Summary
In Cloud, supra, the court held that the officer lacked probable cause for arresting the defendant after he was stopped, based only upon suspect's appearance and order of alcohol emanating from him.
Summary of this case from State v. MartinOpinion
Nos. 91-TRC-02130A, 91-TRC-02130B.
Decided April 15, 1991.
Karla J. Burtch, Assistant City Prosecutor, for plaintiff.
Robert L. Cloud, for defendant.
Defendant, James Cloud, seeks to suppress evidence obtained following his arrest for operating a motor vehicle while under the influence of alcohol. Defendant's motion addresses two issues: whether the radio frequency interference ("RFI") survey was properly performed on the intoxilyzer instrument, and whether there was probable cause for his arrest.
The court requested memoranda from both parties at the time it took this matter under submission. While defendant filed a comprehensive brief, the city of Cincinnati chose to stand on oral arguments made at the hearing on the motion to suppress.
The facts of this case are mostly undisputed. On January 6, 1991, Cincinnati Police Officer Kevin York drove to defendant's residence in response to a radio broadcast of alleged domestic violence. The source responsible for the police being summoned to the residence has not been made clear. As Officer York approached the residence, he observed defendant backing out of the driveway. Officer York followed defendant for approximately one-half mile, noted no improper driving, and then signaled for him to pull over. Defendant pulled over and Officer York watched while defendant exited and walked to the rear of his vehicle. The officer then asked defendant to place his hands on his vehicle, patted defendant down for weapons, handcuffed him and placed him in the police cruiser for questioning. All of this activity, according to Officer York's testimony, was completed in the rain.
At the hearing on the motion to suppress, Officer York testified that during his questioning of defendant he noted a "strong odor of alcohol." He also testified that defendant's eyes were watery and bloodshot, defendant stuttered and appeared nervous and admitted to having had some beers. In his intoxication report, Officer York failed to note the odor as "strong" or the eyes as bloodshot.
About the time that defendant was handcuffed, Officer York received radio communication that defendant's wife had not wished to proceed with a domestic violence complaint and had told the officer who had spoken with her to go away. Officer York then arrested defendant for driving under the influence and took him to the station for an intoxilyzer test. After completing the intoxilyzer test, Officer York administered several field sobriety tests to defendant. Defendant was subsequently charged with violating R.C. 4511.19(A)(1) and (3).
On February 21, 1991, the court heard defendant's motion to suppress evidence. The motion was based on defendant's contention that the evidence was obtained as a result of an unlawful arrest. Defendant claimed that the arrest was unlawful because Officer York lacked the requisite probable cause. Defendant also claimed that the intoxilyzer test results could not be admitted in any case because the RFI survey performed on the intoxilyzer was improper.
At the hearing on the motion to suppress, the state introduced into evidence the most recent three-page RFI survey which had been performed on the intoxilyzer on May 5, 1990. Officers Robinson and Ward had conducted the survey and both testified at the hearing to having conducted it according to the directions contained on a form which showed a printing date of September 1986. When asked why the officers had not used the new regulations and forms, as required by the Director of Health for surveys taken at that date, the officers testified that they had not had the new forms available. Officer Robinson indicated that he had called the Department of Health and was told by some unnamed bureaucrat that the new forms were "at the printer" and not yet available. This same bureaucrat advised the officer to conduct the survey using the old form. The officers further stated that, although the new regulations and forms had become available sometime after May 5, 1990, they did not perform a subsequent RFI survey in accordance with the new regulation.
Radio Frequency Interference Survey
"[T]he state has the ultimate burden of persuasion on a pretrial motion to suppress the results of an intoxilyzer test of an individual believed to have violated R.C. 4511.19(A), and must demonstrate that the test was conducted in accordance with the applicable law." State v. Fley (Dec. 14, 1988), Hamilton Cty. M.C. No. C-87TRC-35650B, unreported, 1988 WL 133000. The law applicable in this case was the Ohio Adm. Code 3701-53-02(C), which was amended effective May 5, 1990 to read, in pertinent part, as follows: "* * * RFI surveys performed on and after the effective date of this amendment shall be performed in accordance with the instructions on the form set forth in appendix H to this rule. * * *" Although the officers in the present case conducted the RFI survey on May 5, 1990, they did not use the form required by the amended regulation. Also, when they did obtain the new forms and instructions, they did not perform any new RFI survey.
The officers unarguably failed to literally comply with the applicable regulations, but this does not mean that the results of the intoxilyzer test are necessarily inadmissible. In State v. Plummer (1986), 22 Ohio St.3d 292, 294, 22 OBR 461, 463, 490 N.E.2d 902, 905, the Ohio Supreme Court noted that "strict compliance is not always realistically or humanly possible." In Plummer, the appellant contended that the results of his urine-alcohol test were inadmissible at his trial for driving under the influence because the state had failed "to comply with the literal requirements of the administrative regulation regarding refrigeration of a urine specimen." The court upheld the appellant's conviction based on the admission of the results of the test because the state had "substantially complied" with the regulation and the appellant had not "been prejudiced in any way by the state's failure to comply with the literal requirements * * *." Id. at 295, 22 OBR at 464, 490 N.E.2d at 905. Though this court believes that the "substantial compliance" doctrine of Plummer should be very narrowly applied, this case is surely one where it is applicable.
In this case, defendant cites State v. Fley, supra, for the proposition that the "substantial compliance" doctrine has been applied more stringently in RFI cases. In Fley, the court addressed the results of a test taken on an intoxilyzer which should have been surveyed under Ohio Adm. Code 3701-53-02, as effective January 1, 1987, but had instead been surveyed under a prior regulation. The court found "the 1987 provisions for testing intoxilyzers * * * [to be] mandatory" and granted the appellant's motion to suppress the results of the test.
The court in Fley did not even mention the "substantial compliance" doctrine. The court instead noted that the provisions which were added in 1987 "set forth a more exact and reliable method of `surveying' intoxilyzers * * * to assure noninterference by radio transmissions." The 1987 amendments were designed to guarantee to the appellant a more accurate test. Fley held that they had not been complied with at all so there was no question of "substantial compliance."
The amendment in the present case, which was effective on May 5, 1990, concerned, in large part, slight changes to the form on which the results of the survey were to be recorded. From the evidence adduced in the present case, this court finds that the differences in the manner that the RFI surveys were actually conducted, as required by the different forms, were at best inconsequential. To suppress the results of the test solely for the reason that the officers used an old form which was substantially similar to the new one, which was not yet available, would surely be to elevate form over substance since the use of the old form did not prejudice defendant. Like the appellant in Plummer, 22 Ohio St.3d at 295, 22 OBR at 464, 490 N.E.2d at 905, defendant in this case "has not demonstrated that this failure even affected the results of his * * * [test], much less that any failure to comply resulted in error detrimental to him." (Footnote omitted.)
Probable Cause
There were several distinct steps which led to defendant's arrest on January 6, 1991. First, Officer York stopped defendant in response to an allegation of domestic violence. Second, upon learning that the domestic violence allegation was not to be pursued, Officer York arrested defendant for driving under the influence. The legality of the initial stop was not contested by defendant.
At issue is whether Officer York had probable cause to arrest defendant for driving under the influence once he had received information that defendant's wife did not wish to proceed with a domestic violence complaint. The United States Supreme Court noted the importance of the timing of the steps of an arrest in Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145, 31 O.O.2d 80, 81. In Beck, the court stated that the constitutionality of an arrest depends "upon whether, at the moment the arrest was made, the officers had probable cause to make it * * *." The court defined the test for probable cause for arrest to be "whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Id. In State v. Finch (1985), 24 Ohio App.3d 38, 39-40, 24 OBR 61, 63, 492 N.E.2d 1254, 1256, the court applied this test to "drunken driving" arrests and held that there existed "probable cause for the arrest if the facts and circumstances within * * * [the officer's] knowledge were sufficient to cause a prudent person to believe that appellee had committed the offense." In Finch, the arresting officer was called to an altercation at a campground. Upon her arrival, the officer noticed the appellee driving away from the scene. The officer stopped the appellee and approached the vehicle. At that time the officer noted a strong odor of alcohol surrounding the appellee as well as the appellee's bloodshot eyes, flushed face, and slurred speech. Id. at 38-39, 24 OBR at 62, 492 N.E.2d at 1255. The officer removed the appellee's keys from his ignition and asked him to step out of the car. The court found the officer's action of removing the keys constituted an arrest for which there was no probable cause. Id. at 39, 24 OBR at 62, 492 N.E.2d at 1255.
The court in Finch refused to find probable cause based solely on the appellee's appearance. Id. at 40, 24 OBR at 63, 492 N.E.2d at 1256. The court noted that, had the appellee failed field sobriety tests prior to arrest, the officer would have had probable cause for that arrest.
The facts of Finch are analogous to the facts of the case at bar. Both drivers were stopped while leaving the scene of some unrelated activity, and both had the appearance of having been drinking. Also, neither arresting officer witnessed any impaired motor coordination, in the form of failed field sobriety tests or erratic driving, prior to arresting the drivers. Based on Finch alone, Officer York lacked probable cause to arrest defendant for a violation of R.C. 4511.19(A)(1) and (3).
Ohio courts have applied the standards of Beck and Finch in numerous cases. In State v. Hughart (Feb. 23, 1990), Gallia App. No. 88 CA 21, unreported, 1990 WL 34266, the appellant was arrested for menacing others. Prior to administering field sobriety tests, the arresting officer asked the appellant for a urine sample and then arrested the appellant for driving under the influence. The court found that the officer lacked probable cause to arrest in the absence of erratic driving or field sobriety tests. Similarly, in State v. Cochran (Aug. 6, 1990), Warren App. No. CA89-11-070, unreported, 1990 WL 111129, the court refused to find probable cause for an arrest based on "the fact that appellant merely appeared to have been drinking." In Cochran, officers arrived on the scene of an automobile accident to find the appellant's vehicle had collided with the vehicle ahead of it. The officers noted that the appellant's eyes were red, his face was flushed and he smelled of alcohol. The appellant was removed from the scene by a stretcher and, therefore, performed no field sobriety tests.
In the case at bar, Officer York arrested defendant based solely on the appearance of defendant and the odor of alcohol without administering any field sobriety tests. Applying Finch in the same manner as the courts in Hughart and Cochran, this appearance would not provide the probable cause necessary for a lawful arrest. In fact, the case at bar lacks even the automobile accident contained in Cochran.
In the cases since Finch in which defendants have challenged the lawfulness of their arrests for driving under the influence, Ohio courts have based the majority of their findings of probable cause on the impaired motor coordination of defendants which was noted by the arresting officers. In State v. Arnold (Feb. 13, 1991), Ross App. No. 1678, unreported, 1991 WL 28320, the "[a]ppellant was observed to stagger and had trouble performing the finger to nose test." In State v. Butcher (Oct. 17, 1990), Lawrence App. Nos. 1929 and 1930, unreported, 1990 WL 155774, the appellee failed the horizontal gaze nystagmus test. In State v. Bryant (May 21, 1990), Clermont App. No. CA89-10-085, unreported, 1990 WL 66992, the appellant's vehicle was weaving and the appellant performed poorly when the officer administered field sobriety tests. Probable cause for arrest was found in all three cases based on these facts.
Probable cause to arrest for driving under the influence would seem to require that the officer noted some adverse effect on defendant's motor coordination. This adverse effect might have been apparent in the case at bar had Officer York administered the field sobriety tests at the scene instead of at the police station after the arrest. At trial, Officer York testified that it was raining at the time and that it would have been "unfair" to expect defendant to perform in the rain. Unfortunately, the inability to administer these tests does not mean that the officer may rely solely on defendant's appearance for probable cause. As noted above, the appellant in Cochran was removed from the scene by a stretcher and was, therefore, unable to perform field sobriety tests. This fact did not allow the court to find probable cause based merely on the officer's statements concerning the appearance of the appellant.
In the event that the officer is unable to administer field sobriety tests, there are "a multitude of other accepted tests, such as saying the alphabet, counting backwards from one hundred by multiples of ten, the finger to the nose test, fumbling through a wallet to search for a driver's license, pupil reaction to light, and picking up small coins." State v. McCaig (1988), 51 Ohio App.3d 94, 97, 554 N.E.2d 925, 928 (Connors, J., dissenting). The horizontal gaze nystagmus test would surely have been called for in this case.
In the case at bar, Officer York testified that defendant stuttered repeatedly and that this stuttering was symptomatic of impaired motor coordination caused by excess alcohol consumption. Although stuttering might be a result of excessive drinking, it might also have some other source. In Ross v. Meyers (C.A.6, 1989), 883 F.2d 486, rehearing denied (1989), rehearing denied (1990), a highway patrol trooper arrived at the scene of a distressed motor vehicle. The trooper observed the driver stagger and noted the appearance of drinking and the odor of alcohol. The court found that the trooper did not have probable cause to arrest the driver for driving under the influence. The court found it "relevant" that the driver had "provided an explanation for his lack of coordination and confusion." Id. at 489. The court held that "[i]n such circumstances, where defendant presents a believable story, the Ohio courts have ruled that the trier of fact is entitled to believe that no probable cause existed." Id. In the case at bar, the defendant testified that he has had a lifelong stuttering habit, for which he has received treatment.
Like the court in State v. Taylor (1981), 3 Ohio App.3d 197, 198, 3 OBR 224, 225, 444 N.E.2d 481, 482, this court has "no real wish to hamper the enforcement of laws against the drunken driver, who is unarguably a real and present danger to society." This court would not hesitate to find probable cause to arrest if there was "anything in this record which would have indicated the existence of some reasonable indicia of operation under the influence of alcohol." Id. Unfortunately, Officer York failed to point to any indicia except for defendant's watery, bloodshot eyes and the odor of alcohol. A requirement of more than this is necessary to protect each person's right to be free from improper searches and seizures. "`* * * To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.'" Beck, 379 U.S. at 91, 85 S.Ct. at 226, 13 L.Ed.2d at 145, 31 O.O.2d at 82, quoting from Brinegar v. United States (1949), 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.
This case presents the court with a classic dilemma of whether the court should find for the prosecution because the officer surely did nothing wrong, and perhaps did all that could be done under the circumstances. The pull in that direction is powerful; however, it is axiomatic that "hard cases make bad law." This court will not stretch the law to fit the facts in this case, for to do so would cast the net impermissibly wide, trapping the possibly innocent as well as the probably guilty, and making precedent that could in the future be applied to presently unforeseen circumstances.
Review of the facts of the case at bar, in light of Ohio case law, requires a finding that there was not probable cause to arrest defendant; therefore, defendant's motion to suppress all evidence obtained thereby must be granted.
Motion granted.