[Cite as Columbus v. Cochran, 2019-Ohio-2583.]

                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT


City of Columbus,                                :

                Plaintiff-Appellant,             :              No. 18AP-748
                                                           (M.C. No. 2017 TRC 176927)
v.                                               :
                                                           (REGULAR CALENDAR)
Scott E. Cochran,                                :

                Defendant-Appellee.              :



                                         D E C I S I O N

                                    Rendered on June 27, 2019


                On brief: Zachary M. Klein, City Attorney, Bill R. Hedrick,
                and Orly Ahroni, for appellant. Argued: Orly Ahroni.

                On brief: The Tyack Law Firm Co., L.P.A., Jonathan T.
                Tyack, and Holly B. Cline, for appellee. Argued: Jonathan T.
                Tyack.

                     APPEAL from the Franklin County Municipal Court

LUPER SCHUSTER, J.
        {¶ 1} Plaintiff-appellant, City of Columbus, appeals from an entry of the Franklin
County Municipal Court granting the motion to suppress of defendant-appellee, Scott E.
Cochran, and ordering the dismissal of the matter. For the following reasons, we reverse.
I. Facts and Procedural History
        {¶ 2} On September 20, 2017, the city issued a citation to Cochran for one count of
operating a vehicle under the influence of alcohol ("OVI") in violation of Columbus City
Code ("C.C.C.") 2133.01(A)(1)(a); and one count operating a vehicle with a high prohibited
alcohol concentration in violation of C.C.C. 2133.01(A)(1)(h). Cochran entered a plea of not
guilty. Subsequently, on December 11, 2017, Cochran filed a motion to suppress the
evidence obtained from his warrantless stop and subsequent arrest.
No. 18AP-748                                                                                 2


       {¶ 3} The trial court conducted a hearing on Cochran's motion to suppress on
May 14, 2018. At the suppression hearing, the three officers who responded to the scene
testified. Additionally, all three officers wore body cameras during their interactions with
Cochran, and the trial court admitted into evidence the videos from the body cameras.
       {¶ 4} Scott Wright, an officer with the Columbus Division of Police, testified that at
approximately 4:38 p.m. on September 20, 2017, he responded to a dispatch at The City
Dog, a dog daycare center, where someone called police reporting concern for a customer
who had come to pick up his dog. The call to officers came in as a possible "medical or OVI."
(Tr. at 16.) When they arrived at the scene, both Officer Wright and Officer Kyle Cull had
pulled their cruisers behind Cochran's vehicle and blocked his vehicle in the parking space.
Officer Wright explained this was a common practice upon receiving a call about a possible
medical issue or OVI to block a vehicle in until it is determined the occupant is safe to drive
and will not be a danger to themselves or the public. Officers Wright and Cull then
encountered Cochran "slumped over the wheel of his car in the parking lot." (Tr. at 34.)
The car's windows were cracked open, the car key was in the ignition, and a dog was seated
in the front passenger seat.
       {¶ 5} Upon approaching the passenger side of the vehicle, Officer Wright began
speaking to Cochran through the car window. Cochran told Officer Wright he had just
picked up his dog and was taking a nap. Officer Wright told Cochran that the police received
calls from concerned citizens worried that Cochran was not feeling well or was having a
medical issue, and he asked Cochran if he would step out of his car so they could make sure
he was okay. Cochran refused to exit his vehicle. While standing at the passenger window,
Officer Wright observed Cochran sweating and his dog panting heavily. Officer Wright
described Cochran as having "a look on his face of kind of being tired and almost distraught"
and seemed "not with it." (Tr. at 15, 16.)
       {¶ 6} When medics arrived on the scene, Cochran remained in his vehicle and
rolled the driver's side window down farther to speak with the medics. After medics tested
Cochran's blood sugar for possible diabetic issues and checked his blood pressure, the
medics informed the officers that "there was nothing wrong with Mr. Cochran medically
and they were going to leave." (Tr. at 17.) Officer Cull testified that he suspected Cochran
No. 18AP-748                                                                                 3


