State v. Hiler, 14433

• Decision Date: 29 July 1994
• Docket Number: No. 14433,14433
• Citation: 96 Ohio App.3d 271,644 N.E.2d 1096
• Parties: The STATE of Ohio, Appellee, v. HILER, Appellant.
• Court: Ohio Court of Appeals

Page 271

96 Ohio App.3d 271

644 N.E.2d 1096

The STATE of Ohio, Appellee, v. HILER, Appellant.

No. 14433.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided July 29, 1994.

Joe Cloud, City Prosecutor, Vandalia, for appellee.

W. Randall Rock, Dayton, for appellant.

BROGAN, Judge.

Richard L. Hiler appeals from his conviction of driving while under the influence in the Municipal Court of Vandalia, Traffic Division.

Hiler advances three assignments of error, asserting that (1) the trial court's decision overruling his motion to suppress and holding that weaving in one's own lane constituted sufficient specific and articulable facts to warrant an investigatory stop is against the weight of the evidence, contrary to law, and an abuse of discretion; (2) the trial court's decision overruling his motion to suppress evidence on the basis that State v. Chatton (1984), 11 Ohio St.3d 59, 11 OBR 250, 463 N.E.2d 1237, is misplaced, is contrary to law, and an abuse of discretion, and against the weight of the evidence, and (3) the trial court's decision to allow into evidence State's Exhibit 2 and the subsequent conviction of appellant based on that evidence is against the weight of the evidence, contrary to law, and an abuse of discretion.

On December 2, 1992, Trooper D.B. Fussner, an eight-year veteran of the Ohio State Highway Patrol, was on patrol driving southbound on North Dixie Drive in Harrison Township, Montgomery County, Ohio. Trooper Fussner observed a vehicle, also traveling southbound, make a wide right turn onto westbound Needmore road. It is undisputed that this area is noted for frequent arrests of impaired drivers. Trooper Fussner followed the car onto Needmore Road. He observed the vehicle "weaving quite noticeably left to right within his own lane. He'd come over to the concrete divider and almost hit it and come and jerk back across and go back to the right side where the white dotted lane lines were. I ran a check for stolen on the registration of the vehicle, which I was following was I believe a blue Chevette and the registration came back on a Cadillac. So at that time I activated my overhead pursuit lights."

Officer Fussner noted the erratic driving took place over a distance of about one mile. After he activated his overhead lights, it was another half mile before the vehicle stopped.

After he stopped the vehicle, he asked the driver for his license, to which the driver replied he had none. Trooper Fussner detected a strong odor of alcohol and noticed the driver's eyes were bloodshot and glassy. He asked the driver to exit the vehicle and administered a series of field sobriety tests.

Hiler was charged with a seatbelt violation, operating a motor vehicle while under the influence, and operating the motor vehicle without a valid operator's license.

On December 21, 1992, Hiler filed a motion to suppress, asserting that the Trooper Fussner did not have a sufficient basis to issue a traffic citation or to conclude that Hiler was operating a motor vehicle while under the influence of alcohol. A hearing on the motion was held on May 27, 1993, and the trial court overruled the motion. A trial was held on December 30, 1993.

On December 30, 1993, Hiler was sentenced to one year in jail, with all but thirty days suspended. His license was also suspended for one year without driving privileges.

Hiler filed a notice of appeal on January 31, 1994.

In his first assignment of error, Hiler asserts that the trial court's decision overruling his motion to suppress was against the weight of the evidence, contrary to law, and an abuse of discretion.

Hiler relies primarily on State v. Gullett (1992), 78 Ohio App.3d 138, 604 N.E.2d 176, and Mason v. Loveless (1993), 87 Ohio App.3d 264, 622 N.E.2d 6, for the proposition that the mere fact that a car is weaving within its lane of travel does not constitute a sufficient articulable fact for an officer to execute a stop. We disagree and find both these cases distinguishable.

In Gullett, the appellee was stopped after an officer observed him cross the edge line once by drifting to the right, and a second time while executing a sharp turn. The court granted the defendant's motion to suppress and the state appealed. The court stated that "it does not follow that every crossing of the edge line, regardless of circumstances, constitutionally justifies a stop." Id., 78 Ohio App.3d at 145, 604 N.E.2d at 180.

"We are uninformed as to how far the edge line extended into the intersection and by how much and how far the edge line was crossed. The touchstone of the Fourth Amendment is reasonableness. Where a vehicle is driven on a roadway with no other traffic present, there was no speeding, erratic driving or other conduct, except for the edge line incident, to indicate that appellee was impaired, the balance is in favor of the right to privacy and against the need for a stop. Based on the totality of the circumstances, we are not persuaded that sufficient articulable facts, and inferences therefrom, existed to constitutionally justify the stop." Id.

In his concurring opinion, Judge Abele noted that while in some cases weaving within a single lane of travel may justify an investigative stop, the facts in Gullett were unclear as to whether the vehicle's contacts with the edge line were momentary or for a long duration. Moreover, the evidence indicated that the vehicle only crossed the line once over a distance of one and one half miles and that no other erratic movements were noted. Id. at 146, 604 N.E.2d at 181.

In Mason, supra, an officer observed a vehicle drift one-half car length to the right and then jerk away from the curb. The state appealed the court's upholding of the appellee's motion to suppress. In affirming the trial court, the court of appeals held that "we do not think that the officer's observation of appellee making one small weave within his lane of travel was sufficient to give the officer a reasonable and articulable suspicion that appellee was driving under the influence of alcohol. Accord State v. Gullett (192), 78 Ohio App.3d 138, 604 N.E.2d 176." Id., 87 Ohio App.3d at 266, 622 N.E.2d at 7.

Moreover, this court has previously held that where an officer observes a vehicle weaving in its own lane of travel for several blocks, in the early morning hours, in an area where a high number of DUI arrests had recently been made, the erratic driving alone was a sufficient basis for an articulable and reasonable suspicion justifying an investigatory stop to determine the reason for the erratic driving. State v. Hilleary (May 24, 1989), Miami App. No. 88-CA-5, unreported, 1989 WL 55637.

The evidence in this case indicates that Hiler was driving erratically for almost a mile, in the early morning hours, in an area known for its high number of DUI arrests. Further, a license plate check revealed a discrepancy on the type of vehicle registered. We find that these facts constituted sufficient articulable facts for Trooper Fussner to initiate an investigative stop. Accordingly, Hiler's first assignment of error is overruled.

In his second assignment of error, Hiler contends the trial court erred in overruling his motion to suppress based on Chatton, supra, 11 Ohio St.3d 59, 11 OBR 250, 463 N.E.2d 1237.

In Chatton, the appellee's vehicle was stopped when an officer noticed the vehicle had neither a front nor back license plate displayed. As the officer approached the vehicle, he noticed a temporary tag lying on the rear deck of the vehicle directly beneath the rear window. The officer requested the appellee to produce his driver's license, which was erroneously listed as suspended. The appellee was placed under arrest, and a search of his car yielded a revolver hidden under the driver's seat. The appellee was indicted for carrying a concealed weapon. The appellee filed a motion to suppress, and the trial court's overruling of that motion was reversed by the court of appeals. In affirming the court of appeals, the Supreme Court held that once the officer ascertained that the vehicle was properly tagged, "because the police officer no longer maintained a reasonable suspicion that appellee's vehicle was not properly licensed or registered, to further detain appellee and demand that he produce his driver's license is akin to the random detention struck down by the Supreme Court in Delaware v. Prouse [ (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660]." Id., 11 Ohio St.3d at 63, 11 OBR at 253, 463 N.E.2d...