[Cite as Toledo v. Cook, 2019-Ohio-1484.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 LUCAS COUNTY 

State of Ohio/City of Toledo Court of Appeals No. L-18-1146 

 

 Appellee Trial Court No. TRC-17-28088 

v. 

Brian Cook DECISION AND JUDGMENT

Appellant Decided: April 19, 2019 

* * * * * 

 David Toska, Chief Prosecutor, and Jimmie Jones, Assistant 

 Prosecutor, for appellee. 

 Alan J. Lehenbauer, for appellant. 

* * * * * 

OSOWIK, J. 

{¶ 1} This is an appeal from a June 19, 2018 judgment of the Toledo Municipal 

Court, denying appellant’s motion to suppress in the underlying operating a motor 

vehicle while under the influence case. For the reasons set forth below, this court affirms 

the judgment of the trial court. 
2.

{¶ 2} Appellant, Brian Cook, sets forth the following two assignments of error: 

 I. THE TRIAL COURT ERRED IN FINDING THAT THE 

ARRESTING OFFICER HAD PROBABLE CAUSE TO ARREST 

APPELLANT ON DRIVING UNDER THE INFLUENCE. 

 II. THE TRIAL COURT ERRED IN DENYING THE MOTION 

TO SUPPRESS BECAUSE THERE WAS NO IN-COURT 

IDENTIFICATION OF APPELLANT AS THE PERSON WHO 

COMMITTED THE OFFENSES. 

{¶ 3} The following undisputed facts are relevant to this appeal. On the afternoon 

of December 30, 2017, a Toledo Police Department crew on routine patrol received 

several radio calls notifying them to be on the lookout for a vehicle driving recklessly. 

The vehicle had just caused an accident at the intersection of Heatherdowns Blvd. and 

Eastgate Rd. The officers were provided with a detailed description of the subject 

vehicle, including the vehicle’s license plate number. 

{¶ 4} Approximately ten minutes later, the officers observed the vehicle that they 

had received the notifications about and began to follow it. Shortly thereafter, the 

officers observed the vehicle weaving across marked lanes and run a red light. 

{¶ 5} Following these observations, the officers initiated a traffic stop. Upon 

approaching the vehicle, the officers observed that appellant, the vehicle driver, was not 

responsive to their verbal commands. Due to safety concerns, appellant was removed 

from the vehicle, handcuffed, and placed in the police vehicle. 
3.

{¶ 6} During this process, the officers detected a strong odor of alcohol, observed 

that appellant had difficulty standing and walking, and observed that appellant was slow 

in responding to commands. 

{¶ 7} Based upon these events and observations, appellant was arrested and 

charged with one count of operating a motor vehicle while under the influence, in 

violation of R.C. 4511.19(A)(1), one count of failure to stop after an accident, in 

violation of R.C. 4549.02, and one count of failure to obey a traffic control device, in 

violation of R.C. 4511.12. 

{¶ 8} On January 5, 2018, appellant pled not guilty to these offenses. On May 18, 

2018, appellant filed a motion to suppress. On June 19, 2018, the trial court conducted an 

evidentiary hearing on appellant’s pending motion to suppress. 

{¶ 9} During the motion to suppress hearing, the arresting officer testified that 

while on duty on December 30, 2017, his patrol team received several radio calls 

notifying all officers on duty to watch out for a particular vehicle. They were provided 

with a vehicle description, including the vehicle license plate number. The subject 

vehicle had just been observed and reported by multiple witnesses driving recklessly and 

causing an accident. 

{¶ 10} The officer further testified that shortly after receiving these calls he 

observed the subject vehicle, verified that it matched the information provided, and began 

following it. The officer next observed appellant weaving across marked lanes and 

running a red light. Accordingly, a traffic stop was conducted. 
4.

{¶ 11} Due to appellant’s inability to respond to the verbal commands of the 

officers, appellant was removed from his vehicle, handcuffed, and placed in the police 

cruiser. During this process, the officer testified detecting a strong odor of alcohol, 

observed appellant to be unsteady on his feet, had difficulty standing and walking, and 

was very slow in reacting and responding to verbal commands. 

{¶ 12} The officer testified that given these circumstances, he requested a tow of 

the vehicle. The officer was unable to perform standard field sobriety tests as appellant 

was unable to stand. 

{¶ 13} The officer testified on cross-examination that although they had not been 

provided with a description of the driver of the vehicle, appellant’s vehicle description 

and license plate number matched the subject vehicle. The officer’s testimony further 

reflects that the subject vehicle was spotted by the officer minutes after being notified 

about it. In addition, the officer was on patrol in the same general vicinity of Toledo 

where the vehicle had been reported. 

{¶ 14} The officer further testified that appellant was unable to sit, fell onto the 

seat of the police cruiser, smelled strongly of intoxicating beverages, had glassy eyes, 

slurring speech, and difficulty responding to questions. 

{¶ 15} Notably, when questioned as to who specifically the officer had this 

encounter with, the officer positively identified appellant. Counsel for appellee inquired 

of the officer, “And when you refer to S1 [suspect], who is that referring to?” The officer 

affirmatively replied, “Suspect one, the defendant.” 
5.

{¶ 16} The trial court ultimately concluded, “So in the totality of the 

circumstances, report of a hit skip accident matching the description of the vehicle * * * 

running the red light and swerving across the lines was probable cause * * * the 

testimony of the odor of alcohol, the non-responsiveness in the speech * * * there is 

probable cause.” The motion to suppress was denied. 

{¶ 17} Following the denial of the suppression motion, a plea agreement was 

reached in which appellant pled guilty to the count of operating a motor vehicle while 

under the influence and the traffic control device violation. In exchange, appellee 

dismissed the offense of leaving the scene of an accident. 

{¶ 18} The trial court noted that appellant’s record included prior reckless 

operation and operation of a motor vehicle while under the influence convictions. 

Appellant was sentenced to a 180-day term of incarceration, with 150 days suspended, 

25 days to be served on electronic monitoring, and 5 days to be served at the Corrections 

Center of Northwest Ohio (“CCNO”). This appeal ensued. 

{¶ 19} In the first assignment of error, appellant asserts that the trial court erred in 

finding probable cause for appellant’s arrest. We do not concur. 

{¶ 20} It is well-established that the standard of appellate review for a disputed 

motion to suppress requires this court to assume that the trier of fact is in the best position 

to resolve questions of fact and to evaluate witness credibility. As such, the appellate 

court is bound to accept the trial court findings, so long as they are supported by 
6.

competent, credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 

797 N.E.2d 71, ¶ 8. 

{¶ 21} As applied to the instant case, we note that the record reflects that officers 

on patrol on December 30, 2017, received two notifications of a vehicle driving 

recklessly that had just caused an accident. The vehicle description and license plate 

number were provided to the patrol officers. 

{¶ 22} The record further reflects that shortly thereafter, while on patrol in the 

same vicinity of Toledo, the officers observed the vehicle, verified the vehicle identifiers, 

and began to follow it. The officers next observed the vehicle swerve and run a red light. 

{¶ 23} Upon initiating a traffic stop, the officers observed appellant, the driver of 

the vehicle, to be unresponsive, exhibiting a strong odor of alcohol, glassy-eyed, slurring 

his speech, and so unable to stand as a result of impairment that they could not perform 

standard field sobriety tests. 

{¶ 24} We find that the record reflects ample, credible evidence in support of the 

disputed probable cause determination. We find appellant’s first assignment of error not 

well-taken. 

{¶ 25} In appellant’s second assignment of error, appellant asserts that the trial 

court denial of the motion to suppress was erroneous based upon appellant’s position that 

the testifying officer did not identify appellant as the perpetrator during the motion to 

suppress hearing. We do not concur. 
7.

{¶ 26} In support of the second assignment of error, appellant argues, “At the 

suppression hearing, counsel for the city of Toledo did not engage in any discussion with 

[the officer] wherein the officer identified [appellant] to be the driver of the vehicle 

stopped on December 30, 2018. The transcript of the proceedings does not comport with 

appellant’s assertion. 

{¶ 27} Our review of the suppression hearing transcript reveals several instances 

during the hearing in which appellant was positively identified as the offender by the 

officer. During the hearing, the dash cam video of the incident was shown. When asked 

by counsel for appellee what the current portion of the video was showing, the officer 

replied, “I’m giving commands, to the driver, to shut the vehicle off.” When next asked 

what the immediately following video footage reflected, the officer responded, “We were 

handcuffing the defendant [appellant].” 

{¶ 28} In addition, counsel for appellee asked the officer about the audio heard in 

the background of the dash cam video. Counsel inquires, “Officer * * * is that the 

defendant that we hear in the video?” The officer affirmatively replies, “Yes.” 

{¶ 29} During a later portion of the suppression hearing, the officer is questioned 

about his written investigation report regarding the incident. Counsel for appellee had the 

officer review the details of the report and then asked, “And that was your report?” The 

officer replied, “Yes.” Counsel then inquired, “And when you refer to S1, who is that 

referring to?” The officer affirmatively identified appellant replying, “Suspect one, the 

defendant.” 
8.

{¶ 30} We find that contrary to appellant’s position, the transcript of proceedings 

of the suppression hearing reflects that the officer’s testimony positively identified 

appellant as the offender, the driver of the vehicle. 

{¶ 31} Appellant suggests, without evidentiary support, that because a description 

of the person driving the vehicle was not provided to the officers in the initial radio calls, 

that some unknown party could have been driving the subject vehicle at the time of the 

accident, immediately prior to appellant’s arrest while driving that same vehicle several 

minutes later. We are not persuaded. 

{¶ 32} Wherefore, we find appellant’s second assignment of error not well-taken. 

{¶ 33} On consideration whereof, the judgment of the Toledo Municipal Court is 

hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 

24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Arlene Singer, J. 

_______________________________ 

Thomas J. Osowik, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.