COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72992 CITY OF WESTLAKE : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND KENNETH P. HETMAN : OPINION : Defendant-Appellant : : : DATE OF ANNOUNCEMENT : JULY 2, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Rocky River Municipal Court Case No. 97-TRC-5360 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Bryan P. O'Malley, Esq. Prosecutor City of North Olmsted 27243 Lorain Road North Olmsted, Ohio 44070 For defendant-appellant: Dominic J. Vannucci, Esq. 22649 Lorain Road Fairview Park, Ohio 44126 -2- MICHAEL J. CORRIGAN, J.: Defendant-appellant, Kenneth Hetman, appeals from his conviction in the Rocky River Municipal Court of driving under the influence of alcohol in violation of Westlake Municipal Code 333.01. Defendant-appellant raises one error for review concerning the trial court's denial of his motion to suppress. For the following reasons, we affirm the decision of the trial court. On July 1, 1997, a hearing was held on a motion to suppress where the following facts were adduced. On May 25, 1997, Officer Jeff Laeng, a patrolman for nineteen (19) years, arrested defendant-appellant's wife at approximately midnight for driving under the influence of alcohol. Officer Laeng observed that she called her husband to pick her up at the police station. At that time, the officer cautioned her to make sure her ride home was sober. It is well established policy that no law enforcement agency will release an arrestee to a party who appears impaired. It would subject the agency to potential lawsuits and perhaps place an arrestee in harm's way. The officer then observed headlights pulling into the station parking lot and observed defendant-appellant being greeted by Officer Hernandez at the customer service window inside the police station. Officer Laeng went into the waiting area and observed that defendant-appellant was unsteady on his feet with watery, bloodshot eyes, an odor of alcoholic beverages and slurred speech. The officer had a conversation with defendant-appellant and believed he was intoxicated. Defendant-appellant voluntarily submitted to a -3- number of field sobriety tests which he failed. Officer Laeng then asked defendant-appellant his means of transportation. Defendant- appellant informed him that he had driven to the station and no one else was with him. Officer Laeng advised him of his rights and placed defendant-appellant under arrest. Defendant-appellant took the breathalyzer and scored .196. On cross-examination, the officer admitted he observed the headlights and a vehicle parking, but did not observe defendant- appellant as the driver of the vehicle. After the trial court denied defendant-appellant's motion to suppress, he pled no contest and was found guilty of driving under the influence. Defendant- appellant timely appeals. Defendant-appellant's sole assignment of error states: THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE AT THE TIME OF THE APPELLANT'S ARREST, THE ARRESTING OFFICER LACKED THE REQUISITE PROBABLE CAUSE TO EFFECTUATE A VALID ARREST, AND, THEREFORE, ACTED IN CONTRAVENTION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND IN VIOLATION OF ARTICLE I, SECTION 14 OF THE CONSTITUTION OF THE STATE OF OHIO. Defendant-appellant argues the trial court erred in denying his motion to suppress the evidence. Specifically, defendant- appellant argues: 1) the arresting officer did not have a reasonable suspicion of criminal activity; and 2) that his arrest was predicated upon admissions that were the product of an un- Mirandized custodial interrogation. For the following reasons, we find the trial court properly denied defendant-appellant's motion to suppress. -4- 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. Initially, we note that a review of the arrest for drunk driving cases is done by reviewing the facts and circumstances of each case. See State v. Allen (1981), 2 Ohio App.3d 441. A police officer may conduct brief investigative detention stops where the officer has reasonable suspicion, based on articulable facts, that the detainee has engaged in, is engaging in, or is about to engage in criminal activity. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. If, during that brief detention, the officer develops probable cause to believe that the suspect has committed a crime, then the officer may make an arrest. See City of Lakewood v. Brezic (Nov. 6, 1997), Cuyahoga App. No. 71728, unreported. In this case, defendant-appellant voluntarily entered the waiting area of the police station to pick up his wife. He was not taken to the police station or requested to appear by any law enforcement agent. The officer had previously informed defendant- appellant's wife that she would not be released to anyone who was -5- intoxicated and we believe it prudent for the officer to ensure that defendant-appellant was not intoxicated prior to his wife's release. When the officer approached defendant-appellant, there was no reason for defendant-appellant to believe he was in-custody . Accordingly, he was in a non-custodial setting which does not implicate any Miranda protections. See State v. Waibel (1993), 89 Ohio App.3d 522. The officer then observed defendant-appellant was unsteady on his feet with watery bloodshot eyes, an odor of alcohol and slurred speech. At this point, the officer had a reasonable suspicion that defendant-appellant may have been intoxicated. See State v. Tate (1987), 40 Ohio App.3d 186; Brezic, supra. At that point, defendant-appellant agreed to undergo several field sobriety tests which he failed. The officer then asked defendant-appellant about his means of transportation. Defendant-appellant stated that he drove to the station alone which confirmed the officer's suspicion that defendant-appellant was the driver of the vehicle whose headlights he had previously observed pull into the police station parking lot. We find that under all of these circumstances, the officer acted properly and had probable cause to arrest defendant-appellant. Cf. State v. Finch (1985), 24 Ohio App.3d 38 (Merely appearing intoxicated without taking field sobriety test does not establish probable cause to arrest). Finally, contrary to defendant-appellant's assertions, it is possible to have an arrest for driving under the influence of alcohol even though the arresting officer did not actually observe -6- the arrestee operating a vehicle. As the Ohio State Supreme Court stated in State v. Gill (1994), 70 Ohio St.3d 150, 154: A clear purpose of [the law against driving under the influence] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated or under the influence of any drug of abuse. *** Prohibition of potentially harmful conduct need not await the occurrence of the act. *** [T]he intent of the legislature in enacting strong legislation involving drinking and driving was to say, If you drink--do not drive. If you drive--do not drink! The cases from this court on the subject have, for good reason, carried out this legislative intent. (Citing to State v. Cleary (1986), 22 Ohio St.3d. 198.) As previously stated, the officer not only observed headlights pulling into the parking lot and defendant-appellant coming in shortly thereafter, but defendant-appellant himself informed the officer that he drove to the station and was going to drive his wife home. It would be absurd to argue the officer must permit an intoxicated individual back into his vehicle before he could arrest him for driving under the influence. Accordingly, after a review of the facts and circumstances surrounding this case, we find the officer did not violate defendant-appellant's rights under the Fourth Amendment when he effectuated the arrest. The trial court did not err in denying his motion to suppress the evidence. Judgment affirmed. -7- 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. PATRICIA ANN BLACKMON, A.J., JOSEPH J. NAHRA, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .