[Cite as State v. Watkins , 2021-Ohio-1443.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio/City of Bowling Green Court of Appeals No. W D-20-054 Appellee Trial Court No. 20TRC01221

v. Charaya S. Watkins DECISION AND JUDGMENT Appellant Decided: April 23, 2021

* * * * * Hunter Brown, City of Bowling Green Prosecutor, for appellee. Michael B. Kelley, for appellant.

* * * * * MAYLE, J. {¶ 1} Defendant-appellant, Charaya S. Watkins, appeals the July 27, 2 020 judgment of the Bowling Green Municipal Court, convicting her o f operating a vehicle while under the influence of alcohol or drugs. For the followi ng reasons, we reverse the trial court judgment.2. I. Background {¶ 2} On February 23, 2020, Charaya Watkins drove to the State Highwa y Patrol Post in Bowling Green, Ohio to pick up, M.S., a friend who had been arrested for operating a vehicle while under the influence of alcohol (“OVI” ). Shortly after arriving, Watkins herself was arrested for OVI, a violation of R.C. 4511. 19(A)(1)(a) and (d). {¶ 3} On June 11, 2020, Watkins filed a motion to suppress the result s of field sobriety and breath-alcohol-concentration (“BAC”) tests leading to her arrest, claiming that the officer lacked the reasonable, articulable suspicion n ecessary to warrant detaining her and administering the tests. The trial court held a suppre ssion hearing on June 22, 2020. State Highway Patrol Trooper Christopher Kiefer and Watk ins’s boyfriend, C.M.,

testified. {¶ 4} Trooper Kiefer testified that on the evening of February 22, 20 20, while working the 10:00 p.m. to 6:00 a.m. shift, he pulled over a veh icle and ultimately arrested

M.S. for OVI. Watkins arrived at the scene of that arrest in a separate vehicle and asked what was going on. Trooper Kiefer said that M.S. was being arr ested and told Watkins that she could pick him up at the patrol post. Watkins remaine d approximately 20 to 30 yards away during this interaction. {¶ 5} One to two hours later, Watkins walked into the patrol post to pick up M.S. Trooper Kiefer made eye contact with her and noticed that her e yes were bloodshot and glassy. He detected the odor of alcohol emanating from her bre ath. He asked if she had been drinking and she said that she consumed one alcoholic beve rage at 6:30 p.m.3. {¶ 6} Trooper Kiefer asked Watkins to take a portable breath test (“P BT”). She submitted to the test, and it detected a blood alcohol content (“BAC”) of 0.117. He then took her out to where his patrol car was parked and directed he r to stand in front of the vehicle, in view of the dashboard camera. He asked her to perf orm field sobriety tests, including the horizontal gaze nystagmus (“HGN”) test, the walk- and-turn, and the oneleg stand, and he asked Watkins to recite C through X of the al phabet without singing it. {¶ 7} Watkins exhibited six out of six clues on the HGN, four on the walk-andturn, and two on the one-leg stand. With respect to the alphab et test, Watkins began by saying “C, D,” then started over, successfully reciting C throu gh X. Kiefer read Watkins the BMV Form 2255, then asked her to submit to a breath test. The breath test revealed a

BAC of 0.114. {¶ 8} On cross-examination, Trooper Kiefer agreed that there can be o ther causes for bloodshot, glassy eyes besides alcohol consumption, such as crying and eye fatigue.

He could not recall whether the odor of alcohol he observed was slight or moderate or what type of alcohol it was. He did not recall Watkins stumbli ng or slurring her speech. {¶ 9} Trooper Kiefer confirmed that it is not protocol to ask a perso n to take field sobriety or breath tests as a matter of course when picking up someone who has been arrested for OVI. However, because Watkins was going to be res ponsible for transporting M.S., and because he observed indicators of possib le impairment, he followed up and asked Watkins to take the PBT.4. {¶ 10} C.M. testified that his birthday was on February 23, and he and a group of people were “pre-gaming” on February 22, before his birthday pa rty. His cousin, M.S., called to tell him he had been pulled over. C.M. drove to the location of the traffic stop around 12:10 a.m. on February 23. Trooper Kiefer instructed hi m to get back in his car. He did, and then left the scene. {¶ 11} M.S. called C.M. around 2:30 or 3:00 a.m. and said that if a li censed driver did not come to pick him up immediately, he would be taken to j ail. Watkins, C.M., and two other women drove to the post to get M.S. C.M. had been dr inking, but Watkins had not because she was the designated driver. She went in to get M.S. Thirty minutes passed without her coming out, so C.M. went in to check on her. Trooper Kiefer told him

that she would not be able to leave because she “blew twice ove r the legal limit.” {¶ 12} C.M. testified that the other two women who went with him to th e station were subjected to similar questioning and testing as Watkins. One of the women had a BAC of zero and was permitted to drive everyone home. C.M. tes tified that he did not see Watkins consume any alcohol that night. He also testified that she had cried that evening, possibly explaining her bloodshot, glassy eyes. {¶ 13} Immediately following the suppression hearing, the trial court denied Watkins’s motion to suppress. The court reasoned that the hour of the night, Watkins’s admission that she had consumed alcohol, the odor of alcohol, b loodshot, glassy eyes, and the results of the PBT of 0.117 provided reasonable, articu lable suspicion for Trooper5. Kiefer to request field sobriety tests, and the results of thos e tests, in conjunction with Trooper Kiefer’s observations, provided probable cause to arres t Watkins. {¶ 14} Watkins entered a plea of no contest to the OVI charge. The co urt made a finding of guilty and sentenced her to a fine of $1,075 ($475 s uspended), a 33-day jail term (30 days of which were suspended and the other three to be served in a driver intervention program), a one-year license suspension, and three years’ community

control. Watkins’s conviction and sentence were memorialized i n a judgment journalized on July 20, 2020. {¶ 15} Watkins appealed. She assigns the following error for our revi ew: The trial court erred when it denied Appellant’s motion to supp ress because the facts do not show reasonable articulable suspicion to detain Appellant and request field sobriety tests, and no probable cau se existed to arrest Appellant. II. Law and Analysis {¶ 16} In her sole assignment of error, Watkins argues that the trial court erred when it denied her motion to suppress the results of the field sobriety and breath tests that were performed. She maintains that the odor of alcoholic bever ages, glassy, bloodshot eyes, and her admission to drinking one alcoholic beverage seve n hours earlier did not supply Trooper Kiefer with reasonable, articulable suspicion to detain her to request

those tests.6. {¶ 17} The state responds that several of the factors enumerated by th e court in

State v. Evans , 127 Ohio App.3d 56, 63, 711 N.E.2d 761 (11th Dist.1998), were i ndicated here, supplying Trooper Kiefer with reasonable, articulable sus picion to conduct field sobriety tests. Those indicators included (1) the time of the “stop” (3:12 a.m.); (2) the odor of alcohol; (3) bloodshot, glassy eyes; (4) Watkins’s admi ssion that she had been drinking; (5) the fact that Watkins had been at the same party as M.S.; and (5) the results

of her PBT. {¶ 18} “Appellate review of a motion to suppress presents a mixed ques tion of law

and fact.” State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When the trial court considers a motion to suppress, it acts as the factfinder and is in the best position to resolve factual questions and to evaluate the credibility of witnesses. Id. We, therefore, must accept the trial court’s findings of fact i f they are supported by competent, credible evidence. Id. Our role then is to independently determine, without deference to the trial court’s conclusion, whether the facts sa tisfy the applicable legal

standard. Id. A. Trooper Kiefer’s initial encounter with Watkins was consens ual. {¶ 19} The Fourth Amendment to the United States Constitution and Arti cle I, Section 14 of the Ohio Constitution protect citizens from unrea sonable searches and seizures. “‘The U.S. Supreme Court has created three categorie s of police-citizen contact to identify the separate situations where constitutional guaran tees are implicated: (1) consensual encounters, (2) investigative or “ Terry [ v. Ohio , 392 U.S. 1, 88 S.Ct. 1868,7. 20 L.Ed.2d 889 (1968)]” stops, and (3) arrests.’” (Citations o mitted.) State v. Williams , 6th Dist. Lucas No. L-17-1148, 2018-Ohio-5202, ¶ 20, quoting State v. Staten , 4th Dist. Athens No. 03CA1, 2003-Ohio-4592, ¶ 16. {¶ 20} An arrest requires probable cause. State v. Barner , 6th Dist. Wood No. WD-01-034, 2002-Ohio-2044. “Probable cause exists when circums tances would warrant a prudent person to believe that a suspect has committe d an offense.” Id. {¶ 21} An investigatory stop requires reasonable, articulable suspicio n of criminal activity. State v. Mesley , 134 Ohio App.3d 833, 840, 732 N.E.2d 477 (6th Dist.1999), citing United States v. Brignoni-Ponce , 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). It constitutes a seizure for purposes of the Fourth Am endment. State v.

Westover , 2014-Ohio-1959, 10 N.E.3d 211, ¶ 16 (10th Dist.). {¶ 22} A consensual encounter requires neither probable cause nor reas onable, articulable suspicion of criminal activity. Staten at ¶ 17. An encounter may be said to be consensual when police “approach an individual in a public plac e, engage the person in conversation, and request information, as long as the person is free to walk away.” Id. An officer may ask to examine a person’s identification or se arch his or her belongings during a consensual encounter and he need not inform the citizen that he or she may decline the request and walk away. Id. When a consensual encounter turns into an investigative detention, however, constitutional protections are implicated and the officer must have reasonable suspicion for the detention. State v. Martin , 2018-Ohio1705, 111 N.E.3d 730, ¶ 9 (9th Dist.).8. {¶ 23} Here, Watkins’s encounter with Trooper Kiefer began when she vo luntarily entered the patrol post to pick up M.S. In State v. Murray , 6th Dist. Wood No. WD-18-045, 2019-Ohio-4285, under circumstances substantially si milar to the present case, we found that the defendant’s initial encounter with the trooper was consensual where the defendant voluntarily entered the police station to p ick up his friend who had

been arrested for OVI. See also State v. Trevarthen , 11th Dist. Lake No. 2010-L-046, 2011-Ohio-1013, ¶ 19 (finding encounter consensual where defend ant drove to the police station to pick up his friend who had been arrested for OVI and parked behind trooper’s police cruiser); State v. Trimble , 11th Dist. Portage No. 2010-P-0078, 2011-Ohio-4473 (finding encounter consensual where trooper approached defendan t’s vehicle when he arrived at police station to pick up friend who had been arrest ed for OVI). {¶ 24} Having concluded that Watkins’s initial encounter with Trooper Kiefer was consensual, we must next determine whether, during that consens ual encounter, Trooper Kiefer developed reasonable, articulable suspicion that Watkins had driven to the patrol post while intoxicated, so as to justify the investigative dete ntion, PBT, and field sobriety

tests that followed. B. Reasonable, articulable suspicion did not arise during the consensual encounter. {¶ 25} While a consensual encounter requires no probable cause or reas onable, articulable suspicion, “[a] request that a driver perform field sobriety tests ‘must be separately justified by specific, articulable facts showing a r easonable basis for the request.’” Trevarthen at ¶ 15, quoting Evans , 127 Ohio App.3d at 62, 711 N.E.2d 761,9. citing State v. Yemma , 11th Dist. No. 95-P-0156, 1996 WL 495076 (Aug. 9, 1996). “Whether a request to perform field sobriety tests was reasonab le is to be considered under the totality of the circumstances.” Trevarthen at id. , citing Evans at 63. {¶ 26} It is often a close issue whether the specific facts of a case provide an officer with reasonable, articulable suspicion for conducting f ield sobriety tests. State v. Beeley , 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, ¶ 16. Such de cisions are “very

fact-intensive.” State v. Burkhart , 2016-Ohio-7534, 64 N.E.3d 1004, ¶ 15 (4th Dist.). Ohio courts often reach differing conclusions when faced with s eemingly similar circumstances. Numerous factors may be considered, and small d ifferences between officers’ descriptions of an encounter can form the basis for o pposite outcomes. {¶ 27} In Evans , the Eleventh District compiled a list of the factors that Ohi o courts have considered in determining whether an officer acted reasonably in detaining a person to investigate suspicions that he or she operated a vehi cle while intoxicated.

Those factors include: (1) the time and day of the stop (Friday or Saturday night as o pposed

to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic dri ving before the stop that may indicate a lack of coordination (speeding, weavin g, unusual braking, etc.); (4) whether there is a cognizable report that t he driver may be intoxicated; (5) the condition of the suspect’s eyes (bloods hot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to spea k (slurred10. speech, overly deliberate speech, etc.); (7) the odor of alcoho l 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 off icer (“very strong,” “strong,” “moderate,” “slight,” etc.); (9) the suspect ’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the sus pect 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 i n which they were consumed, if given.

Id. at fn. 2. As emphasized by the Evans court, “[n]o single factor is determinative.” Id. {¶ 28} This court has considered many of these factors in determining whether reasonable, articulable suspicion exists to warrant administrat ion of field sobriety or breath tests. Sometimes those factors weigh in favor of a find ing of reasonable, articulable suspicion. {¶ 29} For instance, in Beeley , 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, Beeley was stopped at 3:00 a.m. for driving seven m.p.h. over t he speed limit. He was not weaving or driving erratically, but when the trooper approa ched the vehicle to speak to Beeley, he detected a “strong” odor of alcohol. Beeley admi tted to the trooper that he had been drinking an hour before, however, his speech was not s lurred and his gait was not unsteady. We found that the strong odor of alcohol, combin ed with Beeley’s11. admission to drinking, provided reasonable, articulable suspici on to conduct field sobriety tests. {¶ 30} Similarly, in New London v. Gregg , 6th Dist. Huron No. H-06-030, 2007- Ohio-4611, ¶ 19, Gregg was stopped at 3:15 a.m. for suspicion o f failure to properly display license plates, at which time the officer also noticed that Gregg was not wearing a seat belt. During the stop, the officer perceived that Gregg’s eyes were “red” and “glassy,” he smelled a “mild” to “moderate” odor of alcohol ema nating from inside the vehicle, and Gregg admitted to having a few beers. While the o fficer was not able to say whether the odor of alcohol was coming from the passenger, the vehicle, or from Gregg, and even though Gregg’s speech was not slurred and his driving was not impaired, we concluded that the officer had formed reasonable, articulable s uspicion to perform field sobriety tests. We acknowledged that “these facts present a cl ose question,” but we held that “[w]here a non-investigatory stop is initiated and the odo r of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxicati on, such as an admission of having consumed alcohol, reasonable suspicion exists.” (Intern al citations and quotations omitted.) Id. at ¶ 17, 19. {¶ 31} And in State v. Maddux , 6th Dist. Wood No. WD-08-065, 2010-Ohio-941, the officer initiated a stop of Maddux’s vehicle at 2:57 a.m. b ecause her license plate light was not illuminated. When asked for her operator’s licen se, Maddux searched her entire purse looking for it, only to find that it was in her co at pocket. While Maddux searched for her license, the officer detected an odor of alcoh ol and saw that her eyes12. were glassy, and Maddux admitted that she had consumed two alco holic beverages. We found that under the totality of the circumstances, reasonable suspicion of criminal activity arose sufficient to justify detaining Maddux for field sobriety and breath tests, therefore, the trial court properly denied Maddux’s motion to s uppress the results of those

tests. {¶ 32} Despite our conclusions in Beeley, Gregg, and Maddux, similar—but not

identical—facts have led us to reverse trial courts’ decisions denying defendants’ motions to suppress. {¶ 33} For example, in State v. Kennard , 6th Dist. Huron No. H-01-006, 2001 WL 605106, *1-2 (June 1, 2001), Kennard caught the trooper ’s attention around 2:00 a.m. because her vehicle lacked a functioning license plat e light. He then saw

Kennard weave within her own lane of travel. He initiated a st op of the vehicle. According to the trooper, Kennard’s speech was slurred and he d etected a moderate or strong odor of alcohol about her person. She admitted to drink ing one beer. The trooper administered field sobriety tests and conducted a PBT. Kennard moved to suppress the results of those tests. The trial court granted Kennard’s moti on. It found that the trooper lacked a factual basis for requiring Kennard to submit to eithe r field sobriety tests or to a breath-alcohol test. Important to its decision was that based on its review of the video recording of the stop, Kennard’s speech was not slurred, calling into question the trooper’s credibility.13. {¶ 34} The state appealed, but we agreed with the trial court. Ignori ng the slurred speech, we held that the remaining factors—the time of the stop , the moderate to strong odor of alcohol about her person, and Kennard’s admission to dr inking one beer—were insufficient to give rise to a reasonable, articulable suspicio n that Kennard was

intoxicated. {¶ 35} Likewise, in State v. Stricklin , 6th Dist. Lucas L-10-1277, 2012-Ohio-1877, an officer initiated a stop of Stricklin’s vehicle at 1:26 a.m. , after observing that one of his headlights was inoperable. Stricklin struck the headlight with his hand, rendering it operable, but during the course of their interaction, the offic er noticed that Stricklin had a slight odor of alcohol on his breath, bloodshot, glassy eyes, a nd an anxious demeanor. Stricklin denied that he had been drinking. The officer ran St ricklin’s license information and learned that he had a prior OVI. He asked Stricklin to tak e a PBT, which Stricklin refused, then asked him to exit the vehicle to administer field sobriety tests. After determining that Stricklin failed those tests, the officer arre sted him for OVI. {¶ 36} On appeal from the trial court’s decision denying his motion to suppress the results of the field sobriety tests, we explained that “[t] raffic violations of a de minimus [sic] nature, combined with a slight odor of an alco holic beverage, and an admission of having consumed a ‘couple’ beers, are not sufficie nt to support a reasonable and articulable suspicion of DUI.” Id. at ¶ 12. We held, therefore, that the officer’s observations did not provide reasonable, articulable suspicion to warrant the administration of field sobriety tests, and we reversed the tri al court decision.14. {¶ 37} Here, Watkins did not stumble or slur her words or show other s igns of impairment. Trooper Kiefer observed only that her eyes were bl oodshot and glassy (at approximately 3:00 a.m.), she smelled of alcohol (of an unspeci fied strength), and she admitted to having had one glass of wine (approximately seven h ours earlier). As we have often recognized, this case presents a close issue. We mu st conclude, however,

based on Kennard , 6th Dist. Huron No. H-01-006, 2001 WL 605106 and Stricklin , that these observations did not provide Trooper Kiefer with reasonab le, articulable suspicion to warrant administering field sobriety and breath tests. {¶ 38} Accordingly, we find Watkins’s sole assignment of error well-ta ken.

III. Conclusion {¶ 39} Reasonable, articulable suspicion did not arise warranting the administration of field sobriety and breath tests during Watkin s’s consensual encounter with Trooper Kiefer. Specifically, Trooper Kiefer observed the odor of alcohol emanating from Watkins, but of an unspecified strength, her eye s were bloodshot and glassy, but it was the middle of the night, and she admitted to consuming one alcoholic beverage many hours earlier. The trooper observed no other sig ns of impairment. We find Watkins’s single assignment of error well-taken. {¶ 40} We reverse the July 27, 2020 judgment of the Bowling Green Muni cipal Court and remand for further proceedings. The city is ordered to pay the costs of this appeal under App.R. 24. Judgment reversed and remanded.15. Bow ling Green v. Watkins C .A. No. WD-20-054

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ______________________

_________ JUDGE Christine E. Mayle, J.

_______________________________ Myron C. Duhart, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.