COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66902 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JAMES CLANCY : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 8, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-298687. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Blaise D. Thomas, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Valerie R. Arbie, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: James Clancy, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CR-298687, in which the trial court denied defendant-appellant's motion to suppress evidence relating to approximately 800 grams of crack cocaine discovered in defendant-appellant's possession. Defendant- appellant assigns one error for this court's review. James Clancy's, defendant-appellant's, sole assignment of error is not well taken. I. THE FACTS This case arises out of a traffic stop conducted by officers of the Brecksville Police Department. On June 18, 1993 at approximately 7:45 a.m., Officer David Hetrick, a member of the Brecksville Police Department since 1983, observed a brown Dodge Hatchback traveling southbound on Interstate 77. Officer Hetrick observed that the vehicle did not have a front license plate as required by Ohio law. The vehicle did have a rear license plate with a registration sticker indicating that the license plates would expire in June, 1993. Since there was a possibility that the vehicle's license plates had already expired, Officer Hetrick radioed the license number into the police department dispatcher who informed Officer Hetrick that the vehicle's license plates had, in fact, expired. Officer Hetrick then signaled to the vehicle to pull over to the side of the interstate so that the driver could be questioned. James Clancy, defendant-appellant, and Clancy's three- -3- year-old daughter, Dommiqua, were passengers in the subject vehicle at the time of the stop. After Officer Hetrick stopped the vehicle, the driver, Curtis Mixon, informed Officer Hetrick that the vehicle belonged to Mixon's sister and Mixon was unaware of the expired license plates. Mixon also told Officer Hetrick that his operator's license was currently under suspension. At this point, Officer Hetrick informed Mixon that he was going to be placed under arrest for driving while under suspension. Officer Hetrick then questioned James Clancy, defendant- appellant, regarding the status of his operator's license. The purpose of this question was to determine if defendant-appellant could legally drive the car from the scene or whether a police tow truck would have to be called. James Clancy, defendant-appellant, presented his driver's license to Officer Hetrick who ran defendant-appellant's license through a computer check and discovered that defendant-appellant's license was also under suspension. At this point, Officer Hetrick determined that the subject vehicle must be towed from the interstate since no licensed driver was available. Because Ohio law prohibits pedestrians from walking upon an interstate highway, R.C. 4511.051, Officer Hetrick informed James Clancy, defendant-appellant, that he would transport defendant- appellant and his daughter in a police vehicle to a telephone so arrangements could be made for transportation home. Pursuant to Brecksville Police Department policy, all transients who are to be -4- transported in a police vehicle are subject to a pat-down search for weapons to ensure officer safety. As defendant-appellant exited the unlicensed vehicle so that the pat-down search could be conducted, Officer Hetrick noticed a large bulge in defendant- appellant's left front pants pocket. Officer Hetrick then asked defendant-appellant to empty his pockets. At this point, Officer Hetrick maintained that James Clancy, defendant-appellant, become very agitated and nervous as he slowly began to remove the items from his pockets. During this process, defendant-appellant's hands allegedly began to shake uncontrollably causing defendant-appellant to drop items from his pocket to the ground. After James Clancy, defendant-appellant, stated that he had finished removing items from his pockets Officer Hetrick noticed that the bulge was still present. Officer Hetrick questioned defendant-appellant as to the remaining bulge. Defendant-appellant did not answer. Officer Hetrick then asked defendant-appellant to remove the remaining items from his pockets. As defendant- appellant slowly removed the remaining items from his pocket, Officer Hetrick observed a clear plastic bag containing a white powdery substance which Officer Hetrick immediately recognized as being cocaine. Defendant-appellant was then placed under arrest and advised of his constitutional rights. After the vehicle was towed to the Brecksville Police Station, a trained narcotics dog was brought in to sniff for the possible presence of illegal drugs contained within a suitcase owned by -5- James Clancy, defendant-appellant. The suitcase had been discovered in the back seat of the subject vehicle. The dog's positive response to the suitcase indicated that illegal drugs were possibly contained within defendant-appellant's suitcase. Upon this information, a search warrant was obtained and a search of the suitcase was conducted revealing approximately 800 grams of cocaine. On August 18, 1993, the Cuyahoga County Grand Jury returned a five count indictment against James Clancy, defendant-appellant. The indictment charged defendant-appellant with one count of drug trafficking violation of R.C. 2925.03(A)(6); one count of drug trafficking in violation of R.C. 2925.03(A)(2); possession of criminal tools in violation of R.C. 2925.13(A); permitting drug abuse in violation of R.C. 2925.13; and one count of child endangering in violation of R.C. 2919.22(A). On August 24, 1993, James Clancy, defendant-appellant, was arraigned whereupon a plea of not guilty was entered as to all five counts contained in the indictment. On September 9, 1993, James Clancy, defendant-appellant, filed a motion to suppress evidence pertaining to the cocaine seized by the Brecksville Police Department. Defendant-appellant's motion to suppress was based upon the alleged illegal search of defendant- appellant and defendant-appellant's suitcase. On October 20, 1993, the trial court conducted a hearing on James Clancy's, defendant-appellant's, motion to suppress evidence. On December 17, 1993, the trial court issued its ruling and -6- findings of fact on defendant-appellant's motion to suppress in which the trial court found that the search conducted by the Brecksville Police Department was not unreasonable under the circumstances and did not constitute an illegal search. On December 20, 1993, James Clancy, defendant-appellant, withdrew his formerly entered plea of not guilty and entered a plea of no contest to count one, count two and count five of the amended indictment; drug trafficking in violation of R.C. 2925.03(A)(2)(6) and child endangerment in violation of R.C. 2919.22(A). The remaining counts of the indictment were dismissed at the request of the State. The trial court then found defendant-appellant guilty as to count one, count two and count five as charged in the amended indictment and referred defendant-appellant to the Cuyahoga County Probation Department so that a presentence investigation could be conducted. On January 21, 1994, the trial court sentenced James Clancy, defendant-appellant, to the Lorain Correctional Institution for a term of incarceration of three to fifteen years on count one with three years actual incarceration, two years on count two and six months on count five. All time was ordered to be served concurrently. The trial court then granted defendant-appellant's request for bond and motion for suspension of execution of sentence pending appeal. On February 17, 1994, James Clancy, defendant-appellant, filed a timely notice of appeal from the judgment of the trial court. However, due to defendant-appellant's failure to file an appellate -7- brief, the appeal was dismissed. On March 27, 1994, this court granted defendant-appellant's motion to reinstate the appeal. In the interim, the trial court had revoked defendant-appellant's bond for failure to perfect an appeal and defendant-appellant began serving his sentence. II. ASSIGNMENT OF ERROR James Clancy's, defendant-appellant's, sole assignment of error states: THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION FOR SUPPRESSION OF EVIDENCE OBTAINED IN VIOLATION OF MR. CLANCY'S RIGHTS AGAINST UNREASONABLE SEARCH AND SEIZURE AS GUARANTEED BY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND THE OHIO CONSTITUTION, ARTICLE I, SECTION 14. A. THE ISSUE RAISED: ILLEGAL SEARCH Defendant-appellant argues, through his sole assignment of error, that the trial court erred in denying defendant- appellant's motion to suppress. Specifically, defendant- appellant maintains that the search conducted by the Brecksville Police Department was illegal and unconstitutional since the police lacked the required reasonable suspicion that defendant- appellant was armed and dangerous or engaged in criminal activity. In addition, defendant-appellant contends that the search of his suitcase was unconstitutional since the probable cause for the issuance of the search warrant was based upon the illegal conduct of the Brecksville Police Department. Lastly, defendant-appellant maintains that, without a search warrant, the -8- contents of his suitcase would not have been subject to a legal inventory search and would not have been legally admissible as evidence. For the following reasons, defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW In a suppression hearing, the evaluation of the evidence and the credibility of witnesses are issues for the trier of fact. State v. Mills (1992), 62 Ohio St.3d 357; State v. McCulley (April 28, 1994), Cuyahoga App. No. 64470, unreported. The trial court assumes the role of trier of fact in a suppression hearing and is therefore in the best position to resolve questions of fact and evaluate credibility of witnesses. State v. Klein (1991), 73 Ohio App.3d 486. Appellate courts should give great deference to the judgment of the trier of fact. State v. George (1989), 45 Ohio St.3d 329. Accordingly, an appellate court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Klein, supra. The Fourth Amendment to the United States Constitution provides in part: "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ***." The Fourth Amendment to the United States Constitution and Section 14, Article One of the Ohio Constitution requires the police to obtain a warrant based upon probable cause before they conduct a search. However, the warrant requirement is subject to a number -9- of well-established exceptions. Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022. In Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, the United States Supreme Court held that a police officer may make a brief, warrantless, investigatory stop of an individual without probable cause where the police officer reasonably suspects that the individual is or has been involved in criminal activity. The Supreme Court stated: *** We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experiences that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Id. at 330. It should be noted that the level of suspicion required for a Terry stop is less demanding than that required to establish probable cause. United Stats v. Montoya de Hernandez (1985), 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381. Probable cause has been defined as "a fair probability that contraband or evidence of a crime will be found." Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527. -10- In order to justify an investigative stop under Terry, supra, a police officer must be able to articulate something more than an "inchoate and unparticularized suspicion or hunch." Id. at 27. The Fourth Amendment requires a minimal level of objective justification for making the stop. INS v. Delgado (1984), 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247. The United States Supreme Court has held since an effort to define "reasonable and/or articulable suspicion" creates unnecessary difficulty, therefore, when evaluating the validity of a stop such as this, a court must consider "the totality of the circumstances -- the whole picture." United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 261. As the United States Supreme Court stated in Illinois v. Gates, supra at 231, 232: The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; ***. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. In State v. Bobo (1988), 37 Ohio St.3d 177, the Ohio Supreme Court identified the following factors which may be considered in determining the reasonableness of an investigatory search and seizure: *** (1) the area in which the actions occurred was an area of very heavy drug activity in which weapons were prevalent; (2) it was nighttime, when weapons could easily -11- be hidden; (3) Sergeant Mandzak, one of the officers who approached the vehicle in which Bobo was sitting, had about twenty years of experience as a police officer and numerous years in the surveillance of drug and weapon activity -- included in this experience were about five hundred arrests each for guns or drugs city-wide and over one hundred arrests in the area in which Bobo was parked; (4) Mandzak's knowledge of how drug transactions occurred in that area; (5) Mandzak's observations of Bobo's disappearing from view then reappearing when the police car was close, looking directly at the officers and then bending down as if to hid something under the front seat; (6) Mandzak's experience of recovering weapons or drugs when an individual would make the type of gesture made by Bobo in ducking under his seat; and (7) the police officers' being out of their vehicle and away from any protection if defendant had been armed. Id. at 179. See also State v. Dugaritz (May 5, 1994), Cuyahoga App. No. 65328, unreported. In considering the totality of the circumstances, courts must also give due deference to the police officer's training and experience. The totality of the circumstances must be viewed through the eyes of a reasonably prudent police officer at the scene, who must react to sometimes life-threatening events as they unfold. State v. Freeman (1980), 64 Ohio St.2d 291. C. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS. In the case sub judice, a review of the record from the trial court demonstrates that the trial court did not err in denying defendant-appellant's motion to suppress evidence. Under the totality of the circumstances, it is apparent that the search of defendant-appellant conducted by the Brecksville Police -12- Department was reasonable and supported by articulable facts demonstrating that Officer Hetrick had a reasonable suspicion that defendant-appellant was engaged in some form of criminal activity. Illinois v. Gates, supra. Initially, it is beyond dispute that Officer Hetrick had sufficient probable cause to stop the vehicle in which defendant- appellant was a passenger. The traffic violation, in this case driving with an expired license plate, clearly constituted legal probable cause for the stop. State v. Evans (1993), 67 Ohio St.3d 405, 407. In addition, once Officer Hetrick determined that neither the driver or defendant-appellant possessed a valid driver's license, he was left with no alternative but to tow the subject vehicle and transport defendant-appellant and his three- year-old daughter from the interstate in a police vehicle. Pursuant to Brecksville Police Department policy, before a person in custody or a transient can be transported in a police vehicle, a pat-down search for weapons is conducted. This search is left to the discretion of each individual officer depending upon the situation. Such a search is legitimate if conducted in order to ensure a police officer's own personal safety. State v. Evans, supra, at 410. Therefore, the question before this court is whether Officer Hetrick's actions exceeded the scope of a permissible search. Officer Hetrick testified during the hearing on defendant- appellant's motion to suppress that defendant-appellant's own conduct after being informed that a pat-down search was going to -13- be conducted caused suspicion that defendant-appellant was involved in illegal activities. Officer Hetrick testified as follows: Q. Now, was there anything about his behavior that fell outside of the range of what you consider normal? MR. STANLEY: Objection. THE COURT: He can answer that. He can answer. Q. Please answer. A. Yes. His hands were trembling almost uncontrollably. I mean, I very seldom see somebody shake the way this guy did. He couldn't even hold onto the change in his pocket. It was bouncing out of his hand. He managed to pull out the change and we put it on top of the car. And I asked him, I said, "Is that it?" Q. Let me stop you. You mentioned he was sweating. Did you notice any sweat on his person as you initially started talking to him? A. You mean when I first approached him about the driver's license? Q. Yes. A. No. He was pretty -- nothing unusual. Q. At what point during this encounter did his demeanor change? A. When I asked him to take the change out of his pockets. Q. That's when you started seeing the change? A. Exactly. Q. Now, when you observed this almost uncontrollable trembling, what went through your mind? -14- MR. STANLEY: Judge, I'm going to object to the repeating of the testimony. THE COURT: Overruled. Go ahead. A. It just wasn't -- it just wasn't in place with everything that had happened up until that point. he was fine in the car. Mr. Mixon was fine even though he was under arrest. When I asked him about the bulge in the pocket is when he started to look around. He was looking around almost as if he was looking through me. Then he put his hand in his pocket real slow and he started to take it out. He was dropping it as he took it out of his pocket. It was as if he started to juggle this stuff. Myself and the other officer, myself I just -- I couldn't -- you know, it was very unusual. Q. During the course of him reaching into his pocket, did he eventually empty his pocket? A. Not completely. Q. Tell us about how that occurred. A. Well, after we had helped him pick up the change off the ground, and he put it on top of the car, I asked him, I said, "Is that it?" And he said yes. Prior to asking that question, I saw that there was still a bulge in the pocket of the pants. And I asked him, I said, "What is that?" And he just looked at me and did the same thing with the eyes and the whole bit. He was pretty nervous. Q. You are also moving your hands when you are saying that was he still shaking? A. Yeah. Trembling. Q. All right. A. I said, "What's that in your pocket?" He didn't say anything. -15- Q. What's going through your mind when you see something that's still there? A. There was something in there he didn't want me to see. Q. What happened next? A. I asked him to take it out. He did. He reached into his pocket. He took out a closed fist. I said, "What's in your hand?" He slowly opened his fingers, and I said, "What's that?" He didn't say anything. I said -- I knew what it was. Q. What was he holding? A. It was a clear plastic bag which was tied in a knot at the top, and it contained a white powdery rocklike substance. Q. All right. What happened next? A. He didn't say any more. I told him that I believed that it was some form of cocaine. He was placed under arrest and mirandized at the scene. Tr. at pp. 76-79. Furtive movements and/or suspicious gestures do not, in and of themselves, justify the search of an individual without a search warrant. State v. Kessler (1978), 53 Ohio St.3d 204, 208. However, where furtive movements and/or suspicious gestures have been made by occupants of a vehicle in seeming response to the approach of a police officer, the addition of other factors may give rise to a finding of probable cause for a search. State v. Kessler, supra, at 209. In this instance, defendant-appellant's unusual behavior, i.e., excessive nervousness, trembling and sweating combined with defendant-appellant's apparent untruthfulness when asked if he -16- had finished removing all items from his pockets gave rise to Officer Hetrick's reasonable suspicion that defendant-appellant was engaged in some sort of illegal activity. Given the circumstances, Officer Hetrick's minimal and unobtrusive search of defendant-appellant did not constitute a violation of the Fourth Amendment to the United States Constitution or Article I, Section 14 of the Ohio Constitution. Accordingly, since the search of defendant-appellant was based on a reasonable, articulable suspicion of illegal activity, the resulting search of defendant-appellant's suitcase, in which 800 grams of cocaine were discovered, was not based on invalid probable cause. The discovery of cocaine an defendant- appellant's person led the Brecksville Police to reasonably suspect that additional cocaine could be in defendant-appellant's suitcase. A narcotics dog was then brought in to test for the presence of further illegal drugs. The dog's positive response indicated that, in fact, illegal drugs were probably located within the suitcase. A search warrant was obtained based upon police information and the narcotics dog's response leading to the discovery of the additional drugs. Under the circumstances, the search of defendant-appellant's suitcase was proper. State v. Salazar (July 12, 1995), Montgomery App. No. CA-14709, unreported; State v. Carlson (April 19, 1995), Medina App. No. 2359-M. For the foregoing reasons, this court finds that the state met its burden of proof as set forth in State v. Bevan (1992), 80 -17- Ohio App.3d 126 and the trial court properly denied defendant- appellant's motion to suppress evidence. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -18- 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. JOHN T. PATTON, J., CONCURS; TERRENCE O'DONNELL, J. CONCURS IN JUDGMENT ONLY. DAVID T. MATIA 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 .