Opinion
2022 CA 00045
07-25-2023
STATE OF OHIO Plaintiff-Appellee v. ABU TOURE Defendant-Appellant
For: Plaintiff-Appellee DAVID R. KLEMP Assistant Prosecutor For: Defendant-Appellant APRIL CAMBELL
Appeal from the Fairfield Municipal Court, Case No. TRC 2203968
For: Plaintiff-Appellee DAVID R. KLEMP Assistant Prosecutor
For: Defendant-Appellant APRIL CAMBELL
JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
OPINION
GWIN, P.J.
{¶1} Defendant-appellant Abu J. Toure ["Toure"] appeals from the October 28, 2022, Judgment Entry of the Fairfield Municipal Court overruling his motion to suppress.
Facts and Procedural History
{¶2} On May 31, 2022, Toure was charged with one count of operating a vehicle under the influence ("OVI"), in violation of R.C. 4511.19(A)(1)(a). On July 1, 222, Toure was charged additionally with one count of operating a vehicle with a prohibited concentration of alcohol in his urine, in violation of R.C. 4511.19(A)(1)(e). The charges stem from an encounter off to the side of a public road between a trooper and Toure. The transcript of the suppression hearing and body-worn camera video provide the following facts.
{¶3} On May 28, 2022, Ohio State Highway Patrol ("OSHP") Trooper Herdman was on patrol working a shift from 10:00 P.M. to 6:00 A.M. when he observed Toure pull his vehicle off to the side of the road on Basil Western Road, just before Pickerington Road, in Fairfield County, Ohio. Supp.T. a. 6-10, 13. Toure had pulled his vehicle off on the paved berm of the road near the driveway to a well-lit business establishment. The vehicle was sufficiently beyond the driveway to enable cars to enter and exit the business. State's Exhibit A1. Vehicles can be seen entering and exiting from the driveway during the traffic encounter with Trooper Herdman.
Although the dashcam video and the body cam video of the trooper were marked as State's Exhibit 1A and 1B respectively, we note that the court file contains only one unmarked disk that contains both videos.
{¶4} The trooper pulled behind Toure "to do a disabled vehicle check" and check what was going on, if Toure was okay, or if Toure needed some kind of assistance. Supp. T. at 10. The trooper did not witness any erratic driving or traffic violations. Id.
{¶5} Upon pulling in behind Toure's vehicle, the trooper activated his lights to ensure that any drivers passing by knew that Toure and he were there. Id. at 15. Trooper Herdman testified that if Toure had attempted to drive away at this point he would have let him go. Supp. T. at 44. However, the trooper agreed that a reasonable citizen would not have felt free to leave due to the activation of the cruiser's overhead lights. Id. at 45.
{¶6} Upon approaching Toure, Trooper Herdman asked if he was okay, to which Toure responded that he was "fine," and that he just dropped his phone and "was just trying to get it here." Id. at 16. As the trooper stood outside the vehicle, he could smell the odor of an alcoholic beverage coming from inside the vehicle. Id. at 17. Upon being asked whether he had been drinking, Toure denied having consumed any alcohol. Id. at 16-18. Toure explained to the trooper that he had just dropped someone off who had been drinking. Supp. T. at 16. The trooper then asked Toure for his driver's license. Id. at 18. After handing back his driver's license, the trooper asked Toure for the vehicle's registration. Supp. T. at 19. He then asked Toure where he was coming from tonight. Id. at 20. Toure told the trooper that he plays in a band and motioned that his drum set was in the backseat. Id. Toure again said that he had not been drinking. Id.
{¶7} At that point, Trooper Herdman tells Toure that because he smells the odor of an alcoholic beverage, he was going to run Toure through the Field Sobriety Tests (FST's). Supp. T. at 20. During the suppression hearing, Trooper Herdman testified that he also noticed that Toure's eyes were "red and glassy… he had eyes that were pinpoint- his pupil size were pinpoint, and then obviously I continued to smell the odor of alcohol. Id. at 21. The trooper noted that Toure was responding appropriately to his questions. He further testified that he did not notice any slurred speech during his initial encounter; however, the slurred speech came later in the encounter. Id. at 51 -52. The trooper further testified that periodically throughout the contact Toure slurred his speech. Id. at 22, 51-52. He testified that it was "not a drunken stupor." Id. at 22.
{¶8} Trooper Herdman then asked Toure to step out of the vehicle to perform field sobriety testing and to ensure that he was safe to drive. Id. at 20-22. Toure allowed Trooper Herdman to pat him down. Id. at 28. Trooper Herdman conducted the horizontal gaze nystagmus ("HGN") test on Toure, which resulted in six out of six possible clues of impairment. Id. at 38. At the conclusion of the stop, the trooper arrested Toure for OVI.
