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City of Cleveland v. Kalish

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 22, 2018

CITY OF CLEVELAND PLAINTIFF-APPELLANT
v.
TODD C. KALISH DEFENDANT-APPELLEE

         Criminal Appeal from the Cleveland Municipal Court Case No. 2016 TRC 033340

          Barbara Langhenry Director of Law, Kimberly G. Barnett-Mills Chief Prosecutor Marco A. Tanudra ATTORNEYS FOR APPELLANT

          Leslie Johns Hector, G. Martinez ATTORNEYS FOR APPELLEE

          BEFORE: Keough, P.J., Celebrezze, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, P.J.

         {¶1} The city of Cleveland (the "city") appeals from the judgment of the Cleveland Municipal Court granting the motion to suppress of defendant-appellee Todd Kalish ("Kalish"). For the reasons that follow, we reverse and remand.

         I. Facts and Procedural Background

         {¶2} Kalish was charged with violations of R.C. 4511.19(A), operating a motor vehicle while under the influence of alcohol, and R.C. 4511.33, driving in marked lanes. He pleaded not guilty and filed a motion to suppress the evidence against him, arguing that the arresting officer did not have a reasonable suspicion to make the initial stop of his vehicle, lacked a reasonable and articulable suspicion sufficient to extend the stop to administer field sobriety tests, did not administer the tests in compliance with the National Highway Traffic Safety Administration guidelines, and lacked probable cause to arrest him without a warrant.

         {¶3} The trial court subsequently held a hearing on the suppression motion. Ohio State Patrol Officer Rick Suda testified that he was a recent graduate of the Ohio State Highway Patrol academy and that although during his training he had observed stops of motorists suspected of driving while under the influence of alcohol or drugs, this was the first stop he initiated. Suda testified that on October 14, 2016, at approximately 11:45 p.m., as Kalish was operating his vehicle westbound on I-90, he observed Kalish's vehicle twice cross over the white lane markers and then back into his own lane again without using any turn signals. Suda testified that traffic was heavy at the time because a Cleveland Indians game had recently ended, but Kalish was not speeding. Suda said that when he activated his lights to initiate a traffic stop, Kalish pulled over and stopped his vehicle without any problem.

         {¶4} Suda and Ohio Patrol Officer Anthony Hosey, who was riding with Suda, approached the driver's side of Kalish's vehicle. Only Kalish was in the vehicle; there were no passengers. Suda testified that he detected an odor of alcohol coming from the vehicle. He advised Kalish of the reason for the stop and then asked Kalish for his driver's license and registration. Suda acknowledged that his report contained no observation that Kalish had any difficulty in providing his license and registration to him.

         {¶5} Suda testified that he observed that Kalish's face was flushed and his eyes were bloodshot, so he asked Kalish to exit his vehicle to perform field sobriety tests. On cross-examination, Suda admitted that he did not know if Kalish's face is normally flushed, and that a flushed face is not necessarily indicative of alcohol consumption. He further admitted that he did not know if Kalish's eyes are normally bloodshot and that he did not ask Kalish how much sleep he had had the night before.

         {¶6} Suda admitted that Kalish had no difficulty exiting his vehicle nor in walking back to the driver's side door of the patrol car. Suda also acknowledged that he did not ask Kalish any questions about his drinking before he asked him to exit his vehicle. He said that as Kalish was walking to the patrol car, he asked him if he had had any alcohol that night, and Kalish responded, "yeah, at the Indians game." Suda admitted that he did not ask Kalish how many drinks he had consumed, and Kalish did not tell him. Suda then advised Kalish that he was "going to run a few tests."

         {¶7} Officer Hosey testified that he then read Kalish his Miranda rights. Hosey testified that Kalish responded appropriately to the questions the officers asked him, and that he did not detect any problems with Kalish's speech. After Suda administered the field sobriety tests, Kalish was arrested for operating a vehicle while under the influence of alcohol.

         {¶8} Dashcam video from Suda's cruiser showing him following Kalish's vehicle and administering the field sobriety tests was shown during the suppression hearing. Subsequently, the court announced its ruling from the bench. After noting that it had carefully reviewed the dashcam video again after the hearing, the trial court granted the motion to suppress. The court found that the initial traffic stop of Kalish's vehicle was supported by traffic violations demonstrated on the video. The video showed that Kalish did not use his turn signal to change lanes, and crossed over lane lines several times. Accordingly, the court found that Officer Suda had probable cause to initiate a traffic stop.

         {¶9} Nevertheless, the court found that Officer Suda did not have a reasonable suspicion supported by articulable facts sufficient to extend the stop to administer field sobriety tests. The court found that although it was clear that Kalish was trying to pass other vehicles before he was stopped, he was moving with the flow of traffic and not speeding. Further, the court found that when Officer Suda turned his lights on to initiate the stop, Kalish promptly stopped without any difficulty in maneuvering his vehicle to the side of the road. The court found that Kalish did not demonstrate any fumbling in retrieving his driver's license and registration, and had no difficulty exiting his vehicle or walking toward the patrol car. The court further found that Kalish's speech was not slurred, he was not slow to respond to the officer's questions, and he did not provide incorrect information or change his answers to the questions asked of him.

         {¶10} With respect to the odor of alcohol detected by Suda, the court found that Suda testified that the odor came from within the vehicle, not Kalish, and that the officer did not detect any other odors, such as alcohol on Kalish's breath or marijuana. The court also noted that other than the odor of alcohol, there were no other indicia of intoxication, such as containers of alcohol in the car, soiled clothing, slurred speech, or fumbling by Kalish.

         {¶11} The court further found that Kalish did not demonstrate any behavior indicative of intoxication when he got out of his vehicle. Specifically, the court found that he was not angry, he did not leave his car door open, he did not leave the vehicle in gear, and he did not lean against the vehicle or keep his hands on the vehicle to help with balance - he simply got out of his car and walked back to the patrol car.

         {¶12} With respect to Suda's observation that Kalish's flushed face was indicative of intoxication, the judge noted that she had observed that Kalish's face was flushed during the suppression hearing, and that it was flushed again as she announced her ruling. She found that "his face is flushed the entire time" and "is his normal skin tone, " so his flushed face was not indicative of intoxication on the night he was stopped. With respect to Kalish's bloodshot eyes, the court found that before administering the field sobriety tests, Suda did ...


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