Wenrich v. Franz

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Drew Wenrich, : Case No. 1:20-cv-518

:

Plaintiff, :

: Judge Susan J. Dlott

v. :

: Order Denying Motion for Summary

Clarke Franz, : Judgment

:

Defendant. :

:

This matter is before the Court on Defendant’s, Trooper Clarke Franz, Motion for

Summary Judgment. (Doc. 28.) Trooper Franz moves for summary judgment arguing that he is

entitled to qualified immunity relating to the conduct that gave rise to this suit. For the reasons

that follow, Trooper Franz’s Motion for Summary Judgment will be DENIED.

I. BACKGROUND

A. Facts

At 10:36 p.m., on July 6, 2019, Trooper Franz, a trooper for the Ohio State Patrol, was

performing duties for the Patrol as part of a federally funded overtime shift for the purpose of

impaired vehicle interdiction. (Doc. 28-1 at PageID 322; Doc. 30-1 at PageID 343.) While

traveling in the left-most lane on Interstate 75 in Butler County, Trooper Franz came up behind

the Plaintiff, Drew Wenrich, driving in the same lane. (Dash Camera at 0:00–0:40.)1 Wenrich

then proceeded to make a right-hand lane change. (Id. at 0:40–1:00.) After completing the lane

change, Wenrich activated his right turn signal and made a second right-hand lane change. (Id.

at 1:24–1:37.) Trooper Franz testified that, after Wenrich completed each lane change, he

1 Franz manually filed with the Court a DVD of the dash camera audiovisual recording of the traffic stop at issue in

this matter.

crossed into the neighboring lane and thus committed marked lane violations. (Franz Dep., Doc.

19 at PageID 91, 99–100.) In both his Verified Complaint and his Declaration, Wenrich denied

that he crossed into the neighboring lane. (Doc. 1 at PageID 3; Wenrich Decl., Doc. 27-1 at

PageID 302.) After Wenrich completed the second lane change, Trooper Franz changed lanes to

stay behind Wenrich’s vehicle and began to pace Wenrich. (Franz Dep., Doc. 19 at PageID 92–

94.) Trooper Franz testified that he paced Wenrich’s vehicle at a speed that never went below 72

m.p.h., and the posted speed limit was 65 m.p.h. (Id. at PageID 93–94.) Wenrich testified,

however, that he was not in fact speeding. (Wenrich Decl., Doc. 27-1 at PageID 302.) After

pacing Wenrich for approximately ten seconds, Trooper Franz activated his lights and initiated a

traffic stop. (Franz Dep., Doc. 19 at PageID 93; Doc. 28-1 at PageID 323; Doc. 30-1 at PageID

344.)

Once Wenrich pulled onto the shoulder and stopped his vehicle, Trooper Franz

approached Wenrich’s passenger side window and spoke with him. (Doc. 28-1 at PageID 323;

Doc. 30-1 at PageID 344.) Trooper Franz told Wenrich that he stopped Wenrich for marked lane

violations and speeding. (Dash Camera at 3:08–3:11.) At this point, Trooper Franz testified that

he smelled alcohol coming from Wenrich’s vehicle and observed Wenrich as having bloodshot

and glassy eyes. (Franz Dep., Doc. 19 at PageID 109–10.) Wenrich testified that he gave no

physical clues to suggest that he had been drinking. (Wenrich Decl., Doc. 27-1 at PageID 302.)

Trooper Franz proceeded to ask whether Wenrich had been drinking, and Wenrich stated

that he had a single beer that day. (Doc. 28-1 at PageID 323; Doc. 30-1 at PageID 345.) Trooper

Franz then ordered Wenrich out of his vehicle and toward the back of the cruiser and performed

a consensual pat down of Wenrich; during this time, Trooper Franz testified that he detected the

smell of alcohol from Wenrich’s person. (Dash Camera at 3:25–3:46; Franz Dep., Doc. 19 at

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PageID 110.) Wenrich maintains that he did not smell of alcohol at the time. (Wenrich Decl.,

Doc. 27-1 at PageID 303.) Trooper Franz again asked Wenrich how many alcoholic beverages

he had consumed, to which Wenrich responded that he had one beer. (Doc. 28-1 at PageID 323;

Doc. 30-1 at PageID 345–46.)

At this point, Trooper Franz requested that Wenrich submit to a field sobriety test and

Wenrich refused. (Doc. 28-1 at PageID 323–24; Doc. 30-1 at PageID 346.) After clarifying that

Wenrich was refusing all field sobriety tests, Trooper Franz informed Wenrich that he was being

placed under arrest for operating a vehicle under the influence (“OVI”) and placed him in

handcuffs. (Doc. 28-1 at PageID 324; Doc. 30-1 at PageID 346.) Trooper Franz then placed

Wenrich into the cruiser. While walking to the cruiser, Wenrich requested a blood test, to which

Trooper Franz responded that he would not offer a blood test but would offer Wenrich a

breathalyzer test back at the patrol post. (Doc. 28-1 at PageID 324; Doc. 30-1 at PageID 346.)

Trooper Franz additionally told Wenrich that he needed to call a tow truck for Wenrich’s vehicle

and complete paperwork before they could leave for the patrol post. (Doc. 28-1 at PageID 324;

Doc. 30-1 at PageID 346.)

After getting back into his cruiser, Trooper Franz called for a tow truck and proceeded to

speak with Wenrich and complete paperwork regarding the stop. (Dash Camera. at 7:00–16:00.)

Wenrich later requested that his wife and mother-in-law be permitted to come and pick up his

car. Trooper Franz denied this request because he had already called a tow truck. (Id. at 12:35–

12:43.) Wenrich then asked who would pay for the towing charges, and Trooper Franz

responded that Wenrich would have to pay the charges and noted that Wenrich could attempt to

recover from the State in a civil action. (Id. at 14:10–14:30.)

Approximately fifteen minutes after the stop began, Trooper Franz exited the cruiser to

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perform an administrative inventory of Wenrich’s vehicle. (Doc. 28-1 at PageID 325; Doc. 30-1

at PageID 347.) During the inventory, Trooper Franz noticed a bag containing sealed beer

bottles. (Doc. 28-1 at PageID 325; Doc. 30-1 at PageID 347.) After returning to his cruiser,

Trooper Franz used Wenrich’s phone to call Wenrich’s wife. Trooper Franz informed her of

Wenrich’s arrest for OVI and provided the address for the patrol post where she could pick him

up. (Doc. 28-1 at PageID 325; Doc. 30-1 at PageID 347.) Still waiting for the tow truck,

Wenrich asked whether he could now consent to field sobriety tests. Trooper Franz responded

that this could not happen because he already refused the field sobriety tests and the tow truck

was already on its way. (Doc. 28-1 at PageID 325; Doc. 30-1 at PageID 347.)

After the tow truck arrived and departed with Wenrich’s vehicle, Trooper Franz drove

Wenrich to the patrol post. (Dash Camera at 35:00–42:18, 42:35–54:30.) Four minutes after

arriving at the post, Wenrich submitted to a breathalyzer test which returned a blood alcohol

level of 0.00%. (Doc. 28-1 at PageID 326; Doc. 30-1 at PageID 347.) At this point, Wenrich

alleges that, upset by the negative results, Trooper Franz left Wenrich handcuffed to a table in

the patrol post for fifteen minutes. (Wenrich Decl., Doc. 27-1 at PageID 305.) Trooper Franz

testified that he left Wenrich in the room while he completed writing a citation for the marked

lane violations, but he could not recall whether Wenrich remained handcuffed. (Franz Dep.,

Doc. 19 at PageID 118.) Wenrich was subsequently released to his wife when she arrived at the

patrol post. (Doc. 28-1 at PageID 326; Doc. 30-1 at PageID 348.)

At a subsequent trial, Wenrich was found not guilty of the marked lane violations and

incurred towing charges in the amount of $262.25 in addition to attorney fees. (Wenrich Decl.,

Doc. 27-1 at PageID 305.)

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B. Procedural Posture

Wenrich initiated this action alleging violations of his Fourth and Fourteenth Amendment

rights and seeking damages under 42 U.S.C. § 1983 and attorney fees under 42 U.S.C. § 1988.

Trooper Franz is the only named defendant. Wenrich specifically alleges that: (1) there was no

basis for the initial stop, (2) there was no basis for the OVI investigation, (3) there was no

probable cause for the OVI arrest, (4) the towing of his car constituted an unreasonable seizure,

and (5) the extended detention following his negative breathalyzer test constituted an

unreasonable seizure.

Following discovery, Trooper Franz moved for summary judgment on the grounds that

he is entitled to qualified immunity. (Doc. 28.) Wenrich has responded in opposition, to which

Trooper Franz has filed a reply. (Docs. 30, 31.) The Court held oral argument on the pending

Motion on May 2, 2022. This matter is now ripe for the Court’s review.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary

judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden to

show that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co., Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Provenzano v. LCI Holdings, Inc., 663 F.3d

806, 811 (6th Cir. 2011). The movant may support a motion for summary judgment with

affidavits or other proof or by exposing the lack of evidence on an issue for which the

nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,

322–24 (1986). In responding to a summary judgment motion, the nonmoving party may not

rest upon the pleadings but must “present affirmative evidence in order to defeat a properly

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supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257

(1986).

A court’s task is not “to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Id. at 249. “[F]acts must be viewed in the

light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”

Scott v. Harris, 550 U.S. 372, 380 (2007); see also E.E.O.C. v. Ford Motor Co., 782 F.3d 753,

760 (6th Cir. 2015) (en banc) (quoting Scott). A genuine issue for trial exists when there is

sufficient “evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477

U.S. at 252; see also Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir. 2014) (“A

dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a

verdict in favor of the non-moving party.”) (emphasis in original) (citation omitted). “Factual

disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.

“The court need consider only the cited materials, but it may consider other materials in the

record.” Fed. R. Civ. P. 56(c)(3). “When opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.” Scott, 550 U.S. at 380 (relying on videotape evidence to refute a party’s alleged

facts); see Shreve, 743 F.3d at 132–33.

III. ANALYSIS

A. Qualified Immunity

Trooper Franz argues he is entitled to qualified immunity on Wenrich’s claims. The

doctrine of qualified immunity shields government officials from civil damages provided that

their conduct does not violate “clearly established statutory or constitutional rights of which a

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reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity provides immunity from

suit, not simply a defense to liability. Id. To determine whether qualified immunity applies,

courts apply a two-pronged test: (1) do the facts alleged, taken in the light most favorable to the

party alleging the injury, establish a violation of a constitutional right, and (2) was the right

clearly established at the time of the injury? Saucier v. Katz, 533 U.S. 194, 200–01 (2001),

overruled on other grounds, Pearson, 555 U.S. 223. “An answer of ‘yes’ to both questions

defeats qualified immunity, while an answer of ‘no’ to either question results in a grant of

qualified immunity.” Haley v. Elsmere Police Dep’t, 452 F. App’x 623, 626 (6th Cir. 2011).

Courts can examine either issue first based on which path will best facilitate the fair and efficient

disposition of the case before it. Pearson, 555 U.S. at 242. Although qualified immunity is an

affirmative defense, “the burden is on the plaintiff to demonstrate that the official[] [is] not

entitled to qualified immunity.” Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006).

Thus, the plaintiff bears the burden of proving both elements of the Saucier test. See Chappell v.

City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009).

The inquiry into whether a constitutional right was clearly established “must be

undertaken in light of the specific context of the case, not as a broad general proposition.”

Saucier, 533 U.S. at 201. For a constitutional right to be clearly established, “its contours ‘must

be sufficiently clear that a reasonable official would understand that what he is doing violates

that right.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)). Plaintiffs may satisfy this prong by pointing to “controlling authority in their

jurisdiction at the time of the incident which clearly established the rule on which they seek to

rely.” Wilson v. Layne, 526 U.S. 603, 617 (1999); Spurlock v. Satterfield, 167 F.3d 995, 1006

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(6th Cir. 1999).

Summary judgment based on qualified immunity is not appropriate if there is a factual

dispute or genuine issue of material fact “involving an issue on which the question of immunity

turns, such that it cannot be determined before trial whether the defendant did acts that violate

clearly established rights.” Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir.

1992) (quoting Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988), cert. denied, 488 U.S. 1007

(1989)).

B. Initial Traffic Stop

Wenrich alleges that Trooper Franz lacked a basis to perform the initial traffic stop.

Trooper Franz argues that the stop was justified because he had probable cause to believe that

Wenrich had committed a traffic violation.

A traffic stop conducted by a law enforcement officer constitutes a seizure under the

Fourth Amendment. United States v. Bell, 555 F.3d 535, 539 (6th Cir. 2009). In the case of a

stop based on a traffic violation, the stop will constitute an unreasonable seizure “unless the stop

is supported by probable cause to believe a traffic violation occurred.” United States v. Warfield,

727 F. App’x 182, 185 (6th Cir. 2018). “Probable cause exists where the facts and circumstances

within an officer's knowledge and of which he had reasonably trustworthy information are

sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has

been or is being committed.” Campbell v. Mack, 777 F. App’x 122, 131 (6th Cir. 2019) (cleaned

up) (citation omitted). Probable cause entails “reasonable grounds for belief, supported by less

than prima facie proof but more than mere suspicion” that a violation has occurred. United

States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006). Probable cause is a legal question

determined by the court unless there is a dispute as to material facts. Hale v. Kart, 396 F.3d 721,

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728 (6th Cir. 2005). “If disputed factual issues underlying probable cause exist, those issues

must be submitted to a jury for the jury to determine the appropriate facts.” Id.

The Court finds it was clearly established law that Trooper Franz required either probable

cause that Wenrich was speeding or probable cause that Wenrich’s vehicle crossed a marked lane

in order to justify the initial stop. Warfield, 727 F. App’x at 186.2 The Court further finds that at

the time of the stop, it was clearly established that “[m]erely touching a lane line is not a

violation of Ohio’s marked lane statute” and thus cannot provide probable cause to initiate a

traffic stop. Id. (citing State v. Baker, No. WD-13-074, 2014 WL 2700938, at *3 (Ohio Ct. App.

June 13, 2014); State v. Parker, No. OT-12-034, 2013 WL 4041582, at *2 (Ohio Ct. App. Aug.

9, 2013)).3

Trooper Franz argues that he had probable cause to stop Wenrich because Wenrich was

speeding and committed marked lane violations in violation of Ohio Revised Code §§ 4511.21

and 4511.33(A)(1). The Court will first address the alleged speeding violation and then address

the alleged marked lane violations.

2 Trooper Franz suggests that Warfield is inapplicable to this case because Warfield is a criminal case addressing a

motion to suppress, whereas this is a civil action. While, as Trooper Franz notes, it may be true that doctrines such

as “fruit of the poisonous tree” apply in criminal and not civil contexts, the qualified immunity inquiry asks only

whether the constitutional right at issue was clearly established by prior case law. Trooper Franz additionally

testified that at the time of the stop, he understood that merely driving on the lane line was not a violation of Ohio’s

marked lane statute. (Franz Dep., Doc. 19 at PageID 98–99.) The Court therefore finds Trooper Franz’s argument

unpersuasive.

3 Trooper Franz alerted the Court to a recent decision by another court in this district granting qualified immunity to

an officer in similar circumstances. See Collik v. Pohlabel, No. 3:20-cv-307, 2022 WL 461986 (S.D. Ohio Feb. 15,

2022) (Rose, J.). In Collik, the court found that the plaintiff’s vehicle merely drove on—and did not cross—the “fog

line,” the solid white line on the right side of the roadway. Id. at *4. The court noted that, at the time of the stop,

conflicting decisions among the Ohio Courts of Appeals existed regarding whether a vehicle driving on or touching

a lane line is a violation of Ohio’s marked lane statute, and therefore the defendant had not violated clearly

established law. Id. at *5–6. The court’s reasoning, however, hinged on a Twelfth District Court of Appeals

decision on September 30, 2019 that held driving on the fog line is a violation of the statute. See State v. Turner,

145 N.E.3d 985 (Ohio Ct. App. 2019), overruled, 163 Ohio St. 3d 421, 170 N.E.3d 842 (2020). Here, the stop

occurred on July 6, 2019, prior to the Twelfth District Court of Appeals’s opinion creating a conflict, and the Court

is therefore not persuaded by Collik.

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Ohio Revised Code § 4511.21(D)(5) provides that “[n]o person shall operate a motor

vehicle . . . upon a street or highway . . . [a]t a speed exceeding the posted speed limit upon a

highway, expressway, or freeway for which the director has determined and declared a speed

limit.” Trooper Franz argues that Wenrich violated this statutory provision because he was

traveling 75 m.p.h in a 65 m.p.h. zone. Wenrich, however, denies he was driving in excess of the

posted speed limit. (Doc. 28-1 at PageID 322; Doc. 30-1 at PageID 344.) Trooper Franz

testified that his dash camera system contains a GPS speed display, and that the display verifies

Wenrich was speeding. (Franz Dep., Doc. 19 at PageID 80–81.) The dash camera footage

received by the Court and entered into evidence, however, does not indicate the exact speed that

Trooper Franz’s cruiser was traveling when Trooper Franz was pacing Wenrich’s vehicle.

Therefore, the video does not unambiguously demonstrate that Wenrich’s version of events—

that he was not speeding—is blatantly contradicted by the record. Scott, 550 U.S. at 380; Shreve,

743 F.3d at 132. The Court is left with the conflicting testimony of Wenrich and Trooper Franz.

Accordingly, whether Wenrich exceeded the speed limit remains an issue of material fact to be

resolved by a jury.

Trooper Franz also argues the stop was supported by two marked lane violations as

defined in Ohio Revised Code § 4511.33(A)(1). Section 4511.33(A)(1) states that “[a] vehicle . .

. shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and

shall not be moved from such lane or line until the driver has first ascertained that such

movement can be made with safety.” As noted above “[m]erely touching a lane line is not a

violation of Ohio’s marked lane statute” and is therefore insufficient to establish probable cause

to justify a traffic stop. Warfield, 727 F. App’x at 186; Baker, 2014 WL 2700938, at *3.

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The first marked lane violation allegedly occurred after Wenrich made the first right-hand

lane change, and the second violation allegedly occurred after Wenrich made the second right-

hand lane change. (Franz Dep., Doc. 19 at PageID 91, 99–100.) Similar to the speeding

allegation, Wenrich denies that he committed any marked lane violations. (Wenrich Decl., Doc.

27-1 at PageID 302.) Trooper Franz’s dash camera captured both lane changes, but due to the

low resolution of the video, the angle at which Wenrich’s vehicle is viewed, and the poor

lighting, the Court finds that the video does not blatantly contradict Wenrich’s testimony that he

did not cross the lane line. As with the alleged speeding violation, the Court is left with the

conflicting testimony of Trooper Franz and Wenrich. (Franz Dep., Doc. 19 at PageID 91, 99–

100; Wenrich Decl., Doc. 27-1 at PageID 302.) Therefore, a genuine issue for trial remains. See

Hurston v. City of Springboro, No. 1:07cv449, 2008 WL 5863389, at *4 (S.D. Ohio Nov. 10,

2008) (denying officer’s motion for summary judgment where both the plaintiff and defendant

offered conflicting testimony regarding whether certain traffic violations had occurred, and the

video evidence provided to the court was inconclusive).

Due to the disputes of material fact regarding whether Trooper Franz had probable cause

to believe Wenrich committed a traffic violation, a jury must determine whether the

circumstances surrounding the stop did in fact provide Trooper Franz with probable cause. See

Green v. Throckmorton, 681 F.3d 853, 864 (6th Cir. 2012) (“[W]here the legal question of

qualified immunity turns upon which version of the facts one accepts, the jury, not the judge,

must determine liability.”) (quoting McKenna v. Edgell, 67 F.3d 432, 437 (6th Cir. 2010)). If a

jury credits Wenrich’s versions of events, then Trooper Franz lacked probable cause to initiate

the traffic stop and he would therefore not be entitled to qualified immunity. Accordingly,

Trooper Franz’s Motion is denied as to Wenrich’s claim that the initial stop was unconstitutional.

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Qualified immunity jurisprudence is unclear as to whether further analysis of Wenrich’s

claims is required due to the Court having found that issues of material fact preclude summary

judgment as to the initial stop. See Muir v. Danner, 479 F. Supp. 3d 683, 692 (M.D. Tenn. 2020)

(stating that ‘[i]f the stop was not supported by reasonable suspicion, then the entire stop was

illegal” and whether the defendant had the legal authority to order the plaintiff out of the vehicle

and administer a field sobriety test was therefore moot); but see Carter v. Hamaoui, 699 F.

App’x 519, 532 (6th Cir. 2017) (“We analyze the subsequent allegations of Fourth Amendment

violations ‘separately for each search or seizure that is alleged to be unconstitutional.’”) (quoting

Cnty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1547 (2017)); Marchand v. Hartman, 395 F.

Supp. 3d 202, 217 (D. Conn. 2019) (stating that in a 42 U.S.C. § 1983 action the “illegality of the

initial stop has no bearing on whether [a] subsequent arrest violated [a plaintiff’s] constitutional

rights”). The parties advised the Court as to this issue at oral argument. For purposes of

thoroughness, the Court proceeds to address Wenrich’s remaining claims.

C. The OVI Investigation

Wenrich alleges that Trooper Franz “unconstitutionally expanded the scope of the

investigation” when he began the OVI investigation because at the time he stopped Wenrich’s

vehicle, Trooper Franz had no information indicating Wenrich was impaired. (Doc. 30 at

PageID 336.)

As noted above, a traffic stop constitutes a seizure under the Fourth Amendment. United

States v. Hill, 195 F.3d 258, 263 (6th Cir. 1999). When analyzing an ordinary traffic stop, courts

have described the stop as “akin to an investigative detention rather than a custodial arrest” and

likewise applied the rules set forth in Terry v. Ohio, 392 U.S. 1 (1968). Hill, 195 F.3d at 264.

Any subsequent detention following the initial stop must not be “excessively intrusive,” meaning

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an officer's actions must be reasonably related in scope to the circumstances justifying the initial

interference. Id. A motorist cannot be detained after the purpose of the stop is completed unless

something occurring during the stop provided the officer with reasonable and articulable

suspicion that criminal activity was occurring. Id. Reasonable suspicion is an objective test

based on the totality of the circumstances. United States v. Winters, 782 F.3d 289, 298 (6th Cir.

2015). Whether an officer has reasonable suspicion is determined by asking if the specific facts

of the stop would lead a reasonable officer to suspect illicit activity. Id. Even though an

officer’s subjective beliefs are irrelevant, an officer is permitted to draw on his own experiences

and training to make inferences and deductions regarding the situation before him. Id. Lastly,

an officer is permitted to make inquiries unrelated to the purpose of the initial traffic stop so long

as these inquiries do not “measurably extend the duration of the stop.” Rodriguez v. United

States, 575 U.S. 348, 355 (2015); see Arizona v. Johnson, 555 U.S. 323, 333 (2009).

An admission to having consumed alcohol is insufficient to support the reasonable

suspicion required to administer a field sobriety test absent other evidence of impairment.

Bradley v. Reno, 632 F. App'x 807, 810 (6th Cir. 2015) (citing State v. Newsome, No. 2012-A-

0019, 2012 WL 6110741, at *2 (Ohio Ct. App. Dec. 10, 2012)). In Bradley, the Sixth Circuit

cited with approval State v. Evans, 127 Ohio App. 3d 56, 711 N.E.2d 761 (Ct. App. 1998), which

set out a “non-exhaustive list of factors courts rely upon to judge the reasonableness of an

officer’s decision to conduct roadside sobriety tests.” Bradley, 632 F. App’x at 810. The Court

finds the above-cited law was clearly established at the time of the stop.

Wenrich argues Trooper Franz violated his constitutional rights when he asked Wenrich

if he had been drinking, as this question expanded the scope of the traffic stop. He does not

address, however, that Trooper Franz asked Wenrich if he had been drinking within a minute of

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the stop. (Dash Camera at 3:21–3:25.) This initial question regarding intoxication can hardly be

considered “excessively intrusive” such that it would alone constitute a violation of Wenrich’s

constitutional rights. See Hill, 195 F.3d at 264, 268 (finding series of questions asked by officer

over course of several minutes to not be excessively intrusive). This type of questioning is also

expressly allowed under Rodriguez as it did not “measurably extend the duration of the stop.”

575 U.S. at 355.

Wenrich also argues Trooper Franz lacked reasonable suspicion to conduct an OVI

investigation. Trooper Franz argues he had reasonable suspicion based on (1) the smell of

alcohol coming from Wenrich’s vehicle, (2) Wenrich’s eyes appearing bloodshot and glassy, (3)

Wenrich having committed multiple traffic violations, (4) the stop occurred at 10:36 p.m. on a

Saturday night, and (5) Wenrich admitted to having consumed a single beer three to four hours

prior to the stop.

The first three purported reasons justifying the OVI investigation are disputed questions

of fact. (Franz Dep., Doc. 19 at PageID 109–10; Wenrich Decl., Doc. 27-1 at PageID 302–03;

Doc. 28-1 at PageID 322–23; Doc. 30-1 at PageID 343–45.) Trooper Franz’s alleged

observations regarding Wenrich’s purported intoxication are also called into question due to

Wenrich’s subsequent 0.00% breathalyzer test. See Miller v. Sanilac Cnty., 606 F.3d 240, 248–

49 (6th Cir. 2010) (stating that a jury could conclude based on a subsequent 0.00% blood alcohol

test that police officer was being untruthful about his observations and lacked probable cause to

believe plaintiff was drinking). Further, looking at only the admitted facts—the time at which

the stop occurred and Wenrich’s admission to consuming a beer a few hours prior to the stop—

the Court is unable to find that Trooper Franz possessed reasonable suspicion to conduct the OVI

investigation. Wenrich’s admission to having consumed alcohol is insufficient to support the

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reasonable suspicion required to administer a field sobriety test absent other evidence of

impairment. Bradley, 632 F. App'x at 810. Both the time of night and an admission to drinking

are factors a court may consider in determining whether reasonable suspicion existed. Evans,

711 N.E.2d at 766 n.2. There are, however, many other factors which either are contested here,

or which would weigh against a finding of reasonable suspicion.4 Id. The Court finds that the

time of night combined with Wenrich’s admission of consuming a single alcoholic beverage a

few hours prior to the stop are insufficient to support a finding of reasonable suspicion in this

case. Whether Trooper Franz had reasonable suspicion to conduct the OVI investigation will

therefore have to be determined by a jury’s resolution of the contested facts. If a jury believes

Wenrich’s version of events, Trooper Franz would have lacked reasonable suspicion to conduct

the OVI investigation. Trooper Franz is therefore not entitled to qualified immunity, and his

Motion is denied as to Wenrich’s claim regarding the OVI investigation.

D. Wenrich’s Arrest

Wenrich next argues that his Fourth Amendment rights were violated because Trooper

Franz lacked probable cause to arrest him for OVI.

It is clearly established law that an arrest without probable cause constitutes a Fourth

Amendment violation. Thacker v. City of Columbus, 328 F.3d 244, 255 (6th Cir. 2003). Trooper

Franz argues that probable cause existed based on (1) Wenrich having committed multiple traffic

violations, (2) Trooper Franz detecting the smell of alcohol coming from Wenrich’s vehicle, (3)

Trooper Franz observing Wenrich’s eyes as glassy and bloodshot, (4) the stop occurring around

4 The remaining factors include: (1) the location of the stop, (2) any indica of erratic driving before the stop, (3)

whether there was a cognizable report the driver may be intoxicated, (4) the condition of the driver’s eyes, (5)

impairments of the driver’s ability to speak, (6) the odor of alcohol emanating from the vehicle or the driver, (7) the

intensity of the odor, (8) the driver’s demeanor, and (9) any actions by the driver that may indicate a lack of

coordination. Evans, 711 N.E.2d at 766 n.2.

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10:30 p.m on a Saturday night, (5) Wenrich admitting to having consumed a single beer a few

hours prior to the stop, and (6) Wenrich’s refusal to submit to field sobriety tests. As previously

noted, however, questions of fact exist as to the first three asserted facts.

Considering only the admitted facts, the Court finds Trooper Franz lacked probable cause

to arrest Wenrich for OVI. A failure to submit to a field sobriety test, standing alone, “does not

provide probable cause to believe that a driver has been driving under the influence of alcohol.”

Kinlin v. Kline, 749 F.3d 573, 580 (6th Cir. 2014) (citing Green, 681 F.3d at 866–67). And

Wenrich’s admission to having drank a single beer a few hours prior to the stop does not tip the

scales, as consuming a single beer is not enough to support probable cause that a driver is

impaired. See Newsome, 2012 WL 6110741, at *2. Further, the time of night also deserves

minimal weight, it being even less probative than an admission to drinking would be. Taken as a

whole, the admitted facts do not support a finding of probable cause. Compare Kinlin, 749 F.3d

at 580 (citing with approval out-of-circuit decisions finding probable cause based on refusal to

submit to field sobriety test combined with “several indicators of excessive alcohol

consumption” or “coupled with the smell of alcohol”).

As the admitted facts are insufficient to provide probable cause for an OVI arrest, and

questions of fact exist regarding other evidence that may support a finding of probable cause,

whether the OVI arrest amounted to a constitutional violation must be resolved by a jury. As

with the prior issues, if a jury credits Wenrich’s version of events, Trooper Franz would have

lacked probable cause to arrest Wenrich for OVI. Trooper Franz’s Motion is denied as to

Wenrich’s claim that the OVI arrest was unconstitutional.

E. The Towing of Wenrich’s Vehicle

Wenrich next alleges that the towing of his vehicle constituted an unreasonable seizure in

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violation of the Fourth and Fourteenth Amendment.

“The authority of police to seize and remove from the streets vehicles impeding traffic or

threatening public safety and convenience is beyond challenge.” South Dakota v. Opperman,

428 U.S. 364, 369 (1976). This Court has stated that where a driver is taken into custody and no

one remained who lawfully could drive the vehicle, an officer may tow the vehicle. Glasscock v.

Vill. of Mt. Orab, No. 1:15-cv-454, 2016 U.S. Dist. LEXIS 182635, at *18–19 (S.D. Ohio Dec.

22, 2016). In analyzing whether the seizure of a vehicle was proper under the Fourth

Amendment, a court must determine whether the “decision to impound was reasonable under the

circumstances.” Collins v. Nagle, 892 F.2d 489, 494 (6th Cir. 1989); see also United States v.

Kimes, 246 F.3d 800, 805 (6th Cir. 2001) (“Discretion as to impoundment is permissible ‘so long

as that discretion is exercised according to standard criteria and on the basis of something other

than suspicion of evidence of criminal activity.’”) (quoting Colorado v. Bertine, 479 U.S. 367,

375–76 (1987)). The availability of less intrusive means does not necessarily make an officer’s

conduct unreasonable. Collins, 892 F.2d at 493. The Court finds that the Fourth Amendment

jurisprudence surrounding the towing of vehicles was clearly established at the time of the stop.

Wenrich appears to argue that the decision to tow his vehicle was unreasonable because

he could have called his wife to retrieve the vehicle and waiting for the tow truck took a

considerable amount of time. According to Trooper Franz, pursuant to a directive of the post

commander for the post under which Trooper Franz was working that evening, vehicles could

not remain parked on the side of the interstate unattended, and thus Wenrich’s vehicle was towed

pursuant to said directive. (Franz Dep., Doc. 19 at PageID 127–28.) In light of the record

evidence, however, the Court cannot determine whether the decision to tow Wenrich’s vehicle

was reasonable. Given that a question of fact exists as to whether the initial traffic stop, OVI

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investigation, and OVI arrest violated Wenrich’s Fourth Amendment rights, the Court finds that

whether Trooper Franz’s decision to tow Wenrich’s vehicle was reasonable under the

circumstances presents a question of fact to be determined by a jury. See Muir, 479 F. Supp. 3d

at 696 (declining to resolve, on summary judgment, whether search of plaintiff’s vehicle violated

the Fourth Amendment because the court previously concluded a dispute of fact existed

“regarding whether [plaintiff’s] arrest was lawful in the first place”). Thus, Trooper Franz’s

Motion is denied as to Wenrich’s unconstitutional seizure claim.

F. Extended Detention Following Breathalyzer Test

Wenrich argues that his extended detention following his breathalyzer test constituted a

Fourth Amendment violation. Trooper Franz argues that Wenrich was no longer under arrest for

OVI following the breathalyzer test, and, even if Wenrich was detained, any delay was justified

by his need to complete the traffic citation which was the original purpose of the traffic stop.

“The Fourth Amendment . . . establishes the minimum constitutional standards and

procedures not just for arrest but also for ensuing detention.” Manuel v. City of Joliet, Ill., 137 S.

Ct. 911, 917 (2017) (cleaned up) (citation omitted). In the context of a traffic stop, “[b]ecause

addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to

effectuate th[at] purpose.’” Rodriguez, 575 U.S. at 354 (quoting Florida v. Royer, 460 U.S. 491,

500 (1983)) (alteration in original). Thus, a traffic stop “‘become[s] unlawful if it is prolonged

beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the

violation.” Id. at 350–51 (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)) (alterations in

original). An officer’s “[a]uthority for the seizure ends when tasks tied to the traffic infraction

are—or reasonably should have been—completed.” Id. at 354. The Court finds that, pursuant to

Supreme Court precedent, it was clearly established that a traffic stop becomes unlawful if it is

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extended beyond the time reasonably required to “complete th[e] mission” of the stop.

Rodriguez, 575 U.S. at 354.

As with Wenrich’s other claims, the Court finds that, viewing the incident in its entirety,5

a question of fact exists as to whether Wenrich was detained in violation of the Fourth

Amendment. Trooper Franz stopped Wenrich at approximately 10:36 p.m. (Doc. 19 at PageID

140.) The ultimately fruitless OVI investigation began shortly thereafter and concluded at

approximately 11:34 p.m. after Wenrich completed the breathalyzer test. (Id. at PageID 186.)

Following Wenrich’s 0.00% breathalyzer test, Wenrich alleges he remained handcuffed to a table

in the patrol post for approximately fifteen minutes. (Wenrich Decl., Doc. 27-1 at PageID 305.)

Trooper Franz testified that during this time he returned to his cruiser to complete the citation for

the marked lane violations, but he could not recall whether Wenrich remained handcuffed.

(Franz Dep., Doc. 19 at PageID 118.) Wenrich was ultimately released from the patrol post at

11:45 p.m. (Doc. 19 at PageID 187.) Trooper Franz’s only basis for detaining Wenrich at this

time was for the alleged traffic violations given that Wenrich’s breathalyzer test registered a

0.00%. And as threshold issues of fact exist regarding the validity of the traffic stop, the OVI

investigation, and the OVI arrest, a question of fact necessarily exists as to whether Wenrich’s

detention ran afoul of the Fourth Amendment. See Muir, 479 F. Supp. 3d at 696. Further,

whether Wenrich was handcuffed presents a disputed material fact regarding both whether he

was seized and the reasonableness of that seizure. As such, Trooper Franz’s Motion is denied as

to Wenrich’s unconstitutional detention claim.

5 Although Wenrich alleges only that his detention following the breathalyzer test was unconstitutional, the Court is

unable to parse his detention for the alleged traffic violations from his OVI arrest given that these events were one

continuous series.

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IV. CONCLUSION

As explained herein, genuine disputes of material fact preclude the Court from

determining whether Trooper Franz’s actions violated Wenrich’s Fourth and Fourteenth

Amendment rights. Accordingly, Trooper Franz’s Motion for Summary Judgment (Doc. 28) is

DENIED.

IT IS SO ORDERED.

S/Susan J. Dlott________

Judge Susan J. Dlott

United States District Court

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