COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71852 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ERIC ALLEN : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 9, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-340764. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor James E. Valentine Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Myron P. Watson, Esq. 310 Lakeside Avenue, N.W. 595 Courthouse Square Building Cleveland, OH 44113 2 DAVID T. MATIA, P.J.: Eric Allen, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-340764, in which the trial court overruled defendant- appellant's motion to suppress evidence. Defendant-appellant assigns three errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On July 17, 1996, the Cuyahoga County Grand Jury returned a single count indictment charging defendant-appellant with drug abuse, in violation of R.C. 2925.11. On August 1, 1996, defendant- appellant was arraigned whereupon he entered a plea of not guilty to the indictment. On September 17, 1996, defendant-appellant filed a motion to suppress evidence in which he maintained that the drugs seized by security guards at Longwood Estates should be excluded as evidence due to the fact that they were discovered as a result of an illegal search. On November 7, 1996, the trial court conducted an evidentiary hearing on defendant-appellant's motion to suppress. Prior to the beginning of the state's case, the trial court determined that, for purposes of the motion to suppress, the security guards employed by Garrison Security Services to guard Longwood Estates were, in fact, law enforcement officers pursuant to R.C. 2901.01(K)(2). (T. 38.) The state's case consisted of the testimony of a single witness, Lieutenant Robert Vales, head of security for Garrison 3 Security Services. Mr. Vales testified that on May 8, 1996, he and his partner, Wonricus Townsend, were assigned to 3350 Community, Cleveland, Ohio, at the Longwood Estates as security guards for the apartment building. On that night, security had received a complaint about alleged drug activity in a vacant first floor apartment. Upon inspection, Mr. Vales and his partner discovered four individuals in a vacant first floor apartment. (T. 42.) The security officers knew the apartment was vacant as the prior tenant had recently been evicted. (T. 52, 86.) The officers proceeded to enter the open door of the apartment in question and ordered the individuals inside to stand. The officers then conducted a pat-down search to ensure their own personal safety. (T. 44.) No weapons or other contraband were discovered as a result of the initial pat-down search. At this point, defendant-appellant proceeded to enter the apartment. Mr. Vales stated that defendant-appellant seemed somewhat surprised to see the officers in the apartment and froze. (T. 44.) The officers then conducted a pat-down search of defendant-appellant as they had done with the other four individuals and discovered what appeared to be crack cocaine in defendant-appellant's pants' pocket. (T. 46.) Defendant-appellant responded only that he was not the owner of the illegal drugs. (Tr. 46.) The security officers placed defendant-appellant in custody for trespassing and suspected possession of illegal drugs 4 and waited for the arrival of members of the Cleveland Police Department. The defense case consisted of the testimony of Wonricus Townsend, Mr. Vales' partner on the night in question, and Eric Allen, defendant-appellant. Officer Townsend's testimony did not differ from that of Lieutenant Vales in any significant respect with the following two exceptions. Officer Townsend maintained that Lieutenant Vales conducted the pat-down search of defendant- appellant and subsequently discovered the suspected cocaine while Lieutenant Vales had testified that Officer Townsend had actually searched defendant-appellant. In addition, Officer Townsend made a reference to the fact that defendant-appellant had pulled the cocaine from his own pocket. (T. 91.) Lieutenant Vales did not make such a reference during his testimony. Defendant-appellant testified that he and other individuals had been staying in the vacant apartment for two days prior to the arrest doing drugs. (T. 99.) Defendant-appellant left the apartment on the night in question in order to go to the bank to get more money for the purchase of crack cocaine. (T. 103.) Upon defendant-appellant's return to the apartment, he discovered the security officers inside. Defendant-appellant allegedly stated that he merely wanted to get a bag that he had left in the apartment and leave. (T. 106.) However, the officers requested identification from defendant-appellant which he provided in the form of a driver's license. (T. 95.) Defendant-appellant was then handcuffed and told to have a seat. 5 Defendant-appellant testified further that, as he was sitting down, he attempted to scratch his back arousing suspicion among the officers that he was possibly reaching for something. (T. 107, 108.) At this point, Officer Townsend allegedly conducted a pat- down search of defendant-appellant and discovered the cocaine. Defendant-appellant was then turned over to the Cleveland Police Department. (T. 97.) At the conclusion of the hearing, the trial court overruled defendant-appellant's motion to suppress evidence finding that the search in question was conducted with reasonable probable cause as a result of a valid custodial detention arising out of defendant- appellant's alleged trespassing in the vacant apartment. (T. 126.) Subsequently, defendant-appellant withdrew his formerly entered plea of not guilty and entered a plea of no contest to the underlying indictment. After completion of a pre-sentence investigation and report, defendant-appellant was sentenced to a term of 18 months incarceration at the Lorain Correctional Institution. On December 26, 1996, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. The instant appeal now follows. II. FIRST AND SECOND ASSIGNMENTS OF ERROR Eric Allen's defendant-appellant's, first assignment of error states: THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THE POLICE OFFICERS HAD INSUFFICIENT BASIS TO MAKE AN INVESTIGATORY STOP AND FRISK OF THE 6 DEFENDANT WHICH WAS VIOLATIVE OF HIS FOURTH AMENDMENT RIGHTS. Eric Allen's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THAT THE POLICE OFFICERS LACKED PROBABLE CAUSE TO ARREST AND SUBSEQUENTLY SEARCH THE APPELLANT WHICH WAS VIOLATIVE OF HIS FOURTH AMENDMENT RIGHTS. Having a common basis in both law and fact, this court shall address defendant-appellant's first and second assignments of error simultaneously. 7 . THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS EVIDENCE. Defendant-appellant argues, through his first and second assignments of error, that the trial court improperly overruled his motion to suppress evidence. Specifically, defendant-appellant maintains that the security officers in question had no probable cause to detain him let alone conduct a pat-down search for weapons and/or contraband. According, it is defendant-appellant's position that the search itself violated his rights under the fourth amendment to the United States Constitution and the results of that search should have been properly excluded from the evidence. Defendant-appellant's first and second assignments of error are not well taken. . STANDARD OF REVIEW FOR SUPPRESSION OF EVIDENCE. 