State v. Bosher

[Cite as State v. Bosher, 2014-Ohio-2285.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 13AP-1000
v. : (M.C. No. 2013 TRC 150255)
John F. Bosher, Jr., : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on May 29, 2014
Richard C. Pfeiffer, Jr., City Attorney, and Melanie R. Tobias,
for appellant.
Michael A. Marrocco, for appellee.
APPEAL from the Franklin County Municipal Court
O'GRADY, J.
{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the
Franklin County Municipal Court that granted a motion to suppress filed by defendant-
appellee, John F. Bosher, Jr. For the following reasons, we reverse in part the trial court's
judgment and remand for further proceedings.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} On June 18, 2013, shortly before 2:00 a.m., Trooper Paul Barnes with the
Ohio State Highway Patrol was on patrol when he observed appellee's vehicle make a wide
turn out of the parking lot of Average Joe's bar. Trooper Barnes followed the vehicle. At
the intersection of Polaris Parkway ("Polaris") and Sancus Boulevard ("Sancus"), Trooper
Barnes stopped behind appellee's vehicle in the left-most of two left-turn lanes on Sancus.
No. 13AP-1000 2
One vehicle separated the trooper's vehicle from appellee's vehicle. Appellee's vehicle
made a wide left turn into the center lane on Polaris instead of turning into the left lane on
Polaris. Trooper Barnes followed the vehicle for another mile or two, during which time
he observed appellee's vehicle weaving within its lane, "touching line to line." (Tr. 7.) He
also noticed appellee's vehicle did not have a license plate light. When Trooper Barnes
activated his overhead lights, appellee's vehicle stopped without incident.
{¶ 3} Trooper Barnes made contact with appellee, the driver and only occupant of
the vehicle, at the driver's side window. As appellee rolled down the window, the trooper
smelled a "strong odor of an alcoholic beverage coming from within the vehicle." (Tr. 7-
8.) Trooper Barnes observed that appellee's eyes were bloodshot and glassy. Appellee
had no difficulty locating his license and registration and giving those items to Trooper
Barnes, and appellee's speech was not slurred. Appellee told Trooper Barnes he was
coming from Average Joe's bar where he had "several beers." (Tr. 11.) Trooper Barnes
had appellee exit his vehicle and perform field sobriety tests ("FSTs"), i.e., the horizontal
gaze nystagmus ("HGN") test, the walk-and-turn, and the one-leg stand. Subsequently,
Trooper Barnes arrested appellee, and appellee took a breath test.
{¶ 4} Appellee was charged with one count each of operating a vehicle under the
influence ("OVI"), in violation of R.C. 4511.19(A)(1)(a); OVI per se, in violation of R.C.
4511.19(A)(1)(d); and a turn violation, in violation of R.C. 4511.36. He entered a not guilty
plea and filed a motion to suppress. At a partial hearing on the motion, the parties
stipulated the HGN test was not administered in substantial compliance with National
Highway Traffic Safety Administration standards, but the one-leg stand and walk-and-
turn tests were. Therefore, the issues for the court's consideration at the hearing were
reasonable suspicion for the initial traffic stop, the propriety of appellee's further
detention and arrest, and the admissibility of the breath test. Trooper Barnes testified to
the above version of events. Subsequently, the trial court orally ruled Trooper Barnes had
reasonable suspicion to initiate the traffic stop for the alleged turn violation at the
intersection of Sancus and Polaris but that there were not enough indicators of
impairment to detain appellee for FSTs. The court recessed the motion hearing as its
ruling made it unnecessary to hear additional evidence appellant had on matters such as
the breath test. Subsequently, the court issued a judgment entry granting the motion to
No. 13AP-1000 3
suppress. The court found reasonable suspicion for the initial stop but no "probable
cause" for appellee's continued detention for FSTs and arrest. (R. 33, at 3.) The court
made no findings regarding the administration of the FSTs or breath test.
II. ASSIGNMENT OF ERROR
{¶ 5} Appellant, pursuant to R.C. 2945.67(A) and Crim.R. 12(K), appeals the trial
court's ruling and assigns the following error for our review:
THE TRIAL COURT ERRED WHEN IT FOUND THAT
TROOPER BARNES DID NOT HAVE A LAWFUL BASIS TO
DETAIN APPELLEE AND REQUEST THAT HE PERFORM
FIELD SOBRIETY TESTS.
III. DISCUSSION
{¶ 6} " 'Appellate review of a motion to suppress presents a mixed question of
law and fact. 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. Consequently, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence. Accepting these
facts as true, the appellate court must then independently determine, without deference to
the conclusion of the trial court, whether the facts satisfy the applicable legal standard.' "
(Citations omitted.) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, quoting
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶ 7} The Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Ohio Constitution guarantee the right to be free from unreasonable
searches and seizures. State v. Orr, 91 Ohio St.3d 389, 391 (2001). "It is well-established
that stopping an automobile, thus temporarily detaining its occupants, constitutes a
seizure under the Fourth Amendment to the U.S. Constitution." State v. Smith, 10th Dist.
