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State v. Stamper4/10/1995
rescheduled for February 2. On the latter datesappellant filed a second motion to dismiss the charges, arguing that the time limit for his trial had expired during the period between January 14 and February 2. Once a hearing had been held on the matter, the trial court again rendered a judgment denying the motion.
At the conclusion of the hearing on the second motion to dismiss, appellant indicated to the trial court that he wanted to change his plea to one of no contest as to the four charges. Upon accepting the plea, the court found appellant guilty on the charges of driving while under a suspension and driving while having a breath-alcohol concentration higher than 10 grams per two hundred ten liters. As to the former charge, the court sentenced appellant to ninety days in jail and fined him $500. As to the latter charge, the court sentenced appellant to one year in jail, fined him $1,000, and suspended his license to drive for a period of ten years. In relation to the remaining two charges, the court did not make any finding as to guilt.
In appealing the two convictions, appellant has assigned the following as error:
"1. The trial court erred in its journal entry of October 12, 1993, in finding that the trooper had a reasonable and articulable suspicion to believe the defendant was violating the law and justifying a stop of defendant's vehicle.
"2. The trial court erred twice in denying defendant's motion to dismiss for violation of defendant's speedy trial right."
Under his first assignment, appellant challenges the trial court's determination that the initial stop of his vehicle had been supported by a reasonable and articulable suspicion of criminal behavior. In relation to this point, appellant's argument has two aspects. First, he contends that the fishtailing and the driving left of center did not satisfy the standard for an investigative stop because these actions occurred as a direct result of the road conditions. Second, he asserts that momentarily driving off the edge of the road was insufficient, in and of itself, to justify the stop.
The standard for judging the constitutional validity of an investigative stop is well established under both federal and state case law. In State v. Zampini (1992), 79 Ohio App.3d 608, 610, 607 N.E.2d 933, 935, the court summarized this precedent in the following manner:
"In order to justify an investigative stop, a police officer 'must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906, 44 O.O.2d 383, 393. The propriety of an investigative stop must he viewed in light of the totality of the circumstances. United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621; State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 41sN.E.2d 1044. The officer must have a reasonable belief and specific facts upon which a reasonable suspicion could be based that the person stopped was violating or about to violate the law. Terry, supra."
In applying the basic Terry standard, we have held that a finding of a reasonable suspicion cannot be predicated solely upon actions which are consistent with innocent behavior. State v. Bird (1988), 49 Ohio App.3d 156, 551 N.E.2d 622. However, in applying Bird in subsequent, cases, we have likewise held that a reasonable suspicion can be based upon actions which could be interpreted to be innocent or criminal :
"We do not advocate a test which would turn on whether the defendant's acts can be construed as `innocent through the exercise
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