COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73795 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : JUAN PITCHFORD : OPINION : Defendant-Appellant : Date of Announcement of Decision: NOVEMBER 25, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-352593 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GEORGE J. SADD, Assistant RICHARD A. BELL, Assistant Prosecuting Attorneys 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES R. WILLIS, ESQ. Courthouse Square Bldg., #595 310 Lakeside Avenue, N.W. Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Defendant-appellant Juan Pitchford appeals from his convictions following no contest pleas to possession of drugs (R.C. 2925.11), possession of criminal tools (R.C. 2923.24), carrying a concealed weapon (R.C. 2923.12), and having a weapon while under disability (R.C. 2923.13). Defendant's sole assignment of error is that the trial court erred in denying the motion to suppress evidence obtained from a stop and search of the vehicle in which defendant was traveling and in which drugs and a weapon were found. We find no error and affirm. Defendant's involvement in the alleged crimes arose out of a surveillance and stake out of a suspected drug house near 102nd Street and Westchester in Cleveland. The narcotics detectives and police SWAT team were poised on April 1, 1997, at approximately 2:45 p.m., pursuant to a warrant, to break into and search the residences and vehicles on the premises and any person present at 10402 and 10404 Westchester Avenue. No legal challenge is made to the validity of the warrant or the processes relating to its issuance. At the suppression hearing, Det. Jamal Ansari testified to his long experience in narcotics enforcement and his role in obtaining the search warrant. He was part of the surveillance team that was going to execute the warrant at that time and place. Det. Ansari explained that defendant Juan Pitchford lived at 10404 Westchester and is a brother-in-law to Ronald Moore because -3- Pitchford is married to Moore's sister, Valerie Pitchford. Eloise Moore, the mother of Ronald and Valerie, lives next door at 10410 Westchester in a renovated home. Det. Ansari testified that just prior to the execution of the warrant, he and Det. Gercar were observing the houses from different vantage points but were in radio contact with each other. Det. Ansari testified that Det. Gercar notified him via radio that a male arrived at the location and exited a Jeep with a box and went into the house located at 10402/10404 Westchester. A person later identified as Darryl Stanton opened the door for this male, who entered the house with this open box, left the box inside the home and exited the house, got back in the Jeep and drove away westbound on Westchester. A few minutes later, defendant Pitchford and Ronald Moore exited the house carrying the same box. Pitchford placed the box on the porch and Moore stayed with it. Pitchford then went to the 10410 Westchester address (his mother-in-law's house). Moore carried the box out to a van and defendant Pitchford came outside from his mother-in-law's house and unlocked this van and both men entered with the box. Moore and Pitchford left westbound on Westchester with Pitchford driving. Det. Ansari testified he was aware from the briefing prior to executing the search warrant that there had been surveillance on the home by Sgts. Gercar and Charchenko. Also, he learned these detectives had both observed persons leaving 10402/10404 Westchester in vehicles to locations where they were distributing narcotics. -4- Det. Ansari testified the detectives thought contraband was being moved in the van to be distributed. Det. Ansari and other detectives then stopped the van on the other side of a little knoll west of 102ndStreet. In Det. Ansari's experience, it was unusual that this same box that had just arrived five minutes earlier had been removed from the house. The decision was made to stop the van down the street, over the knoll, so the people in the house would not know the police were there. Det. Ansari explained the police would have lost the element of surprise necessary in executing a search warrant if they stopped the van before it left the house. He testified that, for the safety of the police and the persons inside, when executing a search warrant you do not want to give the chance for persons to either destroy contraband or arm themselves. When approaching the van, Det. Ansari observed Pitchford reaching or placing something on the floor. A weapon was, in fact, found on the floor with the open box of marijuana between the seats. At that time Benjamin Moore was seen leaving the home in a gray Oldsmobile and driving west on Westchester towards the officers' location. As Benjamin Moore approached the stopped van over the knoll, he saw the police and the van and he pulled the gray Oldsmobile to the curb. The gray Oldsmobile was mentioned in the search warrant. Det. Ansari went to the gray Oldsmobile at which time he looked back down the street and saw Darryl Stanton, the male who had been standing lookout on the porch, standing in the driveway looking -5- down the street at them. Stanton ran into 10410 Westchester. He and three other males came outside and then ran back inside. Det. Ansari advised the SWAT unit that they had lost the element of surprise and should move in. During Det. Ansari and Gercar's surveillance, the SWAT unit had already been in place awaiting their order to move in. The SWAT unit was in an area away from the home at 103rd and St. Clair so as not to alert anyone in this heavy drug trafficking area of the police presence. Sgt. Lewis testified that when the van was stopped, a gun and open box filled with marijuana was found. The occupants (Pitchford and Moore) and the box were returned to the premises where execution of the search warrant was underway. Both defendant Pitchford and co-defendant Moore testified. Defendant Pitchford testified he arrived on the scene in his Cadillac. He testified Moore was over visiting his mother and that he connected with Moore when Moore came out of that house. He testified he was in his home for twenty minutes and went to get keys from next door and stayed for fifteen minutes. He testified when he grabbed the box, Ronald Moore came out and that was how they connected. They then walked across the street to the van. Pitchford testified he lived at 10402 Westchester and also owned an apartment where he was delivering the marijuana. Pitchford testified although he opened the box inside 10402 Westchester, he closed the flaps. He decided to deceive the police by not using his Cadillac, which might draw attention, but rather he would use his mother-in-law's van. -6- Moore testified he and Pitchford arrived together in the Cadillac; Pitchford had bought his sister some food to take home. He testified Pitchford went into his house while he visited his mother in her house and that he stayed for twenty minutes or so. Moore testified the van was parked on the street right in front of 10402 Westchester. Moore testified he had no knowledge of the box of marijuana and did not see the box until he got into the van. He testified Pitchford went into the van before him and the box was in there behind his seat when he saw it for the first time. Following this testimony, the court denied the motion to suppress finding the officers were in place for the purpose of surveillance prior to execution of the search warrant; they saw a box delivered to the location of the search warrant; the box was at the premises for a very short time prior to the defendant removing the box from the premises in a vehicle located within the curtilage of the premises. The court found the officers' testimony to be credible and the defendants' testimony to be credible in some respects, but not in others. (Tr. 96-97). The court then found the search was clearly within the phase of executing the search warrant and the authority for the warrant including the curtilage and vehicles also covers the circumstances of the officers observing the contraband being removed from the premises to be searched. The court also found the officers had probable cause from the search warrant which necessarily attaches -7- to the officers' actions in furtherance of the search that was made. (Tr. 97-99). The defendant's sole assignment of error states: I. THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS. Defendant's essential argument is that the van search by the police was not covered by the search warrant or an exception thereto and that the police did not have probable cause or reasonable suspicion to stop the vehicle or arrest or detain Pitchford and Moore. Therefore, the evidence seized should be excluded as a violation of defendant's Fourth Amendment rights. The State contends the search was not unreasonable and the evidence should not be suppressed because the police had the authority under the search warrant to seize the vehicle, the box and the defendant himself. Moreover, the State argues that the police had the requisite suspicion to stop the vehicle and detain the occupants and then seize the gun and open box of marijuana seen in plain view. The scope of our review on a motion to suppress was well- stated by this Court in State v. Curry (1994), 95 Ohio App.3d 93, 96: In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay(1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See, State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. However, without deference to the trial court's conclusion, it must be determined -8- independentlywhether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. The Fourth Amendment to the Constitution states: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the person or things seized. The remedy for violating the Fourth Amendment is the exclusion of the evidence obtained by the police during the unreasonable search or seizure. According to the exclusionary rule set forth in Mapp v. Ohio (1961), 367 U.S. 643, 655, all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court. The exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. United States v. Calandra (1974), 414 U.S. 338, 348. The purpose of the exclusionary rule is to deter unlawful police conduct ***. United States v. Peltier (1975), 422 U.S. 531, 542 However, we find no violation of the Fourth Amendment here, whether or not the search warrant was broad enough to cover the stopping of the van. Law enforcement officers are permitted to stop vehicles at any time they have a reasonable, articulable suspicion that a person is or has been engaged in criminal -9- activity. State v. Vanscoder (1994), 92 Ohio App.3d 853, 855, citing Terry v. Ohio (1968), 392 U.S. 1, 21-22. We refer to this Court's decision in State v. Mays (1996), 108 Ohio App.3d 598, where we considered a similar fact situation and analyzed the law and facts as follows: Defendant Mays argues that the search warrant issued for the house did not include the car parked on a public street. With this we agree, but that does not resolve the issue. It is a fundamental tenet of constitutional law that a warrantless search or seizure is per se unreasonable and thereby violative of the Fourth Amendment, unless it falls within one of the specifically established exceptions to the warrant requirement. Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585; Coolidge v. New Hampshire (1971), 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576. In the case herein, we find that an automobile exception exists and applies to the facts before us. The Ohio Supreme Court in State v. Mills (1992), 62 Ohio St.3d 357, 367, 582 N.E.2d 972, 982, citing relevant United States Supreme Court case law, defined the automobile exception as follows: The well-established automobile excep-tion allows police to conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains contraband or other evidence that is subject to seizure, and exigent circumstances necessitate a search or seizure. Chambers v. Maroney (1970), 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428; Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The mobility of automobiles often creates exigent circumstances, and is the traditional justification for this exception to the Fourth -10- Amendment's warrant requirement. California v. Carney (1985), 471 U.S. 386, 391, 105 S.Ct. 2066, 2069, 85 L.Ed.2d 406, 413. The United States Supreme Court has stated that the justification for the automobile exception comes into play only when a vehicle is being used on a highway, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes. California v. Carney (1985), 471 U.S. 386, 393, 105 S.Ct. 2066, 2070, 85 L.Ed.2d 406, 414; State v. Roaden (1994), 98 Ohio App.3d 500, 504, 648 N.E.2d 916, 919. The facts of this case satisfy the automobile exception. Defendant's automobile was parked on a public street. The officer had probable cause to believe that the vehicle contained material evidence, as in plain view on the back seat was a jacket matching the description of the jacket worn by Baiko's assailant. Exigent circumstances necessitated the seizure, as defendant was alerted to the fact that the detectives were going to search his vehicle, as they asked his permission to do so. If the detectives were to leave the automobile while obtaining a warrant, defendant could have driven off and hidden the vehicle or disposed of any incriminating evidence. In fact, pursuant to the automobile exception, the officers were under no duty to seize the car and then obtain a search warrant. They could have searched the vehicle since they had probable cause to believe that important evidence was in the car. As the Supreme Court held in Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428: Arguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the `lesser' intrusion is permissible until the magistrate authorizes the `greater.' But which is the greater and which is the `lesser' intrusion is itself a debatable question and -11- the answer may depend on a variety of circumstances. For constitu- tional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. The search of defendant Mays's vehicle was not in violation of his constitutional rights. The trial court was correct in overruling the motion to suppress. Id. at 615-616. We find that the police in the instant case had probable cause to believe that the box within the van contained contraband and that exigent circumstances authorized the stop and seizure without a warrant under the automobile exception. The police observed defendant exit a suspected crack house with a box, enter a van and drive off. The box had only been in the house a matter of minutes before defendant left with it. Det. Ansari testified that, based on his experience, it was unusual that a box which had just arrived five minutes earlier would be taken from the home. He further testified he had learned that detectives had previously observed persons leaving the residence in vehicles and going to other locations where they were distributing narcotics. Det. Ansari then made the decision to stop the van. As the officers approached the van, the defendant made a furtive gesture by bending down. A search of the van revealed a weapon on the floor and the open box of marijuana between the seats. -12- Under these circumstances, there was reasonable suspicion to warrant the stopping of the van based on the detectives' surveillance of the house and their experience that drug activity was taking place. There was also a fair probability that contraband or evidence of a crime would be found in the van. Det. Ansari had a belief, reasonably arising out of circumstances known to him, that the van contained contraband. Accordingly, we find that Det. Ansari had probable cause to conduct a warrantless search of the van. The trial court held that the stop and search of the van was within the phase of executing the search warrant and therefore the stop and search were proper. The court found that the authority of the search warrant which allowed the detectives to search the premises known as 10402 and 10404 Westchester Avenue, including the curtilage and vehicles located thereon, also covers the exigent circumstances of them observing the contraband and the evidence being removed from the premises about to be searched. Although we do not necessarily agree with the trial court's reasoning, we find that its judgment was correct in declining to suppress the contraband. A reviewing court is not authorized to reverse a correct judgment of the trial court merely because erroneous reasons were assigned as the basis thereof. State v. Allen (1996), 77 Ohio St.3d 172, 173; State v. Blank (1997), 118 Ohio App.3d 441, 443. As discussed above, the detectives had the requisite reasonable suspicion and probable cause to warrant the stopping and -13- searching of the van after it left the house, regardless of the search warrant. Therefore, the warrantless search of the van was not unreasonable within the meaning of the Fourth Amendment. Based on the foregoing, we affirm the trial court's order denying suppression. Defendant's sole assignment of error is overruled. Judgment affirmed. -14- 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 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. SPELLACY, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER PRESIDING 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 .