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Broadview Hts. v. Abkemeier11/16/1992
HARPER, Judge.
Plaintiff-appellant city of Broadview Heights appeals from the decision of the Parma Municipal Court which granted defendant-appellee Kenneth A. Abkemeier, Jr.'s motion to suppress. The city maintains that the investigatory stop and subsequent arrest of Abkemeier for driving under the influence was justified based upon the evidence presented at the suppression hearing.
The city's sole witness at the suppression hearing was Patrolman Rajko Ivanovic from the Broadview Heights Police Department. He testified that while he was on duty on April 15, 1990, he monitored a radio broadcast from the North Royalton Police Department at approximately 1:22 a.m. Ivanovic learned that the Strongsville Police Department advised the North Royalton department of a black Corvette speeding eastbound on Route 82, also known as Royalton Road. Since North Royalton officers were not in the immediate area, Ivanovic responded to the call by proceeding to the Seneca Apartments located at 1652 West Royalton Road. Ivanovic observed an eastbound black Corvette, apparently exceeding the posted speed limit of thirty-five m.p.h., as he pulled into the parking lot of the apartment complex. However, the Corvette's speed was never actually clocked because Ivanovic did not have sufficient time to do so. Nevertheless, Ivanovic activated his vehicle's pursuit lights, turned around and followed the Corvette into a parking lot of the Dairy Deli store at 1001 West Royalton Road.
Ivanovic shined his spotlight on the Corvette as he approached it. The driver, Abkemeier, exited the vehicle and walked towards the store even though aware of the officer's presence. Ivanovic instructed Abkemeier to stop, to turn around, and to provide his driver's license. Abkemeier could only provide his Social Security number. Patrolman Braskie of the Broadview Heights Police Department then arrived to assist Ivanovic.
Braskie conducted a pat-down search of Abkemeier and recovered a glass with "Mirage" imprinted thereon. Abkemeier admitted that he was drinking at the Mirage, a bar in Strongsville. Ivanovic noted that while Abkemeier was spoken to, he swayed and smelled of alcohol. Braskie thereafter initiated field sobriety tests.
Abkemeier failed to negotiate the turn in the walk and turn test. He repeated himself when counting in the one-leg stand test. Ivanovic, however, was not qualified to testify about the results of a third field sobriety test, the gaze nystagmus test. Based upon these test results, Abkemeier was handcuffed and placed under arrest. An intoxilyzer test was subsequently performed by Patrolman Kulczycki of the North Royalton Police Department.
Abkemeier was cited for driving under the influence of alcohol and/or drugs in violation of Broadview Heights Codified Ordinance 434.01(a)(1), and for driving under the influence of alcohol with blood-alcohol content over .10 in violation of Broadview Heights Codified Ordinance 434.01 (a)(3).
Abkemeier entered a plea of not guilty to the charges on May 3, 1990 in Broadview Heights Mayor's Court, whereupon the case was transferred to Parma Municipal Court. Abkemeier subsequently filed a motion to suppress and dismiss which was granted by the trial court after oral hearing.
In its sole assignment of error, the city contends the trial court erred in granting the motion to suppress since the stop of Abkemeier and evidence obtained were the result of a legal search and seizure. The city maintains the speeding violation justified the stop and the indicia of intoxication warranted the arrest for driving under the influence .
A police stop of a vehicle is a significan
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