State v. Livengood, Unpublished Decision (3-14-2003)
State v. Livengood, Unpublished Decision (3-14-2003)
Opinion of the Court
OPINION
{¶ 1} Jeffrey Livengood ("appellant") appeals the decision of the Mentor Municipal Court. In that decision, the trial court found appellant guilty of driving under the influence of alcohol, a violation of R.C.{¶ 2} The following testimony occurred at the February 4, 2002 suppression hearing. A citizen-informant testified that on November 2, 2001, she and her husband were turning onto Mentor Avenue in their Ford Focus when they were cut-off by appellant's vehicle. As a result of being cut-off, they were forced to swerve into another lane. As appellant proceeded down Mentor Avenue, the couple observed appellant's vehicle continue to swerve, switch lanes, and cut-off several other vehicles. Based on their observations, the couple decided to call 911 and report that appellant was "swerving, going from lane to lane, driving really fast, and cutting people off."
{¶ 3} The citizen informant also testified that during the course of their 911 call, she and her husband were able to correctly identify appellant's vehicle as a dark colored Ford Station Wagon with Georgia license plates, as well as correctly identify the vehicle's license plate number. The dispatcher then advised the couple "not to lose the vehicle" they were following. Adhering to the dispatcher's instructions, the couple then followed appellant to a BP gas station located at the corner of Mentor Avenue and Center Street. Officer Knupsky of the Mentor Police Department also testified that he was informed by the dispatcher of what the couple had reported and proceeded to the BP gas station.
{¶ 4} Officer Knupsky testified at the suppression hearing that when he arrived at the BP station, he immediately observed appellant's vehicle illegally parked "on the hash spot right in front of the door at BP." Officer Knupsky also noted that this is a violation of Mentor City Ordinance 75.07. Officer Knupsky then initiated an investigatory stop.
{¶ 5} As Officer Knupsky approached appellant, he noticed appellant's eyes were "glassy and bloodshot, ***, I believe he had a cell phone in one hand and he was smoking a cigarette." Officer Knupsky also noted appellant was seated inside the vehicle and "the keys were in the ignition, still." Officer Knupsky then instructed appellant to put down the cell phone and put out his cigarette. Once the air had cleared from appellant's cigarette, Officer Knupsky "started smelling an odor of alcoholic beverage on his (appellant's) breath." When Officer Knupsky asked appellant if he had been drinking, appellant admitted to having "two drinks, or two beers maybe it was."
{¶ 6} Subsequently, Officer Knupsky "asked appellant for his license." As appellant attempted to produce his license, Officer Knupsky noted that "he had a little difficulty getting the license out of his wallet, he had to fumble with it for a few seconds." After receiving the license, Officer Knupsky then asked appellant "to perform some field sobriety tests." The record indicates Officer Knupsky gave appellant the Finger-to-Nose, One Legged Stand, Walk-and-Turn, and HGN sobriety tests. It is uncontroverted that appellant failed each and every field sobriety test that he was asked to perform. Officer Knupsky then placed appellant under arrest for driving under the influence of alcohol. In addition to being charged with Driving Under the Influence, a violation of R.C.
{¶ 7} The trial court denied appellant's motion. Appellant then entered a no contest plea. In a judgment entry journalized on Feb. 28, 2002, appellant was convicted of Driving Under the Influence, a violation of R.C.
{¶ 8} "[1.] The lower court, in denying defendant's motion to suppress evidence, was in error, as no police officer directly observed a traffic offense or sufficiently corroborated the civilian tip."
{¶ 9} At a hearing on a motion to suppress, a trial court, functioning as the trier of fact, is in the best position to evaluate the evidence, judge the credibility of the witnesses, and resolve the factual issues. State v. Mills (1992),
{¶ 10} Appellant attempts to argue that Officer Knupsky did not see appellant committing a traffic violation, and as a result, had no reasonable suspicion or probable cause with which to make an investigatory stop. Appellant further argues that Officer Knupsky had a duty to corroborate the informants' tip before he approached and questioned appellant. We disagree.
{¶ 11} The investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to stop an individual, provided the officer has the requisite reasonable suspicion, based upon specific and articulable facts, that a crime has occurred or is imminent. State v. Gedeon (1992),
{¶ 12} Appellant attempts to assert that the citizen-informants were somehow anonymous informants in this case and as a result, Officer Knupsky was required to independently corroborate their tip prior to investigating appellant. We disagree.
{¶ 13} The citizen-informant testified that she initiated the call to the 911-dispatcher. The informant also testified that she and her husband reported appellant was "swerving, going from lane to lane, driving really fast, and cutting people off." Officer Knupsky then testified that he "received a call from dispatch that a motorist on a cell phone was following a suspected intoxicated driver going north bound on Center Street." In addition, the informants were able to correctly identify appellant's vehicle as a dark colored Ford Station Wagon with Georgia license plates, as well as correctly identify the vehicle's license plate number. The dispatcher then advised the informants "not to lose the vehicle" they were following. Following the dispatcher's instructions, the informants followed appellant to a BP gas station located at the corner of Mentor Avenue and Center Road. As they followed appellant, the citizen-informants told the dispatcher that "this green station wagon had nearly struck several vehicles and was swerving from lane to lane ***." Officer Knupsky also testified the above information was immediately relayed to him by the 911 dispatcher.
{¶ 14} As the citizen-informants followed appellant to the BP station, they continued to talk to the dispatcher and stated that appellant had pulled into the station. Officer Knupsky then testified that "the dispatcher then told me that the caller had stated that the station wagon had pulled into the BP gas station and I'd say approximately 20 to 30 seconds after that, I pulled in, observed the station wagon parked illegally in a — right in front of the door." The female informant also testified that once the Mentor Police arrived at the BP station, she spoke to them and also gave them a written statement identifying her and her husband as the informants.
{¶ 15} In this case, the citizen-informants were giving an eyewitness account of the events to the dispatcher, who in turn immediately relayed them to Officer Knupsky. Officer Knupsky was aware that the information was coming from the informants who were calling from their cellular phone while following appellant's vehicle. Based on the above, we conclude that the husband and wife were indeed identified citizen-informants. See Weisner, supra.
{¶ 16} As to appellant's argument that Officer Knupsky was required to corroborate the informants' tip before approaching appellant, we also disagree. This court has stated that "*** a tip made to the police department, ***, will be sufficient if the stop is challenged and the state is able to show the factual basis for the dispatch and stop." Schoenfeld, supra.
{¶ 17} As noted in the testimony above, appellant was arrested and charged with driving under the influence and had a blood alcohol content of .185. The informants' testimony was subsequently tested under cross-examination at the suppression hearing and proved to form a sufficient basis for Officer Knupsky's reliance. As a result, we conclude that Officer Knupsky had reasonable suspicion to initiate the investigatory stop. While we conclude that the informants' tip alone was sufficient for Officer Knupsky to initiate the stop, we also note that Officer Knupsky observed appellant's vehicle illegally parked upon his arrival at the BP station. This court has held that any traffic violation, even a minor traffic violation, witnessed by a police officer is, standing alone, sufficient grounds to stop the vehicle observed violating the ordinance. State v. Molk, 11th Dist. No. 2001-L-146,
{¶ 18} Based on the above, once Officer Knupsky observed appellant illegally parked, he also had probable cause with which to stop and question appellant. Furthermore, Officer Knupsky was also justified in approaching appellant's vehicle for the purposes of issuing a parking citation. See Rowe v. Cincinnati (1927),
{¶ 19} Appellant also argues that Officer Knupsky had no probable cause to arrest appellant for driving under the influence. Again, we disagree with appellant.
{¶ 20} Once a motor vehicle has been lawfully stopped, probable cause for a criminal arrest exists when, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence. Beck v. Ohio (1964),
{¶ 21} In this case, Officer Knupsky testified that appellant had "glassy and bloodshot eyes" an "odor of alcohol on his breath", "admitted to having had several beers", and "failed four sobriety tests." In addition to his own observations, Officer Knupsky had also received a valid, reliable tip from the informants regarding appellant's erratic driving. This tip was later tested and found to be reliable under cross-examination at the suppression hearing. Based on the totality of the circumstances, we hold that Officer Knupsky had both reasonable suspicion and probable cause to investigate, and subsequently to arrest, appellant for driving under the influence of alcohol. Appellant's sole assignment of error is without merit.
{¶ 22} Based on the competent, credible evidence presented at the suppression hearing, we hold that the trial court did not err in denying appellant's motion to suppress. The decision of the Mentor Municipal Court is hereby affirmed.
DONALD R. FORD and JUDITH A. CHRISTLEY, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.