State v. WurthState v. Wurth
OPINION
{¶ 1} The defendant-appellant, Alex J. Wurth (“Wurth“), appeals two separate convictions and sentences from the Putnam County Court.
{¶ 2} On April 20, 2005, Wurth entered the Wannamacher Tavern in Ottoville, Ohio to buy a pack of cigarettеs. Enrique Ortega (“Ortega“), a patrolman with the Ottoville Police Department, was eating dinner in the tavern at the time Wurth entered. Ortega suspected Wurth may be intoxicated due to his concentrated efforts to walk and to speak articulately. Ortega left the tavern as Wurth was pulling away from his parking space, and Wurth did not stop when Ortega shouted to him. Ortega then pursued Wurth in his cruiser. Outside the village limits, Ortega observed Wurth swerving within his lane of travel and effectuated a traffic stop approximately two miles from the tavern. Ortega approached the vehicle and immediately asked Wurth if he had been drinking. As he spoke with Wurth, Ortega saw a rifle on the passenger side of the vehicle. Wurth reported that the gun was unloaded and gave it to Ortega. Upon inspection, Ortega noticed the action was open and contained a .22 caliber shell. Ortega did not administer any field sobriety test, and Wurth was arrested for a firearms violation. At the police station, Wurth submitted to a breath-alcohol test, which registered .159 grams of alcohol per 210 liters of breath.
{¶ 3} On April 27, 2005, Wurth was charged with driving under the influence of alcohol, a violation of
The assignmеnt of error is that the lower court erred in its order which overruled Defendant‘s motion to dismiss and or [sic] suppress for the reason that the same is contrary to both the facts of the case and the law of the State оf Ohio.
{¶ 4} The appeal of a trial court‘s decision on a motion to suppress evidence presents a mixed question of law and fact. State v. Dixon, 141 Ohio App.3d 654, 658, 2001-Ohio-2120, 752 N.E.2d 1005. Because the trial court determines the weight of the evidence and witness credibility during a suppression hearing, we are bound to accept its findings of fact if supported by competent, credible evidence. State v. Norman, 136 Ohio App.3d 46, 51, 52, 1999-Ohio-961, 735 N.E.2d 953 (citations omitted); State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. However, we rеview de novo whether those facts meet the applicable legal standard. Dixon, supra at 659 (citing State v. Anderson (1995), 100 Ohio App.3d 688, 691, 654 N.E.2d 1034).
{¶ 5} In his sole assignment of error, Wurth argues that Ortega did not comply with the statutory requirements of hot pursuit when he effectuated the traffic stop because he did not observe a violation within his territorial jurisdiction. Wurth also contends that Ortega lacked reasonable suspicion or probable cause to effectuatе the stop. In response, the State of Ohio (“State“) contends that Ortega “perceived a misdemeanor violation of driving under the influence occurring within his jurisdiction“, began his pursuit within the territorial boundaries of Ottoville Villagе, and was in hot pursuit at the time of the stop. The State argues there was reasonable suspicion because Ortega observed Wurth walking lethargically, speaking slowly, and driving erratically.
{¶ 6} The
{¶ 7} Absent a violation of a constitutional right, the violation of a statute does not invoke the exclusionary rule. State v. Weideman, 94 Ohio St.3d 501, 504, 2002-Ohio-1484, 764 N.E.2d 997 (citing Kettering v. Hollen (1980), 64 Ohio St.2d 232, 234-235, 416 N.E.2d 598). Therefore, we must determine if Ortega violatеd the hot pursuit statute. Our first question is whether Ortega was authorized to pursue Wurth outside the territorial limits of Ottoville Village. If he was, the next question is whether Ortega complied with statutory mandates of
{¶ 8}
If a * * * municipal police officer, * * * is authorized by division (A) or (B) of this section to arrest and detain, within thе limits of the political subdivision, a person until a warrant can be obtained, the peace officer, outside the limits of that territory, may pursue, arrest, and detain that person until a warrant can be obtained if all of the following apply:
(1) The pursuit takes place without unreasonable delay after the offense is committed;
(2) The pursuit is initiated within the limits of the political subdivision, * * * in which the peace officer is appointed, еmployed, or elected or within the limits of the territorial jurisdiction of the peace officer;
(3) The offense involved is a felony, a misdemeanor of the first degree or a substantially equivalent municipal ordinanсe, a misdemeanor of the second degree or a substantially equivalent municipal ordinance, or any offense for which points are chargeable pursuant to section
4510.036 of the Revised Code.
(emphasis added). The Twelfth District Cоurt of Appeals has held that “a police officer has authority to pursue, stop and detain a suspected intoxicated driver under
{¶ 9} Although
{¶ 10} The next question is whether Ortega complied with
[Ortega] observed the Defendant to be walking slowly and lethargically, his speech was slow and concentrated, having trouble enunciating. The Defendant appeared to be either intoxicated or under the influence of drugs as per the Patrolman‘s observation and years of experience and training.
When the Defendant walked toward the door and then through the door to the outside, the Patrolman got up from the bar and tried to get outside to talk to the Defendant. By the time the Patrolman exited the tavern, the Defendant had еntered his vehicle and driven off. Although the Patrolman yelled at the Defendant to stop, and waved his hands, apparently the Defendant did not see him and kept on proceeding in a westerly direction on Route 224 in the Villаge of Ottoville.
The Patrolman then went to his vehicle and attempted to catch up with the Defendant through the Village of Ottoville and then outside the Village limits[.]
J. Entry, Jul. 28, 2005, ¶¶ 2, 3-4. We must accept these facts as they are suppоrted by competent, credible evidence in the record. Because Ortega believed Wurth was intoxicated, he followed Wurth outside the tavern and saw him drive a vehicle. Therefore, Ortega witnessed a violatiоn of
{¶ 11} Wurth also argues that Ortega had no probable cause to effectuate the traffic stop. In its findings of fact, the trial court noted that Ortega observed Wurth “wеaving within his lane of travel and crossing the center line on several occasions, then jerking back into Defendant‘s lane of travel.” J. Entry, at ¶ 4. Based on these facts, the officer would have probable cause tо effectuate a traffic stop based on a left of center traffic violation. See Whren v. United States (1996), 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89; Dayton v. Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, 665 N.E.2d 1091, at syllabus. However, these facts are not supported by competent and credible evidence. Instead, the record indicates that although Wurth was driving erratically by weaving within his own lane outside the village limits, he never crossed the white edge line or the yellow centerline. Hearing Tr., Oct. 14, 2005, 14:11-15; 29:19-25; 30:1-3; 31:18-22. We note that Wurth‘s weaving was done in a jerky, erratic manner, and not the type of smooth, gradual drifting that many unimpaired drivers do every day.
{¶ 12} Despite the deficiency in the trial court‘s findings of fact, the totality of the circumstances supports a finding of reasonable suspicion. Ortega had reasonable suspicion to effectuate a traffic stop based solely on his observations at the tavern. However, considering the totality of the circumstances, we must factor into the equation that Wurth was driving 35 miles per hour in a 50 mile per hour speed limit zone and driving erratically within his own lane of travel. Id. at 12:4-7; 13:19-23. See also State v. Potter, 3rd Dist. No. 14-89-13, 1990 WL 121489, at * 2 (reasonable suspicion that law was being violated when officer observed defendant‘s vehicle traveling at a slower speed than the traffic flow and weaving from side to side). Therefore, Ortega had reasonable suspicion to make the stop, and the sole assignment of error is overruled.
{¶ 13} The judgments of the Putnam County Court are affirmed.
Judgments affirmed.
Cupp and Rogers, JJ., conc