[Cite as State v. Stover, 2017-Ohio-9097.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             CLINTON COUNTY




STATE OF OHIO,                                     :
                                                          CASE NO. CA2017-04-005
        Plaintiff-Appellant,                       :
                                                                OPINION
                                                   :            12/18/2017
    - vs -
                                                   :

CHRISTINA E. STOVER,                               :

        Defendant-Appellee.                        :




      CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
                          Case No. CRI16-500-315


Richard W. Moyer, Clinton County Prosecuting Attorney, Lindsey M. Fleissner, 103 East
Main Street, Wilmington, Ohio 45177, for plaintiff-appellant

Blaise Underwood, 97 North South Street, Wilmington, Ohio 45177, for defendant-appellee



        S. POWELL, P.J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the decision of the Clinton

County Court of Common Pleas granting a motion to suppress filed by defendant-appellee,

Christina E. Stover. For the reasons outlined below, we reverse and remand for further

proceedings.

        {¶ 2} On November 7, 2016, the Clinton County Grand Jury returned an indictment

charging Stover with aggravated possession and trafficking of methamphetamine, both third-
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degree felonies, and aggravated possession of Hydrocodone, a fifth-degree felony. The

charges arose after Police Officer Jeffrey Lennons with the Blanchester Police Department

located methamphetamine and Hydrocodone in Stover's vehicle following her arrest for

operating a vehicle while under the influence of drugs in August 2016.

       {¶ 3} In December 2016, Stover filed her motion to suppress alleging her arrest and

the subsequent search of her vehicle was unlawful. The trial court held a hearing and then

granted Stover's motion to suppress upon finding the state failed to establish "a reasonable

and articulable suspicion that [Stover] was under the influence or otherwise committing a

crime" when Officer Lennons ordered her to perform field sobriety tests. The trial court

further found that Officer Lennons violated Stover's right to counsel when he refused to allow

Stover to have her attorney present during the administration of field sobriety tests.

       {¶ 4} The state now appeals from the trial court's decision, raising two assignments

of error for review.

       {¶ 5} Assignment of Error No.1:

       {¶ 6} THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT-

APPELLEE WAS UNLAWFULLY SEIZED DUE TO THE FACT THAT THERE WAS NO

REASONABLE ARTICULABLE SUSPICION TO DETAIN THE DEFENDANT-APPELLEE

FOR STANDARDIZED FIELD SOBRIETY TESTS.

       {¶ 7} In its first assignment of error, the state argues the trial court erred by granting

Stover's motion to suppress upon finding there was no reasonable, articulable suspicion for

Officer Lennon to detain Stover for purposes of conducting field sobriety tests. Appellate

review of a ruling on a motion to suppress presents a mixed question of law and fact. State

v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15, citing State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to

suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence to
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resolve factual questions and evaluate witness credibility. State v. Vaughn, 12th Dist.

Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. In turn, when reviewing the denial of a

motion to suppress, this court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Durham, 12th Dist. Warren No.

CA2013-03-023, 2013-Ohio-4 764, ¶ 14. "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12.

       {¶ 8} Ohio recognizes two types of lawful traffic stops. State v. Campbell, 12th Dist.

Butler Nos. CA2014-02-048 and CA2014-02-051, 2014-Ohio-5315, ¶ 25. The first type of

lawful traffic stop is a non-investigatory stop in which an officer has probable cause to stop a

vehicle because the officer observed a traffic violation. State v. Moore, 12th Dist. Fayette

No. CA2010-12-037, 2011-Ohio-4908, ¶ 31, citing Whren v. United States, 517 U.S. 806,

810, 116 S.Ct. 1769 (1996). The second type of lawful traffic stop is an investigative stop,

also known as a Terry stop, in which the officer has reasonable suspicion based upon

specific or articulable facts that criminal behavior is imminent or has occurred. State v.

Bullock, 12th Dist. Clinton No. CA2016-07-018, 2017-Ohio-497, ¶ 7, citing State v. Moore,

12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-4908, ¶ 33, in turn, citing Terry v. Ohio,

392 U.S.1, 21, 88 S.Ct. 1868 (1968).

       {¶ 9} While the concept of "reasonable and articulable suspicion" has not been

precisely defined, it has been described as something more than an undeveloped suspicion

or hunch, but less than probable cause. State v. Baughman, 192 Ohio App.3d 45, 2011-

Ohio-162, ¶ 15 (12th Dist.), citing Terry at 20-21. The reasonable suspicion standard under

Terry "is an objective, not subjective, one." State v. McCandlish, 10th Dist. Franklin No.
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11AP-913, 2012-Ohio-3765, ¶ 7. As a result, the propriety of an investigative stop "must be

viewed in light of the totality of the surrounding circumstances, from the perspective of a

reasonably prudent police officer on the scene guided by his experience and training."

Baughman at id., citing State v. Batchili, 113 Ohio St. 3d 403, 2007-Ohio-2204, paragraph

two of the syllabus and State v. Bobo, 37 Ohio St. 3d 177 (1988), paragraph one of the

syllabus.

       {¶ 10} At the hearing on Stover's motion to suppress, Officer Lennons – the only

witness at the suppression hearing – testified that he responded to the local Kroger grocery

store on a report that a blue vehicle in the parking lot had been parked for approximately two

hours "occupied by a female who was nodding off and the vehicle was running." It is

undisputed that the female in the vehicle was Stover.

       {¶ 11} Upon arriving at the Kroger parking lot, Officer Lennons located the blue

vehicle, exited his police cruiser, and walked up to the driver's side window. The vehicle's

engine was running. Stover was in the driver's seat "laid back, reclined in the seat all the way

back." Officer Lennons observed Stover "sweating profusely" and saw that she "was asleep.

Her eyes were closed." Officer Lennons announced "very loudly" that he was with the

Blanchester Police Department and began "pounding" on the window. Stover did not

respond. Officer Lennons testified he continued knocking "fairly hard" on the window an

additional five or six times, but failed to rouse Stover from her sleep. Officer Lennon stated

that Stover's failure to wake up concerned him and made him suspect Stover was suffering

from a potentially serious health issue or a possible overdose.

       {¶ 12} After several minutes of knocking on the driver's side window, Stover woke up,

she "sat up in the seat really quickly, grabbed her ignition keys, and then looked over and

seen me standing there." Officer Lennons told Stover to open her door, which she did. After

Stover opened the door, Officer Lennons described being "hit with a lot of heat coming from
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inside the vehicle." Officer Lennons asked Stover why her heater was running since it was a

"really hot" summer day, to which Stover said she "had an appointment to get it looked at."

Stover also told Officer Lennons that she was sleeping in her vehicle because she was

homeless.

       {¶ 13} Officer Lennons sensed that "[Stover] didn't seem to want me there talking to

her." He was concerned "that maybe [Stover] was under the influence of some sort or maybe

there was some sort of medical condition." The Blanchester police chief arrived on the scene

and noted that the vehicle had damage on the passenger side. As a result, Officer Lennons

testified that his police chief instructed him to administer field sobriety tests to Stover to

ensure that she was capable of operating her vehicle lawfully. Inexplicably, Officer Lennons

also testified that he did not "have a suspicion" that Stover was under the influence of drugs

or alcohol prior to conducting the field sobriety tests.

       {¶ 14} Stover told Officer Lennons that she did not want to perform any of the tests

without her attorney present. In response, Officer Lennons informed Stover that "she would

be able to speak with her lawyer, but not at that point." Officer Lennons instructed Stover on

how to perform the field sobriety tests. When asked if Stover was ever given the option not

to perform the tests, Officer Lennons testified "[i]f she would have told me no, it would have

ended."

       {¶ 15} It is generally undisputed that Stover performed very poorly on each of the field

sobriety tests, thereby indicating she was under the influence of drugs or alcohol. As a

result, Officer Lennons placed Stover under arrest, handcuffed her, and sat her in the back of

his police cruiser. Officer Lennons then went back to Stover's vehicle where he located

various drugs and drug paraphernalia within the vehicle, including methamphetamine and

Hydrocodone.       A urine sample later revealed that Stover testified positive for

methamphetamine and marijuana. As noted above, a grand jury later indicted Stover for
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aggravated possession and trafficking of methamphetamine, as well as aggravated

possession of Hydrocodone.

       {¶ 16} After a thorough review of the record, this court finds there was ample

evidence, in light of the totality of the surrounding circumstances, that would provide a

reasonably prudent police officer in Officer Lennons' position with reasonable suspicion that

Stover was engaged in criminal behavior. Thus, Officer Lennons could properly detain

Stover for purposes of conducting field sobriety tests to ensure that she was capable of

operating her vehicle lawfully. As noted above, Stover was observed "nodding off'' in her

vehicle while the engine was still running for approximately two hours before Officer Lennons

arrived on the scene. Once there, Officer Lennons observed Stover reclined in the driver's

seat of her vehicle, asleep and "sweating profusely," all while having the heater on despite it

being a "very hot" summer day. The record further indicates that Stover remained in this

unresponsive state for several minutes while Officer Lennons knocked on her driver's side

window. The police chief noted damage to the vehicle's passenger side. Officer Lennon,

therefore, was justified in his belief that Stover may have been suffering from a potentially

serious health issue or a possible overdose. These facts support a finding of a reasonable,

articulable suspicion to detain Stover for purposes of conducting field sobriety tests to ensure

that she was capable of operating her vehicle lawfully.

       {¶ 17} In granting Stover's motion, the trial court placed great weight on Officer

Lennons' testimony that he did not "have a suspicion" that Stover was under the influence of

drugs or alcohol prior to conducting field sobriety tests. However, as noted above, the record

also demonstrates that Officer Lennons testified he "had concerns about Stover, specifically

testifying he was concerned "that maybe she was under the influence of some sort or maybe

there was some sort of medical condition." Regardless, as stated previously, "the standard is

objective," and therefore, "the officer's own subjective belief or conclusion regarding the

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existence of reasonable suspicion is not relevant." McCandlish, 2012-Ohio-3765 at ¶ 9

(affirming trial court's decision denying motion to suppress even though the arresting officer

may have believed he did not have sufficient grounds to stop appellant's vehicle). Moreover,

although much of Stover's conduct could be considered legal, "[e]ven legal conduct, or facts

that might be given an innocent construction, may, under some circumstances, justify a

reasonable suspicion that criminal activity is afoot." State v. Wells, 12th Dist. Warren

CA2014-10-133, 2015-Ohio-2828, ¶ 10. That is the case here when reviewing Stover's odd

behavior. In sum, a reasonably prudent police officer in Officer Lennons' position would have

a reasonable, articulable suspicion of criminal behavior sufficient to detain Stover for

purposes of conducting field sobriety tests. Therefore, the court should not have granted

Stover's motion to suppress and this court sustains the state's first assignment of error.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT-

APPELLEE'S RIGHT TO COUNSEL WAS VIOLATED WHEN SHE WAS NOT ALLOWED

TO HAVE HER ATTORNEY PRESENT DURING FIELD SOBRIETY TESTS.

       {¶ 20} In its second assignment of error, the state argues the trial court erred by

granting Stover's motion to suppress upon finding that Officer Lennons violated Stover's right

to counsel by refusing to allow Stover to have her attorney present during the administration

of field sobriety tests. According to Stover, Officer Lennons' actions violated R.C. 2935.20, a

statute that provides, in pertinent part:

              After the arrest, detention, or any other taking into custody of a
              person, with or without a warrant, such person shall be permitted
              forthwith facilities to communicate with an attorney at law of his
              choice who is entitled to practice in the courts of this state, or to
              communicate with any other person of his choice for the purpose
              of obtaining counsel. Such communication may be made by a
              reasonable number of telephone calls or in any other reasonable
              manner. Such person shall have a right to be visited
              immediately by any attorney at law so obtained who is entitled to
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              practice in the courts of this state, and to consult with him
              privately. No officer or any other agent of this state shall prevent,
              attempt to prevent, or advise such person against the
              communication, visit, or consultation provided for by this section.

              Whoever violates this section shall be fined not less than twenty-
              five nor more than one hundred dollars or imprisoned not more
              than thirty days, or both.

R.C. 2935.20, therefore, criminalizes the act of failing to provide an attorney in the foregoing

circumstances and imposes either a fine or term of imprisonment for such a violation.

       {¶ 21} In OVI cases, the Ohio Supreme Court held that the imposition of the

exclusionary rule does not lie as a remedy for a violation of an accused's statutory right to

counsel. State v. Griffith, 74 Ohio St.3d 554 (1996). In turn, "[t]he exclusionary rule is not

applicable as a sanction for a violation of R.C. 2935.20." State v. Arnold, 12th Dist. Butler

No. CA99-02-026, 1999 Ohio App. LEXIS 4159, *14 (Sept. 7, 1999); State v. Sebastian, 12th

Dist. Butler No. CA96-10-204, 1997 Ohio App. LEXIS 1458, *4 (Apr. 14, 1997) ("the

exclusionary rule is not a permissible sanction for any violation of that statute"). Additionally,

the administration of standardized field sobriety tests is not a "critical stage" of the

prosecution implicating the constitutional right to counsel as provided by the Sixth

Amendment to the United States Constitution. See McNulty v. Curry, 42 Ohio St.2d 341, 345

(1975). Therefore, this court concludes that the trial court erred by granting Stover's motion

to suppress on the basis that Officer Lennons refused to allow Stover to have her attorney

present during field sobriety tests. Again, even if a violation of Stover's statutory right to

counsel occurred, suppression of the field sobriety test results is not an appropriate remedy.

State v. Turner, 11th Dist. Portage No. 2007-P-0090, 2008-Ohio-3898, ¶ 27; City of

Twinsburg v. Lacerva, 9th Dist. Summit No. 23849, 2008-Ohio-550, ¶ 7. This court sustains

the state's second assignment of error.

       {¶ 22} Judgment reversed and remanded for further proceedings.


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       RINGLAND, J., concurs.


       PIPER, J., concurs separately.


       PIPER, J., concurring separately.

                                   First Assignment of Error

       {¶ 23} I agree with the majority's analysis as to the first assignment of error. Officer

Lennons' initial contact led him to believe Stover was either suffering from a medical

condition or she had experienced an overdose on drugs.              As his contact continued,

objectively, the reason to believe Stover was suffering from a medical condition gradually

declined and the reason to believe she was under the influence of something that impaired

her driving abilities increased.

       {¶ 24} Officer Lennons' statements during his testimony give an appearance of

inconsistency when considered in isolation. Yet a reasonably prudent officer in the totality of

the unfolding circumstances would clearly possess a reasonable and articulable suspicion of

Stover being under the influence of a substance rendering her unsuitable to operate a motor

vehicle. This is evident by the police chief's arrival on the scene and directive to Officer

Lennons to initiate a field sobriety test particularly after observing damage to Stover's vehicle.

                                Second Assignment of Error

       {¶ 25} I concur with the majority's result concerning the second assignment of error,

but I disagree with the majority opinion in its implication that R.C. 2935.20 could apply to a

field sobriety test before police take a person into custody. Similarly, I disagree that the

inherent authority of a court, in its administration of justice, can offer no remedy for a clear

violation of R.C. 2935.20.

                   R.C. 2935.20 Is Not Applicable to a Field Sobriety Test

       {¶ 26} A field sobriety test is not testimonial in nature and the request to submit to
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such a test is merely a preparatory step in the initiation of a law enforcement investigation.

State v. Arnold, 12th Dist. Butler No. CA99-02-026, 1999 Ohio App. LEXIS 4159, *3 (Sept. 7,

1999). A request to take a field sobriety test does not implicate the Fifth nor the Sixth

Amendments. Id., see also State v. Perez, 1st Dist. Hamilton Nos. C-040363, C-040364, and

C-040365, 2005-Ohio-1326, ¶ 13-18 (holding that there is no right to counsel at a field

sobriety test). Should an individual refuse to participate in a field sobriety test, then the law

enforcement officer involved may detain the individual, take into custody, and transport that

person to an appropriate facility for a breathalyzer, blood, or urine test.

       {¶ 27} R.C. 2935.20 only applies "[a]fter the arrest, detention, or any other taking into

custody of a person." (Emphasis added.) Terms followed by a catchall phrase linked by the

word other are conjoined. State v. Vaduva, 2d Dist. Greene No. 2015-CA-27, 2016-Ohio-

3362, ¶ 25. The term "other" in conjunction with the phrase "taking into custody" is indicative

of legislative intent and requires that the previous terms only embrace similar things of the

same character. Id. (discussing the rule of construction eiusdem generis). See also State ex

rel. Barno v. Crestwood Bd. of Edn., 134 Ohio App.3d 494, 505 (11th Dist.1998) (holding that

the sequence of terms is not necessarily controlling; discussing conjoined terms per eiusdem

generis). The meaning of "detention" therefore must be similar to when a person is arrested

or taken into custody. Because the request for a field sobriety test does not require a person

be taken into custody, I would find R.C. 2935.20 inapplicable when an officer conducts a field

sobriety test.

       {¶ 28} A significant aspect of the judiciary's role in upholding the law is to give effect to

a statute with a paramount concern for its intent without rendering the statute meaningless or

inoperative. State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. of Commrs., Slip Opinion

No. 2017-Ohio-8348, ¶ 14. Clearly, the purpose of R.C. 2935.20 is that when an individual

loses free will and volition resulting in the type of restraint associated with a formal arrest,
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that individual has a statutory right to have access to facilities so to contact or communicate

with an attorney or another person of choice toward securing an attorney. An in-custody

detention does not occur upon the request to perform a field sobriety test.

                                   R.C. 2935.20 Remedies

       {¶ 29} The federal exclusionary rule does not apply to a statutory right violation. Yet at

least one court has suggested a statutory violation by law enforcement of R.C. 2935.20

violates the constitutional guarantee to due process of state law and that a motion in limine

may be appropriate. City of Lakewood v. Waselenchuk, 94 Ohio App.3d 684, 689 (8th

Dist.1994). But cf. State v. Layton, 111 Ohio App.3d 76 (10th Dist.1996). After all, the

statutory right to counsel pursuant to R.C. 2935.20 goes beyond the right to counsel secured

by the federal and state constitutions. State v. Downing, 2d Dist. Greene No. 2001-CA-78,

2002 Ohio App. LEXIS 1306, *8 (Mar. 22, 2002). Therefore, a court should be allowed to

consider the suppression of evidence as a remedy for a R.C. 2935.20 violation on a case-by-

case basis, driven by the facts. City of Lakewood; City of Fairborn v. Mattachione, 72 Ohio

St.3d 345, 346-347 (1995) (Wright, J., dissenting with Moyer and Pfeiffer, J.J., joining).

       {¶ 30} In conclusion, I agree with the majority judgment but would hold that R.C.

2935.20 is inapplicable to a field sobriety test. Therefore, there is no need to discuss the

exclusionary rule or what other remedies might be available. I also disagree with the

implication that when R.C.2935.20 is applicable, a clear violation of that statute can never

permit a court to implement a remedy should justice so require.




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