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State of Ohio v. David Santiago

October 14, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DAVID SANTIAGO, JR. DEFENDANT-APPELLANT



T.C. NO. 10CR119 (Criminal appeal from Common Pleas Court)

The opinion of the court was delivered by: Froelich, J.

Cite as State v. Santiago,

OPINION

{¶1} David Santiago, Jr. was found guilty on his no contest plea of trafficking in drugs, after the trial court overruled his motions to suppress evidence and to withdraw his plea. Santiago appeals from his conviction.

I

{¶2} In the early morning hours of December 6, 2009, Santiago was stopped in Troy after an officer saw him driving left of center. Based on his interaction with the police officer, Jeff Kunkleman, Santiago was asked to perform field sobriety tests, all of which he failed. He then submitted to a breath test, which showed a blood alcohol level of .147. He was arrested for driving under the influence.

{¶3} After placing Santiago in the cruiser, Kunkleman inventoried Santiago's car before having it towed. Kunkleman opened Santiago's glove box using keys that Santiago had thrown on the dash, and he found crack cocaine inside. *fn1 After he was informed of his rights, Santiago was interviewed by Kunkleman and stated "the crack was his" and that "he had gotten the crack *** to try to make a little extra money for the holidays." Santiago denied that he used crack or regularly sold it.

{¶4} Santiago was indicted for trafficking in drugs, in violation of R.C. 2925.03(A)(2) (C)(4)(e), and he pled not guilty. He filed a motion to suppress all evidence against him on the grounds that his detention and arrest had been illegal.

After conducting a hearing, the trial court overruled his motion to suppress. Santiago then changed his plea to no contest and was found guilty. One day after entering his plea, however, he contacted his attorney about withdrawing his plea. When this matter was raised with the court at the sentencing hearing several weeks later, the court refused to allow Santiago to withdraw his plea, concluding that he had "simply had a change of heart and [was] attempting to delay the proceedings."

{¶5} Santiago was sentenced to three years in prison, his operator's license was suspended, and he was ordered to pay restitution.

{¶6} Santiago appeals from his conviction, raising five assignments of error.

II

{¶7} Santiago's first assignment of error states:

{¶8} "THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS WHEN THE OFFICER LACKED REASONABLE, ARTICULABLE SUSPICION TO CONDUCT FIELD SOBRIETY TESTING AND PROLONGED THE STOP BEYOND THE TIME PERIOD NECESSARY TO INVESTIGATE ANY SUSPICION OF A MINOR TRAFFIC OFFENSE."

{¶9} Santiago claims that Officer Kunkleman did not have a reasonable articulable suspicion of illegal activity justifying the length of his detention, although he seems to concede that his traffic violation justified the stop. In other words, he appears to argue that there was no reasonable articulable suspicion justifying the field sobriety tests.

{¶10} "[A] police officer in a marked cruiser may stop a vehicle for any traffic violation no matter how slight, for the purpose of issuing a citation for the violation." State v. Spillers (Mar. 24, 2000), Darke App. No. 1504. Santiago does not dispute that he committed a traffic violation; he was properly stopped for the purpose of issuing a citation.

{¶11} However, the traffic violation did not necessarily give the officer the right to subject Santiago to the further intrusion represented by the administration of field sobriety tests; the officer had to have a reasonable articulable suspicion that Santiago was driving the vehicle while under the influence to justify the administration of field sobriety tests. Id.; State v. Hido, Clark App. No. 10 CA 46, 2011-Ohio-2560, ¶9.

{¶12} In the cases upon which Santiago relies, we have held that an odor of alcohol, coupled with a de minimus traffic violation, glassy or bloodshot eyes, and an admission to having consumed one or two beers, was insufficient to create a reasonable articulable suspicion of driving under the influence and therefore to justify further detention in order to conduct field sobriety tests. Spillers, supra; State v. Dixon (Dec. 1, 2000), Greene App. No. 2000-CA-30. See, also, State v. Swartz, Miami App. No. 2008CA31, 2009-Ohio-902. This court has held, however, that a strong odor of an alcoholic beverage, without other significant indicia of intoxication, may be sufficient to provide an officer with reasonable suspicion of driving under the influence. See State v. Marshall, Clark App. No. 2001CA35, 2001-Ohio-7081 (holding that "strong" odor of alcohol, coupled with high speed and red eyes, created reasonable suspicion justifying field sobriety tests); State v. Schott (May 16, 1997), Darke App. No. 1415 (holding that a strong odor of alcohol alone can create reasonable, articulable suspicion of intoxication adequate to require an individual to submit to field sobriety tests).

{¶13} Whether an officer had reasonable articulable suspicion to administer field sobriety tests is a "very fact-intensive" determination. State v. Wells, Montgomery App. No. 20798, 2005-Ohio-5008, ¶9. We determine the existence of reasonable suspicion of criminal activity by evaluating the totality of the circumstances, considering those circumstances "through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold." State v. Heard, Montgomery App. No. 19323, 2003-Ohio-1047, ¶14, quoting State v. Andrews (1991), 57 Ohio St.3d 86, 87-88.

{¶14} At the suppression hearing, Officer Kunkleman testified that he observed Santiago "driving left of center, driving down the middle of the roadway" in the early morning hours of December 6, 2009; there were two passengers in the car.

Kunkleman followed the car through several turns in a residential area, but did not observe any additional traffic violations. The car pulled over twice, but no one got out, a circumstance that Kunkleman found "suspicious." When one person did get out of the car and walk between houses, Kunkleman decided to initiate contact with the driver (Santiago). Kunkleman testified that Santiago's eyes were "tired" and "glassy" and that an "odor of alcohol" was coming from the vehicle. While Santiago was in the car, Kunkleman could not determine whether the odor was coming from Santiago or from his passenger. Santiago denied that he had been drinking, but Kunkleman observed a bottle of gin in the back seat; the bottle was half empty but capped, and the passenger claimed ownership of the bottle of gin. Santiago attempted to put his keys back in the ignition as if to start the car while talking with Kunkleman, and he argued with Kunkleman about getting out of the car, although he eventually did so. When Santiago stepped out of the vehicle at Kunkleman's request, Kunkleman determined that he (Kunkleman) could "smell alcohol on, an alcoholic beverage on his breath now, or the odor of an alcoholic beverage" on Santiago.

{¶15} The odor of an alcoholic beverage emanating from Santiago's vehicle, the bottle of alcohol visible within the vehicle, Santiago's tired and glassy eyes, his traffic violation and suspicious behavior in pulling off the road two times, and his somewhat uncooperative attitude toward Officer Kunkleman justified further investigation. Moreover, when Santiago exited the vehicle, Kunkleman was able to determine that he (Santiago) - independent of the car or someone else in the car - smelled of an alcoholic beverage. Under the totality of the circumstances, Officer Kunkleman had a reasonable articulable suspicion that Santiago was driving under the influence, which justified his further detention for field sobriety tests.

{¶16} Other courts have similarly held that certain traffic violations, coupled with glassy eyes, an odor of alcohol, and open or partially consumed alcohol inside a vehicle created a reasonable articulable suspicion justifying further investigation. See State v. Purtee, Logan App. No. 8-04-10, 2006-Ohio-6337; Strongsville v. Minnillo, Cuyahoga App. No. 80948, 2003-Ohio-162.

{¶17} The trial court did not err in refusing to suppress the results of the field sobriety tests or the breath test, the items found in the vehicle, or Santiago's subsequent statements to the police on the ground that his detention was unlawful.

{¶18} The first assignment of error is overruled.

III

{¶19} Santiago's second assignment of error states:

{¶20} "THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS BECAUSE THE OFFICER DID NOT HAVE PROBABLE CAUSE TO SEIZE APPELLANT AFTER APPELLANT INITIALLY REFUSED TO ENGAGE IN FIELD SOBRIETY TESTING."

{¶21} Santiago argues that he was seized by Officer Kunkleman before any field sobriety tests had been conducted, that Kunkleman did not yet have probable cause to arrest him at that point in their interaction, and thus that he was unlawfully detained for the field sobriety tests. Santiago's argument refers to the undisputed fact that Officer Kunkleman "warned him" and "told him [Santiago] to stop" when Santiago attempted to place the key in the ignition of the car after being asked to exit his car for field sobriety tests. Santiago argues that a reasonable person would not have felt free to leave after this point.

{¶22} "An arrest is a substantial intrusion upon the arrestee's protected liberty interests, and therefore requires the full measure of probable cause to satisfy the Fourth Amendment to the United States Constitution. A brief, investigative stop is far less intrusive, and requires a correspondingly smaller quantum of probable cause for its justification, described as reasonable and articulable suspicion. The administration of field sobriety tests is intermediate between these two in terms of the intrusion it represents upon the subject's protected liberty interest. See State v. Smethurst (February 13, 1995), Clark App. No. 94-CA-24, and [Spillers, supra]. The imposition upon the subject's time is apt to be not much greater than the imposition represented by the typical investigative stop, but the indignity inflicted upon the subject's person, while far less than the indignity represented by an arrest, is greater than any indignity inflicted by the typical investigative stop." State v. Kissinger, Montgomery App. No. 23636, 2010-Ohio-2840, ¶240. Nonetheless, an officer's decision to conduct field sobriety tests need only be justified by a reasonable articulable suspicion. Id. at ¶26. See, also, Columbus v. Shepherd, Franklin App. No. 10AP-483, 2011-Ohio-3302, ¶23; State v. Trevarthen, Lake App. No. 2010-L-046, 2011-Ohio-1013, ¶15.

{¶23} Santiago's argument that he was unlawfully detained because Officer Kunkleman seized him without probable cause before conducting the field sobriety tests is without merit. As we discussed under the first assignment of error, Kunkleman had a reasonable articulable suspicion that justified further investigation, including the field sobriety tests; he did not need probable cause. The trial court did not err in overruling Santiago's motion to suppress on the basis that he had been "seized" without probable cause.

{¶24} The second assignment of error is overruled. IV

{¶25} Santiago's third, fourth, and fifth assignments of error relate to his plea.

{ΒΆ26} "THE TRIAL COURT ERRED IN ACCEPTING APPELLANT'S CHANGE OF PLEA WHEN APPELLANT INDICATED HIS DISSATISFACTION WITH THE ADVICE, COUNSEL AND COMPETENCE OF HIS APPOINTED ATTORNEY AND THE TRIAL COURT FAILED TO MAKE ANY INQUIRY INTO THE ...


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