[Cite as Cleveland v. Jones, 2019-Ohio-1525.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

CITY OF CLEVELAND,                                :

                Plaintiff-Appellee,               :
                                                             No. 107257
                v.                                :

DONTE E. JONES,                                  :

                Defendant-Appellant.              :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: April 25, 2019


                     Criminal Appeal from the Cleveland Municipal Court
                                Case No. 2016-TRC-000234


                                            Appearances:

                Mark A. Stanton, Public Defender, Paul Kuzmins and
                David Martin King, Assistant Public Defenders, for
                appellant.

                Barbara A. Langhenry, Law Director, and Michael S. Kan,
                Assistant City Prosecutor, for appellee.


MICHELLE J. SHEEHAN, J.:

                   Donte Jones appeals from a judgment of the Cleveland Municipal

Court that convicted him of OVI. He claims the trial court erred in denying his

motion to suppress. For the following reasons, we affirm the trial court’s judgment.
               On January 1, 2016, around 4:30 a.m., Trooper Timothy Kay stopped

Jones’s vehicle after observing him driving erratically — Jones’s vehicle approached

the trooper’s vehicle from behind at a high rate of speed, and Trooper Kay testified

that a near-collision was avoided at the last minute. Jones’s speech was slow and

slurred and his eyes glassy and bloodshot, and the trooper also detected an odor of

alcohol emitting from inside the vehicle. Trooper Kay asked Jones to step out of his

vehicle and then conducted field sobriety tests on Jones. Jones performed poorly on

the tests, and Trooper Kay placed him under arrest for OVI.

               Jones received a citation for driving under the influence of alcohol

(“OVI”) in violation of R.C. 4511.19(A)(1)(a), and another citation for refusing to take

a breath test in violation of R.C. 4511.19(A)(2)(b). In addition, Jones was cited for

driving under suspension in violation of R.C. 4510.11 and for following another

vehicle too closely in violation of R.C. 4511.34 (“Space between moving vehicles”).

Marijuana was found in his vehicle during the subsequent administrative inventory

of the vehicle, and Jones was also charged with possession of marijuana.

               Jones filed a motion to suppress. The court conducted a hearing and

denied the motion to suppress. On the day of trial, Jones entered a no contest plea

to OVI and the prosecutor dismissed the remaining counts.

Claims on Appeal and Standard of Review

               On appeal, Jones raises three assignments of error:

      I.     The trial court erred in denying defendant’s motion to suppress
             because the arresting officer lacked probable cause to stop
             defendant.
      II.    The trial court erred in denying Mr. Jones’[s] motion to suppress
             because the arresting officer did not have reasonable, articulable
             suspicion that Mr. Jones was intoxicated sufficient to subject
             him to sobriety tests.
      III.   The trial court erred in denying Mr. Jones’[s] motion to suppress
             because the arresting officer did not have sufficient evidence that
             Mr. Jones had been operating a vehicle while intoxicated, and
             therefore did not have probable cause for the warrantless arrest.

               The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures lacking probable cause. The

prohibition applies to the stopping of motor vehicles and the seizing of its occupants.

Cleveland Hts. v. Brisbane, 2016-Ohio-4564, 70 N.E.3d 52, ¶ 14 (8th Dist.), citing

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), paragraph

two of the syllabus.

               On appeal, Jones argues the trial court should have granted his

motion to suppress because the trooper lacked probable cause to stop his vehicle,

did not have reasonable suspicion to subject him to the field sobriety tests, and

lacked probable cause to arrest him without a warrant.

               An appellate review of a motion to suppress presents a mixed

question of law and fact; we accept the trial court’s findings of fact if they are

supported by competent, credible evidence but must independently determine

whether the facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “[W]hen there is substantial

evidence to support the factual findings of the trial court, the decision on the motion

to suppress will not be disturbed on appeal absent an error of law.” State v. Bates,
8th Dist. Cuyahoga No. 92323, 2009-Ohio-5819, ¶ 36, citing State v. DePew, 38

Ohio St.3d 275, 528 N.E.2d 542 (1988).

The Trooper’s Testimony at the Suppression Hearing

               Trooper Kay, a seven-year veteran of the Ohio State Highway Patrol,

testified that on January 1, 2016, around 4:30 a.m., as he was ending his shift and

driving back to his patrol post, he spotted in his rearview mirror a vehicle travelling

at a high rate of speed toward him. At the time, Trooper Kay was travelling

westbound in the center lane on Interstate 90 West, close to the Interstate 77 South

interchange. At the last second, the other vehicle veered to the right. Once the

vehicle changed to the right lane, it slowed down and passed the trooper’s vehicle on

the right. The trooper followed the vehicle as it merged onto Interstate 77 and then

proceeded to exit off the Woodland Avenue exit. The trooper initiated a traffic stop

at this point. The driver — later identified as Jones — had a “dazed” look. He

searched his pockets but was unable to provide his driver’s license. His speech was

“slow and slurred.” There was a moderate odor of alcohol emitting from inside the

vehicle. Based on these indicators of impairment, including his demeanor, the

trooper asked Jones to step outside the vehicle so that he could ask him to perform

field sobriety tests to determine if he was driving under the influence of alcohol.

When Jones stepped outside the vehicle, the trooper detected the odor of alcohol

coming from his person. The trooper then asked Jones to perform the field sobriety

tests.
               Our review of the hearing transcript reflects that the trooper’s

testimony was limited to the circumstances surrounding the traffic stop. He was not

asked to provide testimony about the field sobriety tests or the subsequent arrest.

In the state’s brief opposing Jones’s motion to suppress, the state noted he

performed poorly on the field sobriety tests: six out of six clues for intoxication on

the “HGN” test were observed, and two clues for intoxication on the “VGN” test were

observed.

Probable Cause for the Traffic Stop

               Under the first assignment of error, Jones claims the trial court erred

in denying his motion to suppress because the arresting officer lacked probable

cause to stop his vehicle

               In Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), the

Supreme Court of Ohio held that “a traffic stop based upon probable cause is not

unreasonable, and that an officer who makes a traffic stop based on probable cause

acts in an objectively reasonable manner.” Id. at 11. Furthermore, pursuant to

Erickson, a police officer may stop a motorist upon his observation that the vehicle

violated a traffic law. In addition, the court in Erickson held that

      [w]here a police officer stops a vehicle based on probable cause that a
      traffic violation has occurred or was occurring, the stop is not
      unreasonable under the Fourth Amendment to the United States
      Constitution even if the officer had some ulterior motive for making the
      stop, such as a suspicion that the violator was engaging in more
      nefarious criminal activity.
Erickson at syllabus. In other words, “[a] police officer may effect a traffic stop of

any motorist for any traffic infraction, even if the officer’s true motive is to detect

more extensive criminal conduct.” State v. Bennett, 8th Dist. Cuyahoga No. 86962,

2006-Ohio-4274. Moreover, a traffic stop is lawful even if the traffic violations are

minor, or “de minimis.” See, e.g., Strongsville v. Spoonamore, 8th Dist. Cuyahoga

No. 86948, 2006-Ohio-4884; State v. Parker, 12th Dist. Warren No. CA2006-07-

085, 2007-Ohio-3006.

               Subsequent to Erickson, the Supreme Court of Ohio further explained

that, to justify a traffic stop, the officer only need to have a reasonable and articulable

suspicion, which is a lesser standard than probable cause. State v. Mays, 119 Ohio

St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23.

               Finally, the question of whether a traffic stop violates the Fourth

Amendment requires “an objective assessment of a police officer’s actions in light of

the facts and circumstances.” Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-

Ohio-3563, 850 N.E.2d 698, ¶ 14. The probable cause inquiry is fact-dependent and

turns on what the officer knew at the time the officer made the stop. Id.

               Here, Trooper Kay testified he saw in his rearview mirror Jones’s

vehicle approach his vehicle at a high speed and a near collision was avoided at the

last minute. A failure to maintain a safe space between vehicles is a traffic offense

in violation of R.C. 4511.34 (“Space between moving vehicles”). That statute states:

“The operator of a motor vehicle * * * shall not follow another vehicle * * * more

closely than is reasonable and prudent, having due regard for the speed of such
vehicle * * * and the traffic upon and the condition of the highway.” Regarding

R.C. 4511.34, courts have held that “[a]n officer’s direct observation that a vehicle is

following another vehicle too closely provides probable cause to initiate a lawful

traffic stop.” State v. Kelly, 188 Ohio App.3d 842, 2010-Ohio-3560, 937 N.E.2d 149,

¶ 15 (12th Dist.).

               Even if Jones’s driving was not a clear violation of R.C. 4511.34 rising

to the level of probable cause, it has been held that, depending on the circumstances,

erratic driving that does not amount to a traffic violation may nonetheless support

an officer’s reasonable suspicion to stop a driver. State v. Bahen, 2016-Ohio-7012,

76 N.E.3d 438, ¶ 23 (10th Dist.).

               Jones’s vehicle was spotted by Trooper Kay at around 4:30 a.m. on

New Year’s Day driving toward his marked patrol vehicle at a high rate of speed and

it narrowly avoided a collision. And, after passing the trooper’s vehicle on the right,

the vehicle proceeded to exit the highway. Even if Jones’s driving did not rise to the

level of probable cause for the trooper to initiate a stop for the commission of a traffic

offense in violation of R.C. 4511.34, the totality of the circumstances (driving at 4:30

a.m., approaching a marked patrol vehicle at a high rate of speed, avoiding a collision

at the last minute, and passing the patrol vehicle on the right and then quickly

proceeding to exit the highway) raised a reasonable and articulable suspicion for

Trooper Kay to effect a traffic stop to investigate the cause of his erratic driving.

               Jones’s argument on appeal rests on his allegation that the dash cam

video did not reflect Trooper Kay’s vehicle veering to the left when Jones’s vehicle
approached him from behind at a fast speed, as Trooper Kay testified on direct

examination. Jones argues that the court should rely on the dash cam video and not

the trooper’s testimony.      Specifically, Jones argues the trial court’s denial of

defendant’s motion to suppress is not supported by competent, credible evidence

because the dash cam video arguably conflicts with the trooper’s testimony leading

to the traffic stop. However, the parties admit that the dash cam video does not

reflect Jones approaching the trooper from behind. In fact, it is unclear from the

trooper’s testimony when the dash cam video began — before or after — the moment

the near collision occurred. Therefore, the trial court’s denial of the motion to

suppress based upon the trooper’s testimony is supported by competent, credible

evidence.1

               In addition, any potential inconsistency between the video evidence

and the trooper’s testimony goes to the credibility of witnesses. “When the trial

court rules on a motion to suppress, the credibility of the witness is a matter for the

judge acting as the trier of fact.” State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583

(1982). “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.” Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, at ¶ 8. The trial court here reviewed the dash cam video and



       1The transcript also reflects that when the trial court announced the guilty verdict,
it remarked that what Trooper Kay testified — that Jones came up behind him and Jones’s
vehicle was very close to him — would not be depicted on the video. (Tr. 38.)
found Trooper Kay’s testimony that a near collision was avoided at the last minute

to be credible. Deferring to the trial court for its factual findings in a motion to

suppress, we reject Jones’s claim under the first assignment of error.

Reasonable Suspicion for Sobriety Tests

               Under the second assignment of error, Jones argues the arresting

officer did not have a reasonable, articulable suspicion of his intoxication sufficient

to subject him to field sobriety tests.

               A police officer may request a motorist to perform field sobriety tests

after the officer has lawfully stopped the vehicle, when the request is “separately

justified by a reasonable suspicion based upon articulable facts that the motorist is

intoxicated.” 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).

      An officer conducting a routine traffic stop may * * * expand the stop’s
      scope in order to investigate whether the individual stopped is under
      the influence of alcohol and may continue to detain the individual to
      confirm or dispel his suspicions if the officer observes additional facts
      during the routine stop which reasonably lead him to suspect that the
      individual may be under the influence.

State v. Marcinko, 4th Dist. Washington No. 06CA51, 2007-Ohio-1166, ¶ 28. This

expanded stop may include field sobriety tests. Athens v. Burkhart, 2016-Ohio-

7534, 64 N.E.3d 1004, ¶ 12 (4th Dist.).

              Moreover, the court evaluates the reasonableness of the request for

field sobriety tests 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.” Dedejczyk at ¶ 29, citing State v. Dye, 11th Dist. Portage No. 2001-

P-0140, 2002-Ohio-7158.

               In Evans, supra, the Eleventh District enumerated a nonexhaustive

list of factors that courts may consider in evaluating whether an officer had

reasonable suspicion to administer field sobriety tests under the totality of the

circumstances:

      (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. “All of these factors, together with the officer’s previous

experience in dealing with drunken drivers, may be taken into account by a

reviewing court in determining whether the officer acted reasonably. No single

factor is determinative.” Id.

              Here, after Trooper Kay stopped Jones’s vehicle for his erratic

driving, he observed Jones’s eyes to be glassy, his speech slurred, and Jones looked

“dazed.” The trooper also smelled an odor of alcohol on Jones’s person. Given these

observations made after officer has lawfully stopped Jones’s vehicle, Trooper Kay’s

request for Jones to perform the field sobriety tests was separately justified by a

reasonable suspicion based upon articulable facts that Jones was intoxicated.

Dedejczyk at ¶ 29. The second assignment of error is without merit.

Probable Cause to Arrest

              Under the third assignment of error, Jones argues the trooper did not

have probable cause to arrest him.

              An arrest without a warrant violates the Fourth Amendment unless

the arresting officer has probable cause to make the arrest. The test for probable

cause to justify an arrest is “whether at that moment the facts and circumstances

within [the officer’s] knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in believing that the [arrestee]

had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85
S.Ct. 223, 13 L.Ed.2d 142 (1964). Stated differently, in determining whether a police

officer had probable cause to arrest a motorist for OVI without a warrant, the court

must determine “whether, at the moment of arrest, the police had information

sufficient to cause a prudent person to believe that the suspect was driving under

the influence.” Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, at ¶ 57,

citing Beck at 91. “While the odor of alcohol, glassy eyes, slurred speech, and other

indicia of alcohol use by a driver are, in and of themselves, insufficient to constitute

probable cause to arrest, they are factors to be considered in determining the

existence of probable cause.” Id., citing Kirtland Hills v. Deir, 11th Dist. Lake No.

2004-L-005, 2005-Ohio-1563, ¶ 16.

               Here, in addition to driving at early morning and almost colliding

with a marked patrol vehicle, Trooper Kay’s observations of indicia of alcohol use by

Jones included his glassy eyes, slurred speech, and an odor of alcohol inside the

vehicle and in his person. Jones also performed poorly in the field sobriety tests.

These circumstances provided sufficient information for a prudent person to believe

Jones was driving under the influence. Dedejczyk at ¶ 57. Trooper Kay had probable

cause to arrest Jones for OVI. The third assignment of error is without merit.

               Judgment affirmed.

      It is ordered that appellee recover of appellant 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. The defendant’s conviction
having been affirmed, any bail pending appeal is terminated. Case remanded to

the trial court for execution of sentence.

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

27 of the Rules of Appellate Procedure.



_____________________________
MICHELLE J. SHEEHAN, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
RAYMOND C. HEADEN, J., CONCUR
