Lead Opinion
This is an appeal from a judgment of conviction and sentence entered by the Marietta Municipal Court upon a no contest plea finding Louis H. Klein, defendаnt-appellant, guilty of operating a motor vehicle while under the influence of alcohol and with a breath-alcohol concentration above the specified limit, in violation of R.C. 4511.19(A)(1) and (3), misdemeanors of the first degree.
Appellant assigns the following error:
“The trial court erred in denying defendant-appellant’s motion to dismiss or suppress by finding that the аrresting officer had reasonable cause to stop defendant’s vehicle.”
A complaint was filed charging appellant with violating R.C. 4511.19(A)(1) and (3). Appellant entеred a plea of not guilty to the charges and demanded a jury trial. On January 16, 1990, appellant filed a motion to dismiss the complaint or to exclude all of the еvidence obtained by appellee after the stop of appellant’s automobile. On January 31, 1990, a hearing was held on appellant’s motion, and thе following pertinent evidence was introduced.
Marietta Police Sergeant Jeffrey Waite testified that on October 27, 1989 at approximately 1:35 a.m., while he was traveling westbound on Green Street, he noticed appellant sitting in a maroon-colored Oldsmobile on the private lot *488 of Pottmeyer’s Auto Sales on the оpposite side of Green Street. Sgt. Waite stated that he then turned around in order to check appellant’s motor vehicle because there had bеen a continual problem in the summer and fall of 1989 with people tearing up cars and stealing items from cars in the area of the car lots. When Sgt. Waite approached the car lot, appellant pulled out of the lot and headed eastbound on Green Street. Sgt. Waite eventually stopped apрellant’s vehicle and subsequently arrested him for violating R.C. 4511.-19(A)(1) and (3). Waite observed no traffic violations or any evidence of criminal conduct. Sgt. Waite further testified that he had never noticed anyone using the private property of the car lot as a parking lot for the purpose of going to bars located aсross the street.
At the conclusion of the hearing, the trial court overruled appellant’s motion to dismiss or exclude evidence. Appellant changed his рlea to no contest and, on February 22, 1990, the trial court entered a judgment finding appellant guilty of violating R.C. 4511.19(A)(1) and (3). The trial court sentenced him to ninety days in jail, suspended his operator’s license for one hundred eighty days, and fined him $400.
Appellant’s sole assignment of error asserts that the trial court erred in denying his motion to dismiss or suppress. Appellant, essentially asserts that the trial court erred in determining that Sgt. Waite had a reasonable suspicion to stop appellant’s vehicle.
In a motion to suppress, the trial court assumes the role of trier of facts and, as such, is in the best position to resolve questions of fact and evaluate witness credibility.
State v. Clay
(1973),
The investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to stop an individual if he had a reasonable suspicion, based upon specific and articulable facts, that criminal behavior has occurred or is imminent.
Id.; State v. Bird
(1988),
In this regard, the propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding cirсumstances.
*489
State v. Bobo
(1988),
The
Terry
standard requires more than mere good faith on the part of the officer; the intrusion must be based on a rеasonable suspicion.
Bird, supra,
“Percentagewise, stops or arrests at 4:30 a.m. in residential neighborhoods would probably ferret out many crimes, but in the absence of аnything more specific, investigative stops based primarily upon the time of day or night would eventually do violence to the right of every individual to be free from unreasonable restraint or interference. And while it is always tempting to focus on end results when a mere hunch proves correct and guilt is established, the continuing vitality of the freedoms enjoyed by all citizens nonetheless depends upon reasonable adherence to basic procedural restrictions. Here, something more was required in the way of 'specific and articulable facts’ to justify the detention, and accordingly, the alleged error is well made. See, also,
State v. Heinrichs
(1988),
In the case at bar, appellant’s activities prior to the investigative stop were equally consistent with innocent behavior.
Bird, supra.
Sgt. Waite had, at best, an inarticulate hunch rather than a reasonable suspicion that appellant was engaged in criminal activity based upon his observations prior to the stop. Moreovеr, an otherwise unlawful investigative stop cannot be justified with reference to the quantity or quality of the evidence of guilt resulting therefrom.
Heinrichs, supra.
Although we recognize that the Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest tо simply shrug his shoulders and allow a crime to occur or a criminal to escape,
Bobo, supra,
Judgment reversed.
Concurrence Opinion
concurring.
I concur in the judgment and opinion, but write separately in order to reconcile our decision herein with the recent Supreme Court decisiоn in
State v. Andrews
(1991),
In the cause sub judice, the incident occurred at night and, arguably, the testimony of Sgt. Waite may establish that the area оf Pottmeyer’s Auto Sales had a reputation for criminal activity. Otherwise, none of those other factors suggested in Andrews is present herein. Moreover, Sgt. Waite explicitly answered that he did not observe appellant do anything which would indicate that he was up to some sort of criminal activity. Thus, I concur with the majority that the police stop at issue herein violated appellant’s Fourth Amendment rights.