[Cite as State v. Mast, 2019-Ohio-4644.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. W. Scott Gwin, P.J
         Plaintiff-Appellee                     Hon. William B. Hoffman, J.
                                                Hon. Patricia A. Delaney, J.
 -vs-
                                                Case Nos. 19CA004 and 19CA005
 ROY H. MAST

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Holmes County
                                                Municipal Court, Case No. 18CRB107
                                                and 18TRC308


 JUDGMENT:                                      Reversed and Remanded

 DATE OF JUDGMENT ENTRY:                        November 8, 2019


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 ROBERT K. HENDRIX                              JEFFREY KELLOGG
 Assistant Prosecuting Attorney                 5 South Washington Street
 Holmes County, Ohio                            Millersburg, Ohio 44654
 164 E. Jackson Street
 Millersburg, Ohio 44654
Holmes County, Case Nos. 19CA004 and 19CA005                                            2


Hoffman, J.
       {¶1}   Appellant Roy H. Mast appeals the judgment entered by the Holmes County

Municipal Court convicting him of obstructing official business (R.C. 2921.31) and driving

while under the influence of alcohol (R.C. 4511.19(A)(1)(a)) and sentencing him to 200

days in jail with 170 days suspended. Appellee is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   At about 10:00 a.m. on February 7, 2018, Appellant appeared at the Holmes

County Sheriff’s Department to file a complaint. Lt. Eric Troyer was working at the intake

window. He immediately noticed Appellant’s speech was slurred, his eyes were glassy

and bloodshot, and he had an odor of alcohol about his person.

       {¶3}   Lt. Troyer told Deputy Terry Byland Appellant was in the lobby wanting to

make a report. Dep. Byland came to the lobby to speak with Appellant. Appellant told

the deputy he wanted to file a complaint about his ex-landlord threatening to whip him

with a bull whip for not scraping manure on a Sunday. The deputy asked for Appellant’s

driver’s license, which Dep. Byland routinely does to get information from a citizen

seeking to file a complaint. Appellant fumbled through his wallet before locating the

license.

       {¶4}   Because Dep. Byland is unable to smell, he did not notice the odor of

alcohol, although both Lt. Troyer and Lt. Tim Stryker informed him they noticed the odor

of alcohol about Appellant. Dep. Byland noticed Appellant’s speech was slurred and his

eyes were bloodshot and glassy. Appellant swayed while talking with officers, and at one

point had to grab a table for balance. Noting Appellant was alone, Lt. Stryker and Dep.

Byland repeatedly asked Appellant how he arrived at the Sheriff’s Department. Appellant

initially stared at the officers, and did not answer the question. Appellant eventually
Holmes County, Case Nos. 19CA004 and 19CA005                                              3


responded, “Forward.”     Dep. Byland asked Appellant if he drove there.          Appellant

responded, “No, I got an airplane waiting on me.”

       {¶5}   Upon further questioning, Appellant admitted consuming alcohol the night

before, but denied consuming alcohol that day. The officers asked Appellant to step

outside to conduct field sobriety tests. Lt. Stryker pointed to a vehicle in the parking lot

and asked if the car was the vehicle Appellant drove to the Sheriff’s Department.

Appellant eventually admitted he drove to the office, leaving Dresden, Ohio around 8:00

in the morning. He continued to deny drinking or smoking marijuana in the morning, and

claimed he had three beers the night before.

       {¶6}   Appellant refused to perform field sobriety tests and refused to submit to

chemical testing. He was arrested for operating a motor vehicle under the influence of

alcohol. Dep. Byland submitted an affidavit for a search of Appellant’s blood, and the

warrant was issued.

       {¶7}   Appellant was charged with one count of obstructing justice, and one count

of operating a motor vehicle under the influence. Appellant filed a motion to suppress,

which was overruled after hearing. The case proceeded to jury trial in the Holmes County

Municipal Court. Appellant was convicted as charged and sentenced to 90 days in the

Holmes County Jail with 80 days suspended for obstructing official business, and 180

days in the Holmes County Jail for operating a motor vehicle under the influence of

alcohol, with 160 days suspended, to be served consecutively.
Holmes County, Case Nos. 19CA004 and 19CA005                                                            4


        {¶8}    It is from the February 5, 2019 judgment of conviction and sentence

Appellant prosecutes this appeal1, assigning as error:



                THE       TRIAL        COURT         ERRED         IN      DENYING          THE

        DEFENDANT/APPELLANT’S                 MOTION TO           SUPPRESS         EVIDENCE

        BECAUSE HIS PERSON WAS SEIZED IN VIOLATION OF HIS RIGHTS

        AS GUARANTEED BY THE 4th AMENDMENT TO THE UNITED STATES

        CONSTITUTION AND ARTICLE I SECTION 14 OF THE OHIO

        CONSTITUTION.



        {¶9}    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 findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. 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(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(1993). 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. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (1993). Finally,

assuming the trial court's findings of fact are not against the manifest weight of the

evidence and it has properly identified the law to be applied, an appellant may argue the



1Appellant filed separate notices of appeal from the OVI conviction (19CA004) and the obstructing official
business conviction (19CA005). This Court consolidated the appeals on July 18, 2019, with 19CA004 the
controlling case number and both case numbers to be shown on all future pleadings.
Holmes County, Case Nos. 19CA004 and 19CA005                                                  5


trial court has incorrectly decided the ultimate or final issue raised in the 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, 641

N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (1993);

Guysinger, supra. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S.

690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de novo

on appeal.”

       {¶10} When ruling on a motion to suppress, the trial court assumes the role of trier

of fact and is in the best position to resolve questions of fact and to evaluate the credibility

of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243, 652 N.E.2d

988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).

       {¶11} Appellant first argues the court erred in finding the officers had a reasonable

suspicion of criminal activity to justify detaining him for further investigation after he filed

his complaint.

       {¶12} The Fourth Amendment to the United States Constitution as applied to the

states through the Fourteenth Amendment, as well as Ohio Constitution, Article I, Section

14, prohibit the government from conducting warrantless searches and seizures,

rendering them per se unreasonable unless an exception applies. State v. Mendoza, 10th

Dist. No. 08AP–645, 2009-Ohio-1182, 2009 WL 690204, ¶ 11, citing Katz v. United

States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, “not all

personal intercourse between policemen and citizens involves ‘seizures' of persons. Only
Holmes County, Case Nos. 19CA004 and 19CA005                                                6


when the officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen has a ‘seizure’ occurred” within the meaning of the Fourth

Amendment. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), fn. 16;

Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

       {¶13} In determining whether a particular encounter constitutes a seizure, and

thus implicates the Fourth Amendment, the question is whether, in view of all the

circumstances surrounding the encounter, a reasonable person would believe he or she

was not free to leave, United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870,

64 L.Ed.2d 497 (1980), or “not free to decline the officers' requests or otherwise to

terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115

L.Ed.2d 389 (1991). “[T]he crucial test is whether, taking into account all of the

circumstances surrounding the encounter, the police conduct would ‘have communicated

to a reasonable person that he was not at liberty to ignore the police presence and go

about his business.’ ” Id. at 437, 111 S.Ct. 2382.

       {¶14} The trial court found Appellant was seized within the meaning of the Fourth

Amendment when the officers retained his driver’s license, as a reasonable person would

not feel free to leave. We agree.

       {¶15} A consensual encounter remains consensual even if police officers ask

questions, ask to see the person's identification, or ask to search the person's belongings,

provided the police do not convey a message that compliance with their requests is

required. Id. at 435, 111 S.Ct. 2382; Florida v. Rodriguez, 469 U.S. 1, 4–6, 105 S.Ct. 308,

83 L.Ed.2d 165 (1984); Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216,

104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). In Mendenhall, supra, at 554, 100 S.Ct. at 1877,
Holmes County, Case Nos. 19CA004 and 19CA005                                                7


64 L.Ed.2d at 509, the United States Supreme Court cited examples of circumstances

indicating a seizure occurred even where the person did not attempt to leave, including

the threatening presence of several officers, the display of a weapon by an officer, some

physical touching of the person, or the use of language or tone of voice indicating

compliance with the officer's request might be compelled.

       {¶16} The Tenth District Court of Appeals has held no reasonable person would

feel free to terminate an encounter and go about their business when an officer is holding

that individual's identification and is using it to run a warrants check. State v. Westover,

10th Dist. No. 13AP-555, 2014-Ohio-1959, 10 N.E.3d 211, ¶ 26. In Westover, the court

rejected the State’s argument because Westover was not the driver but a passenger in a

stopped car, he could have simply walked away. The court concluded the issue was not

whether the defendant could have walked away from the encounter with police, but

whether a reasonable person in the situation would have believed they were free to walk

away or terminate the encounter. Id.

       {¶17} In the instant case, the video of the encounter begins after Dep. Byland has

taken possession of Appellant’s driver’s license. Dep. Byland testified he commonly takes

the license of a person filing a complaint in order to allow dispatch to “build the call.” Tr.

28. However, in the instant case, he did not retain the license for the sole purpose of

allowing dispatch to jot down Appellant’s pertinent information as a person filing a

complaint. He testified he also wanted to run Appellant’s license to see if it was valid,

and he does not always check for warrants when he takes the license of a person filing a

complaint at the office. He further testified he kept Appellant’s license for the purpose of

investigating whether he was driving while intoxicated. Dep. Byland further admitted on
Holmes County, Case Nos. 19CA004 and 19CA005                                                  8


cross-examination Appellant was not free to leave from the point he took the driver’s

license, until he was certain Appellant did not drive there.

       {¶18} Further, the video demonstrates after Appellant handed the officers the

complaint form he filled out, Dep. Byland and Lt. Stryker stood between Appellant and the

door, and began questioning Appellant about how he got there, whether he had been

drinking, and his past OVI arrests. Based on all of the circumstances in this case, we find

Appellant was seized within the meaning of the Fourth Amendment when Dep. Byland

seized his driver’s license and did not return it after Appellant finished the process of filing

his complaint against his ex-landlord.

       {¶19} By the point in time the officers began questioning Appellant about how he

got to the station, the initial consensual encounter had therefore risen to the level of an

investigatory stop. Under Terry v. Ohio, 392 U.S.1,21-22 , 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968), a police officer may stop or detain an individual without probable cause when the

officer has reasonable suspicion, based on specific, articulable facts, that criminal activity

is afoot. “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. Sanders, 5th Dist. Stark

No. 2016CA00108, 2017-Ohio-319, ¶13, quoting State v. Jones, 188 Ohio App.3d 628,

936 N.E.2d 529, 2010–Ohio–2854, ¶ 17 (10th Dist. Franklin).

       {¶20} The trial court found the officers had a reasonable suspicion of criminal

activity to justify the detention:
Holmes County, Case Nos. 19CA004 and 19CA005                                              9


              The officers observed a strong odor of alcoholic beverage,

       bloodshot and glassy eyes, slurred speech, fumbling through his wallet,

       and swaying. When they began investigate whether or not the Defendant

       operated a motor vehicle in this condition, the Defendant’s answers were

       both evasive and sarcastic. This Court finds, based upon the evidence

       presented to the officers at the scene, that it was appropriate to detain the

       Defendant to determine whether or not he was operating a motor vehicle.

       The Defendant was alone at the Sheriff’s Department, and did not

       acknowledge another driver.



       {¶21} Judgment Entry, August 24, 2018.

       {¶22} We disagree with the trial court’s conclusion. Dep. Byland admitted in his

testimony there is no law against being drunk in the Sheriff’s lobby, and Appellant did not

create a disturbance in the lobby. Tr. 29, 38. Therefore, unless Appellant was driving

while intoxicated, the officers did not have a reasonable suspicion of criminal activity, as

his peaceful presence in the lobby in an intoxicated state was not a crime.

       {¶23} At the point in time in which Appellant’s license was taken from him and

retained to be checked for validity, officers had not yet questioned Appellant about driving

and received the answers the court characterized as “evasive and sarcastic.” Appellant

had not yet told them he came to Holmes County from Dresden that morning, which is

some distance away. Appellant had given them no information prior to being seized which

would give rise to reasonable suspicion he was driving that morning.
Holmes County, Case Nos. 19CA004 and 19CA005                                                           10


        {¶24} None of the officers saw Appellant drive into the parking lot. Although

Appellant was alone, we find they had no specific, articulable facts with which to conclude

he drove to the office. Lt. Troyer testified Appellant arrived alone and he did not see

anyone drop him off; however, on cross-examination he admitted he did not see

Appellant’s vehicle come into the parking lot. Dep. Byland admitted during the initial

encounter in which he took Appellant’s license, he was looking for signs of intoxication,

but did not know at this point if Appellant drove there. At the time at which Appellant was

seized within the meaning of the Fourth Amendment, we find the officers possessed a

reasonable suspicion Appellant was intoxicated. However, they did not yet have more

than an unparticularlized suspicion or “hunch” Appellant had driven to the Sheriff’s office.

Therefore, we find they lacked a reasonable suspicion of criminal activity to justify the

investigative detention of Appellant after he finished filling out his complaint.2

        {¶25} We find the trial court erred in overruling Appellant’s motion to suppress all

evidence obtained as a result of the illegal detention of Appellant.3 The assignment of

error is sustained.




2
  In his dissent, Judge Gwin notes he believes the officers are duty bound to insure an individual believed
to be under the influence of alcohol does not place themselves or the public at risk by potentially walking
to the parking lot and driving their motor vehicle while intoxicated. We agree. However, such duty can be
accomplished by merely following the individual to the parking lot and observing if the individual enters a
motor vehicle to drive way. This could be accomplished without any further detention. Once the individual
enters the car to drive away, probable cause to arrest would then exist.
3 Because we find the initial detention of Appellant violated the Fourth Amendment, we need not address

Appellant’s remaining arguments concerning his motion to suppress.
Holmes County, Case Nos. 19CA004 and 19CA005                                         11


      {¶26} The judgment of the Holmes County Municipal Court is reversed. This case

is remanded to that court for further proceedings according to law, consistent with this

opinion.




By: Hoffman, J.
Delaney, J. concur and
Gwin, P.J. dissents
Holmes County, Case Nos. 19CA004 and 19CA005                                                    12


Gwin, P.J., dissents
       {¶27} I respectfully dissent from the majority’s finding that Lieutenant Troyer and

Deputy Byland lacked a reasonable suspicion of criminal activity to justify the investigative

detention of Mast after he finished filling out his complaint. [See, supra ¶ 24].

       {¶28} Cameras in the Sherriff’s Office recorded the entire encounter. The video

was admitted during the suppression hearing and reviewed by the trial court.

       {¶29} As the United States Supreme Court has repeatedly held, mere police questioning

does not constitute a seizure. Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d

299 (2005); Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

“[E]ven when officers have no basis for suspecting a particular individual, they may generally ask

questions of that individual; ask to examine the individual’s identification; and request consent to

search his or her luggage.” Muehler at 101 citing Bostick at 434–435. As long as the questioning

does not prolong a detention, there is no additional seizure within the meaning of the Fourth

Amendment. Id. For example, officers do not need reasonable suspicion to ask a detained

individual for her name, date and place of birth, or immigration status. United States v.

Alexander, 467 Fed.Appx. 355, 362 (6th Cir.2012); United States v. Fernandez, 600 F.3d 56 (1st

Cir.2010); United States v. Soriano–Jarquin, 492 F.3d 495 (4th Cir.2007). See State v. Chagaris,

107 Ohio App.3d 551, 669 N.E.2d 92 (9th Dist.1995); State v. Emmons, 1st Dist. Hamilton No.

C-150636, 2016-Ohio-5384, ¶15.

       {¶30} Because this was a consensual encounter, no violation of Mast’s

constitutional rights occurred when the officers asked Mast for his driver license. Further,

the officer could lawfully ask Mast if he had driven to the sheriff’s office.

       {¶31} The investigative stop exception to the Fourth Amendment warrant

requirement allows a police officer to stop and briefly detain an individual if the officer
Holmes County, Case Nos. 19CA004 and 19CA005                                               13


possesses a reasonable suspicion, based upon specific and articulable facts, that criminal

activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d

889(1968); see, also, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 15 L.Ed.2d

740(2002); Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct 573, 145 L.Ed.2d 570(2000);

State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271(1991). To justify an investigative

stop, the officer must be able to articulate specific facts that would warrant a person of

reasonable caution in the belief that the person stopped has committed or is committing

a crime. See, Terry, 392 U.S. at 27, 88 S.Ct. 1868, 20 L.Ed.2d 889.

       {¶32} A valid investigative stop must be based upon more than a mere “hunch”

that criminal activity is afoot. See, e.g., Arvizu, 534 U.S. at 274, 122 S.Ct. 744, 151

L.Ed.2d 740; Wardlow, 528 U.S. at 124, 120 S.Ct. 673, 145 L.Ed.2d 570; Terry, 392 U.S.

at 27, 88 S.Ct. 1868, 20 L.Ed.2d 889. Reviewing courts should not, however, “demand

scientific certainty” from law enforcement officers. Wardlow, 528 U.S. at 125, 120 S.Ct.

673, 145 L.Ed.2d 570. Rather, a reasonable suspicion determination “must be based on

commonsense judgments and inferences about human behavior.”                  Id.   Thus, “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.” Arvizu,

534 U.S. at 274, 122 S.Ct. 744, 151 L.Ed.2d 740; Wardlow, 528 U.S. at 123, 120 S.Ct.

673, 145 L.Ed.2d 570.

       {¶33} Once an officer lawfully stops an individual, the officer must carefully tailor

the scope of the stop “to its underlying justification.” Florida v. Royer, 460 U.S. 491, 500,

103 S.Ct. 1319, 75 L.Ed.2d 229(1983); see, also, State v. Gonyou, 108 Ohio App.3d 369,

372, 670 N.E.2d 1040, 1041(6th Dist. 1995). Additionally, the length of the stop must
Holmes County, Case Nos. 19CA004 and 19CA005                                             14


“last no longer than is necessary to effectuate the purpose of the stop.” Royer, 460 U.S.

at 500, 103 S.Ct. 1319, 75 L.Ed.2d 229.

       {¶34} In deciding whether a reasonable suspicion exists, courts must examine

the “‘totality of the circumstances’ of each case to determine whether the detaining officer

has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” Arvizu, 534

U.S. at 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (quoting United States v. Cortez, 449 U.S.

411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621(1981)). The totality of the circumstances

approach “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.’” Arvizu, Arvizu, 534 U.S. at 273, 122 S.Ct.

744, 151 L.Ed.2d 740; (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690, 66 L.Ed.2d 621).

Thus, when a court reviews an officer’s reasonable suspicion determination, a court must

give “due weight” to factual inferences drawn by resident judges and local law

enforcement officers. Id.

       {¶35} An officer may expand the scope of the stop and may continue to detain the

individual without conflicting with Royer if the officer discovers further facts, which give

rise to a reasonable suspicion that additional criminal activity is afoot. See, e.g., Terry,

supra; State v. Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d 762(1997). As the court

stated in Robinette, paragraph one of the syllabus:

       When a police officer’s objective justification to continue detention of a

       person * * * is not related to the purpose of the original stop, and when that

       continued detention is not based on any articulable facts giving rise to a
Holmes County, Case Nos. 19CA004 and 19CA005                                                                  15


           suspicion of some illegal activity justifying an extension of the detention, the

           continued detention to conduct a search constitutes an illegal seizure.

           Thus, if a law enforcement officer, during a valid investigative stop,

           ascertains “reasonably articulable facts giving rise to a suspicion of criminal

           activity, the officer may then further detain and implement a more in-depth

           investigation of the individual.” Id., 80 Ohio St.3d at 241, 685 N.E.2d at 768.

           {¶36} The record reveals that Lieutenant Troyer testified that he could smell a

strong odor of alcohol when Mast first approached the reception window to inquire about

filing a complaint against his former landlord. He further observed slurred speech and

bloodshot, glassy eyes before the officers asked for Mast’s driver license. S.T. at 9; 11-

124. The lieutenant informed Deputy Byland of his concerns. S.T. 12-13. Deputy Byland

testified that Mast had bloodshot, glassy eyes stuttered or slurred speech and he fumbled

to get his driver’s license from his wallet. S.T. at 18. A strong odor of alcohol, bloodshot,

glassy eyes, a lack of balance and slurred speech are indicia of intoxication. “It is

generally accepted that virtually any lay witness, including a police officer, may testify as

to whether an individual appears intoxicated. Columbus v. Mullins (1954), 162 Ohio St.

419, 421, 55 O.O. 240, 123 N.E.2d 422. See, also, State v. McKee (2001), 91 Ohio St.3d

292, 296, 744 N.E.2d 737.” State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801

N.E.2d 446, ¶ 12,(2004); Accord, State v. Hackerdorn, 5th Dist. Ashland No. 2004-CA-

053, 2005-Ohio-1475, ¶ 67.




4   For clarity, the transcript of the suppression hearing held July 19, 2018 will be referred to as “S.T.”
Holmes County, Case Nos. 19CA004 and 19CA005                                                16


       {¶37} The officers therefore, had articulable, specific facts that Mast was under

the influence. The majority posits that it is not against the law to be intoxicated at a police

station. However, it is against the law to operate a motor vehicle while under the influence

of alcohol.   Therefore, the question now becomes did the officers have articulable,

specific, facts under the totality of the circumstances to suspect that Mast had or was

going to commit the crime of driving under the influence of alcohol.

       {¶38} Mast arrived at the sheriff’s office in the morning. Neither officer observed

anyone accompanying Mast into the reception area. The officers observed the indicia of

intoxication before either officer requested Mast’s driver license. Accordingly, the officers

had an intoxicated individual who arrived at the sheriff’s office to file a complaint. At this

point, the encounter was consensual. Therefore, as previously noted, the officers could

ask him how he had gotten to the sheriff’s office, even if they had no suspicion of any

wrongdoing, without offending Mast’s constitutional rights.

       {¶39} Mast could have walked to the station, or he could have taken a taxi or a

ride sharing service. Mast could have been brought to the station by a relative, a friend

or a neighbor. However, when Mast was asked if he had driven to the office, Mast

responded, “No, I got an airplane that’s waiting for me.” Because the encounter was

recorded, we are able to hear Mast’s inflection and to see Mast’s body language. I believe

that under the totality of the circumstances the officers could reasonably interpret the

statement and the manner in which it was delivered as warranting further investigation.

Nervous, evasive behavior is another pertinent factor in determining reasonable

suspicion, e.g., United States v. Brignoni–Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 45

L.Ed.2d 607 (1975).       The reasonable suspicion determination must be based on
Holmes County, Case Nos. 19CA004 and 19CA005                                              17


commonsense judgments and inferences about human behavior. See, United States v.

Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621(1981).

       {¶40} I believe that the officers had a reasonable articulable suspicion that Mast

had driven to the Sherriff’s Office in his present state and could possible injure himself or

members of the public if he were permitted to drive home. I do not believe that the officers

are required to follow Mast around the Sheriff’s office, follow him outside, and allow him

to get into his car and actually begin to drive away in an attempt to catch him in the act

before they can investigate further. The officers should not be required to assume the risk

that Mast could wait in the sheriff office until the officers became occupied, slip out

unnoticed, and drive away unhindered.        In this case, the indicia of intoxication, his

demeanor,     and Mast’s answer’s to the officers’ inquires        provided a reasonable,

articulable suspicion to justify the officer in briefly detaining Mast in order to determine

whether Mast had driven and would drive in his present state.

       {¶41} In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968), the police

officers who effected the investigative stop did not actually observe the suspect commit

a criminal act, but concluded, based upon their observations and their training and

experience as police officers, that the person they detained may have been “casing” a

store, in preparation for committing a burglary. The court in Terry noted, “It would have

been poor police work indeed for an officer of 30 years’ experience in the detection of

thievery from stores in this same neighborhood to have failed to investigate this behavior

further.” Terry, 392 U.S. at 23, 88 S.Ct. 1868, 20 L.Ed.2d 889.

       {¶42} Therefore, in the case at bar, it was not actually necessary for the officers

to see Mast drive to the Sherriff’s Office. It would be equally poor police work in this case
Holmes County, Case Nos. 19CA004 and 19CA005                                           18


for the officers not to investigate whether the person in their presence whom each

believed to be under the influence of alcohol had driven a motor vehicle to the Sherriff’s

Office. Had the officers not continued the investigation concerning how Mast had arrived

at the station and how he would return home if he were to leave, I believe, would have

been reckless, irresponsible, and a breach of the public trust.

       {¶43}   The United States Supreme Court has recognized that states possess a

compelling interest in promptly removing drunken drivers from the road in order to protect

public safety. Mackey v. Montrym, 443 U.S. 1, 17–18, 99 S.Ct. 2612, 2620–2621, 61

L.Ed.2d 321, 334 (1979). See, also, State v. Hochhausler, 76 Ohio St.3d 455, 462 1996-

Ohio-374, 668 N.E.2d 457 (“In view of the death and injury caused by persons driving on

public roads and highways while intoxicated, the General Assembly, by a perpetual

process of amending Ohio’s “drunk driving” laws, and the courts, by their sentencing

practices, have unequivocally stated the state’s interest in removing intoxicated drivers

from public roadways.”); State v. Uskert, 85 Ohio St.3d 593, 600, 1999-Ohio-289, 709

N.E.2d 1200 (“Thus, the state has a compelling interest to promptly remove careless

drivers from the road as a public safety measure. Mackey v. Montrym (1979), 443 U.S.

1, 17–18, 99 S.Ct. 2612, 2620–2621, 61 L.Ed.2d 321, 334. ‘[T]he right to operate motor

vehicles on public roadways of this state may be regulated by the lawful exercise of the

police power for the benefit of public safety and welfare.’ Gustafson, 76 Ohio St.3d at

446, 668 N.E.2d at 450 (Douglas, J., concurring). This unlawful conduct continues to be

prevalent, as evidenced by the number of OVI cases that continue to flood the judicial

system. Id., 76 Ohio St.3d at 447, 668 N.E.2d at 451 (Douglas, J., concurring).”).
Holmes County, Case Nos. 19CA004 and 19CA005                                                        19


          {¶44} In State v. Robinette, the Ohio Supreme Court observed, in sum, Royer5 and

Brown6 set out a standard whereby police officers, under certain circumstances, may briefly

detain an individual without reasonably articulable facts giving rise to suspicion of criminal activity,

if the detention promotes a legitimate public concern, e.g., removing drunk drivers from public

roadways or reducing drug trade.

          {¶45} In the case at bar, we find that, pursuant to Royer and Brown, Officer Newsome

was justified in briefly detaining Robinette in order to ask him whether he was carrying any illegal

drugs or weapons pursuant to the drug interdiction policy, because such a policy promotes the

public interest in quelling the drug trade. 80 Ohio St.3d 234, 241, 1997-Ohio-343, 685 N.E.2d

762. Thus, I find that Mast’s constitutional rights were not violated by his detention while the

officers investigated whether he had, and would, place himself and the public in danger by driving

a motor vehicle while under the influence of alcohol or drugs because the detention was based

upon specific, reasonable, and articulable facts. At this point, the officers simply asked Mast

was how Mast how he had gotten to the sheriff office; they did not arrest him for an OVI

offense at that point.

          {¶46} Generally, an officer may not make a warrantless arrest for a misdemeanor

unless the offense is committed in the officer’s presence. R.C. 2935.03; Columbus v.

Lenear, 16 Ohio App.3d 466, 468, 476 N.E.2d 1085 (10th Dist. 1984). However, the Ohio

Supreme Court has recognized that a police officer may make a warrantless arrest where

the arresting officer has probable cause to believe that an individual was operating a

vehicle while under the influence of alcohol, even though the officer has not viewed the

commission of the offense. Oregon v. Szakovits, 32 Ohio St.2d 271, 274, 291 N.E.2d


5   Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229(1983).
6   Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2673, 61 L.Ed.2d 357(1979)
Holmes County, Case Nos. 19CA004 and 19CA005                                              20


742(1972); State v. Henderson, 51 Ohio St.3d 54, 56, 554 N.E.2d 104 (1990). In State

v. Clark, 5th Dist. Holmes County No. 00-CA-010, 2001 WL 1775394 (May 11, 2001), this

court noted, in so holding, the Ohio Supreme Court, in the Szakovits case, adopted

language from Mentor v. Giordano (1967), 9 Ohio St.2d 140, and set forth certain criteria

to consider in determining whether an arrest for DUI may be made even though the officer

did not view the commission of the offense.         First, the trial court should consider

chronology. “A relationship must be established between the time there was evidence to

show the influence of intoxicants and the time of operating a vehicle * * *.” Szakovits at

273, citing Mentor at 146. Second, each DUI case must be decided on its own particular

and peculiar facts. Id. Third, “[a]lthough a charge of operating a motor vehicle while under

the influence of intoxicating liquor may apply where a stationary vehicle is involved, the

evidence must show beyond a reasonable doubt that the accused was under the

influence of intoxicating liquor while operating the vehicle in that condition.” Szakovits at

273, citing Mentor at paragraph three of the syllabus.

       {¶47} Based upon the above three factors, the officer must have probable cause

to make the arrest. “Probable cause” exists when * * * facts and circumstances known to

the officer warrant a prudent man in believing that an offense has been committed. ‘* * *

common rumor or report, suspicion, or even strong reason to suspect * * * [is] not

adequate * * *’ State v. Sampson, 4 Ohio App.3d 287, 488 N.E.2d 467 (7th Dist. 1982)

citing Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 4 L.Ed.2d 134(1959). “What

is required for a valid warrantless arrest is not that the officer have absolute knowledge

that a misdemeanor is being committed in the sense of possessing evidence sufficient to

support a conviction after trial, but, rather, that he be in a position to form a reasonable
Holmes County, Case Nos. 19CA004 and 19CA005                                              21


belief that a misdemeanor is being committed, based upon evidence perceived through

his own senses.” State v. Reymann, 55 Ohio App.3d 222, 224, 563 N.E.2d 749(9th Dist.

1989), citing Columbus v. Lennear, 16 Ohio App.3d 466, 468, 476 N.E.2d 1085(10th Dist.

1984). This exception is applied, for the most part, to arrests for driving under the

influence. Reymann, supra.

       {¶48} In applying the criteria set forth in Szakovits and the standard set forth in

Reymann for warrantless arrests in OVI cases, I would find that, under the totality of

circumstances in the case at bar, Deputy Byland and Lieutenant Troyer had probable

cause to make a warrantless arrest of Mast for driving under the influence even though

he did not view Mast driving while intoxicated. Deputy Byland, who cannot smell, relied

upon Lieutenant Troyer’s report that Mast had a strong odor of alcohol about him. Deputy

Byland observed Mast’s bloodshot, glassy eyes, and his slurred speech. Deputy Byland

further observed Mast’s unsteadiness on his feet and fumbling through his wallet. Mast

reply, “No, I got an airplane that’s waiting for me” when asked if he had driven to the

sheriff’s office could be relied upon by the deputy to be at the very least, a snarky and,

somewhat tacit admission that he had driven his motor vehicle while in his present state.

Mast refused to perform the Field Sobriety Tests. During this time, Mast admitted that he

had driven to the sheriff’s office that morning from his home in Dresden, that his truck was

parked in the parking lot, and the keys to the truck were in his pocket. It was at this point

that the officers placed Mast under arrest.

       {¶49} Based on these factors, I conclude that Deputy Byland’s observations and

interaction with Mast, as well as the concerns expressed to him by Lieutenant Troyer,
Holmes County, Case Nos. 19CA004 and 19CA005                                           22


gave him probable cause to believe that Mast operated a motor vehicle while under the

influence of alcohol and that the warrantless arrest was valid.

      {¶50} I would affirm the decision of the trial court that overruled Mast’s motion to

suppress.
