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State v. Walden8/5/1988
COLE, J.
This is an appeal from a judgment of conviction and sentence of the defendant-appellant, Gregory Walden, by the Municipal Court of Defiance, for the offense of driving while under the influence of alcohol in violation of R.C. 4511.19(A)(1).
The defendant was on January 17, 1987, observed by a state trooper traveling at a rate of seventy-four miles per hour as measured by the radar instrument utilized by the trooper. Subsequently, Walden was charged with speeding, failure to display a valid driver's license, and driving under the influence of alcohol. Originally, not guilty pleas were entered as to all charges. This case involves only the latter charge.
Walden filed a motion to suppress, asserting that his arrest was in the state of Indiana, and was therefore illegal and, further, requested dismissal on the ground there was no probable cause to stop him. The trial court found the arrest to be valid and further found "probable cause to make an arrest for driving while under the influence of alcohol."
Subsequently, after jury selection, the defendant withdrew his plea of not guilty and pleaded no contest to charges of driving under the influence and speeding. The charge for failing to display a valid driver's license was dismissed.
Walden now appeals, asserting a single assignment of error:
"The trial court erred as a matter of law in denying and overruling defendant's motion to suppress evidence and/or to dismiss because the evidence established that the defendant was initially and illegally arrested in Indiana."
Before analyzing the problems presented by this assignment of error, we must address certain procedural matters. This is case No. 4-87-10 in our court. There is no order either in the trial court or in this court consolidating this case with case No. 4-87-9, which purportedly concerns the speeding charge. However, the traffic citation in the original papers filed as part of the record in this appeal is concerned solely with speeding, whereas that included in the record in case No. 4-87-9 is concerned with driving under the influence . Apparently, these have somehow been exchanged. In any event, there is no authority for such intermingling of papers and no authority to file a single transcript for both cases.
In the interest of justice we will proceed with both cases, but, of necessity in the absence of an order of consolidation, separately. Despite the traffic citation filed herein this appeasdeals with a charge of driving under the influence of alcohol.
Turning then to the basic issue which was presented by the motion, we must determine whether the arrest occurred in Indiana or in Ohio. According to the arresting officer, the defendant, driving west on State Route 2 in Defiance County, Ohio, was observed by Trooper Foley of the Ohio State Highway Patrol and by her radar determined to be exceeding the speed limit. She activated her siren and lights, turned her car and followed. The defendant stopped, but just past the state line in Indiana. Trooper Foley stopped her vehicle some indeterminate distance behind, but wholly in the state of Ohio. The following testimony describes what then occurred:
"Q. Okay, you walked up to his vehicle in the State of Indiana?
"A. That's correct, sir.
"Q. Was he free to go where he wanted to go at that point?
"A. Right, he was free to go.
"Q. Oh, he was free to go?
"A. Yes, sir, he was.
"Q. You walked up to him and what did you say?
"A. I asked to see his driver's license.
"Q. Okay and what
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