COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70650 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : JAMIE HEGWOOD : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 24, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CP CR-328824 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DANIEL SCULLY, ESQ. CUYAHOGA COUNTY PROSECUTOR ASST. PUBLIC DEFENDER BY: BLAISE D. THOMAS, ESQ. 100 Lakeside Place ASSISTANT COUNTY PROSECUTOR 1200 West Third Street 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- DYKE, J.: Appellant, Jamie Hegwood, is appealing his conviction for drug trafficking (R.C. 2925.03) and possession of criminal tools (R.C. 2923.24). Appellant pled no contest to these charges. He asserts the trial court erred in denying his motion to suppress. For the following reasons, we affirm. Detective Glover gave the following testimony: On August 16, 1995, Detective Glover of the Cleveland Police Vice Unit was patrolling the area of 107th Street and St. Clair in an unmarked vehicle driven by Detective Robertson. Detective Jones and Detective Patrici were following in an unmarked vehicle. The area was a high drug trafficking area where people commonly carried weapons. It was 7:30 p.m., and there was still some light outside. A red Chevrolet S-10 pickup truck was double parked on the street, blocking the officers' way. The truck was parked in front of a residence, where a group of people were sitting on the porch. The police beeped their horn in order to see if the owner of the truck was present. Appellant came forward and said it was his truck. When Glover told appellant to move the truck, appellant said the truck was getting repaired and he was not about to move it. Appellant was arguing with the police. Glover stated he was going to issue a citation. Appellant entered the truck and attempted to move it, but Glover instructed him not to do so until Glover wrote the citation. Glover approached the driver's side window and requested -3- appellant's driver's license. Appellant grabbed a black cloth bag and fumbled around in the bag. Appellant was agitated and upset. Detective Jones, who was standing at the passenger side window, reached in and grabbed the black bag. Jones removed the contents of the bag. It contained appellant's driver's license and sixteen small plastic bags of marijuana. A pager and $50 cash were discovered on appellant's person. Detective Jones testified that appellant walked slowly over to the truck, taking an unusual amount of time. When appellant was inside the truck, he started moving faster. Appellant grabbed the pouch from the passenger seat, put it between his legs and frantically fumbled in the bag. In Jones' experience, when people move in that fashion, they have weapons. Jones became concerned for his safety, and wanted to search the bag for weapons. He grabbed the bag through the open passenger window. On first touch, he could tell the bag contained plastic bags of marijuana. Appellant testified that the car was not double parked, but was parked on the wrong side of the street. When requested by the police, he immediately went to move his truck. The truck would not start. Glover said, Why are you driving this piece of shit if it won't start. At that point, a verbal confrontation occurred. Glover said he was going to write a ticket, and asked for appellant's license. Appellant pulled his license out of the bag and gave it to Glover. He put the bag down on the passenger seat. Then, Jones walked up to the truck and asked to see the bag. Before appellant could answer, Jones reached in and grabbed the -4- bag. Appellant's sole assignment of error states: THE TRIAL COURT ERRED BY DENYING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE WHICH WAS SEIZED WITHOUT A WARRANT AND IN THE ABSENCE OF ANY RECOGNIZED EXCEPTION TO THE WARRANT REQUIREMENT AND THEREBY VIOLATED HIS RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES IN VIOLATION OF SECT. 14, ART. I OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. An exception to the warrant requirement arises when a police officer reasonably concludes that criminal activity is afoot, and reasonably believes that the suspect is armed and dangerous. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. If an officer observes a traffic violation, that provides reasonable justification that criminal activity is afoot, and justifies a stop. See Michigan v. Long (1983), 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201. During the course of a traffic stop, the officer may search the passenger compartment of the vehicle if the officer possesses a reasonable belief the suspect is dangerous and may gain immediate control of weapons. Id. at 1049-1051, citing Terry. The officer's belief the suspect is armed must be based on specific and articulable facts and the rational inferences from those facts. The issue is whether a reasonably prudent person in the circumstances would be warranted in his belief that his safety or the safety of others was in danger. Id. If the officer reasonably believes the suspect is armed, the search may include any containers in the passenger compartment capable of containing a -5- weapon. Id.1 The reasonableness of the officer's suspicion that the suspect is armed and dangerous is to be determined based on the totality of the circumstances. State v. Bobo (1988), 37 Ohio St.3d 177. These circumstances include the inferences and deductions of police officers, which may elude an untrained person. State v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621, State v. Andrews (1991), 57 Ohio St.3d 86, State v. Bobo, supra. Furtive gestures, which in the officer's experience indicate an attempt to hide a weapon, should be considered, although furtive gestures alone are insufficient. Bobo, supra. Similarly, the fact that the incident occurred in a high crime area is a factor to consider, Bobo, supra, although standing alone, this factor is insufficient. See State v. Green (1991), 75 Ohio App.3d 284. In the present case, the incident took place in a drug trafficking area, where weapons were often carried. The appellant engaged in a verbal confrontation with police, and was upset and agitated. Appellant moved slowly to the vehicle, and once inside the vehicle, moved quickly. He frantically fumbled with the black bag. Detective Jones stated that in his experience, people move in this fashion when they are going to grab a weapon. This inference is a reasonable inference based upon Jones' experience as a police officer. These facts were sufficient to support the trial court's 1 Whether the grabbing of appellant's bag is characterized as a search or a seizure, the analysis is the same and is based on Terry and subsequent decisions. See United States v. Place (1983), 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110. -6- finding that Jones had a reasonable suspicion appellant was armed and dangerous. Appellant asserts that Detective Jones did not draw his weapon or command appellant to freeze, so Jones did not believe appellant had a gun. While Jones did not do these things, he did pull the bag away from appellant, which is an action consistent with protecting the officers' safety. Appellant also asserts that the police ordered appellant to move the truck, so the police created the dangerous situation. The issue is whether the police reasonably suspected the appellant was armed, and it is immaterial that the police's orders unwittingly put appellant in proximity to the suspected gun. Appellant argues that the facts were more analogous to two cases where the trial court granted the motion to suppress and the appeals court affirmed. Where the suspect was illegally parked in a high crime area, and fumbled in his pocket for his I.D., the facts were insufficient to give rise to a reasonable belief the suspect was armed. State v. McKinney (Mar. 11, 1993), Cuyahoga App. No. 64063, unreported. The present case is distinguishable, because the appellant had engaged in a verbal confrontation with police, and his frantic actions were consistent with searching for a gun. In State v. Turner (Aug. 16, 1990), Cuyahoga App. No. 59066, unreported, the defendant had engaged in a verbal confrontation, but the confrontation had ended at the time of the search. Also, the defendant was not in his car when it was searched. In the present case, appellant was upset and agitated -7- during the entire encounter with police. The appellant was actually in the car, with his hand in the bag, and had access to what police suspected was a gun. Detective Jones had a reasonable suspicion the bag contained a gun, and was justified in grabbing the bag. Upon obtaining the bag, he knew by sense of touch that the bag contained marijuana. Jones could open the bag and seize its contents due to the plain feel exception to the warrant requirement. See Minnesota v. Dickerson (1993), 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334, State v. Crawford (Sept. 23, 1993), Cuyahoga App. No. 64607, unreported , State v. West (June 5, 1997), Cuyahoga App. No. 70746, unreported. Appellant urges that the decision of the trial court was against the manifest weight of the evidence. This court should examine the credibility of witnesses when determining if the denial of the motion was against the manifest weight of evidence. State v. Assad (1992), 83 Ohio App.3d 114, 117. The credibility of witnesses is primarily for the trier of fact, however. State v. Bevan (1992), 80 Ohio App.3d 126, State v. Thompkins (1997), 78 Ohio St.3d 380, concurring opinion, citing State v. DeHass (1967), 10 Ohio St.2d 230. The trial court will only be reversed if the evidence weighs heavily against the conviction. Id. Appellant asserts that Ornelas v. United States (1996), --- U.S.---, 116 S.Ct. 1657, 134 L.Ed.2d 911, holds that the appeals court should afford no deference to the trial court's credibility determination. Ornelasholds that the determination that the police officer had a -8- reasonable suspicion is subject to de novo review, but due weight is given to the trial court's assessment of credibility. Id. We will now examine whether the evidence here was against the manifest weight of the evidence. According to appellant, Jones' testimony was not credible because it is impossible that Jones could reach through the passenger window and grab an object from between appellant's legs when appellant was sitting in the driver's seat. There was no evidence showing that it was impossible for Detective Jones to grab the bag from between appellant's legs. Jones' testimony was consistent, and corroborated in part by Detective Glover's testimony. Appellant's testimony contained some contradictions. The trial court did not lose its way in finding the detectives' testimony more credible, and in finding that Jones had a reasonable suspicion appellant had a weapon. See generally, State v. Martin (1983), 20 Ohio App.3d 172. The trial court's decision to deny the motion to suppress was supported by sufficient evidence and was not against the manifest weight of the evidence. The trial court properly denied the motion to suppress. Accordingly, appellant's assignment of error is overruled. The decision of the trial court is 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. DAVID T. MATIA, P.J., AND ROCCO, J., CONCUR. ANN DYKE JUDGE 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 of decision by the .