[Cite as State v. Stewart, 2020-Ohio-2720.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 108701
                 v.                                 :

RONNIE A. STEWART,                                  :

                 Defendant-Appellant.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: April 30, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-630427-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Glen Ramdhan, Assistant Prosecuting
                 Attorney, for appellee.

                 Patrick S. Leary, for appellant.


SEAN C. GALLAGHER, P.J.:

                   Ronnie Stewart appeals the denial of a motion to suppress that

preceded his no contest plea to trafficking, carrying a concealed weapon,

improperly handling a firearm in a motor vehicle, possessing a defaced firearm,

and having weapons while under disability. The trial court imposed an 18-month
aggregate term of imprisonment, which was stayed pending this appeal. For the

following reasons, we affirm.

              Stewart was involved in a “road rage” incident with another male

(“witness”), at which time Stewart allegedly brandished a black, semiautomatic

handgun.    The witness immediately called emergency services, reported the

incident, and followed the suspect for a brief distance. The witness also described

the suspect as a heavily tattooed, Hispanic male driving a gold-colored Cadillac.

The witness reported losing sight of the suspect’s car, but a nearby patrol officer

spotted it almost immediately. The officer initiated an investigatory stop based on

the vehicle matching the reported description. Upon approaching the vehicle, the

officer confirmed that Stewart, the sole occupant, also matched the description of

the suspect that the witness provided dispatch.

              Initially, the officer asked Stewart for consent to conduct a brief

search of the vehicle to look for the alleged firearm.         Stewart declined the

invitation. Shortly after initiating the investigatory stop, a second officer arrived.

While the first officer discussed the situation with Stewart, at which time Stewart

disclosed his history of felony convictions and admitted to being in the area where

the “road rage” incident occurred, the second officer made contact with the

witness, who confirmed the description provided by dispatch.           Although the

witness declined the opportunity to press charges for aggravated menacing, he

confirmed that he saw someone, fitting Stewart’s description and driving the same

type and color of car as Stewart’s, brandish a firearm after a near collision on the
four-lane divided roadway.      Stewart claimed that there was no “road rage”

incident, but he could not explain why anyone would report him having been

involved in one.

               After a brief discussion, the officers proceeded to conduct a

probable-cause search of Stewart’s vehicle based on the reliable report that Stewart

had brandished a firearm that he was not entitled to possess. Before the officers

could search the vehicle, Stewart resisted the officer’s orders to exit the vehicle, so

the officers subdued and handcuffed Stewart as he sat in the driver’s seat. In

frisking Stewart for weapons, one of the officers saw the semiautomatic handgun

(of the same type described by the eyewitness) tucked under the driver’s seat. The

officers also found a duffel bag on the front passenger floorboard. The duffel bag

contained 22 containers of marijuana.

               A motion to suppress presents a mixed question of law and fact.

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71. Although

appellate courts defer to the trial court’s factual findings, the application of law to

fact those facts is de novo. Id. The trial court’s finding of facts in this case are

undisputed. Thus, we are only asked to review the application of those facts to the

law under the de novo standard of review.

               The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). An investigative traffic stop does not violate

the Fourth Amendment where an officer has reasonable suspicion that the
individual is engaged in criminal activity. State v. Jones, 8th Dist. Cuyahoga No.

100300, 2014-Ohio-2763, ¶ 17. “An officer may perform such a stop when the

officer has a reasonable suspicion based on specific and articulable facts that

criminal behavior has occurred or is imminent.” State v. Hairston, 156 Ohio St.3d

363, 2019-Ohio-1622, 126 N.E.3d 1132, ¶ 9, citing Terry. Importantly, when an

officer is “‘justified in believing’ that an individual may be ‘armed and presently

dangerous,’ the officer may conduct a limited protective search of the individual for

concealed weapons.” Id., citing Terry and Adams v. Williams, 407 U.S. 143, 146,

92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). “The reasonable-suspicion standard is less

demanding than the probable-cause standard.” Id. at ¶ 10, citing United States v.

Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

              Although Stewart claims that the search did not comport with the

less demanding, reasonable-suspicion standard as articulated in Terry v. Ohio,

that standard is not applicable to the facts underlying the search conducted in this

case. Although the initial investigatory stop was based on the officer’s reasonable

suspicion that the then unknown driver of the gold-colored Cadillac had just

committed a crime (the Terry standard), the officers did not immediately conduct

a protective search of Stewart or his vehicle after initiating the stop as the

constitutional standards would have permitted. State v. Lozada, 92 Ohio St.3d 74,

81, 748 N.E.2d 520 (2001), citing Pennsylvania v. Mimms, 434 U.S. 106, 110-111,

98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Instead, in the exercise of restraint and

demonstrable patience, the police officers initiated the encounter through an open-
ended dialogue with Stewart and forwent the protective search authorized under

Terry and its progeny. During this discussion, in which Stewart admitted that his

felony record precluded his possessing a firearm, one of the responding officers

contacted the witness who confirmed the descriptions of the Cadillac (including a

window sticker and the approximate color of the vehicle) and of Stewart (a heavily

tattooed, Hispanic male).     That reliable description permitted the officers to

conclude that Stewart was the suspect alleged to have brandished the firearm

during the “road rage” incident.

              This implicates the automobile exception to the Fourth Amendment,

which permits the warrantless search of an operational vehicle when the officers

have probable cause to believe the vehicle contains evidence of a crime. United

States v. Tamari, 454 F.3d 1259, 1264 (11th Cir.2006), citing Maryland v. Dyson,

527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999), and United States v.

Magluta, 418 F.3d 1166, 1182 (11th Cir.2005). Under the automobile exception,

probable cause to search a vehicle exists, if under the totality of the circumstances,

“‘there is a fair probability that contraband or evidence of a crime will be found’ in

a vehicle.”   Id., citing United States v. Goddard, 312 F.3d 1360, 1363 (11th

Cir.2002).

              In general, or at the least a proposition of law accepted in light of

Stewart’s failure to argue otherwise, an eyewitness identification creates probable

cause justifying the warrantless search unless the officer or governmental agent

has reason to believe that the witness was lying, was unable to accurately describe
the underlying events or was somehow mistaken. United States v. Doyle, 720

Fed.Appx. 271, 276 (6th Cir.2018) (probable cause to arrest existed where the

eyewitness reported the offender threatened a victim with a gun, and the police

corroborated the witness’s description and confirmed the owner of the vehicle the

defendant was driving was a convicted felon), citing Ahlers v. Schebil, 188 F.3d

365, 370 (6th Cir.1999), and Rainer v. Lis, 6th Cir. No. 92-2436, 1994 U.S. App.

LEXIS 2190, *2 (Feb. 7, 1994); United States v. Charles, 801 F.3d 855, 860 (7th

Cir.2015) (911 dispatcher’s report establishes beyond dispute that police officers

had probable cause to believe that a defendant was carrying or had very recently

carried a handgun he was not entitled to possess). Stewart does not claim that the

officers lacked probable cause to search the vehicle based on the above automobile

exception nor that the officers’ reliance on the witness’s story and descriptions

were misplaced. App.R. 16(A)(7).

              In light of the fact that the police officers had reliable information

from an eyewitness claiming to have seen Stewart brandish a firearm he confessed

to not being able to legally possess, the officers had probable cause to search

Stewart’s vehicle for the evidence of the crime, including any container or area

within the passenger compartment that could contain a weapon. State v. Thomas,

8th Dist. Cuyahoga No. 93918, 2010-Ohio-4132, ¶ 10. In order to effectuate that

search, Stewart was lawfully detained. State v. Caulfield, 2013-Ohio-3029, 995

N.E.2d 941, ¶ 18 (2d Dist.). When Stewart was asked to exit the vehicle to permit

the officers to conduct the lawful search, Stewart resisted. It was in this context
that Stewart was handcuffed, but at that point, he was not placed under arrest.

Stewart was being detained while the officers attempted to conduct the

constitutionally permitted search.

              It is on this point that Stewart claims his rights were violated.

According to Stewart, the officers lacked probable cause to arrest him at that point

in time solely based on the eyewitness’s reporting of the crime and, therefore, the

only basis for the subsequent search would be under the Terry reasonable-

suspicion standard. Because the officers did not arrest Stewart before conducting

the probable-cause search, as permitted under the automobile exception to the

warrant requirement as discussed above, Stewart’s argument is without merit. The

less exacting Terry standard was inapplicable.

              Once the cursory search of the vehicle, permitted under the

automobile exception, revealed the firearm and drugs, the officers had probable

cause to arrest Stewart.    The probable cause to arrest arose after the lawful

searches revealed the evidence of the crime being investigated and the contraband

that supported the trafficking charges. Thus, Stewart’s claim that the lack of

probable cause to arrest invalidated the subsequent search, is without merit — the

arrest has no bearing on a warrantless search conducted under the automobile

exception to the Fourth Amendment that justified the arrest.

              The automobile exception to the warrant requirement under the

Fourth Amendment permitted the search of the vehicle. The police officers had

probable cause to conduct a search of the vehicle based on the reliable information
provided by the witness and Stewart’s confession to being a convicted felon. The

trial court did not err in denying Stewart’s motion to suppress the firearm and

drugs seized through the search of the vehicle. Accordingly, we affirm the

conviction.

      It is ordered that appellee recover from appellant 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 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.


                                 _____
SEAN C. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR
