COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71669 CITY OF OLMSTED TOWNSHIP : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ROBERT STUMPH : : Defendant-Appellant : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: JUNE 5, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE BEREA MUNICIPAL COURT CASE NO. CR-96-TRC-364-O1 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: DEAN E. DEPIERO (#0063629) 5454 State Road Parma, OH 44134 Also listed: GREGORY M. SPONSELLER (#0012350) Prosecutor, Olmsted Township 11 Berea Commons Berea, Ohio 44017 For Defendant-Appellant: EDWIN J. WAGNER (#0024317) THOMAS BLAIR WILBUR (#0020941) 6325 York Road, Suite 305 Parma Heights, Ohio 44130 - 2 - PER CURIAM: Defendant-appellant, Robert W. Stumph ("appellant"), appeals the decision of the trial court denying his motion to dismiss and/or suppress. Appellant assigns the following error for our review: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS AND/OR SUPPRESS. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. At approximately 8:00 p.m. on February 2, 1996, Officer Daniel Jopek of the Olmsted Township Police Department observed appellant traveling eastbound near the corner of Cook and Fitch Road in Olmsted Township without illumination or running lights on the rear of his vehicle. Officer Jopek further observed appellant turn southbound onto Fitch Road without using his turn signal. Subsequently, Officer Jopek pulled appellant over to the side of the road. After pulling appellant over, Officer Jopek approached his vehicle and spoke with appellant. At this time, Officer Jopek detected a strong odor of alcohol and inquired as to whether appellant had been drinking. When appellant answered in the negative, the officer conducted a variety of field sobriety tests. Officer Jopek had appellant perform both the heel-to-toe test and recite the alphabet in letter order. Officer Jopek stated that appellant was unable to recite the alphabet in letter order and that his speech was very slurred. (Tr. 8). A preliminary breath test was - 3 - also conducted which showed appellant had a significant amount of alcohol in his system. (Tr. 8). Based on the results of these tests, appellant was arrested and issued six traffic citations for the following violations: (1) failure to wear a seatbelt in violation of R.C. 4513.263; (2) failure to have properly functioning taillights in violation of R.C. 4513.05; (3) expired license in violation of R.C. 4507.02(A); (4) failure to use a turn signal in violation of R.C. 4511.39; (5) driving while under suspension in violation of R.C. 4507.02(D); and (6) operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1). On April 15, 1996, appellant filed a motion to dismiss and/or suppress. The trial court, after holding a suppression hearing on July 2, 1996, denied appellant's motion finding that probable cause to arrest appellant did exist. On August 23, 1996, appellant pled no contest and was found guilty of operating a motor vehicle while under the influence of alcohol ("DUI") in violation of R.C. 4511.19(A)(1). On October 25, 1996, the trial court sentenced appellant to one hundred eighty days in jail, with all but thirty-four days suspended, a five hundred dollar fine, five years probation, three AA meetings per week for fifty-two weeks, and a five year license suspension. II. In his sole assignment of error, appellant argues the trial court failed to dismiss all charges against him and/or suppress all evidence as his arrest was illegal and in violation of both the Ohio - 4 - and United States Constitution. Appellant contends that both the initial stop and the subsequent arrest were invalid and therefore his motion should have been granted. In a motion to suppress, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Smith (1991), 61 Ohio St.3d 284; City of Westlake v. Sloan (October 31, 1996), Cuyahoga App. No. 68706, unreported. Accordingly, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Sloan, supra, citing State v. Klein (1991), 73 Ohio App.3d 486, 488. Accepting those facts as true, we must independently determine, as a matter of law and without deference to the trial court's conclusion, whether they meet the applicable legal standard. Id. Under the Fourth Amendment to the United States Constitution, a police officer is justified in conducting a brief investigatory stop of an individual only if the officer has reasonable suspicion that the individual is involved in criminal activity. Terry v. Ohio (1968), 392 U.S. 1. In order for a law enforcement 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. Sloan, supra; See also Delaware v. Prouse (1979), 440 U.S. 648, 663. The officer does not need probable cause for an arrest in order to make an investigative stop but needs only specific and articulable facts with which to warrant the officer's further investigation. State v. - 5 - Brandenburg (1987), 41 Ohio App.3d 109. In determining the appropriateness of an investigative stop, a reviewing court must view the stop in light of the totality of the surrounding circumstances, giving due weight to the officer's experience and training. State v. Andrews (1991), 57 Ohio St.3d 86, 87-88. The record in this case reveals that appellant was traveling eastbound on Cook Road in Olmsted Township with his headlights on but no illumination or running lights on the rear of his vehicle. Furthermore, appellant was observed by Officer Jopek making a turn without using his turn signal. Based on the foregoing, we hold that Officer Jopek possessed the requisite reasonable and articulable suspicion to stop appellant. Appellant next challenges the trial court's determination that Officer Jopek possessed probable cause to arrest him for operating a motor vehicle while under the influence of alcohol. Probable cause to make an arrest exists where there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that the individual accused is guilty of the offense with which he or she is charged. Huber v. O'Neill (1981), 66 Ohio St.2d 28, 30, quoting Ash v. Marlow (1851), 20 Ohio 119, paragraph one of the syllabus. For purposes of an arrest for driving under the influence, probable cause exists if, at the moment of the arrest, the totality of the facts and circumstances within the officer's knowledge, and of which the officer had reasonably trustworthy information, were sufficient to warrant a prudent person in believing - 6 - that the suspect had violated R.C. 4511.19(A). State v. McCaig (1988), 51 Ohio App.3d 94. The totality of the facts and circumstances in this case are more than sufficient to establish probable cause for appellant's arrest. Officer Jopek testified that when he approached appellant's vehicle, he noticed a very strong odor of alcohol on appellant's breath. Officer Jopek further stated that appellant could not recite the alphabet in letter order and that his speech was very slurred. Finally, Officer Jopek testified that another officer came on the scene, gave appellant the portable breath test, and appellant failed the test showing a "significant amount of alcohol". In light of the foregoing, we hold that the trial court did not err in overruling appellant's motion to dismiss and/or suppress. Officer Jopek had reasonable suspicion to make the initial investigatory stop of appellant's vehicle and further, had probable cause to arrest him for driving under the influence of alcohol. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. - 7 - This cause is affirmed. 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 Berea 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. JOHN T. PATTON, PRESIDING JUDGE LEO M. SPELLACY, JUDGE THOMAS J. PARRINO, JUDGE* *Thomas J. Parrino, Retired Judge of the Eighth Appellate District, Sitting by Assignment. N.B. This 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(B) 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 of decision by the .