[Cite as State v. Tipple, 2017-Ohio-2774.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise J.
                                                  Hon. Earle E. Wise, J.
-vs-
                                                  Case No. 16 CA 33
CAMERON TIPPLE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. TRC 1601012A


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         May 11, 2017



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

TAMAS D. TABOR                                 AARON CONRAD
ASSISTANT CITY PROSECUTOR                      CONRAD WOOD LAW
136 West Main Street                           120 East Main Street, Suite 200
Lancaster, Ohio 43130                          Lancaster, Ohio 43130
Fairfield County, Case No. 16 CA 33                                                         2

Wise, John, J.

       {¶1}   Appellant Cameron Tipple appeals his conviction and sentence entered in

the Fairfield County Municipal Court on one count of OVI, in violation of R.C.

§4511.19(A)(1)(a), following a plea of no contest.

       {¶2}   Appellee is State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   On January 29, 2016, Appellant Cameron Tipple was stopped by a trooper

for the state highway patrol in Fairfield County, Ohio, for making two turns without using

a turn signal, first when turning from Columbus Ave. onto Sixth Street, and again when

turning north from Sixth Street onto Memorial Drive. Appellant also committed a lane

violation by failing to turn into the nearest lane of travel, instead pulling across a lane of

traffic into the left-most lane on Memorial Drive.

       {¶4}   Upon making contact with Appellant, the trooper observed an odor of

alcohol coming from the vehicle and observed Appellant's eyes to be bloodshot and

glassy. Appellant admitted to consuming alcohol, earlier in the evening.

       {¶5}   The trooper conducted field sobriety tests on Appellant to determine

whether Appellant was impaired by the alcohol he had consumed. The trooper did not

conduct the HGN test in substantial compliance with the NHTSA manual and the results

of the HGN test were later suppressed by stipulation of the parties. The trooper observed

one clue during the Walk and Turn test, when Appellant stepped off the line twice while

walking. The trooper observed one clue during the One Leg Stand test when Appellant

swayed while balancing. Following the completion of the field sobriety tests, Appellant

submitted to a portable breath test (PBT) with a result of 0.121.
Fairfield County, Case No. 16 CA 33                                                             3


       {¶6}    Subsequent to Appellant's completion of the field sobriety tests and PBT,

Appellant was arrested for operating a motor vehicle while impaired in violation of R.C.

§4511.19(A)(1)(a) and R.C. §4511.19(A)(1)(D), and was cited with a violation of R.C.

§4511.39.

       {¶7}    On February 3, 2016, Appellant appeared with counsel and plead not guilty

to all of the charges.

       {¶8}    On February 16, 2016, Appellant filed a motion to suppress evidence,

arguing that there was not probable cause to support Appellant's arrest.

       {¶9}    On July 20, 2016, the parties jointly filed factual stipulations in lieu of holding

an oral hearing regarding Appellant's motion to suppress.

       {¶10} On August 16, 2016, the trial court denied Appellant's motion to suppress

after reviewing the dashboard camera video of the stop and considering the parties'

factual stipulations and supplemental briefs.

       {¶11} On August 18, 2016, Appellant plead no contest to one count of R.C.

§4511.19(A)(1)(a) and the State dismissed the balance of the charges against Appellant.

Appellant was found guilty of the violation of R.C. §4511.19(A)(1)(a) and was sentenced

by the trial court.

       {¶12} Appellant now appeals to this Court, assigning the following error for review:

                                     ASSIGNMENT OF ERROR

       {¶13} “I. THE TRIAL COURT ERRED IN FINDING THERE WAS PROBABLE

CAUSE TO ARREST DEFENDANT FOR A VIOLATION OF R.C. 4511.19(A)(1)(a).
Fairfield County, Case No. 16 CA 33                                                        4


                                             I.

       {¶14} In his sole Assignment of Error, Appellant argues the trial court erroneously

denied his motion to suppress. We disagree.

       {¶15} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibits the government from conducting unreasonable

searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565

N.E.2d 1271.

       {¶16} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d

1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v.

Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. However, as the United States

Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134

L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion and probable

cause should be reviewed de novo on appeal.”

       {¶17} In the case sub judice, Appellant argues that the trial court erred in

considering Appellant’s performance on the field sobriety test or the results of the portable
Fairfield County, Case No. 16 CA 33                                                      5


breath test. Appellant contends that there was not probable cause to arrest him.

       {¶18} In reviewing this issue, we apply a “totality of the circumstances” approach.

See, e.g., City of Fairfield v. Lucking, Butler App. No. CA2002–12–303, 2004–Ohio–90,

¶ 8, citing State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044.

       {¶19} While field sobriety tests must be administered in substantial compliance

with standardized procedures, probable cause to arrest does not necessarily have to be

based, in whole or in part, upon a suspect's poor performance on one or more of these

tests. The totality of the facts and circumstances can support a finding of probable cause

to arrest even where no field sobriety tests were administered. State v. Homan, 89 Ohio

St.3d 421, 732 N.E.2d 952 (2000), superseded by statute on other grounds as stated in

State v. Boczar, 113 Ohio St.3d 148, 863 N.E.2d 155, 2007–Ohio–1251. In Homan, the

facts which supported a finding of probable cause were: red and glassy eyes, breath

which smelled of alcohol, erratic driving and an admission that the suspect had consumed

alcohol.

       {¶20} Probable cause to arrest may exist, even without field sobriety tests results,

if supported by such factors as: evidence that the defendant caused an automobile

accident; a strong odor of alcohol emanating from the defendant; an admission by the

defendant that he or she was recently drinking alcohol; and other indicia of intoxication,

such as red eyes, slurred speech, and difficulty walking. Oregon v. Szakovits, 32 Ohio

St.2d 271, 291 N.E.2d 742 (1972); Fairfield v. Regner, 23 Ohio App.3d 79, 84, 491 N.E.2d

333 (12th Dist.1985); State v. Bernard, 20 Ohio App.3d 375, 376, 485 N.E.2d 783 (9th

Dist.1985); Westlake v. Vilfroy, 11 Ohio App.3d 26, 27, 462 N.E.2d 1241 (8th Dist.1983);

State v. Judy, 5th Dist. No. 2007–CAC–120069, 2008–Ohio–4520, ¶ 27.
Fairfield County, Case No. 16 CA 33                                                         6


       {¶21} With regard to Appellant’s performance where he demonstrated only one

clue of impairment in each of the two properly administered field sobriety tests, we note

that “satisfactory performance on some [sobriety tests] does not operate to negate the

existence of probable cause,” but, rather, “is merely one factor to consider in determining

whether probable cause exists based upon the totality of the circumstances.” State v.

Ousley, 4th Dist. Ross No. 99CA2476, 1999 WL 769961 (Se3pt. 20, 1999). .

       {¶22} We further do not find error in the trial court's consideration of the results of

the portable breath test for purposes of determining whether probable cause existed to

arrest in this case.   This Court has previously found that such test results can be

considered for purposes of establishing probable cause. See State v. Lominack, 5th Dist.

Stark No. 2012-CA-00213, 2013-Ohio-2678, and State v. Blackburn, 5th Dist. Fairfield

No. 15-CA-51, 2016-Ohio-2674.

       {¶23} In the instant case, without consideration of the field sobriety tests, the

probable cause to arrest Appellant for OVI was supported by the trooper's observation of

Appellant's driving, Appellant's bloodshot and glassy eyes, odor of alcohol, admission that

he had been drinking and the PBT result.

       {¶24} Accordingly, we find that the totality of the evidence gave rise to probable

cause to arrest for OVI. Homan at 427, 732 N.E.2d 952. As such, we find it was not error

for the trial court to determine there was probable cause to support Appellant's arrest for

OVI.
Fairfield County, Case No. 16 CA 33                                                   7


       {¶25} Appellant’s sole Assignment of Error is overruled.

       {¶26} For the foregoing reasons, the judgment of the Municipal Court of Fairfield

County, Ohio, is affirmed.


By: Wise, John, J.

Delaney, P. J., and

Wise, Earle J., concur.




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