[Cite as State v. Bosher, 2014-Ohio-2285.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellant, : 

 No. 13AP-1000 

v. : (M.C. No. 2013 TRC 150255) 

John F. Bosher, Jr., : (ACCELERATED CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on May 29, 2014 

 

Richard C. Pfeiffer, Jr., City Attorney, and Melanie R. Tobias, 

for appellant. 

Michael A. Marrocco, for appellee. 

 

APPEAL from the Franklin County Municipal Court 

O'GRADY, J. 

{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the 

Franklin County Municipal Court that granted a motion to suppress filed by defendantappellee, John F. Bosher, Jr. For the following reasons, we reverse in part the trial court's 

judgment and remand for further proceedings. 

I. FACTS AND PROCEDURAL BACKGROUND 

{¶ 2} On June 18, 2013, shortly before 2:00 a.m., Trooper Paul Barnes with the 

Ohio State Highway Patrol was on patrol when he observed appellee's vehicle make a wide 

turn out of the parking lot of Average Joe's bar. Trooper Barnes followed the vehicle. At 

the intersection of Polaris Parkway ("Polaris") and Sancus Boulevard ("Sancus"), Trooper 

Barnes stopped behind appellee's vehicle in the left-most of two left-turn lanes on Sancus. 
No. 13AP-1000 2 

One vehicle separated the trooper's vehicle from appellee's vehicle. Appellee's vehicle 

made a wide left turn into the center lane on Polaris instead of turning into the left lane on 

Polaris. Trooper Barnes followed the vehicle for another mile or two, during which time 

he observed appellee's vehicle weaving within its lane, "touching line to line." (Tr. 7.) He 

also noticed appellee's vehicle did not have a license plate light. When Trooper Barnes 

activated his overhead lights, appellee's vehicle stopped without incident. 

{¶ 3} Trooper Barnes made contact with appellee, the driver and only occupant of 

the vehicle, at the driver's side window. As appellee rolled down the window, the trooper 

smelled a "strong odor of an alcoholic beverage coming from within the vehicle." (Tr. 7-

8.) Trooper Barnes observed that appellee's eyes were bloodshot and glassy. Appellee 

had no difficulty locating his license and registration and giving those items to Trooper 

Barnes, and appellee's speech was not slurred. Appellee told Trooper Barnes he was 

coming from Average Joe's bar where he had "several beers." (Tr. 11.) Trooper Barnes 

had appellee exit his vehicle and perform field sobriety tests ("FSTs"), i.e., the horizontal 

gaze nystagmus ("HGN") test, the walk-and-turn, and the one-leg stand. Subsequently, 

Trooper Barnes arrested appellee, and appellee took a breath test. 

{¶ 4} Appellee was charged with one count each of operating a vehicle under the 

influence ("OVI"), in violation of R.C. 4511.19(A)(1)(a); OVI per se, in violation of R.C. 

4511.19(A)(1)(d); and a turn violation, in violation of R.C. 4511.36. He entered a not guilty 

plea and filed a motion to suppress. At a partial hearing on the motion, the parties 

stipulated the HGN test was not administered in substantial compliance with National 

Highway Traffic Safety Administration standards, but the one-leg stand and walk-andturn tests were. Therefore, the issues for the court's consideration at the hearing were 

reasonable suspicion for the initial traffic stop, the propriety of appellee's further 

detention and arrest, and the admissibility of the breath test. Trooper Barnes testified to 

the above version of events. Subsequently, the trial court orally ruled Trooper Barnes had 

reasonable suspicion to initiate the traffic stop for the alleged turn violation at the 

intersection of Sancus and Polaris but that there were not enough indicators of 

impairment to detain appellee for FSTs. The court recessed the motion hearing as its 

ruling made it unnecessary to hear additional evidence appellant had on matters such as 

the breath test. Subsequently, the court issued a judgment entry granting the motion to 
No. 13AP-1000 3 

suppress. The court found reasonable suspicion for the initial stop but no "probable 

cause" for appellee's continued detention for FSTs and arrest. (R. 33, at 3.) The court 

made no findings regarding the administration of the FSTs or breath test. 

