[Cite as Cleveland v. Reese, 2014-Ohio-3587.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100579
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
LAUREN REESE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2013 TRC 037304
BEFORE: McCormack, J., S. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 21, 2014
ATTORNEY FOR APPELLANT
Mark A. DeFranco
55 Public Square
Suite 1600
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Law Director
City of Cleveland
By: Angela Rodriguez
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Lauren Reese, appeals from a judgment of the
Cleveland Municipal Court that convicted her of operating a vehicle while under the
influence (“OVI”). She claims the police unlawfully detained and arrested her and the
field sobriety tests were not administered in substantial compliance with the NHTSA
regulations. After a careful review of the record and applicable law, we affirm the
judgment of the trial court.
{¶2} On June 22, 2013, Reese was cited for OVI, having a prohibited breath
alcohol concentration, failing to wear a seat belt, and violating marked lanes. She filed a
motion to suppress evidence. At the suppression hearing, Trooper Hiram Morales, a
ten-year veteran with the Ohio State Highway Patrol, testified to the following events.
{¶3} On an early Sunday morning, around 2:00 a.m., a driver on westbound
Interstate 90 caught his attention when she passed his patrol vehicle on his right. The
driver appeared to be traveling at a speed over the posted speed limit of 60 mph.
Trooper Morales could not pace the vehicle to ascertain its speed, because the driver soon
moved one lane to the right — without signaling the lane change — and proceeded to exit
the highway.
{¶4} Trooper Morales followed the vehicle off the highway and observed that the
vehicle traveled over the middle hash mark on the exit ramp. He continued to follow the
vehicle traveling northbound on West 117th Street, in another attempt to pace the vehicle.
The driver randomly increased and decreased the speed, and as a result, Morales was
unable to establish a speed. He followed the vehicle for a mile, and shortly after the
intersection of West 117th Street and Franklin Avenue, the driver turned into the parking
lot of a Taco Bell, just when Morales activated his overhead lights.
{¶5} Morales also pulled into the Taco Bell and saw the driver pulling into the
drive-through lane. At that point, Morales exited his vehicle and approached the driver,
knocking on the window to get the driver’s attention. He asked the driver, appellant
Lauren Reese, about the traffic violations he observed and asked her to pull her car into
the parking lot so as not to block the drive-through lane. Reese moved her vehicle to the
parking lot, and Morales asked her for the vehicle’s registration, her driver’s license, and
a proof of insurance. Reese looked for the registration in an envelope, and told the
trooper she was unable to find the registration paper, when it was actually on her lap.
{¶6} While waiting for her to find the documents, Morales, standing about
one-and-half-foot away from the vehicle’s window, smelled the odor of alcohol
emanating from inside the vehicle — when asked later at the suppression hearing, he
testified that “I would say it was a strong order, because I’m not poking my head into the
vehicle. I am just standing.” Morales asked Reese if she had been drinking alcohol.
She denied it. Because of the traffic infractions and the strong odor of alcohol, Morales
asked Reese to exit her vehicle for field sobriety tests.
{¶7} Morales, trained to perform field sobriety tests since 2003, first performed
the Horizontal Gaze Nystagmus (“HGN”) test. He noted six out of six possible clues.
There were three clues in each eye — Reese failed to smoothly pursue the stimulus, she
showed distinct nystagmus at maximum deviation, and she exhibited an onset of
nystagmus prior to 45 degrees.
{¶8} Before the Walk-and-Turn test, Trooper Morales asked Reese on more than
one occasion to remove her high heels, which appeared to be at least four inches, but she
declined. She broke away from the starting position once or twice while listening to the
instructions, and began the test before being told to do so. She failed to touch
heel-to-toe at steps two, five, seven, and nine on the first part of the test, and at steps one,
two, five, six, seven, and eight on the second part of the test. In all, she displayed three
of eight possible clues.
{¶9} During the One-Leg-Stand test, Reese swayed from side to side, raised her
arms for balancing for more than six inches, and put her foot down twice, displaying two
out of four possible clues.
{¶10} Based on his observation of the traffic infractions, his interactions with her,
and the field sobriety tests, Trooper Morales determined Reese was impaired and placed
her under arrest for OVI. He transported her to the Linndale Police Department for a
breath alcohol concentration (“BAC”) test, which showed a reading of .169, in excess
of the legal limit.
{¶11} After the suppression hearing, the trial court denied Reese’s motion. Reese
entered a no contest plea, and the remaining charges were nolled. She was convicted of
OVI, her second in six years, and the trial court imposed 180 days of jail time with 170
days suspended, two years of active probation, 90 days of automobile immobilization,
five days of MADD meetings, a $525 fine, and a license suspension with driving
privileges.
{¶12} On appeal, Reese argues the trial court should have granted her motion to
suppress the evidence. An appellate review of a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. We accept the trial court’s findings of fact if they are supported by
competent, credible evidence. State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621,
907 N.E.2d 1254 (8th Dist.), ¶ 22. Once we accept the factual findings as true, however,
“‘we must independently determine, as a matter of law and without deference to the trial
court’s conclusion, whether the trial court met the applicable legal standard.’” Id.,
quoting State v. Lloyd, 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998).
{¶13} Our review of this case reflects that Trooper Morales stopped Reese’s
vehicle for minor traffic infractions and, while investigating her traffic violations,
detected a strong odor of alcohol and decided to conduct field sobriety tests. This court,
in State v. Bennett, 8th Dist. Cuyahoga No. 86962, 2006-Ohio-4274, ¶ 21, summarized
what a police officer could lawfully do at each stage of a traffic stop:
A police officer may effect a traffic stop of any motorist for any
traffic infraction, even if the officer’s true motive is to detect more
extensive criminal conduct. United States v. Mesa (C.A.6 1995), 62 F.3d
159, 162. When conducting the stop of a motor vehicle for a traffic
violation, an officer may detain the vehicle for a time sufficient to
investigate the reason for which the vehicle was initially stopped. State v.
Bolden, Preble App. No. CA2003-03-007, 2004-Ohio-184. Generally, the
duration of the stop is limited to the time necessary to effectuate the
purpose for which the stop was made. Id. This time period includes the
time necessary to run a computer check on the driver’s license, registration
and vehicle plates. See Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct.
1391, 59 L.Ed.2d 660. The detention may continue beyond this time frame,
however, when additional facts are encountered that give rise to a
reasonable, articulable suspicion of criminal activity beyond that which
prompted the initial stop. State v. Beltran, Preble App. No.
CA2004-11-015, 2005 Ohio 4194, at P 16, citing State v. Myers (1990), 63
Ohio App.3d 765, 580 N.E.2d 61. See, also, United States v. Hill (C.A.6
1999), 195 F.3d 258, 264; Mesa, supra.
{¶14} On appeal, Reese does not contest the constitutionality of the trooper’s
stop of her vehicle. As we stated in Bennett, the police may effect a traffic stop for any
traffic infraction. Furthermore, as the Supreme Court of Ohio held in Dayton v.
Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), “[w]here a police officer stops a
vehicle based on probable cause that a traffic violation has occurred or was occurring, the
stop is not unreasonable under the Fourth Amendment to the United States Constitution
even if the officer had some ulterior motive for making the stop, such as a suspicion that
the violator was engaging in more nefarious criminal activity.” Erickson at syllabus,
citing United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993).
{¶15} Here, the officer observed several traffic infractions by Reese: she was
speeding, in his estimate; she failed to use a turn signal to change lanes; and she touched a
marked line at the exit ramp. Under the case law authority, a traffic stop is lawful even
if the traffic violations are minor, or “de minimis.” See, e.g., Strongsville v.
Spoonamore, 8th Dist. Cuyahoga No. 86948, 2006-Ohio-4884, ¶ 12. Therefore, the
trooper’s stop of Reese’s vehicle was lawful, and indeed, Reese does not challenge it on
appeal. Rather, Reese raises three assignments of error, which all relate to what
transpired after her vehicle was stopped.
{¶16} Under the first assignment of error, Reese argues the police officer illegally
expanded the investigative scope of her detention beyond the purpose of the initial
detention by investigating her for OVI without reasonable suspicion that her ability to
drive was impaired.
The Duration of Vehicle Stop and Scope of Detention
{¶17} As we stated in Bennett, 8th Dist. Cuyahoga No. 86962, 2006-Ohio-4274,
the duration of a vehicle stop is “limited to the time necessary to effectuate the purpose
for which the stop was made” and the time period includes the time necessary to run a
computer check on the driver’s license, registration, and vehicle plates. The detention
may continue beyond this time frame, however, “when additional facts are encountered
that give rise to a reasonable, articulable suspicion of criminal activity beyond that which
prompted the initial stop.” See also Spoonamore, supra, at ¶ 16 (“if during the initial
stop the police discover additional articulable facts which give rise to a reasonable
suspicion of criminal activity beyond that which caused the initial stop, the police may
detain the driver for as long as the new suspicion continues.”); State v. Robinette, 80 Ohio
St.3d 234, 685 N.E.2d 762 (1997), paragraph one of the syllabus; State v. Perry, 12th
Dist. Preble No. CA2004-11-016, 2005-Ohio-6041, ¶ 13; State v. Seal, 11th Dist. Lake
No. 2003-L-163, 2004-Ohio-5938, ¶ 21.
{¶18} More specifically, the courts have allowed a police officer to request a
motorist to perform field sobriety tests once the officer has stopped the vehicle for some
minor traffic offense, when “the request is separately justified by a reasonable suspicion
based upon articulable facts that the motorist is intoxicated.” Parma Hts. v. Dedejczyk,
8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, ¶ 29, citing State v. Evans, 127 Ohio
App.3d 56, 62, 711 N.E.2d 761 (11th Dist.1998).
{¶19} In this case, Trooper Morales continued the detention to administer field
sobriety tests after he smelled what he considered to be a “strong” odor of alcohol from
the driver’s window while he stood one and one-half feet from the vehicle’s window.
“Probable cause is not needed before an officer conducts field sobriety tests.
Reasonable suspicion of criminal activity is all that is required to support further
investigation.” Columbus v. Anderson, 74 Ohio App.3d 768, 770, 600 N.E.2d 712 (10th
Dist.1991), citing State v. Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988).
Moreover, to evaluate the reasonableness of the request for field sobriety tests, we
evaluate “the totality of the circumstances, viewed through the eyes of a reasonable and
prudent police officer on the scene who must react to events as they unfold.” Dedejczyk
at ¶ 29, citing State v. Dye, 11th Dist. Portage No. 2001-P-0140, 2002-Ohio-7158, ¶ 18.
{¶20} The Eleventh District, in Evans, supra, enumerated factors that courts may
consider in evaluating 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 (Friday or Saturday night as opposed to, e.g.,
Tuesday morning); (2) the location of the stop (whether near establishments
selling alcohol); (3) any indicia of erratic driving before the stop that may
indicate a lack of coordination (speeding, weaving, unusual braking, etc.);
(4) whether there is a cognizable report that the driver may be intoxicated;
(5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.); (6)
impairments of the suspect’s ability to speak (slurred speech, overly
deliberate speech, etc.); (7) the odor of alcohol coming from the interior of
the car, or, more significantly, on the suspect’s person or breath; (8) the
intensity of that odor, as described by the officer (“very strong,” “strong,”
“moderate,” “slight,” etc.); (9) the suspect’s demeanor (belligerent,
uncooperative, etc.); (10) any actions by the suspect after the stop that might
indicate a lack of coordination (dropping keys, falling over, fumbling for a
wallet, etc.); 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.
Evans at fn. 2. “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. Id.
{¶21} Here, the incident occurred at 2:00 a.m. on a Sunday morning. Reese
passed Trooper Morales’s vehicle on the right and appeared to the trooper to be speeding.
She failed to use a turn signal to change lanes and touched on a marked line at the exit.
She arbitrarily sped up and slowed down when traveling on West 117th Street, and
according to the trooper, followed a vehicle ahead of her too closely when both were
approaching a red light. Once her vehicle was stopped, the trooper detected what he
described as a “strong” odor coming from the vehicle while Reese denied having
consumed any alcohol. Viewing the totality of circumstances through the eyes of a
reasonable and prudent police officer, we believe the trooper reasonably suspected that
Reese was driving while intoxicated and he was justified in extending the scope of the
detention and requesting Reese to perform the field sobriety tests. The first assignment
of error is without merit.
Probable Cause to Arrest
{¶22} Under the second assignment, Reese claims the trooper arrested her
“without probable cause to believe that her ability to drive was noticeability impaired by
the influence of alcohol.”
{¶23} Probable cause does not require a proof beyond reasonable doubt. Rather,
in assessing whether the police had probable cause to arrest for OVI, we must determine
“whether, at the moment of arrest, the police had information sufficient to cause a prudent
person to believe that the suspect was driving under the influence.” Middleburg Hts. v.
Gettings, 8th Dist. Cuyahoga No. 99556, 2013-Ohio-3536, ¶ 26, citing Beck v. Ohio,
379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). “A probable-cause determination is
based on the ‘totality’ of facts and circumstances within a police officer’s knowledge.”
Gettings at ¶ 26, citing State v. Miller, 117 Ohio App.3d 750, 761, 691 N.E.2d 703 (11th
Dist.1997). “While the odor of alcohol, glassy eyes, slurred speech, and other indicia of
alcohol use by a driver are, in and of themselves, insufficient to constitute probable cause
to arrest, they are factors to be considered in determining the existence of probable
cause.” Gettings at ¶ 26, citing Kirtland Hills v. Deir, 11th Dist. Lake No. 2004-L-005,
2005-Ohio-1563, and Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458.
{¶24} Here, the record reflects Trooper Morales had sufficient information to
cause a prudent person to believe Reese was driving while intoxicated: his estimation of
her speeding, two hours past midnight on a Saturday night; various traffic infractions; a
strong odor from the vehicle in spite of her denial of drinking any alcohol; and the clues
exhibited in the field sobriety tests. Based upon these circumstances, we conclude, as
the trial court did, that Trooper Morales had probable cause to arrest Reese for OVI.
The second assignment of error is without merit.
Field Sobriety Tests
{¶25} Under the third assignment of error, Reese claims the results of the field
sobriety tests cannot be considered in determining probable cause to arrest because the
trooper did not administer the HGN, Walk and Turn, and One Leg Stand in substantial
compliance of the NHTSA’s procedures.
{¶26} In order for the results of field sobriety tests to be admissible, the state is not
required to show strict compliance with testing standards. However, the state must
demonstrate that the officer substantially complied with NHTSA standards. Dedejczyk,
8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, at ¶ 42, citing R.C. 4511.19(D)(4)(b).
“The state may demonstrate what the NHTSA standards are through competent
testimony and/or by introducing the applicable portions of the NHTSA manual.” Id. at
¶ 42, citing State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 28.
{¶27} In this case, Trooper Morales testified at the suppression hearing as to his
qualifications and training in field sobriety testing. He also gave detailed testimony
regarding how he conducted each test upon Reese and how she performed on each test.
In addition, a copy of the applicable portions of the NHTSA manual was admitted as an
exhibit.
{¶28} On appeal, despite making a general assertion that the trooper’s
administration of the field sobriety tests had not been in substantial compliance, Reese
does not identify specific areas of lack of substantial compliance. Rather, she claims
that the results of the tests cannot be considered because the sobriety tests were not fully
captured in the trooper’s “dash-cam” video.
{¶29} At the suppression hearing, the dash-cam video of the traffic stop and the
field sobriety tests was played for the trial court. However, the camera failed to capture
a full view of the field sobriety tests. During the HGN test, the video only shows
Trooper Morales. At the suppression hearing, Morales explained that he did not
conduct the HGN test directly in front of the video camera because of safety issues.
Reese does not refer us to any NHTSA regulations that require the police officer to
record the field sobriety tests in a video; nor are we aware of any statutory or case law
authority that would exclude the results unless the administration of the tests is recorded.
{¶30} Reese also claims that the trooper should not have permitted her to perform
the tests in six-inch heels. The record shows that the trooper gave Reese several
opportunities to remove her shoes for the tests, but she chose not to. The impropriety
that Reese now alleges was a result of her own doing, and therefore, she cannot be heard
to complain about it.
{¶31} Reese fails to demonstrate Trooper Morales’s administration of the field
sobriety tests was not in substantial compliance. The third assignment of error is
without merit.
{¶32} The judgment of the Cleveland Municipal Court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the municipal
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR