[Cite as State v. Russo, 2020-Ohio-3236.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


 STATE OF OHIO,                                      :      OPINION

                  Plaintiff-Appellee,                :
                                                            CASE NO. 2019-L-080
         - vs -                                      :

 CHRISTOPHER RUSSO,                                  :

                  Defendant-Appellant.               :


 Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR
 000476.

 Judgment: Affirmed.


 Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
 Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, Ohio
 44077 (For Plaintiff-Appellee).

 Leigh S. Prugh, Prugh Law, LLC, P.O. Box 450861, Westlake, Ohio 44145 (For
 Defendant-Appellant).



MARY JANE TRAPP, J.

        {¶1}      Appellant, Christopher Russo (“Mr. Russo”), appeals from the judgment of

the Lake County Court of Common Pleas, which denied his motion to suppress the

evidence that led to his conviction. Mr. Russo was involved in a two-car collision, after

which he was arrested for operating a vehicle under the influence of alcohol, a drug of

abuse, or a combination of them (“OVI”). The trial court overruled the motion, finding the

officer had a reasonable and articulable suspicion of criminal activity, which permitted him
to detain Mr. Russo and conduct field sobriety testing. The trial court went on to determine

there was probable cause to arrest Mr. Russo for OVI. Subsequently, a jury found Mr.

Russo guilty of OVI, which was a fourth-degree felony since this was his fourth offense,

and the court later found Mr. Russo guilty of a failure to maintain assured clear distance

ahead, a minor misdemeanor.

       {¶2}   Mr. Russo timely appealed and raises two assignments of error regarding

the trial court’s denial of his motion to suppress. Mr. Russo argues that (1) the officer did

not possess reasonable suspicion to justify initiating field sobriety tests; and (2) the

horizonal gaze nystagmus test (“HGN test”) conducted by the officer should not have

been included as a contributor to probable cause because it was not conducted in

substantial compliance with National Highway Traffic Safety Administration (“NHTSA”)

standards.

       {¶3}   We find Mr. Russo’s assignments of error are without merit. Firstly, we find

that under the totality of the circumstances, the trial court’s factual findings are supported

by competent, credible evidence and it correctly found a reasonable, articulable suspicion

of criminal activity existed to conduct field sobriety tests. The officer, who had over 20

years of experience, observed that Mr. Russo had an odor of alcohol emanating from his

person, glassy eyes, dilated pupils, and slow and deliberate speech when the officer

responded to the scene of a violent impact two-car collision in which Mr. Russo rear-

ended the victim’s vehicle with such force that his air bag deployed.

       {¶4}   Secondly, the trial court’s determination that probable cause existed to

arrest Mr. Russo for OVI after finding multiple indicia of intoxication, combined with signs

of erratic driving, i.e., the crash itself, is also supported by competent, credible evidence




                                              2
in this record. Since the HGN test was only partially administered because Mr. Russo

stopped the testing, the trial court found the officer’s observations during the HGN test to

be a sign of intoxication. Even without the two clues of intoxication from the partially

administered HGN test, there was more than enough to establish probable cause to arrest

Mr. Russo for OVI under the circumstances of this case.

       {¶5}   The judgment of the Lake County Court of Common Pleas is affirmed.

                              Substantive and Procedural History

       {¶6}   After being bound over by the Mentor Municipal Court, the Lake County

Grand Jury indicted Mr. Russo on one count of OVI, a felony of the fourth degree, in

violation of R.C. 4511.19(A)(1)(a), because he had previously been convicted of or pled

guilty to three additional violations of R.C. 4511.19(A) and (B) in the last ten years; and a

second count of failure to maintain assured clear distance ahead, an unclassified

misdemeanor in violation of R.C. 4510.16. This second count was amended to a minor

misdemeanor prior to trial.

                                      Motion to Suppress

       {¶7}   Mr. Russo filed a motion to suppress evidence/motion in limine for an order

prohibiting any evidence of his “sobriety.” This evidence included (1) tests of Mr. Russo’s

coordination and sobriety; (2) observations and opinions of the police officers that

stopped, observed, arrested, and/or tested Mr. Russo regarding his sobriety; (3) objects

seized from Mr. Russo’s vehicle; (4) results of any and all field sobriety exercises

administered by the police officer; and (5) statements taken from or made by Mr. Russo.

Specifically, Mr. Russo argued Officer John Stirewalt (“Officer Stirewalt”) of the City of

Mentor Police Department lacked a reasonable and articulable suspicion to continue the




                                             3
detention of Mr. Russo after investigating the car accident and further, lacked probable

cause to arrest him for OVI. In addition, he maintained Officer Stirewalt did not properly

administer the field sobriety tests.

       {¶8}   During the hearing, the state presented evidence by way of Officer

Stirewalt’s dash cam, as well as the officer’s testimony. Mr. Russo did not present any

witnesses. Officer Stirewalt testified as follows:

       {¶9}   On April 15, 2018, shortly before 4:00 p.m., Officer Stirewalt, an officer with

21 and a half years of experience at the time of the incident, was called to the scene of a

two vehicle rear-end accident on Route 306, just south of Lakeshore Blvd. When he

arrived at the scene, he observed that both drivers – Mr. Russo and Jessica Howells (“Ms.

Howells”) - were standing on opposite sides of the four-lane road.

       {¶10} Officer Stirewalt spoke with Ms. Howells first, who told the officer she was

preparing to turn left with her minivan into a driveway when Mr. Russo rear-ended her

with his Honda Accord. She told him her neck hurt and that she wanted a medic. Officer

Stirewalt then approached Mr. Russo, who told him Ms. Howells stopped suddenly and

that he was not injured. Officer Stirewalt then assisted the fire department that arrived on

the scene and proceeded to gather insurance information, phone numbers, and

addresses from the two drivers.

       {¶11} During one of his encounters with Mr. Russo, Officer Stirewalt smelled an

odor of alcohol emanating from Mr. Russo’s person and observed that “his eyes were

glassy, his pupils were constricted, he was very slow and deliberate with his speech so I

figured at the time I thought he may have been drinking.” Officer Stirewalt could not

remember if it was during his first encounter with Mr. Russo (when he asked Mr. Russo if




                                             4
he was injured after arriving on the scene) or his second encounter (to gather information)

but believed it was during the second encounter that he initially smelled the odor of

alcohol.

       {¶12} While waiting for more officers to arrive for assistance, Officer Stirewalt is

heard on the dashcam video informing either a medic or a fireperson that he intended to

perform field sobriety tests on Mr. Russo after another officer’s arrival.

       {¶13} Several minutes later another officer, Officer Yenkevich, responded to the

scene. Officer Stirewalt directed him to take over while he gave field sobriety tests to Mr.

Russo. Officer Stirewalt’s dashcam video shows him driving to the corner where Mr.

Russo was standing and Mr. Russo meeting him in front of the officer’s vehicle. Officer

Stirewalt testified that he again noted Mr. Russo’s speech was slow and deliberate and

that he could smell an odor of alcohol on Mr. Russo’s person.

       {¶14} Officer Stirewalt intended to perform three field sobriety tests - the HGN

test, the walk and turn, and the one-leg stand. The dashcam video depicts Officer

Stirewalt begin the HGN test. He is seen directing Mr. Russo to get his hands out of his

pockets and to follow his pen. Officer Stirewalt observed Mr. Russo had equal tracking

in his pupils, which he testified one needs to look for in order to perform the test. He also

observed two clues of impairment in that Mr. Russo had a lack of smooth pursuit in each

eye. He was not able to complete the test, however, because Mr. Russo stopped him

and said, “I’m good, I don’t want to do anymore.” Mr. Russo turned, put his hands behind

his back, and refused to make any statements. Mr. Russo refused to finish the HGN test

or perform any additional field sobriety tests.




                                              5
      {¶15} Officer Stirewalt then handcuffed Mr. Russo and placed him into the police

cruiser, where he read Mr. Russo his Miranda rights. Officer Stirewalt drove Mr. Russo

to the Mentor Police Department were Mr. Russo refused to take a breathalyzer test.

      {¶16} On cross-examination, Officer Stirewalt testified that it was raining

throughout the day and at the time of the incident. There were no witnesses to the

accident, and he did not determine whether Ms. Howells had her turn signal on. Officer

Stirewalt did not inquire further as to whether Mr. Russo was injured despite his air bag

deploying at the time of the crash. He also testified that he did not notice Mr. Russo

slurring his speech and that Mr. Russo had no trouble producing his driver’s license and

insurance documents.

      {¶17} Upon review of the arguments, testimony, and evidence presented, the trial

court denied Mr. Russo’s motion to suppress. The court found that based upon Officer

Stirewalt’s observations, experience, and training, he had a reasonable and articulable

suspicion of criminal activity, which permitted him to detain Mr. Russo and conduct field

sobriety testing. Officer Stirewalt observed Mr. Russo’s eyes were glassy, his pupils were

constricted, his speech was slow and deliberate, and the odor of alcohol was emanating

from his person. While the defense argued that Mr. Russo’s airbag deploying and the

rain could have caused Mr. Russo’s glassy eyes and constricted pupils, Mr. Russo stated

to the officer that he was not injured and never brought up the rain as a causative factor.

He also ran into Ms. Howells’ minivan at a sufficient speed for the airbag to deploy, which

the trial court found could indicate a lack of coordination. Given the totality of the

circumstances, including Officer Stirewalt’s 20-plus years of experience, the trial court




                                            6
found a reasonable suspicion of criminal activity, and thus, a reasonable basis to perform

field sobriety testing.

       {¶18} As to Mr. Russo’s argument that the field sobriety tests were not

administered in a reasonable and acceptable manner, based on the dashcam video, the

court found the HGN test was administered in a reasonable and acceptable manner.

       {¶19} Lastly, the trial court found that even without the results of field sobriety

testing, Officer Stirewalt had probable cause to arrest Mr. Russo based on his glassy

eyes, constricted pupils, slow and deliberate speech, odor of alcohol emanating from his

person, erratic driving, Mr. Russo’s denial that he had been drinking, his lack of smooth

pursuit in both eyes during the HGN test, Mr. Russo’s decision to not complete the field

sobriety tests by saying “I’m good,” and Mr. Russo turning and placing his hands behind

his back without being asked before Officer Stirewalt arrested him.

                                     Trial and Sentencing

       {¶20} Mr. Russo was found guilty by a jury of OVI, with three additional findings

that Mr. Russo had been previously convicted of or pleaded guilty to three violations of

R.C. 4511.19(A) or (B).

       {¶21} Subsequently, the court found Mr. Russo guilty of failure to maintain

assured clear distance ahead, a minor misdemeanor. The court sentenced Mr. Russo to

five years of community control sanctions, including a 100-day jail sentence with credit

for 40 days served. Mr. Russo’s vehicle was forfeited, and his license was suspended

for five years.

       {¶22} Mr. Russo timely appealed and raises two assignments of error:




                                            7
       {¶23} “[1.]    The trial court erred in denying Christopher Russo’s motion to

suppress the evidence against him because arresting Officer Stirewalt did not possess

reasonable suspicion to justify initiating field sobriety tests.

       {¶24} “[2.]    The trial court erred in denying Christopher Russo’s motion to

suppress the evidence against him because the horizontal gaze nystagmus test

conducted by Officer Stirewalt should not have been included as a contributor to probable

cause.”

                            Motion to Suppress Standard of Review

       {¶25} When reviewing a motion to suppress, this court must accept the trial

court's findings of fact if they are supported by competent, credible evidence. Kirtland

Hills v. Fuhrman, 11th Dist. Lake No. 2007-L-151, 2008-Ohio-2123, ¶8, citing State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8, citing State v. Fanning, 1 Ohio St.3d

19 (1982). “Accepting those facts as true, we must independently determine as a matter

of law, without deference to the trial court's conclusion, whether they meet the applicable

legal standard.” Id., quoting State v. Retherford, 93 Ohio App.3d 586, 592 (2d Dist.1994).


                                      Reasonable Suspicion

       {¶26} In his first assignment of error, Mr. Russo contends the trial court erred in

finding Officer Stirewalt had a reasonable suspicion to justify initiating field sobriety

testing.

       {¶27} “The Fourth Amendment [to] the United States Constitution, as well as

Article One, Section Fourteen, of the Ohio Constitution, guarantee[s] ‘the right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no warrants shall issue, but upon



                                               8
probable cause, supported by oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.’ When a police officer stops an

automobile and detains its occupants, a ‘seizure’ is committed within the meaning of the

Fourth and Fourteenth Amendments of the United States Constitution.” Kirtland Hills v.

Strogin, 11th Dist. Lake No. 2005-L-073, 2006-Ohio-1450, ¶12, quoting State v.

Wojtaszek, 11th Dist. Lake No. 2002-L-016, 2003-Ohio-2105, ¶15, citing Delaware v.

Prouse, 440 U.S. 648 (1979), paragraph two of the syllabus.

