[Cite as State v. A.C. , 2020-Ohio-713.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO Appellant

v. A.C. Appellee C.A. No. 19CA0047-M

APPEAL FROM JUDGMENT ENTERED IN THE MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO CASE No. 18TRC08241

DECISION AND JOURNAL ENTRY Dated: March 2, 2020

CALLAHAN, Presiding Judge. {¶1} Appellant, the State of Ohio, a ppeals an order that suppressed evidence gained as the result of field sobriety t ests. This Court reverses.

I. {¶2} On November 24, 2018, at 2:45 a.m., a Medina police officer sto pped a vehicle driven by A.C. based on a suspicion that she was driving while under a license suspension. When the officer approached, he noted a moderate odor of alcoho l emanating from the vehicle. A woman in the passenger seat appeared to be unconscious, and a third individual sat in the back

seat. After a brief conversati on with A.C., the officer asked her to step from the vehicle. Shortly thereafter, the officer detained A.C. for the purpose of conduc ting field sobriety tests. Based on the evidence gained as a result of the field sobriety tests, A. C. was charged with operating a

motor vehicle while under the in fluence of alcohol in violation of R.C. 4511.19(A)(1)(a),2

operating a motor vehicle with a p rohibited concentration of al cohol in her breath in violation of R.C. 4511.19(A)(1)(d), and driving while under suspension in vi olation of R.C. 4510.16(A). {¶3} A.C. moved to suppress the evidence gained as a result of the f ield sobriety tests, arguing that the officer did not have reasonable suspicion to e xtend her detention for the purpose of conducting the tests. The trial court granted the motion to suppress, and the State of Ohio filed this appeal.

II.

ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN GRANTING APPELLEE [A.C.’S] MOTION TO SUPPRESS THEREBY DENYING INTRODUCTION OF EVIDENCE CONCERNING THE ADMINISTRATION OF FIELD SOBRIETY TESTS AND SUBSEQUENT BREATH TEST EVIDENCE IN THE CASE AT BAR. {¶4} The State’s single assignment of error argues that the trial co urt erred by granting A.C.’s motion to suppress. This Court agrees. {¶5} This Court’s review of a trial court’s ruling on the motion to suppress presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

The trial court acts as the tri er of fact during a suppression hearing and is best equipped to evaluate the credibility of witnesses and resolve questions of fact. Id .; State v. Hopfer , 112 Ohio App.3d 521, 548 (2d Dist.1996), quoting State v. Venham , 96 Ohio App.3d 649, 653 (4th Dist.1994). Consequently, this Court accepts a trial court’s f indings of fact if supported by competent, credible evidence. Burnside at ¶ 8. Once this Court has determined that the trial court’s factual findings are s upported by the evidence, we cons ider the trial court’s legal

conclusions de novo. See id. In other words, this Court then accepts the trial court’s fin dings of fact as true and “must then independently determine, without de ference to the conclusion of the3

trial court, whether the facts satisfy the applicable legal sta ndard.” Id ., citing State v.

McNamara , 124 Ohio App.3d 706, 710 (4th Dist.1997). {¶6} The investigatory stop of an automobile is a seizure for purpos es of the Fourth Amendment and, consequently, must be based on a law enforcement officer’s reasonable suspicion “that a motorist has committed, is committing, or is about to commit a crime.” State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7, citing Delaware v. Prouse , 440 U.S. 648, 663 (1979) and Berkemer v. McCarty , 468 U.S. 420, 439 (1984), quoting U.S. v. Brignoni-Ponce , 422 U.S. 873, 881 (1975). In justifying the stop, the officer “must be able to point to specific and articulable facts which, taken together with rational infer ences from those facts, reasonably

warrant that intrusion.” Terry v. Ohio , 392 U.S. 1, 21 (1968). {¶7} The duration of a traffic stop is determined by the purpose for which it was initiated, and a stop may not last longer than is necessary to accomplish that purpose. Rodriguez

v. U.S. , 575 U.S. 348, 354 (2015). See also State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio2204, ¶ 12, citing State v. Howard , 12th Dist. Preble Nos . CA2006-02-002, CA2006-02-003, 2006-Ohio-5656, ¶ 15; State v. Rackow , 9th Dist. Wayne No. 06-CA-0066, 2008-Ohio-507, ¶ 8. An officer may not prolong a stop for the purpose of conducting inquiries unrelated to the original purpose without “the re asonable suspicion ordinarily d emanded to justify detaining an

individual.” Rodriguez at 355. “If, however, during the investigatory stop ‘the offi cer discovers

additional facts from which it is reasonable to infer additiona l criminal activity[,] the officer is permitted to lengthen the duration of the stop to investigate s uch suspicions.’” (Alteration in original.) State v. Spees , 9th Dist. Medina No. 17CA0061-M, 2018-Ohio-2568, ¶ 8, quoting

State v. Williams , 9th Dist. Lorain No. 09CA009679, 2010-Ohio-3667, ¶ 15. See Batchili at ¶ 17 and paragraph two of the sylla bus. As with an initial stop, th e question of whether an officer had4

a reasonable suspicion for a con tinued detention is evaluated w ith reference to the totality of the

circumstances. Spees at ¶ 8. {¶8} The trial court found that the officer stopped A.C. at approxim ately 2:45 a.m. after randomly checking her tem porary license tag and determini ng that she was subject to a judgment suspension. The trial court observed that the officer “noticed no erratic driving, lane violations, or any other unusua l operation of the vehicle” and that “the stop unfolded without incident.” The trial court noted that when the officer approac hed the vehicle, A.C. opened the door and they spoke through that opening. At that time, the of ficer detected an odor of alcohol emanating from the vehicle that he characterized as “‘moderate. ’” The officer observed two other individuals in the car, one of whom appeared to be uncons cious. In response to the officer’s inquiry, A.C. stated tha t the passenger was “‘drunk.’ ” The officer testified that he could not pinpoint the source of the odor of alcohol at that time. {¶9} The trial court found that A.C. told the officer that she and t he passengers had left a bar located approximately five blocks away, that she was not aware of the judgment suspension on her license, and that she had consumed two beers earlier in the evening. The officer testified

that he did not remember whethe r A.C.’s eyes were bloodshot or glassy. The trial court also noted that the officer testified “that [A.C.’s] speech did not sound slurred, that her responses did not sound delayed, that she was cooperative, and that she answe red all of his questions normally.” The trial court found that at that point, the office r asked A.C. to step from the vehicle so that he could inquire further . When she did so, the officer noted that despite her “‘really high’ high-heeled shoes,” A.C.’s ga it was normal. The officer noted that the odor of alcohol persisted when he spoke with A.C. at the r ear of her vehicle, but accordi ng to the trial court’s findings, the officer did not specify whether it originated from her breath o r her clothing and acknowledged5

the possibility “that the odor of alcohol from [A.C.]’s person might have transferred to her person from her vehicle’s intoxicated occupants.” 1 {¶10} The State challenges the trial court’s findings of fact in only one respect, arguing that “the trial court’s determination that [the officer] decide d to administer field sobriety tests when he asked [A.C.] to get out of her car[]” is not supported by clear and convincing evidence. It appears that the trial court did not actually conclude that the officer determined to conduct field sobriety tests when he asked A.C. to step from her car, b ut the language used by the trial court in this regard is indeterminate, at best: the trial court stated that the officer made this determination “at the latest, when, at [the officer’s] request, [A.C.] had exited her vehicle and positioned herself behind it.” T his statement at least implies that the officer may have made the determination earlier and, in t hat respect, it is not supported by clear and convincing evidence

because the record demonstrates that the officer asked A.C. to step from her vehicle, spoke with her at the rear of the vehicle, noted the odor of alcohol on he r person, and decided to perform field sobriety tests. {¶11} Accepting the remainder of the trial court’s findings of fact a s true, this Court must independently consider whether the trial court erred by de termining that the officer did not have a reasonable suspicion of criminal activity that justified detaining A.C. for field sobriety

tests. See Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8 ; Spees , 2018-Ohio-2568, at ¶ 13-14; Hochstetler , 2016-Ohio-8389, at ¶ 13; State v. Mencini , 9th Dist. Summit No. 27322, 2015-Ohio-89, ¶ 15-16. This analysi s evaluates the circumstanc es surrounding the detention as a

1 The trial court discounted the officer’s testimony based on hi s agreement during crossexamination that it was “possi ble” that an odor of alcohol on o ne person can influence the odor of alcohol on another. This Cour t notes that the officer was r esponding to a theoretical question based on his experience, not “c onceding that odors on [A.C.]’s person might possibly have transferred to her from her passengers[.]”6

whole, not individually. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, at paragraph two of the syllabus, citing U.S. v. Arvizu , 534 U.S. 266, 274 (2002). {¶12} Based on the totality of the circumstances surrounding the stop at issue in this case, the officer had a reasonable and articulable suspicion th at A.C. was driving under the influence of alcohol. The stop occurred at 2:45 a.m. approxima tely five blocks from a bar. A.C. acknowledged that she and her pa ssengers were coming from the b ar, where they had been drinking. She admitted that she had consumed two beers, althou gh it appeared that her passenger had consumed significantly more. The officer noted the moderat e odor of alcohol when he spoke with A.C. through the open car door. When he spoke with A.C. a lone at the rear of the vehicle,

he confirmed that the odor of alcohol was coming distinctly fro m her person. {¶13} To be sure, some of the officer’s observations were not individually indicative of impairment: he did not observe any erratic driving on A.C.’s pa rt, detect slurring in her speech or confusion in her behavior, or note problems with A.C.’s gait or balance when she walked to the back of the vehicle. The officer did not recall that her eyes were glassy or bloodshot. But these observations must be taken—along with the officer’s other obser vations—as part of the totality of the circumstances surrounding the stop. They must not be co nsidered in isolation. Batchili at paragraph two of the syllabus, citing Arvizu at 274. They must also be “viewed through the eyes of the reasonable and prudent po lice officer on the scene who m ust react to events as they

unfold.” State v. Andrews , 57 Ohio St.3d 86, 87-88 (1991). A reviewing court must “give due weight” to the officer’s training and experience “and view the evidence as it would be understood by those in law enforcement.” Id . at 88. {¶14} This Court recognizes that cases such as this one present close calls for the

officers at the scene and for the courts. State v. Hall , 5th Dist. Stark No. 2015 CA 00213, 2016-7

Ohio-5787, ¶ 26. In this case, when we view the totality of th e circumstances from the objective perspective of a reasonable and prudent police officer at the s cene and with due weight to the officer’s training and experien ce, we cannot agree that the off icer lacked reasonable suspicion to justify administration of the field sobriety tests. Consequent ly, we conclude tha t the trial court erred by determining that the officer lacked a reasonable and a rticulable suspicion that justified detaining A.C. for fie ld sobriety testing. {¶15} The State’s assignment of error is sustained.

III. {¶16} The State’s assignment of error is sustained. The judgment of the Medina Municipal Court is reversed. Judgment reversed and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Medina Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30.8

Costs taxed to Appellee.

LYNNE S. CALL AHAN FOR THE COURT

HENSAL. J. CONCURS. TEODOSIO, J. DISSENTING. {¶17} Because I would conclude, based on the totality of the circumst ances, that the

officer lacked the reasonable s uspicion necessary to further de tain A.C. to conduct field sobriety testing in this matter, and would thus affirm the trial court’s judgment granting A.C.’s motion to suppress, I must respectfully dissent. {¶18} During a lawful traffic stop, th e reasonable suspicion required to further detain an

individual to conduct field sobrie ty testing must be based on m ore than an ill-defined hunch; i.e., the officer must point to specific, articulable facts indicatin g that the individual may be committing a criminal act. State v. Wood , 9th Dist. Wayne No. 18AP0011, 2019-Ohio-3985, ¶ 7. In other words, an officer may request a motorist to perform fi eld sobriety tests only when that request is justified by a reas onable suspicion based upon speci fic, articulable facts that the motorist is driving while intoxicated. See, e.g., State v. Miller , 8th Dist. Cuyahoga No. 106946, 2018-Ohio-4898, ¶ 41; State v. Matzinger , 4th Dist. Washington No. 16CA4, 2017-Ohio-324, ¶

34.9

{¶19} “[N]o single factor is dispositive of whether a law enforcement officer is legally justified in conducting field sobriety tests in any given case. ” State v. Hochstetler , 9th Dist. Wayne No. 16AP0013, 2016-Ohio-8389, ¶ 12. Instead, “the ‘reaso nable and articulable’ standard applied to a prolonged traffic stop encompasses the to tality of the circumstances, and a court may not evaluate in isolation each articulated reason for the stop.” State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, para graph two of the syllabus, citing United States v. Arvizu , 534 U.S. 266, 274 (2002). {¶20} Upon review of the record in this case, I believe the trial cou rt’s findings of fact were based on competent, credibl e evidence. The officer conduc ted a traffic stop of A.C.’s vehicle not for any erratic driv ing or other moving violations indicative of impaired driving, but following a random check of the vehicle’s temporary tag number and the subsequent discovery

that A.C.’s driver’s license was subject to a judgment suspensi on. There were two other occupants in the vehicle, includi ng a female who was “passed ou t” and slumped over; A.C.

informed the officer that the fe male passenger was drunk. The officer detected a moderate odor of alcohol coming from the vehicle, but admitted he could not d etermine the source of the odor. A.C. admitted that the group recen tly left a nearby bar and tha t she had consumed two beers earlier in the evening. The officer could not recall if A.C.’s eyes were bloodshot or glassy, but testified that her speech was not slurred and her responses wer e not delayed. She spoke clearly, answered all of his questions, a nd was cooperative. When she w as asked to exit the vehicle, A.C. did so without incident, despite wearing “really high” hig h-heeled shoes. Although the

odor of alcohol followed her when she exited the vehicle, the o fficer agreed that it was not coming from her breath. He further agreed that, based on his e xperience, it is possible for the

odor of alcohol to transfer from one person to another.10

{¶21} The trial court found that the point at which the officer decid ed to administer field sobriety testing could “reasonably be said to have arisen, at the latest , when, at [the officer’s] request, [A.C.] had exited her vehicle and positioned herself b ehind it.” (Emphasis added.). The majority concludes that this findi ng⸺which uses indeterminate l anguage and implies that the officer’s determination may have been made sometime earlier⸺is not supported by clear and convincing evidence because the record instead shows that the o fficer asked A.C. to exit the vehicle, spoke with her at the r ear of the vehicle, noted the o dor of alcohol on her, and decided to perform field sobriety tests. I disagree with the majority’s i nterpretation of the record here, as the officer did not actually testify that he decided to conduct field sobriety testing at that specific point in time. He instead only testified that “at that point [ he] asked her to perform some field sobriety tests * * *.” (Emphasi s added.). This statement does not indicate to me it was only at that very moment the officer decided to conduct field sobriety testin g; rather, it appears that it

was at that time when his decisi on to conduct field sobriety te sting⸺which could have been

made either at that moment or sometime earlier⸺was actually expressed outwardly to A.C. Thi s distinction in the officer’s choice of words, however slight or semantical it may appear, leads me

to conclude that the trial court’ s finding⸺i.e., the point at w hich the officer decided to administer field sobriety testing could “reasonably be said to have arisen, at the latest, when, at [the officer’s] request, [A.C.] h ad exited her vehicle and posi tioned herself behind it.”⸺is, in fact, supported by competent, cre dible evidence in the record. {¶22} In accepting the trial court’s findings of fact as true, I woul d conclude, based on the totality of circumstances, that the officer did not have a reasonable suspicion, based on specific, articulable facts, th at A.C. was under the influence by the time she exited the vehicle and positioned herself behind it, or at any time prior to that. It was indeed late that night, but11

A.C. was pulled over due to a license suspension, which in no w ay indicates impairment. She admitted to coming from a nearby bar after consuming two beers earlier in the evening, but “‘[f]or better or worse, the law prohibits drunken driving, not driving after a drink.’” (Emphasis sic.) State v. High , 9th Dist. Medina No. 17CA0019-M, 2017-Ohio-8264, ¶ 14, quotin g State v. Taylor , 3 Ohio App.3d 197, 198 (1st Dist.1981). A moderate odor of a lcohol emanated from an

unknown source within the vehicle , but three occupants were ins ide, including a noticeably drunk and passed out pa ssenger. A.C. was cooperative and answe red the officer’s questions in a normal fashion, without delay. M any of the classic indicia of intoxication are not present in this case, e.g., no odor of alcohol coming from her breath , no glassy or bloodshot eyes, no slurred speech, no delayed responses, and no lack of coordination. Whe n A.C. was asked to exit the vehicle and walk to its rear, she did so without incident, desp ite wearing “really high” highheeled shoes. Although the odor of alcohol followed A.C. when she exited the vehicle, it was not coming from her breath, and the officer agreed it is possib le for such odors to transfer from person to person. {¶23} Certainly, no individual factor i s determinative in these cases . But, when the factors present in this case are viewed together, it is my opin ion that the totality of the circumstances did not provide the officer with a reasonable sus picion that A.C. was driving while under the influence of alcohol. Consequently, he was not permi tted to prolong the traffic stop and detain A.C. further to conduct field sobriety testing. I w ould therefore conclude that the trial court correctly granted A.C.’ s motion to suppress and would aff irm the court’s judgment. {¶24} Accordingly, I respectfully dissent.12

APPEARANCES: GREGORY HUBER, Prosecutin g Attorney, for Appellant. JOCELYN STEFACIN and KIMBERLY STOUT-SHERRER, Attorneys at Law, for Appellee.