[Cite as State v. Ellis, 2020-Ohio-3910.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. Patricia A. Delaney, J.
                          Plaintiff-Appellee    :       Hon. Earle E. Wise, J.
                                                :
-vs-                                            :
                                                :       Case No. 2020CA00004
ANTHONY P. ELLIS                                :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Fairfield County
                                                    Municipal Court, Case No. TRC1902700

JUDGMENT:                                           Affirmed in part; Reversed in part




DATE OF JUDGMENT ENTRY:                             July 30, 2020



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

RANDALL T/ ULLOM                                    JONATHAN T/ TYACK
Lancaster Law director                              MADISON MACKAY
By: JOSEPH SABO                                     536 S. High Street
Assistant Law Director                              Columbus, OH 43215
59 N. Main Street
London, OH 43140
Fairfield County, Case No. 2020CA00004                                                                  2


Gwin, P.J.

        {¶1}    Defendant-appellant Anthony Ellis [“Ellis”] appeals the October 9, 2019

judgment entry of the Fairfield Municipal Court overruling his motion to suppress.

                                       Facts and Procedural History

        {¶2}    On March 30, 2019 at approximately 2:00 a.m., Fairfield County Deputy

Sheriff Justin Mann was driving north on Center Street in Pickerington, Fairfield County,

Ohio. He was in uniform, driving a marked sheriff’s cruiser. Deputy Mann noticed an SUV

go left of center in front of his vehicle. In between the deputy’s vehicle and the SUV was

a silver sedan that appeared to be following the SUV.

        {¶3}    The SUV stopped in the middle of the roadway at East Street and North

Center Street and remain stopped for approximately 4-5 seconds before making a right

hand turn onto East Street. ST. at 10.1 The silver sedan continued to follow the SUV.

Deputy Mann followed the two vehicles onto East Street. The SUV tuned right onto

Columbus Street, aka State Route 256 and crossed over the center line for the second

time. ST. at 11. At the intersection of East Street and Columbus Street the SUV and the

silver sedan turned right back onto Columbus Street where Deputy Mann observed

another marked lane violation. ST. at 11. At the intersection of Columbus Street and Hill

Road North, the SUV and the silver sedan turned into the parking lot of the Circle K on

the southwest side of the intersection. ST. at 11. Both the SUV and the silver sedan

turned into the rear entrance. Deputy Mann turned into the first entrance and came nose

to nose with the SUV. ST. at 12. The silver sedan turned into a parking spot in the rear of

the building approximately 50 feet away. ST. at 13. Deputy Mann activated his overhead


        1  For clarity, the transcript of the October 8, 2019 hearing on Ellis’ motion to suppress will be
referred to as “ST.”
Fairfield County, Case No. 2020CA00004                                                    3


lights to effectuate a traffic stop of the SUV. ST. at 12. Deputy Mann contacted dispatch

and began to speak when he saw the driver side door of the SUV open and the driver,

later identified as Ellis, began to exit the SUV. ST. at 13. Deputy Mann pulled his service

weapon and ordered Ellis to get back inside the SUV. ST. at 13. Deputy Mann testified

that he did not know if Ellis was going to run or to confront him and he drew his weapon

to protect himself. ST. at 14. Ellis complied with Deputy Mann’s directives, got back inside

the SUV, closed the door and rolled down the window. ST. at 15-16. Deputy Mann called

for back-up because the SUV and the silver sedan were both in the parking lot.

       {¶4}   Deputy Mann holstered his weapon and approached the driver’s side

window of the SUV. Deputy Mann advised Ellis of the reason for the stop and asked Ellis

where he had been and where he was going. ST. at 15. Deputy Mann immediately

noticed an “obvious and strong odor of an alcoholic beverage emitting from the vehicle.”

ST. at 16. The deputy also noted, glassy, bloodshot eyes and slurred or thick tongue

speech. ST. at 16-17.

       {¶5}   Ellis told the deputy that he was coming from a friend’s house. Ellis denied

that he had been drinking when asked by Deputy Mann. ST. at 17. Deputy Mann left the

SUV and went to speak with the driver of the silver sedan.

       {¶6}   The sole occupant of the silver sedan was a female who told the deputy that

she had met Ellis at a bar and was following him home to make sure that Ellis got home

safely. ST. at 18. She told the deputy that she arrived at the bar after Ellis. ST. at 19.

She further reported witnessing Ellis consume three beers; however she agreed that Ellis

had “significantly more.” ST. at 19. Deputy Dunlap arrived on the scene and took over

the handling of the female from Deputy Mann. ST. at 19.
Fairfield County, Case No. 2020CA00004                                                     4


        {¶7}   Deputy Mann returned to the SUV and asked Ellis to step out of the vehicle

to perform the Standardized Filed Sobriety tests [“FST’s”].        ST. at 19-20.    As Ellis

attempted to exit the SUV, he had to use the driver’s door to steady himself as it appeared

he was having balancing issues. ST. at 20. As Deputy Mann began to perform the

Horizontal Gaze Nystagmus test [“HGN”] Ellis told Deputy Mann that he was not going to

take any of the FST’s. ST. at 20-21. Deputy Mann asked Ellis five to six times. Ellis

refused each time. ST. at 21. Deputy Mann then advised Ellis that he was under arrest

for OVI. ST. at 21. Ellis was handcuffed and read his Miranda rights and put in the

backseat of the cruiser. ST. at 21. The parties stipulated that Deputy Mann and assisting

Deputy Dunlap performed a pre-tow inventory search of Ellis's vehicle and located two

empty beer cans and an empty mason jar that smelled of raw marijuana. ST. at 34.

        {¶8}   Ellis was charged with OVI, in violation of R.C. 4511.19(A)(1)(a), Stopping

or Slow speed, in violation of RC. 4511.22, and Driving in Marked lanes, in violation of

R.C. 4511.33.

        {¶9}   Ellis filed a Motion to Suppress on June 7, 2019 and the matter was heard

by the trial court on October 8, 2019. The trial court determined that Ellis was not arrested

and Mann's use of force was reasonable given the circumstances that existed during the

stop.

        {¶10} On December 19, 2019, Ellis pled no contest to OVI and the trial court found

him guilty of OVI. The remaining two charges were dismissed. The trial court sentenced

Ellis to pay a fine of $375, a one-year driver's license suspension, two years of community

control, and 120 days in jail, 117 of those days suspended pending credit for three days

in a driver's intervention program.
Fairfield County, Case No. 2020CA00004                                                       5


                                        Assignments of Error

       {¶11} Ellis raises two Assignments of Error,

       {¶12} “I.   THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY WHICH

REFLECTS MR. ELLIS PLEAD GUILTY TO OVI, WHEN THE RECORD SHOULD

ACCURATELY REFLECT THAT HE PLEAD NO CONTEST AND WAS FOUND GUILTY

BY THE TRIAL COURT.

       {¶13} “II. THE TRIAL COURT ERRED WHEN IT DENIED MR. ELLIS' MOTION

TO SUPPRESS, AS MR. ELLIS WAS ARRESTED IN VIOLATION OF HIS RIGHTS

UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.”

                                                  I.

       {¶14} The state concedes that the trial court's Final Judgement Entry contains a

clerical error. Specifically, the Final Judgment Entry indicates that Ellis pleaded “Guilty”

instead of “”No Contest” during his plea colloquy.

       {¶15} On December 19, 2019, Ellis entered a plea of “No Contest” to OVI, a

violation of R.C. 4511.19(A)(1)(a). Change of Plea and Sentencing Transcript, at 4-5. The

trial court subsequently found Ellis guilty of the offense. Id. However, the Final Judgment

Entry filed by the trial court mistakenly indicated that Ellis entered a plea of “Guilty.”

       {¶16} Accordingly, Ellis’ First Assignment of Error is sustained. Therefore, this

matter is remanded to the trial court for the limited purpose of issuing a nunc pro tunc

sentencing entry to correct the erroneous final judgment entry.
Fairfield County, Case No. 2020CA00004                                                     6


                                                 II.

       {¶17} In his Second Assignment of Error, Ellis argues the trial court erred in

overruling his motion to suppress. Specifically, Ellis contends that Deputy Mann

unlawfully arrested Ellis in violation of his constitutional rights when Deputy Mann drew

his service revolver and ordered Ellis to get back into the SUV.

       2.1 Standard of Appellate Review.

       {¶18} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing

court must defer to the trial court’s factual findings if competent, credible evidence exists

to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio

App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,

675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as

true, it must independently determine as a matter of law whether the trial court met the

applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio

App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534

U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,

116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial

court’s findings of fact is subject to a de novo standard of review Ornelas, supra.
Fairfield County, Case No. 2020CA00004                                                  7


Moreover, due weight should be given “to inferences drawn from those facts by resident

judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

       2.2. Issue for Appellate Review: Did Deputy Mann have a reasonable articulable

suspicion sufficient to warrant him in stopping the SUV that Ellis was driving?

       {¶19} The Fourth Amendment to the United States Constitution guarantees “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures * * *.” The Fourth Amendment is enforced against

the States by virtue of the due process clause of the Fourteenth Amendment of the United

States Constitution.   Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081

(1961). The stop of a vehicle and the detention of its occupants by law enforcement, for

whatever purpose and however brief the detention may be, constitutes a seizure for

Fourth Amendment purposes. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59

L.Ed.2d 660 (1979), citing United States v. Martinez-Fuerte, 428 U.S. 543, 556-558, 96

S.Ct. 3074, 49 L.Ed.2d 1116 (1976).

       {¶20} The Supreme Court of Ohio has observed, “‘[a]uthorities seem to be split as

to whether a traffic stop is reasonable when supported merely by reasonable suspicion,

or whether the heightened standard of probable cause must underlie the stop.’ ” City of

Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, ¶ 13,

quoting Gaddis ex rel. Gaddis v. Redford Twp., 188 F.Supp.2d 762, 767(E.D.Mich.2002).

There are actually two types of “traffic” stops, and each has a different constitutional

standard applicable to it. In State v. Moller, the Court of Appeals observed,

              First is the typical non-investigatory traffic stop, wherein the police

       officer witnesses a violation of the traffic code, such as crossing over the
Fairfield County, Case No. 2020CA00004                                                   8


      centerline of a road, and then stops the motorist for this traffic violation.

      Second is the investigative or “Terry” stop, wherein the officer does not

      necessarily witness a specific traffic violation, but the officer does have

      sufficient reason to believe that a criminal act has taken place or is

      occurring, and the officer seeks to confirm or refute this suspicion of criminal

      activity. See Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-1880

      [20 L.Ed.2d 889]. A non-investigatory traffic stop must be supported by

      probable cause, which arises when the stopping officer witnesses the traffic

      violation. See Whren v. United States (1996), 517 U.S. 806, 810, 116 S.Ct.

      1769, 1772 [135 L.Ed.2d 89]; Pennsylvania v. Mimms (1977), 434 U.S. 106,

      109, 98 S.Ct. 330, 332 [54 L.Ed.2d 331]. By contrast, an investigatory Terry

      stop is proper so long as the stopping officer has “reasonable articulable

      suspicion” of criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. at 1879-1880.

12th Dist. Butler No. CA99-07-128, 2000 WL 1577287 (Oct. 23, 2000); Accord, State v.

Baughman, 192 Ohio App.3d 45, 2011-Ohio-162, 947 N.E.2d 1273 (12th Dist.), ¶ 14;

State v. Nwachukwa, 3rd Dist. Marion No. 9-15-03, 2015-Ohio-3282, ¶ 24; ¶ 26; State v.

Woods, 5th Dist. Licking No. 18-CA-13, 2018-Ohio-3379, 117 N.E. 3d 1017, ¶14.

      {¶21} The cause for a non-investigatory traffic stop has been succinctly stated by

the Supreme Court of Ohio: “Where a police officer stops a vehicle based upon 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[.]” Dayton v. Erickson, 76

Ohio St.3d 3, 11-21, 665 N.E.2d 1091 (1996). Probable cause is defined in terms of “facts

or circumstances ‘sufficient to warrant a prudent man in believing that the (suspect) had
Fairfield County, Case No. 2020CA00004                                                      9


committed or was committing an offense.’ ” Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct.

854, 861, 43 L.Ed.2d 54 (1975), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225,

13 L.Ed.2d 142 (1964).

       {¶22} In State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4538, 894 N.E.2d 1204,

the defendant argued that his actions in the case – twice driving across the white edge

line – were not enough to constitute a violation of the driving within marked lanes statute,

R.C. 4511.33. Id. at ¶ 15. The appellant further argued that the stop was unjustified

because there was no reason to suspect that he had failed to first ascertain that leaving

the lane could be done safely or that he had not stayed within his lane “as nearly as [was]

practicable,” within the meaning of R.C. 4511.33(A)(1). In rejecting these arguments, the

Supreme Court noted, “the question of whether appellant might have a possible defense

to a charge of violating R.C. 4511.33 is irrelevant in our analysis of whether an officer has

a reasonable and articulable suspicion to initiate a traffic stop. An officer is not required

to determine whether someone who has been observed committing a crime might have

a legal defense to the charge.” Id. at ¶ 17. The Supreme Court concluded that a law-

enforcement officer who witnesses a motorist drift over lane markings in violation of a

statute that requires a driver to drive a vehicle entirely within a single lane of traffic has

reasonable and articulable suspicion sufficient to warrant a traffic stop, even without

further evidence of erratic or unsafe driving. Id. at syllabus. In Mays, the Ohio Supreme

Court made the following observation as it pertains to Ohio law,

              Appellant’s reliance on [Dayton v.] Erickson [76 Ohio St.3d 3, 665

       N.E.2d 1091 (1996)], and in Whren v. United States (1996), 517 U.S. 806,

       116 S.Ct. 1769, 135 L.Ed.2d 89, is misplaced. Probable cause is certainly
Fairfield County, Case No. 2020CA00004                                                      10


       a complete justification for a traffic stop, but we have not held that probable

       cause is required. Probable cause is a stricter standard than reasonable

       and articulable suspicion. State v. Evans (1993), 67 Ohio St.3d 405, 411,

       618 N.E.2d 162. The former subsumes the latter. Just as a fact proven

       beyond a reasonable doubt has by necessity been proven by a

       preponderance, an officer who has probable cause necessarily has a

       reasonable and articulable suspicion, which is all the officer needs to justify

       a stop. Erickson and Whren do not hold otherwise.

119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23. (Emphasis added). The

Ohio Supreme Court concluded,

               Therefore, if an officer’s decision to stop a motorist for a criminal

       violation, including a traffic violation, is prompted by a reasonable and

       articulable suspicion considering all the circumstances, then the stop is

       constitutionally valid.

119 Ohio St.3d 406, ¶8 (emphasis added). See, State v. Marcum, 5th Dist. Delaware No.

18-CAC-11 0083, 2019-Ohio-2293.

       {¶23} In the case at bar, Ellis concedes that his actions in stopping in the roadway

and failing to drive in marked lanes provided sufficient justification for Deputy Mann to

effectuate a traffic stop. [Appellant’s brief at 4].

       2.3. Issue for Appellate Review: Whether Ellis was lawfully detained for traffic

violations.

       {¶24} In the case at bar, Deputy Mann testified that he followed the SUV and the

silver sedan into the Circle K parking lot to effectuate a traffic stop of the SUV after having
Fairfield County, Case No. 2020CA00004                                                    11


witnessed numerous traffic violations. He parked his cruiser directly facing the SUV and

activated his overhead lights. ST. at 12-13. Ellis concedes that the traffic stop was proper.

[Appellant’s brief at 4].

       {¶25} The Ohio Supreme Court has held,

               “[W]hen detaining a motorist for a traffic violation, an officer may

       delay the motorist for a time period sufficient to issue a ticket or a warning.

       State v. Keathley (1988), 55 Ohio App.3d 130, 131 [562 N.E.2d 932]. This

       measure includes the period of time sufficient to run a computer check on

       the driver’s license, registration, and vehicle plates. State v. Bolden, Preble

       App. No. CA2003–03–007, 2004–Ohio–184 [2004 WL 77617], ¶ 17, citing

       Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391 [59 L.Ed.2d

       660]. “In determining if an officer completed these tasks within a reasonable

       length of time, the court must evaluate the duration of the stop in light of the

       totality of the circumstances and consider whether the officer diligently

       conducted the investigation.” State v. Carlson (1995), 102 Ohio App.3d

       585, 598–599 [657 N.E.2d 591], citing State v. Cook (1992), 65 Ohio St.3d

       516, 521–522 [605 N.E.2d 70], and U.S. v. Sharpe (1985), 470 U.S. 675,

       105 S.Ct. 1568 [84 L.Ed.2d 605].

State v. Batchili, 113 Ohio St.3d 403, 2007–Ohio–2204, 865 N.E .2d 1282, ¶ 12.

       {¶26} In the case at bar Ellis was not free to leave even if Deputy Mann had not

drawn his service revolver and ordered Ellis to get back inside the SUV. Deputy Mann

could lawfully detain Ellis until Deputy Mann finished his investigation and issued Ellis the
Fairfield County, Case No. 2020CA00004                                                    12


traffic citations. As the Ohio Supreme Court has recognized in the context of questioning

a suspect in the front seat of a police car,

              Oles contends that his belief that he was not free to leave should be

       dispositive. The court of appeals also articulated the test this way, finding

       that a reasonable person would not have felt free to leave. But the relevant

       inquiry is whether a reasonable person in the suspect’s position would have

       understood himself or herself to be in custody. This nuance is important and

       well-reasoned. If the inquiry were whether the driver felt free to leave, then

       every traffic stop could be considered a custodial interrogation because “few

       motorists would feel free either to disobey a directive to pull over or to leave

       the scene of a traffic stop without being told they might do so,” Berkemer,

       468 U.S. at 436, 104 S.Ct. 3138, 82 L.Ed.2d 317. And a law-enforcement

       officer, in the midst of investigating a traffic stop and performing all its

       attendant procedures, would not consider a driver free to leave unless given

       permission. But “not free to leave” and “in custody” are distinct concepts.

City of Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.2d 810, ¶30. In this

case although Ellis was not “free to leave”, he was not “in custody.”

       {¶27} Factors that indicate a reasonable person would not have felt that he or she

was in “custody” are the fact that Deputy Mann did not order Ellis out of his vehicle. Ellis

was not ordered to his knees or face down on the ground, not patted down, searched or

handcuffed. Deputy Mann ordered Ellis to get back into his own car; and Ellis was

permitted to retain his car keys. See, Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d

810, ¶17-20. Deputy Mann holstered his weapon before approaching the SUV to speak
Fairfield County, Case No. 2020CA00004                                                   13


with Ellis. Further Deputy Mann left Ellis alone in the SUV while he spoke with the driver

of the silver sedan. After holstering his weapon and approaching the car, the encounter

proceeded as a routine traffic stop.

       {¶28} Deputy Mann, who was alone, encountered an SUV that was being followed

by another vehicle. Both vehicles pulled into a parking lot. The second vehicle parked a

distance away from the SUV. As Deputy Mann was reporting to dispatch, he observed

the door to the SUV open and the driver begin to exit. We are unwilling to say that under

these circumstances Deputy Mann was unwarranted in his limited use of force to protect

his own safety and assess the danger. Deputy Mann acted reasonably after determining

and assessing the danger to himself by holstering his weapon and approaching the SUV

in a non-threating manner. He conducted the remainder of the encounter just as he would

any other traffic stop. The fact that Deputy Mann drew his service revolver for officer

safety until he could ascertain the threat level that Ellis and the unknown person or person

inside the silver sedan posed to him, does not transform an otherwise valid traffic stop

based upon reasonable, articulable suspicion into an illegal arrest.

       {¶29} As the United States Supreme Court has noted,

              And we have specifically recognized the inordinate risk confronting

       an officer as he approaches a person seated in an automobile. “According

       to one study, approximately 30% of police shootings occurred when a police

       officer approached a suspect seated in an automobile. Bristow, Police

       Officer Shootings—A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963).”

       Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924, 32 L.Ed.2d

       612 (1972). We are aware that not all these assaults occur when issuing
Fairfield County, Case No. 2020CA00004                                                     14


       traffic summons, but we have before expressly declined to accept the

       argument that traffic violations necessarily involve less danger to officers

       than other types of confrontations. United States v. Robinson, 414 U.S.

       218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Indeed, it appears “that a

       significant percentage of murders of police officers occurs when the officers

       are making traffic stops.” Id., at 234, n. 5, 94 S.Ct. at 476, n. 5

Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331(1977)

(emphasis added). While we agree that an officer may not routinely approach a vehicle

that he or she has lawfully stopped for a traffic violation with his or her gun drawn, we find

that, under the totality of the circumstances in this case, Deputy Mann’s actions were

reasonably related to protecting his personal safety.

              A determination as to the reasonableness of a particular police

       procedure depends “on a balance between the public interest and the

       individual’s right to personal security free from arbitrary interference by law

       officers.” United States v. Brignoni–Ponce (1975), 422 U.S. 873, 878, 95

       S.Ct. 2574, 2579, 45 L.Ed.2d 607, 614–615. Certainly, it is reasonable that

       the officer, who has a legitimate reason to so detain that person, is

       interested in guarding against an ambush from the rear. “A court reviewing

       the officer’s actions must give due weight to his experience and training and

       view the evidence as it would be understood by those in law enforcement.”

       Andrews, supra, 57 Ohio St.3d at 88, 565 N.E.2d at 1273.

State v. Evans, 67 Ohio St.3d 405, 410, 1993-Ohio-186, 618 N.E.2d 162(1993).
Fairfield County, Case No. 2020CA00004                                                     15


       {¶30} Accordingly based upon the totality of the circumstances, although he was

not free to leave, Ellis was not “in custody” as Deputy Mann conducted his investigation

for the purpose of issuing traffic citations to Ellis. Deputy Mann’s limited and momentary

display of force for the purpose of assessing the danger to his personal safety was

reasonable under the totality of the circumstances.

       2.4. Issue for Appellate Review: Whether Deputy Mann had probable cause to

arrest Ellis for OVI?

       {¶31} If a law enforcement officer, during a valid investigative stop, ascertains

“reasonably articulable facts giving rise to a suspicion of criminal activity, the officer may

then further detain and implement a more in-depth investigation of the individual.” State

v. Robinette, 80 Ohio St.3d 234, 241, 685 N.E.2d 762(1997).

       {¶32} In Ohio, it is well settled that, 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. Wells, 2nd Dist. Montgomery No. 20798, 2005-Ohio-5008; State v.

Cooper, 2nd Dist. Clark No.2001-CA-86, 2002-Ohio-2778; State v. Robinson, 2nd Dist.

Greene No.2001-CA-118, 2002-Ohio-2933; State v. Mapes, 6th Dist. Fulton No. F-04-

031, 2005-Ohio-3359 (odor of alcohol, ‘slurred speech’ and glassy and bloodshot eyes);

Village of Kirtland Hills v. Strogin, 11th Dist. Lake No. 2005-L-073, 2006-Ohio-1450; State

v. Beeley, 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, ¶16, New London v. Gregg,

6th Dist. Huron No. H-06-030, 2007-Ohio-4611; State v. Bright, 5th Dist. Guernsey No.

2009-CA-28, 2010-Ohio-1111, ¶22.
Fairfield County, Case No. 2020CA00004                                                    16


       {¶33} In the case at bar, Deputy Mann witnessed Ellis commit numerous traffic

violations. Deputy Mann testified that when he approached the driver’s side window of

the SUV he immediately noticed an “obvious and strong odor of an alcoholic beverage

emitting from the vehicle.” ST. at 16. The deputy also noted, glassy, bloodshot eyes and

slurred or thick tongue speech. ST. at 16-17. Ellis lied to Deputy about his whereabouts.

Ellis told the deputy that he was coming from a friend’s house. Ellis lied to the deputy

about his consumption of alcohol. Ellis denied that he had been drinking when asked by

Deputy Mann. ST. at 17. Deputy Mann then spoke to the driver of the silver sedan. The

sole occupant of the silver sedan was a female who told the deputy that she had met Ellis

at a bar and was following him home to make sure that Ellis got home safely. ST. at 18.

She told the deputy that she arrived at the bar after Ellis. ST. at 19. She further reported

witnessing Ellis consume three beers; however she agreed that Ellis had “significantly

more.” ST. at 19. Deputy Mann retuned to the SUV and asked Ellis to step out of the

vehicle to perform the Standardized Filed Sobriety tests [“FST’s”]. ST. at 19-20. As Ellis

attempted to exit the SUV, he had to use the driver’s door to steady himself as it appeared

he was having balancing issues. ST. at 20. As Deputy Mann began to perform the

Horizontal Gaze Nystagmus test [“HGN”] Ellis told Deputy Mann that he was not going to

take any of the FST’s. ST. at 20-21. Deputy Mann asked Ellis five to six times. Ellis

refused each time. ST. at 21.

       {¶34} On these facts Deputy Mann had probable cause to believe that Ellis was

driving while under the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1))(a).

Because Deputy Mann had probable cause to believe that Ellis was violating R.C.

4511.19(A)(1)(a), Ellis was not unreasonably or unlawfully seized or arrested.
Fairfield County, Case No. 2020CA00004                                                17


       {¶35} Ellis’ Second Assignment of Error is overruled.

       {¶36} The judgment of the Fairfield County, Ohio Municipal Court is affirmed, in

part and reversed, in part and this matter is remanded to the trial court for the limited

purpose of issuing a nunc pro tunc sentencing entry to correct the erroneous final

judgment entry to reflect that Ellis pled “No Contest.”

By Gwin, P.J.,

Delaney, J., and

Wise, Earle, J., concur
