[Cite as State v. Vause, 2013-Ohio-4351.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
GRETEL L. VAUSE                              :       Case No. 13-COA-010
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Ashland Municpal
                                                     Court, Case No. 13-CRB-0129AB




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    September 18, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

W. DAVID MONTAGUE                                    KAREN DESANTO-KELLOGG
Assistant Law Director                               432 Center Street
1213 East Main Street                                Ashland, OH 44805
Ashland, OH 44805
Ashland County, Case No. 13-COA-010                                                       2

Baldwin, J.

      {¶1}    Defendant-appellant Gretel L. Vause appeals the denial by the Ashland

Municipal Court of her Motion to Suppress. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

      {¶2}    On January 25, 2013, appellant was cited for disorderly conduct in

violation of R.C. 2917.11(B)(2) and possession of drug paraphernalia in violation of

Ashland City Ordinance 513.12(C)(1), both misdemeanors. Appellant pleaded not guilty

to the charges.

      {¶3}    On February 14, 2013, appellant filed a Motion to Suppress the evidence

seized from her person. Appellant, in her motion, argued that there was no probable

cause to arrest her for disorderly conduct and that, therefore, the evidence was seized

incident to an unlawful arrest.

      {¶4}    A hearing on appellant’s motion was held February 25, 2013. At the

hearing, Sergeant Jerry Bloodhart of the City of Ashland Police Division testified that

on January 25, 2013, he initiated a traffic stop of a vehicle at 10:01 p.m. after the driver

drove the wrong way on a street. Appellant was a passenger in the vehicle. Sergeant

Bloodhart arrested the driver of the vehicle for operating a motor vehicle while under the

influence of alcohol.

      {¶5}    After arresting the driver, the Sergeant noticed that appellant’s eyes were

red and watery, that she had a strong odor of alcohol about her person, and that she

was unsteady on her feet. Appellant admitted to the Sergeant that she was intoxicated

and had been drinking. Because he believed that appellant was in no condition to drive

the vehicle, Sergeant Bloodhart asked her if anyone could come and get her and the
Ashland County, Case No. 13-COA-010                                                        3


vehicle. He called the relative whose number appellant provided him with and the

relative told the Sergeant that he did not want anything to do with appellant and refused

to come and get her. Appellant did not provide the Sergeant with any other numbers.

Because it was wintery, cold and dark outside and appellant was dressed in blue jeans,

shoes and a Carhartt coat, Sergeant Bloodhart, who believed that appellant could not

care for herself due to her intoxication, did not feel that it would be safe to let appellant

sit in the vehicle that he had stopped or to let her walk the eleven miles to her home.

The Sergeant then arrested appellant and took her to jail.

      {¶6}    Before placing appellant in his cruiser, another officer on the scene

searched appellant and found a metal pipe with burnt residue on the ends in her coat

pocket along with a hypodermic needle.

      {¶7}    On cross-examination, Sergeant Bloodhart testified that appellant was not

passed out and was polite and cooperative during their entire contact. Appellant did not

appear to be confused, was not swearing and was able to produce identification when

asked to do so without any difficulty. The Sergeant testified that after the man he called

refused to come and get appellant, he did not ask appellant for any other names to call.

He also testified that he did not offer to give her ride to the Ashland Police Department

or any other location.    He further testified that he arrested appellant for disorderly

conduct because she was intoxicated and had no responsible person who could come

and get her and take care of her. The Sergeant testified that letting appellant, who was

unsteady on her feet, walk down the road would create a risk of physical harm to her.

      {¶8}    As memorialized in a Judgment Entry filed on March 12, 2013, the trial

court denied appellant’s Motion to Suppress, finding that Sergeant Bloodhart had
Ashland County, Case No. 13-COA-010                                                        4


probable cause to charge appellant with disorderly conduct.          The trial court, in its

Judgment Entry, found that appellant, while intoxicated, had engaged in affirmative acts

creating a significant risk of harm to herself. The trial court noted that appellant got into

a car with a drunk driver and traveled miles from her residence with no responsible

party available to safely take her home and that she was dressed in such a manner that

made walking home on the night in question unsafe.

      {¶9}     Thereafter, on March 19, 2013, appellant pleaded no contest to both

charges.      Appellant was sentenced to thirty (30) days in jail with fifteen (15) days

suspended, was placed on probation for a period of one (1) year and was ordered to

pay fines adding up to $350.00 In addition, her operator’s license was suspended for

six (6) months.

      {¶10}    Appellant now raises the following assignment of error on appeal:

      {¶11}    THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO

SUPPRESS EVIDENCE OBTAINED DURING A SEARCH INCIDENT TO ARREST,

WHERE THE ARRESTING OFFICER LACKED PROBABLE CAUSE AND VIOLATED

APPELLANT’S        FOURTH      AMENDMENT         RIGHT      AGAINST      UNREASONABLE

SEARCHES AND SEIZURES.


                                                   I

      {¶12}    Appellant, in her sole assignment of error, argues that the trial court erred

in denying her Motion to Suppress. We disagree.

      {¶13}    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 findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said
Ashland County, Case No. 13-COA-010                                                        5

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141

(4th Dist.1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (4th

Dist.1993). Second, an appellant may argue the trial court failed to apply the

appropriate test or correct law to the findings of fact. In that case, an appellate court can

reverse the trial court for committing an error of law. State v. Williams, 86 Ohio App.3d

37, 619 N.E.2d 1141 (4th Dist.1993). Finally, assuming the trial court's findings of fact

are not against the manifest weight of the evidence and it has properly identified the law

to be applied, an appellant may argue the trial court has incorrectly decided the ultimate

or final issue raised in the motion to suppress. When reviewing this 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 any given case.

State v. Curry, 95 Ohio App.3d 93, 641 N.E.2d 1172 (8th Dist.1994); State v. Claytor, 85

Ohio App.3d 623, 620 N.E.2d 906 (4th Dist.1993); Guysinger. 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 911 (1996), “... as a general matter determinations of reasonable suspicion and

probable cause should be reviewed de novo on appeal.”

      {¶14}   The Fourth Amendment to the United States Constitution provides for

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” The State bears the burden of

establishing a warrantless search, which is per se unreasonable, is, nevertheless,

reasonable pursuant to one or more exceptions to the Fourth Amendment's warrant

requirement. Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889 (1988), paragraph
Ashland County, Case No. 13-COA-010                                                    6


two of the syllabus. A search incident to arrest is an exception to the general rule

warrantless searches are per se unreasonable. State v. Mims, 6th Dist. Ottawa No. OT-

05-030, 2006-Ohio-862, ¶ 23. However, police may conduct a search of the arrestee's

person incident only to a lawful arrest. State v. Dillon, 10th Dist. No. 04AP-1211, 2005-

Ohio-4124, ¶ 31. Evidence obtained as a result of an illegal arrest is inadmissible at

trial. State v. Henderson, 51 Ohio St.3d 54, 56, 554 N.E.2d 104 (1990), citing Wong Sun

v. United States , 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)

      {¶15}   In the case sub judice, the determinative issue is whether or not Sergeant

Bloodhart had probable cause to arrest appellant for disorderly conduct due to

intoxication. If the officer lacked probable cause, then the evidence seized during the

search incident to the arrest must be suppressed. Probable cause to conduct a

warrantless arrest exists when police have, at the moment of arrest, knowledge of facts

and circumstances grounded in reasonably trustworthy information to warrant a belief

by a prudent person that an offense has been committed by the person to be arrested.

Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

      {¶16}   R.C. 2719.11(B)(2) provides:

      {¶17}   “(B) No person, while voluntarily intoxicated, shall do either of the

following:

      {¶18}   “(2) Engage in conduct or create a condition that presents a risk of

physical harm to the offender or another, or to the property of another.”

      {¶19}   The law focuses, not on the drunken state of the accused, but rather upon

his conduct while drunk. State v. Pennington, 5th Dist. Stark No.1998CA00137, 1998

WL 818632 (Nov. 16, 1998). The law requires some affirmative behavior on the part of
Ashland County, Case No. 13-COA-010                                                      7

the defendant and does not prohibit merely being intoxicated. See State v. Parks , 56

Ohio App.3d 8, 10-11, 564 N.E.2d 747 (1990). “Risk” is statutorily defined as “a

significant possibility as contrasted with a remote possibility, that a certain result may

occur or that certain circumstances exist.” R.C. 2901.01(A)(7). Additionally, “the duty to

arrest a person for disorderly conduct while intoxicated is necessarily discretionary.”

Knapp v. Gurish, 44 Ohio App.3d 57,58, 541 N.E.2d 121 (8th Dist. 1989). A police

officer must “assess the condition of the intoxicated person and determine whether his

condition poses a risk of harm to himself or others. This assessment requires an

exercise of professional judgment that is essential to the proper implementation of [R.C.

2917.11(B)(2) ].” Id.

      {¶20}   In addition to appellant's admitted intoxication, Sergeant Bloodheart based

his decision that appellant presented a risk of physical harm to herself or another upon

the following facts. The vehicle in which appellant was sitting at the time of the stop was

approximately 11 miles from her home. As testified to by the Sergeant, it was dark and

visibility was poor because of snow, which was falling heavily.      Sergeant Bloodheart

testified that the temperature was in the teens and that the roads were icy, slick and

covered by snow. He did not believe that the there were any sidewalks. Appellant, who

he testified was unsteady on her feet, was dressed in a pair of shoes, blue jeans and a

Carthart coat.     Sergeant Bloodheart testified that appellant leaned up against the

vehicle in order to remain upright. No responsible party was available to take appellant

home that night.

      {¶21}   Based upon the foregoing, we conclude that the facts and circumstances

of this case warranted Sergeant Bloodhart’s belief that appellant’s intoxication had
Ashland County, Case No. 13-COA-010                                                     8


created a significant risk of harm to herself. We find that the Sergeant had probable

cause to arrest appellant disorderly conduct. Since the arrest was lawful, the trial court

did not err in denying appellant's Motion to Suppress.

      {¶22}   Appellant's sole assignment of error is, therefore, overruled.

      {¶23}   Accordingly, the judgment of the Ashland Municipal Court is affirmed.



By: Baldwin, J.

and Farmer, J. concur.

and Hoffman, P.J. dissents.




                                         HON. CRAIG R. BALDWIN



                                         HON. WILLIAM B. HOFFMAN



                                         HON. SHEILA G. FARMER




CRB/dr
Ashland County, Case No. 13-COA-010                                                        9

Hoffman, P.J., dissenting
      {¶24} I respectfully dissent from the majority opinion.

         {¶25} While Appellant’s level of intoxication may be disputed, Appellant’s

argument is not presumed upon the fact she was not voluntarily intoxicated. However,

the statute requires more. While Appellant was voluntarily intoxicated, did she engage

in conduct or create a condition that presented a risk of physical harm to herself or

another, or property of another?       As noted by the majority, “risk” is defined as “a

significant possibility” a certain result may occur or that certain circumstances exits.

         {¶26} Did Appellant create the condition that presented risk to her? While she

elected to be a passenger in a vehicle operated by someone who had consumed

alcohol, we do not know the level of intoxication of the driver, let alone whether the

driver was or was not guilty of committing OMVI. It is not against the law to consume

alcohol and operate a motor vehicle in Ohio. It is only against the law when the amount

of alcohol consumed reaches a certain prohibited level or the operator’s ability to

operate the vehicle is appreciatively impaired that a violation occurs. While the officer

may have had probable cause to arrest the driver, we cannot assume his or her guilt on

the record before us. I find the suggestion one necessarily creates a situation of risk of

harm to themselves by failing to anticipate the possibility of being stranded relatively far

away from home on a cold snowy night because of the arrest of his or her driver

because the driver has consumed some amount of alcohol is not a significant

possibility.1

         {¶27} It seems unjust the determining factor in Appellant’s arrest ultimately

depended upon the availability and/or willingness of someone coming to pick her up.

1
    Appellant was dressed appropriately for her intended travel in a car.
Ashland County, Case No. 13-COA-010                                                 10


While I recognize the officer’s primary responsibility was to process the arrest of the

driver and it would be ill advised and potentially dangerous to leave Appellant on her

own, I cannot help but wonder why Appellant could not have simply been taken in the

cruiser to the police station where arrangements for her transportation home could have

been made.

      {¶28} I find the circumstances presented in this case insufficient to support the

charge.



                                              ________________________________
                                              HON. WILLIAM B. HOFFMAN
[Cite as State v. Vause, 2013-Ohio-4351.]


                   IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :
                                               :
        Plaintiff - Appellee                   :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
GRETEL L. VAUSE                                :
                                               :
        Defendant - Appellant                  :       CASE NO. 13-COA-010


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

judgment of the Ashland Municipal Court is affirmed. Costs assessed to appellant.




                                            HON. CRAIG R. BALDWIN



                                            HON. WILLIAM B. HOFFMAN



                                            HON. SHEILA G. FARMER
