[Cite as Cleveland v. Melton, 2016-Ohio-5139.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103809




                                CITY OF CLEVELAND
                                                       PLAINTIFF-APPELLANT

                                                 vs.


                                   VERNOL MELTON
                                                       DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                      Criminal Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2015 TRC 28153

        BEFORE: S. Gallagher, J., Kilbane, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                      July 28, 2016
ATTORNEYS FOR APPELLANT

Barbara Langhenry
City of Cleveland
Director of Law
BY: Karyn J. Lynn
Assistant City Prosecutor
1200 Ontario Street - 8th Floor
Cleveland, Ohio 44113



ATTORNEYS FOR APPELLEE

Robert L. Tobik
Chief Public Defender
BY: John T. Martin
          Gusty A. Rini
Assistant Public Defenders
310 Lakeside Avenue - Suite 200
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1.         The city of Cleveland (“the city”), appeals from the

Cleveland Municipal Court’s order granting Vernol Melton’s motion to suppress the

evidence obtained following a traffic stop.     We affirm.

       {¶2} In July 2015, an Ohio State Highway Patrol officer stopped Melton for

speeding. Melton was cited for operating a vehicle while intoxicated, with a .108 blood

alcohol concentration; reckless operation; and having fictitious plates.      Melton filed a

motion to suppress, in part arguing that there was no reasonable suspicion to administer

field sobriety tests.

       {¶3} The trial court held a hearing.      The officer testified to the following facts.

Melton was driving a vehicle owned by his passenger’s son. After pulling Melton over

for speeding, the officer began to ask Melton questions.       The passenger responded; the

officer had approached the vehicle from the passenger side.        Melton did not make eye

contact with the officer. Melton asked for permission to step out of the vehicle and

exited his vehicle.     The parties dispute whether the officer ordered Melton to exit the car

or whether Melton asked to exit so he could reach his driver’s license.      Regardless, after

Melton exited the car, the officer maintained that he smelled alcohol and further clarified

that the odor was from Melton’s person and not from his breath. At that point, the

officer decided to administer field sobriety tests, which Melton failed.       After the tests
were administered, Melton admitted to consuming a single beer.      The trial court granted

the motion to suppress based on those facts.

       {¶4} The city appealed, claiming that “[t]he trial court erred in finding that the

officer’s decision to allow [Melton] to step out of the car was dispositive of the

admissibility of the remaining evidence.” Within this sole assignment of error, the city

argues that the trial court erred in suppressing the evidence from the field sobriety tests

because Melton was lawfully stopped, and therefore, the officer had probable cause to

remove Melton from the car and all evidence subsequently obtained was admissible.       We

agree that the officer may have been authorized to remove Melton from the vehicle, but

our agreement does not mean the trial court erred.   Whether the officer was authorized to

remove Melton from the vehicle after a lawful stop is irrelevant to the determination of

whether the officer had a reasonable, articulable suspicion of intoxication justifying the

administration of the field sobriety tests.

       {¶5}   The record reflects that the trial court “assumed for the sake of discussion”

that the officer had the right to remove Melton from the car and requested an argument

justifying the officer’s decision to administer field sobriety tests. Tr. 60:3-9. This is

the correct analysis under the relevant law in Ohio.     “[A] police officer must have a

reasonable suspicion based upon articulable facts that the suspect is intoxicated before the

officer may administer field sobriety tests.”     Chagrin Falls v. Calabrese, 8th Dist.

Cuyahoga No. 101197, 2014-Ohio-5340, ¶ 13, citing Cleveland v. Harding, 8th Dist.

Cuyahoga No. 98916, 2013-Ohio-2691, ¶ 6.
      {¶6} The city has not presented any arguments or citations to the relevant law on

the only dispositive issue.    App.R. 16(A)(7).     Our review must be limited to the

arguments as presented.    Whether the officer had probable cause to stop Melton for

speeding in the first place is not relevant to determining whether the officer had a

reasonable, articulable suspicion that Melton was intoxicated for the purpose of

administering the field sobriety tests after the lawful stop. We must affirm.

      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 Cleveland

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

MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