No. 13AP-592, 2014-Ohio-712, ¶ 10, citing State v. Dorsey, 10th Dist. No. 04AP-737,
2005-Ohio-2334, ¶ 17.
{¶ 8} "A traffic stop is constitutionally valid * * * if an officer has a reasonable and
articulable suspicion that a motorist has committed, is committing, or is about to commit
a crime, including a traffic violation." Id., citing State v. Mays, 119 Ohio St.3d 406, 2008-
Ohio-4539, ¶ 7; State v. McCandlish, 10th Dist. No. 11AP-913, 2012-Ohio-3765, ¶ 10
No. 13AP-1000 4
(observation of traffic violation is enough for reasonable and articulable suspicion to stop
car); and State v. Barker, 10th Dist. No. 11AP-170, 2011-Ohio-5769, ¶ 12-13. "Pursuant to
a valid, investigatory stop, an officer possessing a reasonable, articulable suspicion that a
driver is intoxicated can perform field sobriety tests." Columbus v. Shepherd, 10th Dist.
No. 10AP-483, 2011-Ohio-3302, ¶ 23, citing Columbus v. Bickis, 10th Dist. No. 09AP-898,
2010-Ohio-3208, ¶ 19, and State v. Perkins, 10th Dist. No. 07AP-924, 2008-Ohio-5060,
¶ 8. "Reasonable suspicion entails some minimal level of objective justification, 'that is,
something more than an inchoate and unparticularized suspicion or "hunch," but less
than the level of suspicion required for probable cause.' " State v. Jones, 188 Ohio App.3d
628, 2010-Ohio-2854, ¶ 17 (10th Dist.), quoting State v. Jones, 70 Ohio App.3d 554, 556-
57 (2d Dist.1990). "Whether the police acted with 'reasonable suspicion' requires
consideration of the totality of the circumstances." In re B.A.R., 10th Dist. No. 13AP-396,
2013-Ohio-5712, ¶ 14, citing United States v. Cortez, 449 U.S. 411, 417 (1981).
{¶ 9} Here, the trial court found reasonable suspicion existed for the initial traffic
stop. Appellant does not challenge this finding on appeal. However, appellee makes
several arguments about the propriety of the trial court's finding which are in the nature
of an assignment of error in cross-appeal. However, appellee did not file a cross-appeal,
so his arguments about the initial stop are not properly before us. App.R. 3(C)(1) ("A
person who intends to defend a judgment or order against an appeal taken by an
appellant and who also seeks to change the judgment or order * * * shall file a notice of
cross appeal within the time allowed by App.R. 4."); See Saxton v. Navistar, Inc., 10th
Dist. No. 11AP-923, 2013-Ohio-352, ¶ 18. Therefore, we will presume the court correctly
found reasonable suspicion existed for the initial stop, i.e., Trooper Barnes' observation of
a traffic violation.1
{¶ 10} In ruling on whether Trooper Barnes could perform FSTs, the trial court
reasoned:
The Trooper observed little sign of impaired driving. The
alleged turning violation, standing alone, is not an indicator of
1 See also State v. Ferrell, 5th Dist. No. 13 CAC 01 001, 2013-Ohio-4651, ¶ 15 ("reasonable and articulable
grounds to make the stop could be properly found where a law enforcement officer makes an on-the-road
investigatory observation that a vehicle's license plate lighting is either non-existent or significantly
obscured").
No. 13AP-1000 5
impaired driving. In fact, it could be that a majority of drivers
do not turn into the closest lane to the centerline on a left
hand turn when turning onto a road with multiple lanes. The
only indicators of possible impairment exhibited by the
Defendant were an odor of alcohol, an admission to drinking
some amount, glassy eyes, and a de minimis lane violation
(weaving within the lane), although that was not clearly visible
on the video presented. The latter can be attributed to
noticing the cruiser following him as much as it can to being
impaired, given the fact that the Defendant slowed once on
Polaris Parkway, as if he had seen the Trooper in the mirror.
The odor and admission is only an indicator of drinking, not
necessarily an indicator of impairment. Upon cross
examination, Trooper Barnes confirmed that Defendant did
not have slurred speech and did not have trouble producing
his license, both of which would be an indicator of possible
impairment. No testimony was elicited about any balance
problems exhibited by Defendant during the encounter, which
could also indicate possible impairment.
Decisions in similar cases have held that these factors alone
do not constitute sufficient probable cause to detain a person
suspected of impaired driving in order to administer field
sobriety tests. See State v. Reed, [7th Dist. No. 05 BE 31]
2006-Ohio-7075 (7th Dist.), citing State v. Dixon, [2d Dist. No.
2000-CA-30 (Dec. 1, 2000)] (2nd Dist.), and authorities cited
therein.
Based upon the above, the Court finds that there existed no
probable cause to detain and arrest the Defendant,
considering all of the above factors.
(R. 33, Amended Judgment Entry 2-3.)
{¶ 11} It is unclear whether the trial court applied the correct legal standard when
it found Trooper Barnes could not detain appellee to administer FSTs. The court
repeatedly referenced the incorrect standard of "probable cause" in its analysis. However,
the court relied on two cases that utilized the correct standard of reasonable suspicion—
State v. Reed, 7th Dist. No. 05 BE 31, 2006-Ohio-7075, and State v. Dixon, 2d Dist. No.
2000-CA-30 (Dec. 1, 2000). In any event, we will review the facts of the case, apply the
correct standard, and determine whether Trooper Barnes had the requisite reasonable
suspicion to administer FSTs. See, e.g., State v. Cordell, 10th Dist. No. 12AP-42, 2013-
No. 13AP-1000 6
Ohio-3009, ¶ 10, 15, and State v. Battle, 10th Dist. No. 10AP-1132, 2011-Ohio-6661, ¶ 25,
39 (In both cases, after finding the trial court applied an incorrect standard in ruling on a
motion to suppress, we reviewed the facts and applied the correct standard to determine
whether suppression was warranted.). In doing so, it is significant to note that nowhere in
the trial court's analysis did the court indicate it did not find the testimony of Trooper
Barnes credible. Rather than questioning the credibility of Trooper Barnes, the court
found the facts as applied to its interpretation of the law warranted the suppression of
evidence. Therefore, our analysis of reasonable suspicion for the administration of the
FSTs presents a question of law, not an issue of fact. See id. at ¶ 38.
{¶ 12} In this case, Trooper Barnes developed a suspicion that appellee was
intoxicated from: (1) a wide turn out of a bar parking lot in the early morning hours,
(2) the reasonable suspicion Trooper Barnes had that appellee committed a turn violation
in turning from Sancus onto Polaris, (3) the weaving on Polaris, (4) a strong odor of
alcohol in a vehicle in which appellee was the only occupant, (5) bloodshot and glassy
eyes, and (6) the admission to coming from a bar at which appellee had several beers.
{¶ 13} The trial court found there could be an innocent explanation for the turn
violation and weaving, and the odor of alcohol and admission to drinking were indicative
of consumption, not necessarily impairment. In addition, appellee argues there could be
an innocent explanation for bloodshot and glassy eyes. Appellee also emphasizes the fact
that Trooper Barnes testified the strong odor of an alcoholic beverage was coming from
within the vehicle, which could mean the odor had an innocent source apart from
appellee's breath.
{¶ 14} However, the fact that reasons articulated as justification for an officer's
suspicion have innocent explanations does not mean the officer's suspicion was
unreasonable. See State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 18-19; State
v. Taylor, 10th Dist. No. 05AP-1016, 2006-Ohio-5866, ¶ 11, citing United States v.
Sokolow, 490 U.S. 1, 9 (1989) (stating although each act, "in and of itself, could perhaps
appear innocent, police officers may still have justification for conducting further
investigation when the acts are viewed together); State v. Floyd, 9th Dist. No.
11CA010033, 2012-Ohio-990, ¶ 18, citing State v. Elliott, 4th Dist. No. 98CA613 (May 20,
1999) ("The possibility of an innocent explanation * * * does not deprive an officer of the
No. 13AP-1000 7
capacity to entertain a reasonable suspicion of criminal conduct."); State v. Ware, 8th
Dist. No. 96327, 2011-Ohio-5665, ¶ 19, quoting State v. Taylor, 106 Ohio App.3d 741, 752
(2d Dist.1995) (" 'In making a determination of reasonable suspicion, the relevant inquiry
is not whether particular conduct is innocent or guilty, but the degree of suspicion that
attaches to particular types of noncriminal acts.' "). The United States Supreme Court's
decision in Terry v. Ohio, 392 U.S. 1 (1968) "precludes this sort of divide-and-conquer
analysis." Batchili at ¶ 19, quoting United States v. Arvizu, 534 U.S. 266, 274 (2002).
