COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69873 CITY OF ROCKY RIVER : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JAMES P. SWEENEY : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 8, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court, No. 95-TRC-6788ABCD. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Gary A. Hotz, Esq. 24650 Center Ridge Road Suite 210 Westlake, OH 44145 For Defendant-Appellant: John P. Hildebrand, Esq. Hildebrand, Williams & Farrell 21430 Lorain Road Fairview Park, OH 44126-2125 -2- DAVID T. MATIA, P.J.: James Sweeney, defendant-appellant, appeals from the judgment of the Rocky River Municipal Court in which the trial court denied defendant-appellant's motion to suppress evidence. Defendant- appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On June 26, 1995 at approximately 2:00 a.m., Rocky River Police Officer David Wesnitzer was on a basic patrol in the vicinity of Center Ridge Road and Wooster Parkway when he observed a vehicle operated by James Sweeney, defendant-appellant, traveling at a speed that appeared to be higher than the legal limit. Officer Wesnitzer, who had been traveling in the opposite direction, turned his patrol car around and followed defendant-appellant's vehicle. Officer Wesnitzer then observed defendant-appellant's vehicle make a right turn onto Hilliard Road however, prior to making the turn, defendant-appellant activated his left turn signal. As defendant-appellant proceeded eastbound on Hilliard, Officer Wesnitzer observed defendant-appellant's vehicle weaving within its own lane of travel nearly striking the curb on three separate occasions. Officer Wesnitzer activated his overhead lights at approximately 18900 Hilliard. Defendant-appellant stopped his vehicle in the driveway of his apartment complex at 18851 Hilliard. Upon exiting his vehicle, defendant-appellant appeared unsteady on his feet, his breath smelled of alcohol and his eyes were glassy. Officer -3- Westnitzer testified that defendant-appellant stated: "I'm on private property, you can't stop me." Nevertheless, a series of six field sobriety tests were performed. Defendant-appellant failed all of the field sobriety tests. Defendant-appellant was then arrested and taken to the Rocky River Police Department where he submitted to a breathalyzer test with a result of .14. Defendant-appellant was charged with operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1), operating a motor vehicle with a prohibited blood alcohol content in violation of R.C. 4511.19(A)(3), continuous lanes of travel in violation of Rocky River Ordinance 331.08 and possession of marijuana, less than the bulk amount, in violation of Rocky River Ordinance 513.03(C)(2). On June 28, 1995, defendant-appellant entered a plea of not guilty to all charges. Trial was scheduled for September 5, 1995 in Rocky River Municipal Court. On July 13, 1995, defendant-appellant filed a motion to suppress evidence obtained as a result of the June 26, 1995 stop and search by the Rocky River Police Department. The trial court conducted an oral hearing on defendant-appellant's motion on August 8, 1995. The only witness to testify was the arresting officer, David Wesnitzer. At the conclusion of Officer Wesnitzer's testimony, the trial court overruled defendant-appellant's motion to suppress and trial was rescheduled for October 3, 1995 at defendant-appellant's request. -4- On October 3, 1995, defendant-appellant entered a plea of no contest to operating a motor vehicle with a prohibited blood alcohol content in violation of R.C. 4511.19(A)(3). The remaining charges were dismissed. Defendant-appellant was then found guilty and referred to the probation department for a presentence investigation and report. On October 23, 1995, defendant-appellant was sentenced to a $1,000 fine plus court costs and ninety days in jail. The trial court suspended $500 of the fine and eighty days of the ninety day jail sentence and placed defendant-appellant on two years inactive probation. Defendant-appellant's sentence was suspended pending the outcome on appeal. On November 22, 1995, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR James Sweeney's, defendant-appellant's, sole assignment of error states: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS ILLEGALLY OBTAINED EVIDENCE BASED ON LACK OF PROBABLE CAUSE FOR A STOP AND SUBSEQUENT ARREST. A. THE ISSUE RAISED: WHETHER THE ARRESTING OFFICER HAD REASONABLE AND ARTICULABLE SUSPICION TO JUSTIFY THE STOP OF DEFENDANT-APPELLANT'S VEHICLE. Defendant-appellant argues, through his only assignment of error, that the trial court erred in overruling his motion to suppress evidence. Specifically, defendant-appellant maintains that Officer Wesnitzer of the Rocky River Police Department lacked reasonable and articulable suspicion to believe defendant- -5- appellant was operating a motor vehicle while under the influence of alcohol. It is defendant-appellant's position that, at no time did he drive in an erratic manner or cross the center line while operating his vehicle on the night in question and therefore the initial stop and subsequent arrest were unconstitutional and all evidence arising out of the unconstitutional stop and arrest should have been suppressed by the trial court. Defendant-appellant's only assignment of error is not well taken. B. STANDARD OF REVIEW FOR INVESTIGATORY STOP. In order for a police officer to make a valid and constitutional stop of an automobile, there must exist a reasonable suspicion by the officer that a traffic law is being violated or that criminal activity is being carried on. Berkemer v. McCarty (1984), 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 72 L.Ed.2d 317. A law enforcement officer does not need probable cause for an arrest in order to make an investigatory stop, but needs only specific and articulable facts warranting the police officer's further investigation. State v. Brandenburg (1987), 41 Ohio App.3d 109; State v. Miller (March 31, 1994), Gallia App. No. 93CA20, unreported. In determining whether a traffic stop was proper, a reviewing court must view the stop in light of the totality of the surrounding circumstances. State v. Freeman (1980), 64 Ohio St.2d 291, paragraph one of the syllabus; State v. Wireman -6- (1993), 86 Ohio App.3d 451, 453; State v. Bobo (1988), 37 Ohio St.3d 177; Hamilton v. Lawson (1994), 94 Ohio App.3d 462, 463. Once reasonable suspicion is found for an investigatory stop, a police officer must then have probable cause to arrest a detainee. State v. Wireman, supra. C. STANDARD OF REVIEW FOR MOTION TO SUPPRESS. In a suppression hearing, the evaluation of the evidence and the credibility of witnesses are issues for the trier of fact. State v. Mills (1992), 62 Ohio St.3d 357; State v. McCulley (April 28, 1994), Cuyahoga App. No. 64470, unreported. The trial court assumes the role of trier of fact in a suppression hearing and is therefore in the best position to resolve questions of fact and evaluate credibility of witnesses. State v. Klein (1991), 73 Ohio App.3d 486. Appellate courts should give great deference to the judgment of the trier of fact. State v. George (1989), 45 Ohio St.3d 329. Accordingly, an appellate court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Klein, supra. D. THE TRIAL COURT DID NOT ERR IN OVERRULING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS. In the case sub judice, a review of the record from the trial court demonstrates that the trial court properly overruled defendant-appellant's motion to suppress evidence. Under the totality of the circumstances, it is apparent that the stop of defendant-appellant's vehicle was reasonable and supported by articulable facts demonstrating that Officer Westnitzer had a -7- reasonable suspicion that defendant-appellant was operating his vehicle in violation of R.C. 4511.19. Officer Wesnitzer testified to the following: he observed defendant-appellant's vehicle traveling at a speed which exceeded the legal posted speed limit; defendant-appellant incorrectly activated his left turn signal prior to making a right turn; defendant-appellant's vehicle had difficulty maintaining its lane of traffic nearly striking the curb on three separate occasions and defendant-appellant failed to bring his vehicle to a timely stop after Officer Wesnitzer activated his overhead emergency lights. While it is true that some Ohio courts have found that one weave within a lane of travel does not give a police officer a reasonable and articulable suspicion that a motorist is operating a vehicle under the influence of alcohol, Hamilton v. Lawson, supra, other Ohio courts, including this court, have found that weaving within a single lane of travel may justify an investigative stop of a vehicle when other considerations are also present. Johnson v. Bureau of Motor Vehicles (Dec. 19, 1991), Cuyahoga App. No. 59375 unreported; State v. Gedeon (1992), 81 Ohio App.3d 617. In this instance, the fact that defendant-appellant's vehicle was weaving within its lane of travel nearly striking the curb on three separate occasions combined with Officer Wesnitzer's personal observations regarding the speed of defendant-appellant's vehicle and the improper turn signal, all of which occurred at approximately 2:00 a.m., support the conclusion that Officer Wesnitzer had specific and -8- articulable facts upon which to reasonably believe that defendant-appellant was operating his vehicle while under the influence of alcohol warranting the investigatory stop. The subsequent failure by defendant-appellant of the field sobriety tests then provided the officer with probable cause to arrest defendant-appellant and transport him back to the station where a BAC test was performed. Accordingly, for the reasons stated above, this court finds that the trial court properly overruled defendant-appellant's motion to suppress evidence. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is 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 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 M. PORTER, J. and JOSEPH J. NAHRA, J., CONCUR. DAVID T. MATIA 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 .