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State v. Nelson

Court of Appeals of Ohio, Second District, Montgomery

May 19, 2017

STATE OF OHIO, Plaintiff-Appellant
v.
TANIECE L. NELSON, Defendant-Appellee

         Criminal 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

          KATE L. BOWLING, Atty. Reg. No. 0084442, Attorney for Defendant-Appellee

          OPINION

          FROELICH, J.

         {¶ 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 satisfied. Id.

         {¶ 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 hearing.

         {¶ 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 without incident.

         {¶ 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 ...


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