"The 'reasonable and articulable suspicion' analysis is based on the collection of factors,
not on the individual factors themselves." (Emphasis sic.) Id.{¶ 15} Appellee states it is "noteworthy that the [t]rooper failed to activate his belt
audio microphone when first approaching [a]ppellee and specifically when the [t]rooper
states [a]ppellee admitted to consuming." (Appellee's brief, at 6.) Appellee cites nothing
in the record to support this statement. Trooper Barnes testified "[f]or some reason" the
audio on his microphone was not working the day of incident—not that he failed to turn
the microphone on. (Tr. 22.) Again, the trial court did not identify any credibility
problems with Trooper Barnes' testimony. Appellee also complains Trooper Barnes failed
to inquire about the type of alcohol appellee consumed, but appellee told Trooper Barnes
he had beer. In addition, appellee complains Trooper Barnes did not inquire about the
size of the drinks or specific time appellee drank them. But there is no specific set of
questions a trooper must ask in order to obtain reasonable suspicion to conduct FSTs.
{¶ 16} Appellee also points to several factors that suggest he was not intoxicated:
(1) when Trooper Barnes initiated the stop, appellee pulled off the roadway and stopped
his car without incident, (2) he produced his license and registration without difficulty,
i.e., he demonstrated no fine motor skills problems, (3) the absence of slurred speech, and
(4) the lack of evidence that, upon exiting his vehicle, he had any difficulties with balance
or gait. However, Trooper Barnes articulated something more than a mere hunch that
appellee might be impaired. While the factors appellee highlights call into question
whether appellee was in fact impaired, the principal function of an investigative detention
to administer FSTs is to resolve such ambiguities and quickly establish whether the
suspect is impaired or not. See, e.g., State v. Elliott, 4th Dist. No. 08CA50, 2009-Ohio-
No. 13AP-1000 8
6006, ¶ 13 (explaining the principal function of an investigative stop is to resolve
ambiguities and establish whether activity is in fact legal or illegal).
{¶ 17} The articulated reasons for Trooper Barnes' suspicion, which we
summarized above, cumulatively provided reasonable suspicion for appellee's continued
detention for the administration of FSTs. See State v. Montelauro, 10th Dist. No. 11AP-
413, 2011-Ohio-6568, ¶ 10, 13, 19 (finding reasonable suspicion for FSTs based on obvious
odor of alcohol emitting from vehicle, admission to drinking Long Island Iced Tea at
location officer knew had half price drinks that night, and glassy, bloodshot eyes despite
absence of erratic driving, slurred speech, problems producing license, and difficulty
exiting vehicle). The cases cited by the trial court do not compel a different conclusion.
Aside from the fact that Reed and Dixon are not binding authority, they are readily
distinguishable from the case at hand.
{¶ 18} In Reed, the Seventh District found no reasonable suspicion for the
administration of FSTs where: (1) the officer stopped the defendant in the early morning
for a loud exhaust and window tint violation, (2) the officer observed no moving violation
or erratic driving, (3) the officer detected a "slight" odor of alcohol on the defendant,
(4) the defendant had red, glassy eyes, and (5) the defendant admitted to consuming two
beers earlier that evening. Reed at ¶ 2-3, 10, 12, 27. Similarly, in Dixon, the Second
District found no reasonable suspicion for the administration of FSTs where: (1) the
defendant was stopped in the early morning for a window tint violation, (2) the officer
detected an odor of alcohol on the defendant's person, (3) the defendant had bloodshot,
glassy eyes, and (4) the defendant admitted he had consumed "one or two beers." Dixon.
{¶ 19} In contrast to the defendants in Reed and Dixon, appellee was stopped for a
moving violation, not an equipment violation. In addition, appellee was observed making
a wide turn from a bar parking lot and weaving within his own lane of travel prior to the
stop. Appellee admitted to having not just one or two drinks but to having several beers at
the bar he had just left. In addition, the trooper in this case detected a strong odor of an
alcoholic beverage in appellee's vehicle in addition to the bloodshot and glassy eyes. In
contrast, the officer in Reed described the odor of alcohol on the defendant as "slight,"
and in Dixon, the officer did not describe the strength of the odor. Given these factual
No. 13AP-1000 9
distinctions, Reed and Dixon do not support the conclusion that no reasonable suspicion
for the administration of FSTs exists in this case.
{¶ 20} For the foregoing reasons, we find reasonable suspicion existed for Trooper
Barnes' detainment of appellee for the administration of FSTs. Accordingly, we sustain
the sole assignment of error. We affirm the portion of the trial court's judgment finding
reasonable suspicion for the initial traffic stop because appellant does not challenge it and
appellee did not file a cross-appeal as to that finding. We reverse the portion of the trial
court's judgment finding the detention of appellee for the administration of FSTs
improper and concluding that no probable cause existed for the arrest. We remand this
matter to the Franklin County Municipal Court for further proceedings consistent with
this decision.
Judgment affirmed in part;
reversed in part and cause remanded.
BROWN and LUPER SCHUSTER, JJ., concur.