[Cite as State v. Scranton, 2016-Ohio-3128.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2015 CA 00185
DEVIN SCRANTON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Canton Municipal
                                               Court, Case Nos. 2015 CRB 3199 and 2015
                                               TRC 0516


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         May 23, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOSEPH MARTUCCIO                               JOHN BROOKS CAMERON
CANTON LAW DIRECTOR                            CHRISTOPHER JANKOWSKI
TYRONE D. HAURITZ                              JOHN BROOKS CAMERON & ASSOC.
CANTON CITY PROSECUTOR                         247 East Smith Road
KELLY PARKER                                   Medina, Ohio 44256
ASSISTANT PROSECUTOR
218 Cleveland Avenue S.W.
Post Office Box 24218
Canton, Ohio 44701-4218
Stark County, Case No. 2015 CA 00185                                                      2

Wise, J.

       {¶1}   Appellant Devin Scranton appeals his conviction and sentence on one count

of OVI, one count of Driving in Marked Lane, one count of No Seatbelt, one count of

Attempting to Commit Possessing Drug Abuse Instruments and one count of Possession

of Drug Paraphernalia, entered in the Canton Municipal Court following a plea of no

contest.

       {¶2}   Appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS

       {¶3}   On July 14, 2015, Trooper Douglas R. Trotter of the Ohio State Highway

Patrol received information from his dispatcher that a 911 caller was behind a possible

OVI, drunk driver, reckless operation. (Supp. T. at 8-9). The vehicle was traveling on U.S.

30 coming from the Wayne County line eastbound toward the Canton area. Id. The citizen

caller provided a vehicle description and license plate number and gave updates as to

the location of the vehicle. (Supp. T. at 9-10). Trooper Trotter waited stationary on I-77

northbound for the vehicle to approach. (Supp. T. at 10). He observed Appellant's vehicle,

a red Ford pickup truck, and began to follow. (Supp. T. at 10). He confirmed that the

vehicle registration matched the information provided by the dispatcher. (Supp. T. at 10).

As Trooper Trotter followed the vehicle, he observed the vehicle drive on the left berm

twice, once nearly striking the center concrete wall dividing the northbound and

southbound lanes. (Supp. T. at 11). Trooper Trotter initiated a traffic stop and made

contact with the driver of the vehicle, identified as Appellant Devin Scranton. (Supp. T. at

12). Trooper Trotter then approached Appellant's vehicle. It took Appellant a few moments

to roll down the window. (Supp. T. at 13). During this time, Trooper Trotter observed that
Stark County, Case No. 2015 CA 00185                                                        3


Appellant's eyes were wide and glassy. (Supp. T. at 13). Trooper Trotter asked Appellant

to step out of the vehicle. (Supp. T. at 13). Once out of the vehicle, Trooper Trotter noticed

that Appellant appeared nervous. (Supp. T. at 13). Appellant was then patted down and

placed in the cruiser. (Supp. T. at 14). While Appellant was seated in the cruiser, Trooper

Trotter noticed, prior to administering the Horizontal Gaze Nystagmus test (HGN test),

that Appellant’s pupils were very constricted. (Supp. T. at 14). He then performed the

HGN test, which did not reveal any clues; however, Trooper Trotter was again able to

observe that Appellant's eyes were wide open and glassy, and that his pupils were very

constricted. (Supp. T. 15).

       {¶4}   After the HGN test, Trooper Trotter asked Appellant to exit the cruiser so he

could administer the Walk and Turn and One Leg Stand tests. (Supp. T. at 16). While

administering the Walk and Turn test, Trooper Trotter observed two of eight clues. (Supp.

T. at 17). During the instructional phase of the test, Appellant swayed and moved his feet.

(Supp. T. at 17). While performing the test, he had to catch his balance once. (Supp. T.

at 17). While administering the One Leg Stand test, Trooper Trotter observed three clues.

(Supp. T. 19).

       {¶5}   Trooper Trotter then placed Appellant under arrest. (Supp. Tr. 13). After the

arrest, Appellant submitted two chemical tests: a breath test and a urine drug screen.

(Supp. T. at 23-24). The breath test result was 0.00. (Supp. T. at 23). The urine drug

screen showed Appellant had a concentration of marijuana metabolite of 55.29 ng/ml in

his urine. (Supp. T. at 24).

       {¶6}   Appellant was arrested and charged with two counts of Operating a Vehicle

Under the Influence of Alcohol or Drugs, one count of Driving in Marked Lanes, and one
Stark County, Case No. 2015 CA 00185                                                      4


count of No Seatbelt.

      {¶7}    Subsequent to Appellant’s arrest, officers conducted a search of Appellant’s

vehicle which revealed what was believed to be drug paraphernalia. The State later

brought charges against Appellant for one count of attempting to commit possessing drug

abuse instruments and one count of possession of drug paraphernalia

       {¶8}   On September 3, 2015, Appellant filed a motion to suppress.

       {¶9}   On September 14, 2015, a hearing was held on the motion to suppress. At

the hearing, the trial court heard testimony from Trooper Trotter as set forth above. The

Impaired Driver Report, the video of the traffic stop, the BMV 2255 form, Crime lab report,

and audio of a 911 call were admitted into evidence. (Supp. T. at 35).

       {¶10} At the conclusion of the hearing, the trial court orally stated its findings of

facts and conclusions of law into the record, overruling Appellant's motion.

       {¶11} On September 24, 2015, Appellant entered a plea of no contest. Appellant

was found guilty of one count of OVI, one count of Driving in Marked Lanes, and one

count of No Seatbelt.

       {¶12} Appellant now appeals, raising the following errors for review:

                                  ASSIGNMENTS OF ERROR

      {¶13} “I. THE TRIAL COURT ERRED IN RULING THAT TROOPER TROTTER

HAD PROBABLE CAUSE AND/ OR REASONABLE SUSPICION TO INITIATE THE

TRAFFIC STOP.

      {¶14} “II. THE TRIAL COURT ERRED IN RULING THAT TROOPER TROTTER

WAS JUSTIFIED IN EXPANDING THE SCOPE OF THE ORIGINAL STOP TO AN OVI

INVESTIGATION.
Stark County, Case No. 2015 CA 00185                                                    5


      {¶15} “III. THE TRIAL COURT ERRED IN RULING THAT PROBABLE CAUSE

EXISTED TO EFFECTUATE THE ARREST.”

                                            I., II., III.

      {¶16} In his First, Second and Third Assignments of Error, Appellant argues the

trial court erroneously denied his motion to suppress. We disagree.

      {¶17} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibits the government from conducting unreasonable

searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565

N.E.2d 1271.

      {¶18} 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 finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third 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 the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d

1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v.

Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. However, as the United States

Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134

L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion and probable

cause should be reviewed de novo on appeal.”
Stark County, Case No. 2015 CA 00185                                                          6

       {¶19} In the case sub judice, Appellant herein argues that Trooper Trotter lacked

reasonable, articulable suspicion to stop him or to request the performance of field

sobriety tests. Appellant also contends that there was not probable cause to arrest him.

                                              Traffic Stop

       {¶20} There are two standards applied to determine whether police have

legitimately stopped a vehicle. State v. Weinheimer, Warren App. No. CA2003–04–044,

2004–Ohio–801, ¶ 8. First, police may make an investigatory stop of a vehicle when they

have a “reasonable articulable suspicion” criminal activity has occurred or is occurring,

and the officer seeks to confirm or refute this suspicion of criminal activity. Id.

       {¶21} Second, police may stop a vehicle based on “probable cause” a traffic

violation, even minor, has occurred or is occurring. Dayton v. Erickson, 76 Ohio St.3d 3,

11–12, 665 N.E.2d 1091, 1996–Ohio–431. Such is the case when an officer witnesses a

traffic violation and then stops the motorist for this traffic violation.

       {¶22} In the instant case, we find Trooper Trotter had legal authority to stop

Appellant's vehicle. Trooper Trotter testified that in addition to receiving a citizen tip

regarding a possible impaired driver, he observed Appellant cross the far left white line

twice, once almost hitting the concrete median barrier.

                                         Field Sobriety Tests

       {¶23} “Requiring a driver to submit to a field sobriety test constitutes a seizure

within the meaning of the Fourth Amendment. Courts have generally held that the

intrusion on the driver's liberty resulting from a field sobriety test is minor, and the officer

therefore need only have reasonable suspicion that the driver is under the influence of

alcohol in order to conduct a field sobriety test.” State v. Bright, 5th Dist. Guernsey No.
Stark County, Case No. 2015 CA 00185                                                         7

2009–CA–28, 2010–Ohio–1111, ¶ 17, citing State v. Knox, 2nd Dist. Greene No. 2005–

CA–74, 2006–Ohio–3039.

       {¶24} In reviewing this issue, we apply a “totality of the circumstances” approach.

See, e.g., City of Fairfield v. Lucking, Butler App. No. CA2002–12–303, 2004–Ohio–90,

¶ 8, citing State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044.

       {¶25} In support of his position, Appellant cites Whitehouse v. Stricklin, 6th Dist.

Lucas County App. L-10-1277, 2012-Ohio-1877. We find the case sub judice to be

distinguishable from Stricklin. In Stricklin, unlike the present case, the driver was stopped

for a de minimus traffic violation; he had not demonstrated any erratic driving or exhibited

any other behaviors which would indicate that he was impaired.

       {¶26} In the instant case, as set forth in our recitation of facts, Trooper Trotter

stopped Appellant for moving violations. He testified that he received a call from dispatch

that a citizen had called in to report a possible impaired driver, and that Appellant’s vehicle

matched the description and registration. He further testified that he personally observed

Appellant travel left of the left berm twice, once almost hitting the concrete divider.

Additionally, upon stopping Appellant, he observed that his eyes were unusually wide-

open and glassy. Appellant was also acting nervous. Once inside the Trooper’s vehicle,

Trooper Trotter notice that Appellant’s pupils were very constricted.

       {¶27} Upon review, based on the above factors, we hold a reasonable basis

existed for Trooper Trotter to ask Appellant to proceed with field sobriety testing under

the circumstances of this case.
Stark County, Case No. 2015 CA 00185                                                       8

                                                Arrest

          {¶28} We further find, based on the foregoing, that probable cause existed for the

arrest.

          {¶29} “The standard for determining whether the police have probable cause to

arrest an individual for OVI is 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. Swope, 5th Dist. Fairfield No. 08 CA 50, 2009–Ohio–3849, ¶ 22.

          {¶30} The issue is whether Appellant's actions and Trooper Trotter’s observations

lead to probable cause to arrest. We note each case is determined individually from the

facts and observations presented.

          {¶31} Here, based on the totality of the circumstances, including Trooper Trotter’s

observations as set forth above and Appellant's poor performance on the field sobriety

tests, with the exception of the HGN test, we find that probable cause existed to arrest

Appellant.

          {¶32} We therefore hold the trial court did not err in denying the motion to

suppress in this matter. Accordingly, Appellant's Assignments of Error are overruled.
Stark County, Case No. 2015 CA 00185                                                 9


      {¶33} For the reasons stated in the foregoing opinion, the judgment of the Canton

Municipal Court, Stark County, Ohio, is affirmed.


By: Wise, J.

Farmer, P. J., and

Baldwin, J., concur.



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