[Cite as State v. Smith,

.] STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO.

) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) MARK R. SMITH, II ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the East Liverpool Municipal Court of Columbiana County, Ohio Case No. 12 TRC 2086

JUDGMENT: Affirmed in part. Sentence Vacated. Reversed and Remanded.

APPEARANCES:

For Plaintiff-Appellee: Atty. Robert Herron Columbiana County Prosecutor Atty. Timothy J. McNicol Assistant Prosecuting Attorney 126 West 6th Street East Liverpool, Ohio 43920

For Defendant-Appellant: Atty. Dominic A. Frank Betras, Kopp & Harshman, LLC 1717 Lisbon Street East Liverpool, Ohio 43920

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: June 27, 2014 [Cite as State v. Smith,

.] WAITE, J.

{¶1} Appellant Mark R. Smith, II, is appealing the trial court's decision to

overrule his motion to suppress. An East Liverpool policeman arrested Appellant

after receiving an anonymous dispatch that there was a fight on Gardendale Street.

The officer found Appellant sitting on his still warm motorcycle with engine and lights

off, parked in the middle of Gardendale Street. When asked to show identification,

Appellant revealed a holster with a loaded .25 caliber pistol. The officer arrested

Appellant for carrying a concealed weapon. The officer noticed that Appellant had

slurred speech and an odor of alcohol, and had admitted drinking. The officer

conducted field sobriety tests at the police station, which Appellant failed. Appellant

refused to take a blood test and was then charged with operating a vehicle while

intoxicated (OVI). Appellant filed a motion to suppress all evidence resulting from the

traffic stop and the ensuing investigation.

{¶2} Appellant attacks his conviction for three reasons. Appellant first

argues that the police had no basis for making an investigatory stop because it was

based solely on an anonymous tip. Next, Appellant argues that the field sobriety

tests were not administered in substantial compliance with standard testing

procedures. Finally, he claims that there was no probable cause to arrest him on

OVI. While this record supports the investigatory stop and his OVI arrest, Appellant

is correct that there is no evidence that the field sobriety tests were properly

administered. In fact, the relevant evidence tends to show that they were not.

{¶3} Because Appellant has successfully argued that the results of the field

sobriety test should have been suppressed, the court's decision regarding the motion -2-

to suppress is reversed in part, and his conviction, sentence and plea agreement are

vacated. The case is remanded for further proceedings.

Case History

{¶4} East Liverpool patrolman Greg Smith was dispatched in response to an

anonymous tip about a fight near Gardendale and Smithfield Streets in East

Liverpool. When the officer arrived, he saw no evidence that a fight was taking place,

but did see two juveniles who were flagging him down. They told the officer that

there was a man riding a motorcycle chasing a carload of people and that he was

attempting to start a fight. (Tr., p. 6.) Officer Smith could hear and see a motorcycle

coming toward him on Gardendale. (Tr., p. 6.) The motorcycle stopped about 100

yards in front of the officer. Smith continued down Gardendale and saw a man sitting

on a motorcycle parked in the middle of the street. (Tr., p. 7.) Smith exited the patrol

car and approached the motorcycle. Gardendale Street is a city street open to

vehicular traffic.

{¶5} Upon reaching the motorcycle, Smith noted that the motorcycle engine

was still warm. Smith also noted that Appellant had an odor of alcohol about him,

glassy eyes, and that his speech was slurred. Among other things, Appellant said he

was riding around looking for drug dealers and that he was going to take care of

them. (Tr., p. 9.) When Appellant stood up and pulled his shirt up looking for his

wallet, the officer saw a holster containing a weapon. (Tr., p. 10.) The officer

arrested Appellant for carrying a concealed weapon. (Tr., p. 10; 7/25/12 Police

Report, p. 3.) The officer drove Appellant to the police station and, when they

arrived, administered three field sobriety tests. The officer performed the HGN, walk- -3-

and-turn, and one-leg-stand tests. Appellant failed all three. A blood test was

offered and refused.

{¶6} On July 25, 2012, Appellant was charged with OVI, R.C.

4511.19(A)(1)(a), and one felony concealed weapon charge. The concealed weapon

charge is not part of this appeal. Appellant had three prior OVI convictions, two of

them in the past six years. On October 11, 2012, Appellant filed a motion to

suppress, alleging that the traffic stop was illegal, that his confession was the fruit of

an unlawful search, that there was no probable cause for arrest, and that the field

sobriety tests were not administered properly.

{¶7} The suppression hearing was held on December 5, 2012. Officer Smith

was the only witness. The court overruled the motion to suppress in a judgment

entry filed on December 6, 2012.

{¶8} On January 9, 2013, Appellant entered a written plea agreement to one

OVI count, his third OVI in six years, a first degree misdemeanor. A change of plea

hearing was held the same day. The court sentenced him to 180 days in jail, 105

days suspended, a driver's license suspension for five years, three years of intense

probation, a fine of $1,050, and court costs. This appeal followed on February 7,

2013. The assignments of error will be treated out of order for ease of analysis.

Standard of Review of a Motion to Suppress

{¶9} A trial court's decision on a motion to suppress presents a mixed

question of fact and law. State v. Burnside,

,

,

¶8. During a suppression hearing the trial court is itself the trier of fact, and “is

therefore in the best position to resolve factual questions and evaluate the credibility -4-

of witnesses.”

citing State v. Mills,

,

(1992). Thus, “an appellate court must accept the trial court's findings of fact if they

are supported by competent, credible evidence.”

. Accepting

those facts as true, the appellate court conducts a de novo review as to whether the

facts satisfy the applicable legal standards at issue in the appeal.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT WHEN IT OVERRULED HIS MOTION TO SUPPRESS

AND FOUND THE OFFICER HAD REASONABLE ARTICULAR [SIC]

SUSPICION TO EEFECTUATE [SIC] AN INVESTIGATORY STOP

CONTRARY TO APPELLANT'S FOURTH AMENDMENT RIGHT.

{¶10} Appellant argues that Officer Smith relied solely on an anonymous tip to

effectuate an investigatory stop of Appellant as he sat on his motorcycle in the middle

of Gardendale Street in East Liverpool. Appellant argues that an uncorroborated

anonymous tip cannot justify a warrantless search or seizure. In response the state

points out that Officer Smith relied on more than an anonymous tip before he

approached Appellant and asked for identification, and that the anonymous tip was

corroborated in a number of ways. The state’s assertion here is correct.

{¶11} Police may make an investigative stop of a vehicle when they have a

“reasonable articulable suspicion” that criminal activity has occurred. Terry v. Ohio,

,

,

. “[A] police officer may in appropriate

circumstances and in an appropriate manner approach a person for purposes of -5-

investigating possibl[e] criminal behavior * * *.”

. An officer is not required to

have probable cause to arrest prior to making a Terry stop. Berkemer v. McCarty,

,

,

(1984). Under Terry, “the police

officer must be able to point to specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant that intrusion.” State v.

Bobo,

,

(1988). In forming reasonable

articulable suspicion, law enforcement officers may "draw on their own experience

and specialized training to make inferences from and deductions about the

cumulative information available to them that ‘might well elude an untrained person.’ "

United States v. Arvizu,

,

,

(2002),

quoting United States v. Cortez,

,

,

(1981). A Terry investigatory stop “must be viewed in light of the totality of the

surrounding circumstances.” State v. Freeman,

,

(1980), paragraph one of the syllabus.

{¶12} An anonymous tip cannot support probable cause for a stop without

corroboration. Alabama v. White,

,

,

(1990). Stops based on such a tip require corroboration that establishes

“sufficient indicia of reliability to provide reasonable suspicion to make the

investigatory stop.” Florida v. J.L.,

,

,

(2000).

{¶13} In this case, the officer had reasonable suspicion of criminal activity

based on not one, but three reports of a fight or an attempt to fight on Gardendale

Street. The details of the three reports were confirmed as the officer approached the -6-

scene. The initial report was of a fight. When the officer approached the area, two

juveniles gave the officer additional information that the person trying to start the fight

was riding a black motorcycle. The officer saw and heard a black motorcycle in the

area coming directly toward him, and within a few seconds the officer found Appellant

illegally parked and sitting on his motorcycle in the middle of Gardendale Street. The

engine of the motorcycle was still warm. These additional corroborating facts gave

the officer a reasonable suspicion of criminal activity in order to justify stopping

Appellant for questioning.

{¶14} Even if the officer did not have reasonable suspicion of criminal activity,

he was permitted to ask Appellant for identification simply because Appellant was

illegally parked in the middle of the street on his motorcycle. This was not based on

an anonymous tip but on the officer's own observations. There is no Fourth

Amendment seizure when an officer simply asks the occupant of a parked vehicle for

identification. State v. Phipps, 11th Dist. No. 2006-P-0098,

. In

State v. Johnston,

,

(4th Dist. 1993), the

appellate court held that “[l]aw enforcement officers do not violate the Fourth

Amendment by merely approaching an individual on the street or in another public

place. * * * More pertinently, the mere approach and questioning of persons seated

within parked vehicles does not constitute a seizure so as to require reasonable

suspicion supported by specific and articulable facts.” (Citations omitted)

;

see also, State v. Boys,

,

(1st Dist. 1998)

(“when the police approach and question the occupants of a parked vehicle, their

conduct does not constitute a seizure and does not require a reasonable and -7-

articulable suspicion of criminal activity”). Appellant's response to the officer's

request for identification led to the remaining issues surrounding the search and

seizure in this case. And it was only after the request for identification that Appellant

revealed his concealed weapon.

{¶15} The record reflects that the anonymous tip was corroborated, and that

the officer had the authority to ask Appellant for identification because he was parked

illegally in the middle of the street as he sat on his motorcycle. There is no evidence

in this case that arises from an illegal traffic stop or unlawful detention. Therefore,

Appellant's first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT WHEN IT OVERRULED HIS MOTION TO SUPPRESS

THE TESTIMONY/EVIDENCE OF THE ARRESTING OFFICER

REGARDING THE RESULTS OF APPELLANT'S FIELD SOBRIETY

TETS [SIC] AS SAME WHERE NOT ADMINISTERED IN SUBTANTIAL

[SIC] COMPLIANCE WITH THE TESTING STANDARDS AND

PROCEDURES.

{¶16} Appellant argues that the field sobriety tests were not performed

correctly and should have been suppressed. Appellant argues that Officer Smith

completely failed to administer field sobriety tests in accordance with the NHTSA

standards, and for that reason, the test results should have been suppressed.

Appellant argues that the officer should have conducted a medical assessment -8-

before administering the HGN test, that the officer did not understand how to perform

the walk-and-turn test, and that improper instructions were given for the one-leg-

stand test.

{¶17} R.C. 4511.19(D)(4)(b) provides that evidence and testimony regarding

the results of a field sobriety test may be presented “if it is shown by clear and

convincing evidence that the officer administered the test in substantial compliance

with the testing standards for any reliable, credible, and generally accepted field

sobriety tests that were in effect at the time the tests were administered, including,

but not limited to, any testing standards then in effect that were set by the national

highway traffic safety administration[.]” See also, State v. Schmitt,

,

,

.

{¶18} We have held that “some evidence of the NHTSA or other testing

standards is required to prove compliance with the administration of field sobriety

tests. It is only logical that in order to prove substantial compliance with a given

standard, there must be at minimum some evidence of the applicable standard for

comparative purposes. Accordingly, where the suppression motion raises specific

challenges to the field sobriety tests, the state must produce some evidence of the

testing standards, be it through testimony or via introduction of the NHTSA or other

similar manual or both.” State v. Bish,

,

,

. Once the issue is properly raised by the Appellant, the burden

shifts to the state to prove by clear and convincing evidence that it substantially

complied with NHTSA, or other similar standards, in administering the field sobriety

tests. Id. at ¶24. -9-

{¶19} The NHTSA testing manual was not submitted as evidence, used, or

even mentioned by the state at the suppression hearing. Although Officer Smith

testified that he had training in field sobriety tests at the Jefferson Community College

Police Academy and AHAP, he failed to mention what standard he was using to

conduct the tests. He simply described how he administered the tests. Appellant's

counsel mentioned the NHTSA manual when trying to show that there were only

eight clues to look for in the walk-and-turn test, but Smith was not sure how many

clues were in the test, and he himself was looking for 12 clues. (Tr., p. 40.) It is not

clear from the record what standard Smith was using, but whatever standard it was, it

does not appear to have been the NHTSA standard. Since the record does not

reveal through clear and convincing evidence what standard Officer Smith was using

to conduct the walk-and-turn test, and because it clearly was not the NHTSA

standard, this test result should have been suppressed.

{¶20} Similarly, with respect to the HGN (Horizontal Gaze Nystagmus) test,

Smith admitted that he should have performed an assessment of Appellant's medical

conditions prior to giving the test, and that he did not. "[T]he NHTSA instructs that an

officer administering an HGN test should look for possible medical conditions that

might compromise the test results." State v. Robertson, 10th Dist. No. 03AP-277,

, ¶10. In other words, if the defendant had a brain injury or other type

of medical condition that would prohibit the officer from administering the test or

would affect the outcome of the test, the officer should be aware of that fact prior to

administering the test. Smith testified that he just assumed Appellant would have told

him of such a condition. (Tr., p. 39.) Smith also admitted that he should have -10-

performed a medical assessment before administering the one-leg-stand test, and he

did not. (Tr., p. 43.). Once again, since we do not know what standard Officer Smith

was using, and because under any standard a medical assessment should have

been performed, the HGN and one-leg-stand test results should have been

suppressed.

{¶21} Without some reference point to determine whether or not Smith

substantially complied with NHTSA or some other similar standard, it is difficult if not

impossible to evaluate whether particular errors in the administration of field sobriety

tests invalidate the tests. In a different situation in which the NHTSA standards are

admitted as evidence and relied on by the state, the aforementioned errors might not

invalidate a finding of substantial compliance with the standards. In this case,

however, we have no choice but to declare the field sobriety tests invalid due to lack

of clear and convincing evidence that the state substantially complied with the

NHTSA standard. Appellant's third assignment of error is sustained.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT WHEN IT OVERRULED HIS MOTION TO SUPPRESS

AND FOUND THE OFFICER HAD PROBALE [SIC] CAUSE TO

ARREST APPELLANT FOR OPERATING A MOTOR VEHICLE

UNDER THE INFLUENCE (OVI).

{¶22} Appellant argues that the police did not have probable cause to arrest

him for OVI. The legal standard for determining whether the police had probable -11-

cause to arrest an individual for OVI is whether, “at the moment of arrest, the police

had sufficient information, derived from a reasonably trustworthy source of facts and

circumstances, sufficient to cause a prudent person to believe that the suspect was

driving under the influence.” State v. Homan,

,

(2000); Beck v. Ohio,

,

,

(1964).

“[T]he arresting officer must have observed not only the indicia of alcohol

consumption, but also the existence of some reasonable indication of operation while

under the influence of alcohol.” State v. Chelikowsky, 4th Dist. No. 91 CA 27,

(Aug. 18, 1992).

{¶23} Probable cause exists when the facts and circumstances within the

arresting officer's knowledge are sufficient to warrant a man of reasonable caution in

the belief that an offense has been committed. Draper v. United States,

,

,

(1959); Huber v. O'Neil,

,

(1981); State v. Timson,

,

(1974),

paragraph two of the syllabus. In determining whether a police officer had probable

cause to arrest an individual for violating R.C. 4511.19, courts examine the totality of

the circumstances. State v. Medcalf,

,

(4th Dist. 1996).

{¶24} Appellant contends that he was arrested for OVI on Gardendale Street,

and that there was no probable cause to arrest him for OVI at that time. Appellant

appears to misunderstand the relevant facts, here. The record reflects that Appellant

was initially arrested on Gardendale Street for carrying a concealed weapon, and that

while he was being detained on this CCW charge, he was further examined at the -12-

police station regarding the possible OVI charge through the administration of field

sobriety tests. Our first question is whether the officer had authority to administer the

field sobriety tests after Appellant was legally detained and under arrest for a

separate crime.

{¶25} We have adopted a non-comprehensive list of factors to consider in

determining whether an officer had reasonable suspicion to administer field sobriety

tests under the totality of the circumstances: (1) the time of day of the stop; (2) the

location of the stop; (3) any indicia of erratic driving before the stop; (4) whether there

is a cognizable report that the driver may be intoxicated; (5) the condition of the

suspect's eyes; (6) impairments of the suspect's ability to speak; (7) the odor of

alcohol coming from the interior of the car or the suspect's person or breath; (8) the

intensity of that odor as described by the officer; (10) any actions by the suspect after

the stop that might indicate a lack of coordination; and (11) the suspect's admission

of alcohol consumption, the number of drinks had, and the amount of time in which

they were consumed, if given. State v. Reed, 7th Dist. No. 05BE31,

, citing State v. Evans,

,

(1998). All of

these factors, together with the officer's previous experience in dealing with drunken

drivers, may be taken into account by a reviewing court in determining whether the

officer acted reasonably.

{¶26} The record reflects that, in this case, Appellant admitted he was

operating his vehicle, was committing a traffic violation by sitting on his motorcycle

with the engine off parked in the middle of a street open to two-way traffic, and had -13-

slurred speech, glassy eyes and a noticeable odor of alcohol. These factors are

sufficient to justify administering field sobriety tests.

{¶27} The second question is whether any aspect of the field sobriety tests

may be relied upon to support probable cause to arrest for OVI when we have

already determined that the results of the field sobriety tests should have been

suppressed. In

the Ohio Supreme Court held that “that virtually any

lay witness, including a police officer, may testify as to whether an individual appears

intoxicated.” Schmitt at ¶12. Schmitt reasoned that even if the results of field

sobriety tests were inadmissible, the officer's actual observations both before and

during the tests are relevant and admissible because they are “based upon his or her

firsthand observation of the defendant's conduct and appearance.” Id. at ¶15.

Schmitt concluded that an officer may testify as to his or her observations regarding

field sobriety tests, whether or not the test results themselves are deemed

admissible, in support of probable cause or ultimate conviction for OVI. Id. at ¶11,

16.

{¶28} We have previously held that “ 'probable cause to arrest does not

necessarily have to be based, in whole or in part, upon a suspect's poor performance

on one or more of these [field sobriety] tests. The totality of the facts and

circumstances can support a finding of probable cause to arrest even where no field

sobriety tests were administered or where, as here, the test results must be excluded

for lack of strict compliance.” State v. Phillips, 7th Dist. No. 08-MO-6, 2010-Ohio-

1547, ¶25, quoting

, superseded on other grounds by statute. -14-

{¶29} The record contains Officer Smith's testimony that he observed

Appellant slurring his speech and rambling on about matters that did not make sense.

Appellant also admitted to consuming alcohol, and the officer noticed a strong odor of

alcohol and glassy eyes. He noted that Appellant could not walk a straight line even

while using his arms for balance, could not put one foot in front of the other while

walking or touch his heel to his toe, and swayed while trying to balance himself while

holding his foot off the ground. Appellant was also found sitting on his motorcycle

parked in the middle of a city street. The totality of the circumstances indicates that

there was probable cause to arrest Appellant for OVI. Appellant's second

assignment of error is overruled.

Conclusion

{¶30} Appellant challenged the denial of his motion to suppress on three

grounds. He first argued that the police officer had no basis to conduct a brief

investigatory stop based solely on an anonymous tip. The record shows that there

was more than a single anonymous tip that prompted the investigation, and the tip

was corroborated by other evidence. Additionally, police are permitted to ask the

driver of a parked vehicle for identification without violating the Fourth Amendment in

these circumstances. Appellant also argued that the results of the field sobriety tests

should be suppressed due to failure of the state to show substantial compliance with

NHTSA standards. Appellant is correct and the test results will be suppressed.

Finally, Appellant argues that there was no probable cause to arrest for OVI. The

record taken as a whole indicates otherwise. Although the field sobriety test results

are not admissible, the arresting officer's actual observations of Appellant both before -15-

and during those tests can be used to establish probable cause. The record

indicates that Appellant displayed many signs of intoxication both prior to and during

the field sobriety tests sufficient to establish probable cause. Appellant's conviction,

sentence and plea agreement are vacated. The December 6, 2012 Judgment Entry

overruling the motion to suppress is reversed in part to reflect that the results of the

field sobriety tests are suppressed and cannot be used as evidence. The case is

remanded to the trial court for further proceedings consistent with this Opinion.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.