State v. Barrett , 2019 Ohio 4270 ( 2019 )

[Cite as State v. Barrett, 2019-Ohio-4270.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellant Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 19 CA 23
JEFFREY BARRETT
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 18 CR 955
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: October 15, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
GARY BISHOP BENJAMIN D. KITZLER
PROSECUTING ATTORNEY SPAULDING & KITZLER, LLC
JOSEPH C. SNYDER 3 North Main Street, Suite 803
ASSISTANT PROSECUTOR Mansfield, Ohio 44902
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 19 CA 23 2
Wise, John, P. J.
{¶1} Appellant State of Ohio appeals the decision of the Court of Common Pleas,
Richland County, granting a motion to suppress evidence filed by Defendant-Appellee
Jeffrey D. Barrett in an OVI case. The relevant facts leading to this appeal are as follows.
{¶2} On October 28, 2018, shortly before 2:00 A.M., Sergeant Coby Holloway of
the Ohio State Highway Patrol was observing traffic while on patrol in his marked cruiser.
At approximately 1:52 A.M., a 2003 Pontiac being driven by Appellee Barrett passed him
in the opposite direction on Trimble Road, Richland County, Ohio. Sergeant Holloway
clocked appellee’s speed at 50 miles per hour in a 35 MPH zone. Tr. at 23. Sergeant
Holloway proceeded to make a traffic stop after appellee made a right-hand turn onto
Cook Road.
{¶3} The trooper approached and found appellee to be the sole occupant of the
Pontiac. Tr. at 28. He also detected an “odor of alcohol” coming from within the vehicle.
Tr. at 34. He further noted that appellee avoided eye contact with him by looking away
and ruffling through some papers from his glove compartment. Tr. at 33-34. This behavior
struck Sergeant Holloway as an indicator of intoxication, based on his training. Tr. at 34-
35.
{¶4} Eventually, appellee turned to face Sergeant Holloway. As they spoke, the
trooper noticed appellee’s “glassy bloodshot eyes” and detected that his speech was
slightly slurred. Tr. at 35. As appellee spoke with him, Sergeant Holloway also detected
that the smell of alcohol was becoming stronger and was specifically coming from
appellee. Tr. at 35-36. When asked how much he had had to drink that night, appellee
said "none." Tr. at 36. When asked about his speed, appellee stated he had been going
Richland County, Case No. 19 CA 23 3
45 MPH. Tr. at 37. Appellee then protested that there had been a car in front of him, and
that it that must have been the one that had been speeding. Id.{¶5} Sergeant Holloway then asked appellee to step out of the vehicle. Tr. at 37-
38. He inquired of appellee where he was coming from. Appellee responded that he had
been at a birthday party. Tr. at 38.
{¶6} The trooper decided to perform field sobriety testing on appellee, including
a horizontal gaze nystagmus (“HGN”) test, further discussed infra. After the testing was
finished, the trooper offered appellee the opportunity to take a portable breath test, which
he declined. Appellee was thereafter placed under arrest and taken to the Mansfield
OSHP Post. Appellee submitted to a breath test at that location.
{¶7} On November 21, 2018, appellee was indicted on one count of operating a
motor vehicle while under the influence (R.C. 4511.19(A)(1)(a)/(G)(1)(d)), a felony of the
fourth degree based on his prior offenses, and operating a vehicle with a prohibited
alcohol concentration (breath) (R.C. 4511.19(A)(1)(d)/(G)(1)(d)), also a felony of the
fourth degree.
{¶8} On December 6, 2018, appellee appeared for arraignment and entered a
plea of not guilty.
{¶9} On February 11, 2019, after obtaining leave from the trial court, appellee
filed a motion to suppress the results of the HGN test administered by Sergeant Holloway
and the BAC test conducted at the Highway Patrol post.
{¶10} On March 18, 2019, a hearing on the motion was conducted. At the hearing,
appellee stipulated that he was limiting his challenge to the claims that the traffic stop was
Richland County, Case No. 19 CA 23 4
improper and that there was no probable cause to arrest. Tr. at 5-6. At the conclusion of
the hearing, the court took the matter under advisement.
{¶11} On March 26, 2018, via a judgment entry, the trial court granted appellee’s
motion to suppress.
{¶12} On March 27, 2018, the State of Ohio filed a notice of appeal and Crim.R.
12(K) certification. It herein raises the following sole Assignment of Error:
{¶13} “I. THE TRIAL COURT ERRED IN GRANTING APPELLANT’S [SIC]
MOTION TO SUPPRESS.”1
I.
{¶14} In its sole Assignment of Error, Appellant State of Ohio contends the trial
court erred in granting Appellee Barrett’s motion to suppress the results of his breath test
taken after his arrest. We agree.
Standard of Review
{¶15} 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 appellant 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 case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437
1 The State of Ohio, as the appellant herein, has failed to include or attach with its brief
a copy of the judgment entry under appeal. See Loc.App.R. 9(A).
Richland County, Case No. 19 CA 23 5
N.E.2d 583; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; 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; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d
726. The United States Supreme Court has held that as a general matter determinations
of reasonable suspicion and probable cause should be reviewed de novo on appeal. See
Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d
911.
Trooper’s Investigation after Stop / Detainment for Field Sobriety Tests
{¶16} A single suspected traffic violation provides reasonable suspicion for an
officer to stop a vehicle. See State v. Panaro, 9th Dist. Medina No. 16CA0067-M, 2018-
Ohio-1005, 108 N.E.3d 1187, ¶ 15 (citations omitted). In the case sub judice, the trial
court determined that the original traffic stop of appellee’s vehicle for suspected speeding
was proper, however, the court also found “that the Trooper lacked sufficient information
from the entirety of the events following the stop, in order to arrest the [appellee] for OVI.”
Judgment Entry, March 26, 2019, at 2. We will therefore proceed to consider the post-
stop events.
{¶17} 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.
Albaugh, 5th Dist. Tuscarawas No. 2014 AP 11 0049, 2015-Ohio-3536, ¶ 18, quoting
State v. Anez (2000), 108 Ohio Misc.2d 18, 26–27, 738 N.E.2d 491. Although requiring a
driver to submit to a field sobriety test constitutes a seizure within the meaning of the
Fourth Amendment, courts have generally held that the intrusion on the driver's liberty
Richland County, Case No. 19 CA 23 6
resulting from a field sobriety test is minor, and the officer therefore need only have
reasonable suspicion that the driver is under the influence of alcohol in order to conduct
a field sobriety test. See State v. Bright, 5th Dist. Guernsey No. 2009–CA–28, 2010-Ohio-
1111, 2010 WL 1035466, ¶ 17, citing State v. Knox, 2nd Dist. Greene No. 2005–CA–74,
2006-Ohio-3039, 2006 WL 1661628. In reviewing this issue, we apply a “totality of the
circumstances” approach. See, e.g., City of Fairfield v. Lucking, 12th Dist. Butler No.
CA2002–12–303, 2004-Ohio-90, 2004 WL 47400, ¶ 8, citing State v. Freeman (1980), 64
Ohio St.2d 291, 414 N.E.2d 1044.
{¶18} Reasonable suspicion constitutes something less than probable cause.
State v. Logan, 5th Dist. Richland No. 07–CA–56, 2008–Ohio–2969, ¶ 15, citing State v.
Carlson (1995), 102 Ohio App.3d 585, 590. Also, it is well-established that an officer's
reasonable articulable suspicion does not require proof beyond a reasonable doubt that
the defendant's conduct has satisfied the elements of the offense. State v. Willis, 5th Dist.
Licking No. 14 CA 103, 2015–Ohio-3739, ¶ 25, citing Westlake v. Kaplysh, 118 Ohio App
.3d 18, 20, 691 N.E.2d 1074 (8th Dist.1997).
{¶19} In this instance, when Sergeant Holloway approached appellee’s vehicle
(after a clocking of 15 MPH over the speed limit at a time of approximately 2:00 AM) and
asked for license and registration, appellee “began just mainly focusing over on the
passenger side of the vehicle[,] *** kind of going through the glove box ***.” Tr. at 34.
According to the trooper, appellee avoided eye contact and was “trying to use a cover up
technique” by leaning over toward the glove compartment and indiscriminately ruffling
papers. Id. Even at that stage, the trooper was able to detect an odor of alcohol. Tr. at
35. When appellee finally faced him, Sergeant Holloway noticed “glassy bloodshot eyes”
Richland County, Case No. 19 CA 23 7
and observed that appellee’s speech was “slightly slurred.” Tr. at 35. The odor of alcohol
became “stronger” at that point as well. Tr. at 36. Appellee denied consuming alcohol that
night, but later stated he had been at a birthday party. Tr. at 36, 37.
{¶20} In State v. Smith, 5th Dist. Licking No. 09–CA–42, 2010-Ohio-1232, we
reiterated that under well-settled Ohio law, “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.” Id. at ¶ 34, citing State v. Wells, 2nd Dist. Montgomery No. 20798, 2005-Ohio-
5008 (additional citations omitted). See, also, State v. Beeley, 6th Dist. Lucas No. L–05–
1386, 2006-Ohio-4799, 2006 WL 2640228, ¶ 16; State v. Hall, 5th Dist. No. 2015 CA
00213, 2016-Ohio-5787, 70 N.E.3d 1154, ¶ 24.
{¶21} In sum, in the case sub judice, the record indicates the trooper, making a 2
AM traffic stop, noticed an odor of alcohol from appellee’s vehicle and then from
appellee’s person, and that appellee displayed glassy, bloodshot eyes. Appellee also
slightly slurred his speech, and although he denied consuming alcohol that night, he
stated he had been at a birthday party.2 The trooper also believed appellee was initially
trying to cover up his physical condition by inordinately leaning toward his glove
compartment. We additionally reiterate that appellee had been clocked at 15 MPH over
the speed limit in that area. While this Court has concluded a defendant’s speeding is not
2 We note the trial court accepted that appellee had been speeding and smelled of
alcohol, and it further concluded that appellee had “passed the field sobriety tests, had
talked coherently, parked his vehicle properly and had no other indications of impairment,
except for the officer’s testimony as to the HGN.” Judgment Entry, March 26, 2019, at 2.
The court did not elaborate in its entry or at the conclusion of the hearing on the question
of appellee’s observed slurred speech.
Richland County, Case No. 19 CA 23 8
“conclusive evidence” of impaired driving, the fact of speeding may be combined with
observations of physical manifestations of alcohol consumption. See State v. Eiler, 5th
Dist. Tuscarawas No. 2006AP030019, 2007-Ohio-1076, ¶ 20.
{¶22} We therefore find, upon a de novo review, that the trooper articulated
sufficient reasonable grounds to justify his request to have appellee engage in field
sobriety testing.
Probable Cause to Arrest
{¶23} Our remaining issue is whether there was probable cause to arrest
appellee, which resulted in his breath being tested that night at the patrol post.
{¶24} “It 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. Todd, 5th Dist. Ashland No. 14 COA 005, 2014-Ohio-4489, ¶ 31, citing State v. Reid,
9th Dist. Lorain No. 12CA010265, 2013–Ohio–4274, ¶ 26 (Belfance, P.J., dissenting)
(internal quotations and additional citations omitted). A police officer has probable cause
for an arrest if the facts and circumstances within his or her knowledge are sufficient to
cause a reasonably prudent person to believe that the defendant has committed the
offense. State v. Cummings, 5th Dist. Stark No. 2005–CA–00295, 2006–Ohio–2431, ¶
15, citing State v. Heston, 29 Ohio St.2d 152, 280 N.E.2d 376 (1972). However, field
sobriety tests are not mandatory for establishing probable cause. See State v. Winn, 7th
Dist. Mahoning No. 00CA229, 2001-Ohio-3465. See, also, State v. Thompson, 5th Dist.
Richland No. 18CA9, 2018-Ohio-5308, ¶ 61.
{¶25} In the case sub judice, Sergeant Holloway did perform the three
standardized field sobriety tests at the scene. On the “walk and turn” test, the trooper
Richland County, Case No. 19 CA 23 9
observed one clue. Tr. at 43. On the one-legged stand test, he also observed one clue.
Id. However, on the HGN test, the trooper found the existence of “six out of six” clues. Tr.
at 41. We note that “* * * all three [standardized] field sobriety tests need not be
administered for any one test result, properly administered, to be admissible into evidence
for consideration in determining probable cause for arrest.” State v. DeVault, 6th Dist.
Ottawa No. OT-12-027, 2013-Ohio-2942, ¶ 16, quoting State v. Markin, 10th Dist. Franklin
No. 01AP-1208, 149 Ohio App.3d 274, 2002-Ohio-4326, 776 N.E.2d 1163, ¶ 15
(emphases omitted).
{¶26} As appellee urges in his response, a review of the dash-cam video reveals
appellee interacting coherently with the trooper and maintaining steadiness on his feet
after exiting his vehicle. Absolutely no physical resistance to the trooper or attempt to flee
is seen anywhere on the video. Appellee, without being verbally abusive, did express
being very upset at certain points in the encounter because, among other things, the
trooper’s radar gun readout had been automatically erased before appellee had a chance
to look at it, and because appellee’s car was being impounded despite the proximity of
the stop to his residence. However, this Court has found probable cause to arrest under
circumstances of speeding, glassy eyes, and an odor of alcohol (with the additional fact
of a clear admission to drinking) without even taking HGN results into account. See State
v. Emmons, 5th Dist. Ashland No. 14-COA-016, 2014-Ohio-5842, ¶¶ 25-26.
{¶27} Accordingly, upon review of the totality of the facts and circumstances
presented herein, we find reversible error in the trial court's granting of suppression in
favor of appellee, as probable cause existed for the OVI arrest.
Richland County, Case No. 19 CA 23 10
{¶28} The State’s sole Assignment of Error is sustained, and the matter will be
remanded for further proceedings before the trial court.
{¶29} For the reasons stated in the foregoing, the decision of the Court of
Common Pleas, Richland County, is hereby reversed and remanded.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/d 0918