Cleveland v. Melton

[Cite as Cleveland v. Melton, 2016-Ohio-5139.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103809
CITY OF CLEVELAND
PLAINTIFF-APPELLANT
vs.
VERNOL MELTON
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2015 TRC 28153
BEFORE: S. Gallagher, J., Kilbane, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: July 28, 2016
ATTORNEYS FOR APPELLANT
Barbara Langhenry
City of Cleveland
Director of Law
BY: Karyn J. Lynn
Assistant City Prosecutor
1200 Ontario Street - 8th Floor
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Chief Public Defender
BY: John T. Martin
Gusty A. Rini
Assistant Public Defenders
310 Lakeside Avenue - Suite 200
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. The city of Cleveland (“the city”), appeals from the
Cleveland Municipal Court’s order granting Vernol Melton’s motion to suppress the
evidence obtained following a traffic stop. We affirm.
{¶2} In July 2015, an Ohio State Highway Patrol officer stopped Melton for
speeding. Melton was cited for operating a vehicle while intoxicated, with a .108 blood
alcohol concentration; reckless operation; and having fictitious plates. Melton filed a
motion to suppress, in part arguing that there was no reasonable suspicion to administer
field sobriety tests.
{¶3} The trial court held a hearing. The officer testified to the following facts.
Melton was driving a vehicle owned by his passenger’s son. After pulling Melton over
for speeding, the officer began to ask Melton questions. The passenger responded; the
officer had approached the vehicle from the passenger side. Melton did not make eye
contact with the officer. Melton asked for permission to step out of the vehicle and
exited his vehicle. The parties dispute whether the officer ordered Melton to exit the car
or whether Melton asked to exit so he could reach his driver’s license. Regardless, after
Melton exited the car, the officer maintained that he smelled alcohol and further clarified
that the odor was from Melton’s person and not from his breath. At that point, the
officer decided to administer field sobriety tests, which Melton failed. After the tests
were administered, Melton admitted to consuming a single beer. The trial court granted
the motion to suppress based on those facts.
{¶4} The city appealed, claiming that “[t]he trial court erred in finding that the
officer’s decision to allow [Melton] to step out of the car was dispositive of the
admissibility of the remaining evidence.” Within this sole assignment of error, the city
argues that the trial court erred in suppressing the evidence from the field sobriety tests
because Melton was lawfully stopped, and therefore, the officer had probable cause to
remove Melton from the car and all evidence subsequently obtained was admissible. We
agree that the officer may have been authorized to remove Melton from the vehicle, but
our agreement does not mean the trial court erred. Whether the officer was authorized to
remove Melton from the vehicle after a lawful stop is irrelevant to the determination of
whether the officer had a reasonable, articulable suspicion of intoxication justifying the
administration of the field sobriety tests.
{¶5} The record reflects that the trial court “assumed for the sake of discussion”
that the officer had the right to remove Melton from the car and requested an argument
justifying the officer’s decision to administer field sobriety tests. Tr. 60:3-9. This is
the correct analysis under the relevant law in Ohio. “[A] police officer must have a
reasonable suspicion based upon articulable facts that the suspect is intoxicated before the
officer may administer field sobriety tests.” Chagrin Falls v. Calabrese, 8th Dist.
Cuyahoga No. 101197, 2014-Ohio-5340, ¶ 13, citing Cleveland v. Harding, 8th Dist.
Cuyahoga No. 98916, 2013-Ohio-2691, ¶ 6.
{¶6} The city has not presented any arguments or citations to the relevant law on
the only dispositive issue. App.R. 16(A)(7). Our review must be limited to the
arguments as presented. Whether the officer had probable cause to stop Melton for
speeding in the first place is not relevant to determining whether the officer had a
reasonable, articulable suspicion that Melton was intoxicated for the purpose of
administering the field sobriety tests after the lawful stop. We must affirm.
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 Cleveland
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR