COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60471 CITY OF RICHMOND HEIGHTS : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION JEFFREY MARANDO : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 28, 1992 OF DECISION: CHARACTER OF PROCEEDING: Appeal from Lyndhurst Municipal Court Case No. 90-TRC-4399 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Charles E. Merchant, Prosecutor Thomas L. Meros By: Katharine Lang Bettasso 736 Standard Building Assistant Prosecutor Cleveland, Ohio 44113 700 West St. Clair Avenue Hoyt Block - Suite 210 Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Jeffrey Marando appeals the denial of his pre-trial motion to suppress statements and evidence arising from his arrest for driving under the influence of alcohol. In one assignment of error, he challenges his conviction, urging that the arresting officer had insufficient cause to stop him. Upon review of the record, we affirm the judgment of the trial court. The facts from the suppression hearing were set forth by the parties pursuant to App. R. 9(D). Sergeant Robert Polzner, a twelve-year veteran of the Richmond Heights Police Department, was on patrol in his squad car on April 10, 1990, a week night. While traveling down Highland Road at 12:47 a.m., he observed a car pull out of an adjacent driveway and pass him. He noticed the four occupants of the car had a "youthful appearance." Suspicious of a potential curfew violation, Polzner turned his vehicle around and pulled the car over, and asked the driver for identification. Jeffrey Marando, age 23, was driving the vehicle and accompanied by three friends. One of the passengers was 22, and no evidence was presented as to the ages of the other two passengers. Polzner smelled the odor of alcohol and ordered Marando out of the car to undergo sobriety tests. Marando failed each, was arrested, and taken into custody. A later test at the - 2 - police station revealed his blood alcohol content exceeded the legal limit. Marando filed a motion to suppress: 1) all statements made by him during interrogation; and 2) all evidence seized by the police as a result of the search. The court overruled this motion. After entering a plea of no contest, the court found Marando guilty of driving under the influence. In his sole assignment of error, Marando posits the court erred in overruling his motion to suppress since the evidence obtained was the result of an illegal search and seizure. Defendant maintains the stop became illegal once the arresting officer determined the occupants were not under age and not in violation of curfew. A police stop of a vehicle is a significant intrusion requiring justification as a "seizure" under the Fourth and Fourteenth Amendments to the United States Constitution. Delaware v. Prouse (1979), 440 U.S. 648, 653. The detention of an individual by a law enforcement officer must, at the very least, be justified by "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio (1968), 392 U.S. 1, 21. - 3 - The Ohio Supreme Court has set forth the standard governing investigative stops in State v. Bobo (1988), 37 Ohio St. 3d 177 stating: "The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. State v. Freeman [1980], 64 Ohio St. 2d 291, 18 O.O.3d 466, 414 N.E.2d 1044, paragraph one of the syllabus, approved and followed." Id., paragraph one of syllabus. The court recently reaffirmed the totality of the circumstances test in State v. Andrews (1991), 57 Ohio St. 3d 86, stating: "A court reviewing the officer's actions must give due weight to his experience and training and view the evidence as it would be understood by those in law enforcement.' (Citations omitted.) Initially, we must determine whether Officer Polzner had an "articulable and reasonable suspicion" that defendant was violating the law at the time he was detained. Polzner testified he pulled over defendant's automobile because the occupants were "youthful-looking" and appeared to be in violation of curfew. He first observed defendant's vehicle leave an unlit driveway and pull onto Highland Road. Polzner also stated he observed the vehicle for ten seconds before pulling it over. He indicated the occupants were youthful looking from their "facial features, hair, coloring, clothing." Under these circumstances, Polzner had an "articulable and reasonable suspicion" that defendant was in violation of curfew. Thus, the investigative stop was reasonable. The next question is whether the further detention of defendant was reasonable. Upon approaching the vehicle, defendant - 4 - rolled down his window and Polzner requested some identification. He immediately noticed the odor of alcohol and ordered defendant out of the car to undergo field sobriety tests. After failing each test, Marando was placed under arrest. We find the officer's conduct was proper. The apparent curfew violation coupled with the odor of alcohol about defendant's person, properly induced the officer to investigate defendant's condition before allowing him to proceed. The field sobriety tests confirmed his suspicion that Marando was under the influence of alcohol and provided reasonable grounds to administer a breathalyzer test. Cf. State v. Downey (1987), 37 Ohio App. 3d 45. Accordingly, this assignment of error is overruled and the judgment of the trial court is affirmed. - 5 - 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 Common Pleas 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. DYKE, P.J., JOHN F. CORRIGAN, J., CONCUR. JUDGE ANN MCMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .