COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70434 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION JAMAL WARITH : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 27, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-325848 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JAMES P. BOYLE Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOAN C. LEHMANN 526 Superior Avenue 222 Leader Building Cleveland, Ohio 44114 - 2 - O'DONNELL, J.: Following denial of his motion to suppress evidence, Jamal Warith pled no contest and the trial court found him guilty of possession of cocaine in excess of the bulk amount, preparation of cocaine for shipment, permitting a motor vehicle to be used in committing a felony drug abuse offense, and possession of criminal tools including a pager, money, a 1994 Dodge Spirit motor vehicle and a cellular phone. Warith now appeals from those convictions alleging the trial court erred in denying his motion to suppress the evidence recovered by police at the time of his arrest. On March 28, 1995 around 5:30 p.m., in response to a citizen complaint of males selling drugs, Detectives Charles Stockey and Joan Patrici together with other members of the Cleveland Police Department, units 680, 681, and 683, responded to the southwest corner of Euclid and Green Avenue in Cleveland, Ohio, a shopping area similar to a strip mall, and conducted surveillance of two black males for thirty to forty-five minutes. They observed two black males approach cars pulling into the shopping center area, and engage in a short conversation and a shuffling of arms. As the cars would leave, the two males, who appeared to be working together, would proceed to their own vehicles, a Honda located in the strip-center parking lot or a Dodge Spirit parked across the street at the Pizza Hut, and deposit or retrieve items. They - 3 - then returned to their original position standing in front of the stores waiting for another car. Because he had conducted surveillance at this shopping area on two previous occasions and had made more than three hundred drug arrests in this area, Stockey, a twenty-six year police veteran, concluded the males appeared to be selling drugs and decided to arrest them. When the males saw the police approach, they fled into the Sparkle Town Laundry. Police, however, arrested both Jamal Warith and Neil Nelson and identified them as the two individuals whom they had observed selling drugs. Both denied any connection with a motor vehicle at the time of arrest, but police recovered car keys to the Honda from Nelson and to the Dodge Spirit from Warith; upon searching these vehicles, police discovered $204 in cash in the Honda, and found two plastic bags, one containing 30 rocks and the other containing 36 rocks of cocaine together with $354 in cash in the rented Dodge. The Grand Jury indicted Warith on these charges on July 17, 1995, and on October 25, he moved to suppress the evidence recovered by police at the time of his arrest. The trial court, after conducting a hearing on that motion, denied it, and, subsequently, Warith entered pleas of no contest to the indictment. The court then found him guilty and imposed sentence, but granted a stay of execution of sentence conditioned - 4 - upon the posting of an appeal bond. The matter is now before our court and Warith has assigned three errors for our review. I. The first assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE IN THAT PROBABLE CAUSE DID NOT EXIST TO JUSTIFY THE ARREST OF APPELLANT WARITH OR THE ACCOMPANYING SEARCH OF HIS PERSON. Warith contends that the trial court erred in denying the motion to suppress because the police did not have probable cause to arrest him, and, therefore, the evidence secured from a search of his person should have been suppressed. The state, however, urges that the trial court properly denied the motion to suppress because, based upon the totality of the circumstances, the arrest of Jamal Warith in this case was lawful. The state supports its position by arguing that Detectives Stockey and Patrici had conducted surveillance immediately prior to Warith's arrest and observed him engaging in conduct which, based upon the experience of the officers and their knowledge of the area, and the nature of drug transactions, led them to reasonably conclude that Warith did in fact engage in the sale of drugs. The issue then, presented for our determination is whether the detectives had probable cause to arrest Warith and conduct the subsequent search of his person. - 5 - Probable cause is determined from "the totality of the circumstances." Illinois v. Gates (1983), 462 U.S. 213, 238; U.S. v. Cortez (1981), 449 U.S. 411, 417. In State v. Timson (1974), 38 Ohio St.2d 122, the Ohio Supreme Court addressed the issue of probable cause and held in its syllabus: 1. An arrest without a warrant is constitutionally invalid unless the arresting officer had probable cause to make it at that time. To have probable cause, the arresting officer must have sufficient information derived from a reasonably trustworthy source to warrant a prudent man in believing that a felony has been committed and that it has been committed by the accused. Further, it has been determined that flight in the face of lawful authority supplies grounds for a law enforcement officer to reasonably suspect such individual was engaged in criminal activity and is a relevant factor to consider in establishing probable cause. U.S. v. Pope (1977), 561 F.2d 663, 668-669. In this case, prior to arresting Warith, Detective Stockey responded to the area based on a citizen's complaint, observed him engage in conduct which, based on his years of experience, and the number of prior drug arrests he had made, appeared to be selling drugs. Specifically, Stockey saw Warith stand in front of the stores in the shopping area, approach vehicles, engage in conversation and a shuffling of arms which appeared to be an exchange, return to his own vehicle to deposit or retrieve items and then return to the shopping area to await another vehicle. - 6 - Further, as police approached, Warith fled into the laundromat and, upon arrest, denied any connection with a motor vehicle. Based upon the totality of these circumstances in accordance with State v. Timson, supra, we conclude the police officers had sufficient information derived from an independent citizen complaint, their own observations, their prior experience, and their knowledge of the neighborhood, to believe that Warith had committed a felony offense and, therefore, the police officers' arrest of Warith was supported by probable cause. Since we have determined the police had probable cause to effect Warith's arrest, this is not a basis for the court to deny the motion to suppress evidence. Accordingly, this assignment of error is not well taken. II. Warith's second assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE IN THAT, CONTRARY TO THE COURT'S OPINION, THE SEARCH OF APPELLANT WARITH'S RENTAL VEHICLE CANNOT BE DEEMED AS BEING INCIDENT TO A LAWFUL ARREST. Warith asserts the trial court erred in denying his motion to suppress evidence recovered by police at the time of his arrest alleging the search of his rental vehicle was not incident to a valid arrest. The state argues, however, that the trial court correctly denied the motion to suppress because the vehicle search was not - 7 - only incident to a lawful arrest but also the police had independent probable cause to search the vehicle believing it contained contraband which they could lawfully seize. The issue then for us to determine here is whether the court properly denied the motion to suppress based upon the requirements of the Fourth and Fourteenth Amendments relevant to warrantless searches of automobiles. The United States Supreme Court in U.S. v. Ross (1982), 456 U.S. 798, held in the syllabus: The "automobile exception" to the Fourth Amendment's warrant requirement established in Carroll v. United States, 267 U.S. 132, applies to searches of vehicles that are supported by probable cause to believe that the vehicle contains contraband. In this class of cases, a search is not unreasonable if based on objective facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained. The Ohio Supreme Court stated in State v. Welch (1985), 18 Ohio St.3d 88, that the automobile exception is rooted in the general policy "***that citizens have a lesser expectation of privacy in their vehicles than in private dwellings, and have no degree of privacy when carrying contraband in such vehicles." Id. at 91. Further, that Court noted in State v. Mills (1992), 62 Ohio St.3d 357, that "the mobility of automobiles often creates exigent circumstances, and is the traditional justification for this exception to the Fourth Amendment's warrant requirement." Id. at 367. - 8 - In Chambers v. Maroney (1970), 399 U.S. 42, the court granted certiorari on a writ of habeas corpus arising from claims of an illegal arrest and search of a motor vehicle following an armed robbery of a Gulf service station in North Braddock, Pennsylvania by two men, one of whom wore a green sweater and the other a trenchcoat and who fled with two others in a light blue compact station wagon. Within an hour of a police radio broadcast, police stopped a light blue station wagon and arrested the occupants of that vehicle who at that time included Chambers, and then drove the vehicle to the police station and searched it thoroughly. The court quickly passed the claimed unlawful arrest, finding the police had ample cause to stop a light blue compact station wagon and arrest the occupants, one of whom wore a green sweater and another of whom had a trenchcoat in the car. The court went on to observe, however, that the incriminating evidence found during the vehicle search at the police station could not be justified as incident to arrest: "'Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.' Preston v. United States, 376 U.S. 364, 367 (1964)." The court then stated: "In Preston, supra, the arrest was for vagrancy; it was apparent that the officers had no cause to believe that evidence of crime was concealed in the auto." Id. at 47. - 9 - Then, after referring to Carroll v. United States, supra, the court in Chambers v. Maroney observed that in enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the court has "insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution." The court then concluded by finding no difference between seizing and holding a car before presenting the probable cause issue to a magistrate and carrying out an immediate search of the vehicle without a warrant. The court stated that, "Given probable cause to search, either course is reasonable under the Fourth Amendment." Applying that reasoning to the facts in this case, we do not believe the trial court erred in denying the motion to suppress the evidence uncovered from searching the Honda or the Dodge. Here, the arresting officers themselves observed the appellant engage in what they believed to be illegal sales of drugs after which the appellant went to the respective vehicles either to deposit the sale proceeds or retrieve additional rocks of cocaine for the anticipated next sale. Clearly, the police officers had probable cause to believe those vehicles contained contraband which should be seized. Based on the facts contained in the record before us, no constitutional violation occurred and the trial court correctly overruled the motion to suppress. Accordingly, this assignment of error is overruled. - 10 - - 11 - III. The third assignment of error states: THE TRIAL COURT ERRED TO THE EXTENT THAT ITS DECISION TO DENY APPELLANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE WAS BASED UPON THE 'EXCEPTION OF ABANDONMENT". This assignment of error becomes moot based upon the case authority cited in reference to the second assignment of error and in accordance with App. R. 12(A)(1)(c) we do not need to address it. In accordance with the foregoing, the judgment of the trial court is affirmed, the stay of execution is exhausted and the appeal bond is revoked. Accordingly, the matter is remanded to the trial court for imposition of sentence. Judgment affirmed. - 12 - 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, 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. SWEENEY, C.J., and KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .