State v. Tipple

[Cite as State v. Tipple, 2017-Ohio-2774.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. John W. Wise J.
Hon. Earle E. Wise, J.
-vs-
Case No. 16 CA 33
CAMERON TIPPLE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case No. TRC 1601012A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 11, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TAMAS D. TABOR AARON CONRAD
ASSISTANT CITY PROSECUTOR CONRAD WOOD LAW
136 West Main Street 120 East Main Street, Suite 200
Lancaster, Ohio 43130 Lancaster, Ohio 43130
Fairfield County, Case No. 16 CA 33 2
Wise, John, J.
{¶1} Appellant Cameron Tipple appeals his conviction and sentence entered in
the Fairfield County Municipal Court on one count of OVI, in violation of R.C.
§4511.19(A)(1)(a), following a plea of no contest.
{¶2} Appellee is State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On January 29, 2016, Appellant Cameron Tipple was stopped by a trooper
for the state highway patrol in Fairfield County, Ohio, for making two turns without using
a turn signal, first when turning from Columbus Ave. onto Sixth Street, and again when
turning north from Sixth Street onto Memorial Drive. Appellant also committed a lane
violation by failing to turn into the nearest lane of travel, instead pulling across a lane of
traffic into the left-most lane on Memorial Drive.
{¶4} Upon making contact with Appellant, the trooper observed an odor of
alcohol coming from the vehicle and observed Appellant's eyes to be bloodshot and
glassy. Appellant admitted to consuming alcohol, earlier in the evening.
{¶5} The trooper conducted field sobriety tests on Appellant to determine
whether Appellant was impaired by the alcohol he had consumed. The trooper did not
conduct the HGN test in substantial compliance with the NHTSA manual and the results
of the HGN test were later suppressed by stipulation of the parties. The trooper observed
one clue during the Walk and Turn test, when Appellant stepped off the line twice while
walking. The trooper observed one clue during the One Leg Stand test when Appellant
swayed while balancing. Following the completion of the field sobriety tests, Appellant
submitted to a portable breath test (PBT) with a result of 0.121.
Fairfield County, Case No. 16 CA 33 3
{¶6} Subsequent to Appellant's completion of the field sobriety tests and PBT,
Appellant was arrested for operating a motor vehicle while impaired in violation of R.C.
§4511.19(A)(1)(a) and R.C. §4511.19(A)(1)(D), and was cited with a violation of R.C.
§4511.39.
{¶7} On February 3, 2016, Appellant appeared with counsel and plead not guilty
to all of the charges.
{¶8} On February 16, 2016, Appellant filed a motion to suppress evidence,
arguing that there was not probable cause to support Appellant's arrest.
{¶9} On July 20, 2016, the parties jointly filed factual stipulations in lieu of holding
an oral hearing regarding Appellant's motion to suppress.
{¶10} On August 16, 2016, the trial court denied Appellant's motion to suppress
after reviewing the dashboard camera video of the stop and considering the parties'
factual stipulations and supplemental briefs.
{¶11} On August 18, 2016, Appellant plead no contest to one count of R.C.
§4511.19(A)(1)(a) and the State dismissed the balance of the charges against Appellant.
Appellant was found guilty of the violation of R.C. §4511.19(A)(1)(a) and was sentenced
by the trial court.
{¶12} Appellant now appeals to this Court, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶13} “I. THE TRIAL COURT ERRED IN FINDING THERE WAS PROBABLE
CAUSE TO ARREST DEFENDANT FOR A VIOLATION OF R.C. 4511.19(A)(1)(a).
Fairfield County, Case No. 16 CA 33 4
I.
{¶14} In his sole Assignment of Error, Appellant argues the trial court erroneously
denied his motion to suppress. We disagree.
{¶15} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibits the government from conducting unreasonable
searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565
N.E.2d 1271.
{¶16} 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. 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. However, as the United States
Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134
L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion and probable
cause should be reviewed de novo on appeal.”
{¶17} In the case sub judice, Appellant argues that the trial court erred in
considering Appellant’s performance on the field sobriety test or the results of the portable
Fairfield County, Case No. 16 CA 33 5
breath test. Appellant contends that there was not probable cause to arrest him.
{¶18} In reviewing this issue, we apply a “totality of the circumstances” approach.
See, e.g., City of Fairfield v. Lucking, Butler App. No. CA2002–12–303, 2004–Ohio–90,
¶ 8, citing State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044.
{¶19} While field sobriety tests must be administered in substantial compliance
with standardized procedures, probable cause to arrest does not necessarily have to be
based, in whole or in part, upon a suspect's poor performance on one or more of these
tests. The totality of the facts and circumstances can support a finding of probable cause
to arrest even where no field sobriety tests were administered. State v. Homan, 89 Ohio
St.3d 421, 732 N.E.2d 952 (2000), superseded by statute on other grounds as stated in
State v. Boczar, 113 Ohio St.3d 148, 863 N.E.2d 155, 2007–Ohio–1251. In Homan, the
facts which supported a finding of probable cause were: red and glassy eyes, breath
which smelled of alcohol, erratic driving and an admission that the suspect had consumed
alcohol.
{¶20} Probable cause to arrest may exist, even without field sobriety tests results,
if supported by such factors as: evidence that the defendant caused an automobile
accident; a strong odor of alcohol emanating from the defendant; an admission by the
defendant that he or she was recently drinking alcohol; and other indicia of intoxication,
such as red eyes, slurred speech, and difficulty walking. Oregon v. Szakovits, 32 Ohio
St.2d 271, 291 N.E.2d 742 (1972); Fairfield v. Regner, 23 Ohio App.3d 79, 84, 491 N.E.2d
333 (12th Dist.1985); State v. Bernard, 20 Ohio App.3d 375, 376, 485 N.E.2d 783 (9th
Dist.1985); Westlake v. Vilfroy, 11 Ohio App.3d 26, 27, 462 N.E.2d 1241 (8th Dist.1983);
State v. Judy, 5th Dist. No. 2007–CAC–120069, 2008–Ohio–4520, ¶ 27.
Fairfield County, Case No. 16 CA 33 6
{¶21} With regard to Appellant’s performance where he demonstrated only one
clue of impairment in each of the two properly administered field sobriety tests, we note
that “satisfactory performance on some [sobriety tests] does not operate to negate the
existence of probable cause,” but, rather, “is merely one factor to consider in determining
whether probable cause exists based upon the totality of the circumstances.” State v.
Ousley, 4th Dist. Ross No. 99CA2476, 1999 WL 769961 (Se3pt. 20, 1999). .
{¶22} We further do not find error in the trial court's consideration of the results of
the portable breath test for purposes of determining whether probable cause existed to
arrest in this case. This Court has previously found that such test results can be
considered for purposes of establishing probable cause. See State v. Lominack, 5th Dist.
Stark No. 2012-CA-00213, 2013-Ohio-2678, and State v. Blackburn, 5th Dist. Fairfield
No. 15-CA-51, 2016-Ohio-2674.
{¶23} In the instant case, without consideration of the field sobriety tests, the
probable cause to arrest Appellant for OVI was supported by the trooper's observation of
Appellant's driving, Appellant's bloodshot and glassy eyes, odor of alcohol, admission that
he had been drinking and the PBT result.
{¶24} Accordingly, we find that the totality of the evidence gave rise to probable
cause to arrest for OVI. Homan at 427, 732 N.E.2d 952. As such, we find it was not error
for the trial court to determine there was probable cause to support Appellant's arrest for
OVI.
Fairfield County, Case No. 16 CA 33 7
{¶25} Appellant’s sole Assignment of Error is overruled.
{¶26} For the foregoing reasons, the judgment of the Municipal Court of Fairfield
County, Ohio, is affirmed.
By: Wise, John, J.
Delaney, P. J., and
Wise, Earle J., concur.
JWW/d 0425