State v. Finch

• Decision Date: 25 March 1985
• Docket Number: No. CA84-08-008,CA84-08-008
• Citation: 24 OBR 61,492 N.E.2d 1254,24 Ohio App.3d 38
• Court: Ohio Court of Appeals
• Parties: , 24 O.B.R. 61 The STATE of Ohio, Appellant, v. FINCH, Appellee.

Page 38

24 Ohio App.3d 38

492 N.E.2d 1254, 24 O.B.R. 61

The STATE of Ohio, Appellant, v. FINCH, Appellee.

No. CA84-08-008.

Court of Appeals of Ohio, Twelfth District, Brown County.

March 25, 1985.

Syllabus by the Court

1. An arrest has occurred when a police officer instructs a driver to pull to the side of the road and then removes the keys to the driver's vehicle.

2. Where a police officer had not observed the arrestee driving in an erratic or unsafe manner, had not witnessed impaired motor coordination, and had not instructed the arrestee to perform field sobriety tests, the officer did not have probable cause to arrest the driver for violation of R.C. 4511.19; i.e., the mere appearance of drunkenness (bloodshot eyes, slurred speech, the odor of alcohol) is not sufficient to constitute probable cause for arrest for driving under the influence.

Robert A. Corbin, Asst. Pros. Atty., for appellant.

Michael P. Kelly, Mt. Orab, for appellee.

PER CURIAM.

This cause came on to be heard upon the appeal from the County Court of Brown County, Ohio.

On May 22, 1984, in Brown County, Ohio, Ranger Natalie Jones of the Lake Waynoka Rangers was informed by one Mickey Bevington that an altercation between three persons, including appellee, Gary R. Finch, was taking place at the Lake Waynoka campground. Jones requested that Bevington show her the exact location of the altercation, and Bevington thereafter drove his vehicle toward the camping area while Jones followed him in her vehicle. As they approached the campground Bevington noticed appellee driving away from the scene, and indicated the same to Jones by pointing at the vehicle being operated by appellee. Ranger Jones then instructed appellee to pull to the side of the road, which appellee did after turning his vehicle around so that it faced the camping area.

The windows of appellee's vehicle were open, and as Jones approached the vehicle she detected a strong odor of alcohol. Observing appellee from a distance of approximately twelve inches, Jones noticed that he exhibited many of the characteristics of someone who had been drinking heavily: bloodshot eyes, flushed face, and slurred speech. At this point, Jones reached into appellant's vehicle and took the keys out of the ignition, and directed appellee to exit his vehicle and get into her cruiser. Jones stated that appellee fell to the ground as he attempted to exit his vehicle, and became very uncooperative and verbally abusive toward her. Appellee was then transported to a nearby state patrol office for the purpose of administering a breathalyzer test.

Appellee was subsequently charged with driving while under the influence of alcohol per R.C. 4511.19 and with disorderly conduct per R.C. 2917.11. On June 29, 1984, appellee, through his counsel, made a motion to suppress all evidence accruing as a result of his arrest on the ground that there was no probable cause for the arrest. After a hearing before the Brown County Court held on July 30, 1984, the court found appellee's motion to be well-taken, and in a judgment entry filed August 23, 1984, ordered that all evidence accruing to the state of Ohio subsequent to the removal of appellee's keys be suppressed.

Having timely filed a notice of appeal to this court, and having stated that the instant appeal is not being pursued for the purpose of delay, but because the above ruling has rendered proof with respect to the pending charges against appellee so weak as to preclude any reasonable possibility of prosecution, the state of Ohio presents the following assignment of error for our consideration:

"The trial court erred in granting defendant-appellee's motion to supress all evidence accruing to the state of Ohio subsequent to the removal of the car keys to the vehicle being operated by the defendant."

In order to determine whether there was probable cause for appellee's arrest, we must first, of necessity, determine when the arrest took place. The transcript of the hearing on appellee's motion reveals that Ranger Jones never told appellee that he was under arrest in so many words, but that she did take the keys to the vehicle being driven by appellee after approaching the vehicle and observing certain indicia of drunkenness. At the time his keys were confiscated, appellee was still seated behind the wheel of his vehicle.

The point when an investigatory "stop" turns into an arrest depends on the circumstances of the particular case. See United States v. White (C.A.D.C.1981), 648 F.2d 29. "An arrest occurs when the following four requisite elements are involved: (1) An intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested." State v. Darrah (1980), 64 Ohio St.2d 22, 26, 412 N.E.2d 1328 .

Application of the elements above to the facts before us reveals that Jones effectively placed appellee under arrest when she took the keys to his vehicle. Jones' testimony at the suppression hearing indicates that at the time she took the keys she was satisfied that appellee was operating a vehicle while legally intoxicated and had no intention of permitting him to drive away. Jones' actions were performed as an extension of her authority as a Lake Waynoka Ranger. Once the keys were taken, there can be little question that appellee was being prevented from leaving the scene of the stop. The record is silent...