COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72102 VILLAGE OF MORELAND HILLS ) ACCELERATED DOCKET ) Plaintiff-Appellee ) JOURNAL ENTRY ) -vs- ) AND ) CHARLES W. KINTNER ) OPINION ) Defendant-Appellant ) ) PER CURIAM Date of Announcement of Decision OCTOBER 2, 1997 Character of Proceeding Criminal appeal from Bedford Municipal Court Case No. 96-TRC-06290 Judgment Affirmed Date of Journalization Apppearances: For Plaintiff-Appellee: For Defendant-Appellant: PAUL B. DAIKER, ESQ. JOSEPH A. DUBYAK, ESQ. 2000 East Ninth Street 920 Terminal Tower Suite 700 Cleveland, Ohio 44113-2206 Cleveland, Ohio 44115 2 PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Defendant-appellant Charles W. Kintner appeals from his conviction in Bedford Municipal Court on a plea of no contest to the charge of driving under the influence of alcohol (R.C. 4511.19(A)(1)). Defendant contends the trial court erred in refusing to suppress evidence obtained during an illegal stop which was without probable cause and outside the officer's jurisdiction. We find no reversible error and affirm. The facts that appear from the transcript of the suppression hearing are set forth below. On September 7, 1996 at approximately 12:15 a.m., Hunting Valley Officer Dan Reagan observed defendant's vehicle stopped on Falls Road at the intersection of South Woodland in Hunting Valley. He noticed the vehicle was part way in the intersection and that its right turn signal was on to proceed eastbound on South Woodland. As the vehicle began to turn right onto South Woodland, it immediately changed[] directions, and made a large looping turn, to the left and proceeded westbound on South Woodland. The officer found this maneuver unusual and he turned his vehicle around and followed defendant's vehicle. Defendant proceeded on South Woodland at 15 miles per hour below the 50 m.p.h. speed limit. As defendant passed the intersection of River Road and entered Moreland Hills, Officer Reagan observed the vehicle drive up over a curb on the right hand 3 side of the road with both wheels and ride on the curb for a while and then veer left of center in corrective action. Shortly thereafter, Reagan observed the vehicle going up against the curb and going along it for a while, bumping up against it several times, then correcting it and going left of center again around the curve. Officer Reagan then saw defendant pull off the roadway and across the driveway of a residence located at 38955 South Woodland in Moreland Hills. The vehicle came to a stop part-way on the lawn of the residence. As this occurred, Reagan slowed his patrol vehicle and jotted down defendant's license plate number. At no time while following defendant did Reagan activate his overhead lights or siren. The defendant exited his vehicle, came back to the cruiser and, without any questioning or comment, began to speak to Officer Reagan. As defendant leaned through the patrol car's open window to tell Officer Reagan that he was coming from a wedding and was okay to drive, Officer Reagan smelled the odor of alcohol on the defendant's breath and on his person. Officer Reagan immediately notified the Moreland Hills Police Department and awaited the arrival of a Moreland Hills officer. Moreland Hills Officer Nick DiCicco soon arrived on the scene, was immediately briefed by Reagan and then spoke with the defendant. Through the course of the conversation, the defendant admitted he was driving the vehicle stopped on the lawn at 38955 South Woodland and that he had consumed four beers prior to operating 4 his vehicle. Officer DiCicco smelled a strong odor of alcohol on defendant. Office DiCicco performed several field sobriety tests: the finger counting test, the one-legged stand test, and the gaze nystagmus test, all of which defendant failed. Officer DiCicco then placed defendant under arrest. Defendant was charged with driving while under the influence of alcohol (R.C. 4511.19(A)(1)) and for driving with a breath alcohol content in excess of the prohibited amount (R.C. 4511.19(A)(3)). Defendant filed a motion to suppress any and all evidence alleging it was obtained from an improper stop unsupported by probable cause. Following an evidentiary hearing on November 25, 1996, the Municipal Court held that there was probable cause and the motion was denied. Defendant filed a second motion to suppress and/or dismiss based upon allegations that Hunting Valley Officer Reagan lacked jurisdiction and probable cause to stop the defendant in Moreland Hills. On December 23, 1996, the trial court ruled the motion moot as it had been previously found that Officer Reagan made no stop or arrest of defendant and that Moreland Hills Officer DiCicco's arrest of the defendant was based on probable cause. Thereafter, defendant entered a plea of no contest to the charge of driving under the influence of alcohol and this timely appeal ensued. We will address defendant's Assignments of Error I and II together because they are interrelated. 5 I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT IN OVERRULING HIS MOTION TO SUPPRESS. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT IN OVERRULING HIS MOTION TO DISMISS AND/OR TO SUPPRESS EVIDENCE. The defendant's argument distilled to its essentials is that Hunting Valley Officer Reagan had no justifiable reason to stop defendant for minor curb-bumping, and even if he did, he could not make a stop outside his jurisdiction. It should be noted that defendant does not complain of any misconduct by the arresting officer, Officer DiCicco of the Moreland Hills police. These issues turn in part on the limited scope of our review of the trial court's suppression rulings. 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: "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 independentlywhether, as a matter of law, the facts meet the appropriate legal standard. 6 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 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, '[a]n 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. 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 7 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. Applying these legal principles to the instant case, we find no error in the trial court's action denying the motion to suppress or dismiss. Defendant in his two assignments of error argues that Officer Reagan did not have authority under R.C. 2935.03 to stop and detain defendant outside his jurisdiction in Moreland Hills. R.C. 2935.03(D) provides that a municipal police officer who is authorized to do so within the limits of the political subdivision in which he is employed, may, outside the limits of the political subdivision in which he is employed, pursue, arrest and detain a person until a warrant can be obtained if all of the following apply: (1) the pursuit takes place without unreasonable delay after the offense is committed; (2) the pursuit is initiated within the limits of the political subdivision in which the peace officer is employed; and (3) the offense is a felony, a first or second degree 8 misdemeanor or a substantially equivalent ordinance, or any offense for which points are chargeable under R.C. 4507.012. Defendant contends Officer Reagan failed to observe sufficient erratic driving in Hunting Valley to effectuate a R.C. 2935.03 stop in Moreland Hills. Thus, defendant asserts the trial court should have suppressed the evidence obtained by the police. The thrust of defendant's argument is blunted at the outset by the fact that the trial court did not find that Hunting Valley Officer Reagan made any stop or detained the defendant. The trial court attributed the stop, arrest and probable cause to the Moreland Hills officer as the transcript reveals. THE COURT: It wasn't his [Officer Reagan's] probable cause that affected the arrest. It was the probable cause of the police officer in Moreland Hills, based on statements made to him by that police officer that determined the probable cause. I'm not going to chew this cud twice. * * * THE COURT: I do not find -- I didn't find at that time that the police officer from Hunting Valley stopped and detained the defendant. That that defendant was free to go any time he wanted. * * * THE COURT: Well, that wasn't the issue that I heard from the stand. What I heard from the stand is that arrest was made by the Moreland Hills Police Department -- police officer who arrived. And he found probable cause based on what a fellow police officer from another community told him about that particular vehicle. And that from there, he proceeded with his regular and ordinary tests to determine sobriety of the other person, and he determined at that time that, 9 based on the totality of the circumstances, that this person should be cited for DWI. (Dec. 23, 1996 Tr. at 3-4). Defendant's argument is further weakened by the fact the sobriety tests and eventual arrest were performed by Moreland Hills police. No evidence was gathered from the alleged stop. The erratic driving was observed prior to defendant's driving into and off of the driveway, and therefore not subject to suppression. Even if we assume the actions of Officer Reagan did amount to a stop and a violation of R.C. 2935.03, the exclusionary rule would not be triggered. State v. Coppock (1995), 103 Ohio App.3d 405, 412; State v. Riggenbach (1994), 97 Ohio App.3d 661, 663. The Ohio Supreme Court has held the exclusionary rule will not be applied to evidence secured in violation of state law but not in violation of constitutional rights unless the statute otherwise so provides. State v. Thompson (1987), 33 Ohio St.3d 1; State v. Wilmoth (1986), 22 Ohio St.3d 251, 262-63; State v. Unger (1981), 67 Ohio St.2d 65. Most illustrative is the Ohio Supreme Court's ruling in Kettering v. Hollen (1980), 64 Ohio St.2d 232, wherein the court held the exclusionary rule cannot be applied to testimony of an arresting officer about the actions of a defendant where the arrest took place outside the officer's jurisdiction but was supported by probable cause. See, also, State v. Myers (1991), 26 Ohio St.2d 190; State v. Grubb (1993), 82 Ohio App.3d 187; State v. Holmes (1985), 28 Ohio App.3d 12. 10 Accordingly, the key issue in this case is whether there was probable cause to believe defendant was operating a motor vehicle while under the influence of alcohol. We find no grounds for overturning the trial court's conclusions of probable cause from the evidence in the record. In this case, defendant was driving erratically, sufficient to catch officer Reagan's eye and cause him to follow; defendant ran over the curb and veered over the center line in corrective action; then he pulled abruptly into a private driveway onto a lawn, exited his car and approached Officer Reagan in his vehicle; Reagan detected the odor of alcohol and called Moreland Hills police who came to the scene; Reagan filled in the Moreland Hills police officer; Officer DiCicco questioned defendant, found out he had four beers and failed sobriety tests; defendant was arrested. The erratic driving occurred in Moreland Hills; the stop and arrest on reliable information was made by a Moreland Hills policeman. There is nothing remarkable about this scenario to suggest lack of probable cause. A police officer may have reasonable suspicion to effect a traffic stop based on sources other than only his personal knowledge. State v. Filler (1995), 106 Ohio App.3d 731, 734; Akron v. Breech (1993), 89 Ohio App.3d 537, 538. Specifically, reasonable suspicion may be based on information gathered from an informant or another police officer, and communicated to the officer effecting the stop. State v. Good (1987), 37 Ohio App.3d 174, 175; State v. Kessler (Aug. 21, 1997), Cuyahoga App. No. 11 71600, unreported; State v. Richardson (May 7, 1981), Cuyahoga App. No. 42856, unreported. 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 eventual stop of defendant was reasonable based on the erratic driving behavior. Defendant cannot complain that the police intruded upon him, since it was his voluntary and illegal action of pulling off the highway onto a private lawn 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. 12 Id.at 14. The present case presents an even stronger fact pattern in that a fellow police officer 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 and II are without merit. They are overruled. Judgment affirmed. 13 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 Bedford 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, JUDGE JAMES M. PORTER, JUDGE PATRICIA A. BLACKMAN, PRESIDING J. (Concurs in judgment only) 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 of decision by the .