COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71660 STATE OF OHIO ) ACCELERATED DOCKET ) Plaintiff-Appellant ) JOURNAL ENTRY ) -vs- ) AND ) MARK A. GUARDADO, SR. ) OPINION ) Defendant-Appellee ) PER CURIAM Date of Announcement of Decision JULY 31, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-340608 Judgment Affirmed Date of Journalization Apppearances: For Plaintiff-Appellant: For Defendant-Appellee: STEPHANIE TUBBS JONES JAY MILANO, ESQ. Cuyahoga County Prosecutor 2639 Wooster Road JOHN R. MITCHELL, Asst. Rocky River, Ohio 44116 Prosecuting Attorney EDWARD O. PATTON, Asst. Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 2 PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App. R. 25. Plaintiff-appellant State of Ohio appeals pursuant to Crim.R. 12(J) from the trial court's order granting defendant-appellee Mark A. Guardado Sr.'s motion to suppress evidence. We find no error and affirm. On July 10, 1996, defendant was indicted for carrying a concealed weapon (R.C. 2923.12), to wit, a 9mm. Smith and Wesson handgun. Defendant filed a motion to suppress and a hearing was held at which defendant's motion was granted. The State's appeal presents two assignments of error which will be addressed together as they are interrelated. I. THE TRIAL COURT ERRED IN SUPPRESSING THE SEARCH OF THE DEFENDANT AS IT WAS MADE INCIDENT TO A LAWFUL ARREST. II. THE SEARCH OF THE APPELLEE WAS REASONABLE AS PATROLMAN MARES HAD A REASONABLE SUSPICION THAT THE APPELLEE WAS ARMED AND DANGEROUS. The facts leading to the underlying arrest are for the most part uncontested. On June 13, 1996, at approximately 6:50 a.m. on a Sunday morning, two Brecksville police officers observed two motorcycle drivers on the side of the road. One of the motorcycles was broken down. Both motorcyclists were wearing Hell's Angels jackets. The officers pulled over to assist. Another police cruiser also arrived to assist. The three officers engaged the two "bikers" in conversation and learned they were traveling across the country. The officers 3 asked for identification which was satisfactory, and both license plates were put through the system to check for warrants. No warrants were found. The police told the bikers to move the disabled motorcycle off the road. Defendant sat on a nearby guardrail as his companion pushed his motorcycle off of the road onto the berm. As defendant sat on the guardrail, one of the officers observed a knife sheath protruding from beneath the bottom of defendant's jacket and attached to his belt. The officer then asked to see the knife and the defendant took the knife out of the sheath and placed it on the ground. At this point, the officer testified that he was going to arrest the defendant for having a concealed weapon. The officers asked defendant if he had any other weapons and told him that they were going to pat him down. The officers also placed their hands on their weapons at this point. Defendant was patted down and the 9mm. Smith and Wesson was found in his jacket. He was cuffed and arrested, not for possession of the knife, but the handgun. Defendant argued at the suppression hearing that the search that resulted in finding the gun was illegal in that the knife was neither a weapon nor concealed within the meaning of the statute and the pat down leading to discovery of the gun was not warranted. The trial court agreed and granted defendant's motion to suppress. The court in granting the motion held: The basis for the arrest, according to the officer's testimony, was that he observed a 4 knife in a sheath, approximately a six or seven-inch knife, which was State's Exhibit 1 on his belt at some point when Mr. Guardado was sitting on the guardrail. During the course of the suppression motion, while Mr. Guardado did not take the stand, he did demonstrate for the Court the knife on his belt, and the knife on his belt with the jacket on, which was State's Exhibit 5. It is clearly observable, at least four or five inches of that knife are clearly observable. So the question before the Court is whether or not the mere possession of an otherwise lawful article was sufficient to justify the probable cause requirement for purposes of the arrest in this case. From my reading of the case law, there was not probable cause from the totality of the circumstances that I've already articulated, so I'm going to grant the motion to suppress, *** (Tr. 62-63). Contrary to the trial court's rulings, the State contends the knife was a concealed weapon and that the search was reasonable and incident to a lawful arrest. We find the State's argument is without merit. The scope of our review on a motion to suppress was set forth in State v. Harris (1994), 98 Ohio App.3d 543, 546: It is axiomatic that the evaluation of the evidence and the credibility of witnesses at a suppression hearing are issues for the trial court as fact finder. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, 981-982; State v. Fanning (1982), 1 Ohio St.3d 19, 20 1 OBR 57, 57-58, 437 N.E.2d 583, 584-585. Appellate courts will defer to the factual findings of the trial court when such findings are supported by competent, credible evidence. State v. Klein (1991), 73 Ohio App.3d 486, 488, 597 N.E.2d 1141, 1142-1143; 5 State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. Accepting the findings of fact of the trial court as true, an appellate court must then independently determine as a matter of law, without deference to the trial court's conclusion, whether the trial court erred in applying the substantive law to the facts of the case. Klein, supra; State v. McCulley (Apr. 28, 1994), Cuyahoga App. No. 64470, 1994 Ohio App. LEXIS 1788, unreported, 1994 WL 164013. See also our opinions to the same effect in State v. Bradley (1995), 101 Ohio App.3d 752, 755; and State v. Curry (1994) 95 Ohio App.3d 93, 96. The only factual issue that appears in dispute is the extent to which the knife sheath was visible to the police. The State contends it was partially concealed because only two inches of the sheath was visible. However, at the suppression hearing, the defendant demonstrated to the court how he was wearing the knife sheath on the day in question. The trial court found that the knife was "clearly observable, at least four or five inches of that knife are clearly observable." Resolution of this appeal turns upon the legal status of the knife described. The knife itself is not in the record before us, nor is there a picture of the knife. From the testimony, it would appear to be akin to a hunting knife, in a sheath, attached to defendant's belt. The impetus for defendant's arrest was for carrying a concealed weapon under R.C. 2923.12, which states: (A) No person shall knowingly carry or have, concealed on his or her person or concealed ready at hand, any deadly weapon or dangerous ordnance. 6 Although various weapons are defined as dangerous ordnance by the statute (R.C. 2923.11(K)(1-6), a knife of the character described is not among them. A deadly weapon in turn is defined by R.C. 2923.11(A) as: any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon. The arresting officer testified that as soon as he saw the knife sheath he intended to arrest defendant. In other words, the officer concluded that the knife was both "concealed" and "a deadly weapon." Under Ohio law, however, a knife, even when concealed on an individual's person, is not presumed to be a deadly weapon. Columbus v. Dawson (1986), 28 Ohio App.3d 45, 46; State v. King (1982), 8 Ohio App.3d 40, 41; City of Mayfield Heights v. Greenhoft (Nov. 14, 1985), Cuyahoga App,. No. 49741, unreported. In order to establish that a knife is a deadly weapon, the State must prove either: (1) the knife was designed or specially adapted for use as a weapon; or (2) the defendant possessed, carried or used the knife as a weapon. Dawson, supra. In cases involving concealed weapons, the defendant's state of mind as to the alleged weapon must be inferred from the totality of the circumstances surrounding the alleged crime. State v. Workman (1992), 84 Ohio App.3d 534, 536; State v. Hardin (1984), 10 Ohio App.3d 243, 245. However, there is no evidence in the record to establish or even suggest that the knife was designed or 7 specially adapted for use as a weapon, or that the defendant carried it for that purpose. The trial court held: (1) the knife was an "otherwise lawful article," i.e., there was no evidence it was a "deadly weapon"; (2) it was "clearly observable" when worn by the defendant, i.e., it was not "concealed"; and (3) from a totality of the circumstances, there was no probable cause to arrest defendant. Although case law holds that a partially concealed weapon may present probable cause for violation of the concealed weapon statute, in such cases, "the question of fact to be decided by the trier of fact is whether the evidence showed that ordinary observation would give no notice of the weapon's presence." State v. Hassing (Jan. 27, 1994), Cuyahoga App. No. 63838, unreported at 10; State v. Giles (May 12, 1994), Cuyahoga App. No. 63309, unreported at 4. Put another way: Concealed means the [weapon] was not discernable by ordinary observation. State v. Brown (Sept. 30, 1993), Cuyahoga App. No. 63817, unreported at 5, citing State v. Bowman (1992) 79 Ohio App.3d 407, 412. Here, the trial court found the knife to be clearly observable. Given our duty of deference to the trial court s fact finding responsibilities, we see no basis for disturbing the trial court's order suppressing the evidence discovered following the improper arrest. The State's Assignments of Error I and II are overruled. Judgment affirmed. 8 9 It is ordered that appellee recover of appellant his 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 Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, PRESIDING JUDGE DIANE KARPINSKI, JUDGE JOSEPH J. NAHRA, JUDGE, DISSENTS. (See attached dissenting opinion) 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 11, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71660 STATE OF OHIO, : : Plaintiff-Appellant : : D I S S E N T I N G vs. : : O P I N I O N MARK A. GUARDADO, SR., : : Defendant-Appellee : DATE: JULY 31, 1997 NAHRA, J., DISSENTING: I respectfully dissent from the majority s resolution of this case and would reverse the trial court s order suppressing the evidence found on appellee s person and remand this cause for further proceedings. The majority errs, as did the trial court, by applying the wrong standard of review in assessing whether the police officer had probable cause to arrest appellee for carrying the knife as a concealed weapon. A warrantless arrest based upon probable cause is not made unlawful by a subsequent finding that the accused is acquitted or innocent of the charges resulting from the arrest. In this case, the trial court and the majority opinion rely on facts which are determinative of whether appellee committed the crime of carrying the knife as a concealed weapon. However, the issue before the court at the suppression hearing was not whether appellee was 2 actually guilty of carrying the knife as a concealed weapon in violation of R.C. 2923.12; but rather the court was to determine whether the arresting officer had probable cause to arrest appellant for carrying the knife in violation of R.C. 2923.12. For a warrantless arrest to be lawful, the arresting officer must have sufficient information to warrant a prudent man in believing that a felony has been or is being committed by the accused. State v. Nelson (1991), 72 Ohio App.3d 506, 508 (citing Henry v. United States (1959), 361 U.S. 98; Brinegar v. United States (1949), 338 U.S. 160; State v. Hill (1977) 52 Ohio App.2d 393, 370 N.E.2d 775). In other words, probable cause does not require that the arresting officer be certain a felony is being committed; it requires only that the officer have a reasonable belief that a felony is being committed. This court and others have held that a partially concealed weapon may be found to be concealed in violation of R.C. 2923.12. See, e.g., State v. Almalik (1987) 41 Ohio App.3d 101, 534 N.E.2d 898, syllabus; State v. Herda (Nov. 2, 1995), Licking App. No. 95-CA-11, unreported. As stated by the majority at p. 8, the test for concealment is whether ordinary observation revealed the weapon s presence. Even though the trial court found as a matter of fact that the knife was clearly observable in the courtroom setting, the knife was still in fact partially concealed as it protruded from underneath appellee s jacket. Moreover, the knife was not patently observable to the arresting officer, as he testified that he did not notice until after interviewing 3 appellee and running warrant checks on appellee, his companion, and their motorcycles. Because the knife was partially concealed and was not clearly observable to the officer in his encounter with appellee, the officer had sufficient information to believe that the knife was concealed in violation of R.C. 2923.12. Since the knife was clearly capable of inflicting death, the sole remaining question would be whether it was reasonable for the officer to believe that the knife was either designed, or specially adapted for use as a weapon, or possessed, or carried, or used as a weapon. Again, this was not the trial. It was not necessary to prove that the knife satisfied all of the elements of the statutes in question, but only that the officer was reasonable in such a belief. .