COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72965 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DANUT G. TRIF : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 5, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Lakewood Municipal Court, Case No. 97-C-1822. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Kevin M. Spellacy Prosecutor Matthew J. King Assistant Prosecutor City of Lakewood 12650 Detroit Avenue Lakewood, Ohio 44107 For Defendant-appellant: Jonathan N. Garver, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- SWEENEY, JAMES D., J.: Defendant-appellant DanutTrif appeals from his conviction for driving under the influence of alcohol in violation of Lakewood Codified Ordinances 333.011. The court sentenced the appellant to a term of incarceration of 120 days and fined the appellant $1,500. The court suspended 110 days of the term of incarceration and suspended $900 of the fine. The appellant was ordered to serve ten days and placed on probation for one year. Under the terms of the probation, the appellant was to enroll in and complete, an outpatient alcohol treatment program and refrain from all alcohol. On March 8, 1997, the appellant received his citation from Lakewood Police Officer Duane Brown. The settled record of the hearing on the appellant's motion to suppress is before this court under App.R. 9(C). At the hearing, the court questioned counsel regarding the exact basis of the motion to suppress. Counsel amended the written motion and stated that: My understanding is if the arrest . . . if this officer decided to arrest when he was outside his jurisdiction and he viewed the offense initially while he was inside his jurisdiction, then everything that happened after that is excluded. So the arrest would be invalid. But since this individual, since the defendant, Mr. Trif, at some point thereafter entered the officer's jurisdiction and the officer is likely to testify that there was thereafter probable cause to stop, then I would have to argue that because of the invalid arrest, that that stop was invalid and that ought to be suppressed. (T. 2-3). 1The appellant was cited for driving under the influence of alcohol in violation of R.C. 4511.19. This citation was later amended to reflect a violation of the Lakewood Codified Ordinances 333.01. -3- At the hearing, Officer Brown testified that he had been a police officer for the City of Lakewood for ten months, but had been an officer for the State of Ohio for two years. On the evening of March 8, 1997, his work hours began at 11:00 p.m. and ended at 7:00 a.m. the next morning. At approximately 11:22 p.m., Officer Brown was proceeding eastbound on Madison, in the City of Lakewood, and was going to make a northbound turn onto West 117th Street. West 117th Street is the dividing line between Lakewood and Cleveland. The eastern side of the street is in the City of Cleveland, and the western side of the street is Lakewood. The officer testified that he observed the appellant heading westbound on Madison driving a white General Motors vehicle. At that point, the appellant's vehicle was physically located in the City of Cleveland, while Officer Brown was physically located in Lakewood. Officer Brown observed the appellant make a very wide turn onto West 117th Street. The appellant straddled both northbound lanes of West 117th Street and then moved over into the curb lane. Officer Brown turned his vehicle onto northbound West 117thStreet and drove parallel with the appellant. At that point in time, the appellant was traveling at a slow rate of speed and both vehicles were in the City of Cleveland. On cross- examination, Officer Brown stated that while they were on West 117th Street, the appellant was traveling between 15 and 20 m.p.h. (T. 14). When Officer Brown pulled next to the appellant, he looked at the appellant. He noted that the appellant appeared to be intoxicated; the appellant was slunk down a bit in the vehicle; -4- that the appellant's focus was forward such that the officer believed the appellant failed to observe that a police vehicle was driving next to him. While Officer Brown was unable to obtain a clear view of the appellant's eyes at this point, he stated that the appellant appeared to be intoxicated. Officer Brown continued on West 117th Street until he reached Detroit, where he entered a municipal parking lot on the northwest corner of the roads. The appellant turned west onto Detroit and was now in the City of Lakewood. Officer Brown exited the municipal parking lot onto Detroit, and continued westbound. As he exited the parking lot, Officer Brown was just behind the appellant. The appellant was traveling slowly, at approximately 20 m.p.h. (T. 14). The officer observed the appellant turn on his right turn signal, indicating a turn onto Hird Road. The appellant began the turn, then straightened out his vehicle. At this point the appellant's vehicle was technically on Hird, but was parallel to Detroit, blocking any traffic on Hird. The appellant turned off his right turn signal, and then he turned on his left turn signal, indicating he wished to re-enter Detroit. Since, prior to the appellant's turn onto Hird, Officer Brown was directly behind the appellant on Detroit, when the appellant began to re-enter Detroit, Officer Brown stopped his police vehicle and permitted the appellant to proceed in front of him. The officer chose this course of action believing that it was better to let the appellant out onto Detroit in front of him, as opposed to somebody else -5- coming along driving and [the appellant] maybe may or may not see him. (T. 9) Officer Brown testified that the appellant continued westbound on Detroit, then made a left turn onto Newman. Officer Brown testified that this indicated to him that the appellant may be intoxicated: Cause actually as we proceeded westbound on Newman, for a guy who wanted to make a right turn onto Hird, when he got up to a block or so later to Newman, he wanted to make a left turn, which if you combine that, somebody wants to go north one minute and south the next minute, it's a good indicator that they don't know where they are and where they're going which would lead me to believe the possibility of someone who was under the influence of alcohol. (T. 8). When the appellant turned onto Newman, Officer Brown activated his lights. The appellant pulled into a business parking lot, but did not stop until he was at the back of the lot. Officer Brown testified that although this was his first arrest for driving under the influence, in the past he has observed people who are intoxicated and driving under the influence of alcohol. Officer Brown testified that he has attended classes given by the Highway Patrol and in class he learned approximately twenty indicators that a person is driving under the influence. Some of the indicators observed here are: 1) a wide turn; 2) general appearance of being under the influence; 3) slow speed; and, 4) not knowing which direction you're heading. As Officer Brown approached the appellant's vehicle after the stop, he noted that the appellant was fumbling about, like he was -6- looking for something. The appellant appeared to be under the influence of alcohol, his face was flushed and there was an odor of alcohol. His eyes were partially closed, bloodshot and glassy. The appellant had some difficulty exiting his vehicle. When asked for his driver's license, the appellant pulled out his license and an Ohio State Highway Patrol identification. When asked in what capacity he worked for the Highway Patrol, the appellant responded that he was an examiner. Officer Brown asked the appellant to perform sobriety tests, none of which the appellant passed. The appellant was unable to recite the alphabet, was unable to count fingers, was unable to walk heel to toe, and was unable to perform the stand test. At this point, Officer Brown placed the appellant under arrest. The appellant admitted that he had one prior arrest for driving under the influence. On cross-examination, Officer Brown testified that he did not make the determination that the appellant was under the influence while the appellant was driving on West 117th Street. Rather, the observations made at that time were contributing factors. Someone who is tired might have exhibited the same symptoms. On re-direct, the officer stated that his observations on West 117th Street were a contributing factor, but at that point he had not made the decision to stop the appellant (T. 21). One reason Officer Brown chose not to stop the appellant on West 117th Street was because at that point, traffic was backed up behind them (T. 17). The officer then accelerated and drove in front of the appellant, preparing to -7- enter the municipal parking lot. Officer Brown stated that he did not believe the location a safe one in which to stop the appellant, and that he wished to continue his observation for more factors indicative of intoxication. He also testified that he would prefer to stop someone within the city limits of Lakewood (T. 17). On re-direct, the prosecutor inquired as to the officer's reasons for stopping the appellant, he replied: If you combine everything with my observation, the wide turn, the slow speed, the appearance of being under the influence of alcohol and the erratic driving around Hird, that was my reason for stopping him. Check out and see if this person's okay. And then from there after my determinations after talking to him, and the smell of the odor of alcohol, getting out of the car, having him perform a few sobriety tests and after administering the tests which I also neglected to mention, I also gave him a horizontal _________ test, after that it was my determination to arrest him for DUI. (T. 21). At the sentencing hearing, the appellant indicated to the court that English is his second language. After informing the court that the officer asked him to recite the alphabet, the appellant stated: I told him I didn't even remember it in my own language then in English. (Sentencing T. 1). The court noted that the appellant breathalyzer test registered a .20, twice the legal limit. The appellant's first assignment of error: THE INVESTIGATORY STOP OF APPELLANT'S VEHICLE WAS AN UNREASONABLE SEARCH IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 14 OF THE CONSTITUTION OF THE STATE OF OHIO. -8- In the first assignment of error, the appellant asserts that the Lakewood Police Officer had no reasonable basis to suspect that the appellant was operating a motor vehicle under the influence of alcohol. The appellant asserts that because there was no accident, no other traffic violation, and no indication that the appellant was driving in an erratic manner, the circumstances were insufficient to justify the investigatory stop. In a footnote, the appellant points out that the initial conduct observed by Officer Brown was committed outside of the City of Lakewood, the jurisdiction of the officer. The appellee argues that at the suppression hearing, the appellant limited his argument to the issue of whether or not a valid arrest was made given that the conduct of the appellant which gave rise to a reasonable articulable suspicion first occurred outside the City of Lakewood. Thus, the prosecutor argues that at the suppression hearing, the appellant specifically waived the argument presented on appeal. This court need not address this issue, as the officer's testimony provides a reasonable articulable suspicion to effectuate an investigatory stop from his observations of the appellant's conduct inside the borders of the City of Lakewood. In Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 899, the United States Supreme Court held that the Fourth Amendment to the United States Constitution is not offended when a police officer, based upon his reasonable suspicion that criminal activity is or may be occurring, stops a suspect for questioning. -9- Such conduct, termed an investigatory stop does not violate the Ohio Constitution even though a police officer lacks probable cause to arrest the suspect. State v. Medlar (1994), 93 Ohio App.3d 483, citing to State v. Andrews (1991), 57 Ohio St.3d 86. In assessing his conclusions, the officer must be able to point to specific articulable facts which, taken together with rational inferences from those facts, reasonably warrant an intrusion. Id. at 87. Courts have concluded that an objective and particularized suspicion that criminal activity is afoot must be based on the entire picture a totality of the circumstances. Andrews, supra, citing to State v. Bobo (1988), 37 Ohio St.3d 177. These circumstances are to be viewed through the eyes of the reasonable and prudent officer on the scene who must react to events as they unfold. Andrews, supra. In the case sub judice, Officer Brown testified that while the appellant was proceeding slowly westbound on Detroit in the City of Lakewood, he was driving erratically. Specifically, Officer Brown observed the appellant begin a turn north onto Hird, and once already on Hird, change his mind and place his vehicle parallel to Detroit. The appellant then continued by driving back onto Detroit and turned south onto Newman. The rational inference which may be drawn from the appellant's act of blocking traffic, in both directions, on Hird, in conjunction with an immediate turn in the opposite direction, along with the appellant's slow driving speed, is that the appellant might be either in need of assistance or intoxicated. Such erratic driving may be considered sufficient to -10- warrant an investigatory stop. As Officer Brown testified, a person turning north one minute, and then south the next, is an excellent indication that the person is uncertain as to their location. This conduct indicated to Officer Brown that the appellant might be under the influence of alcohol. The appellant's erratic driving within the City limits of Lakewood was sufficient conduct upon which to base an investigatory stop under Terry, supra. The appellant's first assignment of error is overruled. The appellant's second assignment of error: APPELLANT WAS ARRESTED WITHOUT PROBABLE CAUSE IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 14 OF THE CONSTITUTION OF THE STATE OF OHIO. In the second assignment of error, the appellant argues that the appellant was arrested without probable cause. The appellant asserts that the moderate smell of alcohol and the appearance of intoxication are insufficient to justify an arrest. Once a police officer has executed a Terry stop he may conduct a brief investigation. If during that investigation, he develops probable cause to believe that the suspect has committed a crime, then the officer may make an arrest. Terry, supra. As held supra, Officer Brown had a reasonable suspicion, based upon articulable facts, to stop and investigate. At the suppression hearing, the officer testified that the appellant was fumbling about, as though he were looking for something. Along with the odor of alcohol, the appellant appeared to be under the -11- influence of alcohol, his face was flushed, and his eyes were partially closed, bloodshot and glassy. The appellant exhibited difficulty in exiting his vehicle, and failed every sobriety test given to him. The appellant was unable to count fingers, was unable to perform the stand test, was unable to walk heel to toe, and was unable to recite the alphabet2. Officer Brown made reference to the horizontal nystagmus test, which the appellant also failed. Given the erratic driving observed by Officer Brown, and the condition of the appellant, Officer Brown had probable cause to arrest the appellant, and the trial court did not err in refusing to grant the appellant's motion to suppress. The appellant's second assignment of error is overruled. Judgment affirmed. 2The appellant asserts that English is not his native language, but at sentencing he essentially stated to the court that at the time of his arrest he did not even remember the alphabet in his native tongue (Sentencing T. 1). -12- 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 Lakewood 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. KENNETH A. ROCCO, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 of decision by the .