State v. Napier , 2012 Ohio 394 ( 2012 )

[Cite as State v. Napier, 2012-Ohio-394.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 11CA0006
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BOBBY NAPIER WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. TRC-10-11-09530
DECISION AND JOURNAL ENTRY
Dated: February 6, 2012
CARR, Judge.
{¶1} Appellant, Bobby Napier, appeals the judgment of the Wayne County Municipal
Court which denied his motion to suppress. This Court affirms.
I.
{¶2} On November 6, 2010, Napier was cited by Creston police for a stop sign
violation and two counts of driving while under the influence of alcohol. He pleaded not guilty
to the charges at arraignment.
{¶3} Napier filed a motion to suppress, arguing that the police did not have a
reasonable and articulable suspicion to stop his vehicle and that they did not have probable cause
to arrest him. The trial court held a hearing and subsequently denied the motion.
{¶4} On February 11, 2011, the parties appeared for a change of plea hearing. The stop
sign violation was dismissed, and Napier pleaded no contest to the two counts of driving while
2
under the influence of alcohol. The trial court sentenced him accordingly. Napier filed a timely
appeal in which he raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-
APPELLANT WHEN IT FAILED TO SUPPRESS EVIDENCE OBTAINED AS
A RESULT OF AN ILLEGAL SEIZURE IN VIOLATION OF THE
DEFENDANT-APPELLANT’S [RIGHTS UNDER THE] FOURTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE, SECTION FOURTEEN OF THE
OHIO CONSTITUTION.
{¶5} Napier argues that the trial court erred by denying his motion to suppress. This
Court disagrees.
{¶6} A motion to suppress presents a mixed question of law and fact:
When considering a motion to suppress, the trial court assumes the role of trier of
fact and is therefore in the best position to resolve factual questions and evaluate
the credibility of witnesses. Consequently, an appellate court must accept the trial
court’s findings of fact if they are supported by competent, credible evidence.
Accepting these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court, whether the facts
satisfy the applicable legal standard. (Internal citations omitted.)
State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, at ¶ 8.
Automobile Stop
{¶7} Napier first argues that the trial court erred by denying his motion to suppress
because the police had no reasonable and articulable suspicion to stop his vehicle. This Court
disagrees.
{¶8} The United States Supreme Court has held:
The Fourth Amendment [to the United States Constitution] guarantees the right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. Temporary detention of individuals during
the stop of an automobile by the police, even if only for a brief period and for a
limited purpose, constitutes a seizure of persons within the meaning of this
3
provision. An automobile stop is thus subject to the constitutional imperative that
it not be unreasonable under the circumstances. (Internal quotations and citations
omitted.)
Whren v. United States, 517 U.S. 806, 809-10 (1996).
{¶9} Moreover,
[t]he essential purpose of the proscriptions in the Fourth Amendment is to impose
a standard of reasonableness upon the exercise of discretion by government
officials, including law enforcement agents, in order to safeguard the privacy and
security of individuals against arbitrary invasions[.] Thus, the permissibility of a
particular law enforcement practice is judged by balancing its intrusion on the
individual’s Fourth Amendment interests against the promotion of legitimate
governmental interests. (Internal quotations and citations omitted.)
Delaware v. Prouse, 440 U.S. 648, 653-54 (1979).
{¶10} The State argues that the police were justified in making an investigative stop in
this case. The Ohio Supreme Court has held:
In order to warrant a brief investigatory stop pursuant to Terry [v. Ohio, 392 U.S.
1 (1968)], the police officer involved must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion. Such an investigatory stop must be viewed in
light of the totality of the surrounding circumstances presented to the police
officer. The standard for reviewing such police conduct is an objective one:
would the facts available to the officer at the moment of the seizure or the search
warrant a man of reasonable caution in the belief that the action taken was
appropriate? That is, an investigatory stop must be justified by some objective
manifestation that the person stopped is, or is about to be, engaged in criminal
activity. (Internal quotations and citations omitted.)
State v. Williams, 51 Ohio St. 3d 58, 60-61 (1990).
A violation of a traffic law constitutes the requisite criminal activity. State v. Hoder, 9th Dist.
No. 03CA0042, 2004-Ohio-3083, at ¶ 8.
{¶11} The Williams court further explained:
Terry stands for the proposition that a police officer may in appropriate
circumstances and in an appropriate manner approach a person for purposes of
investigating possibly criminal behavior even though there is no probable cause to
make an arrest. The Fourth Amendment does not require a policeman who lacks
the precise level of information necessary for probable cause to arrest to simply
4
shrug his shoulders and allow a crime to occur or a criminal to escape. On the
contrary, Terry recognizes that it may be the essence of good police work to adopt
an intermediate response. A brief stop of a suspicious individual, in order to
determine his identity or to maintain the status quo momentarily while obtaining
more information, may be most reasonable in light of the facts known to the
officer at the time. (Internal quotations and citations omitted.)
Williams, 51 Ohio St. 3d at 60.
{¶12} In this case, Sergeant Edward Hamilton of the Creston Police Department testified
that at approximately 8:00 p.m. on November 6, 2010, while on duty in his police cruiser, he
observed a blue pickup truck “roll[] through a stop sign” and stop in the middle of the
intersection. He testified that the truck backed up instead of continuing through the intersection,
which allowed the officer to drive through the intersection. Sgt. Hamilton testified that he
watched the truck through his rear view mirror and saw it turn left, run off the roadway into
some gravel, and nearly hit some mailboxes along the side of the road. When the truck passed
his cruiser, the officer followed it for a short distance and initiated a traffic stop at a location
which would not disrupt traffic or cause a concern for his safety. After approaching the truck,
the officer obtained the driver’s license and registration. Sgt. Hamilton identified Napier as the
driver of the truck.
{¶13} Napier testified that he stopped at the stop sign, activated his turn signal, and
turned left without any problems. He testified that he never saw any other vehicles at the
intersection and was not aware of the presence of the police cruiser until he saw the oscillating
lights in his rear view mirror.
{¶14} The trial court found the officer’s testimony more credible than Napier’s
testimony. This Court must accept the trial court’s findings of fact if they are supported by
competent, credible evidence. Burnside at ¶ 8. Here, there was competent, credible evidence to
establish that Napier failed to obey a traffic signal when he failed to stop at a stop sign before
5
entering the intersection. Because Sgt. Hamilton observed Napier violate a traffic law, he had a
reasonable and articulable suspicion of criminal activity and the officer was justified in
conducting a brief investigatory stop of the vehicle.
Probable Cause for Arrest
{¶15} Napier argues that the police did not have probable cause to arrest him for driving
while under the influence of alcohol. This Court disagrees.
{¶16} Before an officer may effectuate a warrantless arrest, he must have probable cause
that the suspect is engaging in criminal activity. State v. McGinty, 9th Dist. No. 08CA0039-M,
2009-Ohio-994, at ¶ 11. An officer has probable cause to arrest a person for driving under the
influence of alcohol “if, at the moment of the arrest, the totality of the facts and circumstances
within the officer’s knowledge and of which he had reasonably trustworthy information were
sufficient to warrant a prudent person in believing that the suspect had violated R.C. 4511.19.”
State v. Kurjian, 9th Dist. No. 06CA0010-M, 2006-Ohio-6669, at ¶ 17, quoting In re V.S., 9th
Dist. No. 22632, 2005-Ohio-6324, at ¶ 13. The results of properly administered field sobriety
tests may warrant probable cause to arrest. Significantly, a police officer does not need probable
cause to conduct a field sobriety test; rather, he must simply have a reasonable suspicion of
criminal activity. State v. Sunday, 9th Dist. No. 22917, 2006-Ohio-2984, at ¶ 30, citing Akron v.
Tomko, 9th Dist. No. 19253, 1999 WL 1037762 (Nov. 3, 1999). “[R]easonable suspicion exists
if an officer can point to specific and articulable facts indicating that a driver may be committing
a criminal act.” State v. Osburn, 9th Dist. No. 07CA0054, 2008-Ohio-3051, at ¶ 9, quoting
Wadsworth v. Engler, 9th Dist. No. 2844-M, 1999 WL 1215151 (Dec. 15, 1999).
{¶17} This Court has stated that the totality of the facts and circumstances can support
probable cause for arrest even in the absence of the administration of field sobriety tests.
6
McGinty at ¶ 20; see, also, Kurjian at ¶ 18, citing State v. Homan, 89 Ohio St. 3d 421, 427
(2000). In fact, we have held that “the totality of the facts and circumstances can support a
finding of probable cause to arrest even when the results of the field sobriety tests must be
excluded for lack of compliance to standardized procedures.” Sunday at ¶ 32, citing Akron v.
Buchwald, 9th Dist. No. 21433, 2003-Ohio-5044, at ¶ 14.
{¶18} Sgt. Hamilton testified that, as soon as he approached Napier’s truck, he noticed a
strong smell of an alcoholic beverage coming from Napier. The officer testified that Napier’s
eyes were glassy and his speech was slightly slurred. Sgt. Hamilton testified that Napier
informed him that he had had two or three beers that day, while Napier himself testified that he
told the officer he had had three or four beers. The officer conceded that he did not notice that
Napier had any problems when he provided the documentation requested during the stop or when
he exited the truck.
{¶19} At the scene, Sgt. Hamilton administered three standard field sobriety tests to
Napier. The trial court concluded that the officer’s administration of the horizontal gaze
nystagmus test was not in substantial compliance with applicable standards, and it did not rely on
the results of that test in making its determination as to probable cause. The State did not
challenge this conclusion by way of a cross-assignment of error, and this Court does not here
review the administration of this particular test or otherwise consider it in our analysis.
{¶20} Sgt. Hamilton testified that he also administered the one-leg stand test and the
walk and turn test to Napier and that he noted several clues indicating intoxication. The officer
testified that, before administering these tests, he asked Napier whether he had any health
conditions which would prevent him from performing them. Napier told him that he had no such
problems. The officer testified that Napier failed to complete either test and only then informed
7
the officer that he had arthritis in his knees which prevented him from remaining steady on one
leg or walking a straight line. Napier testified at the hearing that he has had arthritis in his knees
for ten years.
{¶21} Upon cross-examination, Sgt. Hamilton admitted that there were some
typographical errors in his incident report and the impaired driver report. He admitted that he
did not complete the impaired driver report during the administration of the field sobriety tests as
required, but rather three or four hours later. He admitted that his incident report noted that
Napier put his leg down during the one-leg stand twice, while his impaired driver report noted
that that happened only once. Finally, the officer admitted that his incident report failed to note
that Napier had glassy eyes and slurred speech at the scene, notwithstanding the officer’s training
and understanding regarding the importance of complete reporting.
{¶22} Napier focuses his argument on an assertion that the officer’s testimony was not
credible because of the inconsistencies and deficiencies in his reports and the improper
administration of one of the field sobriety tests. The trial court, however, found the officer to be
credible. The trial court remains in the best position to evaluate the officer’s credibility, and we
must accept the trial court’s findings if they are supported by competent, credible evidence.
Burnside at ¶ 8. While it is certainly the better practice to memorialize precisely every detail of
an incident in a report, in this case, the trial court did not find that the omission of certain details
or the presence of typographical errors destroyed the officer’s credibility. Sgt. Hamilton’s report
noted the strong odor of alcohol coming from Napier at the scene. Both his incident report and
impaired driver report noted Napier’s failure to successfully perform the one-leg stand,
regardless of whether he dropped his leg once or twice. Under the circumstances, there was
competent, credible evidence to indicate that Napier was intoxicated.
8
{¶23} There was competent, credible evidence to demonstrate that Napier was unable to
maintain his balance or walk a straight line at the scene. He offered the excuse that arthritis
prevented him from performing only after he failed the tests and after he had assured the officer
that he had no medical conditions which would interfere with his ability to perform. Even were
we to disregard the results of the field sobriety tests, the totality of the facts and circumstances
available to Sgt. Hamilton “were sufficient to warrant a prudent person in believing that the
suspect had violated R.C. 4511.19.” Sunday at ¶ 33; see, also, In re V.S. at ¶ 13. Those facts and
circumstances included Napier’s failure to stop at the stop sign, his slow reaction time evidenced
by his stopping his vehicle in the middle of the intersection, his failure to control his vehicle
while turning resulting in his truck’s leaving the roadway and almost hitting some mailboxes, the
immediate strong smell of alcohol upon the officer’s approach, Napier’s glassy eyes and slurred
speech, and Napier’s admission to having had three or four beers. Accordingly, the totality of
the facts and circumstances supports the trial court’s finding of probable cause to arrest Napier
for driving while under the influence of alcohol.
{¶24} Napier’s assignment of error is overruled.
III.
{¶25} Napier’s sole assignment of error is overruled. The judgment of the Wayne
County Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
9
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
DICKINSON, J.
CONCURS
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY
APPEARANCES:
NORMAN R. “BING” MILLER, JR., Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and LATECIA E. WILES, Assistant Prosecuting
Attorney, for Appellee.