COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70973 CITY OF BRECKSVILLE : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL C. BAYLESS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION APRIL 3, 1997 CHARACTER OF PROCEEDING Criminal appeal from Garfield Heights Municipal Court Case No. 96-TRC-1892 A-D JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: ROGER A. WADSWORTH, ESQ. PAUL M. EARLE, ESQ. SERGIO DiGERONIMO, ESQ. 148 Hickory Way 8927 Brecksville Road P.O. Box 289 Brecksville, Ohio 44141 Ravenna, Ohio 44256 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Michael C. Bayless appeals from his convictions in Garfield Heights Municipal Court following a jury trial for driving under the influence of alcohol (R.C. 4511.19(A)), driving under license suspension (R.C. 4507.02), weaving (R.C. 4511.33), and operating a motor vehicle with an open alcoholic container (R.C. 4301.62). Defendant contends that the trial court erred in failing to suppress certain evidence in that the police had no reasonable suspicion to conduct an investigatory stop of defendant and the court should have accepted defendant's no contest plea to the driving under suspension charge. We find no merit to the appeal and affirm. On the evening of March 6, 1996, defendant attended a rock concert with his girlfriend at Gund Arena in downtown Cleveland. After the concert, defendant with his girlfriend began a return trip down I-77 to his home in Mantua in Portage County. Over the course of several miles, defendant was observed by another motorist weaving and cutting people off. After observing this erratic behavior, the motorist contacted police by cellular phone, identified himself, and reported that defendant was not keeping within his lane and almost caused several high speed accidents. The caller identified the offending vehicle as a purple Ford pick-up truck with license plate N188PN. The Brecksville Police dispatched a patrol car to investigate. The Brecksville police officer positioned himself on I-77's - 3 - southbound right berm and soon observed defendant's truck in the passing lane of I-77. The officer began following defendant and observed over the course of one mile defendant weaving substantially within the high speed lane at least four times and once weaving one-third of the trucks width into the next lane. Without any signal from the police, defendant swerved from the passing lane into the right lane and then quickly pulled off the highway completely and stopped on the berm. The defendant did not operate his turn signal when making the lane changes. The officer was satisfied that he had observed sufficient facts to investigate the motor vehicle violations involving defendant, turned his overhead lights on, and pulled over behind the defendant's vehicle which was stopped just south of Miller Road in Brecksville. (Supp. Tr. at 8-12). The officer observed defendant exit his truck and walk to the front of it. The officer exited the patrol car and asked the driver to come to the rear of the truck. He observed that defendant was uneasy on his feet as he walked towards him. He explained to defendant that a call was received about defendant's driving and he had personally observed him driving erratically. Defendant explained that something was wrong with his fan belt. At that time, another Brecksville police officer stopped at the scene to assist in the matter. While talking to defendant, the first officer detected a strong odor of alcoholic beverage, bloodshot eyes and thick-tongued speech. The officers asked - 4 - defendant if he had anything to drink and he replied that he had a couple of beers. The defendant failed a walk-and-turn field sobriety test, losing his balance and could not walk a straight line. The defendant refused to take a stand-and-count test. When the arresting officer attempted to observe defendant's pupils by administering the gaze nystagmus test with a flashlight, defendant ignored his instructions, turned away and voluntarily put both arms out to be handcuffed. (Supp. Tr. at 13-17). Defendant was advised that he was arrested for driving under the influence. An inquiry into his driving status revealed he was also driving under suspension from a prior DUI charge. An inventory of his vehicle prior to towing yielded five empty and one full Budweiser bottles neatly placed into their cardboard container on the back seat floor of the truck. The five empty bottles appeared to be recently consumed as they had liquid residue in their bottoms. (Supp. Tr. at 18). The trial court overruled the defendant's motion to suppress and the case proceeded to a jury trial and the guilty verdicts. This timely appeal ensued. Defendant's assignments of error will be addressed in the order asserted. I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS REGARDING THE ISSUE OF PROBABLE CAUSE. - 5 - Defendant's argument is addressed to whether the officer had adequate grounds to conduct an investigatory stop of defendant without a warrant. Our role as a reviewing court and the factors to be considered were set forth in State v. Velez (May 4, 1995), Cuyahoga App. No. 67595, unreported, as follows: The scope of our review on a motion to suppress was recently set forth by this Court in State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172: "In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. However, without deference to the trial court's conclusion, it must be determined independently whether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908." In Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, the United States Supreme Court held that a police officer may stop and investigate unusual behavior, even without probable cause to act, when he reasonably concludes that the individual is engaged in criminal activity. In justifying that conclusion, the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Id. at 21. The circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. State v. Freeman (1980), 64 Ohio St.2d 291, 295, 414 N.E.2d 1044. As the - 6 - Supreme Court stated in State v. Williams (1990), 51 Ohio St.3d 58, 61, 554 N.E.2d 108: "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, 'an 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, 66 L.Ed.2d 621, 101 S.Ct. 690." See, also, State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271. Id. at 3-5. The United States Supreme Court confirmed these principles in Whren v. United States (1996), 116 S.Ct. 1769 at 1772, where it stated: "As a general matter, the decision to stop an automobile is reasonable where police have probable cause to believe that a traffic violation has occurred." The Supreme Court of Ohio has also recently held that stops based on minor traffic violations do not violate the Fourth Amendment. In Dayton v. Erickson (1996), 76 Ohio St.3d 3, the syllabus held: Where a police officer stops a vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is not unreasonable under the Fourth Amendment to the United States Constitution even if the officer has some ulterior motive for making the stop, such as a suspicion that the violator was engaging in more nefarious criminal activity. - 7 - In the present case, an identified citizen-informant observed defendant weaving and cutting other motorists off, almost causing accidents over a distance of some ten to twelve miles as he traveled down I-77. He reported his observations to the police by his cell phone identifying the defendant's vehicle as a purple Ford pick-up truck with license plate N188PN southbound on I-77. The Brecksville police were dispatched to investigate. The officer picked up the defendant's trail and followed him. The officer independently observed, over the course of at least one mile, defendant weaving within his lane at least four times, and once over into the next lane. The weaving observations alone were sufficient to justify an investigative stop and corroborated by an identified citizen-informant. State v. Stamper (1995), 102 Ohio App.3d 431; State v. Antill (1993), 91 Ohio App.3d 589, 592. The officer's own observation of the weaving, in and out of the lane traveled, occurring over the course of at least one mile, combined with the corroborative information given to the police dispatcher by the identified citizen-informant, are the specific and articulable facts justifying the officer's actions. A police officer necessarily relies on information he receives over the police radio, and it is his duty to act when he receives that information. State v. Fultz (1968), 13 Ohio St.2d 79, 81. Information from an ordinary citizen who has personally observed what appears to be criminal conduct carries with it indicia of - 8 - reliability and is presumed to be reliable. State v. Antil, supra. The ordinary citizen is on a different footing than a police informant who is implicated in criminal conduct. Antil, supra. Even anonymous tips as to illegal conduct may form the basis for an investigative stop where the tips predict the future misconduct of the defendant. As stated in State v. Smith (Jan. 16, 1996), Cuyahoga App. No. 68643, unreported at 3-4: The propriety of an investigative stop must be viewed in light of the totality of the circumstances. State v. Bobo (1988), 37 Ohio St.3d 177. Where specific details of an anonymous tip are corroborated by police, they have reasonable suspicion to make an investigatory stop and weapons search. Alabama v. White (1990), 496 U.S. 325, 110 St.Ct. 2412; Terry v. Ohio (1968), 392 U.S. 1; State v. Andrews (1991), 57 Ohio St.3d 86. State v. Martin (March 14, 1991), Cuyahoga App. No. 59976, unreported. The fact that the tipster was an eyewitness to a crime that had just occurred may be considered in the totality of the circumstances. See Adams v. Williams (1972), 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612, 617, State v. Hilliard (Sept. 22, 1994), Cuyahoga App. No. 66270, unreported, at 14. State v. Campbell (1990), 68 Ohio App.3d 688, People v. Tooks (S.C. Mich. 1978), 403 Mich. 568, 271 N.W.2d 503. In this case, the tipster was a citizen who had just observed shots being fired from a van. The police located the van in a short time span, in the area designated by the informant. The van matched the description given by the informant: a red van with dark tinted windows, containing an older male passenger. The incident occurred at 2 a.m., - 9 - when traffic was light. Under these circumstances, the officers had reasonable suspicion to believe it was the same van. Bobo, Hilliard, supra. The stop was not pretextual but was justified by a reasonable suspicion based on articulable facts; namely, an informant's tip corroborated by police observation. *** We find the present case is distinguishable from each of the cases cited as authority by defendant on the issue of probable cause: State v. Gullett (1992), 78 Ohio App.3d 138; State v. Williams (1993), 86 Ohio App.3d 37; Mason v. Loveless (1993), 87 Ohio App.3d 264; Hamilton v. Lawson (1994), 94 Ohio App.3d 462; State v. Dirogi (1994), 96 Ohio App.3d 466. In each of the foregoing cases, only slight deviations from acceptable driving patterns were noticed which did not justify a conclusion of driving under the influence. The instant case is far removed from those cited by the defendant. Furthermore, defendant abruptly left the highway to park on the berm. The police contact with defendant was initiated when he pulled himself across two lanes of highway without a turn indicator and onto the berm for no apparent reason. This action alone would necessitate the officer's investigation into a violation of R.C. 4511.39 or an emergency. R.C. 4511.39 requires that a vehicle's turn signal be activated before engaging in a lane change. In Dayton v. Erickson, supra, the valid stop was based on a driver's failure to signal a turn. See, also, State v. Richardson (1994), 94 Ohio App.3d 501, 504-505; State v. Lowman (1992), 82 Ohio App.3d 831, 837. - 10 - An investigative stop of an automobile is proper under the Fourth Amendment where an officer has reasonable, articulable suspicion that a motorist is engaging in criminal activity, including minor traffic offenses. Delaware v. Prouse (1979), 440 U.S. 648, 653; Dayton, supra. The stop of defendant's vehicle was valid based on the illegal lane change alone. Defendant cannot complain that the police intruded upon him, since it was his voluntary and illegal action of pulling off the highway that necessitated the police contact. It was far more inferential that defendant noticed the police cruiser following him and pulled over to avoid further observation. The circumstances are not unlike those in this Court's decision in Beachwood v. Sims (1994), 98 Ohio App.3d 9. In Sims, an identified informant reported to police on his cellular phone that the defendant was driving erratically. The informant followed the defendant home and waited for police to arrive. The defendant was standing in the garage when the police officer began to question him. The officer observed that the defendant appeared visibly intoxicated, was unsteady, smelled of alcohol, and had glassy eyes. Though the officer did not personally observe the erratic driving, the defendant admitted drinking three beers and driving from downtown. We held that the "citizen-informant's tip was corroborated by sufficient details to serve as a basis for the police officer's investigatory stop" and subsequent arrest for DUI. Id. at 14. The present case - 11 - presents an even stronger fact pattern in that the police officers personally observed the defendant's erratic driving plus the defendant stopped abruptly for no apparent reason. These additional facts support and compel the conclusion that the defendant's Assignment of Error I is without merit. It is overruled. - 12 - II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT THE OPPORTUNITY TO ENTER A PLEA OF "NO CONTEST" TO A CHARGE OF DRIVING UNDER SUSPENSION PRIOR TO HIS TRIAL ON THAT AND OTHER CHARGES. Crim.R. 11(A) states: "A defendant may plead not guilty, not guilty by reason of insanity, guilty, or, with the consent of the court, no contest." Defendant argues that the trial court's refusal to accept defendant's no contest plea to the driving under suspension charge was an abuse of discretion citing State v. Harper (1988), 47 Ohio App.3d 109. In Harper, the defendant attempted to change his plea to no contest on the day of trial. The court stated to defense counsel: As I said before, a guilty plea - I mentioned before on a guilty plea, you know, I'll have no problem with going along with the same agreement we had prior to this trial. O.K. So you might want to talk to him about that for a second. Harper, supra. In Harper, the appellate court found that the trial court had improperly participated in plea bargaining and, by advising the defendant that any agreement as to the sentencing had to be based upon a guilty plea, adversely affected the voluntary nature of the defendant's decision to plead guilty. In the instant case, the trial court never engaged in plea bargaining and did not promise a less severe sentence if defendant pled guilty. Defendant only wanted to plead nolo on the driving under suspension charge in order to preserve procedural matters for appeal. Consequently, even if the trial - 13 - court had accepted a no contest plea on the driving under suspension charge, defendant would still have gone to trial on the remaining charges. A no contest plea would not have eliminated the need for a trial and the refusal of the trial court to accept the no contest plea did not create any additional burdens on defendant. The Harper reasoning does not apply to the case at hand. The court has discretion to accept or refuse to accept a no contest plea. State v. Jenkins (1984), 15 Ohio St.3d 164, 222; State v. Mehozanek (1983), 8 Ohio App.3d 271, 273; State v. Jones (Feb. 17, 1994), Cuyahoga App. No. 64674, unreported. Crim.R. 11 provides: Misdemeanor cases involving serious offenses. In misdemeanor cases involving serious offenses the court may refuse to accept a plea of guilty or no contest, ***. Defendant argues that the trial court abused its discretion by refusing to allow him to plead no contest. In a plea bargain, the accused and the prosecutor negotiate to reach a mutually satisfactory disposition of the case subject to approval by the court. Counsel for the defendant cannot dictate the terms or nature of a plea agreement. Defendant does not have the "right to enter a plea of no contest" on the day of trial. He only has the right to request the plea. Jenkins, supra. See, also, North Carolina v. Alford (1970), 400 U.S. 25. The trial court had the right to refuse to accept defendant's no contest plea on the day - 14 - of trial. The trial court did not attempt to influence defendant to plead guilty by promising him a less severe sentence if he did so. The trial court evidenced no bias against defendant nor any hostility towards him. The refusal to accept the no contest plea on the day of trial was well within the trial court's discretion. We find no abuse. Assignment of Error II is overruled. Judgment affirmed. - 15 - 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 Garfield Heights 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. O'DONNELL, J., and ROCCO, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .