COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70746 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JAMES WEST : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 5, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-330,235 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor LORI WHITE LAISURE, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: ELIZABETH A. MEERS Attorney at Law 950 Standard Building Cleveland, Ohio 44113 PARRINO, J.: Defendant-appellant James West ("appellant") appeals from his conviction on two counts of drug trafficking in violation of R.C. 2925.03 after his entry of a no contest plea on April 22, 1996, to the charges against him. I. The record reflects that on November 16, 1995, appellant was indicted on two counts of drug trafficking in violation of R.C. 2925.03. Count one charged appellant with possession of cocaine in excess of bulk amount, but less than three times bulk, and count two charged him with possession in preparation for shipment or distribution. On March 26, 1996, appellant filed a motion to suppress the evidence against him. On April 22, 1996, a hearing was held on appellant's motion to suppress, at which testimony from the arresting officers was introduced and the following pertinent facts were adduced. On May 22, 1995, at 1:20 a.m., Cleveland Police Officers Brian Stockwell and Scott Rossoll were on basic patrol in a marked zone car on Fleet Avenue. They were touring the area in search of two suspects involved in a felonious assault shooting of the night before. Through a police radio broadcast the previous night, they - 3 - possessed descriptions of a black male and a white male, suspects who were staying at 6800 Fleet Avenue. The officers had just checked the house when, while driving west on Fleet, they observed a car driven by the appellant travelling toward them with its high beams on. The officers made a quick U-turn to stop the vehicle and issue a ticket for a high beam violation, but appellant turned into the driveway of the residence at 6800 Fleet Avenue, the house that the officers were watching, and stopped the car in the driveway. Both officers testified they were able to observe one white person and one black person in the vehicle. The officers stopped their patrol car on the street. Appellant, a black male, exited the driver's side of the vehicle, and the white person exited the passenger side. Both the driver and the passenger quickly got out of the car and proceeded up the driveway toward the back of the house. The officers yelled to them to stop. At some point, while the officers were following the suspects on foot, each officer realized that the white passen- ger was a female. Although they then knew that the female was not one of the suspects, they were not sure whether the male was one of the suspects. In the driveway, the officers approached them with extreme caution and caught up with appellant, who appeared extremely nervous and, upon request, was unable to produce his driver's license to them. Appellant said, "Hey, the guys you're looking for are in there, Owens and the white guy, Patrick, that shot my buddy. They sometimes stay here." Appellant moved his - 4 - right hand toward his right pants pocket, kept looking around and backing away from the officers, and was uncooperative. The offi- cers testified that these actions made them believe appellant might have a weapon. They stated that, based upon the description of the suspect in the felonious assault shooting, the address of the place where the suspects were staying, the nervousness of the appellant and the gestures of his hand, they had him place his hands against the house while Officer Rossoll did a pat-down search for weapons. Because appellant kept moving his hands during the pat-down, his hands were handcuffed behind his back. During the pat-down, Officer Rossoll felt a bulge in the appellant's right front pocket, which he was able to identify as con-traband simply by feeling it. The item was a baggie containing a substance subsequently proven to be crack cocaine. Based upon the evidence presented at the hearing, the trial court denied appellant's motion to suppress the evidence against him. Upon the court's denial of the motion to suppress the evi- dence, appellant withdrew his plea of not guilty and entered a plea of no contest to each of the charges against him. The court found appellant guilty of both counts in the indictment and sen-tenced him to terms of eighteen months on each count, to run concurrently. Appellant timely appeals and presents three assignments of error for our review. - 5 - ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WHERE THE INVES- TIGATIVE STOP AND SUBSEQUENT SEARCH AND SEI- ZURE WERE IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. II DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARAN- TEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ABUSED THE DISCRETION INHERENT IN ITS ROLE AS TRIER OF FACT AND MISAPPLIED THE LAW, BOTH TO THE PREJUDICE OF DEFENDANT. II. Appellant's first and third assignments of error, having a common basis in law and fact, shall be considered together. In these assignments of error, appellant argues that the trial court erred in denying his motion to suppress the evidence in violation of his constitutional rights and that the trial court abused its discretion and misapplied the law to his prejudice. Specifically, appellant contends that the evidence presented was insufficient to support the criteria required for an investigative stop either as a traffic stop or a stop made as a result of a police radio broad- cast. Alternatively, appellant argues that even if the - 6 - investigatory stop were to be deemed valid, the subsequent pat- down search and seizure of suspected drugs from his person were unconstitutional. Finally, appellant contends that the trial court abused its discretion in both assessing the credibility of the state's witnesses and misapplying the law as it relates to an investigative stop made in response to a police radio broadcast. Appellee, on the other hand, maintains that in viewing the totali- ty of the circumstances, the initial stop was based upon a reason- able suspicion of illegal conduct, a traffic offense, the subse- quent pat-down search was based upona reasonable suspicion that the individual was armed and, finally, the contraband cocaine was discovered by the "plain feel" of a bulge during a valid search by an experienced police officer, who knew from his experience that the bulge was contraband. Initially, we note that the record reflects appellant pled no contest to the charges against him and, as such, he did not waive his right to challenge the court's denial of his motion to sup- press. Crim.R. 12(H). In a suppression hearing, the evaluation of evidence and the credibility of witnesses are issues for the trier of fact. State v. Mills (1992), 62 Ohio St.3d 357. The trial court assumes the role as trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Klein (1991), 73 Ohio App.3d 486. Appellate courts should give deference to the judgment of the trier of fact. State v. George - 7 - (1989), 45 Ohio St.3d 325. Accordingly, an appellate court is bound to accept a trial court's findings of fact if they are supported by competent, credible evidence. Klein, supra. A. Investigative stop The Fourth Amendment to the United States Constitution pro- tects all individuals against unreasonable searches and seizures. United States v. Mendenhall (1980), 466 U.S. 544; State v. McDanial (Oct. 17, 1993), Cuyahoga App No. 65023, unreported. Article I, Section 14, of the Ohio Constitution protects the same interests in a manner consistent with the Fourth Amendment to the United States Constitution. "A warrantless search and seizure is 'per se unreasonable' and can only be justified if it falls within one of the 'jealously guarded and carefully drawn' exceptions to the fourth amendment warrant requirement. Arkansas v. Sanders (1979), 442 U.S. 753, 759-60; Katz v. United States (1967), 389 U.S. 347, 357; State v. Kesler (1978), 53 Ohio St.2d 204, 207." State v. Hilliard (Sep. 22, 1994), Cuyahoga App. No. 66270, unreported, at 7-8. One exception to the warrant requirement is an investigative stop. This exception to the Fourth Amendment warrant requirement allows a police officer to stop an individual if he has a reason- able suspicion, based upon specific and articulable facts, that criminal behavior has occurred or is imminent. Terry, supra. In determining the appropriateness of an investigative stop, a - 8 - reviewing court must view the stop in light of the totality of surrounding circumstances, giving due weight to the officer's experience and training and viewing the evidence as it would be understood by those in law enforcement. State v. Andrews (1991), 57 Ohio St.3d 86, 87-88. 1. Traffic offense In order for a law enforcement officer to make a valid and constitutional stop of an automobile, there must exist a reason- able suspicion by the officer that a traffic law is being violated or that criminal activity is being carried on. Delaware v. Prouse (1979), 440 U.S. 648, 663; State v. Evans (1993), 67 Ohio St.3d 405. The officer only needs specific and articulable facts with which to warrant his further investigation. State v. Bobo (1988), 37 Ohio St.3d 177. In the instant case, the police officers testi- fied that they intended to stop appellant for the traffic viola- tion of driving with his high beams on. Giving deference to the officers' testimony as we must, the court had before it competent, credible evidence with which to support its conclusion that there existed specific, articulable facts that gave the police officers reasonable suspicion to stop the appellant's vehicle. The argu- ments advanced by appellant, which claim that he was already stopped and that the traffic stop was therefore invalid, do not apply to these facts. Further, appellant argues that the police - 9 - had no right to search within the curtilage of the house without a warrant. Appellant's argument is without merit. While we agree that a reasonable expectation of privacy attaches to the curtilage of the home, Oliver v. U.S. (1984) 466 U.S. 1070, the cases that support this proposition are distinguishable from the matter sub judice. This is not a case where the police searched an area within the curtilage of the home without a warrant or a recognized exception to the warrant requirement; rather, the police, during a valid investigative traffic stop, were led onto the private property by appellant, himself. The search in question was a frisk of appellant's person for weapons; no search of the house or its curtilage was conducted. 2. Police Radio Broadcast Appellant further contends that the investigatory stop was made as a result of a police radio broadcast but that, upon chal- lenge, the state failed to show the factual basis for the broad- cast, thereby rendering the stop invalid. A police radio broadcast may provide a basis for an investi- gative stop, State v. Holmes (1985), 28 Ohio App.3d 12; however, at a hearing on a motion to suppress the evidence obtained during the investigative stop, "[w]here the investigative stop is made in response to a police radio broadcast, the burden is upon the state to show the factual basis for the stop ***." State v. Smartt - 10 - (1989), 61 Ohio App.3d 137, 138; see also, State v. Hill (1981) 3 Ohio App.3d 10 and State v. Hilliard, supra. The content of a police broadcast, by itself, is not sufficient to establish a basis for a stop; there must be "competent evidence establishing the reliability of the information leading to the issuance of the police bulletin." Smartt, supra. Cf. State v. Good (1987), 37 Ohio App.3d 174 (on motion to suppress, state was not required to prove factual basis for broadcast which was sole information acted on by police officer in making investigative stop). In the present case, Officers Stockwell and Rossoll were jus- tified and entitled to stop appellant's vehicle for investigative purposes based upon the police radio broadcast. The reasonable- ness of the arresting officers' conduct does not obviate the requirement that evidence be adduced, showing the factual basis for the police broadcast. Smartt, supra; Hilliard, supra. The record reflects that Officer Stockwell testified that he and Officer Rossoll received the description of the suspects from a police radio broadcast and, in addition, through independent corroboration with the officer who actually handled the report of the felonious assault incident of the previous night. The offi- cers testified that they "discussed the issue with the officer involved who actually handled the shooting report the night before." Such independent corroboration assures the reliability of the police radio broadcast. Hilliard, supra. Thus, the state offered testimony of corroboration for the factual basis indicating - 11 - the reliability of the police radio broadcast through the testimony of Officer Stockwell as to his conversation with the officer involved in the investigation of the felonious assault shooting. Accordingly, the state presented sufficient evidence establishing the reliability of the information of the police bulletin. We find, therefore, that two independent bases for a valid investigative stop exist in this matter; (1) a valid traffic stop based upon the observed traffic offense of a high beam violation and (2) a valid investigative stop made in response to a police radio broadcast, the reliability of which was verified by the state at the suppression hearing through the arresting officer's testimony. B. Terry "Frisk" Appellant argues that even if the investigative stop is found to be valid, the pat-down search of his person was improper. Spe- cifically, appellant argues that the decision of the officers to do a pat-down search preceded appellant's nervous gestures and his failure to produce his driver's license. Where a police officer, during an investigative stop, has a reasonable suspicion that an individual is armed based on the totality of the circumstances, the officer may initiate a protec- tive search of the suspect. Bobo, supra, paragraph two of the syllabus. - 12 - Having already determined that the investigative stop was valid, we look to whether these police officers, under the totali- ty of the circumstances, would have reasonable suspicion that appellant was armed and dangerous and would therefore believe a protective search of appellant was warranted. The transcript of the suppression hearing reveals that the officers were motivated by the following possible concerns: (1) the police radio broadcast informed them that a black, male suspect of a felonious assault shooting was staying at the house at 6800 Fleet Avenue, the house appellant was attempting to enter; (2) appellant was unable to produce his driver's license to verify his identity; (3) appellant acted nervously and moved his right hand toward his right pocket; and (4) appellant had some information or knowledge of the shooting of the previous night, as indicated by his comments to the officers regarding the "guys *** police are looking for *** [who] shot my buddy." These facts upon which the police relied are the specific and articulable facts that led the police officers to reasonably conclude that appellant, whose suspicious behavior they were investigating at close range, might have been armed and dangerous. We find that based upon the totality of the circumstances here, a limited protective search of the appellant for a concealed weapon by the police for their personal security was justified. During the valid Terry pat-down search of appellant's outer clothing, crack cocaine was discovered in appellant's right pants - 13 - pocket. Contraband found during a lawful pat-down search will not be suppressed where an officer lawfully pats down the suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent. Minnesota v. Dickerson (1993), 113 S.Ct. 2130. At the suppression hearing, Officer Rossoll testified that based upon his six years of experience, he knew that the bulge he felt in appellant's right pants pocket was not a weapon but was contraband; therefore, the lower court properly denied the motion to suppress the evidence. Appellant's first and third assignments of error are not well taken. III. In his second assigned error, appellant complains that his counsel was ineffective for failing to object to or raise a chal- lenge when the state failed to meet its burden to show the factual basis for the investigatory stop. Specifically, appellant con- tends that if counsel had asserted the requirement of corrobora- tion, then the appellant would have had a "reasonable probability" of success. We do not agree. To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. This standard requires appellant to satisfy a two-part test. First, appellant - 14 - must show that counsel's representation fell below an objective standard of reasonableness. Second, appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different when considering the totality of the evidence that was before the court. Strickland v. Washington (1984), 466 U.S. 668. This test is applied in the context of Ohio law that states that a properly licensed attorney is presumed competent. State v. Hamblin (1988), 37 Ohio St.3d 153. We have determined that the investigatory stop made by the police in the matter before us was a valid investigatory stop on both bases presented by the state. The record reveals that suffi- cient evidence exists to show the corroboration of the information supporting the police radio broadcast; therefore, it cannot be said that, had appellant's counsel asserted the requirement of corroboration, appellant would have had a "reasonable probability" of success. Based upon the foregoing, we conclude that appellant was not denied effective assistance of counsel. Appellant's second assigned error is without merit. Judgment affirmed. - 15 - 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 Cuyahoga County Court of Common Pleas 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,P.J. and LEO M. SPELLACY, J. CONCUR JUDGE *THOMAS J. PARRINO *SITTING BY ASSIGNMENT: Thomas J. Parrino, retired Judge of the Eighth District Court of Appeals, sitting by assignment of the Supreme Court of Ohio. 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 .