The majority's analysis of the issue presented by this case is incorrect. Therefore, I dissent and would affirm the judgment of the trial court.
The investigative-stop exception to the Fourth Amendment warrant requirement allows a police officer to stop an individual if the officer has a reasonable, articulable suspicion that criminal behavior has occurred or is imminent.Terry v. Ohio (1968), 392 U.S. 1, 27, 88 S. Ct. 1868, 1883,20 L. Ed. 2d 889, 909. The officer's suspicion must be based on specific, articulable facts, which, when taken together with reasonable inferences from those facts, would warrant a person of reasonable caution in the belief that the person stopped has committed or is committing a crime. Id. 392 U.S. at 21,88 S.Ct. at 1880, 20 L.Ed.2d at 906. State v. Andrews (1991), 57 Ohio St. 3d 86,87, 565 N.E.2d 1271, 1272. An officer is generally justified in conducting an investigative stop of an automobile when he witnesses the driver commit a traffic violation, such as failing to drive in marked lanes. See Gibson, supra; Burwell,supra; Shook, supra. *Page 43
At the suppression hearing, Officer DeWitt testified that he saw appellant's vehicle pull into a gas station on State Route 42 at approximately 1:55 a.m. DeWitt testified that he observed a cloud of dust down the road in the parking lot of Tag's Tap Room and that he went to investigate. Several minutes later, DeWitt returned to his original position in the vicinity of the gas station and witnessed appellant pull out of the parking lot and begin driving north on Cox Road.
DeWitt followed the vehicle for a short distance before witnessing appellant turn into a dead-end street. After approximately one minute, DeWitt observed appellant pull out of the dead-end street and continue on in his original direction of travel. DeWitt testified that he then followed the vehicle for a short distance, during which time he observed appellant weave over the right-hand lane marker two times in violation of R.C.4511.33.
The trial court serves as the trier of fact in a suppression hearing and must judge the credibility of the witnesses and the weight of the evidence. State v. DePew (1988), 38 Ohio St. 3d 275,277, 528 N.E.2d 542, 547; State v. Fanning (1982), 1 Ohio St. 3d 19,20, 1 OBR 57, 58, 437 N.E.2d 583, 584. An appellate court must not disturb a trial court's decision overruling a motion to suppress where it is supported by substantial evidence. Maumee v. Johnson (1993), 90 Ohio App. 3d 169, 171,628 N.E.2d 115, 116; State v. Wingerd (1974), 40 Ohio App. 2d 236,238-239, 69 O.O.2d 217, 218, 318 N.E.2d 866, 867.
The trial court found that Officer DeWitt's decision to stop appellant's vehicle was justified by the necessary reasonable, articulable suspicion. I am satisfied that Officer DeWitt's testimony that he observed appellant drive aimlessly down a dead-end street in the middle of the night and then weave over the right-hand lane marker two times constitutes substantial, credible evidence which supports this finding. Accordingly, I would affirm the trial court's decision denying appellant's motion to suppress. *Page 44