three beers; however she agreed that Ellis
had “significantly more.” ST. at 19. Deputy Dunlap arrived on the scene and took over
the handling of the female from Deputy Mann. ST. at 19.
Fairfield County, Case No. 2020CA00004 4
{¶7} Deputy Mann returned to the SUV and asked Ellis to step out of the vehicle
to perform the Standardized Filed Sobriety tests [“FST’s”]. ST. at 19-20. As Ellis
attempted to exit the SUV, he had to use the driver’s door to steady himself as it appeared
he was having balancing issues. ST. at 20. As Deputy Mann began to perform the
Horizontal Gaze Nystagmus test [“HGN”] Ellis told Deputy Mann that he was not going to
take any of the FST’s. ST. at 20-21. Deputy Mann asked Ellis five to six times. Ellis
refused each time. ST. at 21. Deputy Mann then advised Ellis that he was under arrest
for OVI. ST. at 21. Ellis was handcuffed and read his Miranda rights and put in the
backseat of the cruiser. ST. at 21. The parties stipulated that Deputy Mann and assisting
Deputy Dunlap performed a pre-tow inventory search of Ellis's vehicle and located two
empty beer cans and an empty mason jar that smelled of raw marijuana. ST. at 34.
{¶8} Ellis was charged with OVI, in violation of R.C. 4511.19(A)(1)(a), Stopping
or Slow speed, in violation of RC. 4511.22, and Driving in Marked lanes, in violation of
R.C. 4511.33.
{¶9} Ellis filed a Motion to Suppress on June 7, 2019 and the matter was heard
by the trial court on October 8, 2019. The trial court determined that Ellis was not arrested
and Mann's use of force was reasonable given the circumstances that existed during the
stop.
{¶10} On December 19, 2019, Ellis pled no contest to OVI and the trial court found
him guilty of OVI. The remaining two charges were dismissed. The trial court sentenced
Ellis to pay a fine of $375, a one-year driver's license suspension, two years of community
control, and 120 days in jail, 117 of those days suspended pending credit for three days
in a driver's intervention program.
Fairfield County, Case No. 2020CA00004 5
Assignments of Error
{¶11} Ellis raises two Assignments of Error,
{¶12} “I. THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY WHICH
REFLECTS MR. ELLIS PLEAD GUILTY TO OVI, WHEN THE RECORD SHOULD
ACCURATELY REFLECT THAT HE PLEAD NO CONTEST AND WAS FOUND GUILTY
BY THE TRIAL COURT.
{¶13} “II. THE TRIAL COURT ERRED WHEN IT DENIED MR. ELLIS' MOTION
TO SUPPRESS, AS MR. ELLIS WAS ARRESTED IN VIOLATION OF HIS RIGHTS
UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.”
I.
{¶14} The state concedes that the trial court's Final Judgement Entry contains a
clerical error. Specifically, the Final Judgment Entry indicates that Ellis pleaded “Guilty”
instead of “”No Contest” during his plea colloquy.
{¶15} On December 19, 2019, Ellis entered a plea of “No Contest” to OVI, a
violation of R.C. 4511.19(A)(1)(a). Change of Plea and Sentencing Transcript, at 4-5. The
trial court subsequently found Ellis guilty of the offense. Id. However, the Final Judgment
Entry filed by the trial court mistakenly indicated that Ellis entered a plea of “Guilty.”
{¶16} Accordingly, Ellis’ First Assignment of Error is sustained. Therefore, this
matter is remanded to the trial court for the limited purpose of issuing a nunc pro tunc
sentencing entry to correct the erroneous final judgment entry.
Fairfield County, Case No. 2020CA00004 6
II.
{¶17} In his Second Assignment of Error, Ellis argues the trial court erred in
overruling his motion to suppress. Specifically, Ellis contends that Deputy Mann
unlawfully arrested Ellis in violation of his constitutional rights when Deputy Mann drew
his service revolver and ordered Ellis to get back into the SUV.
2.1 Standard of Appellate Review.
{¶18} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;
State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing
court must defer to the trial court’s factual findings if competent, credible evidence exists
to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio
App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as
true, it must independently determine as a matter of law whether the trial court met the
applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534
U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,
116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial
court’s findings of fact is subject to a de novo standard of review Ornelas, supra.Fairfield County, Case No. 2020CA00004 7
Moreover, due weight should be given “to inferences drawn from those facts by resident
judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.
2.2. Issue for Appellate Review: Did Deputy Mann have a reasonable articulable
suspicion sufficient to warrant him in stopping the SUV that Ellis was driving?
{¶19} The Fourth Amendment to the United States Constitution guarantees “[t]he
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures * * *.” The Fourth Amendment is enforced against
the States by virtue of the due process clause of the Fourteenth Amendment of the United
States Constitution. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081(1961). The stop of a vehicle and the detention of its occupants by law enforcement, for
whatever purpose and however brief the detention may be, constitutes a seizure for
Fourth Amendment purposes. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59
L.Ed.2d 660 (1979), citing United States v. Martinez-Fuerte, 428 U.S. 543, 556-558, 96
S.Ct. 3074, 49 L.Ed.2d 1116 (1976).
{¶20} The Supreme Court of Ohio has observed, “‘[a]uthorities seem to be split as
to whether a traffic stop is reasonable when supported merely by reasonable suspicion,
or whether the heightened standard of probable cause must underlie the stop.’ ” City of
Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, ¶ 13,
quoting Gaddis ex rel. Gaddis v. Redford Twp., 188 F.Supp.2d 762, 767(E.D.Mich.2002).
There are actually two types of “traffic” stops, and each has a different constitutional
standard applicable to it. In State v. Moller, the Court of Appeals observed,
First is the typical non-investigatory traffic stop, wherein the police
officer witnesses a violation of the traffic code, such as crossing over the
Fairfield County, Case No. 2020CA00004 8
centerline of a road, and then stops the motorist for this traffic violation.
Second is the investigative or “Terry” stop, wherein the officer does not
necessarily witness a specific traffic violation, but the officer does have
sufficient reason to believe that a criminal act has taken place or is
occurring, and the officer seeks to confirm or refute this suspicion of criminal
activity. See Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-1880
[20 L.Ed.2d 889]. A non-investigatory traffic stop must be supported by
probable cause, which arises when the stopping officer witnesses the traffic
violation. See Whren v. United States (1996), 517 U.S. 806, 810, 116 S.Ct.
1769, 1772 [135 L.Ed.2d 89]; Pennsylvania v. Mimms (1977), 434 U.S. 106,
109, 98 S.Ct. 330, 332 [54 L.Ed.2d 331]. By contrast, an investigatory Terry
stop is proper so long as the stopping officer has “reasonable articulable
suspicion” of criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. at 1879-1880.
12th Dist. Butler No. CA99-07-128, 2000 WL 1577287 (Oct. 23, 2000); Accord, State v.
Baughman, 192 Ohio App.3d 45, 2011-Ohio-162, 947 N.E.2d 1273 (12th Dist.), ¶ 14;
State v. Nwachukwa, 3rd Dist. Marion No. 9-15-03, 2015-Ohio-3282, ¶ 24; ¶ 26; State v.
Woods, 5th Dist. Licking No. 18-CA-13, 2018-Ohio-3379, 117 N.E. 3d 1017, ¶14.
{¶21} The cause for a non-investigatory traffic stop has been succinctly stated by
the Supreme Court of Ohio: “Where a police officer stops a vehicle based upon probable
cause that a traffic violation has occurred or was occurring, the stop is not unreasonable
under the Fourth Amendment to the United States Constitution[.]” Dayton v. Erickson, 76
Ohio St.3d 3, 11-21, 665 N.E.2d 1091 (1996). Probable cause is defined in terms of “facts
or circumstances ‘sufficient to warrant a prudent man in believing that the (suspect) had
Fairfield County, Case No. 2020CA00004 9
committed or was committing an offense.’ ” Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct.
854, 861, 43 L.Ed.2d 54 (1975), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225,
13 L.Ed.2d 142 (1964).
{¶22} In State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4538, 894 N.E.2d 1204,
the defendant argued that his actions in the case – twice driving across the white edge
line – were not enough to constitute a violation of the driving within marked lanes statute,
R.C. 4511.33. Id. at ¶ 15. The appellant further argued that the stop was unjustified
because there was no reason to suspect that he had failed to first ascertain that leaving
the lane could be done safely or that he had not stayed within his lane “as nearly as [was]
practicable,” within the meaning of R.C. 4511.33(A)(1). In rejecting these arguments, the
Supreme Court noted, “the question of whether appellant might have a possible defense
to a charge of violating R.C. 4511.33 is irrelevant in our analysis of whether an officer has
a reasonable and articulable suspicion to initiate a traffic stop. An officer is not required
to determine whether someone who has been observed committing a crime might have
a legal defense to the charge.” Id. at ¶ 17. The Supreme Court concluded that a law-
enforcement officer who witnesses a motorist drift over lane markings in violation of a
statute that requires a driver to drive a vehicle entirely within a single lane of traffic has
reasonable and articulable suspicion sufficient to warrant a traffic stop, even without
further evidence of erratic or unsafe driving. Id. at syllabus. In Mays, the Ohio Supreme
Court made the following observation as it pertains to Ohio law,
Appellant’s reliance on [Dayton v.] Erickson [76 Ohio St.3d 3, 665
N.E.2d 1091 (1996)], and in Whren v. United States (1996), 517 U.S. 806,
116 S.Ct. 1769, 135 L.Ed.2d 89, is misplaced. Probable cause is certainly
Fairfield County, Case No. 2020CA00004 10
a complete justification for a traffic stop, but we have not held that probable
cause is required. Probable cause is a stricter standard than reasonable
and articulable suspicion. State v. Evans (1993), 67 Ohio St.3d 405, 411,
618 N.E.2d 162. The former subsumes the latter. Just as a fact proven
beyond a reasonable doubt has by necessity been proven by a
preponderance, an officer who has probable cause necessarily has a
reasonable and articulable suspicion, which is all the officer needs to justify
a stop. Erickson and Whren do not hold otherwise.
119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23. (Emphasis added). The
Ohio Supreme Court concluded,
Therefore, if an officer’s decision to stop a motorist for a criminal
violation, including a traffic violation, is prompted by a reasonable and
articulable suspicion considering all the circumstances, then the stop is
constitutionally valid.
119 Ohio St.3d 406, ¶8 (emphasis added). See, State v. Marcum, 5th Dist. Delaware No.
18-CAC-11 0083, 2019-Ohio-2293.
{¶23} In the case at bar, Ellis concedes that his actions in stopping in the roadway
and failing to drive in marked lanes provided sufficient justification for Deputy Mann to
effectuate a traffic stop. [Appellant’s brief at 4].
2.3. Issue for Appellate Review: Whether Ellis was lawfully detained for traffic
violations.
{¶24} In the case at bar, Deputy Mann testified that he followed the SUV and the
silver sedan into the Circle K parking lot to effectuate a traffic stop of the SUV after having
Fairfield County, Case No. 2020CA00004 11
witnessed numerous traffic violations. He parked his cruiser directly facing the SUV and
activated his overhead lights. ST. at 12-13. Ellis concedes that the traffic stop was proper.
[Appellant’s brief at 4].
{¶25} The Ohio Supreme Court has held,
“[W]hen detaining a motorist for a traffic violation, an officer may
delay the motorist for a time period sufficient to issue a ticket or a warning.
State v. Keathley (1988), 55 Ohio App.3d 130, 131 [562 N.E.2d 932]. This
measure includes the period of time sufficient to run a computer check on
the driver’s license, registration, and vehicle plates. State v. Bolden, Preble
App. No. CA2003–03–007, 2004–Ohio–184 [2004 WL 77617], ¶ 17, citing
Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391 [59 L.Ed.2d
660]. “In determining if an officer completed these tasks within a reasonable
length of time, the court must evaluate the duration of the stop in light of the
totality of the circumstances and consider whether the officer diligently
conducted the investigation.” State v. Carlson (1995), 102 Ohio App.3d
585, 598–599 [657 N.E.2d 591], citing State v. Cook (1992), 65 Ohio St.3d
516, 521–522 [605 N.E.2d 70], and U.S. v. Sharpe (1985), 470 U.S. 675,
105 S.Ct. 1568 [84 L.Ed.2d 605].
State v. Batchili, 113 Ohio St.3d 403, 2007–Ohio–2204, 865 N.E .2d 1282, ¶ 12.
{¶26} In the case at bar Ellis was not free to leave even if Deputy Mann had not
drawn his service revolver and ordered Ellis to get back inside the SUV. Deputy Mann
could lawfully detain Ellis until Deputy Mann finished his investigation and issued Ellis the
Fairfield County, Case No. 2020CA00004 12
traffic citations. As the Ohio Supreme Court has recognized in the context of questioning
a suspect in the front seat of a police car,
Oles contends that his belief that he was not free to leave should be
dispositive. The court of appeals also articulated the test this way, finding
that a reasonable person would not have felt free to leave. But the relevant
inquiry is whether a reasonable person in the suspect’s position would have
understood himself or herself to be in custody. This nuance is important and
well-reasoned. If the inquiry were whether the driver felt free to leave, then
every traffic stop could be considered a custodial interrogation because “few
motorists would feel free either to disobey a directive to pull over or to leave
the scene of a traffic stop without being told they might do so,” Berkemer,
468 U.S. at 436, 104 S.Ct. 3138, 82 L.Ed.2d 317. And a law-enforcement
officer, in the midst of investigating a traffic stop and performing all its
attendant procedures, would not consider a driver free to leave unless given
permission. But “not free to leave” and “in custody” are distinct concepts.
City of Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.2d 810, ¶30. In this
case although Ellis was not “free to leave”, he was not “in custody.”
{¶27} Factors that indicate a reasonable person would not have felt that he or she
was in “custody” are the fact that Deputy Mann did not order Ellis out of his vehicle. Ellis
was not ordered to his knees or face down on the ground, not patted down, searched or
handcuffed. Deputy Mann ordered Ellis to get back into his own car; and Ellis was
permitted to retain his car keys. See, Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d
810, ¶17-20. Deputy Mann holstered his weapon before approaching the SUV to speak
Fairfield County, Case No. 2020CA00004 13
with Ellis. Further Deputy Mann left Ellis alone in the SUV while he spoke with the driver
of the silver sedan. After holstering his weapon and approaching the car, the encounter
proceeded as a routine traffic stop.
{¶28} Deputy Mann, who was alone, encountered an SUV that was being followed
by another vehicle. Both vehicles pulled into a parking lot. The second vehicle parked a
distance away from the SUV. As Deputy Mann was reporting to dispatch, he observed
the door to the SUV open and the driver begin to exit. We are unwilling to say that under
these circumstances Deputy Mann was unwarranted in his limited use of force to protect
his own safety and assess the danger. Deputy Mann acted reasonably after determining
and assessing the danger to himself by holstering his weapon and approaching the SUV
in a non-threating manner. He conducted the remainder of the encounter just as he would
any other traffic stop. The fact that Deputy Mann drew his service revolver for officer
safety until he could ascertain the threat level that Ellis and the unknown person or person
inside the silver sedan posed to him, does not transform an otherwise valid traffic stop
based upon reasonable, articulable suspicion into an illegal arrest.
{¶29} As the United States Supreme Court has noted,
And we have specifically recognized the inordinate risk confronting
an officer as he approaches a person seated in an automobile. “According
to one study, approximately 30% of police shootings occurred when a police
officer approached a suspect seated in an automobile. Bristow, Police
Officer Shootings—A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963).”
Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924, 32 L.Ed.2d
612 (1972). We are aware that not all these assaults occur when issuing
Fairfield County, Case No. 2020CA00004 14
traffic summons, but we have before expressly declined to accept the
argument that traffic violations necessarily involve less danger to officers
than other types of confrontations. United States v. Robinson, 414 U.S.
218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Indeed, it appears “that a
significant percentage of murders of police officers occurs when the officers
are making traffic stops.” Id., at 234, n. 5, 94 S.Ct. at 476, n. 5
Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331(1977)
(emphasis added). While we agree that an officer may not routinely approach a vehicle
that he or she has lawfully stopped for a traffic violation with his or her gun drawn, we find
that, under the totality of the circumstances in this case, Deputy Mann’s actions were
reasonably related to protecting his personal safety.
A determination as to the reasonableness of a particular police
procedure depends “on a balance between the public interest and the
individual’s right to personal security free from arbitrary interference by law
officers.” United States v. Brignoni–Ponce (1975), 422 U.S. 873, 878, 95
S.Ct. 2574, 2579, 45 L.Ed.2d 607, 614–615. Certainly, it is reasonable that
the officer, who has a legitimate reason to so detain that person, is
interested in guarding against an ambush from the rear. “A court reviewing
the officer’s actions must give due weight to his experience and training and
view the evidence as it would be understood by those in law enforcement.”
Andrews, supra, 57 Ohio St.3d at 88, 565 N.E.2d at 1273.
State v. Evans, 67 Ohio St.3d 405, 410, 1993-Ohio-186, 618 N.E.2d 162(1993).
Fairfield County, Case No. 2020CA00004 15
{¶30} Accordingly based upon the totality of the circumstances, although he was
not free to leave, Ellis was not “in custody” as Deputy Mann conducted his investigation
for the purpose of issuing traffic citations to Ellis. Deputy Mann’s limited and momentary
display of force for the purpose of assessing the danger to his personal safety was
reasonable under the totality of the circumstances.
2.4. Issue for Appellate Review: Whether Deputy Mann had probable cause to
arrest Ellis for OVI?
{¶31} If a law enforcement officer, during a valid investigative stop, ascertains
“reasonably articulable facts giving rise to a suspicion of criminal activity, the officer may
then further detain and implement a more in-depth investigation of the individual.” State
v. Robinette, 80 Ohio St.3d 234, 241, 685 N.E.2d 762(1997).
{¶32} In Ohio, it is well settled that, where a non-investigatory stop is initiated and
the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of
intoxication, such as an admission of having consumed alcohol, reasonable suspicion
exists. State v. Wells, 2nd Dist. Montgomery No. 20798, 2005-Ohio-5008; State v.
Cooper, 2nd Dist. Clark No.2001-CA-86, 2002-Ohio-2778; State v. Robinson, 2nd Dist.
Greene No.2001-CA-118, 2002-Ohio-2933; State v. Mapes, 6th Dist. Fulton No. F-04-
031, 2005-Ohio-3359 (odor of alcohol, ‘slurred speech’ and glassy and bloodshot eyes);
Village of Kirtland Hills v. Strogin, 11th Dist. Lake No. 2005-L-073, 2006-Ohio-1450; State
v. Beeley, 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, ¶16, New London v. Gregg,
6th Dist. Huron No. H-06-030, 2007-Ohio-4611; State v. Bright, 5th Dist. Guernsey No.
2009-CA-28, 2010-Ohio-1111, ¶22.
Fairfield County, Case No. 2020CA00004 16
{¶33} In the case at bar, Deputy Mann witnessed Ellis commit numerous traffic
violations. Deputy Mann testified that when he approached the driver’s side window of
the SUV he immediately noticed an “obvious and strong odor of an alcoholic beverage
emitting from the vehicle.” ST. at 16. The deputy also noted, glassy, bloodshot eyes and
slurred or thick tongue speech. ST. at 16-17. Ellis lied to Deputy about his whereabouts.
Ellis told the deputy that he was coming from a friend’s house. Ellis lied to the deputy
about his consumption of alcohol. Ellis denied that he had been drinking when asked by
Deputy Mann. ST. at 17. Deputy Mann then spoke to the driver of the silver sedan. The
sole occupant of the silver sedan was a female who told the deputy that she had met Ellis
at a bar and was following him home to make sure that Ellis got home safely. ST. at 18.
She told the deputy that she arrived at the bar after Ellis. ST. at 19. She further reported
witnessing Ellis consume three beers; however she agreed that Ellis had “significantly
more.” ST. at 19. Deputy Mann retuned to the SUV and asked Ellis to step out of the
vehicle to perform the Standardized Filed Sobriety tests [“FST’s”]. ST. at 19-20. As Ellis
attempted to exit the SUV, he had to use the driver’s door to steady himself as it appeared
he was having balancing issues. ST. at 20. As Deputy Mann began to perform the
Horizontal Gaze Nystagmus test [“HGN”] Ellis told Deputy Mann that he was not going to
take any of the FST’s. ST. at 20-21. Deputy Mann asked Ellis five to six times. Ellis
refused each time. ST. at 21.
{¶34} On these facts Deputy Mann had probable cause to believe that Ellis was
driving while under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1))(a).
Because Deputy Mann had probable cause to believe that Ellis was violating R.C.
4511.19(A)(1)(a), Ellis was not unreasonably or unlawfully seized or arrested.
Fairfield County, Case No. 2020CA00004 17
{¶35} Ellis’ Second Assignment of Error is overruled.
{¶36} The judgment of the Fairfield County, Ohio Municipal Court is affirmed, in
part and reversed, in part and this matter is remanded to the trial court for the limited
purpose of issuing a nunc pro tunc sentencing entry to correct the erroneous final
judgment entry to reflect that Ellis pled “No Contest.”
By Gwin, P.J.,
Delaney, J., and
Wise, Earle, J., concur