[Cite as Cleveland v. Martin, 2018-Ohio-740.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105420




                                CITY OF CLEVELAND
                                                      PLAINTIFF-APPELLANT

                                                vs.

                                     CALVIN MARTIN
                                                      DEFENDANT-APPELLEE




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2016 TRC 027709

        BEFORE: S. Gallagher, J., Keough, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: March 1, 2018
ATTORNEYS FOR APPELLANT

Barbara A. Langhenry
City of Cleveland
Director of Law
By: Lorraine Coyne
Assistant Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113

Kimberly G. Barnett-Mills
Legal Aid Society of Cleveland
1223 West Sixth Street
Cleveland Ohio 44113


ATTORNEYS FOR APPELLEE

Daniel J. Wodarczyk
Douglass & Associates Co., L.P.A.
4725 Grayton Road
Clevevland, Ohio 44135

Britt Newman
1280 West Third Street, First Floor
Cleveland, Ohio 44113

Eric Norton
Norton Law Firm Co., L.P.A.
Cedar-Grandview Building, Suite 6
12434 Cedar Road
Cleveland Heights, Ohio 44106




SEAN C. GALLAGHER, J.:
       {¶1} The city of Cleveland appeals from the interlocutory judgment granting

Calvin Martin’s motion to suppress all evidence obtained during a traffic stop. We

reverse and remand for further proceedings.

       {¶2} Martin was charged with violations of R.C. 4511.33, marked lane violations;

R.C. 4510.11(A), driving under a suspended license; and R.C. 4511.19(A), operating a

vehicle while under the influence of alcohol. Martin filed a motion to suppress all

evidence. He claims that the arresting police officer did not articulate a reasonable

suspicion justifying the initial stop based on the strength of the city’s evidence in support

of the marked lane violation. According to Martin, the recording of the traffic encounter

demonstrated that although the tires of Martin’s vehicle touched the lane boundary lines

on several occasions, the evidence was insufficient to definitively prove that the tires

completely crossed the boundary markers. In the alternative, Martin claims that even if

the stop was valid, the officer lacked a reasonable and articulable suspicion justifying the

administration of field sobriety tests and that those tests were not conducted according to

the National Highway Traffic Safety Administration standards.

       {¶3} The arresting officer encountered Martin around 2:00 a.m. on a Sunday

morning driving in the rightmost, eastbound lane on I-90. The officer witnessed Martin

drift over the white hash marks of an exit lane, lazily veer back into the through lane, and

cross over the solid white line dividing the exit lane and the shoulder of the highway

before drifting back into the through lane. After the second perceived infraction, the

officer initiated a traffic stop.
       {¶4} While approaching the vehicle, the officer detected an odor of alcohol in the

vehicle compartment and he also noticed that Martin’s eyes were bloodshot. The officer

asked Martin for his driver’s license, and Martin admitted he was driving under

suspension. Martin was then removed from his vehicle and acknowledged his rights

under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The

officer noted that the odor of alcohol followed Martin, who admitted the consumption of

one or two alcoholic drinks that evening.         Because of the erratic driving, Martin’s

bloodshot eyes, and the persistent odor of alcohol, the officer proceeded to administer

field sobriety tests.   Martin failed the tests and was arrested for driving under the

influence of alcohol.

       {¶5} The trial court suppressed all of the city’s evidence, even the evidence

supporting the marked lane violation and the driving under suspension. Tr. 66:4-12 (for

“the driving under the influence charge, I think that the tests are suppressed. But as it

relates to the rest of the stop, I’m thinking your predicate is also suppressed too.”).

According to the trial court, the marked lane violation that occurred was minor, and

therefore, the officer lacked reasonable suspicion justifying the initial traffic stop.

Further, the trial court concluded that the officer’s observation of the odor of alcohol and

bloodshot eyes was insufficient to support a reasonable and articulable suspicion

justifying the administration of the field sobriety tests.

       {¶6} Appellate review of a motion to suppress involves mixed questions 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.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8, citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).

The trial court’s findings of fact must be accepted only if supported by competent,

credible evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982).

After “[a]ccepting 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.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 707

N.E.2d 539 (4th Dist.1997). The facts are undisputed in this case; the only issue is the

application of the facts to the law and the legal conclusions that are drawn from the trial

court’s review of the evidence.

       {¶7} The trial court erred in suppressing the evidence of Martin’s marked lane

violation and Martin’s admission to driving under suspension. The trial court concluded

that a marked lane violation occurred, but that the violation was minimal. It is well

settled that “[a]n officer is not required to determine whether someone who has been

observed committing a crime might have a legal defense to the charge.” State v. Mays,

119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 17. Martin’s sole defense to

the traffic violation was that the strength of the city’s evidence in support of a marked

lane violation was questionable in light of the distorted depiction of the violation in the

grainy dashboard camera footage. Although this may be grounds to challenge the merits

of the charge, an officer need only form a reasonable and articulable suspicion that a
crime occurred in order to initiate a traffic stop; he need not disprove all potential

defenses to the criminal act. Id.

          {¶8} In this case, the dashboard camera footage depicted at least two instances

when it could not be readily discerned whether a marked lane violation actually occurred.

 R.C. 4511.33 (A)(1) provides that a vehicle must “be driven, as nearly as is practicable,

entirely within a single lane or line of traffic and shall not be moved from such lane or

line until the driver has first ascertained that such movement can be made with safety.”

The officer believed that he witnessed such a violation, and he testified that although the

dashboard camera footage was not clear, it depicted the tire completely crossing the

boundary line. The trial court agreed that in at least one of the instances, the footage

arguably depicted Martin’s vehicle completely violating the boundary of his lane of

travel. The initial stop was constitutionally valid.

          {¶9} That the violations appeared minimal or de minimis in nature is irrelevant.

Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus. “Trial courts

determine whether any violation occurred, not the extent of the violation.” (Emphasis

sic.) State v. Hodge, 147 Ohio App.3d 550, 2002-Ohio-3053, 771 N.E.2d 331, ¶ 27 (7th

Dist.).

          {¶10} Our decision should not be interpreted to mean “that movement within one

lane is a per se violation giving rise to reasonable suspicion.” Mays at ¶ 20, citing Hodge

at ¶ 45. “[I]nconsequential movement within a lane [does not] give law enforcement

carte blanche opportunity to make an investigatory stop.” Id. Nevertheless, when an
“officer could reasonably conclude from a person’s driving outside the marked lanes that

the person is violating a traffic law, the officer is justified in stopping the vehicle.” Id.

Further, even if an infraction is not observed, an officer has a duty to investigate erratic

driving in order to protect the public, and the driver himself, from driving while under the

influence, driving while mentally fatigued, or even from driving with some mechanical

defect of the vehicle. Hodge at ¶ 46; Chagrin Falls v. Bloom, 8th Dist. Cuyahoga No.

101686, 2015-Ohio-2264, ¶ 9.        Courts cannot impose a requirement on officers to

definitively prove that a traffic violation occurred to justify the initial stop in all

situations. In some cases, that may preclude officers from fulfilling their duty to the

public at large.

       {¶11} Nevertheless, the trial court in this case concluded that a marked lane

violation occurred, but that the violation was nonetheless minor. Having concluded that

a violation occurred, the stop is not unreasonable regardless of the extent of that violation.

 Erickson at syllabus.

       {¶12} During the initial stages of that valid traffic stop, the officer asked Martin

for his driver’s license. Martin admitted he was driving under suspension, as defined

under R.C. 4510.11(A), and that he could not produce a valid license. Martin could not

be allowed to drive away, and the failure to produce a valid driver’s license transformed

the nature of the traffic stop. In light of the admission, the officer was justified in

removing Martin from the driver’s seat. As a result, the trial court erred in suppressing

the evidence related to the driving under a suspended license charge.
       {¶13} Once removed from the vehicle, Martin was advised, and voluntarily

waived, his rights under Miranda. Martin then admitted he had consumed one or two

alcoholic drinks that evening. In consideration of the erratic driving, the odor of alcohol

that followed Martin, Martin’s bloodshot eyes, Martin’s admission to consuming

alcoholic beverages, and the time of day, the trial court erred in suppressing the results of

the field sobriety tests. We acknowledge that the officer did not testify to relying on

Martin’s admission regarding the consumption of alcohol.              The dashboard camera

footage is part of the trial record, and as such, it was part of the facts to be considered.

       {¶14} Once a driver has been lawfully stopped, an officer may not administer field

sobriety tests unless the invasion of privacy is separately justified by a reasonable

suspicion based upon articulable facts that the motorist is impaired. Parma Hts. v.

Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, ¶ 29, citing State v. Evans,

127 Ohio App.3d 56, 62, 711 N.E.2d 761 (11th Dist.1998). Importantly, reasonable

suspicion does not require an officer to observe and relate overt signs of intoxication. “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 unfold.”            Cleveland v. Maxwell, 8th Dist.

Cuyahoga No. 104964, 2017-Ohio-4442, ¶ 20, citing State v. Dye, 11th Dist. Portage

No. 2001-P-0140, 2002-Ohio-7158, ¶ 18. In Evans, the court outlined a nonexclusive

list of factors to consider in making this determination.            The factors include the

following:
      (1) the time and 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.

Evans at 63, fn. 2. No single factor controls the outcome.

      {¶15} Martin was pulled over at 2:00 a.m. on a Sunday morning having been

observed committing a marked lane violation, which is some evidence of erratic driving.

Although the marked lane violation would not be sufficient to justify the field sobriety

tests in and of itself, the officer noted the odor of alcohol upon approaching Martin’s

vehicle and described Martin’s eyes as being bloodshot. Martin admitted to having

consumed “one or two” alcoholic drinks that evening. Although the officer did not
expressly describe the intensity of that odor, he described the odor as being persistent, in

that it followed Martin when he was lawfully removed from the vehicle. The fact that

the odor followed Martin was indicative of more than the slight odor of alcohol deemed

insufficient in some cases. See, e.g., State v. Andrews, 2d Dist. Greene No. 2016-CA-13,

2017-Ohio-1383, ¶ 58.

       {¶16} Martin places undue emphasis on the officer’s lack of a descriptive modifier

in describing the intensity of the alcoholic odor. There is no requirement under Ohio law

that a police officer specify the perceived strength of the odor in support of a reasonable

articulable suspicion of driving under the influence of alcohol. It is but one factor for

consideration under the totality of the circumstances. Evans. In Mays, for example, it

was concluded that the officer’s observation of two possible marked lane violations, the

unspecified intensity of an odor of alcohol in the vehicle, and the observation of

bloodshot and glassy eyes supported a determination that the officer had probable cause

to arrest the driver for driving under the influence.        Mays, 119 Ohio St.3d 406,

2008-Ohio-4539, 894 N.E.2d 1204, at ¶ 3, 21 (“the trooper had probable cause to arrest

[the defendant] for driving while under the influence. We find no error in the trooper’s

decision”). Probable cause is a higher standard than reasonable and articulable suspicion

and “the former subsumes the latter.” Id. at ¶ 23, citing State v. Evans, 67 Ohio St.3d

405, 411, 1993-Ohio-186, 618 N.E.2d 162. The city’s burden to demonstrate reasonable

and articulable suspicion of driving while under the influence of alcohol is not a high one.

 See, e.g., State v. Rice, 1st Dist. Hamilton Nos. C-160668, C-160669, and C-160670,
2017-Ohio-9114 (there is no requirement that an officer detect the odor of alcohol on or

about the person in order to support a reasonable and articulable suspicion of driving

under the influence).

       {¶17} Although the intensity of the odor of alcohol is a factor to consider, the

failure to be descriptive is not dispositive, especially when intensity can be inferred

through context. In this case, the fact that the odor persisted with Martin’s movement

provides the context within which the officer reasonably formed his suspicion of

impairment. Martin asks us to disregard the olfactory observation solely because the

officer failed to provide a rote description of the odor’s intensity. The failure to specify

the odor’s intensity was not dispositive in Mays, and therefore, it cannot be in this case.

       {¶18} We have not been presented with a situation where a de minimis traffic

violation and a slight odor of alcohol were the only factors justifying the field sobriety

tests. The initial traffic stop and removal of Martin from his vehicle were independently

justified based on the trial court’s conclusion that marked lane violations occurred and

based on Martin’s admission to driving while under suspension. After waiving his

rights, Martin admitted to consuming one or two alcoholic beverages.             The officer

noticed that Martin’s eyes were bloodshot, and the officer detected a persistent odor of

alcohol coming from Martin himself. Finally, it was 2:00 a.m. on a Sunday morning and

the officer testified to basing his suspicion in part on Martin’s driving behavior.

       {¶19} Although the remaining Evans factors are not present or discussed, police

officers are not required to produce evidence supporting every factor in order to articulate
a reasonable suspicion that the driver was impaired. Nor are police officers required to

obtain evidence demonstrating overt intoxication, such as slurred speech or stumbling,

sloppy behaviors, in order to justify the administration of field sobriety tests.

          {¶20} As it stands, R.C. 4511.19(A) penalizes motorists for driving a vehicle while

under the influence of alcohol. The phrase “under the influence” has been defined as

          the condition in which a person finds himself after having consumed some
          intoxicating beverage in such quantity that its effect on him adversely
          affects his actions, reactions, conduct, movement or mental processes or
          impairs his reactions to an appreciable degree, thereby lessening his ability
          to operate a motor vehicle.

State v. Carozza, 2015-Ohio-1783, 33 N.E.3d 556, ¶ 22 (5th Dist.), quoting Toledo v.

Starks, 25 Ohio App.2d 162, 166, 267 N.E.2d 824 (6th Dist.1971).                    “Under the

influence” means that the accused consumed some intoxicating beverage, in such a

quantity “whether small or great” that adversely affected the accused’s ability to operate a

vehicle. Id. Not every case will involve overt signs of intoxication or violations of the

traffic laws, and we cannot create such a requirement before the field sobriety tests are

deemed constitutionally valid. Bloom, 8th Dist. Cuyahoga No. 101686, 2015-Ohio-2264,

at ¶ 9.

          {¶21} When all the applicable factors are considered in this case, the officer

articulated a reasonable suspicion justifying the administration of field sobriety tests in

consideration of Martin’s driving behavior, his bloodshot eyes, the odor of alcohol, and

Martin’s admission to consuming alcoholic beverages before driving. The trial court
erred in suppressing the field sobriety tests.1 The decision of the trial court is reversed,

and the matter is remanded for further proceedings.

        It is ordered that appellant recover from appellee costs herein taxed.                    The

court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the municipal

court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR




        1
         Martin has not asked this court to affirm the trial court’s decision on other grounds.   App.R.
3(C)(2) and App.R. 16(A)(7).