{¶9} Toure filed a motion to suppress on July 7, 2022. [Docket Entry Number 26]. On August 12, 2022, a suppression hearing was held in the Fairfield County Municipal Court. Toure's trial counsel limited the scope of the hearing to the issues of (1) whether there was reasonable and articulable suspicion to detain Toure to conduct field sobriety testing; and (2) whether the HGN test was administered in substantial compliance with the standards of the 2018 National Highway Traffic Safety Administration ("NHTSA") Manual. Supp. T. at 4.
{¶10} Toure filed a post-hearing brief on August 26, 2022. [Docket Entry Number 32]. The state filed a "Post-Suppression Bench Memorandum/ Brief on September 8, 2022. [Docket Entry Number 33].
{¶11} After hearing the evidence, the trial court denied Toure's motion in full. Judgment Entry, filed October 28, 2022. [Docket Entry Number 34]. The trial court found that "the odor of alcohol emanating from the Defendant's sole occupied vehicle, the observed red/glassy eyes and pinpoint pupils, the fact that the consensual encounter occurred at 12:44 a.m. on a Saturday morning, Defendant's admission that he was headed home from a bar where he had been playing in a band for a few hours," and "Trooper Herdman's training and experience in the detection and apprehension of impaired drivers" provided justification for expanding the scope of the stop. Id. Second, the trial court found that Trooper Herdman performed the HGN test in substantial compliance with NHTSA standards. Id. at 2.
{¶12} On November 22, 2022, Toure pleaded no contest to one count of operating a vehicle with a prohibited concentration of alcohol in his urine, in violation of R.C. 4511.19(A)(1)(e).
Assignments of Error
{¶13} Toure raises three Assignments of Error, {¶14} "I. THE TRIAL COURT SHOULD HAVE GRANTED TOURE'S MOTION TO SUPPRESS BECAUSE THE TRIAL COURTS FACT FINDING, USED AS THE BASIS FOR NOT SUPPRESSING THE EVIDENCE, WAS NOT SUPPORTED BY COMPETENT CREDIBLE EVIDENCE.
{¶15} "II. TROOPER DID NOT HAVE REASONABLE SUSPICION THAT TOURE WAS UNDER THE INFLUENCE OF ALCOHOL AND OR DRUGS TO ASK HIM TO PERFORM FIELD SOBRIETY TESTS.
{¶16} "III.THIS COURT SHOULD REVERSE TOURE'S CONVICTION BECAUSE HIS TRIAL COUNSEL WAS INEFFECTIVE FOR WITHDRAWING TOURE'S CHALLENGE TO THE STOP, WHICH CONSTITUTED AN ILLEGAL SEIZURE UNDER THE FOURTH AMENDMENT, FOURTEENTH AMENDMENT, AND THE OHIO CONSTITUTION."
I. & II.
{¶17} In his First Assignment of Error, Toure argues that the trial court's findings of fact are not supported by competent credible evidence in three respects. Specifically, that the evidence does not support the trial court's finding that Toure was coming from a bar; the body camera video does not support that Toure had bloodshot and glassy eyes, and the trial court failed to accept that the trooper testified that the odor of alcohol could possibly have come from somebody who had recently been in the car with Toure.
{¶18} In his Second Assignment of Error, Toure contends the trooper did not have reasonable suspicion that Toure was under the influence of alcohol and or drugs to ask him to perform field sobriety tests.
Standard of Appellate Review
{¶19} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and to evaluate witness credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must defer to the trial court's factual findings if competent, credible evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as true, it must independently determine as a matter of law whether the trial court met the applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review Ornelas, supra. Moreover, due weight should be given "to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, supra at 698, 116 S.Ct. at 1663.
Issue for Appellate Review:
Whether the lawful interaction for a welfare check became an unlawful detention when the officer decided to conduct field sobriety tests.
{¶20} In the case at bar, Trooper Herdman testified that he did not effectuate a traffic stop; rather, he pulled in behind Toure's stopped vehicle to perform a welfare check or to otherwise render assistance to a disabled vehicle or a disabled driver. Supp. T. at 10; 12-13. He activated the cruiser's overhead lights for the safety of himself, the vehicle occupants, and the general public. Id. at 14. As the United States Supreme Court has noted,
And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. "According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings-A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963)." Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). We are aware that not all these assaults occur when issuing
traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Indeed, it appears "that a significant percentage of murders of police officers occurs when the officers are making traffic stops." Id., at 234, n. 5, 94 S.Ct. at 476, n. 5Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331(1977) (emphasis added). The same dangers are present when the officer is conducting a roadside welfare check on a driver. In the case at bar, it was dark, the vehicle was along the berm of the roadway and it was late. The danger to an officer approaching a person or persons seating in a motor vehicle are well documented. We are unwilling to say that under these circumstances Trooper Herdman's activation of the cruiser's overhead lights to protect his own safety and the safety of others transformed the welfare check into a traffic stop.
Request to Perform FST's
{¶21} A request made of a validly detained motorist to perform field sobriety tests is generally outside the scope of the original stop, and must be separately justified by other specific and articulable facts showing a reasonable basis for the request. State v. Albaugh, 5th Dist. Tuscarawas No. 2014 AP 11 0049, 2015-Ohio-3536, 2015 WL 5096900, ¶18, quoting State v. Anez, 108 Ohio Misc.2d 18, 26-27, 738 N.E.2d 491 (2000).
{¶22} "Reasonable suspicion is "* * * something more than an inchoate or un-particularized suspicion or hunch, but less than the level of suspicion required for probable cause." State v. Shepherd, 122 Ohio App.3d 358, 364, 701 N.E.2d 778 (2nd Dist. 1997). "A court will analyze the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold." State v. Farey, 5th Dist. Stark No. 2017CA00137, 2018-Ohio-1466, ¶ 23, citing Village of Kirtland Hills v. Strogin, 6th Dist. Lake App. No. 2005-L-073, 2006-Ohio-1450, ¶ 13 (internal citation omitted).
{¶23} In analyzing the facts presented, we accept the template set forth by the Supreme Court of Ohio in State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, paragraph two of the syllabus: "The 'reasonable and articulable' standard applied to a prolonged traffic stop encompasses the totality of the circumstances, and a court may not evaluate in isolation each articulated reason for the stop." The intrusion on the drivers' liberty resulting from a field sobriety test is minor, and the officer therefore need only have reasonable suspicion the driver is under the influence of alcohol in order to conduct a field sobriety test. State v. Knox, 2nd Dist. Greene No. 2005-CA-74, 2006-Ohio-3039. See also, State v. Bright, 5th Dist. Guernsey App. No. 2009-CA-28, 2010-Ohio-1111.
{¶24} Toure argues that the trial court got the facts wrong and further that there was no justification for asking him to perform the FST's because, 1). He committed no traffic violations; 2). He did not admit consuming any alcoholic beverages; 3). The order of alcohol alone is insufficient; and 4). He displayed no signs of intoxication.
{¶25} These observations are not conclusive in this context, but only facts that the officer and the trial court must consider. State v. Horvath, 5th Dist. Delaware No. 18 CAC 01 0006, 2018-Ohio-5379, ¶ 24. In State v. Hodges, 5th Dist. Licking No. 2022 CA 00012, 2022-Ohio-3535, ¶¶ 16-17, we reviewed a lengthy and non-exhaustive list of factors that are relevant to evaluate whether an officer had reasonable suspicion to administer field sobriety tests under the totality of circumstances:
(1) The time of day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning);
(2) The location of the stop (whether near establishments selling alcohol);
(3) Any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.);
(4) Whether there is a cognizable report that the driver may be intoxicated;
(5) The condition of the suspect's eyes (bloodshot, glassy, glazed, etc.);
(6) Impairments of the suspect's ability to speak (slurred speech, overly deliberate speech, etc.);
(7) The odor of alcohol coming from the interior of the car, or, more significantly, on the suspect's person or breath;
(8) The intensity of that odor, as described by the officer ("very strong," "strong," "moderate," "slight," etc.);
(9) The suspect's demeanor (belligerent, uncooperative, etc.);
(10) Any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and
(11) The suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761 (11th Dist. 1998) at fn. 2. "All of these factors, together with the officer's previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably." Id.
{¶26} It is often a close issue whether the specific facts of a case provide an officer with reasonable suspicion for conducting field sobriety tests. State v. Beeley, 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, ¶ 16. Such decisions are "very fact-intensive." State v. Burkhart, 4th Dist. Athens No. 16CA8, 2016-Ohio-7534, 64 N.E.3d 1004, ¶15. Ohio courts often reach differing conclusions when faced with seemingly similar circumstances. Numerous factors may be considered, and small differences between officers' descriptions of an encounter can form the basis for opposite outcomes. State v. Watkins, 6th Dist. Wood No. WD-20-054, 2021-Ohio-1443, 170 N.E.3d 549, ¶ 26; State v. Martorana, 6th Dist. Sandusky No. S-22-011, 2023-Ohio-662, ¶34.
{¶27} In the case at bar, the trooper's encounter with Toure occurred after midnight on a Saturday night. Further, Toure told the trooper that he had just finished playing a "gig" with his band.
{¶28} The trooper detected an odor of an alcoholic beverage. Although Toure provided a possible explanation, the trooper is not obliged to accept that explanation. Toure was alone in the vehicle. "Reasonable suspicion [of drunk driving] 'need not rule out the possibility of innocent conduct."' Navarette v. California, 572 U.S. 393, 403134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), quoting United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). See also, State v. Mays, 119 Ohio St.3d 406, 894 N.E.2d 1204, 2008-Ohio-4538 at ¶17 ("the question of whether appellant might have a possible defense to a charge of violating R.C. 4511.33 is irrelevant in our analysis of whether an officer has a reasonable and articulable suspicion to initiate a traffic stop. An officer is not required to determine whether someone who has been observed committing a crime might have a legal defense to the charge.").
{¶29} Trooper Herdman next testified to Toure's red/glassy eyes and pinpoint pupils. The videos of the encounter are not of sufficient definition, clarity, sharpness, and exactness to dispute this testimony. While there may be an innocent or non-impairment reason that a defendant's eyes are bloodshot and glassy, this "does not diminish the relevance of these factors for the question of whether the trooper reasonably suspected [the defendant] was intoxicated." State v. Ashbury, 12th Dist. Clinton No. CA 2021-02-003, 2021-Ohio-2788, ¶16 quoting State v. Koogler, 12th Dist. Preble No. CA2010-04-006, 2010-Ohio-5531, ¶16.
{¶30} Trooper Herdman further testified that he noticed that Toure's speech was slurred throughout his encounter with him.
{¶31} We find that the conduct of the Field Sobriety Tests was separately justified by a reasonable suspicion based upon articulable facts that Toure was under the influence. We further find that the trial court's decision overruling Toure's motion to suppress is supported by competent, credible evidence.
{¶32} Toure's First and Second Assignments of Error are overruled.
III.
{¶33} In his Third Assignment of Error, Toure argues that the decision of his trial counsel to withdraw the challenge to the traffic stop amounted to ineffective assistance of counsel because the challenge would have succeeded.
STANDARD OF APPELLATE REVIEW.
{¶34} To obtain a reversal of a conviction on the basis of ineffective assistance of counsel, the defendant must prove (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).
{¶35} Trial counsel's failure to file a suppression motion does not per se constitute ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-0448; Accord, State v. Ortiz, 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, ¶56. Counsel can only be found ineffective for failing to file a motion to suppress if, based on the record, the motion would have been granted. State v. Lavelle, 5th Dist. No. 07 CA 130, 2008-Ohio-3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06-CA-88, 2007-Ohio-3009, at ¶ 86. The defendant must further show that there is a reasonable probability that the outcome would have been different if the motion had been granted or the defense pursued. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986); see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798 (2001), citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).
Issue for Appeal: Whether there is a reasonable probability that a motion to suppress the stop would have been granted.
{¶36} The stop of a vehicle and the detention of its occupants by law enforcement, for whatever purpose and however brief the detention may be, constitutes a seizure for Fourth Amendment purposes. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), citing United States v. Martinez-Fuerte, 428 U.S. 543, 556-558, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Toure argues that he was stopped for purposes of the Fourth Amendment when Trooper Herdman activated the overhead lights of his cruiser.
{¶37} As we have already determined in our disposition of Toure's First and Second Assignments of Error, Trooper Herdman testified that he did not effectuate a traffic stop; rather, he pulled in behind Toure's stopped vehicle to perform a welfare check or to otherwise render assistance to a disabled vehicle or a disabled driver. Supp. T. at 10; 12-13. He activated the cruiser's overhead lights for the safety of himself, the vehicle occupants, and the general public. Id. at 14. In the case at bar, it was dark, the vehicle was along the berm of the roadway and it was late. The danger to officers approaching a person or persons seating in a motor vehicle are well documented. We are unwilling to say that under these circumstances Trooper Herdman's activation of the cruiser's overhead lights to protect his own safety and the safety of others transformed the welfare check into a traffic stop.
{¶38} As there is not a reasonable probability that a motion to suppress the stop would have been granted, trial counsel was not ineffective in withdrawing the challenge to the Trooper's initial encounter with Toure's vehicle.
{¶39} Toure's Third Assignment of Error is overruled.
{¶40} The judgment of the Fairfield Municipal Court is affirmed.
By Gwin, P.J., Wise, J., and Baldwin, J., concur.