was intoxicated. Additionally, Officer Cull testified that Cochran had glassy eyes, slow
speech, and delayed reactions when speaking with the officers.
       {¶ 7} Once the medics left, Officer Cull went inside The City Dog to speak with the
witness who had initially called police. That woman told Officer Cull that Cochran laid on
the ground with his dog when he came inside. She further said Cochran fumbled with the
door as he exited The City Dog, and then she saw him get into his car and lie down in the
driver's seat.
       {¶ 8} Officer Wright testified that when the medics left, he moved around to the
driver's side window to continue speaking to Cochran. From that vantage point, Officer
Wright said he observed that Cochran had glassy eyes and slurred speech. Officer Wright
said Cochran was generally uncooperative and kept insisting that he was not driving but
just wanted to sit in his car for a couple of hours until somebody could come get him. From
the driver's side window, Officer Wright testified he could see a half-full bottle of liquor on
the driver's side floor near Cochran's feet. When Officer Wright inquired about the bottle
on the floor, Cochran kicked the bottle underneath his seat.
       {¶ 9} After observing the bottle of liquor near Cochran's feet, Officer Wright asked
Cochran how much he had to drink, to which Cochran responded "not that much" and that
he had "one drink." (Tr. at 22; State's Ex. No. 1A 17:02:02-23.) Cochran also told officers
he was going to the hospital that evening for a "detox treatment." (Tr. at 22.)
       {¶ 10} Ace Trask, an OVI enforcement officer with the Columbus Division of Police,
testified that he arrived on the scene before the medics left. Officer Trask said he spoke to
Cochran through a partially opened driver's side window and could smell an odor of
alcohol. Officer Trask testified that Cochran appeared to be groggy, had glassy eyes, slurred
speech, and provided incoherent answers to the officers' questions. Additionally, Officer
Trask described Cochran as fumbling around in his car and exhibiting paranoia. Since the
medics had ruled out the possibility that Cochran was suffering from a medical condition,
Officer Trask believed that Cochran's behavior was a result of alcohol consumption.
       {¶ 11} Once the officers determined that Cochran had been drinking and was
"obviously impaired," they asked Cochran to exit his vehicle for his own safety and the
safety of the public. (Tr. at 53.) When officers told Cochran they wanted to make sure he
was "safe to drive," Cochran responded "I'm not safe to drive." (State's Ex. No. 1B 16:56:40-
No. 18AP-748                                                                                   4


44.) The officers offered to give Cochran a ride home, but he still refused to exist his vehicle.
At that point, the officers decided to remove Cochran from his vehicle.
       {¶ 12} When Cochran was distracted by his dog, Officer Trask reached through the
open car window, opened the door, and asked Cochran to step out of the vehicle. Cochran
again refused, so the officers pulled him out of the vehicle, put him on the ground, and then
placed him under arrest. From the time the medics left until the time the officers eventually
removed Cochran from the vehicle and placed him under arrest, the officers had spent
approximately 13 minutes attempting to convince Cochran to exit the vehicle voluntarily.
       {¶ 13} The officers initially placed Cochran under arrest for having physical control
of a vehicle while under the influence of alcohol or drugs. However, after Officer Cull spoke
to a witness inside The City Dog who stated she observed Cochran drive the car to the dog
daycare center, the city charged Cochran with OVI. Once in police custody, Cochran's
testing revealed his blood alcohol concentration to be .361, resulting in the additional
charge of operating a vehicle with a high prohibited breath alcohol concentration.
       {¶ 14} Following the hearing, the trial court sustained Cochran's motion to
suppress. The trial court found officers did not have probable cause to arrest Cochran for
OVI and ordered the suppression of Cochran's breath alcohol test, statements to the
officers, and refusal to undergo field sobriety testing. Additionally, the trial court dismissed
the charges against Cochran, journalizing its decision in an August 29, 2018 entry. The city
then requested that the trial court state its findings of fact and conclusions of law pursuant
to Crim.R. 12(F). In an October 16, 2018 entry, the trial court found no probable cause to
arrest, the arresting officers lacked reasonable and articulable suspicion to detain or
question Cochran, lacked justification for removing Cochran from his vehicle, and lacked
justification for requesting that Cochran submit to field sobriety tests and a breath alcohol
test. The city timely appeals.
II. Assignments of Error
       {¶ 15} The city assigns the following errors for our review:
              [1.] The trial court erred in granting Defendant's motion to
              suppress evidence because the officers were exercising their
              community caretaking function.
No. 18AP-748                                                                               5


              [2.] The trial court erred in granting Defendant's motion to
              suppress evidence because the officers had a reasonable and
              articulable suspicion of criminal activity.

              [3.] The trial court erred in granting Defendant's motion to
              suppress evidence because the officers had probable cause to
              arrest Defendant.

              [4.] The trial court erred in dismissing the charges against
              Defendant.

              [5.] The trial court erred when it failed to make its essential
              findings required by Crim.R. 12(F).

III. First, Second, and Third Assignments of Error – Motion to
     Suppress

       {¶ 16} In its first assignment of error, the city argues the trial court erred in
concluding the officers were not exercising their community caretaking function. In its
second assignment of error, the city argues the trial court erred in concluding the officers
did not have a reasonable and articulable suspicion of criminal activity. In its third
assignment of error, the city argues the trial court erred in concluding the officers did not
have probable cause to arrest Cochran. These three assignments of error are interrelated,
and we address them jointly. Taken together, the city's first, second, and third assignments
of error assert the trial court erred in granting Cochran's motion to suppress.
       {¶ 17} " 'Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses. Consequently, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence. Accepting these facts
as true, the appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.' "
(Citations omitted.) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, quoting
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
       {¶ 18} The Fourth Amendment to the United States Constitution as applied to the
states through the Fourteenth Amendment, as well as Article I, Section 14 of the Ohio
No. 18AP-748                                                                                 6


Constitution, prohibits 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, ¶ 11, citing Katz v. United States, 389 U.S. 347, 357
(1967), superseded by statute on other grounds. There is no dispute here that police
arrested Cochran without a warrant. The issue here is whether Cochran's arrest falls within
any of the well-established exceptions to the warrant requirement.
       A. Officers' Initial Approach to Cochran's Vehicle
       {¶ 19} The city first argues the trial court erred to the extent it suppressed any
evidence related to the officers' initial approach to Cochran's vehicle.
       {¶ 20} In granting Cochran's motion to suppress, the trial court concluded the
arresting officers had neither reasonable suspicion initially to detain Cochran nor probable
cause to arrest Cochran. "This court has recognized that 'police officers are not required to
possess reasonable suspicion of criminal activity when exercising community caretaking
functions.' " State v. Young, 10th Dist. No. 14AP-721, 2015-Ohio-2006, ¶ 32, quoting State
v. Weese, 10th Dist. No. 12AP-949, 2013-Ohio-4056, ¶ 13, citing State v. Chapa, 10th Dist.
No. 04AP-66, 2004-Ohio-5070, ¶ 8.             " '[C]ourts recognize that a community-
caretaking/emergency aid exception to the Fourth Amendment warrant requirement is
necessary to allow police to respond to emergency situations where life or limb is in
jeopardy.' " Weese at ¶ 13, quoting State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, ¶ 21.
"The bounds of an officer's ability to investigate, pursuant to the community caretaking
function, are not limitless." Id. "A police officer must possess 'objectively reasonable
grounds to believe that there is an immediate need for his or her assistance to protect life
or prevent serious injury to effect a community-caretaking/emergency-aid stop.' " Id.,
quoting Dunn at ¶ 26.
       {¶ 21} Here, Officers Wright and Cull responded to a police dispatch of a man
slumped over his vehicle's steering wheel with the keys in the ignition. That information
was obtained from a concerned citizen who called police to report the situation. Under
these circumstances, the officers possessed objectively reasonable grounds to believe that
their initial approach of Cochran's vehicle in the parking lot of The City Dog was necessary
to protect life or prevent serious injury. See State v. Trego, 3d Dist. No. 2-17-04, 2017-Ohio-
6932, ¶ 5-7 (police officer possessed reasonable, articulable justification to exercise the
No. 18AP-748                                                                                7


community caretaking function when stopping a vehicle after a concerned citizen called 911
to report a possibly impaired driver). Thus, we conclude the officer's initial approach to
Cochran's vehicle and subsequent summoning of medical personnel was justified under the
community caretaking exception to the warrant requirement.
       B. Officers' Continued Detention of Cochran After Medics Left the Scene
       {¶ 22} The city next argues the trial court erred in suppressing the evidence obtained
while officers continued to detain Cochran after medics determined he was not suffering
from a medical issue.
       {¶ 23} One of the recognized exceptions to the warrant requirement is an
investigatory detention, commonly referred to as the Terry stop. Under Terry v. Ohio, 392
U.S. 1 (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. Mendoza at ¶ 11, citing Terry at 21. Accordingly, "[a]n investigative stop
does not violate the Fourth Amendment to the United States Constitution if the police have
reasonable suspicion that 'the person stopped is, or is about to be, engaged in criminal
activity.' " State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 35, superseded by statute
on other grounds, quoting United States v. Cortez, 449 U.S. 411, 417 (1981).
       {¶ 24} Reasonable suspicion entails some minimal level of objective justification,
"that is, something more than an inchoate and unparticularized suspicion or 'hunch,' but
less than the level of suspicion required for probable cause." State v. Jones, 70 Ohio App.3d
554, 556-57 (2d Dist.1990), citing Terry at 27. Accordingly, "[a] police officer may not rely
on good faith and inarticulate hunches to meet the Terry standard of reasonable suspicion."
Jones at 557. An appellate court views the propriety of a police officer's investigative stop
or detention in light of the totality of the surrounding circumstances. State v. Bobo, 37 Ohio
St.3d 177 (1988), paragraph one of the syllabus.
       {¶ 25} The parties agree that officers had "detained" Cochran for purposes of the
Fourth Amendment after medics left the scene. Their police cruisers were parked behind
his vehicle such that he could not have driven away, and the officers remained at the
vehicle's side continuing to question Cochran through the window.            The trial court
concluded the officers lacked reasonable suspicion of criminal activity at this point.
However, the evidence at the suppression hearing indicated that once medics determined
No. 18AP-748                                                                                  8


Cochran was not experiencing a medical issue, all three officers on the scene believed
Cochran was under the influence of alcohol or drugs. They formed this belief based on the
reports of the witnesses who called police informing them that a man was slumped over the
wheel of his car, that the man had laid on the ground with his dog, fumbled with the door,
and stumbled when he exited the business, as well as their personal observations that
Cochran had glassy eyes, delayed reactions, slow speech, and was uncooperative.
Additionally, they saw that the key was in the ignition of the vehicle. We conclude these are
specific, articulable facts upon which the officers could form a reasonable suspicion that
criminal activity was, or was about to be, afoot. Thus, the trial court erred in suppressing
evidence obtained during the officers' continued detention of Cochran after the medics left
the scene and any evidence related to the officers' asking Cochran to submit to field sobriety
tests. State v. Perkins, 10th Dist. No. 07AP-924, 2008-Ohio-5060, ¶ 8 (officers may
investigate a suspect for impaired driving if reasonable and articulable facts exist to support
the officer's suspicion).
       C. Probable Cause to Arrest
       {¶ 26} The city additionally argues the trial court erred in concluding officers lacked
probable cause to arrest Cochran.
       {¶ 27} "A warrantless arrest that is based upon probable cause and occurs in a public
place does not violate the Fourth Amendment." State v. Brown, 115 Ohio St.3d 55, 2007-
Ohio-4837, ¶ 66, citing United States v. Watson, 423 U.S. 411 (1976). Though the city
ultimately charged Cochran with one count of OVI and one count of OVI per se, officers
arrested him on the scene on suspicion of having physical control of a vehicle while under
the influence of alcohol or drugs. To the extent the trial court analyzed Cochran's motion
to suppress under the rubric of whether officers had probable cause to arrest for OVI, the
trial court erred. As this court has noted, the officers did not need probable cause of the
commission of a specific crime, so long as the officers had probable cause that the accused
committed a crime. State v. Hayward, 10th Dist. No. 17AP-390, 2018-Ohio-1070, ¶ 29
(emphasis sic) (concluding it was immaterial that the officers did not know the offenders
were possessing marijuana and instead suspected them of possessing stolen property,
stating "the officers did not need probable cause that the box truck would contain evidence
of a specific offense; rather, it was sufficient that they had probable cause that the box truck
No. 18AP-748                                                                               9


would contain evidence of a criminal offense"), citing Dixon v. Maxwell, 177 Ohio St. 20,
21 (1964) ("[i]t is not necessary that an officer know that a specific crime has been
committed in order for him to have probable cause to make an arrest. It is sufficient if he
has reasonable grounds to believe from the circumstances that a felony has been
committed, and that the accused has committed it"). So long as officers had probable cause
that a criminal offense had been committed, their arrest of Cochran was justified.
       {¶ 28} In determining whether a police officer has probable cause to arrest a suspect
for having physical control of a vehicle while under the influence of alcohol or drugs, "a
court considers whether, at the moment of arrest, the officer had information within the
officer's knowledge, or derived from a reasonably trustworthy source, of facts and
circumstances sufficient to cause a prudent person to believe" the suspect had physical
control of the vehicle while under the influence of alcohol or drugs. State v. Montelauro,
10th Dist. No. 11AP-413, 2011-Ohio-6568, ¶ 20, citing State v. Homan, 89 Ohio St.3d 421,
427 (2000), superseded by statute on other grounds; State v. Vasquez, 1st Dist. No. C-
160784, 2017-Ohio-7255, ¶ 12 (applying probable cause standard for OVI cases to probable
cause for physical control of a vehicle while under the influence of alcohol or drugs). The
trial court must examine the totality of the circumstances surrounding the arrest in making
this determination. Montelauro at ¶ 20.
       {¶ 29} In addition to the factors supporting officers' reasonable suspicion to conduct
an investigatory detention of Cochran—the eyewitness reports, glassy eyes, delayed
reactions, slowed speech, and general uncooperativeness—Officer Wright also testified that
he saw a half-full bottle of liquor on the vehicle's floor near Cochran's feet. When asked
about the bottle, Cochran kicked it under the seat in an attempt to conceal it. Cochran also
admitted to drinking alcohol, stated he was going to the hospital that evening for a "detox
treatment," appeared groggy, fumbled around in his car, and exhibited paranoia. When
asked whether he was safe to drive, Cochran admitted he was "not safe to drive." (State's
Ex. No. 1B 16:56:40-44.) Cochran also refused to submit to field sobriety tests when asked.
All of these factors, when considered in the totality of the circumstances, support a
conclusion that the officers had probable cause to arrest Cochran. Thus, the trial court
erred in suppressing evidence on the basis that officers lacked probable cause to arrest
Cochran.
No. 18AP-748                                                                                   10


       D. Motion to Suppress
       {¶ 30} In summation, the evidence at the suppression hearing indicated that officers
acted properly within their community caretaking function when they initially approached
Cochran, they had reasonable suspicion to continue to detain him to conduct an
investigatory stop, and they ultimately had probable cause to arrest him in the parking lot
of The City Dog. For these reasons, the trial court erred in granting Cochran's motion to
suppress. Thus, we sustain the city's first, second, and third assignments of error.
IV. Fourth Assignment of Error – Dismissal of the Charges
       {¶ 31} In its fourth assignment of error, the city argues the trial court erred in
dismissing the charges against Cochran after it granted Cochran's motion to suppress.
       {¶ 32} As the city notes, "[g]enerally, 'the proper remedy for a Fourth Amendment
violation is suppression of the evidence wrongfully obtained, not dismissal of the charges.' "
Columbus v. Galang, 10th Dist. No. 02AP-1441, 2003-Ohio-4506, ¶ 8, quoting Blanchester
v. Hester, 81 Ohio App.3d 815, 820 (12th Dist.1992). Having determined in our resolution
of the city's first, second, and third assignments of error that the trial court erred in granting
Cochran's motion to suppress, we also conclude the trial court erred in dismissing the
charges against Cochran. On remand, we instruct the trial court to deny Cochran's motion
to suppress and to vacate its entry dismissing the matter. We sustain the city's fourth
assignment of error.
V. Fifth Assignment of Error – Crim.R. 12 Findings
       {¶ 33} In its fifth and final assignment of error, the city argues the trial court erred
in failing to make the essential findings required by Crim.R. 12(F). However, having
determined in our resolution of the city's first, second, and third assignments of error that
the trial court erred in granting Cochran's motion to suppress, the city's fifth assignment of
error is moot and we need not address it.
VI. Disposition
       {¶ 34} Based on the foregoing reasons, the trial court erred in granting Cochran's
motion to suppress and in dismissing the charges against him. Having sustained the city's
No. 18AP-748                                                                             11


first, second, third, and fourth assignments of error, which rendered moot the city's fifth
assignment of error, we reverse the judgment of the Franklin County Municipal Court and
remand the matter to that court for further proceedings consistent with this decision.
                                                    Judgment reversed; cause remanded.

                           BROWN and SADLER, JJ., concur.
