Beachwood v. Sims

• Decision Date: 03 October 1994
• Docket Number: Nos. 66337,66338,s. 66337
• Citation: 98 Ohio App.3d 9,647 N.E.2d 821
• Parties: CITY OF BEACHWOOD, Appellee, v. SIMS, Appellant. *
• Court: Ohio Court of Appeals

Page 9

98 Ohio App.3d 9

647 N.E.2d 821

CITY OF BEACHWOOD, Appellee, v. SIMS, Appellant. ^*

Nos. 66337, 66338.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Oct. 3, 1994.

Louis H. Orkin, Law Director, Judith A. Carlin, Assistant Law Director, and Avery H. Fromet, Beachwood, for appellee.

John F. Norton, Cleveland, for appellant.

HARPER, Presiding Judge.

Defendant-appellant, Mark Sims, appeals from the denial of his motion to suppress by the Shaker Heights Municipal Court. Subsequent to the ruling on appellant's motion, a jury found him guilty of driving while under the influence of alcohol in violation of Section 434.01(A) of the Codified Ordinances of the city of Beachwood ("C.O. 434.01[A]"). Appellant was also found guilty of operating a vehicle with a prohibited blood-alcohol level. ¹ Appellant's sentence was stayed pending the outcome of this appeal.

The trial court held a hearing on appellant's motion to suppress on April 22, 1993. Two witnesses testified on behalf of plaintiff-appellee, the city of Beachwood: Patrolmen Reiley and Curtiss.

Patrolman Robert Reiley testified that he received a dispatch on March 17, 1993 at approximately 8:36 p.m. The call was passed through by a city of Cleveland police dispatcher. The dispatch resulted from a call by a motorist who related that he was calling from his car phone, he was following a vehicle which was being driven erratically, and the vehicle was driven into The Village, a Beachwood community. Reiley responded to the address provided by the informant, 6 Bordeaux Lane, within a minute of the call.

Reiley observed a Jeep parked in the driveway with one male occupant, the informant. He also saw a man in the garage which was attached to the residence. Reiley identified appellant as the man in the garage.

Reiley first spoke with the informant and learned that the informant followed appellant from downtown Cleveland through four vicinities in the Cleveland area. The informant also provided that appellant's trail included two or three near-miss accidents.

Reiley next approached appellant while he was still in the garage. Appellant appeared to be very unsteady, and was very red-faced. Reiley further described appellant as possessing slurred speech, glassy eyes, and a very strong odor of alcoholic beverages on his breath. Reiley never personally observed appellant driving his vehicle.

Appellant then spoke with Reiley. Appellant told the officer that the informant was out to get him, and that the informant's presence in his driveway upset him. Appellant then volunteered that he drove the red Blazer that was now in his garage from downtown. He also acknowledged that he consumed three beers at Moriarty's, a bar located downtown. According to Reiley, appellant freely volunteered all of this information when first approached by him.

Reiley then called for assistance and Sergeant O'Donnell arrived shortly thereafter. Field sobriety tests were performed with the results leading to appellant's arrest for driving while under the influence of alcohol. Appellant was read his rights and transported to the Beachwood Police Station where additional field sobriety tests were conducted. Appellant was moreover advised of his rights again in writing.

Once at the station, appellant agreed to take a breathalyzer test, but then refused to do so properly in two attempts. Appellant agreed at this point to provide a urine sample to Officer Curtiss, said sample being taken at 9:35 p.m.

Reiley was questioned by defense counsel as to his knowledge of how long the informant was present at appellant's residence before the officer's arrival. According to Reiley, the informant told him that he was present for about ten to twelve minutes before his arrival. He also informed Reiley that appellant was in the garage for that period of time except for about forty-five seconds when appellant went inside the house.

Patrolman Roger Curtiss testified that he heard the informant's initial call on March 17, 1993 that he was following an erratic driver who had just pulled into The Village. After learning of appellant's arrest, Curtiss went to the police station to prepare for appellant's breathalyzer test.

Curtiss next testified that when appellant was brought to the station, he was first advised of his constitutional rights. He was also read a "BMV 2214 Notice of Refusal Form," which informed him that he was under arrest for driving under the influence of alcohol, he was going to be asked to take a breathalyzer test, and of the consequences ensuing from a refusal to take the test.

Curtiss furthermore instructed appellant numerous times on the procedure necessary to provide a sufficient sample of air for the test. Appellant nonetheless was unable to provide a sufficient amount of air in two attempts. Curtiss informed appellant that the unsuccessful attempts were considered a refusal, but then offered him the opportunity to provide a urine sample. The sample was provided at 9:35 p.m.

Appellant's sole assignment of error reads as follows ²:

"I. The trial court erred when it denied a motion to suppress evidence obtained through a warrantless entry by police into a private home, and a warrantless arrest of the homeowner, for a potential misdemeanor traffic offense which no police officer observed and which was not committed in the presence of any police officer."

The city asserts that Officer Reiley justifiably approached appellant at his residence after receiving a tip from a motorist that appellant was drinking and then driving his vehicle erratically. Though the officer did not personally observe the alleged erratic driving, the city maintains that Officer Reiley's verification of appellant's vehicle and his subsequent determination that probable cause existed for appellant's arrest, warrants an affirmance of the trial court's denial of appellant's motion to suppress evidence. We agree.

This court must first determine whether Officer Reiley's initial "stop" of appellant was reasonable. As the Supreme Court of Ohio held in State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, " '[i]n determining whether the seizure and search were "unreasonable" our inquiry is a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.' " Id. at 178, 524 N.E.2d at 491, quoting Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

The investigative stop exception to the Fourth Amendment warrant requirement permits a police officer to stop an individual if the officer has a reasonable suspicion, based upon specific and articulable facts, that criminal behavior has either occurred or is imminent. Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. The police officer, in justifying the particular intrusion, must point to specific and articulable facts warranting a man of reasonable caution in the belief that the officer's action was appropriate. Id. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. The propriety of an investigative stop in Ohio must be viewed in light of the totality of the circumstances. State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271; Bobo; State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044.

The Supreme Court, in Alabama v. White (1990), 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301, reexamined the issue of whether an anonymous tip furnishes reasonable suspicion for a stop. The decision repeats the findings of Illinois v. Gates (1982), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, and redefines the parameters for a valid stop which is based upon an anonymous tip where certain information from the informant is verified. See, also, Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612.

In the present case, the citizen-informant's tip was corroborated by sufficient details to serve as a basis for the police officer's investigatory stop. White. Officer Reiley responded to a dispatch generated by an identified informant who followed appellant from a downtown bar to his residence. The appellant was seen driving erratically to his residence by the informant. Officer Reiley was made aware of this information via the dispatch as well as the informant's statement that appellant consumed alcohol at the bar. When Reiley arrived at appellant's residence, the informant was there to identify appellant as the driver of the erratically driven vehicle. Officer Reiley, therefore, had a reasonable suspicion to make an investigatory stop. See Beachwood v. Smoleny (1991), 74 Ohio App.3d 756, 600 N.E.2d 711; Granville v. Huber (Nov. 10, 1993), Licking App. No. 93-CA-50, unreported, 1993 WL 471448; Fairfield v. Grant-Reed (May 10, 1993), Butler App. No. CA92-11-216, unreported, 1993 WL 147528; State v. Jones (Jan. 28, 1993), Stark App. No. CA-9055, unreported, 1993 WL 35646; Univ. Hts. v. Fiktus (Dec. 12, 1991), Cuyahoga App. No. 61837, unreported, 1991 WL 264578. Compare State v. Campbell (1990), 68 Ohio App.3d 688, 589 N.E.2d 452 (trial court unable to conclude that stop was justified as an investigatory stop where officer stopped driver of truck upon information that male driver was consuming wine at drive-thru window, but record failed to establish that this information was conveyed from other officer at restaurant or a sufficiently corroborated tip); N. Olmsted v. Gabel (Sept. 2, 1993), Cuyahoga App. No. 63736, unreported, 1993 WL 335429 (no basis to conclude that sufficient and articulable facts warranted investigatory stop where no demonstration that responding officer received full extent of informant's information, and the officer, therefore, stopped vehicle based only upon a report of its being "suspicious").

Once reasonable suspicion is found for an investigatory stop, an officer must then have probable cause to arrest a suspect without a warrant. In Beck v. Ohio (1964)...