State v. Carlton Swopes
| Decision Date | 06 February 1992 |
| Docket Number | 92-LW-0436,59864 & 59949 |
| Parties | STATE OF OHIO, Plaintiff-Appellant/Cross-Appellee v. CARLTON SWOPES, Defendant-appellee/Cross-Appellant CASE |
| Court | Ohio Court of Appeals |
Criminal appeal from Court of Common Pleas Case No. 248495.
JUDGMENT AFFIRMED. REMANDED FOR RE-SENTENCING
STEPHANIE TUBBS JONES, CUYAHOGA COUNTY PROSECTOR BY: ROBERT TRUSIAK, ASSISTANT COUNTY PROSECUTOR, The Justice Center, 1200 Ontario Street, Cleveland, OH 44113, for Plaintiff-Appellant/Cross-Appellee.
MARLENE LALLY, 711 Statler Office Tower, Cleveland, OH 44115, for Defendant-Appellee/Cross-Appellant.
JOURNAL ENTRY AND OPINION
On January 31, 1990, defendant was indicted on two counts in violation of the drug laws, R.C. 2925.03(A) (6) and R.C. 2925.03(A) (2). The first count charged him with possession of an amount exceeding three times the bulk amount of a controlled substance. The second count charged defendant with preparing for shipment, shipping, transporting, delivering, preparing for distribution, or distributing a controlled substance. Prior to trial, defendant filed a motion to suppress self-incriminating statements made subsequent to arrest. The trial court overruled the motion. Defendant waived his right to a jury trial. The trial court found defendant guilty as charged in the indictment on both counts. Defendant was sentenced to five years actual incarceration on the first count, R.C. 2925.03(A) (6), and four to fifteen years on the second count, R.C. 2925.03(A) (2).
On January 10, 1990, members of the Cuyahoga County Sheriff's Department executed a search warrant for the premises of a two-family residence on East 67th Street in Cleveland, Ohio. The Narcotics Unit of the Sheriff's Department had had the house under surveillance for approximately two weeks and had conducted two controlled buys there before executing the warrant. Upon entering the upper part of the two-family they encountered a woman, Sherry Simms. The Narcotics Unit also found weapons, over one hundred grams of cocaine, assorted scales and plastic baggies, and $4,795.
According to the testimony of Detective Goe, of the Sheriff 's Department, the woman was asked who the owner of the premises was. She responded that Carlton Swopes was the owner, that he had just gone out to get some food at Wendy's and would momentarily be returning in a yellow Buick. The detective asked for Swopes's street name and the woman replied that it was "Clean."
The deputies returned to their cars and waited for the yellow Buick. As predicted by the woman a yellow Buick did return. It parked in the front of the residence and the horn was honked several times. When there was no response from the house, the car went northbound, turned around in the street, paused once again in front of the house and started taking off slowly back towards St. Clair. At this point the car was stopped by the members of the Sheriff's Department. Defendant and another man were' the occupants of the car.
The two men were escorted back into the house and placed under arrest. While in custody, defendant made several self-incriminating statements to the effect that the cocaine was his, as opposed to the woman's, and that he had inherited it from his younger brother, murdered a month before the arrest.
The defendant raises two assignments of error on cross-appeal.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED SUBSEQUENT TO A WARRANTLESS ARREST WHERE NO PROBABLE CAUSE EXISTED FOR THE WARRANTLESS ARREST.
On cross-appeal defendant argues that no probable cause existed for his arrest, rendering it Constitutionally invalid as a violation of his rights under Article One, Section Fourteen of the Ohio Constitution, and the Fourth and Fourteenth Amendments of the United States Constitution, and in contravention of R.C. 2935.04. Defendant asserts that the motion to suppress the statements made subsequent to the illegal arrest should have been granted by the trial court.
The conditions under which a warrantless arrest may occur are set forth in R.C. 2935.04:
When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense and detain him until a warrant can be obtained.
To determine whether the Sheriff's detectives had reasonable or probable cause to arrest defendant requires a review of the circumstances known to these officers.
The probable cause needed to make a warrantless arrest constitutionally valid requires that the arresting officer at the moment of arrest, have sufficient information, based on the facts and circumstances within his knowledge or derived from a reasonably trustworthy source, to warrant a prudent man in believing that an offense had been committed by the accused.
State v. Ingram (1984), 20 Ohio App. 3d 55, 57, following Beck v. Ohio (1964), 379 U.S. 89; State v. Fultz (1968), 13 Ohio St. 2d 79.
Several possible sources of the officer's information and knowledge which form the basis for probable cause are recognized under Ohio law. The "[r]easonable ground or probable cause for a warrantless arrest may be provided by the arresting officer's own observations, credible information from a reliable informant, or corroborated information from a less than reliable informant." State v. Sizer (1970), 25 Ohio Misc. 245, 250, quoting Draper v. United States (1959), 358 U.S. 307; Spinelli v. United States (1969), 392 U.S. 410.
To review what the officers knew at the time of defendant's arrest, the Sheriff's officers knew that a felony was being committed. Someone was in possession of a large quantity of cocaine. The someone in possession would likely be the owner of the premises where the drugs were just found. Up to the point of executing the search warrant for the premises, the officers were unable to determine the name of the person who owned the premises from their independent investigation. The officers then learned from speaking with the woman on the premises that the owner of the premises was named Carlton Swopes, also called Clean. Detective Goe testified that (transcript from the hearing on the motion to suppress, p.28). Detective Goe further testified on cross-examination that he had never seen the defendant during the surveillance of the house (transcript p. 23).
The detectives had sufficient information to warrant a prudent person's belief that a felony was taking place. However, the issue is whether the officers had sufficient information to warrant a prudent person's belief that the felony was being committed by the accused. Detective Goe stated that they had not observed the defendant at the house during the surveillance, nor was he the seller during the two controlled buys. Yet Detective Goe testified that they knew of a Clean as being the "main man."
In State v. Thompson (1965), 1 Ohio App. 2d 533, this court found that similar testimony by itself was not enough to find probable cause for the warrantless arrest. In that case the police had had a restaurant under surveillance for two weeks in an attempt to prosecute an illegal gambling operation. They had found betting slips on the premises of the restaurant. The officers had witnessed the defendant in that case several times at the restaurant and at the time of his arrest he was sitting at the counter eating pie. "[T]he officer testified that defendant was arrested for `carrying on a scheme of chance,' on the basis of `prior knowledge and our observations made prior to this date.'" State v. Thompson, at 534-35. This court held that State v. Thompson at 538.
It is the function of the trial court to determine from all the facts and circumstances presented whether the facts in the possession of a police officer are sufficient to cause a reasonable and prudent man to believe that a felony has been committed and whether the defendant participated in its commission, and only where the trial court can so find from substantial and credible evidence is probable cause present to justify an arrest without a warrant.
The court further stated that "`[i]f the court is not informed of the facts upon which the arresting officers acted, it cannot properly discharge that function.'" State v. Thompson at 538, quoting Beck v. Ohio (1964), 379 U.S. 89. If the trial court had had only Detective Goe's statement that they knew of a Clean as the "main man" then there would not have been enough evidence for the trial court to have fulfilled its function in making a probable cause determination.
However, the Sheriff's detectives had also the word of Sherry Simms, the woman found on the premises, that Carlton Swopes was the owner and that he also used the name Clean. This is more than the detectives had to link the defendant in State v. Thompson to the gambling operation.
The word of Ms. Simms is given weight in this analysis according to her apparent reliability. Because the police had never dealt with her before as an informant and she was not a citizen coming forward with information, she cannot be presump-tively reliable. In fact, Ms. Simms is the only person at the house when the detectives come in and find drugs, weapons and various paraphernalia. In this context Ms. Simms can be characterized as a less than...
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