COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60511 CITY OF CLEVELAND : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION FRED EDEN : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 23, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court No. 90-TRC-19373 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: BARBARA J. DANFORTH City of Cleveland Chief Prosecuting Attorney KAREN M. MORELL, Assistant Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: FRANCIS A. GORCZYCA 2163 Lee Road Suite 105 Cleveland Heights, Ohio 44118 - 2 - KRUPANSKY, J.: Defendant appeals from the trial court's denial of defendant's motion to suppress evidence. Subsequent to the trial court's denial of his motion, defendant pleaded no contest to the charge of driving while under the influence of alcohol in violation of Cleveland Municipal Ordinance Section 433.01(a)(1), consenting to a finding of guilty. The relevant facts were elicited at the hearing on defendant's motion and follow. Det. Timothy Horval, a twenty-one year veteran of the Cleveland Police Department testified that at approximately 5:40 p.m. on April 4, 1990, he was seated with his partner in an unmarked police car parked in a surveillance position in the location of 3449 East 69th Street in Cleveland, Ohio. Det. Horval who was at the time assigned to the department's R.O.P.E. 1 Unit, was watching a suspected "drug house" in that area. As Det. Horval observed the house, he noticed defendant driving a car with several occupants past the police car's location. Det. Horval had been acquainted with defendant for ten years, having known defendant from previous arrests. Det. Horval, furthermore, was aware from his acquaintance with defendant and from information gained through the Ohio Bureau of Motor Vehicles that defendant's driver's license was 1 Det. Horval testified at the hearing on defendant's motion to suppress evidence that R.O.P.E. stands for "Repeat Offenders Program Experiment." He further testified that the unit follows up on repeat offenders and does undercover work with various law enforcement agencies. - 3 - suspended. Therefore, Det. Horval determined to follow defendant's car. On cross-examination, Det. Horval described the action he took as follows: A. [H]e [defendant] pulled down the street. He went around the corner. We pulled down, went in the drive, backed up, went down around that same corner but we passed him up because he pulled in the driveway after he went around the corner to let somebody off. So, we went down the street, came back and he was coming out, and we followed him down to where he stopped. We didn't really pull him over. He stopped on his own accord. Defendant and the officers then exited their cars. Det. Horval approached defendant and stated to him that defendant was "under arrest for driving while under suspension." As he observed defendant and spoke with him, Det. Horval noticed the following: (1) "a little stagger" in defendant's gait; (2) slurred speech; (3) glassy eyes; and (4) the smell of alcohol on defendant's breath. Subsequently, when Det. Horval was close to defendant's car, he looked in the window and observed in the rear seat a passenger apparently "passed out" and a "half a bottle consumed of Alabama Slammer in the car." Det. Horval thereupon administered a breathalyzer test to defendant. Defendant was subsequently issued two traffic citations, viz., (1) driving while under suspension (hereinafter, "DUS"), Cleveland Municipal Ordinance Section 435.07; and (2) driving while under the influence of alcohol (hereinafter "DUI"), Cleveland Municipal Ordinance Section 433.01(A)(1). - 4 - Defendant thereafter entered a plea of not guilty to the charges in Cleveland Municipal Court. Defendant also filed in the trial court a motion to suppress evidence. The trial court held a hearing on defendant's motion and heard testimony from Det. Horval. Following the hearing, the trial court overruled defendant's motion to suppress evidence. Pursuant to a plea bargain arrangement, defendant thereupon changed his plea from "not guilty" to "no contest" consenting to a finding of guilty on the DUI charge and the DUS charge was then nolled by the city. Defendant was subsequently sentenced as follows: (1) pay a fine of $400.00 and costs of the action; (2) one year inactive probation; and (3) suspension of driving privileges for 160 days. Defendant thereupon filed a notice of appeal of his conviction to this court, therefore, the trial court issued an order staying execution of defendant's sentence pending this appeal. Defendant cites two assignments of error for review, both of which are addressed to the order of the trial court overruling defendant's motion to suppress evidence. Defendant's first assignment of error follows: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING APPELLANT'S MOTION TO SUPPRESS EVIDENCE. This assignment of error lacks merit. Defendant argues Det. Horval's stop and "search" of defendant violated defendant's right to be free from unreasonable - 5 - searches and seizures as guaranteed by the United States Constitution. This argument is unpersuasive. In the case sub judice, Det. Horval conducted an investigatory "stop and search" of defendant. It is clear from the facts of the case sub judice Det. Horval made a legitimate stop of defendant since Det. Horval believed a crime was being committed in his presence, viz., driving without a license. Thereafter, when defendant exited his vehicle, Det. Horval made direct observations through his senses which in turn constituted probable cause to arrest defendant for DUI. The Supreme Court of Ohio has recently addressed the issue of an investigatory "stop and search" in State v. Williams (1990), 51 Ohio St. 3d 58, wherein the court stated in pertinent part the following: *** We are asked to determine whether the stop and frisk of appellee by [the officers] violated appellee's right, as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution, to be free from unreasonable searches and seizures. We answer such query in the negative, as [the officers'] conduct was lawful under the dictates of Terry v. Ohio (1968), 392 U.S. 1, and its progeny. Terry stands for the proposition that "a police officer may in appropriate circum- stances and in appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id. at 22. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police - 6 - work to adopt an intermediate response. See id., at 23. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id., at 21-22; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzaat, 424 F.2d 396 (CA8 1970). ***. * * * In order to warrant a brief investigatory stop pursuant to Terry, the police officer involved "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, supra, at 21. Such an investigatory stop "must be viewed in light of the totality of the surrounding circumstances" presented to the police officer. State v. Freeman (1980), 64 Ohio St. 2d 291, 18 O.O. 3d 472, 414 N.E. 2d 1044, paragraph one of the syllabus. The standard for reviewing such police conduct is an objective one: "would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Terry, supra, at 21-22; United States v. Wright (C.A.8, 1977), 565 F.2d 486, 489. That is "[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez (1981), 449 U.S. 411, 417. (Emphasis added.) See also, State v. Andrews (1991), 57 Ohio St. 3d 86; State v. Bobo (1988), 37 Ohio St. 3d 177. Earlier, the Ohio Supreme Court had addressed the specific fact situation of a police officer stopping the driver of a motor vehicle in State v. Chatton (1984), 11 Ohio St. 3d 59, and therein the court stated the following: - 7 - It is firmly established that the detention of an individual by a law enforcement officer must, at the very least, be justified by "specific and articulable facts" indicating that the detention was reasonable. Terry v. Ohio (1968), 392 U.S. 1, 21-22. In Brown v. Texas, supra, the United States Supreme Court held that merely because an individual "looked suspicious" provided no justification to detain him and demand that he identify himself. Furthermore, in Delaware v. Prouse (1979), 440 U.S. 648, the United States Supreme court condemned the use of random stops of vehicles to check the validity of the operator's driver's license and the vehicle's registration. The court held at 663: "*** [E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment." (Emphasis added.) In the case sub judice, Det. Horval clearly had an articulable and reasonable suspicion that defendant was unlicensed but was operating a motor vehicle. Det. Horval testified on direct examination as follows: Q Did anything unusual occur? A Well, watching a house there that is visited by a Freddie Eden, I saw Freddie Eden driving down the street. It was known to me that Freddie did not have a drivers license, that he was driving under suspension. - 8 - Q And how was that known to you, officer? A I've done surveillance and arrested him over the past 10 years on drug activity, and I had a printout which stated that he had no license. * * * Q Did you observe Mr. Eden in the driver's position in that vehicle? A Yes, I did. Once Det. Horval observed defendant as he exited his vehicle, Det. Horval perceived through his own senses evidence that another misdemeanor offense was being committed, viz., DUI. Det. Horval's testimony on direct examination continued as follows: Q What did you do then, officer? A He then pulled over to the curb in front of that address. I pulled in back of him. He exited the car and at that time I told him -- I went up to him and observed that he was intoxicated. Q And what gave you that indication? A By the way he walked, his eyes, the smell of alcohol on his breath. Q Okay. A And after I saw him walking; after that, too. Then, after I talked to him. He had slurred speech. (Emphasis added.) Moreover, on cross-examination, Det. Horval supplemented his previous testimony in the following manner: - 9 - Q Now, you stated on direct that you know that Freddie Eden does not have a drivers license; correct? A That's right. Q And you said that you had a printout. A That's correct. Q Did you have the printout on you at the time? A No. You mean at the time, then? Q Right. A Yes. * * * Q How many arrests have you made for driving while under the influence? A Through my whole career? Q Yes. A. A couple thousand I would say. * * * Q So, just so I'm clear -- I want just a ballpark figure on this -- after you see Freddie Eden drive down the street, how long does it take you before you eventually stop him? A Two minutes, three at the most. Q So, you didn't stop him immediately? A No, because we had to turn around. Q Okay. A And then he pulled in somewhere. We got to turn around again. Q On what basis did you stop him? - 10 - A He was driving while under suspension. * * * Q All right. Did you say something to Mr. Eden? A Yeah. I mentioned to him the fact that he was being under arrest for driving while under suspension. Q Now, on what basis did you believe he was intoxicated? A Well, after he got out of the car by the way he was walking, the way he was talking, his eyes were glassy and he smelled of alcohol on his breath, and there was half a bottle consumed of Alabama Slammer in the car. (Emphasis added.) From the foregoing, it is clear Det. Horval articulated a number of "facts upon which a reasonable suspicion could be based that [defendant] was violating the law" which justified the initial stop of defendant and following defendant's arrest for DUS, the subsequent "search," i.e., the breathalyzer test. State v. Williams, supra; Cf. State v. Chatton, supra. See also Columbus v. Lenear (1984), 16 Ohio App. 3d 466. Cf., also, State v. Frye (1985), 21 Ohio App. 3d 133. Moreover, this court has previously held where an officer has observed the defendant committing a misdemeanor traffic violation and has arrested him therefor, a subsequent limited search of defendant and the area immediately under his control is reasonable. State v. Harris (1987), 36 Ohio App.3d 106; State v. Allen (1985), 21 Ohio App. 3d 199. - 11 - Since Det. Horval's stop of defendant was reasonable, the evidence thus obtained was not the "fruit of a poisonous tree," therefore, the trial court did not err when it denied defendant's motion to suppress evidence. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS SINCE THE ARREST OF APPELLANT WAS A PRETEXT FOR THE PURPOSE OF CONDUCTING A SEARCH FOR DRUGS. This assignment of error also lacks merit. Defendant argues the stop and arrest in the case sub judice was improper because it was "a pretext to conduct a search" in "the hope of finding drugs" in defendant's possession. Defendant thus contends Det. Horval engaged in police misconduct. Defendant cites City of Cleveland v. Tedar (Mar 4, 1976), Cuyahoga App. No. 34622, unreported, in support of his argument, however, defendant's argument remains unpersuasive. In Tedar, this court reversed appellant's conviction for carrying a concealed weapon on the following facts: (1) the narcotics officers received a "tip" that appellant was "carrying a pistol;" (2) it was approximately two weeks later, however, before the officers proceeded to investigate appellant's movements; (3) on that day, the officers eventually observed appellant exit a tavern and drive away; (4) the officers followed - 12 - appellant's car for twelve blocks; (5) the officers then stopped appellant's car for a traffic violation; (6) appellant was subjected to a complete body search and then a search of his car; (7) one officer reached under the driver's seat and located a machete; (8) the officers then charged appellant with carrying a concealed weapon before issuing the traffic citation; and (9) at the hearing on appellant's motion to suppress evidence one officer admitted that Tedar was arrested for a traffic violation because 'we were interested in whether he had a gun.'" Id., slip opinion at page 4. The facts of the case sub judice are readily distinguishable from those of Tedar. Det. Horval gave the following testimony: (1) the officers were conducting a surveillance of the suspected "drug house" and while doing so, happened to observe defendant drive past them; (2) Det. Horval had knowledge defendant's driver's license was under suspension; (3) Det. Horval at that time formed the intention to arrest defendant for DUS and proceeded to follow defendant; (4) Det. Horval arrested defendant for DUS as soon as he "caught up" with defendant; (5) after defendant exited his vehicle, Det. Horval observed signs that defendant was intoxicated; (6) Det. Horval had made thousands of arrests for DUI in his twenty-one year career as an officer and was acquainted with symptoms which are indicative of intoxication; (7) Det. Horval knew defendant well and stated defendant's actions and "personality [were] different then I - 13 - [sic] formerly talked to him;" (8) at that point, Det. Horval proceeded to administer a breathalyzer test. Defendant makes the same argument as did the successful appellant in Tedar, supra, viz., that Det. Horval's actions constituted "police misconduct" in that in his arrest of defendant for DUS he was actually seeking to find defendant in possession of drugs. To support his argument, defendant cites many isolated statements made by Det. Horval at the hearing on defendant's motion to suppress evidence. One statement made by Det. Horval, however, is notably missing, viz., the following, given on cross- examination: Q And it's also fair for me to say that the primary purpose of your stopping him that day was for drug enforcement; correct? A Well, not at that time, no; not when I saw that he was -- I didn't know there was no drugs. I knew he -- I didn't think he'd have any drugs on him because he was coming home. He wasn't leaving, but I did know he didn't have a license. (Emphasis added.) Defendant implies in his second assignment of error that an officer of the law cannot arrest a person who in his presence is committing a specific crime because the officer believed the individual was committing some other crime. Simply stated, defendant was committing two crimes in the presence of Det. Horval, viz., (1) DUS, i.e., driving with no license; and (2) DUI. Defendant believes, through convoluted reasoning, if the - 14 - detective expected to find drugs on defendant and did not, then the detective could not arrest defendant for DUI and DUS based upon specific and articulable facts. Similarly stated, if the detective did not in his investigation find the objects of his expectations, he must then turn his back and ignore other crimes committed in his presence. This reasoning is difficult to comprehend. In Columbus v. Lenear, supra at 468, the court stated as follows: In the instance of the commission of a misdemeanor, ... a warrantless arrest can be made only if the misdemeanor is committed in the presence of the arresting officer, R.C. 2935.03(A). What is required for a valid warrantless arrest is not that the officer have absolute knowledge that a misdemeanor is being committed in the sense of possessing evidence sufficient to support a conviction after trial, but, rather, that he be in a position to form a reasonable belief that a misdemeanor is being committed, based upon evidence perceived through his own senses. In other words, if, based upon circumstances perceivable by his own senses, a reasonable person would be justified in concluding that a misdemeanor is being committed in his presence, then, the warrantless arrest is valid. (Emphasis added.) Therefore, on the facts of the case sub judice, the police actions were proper and did not constitute "misconduct." United States v. Robinson (1973), 414 U.S. 218. Thus, the trial court did not err in overruling defendant's motion to suppress evidence on this ground. - 15 - Accordingly, defendant's second assignment of error is also overruled. Defendant's conviction is affirmed. - 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 Cleveland 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. DAVID T. MATIA, C.J., and DYKE, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .