[Cite as State v. Howard, 2014-Ohio-4682.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100887
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
OMAR R. HOWARD
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-575288-A
BEFORE: Rocco, P.J., Kilbane, J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 23, 2014
-i-
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Justin P. Rudin
Amy Venesile
Assistant Prosecuting Attorneys
The Justice Center - 9th Floor
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Myron P. Watson
323 W. Lakeside Avenue
Lakeside Place, Suite 420
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:
{¶1} Plaintiff-appellant the state of Ohio appeals from the trial court order that
granted a motion to suppress evidence that defendant-appellee
Omar R. Howard filed.
{¶2} The state presents two assignments of error. It argues that the trial court’s
findings of fact were unsupported in the record, and that the actual facts presented at the
suppression hearing demonstrated that the police officers who arrested Howard had
probable cause to do so.
{¶3} Upon a review of the record, this court agrees with the state’s arguments.
The trial court’s order, consequently, is reversed, and this case is remanded for further
proceedings.
{¶4} The following testimony was presented at the hearing on Howard’s motion to
suppress evidence.
{¶5} On the night of January 10, 2013, Detective Scott Vargo and Sergeant Jeffrey
Hirko of the Cuyahoga County Sheriff’s Department’s “Impact Unit” were “serving
warrants” with Detective David Kunker from the Parma Heights Police Department.
Kunker knew one of the men they arrested; Kunker had used him previously as someone
who provided “street” information. When the informer told the law enforcement officers
that he “knew a male that he referred to as Big Man and that he could order up $100 of
heroin and have Big Man deliver it to him,” the officers decided to pursue the matter.
{¶6} According to Vargo, the informer described “Big Man” as a “black” man who
was in his “late 20s, early 30s,” “over six feet tall,” and “had facial hair.” The informer
indicated that he drove a blue Buick and was usually punctual. Vargo listened as the
informer made a telephone call from Hirko’s vehicle. The informer asked the person he
called “what was up,” the person answered, “All good,” and the informer stated that he
“was looking for 100.” The person the informer called stated that he “would be there in
approximately 45 minutes.”
{¶7} The informer told the officers that the location at which Big Man would
arrive was the “senior living center on North Church” Street. Vargo and Kunker knew
that area as one that was the subject of drug complaints. Four to five police units,
including one that was used by a “canine officer,” proceeded to the senior living center’s
parking lot. The informer sat in Hirko’s car facing the driveway.
{¶8} Within an hour, Vargo observed a blue Buick drive into the parking lot and
stop. The informer received a phone call and stated, “That’s him,” so Hirko notified the
other officers that “That’s our target,” and ordered them to “Move in.”
{¶9} The officers surrounded the Buick. They identified themselves and ordered
the driver, Omar Howard, to get out. When Howard opened his door, they pulled him
out of the car, placed him on the ground, and arrested him.
{¶10} After the arrest, the officers noted that Howard fit the description the
informer provided. The officers searched the Buick but found no contraband. Because
the canine “alerted,” indicating that the car had contained drugs at some point, Vargo
“had a strong feeling” that Howard had concealed drugs on his person. At the
conclusion of the booking process at the police station, Howard extracted “a clear plastic
bag containing a white residue, powder and a couple small pieces of rock,” from his
buttocks.
{¶11} Howard subsequently was indicted on one count of possession of cocaine
and one count of possession of heroin. He pleaded not guilty to the charges. Howard
eventually filed a motion to suppress evidence, arguing that the police lacked probable
cause to arrest him. After conducting a hearing on Howard’s motion, the trial court
granted it.
{¶12} The state appeals from the trial court’s decision with the following
assignments of error.
I. The trial court erred in granting Appellant’s motion to suppress
because the trial court’s findings of fact were clearly erroneous and not
supported by competent credible evidence.
II. A proper consideration of the facts confirms that the trial
court erred in finding that law enforcement lacked probable cause to arrest
Howard based on Howard’s offer to sell a controlled substance.
{¶13} The state’s assignments of error are interrelated and therefore will be
addressed together. The state argues that, in making its legal analysis, the trial court
inaccurately recounted the facts presented at the hearing. Based on this argument, the
state asserts that the trial court’s decision to grant Howard’s motion to suppress evidence
is flawed and must be reversed. This court agrees.
{¶14} As the state points out, this court’s standard of review with regard to a
motion to suppress is whether the trial court’s findings are supported by competent,
credible evidence. State v. Ely, 8th Dist. Cuyahoga No. 86091, 2006-Ohio-459, ¶ 11;
State v. Rosa, 8th Dist. Cuyahoga No. 85247, 2005-Ohio-3028, ¶ 16. When ruling on a
motion to suppress, the trial court assumes the role of trier of fact and is in the best
position to resolve factual questions and evaluate the credibility of a witness. State v.
Kobi, 122 Ohio App.3d 160, 167, 701 N.E.2d 420 (6th Dist.1997).
{¶15} If the trial court’s findings of fact are supported by competent, credible
evidence, an appellate court must accept such findings. Id. at 168. Accepting these
facts as found by the trial court as true, the appellate court must then independently
determine as a matter of law, without deferring to the trial court’s conclusions, whether
the facts meet the applicable legal standard. Id. In this case, the trial court wrongly
determined that the facts were insufficient to meet the applicable legal standard.
{¶16} There are three permissible bases for conducting a warrantless arrest: (1) the
arrestee has committed an offense in a police officer’s presence (Gerstein v. Pugh, 420
U.S. 103, 113, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)); (2) the officer has probable cause to
believe that the arrestee has committed a felony and the arrest occurs in a public place
(United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)); and
(3) the officer makes a warrantless entry into a home upon probable cause for an arrest
and the circumstances are “exigent” (Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct.
2091, 80 L.Ed.2d 732 (1984)).
{¶17} In this case, the state claimed that Howard was arrested on the second basis,
i.e., that the officers had probable cause to believe that Howard committed a felony and
his arrest occurred in a public place. The state asserted that the facts demonstrated that
Howard made an “offer to sell” heroin.
{¶18} “Probable cause” to arrest exists when an officer is aware of facts that
would lead a reasonable person to believe that the suspect has committed or is committing
a crime, however minor. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142
(1964). The issue in this case, therefore, is whether the facts and circumstances within
the arresting officers’ knowledge were sufficient to cause a prudent person to believe that
Howard had committed, or was committing, the offense of drug trafficking, thus
obviating the need for an arrest warrant. An important factor in evaluating the reliability
of an informant’s tip is the degree to which it predicts future behavior of third parties.
Alabama v. White, 496 U.S. 325, 332, 110 L.Ed.2d 301, 110 S.Ct. 2412 (1990) (when
significant aspects of the informer’s predictions are verified, there is reason for the officer
to believe not only that the informer is honest, but also that he is well informed.).
{¶19} The state asserts that the facts of this case are similar to those presented in
State v. Isabell, 8th Dist. Cuyahoga No. 87113, 2006-Ohio-3350. This court finds the
state’s assertion to have merit.
{¶20} In Isabell, the informer told the detective the drug dealer’s first name and
telephone number, that he drove a 1998 or 1999 burgundy Chevy Blazer, that he sold
drugs from his vehicle, kept the drugs in the center overhead console, and was five feet,
eleven inches tall with a heavyset build. The informer made a call to Isabell on the
detective’s phone and arranged to buy $175 worth of crack cocaine at a gas station that
Isabell designated. When Isabell arrived in that vehicle at that gas station, he exited,
whereupon the informer identified him for the detective. Based on these facts, this court
upheld the trial court’s denial of Isabell’s motion to suppress evidence.
{¶21} Similarly, in this case, Kunker knew the informer and had used him
previously to obtain “street” information. The informer told the law enforcement
officers that he “knew a male that he referred to as Big Man and that he could order up
$100 of heroin and have Big Man deliver it to him.” Hirko recalled that the informer
asked for “$100 worth of heroin.” Howard drove into the parking lot chosen by the
informer at approximately the time that the informer stated he would arrive, and Howard
was driving a car of the exact color, make and model that the informer predicted. Upon
his exit from the car, Howard matched the informer’s description of the seller.
{¶22} Upon a review of the record, therefore, this court concludes that, although
the trial court’s findings of fact were supported by competent, credible evidence, the trial
court’s determination that the officers did not have probable cause to arrest Howard was
incorrect. This court noted in pertinent part as follows in State v. Roubideaux, 8th Dist.
Cuyahoga No. 92948, 2010-Ohio-73, ¶ 35-38:
* * * [R]easonable suspicion is dependent upon both the content of
the information provided, and its degree of reliability. Alabama v. White
(1990), 496 U.S. 325, 332, 110 S. Ct. 2412, 110 L. Ed. 2d 301 at 330-31.
Quantity of information available and the quality of that information both
are examined under a totality of the circumstances approach. Id. at 330.
In this case, [Det.] Monnolly had information * * * that described
Roubideaux’s car, his license plate number, his customary delivery times to
the house, his habits in making his deliveries, and the presence of drugs in
the house after his visits. Under these circumstances, Monnolly acted
prudently in seeking to acquire additional information * * * .
***
[B]ased upon his own firsthand observations in conjunction with the
information provided by the CS who saw Roubideaux’s actions, Monnolly
had probable cause to believe Roubideaux’s car contained contraband. * *
* Indeed, if Monnolly did not act, any evidence of criminal activity would
be lost because Roubideaux could no longer be detained * * * .
(Emphasis added.)
{¶23} Similarly, on nearly identical facts as those presented in this case, the court
in State v. Huggins, 6th Dist. Lucas No. L-02-1289, 2003-Ohio-3843 declared:
In State v. Andrews (1991), 57 Ohio St.3d 86, 87-88, 565 N.E.2d
1271, the Ohio Supreme Court stated:
“* * * [A totality of the surrounding circumstances is]
to be viewed through the eyes of the reasonable and prudent
police officer on the scene who must react to events as they
unfold. (Citations omitted.) A court reviewing the officer’s
actions must give due weight to his experience and training
and view the evidence as it would be understood by those in
law enforcement. (Citation omitted.)”
In this case, the detective had probable cause to believe that
contraband was in appellant’s vehicle based upon the informant’s
information and the detective’s own personal knowledge. The detective
testified that he had been assigned to the Metro Drug Task Force for 16
years and had made “hundreds” of arrests during that time period; * * * that
the informant indicated appellant was his only drug source; that pursuant to
the detective’s direction, the informant placed a telephone call to appellant
and ordered four and one-half ounces of crack cocaine to be delivered to the
informant that evening; that the informant indicated appellant would be
delivering the cocaine to the informant’s residence within one hour of the
call; that the informant indicated appellant would be driving one of two
different vehicles; that appellant arrived within one-half hour of the call
and was driving a vehicle matching the description given to the detective by
the informant; [and] that the informant identified appellant when he arrived
* * * . The totality of these circumstances clearly established probable cause
for the warrantless search of appellant’s vehicle.
{¶24} The trial court, therefore, incorrectly concluded based upon the evidence
presented that the police lacked probable cause to arrest Howard. The state’s
assignments of error, accordingly, are sustained.
{¶25} The trial court’s order is reversed. This case is remanded to the trial court
for further proceedings according to law.
It is ordered that appellant recover from appellee 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. Case remanded to the trial court for
further proceedings.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS
(SEE ATTACHED OPINION)
MARY EILEEN KILBANE, J., DISSENTS:
{¶26} I respectfully dissent. I would affirm the court’s judgment granting
Howard’s motion to suppress.
{¶27} In deciding a motion to suppress, this court’s standard of review is “whether
the trial court’s findings are supported by competent credible evidence.” Ely, 8th Dist.
Cuyahoga No. 86091, 2006-Ohio-459, at ¶ 11. Moreover, we “must defer to the trial
court’s factual findings, if those are supported by the record.” See, e.g., State v. Wilson,
74 Ohio St.3d 381, 390, 1996-Ohio-103, 659 N.E.2d 292.
{¶28} In this matter, the trial court set forth its rationale for suppressing the
evidence in a detailed explanation that spans nine pages of the record. The trial court
reviewed all of the evidence presented, and noted that the confidential informant was
someone who had just been arrested and was hoping to receive favorable consideration
for his information. The officers listened in as the informant telephoned “Big Man” to
purchase heroin, and they obtained a description of this individual, who was to arrive in
45 minutes, as well as a description of the vehicle. Howard arrived in a vehicle matching
the description. The court stated:
In less than an hour, a blue Buick pulled in and in the car was a black male.
In approximately a minute, Sergeant Hirko, H-I-R-K-O, ID’ed this person
as their target, Big Man. Police officers moved in. They surrounded the
car, ordered the occupant out. When they pulled the individual out, he was
told he was under arrest. The individual, a black male more than 6 feet
tall, about 250 pounds, with some facial hair, was placed in handcuffs in
detention and according to Deputy Vargo, he was told that he was under
arrest due to a call to purchase $100 of narcotics. There was additional
testimony in this matter, and through that testimony was elicited that the
words, I’m looking for a hundred, can mean many things. No narcotics
were mentioned. * * * Other significant facts, when the takedown signal
was given by Sergeant Hirko, the sheriff’s detectives had already decided to
arrest the defendant and Deputy Vargo admitted through his testimony that
what they were told by the informant was not confirmed until after the
defendant had been arrested. In other words, they couldn’t see the size of
the person, they couldn’t definitively say he had facial hair, they didn’t
know his name, they didn’t even — they weren’t able to verify all the things
until after he had been arrested.
{¶29} The trial court concluded, and I agree, that the officers’ “intent was to go
and arrest [Howard] as soon as they verified that that was the blue Buick.” When the car
arrived at the designated area, the informant states “that’s the car.” The police then
swept in and arrested Howard. The informant had only identified the car at this point in
time and there had been no exchange between the informant and Howard. The trial court
applauded the police work, but found that the police had acted too soon. The officers’
testimony acknowledged that the information provided by the informant was not verified
until after Howard was arrested.
{¶30} The trial court concluded, and I agree, that there “was reasonable and
articulable suspicion, but there was not probable cause. So the arrest was illegal and the
evidence that was subsequently seized when [Howard] was in custody [should] be
suppressed.”