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STATE v. COLBY (2021)

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Court of Appeals of Ohio, Sixth District, Wood County.

STATE of Ohio/City of Bowling Green, Appellee v. George G. COLBY, Appellant

No. WD-21-033

Decided: November 19, 2021

Hunter Brown, Bowling Green City Prosecutor, for appellee. Brian C. Morrissey, for appellant.


{¶ 1} Appellant, George G. Colby, appeals the judgment entered by the Bowling Green Municipal Court, denying appellant's motion to suppress evidence obtained as the result of a traffic stop. For the reasons that follow, we reverse the judgment of the trial court.

Facts and Procedural Background

{¶ 2} The facts of this case are undisputed and are as follows. On or about September 4, 2020, appellant was pulled over by an Ohio state highway trooper, after the trooper noticed marked lane violations by the truck that appellant was driving.

{¶ 3} The trooper was a member of the Ohio State Highway Patrol for two years at the time of the stop. At the time of the hearing on February 22, 2021, the trooper was no longer employed by the Ohio State Highway Patrol. The stop took place at approximately 2:54 a.m., on Interstate 75, in Bowling Green, Wood County, Ohio.

{¶ 4} The marked lanes violations that the trooper observed occurred when the truck, being driven by appellant, crossed the fog line three times. The trooper testified that he saw the tires of the truck cross over the white fog line by at least one tire length. After observing this violation, the trooper activated his lights and siren.

{¶ 5} Upon seeing the lights and siren, appellant used his right turn signal and pulled over to the right shoulder of the highway. Once appellant's truck was stopped on the side of the road, the trooper approached the truck on the passenger side of the vehicle. Appellant was the only person inside the vehicle. Appellant told the trooper that he was taught to drive on the white edge line, and that he realized he had hit the line.

{¶ 6} The trooper requested that appellant produce his license and insurance, and upon hearing this request, appellant fumbled with personal items and dropped his wallet. From the passenger side of the vehicle, the trooper stated that he could see that appellant's eyes were glassy and bloodshot. The trooper stated that there was no smell of alcohol or marijuana, nor was there an admission of drinking or drug use from appellant. The trooper also indicated that he did not detect slurred speech, since he had never met appellant before and was unfamiliar with appellant's regular speech pattern.

{¶ 7} The trooper asked to come to the driver's side of the vehicle to perform a horizontal gaze nystagmus test on appellant, and appellant consented. The test was conducted while appellant was in the vehicle, and the trooper stated that he observed a lack of smooth pursuit.

{¶ 8} On cross-examination, the trooper agreed that a horizontal gaze nystagmus test that is conducted inside a vehicle is not in compliance with the National Highway Traffic Safety Administration manual by which he was trained. Based upon these observations, the trooper directed appellant to exit the vehicle, in order to conduct further field sobriety tests.

{¶ 9} As appellant exited the vehicle, he dropped his billfold on the shoulder of the roadway, and miscellaneous papers and cards scattered on the ground. Appellant picked up his belongings, and then provided that he could not do any walk-and-turn or one-leg-stand tests, due to a medical impairment, specifically, a limp. The trooper eventually asked appellant to perform a breath test, which came back as .000. The trooper then asked appellant for a urine sample. Appellant complied.

{¶ 10} The trooper stated that his reasonable, articulable suspicion for the stop was based upon appellant's swerving in the road and crossing the marked lane, appellant's bloodshot, glassy eyes, and appellant's dropping of the billfold upon his exit from the vehicle. The trooper stated that appellant's driving and bloodshot, glassy eyes were enough to remove appellant from the vehicle.

{¶ 11} On January 21, 2021, appellant filed a motion to suppress evidence obtained as a result of the traffic stop. On February 22, 2021, the trial court denied the motion. On April 7, 2021, appellant entered a plea of no contest to operating a vehicle while intoxicated, in violation of R.C. 4511.19.

{¶ 12} Appellant timely appealed the judgment of the trial court, raising the following as his sole assignment of error:

I. The trial court erred in denying George Colby's motion to suppress when the officer relied on bad driving, bloodshot glassy eyes, a horizontal gaze test inside of the vehicle, and a fumbling of a wallet as reasonable articulable suspicion for field sobriety tests.

{¶ 13} The state did not file a brief in response to appellant's appeal.


{¶ 14} Appellate review of a motion to suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. An appellate court defers to the trial court's factual findings made in connection with its ruling on a motion to suppress where the findings are supported by competent, credible evidence. Id. “[T]he appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id.

{¶ 15} In this appeal, appellant requests suppression of all evidence “from the time that he was told to exit the vehicle,” on the grounds that the trooper did not have reasonable, articulable suspicion to conduct any field sobriety tests.

{¶ 16} Here, there is no question that appellant was lawfully stopped for the alleged traffic violations. Instead, appellant's position appears to be that the trooper did not have reasonable suspicion to expand the traffic stop.

{¶ 17} The law is well settled that the scope and duration of a routine traffic stop “must be carefully tailored to its underlying justification * * * and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); see also Cleveland v. Hyppolite, 2016-Ohio-7399, 76 N.E.3d 539, ¶ 24 (8th Dist.) But “if a law enforcement officer, during a valid investigative stop, ascertains ‘reasonably articulable facts giving rise to a suspicion of criminal activity, the officer may then further detain and implement a more in-depth investigation of the individual.’ ” State v. Rose, 4th Dist. Highland No. 06CA5, 2006-Ohio-5292, 2006 WL 2869541, ¶ 17, quoting State v. Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d 762 (1997). Thus, “an officer may request a motorist to perform field sobriety tests after a traffic stop for a minor traffic violation where the officer has articulable facts that give rise to a reasonable suspicion that the motorist is intoxicated.” Hyppolite at ¶ 29, citing Parma Hts. v. Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, 2012 WL 3133243, ¶ 29. However, if there are no articulable facts that give rise to a suspicion of illegal activity, then the continued detention constitutes an illegal seizure. State v. Robinson, 2d Dist. Greene No. 2001 CA 118, 2002-Ohio-2933, 2002 WL 1332589, ¶ 12, citing Robinette, at 240, 685 N.E.2d 762.

“Ohio courts recognize that a number of factors may supply an officer with reasonable suspicion to conduct field sobriety tests, including, but not limited to (1) the time of day that the stop occurred; (2) the area where the stop occurred; (3) whether there was erratic driving that might point to a lack of coordination; (4) the existence of a ‘cognizable report’ that the driver might be intoxicated; (5) the appearance of the suspect's eyes; (6) impairments related to the individual's speech; (7) an odor of alcohol in the car or on the person; (8) the strength of that odor; (9) lack of coordination after the stop; (10) ‘the suspect's demeanor’; and (11) the suspect's admission of alcohol consumption.” State v. Dye, 2021-Ohio-3513, ––– N.E.3d ––––, ¶ 65 (6th Dist.) (footnote omitted), citing State v. Evans, 127 Ohio App.3d 56, 63, 711 N.E.2d 761 (11th Dist. 1998), fn. 2. In determining whether the officer had reasonable suspicion, courts look at the totality of the circumstances, rather than at any single factor. Dye at ¶ 65.

{¶ 18} This court has repeatedly held that “[w]here a non-investigatory stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication * * * reasonable suspicion exists.” Id. at ¶ 68 (emphasis in original), citing State v. Beeley, 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, 2006 WL 2640228, ¶ 16. “ ‘[F]urther indicia of intoxication’ that we have found sufficient to provide an officer with reasonable suspicion include admission to consuming alcohol, slurred speech, and fumbling or searching for a driver's license or registration paperwork.” Id. at ¶ 68. But without additional indicia of intoxication, “we tend to find that the odor of alcohol and bloodshot, glassy eyes -- standing alone -- are insufficient to provide reasonable suspicion for field sobriety tests.” Id. at 69.

{¶ 19} In this case, the trial court determined that the trooper had the reasonable suspicion necessary to conduct field sobriety tests because: the trooper observed appellant driving over the white edge line; he noticed that appellant had bloodshot and glassy eyes; he noticed appellant fumble with personal items and drop his wallet when appellant was requested to produce his license and evidence of insurance; and he observed, upon conducting the horizontal gaze nystagmus test inside the vehicle, a lack of smooth pursuit. We, additionally, observe that the traffic stop took place at 2:54 a.m.

{¶ 20} Notably, however, when the trooper asked appellant to get out of the car there was no indication by the officer of even the slightest odor of alcohol or marijuana. Further, there was no admission of drinking, no allegation of slurred speech, no allegation of rambling speech, and no observation of drugs or alcohol in the vehicle. Neither was there any allegation that appellant was uncooperative or belligerent, or any report from 911 dispatch or another driver alleging impaired driving. Under these circumstances, we are compelled to conclude that the trooper lacked articulable facts that would give rise to a reasonable suspicion that appellant may have been intoxicated, and that the extension of the scope and duration of the stop to include field sobriety tests was improper. Accordingly, appellant's sole assignment of error is found well-taken.

{¶ 21} The judgment of the Bowling Green Municipal Court is reversed. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.


Thomas J. Osowik, J. Christine E. Mayle, J. CONCUR.

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