COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60278, 60279 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ERNEST J. GEORGE, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 9, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case Nos. CR-225,561 and : CR-226,837 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Thomas M. Shaughnessy 11510 Buckeye Road Cleveland, Ohio 44113 -2- NAHRA, P.J.: Ernest George appeals from his convictions of carrying a concealed weapon and having a weapon while under a disability in CR-225,561. He also appeals from his conviction of having a weapon while under a disability in CR-226,837. For the reasons set forth below, we affirm the convictions. CR-225,561 arose from George's arrest on February 18, 1988. On that evening, East Cleveland police first received a call at about 10:45 P.M. from the La Dauphin Lounge about a disorderly patron. Officer Demico and his partner responded. They escorted George out of the bar. Demico concluded that George was intoxicated. About twenty minutes later, the police received a second call from the La Dauphin Lounge, also regarding George. This call reported that George had stolen a .38 caliber gun from the bar. George was described as sitting across the street in a yellow car in the Hot Sauce Williams' parking lot. The same officers who had escorted George out of the bar responded to the second call. George was seated in a yellow car in the Hot Sauce Williams' parking lot. The officers testified that they recognized him from the previous call. The officers removed George from the car to search him for the gun. George did not have a gun on him. Officer Demico looked inside the car and saw in plain view a bump underneath loose carpeting on the passenger side of the car. Demico lifted up the carpet and found a loaded .38 caliber pistol. -3- George was indicted on two counts. Count 1 was for carrying a concealed weapon plus two violence specifications. Count 2 was for having a weapon while under a disability plus two violence specifications plus one gun specification. George's motion to suppress evidence was denied and he was tried to the court. The court found George guilty on both counts. The court sentenced George to 2 - 10 years on Count 1, and 1 1/2 -5 years on Count 2, to be served concurrently. The court also imposed three years actual incarceration for the gun specification. CR-226,837 arose out of an arrest on March 29, 1988. In CR-226,837, George was indicted on three counts. The first two felonious assault counts were nolled. George pled no contest to Count 3, having a weapon while under a disability, plus one gun and two violence specifications. The court sentenced George to 1 1/2 - 5 years, plus three years actual for the gun specification. The court provided that the indefinite term was to be served concurrently with the indefinite terms of CR-225,561, with the three years actual to be served consecutively to the actual in CR-225,561. George timely appealed. I. Appellant's first assignment of error reads as follows: THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE AS THE POLICE LACKED PROBABLE CAUSE TO ARREST AND SEARCH THE APPELLANT. -4- In Terry v. Ohio (1968), 392 U.S. 1, the United States Supreme Court held that an investigative stop and frisk of a suspect does not violate the Fourth Amendment so long as the stop was based on "specific and articulable facts which, taken together with rational inferences from those facts, warrant the intrusion". Id. at 21. The Court noted that police officers have the right to neutralize a threat of physical harm. Id. at 24. See also State v. Bobo (1988), 37 Ohio St. 3d 177, U.S. certiorari denied, 488 U.S. 910, and State v. Andrews (1991), 57 Ohio St. 3d 86, U.S. certiorari denied, U.S. , 111 S. Ct. 2833. Protective searches may extend beyond a person, and may legitimately include the passenger compartment of an automobile. See, e.g., Michigan v. Long (1983), 463 U.S. 1032, and New York v. Belton (1981), 453 U.S. 454. In New York v. Class (1986), 475 U.S. 106, the Court balanced the need to search with the right to privacy. It stated that "[w]hen a search or seizure has as its immediate object a search for a weapon, however, we have struck the balance to allow the weighty interest in the safety of police officers to justify warrantless searches based only on a reasonable suspicion of criminal activity" (citations omitted). Id. at 117. In this case, the police had sufficient specific and articulable facts to warrant the intrusion. They had escorted appellant out of the La Dauphin Lounge about twenty minutes earlier after receiving a call of a disorderly patron from a Ms. -5- Williams. The same Ms. Williams called back to say that appellant had returned to the bar, stolen a gun, and was presently sitting in a yellow car across the street from the bar in the Hot Sauce Williams parking lot. The same police officers who had escorted appellant out of the bar earlier responded to the scene. They saw appellant, whom they recognized, sitting in a yellow car in the Hot Sauce Williams parking lot. They proceeded to investigate Ms. Williams' claim. The officers asked appellant to get out of the car, and searched him for weapons. When they found no weapon on him, Officer Demico looked inside the car. He saw a bump under a piece of loose carpeting on the passenger side of the vehicle, which looked like a gun hidden under carpeting. He picked up the carpet and found a .38 caliber gun. Appellant claims that this search was unreasonable. We disagree. The police officers reasonably suspected that appellant had stolen a gun, and were entitled to make a limited stop and search to investigate the claim, and to protect themselves. Appellant's first assignment of error is overruled. II. Appellant's second and third assignments of error read as follows: THE THREE YEAR FIREARM TERM OF INCARCERATION, IN ADDITION TO THE SENTENCE FOR HAVING A WEAPON WHILE UNDER A DISABILITY CONSTITUTES CRUEL AND UNUSUAL -6- PUNISHMENT UNDER THE UNITED STATES AND OHIO CONSTITUTIONS. THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT FOR BOTH HAVING A WEAPON WHILE UNDER A DISABILITY PURSUANT TO R.C. 2923.13 AND A FIREARM SPECIFICATION PURSUANT TO R.C. 2929.71 IN VIOLATION OF THE APPELLANT'S RIGHT AGAINST DOUBLE JEOPARDY AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS. This court has repeatedly addressed and overruled these identical arguments in recent cases. See, e.g., State v. Williams (Feb. 18, 1988), Cuyahoga App. No. 53386, unreported, and State v. Churchill (Aug. 13, 1987), Cuyahoga App. No. 52467, unreported. Appellant offers no new or different arguments here that have not already been considered in these past decisions. Appellant's second and third assignments of error are overruled. Affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, J., and HARPER, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .