Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court T.C. NO. 16-CR-911.
MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Attorney for Plaintiff-Appellant
L. BOWLING, Atty. Reg. No. 0084442, Attorney for
1} The State of Ohio appeals from a judgment of the
Montgomery County Court of Common Pleas, which granted
Taniece Nelson's motion to suppress evidence on the basis
that the police officer lacked reasonable, articulable
suspicion to conduct field sobriety tests. For the following
reasons, the judgment of the trial court will be affirmed.
2} The traffic stop in question occurred on March
19, 2016. On March 29, 2016, Nelson was indicted on two
counts of operating a vehicle under the influence (R.C.
4511.19(A)(1) and (G)(1)(d), three or four priors within 6
years), felonies of the fourth degree. She filed a motion to
suppress the field sobriety tests and chemical tests, as well
as the officer's observations during those tests. The
trial court conducted a hearing on the motion and granted the
motion to suppress.
3} The State raises one assignment of error on
appeal, arguing that the police officer had reasonable,
articulable suspicion to conduct field sobriety tests after
Nelson's traffic stop, and that the trial court therefore
erred in suppressing the evidence against Nelson.
4} In deciding a motion to suppress, the trial court
assumes the role of trier of facts and is in the best
position to resolve questions of fact and evaluate the
credibility of witnesses. State v. Pence, 2d Dist.
Clark No. 2013 CA 109, 2014-Ohio-5072, ¶ 7, citing
State v. Hopfer, 112 Ohio App.3d 521, 548, 679
N.E.2d 321 (2d Dist.1996). The court of appeals must accept
the trial court's findings of fact if they are supported
by competent, credible evidence in the record. State v.
Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733,
¶ 8, citing State v. Retherford, 93 Ohio App.3d
586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as
true, the appellate court must then determine as a matter of
law, without deference to the trial court's legal
conclusion, whether the applicable legal standard is
5} 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, 745 N.E.2d 1036 (2001). A police officer may stop
and detain a motorist when he or she has a reasonable,
articulable suspicion that the motorist has committed, is
committing, or is about to commit any criminal offense,
including a traffic offense, without running afoul of
constitutional protections. State v. Mays, 119 Ohio
St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8;
State v. Stewart, 2d Dist. Montgomery No. 19961,
2004-Ohio-1319, ¶ 13, citing Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We determine
the existence of reasonable, articulable suspicion 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. Gladman, 2d
Dist. Clark No. 2013 CA 99, 2014-Ohio-2554, ¶ 14,
quoting State v. Heard, 2d Dist. Montgomery No.
19323, 2003-Ohio-1047, ¶ 14.
6} In determining whether police intrusion upon a
citizen's protected liberty interests is reasonable, both
the extent of the intrusion and the basis for suspicion must
be considered. In other words, the greater the intrusion, the
greater the basis for suspicion must be. State v.
Spillers, 2d Dist. Darke No. 1504, 2000 WL 299550, * 3
(Mar. 24, 2000), citing Xenia v. Beatty, 2d Dist.
Greene No. 93-CA-28, 1994 WL 124853 (April 13, 1994) and
Terry. Thus, having reasonable, articulable
suspicion of a traffic violation does not, in itself, justify
the administration of field sobriety tests. Careful attention
must be paid to each stage of the detention to ensure that
the extent of the intrusion is warranted by the officer's
reasonable, articulable suspicion at that point.
Spillers at * 3; State v. Swartz, 2d Dist.
Miami No. 2008 CA 31, 2009-Ohio-902, ¶ 11.
7} The only witness at the hearing on the motion to
suppress was Officer Matthew Burian of the Kettering Police
Department, who was called by the State. Burian had been a
patrol officer for almost two years at the time of the
8} Officer Burian testified that, on Saturday, March
19, 2016, at around 9:30 p.m., he observed Nelson driving
northbound in the "right through lane" on South
Dixie Drive in Kettering. As Burian followed the vehicle, he
witnessed the driver's side tires drift to the left
twice, crossing over the painted line markings on the left
side of the lane by two tire widths each time. After the
second time, the car "drifted" back into its lane
and then to the right, nearly striking the right curb. There
was no line on the right side of the lane. Burian initiated a
traffic stop. Nelson pulled her car to the side of the road
9} Officer Burian approached Nelson's vehicle
and requested her driver's license and insurance
information. Nelson did not exhibit any problems with
dexterity as she looked through her purse. Nelson informed
Burian that she did not have her license with her and did not
have an insurance card because her vehicle was new. Burian
ran the information provided verbally by Nelson through his
computer and discovered that Nelson did not have driving
privileges and was under numerous suspensions.
10} When Burian returned to Nelson's vehicle, he
noticed that Nelson's eyes were "bloodshot" and
"somewhat watery"; he also detected a
"moderate odor of an alcoholic beverage being emitted
from her inside the vehicle." Burian testified that the
odor was not strong, but that it "seemed to intensify as
[Nelson] spoke." When Burian asked Nelson if she had
been drinking, she stated that she "had been drinking
last night." Burian tried to clarify whether Nelson
meant the previous night (Friday), or "just earlier
sometime on Saturday"; Nelson did not clarify her
response and, according to Burian, "indicated] some