State v. Tolbert

[Cite as State v. Tolbert, 2013-Ohio-577.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98310
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VERNON TOLBERT III
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-552752
BEFORE: Kilbane, J., Celebrezze, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: February 21, 2013
ATTORNEY FOR APPELLANT
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Stephanie Heibertshausen
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Vernon Tolbert III (“Tolbert”), appeals the trial
court’s judgment denying his motion to suppress. For the reasons set forth below, we
affirm.
{¶2} In July 2011, Tolbert and codefendant, Richard Williams (“Williams”),
were charged in a six-count indictment. Counts 1 and 6 charged Tolbert and Williams
with drug trafficking and carried forfeiture specifications and a one-year firearm
specification. Count 2 charged each of them with drug possession and carried forfeiture
specifications and a one-year firearm specification. Count 3 charged each of them with
possessing criminal tools and carried forfeiture specifications. Count 4 charged Tolbert
with having a weapon while under disability and carried a weapon forfeiture
specification. Count 5 charged Tolbert and Williams with receiving stolen property.
{¶3} In September 2011, Tolbert filed a motion to suppress the evidence
obtained against him. Specifically, he argued that the Cleveland police lacked
reasonable suspicion to stop his vehicle. The state of Ohio (“State”) opposed, and the
trial court held a hearing on the motion in February 2012. The following evidence was
adduced at the suppression hearing.
{¶4} Detective Kevin Fairchild (“Fairchild”) of the Cleveland Police Department
testified that in July 2011 he conducted an investigation of Tolbert and Williams based on
information he obtained from a confidential reliable informant (“CRI”). The CRI
advised that “Moozey,” who was later determined to be Williams and “Z,” who was later
determined to be Tolbert, were trafficking drugs together. On July 14, 2011, Fairchild
participated in a controlled drug transaction with the CRI. The CRI placed a call to
Williams from Fairchild’s cell phone. The call was on speakerphone, so Fairchild heard
the CRI order crack cocaine from “Moozey.” Fairchild then drove the CRI to Williams’s
residence on West 97th Street in Cleveland. Fairchild searched the CRI and determined
that he was free of drugs and contraband. Fairchild gave the CRI buy money to complete
the drug transaction with Williams. The CRI met with Williams on the outside deck of
Williams’s second floor apartment. Fairchild was not able to see the transaction, but two
other detectives, who assisted with the surveillance, were able to see that Tolbert was also
outside. The CRI returned with the requested crack cocaine. Fairchild testified that he
observed Tolbert’s vehicle outside Williams’s residence. The CRI informed Fairchild
that Tolbert was Williams’s driver because Williams did not have a vehicle.
{¶5} The next day, the CRI and Fairchild placed another controlled call to
Williams, and the CRI ordered the same amount of crack cocaine. Fairchild drove the
CRI to Williams’s apartment again and waited outside while the CRI entered Williams’s
residence. The CRI returned approximately 15 minutes later with the crack cocaine. On
July 19, 2011, the CRI and Fairchild placed a third controlled call to Williams. The CRI
was fitted with a recording device, which was monitored by Fairchild. Fairchild drove
the CRI to Williams’s residence again. Williams was alone, but stated to the CRI that
“Z” was bringing drugs to him. Approximately 15 minutes later, Tolbert arrived in a
Chevy Camaro. Fairchild observed Tolbert enter through the back gate area and proceed
upstairs to the second floor deck. Fairchild testified that the other detectives observed
three males on the deck. The CRI returned with the ordered crack cocaine and said that
“Z” brought it to him.
{¶6} Then on July 21, 2011, the CRI and Fairchild placed a fourth controlled call
to Williams. The CRI ordered an ounce and a half of crack cocaine. Williams stated
that he was at his father’s house and that he has to wait for “Z” to pick him up. The two
other detectives were conducting surveillance on Williams while Fairchild was with the
CRI. The CRI arranged to meet Williams at the Holiday Inn at West 150th Street and
Interstate 71 in Cleveland. The detectives observed Tolbert arrive at Williams’s father’s
home in his Chevy Camaro. Tolbert exited his vehicle and approached Williams, who
was sitting on the front porch. Williams and Tolbert spoke for a few minutes and then
Williams got into the car with Tolbert. The detectives followed Tolbert and Williams as
they drove to the buy site. Fairchild testified that during the phone call, he heard
Williams state that he had the drugs on him, but had to wait for Tolbert to pick him up.
Fairchild further testified that the detectives stopped Tolbert approximately 100 yards
from the buy site because they “determined during the phone calls that [Williams] stated
that he had the drugs on him already and he was just waiting for [Tolbert] to pick him
up.” Fairchild was with the CRI and could observe the stop. The detectives secured
Tolbert and Williams and searched Tolbert’s car, where they found a gun under the
driver’s seat, the ordered crack cocaine, and a digital scale.
{¶7} At the conclusion of the hearing, the trial court denied Tolbert’s motion to
suppress, finding that the CRI provided reliable information, which gave the police a
reasonable basis to stop the vehicle. The trial court stated that:
the[se] facts suggest that the state had a fair degree of confidence in relying
on the last representations made by the CRI. Those facts, obviously, have
to do with the amount of time which they were involved with the CRI over
a period of days during which transactions were made, during which
[Tolbert] was in the company of [Williams] virtually at the same time that
transactions were being made.
So the CRI, for the purposes of this scenario and the information provided
was credible.
And then the next question is, if credible was it sufficient to allow the
police to act upon it * * * was it sufficient information, credible information
upon which a decision to stop this vehicle could have been made[?]
And the answer to that again is yes.
{¶8} Tolbert then pled no contest to the charges, and the trial court found him
guilty of all counts and specifications. The trial court merged each of the firearm
specifications and Counts 1, 2, and 6 for purpose of sentencing. The court ordered that
the one-year firearm specification be served prior and consecutive to the four-year
sentence on Count 1. The trial court ordered one-year in prison on each of Counts 3, 4,
and 5, to be served concurrent to each other and concurrent to Count 1 for total of five
years in prison.
{¶9} Tolbert now appeals, raising the following sole assignment of error for
review.
ASSIGNMENT OF ERROR
The trial court erred in entering an order denying [Tolbert’s] motion to
suppress evidence.
Standard of Review
{¶10} In reviewing a trial court’s ruling on a motion to suppress, the reviewing
court must keep in mind that weighing the evidence and determining the credibility of
witnesses are functions for the trier of fact. State v. DePew, 38 Ohio St.3d 275, 277,
528 N.E.2d 542 (1988); State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).
A reviewing court is bound to accept those findings of fact if supported by competent,
credible evidence. See State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th
Dist.1994), citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990). The
reviewing court, however, must decide de novo whether, as a matter of law, the facts
meet the appropriate legal standard. Id.; see also State v. Claytor, 85 Ohio App.3d 623,
627, 620 N.E.2d 906 (4th Dist.1993).
Search and Seizure
{¶11} In his sole assignment of error, Tolbert argues that the police should have
obtained a search warrant prior to the search his vehicle. He further argues that the
police lacked probable cause to stop his car.
{¶12} The Fourth Amendment to the United States Constitution prohibits
warrantless searches and seizures, with some exceptions. Katz v. United States, 389 U.S.
347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A warrantless arrest is unconstitutional unless
the arresting officer has probable cause to make the arrest at that time. State v. Timson,
38 Ohio St.2d 122, 127, 311 N.E.2d 16 (1974). Probable cause exists when officers have
“‘facts and circumstances within their knowledge and of which they [have] reasonably
trustworthy information’ that would sufficiently ‘warrant a prudent man in believing that
the [suspect] had committed or was committing an offense.’” State v. Fannin, 8th Dist.
No. 79991, 2002-Ohio-6312, quoting Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d
142 (1964).
{¶13} Furthermore, the Fourth Amendment allows a police officer to stop and
detain an individual if the officer possesses a reasonable suspicion, based upon specific
and articulable facts, that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 9,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In deciding whether reasonable suspicion exists,
courts must examine the “‘totality of the circumstances’ of each case to determine
whether the detaining officer has a ‘particularized and objective basis’ for suspecting
legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d
740 (2002), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66
L.Ed.2d 621 (1981); see also State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988),
paragraph one of the syllabus, citing State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d
1044 (1980).