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. 8 The Fourth Amendment to the United States Constitution provides in part: the right of the people to 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 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.E.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. 9 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 States 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. 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 justificationfor 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. 10 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 be hidden; (3) Sergeant Mandzak, one of the offices 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 Bob's disappearing from view then reappearing when the police car was close, looking directly at the officers and then bending down as if to hide 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. 11 . THE TRIAL COURT DID NOT ERR IN OVERRULING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS EVIDENCE. In the case sub judice, a review of the record from the trial court demonstrates that the trial court properly overruled defendant-appellant's motion to suppress evidence. Under the totality of the circumstances, it is apparent that the security officers search of defendant-appellant was reasonable and supported by articulable facts demonstrating that Lieutenant Vales and Officer Townsend had a reasonable suspicion that defendant- appellant was engaged in some form of criminal activity. Illinois v. Gates, supra. The security officers both testified that defendant-appellant voluntarily entered a vacant apartment where suspected drug activity had been taking place. Defendant-appellant had no legal right to be inside that apartment for any reason and could therefore be properly classified as a trespasser. At this point, the security officers on the scene had probable cause to detain defendant-appellant and conduct a pat-down search for their own safety. State v. Speight (June 13, 1996), Cuyahoga App. No. 69690, unreported. Even if this court were to assume that defendant-appellant was not searched until after he had been placed in custody and handcuffed, it is clear from defendant-appellant's own testimony that probable cause existed for the search. Defendant-appellant testified as follows: . Or you're saying that handcuffed you without patting you down first? 12 . Right. . They sat you on the floor. . They sat me on the couch. . At some point you squirmed around and they reached in and took crack out of your pocket? . No, I was not squirming. I was doing like this. (Indicating) He must have thought I was reaching for something. That's when he told me to stand up. Well, I couldn't stand, so they picked me up. They picked me up and then that's when they searched me. They patted me down and searched me. . Mr. Allen, you just said that he must have thought you were reaching for something. So, is it fair to say -- . They thought that I was reaching for something. . So, is it fair to say, it was reasonable for them to think you were reaching for something? . Well, yeah you can say that. (T. 107, 108.) 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, when such movements or gestures are made by an individual in seeming response to the approach of a police officer, the addition of other factors may give rise to probable cause for a search. State v. Kessler, supra at 209; State v. Clancy (Feb. 8, 1996), Cuyahoga App. No. 66902, unreported. 13 In this instance, the admitted actions of defendant-appellant clearly amounted to a specific, reasonable and articulable suspicion that defendant-appellant was involved in criminal activity. 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 overruled defendant- appellant's motion to suppress evidence. Defendant-appellant's first and second assignments of error are not well taken. III. THIRD ASSIGNMENT OF ERROR Eric Allen's, defendant-appellant's third and final assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FAILED TO PROVIDE FACTUAL FINDINGS AND CONCLUSIONS AS PROVIDED BY CRIMINAL RULE 12(E), OF THE OHIO RULES OF CRIMINAL PROCEDURE. . THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED BY FAILING TO ISSUE FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF ITS DECISION. Defendant-appellant argues, through his third and final assignment of error, that the trial court erred in failing to issue findings of fact and conclusions of law as requested by defense counsel pursuant to Crim.R. 12(E). Defendant-appellant maintains that without such findings, the appellate court cannot properly determine the basis for the trial court's decision. Defendant-appellant's third and final assignment of error is not well taken. . CRIM.R. 12(E). 14 Crim.R. 12(E), upon which defendant-appellant relies, states: (E) Ruling on motion. The court may adjudicate a motion based upon briefs, affidavits, the proffer of testimony and exhibits, a hearing, or other appropriate means. A motion made pursuant to divisions (B)(1) to (B)(5) of this rule shall be determined before trial. Any other motion made pursuant to division (B) of this rule shall be determined before trial whenever possible. Where the court defers ruling on any motion made by the prosecuting attorney before trial and makes a ruling adverse to the prosecuting attorney after the commencement of trial, and the ruling is appealed pursuant to law with the certification required by division (J) of this rule, the court shall stay the proceedings without discharging the jury or dismissing the charges. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record. In State v. Waddy (1992), 63 Ohio St.3d 424, 443, the Ohio Supreme Court addressed the exact issue raised by defendant- appellant and determined that, where the trial court record is sufficient to allow full review of the suppression issues, the trial court is not required to issue findings of fact and conclusions of law pursuant to Crim.R. 12(E) on the denial of a motion to suppress evidence. See, State v. Brewer (1990), 48 Ohio St.3d 60. . THE TRIAL COURT DID NOT ERR BY FAILING TO ISSUE FINDINGS OF FACT AND CONCLUSIONS OF LAW. In this case, a review of the record from the trial court reveals that the suppression hearing transcript, which contains 128 pages of testimony and argument, provides more than sufficient 15 information to allow a complete review of the suppression issues raised by defendant-appellant as well as the full basis for the trial court's ruling. Accordingly, the trial court's failure to issue findings of fact and conclusions of law pursuant to Crim.R. 12(E) does not constitute reversible error. Zanesville v. Osborne (1992), 73 Ohio App.3d 580; Waddy, supra. Defendant-appellant's third and final assignment of error is not well taken. Judgment of the trial court is affirmed. 16 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. PORTER, J. and SPELLACY, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .