[Cite as State v. Shabazz, 2012-Ohio-3367.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97563



                                      STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.

                                  DERRELL SHABAZZ
                                                DEFENDANT-APPELLANT

                                              JUDGMENT:
                                               AFFIRMED

                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-547132

             BEFORE:           Blackmon, A.J., Jones, J., and Keough, J.

             RELEASED AND JOURNALIZED:                    July 26, 2012


                                                 -i-
ATTORNEY FOR APPELLANT

Tyresha Brown-O’Neal
323 Lakeside Avenue, Suite #420
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Alison Foy
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:

       {¶1} Appellant Derrell Shabazz appeals the trial court’s denial of his motion to

suppress and assigns the following error for our review:

       I. The trial court erred in denying appellee’s motion to suppress.

       {¶2} Having reviewed the record and pertinent and law, we affirm the trial

court’s decision. The apposite facts follow.

       {¶3} The Cuyahoga County Grand Jury indicted Shabazz for carrying a

concealed weapon, improperly handling firearms in a motor vehicle, and having weapons

under disability. Subsequent to his not guilty plea, Shabazz moved to suppress the

state’s evidence and the trial court held a hearing on September 9, 2011.

                                  Suppression Hearing

       {¶4} At the hearing, Detective Ralph Valentino, formerly of the Cleveland Police

Department’s Narcotics and Gang Task Force, testified that in January 2011, a

confidential informant (“CI”) provided information about an individual who had several

firearms for sale.   Detective Valentino subsequently discovered that the individual,

Dejuan Walker, had an active warrant for attempted murder.
       {¶5} Detective Valentino testified that with the aid of the CI, a controlled

purchase of four firearms was scheduled to take place on January 14, 2011, in the vicinity

of 5561 Chevrolet Boulevard in Cleveland, Ohio. On that date, Detective Valentino and

his partner, Detective Bundy, met with the CI, who placed a monitored phone call to

Walker to confirm the firearm sale. The agreement was for the CI to purchase four

firearms for $1,000.

       {¶6} Detective Valentino and his partner traveled to the appointed location, set

up a surveillance, and waited for Walker to arrive. Moments later, Detective Valentino

observed a white Range Rover sport utility vehicle, with two black males, pull into the

parking lot and the CI contemporaneously receiving a phone call from Walker indicating

that he had just arrived at the location.

       {¶7} An individual fitting Walker’s description exited the passenger side of the

Range Rover and approached the rear entrance of the building where the CI was waiting.

Once Walker entered the building, Detective Valentino maintained audio surveillance and

overheard Walker telling the CI that the owner of the firearms was nervous about getting

paid. The CI gave Walker the money and Walker indicated that the firearms were in

another location, but would be at the present location in five minutes.

       {¶8} Detective Valentino testified that the CI gave him the prearranged signal

confirming Walker’s identity. Walker exited the building, walked towards the passenger

side of the vehicle, and Detective Valentino ordered the take-down unit to stop the

vehicle. The take-down unit stopped Walker as he was about to enter the passenger
compartment, removed Shabazz, the driver of vehicle, and patted both men down, but

found no weapons on their persons. Upon searching the vehicle, the officers recovered a

loaded .40 caliber Springfield XD pistol under the driver’s seat.

       {¶9} Following the hearing, the trial court denied Shabazz’s motion to suppress,

he pleaded no contest to the charges, and the trial court found him guilty. On October

21, 2011, the trial court sentenced Shabazz to one year in jail. Shabazz now appeals the

denial of his motion.

                                    Motion to Suppress

       {¶10} In the sole assigned error, Shabazz argues the trial court erred in denying

his motion to suppress.

       {¶11} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Hunter, 8th Dist. No. 97086, 2012-Ohio-2302, citing State v. Burnside,

100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The reviewing court is bound

to accept the trial court’s findings of fact if they are supported by competent, credible

evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982).          The

application of the law to those facts is subject to de novo review. State v. Polk, 8th

 Dist. No. 84361, 2005-Ohio-774, ¶ 2.

       {¶12}    In the instant case, Shabazz argues that the warrantless stop and his

subsequent arrest were unlawful and in violation of his Fourth Amendment rights.

Shabazz claims that there were no articulable facts to justify the initial stop of the vehicle

because the police did not observe him involved in any criminal activity, thus the
evidence should have been suppressed. However, Shabazz drove the car that brought

Walker to the area to sell weapons to the CI. The officers arrested Walker on the

outstanding warrant and detained Shabazz because he drove the car that allegedly had the

weapons.

       {¶13}     The Fourth Amendment to the United States Constitution prohibits

warrantless searches and seizures, rendering them per se unreasonable unless an

exception applies. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967).    One of the exceptions to the warrant requirement is a search incident to a

lawful arrest, “which allows officers to conduct a search that includes an arrestee’s person

and the area within the arrestee’s immediate control.” State v. Smith, 124 Ohio St.3d

163, 2009-Ohio-6426, 920 N.E.2d 949, ¶ 11, citing Chimel v. California, 395 U.S. 752,

762–763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

       {¶14}    “The exception derives from interests in officer safety and evidence

preservation that are typically implicated in arrest situations.” Arizona v. Gant, 556 U.S.

332, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009). In Arizona v. Gant, the court held

that an officer may search a vehicle incident to a recent occupant’s arrest only when the

arrestee is unsecured and within reaching distance of the passenger compartment at the

time of the search or when it is reasonable to believe that the vehicle contains evidence

relevant to the offense of arrest. Id.

       {¶15} Applying the above standard to the facts of the present case, we find the

investigatory stop and search of the vehicle were lawful.           The testimony at the
suppression hearing established that Detective Valentino received a tip from a CI that

Walker, who the police later discovered had an active warrant for attempted murder, had

firearms for sale.      A controlled firearm purchase was arranged and executed under

visual and audio surveillance.      After the CI handed over the prerecorded purchase

money, Walker indicated that the firearms would be there in five minutes, proceeded to

return to the vehicle driven by Shabazz, and was stopped by the take-down unit as he was

entering the vehicle.

       {¶16} Here, given that the money for the controlled firearm purchase had just

been handed over to Walker, who had an outstanding warrant for attempted murder, and

who indicated to the CI that he would have the firearms in five minutes, it was reasonable

for the police to believe that the firearms were located in the Range Rover.

       {¶17} Accordingly, we overrule Shabazz’s sole assigned error.

       {¶18} Judgment affirmed.

       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 be sent to said 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.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
