Leaper v. State ( 1988 )

OPINION

BUSSEY, Judge:

Kathy L. Leaper, appellant, was convicted in the District Court of Greer County of Driving a Motor Vehicle While Under the Influence of Alcohol and received a sentence of ninety (90) days imprisonment in the Greer County jail and fine of $450.00, the jail sentence to be suspended upon the condition that appellant complete D.U.I. school within five weeks of final judgment.

At approximately 3:30 a.m. on May 24, 1985, an automobile driven by appellant was observed by Officer Jimmy L. Nor-wood of the Mangum, Oklahoma, Police Department. The automobile was being driven at approximately five miles per hour down residential streets in Mangum. Noting the suspiciousness of this activity, which is consistent with the habits of some burglars, Norwood stopped the automobile. At that time, he saw the appellant stagger as she got out of her car and walked to his police cruiser, and he detected the smell of alcohol on her breath. He placed appellant under arrest for Driving Under the Influence and read her rights to her under Oklahoma’s Implied Consent Law. She consented to a breathalyzer test, and the test revealed a breath alcohol concentration of .13.

Appellant’s sole assignment of error is that her arrest was invalid because Officer Norwood lacked probable cause to stop her automobile because he had not actually seen her violate any State laws or ordinances.

It is well established that the police have “a right and a duty to investigate all unusual or suspicious circumstances.” Atterberry v. State, 726 P.2d 898, 899 (Okl.Cr.1986). This is a duty which arises out of the central role of the police in the prevention and detection of crime. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880-1881, 20 L.Ed.2d 889 (1968). When, in accordance with this duty, the police stop an automobile upon the road, they need not actually observe the violation of any law to have probable cause to stop that automobile. Probable cause exists whenever a vehicle is being driven in a manner which a reasonable man would find unusual or suspicious. Atterberry v. State, supra; White v. Oklahoma Department of Public Safety, 606 P.2d 1131 (Okl.1980); Stewart v. State, 395 P.2d 346 (Okl.Cr.1964); Moore v. State, 306 P.2d 358 (Okl.Cr.1957). After a review of the record, we agree with the trial court’s finding in this case that the appellant’s driving at an extremely slow rate of speed during the early morning hours on residential streets constituted unusual or suspicious behavior which was sufficient probable cause for Officer Nor-wood to stop appellant’s automobile.

Once he had stopped appellant’s automobile, Officer Norwood had probable cause to place appellant under arrest for Driving Under the Influence after he saw her stagger and detected alcohol on her breath. A prudent man would have believed, in the circumstances observed by Officer Norwood, that the offense of Driving Under the Influence had been committed and that a warrantless arrest was mandated. 22 O.S.Supp.1982, § 196(5); Holder v. State, 725 P.2d 872 (Okl.Cr.1986); Backus v. State, 635 P.2d 1021 (Okl.Cr.1981). Appellant’s arrest was valid, and her assignment of error is without merit.

Finding no error warranting reversal or modification, the judgment and sentence is AFFIRMED.

BRETT, P.J., concurs. PARKS, J., specially concurs.