COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69690 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ALVIN SPEIGHT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 13, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. 320262. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Edward S. Wade, Jr., Esq. 75 Public Square, Suite 1111 Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Alvin Speight, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CR-320262, in which the trial court denied his motion to suppress evidence. Defendant-appellant assigns one error for this court's review. Alvin Speight's, defendant-appellant's, appeal is not well taken. I. THE FACTS Early in the morning of January 30, 1995, Detective Kevin Martin and other members of the Cleveland Police Department's Fourth District Vice Unit were working in undercover police detective vehicles investigating street drug activity and prostitution complaints in the area of Lee Road, Myrtle Avenue and Tarkington Avenue in Cleveland, Ohio. Martin, a fourteen year veteran of the Cleveland Police Department, and other officers observed a woman, Christine Malone, waiving at passing automobiles approximately four or five times in an attempt to get them to stop. Malone, who had allegedly been arrested on a prior occasion for prostitution in the same area, successfully stopped a white truck going northbound on Lee Road. The truck was operated by Alvin Speight, defendant-appellant. After the truck pulled over to the curb, Malone opened the passenger door and entered the vehicle. The truck then made a u- turn, went southbound on Lee Road and made a left-hand turn down Myrtle Avenue, a dead-end street. The police officers observed the -3- truck as it proceeded half-way down the block, pulled to the curb and turned off its lights. At this point, Detective Martin and the other police officers believed that Alvin Speight, defendant-appellant, and Malone were engaged in prostitution. The police then positioned vehicles in front of and behind defendant-appellant's truck, exited their vehicles and approached the truck. As he approached defendant- appellant's truck, Detective Martin observed defendant-appellant "adjusting his body now to facing the front of the truck, whereas it was turned before *** just a motion as coming up to sit forward again." (Tr. p. 13.) Another police officer ordered defendant- appellant to exit the truck. After defendant-appellant had exited the vehicle, Detective Martin observed another officer reach inside the back of the truck cab and remove a plastic bag of marijuana. Alvin Speight, defendant-appellant, was placed under arrest for suspected drug law violations. A search incident to defendant- appellant's arrest resulted in the discovery of a separate amount of marijuana in his pocket, $500 in cash and a pager. On March 6, 1995, Alvin Speight, defendant-appellant, was indicted by the Cuyahoga County Grand Jury for one count of drug trafficking in violation of R.C. 2925.03 with a violence specification and one count of possession of criminal tools in violation of R.C. 2923.24 with a violence specification. On March 23, 1995, defendant-appellant entered a plea of not guilty to the indictment. -4- On April 3, 1995, Alvin Speight, defendant-appellant, filed a motion to suppress evidence obtained as a result of the search of his truck on January 30, 1995. On June 16, 1995, the trial court conducted a hearing on defendant-appellant's motion to suppress. At the conclusion of the hearing, the trial court denied defendant- appellant's motion to suppress finding that the police officers in question had sufficient justification to stop and search the vehicle. On August 25, 1995, Alvin Speight, defendant-appellant, entered a plea of no contest to the indictment. On September 15, 1995, the trial court sentenced defendant-appellant to the Lorain Correctional Institution for a term of eighteen months and costs. Execution of the sentence was suspended and defendant-appellant was placed on two years probation. On October 16, 1995, Alvin Speight, defendant-appellant, filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR Alvin Speight's, defendant-appellant's, sole assignment of error states: THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT- APPELLANT'S MOTION TO SUPPRESS EVIDENCE. Defendant-appellant argues, through his sole assignment of error, that the trial court erroneously denied defendant- appellant's motion to suppress evidence. Specifically, defendant-appellant contends that the Fourth District Vice Unit -5- failed to demonstrate a specific and articulable reason to stop and search defendant-appellant's vehicle. Defendant-appellant's only 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 -6- 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. -7- 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 -8- 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 properly denied defendant-appellant's motion to suppress evidence. Under the totality of the circumstances, it is apparent that the search of defendant-appellant's vehicle was reasonable and supported by -9- articulable facts demonstrating that Detective Martin and other members of the Cleveland Police Department's Fourth District Vice Unit had a reasonable suspicion that defendant-appellant was engaged in some form of criminal activity. Illinois v. Gates, supra. Detective Martin testified to the following: defendant- appellant was arrested in an area known for prostitution and drug activity; defendant-appellant was arrested early in the morning (approximately 12:30 a.m.); defendant-appellant was observed picking up a woman who had been standing on Lee Road attempting to flag down passing cars in a manner commonly associated with soliciting prostitution; defendant-appellant drove his truck down a dead-end street and parked with the woman in the vehicle and turned off the lights; and defendant-appellant was observed making suspicious movement after the police made their presence known to him. While it is true that 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, when such movements or gestures are 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; State v. Clancy (Feb. 8, 1996), Cuyahoga App. No. 66902, unreported. -10- In this instance, the actions of defendant-appellant and Christine Malone which were observed in detail by the Cleveland Police Detectives at the scene, combined with defendant- appellant's actions as the police approached the truck clearly amounted to a specific, reasonable and articulable suspicion that criminal activity was taking place. Accordingly, this court finds that the state met its burden of proof as set forth in State v. Bevan (1992), 80 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. -11- 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. SPELLACY, C.J. and NAHRA, J., CONCUR. DAVID T. MATIA 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 .