State v. Delong , 2018 Ohio 5262 ( 2018 )

[Cite as State v. Delong, 2018-Ohio-5262.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 18CA011306
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTHONY T. DELONG ELYRIA MUNICIPAL COURT
COUNTY OF LORAIN, OHIO
Appellant CASE No. 2017-TRC-07502
DECISION AND JOURNAL ENTRY
Dated: December 28, 2018
HENSAL, Judge.
{¶1} Anthony Delong appeals from the judgments of the Elyria Municipal Court that
denied his motion to suppress and convicted him of operating a motor vehicle under the
influence of alcohol. This Court affirms.
I.
{¶2} While on a smoking break, an employee of a Sheetz gas station observed a
vehicle travel off of the roadway and onto the sidewalk and grassy area near the Sheetz entrance.
The driver, Mr. Delong, then maneuvered his vehicle off of the sidewalk and into the Sheetz
parking lot and parked. The Sheetz employee flagged down a nearby police officer, Sergeant
Gorski. The Sheetz employee told Sergeant Gorski what she had observed, and asked him to
investigate to see whether anyone was hurt or needed assistance.
{¶3} Sergeant Gorski approached Mr. Delong’s vehicle and knocked on the window.
Mr. Delong opened his door, put his feet outside of the door, and began speaking with Sergeant
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Gorski. Sergeant Gorski “immediately noticed the strong order of alcoholic beverage coming
from [Mr. Delong’s] breath.” Sergeant Gorski also noticed that Mr. Delong’s “eyes were very,
very red, uncharacteristically red, and [that] his speech was very slurred.” He then asked Mr.
Delong to step out of the vehicle and performed a horizontal nystagmus test (“HGN test”), which
Mr. Delong failed. After Mr. Delong failed the HGN test, Sergeant Gorski asked him to perform
a walk-and-turn test, as well as a one-leg stand test. Mr. Delong, however, indicated that he had
Multiple Sclerosis and could not perform those tests. Sergeant Gorski then arrested Mr. Delong
and transported him to the police station where he administered a breathalyzer test, which
indicated that Mr. Delong had a blood alcohol content of .086.
{¶4} Mr. Delong was subsequently charged with two counts of operating a motor
vehicle under the influence of alcohol, to which he pleaded not guilty. Mr. Delong moved to
suppress the evidence obtained during the warrantless search, including Sergeant Gorski’s
observations and opinions regarding the presence of alcohol in his blood, breath, and urine, as
well as any statements he (Mr. Delong) made. In support of his motion, Mr. Delong argued the
Sergeant Gorski lacked reasonable suspicion to detain him, and that there was no probable cause
to arrest him for an OVI.
{¶5} The trial court held a hearing on the matter wherein the State presented testimony
from the Sheetz employee and Sergeant Gorski. The State also played surveillance footage taken
of the Sheetz parking lot that depicted the events in question. The trial court ultimately denied
Mr. Delong’s motion, and he changed his plea to no contest. The trial court dismissed one of the
OVI counts and found Mr. Delong guilty of the other count under Revised Code Section
4511.19(A)(1)(a). Mr. Delong has appealed, raising two assignments of error for our review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO
SUPPRESS WHERE THERE WAS NO REASONABLE SUSPICION TO
DETAIN APPELLANT AND INVESTIGATE HIM FOR OVI.
{¶6} In his first assignment of error, Mr. Delong argues that the trial court erred by
denying his motion to suppress because Sergeant Gorski lacked reasonable suspicion to conduct
the initial stop. This Court disagrees.
{¶7} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “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.” Id., citing State v. Mills, 62 Ohio
St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if
they are supported by competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d
19, 20 (1982). “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.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 710 (4th
Dist.1997). This Court, therefore, grants deference to the trial court’s findings of fact, but
conducts a de novo review of whether the trial court applied the appropriate legal standard to
those facts. State v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, ¶ 12 (9th Dist.).
{¶8} Here, the trial court found that the Sheetz employee’s report to Sergeant Gorski
(i.e., that she observed Mr. Delong’s vehicle travel off of the roadway, onto the sidewalk, and
then into the Sheetz parking lot) constituted competent, credible evidence that provided Sergeant
Gorski with reasonable suspicion to investigate further. Mr. Delong challenges this finding on
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appeal, arguing that Sergeant Gorski never observed him driving, did not witness any criminal
activity prior to detaining him, and did not witness any criminal activity during the detention. He
also asserts that Sergeant Gorski made no effort to verify the Sheetz employee’s account of what
happened until he watched the surveillance footage several days later. Mr. Delong, therefore,
argues that the trial court erred by finding that Sergeant Gorski had reasonable suspicion to stop
him.
{¶9} In response, the State argues that it was not necessary for Sergeant Gorski to
witness any criminal activity because he was exercising his community caretaking function. The
State also argues that the encounter did not constitute a seizure for purposes of triggering Fourth
Amendment protection because the encounter was entirely consensual.
{¶10} This Court agrees with the State’s argument that the community caretaking
exception applies under these facts. The community caretaking function is an exception to the
Fourth Amendment warrant requirement that permits “police officers to stop a person to render
aid if they reasonably believe that there is an immediate need for their assistance to protect life or
prevent serious injury.” State v. Clapper, 9th Dist. Medina No. 11CA00031-M, 2012-Ohio-
1382, ¶ 12, quoting State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, ¶ 22. “Police officers
without reasonable suspicion of criminal activity are allowed to intrude on a person’s privacy to
carry out ‘community caretaking functions’ to enhance public safety.” State v. Thompson, 9th
Dist. Lorain No. 04CA008603, 2005-Ohio-3802, ¶ 10, quoting State v. Norman, 136 Ohio
App.3d 46, 54 (3d Dist.1999). “When approaching a vehicle for safety reasons, the police
officer must be able to point to reasonable, articulable facts upon which to base [the] safety
concerns.” Norman at 54.
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{¶11} Here, the Sheetz employee testified that she flagged down Sergeant Gorski, told
him that she saw Mr. Delong’s vehicle travel off of the roadway, onto the sidewalk, and then into
the Sheetz parking lot. She then asked him to investigate whether Mr. Delong was hurt or
needed assistance. Sergeant Gorski testified that this was the reason he approached Mr.
Delong’s vehicle. Sergeant Gorski, therefore, had reasonable, articulable facts upon which to
base his safety concerns and to approach Mr. Delong’s vehicle under the community caretaking
function. State v. Mackim, 9th Dist. Summit No. 28741, 2018-Ohio-3033, ¶ 14 (holding that an
officer who – at a gas station owner’s request – approached a vehicle in the gas station parking
lot to check on the driver’s wellbeing was performing a community caretaking function). But, as
occurred here, “when the initial nature of the encounter is expanded to an investigatory detention
the officer must possess reasonable suspicion of criminal activity for that detention.” Id. at ¶ 16.
Thus, “in order to administer field sobriety tests, a police officer must have a reasonable
suspicion of criminal activity.” Id. at ¶ 9. Mr. Delong, however, has not developed any
argument regarding Sergeant Gorski’s reasonable suspicion of criminal activity relative to the
administration of field-sobriety tests. See App.R. 16(A)(7). Accordingly, this Court need not
address that issue. Mr. Delong’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION TO
SUPPRESS WHERE THERE WAS NO PROBABLE CAUSE TO ARREST
APPELLANT FOR OVI[.]
{¶12} In his second assignment of error, Mr. Delong argues that the trial court erred by
denying his motion to suppress because Sergeant Gorski lacked probable cause to arrest him for
an OVI. This Court disagrees.
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{¶13} “Probable cause [to] arrest for driving under the influence exists 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.’” In re: V.S., 9th Dist. Summit
No. 22632, 2005-Ohio-6324, ¶ 13, quoting State v. Gunther, 4th Dist. Pickaway No. 04CA25,
2005-Ohio-3492, ¶ 20. Thus, “[i]n order to have valid probable cause to arrest a driver for
driving under the influence, there must be observations by the officer of indicia of alcohol
consumption.” State v. Kurjian, 9th Dist. Medina No. 06CA0010-M, 2006-Ohio-6669, ¶ 17.
{¶14} Here, the trial court found that, based on the totality of the circumstances –
including the Sheetz employee’s report to Sergeant Gorski, Mr. Delong’s slurred speech and red
eyes, as well as the strong odor of alcohol and failed HGN test – Sergeant Gorski had sufficient
probable cause to arrest Mr. Delong for an OVI. Mr. Delong argues, however, that Sergeant
Gorski did not have probable cause because he did not observe erratic driving, only administered
one field-sobriety test, and did not indicate on the BMV 2255 form whether the odor of alcohol
was strong, moderate, or faint.
{¶15} Mr. Delong’s arguments lack merit. Initially, we note that an officer need not
administer field-sobriety tests, nor witness erratic driving in order to have probable cause to
arrest a driver for driving under the influence. Id. at ¶ 17, 18. Additionally, although not
indicated on the BMV 2255 form, Sergeant Gorski specifically testified that he observed a
“strong order of alcoholic beverage coming from [Mr. Delong’s] breath.”
{¶16} Considering the totality of the facts and circumstances, including the Sheetz
employee’s report to Sergeant Gorski, Sergeant Gorski’s testimony regarding Mr. Delong’s
slurred speech and red eyes, as well as the strong odor of alcohol and failed HGN test, we cannot
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say that the trial court erred by finding that sufficient probable cause existed to arrest Mr. Delong
for an OVI. Mr. Delong’s second assignment of error is overruled.
III.
{¶17} Mr. Delong’s assignments of error are overruled. The judgment of the Elyria
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Elyria Municipal
Court, County of Lorain, 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(C). 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.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, P. J.
CARR, J.
CONCUR.
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APPEARANCES:
PATRICK DICHIRO, Attorney at Law, for Appellant.
TONI L. MORGAN, Prosecuting Attorney, for Appellee.