State v. Myers

[Cite as State v. Myers, 2021-Ohio-4087.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 21CA060027
:
BRIAN MYERS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Municipal Court, Case Nos.
19CRB02674 & 19TRC15
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 17, 2021
APPEARANCES:
For Defendant-Appellant: For Plaintiff-Appellee:
DOMINIC L. MANGO AMELIA BEAN DEFLUMER
MANGO LAW OFFICE DELAWARE CITY PROSECUTOR
43 South Franklin St. ASHLEY THOMAS
Delaware, OH 43015 70 North Union St.
Delaware, OH 43015
GEOFFREY A. SPALL
43 South Franklin Street
Delaware, OH 43015
[Cite as State v. Myers, 2021-Ohio-4087.]
Delaney, J.
{¶1} Appellant Brian Myers appeals from the May 19, 2021 Judgment Entry of
the Delaware County Municipal Court, incorporating the Court’s February 5, 2021
Judgment Entry Denying Defendant’s Motion to Suppress. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on December 6, 2019, when employees of the Home Depot
in Lewis Center contacted the Delaware County Sheriff’s Office to advise that an
employee appeared to be under the influence at work, was asked to leave, and was
attempting to leave the premises in his vehicle.
{¶3} John Doe1 is an employee of Home Depot. On December 6, 2019, he called
the Delaware County Sheriff’s Department to report that an employee—appellant—was
“two times over the legal limit” and attempting the leave the store lot in a silver Ford
Ranger. Doe remained on the call as deputies were en route. Doe reported in the call
that he was following appellant to the parking lot to attempt to prevent him from leaving.
Doe further reported that appellant was wearing a black jacket over a flannel shirt and
had just been at the hospital where “he blew a .17.” Doe reported that appellant had
military experience and was likely to be combative. Doe continued to describe appellant’s
movements in the parking lot once he entered his vehicle.
{¶4} Deputy Andrew Lee was dispatched to Home Depot. John Doe flagged him
down in the parking lot, spoke to him briefly, and pointed out appellant’s truck. Appellant
was driving toward an adjacent Steak and Shake restaurant.
1John Doe’s name is in the case record and John Doe identified himself to the Delaware
County Sheriff’s Department.
[Cite as State v. Myers, 2021-Ohio-4087.]
{¶5} Lee has been a deputy for approximately 10 years and is trained in
recognition and apprehension of impaired drivers; his initial training has been
continuously updated throughout his career. Lee is trained in the detection and
apprehension of drivers impaired by drugs of abuse; he has completed ARIDE and is a
certified Drug Recognition Expert (DRE). Lee is an instructor in the DRE program and is
certified to administer standardized field-sobriety tests (SFSTs).
{¶6} Lee was made aware of several things by the Home Depot staff. Smelling
alcohol on appellant’s breath, Home Depot staff believed appellant was impaired by
alcohol and administered a PBT (portable breath test) in the store. The PBT showed that
he was “almost twice the legal limit.” Store staff tried to arrange a ride for appellant
because they didn’t want him to drive, but he insisted on leaving and stated he was going
to drive home. T. 13-14.
{¶7} Lee caught up to appellant’s vehicle and made a traffic stop. Lee testified
he stopped appellant entirely because of the information reported by John Doe; John Doe
pointed out the vehicle being driven by appellant. Lee was determined to stop appellant
before he reached the public roadway. Lee did not observe any traffic violations by
appellant in the short period of time Lee watched him driving. Appellant pulled over in the
Steak and Shake lot without incident.
{¶8} Lee testified that an OVI investigation began immediately upon his initial
contact with appellant because of the information he had received from Home Depot. T.
18. Upon cross-examination, Lee testified as follows about his decision to traffic-stop
appellant:
* * * *.
[Cite as State v. Myers, 2021-Ohio-4087.]
[DEFENSE TRIAL COUNSEL]: * * * *. Based on what you
knew when you effectuated the stop, you weren’t aware of, like,
specific behavior or interactions, you were just simply told that there
was an intoxicated person leaving the parking lot, correct?
[DEPUTY LEE]: Well, it was more than just an intoxicated
person leaving the parking lot. He had been sent home from work
because his managers were concerned about his behaviors. He was
unable to function properly at work to the point where they were
concerned, and that they didn’t want him to go home by himself.
[DEFENSE TRIAL COUNSEL]: At the time you pulled up,
your prior testimony was you spoke very briefly with the employer
who said: That’s the guy I called you about, there he goes. And you
said: Okay, I’m going to go stop him, or something to that effect?
[DEPUTY LEE]: Right. But I also testified that he relayed
information to our dispatchers, who relayed that to me.
* * * *.
T. 21-22.
{¶9} As Lee approached the vehicle on the passenger side, appellant stepped
out, unprompted. Lee came around to the driver’s-side of the vehicle and asked how
appellant was doing. Appellant responded that he was “pissed off” because he had a
migraine the night before; he was told by the VA to increase his medicine and he had
therefore doubled it. Appellant said he felt “wonky” and the medicine made him drowsy.
Appellant showed Lee paperwork about his medication and stated that he also takes
[Cite as State v. Myers, 2021-Ohio-4087.]
medication for depression. Appellant said he was sent home from work because he was
not stable on his feet; he felt dizzy and wanted to go home to lay down.
{¶10} Lee did not observe an odor of an alcoholic beverage about appellant’s
person immediately upon contact. He did, however, note that appellant’s speech was
slurred and appellant had a dry mouth. Appellant’s pants were unzipped and he steadied
himself with one hand on the vehicle’s door and one on its frame.
{¶11} As Lee spoke to appellant, he noticed the odor of an alcoholic beverage
emanating directly from appellant’s mouth. Appellant claimed the odor was due to an
alcohol-based lotion. Based upon Lee’s ARIDE and DRE training, he suspected appellant
was also impaired due to ingestion of a drug.
{¶12} Lee returned to his cruiser to run appellant’s information; while doing so, he
spoke to another deputy who told him appellant tested above the legal limit for alcohol
when tested by Home Depot. Lee told the deputy he suspected appellant was under the
influence of a prescription medication. Lee learned appellant’s operator’s license was
suspended for a prior O.V.I. and he was operating on driving privileges.
{¶13} Based upon all of these observations, Lee decided to administer SFSTs.
Upon requesting SFSTs, Lee observed appellant attempting to put mints in his mouth and
advised him not to do so. Appellant complied.
{¶14} Appellant was subsequently arrested and charged with two counts of OVI
pursuant to R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(d), both misdemeanors of the first
degree; one count of driving under OVI suspension pursuant to R.C. 4510.14, a
misdemeanor of the first degree; and one count of open container pursuant to R.C.
4301.62, a minor misdemeanor.
[Cite as State v. Myers, 2021-Ohio-4087.]
{¶15} Appellant entered pleas of not guilty and filed a motion to suppress. An
evidentiary hearing was held on November 2, 2020, and the trial court overruled the
motion by judgment entry dated February 5, 2021.
{¶16} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶17} “THE TRIAL COURT ERRED WHEN IT OVERRULED THE MOTION OF
APPELLANT TO SUPPRESS EVIDENCE WHEREIN IT FOUND THE STOP OF THE
DEFENDANT’S VEHICLE LAWFUL.”
ANALYSIS
{¶18} In his sole assignment of error, appellant argues the trial court erred in
overruling the motion to suppress because Lee had no reasonable suspicion to stop his
vehicle. We disagree.
{¶19} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145,
675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court’s
conclusion, whether the trial court’s decision meets the applicable legal standard. State
[Cite as State v. Myers, 2021-Ohio-4087.]
v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds.
{¶20} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court’s findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed
to apply the appropriate test or correct law to the findings of fact. In that case, an appellate
court can reverse the trial court for committing an error of law. See, Williams, supra.
Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final
issues raised in a motion to suppress. When reviewing this 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 any given case. State v. Curry,
95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶21} Appellant argues the trial court incorrectly decided the ultimate issue raised
in his motion to suppress: whether Deputy Lee had reasonable suspicion to stop his
vehicle without personally observing any evidence of impaired driving. Appellee responds
that reasonable suspicion is supported by the information provided by John Doe, an
identified citizen informant.
{¶22} A police officer may perform an investigatory stop under certain
circumstances. The Fourth Amendment to the United States Constitution prohibits
warrantless searches and seizures, rendering them per se unreasonable unless an
[Cite as State v. Myers, 2021-Ohio-4087.]
exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d
576 (1967). An investigative stop, or Terry stop, is a common exception to the Fourth
Amendment warrant requirement. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968). Because the “balance between the public interest and the individual's right to
personal security” tilts in favor of a standard less than probable cause in such cases, the
Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion
to believe that criminal activity “may be afoot.” United States v. Brignoni–Ponce, 422 U.S.
873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Sokolow, 490 U.S. 1,
7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
{¶23} In Terry, the Supreme Court held that a police officer may stop an individual
if the officer has a reasonable suspicion based upon specific and articulable facts that
criminal behavior has occurred or is imminent. See, State v. Chatton, 11 Ohio St.3d 59,
61, 463 N.E.2d 1237 (1984). The Ohio Supreme Court has emphasized that probable
cause is not required to make a traffic stop; rather the standard is reasonable and
articulable suspicion. State v. Mays, 119 Ohio St .3d 406, 2008–Ohio–4358, 894 N.E.2d
1204, ¶ 23.
{¶24} The propriety of an investigative stop must be viewed in light of the totality
of the circumstances surrounding the stop “as viewed through the eyes of the reasonable
and prudent police officer on the scene who must react to events as they unfold.” State
v. Andrews, 57 Ohio St.3d 86, 87–88, 565 N.E.2d 1271 (1991); State v. Bobo, 37 Ohio
St.3d 177, 178, 524 N.E.2d 489 (1988). The Supreme Court of the United States has re-
emphasized the importance of reviewing the totality of the circumstances in making a
reasonable-suspicion determination:
[Cite as State v. Myers, 2021-Ohio-4087.]
When discussing how reviewing courts should make
reasonable-suspicion determinations, we have said repeatedly that
they must look at the “totality of the circumstances” of each case to
see whether the detaining officer has a “particularized and objective
basis” for suspecting legal wrongdoing. This process allows officers
to draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information
available to them that “might well elude an untrained person.”
Although an officer's reliance on a mere “hunch” is insufficient to
justify a stop, the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard.
United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151
L.Ed.2d 740 (2002), citing United States v. Cortez, 449 U.S. 411,
417–418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
{¶25} Traffic stops based upon an officer’s observation of a traffic violation are
constitutionally permissible. Dayton v. Erickson, 76 Ohio St.3d 3, 11–12, 1996-Ohio-431,
665 N.E.2d 1091. Traffic stops may also be permissible when another person supplies
information to an officer who has not personally observed a violation. The United States
Supreme Court has “firmly rejected the argument ‘that reasonable cause for a[n
investigative stop] can only be based on the officer's personal observation, rather than on
information supplied by another person.’ ” (Brackets sic.) State v. Tidwell, --Ohio St.3d--,
[Cite as State v. Myers, 2021-Ohio-4087.]
2021-Ohio-2072, --N.E.3d--, ¶ 24, citing Navarette v. California, 572 U.S. 393, 397, 134
S.Ct. 1683, 188 L.Ed.2d 680 (2014), internal citation omitted.
{¶26} The issue is the sufficiency of the information provided by the other person.
In order to determine if the deputy had a reasonable suspicion to stop appellant, we must
determine whether the information conveyed to the deputy was sufficient to provide a
reasonable and articulable suspicion. State v. Bagnoli, 5th Dist. Stark No. 2014CA00215,
2015-Ohio-3314, ¶ 15.
{¶27} The courts have recognized three categories of informants: (1) citizen
informants; (2) known informants, i.e., those from the criminal world who have previously
provided reliable tips; and (3) anonymous informants, who are comparatively unreliable.
