[Cite as State v. Elam, 2014-Ohio-1666.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
SHAUN ELAM : Case No. 13-CA-89
:
Defendant-Appellant : OPINION
NUNC PRO TUNC
CHARACTER OF PROCEEDING: Appeal from the Municipal Court,
Case No. 13TRC05498
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 17, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
J. MICHAEL KING BRYAN BOWEN
40 West Main Street 338 South High Street
4th Floor Columbus, OH 43215
Newark, OH 43055
Farmer, J.
Lickking County, Case No. 13-CA-89 2
{¶1} On June 8, 2013, Ohio State Highway Patrol Trooper Daniel Moran, Jr.,
stopped appellant, Shaun Elam, for speeding. Upon investigation, Trooper Moran
asked appellant to perform field sobriety tests. Appellant was subsequently charged
with speeding in violation of R.C. 4511.21 and driving under the influence in violation of
R.C. 4511.19.
{¶2} On July 8, 2013, appellant filed a motion to suppress, claiming Trooper
Moran did not have probable cause to arrest him. A hearing was held on August 21,
2013. By judgment entry filed August 23, 2013, the trial court denied the motion.
{¶3} On August 29, 2013, appellant pled no contest to the charges. By
judgment entry filed same date, the trial court found appellant guilty, and sentenced him
to thirty days in jail, twenty-seven days suspended.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S
MOTION TO SUPPRESS EVIDENCE."
I
{¶6} Appellant claims the trial court erred in denying his motion to suppress, as
Trooper Moran lacked sufficient probable cause to arrest him. We disagree.
{¶7} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Lickking County, Case No. 13-CA-89 3
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. State
v. Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this type of claim, an appellate court must independently determine, without deference
to the trial court's conclusion, whether the facts meet the appropriate legal standard in
any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶8} Probable cause to arrest exists when a reasonable prudent person would
believe that the person arrested had committed a crime. State v. Timson, 38 Ohio St.2d
122 (1974). A determination of probable cause is made from the totality of the
circumstances. Factors to be considered include an officer's observation of some
criminal behavior by the defendant, furtive or suspicious behavior, flight, events
escalating reasonable suspicion into probable cause, association with criminals, and
location. Katz, Ohio Arrest, Search and Seizure, Sections 2:13-2:19, at 59-64 (2009
Ed.). As the United States Supreme Court stated when speaking of probable cause "we
Lickking County, Case No. 13-CA-89 4
deal with probabilities. These are not technical; they are the factual and practical
considerations of everyday life in which reasonable and prudent men, not legal
technicians, act." Brinegar v. United States, 338 U.S. 160, 175 (1949).
{¶9} "The standard for determining whether the police have probable cause to
arrest an individual for OVI is whether, at the moment of arrest, the police had sufficient
information, derived from a reasonable trustworthy source of facts and circumstances to
cause a prudent person to believe that the suspect was driving under the influence."
State v. Swope, 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849, ¶ 22.
{¶10} The issue is whether appellant's actions and Trooper Moran's
observations lead to probable cause to arrest. We note each case is determined
individually from the facts and observations presented.
{¶11} In its August 23, 2013 judgment entry denying the motion to suppress, the
trial court included a detailed discussion of the facts leading to Trooper Moran's decision
to arrest appellant, and concluded the following:
Although the Court believes the facts and circumstances in this
case provide the thinnest of margins to establish probable cause to arrest
the defendant for OVI, the holding in Lominack, combined with the factors
enumerated in Evans and adopted in Shullo by the Fifth District Court of
Appeals, requires that there can be no conclusion but that Trooper Moran
had probable cause to arrest the defendant and request that he submit to
a breath alcohol test.
Lickking County, Case No. 13-CA-89 5
{¶12} Appellant was first observed traveling on U.S. Route 40 over the speed
limit, 67 m.p.h. in a 55 m.p.h. zone. T. at 6. When asked where he was coming from,
appellant had to correct himself from "Wal-Mart Road" to "Wal-Mart." T. at 7. Trooper
Moran observed that appellant had red glassy eyes and his cheeks were red, and
detected an odor of alcohol coming from his person. T. at 7-8. Although appellant
originally denied drinking, he changed his story and admitted he had consumed two
beers and was coming from Easton. T. at 8. Trooper Moran had appellant perform
three field sobriety tests. Appellant was administered the horizontal gaze nystagmus
test and six clues were observed, indicating impairment. T. at 15-16. Appellant also
performed the one-leg stand test which he performed satisfactorily indicating only one
clue out of four, and the walk and turn test indicating only one clue out of eight. T. at
17-18. Appellant passed two of the three tests. Appellant also successfully recited the
"alphabet test" twice. T. at 19.
{¶13} Trooper Moran testified to the following:
Based on everything that I saw from the uh… His speed was a
primary reason why I was stopping him, from his answers that he gave
me, the way he smelled, the way he looked, his eyes, his cheeks, just his
mannerisms. Uh based on the field testing, the Horizontal Gaze
Nystagmus, which is an involuntary motion and the other tests. I felt that
he was over the legal limit.
Lickking County, Case No. 13-CA-89 6
{¶14} Upon review, we find from the facts observed by Trooper Moran, coupled
with appellant's own actions, the trial court did not err in denying the motion to suppress.
{¶15} The sole assignment of error is denied.
{¶16} The judgment of the Municipal Court of Licking County, Ohio is hereby
affirmed.
By Farmer, J.
Hoffman, P.J. and
Baldwin, J. concur.
SGF/sg 321
State v. Elam
Combined Opinion