{¶14} We agree with the trial court’s finding that the police, in the instant case,
had sufficient and credible information upon which to stop Tolbert’s vehicle. The
evidence revealed that Fairchild orchestrated an investigation concerning the sale of
illegal drugs with the CRI’s assistance. Fairchild testified that three controlled buys were
completed with the CRI and Williams — the first buy on July 14, 2011, the second buy on
July 15, 2011, and the third buy on July 19, 2011. The controlled buys were arranged
between the CRI and Williams on Fairchild’s cell phone, while Fairchild listened on
speakerphone. When the detectives conducted their surveillance, they observed
Tolbert’s vehicle parked outside of Williams’s residence and observed Tolbert outside on
July 14, 2011, while the CRI completed the drug transaction with Williams. During the
controlled buy on July 19, 2011, Fairchild heard Williams tell the CRI that Tolbert would
be bringing the drugs to him. Detectives then observed Tolbert arrive at Williams’s
residence in his vehicle. Tolbert entered through the back gate area and proceeded
upstairs to the second floor deck. The detectives observed three males on the deck. The
CRI then returned with the crack cocaine and said that Tolbert brought it.
{¶15} When the fourth controlled call was placed on July 21, 2011, which was
seven days after the first controlled buy, Fairchild testified that Williams stated that he
had the drugs, but he was at his father’s house, so he had to wait for Tolbert to pick him
up. The other detectives conducted surveillance on Williams, while Fairchild was with
the CRI. The detectives observed Tolbert arrive at Williams’s father’s home in his
vehicle. Williams and Tolbert spoke for a few minutes and then Williams got into the
car with Tolbert. The detectives followed Tolbert and Williams as they drove to the buy
site. Based on Williams’s statement to the CRI, the detectives determined that the drugs
were in the car and stopped Tolbert and Williams approximately 100 yards from the buy
site. When the detectives searched Tolbert’s car, they found the crack cocaine the CRI
ordered, a gun, and a scale.
{¶16} In State v. Hale, 8th Dist. No. 92856, 2010-Ohio-3306, we addressed an
analogous situation where we concluded that the police had probable cause to stop the
defendant’s vehicle and arrest him. The testimony at the suppression hearing revealed
that a controlled buy was arranged for a CRI to purchase three pounds of marijuana from
a dealer. The officers set up surveillance and observed the defendant drive up to the
dealer’s mobile home. The passenger exited the vehicle with a black garbage bag in his
hand, while the defendant remained in his vehicle. The passenger entered the mobile
home and left four minutes later, empty-handed. The police then decided to stop the
defendant and the passenger. While the dealer’s wife entered the mobile home at the
same time with a bag in her hand, we still found the police had probable cause to stop
defendant’s car because the car arrived at the time the supplier was supposed to arrive, the
passenger exited the car carrying a bag that was consistent with the shape of three pounds
of marijuana, the passenger exited the mobile home with nothing in his hands, the
defendant and the passenger began to drive away from the trailer park, and the CRI called
the dealer ten minutes later and confirmed the delivery of the drugs. Based on the
totality of these circumstances, we held that the evidence supported the trial court’s
finding that probable cause existed to stop defendant’s vehicle. Id. at ¶ 15.
{¶17} Similarly, in the instant case, we find that competent and credible evidence
to support the trial court’s finding that probable cause existed to stop Tolbert’s vehicle.
The police used a CRI to complete three successful controlled buys within five days.
The fourth controlled buy was a week after the first buy was completed. The controlled
buys were arranged while Fairchild listened on speakerphone. The officers’ surveillance
revealed that Tolbert was present at the first buy and four days later on the third buy. On
the fourth buy, Fairchild heard Williams state that he was at his father’s house and that he
has to wait for “Z” to pick him up. The detectives then observed Tolbert pick up
Williams and drive to the meet location. The totality of these circumstances gave
Fairchild a particularized and objective basis for suspecting legal wrongdoing and gave
the police probable cause to stop and search Tolbert’s vehicle. Therefore, the trial
court’s denial of Tolbert’s motion to suppress was proper.
{¶18} Accordingly, the sole assignment of error is overruled.
{¶19} Judgment is affirmed.
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
PATRICIA A. BLACKMON, J., CONCUR