Maumee v. Weisner, 87 Ohio St.3d 295, 300, 1999-Ohio-68, 720 N.E.2d 507. In Weisner,
the Ohio Supreme Court discussed the credibility to be given to an identified citizen
tipster:
The [United States Supreme Court] has further suggested that
an identified citizen informant may be highly reliable and, therefore,
a strong showing as to the other indicia of reliability may be
unnecessary: ‘[l]f an unquestionably honest citizen comes forward
with a report of criminal activity-which if fabricated would subject him
to criminal liability-we have found rigorous scrutiny of the basis of his
knowledge unnecessary.’ Illinois v. Gates, 462 U.S. at 233–234, 103
S.Ct. at 2329–2330, 76 L.Ed.2d at 545.
Maumee v. Weisner, 87 Ohio St.3d 295, 300, 1999-Ohio-68,
720 N.E.2d 507.
[Cite as State v. Myers, 2021-Ohio-4087.]
{¶28} The categorization of the informant as an identified citizen informant does
not determine the outcome of the case and is only one element of the totality-of-the-
circumstances review of the tip itself, weighing in favor of the informant’s reliability and
veracity. Maumee, supra at 302. The informant’s motivation may also support the
reliability of the tip. Id.
{¶29} In the instant case, dispatch advised Lee that Home Depot staff was
concerned about appellant’s behavior and demeanor, tested him for alcohol impairment,
found him to be “over the limit,” and attempted to prevent him from driving out of the lot.
The Home Depot caller, “John Doe,” remained on the phone as Lee arrived, flagged Lee
down in the parking lot, and pointed to appellant’s vehicle as it drove away. Despite no
report of, or evidence of, erratic driving, Lee had an unusual amount of other highly
relevant information to provide reasonable suspicion that appellant was operating a motor
vehicle while under the influence of alcohol. John Doe was clearly motivated by concerns
of safety and liability; Home Depot was concerned enough about appellant’s apparent
impairment to test him with a PBT and then to try to arrange a ride home. Instead,
appellant insisted on leaving in his own vehicle, prompting the call to the Sheriff’s Office.
These factors weigh heavily in favor of John Doe’s reliability and veracity because these
factors arose in the context of a workplace-safety issue.
{¶30} The Home Depot informant demonstrated other indicia of reliability as well.
John Doe initiated face-to-face contact with Lee by flagging him down in the parking lot.
See, Tidwell, supra at ¶ 42 [informant’s willingness to initiated face-to-face contact has
investigative value]. John Doe’s tip “was not about a past crime but rather was about
alleged criminal activity that was then afoot.” Tidwell, supra at ¶ 44. “The informant surely
[Cite as State v. Myers, 2021-Ohio-4087.]
recognized that the immediate reaction he expected from [the officer] would either prove
him right or prove him wrong.” Id. “The informant's suggested knowledge of [appellant’s]
present condition and anticipated response from the officer thus gave the tip some further
indicia of reliability.” Id.{¶31} Finally, a very brief time period elapsed between Lee’s encounter with Doe
and his traffic stop of appellant; as Lee testified, it would have been unreasonable for him
to wait for appellant to enter the public roadway. Again, as the Ohio Supreme Court
discussed in Tidwell:
It is undisputed that [the officer] stopped the vehicle because
he believed there was a public-safety concern. Given the information
then available to [the officer], it was reasonable under the totality of
the circumstances for him to approach the vehicle in this public area
and briefly detain its driver in order to make a most basic inquiry as
to whether an immediate danger to public safety existed.
State v. Tidwell, --Ohio St.3d--, 2021-Ohio-2072, --N.E.3d--, ¶
47.
{¶32} Moreover, Lee’s own contact with appellant allowed him to immediately
confirm that appellant was impaired “based on what he personally smelled, saw, and
heard.” Id., at ¶ 50. Appellant admitted he was drowsy, not himself, had doubled his
medication, appeared disheveled, and had an odor of an alcoholic beverage on his
breath.
[Cite as State v. Myers, 2021-Ohio-4087.]
{¶33} Under the totality of the circumstances, Lee had reasonable and articulable
suspicion to stop appellant's vehicle. The trial court did not err in overruling appellant’s
motion to suppress, and appellant’s sole assignment of error is therefore not well-taken.
CONCLUSION
{¶34} Appellant’s sole assignment of error is overruled and the judgment of the
Delaware County Municipal Court is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Wise, John, J., concur.