Dissenting:
I believe that appellant's second and third assignments of error are well-taken and require the reversal of the conviction below.
The record establishes that the officer observed appellant's vehicle make a "wide slow turn" and, upon that singular observation, determined that he would follow the vehicle and intended to "stop or at least follow" that vehicle. While following appellant for one-half mile, the officer saw the vehicle "weave in his own lane -- but it was a definite weave." He added that he saw the vehicle weave in his own lane two, three or possibly four times in a quarter of a mile before he stopped the vehicle. The officer confirmed that he observed no violations of traffic laws by appellant prior to the stop. The officer unable to articulate sufficient specific facts which would justify his warrantless investigatory stop of appellant.
The majority, while setting forth proper principles of law, has in my belief improperly endeavored to conform the facts to that law. The officer in this cause had nothing more than the forbidden "hunch" that appellant's driving ability was impaired. To enhance its holding, the majority has affirmed the trial court's admission into evidence of a statement allegedly made to the officer by an unknown passing motorist concerning the manner of operation of appellant's vehicle prior to its initial sighting by the officer.
At the hearing on the motion to suppress/dismiss, the trial court initially and correctly sustained defense counsel's objections to the officer's testimony concerning the third party's statement. The trial court then reversed its finding in the belief that it was conducting a probable cause hearing at which hearsay testimony would be admissible. Later, the trial court admitted the statement for the reason that the declarant was not available.
The majority has chosen to find that the statement was properly admitted, but for the wrong reason. The majority simply concludes that the statement was not offered for its truth, but to explain the officer's conduct; that is, to explain the officer's decision to stop appellant's vehicle. The officer has repudiated such reasoning by his own testimony that he had formed the intention to stop or at least follow appellant's vehicle before hearing from the passing motorist. The majority selects from State v. Blevins (1987), 36 Ohio App. 3d 147, the following: "For example, where statements are offered to explain an officer's conduct while investigating a crime, such statements are not hearsay." It would have been more appropriate to quote from paragraph one of the Blevins syllabus, as follows:
"Not all out-of-court statements are hearsay, e.g., some statements are merely verbal parts of acts and are, as the acts are themselves, admissible. However, in a criminal case, the potential for abuse in admitting such statements is great where the purpose is merely to explain an officer's conduct during the course of an investigation.
Therefore, in order to admit out-of-court statements which explain an officer's conduct during the course of a criminal investigation, the conduct to be explained must be relevant, equivocal and contemporaneous with the statements. In addition, the statements must meet the standard of Evid. R. 403(A)."
In Blevins, Judge Strausbaugh, in discussing out-of-court statements which should be excluded, wrote as follows:
"There were, however, two instances where the court did admit out-of-court statements, over defendant's objections, which should have been excluded. Both Detective Kerins and Diehl were allowed to testify that Dyer told them defendant was the source of the marijuana. Since these statements clearly go to an element of the offense, and had little, if any, relevance to the circumstances of their meeting defendant, they should have been excluded.
"Even if the statements were not offered for their truth, the content had potential for misunderstanding by the jury and should have been excluded under Evid. R. 403(A)."
Evid. R. 403(A) provides as follows:
*710"(A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."
The essence of the charge against appellant herein is that his ability to operate his motor vehicle was impaired by the alcohol/drugs that he had consumed. Clearly, the out-of-court statement goes to an element of the offense and had little, if any, relevance to the circumstances affecting the officer's decision to fall in behind and follow appellant.
Even had the officer indicated he was alerted to and relied upon the information coming to him from the passing motorist in order to make his decision to conduct an investigatory stop, and considering this court's prior decisions in State v. Geisler (Aug. 30, 1985), Warren App. No. CA85-02-003, unreported, and State v. Wagers (May 21, 1984), Preble App. No. CA-83-10-021, unreported, it is this writer's belief that the officer had less than sufficient reason to believe that a crime was being committed and, therefore, the motion to suppress/dismiss should have been granted.
Accordingly, I dissent.