State v. White, CASE NO. 1-13-27

• Decision Date: 18 February 2014
• Docket Number: CASE NO. 1-13-27
• Citation: 2014 Ohio 555
• Court: Ohio Court of Appeals
• Parties: STATE OF OHIO, PLAINTIFF-APPELLEE, v. LARRY L. WHITE, DEFENDANT-APPELLANT.

2014 Ohio 555

STATE OF OHIO, PLAINTIFF-APPELLEE, v. LARRY L. WHITE, DEFENDANT-APPELLANT.

CASE NO. 1-13-27

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

Date of Decision: February 18, 2014

OPINION

Appeal from Lima Municipal Court

Trial Court No. 12 TRC 01916

Judgment Affirmed

APPEARANCES:

Andrew R. Bucher for Appellant

E. Richard Eddy, II for Appellee

WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Larry L. White brings this appeal from the judgment of the Lima Municipal Court in Allen County, Ohio, denying in part his motion to suppress evidence collected at an OVI (operation of a vehicle while under the influence of alcohol) roadblock, on March 16, 2012. For the reasons that follow we affirm the judgment of the trial court.

{¶2} On March 16, 2012, between 9 p.m. and midnight, the Ohio State Highway Patrol operated an OVI checkpoint in Allen County, Ohio. At around 10:14 p.m., White drove into the checkpoint and was approached by Trooper Matthew Geer of the Ohio State Highway Patrol, Findlay post. Upon talking to White, Trooper Geer noticed a strong odor of alcoholic beverage coming from inside White's vehicle and noticed that White's face was flushed and his eyes were bloodshot. (Mot. Hr'g Tr. at 8, July 13, 2012 and Sept. 4, 2012.) Trooper Geer also recognized White to have slurred speech. (Id.) White admitted that he had had about three beers that night. He was then asked to pull into the parking lot and perform three field sobriety tests. (Id. at 8-22.) Based on White's performance on those tests, Trooper Geer believed that White was operating under the influence of alcohol and placed him under arrest. (Id. at 22-24.)

{¶3} Initially, White was placed in a police cruiser, but he was later moved to a command center vehicle, "a trailer wherein a portable Intoxilyzer 8000 breath-testing machine was located." (Id. at 24; R. 24, J. Entry at 3.) Trooper Geer asked White for his consent to submit to a chemical test and then read him the "BMV 2255" form. (Tr. at 24-25.) After this test showed that White was driving with a prohibited concentration of alcohol in his system, he was issued a citation for operating a vehicle under the influence of alcohol. (R. at 24, at 4.) White was then released. (Id.)

{¶4} White pled not guilty to the charges against him and filed a motion to suppress, requesting that the trial court exclude the evidence obtained during his warrantless seizure. (R. at 12.) White requested suppression of the following: (1) coordination and/or sobriety tests; (2) alcohol and/or drug level tests; (3) statements taken from or made by White; (4) White's exercise of his right to remain silent; (5) observations and opinions of the police officer(s) who stopped and/or arrested and/or tested White; (6) results of the field sobriety tests performed by White and/or video or audio recordings of the stop and tests. (R. at 12.) As one of the reasons for his motion, White contended that the OVI roadblock was unauthorized and therefore, the stop of his vehicle at the roadblock was unconstitutional, violating his protection against unreasonable searches and seizures. He further argued that even if the initial stop was valid, his arrest was unconstitutional because the field sobriety tests that gave Trooper Geer probable cause for the arrest did not comply with statutory requirements of R.C.4511.19(D)(4)(B). White also argued that the breath test was coerced and improperly performed. He requested an oral hearing on the motion.

{¶5} After conducting a two-day motion hearing, the trial court suppressed evidence of one of the three field sobriety tests, but it overruled the motion to suppress in all other respects. (R. at 24.) Subsequently, White entered a plea of no contest and was found guilty of operating a vehicle while impaired and/or operating a vehicle with a prohibited blood alcohol content in violation of R.C. 4511.19(A)(1)(a) and (A)(1)(d). (R. at 28, J. Entry OVI Sentence.) He was subsequently sentenced but the sentence was stayed pending this appeal.

{¶6} White now appeals the trial court's denial of his motion to suppress raising five assignments of error.

I. THE TRIAL COURT ERRED WHEN IT DETERMINED THE OVI ROADBLOCK USED TO STOP APPELLANT WAS CONSTITUTIONAL

II. THE TRIAL COURT ERRED WHEN IT DETERMINIEND [sic] THAT APPELLANT'S SUBMISSION TO THE BREATH TEST WAS NOT A PRODUCT OF COERCION

III. THE TRIAL COURT ERRED WHEN IT DETERMINED THAT THE 20 MINUTE OBSERVATION PERIOD WAS SUBSTANTIALLY COMPLIED WITH

IV. THE TRIAL COURT ERRED IN DETERMINING THAT THE BREATH TEST WAS PROPERLY ADMINISTERED AND ADMISSABLE [sic] AS THE DRY GAZ WAS EXPIRED

V. THE TRIAL COURT ERRED IN FINDING THERE WAS PROBABLE CAUSE TO ARREST MR. WHITE

Standard of Review

{¶7} Before addressing White's assignments of error we note the applicable standard of review. An appellate review of the trial court's decision on 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; State v. Norman, 136 Ohio App.3d 46, 51, 735 N.E.2d 953 (3d Dist.). We will accept the trial court's factual findings if they are supported by competent, credible evidence because the "evaluation of evidence and the credibility of witnesses" at the suppression hearing are issues for the trier of fact. State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992); Burnside, 2003-Ohio-5372, at ¶ 8; Norman, 136 Ohio App.3d at 51. But we must independently determine, without deference to the trial court, whether these factual findings satisfy the legal standard as a matter of law because "the application of the law to the trial court's findings of fact is subject to a de novo standard of review." Norman, 136 Ohio App.3d at 52; Burnside, 2003-Ohio-5372, at ¶ 8.

{¶8} With this standard in mind, we proceed to review the issues raised by White as they pertain to the trial court's denial of his motion to suppress.

1. First Assignment of Error— Constitutionality of the OVI Roadblock

{¶9} White contends that the OVI roadblock at issue was unconstitutional because it was based on the request that was "supported only by a conclusory statement, devoid of facts or empirical data, then approved by a higher divisions [sic] of the highway patrol." (App't Br. at vi.) Therefore, White alleges that his stop at the checkpoint and the subsequent arrest were in violation of the United States Constitution and the Ohio Constitution.

{¶10} The Ohio Supreme Court held that the constitutional provisions affording protection against "unreasonable searches and seizures" are implicated in cases involving a vehicle stop at a checkpoint "because a vehicle stop at a highway checkpoint constitutes a 'seizure' within the meaning of the Ohio and United States Constitutions." State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001); accord Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) ("a Fourth Amendment 'seizure' occurs when a vehicle is stopped at a checkpoint"). Yet, highway checkpoints or roadblocks are not per se unconstitutional and they have been upheld by the United States Supreme Court and the Ohio Supreme Court. See Sitz, 496 U.S. 444; Orr, 91 Ohio St.3d 389.

{¶11} In 1990, the Supreme Court of the United States established a three-pronged balancing test by which to determine the constitutionality of the sobrietycheckpoints. See Sitz, 496 U.S. 444. In 2001, the Ohio Supreme Court followed the Supreme Court of the United States and other federal and state courts, and applied the three-prong balancing test to a driver's license checkpoint in Ohio, noting that the same test is used for sobriety checkpoints and immigration checkpoints. Orr, 91 Ohio St.3d at 392-393, following Sitz, 496 U.S. 444, United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), United States v. McFayden, 865 F.2d 1306 (D.C.Cir.1989), and State v. Cloukey, 486 A.2d 143 (Me.1985). Therefore based on Orr, the Ohio standard for determining the constitutionality of a roadblock, requires a case-by-case evaluation of "[1] the checkpoint's intrusion on privacy, [2] the state's interest in maintaining the checkpoint, and [3] the extent to which the checkpoint advances the state interest." Id. at syllabus, 392-393.

{¶12} In spite of this well-established standard, White claims in his brief that "[a]n OVI Roadblock is tested for constitutionality in Ohio through the second district four part test," established in a 1984 Second Appellate District case, State v. Goines, 16 Ohio App.3d 168, 474 N.E.2d 1219 (2d Dist.1984).¹ (App't Br. At 5.) The court in Goines quoted the Iowa Supreme Court's holding:

Where there is no consent, probable cause, or Terry-type reasonable and articulable suspicion, a vehicle stop may be made only where there minimally exists (1) a checkpoint or roadblock location selected for its safety and visibility to oncoming motorists; (2) adequate advance warning signs, illuminated at night, timely informing approaching motorists of the nature of the impending intrusion; (3) uniformed officers and official vehicles in sufficient quantity and visibility to "show * * * the police power of the community;" and (4) a predetermination by policy-making administrative officers of the roadblock location, time, and procedures to be employed, pursuant to carefully formulated standards and neutral criteria.²

Id. at 170-171, quoting State v. Hilleshiem, 291 N.W.2d 314, 318 (Iowa 1980). Alleging that the fourth element of the above standard is not satisfied in the current case, White urges us to find the roadblock at issue unconstitutional.

{¶13} We recognize that some Ohio courts have used the four-prong analysis quoted in Goines to determine constitutionality of roadblocks or checkpoints. For example, the First Appellate District expressly adopted the four-prong test stating, albeit incorrectly, that it had been "adopted in Ohio by the Second Appellate District,"³ and classifying...