State v. Tolbert

2013 Ohio 577

• Court: Ohio Court of Appeals
• Decided: February 21, 2013
• Docket: 98310
• Status: Published

Opinion

[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