[Cite as State v. Gibson,
2022-Ohio-3862.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 21CA011847
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LAVELL GIBSON COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 21CR104074
DECISION AND JOURNAL ENTRY
Dated: October 31, 2022
CARR, Judge.
{¶1} Appellant, the State of Ohio, appeals from the decision of the Lorain County Court
of Common Pleas, granting a motion to suppress filed by Appellee, Lavell Gibson. This Court
reverses and remands for further proceedings.
I.
{¶2} While on patrol one evening, Officer Joanna Catalano responded to the intersection
of Lorain Boulevard and Midway Boulevard based on a report of a reckless driver. She spotted
the stopped vehicle at issue obstructing the intersection and pulled behind it to investigate. Gibson,
the driver, was alone inside the vehicle. Officer Catalano observed that he had bloodshot, glossy
eyes and slurred speech. She also detected an odor of alcohol coming from his vehicle and asked
Gibson whether he had been drinking. Although he initially said he had not consumed any alcohol
that evening, Gibson then changed his statement and said he had consumed two drinks a few hours
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earlier. When Officer Catalano asked Gibson if he would be willing to submit to field sobriety
testing, Gibson agreed.
{¶3} Due to safety concerns and other logistical considerations, Officer Catalano
decided to transport Gibson to the nearby police station to conduct his field sobriety tests. Pursuant
to departmental policy and for her safety, she patted him down and handcuffed him before placing
him in the back of her cruiser and driving him to the station. Meanwhile, a second officer remained
with Gibson’s vehicle and waited for a tow truck to arrive. Gibson failed the field sobriety tests
Officer Catalano administered at the station. He also refused to undergo a chemical test.
{¶4} As a result of the foregoing incident, Gibson was charged with violating R.C.
4511.19(A)(1)(a) (operating a vehicle under the influence of alcohol (“OVI”)) and R.C.
4511.19(A)(2) (OVI with a prior OVI conviction and refusal to submit to a chemical test). He
moved to suppress the evidence against him on the basis that, at the time Officer Catalano arrested
him, she lacked probable cause for his arrest. It was Gibson’s position that Officer Catalano
arrested him when she handcuffed him, placed him in the back of her cruiser, and transported him
to the police station. The State responded in opposition to the motion to suppress, and Gibson
filed a reply. Following a suppression hearing, the trial court granted Gibson’s motion to suppress.
{¶5} The State now appeals from the trial court’s suppression ruling and raises one
assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING APPELLEE’S MOTION TO
SUPPRESS EVIDENCE.
{¶6} In its sole assignment of error, the State argues that the trial court erred when it
granted Gibson’s motion to suppress. It is the State’s contention that Gibson was not placed under
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arrest until he refused to submit to a chemical test at the police station. Alternatively, the State
argues that Officer Catalano had probable cause to arrest Gibson when she transported him to the
police station. For the following reasons, this Court sustains the State’s assignment of error.
{¶7} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,
the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses.”
Id., citing State v. Mills,
62 Ohio St.3d 357,
366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if they are
supported by competent, credible evidence.” Burnside at ¶ 8. “Accepting these facts as true, the
appellate court must then independently determine, without deference to the conclusion of the trial
court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara,
124
Ohio App.3d 706 (4th Dist.1997).
{¶8} “Encounters with police span a continuum from consensual encounters to
investigatory stops to seizures tantamount to an arrest.” State v. Mason, 9th Dist. Summit No.
27715, 2016-Ohio-7081, ¶ 20. Consensual encounters do not trigger Fourth Amendment
protections, but investigatory detentions require reasonable suspicion and arrests require probable
cause.
Id. Because investigatory detentions do not require probable cause,
id., they must be
limited in scope and duration. Florida v. Royer,
460 U.S. 491, 500 (1983). If a detention “exceeds
the bounds of an investigatory stop, it may be tantamount to an arrest.” State v. Snyder, 9th Dist.
Medina No. 06CA0018-M,
2006-Ohio-6911, ¶ 13.
{¶9} The question of whether an officer had probable cause to arrest a defendant “is a
fact-intensive inquiry ….” State v. Davis, 9th Dist. Summit No. 29273, 2020-Ohio-473, ¶ 19.
“An officer has probable cause to arrest an individual for impaired driving if, ‘at the time of arrest,
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the officer had sufficient facts derived from a reasonably trustworthy source to cause a prudent
person to believe the suspect was driving under the influence.’” State v. Spees, 9th Dist. Medina
No. 17CA0061-M, 2018-Ohio-2568, ¶ 30, quoting State v. Hopp, 9th Dist. Summit No. 28095,
2016-Ohio-8027, ¶ 8. This determination “‘is made from the totality of the circumstances.’” State
v. White, 9th Dist. Wayne No. 05CA0060,
2006-Ohio-2966, ¶ 24, quoting State v. Shull, 5th Dist.
Fairfield No. 05-CA-30,
2005-Ohio-5953, ¶ 20. “[A]n officer need not administer field-sobriety
tests, nor witness erratic driving in order to have probable cause to arrest a driver for driving under
the influence.” State v. Delong, 9th Dist. Lorain No. 18CA011306,
2018-Ohio-5262, ¶ 15. The
State may “‘rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred
speech, confused appearance) to demonstrate that a person’s physical and mental ability to drive
was impaired.’” State v. Slone, 9th Dist. Medina No. 04CA0103-M,
2005-Ohio-3325, ¶ 9, quoting
State v. Holland, 11th Dist. Portage No. 98-P-0066,
1999 WL 1313665, *5 (Dec. 17, 1999). “The
amount of evidence necessary for probable cause to suspect a crime is being committed is less
evidence than would be necessary to support a conviction of that crime at trial.” State v. McGinty,
9th Dist. Medina No. 08CA0039-M,
2009-Ohio-994, ¶ 11.
{¶10} The trial court made each of the following findings of fact. Around 8:12 p.m.,
Officer Catalano received a dispatch regarding a black, four-door sedan driving recklessly around
the intersection of Lorain Boulevard and Midway Boulevard. She arrived in the area within
minutes of the dispatch and saw a vehicle matching that description. The vehicle was stopped in
front of the stop bar on the road and was obstructing the intersection. After pulling behind the
vehicle and activating her cruiser’s lights, Officer Catalano approached the vehicle on foot to speak
with the driver. She identified Gibson as the driver of the vehicle.
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{¶11} As Officer Catalano spoke with Gibson, she noted he had bloodshot and glossy
eyes as well as slurred speech. She also detected the odor of alcohol coming from his vehicle and
asked Gibson if he had been drinking. Gibson initially denied that he had been drinking but then
said he had consumed two drinks earlier that evening. When Officer Catalano asked Gibson if he
would submit to field sobriety testing, Gibson agreed to take the tests.
{¶12} Officer Catalano had Gibson exit his vehicle. Because she and Gibson were
standing in the middle of an intersection, Officer Catalano did not feel it was safe to conduct the
field sobriety tests in that location. The trial court found that there were “several parking lots in
the area, including a new parking lot that [was] well-lit at a nearby Get Go,” but that, “for her
safety,” Officer Catalano “believed the best place to conduct the tests was at the police station.”
As a result, Officer Catalano transported Gibson to the Elyria Police Department while a second
officer remained on scene to oversee the towing of his vehicle. Before placing Gibson in the back
of her cruiser to transport him to the police station, Officer Catalano patted him down and placed
him in handcuffs.
{¶13} The trial court found that Officer Catalano’s actions in placing Gibson in the back
of her police cruiser for transport “did not automatically transform [her] investigatory detention
into a formal arrest that require[d] probable cause.” Even so, the court determined that the
investigative detention Officer Catalano conducted lasted longer than was reasonably necessary
for her to confirm or dispel her suspicions. The court found that “the safety concerns related to
the location of the stop did not justify continued detention in the back of [her] cruiser to allow
[her] to handcuff Gibson, make a decision to tow his vehicle, and transport him all the way to the
police department when conditions to perform the [field sobriety] test were not necessarily unsafe
though not preferred.” The court found that Gibson was under arrest “prior to [] arriving at the
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Elyria Police Department” and, at that time, Officer Catalano lacked probable cause to arrest.
Consequently, the trial court granted Gibson’s motion to suppress.
{¶14} The State argues that the trial court erred when it concluded that Gibson’s arrest
occurred before he and Officer Catalano arrived at the police station. According to the State,
Officer Catalano lacked the intent to arrest Gibson at that time. Further, the State challenges the
trial court’s factual finding that parking lots near the scene of the stop “were not necessarily
unsafe[.]” It is the State’s position that Gibson remained under investigative detention until he
refused a chemical test at the police station. Alternatively, the State argues that Officer Catalano
possessed probable cause to arrest Gibson at the scene based on her observations and the totality
of the circumstances.
{¶15} Because this Court need only accept the trial court’s factual findings as true if they
are based on competent, credible evidence, we begin by outlining the evidence introduced at the
suppression hearing. See Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, at ¶ 8. Officer Catalano
was the only witness who testified at that hearing and offered the following testimony.
{¶16} At 8:12 p.m., Officer Catalano received a dispatch about a black, four-door sedan
driving recklessly around the area of Lorain Boulevard and Midway Boulevard. It only took her
a few minutes to arrive in the area and, as she drove, she received updated information from the
dispatcher. She learned that the vehicle had stopped at the intersection of Lorain Boulevard and
Midway Boulevard. Upon her arrival, she spotted the vehicle and pulled behind it. Officer
Catalano testified that the vehicle was stopped in one of two left-turn lanes and was obstructing
the intersection because it had stopped past the stop bar. Although the traffic light was changing,
Office Catalano stated, the vehicle remained stationary. Once she activated her cruiser’s overhead
lights, Officer Catalano went to speak with the vehicle’s driver.
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{¶17} Officer Catalano identified Gibson as the vehicle’s driver. She testified that, when
she spoke with Gibson, his eyes appeared to be bloodshot and glossy. Gibson’s speech was also
“very slurred[,]” and Officer Catalano detected an odor of alcohol coming from his vehicle. When
Officer Catalano asked Gibson whether he had had anything to drink, he initially said no. He then
changed his statement and said he had consumed two drinks earlier that evening. At that point,
Officer Catalano asked Gibson whether he would be willing to undergo field sobriety testing, and
Gibson agreed to perform the tests.
{¶18} Officer Catalano testified that a second officer arrived on scene during her
exchange with Gibson, and the two discussed the situation. She testified that the stop occurred in
the middle of the intersection, so it was a “very dangerous place” to be and not an appropriate
location for the field sobriety tests she needed to administer. Although there were some
surrounding businesses and stores, Officer Catalano and her fellow officer decided that she
(Officer Catalano) should transport Gibson to the nearby police station to administer the tests.
Officer Catalano testified that their decision to transport Gibson to the station was based on several
factors. First, the transport to the station would ensure that Officer Catalano was not alone with
Gibson when she conducted the tests. Second, Officer Catalano knew the police station would
offer a flat, well-lit surface for the field sobriety tests. Third, the police station was “less than five
minutes away.”
{¶19} Officer Catalano testified that she patted down and handcuffed Gibson before
placing him in her cruiser and driving him to the police station. She stated that she performed both
actions to comply with departmental policy and to ensure her safety. Regarding Gibson’s vehicle,
Officer Catalano testified that a decision was made to tow it from the scene because Gibson “was
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in no state to drive[,]” no one else was available to retrieve it for him, and the vehicle could not
remain sitting in the intersection.
{¶20} Although the State challenges one of the trial court’s factual findings (i.e., that
nearby parking lots “were not necessarily unsafe”), that finding only relates to the State’s
investigatory detention argument. See Royer, 460 U.S. at 500 (1983) (noting that investigatory
detentions must employ “the least intrusive means reasonably available”). The State has not
challenged any of the trial court’s other factual findings, and the record supports the conclusion
that those findings are based on competent, credible evidence. See Burnside,
100 Ohio St.3d 152,
2003-Ohio-5372, at ¶ 8. The State has included as an alternative argument that Officer Catalano
had probable cause to arrest Gibson at the scene. Because this appeal may be resolved upon that
alternative argument, this Court need not determine whether the trial court erred when it found that
nearby parking lots “were not necessarily unsafe[.]”
{¶21} Assuming without deciding that Officer Catalano arrested Gibson before
transporting him to the police station, the record supports the conclusion that the arrest was based
on probable cause. The Ohio Supreme Court has found that erratic or reckless driving, when
coupled with other factors such as bloodshot eyes, the smell of alcohol, and an admission to
drinking, amounts to probable cause for an OVI arrest even where no field sobriety tests have been
administered. State v. Homan, 89 Ohio St.3d 421, 427 (2000). Officer Catalano responded to the
scene based on a report of reckless driving and, when she arrived, she found Gibson’s vehicle
blocking the intersection. She observed that Gibson had bloodshot and glossy eyes as well as
“very slurred” speech. See State v. Willard, 9th Dist. Medina No. 04CA0045-M,
2005-Ohio-1627,
¶ 29. She also detected an obvious odor of alcohol coming from his vehicle, and Gibson gave her
inconsistent statements about whether he had consumed any alcohol that evening. See State v.
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Filip, 9th Dist. Medina No. 16CA0049-M, 2017-Ohio-5622, ¶ 19. “Even if one or more of the
foregoing factors, standing alone, would have been insufficient to establish probable cause, a
probable cause analysis requires a court to consider the totality of the circumstances.” State v.
McQuistan, 9th Dist. Medina No. 17CA0007-M,
2018-Ohio-539, ¶ 15. Based on the totality of
the circumstances herein, we must conclude that Officer Catalano had probable cause to suspect
Gibson was driving while impaired. See
Homan at 427; Slone,
2005-Ohio-3325, at ¶ 9, quoting
Holland,
1999 WL 1313665, at *5. Compare State v. Hopp, 9th Dist. Summit No. 28095, 2016-
Ohio-8027, ¶ 11 (concluding that probable cause did not exist where there was no indication of
erratic driving and defendant’s speech was only slightly slurred). The trial court, therefore, erred
when it reached a contrary conclusion and granted Gibson’s motion to suppress. The State’s sole
assignment of error is sustained on that basis.
III.
{¶22} The State’s sole assignment of error is sustained. The judgment of the Lorain
County Court of Common Pleas is reversed, and the cause is remanded for further proceedings
consistent with the foregoing opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
TEODOSIO, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
J.D. TOMLINSON, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting
Attorney, for Appellant.
DOUGLAS W. MERRILL, Attorney at Law, for Appellee.
