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State v. Miller4/29/1999
JUDGMENT: Affirmed
At 10: 14 p.m., March 27,1998, Buckeye Lake Police Officer Matthew Shields was running an errand for another member of his department. He was in uniform, and traveling in his marked cruiser. He heard the sound of gravel from tires spinning, but didn't investigate further. However, as he traveled down Myers Avenue, a group of people flagged him down. They told him that a pickup truck had traveled down the road at a high rate of speed, run a stop sign, and nearly hit a woman who was walking her dog. The people pointed the pickup out to the officer, as it was still in sight, traveling down the road. Patrolman Shields followed the pickup truck. While following the truck, he did not observe any unusual driving. He intended to catch up with the pickup truck, stop it, and question the driver. When the pickup was still a few blocks ahead of him, he activated his overhead lights in order to pick up speed a little bit. Appellant, Michael Miller, who was driving the pickup truck, pulled into a gas station. When the officer pulled into the station, appellant was getting out of the truck. Appellant walked around to the front of the truck, opened the hood, and started to check the oil. Upon speaking with appellant, Patrolman Shields noticed an odor of an alcoholic beverage. When questioned, appellant stated that he had a couple of beers when he got off work that afternoon. After administering field sobriety tests, the patrolman placed appellant under arrest for driving while intoxicated. He agreed to take a breath test, and was found to have a breath alcohol concentration of .014 grams of alcohol per 210 liters of breath. He was then charged with driving while intoxicated. Appellant moved to suppress the results of the breath test on the basis that the officer did not have reasonable suspicion of criminal activity to justify the stop. He argued that the stop was based on an uncorroborated tip. The court overruled the suppression motion. Appellant then pled no contest, and was convicted as charged. He assigns a single error on appeal:
"ASSIGNMENT OF ERROR "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT-APPELLANT'S MOTION TO SUPPRESS EVIDENCE."
Where a vehicle is already stopped, the officer need not have a reasonable suspicion of criminal activity to approach the driver and investigate further. E.g., State v. Barnett (August 20, 1998), Licking App. No. 98CA-10, unreported. In the instant case, although it is apparent the officer intended to stop the car, the vehicle was stopped by appellant when he pulled into the BP station. Although the officer had activated his overhead lights in order to pick up speed to close the distance between himself and appellant, he testified at the suppression hearing that appellant pulled into the gas station before the officer could close the distance close enough for appellant to realize that he would be the individual that the officer would be attempting to stop. Tr. 20. When the officer pulled into the station, appellant got out of the truck, walked around to the front of his truck, opened his hood, and started to check the oil. Therefore, the car was not stopped by the officer. The assignment of error is overruled.
The judgment of the Licking County Municipal Court is affirmed.
By Gwin, P.J., Hoffman, J., and Farmer, J., concur
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