COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68885 CITY OF BAY VILLAGE : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JOHN DILLON : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 5, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court, No. 95-TRC-9937AB. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Carter R. Dodge, Esq. Gary A. Ebert, Esq. Seeley, Savidge & Aussem Co. 800 Bank One Center 600 Superior Avenue, East Cleveland, OH 44114 For Defendant-Appellant: Brian F. Hagan, Esq. Rego, Cullen & Hagan Co. P.O. Box 26259 21270 Lorain Road Fairview Park, OH 44126 -2- PER CURIAM: This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the record from the Rocky River Municipal Court and the briefs of the parties. Defendant- appellant, John W. Dillon, appeals the trial court's denial of his motion to suppress. Defendant-appellant's sole assignment of error states: THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS IN THAT THE OFFICER FAILED TO POSSESS THE REQUISITE REASONABLE SUSPICION, BASED UPON SPECIFIC AND ARTICULABLE FACTS, THAT CRIMINAL BEHAVIOR HAD OCCURRED OR WAS IMMINENT, WHEN HE STOPPED THE DEFENDANT TO INVESTIGATE A FLAT TIRE. On January 28, 1995, at approximately 11:41 p.m., defendant- appellant was driving westward on Lake Road with his flashers on. Defendant-appellant was traveling at approximately twenty-one m.p.h. in a thirty-five m.p.h. zone with a flat tire on the front passenger side of the automobile. Officer Kenneth Bly, who was traveling eastbound on Lake Road, observed defendant-appellant. There were several automobiles behind defendant-appellant waiting to pass. Officer Bly testified he turned around and proceeded to stop defendant- appellant as he was impeding traffic. The officer also intended to render assistance. Defendant-appellant told the officer he must have had a "blow-out" and was attempting to drive to his home on Lake Road. Upon inspecting the front tire, Officer Bly believed defendant-appellant had struck something. When asked if he had struck anything, defendant appellant replied "nothing." -3- The officer asked for defendant-appellant's driver's license and observed defendant-appellant's actions as being slow and deliberate as he passed his driver's license twice before locating it in his wallet. Moreover, the officer detected the odor of alcohol on his breath. The officer had defendant- appellant perform several field sobriety tests. After determining defendant-appellant was intoxicated, the officer arrested defendant-appellant. Defendant-appellant agreed to 1 submit to a breath test with the results being .167 percent. On March 28, 1995, defendant-appellant filed a motion to suppress asserting the officer lacked a sufficient reason to: (1) initially stop the vehicle, (2) to further detain and investigate defendant-appellant, and (3) to arrest defendant-appellant for driving under the influence of alcohol. The motion was denied and defendant-appellant withdrew his "not guilty" pleas and entered pleas of no contest to operating a motor vehicle under the influence of alcohol in violation of Bay Village Codified Ordinance 313.01(A)(1) and 313.01(A)(3). Initially, we note it is axiomatic that at a suppression hearing, evaluation of the evidence and the credibility of witnesses are issues of the trier of fact. State v. Mills (1992), 62 Ohio St.3d 357, 366, citing State v. Flanning (1982), 1 Ohio St.3d 29, 30. An appellate court is bound to accept the 1 Operating a motor vehicle with a blood alcohol content over .10 percent is in violation of Bay Village Codified Ordinance 313.01. -4- trial court's findings of fact if they are supported by competent, credible evidence. State v. Klein (1991), 73 Ohio App.3d 486; State v. Duganitz (May 5, 1994), Cuyahoga App. No. 65328, unreported. It is well established that stopping an automobile constitutes a Fourth Amendment seizure which requires a balancing of the public's privacy interest against legitimate government interests to determine whether the seizure was reasonable. Delaware v. Prouse (1979), 440 U.S. 648; State v. Chatton (1984), 11 Ohio St.3d 59. In justifying such an intrusion, a police officer must be able to point to specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant the officer's belief that the driver violated the law and/or that the vehicle is unsafe for operation. See Terry v. Ohio (1968), 392 U.S. 1; State v. Chatton (1984), 11 Ohio St.3d 59; City of Cleveland v. Paltani (May 9, 1991), Cuyahoga App. No. 60255, unreported. The United States Supreme Court has held since an effort to define "reasonable and/or articulable suspicion" creates unnecessary difficulty when evaluating the validity of a stop such as this, a court must consider "the totality of the circumstances -- the whole picture." United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 261. The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was -5- articulated as such, practical people formulated certain common-sense conclusions about human behavior; ***. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. Illinois, supra, at 231, 232. Thus, when considering whether or not there existed a reasonable suspicion for the stop and investigation of an automobile, a trial court must look at the totality of the circumstances, as viewed in the eyes of one versed in the field of law enforcement, and determine whether there is at least a fair probability that the driver violated the law and/or that the vehicle is unsafe for operation. See Prouse, supra. In the case sub judice, the arresting officer testified he witnessed defendant-appellant's automobile driving at approximately 11:41 p.m. with his flashers on at twenty-one m.p.h. in a thirty-five m.p.h. zone. Defendant-appellant was driving with a flat tire on the front passenger side of the automobile and had several automobiles behind him waiting to pass. The officer testified he stopped defendant-appellant as he was impeding traffic and the automobile was unsafe in its condition. The officer also intended to render assistance. We believe not only was there a reasonable suspicion defendant-appellant was driving as automobile in an unsafe condition in violation of R.C. 4513.02, but also that the officer acted in a manner which should be expected by the public, i.e., to render assistance. See State v. Finley (1988), Ross App. No. -6- 1382, unreported. Therefore, when weighed against defendant- appellant's public privacy interest, the officer's vehicular investigatory stop did not violate defendant-appellant's Fourth Amendment rights. Since defendant-appellant does not dispute the issue of probable cause as to his arrest, we find the trial court did not err in denying defendant-appellant's motion to suppress. Judgment affirmed. -7- 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 Rocky River 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. JAMES D. SWEENEY, PRESIDING JUDGE DAVID T. MATIA, JUDGE TERRENCE O'DONNELL, 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 it will become the judgment and order of the court and time period for review will begin to run. .