Cleveland v. Jones , 2019 Ohio 1525 ( 2019 )

[Cite as Cleveland v. Jones, 2019-Ohio-1525.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 107257
v. :
DONTE E. JONES, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 25, 2019
Criminal Appeal from the Cleveland Municipal Court
Case No. 2016-TRC-000234
Appearances:
Mark A. Stanton, Public Defender, Paul Kuzmins and
David Martin King, Assistant Public Defenders, for
appellant.
Barbara A. Langhenry, Law Director, and Michael S. Kan,
Assistant City Prosecutor, for appellee.
MICHELLE J. SHEEHAN, J.:
Donte Jones appeals from a judgment of the Cleveland Municipal
Court that convicted him of OVI. He claims the trial court erred in denying his
motion to suppress. For the following reasons, we affirm the trial court’s judgment.
On January 1, 2016, around 4:30 a.m., Trooper Timothy Kay stopped
Jones’s vehicle after observing him driving erratically — Jones’s vehicle approached
the trooper’s vehicle from behind at a high rate of speed, and Trooper Kay testified
that a near-collision was avoided at the last minute. Jones’s speech was slow and
slurred and his eyes glassy and bloodshot, and the trooper also detected an odor of
alcohol emitting from inside the vehicle. Trooper Kay asked Jones to step out of his
vehicle and then conducted field sobriety tests on Jones. Jones performed poorly on
the tests, and Trooper Kay placed him under arrest for OVI.
Jones received a citation for driving under the influence of alcohol
(“OVI”) in violation of R.C. 4511.19(A)(1)(a), and another citation for refusing to take
a breath test in violation of R.C. 4511.19(A)(2)(b). In addition, Jones was cited for
driving under suspension in violation of R.C. 4510.11 and for following another
vehicle too closely in violation of R.C. 4511.34 (“Space between moving vehicles”).
Marijuana was found in his vehicle during the subsequent administrative inventory
of the vehicle, and Jones was also charged with possession of marijuana.
Jones filed a motion to suppress. The court conducted a hearing and
denied the motion to suppress. On the day of trial, Jones entered a no contest plea
to OVI and the prosecutor dismissed the remaining counts.
Claims on Appeal and Standard of Review
On appeal, Jones raises three assignments of error:
I. The trial court erred in denying defendant’s motion to suppress
because the arresting officer lacked probable cause to stop
defendant.
II. The trial court erred in denying Mr. Jones’[s] motion to suppress
because the arresting officer did not have reasonable, articulable
suspicion that Mr. Jones was intoxicated sufficient to subject
him to sobriety tests.
III. The trial court erred in denying Mr. Jones’[s] motion to suppress
because the arresting officer did not have sufficient evidence that
Mr. Jones had been operating a vehicle while intoxicated, and
therefore did not have probable cause for the warrantless arrest.
The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures lacking probable cause. The
prohibition applies to the stopping of motor vehicles and the seizing of its occupants.
Cleveland Hts. v. Brisbane, 2016-Ohio-4564, 70 N.E.3d 52, ¶ 14 (8th Dist.), citing
Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), paragraph
two of the syllabus.
On appeal, Jones argues the trial court should have granted his
motion to suppress because the trooper lacked probable cause to stop his vehicle,
did not have reasonable suspicion to subject him to the field sobriety tests, and
lacked probable cause to arrest him without a warrant.
An appellate review of a motion to suppress presents a mixed
question of law and fact; we accept the trial court’s findings of fact if they are
supported by competent, credible evidence but must independently determine
whether the facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “[W]hen there is substantial
evidence to support the factual findings of the trial court, the decision on the motion
to suppress will not be disturbed on appeal absent an error of law.” State v. Bates,
8th Dist. Cuyahoga No. 92323, 2009-Ohio-5819, ¶ 36, citing State v. DePew, 38
Ohio St.3d 275, 528 N.E.2d 542 (1988).
The Trooper’s Testimony at the Suppression Hearing
Trooper Kay, a seven-year veteran of the Ohio State Highway Patrol,
testified that on January 1, 2016, around 4:30 a.m., as he was ending his shift and
driving back to his patrol post, he spotted in his rearview mirror a vehicle travelling
at a high rate of speed toward him. At the time, Trooper Kay was travelling
westbound in the center lane on Interstate 90 West, close to the Interstate 77 South
interchange. At the last second, the other vehicle veered to the right. Once the
vehicle changed to the right lane, it slowed down and passed the trooper’s vehicle on
the right. The trooper followed the vehicle as it merged onto Interstate 77 and then
proceeded to exit off the Woodland Avenue exit. The trooper initiated a traffic stop
at this point. The driver — later identified as Jones — had a “dazed” look. He
searched his pockets but was unable to provide his driver’s license. His speech was
“slow and slurred.” There was a moderate odor of alcohol emitting from inside the
vehicle. Based on these indicators of impairment, including his demeanor, the
trooper asked Jones to step outside the vehicle so that he could ask him to perform
field sobriety tests to determine if he was driving under the influence of alcohol.
When Jones stepped outside the vehicle, the trooper detected the odor of alcohol
coming from his person. The trooper then asked Jones to perform the field sobriety
tests.
Our review of the hearing transcript reflects that the trooper’s
testimony was limited to the circumstances surrounding the traffic stop. He was not
asked to provide testimony about the field sobriety tests or the subsequent arrest.
In the state’s brief opposing Jones’s motion to suppress, the state noted he
performed poorly on the field sobriety tests: six out of six clues for intoxication on
the “HGN” test were observed, and two clues for intoxication on the “VGN” test were
observed.
Probable Cause for the Traffic Stop
Under the first assignment of error, Jones claims the trial court erred
in denying his motion to suppress because the arresting officer lacked probable
cause to stop his vehicle
In Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), the
Supreme Court of Ohio held that “a traffic stop based upon probable cause is not
unreasonable, and that an officer who makes a traffic stop based on probable cause
acts in an objectively reasonable manner.” Id. at 11. Furthermore, pursuant to
Erickson, a police officer may stop a motorist upon his observation that the vehicle
violated a traffic law. In addition, the court in Erickson held that
[w]here a police officer stops a vehicle based on 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 even if the officer had some ulterior motive for making the
stop, such as a suspicion that the violator was engaging in more
nefarious criminal activity.
Erickson at syllabus. In other words, “[a] police officer may effect a traffic stop of
any motorist for any traffic infraction, even if the officer’s true motive is to detect
more extensive criminal conduct.” State v. Bennett, 8th Dist. Cuyahoga No. 86962,
2006-Ohio-4274. Moreover, a traffic stop is lawful even if the traffic violations are
minor, or “de minimis.” See, e.g., Strongsville v. Spoonamore, 8th Dist. Cuyahoga
No. 86948, 2006-Ohio-4884; State v. Parker, 12th Dist. Warren No. CA2006-07-
085, 2007-Ohio-3006.
Subsequent to Erickson, the Supreme Court of Ohio further explained
that, to justify a traffic stop, the officer only need to have a reasonable and articulable
suspicion, which is a lesser standard than probable cause. State v. Mays, 119 Ohio
St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23.
Finally, the question of whether a traffic stop violates the Fourth
Amendment requires “an objective assessment of a police officer’s actions in light of
the facts and circumstances.” Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-
Ohio-3563, 850 N.E.2d 698, ¶ 14. The probable cause inquiry is fact-dependent and
turns on what the officer knew at the time the officer made the stop. Id.Here, Trooper Kay testified he saw in his rearview mirror Jones’s
vehicle approach his vehicle at a high speed and a near collision was avoided at the
last minute. A failure to maintain a safe space between vehicles is a traffic offense
in violation of R.C. 4511.34 (“Space between moving vehicles”). That statute states:
“The operator of a motor vehicle * * * shall not follow another vehicle * * * more
closely than is reasonable and prudent, having due regard for the speed of such
vehicle * * * and the traffic upon and the condition of the highway.” Regarding
R.C. 4511.34, courts have held that “[a]n officer’s direct observation that a vehicle is
following another vehicle too closely provides probable cause to initiate a lawful
traffic stop.” State v. Kelly, 188 Ohio App.3d 842, 2010-Ohio-3560, 937 N.E.2d 149,
¶ 15 (12th Dist.).
Even if Jones’s driving was not a clear violation of R.C. 4511.34 rising
to the level of probable cause, it has been held that, depending on the circumstances,
erratic driving that does not amount to a traffic violation may nonetheless support
an officer’s reasonable suspicion to stop a driver. State v. Bahen, 2016-Ohio-7012,
76 N.E.3d 438, ¶ 23 (10th Dist.).
Jones’s vehicle was spotted by Trooper Kay at around 4:30 a.m. on
New Year’s Day driving toward his marked patrol vehicle at a high rate of speed and
it narrowly avoided a collision. And, after passing the trooper’s vehicle on the right,
the vehicle proceeded to exit the highway. Even if Jones’s driving did not rise to the
level of probable cause for the trooper to initiate a stop for the commission of a traffic
offense in violation of R.C. 4511.34, the totality of the circumstances (driving at 4:30
a.m., approaching a marked patrol vehicle at a high rate of speed, avoiding a collision
at the last minute, and passing the patrol vehicle on the right and then quickly
proceeding to exit the highway) raised a reasonable and articulable suspicion for
Trooper Kay to effect a traffic stop to investigate the cause of his erratic driving.
Jones’s argument on appeal rests on his allegation that the dash cam
video did not reflect Trooper Kay’s vehicle veering to the left when Jones’s vehicle
approached him from behind at a fast speed, as Trooper Kay testified on direct
examination. Jones argues that the court should rely on the dash cam video and not
the trooper’s testimony. Specifically, Jones argues the trial court’s denial of
defendant’s motion to suppress is not supported by competent, credible evidence
because the dash cam video arguably conflicts with the trooper’s testimony leading
to the traffic stop. However, the parties admit that the dash cam video does not
reflect Jones approaching the trooper from behind. In fact, it is unclear from the
trooper’s testimony when the dash cam video began — before or after — the moment
the near collision occurred. Therefore, the trial court’s denial of the motion to
suppress based upon the trooper’s testimony is supported by competent, credible
evidence.1
In addition, any potential inconsistency between the video evidence
and the trooper’s testimony goes to the credibility of witnesses. “When the trial
court rules on a motion to suppress, the credibility of the witness is a matter for the
judge acting as the trier of fact.” State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583(1982). “When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses.” Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, at ¶ 8. The trial court here reviewed the dash cam video and
1The transcript also reflects that when the trial court announced the guilty verdict,
it remarked that what Trooper Kay testified — that Jones came up behind him and Jones’s
vehicle was very close to him — would not be depicted on the video. (Tr. 38.)
found Trooper Kay’s testimony that a near collision was avoided at the last minute
to be credible. Deferring to the trial court for its factual findings in a motion to
suppress, we reject Jones’s claim under the first assignment of error.
Reasonable Suspicion for Sobriety Tests
Under the second assignment of error, Jones argues the arresting
officer did not have a reasonable, articulable suspicion of his intoxication sufficient
to subject him to field sobriety tests.
A police officer may request a motorist to perform field sobriety tests
after the officer has lawfully stopped the vehicle, when the request is “separately
justified by a reasonable suspicion based upon articulable facts that the motorist is
intoxicated.” Parma Hts. v. Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-
3458, ¶ 29, citing State v. Evans, 127 Ohio App.3d 56, 62, 711 N.E.2d 761 (11th
Dist.1998).
An officer conducting a routine traffic stop may * * * expand the stop’s
scope in order to investigate whether the individual stopped is under
the influence of alcohol and may continue to detain the individual to
confirm or dispel his suspicions if the officer observes additional facts
during the routine stop which reasonably lead him to suspect that the
individual may be under the influence.
State v. Marcinko, 4th Dist. Washington No. 06CA51, 2007-Ohio-1166, ¶ 28. This
expanded stop may include field sobriety tests. Athens v. Burkhart, 2016-Ohio-
7534, 64 N.E.3d 1004, ¶ 12 (4th Dist.).
Moreover, the court evaluates the reasonableness of the request for
field sobriety tests based on the totality of the circumstances “viewed through the
eyes of a reasonable and prudent police officer on the scene who must react to events
as they unfold.” Dedejczyk at ¶ 29, citing State v. Dye, 11th Dist. Portage No. 2001-
P-0140, 2002-Ohio-7158.
In Evans, supra, the Eleventh District enumerated a nonexhaustive
list of factors that courts may consider in evaluating whether an officer had
reasonable suspicion to administer field sobriety tests under the totality of the
circumstances:
(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.
Evans at 63, fn. 2. “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.” Id.
Here, after Trooper Kay stopped Jones’s vehicle for his erratic
driving, he observed Jones’s eyes to be glassy, his speech slurred, and Jones looked
“dazed.” The trooper also smelled an odor of alcohol on Jones’s person. Given these
observations made after officer has lawfully stopped Jones’s vehicle, Trooper Kay’s
request for Jones to perform the field sobriety tests was separately justified by a
reasonable suspicion based upon articulable facts that Jones was intoxicated.
Dedejczyk at ¶ 29. The second assignment of error is without merit.
Probable Cause to Arrest
Under the third assignment of error, Jones argues the trooper did not
have probable cause to arrest him.
An arrest without a warrant violates the Fourth Amendment unless
the arresting officer has probable cause to make the arrest. The test for probable
cause to justify an arrest is “whether at that moment the facts and circumstances
within [the officer’s] knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man in believing that the [arrestee]
had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85
S.Ct. 223, 13 L.Ed.2d 142 (1964). Stated differently, in determining whether a police
officer had probable cause to arrest a motorist for OVI without a warrant, the court
must determine “whether, at the moment of arrest, the police had information
sufficient to cause a prudent person to believe that the suspect was driving under
the influence.” Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, at ¶ 57,
citing Beck at 91. “While the odor of alcohol, glassy eyes, slurred speech, and other
indicia of alcohol use by a driver are, in and of themselves, insufficient to constitute
probable cause to arrest, they are factors to be considered in determining the
existence of probable cause.” Id., citing Kirtland Hills v. Deir, 11th Dist. Lake No.
2004-L-005, 2005-Ohio-1563, ¶ 16.
Here, in addition to driving at early morning and almost colliding
with a marked patrol vehicle, Trooper Kay’s observations of indicia of alcohol use by
Jones included his glassy eyes, slurred speech, and an odor of alcohol inside the
vehicle and in his person. Jones also performed poorly in the field sobriety tests.
These circumstances provided sufficient information for a prudent person to believe
Jones was driving under the influence. Dedejczyk at ¶ 57. Trooper Kay had probable
cause to arrest Jones for OVI. The third assignment of error is without merit.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
municipal court to carry this judgment into execution. The defendant’s conviction
having been affirmed, any bail pending appeal is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
_____________________________
MICHELLE J. SHEEHAN, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
RAYMOND C. HEADEN, J., CONCUR