II. ASSIGNMENT OF ERROR 

{¶ 5} Appellant, pursuant to R.C. 2945.67(A) and Crim.R. 12(K), appeals the trial 

court's ruling and assigns the following error for our review: 

THE TRIAL COURT ERRED WHEN IT FOUND THAT 

TROOPER BARNES DID NOT HAVE A LAWFUL BASIS TO 

DETAIN APPELLEE AND REQUEST THAT HE PERFORM 

FIELD SOBRIETY TESTS. 

III. DISCUSSION 

{¶ 6} " 'Appellate review of a motion to suppress presents a mixed question of 

law and fact. When considering a motion to suppress, the trial court assumes the role of 

trier of fact and is therefore in the best position to resolve factual questions and evaluate 

the credibility of witnesses. Consequently, an appellate court must accept the trial court's 

findings of fact if they are supported by competent, credible evidence. Accepting these 

facts as true, the appellate court must then independently determine, without deference to 

the conclusion of the trial court, whether the facts satisfy the applicable legal standard.' " 

(Citations omitted.) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, quoting 

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. 

{¶ 7} The Fourth Amendment to the United States Constitution and Article I, 

Section 14 of the Ohio Constitution guarantee the right to be free from unreasonable 

searches and seizures. State v. Orr, 91 Ohio St.3d 389, 391 (2001). "It is well-established 

that stopping an automobile, thus temporarily detaining its occupants, constitutes a 

seizure under the Fourth Amendment to the U.S. Constitution." State v. Smith, 10th Dist. 

No. 13AP-592, 2014-Ohio-712, ¶ 10, citing State v. Dorsey, 10th Dist. No. 04AP-737, 

2005-Ohio-2334, ¶ 17. 

{¶ 8} "A traffic stop is constitutionally valid * * * if an officer has a reasonable and 

articulable suspicion that a motorist has committed, is committing, or is about to commit 

a crime, including a traffic violation." Id., citing State v. Mays, 119 Ohio St.3d 406, 2008-

Ohio-4539, ¶ 7; State v. McCandlish, 10th Dist. No. 11AP-913, 2012-Ohio-3765, ¶ 10 
No. 13AP-1000 4 

(observation of traffic violation is enough for reasonable and articulable suspicion to stop 

car); and State v. Barker, 10th Dist. No. 11AP-170, 2011-Ohio-5769, ¶ 12-13. "Pursuant to 

a valid, investigatory stop, an officer possessing a reasonable, articulable suspicion that a 

driver is intoxicated can perform field sobriety tests." Columbus v. Shepherd, 10th Dist. 

No. 10AP-483, 2011-Ohio-3302, ¶ 23, citing Columbus v. Bickis, 10th Dist. No. 09AP-898, 

2010-Ohio-3208, ¶ 19, and State v. Perkins, 10th Dist. No. 07AP-924, 2008-Ohio-5060, 

¶ 8. "Reasonable suspicion entails some minimal level of objective justification, 'that is, 

something more than an inchoate and unparticularized suspicion or "hunch," but less 

than the level of suspicion required for probable cause.' " State v. Jones, 188 Ohio App.3d 

628, 2010-Ohio-2854, ¶ 17 (10th Dist.), quoting State v. Jones, 70 Ohio App.3d 554, 556-

57 (2d Dist.1990). "Whether the police acted with 'reasonable suspicion' requires 

consideration of the totality of the circumstances." In re B.A.R., 10th Dist. No. 13AP-396, 

2013-Ohio-5712, ¶ 14, citing United States v. Cortez, 449 U.S. 411, 417 (1981). 

{¶ 9} Here, the trial court found reasonable suspicion existed for the initial traffic 

stop. Appellant does not challenge this finding on appeal. However, appellee makes 

several arguments about the propriety of the trial court's finding which are in the nature 

of an assignment of error in cross-appeal. However, appellee did not file a cross-appeal, 

so his arguments about the initial stop are not properly before us. App.R. 3(C)(1) ("A 

person who intends to defend a judgment or order against an appeal taken by an 

appellant and who also seeks to change the judgment or order * * * shall file a notice of 

cross appeal within the time allowed by App.R. 4."); See Saxton v. Navistar, Inc., 10th 

Dist. No. 11AP-923, 2013-Ohio-352, ¶ 18. Therefore, we will presume the court correctly 

found reasonable suspicion existed for the initial stop, i.e., Trooper Barnes' observation of 

a traffic violation.1

{¶ 10} In ruling on whether Trooper Barnes could perform FSTs, the trial court 

reasoned: 

The Trooper observed little sign of impaired driving. The 

alleged turning violation, standing alone, is not an indicator of 

 

1 See also State v. Ferrell, 5th Dist. No. 13 CAC 01 001, 2013-Ohio-4651, ¶ 15 ("reasonable and articulable 

grounds to make the stop could be properly found where a law enforcement officer makes an on-the-road 

investigatory observation that a vehicle's license plate lighting is either non-existent or significantly 

obscured").
No. 13AP-1000 5 

impaired driving. In fact, it could be that a majority of drivers 

do not turn into the closest lane to the centerline on a left 

hand turn when turning onto a road with multiple lanes. The 

only indicators of possible impairment exhibited by the 

Defendant were an odor of alcohol, an admission to drinking 

some amount, glassy eyes, and a de minimis lane violation 

(weaving within the lane), although that was not clearly visible 

on the video presented. The latter can be attributed to 

noticing the cruiser following him as much as it can to being 

impaired, given the fact that the Defendant slowed once on 

Polaris Parkway, as if he had seen the Trooper in the mirror. 

The odor and admission is only an indicator of drinking, not 

necessarily an indicator of impairment. Upon cross 

examination, Trooper Barnes confirmed that Defendant did 

not have slurred speech and did not have trouble producing 

his license, both of which would be an indicator of possible 

impairment. No testimony was elicited about any balance 

problems exhibited by Defendant during the encounter, which 

could also indicate possible impairment. 

Decisions in similar cases have held that these factors alone 

do not constitute sufficient probable cause to detain a person 

suspected of impaired driving in order to administer field 

sobriety tests. See State v. Reed, [7th Dist. No. 05 BE 31] 

2006-Ohio-7075 (7th Dist.), citing State v. Dixon, [2d Dist. No. 

2000-CA-30 (Dec. 1, 2000)] (2nd Dist.), and authorities cited 

therein. 

Based upon the above, the Court finds that there existed no 

probable cause to detain and arrest the Defendant, 

considering all of the above factors. 

(R. 33, Amended Judgment Entry 2-3.) 

{¶ 11} It is unclear whether the trial court applied the correct legal standard when 

it found Trooper Barnes could not detain appellee to administer FSTs. The court 

repeatedly referenced the incorrect standard of "probable cause" in its analysis. However, 

the court relied on two cases that utilized the correct standard of reasonable suspicion—

State v. Reed, 7th Dist. No. 05 BE 31, 2006-Ohio-7075, and State v. Dixon, 2d Dist. No. 

2000-CA-30 (Dec. 1, 2000). In any event, we will review the facts of the case, apply the 

correct standard, and determine whether Trooper Barnes had the requisite reasonable 

suspicion to administer FSTs. See, e.g., State v. Cordell, 10th Dist. No. 12AP-42, 2013-
No. 13AP-1000 6 

Ohio-3009, ¶ 10, 15, and State v. Battle, 10th Dist. No. 10AP-1132, 2011-Ohio-6661, ¶ 25, 

39 (In both cases, after finding the trial court applied an incorrect standard in ruling on a 

motion to suppress, we reviewed the facts and applied the correct standard to determine 

whether suppression was warranted.). In doing so, it is significant to note that nowhere in 

the trial court's analysis did the court indicate it did not find the testimony of Trooper 

Barnes credible. Rather than questioning the credibility of Trooper Barnes, the court 

found the facts as applied to its interpretation of the law warranted the suppression of 

evidence. Therefore, our analysis of reasonable suspicion for the administration of the 

FSTs presents a question of law, not an issue of fact. See id. at ¶ 38. 

{¶ 12} In this case, Trooper Barnes developed a suspicion that appellee was 

intoxicated from: (1) a wide turn out of a bar parking lot in the early morning hours, 

(2) the reasonable suspicion Trooper Barnes had that appellee committed a turn violation 

in turning from Sancus onto Polaris, (3) the weaving on Polaris, (4) a strong odor of 

alcohol in a vehicle in which appellee was the only occupant, (5) bloodshot and glassy 

eyes, and (6) the admission to coming from a bar at which appellee had several beers. 

{¶ 13} The trial court found there could be an innocent explanation for the turn 

violation and weaving, and the odor of alcohol and admission to drinking were indicative 

of consumption, not necessarily impairment. In addition, appellee argues there could be 

an innocent explanation for bloodshot and glassy eyes. Appellee also emphasizes the fact 

that Trooper Barnes testified the strong odor of an alcoholic beverage was coming from 

within the vehicle, which could mean the odor had an innocent source apart from 

appellee's breath. 

{¶ 14} However, the fact that reasons articulated as justification for an officer's 

suspicion have innocent explanations does not mean the officer's suspicion was 

unreasonable. See State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 18-19; State 

v. Taylor, 10th Dist. No. 05AP-1016, 2006-Ohio-5866, ¶ 11, citing United States v. 

Sokolow, 490 U.S. 1, 9 (1989) (stating although each act, "in and of itself, could perhaps 

appear innocent, police officers may still have justification for conducting further 

investigation when the acts are viewed together); State v. Floyd, 9th Dist. No. 

11CA010033, 2012-Ohio-990, ¶ 18, citing State v. Elliott, 4th Dist. No. 98CA613 (May 20, 

1999) ("The possibility of an innocent explanation * * * does not deprive an officer of the 
No. 13AP-1000 7 

capacity to entertain a reasonable suspicion of criminal conduct."); State v. Ware, 8th 

Dist. No. 96327, 2011-Ohio-5665, ¶ 19, quoting State v. Taylor, 106 Ohio App.3d 741, 752 

(2d Dist.1995) (" 'In making a determination of reasonable suspicion, the relevant inquiry 

is not whether particular conduct is innocent or guilty, but the degree of suspicion that 

attaches to particular types of noncriminal acts.' "). The United States Supreme Court's 

decision in Terry v. Ohio, 392 U.S. 1 (1968) "precludes this sort of divide-and-conquer 

analysis." Batchili at ¶ 19, quoting United States v. Arvizu, 534 U.S. 266, 274 (2002). 

"The 'reasonable and articulable suspicion' analysis is based on the collection of factors, 

not on the individual factors themselves." (Emphasis sic.) Id.

{¶ 15} Appellee states it is "noteworthy that the [t]rooper failed to activate his belt 

audio microphone when first approaching [a]ppellee and specifically when the [t]rooper 

states [a]ppellee admitted to consuming." (Appellee's brief, at 6.) Appellee cites nothing 

in the record to support this statement. Trooper Barnes testified "[f]or some reason" the 

audio on his microphone was not working the day of incident—not that he failed to turn 

the microphone on. (Tr. 22.) Again, the trial court did not identify any credibility 

problems with Trooper Barnes' testimony. Appellee also complains Trooper Barnes failed 

to inquire about the type of alcohol appellee consumed, but appellee told Trooper Barnes 

he had beer. In addition, appellee complains Trooper Barnes did not inquire about the 

size of the drinks or specific time appellee drank them. But there is no specific set of 

questions a trooper must ask in order to obtain reasonable suspicion to conduct FSTs. 

{¶ 16} Appellee also points to several factors that suggest he was not intoxicated: 

(1) when Trooper Barnes initiated the stop, appellee pulled off the roadway and stopped 

his car without incident, (2) he produced his license and registration without difficulty, 

i.e., he demonstrated no fine motor skills problems, (3) the absence of slurred speech, and 

(4) the lack of evidence that, upon exiting his vehicle, he had any difficulties with balance 

or gait. However, Trooper Barnes articulated something more than a mere hunch that 

appellee might be impaired. While the factors appellee highlights call into question 

whether appellee was in fact impaired, the principal function of an investigative detention 

to administer FSTs is to resolve such ambiguities and quickly establish whether the 

suspect is impaired or not. See, e.g., State v. Elliott, 4th Dist. No. 08CA50, 2009-Ohio-
No. 13AP-1000 8 

6006, ¶ 13 (explaining the principal function of an investigative stop is to resolve 

ambiguities and establish whether activity is in fact legal or illegal). 

{¶ 17} The articulated reasons for Trooper Barnes' suspicion, which we 

summarized above, cumulatively provided reasonable suspicion for appellee's continued 

detention for the administration of FSTs. See State v. Montelauro, 10th Dist. No. 11AP413, 2011-Ohio-6568, ¶ 10, 13, 19 (finding reasonable suspicion for FSTs based on obvious 

odor of alcohol emitting from vehicle, admission to drinking Long Island Iced Tea at 

location officer knew had half price drinks that night, and glassy, bloodshot eyes despite 

absence of erratic driving, slurred speech, problems producing license, and difficulty 

exiting vehicle). The cases cited by the trial court do not compel a different conclusion. 

Aside from the fact that Reed and Dixon are not binding authority, they are readily 

distinguishable from the case at hand. 

{¶ 18} In Reed, the Seventh District found no reasonable suspicion for the 

administration of FSTs where: (1) the officer stopped the defendant in the early morning 

for a loud exhaust and window tint violation, (2) the officer observed no moving violation 

or erratic driving, (3) the officer detected a "slight" odor of alcohol on the defendant, 

(4) the defendant had red, glassy eyes, and (5) the defendant admitted to consuming two 

beers earlier that evening. Reed at ¶ 2-3, 10, 12, 27. Similarly, in Dixon, the Second 

District found no reasonable suspicion for the administration of FSTs where: (1) the 

defendant was stopped in the early morning for a window tint violation, (2) the officer 

detected an odor of alcohol on the defendant's person, (3) the defendant had bloodshot, 

glassy eyes, and (4) the defendant admitted he had consumed "one or two beers." Dixon. 

{¶ 19} In contrast to the defendants in Reed and Dixon, appellee was stopped for a 

moving violation, not an equipment violation. In addition, appellee was observed making 

a wide turn from a bar parking lot and weaving within his own lane of travel prior to the 

stop. Appellee admitted to having not just one or two drinks but to having several beers at 

the bar he had just left. In addition, the trooper in this case detected a strong odor of an 

alcoholic beverage in appellee's vehicle in addition to the bloodshot and glassy eyes. In 

contrast, the officer in Reed described the odor of alcohol on the defendant as "slight," 

and in Dixon, the officer did not describe the strength of the odor. Given these factual 
No. 13AP-1000 9 

distinctions, Reed and Dixon do not support the conclusion that no reasonable suspicion 

for the administration of FSTs exists in this case. 

{¶ 20} For the foregoing reasons, we find reasonable suspicion existed for Trooper 

Barnes' detainment of appellee for the administration of FSTs. Accordingly, we sustain 

the sole assignment of error. We affirm the portion of the trial court's judgment finding 

reasonable suspicion for the initial traffic stop because appellant does not challenge it and 

appellee did not file a cross-appeal as to that finding. We reverse the portion of the trial 

court's judgment finding the detention of appellee for the administration of FSTs 

improper and concluding that no probable cause existed for the arrest. We remand this 

matter to the Franklin County Municipal Court for further proceedings consistent with 

this decision. 

Judgment affirmed in part; 

reversed in part and cause remanded. 

BROWN and LUPER SCHUSTER, JJ., concur.