State v. Cancel

KRUPANSKY, J.

On June 8, 1988 defendant Enero Cancel was indicted for possession of cocaine in less than bulk amount in violation of R.C. 2925.11, drug abuse, in case number CR-227194. Defendant filed a motion to suppress the cocaine seized from his person on July 13, 1988. A hearing was held on the motion to suppress the evidence on August 26, 1988, after which defendant's motion was denied. Defendant entered a plea of no contest to the charge and was sentenced on October 18, 1988 to one and one-half years in the Ohio Reformatory, which sentence was suspended. Defendant was placed on two years probation. Defendant timely appeals.

The relevant facts from the testimony at the suppression hearing follow:

Sergeant Robert Hunt of the Second District Vice Unit of the Cleveland testified that on April 19, 1988 at approximately 7:30 p.m., his unit and the police Strike Force were working in concert to execute a search warrant for the premises located at 5415 Bridge Avenue, Apartment 2, its curtilage and persons present. Apartment two was the first apartment on the right hand side of the first floor. Hunt testified the warrant issued due to the many complaints the department received in connection with drug sales in front of the Bridge Avenue building. Hunt testified he had personally witnessed drug transactions in the past at the Bridge Avenue address. Hunt related that the usual pattern of drug sales followed two scenarios, viz., (1) a person would approach an automobile parked at the curb in front of the address, receive cash and exchange drugs immediately or, (2) a person would take the cash from the vehicle occupant and return to the building before reappearing with the drug quantity requested.

On the evening in question, Hunt testified he was accompanied by several identifiable police vehicles including some black and white zone cars as well as some unmarked vehicles. Hunt saw defendant standing next to an automobile parked at the curb immediately in front of the Bridge Avenue apartment building, when all the above police vehicles converged to execute the warrant. Defendant immediately walked away from the vehicle at which he was standing and started for the front door of the apartment building described in the warrant as soon as the police vehicles converged on the area.

Defendant was within five feet of the entrance door when Hunt stopped and searched him. Hunt confiscated a matchbook containing 1.03 grams of cocaína Defendant's sole assignment of error follows:

"WHETHER THE EVIDENCE SEIZED FROM DEFENDANT-APPELLANT SHOULD HAVE BEEN SUPPRESSED?"

Defendant's sole assignment of error lacks merit.

Defendant argues the cocaine seized from defendant's person should have been suppressed. Specifically, defendant maintains:

"(1) Officer Hunt had no probable cause for a search,

"(2) Officer Hunt was not conducting a Terry "pat down" but was looking for drugs,

(3) defendant's proximity to a high drug problem area is not sufficient articulable facts to justify the officer's reasonable suspicion that defendant was engaged in criminal activity."

Defendant's argument is unpersuasive.

The fourth amendment to the United States Constitution provides that people are protected against unreasonable searches and seizures. Ohio law provides that any person may be arrested for a felony without a warrant "upon reasonable cause to believe that a felony has been committed and reasonable cause to believe defendant committed it." R.C. 2935.04. Further, when the arrest is conducted by a police officer, the arresting officer at the moment of arrest, under the facts and circumstances within the officer's knowledge must be sufficient to warrant a prudent man in believing that (1) the person to be arrested had committed or was committing an offense, or (2) that evidence was linked to a crime and was presently in the place to be searched. Beck v. Ohio (1964), 379 U.S. 89.

Mere furtive movements and presence in a bad area not sufficient to rise to the level of probable cause. State v. Hill (1977), 52 Ohio App. 2d 393. A police officer may make an investigative stop of an individual where, under the totality of the circumstance^ the officer has a reasonable basis to suspect criminal activity. Cf. State v. Bobo (1988), 37 Ohio St. 3d 177, 180-181 (listing seven factors to consider when inquiring into totality of the circumstances)

Defendant's reliance on Brown v. Texas (1979), 443 U.S. 47 is misplaced. In Brown, the defendant was merely in the neighborhood where drugs were bought and sold. That is not supported by the facts of the case subjudice.

The police officer, Sergeant Hunt, a seasoned veteran with twenty-six years on the force, testified surveillance revealed 5415 Bridge avenue was a drug housa Sergeant Hunt described a drug buy as follows:

"Q. Did you have occasion to conduct any surveillance of that address?

"A. Yes.

"Q. Did you see evidence of drug sales at that address?

"A. Yes. We have made prior arrests in front of that building in which persons walk up to the automobile that pulls up there; either money is transacted and then the person leaves and go into the building at 5415 Bridge, returns and hands something into the automobile; on other occasions money and whatever they are handing into the automobile is transacted right there."

Sergeant Hunt further testified the defendant's behavior comported with that of a drug transaction. Defendant was directly in front of the Bridge Avenue address at an automobile parked at the curb. Upon the arrival of the police en masse, defendant turned around and headed for the entrance to the building. At this juncture, Sergeant Hunt testifiedhe reasonably believed a drug transaction had taken place. Considering Hunt's twenty-six years experience, the search warrant for the Bridge Avenue building and the fact defendant was within the route of trade, i.e., the path from a parked vehicle to within five feet of entering said building, the search of defendant was entirely reasonable. Coupled with Sergeant Hunt's twenty-six years experience as a police officer, his previous surveillance of 5415 Bridge Avenue a known drug house and defendant's modus operandi, it was reasonable under the totality of the circumstances for Sergeant Hunt to believe; (1) a crime was in progress and/or (2) a drug transaction had just been completed. See Beck, supra. Therefore, since probable cause is based on an objective standard of reasonableness, Officer Hunt had probable cause to arrest defendant. id. Officer Hunt admits he did not conduct a pat down of defendant but a search based on probable cause.

Furthermore, in the case subjudice, Officer Hunt testified he was armed with a search warrant for 5415 Bridge Avenue, Apt. 2, its curtilage and persons present.

A warrant for the search of premises implicitly confers a limited authority on police officers to conduct investigative detentions of individuals found on the premises who can be reasonably connected to the property. State v. Schultz (1985), 23 Ohio App. 3d 130, 135, 136. More specifically, law officers executing a search warrant for a. known drug house may detain individuals observed leaving the house who may be reasonably connected to drug activity. State v. Bridges (Oct. 5, 1989), Cuyahoga App. No. 55954, unreported, citing State v. Cain (Aug. 19, 1986), Montgomery App. No. CA-9384, unreported; State v. Prince (May 15, 1985), Clermont App. No. CA84-09-063, unreported. In the case sub judice, when a warrant is executed for a known drug house it is equally as reasonable to detain one who has been seen behaving at an automobile as if a transaction had taken place, who seeks to quickly reenter the premises. Bridges, supra.

The police surveillance identified 5415 Bridge Avenue as a drug house. Illegal drug purchases at the house had been witnessed by the police and prior arrests made. Sergeant Hunt had twenty-six years experience. Hunt observed defendant at an automobile and, as police pulled up, defendant quickly walked to within five feet of the dwelling for which the warrant was issued. The police had probable cause to search defendant.

Probable cause exists when the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent man in believing that an offense has been committed. Beck, supra. Where, as here, the police observed the following:

"(1) defendant was in front of a known drug house,

"(2) defendant was conversing with an occupant of a car in front of said house,

"(3) defendant left the car quickly to re-enter the premises when police arrived, and

"(4) the police were armed with a warrant for the premises. Presented with these facts, the police had probable cause to search defendant. The search of defendant was reasonable under the totality of the circumstance^ hence, there was no violation of defendant's fourth amendment rights under the United States Constitution."

Therefore, under either the warrant or probable cause requirement of an arrest and search, the search of defendant was proper. Defendant's sole assignment of error is without merit and overruled.

Judgment affirmed.

PATTON, C.J., concurs. NAHRA, J., dissents.