COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71600 CITY OF STRONGSVILLE : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : PAUL KESSLER : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 21, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Berea Municipal Court Case No. 96-TRC-2105 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JOSEPH A. GAMBINO, ESQ. BRIAN D. KERNS, ESQ. STEVEN GAUL, ESQ. 7029 Pearl Road, Suite 310 11221 Pearl Road Middleburg Hts., Ohio 44130 Strongsville, Ohio 44136 2 DYKE, J.: Defendant Paul Kessler appeals from his conviction for operating a motor vehicle with a prohibited breath alcohol concentration. For the reasons set forth below, we affirm. On May 26, 1996, defendant was stopped while operating a motor vehicle in the City of Strongsville, and subsequently submitted to a breath alcohol test. The test results indicated that defendant had a breath alcohol concentration level of .174 grams of alcohol per 210 liters of breath. Defendant was issued citations for operating a motor vehicle with a prohibited breath alcohol concentrationin violation of R.C. 4511.19(A)(3) and for operating a motor vehicle while under the influence of alcohol and pleaded not guilty. On August 7, 1996, defendant moved to suppress the results of the breath alcohol test and asserted that there were no specific and articulable facts to justify the stop; that he was not properly advised of his constitutional rights before speaking with the police; and that the breath alcohol test was not performed in compliance with the regulations promulgated by the Ohio Department of Health. Defendant did not, however, specifically identify the exact regulations which he believed had been violated. The court held a hearing on the motion to suppress on September 27, 1996. The city presented the testimony of Strongsville Police Officers Brian Oyler and Sean Hartwell. Officer Oyler testified that while on uniformed patrol duty on the night of May 26, 1995, he observed a white Corvette enter South 3 Park Mall. According to Officer Oyler, the Mall was then under construction and had a restricted area which was monitored by a security guard. Officer Oyler notified the security officer that the vehicle had entered the area and later responded to a call for assistance. Upon Officer Oyler's arrival, the security guard reported that he believed that [defendant] might have been impaired. (Tr. 5). Officer Oyler approached defendant who indicated that he did not have permission to be in the area and stated that he was lost and intended to turn around there. The officer detected the odor of alcohol and further observed that defendant's speech was somewhat thick, and his eyes were red and glassy. (Tr. 6) The officer asked defendant to exit his vehicle then administered field sobriety tests to him. According to Oyler, six out of six clues signaling the presence of intoxication were present following administration of the Horizontal Gaze Nystagmus Test, and during the One Leg Stand, defendant failed to count the number five, counted the number seven twice, and swayed, raised his arms, and almost lost his balance while counting from twenty-one to thirty. Officer Oyler formed the opinion that defendant was intoxicated due to his performance on the test and also from his observations of defendant's physical condition and the presence of the odor of alcohol. Defendant was then arrested and transported to the Strongsville Police Department. Officer Oyler admitted on cross-examination, that the security 4 guard working at South Park Mall had taken defendant's driver's license from defendant then gave it to Oyler when the officer responded to the scene. He further admitted that defendant was not charged with any violation of the city's traffic ordinances. Officer Hartwell testified that he assisted Officer Oyler in booking defendant following his arrest and also administered the Breathalyzer test to defendant. Hartwell testified that he completed the four steps indicated on the Intoxilizer 5000 operational checklist then asked defendant to provide a breath sample. In addition, the city introduced an affidavit concerning the calibration of the Breathalyzer and its compliance with Department of Health requirements. Officer Hartwell was not cross-examined as to the procedures which he employed during his administration of the Breathalyzer test, and defendant presented no evidence to suggest that any of the regulations were not met. In argument, however, the defense maintained that defendant was not free to leave when the security guard stopped him, that the stop was pretextual and unreasonable, and that the city presented no evidence concerning the calibration of the machine or the police officer's observation of defendant during the twenty minute time period preceding the administration of the test. Thereafter, the trial court issued an opinion in which it determined in relevant part as follows: *** Officer Oiler (sic) observed Defendant's vehicle turn from Rt. 82 into South Park Shopping Mall which at the time was under construction and not open to the public. He called Officer Stewart on the radio who was 5 working private security. Stewart stopped Defendant to advise [that] it was private property and determine what business Defendant had there. Stewart observed Defendant to have alcohol on his breath and called Oiler (sic) to further investigate. Oiler (sic) entered the area, approached Defendant, observed alcohol on his breath, thick speech and glassy-red eyes. Oiler (sic) then had Defendant leave the vehicle and performed field sobriety tests. Defendant scored all six cues on the HAN test and miscounted on the one leg stand. Defendant was then placed under arrest[,] taken to the station and given the Intoxilizer test which scored .174 BAC. All formalities of the Intoxilizer test were met by the police. The Court finds [that] there was reasonable and articulable cause to investigate, probable cause to arrest and a properly performed BAC test. Motion to Suppress is overruled. Defendant subsequently entered a no contest plea to the charge of operating a motor vehicle with a prohibited breath alcohol concentration and the charge of driving while under the influence was dismissed. The court found defendant guilty upon the no contest plea. The court then fined him $500, sentenced him to thirty days in jail with twenty-seven days suspended, suspended his driver's license for six months, and imposed one year of active probation. Defendant commenced the instant appeal and obtained a stay of sentence. Herein, he assigns three errors for our review. Defendant's first assignment of error states: THE POLICEMAN DID NOT HAVE A REASONABLE AND ARTICULABLE SUSPICION SUFFICIENT TO JUSTIFY THE STOP AND DETENTION OF DEFENDANT. 6 Within this assignment of error, defendant asserts that there was no reasonable, articulable suspicion for the stop because once defendant informed the security guard that he simply intended to turn around in the area, any suspicion was dispelled. As an initial matter we note that the limitations imposed by the Fourth Amendment are developed in relation to the concrete factual circumstances of individual cases. Ornelas v. United States (1996), __ U.S. __, 116 S.Ct. 1657, 1661. That is, The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or probable cause. Id. In this instance, the historical facts demonstrate that Officer Oyler observed defendant's vehicle proceed into a restricted area of South Park Mall which was then under construction. Oyler notified the officer working a security assignment at this location of his observation. Thereafter, the security guard questioned defendant, obtained his driver's license and requested assistance from Officer Oyler, reporting that defendant appeared to be intoxicated. Applying the law to these facts, we note that in Berkemer v. McCarty(1984), 468 U.S. 420, 439, the Supreme Court of the United States held that the usual traffic stop is analogous to a stop made pursuant to Terry v. Ohio (1968), 392 U.S. 1. The Court stated as follows: Under the Fourth Amendment, we have held, a policeman who 7 lacks probable cause but whose observations lead him reasonably to suspect that a particular person has committed, is committing, or is about to commit a crime, may detain a person briefly in order to investigate the circumstancesthat provoke suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed. 607 (1975). [T]he stop and inquiry must be `reasonably related in scope to the justification for their intrusion.' Ibid. (quoting Terry v. Ohio, supra, 392 U.S., at 29, 88 S.Ct., at 1884.) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must be released. In addition, it is well-settled that reasonable suspicion to initiate an investigatory stop may be provided by information from outside the officer's own observations, see Adams v. Williams (1972), 407 U.S. 143, 146, and reasonable suspicion has also been established where a security guard conveys information to the police. See State v. Rivera (June 11, 1987), Cuyahoga App. No. 52016, unreported; State v. Wilkes (September 30, 1993), Montgomery App. No. 13654, unreported; State v. First (December 27, 1995), Summit App. No. 17293, unreported. The court in State v. First, supra, stated: A security guard at the store witnessed First behaving strangely and saw him almost hit another car while driving out of the parking lot. The security guard then contacted the Fairlawn police department, stating that he believed First (whom he did not identify by name, but only physical description) was intoxicated and was driving away from Sun TV. *** *** Officer Bartlett testified that he had not observed any erratic driving and had no reason, other than the radio dispatch, to stop the vehicle. Officer Bartlett stated that, upon speaking to First, he noticed a strong odor of alcohol and that 8 First's speech was slurred. *** In this case the provider of the information was a private citizen, not a paid police informant; he had witnessed First's behavior himself; he identified himself and was not anonymously providing information. His information, therefore is presumed to be even more reliable than an uncorroborated anonymous tip or information provided by other police informants. *** We hold that, given the totality of the circumstancesherein, the record supports a finding that the stop of First's automobile by Officer Bartlett was based on reasonable suspicion and the trial court properly denied First's motion to suppress. Likewise, in this instance, the security guard working at the Mall spoke with defendant then notified Officer Oyler that he believed that [defendant] might have been impaired. (Tr. 5) This information from an identified informant then provided Officer Oyler with reasonable suspicion to stop the vehicle. Defendant further maintains that the officer's detection of the odor of alcohol did not justify any further inquiry and he cites to this passage within State v. Finch (1985), 24 Ohio App.3d 38, 40: ... it is not a violation of the law to drive smelling of alcohol or with bloodshot eyes, a flushed face or slurred speech.... In other words, merely appearing too drunk to drive is not in our opinion, enough.... When the entire Finch opinion is considered, however, it is clear that this case is not applicable herein as it involved an arrest for driving while under the influence which occurred immediately following the arresting officer's arrival on the scene and without the administration of any field sobriety tests. Indeed, language in the court's opinion immediately following that cited by defendant provides as follows: 9 Had Ranger Jones instructed appellee to perform field sobriety tests prior to placing him under arrest, and had appellee failed the tests, she would have had reasonable grounds to believe that he was operating the vehicle while under the influence of alcohol, at which time she would have had probable cause to arrest appellee. The record as it stands, however, indicates that the arrest at issue was premature. Id. In this case, the field sobriety tests preceded and justified the arrest and properly followed from the lawful stop of defendant. The first assignment of error is without merit. Defendant's second assignment of error states: NO EVIDENCE WAS INTRODUCED BY THE PROSECUTION THAT APPELLANT WAS ADVISED OF HIS CONSTITUTIONAL RIGHTS AS MANDATED BY MIRANDA V. ARIZONA Within this assignment of error, defendant maintains that he was not advised of his right to refrain from making any self- incriminating statement and therefore statements made at the police station or on police records are subject to suppression. It is clear that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona (1966), 384 U.S. 436, 444. Nonetheless, in Berkemer v, McCarty (1984), 468 U.S. 420, 440, the Supreme Court of the United States noted that the safeguards prescribed by Miranda become applicable as soon as a suspect's 10 freedom of action is curtailed to a degree associated with formal arrest. Id.,at 440, citing California v. Beheler (1983), 463 U.S. 1121, 1125. The Court then determined that roadside questioning of a motorist detained pursuant to a routine traffic stop was not a custodial interrogation which required reading of the Miranda warnings. The Court explained as follows: First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. *** Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. *** In short, the atmosphere surrounding an ordinary traffic stop is substantially less `police dominated' than that surrounding the kinds of interrogation at issue in Miranda itself ***. *** The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are not in custody for the purposes of Miranda. Id. at 437-440. In addition, physical sobriety tests do not constitute testimonial or communicative acts which are protected by the privilege against self-incrimination set forth in the Fifth Amendment. See State v. Brandenburg (1987), 41 Ohio App.3d 109, 111. The Brandenburg Court stated: *** [T]he United States Supreme Court has held that only testimonial and communicative acts are protected by the privilege against self-incrimination set forth in the Fifth Amendment. Schmerber v. California (1966), 384 U.S. 757. That case excluded chemical tests to determine blood-alcohol content from the definition of testimonial or communicative acts. The Ohio Supreme Court has held that testimonial and communicative acts were those disclosing matter communicated by the accused from his knowledge of the offense. Piqua v. Hinger (1968), 15 11 Ohio St.2d 110, 113, 44 O.O. 2d 81, 82, 238 N.E. 2d 766, 768. In Hinger it was held that physical sobriety tests and films made of them did not constitute testimonial or communicative acts. In the case before us, Brandenburg's performance in the tests was not communication elicited from him regarding his knowledge of the offense. ***. Id. Finally, inquiry into whether the suspect will take a blood- alcohol test is not an interrogation within the meaning of Miranda. South Dakota v. Neville (1988), 459 U.S. 553, 564, fn. 15; State v. Feasel (1988), 41 Ohio App.3d 155, 157. Applying all of the foregoing, the police were under no obligation to read defendant his Miranda warnings until they determined that he should be arrested. Accord State v. Feasel (1988), 41 Ohio App.3d 155, 157. Thus, evidence of defendant's statements made prior to Officer Oyler's determination that defendant was intoxicated were properly admitted by the trial court. The second assignment of error is without merit. Defendant's third assignment of error states: APPELLEE FAILED TO PRESENT EVIDENCE OF SUBSTANTIAL COMPLIANCE WITH DEPARTMENT OF HEALTH REGULATIONS SUFFICIENT TO JUSTIFY ADMISSION OF THE RESULTS OF APPELLANT'S BREATH TEST. Within this assignment of error, defendant asserts that the results of his breath test were improperly admitted because the prosecutor failed to establish that defendant was observed for twenty minutes prior to the test or that the machine was properly 12 calibrated. With regard to procedure, Crim. R. 47 requires that the prosecution be given notice of the specific legal and factual grounds upon which the validity of the search and seizure is challenged. See, also, State v. Schindler (1994), 70 Ohio St.3d 54, 57-58 (By requiring the defendant to state with particularity the legal and factual issues to be resolved, the prosecutor and court are placed on notice of those issues to be heard and decided by the court, and, by omission, those issues which are otherwise being waived. ) With regard to the substantive law, we note that in order to admit evidence of Breathalyzer test results into evidence, the prosecution must produce evidence which demonstrates minimum levels of the reliability of the test operator, the test equipment and the testing procedures. State v. Adams (1992), 73 Ohio App.3d 735, 741. As to the issue of the reliability of the operator, R.C. 4511.19(D) mandates that the test be conducted by an individual possessing a valid permit issued by the Department of Health. In this instance, Officer Hartwell testified that he received training regarding operating the Breathalyzer, and is so certified, and this evidence was uncontroverted. The trial court was therefore entitled to rely on this unchallenged testimony. State v. George (1994), 98 Ohio App.3d 371, 376. As to the issue of the test equipment and procedure, it is well-settled that tests administered in substantial compliance with 13 the requirements of the Ohio Administrative Code are admissible in the absence of a showing of prejudice to the defendant. State v. Plummer (1986), 22 Ohio St.3d 292, syllabus. The result of a Breathalyzer test are admissible where the state establishes that the test was administered within two hours of defendant's violation, that the officer observed the defendant as required by the Director of Health, that the equipment was properly calibrated, that the Breathalyzer operational checklist was followed, and that the equipment was functioning properly. See Cincinnati v. Duhart (1974), 41 Ohio App.2d 127, 132. Accord State v. Brown (1975), 49 Ohio App.2d 104 (general questions and answers of a witness that he conducted a Breathalyzer test in accordance with state health methods and regulations are sufficient unless the defense, by cross-examination or otherwise places such compliance in issue). See, also, Bolivar v. Dick (1996), 76 Ohio St.3d 216, 218, (the operational checklist which is part of the Breathalyzer test report form provides the methods approved by the Director of Health for the operation of the Breathalyzer, pursuant to the requirements of R.C. 4511.19(D)). Moreover, with particular regard to the observation rule, one of the items on the operational checklist, it is clear that the purpose of the rule is to establish that the accused did not ingest some material which might produce an inaccurate test result. Id., at 189. A witness who testifies regarding the observation of the suspect is not required to show that the suspect was constantly under surveillance but only that the subject was kept in such a 14 location or condition or under such circumstances that one may reasonably infer that his ingestion of any material without the knowledge of the witness is unlikely or improbable. State v. Adams, supra, at 740. To overcome that inference, the accused must show that he or she did, in fact, ingest some material during the twenty-minute period. Id. In this instance, The prosecuting attorney presented testimony to demonstrate that the Breathalyzer operational checklist was followed, and this checklist includes the requirement that the officer Observe subject for twenty minutes to prevent oral intake of any material. The prosecuting attorney further demonstrated that the test was administered within two hours of defendant's violation, that the there had been compliance with the requirements of the Department of Health, regarding the storage and use of the calibration solution, and that a Radio Frequency Interference Survey had been performed for the Breathalyzer. The defense presented no indication that the machine was unreliable or rendered an unreliable result, or that the testing procedures were inaccurate. More specifically, there was no evidence that defendant ingested anything during the twenty minutes preceding the test. We are therefore unable to conclude that the trial court erred in admitting the results of the breath test into evidence. The third assignment of error is overruled. Affirmed. 15 16 It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Berea Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SWEENEY, C.J., AND PORTER, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .