[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.”
