[Cite as State v. Baldwin, 2013-Ohio-2648.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :      Hon. William B. Hoffman, J.
                                              :      Hon. Sheila G. Farmer, J.
-vs-                                          :
                                              :
JOSHUA BALDWIN                                :      Case No. 12-CA-110
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. TRC118937A



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 20, 2013


BAL

APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

R. KYLE WITT                                         ANDREW T. SANDERSON
TERRE L. VANDERVOORT                                 118 West Chestnut Street
P.O. Box 1008                                        Suite B
121 East Chestnut Street                             Lancaster, OH 43130
Lancaster, OH 43130
Fairfield County, Case No. 12-CA-110                                                    2

Farmer, J.

       {¶1}   On September 5, 2011, Ohio State Highway Patrol Trooper Chad McMunn

observed appellant, Joshua Baldwin, operating a motor vehicle over the speed limit.

After initiating a traffic stop, Trooper McMunn had appellant perform three field sobriety

tests. Based upon the results, appellant was charged with operating a motor vehicle

while under the influence in violation of R.C. 4511.19 and speeding in violation of R.C.

4511.21.

       {¶2}   On October 6, 2011, appellant filed a motion to suppress, seeking to

suppress the results of the field sobriety tests and claiming an illegal arrest. A hearing

was held on March 12, 2012. By entry filed March 23, 2012, the trial court suppressed

the field sobriety tests, but found probable cause to arrest.

       {¶3}   On May 30, 2012, appellant pled no contest to the charges. By journal

entry filed May 30, 2012, the trial court found appellant guilty and sentenced him to

ninety days in jail, eighty-seven days suspended.

       {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶5}   "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING

THE DEFENDANT-APPELLANT'S MOTION TO SUPPRESS EVIDENCE."

                                             I

       {¶6}   Appellant claims the trial court erred in denying his motion to suppress on

the issue of probable cause to arrest. We disagree.
Fairfield County, Case No. 12-CA-110                                                          3


       {¶7}   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 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist. 1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist. 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 (4th Dist. 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 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 (8th Dist. 1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist. 1993); Guysinger. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."

       {¶8}   Probable cause to arrest focuses on the prior actions of the accused.

Probable cause exists when a reasonable prudent person would believe that the person

arrested had committed a crime.         State v. Timson, 38 Ohio St.2d 122 (1974).            A

determination of probable cause is made from the totality of the circumstances. Factors
Fairfield County, Case No. 12-CA-110                                                    4


to be considered include an officer's observation of some criminal behavior by the

defendant, furtive or suspicious behavior, flight, events escalating reasonable suspicion

into probable cause, association with criminals, and location. Katz, Ohio Arrest, Search

and Seizure, Sections 2:13-2:19, at 59-64 (2009 Ed.). As the United States Supreme

Court stated when speaking of probable cause "we deal with probabilities. These are

not technical; they are the factual and practical considerations of everyday life in which

reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338

U.S. 160, 175 (1949).

       {¶9}   Appellant challenges the quality and quantity of the evidence. Appellant

argues the facts were insufficient to support probable cause to arrest. In its entry filed

March 23, 2012, the trial court found the following:



              The only testimony disallowed by R.C. 4511.19(D)(4)(b) is the

       results of the tests. The general observations of the trooper which may

       be considered by the court include:

              1. Defendant's eyes were blood shot and glassy.

              2. Defendant's ultimate, although reluctant, admission to consuming

       alcohol.

              3. Defendant swayed while performing the one-legged stand.

              4. Defendant had a strong odor of alcohol coming from his breath

       as he spoke to Trooper McMunn.

              ***
Fairfield County, Case No. 12-CA-110                                                    5


              Following this precedent, the court finds that the totality of the

       observations made by Trooper McMunn were a sufficient basis for a

       finding that he possessed probable cause to arrest Defendant for a

       violation of R.C. 4511.19.



       {¶10} Probable cause to arrest is subject to some subjective interpretation by a

police officer.   After stopping appellant, Tropper McMunn smelled a strong odor of

alcohol coming from inside the vehicle. T. at 9. Appellant's eyes "were bloodshot,

completely bloodshot." Id. After placing appellant in his patrol car, Trooper McMunn

continued to smell alcohol. T. at 29. Appellant executed three field sobriety tests and

failed all three. T. at 22, 30, 36-37, 40. Although the field sobriety tests were excluded

as evidence for trial purposes, the results nonetheless contributed to Trooper McMunn's

independent conclusion. After performing the tests, appellant admitted to consuming

alcohol. T. at 41. Based upon his observations and the totality of the circumstances,

there was sufficient information for Trooper McMunn to make the subjective

determination of probable cause to arrest.

       {¶11} Upon review, we find the trial court did not err in denying appellant's

motion to suppress on the issue of probable cause to arrest.

       {¶12} The sole assignment of error is denied.
Fairfield County, Case No. 12-CA-110                                             6


      {¶13} The judgment of the Municipal Court of Fairfield County, Ohio is hereby

affirmed.

By Farmer, J.

Gwin, P.J. concur and

Hoffman, J. concurs separately.




                                         _________________________________



                                         _________________________________



                                         _______________________________

                                                      JUDGES

SGF/sg 521
Fairfield County, Case No. 12-CA-110                                                        7


Hoffman, P.J., concurring

          {¶14} I concur in the majority’s decision to overrule Appellant’s assignment of

error. However, I disagree with the majority’s analysis in reaching its conclusion.

          {¶15} The majority cites to State v. Timson, 38 Ohio St.2d 122 (1974), for the

appropriate test to be applied when determining whether probable cause to arrest

exists. Probable cause exists when a reasonable prudent person would believe the

person arrested has committed a crime. This is an objective standard.

          {¶16} My concern is the majority interjects a subjective standard into its analysis.

The majority states, “Probable cause to arrest is subject to some subjective

interpretation by a police officer.” (Majority Opinion at ¶10). The majority ultimately

concludes “… there was sufficient information for Trooper McMunn to make the

subjective determination of probable cause to arrest.” Id.

          {¶17} While there may be an element of subjective interpretation as to various

indicators of intoxication; i.e., strength of odor of alcohol, degree of glassy or bloodshot

eyes, level of distinction of speech – I disagree the arresting officer’s subjective

interpretation is the test to be applied in determining whether probable cause to arrest

exists.

          {¶18} I am also concerned with the majority’s mention of the “results” of three

excluded field sobriety tests as contributing to Trooper McMunn’s “independent

conclusion”.      (Majority Opinion at ¶10).    While Trooper McMunn’s observations of

Appellant’s conduct made during the improper administration of the field sobriety tests
Fairfield County, Case No. 12-CA-110                                            8


may properly be considered, I find consideration of the results thereof may not be

considered in determining probable cause.



                                            ________________________________
                                            HON. WILLIAM B. HOFFMAN
[Cite as State v. Baldwin, 2013-Ohio-2648.]


                  IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
JOSHUA BALDWIN                                 :
                                               :
        Defendant-Appellant                    :       CASE NO. 12-CA-110




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Fairfield County, Ohio is affirmed.      Costs to

appellant.




                                               _______________________________



                                               _______________________________



                                               _______________________________

                                                          JUDGES
