State v. Earle

• Decision Date: 23 May 1997
• Docket Number: No. 96-L-051,96-L-051
• Citation: 120 Ohio App.3d 457,698 N.E.2d 440
• Parties: The STATE of Ohio, Appellee, v. EARLE, Appellant. *
• Court: Ohio Court of Appeals

Page 457

120 Ohio App.3d 457

698 N.E.2d 440

The STATE of Ohio, Appellee, v. EARLE, Appellant. ^*

No. 96-L-051.

Court of Appeals of Ohio Eleventh District, Lake County.

Decided May 23, 1997.

Charles E. Coulson, Lake County Prosecuting Attorney, Ariana E. Tarighati and Taylir K. Linden, Assistant Prosecuting Attorneys, Painesville, for appellee.

Richard P. Morrison, Willoughby, for appellant.

CHRISTLEY, Presiding Judge.

This is an appeal resulting from the denial of a motion to suppress wherein it was argued that there was a lack of reasonable suspicion to justify an investigative stop. The testimony at the suppression hearing set forth that, after a briefing preceding his 11:00 p.m. to 7:00 a.m. shift on June 30, 1996, Officer Eric Miller of the Painesville Police Department went on patrol.

At approximately 12:30 a.m., Officer Miller noticed a vehicle matching the description and license plate number of the vehicle involved in an earlier attempted drug sale as reported by the Lake County Narcotics Agency ("LCNA") at the briefing. That report was to the effect that there had been an attempted sale of crack cocaine in the Sanford Street area of Painesville involving a 1984, four-door blue Pontiac 6000 with Ohio License Plate Number SCA 073.

Shortly thereafter, Miller spotted the vehicle and followed it to three different convenience stores, within close proximity to each other, in a high crime area. The vehicle stopped at each store, with Tanya Earle, appellant, actually entering the first two stores, but apparently purchasing nothing. At the third store, Officer Miller watched as a male and a female walked up to the Pontiac, which had the driver's side window down. The male spoke to appellant for three or four minutes, but appellant never exited the vehicle. The Pontiac then left the parking lot. These stops took place within a thirteen-minute span of time.

Officer Miller advised the other officers on duty of the activities he had observed. He indicated that he was going to make a traffic stop based upon possible drug activity. He followed the Pontiac until backup officers arrived.

Officer Miller stopped and confronted appellant. Following routine questioning, appellant agreed to a search of the Pontiac and then exited the vehicle. Officer Miller was then advised by dispatch that appellant was driving under suspension and had no operator's license. Appellant was placed under arrest for driving under suspension.

Other officers arrived and an inventory search of the vehicle took place that revealed a Tic-Tac container, under the front passenger seat, containing white rocks that looked like crack cocaine. Some of the rocks were later tested by the Lake County Regional Forensic Laboratory and identified as crack cocaine.

The officers also found a pager attached to the driver's side visor, a cellular phone, and appellant's purse. The purse contained a receipt for the pager, approximately $270 in cash, a list of debtors, "E-Z Wider" rolling papers, a cigarette lighter, and a straight razor that was later tested and determined to have trace amounts of cocaine on it. These items were secured by the police officers.

Appellant initially denied that the purse belonged to her even though it contained all of her personal effects and identification. However, she took the purse with her to jail and claimed it as her property.

Officer John Levicki testified that he noticed that appellant's pager rang a number of times and he wrote down the telephone numbers from where the calls originated. This was done in an attempt to see whether the numbers matched known drug users or dealers. Officer Levicki noted that the pager rang between twenty-five and thirty times in the short time it took him to tag the evidence and complete the required paperwork.

Officer Levicki noted that one number, in particular, had paged appellant four or five times, so he called the number to try to set up a drug deal. He arranged to meet the male caller, but the caller never showed up. Officer Levicki called the man back to see why he did not show up, and the caller indicated that there were too many police officers in the area.

On October 19, 1995, appellant was indicted by the Lake County Grand Jury on one count of drug abuse, which the indictment indicated was a third degree felony, in violation of R.C. 2925.03. The indictment further indicated that appellant did knowingly possess 6.11 grams of crack cocaine, an amount greater than the bulk amount but less than three times the bulk amount. She was also indicted on one count of possession of criminal tools, in violation of R.C. 2923.24.

On December 13, 1995, appellant filed a motion to suppress. A suppression hearing was conducted on January 4, 1996, and on January 11, 1996, the trial court denied appellant's motion. A jury trial commenced on January 16, 1996. Just prior to trial, the state orally moved to amend the indictment on count one from "6.11 grams" to "forty rocks," and the title of the charge, from "drug abuse" to "trafficking in drugs." The trial court granted the motion, finding that the amendment did not change the substance or nature of the offense because the Revised Code section remained the same.

Appellant was found guilty on both counts on January 17, 1996. On January 31, 1996, appellant filed a motion to set aside the verdict and a motion for a new trial. The trial court denied these motions on March 4, 1996. On March 18, 1996, appellant was sentenced to serve an indefinite term of incarceration of one and one-half years on count one with a $3,000 fine and a two-year driver's license suspension, and one and one-half years on count two, to be served concurrent to the sentence on count one. Execution on the fine was suspended.

On April 2, 1996, appellant timely filed a notice of appeal with the following assignments of error:

"1. The trial court committed reversible error when it failed to grant the defendant's motion to suppress.

"2. The trial court erred when, over objection of defendant, the court allowed an amendment of the indictment which changed the identity and classification of the crime charged.

"3. The trial court erred in permitting the state to use a peremptory challenge in a racially discriminatory fashion thereby denying appellant equal protection under the law as guaranteed by the United States and the Ohio Constitutions.

"4. The trial court erred to the prejudice of the defendant when it allowed the jury to consider certain hearsay testimony as substantive proof of defendant's guilt.

"5. The trial court erred to the prejudice of the defendant when the trial judge did not consider defendant's motion for public payment of transcript of the suppression hearing until the morning of trial.

"6. The trial court erred to the prejudice of the defendant by admitting into evidence State's Exhibits 1-9.

"7. The jury verdict is against the manifest weight of the evidence and sufficiency of the evidence and should be reversed because it violates the fourteenth amendment of the United States Constitution Due Process Clause."

In the first assignment of error, appellant contends that the trial court erred when it denied her motion to suppress. Specifically, appellant asserts that the information received by the police officers from the LCNA, standing alone, lacked sufficient indicia of reliability and that the officers failed to corroborate the information. Appellant further alleges that Officer Miller stopped her despite not seeing her do anything illegal that would warrant a stop.

It is well established that the investigative stop exception to the Fourth Amendment to the United States Constitution warrant requirement allows a police officer to stop a motorist when he has a reasonable suspicion that criminal behavior has occurred, based upon specific and articulable facts. State v. Bailey (Dec. 29, 1995), Ashtabula App. No. 95-A-0023, unreported, at 4-5, 1995 WL 815477, citing Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Accordingly, "an officer's reasonable belief that a person is acting in violation of the law is sufficient to justify an investigatory stop." State v. VanScoder (1994) 92 Ohio App.3d 853, 855, 637 N.E.2d 374, 375. Investigatory stops must be examined by reviewing the totality of the circumstances surrounding the stop. State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271, 1272-1273, certiorari denied (1990), 501 U.S. 1220, 111 S.Ct. 2833, 115 L.Ed.2d 1002; State v. Bobo (1988), 37 Ohio St.3d 177, 178, 524 N.E.2d 489, 490-491, certiorari denied (1988), 488 U.S. 910, 109 S.Ct. 264, 102 L.Ed.2d 252.

The United States Supreme Court has stated that reasonable suspicion and articulable grounds deal with probabilities rather than hard certainties. United States v. Cortez (1981), 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629. The Cortez court stated:

"The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers." Id. at 418, 101 S.Ct. at 695, 66 L.Ed.2d at 629.

In State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044, the Supreme Court of Ohio considered certain factors in determining the reasonableness of an investigative stop based on the totality of the circumstances. Those factors include (1) the area of the investigation's reputation for being a high crime area, (2) the time of day, and (3) suspicious behavior. Id. at 295, 18 O.O.3d at 474-475, 414 N.E.2d at 1047; see, also, Bobo, at 178-179, 524 N.E.2d at 490-492.

In reviewing the trial court's decision regarding a motion to suppress, we are bound...