COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67396 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DONNA WATSON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-304597 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue PETER GAUTHIER, ESQ. Cleveland, Ohio 44103 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant Donna Watson appeals from her no contest plea convictions for drug trafficking, drug abuse and possession of criminal tools. Defendant was indicted by the Cuyahoga County Grand Jury February 16, 1994, on the following three charges, viz.: (1) drug trafficking of marijuana in violation of R.C. 2925.03, with a furthermore clause based on her prior drug trafficking conviction and a violence specification for her prior aggravated assault conviction; (2) drug abuse by possession of less than the bulk amount cocaine in violation of R.C. 2925.11 with the same furthermore clause and violence specification; and (3) possession of criminal tools (money and a telephone pager) in violation of R.C. 2923.24 with a violence specification. The charges arose out of defendant's arrest on November 18, 1993, in connection with a joint undercover controlled drug buy operation by the Bureau of Alcohol, Tobacco and Firearms ("ATF") and Cleveland Police. Law enforcement officers observed defendant engaged in illegal drug transactions outside the Club 66 bar while they were preparing to execute federal search and arrest warrants. Defendant pleaded not guilty to the charges and was appointed defense counsel. Defendant filed a motion in the trial court on March 23, 1994, to suppress the marijuana, cocaine, money, pager and statements obtained by Cleveland police officers. On May 3, - 3 - 1994, the matter proceeded to a hearing on defendant's motion to suppress immediately prior to the scheduled trial. The prosecution presented testimony from the following three Cleveland Police narcotics officers, viz.: (1) Walter Thomas, (2) Randall Bergeon, and (3) Andrew Charchenko. Cleveland police officer Thomas had seen defendant during the course of the seven-month investigation. He testified that on one occasion she offered to sell drugs to an ATF agent. He further testified that at 5:30 p.m. on November 18, 1993, law enforcement officers from the ATF and Cleveland police were waiting for a SWAT unit to execute arrest and search warrants at the Club 66 bar obtained after a seven-month joint investigation. While conducting surveillance, Officer Thomas observed defendant outside the bar engaging in what appeared to be illegal drug transactions. Thomas saw defendant exchange something with four or five male pedestrians over the course of a half-hour period. Thomas observed each pedestrian engage defendant in a brief conversation, each pedestrian then handed defendant something, and defendant placed her hand in her coat pocket and delivered something to the pedestrian in return. Thomas reported his observations to other officers by radio and in person when the officers converged to execute the warrants. As the officers abruptly arrived on the scene en masse, defendant fled, "yelling Vice, Vice." Cleveland police detective Bergeon pursued defendant into a nearby check cashing business and brought her back to the scene. - 4 - Bergeon testified that he conducted a patdown search of defendant's outer garments since the officers had received information during their investigation that defendant was known to carry razor blades. Bergeon testified he felt a wad of money in defendant's coat pocket and that two bags of marijuana fell to the ground when he took the wad of money out of defendant's coat pocket. Cleveland police detective Charchenko testified that defendant was placed in the right rear passenger's seat of Charchenko's vehicle following her arrest. Another male suspect was placed in the rear seat of the vehicle behind the driver and Charchenko rode as a passenger in the front seat. Defendant and the other suspect were transported to the Fifth District police station. However, after booking, defendant was transported to the Justice Center since the Fifth District police station did not have facilities to accommodate her. Defendant complained that the handcuffs on her wrists behind her back were too tight so one of the officers removed the handcuffs and then handcuffed defendant's wrists in front of her. Charchenko subsequently heard the ashtray on the rear passenger door behind him "click" during the trip to the Justice Center. The officers discovered a packet of cocaine in the ashtray after arriving at the Justice Center. Defendant admitted to Cleveland police detective Ansari that the packet of cocaine belonged to her. - 5 - Defendant's testimony during the suppression hearing presented a sharply conflicting version of events. Defendant stated she went to the Club 66 bar to buy a lottery ticket and "walked" away after the "FBI" arrived so that she could buy a lottery ticket at the money exchange store. Defendant stated she had been waiting in a long line outside the bar for only five or six minutes and purchased the marijuana at the bar. Defendant stated that the police officer who retrieved her from the money exchange asked her if she had any sharp objects in her pockets before searching her. Defendant maintained she was placed in the rear seat of the police vehicle on the driver's side following her arrest and that her arms remained handcuffed at all times behind her back. Defendant testified the packet of cocaine found in the ashtray of the rear passenger door did not belong to her and she denied admitting that she owned the cocaine. Defendant explained that she obtained the large wad of cash in her coat pocket from her lottery winnings the day before her arrest. Defense counsel admitted that the telephone pager was confiscated from defendant. The trial court denied defendant's motion to suppress following arguments by the parties. (Tr. 58-60.) Rather than proceeding to trial, defendant pleaded no contest to all three charges in the indictment. The trial court found defendant guilty of all three charges and sentenced her to the following concurrent terms of imprisonment, viz.: (1) three to ten years for drug trafficking in violation of R.C. 2925.03, (2) three to - 6 - ten years for drug abuse in violation of R.C. 2925.11, and (3) three to five years for possession of criminal tools in violation of R.C. 2923.24. The trial court's May 6, 1994, journal entry also imposed a total of $5,000 in mandatory statutory fines for defendant's drug offenses. Defendant, through newly appointed appellate counsel, timely appeals raising the following sole assignment of error: THE TRIAL COURT ERRED IN OVERRULING THE DEFENSE MOTION TO SUPPRESS AS THE ARRESTING OFFICER DID NOT HAVE PROBABLE CAUSE TO EFFECTUATE THE ARREST OF APPELLANT. Defendant's sole assignment of error lacks merit. Defendant contends the trial court improperly denied her motion to suppress evidence. Defendant argues the trial court should have granted her motion since the police lacked probable cause to believe she was engaged in illegal drug transactions to justify her arrest without a warrant. Based on our review of the record, defendant has failed to show any error. To make a constitutionally valid warrantless arrest requires the police have sufficient information to warrant a prudent man believing that an offense has been committed by the accused. Beck v. Ohio (1964), 379 U.S. 89. The probable cause test requires more than a generalized suspicion of criminal conduct, but less certainty than proof beyond a reasonable doubt. The U.S. Supreme Court has emphasized that "probable cause deals with probabilities -- the factual and nontechnical considerations of everyday life on which reasonable and prudent men act -- and is a fluid concept, to be based on the totality of the circumstances, - 7 - and not reduced to a neat set of legal rules." Illinois v. Gates (1983), 462 U.S. 213, 232-233. In the case at bar, the totality of circumstances support the trial court's finding that the police had sufficient probable cause to believe defendant was engaged in illegal drug transactions to justify her arrest without a warrant. Prior to executing the federal drug warrants, Officer Thomas observed defendant engaged in a textbook example of illegal drug activity while he was conducting surveillance of Club 66. See State v. Victor (1991), 76 Ohio App.3d 372. Based on his experience in over one thousand drug arrests, Thomas concluded that defendant was "selling like mad." Officer Thomas recognized defendant and knew she had previously offered to sell illegal drugs to an ATF agent during the course of the investigation, which resulted in five arrest warrants and a search warrant for Club 66. Defendant was interrupted in the act of engaging in illegal drug transactions when the law enforcement officers abruptly arrived on the scene to execute the warrants. Defendant immediately took flight from the law enforcement officers and yelled warnings to others: "Vice, Vice." These circumstances are sufficient for a reasonable and prudent person to believe defendant was probably engaged in illegal drug transactions. The record demonstrates, contrary to defendant's argument, that the determination to arrest her was based on more than a generalized suspicion of her criminality and constituted sufficient probable cause to justify her arrest. - 8 - Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. - 9 - 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. LEO M. SPELLACY, P.J., and DAVID T. MATIA, J., CONCUR DIANE KARPINSKI 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 the time period for review will begin to run. .