[Cite as State v. Baker, 2018-Ohio-2285.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. John W. Wise, P.J.
        Plaintiff-Appellee                   :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
DAVID S. BAKER                               :       Case No. 17-COA-038
                                             :
        Defendant-Appellant                  :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court of
                                                     Ashland County, Case No.
                                                     17 TRC 04301




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    June 11, 2018




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ANDREW N. Bush                                       MATTHEW J. MALONE
Assistant Law Director                               10 East Main Street
1213 East Main Street                                Ashland, OH 44805
Ashland, OH 44805
Ashland County, Case No. 17-COA-038                                                           2

Wise, E.

       {¶ 1} Defendant-appellant David S. Baker appeals the October 17, 2017 decision

of the Ashland Municipal Court, Ashland County, Ohio, overruling his motion to suppress.

Plaintiff-appellee is the state of Ohio.

                              FACTS AND PROCEDURAL HISTORY

       {¶ 2} On Saturday evening, June 17, 2017, at 11:20 p.m., Ohio State Highway

Patrol Trooper Paul Green observed appellant operating his vehicle near West Fourth

and Cottage Street in the city of Ashland, Ohio. This intersection is in the vicinity of several

bars. Trooper Green noticed appellant was traveling without an illuminated rear license

plate and initiated a traffic stop on that basis.

       {¶ 3} Trooper Green approached the vehicle, which contained appellant and a

passenger. He noted a strong odor of alcoholic beverage emanating from the vehicle and

further noted that appellant's eyes were glassy, red, and bloodshot. As he spoke with

appellant, Trooper Green also noted that appellant made deliberate effort to avoid looking

at him. Appellant denied consuming alcohol, but his passenger admitted to consuming

alcohol.

       {¶ 4} Trooper Green asked appellant to step out of the car. Once out of the car,

Trooper Green was able to confirm that appellant had a strong odor of alcohol on his

breath. Appellant, however, denied consuming alcohol. Based on his observations,

Trooper Green asked appellant to preform field sobriety tests.

       {¶ 5} Trooper Green began with the horizontal gaze nystagmus and noted four of

six clues. He noted four of eight clues on the walk and turn and no clues on the one-leg

stand. Trooper Green placed appellant under arrest. Appellant refused a portable breath
Ashland County, Case No. 17-COA-038                                                            3


test at the scene, but later submitted to a DataMaster breath test and registered .128

breath alcohol content.

       {¶ 6} Appellant was cited for OVI and illumination of rear plate. Appellant filed a

motion to suppress, arguing Trooper Green did not have reasonable suspicion to conduct

field sobriety testing, that the field sobriety testing was not performed in compliance with

the NHTSA manual, and that Trooper Green lacked probable cause to arrest.

       {¶ 7} A hearing was held on the matter on July 10, 2017. Trooper Green testified

for the state. Appellant presented no evidence. After taking the matter under advisement,

the trial court denied appellant’s motion in part and granted it in part. Specifically, the trial

court found Trooper Green had reasonable suspicion to request appellant preform field

sobriety tests, but that the walk and turn test was not administered in substantial

compliance with the NHTSA manual. The trial court nonetheless found probable cause to

arrest appellant for OVI.

       {¶ 8} Appellant entered pleas of no contest. He was subsequently sentenced to

30 days of local incarceration with 27 days suspended, fines, one year community control,

and one year operator’s license suspension. The trial court granted appellant’s motion to

stay execution of sentence pending this appeal.

       {¶ 9} Appellant now brings this appeal, raising one assignment of error:

                                                   I

       {¶ 10} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS.”

       {¶ 11} Appellant argues the trial court erred in overruling his motion to suppress

because Trooper Green lacked reasonable articulable suspicion that appellant was
Ashland County, Case No. 17-COA-038                                                       4


driving under the influence, and therefore could not ask appellant to perform field sobriety

tests. We agree.

       {¶ 12} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d

165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:



              "Appellate review of a motion to suppress presents a mixed question

       of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

       797 N.E.2d 71, ¶ 8. In ruling on 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." Id.,

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

       appeal, we "must accept the trial court's findings of fact if they are supported

       by competent, credible evidence." Id., citing State v. Fanning, 1 Ohio St.3d

       19, 20, 437 N.E.2d 583 (1982). Accepting those facts as true, we must then

       "independently determine as a matter of law, without deference to the

       conclusion of the trial court, whether the facts satisfy the applicable legal

       standard." Id.



       {¶ 13} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996), "…as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal."
Ashland County, Case No. 17-COA-038                                                           5


       {¶ 14} In reviewing whether field sobriety testing was proper, we apply a “totality

of the circumstances” approach. See, e.g., State v. Locker, 5th Dist. Stark App. No.

2015CA00050, 2015-Ohio-4953, ¶ 36, citing State v. Freeman, 64 Ohio St.2d 291, 414

N.E.2d 1044 (1980).

       {¶ 15} “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.2009-CA-28, 2010-Ohio-1111, ¶ 17, citing State v. Knox, 2nd Dist. Greene No.2005-

CA-74, 2006-Ohio-3039.

       {¶ 16} An officer may not request a motorist to perform field sobriety tests unless

the request is independently justified by reasonable suspicion based upon articulable

facts that the motorist is intoxicated. State v. Evans, 127 Ohio App.3d 56, 62, 711 N.E.2d

761 (1998), citing State v. Yemma, 11th Dist. Portage App. No. 95-P-0156, 1996 WL

495076 (Aug. 9, 1996). “Reasonable suspicion is “* * * something more than an inchoate

or unparticularized suspicion or hunch, but less than the level of suspicion required for

probable cause.” State v. Shepherd, 122 Ohio App.3d 358, 364, 701 N.E.2d 778 (1997).

       {¶ 17} The Supreme Court of Ohio in State v. Batchili, 113 Ohio St.3d 403, 2007-

Ohio-2204, 865 N.E.2d 1282, paragraph two of the syllabus found: “The ‘reasonable and

articulable’ standard applied to a prolonged traffic stop encompasses the totality of the

circumstances, and a court may not evaluate in isolation each articulated reason for the

stop.” Additionally, “a court will analyze the reasonableness of the request based on the
Ashland County, Case No. 17-COA-038                                                       6


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.” Village of Kirtland Hills v.

Strogin, 6th Dist. Lake App. No.2005-L-073, 2006-Ohio-1450, ¶ 13, citing, Village of Waite

Hill v. Popovich, 6th Dist. Lake App. No.2001-L-227, 2003-Ohio-1587, ¶ 14.

       {¶ 18} “Where a non-investigatory stop is initiated and the odor of alcohol is

combined with glassy or bloodshot eyes and further indicia of intoxication, such as an

admission of having consumed alcohol, reasonable suspicion exists.” State v. Strope, 5th

Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849 ¶ 19.

       {¶ 19} Appellant cites to this court's decision in State v. Hall, 5th Dist. Stark No.

2015CA00213, 2016-Ohio-5787 in support of his argument that Trooper Green lacked

reasonable suspicion to conduct field sobriety tests. In Hall, we concluded that red,

watery, bloodshot eyes and an odor of alcohol, without additional indicia of intoxication,

did not give the officer reasonable suspicion the driver was under the influence when the

stop was for a single marked lanes violation made during a left turn, without speeding or

additional swerving. Additionally, in Hall, the officer also noticed an odor of marijuana

coming from the vehicle. Mr. Hall was accompanied by a front seat passenger who

admitted to consuming alcohol.

       {¶ 20} The State directs the court to State v. Lauer, 5th Dist. No 13CA0006, 2014-

Ohio-1165, as support for the propriety of conducting of the field sobriety tests in the

instant case. It cites Lauer for the proposition “that a moderate odor of alcohol beverage

combined with bloodshot eyes and other factors,” justified field sobriety tests. While an

excellent statement in the abstract, the question turns upon the concrete details of what

are the “other factors” in each individual case.
Ashland County, Case No. 17-COA-038                                                           7

       {¶ 21} In Lauer, the officer observed a marked lane violation and initiated a traffic

stop. The defendant pulled over to the left, partially into the median instead of to the right

or berm-side of the roadway. He did not completely leave the lane of travel requiring the

officer to stop the cruiser in the left lane of the roadway. When asked why he pulled over

to the median defendant apologized. The defendant had some difficulty locating the

vehicle registration. When asked if he had anything to drink, defendant said “not much,”

then immediately changed his answer to either “none” or “one.” Whether he said “none”

or “one” was disputed during the suppression hearing

       {¶ 22} In contrast, the stop in the current case, was for an equipment violation

without any indication of erratic driving. The critical “other factors” put forward by the State

were the time of night, that the stop occurred in an area that included a number of liquor

establishments and, appellant was attempting to hide his eyes from the trooper.

       {¶ 23} While the State does not address the Hall case specifically, its focus on the

close location of some bars and the unwillingness of appellant to look the trooper squarely

in the eye as significant “other factors” for the trooper to be permitted to remove appellant

for the field sobriety tests. The trooper indicates this in his testimony on page 12 of the

transcript:

              Prosecutor: What do you mean that he averted his eyes…?

              Trooper:       He was not looking at me with his eyes, didn’t want

                             me to smell, could be, or see his eyes.

       {¶ 24} Even if both of the two suggested reasons were true the trooper was able

to both smell alcohol and see appellant’s eyes. We do not find the suggested reticence

to be further indicia of impairment required by Strope or Hall.
Ashland County, Case No. 17-COA-038                                                         8


       {¶ 25} The State further suggests that the time of night and location of nearby bars

should be factor which would allow for the trooper to conduct field sobriety testing. These

factors are certainly relevant to the reasonableness of a decision to make the initial stop

when a driver is exhibiting signs of impairment. However, as is the case here, when the

stop is for an equipment violation with no signs of impaired driving these factors have little

bearing. The trooper has observed the appellant’s bloodshot eyes and odor of alcohol

and believes those factors. The location and time give no further clues as to whether

appellant has ingested enough alcohol to be impaired.

       {¶ 26} As noted above, reasonable suspicion is more than a hunch, but less than

the level of suspicion required for probable cause. What is more, a motorist “need not

display every possible indication of being under the influence in order for reasonable,

articulable suspicion grounds to exist for the trooper to proceed with field sobriety testing”

State v. Cook, 5th Dist. Fairfield No. 06-CA-20, 2007-Ohio-707, ¶ 19. Here, based on the

condition of appellant’s eyes and the strong odor of alcohol; first emanating from the

vehicle prior to appellant being asked to step out of the vehicle and then on his breath,

and no additional indicia of intoxication, we find the Trooper did not have reasonable

suspicion to justify the request.

       {¶ 27} The assignment of error is affirmed.
Ashland County, Case No. 17-COA-038                                         9


      {¶ 28} The judgment of the Ashland Municipal Court is reversed.



By: Wise, Earle, J.

Wise, John, P.J. and

Delaney, J. concur.




                                          _______________________________
                                          Hon. Earle E. Wise, Jr.



                                          ______________________________
                                          Hon. John W. Wise



                                          _______________________________
                                          Hon. Patricia A. Delaney




EEW
               IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :
                                             :
       Plaintiff-Appellee                    :
                                             :
-vs-                                         :         JUDGMENT ENTRY
                                             :
DAVID S. BAKER                               :
                                             :
       Defendant-Appellant                   :         CASE NO. 17-COA-038


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

of the Municipal Court of Ashland County, Ohio is reversed and remanded to the court for

further proceedings consistent with this opinion. Costs to appellee.




                                             _______________________________
                                             Hon. Earle E. Wise, Jr.



                                             ______________________________
                                             Hon. John W. Wise



                                             _______________________________
                                             Hon. Patricia A. Delaney
