COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68107 CITY OF LAKEWOOD : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION DENNIS M. HAFFEY : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 12, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Lakewood Municipal Court, Case No. 94 C-23 1/2+2/2. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Timothy J. Gauntner, Esq. 14600 Detroit Avenue, #1150 Rocky River, Ohio 44107 Sean F. Kelleher Assistant City Prosecutor City of Lakewood 12650 Detroit Avenue Lakewood, Ohio 44107 For Defendant-appellant: S. Michael Lear, Esq. J. Ross Haffey, Esq. Bernard, Haffey & Bohnert Co. 500l Mayfield Road, Suite 301 Lyndhurst, Ohio 44124-2610 SWEENEY, JAMES D., P.J.: Defendant-appellant Dennis M. Haffey ("Haffey"), d.o.b. March 15, 1961, appeals from his jury trial conviction of driving under the influence of alcohol [in violation of Lakewood Codified Ordinance 333.01(a)] and driving with an expired license plate [in violation of Lakewood Codified Ordinance 335.01]. For the reasons adduced below, we affirm. A review of the record on appeal indicates Haffey was cited on Sunday, January 2, 1994, at 1:10 a.m. for the offenses named above. On February 23, 1994, Haffey filed a Motion to Suppress/Motion to Dismiss based on alleged infirmities surrounding the search and seizure of evidence. The plaintiff-appellee City of Lakewood ("City") filed on February 23, 1994, a brief in opposition to suppression/dismissal. The motion was heard on March 17, 1994. Four witnesses testified on behalf of the prosecution. The first witness for the prosecution at the hearing was Mr. Daniel West, who stated the following in pertinent part (R. 4-11): (1) he is the general manager at Marco's Pizza at 15621 Detroit Road, Lakewood, Ohio; (2) on the morning of the offenses, while the witness was working at the pizza parlor, he observed two men between midnight and 1:00 a.m. enter the restaurant carrying open beer can containers; (3) these two men, who ordered a pizza to go at the register area where the witness was working, were speaking loudly, having difficulty walking, pushing one another, yelling at - 3 - one another, and appeared to be very intoxicated; (4) when the two men left the restaurant after approximately ten minutes with their pizza, the witness telephoned the police, identified himself and gave the police the condition and actions of the two men while inside the restaurant and the description of the rowdies' vehicle, namely, a maroon-panelled Dodge van displaying a sign on the side reading "HAFFEY'S CATERING," the license plate number displayed by the van (the plate number was given to the witness by another patron of the restaurant who observed the two men leave), and the fact that it was leaving the restaurant heading eastbound on Detroit Road; (5) the witness identified Haffey in court as being one of the men who had entered the restaurant. The second witness for the prosecution was Ms. Jennifer Dyke who stated the following in pertinent part (R. 13-19): (1) she is the City police dispatcher who received the call from the manager of Marco's Pizza [Mr. West] at approximately 12:30 a.m.; (2) the manager of the pizza parlor told her an intoxicated person left the store and drove away in a van heading eastbound on Detroit Avenue, which vehicle was described as a maroon vehicle with lettering on the side saying "HAFFEY'S CATERING," also a license plate number was provided by the tipster; (3) in response to the tip, she dispatched two squad cars to the area relaying to the officers the information she had been provided. The third witness for the prosecution was Lakewood Police Officer Terry Miller, who stated the following in pertinent part - 4 - (R. 20-27): (1) as a result of the radio dispatch information he responded to the area and began patrolling for the suspect vehicle; (2) after a short while, he heard over his radio that a fellow squad car driven by Officer Morley had located and was following the suspect vehicle eastbound on Detroit Avenue; (3) the witness drove to the location of the suspect vehicle to back up Officer Morley; (4) when the witness arrived at the scene, Officer Morley had already stopped the suspect vehicle which was facing eastbound, had exited his [Morley's] squad car and was speaking to the driver of the van through the driver's window of the van; (5) the witness pulled up behind Morley's car, exited his [Miller's] squad car and took up a position outside the passenger door of the van; (6) two men were inside the van which fit the description given by the dispatcher; (7) Morley had the van driver exit the van; (8) Morley, the witness and the driver went to the rear of the van where the driver was given a field sobriety test; (9) the driver of the van was identified as the defendant in court by the witness; (10) he thought the color of the stopped van was blue, but it did have the lettering "HAFFEY'S CATERING" on the sides. The fourth witness for the prosecution was Lakewood Police Officer Edwin Morley, who corroborated the testimony of the previous two witnesses, adding in pertinent part as follows (R. 28- 34): (1) when he located the suspect vehicle heading eastbound on Detroit Avenue (at Lewis Road and Detroit Avenue), he followed the van for a period of time before turning on his overhead flashing - 5 - lights; (2) the van would not pull over in response to the flashing lights, so the witness beeped his horn; (3) as the horn sounded, he observed the passenger bend down and appear to conceal something under the seat; (4) the van finally pulled over at Decan Road and Detroit Avenue, at which time he exited his car and Officer West pulled up; (5) the witness knocked on the rolled-up driver window, but the driver did not respond, instead the driver continued to eat 1 pizza ; (6) after knocking on that window several more times, the driver did roll down the window, at which time the witness told the driver about the substance of the complaint; (7) the witness asked the driver to recite the alphabet; (8) the driver began to slur his speech so badly by the letter L that the witness could not understand, at which point the driver advised the witness that he was dyslexic and was taking medication for a cold; (9) there was a moderate smell of alcohol emanating from within the van; (10) at this point the witness asked the driver to exit the van for a field sobriety test which was performed at the rear of the van; (11) an inventory search of the van conducted prior to towing the van to the stationhouse revealed the presence of open beer bottles beneath both front seats of the vehicle; (12) the license plate number given by the dispatcher was substantially correct except that what 1 A reasonable inference of the driver eating pizza while not responding to the officer's attempt to get the window rolled down is that the driver may have been attempting to mask the smell of alcohol on his breath with the pungent odor of fresh pizza. - 6 - had been described as the letter "I" in the plate number was actually the numeral 1. The defense offered no witnesses at the motion hearing. The court eventually denied the motion to suppress on July 11, 1994, following post-hearing briefing by the parties. Thereafter, the matter proceeded to a jury trial on September 21, 1994, where Haffey was found guilty of both offenses. This timely appeal ensued presenting one assignment of error, namely: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO GRANT APPELLANT'S MOTION TO SUPPRESS/MOTION TO DISMISS IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES, AS GUARANTEED BY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION. In analyzing this assignment we are mindful of the following language from Beachwood v. Sims (Cuyahoga, 1994), 98 Ohio App.3d 9, 13-14: As the Supreme Court of Ohio held in State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, " '[i]n determining whether the search and seizure were "unreasonable" our inquiry is a dual one -- whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstance which justified the interference in the first place.' " Id. at 178, 524 N.E.2d at 491, quoting Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The investigative stop exception to the Fourth Amendment warrant requirement permits a police officer to stop an individual if the officer has a reasonable suspicion, based upon specific and articulable facts, that criminal - 7 - behavior has either occurred or is imminent. Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. The police officer, in justifying the particular intrusion, must point to specific and articulable facts warranting a man of reasonable caution in the belief that the officer's action was appropriate. Id. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. The propriety of an investigative stop in Ohio must be viewed in light of the totality of the circumstances. State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271; Bobo; State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044. Also see, Alabama v. White (1990), 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (under the totality of the circumstances, an anonymous tip corroborated by independent police work is sufficient to justify an investigatory stop). In the present case, the manager of the restaurant identified himself to the police dispatcher, thus he was not an anonymous tipster, and he provided a detailed description of the condition of the suspects which gave rise to the initial complaint, the number of men in the van, the license plate number of the van, the color of the van, the distinctive commercial sign on the sides of the van, and the direction the van headed as it left the restaurant. This information was relayed to on-duty squad cars. Officer Morley testified that the van did not pull over after the officer tried to pull over the van with the application of flashing lights and horn. Further, Officer Morley observed furtive movements by the passenger in the van before the van finally stopped. This officer's personal observations before the van stopped confirmed the complainant's allegation of criminal activity being afoot. These facts, - 8 - considered in their totality, were of sufficient nature as to provide that degree of reliability necessary to support a reasonable suspicion of criminal activity which justifies the investigatory stop. Assignment overruled. Judgment affirmed. - 9 - 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 Lakewood 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, J., and TERRENCE O'DONNELL, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE 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 .