       {¶28} “It is well established that an officer may stop a motorist upon his or her

observation that the vehicle in question violated a traffic law.” Id. at ¶13, quoting State v.

Boczar, 11th Dist. Ashtabula No. 2004-A-0063, 2005-Ohio-6910, ¶11, citing Dayton v.

Erickson, 76 Ohio St.3d 3, 11-12 (1996). Moreover, this court has repeatedly held that

when a police officer witnesses a minor traffic violation, he or she is warranted in making

a stop to issue a citation. Waite Hill v. Popovich, 11th Dist. Lake No. 2001-L-227, 2003-

Ohio-1587, ¶14.

       {¶29} However, because any further detention is a greater invasion into an

individual's liberty interests, an officer may not request a motorist to perform field sobriety

tests unless the request is separately justified by a reasonable suspicion based upon

articulable facts that the motorist is intoxicated. Strogin at ¶13, citing State v. Evans, 127

Ohio App.3d 56, 62 (11th Dist.1998), citing State v. Yemma, 11th Dist. Portage No. 95-

P-0156, 1996 WL 495076 (Aug. 9, 1996). A court will analyze the reasonableness of the

request based on the totality of the circumstances, viewed through the eyes of a

reasonable and prudent police officer on the scene who must react to events as they




                                              9
unfold. Id., citing Popovich at ¶11; State v. Dye, 11th Dist. Portage No. 2001-P-0140,

2002-Ohio-7158, ¶18.

       {¶30} In Evans, we noted a host of factors collected from various cases which

may be considered by a court to determine whether an officer had reasonable suspicion

to administer field sobriety tests under the totality of the circumstances:

       {¶31} “(1) the time of day of the stop (Friday or Saturday night as opposed to, e.g.,

Tuesday morning); (2) the location of the stop (whether near establishments selling

alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of

coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable

report that the driver may be intoxicated; (5) the condition of the suspect's eyes

(bloodshot, glassy, glazed, etc.); (6) impairments of the suspect's ability to speak (slurred

speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of

the car, or, more significantly, on the suspect's person or breath; (8) the intensity of that

odor, as described by the officer (‘very strong,[’] ‘strong,’ ‘moderate,’ ‘slight,’ etc.); (9) the

suspect's demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect

after the stop that might indicate a lack of coordination (dropping keys, falling over,

fumbling for a wallet, etc.); and (11) the suspect's admission of alcohol consumption, the

number of drinks had, and the amount of time in which they were consumed, if given. All

of these factors, together with the officer's previous experience in dealing with drunken

drivers, may be taken into account by a reviewing court in determining whether the officer

acted reasonably.” Id. at ¶14-15, quoting Evans at 63, fn. 2.

       {¶32} We note that the foregoing factors are assistive guides in the determination

of reasonable suspicion. Accordingly, no one factor is dispositive, and, moreover, the list




                                               10
does not represent an exhaustive account of factors which can or should be considered.

Id. at ¶16, citing Boczar at ¶14. Generally, courts approve a request to submit to field

sobriety testing only where the officer based his or her decision on a number of these

factors. Id., citing Evans at 63.

       {¶33} Mr. Russo contends that only three of the Evans factors are present and

that the circumstances presented make them questionable. Mr. Russo argues that the

accident was not caused by his erratic driving or lack of coordination, as the trial court

indicated, but the accident was caused by Ms. Howells’ abrupt stop to make a left turn on

a rainy day. The officer’s observations as to his glassy eyes and slow and deliberate

speech were also unfounded because his glassy eyes were due to the rain and the

sudden deployment of his airbag. His slow and deliberate speech was simply his normal

pace and enunciation. Moreover, Officer Stirewalt testified he understood everything Mr.

Russo said and Mr. Russo competently answered his questions. According to Mr. Russo,

Officer Stirewalt also failed to qualify the odor of alcohol emanating from his person as

“strong.” In addition, the medics on the scene never indicated that they observed any

signs of impairment. Finally, Mr. Russo denied drinking any alcohol.

       {¶34} While Mr. Russo’s argument may seem at first blush persuasive, a review

of the record and evidence presented at the motion to suppress hearing reveals otherwise

and supports the trial court’s factual findings. Contrary to Mr. Russo’s assertions, Mr.

Russo never stated to Officer Stirewalt that the rain was an issue or that he was injured.

Mr. Russo collided with Ms. Howells’ minivan with such force that both vehicles suffered

extensive damage and Mr. Russo’s air bag deployed. We agree with the trial court that

this is a sign of erratic driving and an indicator of lack of coordination. Officer Stirewalt,




                                             11
an experienced officer, noticed an odor of alcohol when Mr. Russo began speaking and

that Mr. Russo’s eyes were glassy, his pupils were dilated, and his speech was slow and

deliberate. The dash cam video corroborates Officer Stirewalt’s testimony.

       {¶35} We are bound to accept factual determinations of the trial court so long as

they are supported by competent and credible evidence, and the evaluation of evidence

and the credibility of the witnesses are issues for the trier of fact in the hearing on the

motion to suppress. State v. Macklin, 5th Dist. Fairfield No. 17-CA-39, 2018-Ohio-2975,

¶19, citing State v. Myer, 5th Dist. Perry No. 16-CA-00007, 2017-Ohio-1046, ¶15, citing

State v. Mills, 62 Ohio St.3d 357 (1992). Our role in reviewing a trial court's ruling on a

motion to suppress is not to reevaluate the evidence or the credibility of the witnesses but

to determine whether the trial court's application of the law to the facts, as the trial court

found them to be, is appropriate. Id., citing Myer at ¶16, citing Mills at 366; State v.

Williams, 86 Ohio App.3d 37, 41 (4th Dist.1993).

       {¶36} Mr. Russo cites several cases in support in support of his argument. See

Whitehouse v. Stricklin, 6th Dist. Lucas No. L-10-1277, 2012-Ohio-1877; State v. Morgan,

2d Dist. Clark No. 07-CA-67, 2007-Ohio-6691; State v. Derov, 7th Dist. Mahoning No. 07

MA 71, 2009-Ohio-5513; and State v. Baker, 5th Dist. Ashland No. 17-COA-308, 2018-

Ohio-2285. Upon review, however, we do not find these similar to the circumstances

presented herein.

       {¶37} In Stricklin, the appellant was pulled over at 1:26 a.m. for a de minimis traffic

violation, i.e., a broken headlight. Id. at ¶3. The officer did not notice any signs of

intoxication until after the appellant fixed his broken headlight, nor did the appellant

demonstrate any signs of erratic driving or exhibit any other signs of impairment. Id. at




                                             12
¶15. The only apparent factors were a slight odor of alcohol and glassy, bloodshot eyes.

Id. The Sixth District held that once the officer ascertained the appellant had a working

headlight, she no longer had a sufficient reason to continue questioning or detaining him.

Id. at ¶16. Thus, the officer lacked a reasonable, articulable suspicion that criminal activity

was afoot to conduct field sobriety tests.

       {¶38} Similarly, in Morgan, an officer observed the appellant drive outside the

marked lane of travel, i.e., left of center in the strike zone of a turn lane, late at night. Id.

at ¶3. The officer discovered the appellant was driving outside the time of his driving

privileges, smelled of alcohol when he spoke to the officer, and confirmed that he had

been drinking earlier in the day. Id. at ¶4. He subsequently refused field sobriety testing,

and the officer placed him under arrest.        Id. At the jail, the officer again asked the

appellant to take a breathalyzer test, which the appellant refused. Id.

       {¶39} In granting the appellant’s suppression motion, the trial court noted that

while the officer had adequate grounds to stop the appellant’s vehicle, he did not have

grounds to require the appellant to undergo field sobriety tests or a breathalyzer test. Id.

at ¶6. The Second District affirmed the trial court, finding that a commission of a de

minimis marked-lane violation, coupled with the officer’s detection of an odor of alcohol

and an admission that the appellant drank earlier that day constituted an insufficient

articulable suspicion to justify the appellant’s detention for field sobriety testing without

any other signs of intoxication. Id. at ¶15.

       {¶40} The same circumstances were also present in Derov, where an officer

initiated a stop of the appellant’s car based upon expired tags on her license plate. Id. at

¶3. The officer had not observed erratic driving but had noticed a strong smell of alcohol




                                               13
emanating from the appellant’s vehicle. Id.. The officer admitted the appellant had no

difficulty producing her license and registration or exiting her car and demonstrated no

physical signs of impairment due to alcohol consumption. Id. The Seventh District, sua

sponte, found plain error because there was a lack of reasonable suspicion to conduct

field sobriety tests, since the officer did not witness erratic driving or observe any signs of

impairment but rather asked the appellant to submit to field sobriety tests based solely on

the time of night, the appellant’s red glassy eyes, and the fact that he noticed a strong

smell of alcohol coming from her person. Id. at ¶15-17.

       {¶41} Likewise in Baker, the Fifth District noted the appellant was pulled over for

an equipment violation without any indication of erratic driving. Id. at ¶22. The only other

factors put forth by the state were the time of night, that the stop was close to a number

of liquor establishments, and that the appellant was attempting to hide his eyes. Id.. The

Fifth District determined that the officer did not have a reasonable articulable suspicion

based on the condition of the appellant’s eyes and the strong odor of alcohol without any

additional indicia of intoxication. Id. at ¶26.

       {¶42} We agree with the Fifth District in Baker that “reasonable suspicion is more

than a hunch, but less than the level of suspicion needed for probable cause” and that “a

motorist need not display every possible indication of being under the influence for a

reasonable, articulable suspicion grounds to exist for the trooper to proceed with field

sobriety testing.” Id. at ¶26. The situation presented here is not the case of an equipment

violation, such as a broken headlight or expired license tags, or a de minimis traffic

violation that occurred late at night with simply an odor of alcohol emanating from the

driver’s person.




                                              14
       {¶43} We find Mr. Russo’s erratic driving distinguishable in that he rear-ended Ms.

Howell’s vehicle in the middle of the afternoon, causing extensive damage to both

vehicles and with such force that Mr. Russo’s air bag deployed. In addition, Officer

Stirewalt noticed the odor of alcohol emanating from Mr. Russo’s breath upon speaking

with him and observed that Mr. Russo’s eyes were glassy, his pupils were dilated, and

his speech was slow and deliberate.

       {¶44} And, as we already noted above, while the Evans factors are relevant, not

all must be present for an officer to have reasonable suspicion. See Macklin, supra, at

¶31 (a driver “need not display every possible indication of being under the influence in

order for reasonable, articulable suspicion grounds to exist for [an officer] to proceed with

the field sobriety testing”).

       {¶45} We must look at the totality of the circumstances through the eyes of Officer

Stirewalt, giving due deference to his training and experience, to determine whether

reasonable suspicion existed for the officer to conduct field sobriety testing. In this case,

at least four of the Evans factors were met. These factors, along with Officer Stirewalt’s

experience, established a reasonable articulable suspicion that further investigation was

warranted to determine whether Mr. Russo should be arrested for OVI.

       {¶46} This court has held that “[w]here a non-investigatory stop is initiated and the

odor of alcohol is combined with glassy or bloodshot eyes and further indicia of

intoxication, such as an admission of having consumed alcohol, reasonable suspicion

exists.” State v. Wiesenbach, 11th Dist. Portage No. 2010-P-0029, 2011-Ohio-402, ¶24,

quoting State v. Strope, 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849, ¶19; State v.

Gregg, 6th Dist. Huron No. H-06-030, 2007-Ohio-4611, ¶19; State v. Mapes, 6th Dist.




                                             15
Fulton No. F-04-031, 2005-Ohio-3359, ¶42 (finding reasonable suspicion to conduct

sobriety tests when the officer “noticed an odor of alcohol in the vehicle as well as

appellant's glassy and bloodshot eyes * * * [and] appellant's speech was ‘somewhat

slurred’”).

       {¶47} In his reply brief, Mr. Russo contends the state’s reliance on State v.

Tournoux, 11th Dist. Portage No. 2009-P-0065, 2010-Ohio-2154; State v. Wojewodka,

11th Dist. Portage No. 2009-P-0029, 2010-Ohio-973; and State v. Seal, 11th Dist. Lake

No. 2003-L-163, 2004-Ohio-5938, is misplaced.

       {¶48} In Tournoux, we determined there was sufficient reasonable suspicion to

conduct sobriety field tests because of the “odor of alcoholic beverage, [the appellant’s]

glassy and bloodshot eyes, slurred speech, and difficulty when opening his window.” Id.

at ¶16. The officer pulled the appellant over when he noticed the appellant pulling out of

a parking lot without his headlights illuminated. Id. at ¶2.

       {¶49} In Wojewodka, the appellant was pulled over for speeding. Id. at ¶2. Upon

approaching the appellant, the officer noticed the appellant’s eyes were watery and red,

his speech was slow, and when he exited the vehicle, a strong odor of alcohol remained.

Id. at ¶16. We affirmed the trial court’s finding that the officer’s conduct in performing field

sobriety tests was proper. Id.

       {¶50} Lastly, in Seal, the appellant had been involved in a traffic accident. Id. at

¶2. After the accident, the appellant’s friends moved his motorcycle to a nearby gas

station. Id. When the police arrived on the scene, an officer instructed the crowd not to

remove the motorcycle. Id. Soon after, the officer noticed it had been removed from the

gas station and that a large group of motorcyclists had left the area. Id. at ¶3. The




                                              16
appellant’s motorcycle was not found among the group of motorcyclists driving down the

highway. Id. The officer continued his search and discovered the appellant and his

girlfriend a short time later driving further down the highway. Id. at ¶4. Throughout the

officer’s entire confrontation with the appellant, the officer noticed a strong odor of alcohol,

that the appellant’s eyes were bloodshot and glassy, and that his speech was slurred. Id.

at ¶7.

         {¶51} We affirmed the trial court’s finding that reasonable suspicion existed to

conduct field sobriety testing, finding that “[a]lthough some of the indicators standing

alone do not conclusively indicate intoxication, viewed in light of the totality of the

circumstances, these indicators provided [the officer] with a reasonable, articulable

suspicion that [the appellant] was engaged in further criminal activity, specifically driving

under the influence, to justify [the officer’s] expanded investigation beyond the purposes

of the initial stop.” Id. at ¶22.

         {¶52} A review of all of the cases cited by Mr. Russo and the state reminds us of

the cornerstone of a Fourth Amendment reasonable suspicion analysis - every case is

factually dependent and must be examined under the totality of those unique

circumstances that support, or conversely, would not support, an officer’s decision to

detain a person in order to conduct field sobriety tests. As the Supreme Court of the

United States has noted, “[t]he principal components of a determination of reasonable

suspicion or probable cause will be the events which occurred leading up to the stop or

search, and then the decision whether these historical facts, viewed from the standpoint

of an objectively reasonable police officer, amount to reasonable suspicion or to probable

cause.” (Emphasis added.) Ornelas v. United States, 517 U.S. 690, 696 (1996). A police




                                              17
officer may draw inferences based on his own experience in deciding whether probable

cause exists. State v. Reed, 5th Dist. Richland No. 16CA50, 2017-Ohio-2644, ¶34, citing

United States v. Ortiz, 422 U.S. 891, 897 (1975).

       {¶53} We agree with the trial court that under the totality of the circumstances and

“based on his observations and his experience and training, Officer Stirewalt had a

reasonable and articulable suspicion of criminal activity, which permitted him to detain

[Mr. Russo] and conduct field sobriety testing.”

       {¶54} Mr. Russo’s first assignment of error is without merit.

                                        Probable Cause

       {¶55} In his second assignment of error, Mr. Russo contends the trial court erred

in denying his motion to suppress because the HGN test should not have been included

as a contributor to probable cause.

       {¶56} In determining whether the police had probable cause to arrest an individual

for OVI, courts consider whether, at the moment of arrest, the police had sufficient

information, derived from a reasonable trustworthy source of facts and circumstances, to

cause a prudent person to believe that the suspect was driving under the influence. State

v. Osborne, 11th Dist. Lake Nos. 2018-L-124, et al., 2019-Ohio-3235, ¶52, appeal not

allowed, 157 Ohio St.3d 1512, 2019-Ohio-5193, citing State v. Homan, 89 Ohio St.3d

421, 427 (2000), citing Beck v. Ohio, 379 U.S. 89, 91 (1964) and State v. Timson, 38 Ohio

St.2d 122, 127 (1974). In making this determination, courts examine the “totality of facts

and circumstances surrounding the arrest.” Id. The totality of the circumstances can

support a finding of probable cause to arrest, even where no field sobriety tests were

administered or where the test results are excluded. Id.




                                            18
       {¶57} A review of the hearing transcript and the dash cam video reveals Officer

Stirewalt was only able to administer a partial HGN test. He testified that he observed

two clues, one in each eye, before Mr. Russo refused to complete the test by saying, “I’m

good. I don’t want to do anymore.” Mr. Russo then voluntarily turned around – without

being asked -- and put hands behind his back for Officer Stirewalt to arrest him.

       {¶58} Based on the dash cam video, the trial court found that the HGN test was

administered in a reasonable and acceptable manner. While Mr. Russo argues in his

brief that Officer Stirewalt’s testimony demonstrates he failed to conduct the field sobriety

tests in accordance with the NHTSA standards, the evidence reveals the trial court used

Officer Stirewalt’s observations during the partially administered test, not the results.

       {¶59} An officer may testify concerning the results of a field sobriety test

administered in substantial compliance with the testing standards.         Osborne at ¶44,

citing State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶9.             Specifically, R.C.

4511.19(D)(4)(b)(i) provides that an officer may testify concerning the results of a field

sobriety test “if it is shown by clear and convincing evidence that the officer administered

the test in substantial compliance with the testing standards for any reliable, credible, and

generally accepted field sobriety tests that were in effect at the time the tests were

administered, including, but not limited to, any testing standards then in effect that were

set by the national highway traffic safety administration[.]”

       {¶60} In addition, a law enforcement officer may testify at trial regarding

observations made during a defendant's performance of nonscientific standardized field

sobriety tests. Osborne at ¶45, citing Schmitt at ¶15.




                                             19
        {¶61} A review of the hearing transcript reveals Officer Stirewalt and the trial court

only referenced Officer Stirewalt’s observations regarding the partially administered HGN

test, not the test results. Officer Stirewalt could not have demonstrated the HGN test was

administered in substantial compliance with NHTSA standards because the test was

never completed. He only observed two clues before Mr. Russo abruptly terminated the

test.

        {¶62} We recently were confronted with a similar issue in Osborne, where the

appellant argued that the state did not produce sufficient evidence of the applicable

NHTSA standards and cited numerous instances of noncompliance with the NHTSA

manual regarding the three field sobriety tests that were administered. Id. at ¶46. We

found that we did not need to determine whether the officer’s testimony demonstrated

substantial compliance with the applicable standards because, although the trial court

found they were administered in substantial compliance, the trial court had concluded that

the tests “were admissible at trial as to the officer’s observations. * * * Significantly, the

trial court did not rule that the test results were admissible at trial.” (Emphasis sic.) Id. at

¶47. We went on to find that “[s]imilarly, in determining that probable cause existed for

Mr. Osborne’s arrest, the trial court only referenced [the officer’s] observations during the

field sobriety testing, not the test results.” (Emphasis sic). Id. at ¶48. We concluded that

the totality of the facts and circumstances, without reference to the field sobriety tests,

supported a finding of probable cause to arrest the appellant for OVI. Id. Thus, even if

the trial court erred in finding substantial compliance, such error was harmless under the

circumstances. Id. at ¶49.




                                              20
       {¶63} In this case, the partial HGN test was not the determinative basis for the

trial court’s conclusion that Officer Stirewalt had probable cause to arrest Mr. Russo for

driving under the influence of alcohol. The trial court found the following facts and

circumstances supported a finding of probable cause: “erratic driving, Defendant’s glassy

eyes, constricted pupils, and slow and deliberate speech; the odor an alcoholic beverage

coming from Defendant’s person and Defendant’s denial that he had been drinking;

Defendant’s lack of smooth pursuit in both eyes during the HGN test; Defendant’s

decision not to complete the field sobriety testing by saying ‘I’m good;’ and Defendant

turning and placing his hands behind his back without being asked before Off. Stirewalt

arrested him.”

       {¶64} Even if we eliminate the officer’s observations that Mr. Russo exhibited two

clues of impairment from a partial field sobriety test, there is more than enough to

establish a finding of probable cause to arrest in this case. This court has held that both

police testimony regarding a defendant’s erratic driving and the refusal to submit to field

sobriety tests are factors that may be considered in determining the existence of probable

cause in an arrest for driving under the influence. State v. Snowden, 11th Dist. Trumbull

No. 2014-T-0092, 2015-Ohio-2611, ¶34, citing State v. Sitko, 11th Dist. Portage No.

2011-P-0042, 2012-Ohio-2705, ¶28; State v. Molk, 11th Dist. Lake No. 2001-L-146, 2002-

Ohio-6926, ¶19. Mr. Russo’s erratic driving, coupled with the alcoholic odor, glassy eyes,

constricted pupils, denial that he had been drinking, and abrupt termination of a field

sobriety test, then turning and placing his hands behind his back without being asked, is

more than enough under the totality of the circumstances to support a probable cause

finding.




                                            21
      {¶65} Mr. Russo’s second assignment of error is without merit.

      {¶66} The judgment of the Lake County Court of Common Pleas is affirmed.


CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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