[Cite as State v. Freeman,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95608

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DEANGELO FREEMAN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-527332

BEFORE: Stewart, P.J., Sweeney, J., and Rocco, J.

RELEASED AND JOURNALIZED: November 3, 2011 ATTORNEYS FOR APPELLANT Andreas Petropouleas Oscar E. Rodriguez John W. Martin Co. & Associates, L.P.A. 75 Public Square, Suite 1414 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Marc D. Bullard Assistant County Prosecutor The Justice Center 1200 Ontario Street, 9th Floor Cleveland, OH 44113

MELODY J. STEWART, P.J.:

{¶ 1} This case is one of three criminal appeals originating from the same series

of events.1

{¶ 2} Defendant-appellant, Deangelo Freeman, appeals from the trial court’s

denial of his motion to suppress and asserts that there was no probable cause to support

the search and seizure resulting in his convictions, and that exigent circumstances were

concocted by law enforcement officials. Freeman additionally claims that his

convictions are against the manifest weight of the evidence, and that the trial court erred

The other appeals are State v. Atkinson, 8th Dist. No. 95602 and State v. Creighton, 8th Dist. 1

No. 95607. when it imposed consecutive sentences absent requisite findings pursuant to R.C.

2929.13(E).

{¶ 3} On February 28, 2008, the detectives from the Cuyahoga County Sheriff’s

Office observed and then arrested an individual for participating in a drug transaction. In

lieu of proceeding with criminal charges against him, the sheriff’s office elected instead

to solicit and secure his cooperation as a confidential informant (“CI”). The CI provided

information stating that he had purchased ecstasy from Freeman (a.k.a “Alo”) at a certain

address on several instances. The detectives and the CI proceeded to that address where

they observed a black Cadillac Escalade parked in front of the residence. The CI informed

them that the vehicle was associated with the residence. The detectives then decided to

utilize the CI to stage a controlled drug buy.

{¶ 4} The CI placed a recorded call to Freeman to arrange the purchase of a “jar”

(100 pills) of ecstasy at the targeted address. The CI was searched and then provided

with “buy” money, a recording device, and code words to signal that the drug deal had

been accomplished. The residence was placed under surveillance by the detectives. A

co-defendant, Lashawn Atkinson, exited the residence, entered the black Cadillac, and

drove away. The detectives followed him and when Atkinson failed to observe a stop

sign, the detectives made a traffic stop. Atkinson was subsequently arrested for driving

under suspension, and the search incident to arrest found him to be in possession of a

firearm, four tablets of Viagra, and $2,216 in cash. {¶ 5} The stakeout at the target address resumed, and the CI proceeded to the

residence and knocked on the front door but no one answered. He made another

recorded call to Freeman, who advised the CI that his acquaintance, Atkinson, had

moments ago been arrested and that a vehicle matching the description of the undercover

car utilized in the arrest was parked down the street from the target residence. After a

brief conversation, Freeman and co-defendant Deondray Creighton arrived at the

residence. They parked in the driveway, met with the CI, then the three entered the

residence.

{¶ 6} The detectives monitored conversations between Freeman and the CI, and

after the CI uttered the predetermined code words, the detectives proceeded to the front

and perimeter of the home to arrest the occupants upon their exit. Freeman opened the

front door then abruptly slammed and secured it after realizing that law enforcement was

on the front porch. The detectives overheard a flurry of commotion inside the residence

and interpreted it to be related to the destruction of evidence, since they also heard a

command to “flush it” via their electronic wire. The detectives testified that concerns for

the CI’s safety, as well as the potential destruction of evidence, prompted them to forcibly

enter the residence through an adjacent front porch window. Upon gaining entry, they

encountered Freeman and the CI near the stairs leading to the second floor, and Creighton

seated on the toilet of an upstairs bathroom. The detectives hurried to the basement of

the dwelling and fractured the sewer system’s soil stack in an attempt to retrieve drugs

they believed to have been flushed, but no drugs were recovered {¶ 7} Freeman and Creighton were patted down and arrested, and the “buy”

money supplied to the CI was found in Freeman’s pants pocket. The detectives

deceptively informed Freeman that ecstacy pills had in fact been retrieved and that DNA

testing would validate his possession of the drugs. Freeman verbally acknowledged that

they were probably correct. The CI was searched and had no drugs on him. The

detectives conducted a protective sweep of the premises and discovered two marijuana

“grow” labs in plain view. The detectives then obtained a search warrant.

{¶ 8} The warrant search uncovered: (1) torn and intact plastic baggies; (2) three

cell phones; (3) $420 from a couch console; (4) a loaded handgun with an extra

magazine; (5) a gas bill for the residence in Atkinson’s name; (6) an electric bill,

foreclosure notice, and tax statement for the residence in Freeman’s name; (7) a

residential lease in Creighton’s name; (8) a plastic baggie containing ecstasy; (9) Viagra

pills; (10) 41 potted marijuana plants; (11) grow lights and pots; (12) ductwork for

ventilation and high watt ballasts used to facilitate a growing operation; and (13) plant

food and plant chemicals.

{¶ 9} On December 15, 2008, Freeman was indicted, and on August 7, 2009,

re-indicted with a superseding nine-count indictment for trafficking and possession of

methamphetamines with schoolyard, firearm, and forfeiture specifications;

manufacturing, cultivating, trafficking, and possession of marijuana; having a weapon

under disability; carrying a concealed weapon; and possessing criminal tools. In

response, he filed a motion to suppress the evidence and a hearing took place on September 22, 2009. Freeman’s motion to suppress was denied on October 30, 2009,

and all three co-defendants were jointly tried on July 12, 2010.

{¶ 10} The jury found Freeman guilty on all nine counts contained in the

indictment, and the trial court sentenced him to 13-years incarceration. Freeman then

filed a notice of appeal. On March 29, 2011, this court sua sponte remanded the case to

the trial court for the purpose of correcting its sentencing entry to resolve forfeiture

specifications, thus rendering the trial court’s order final and appealable.

{¶ 11} In his first assignment of error, Freeman argues that the warrantless search

of the premises violated his Fourth Amendment rights because probable cause was

lacking and exigent circumstances were manufactured by the officers. Freeman claims

that the information provided by the newly-minted CI was unreliable and could not have,

standing alone, supported the petition for a warrant. He also states that information

provided by the CI associating him with the black Cadillac truck driven by Atkinson is

demonstrative of the CI’s untrustworthy predisposition. Freeman contends that trial

testimony reveals the detectives’ preordained game plan to conduct a warrantless entry

and search of the premises, since they testified to as much by repeatedly referring to an

“entry plan” and “entry team.” He alleges that the detectives entered the dwelling prior

to ascertaining that the CI had in fact purchased illegal drugs. Finally, Freeman notes

that the CI’s shout of “flush it” came only after the detectives blatantly surrendered their

surveillance positions in order to create the manufactured exigent circumstances. {¶ 12} The state contends that the exigent circumstances exception to a warrantless

search is applicable in the instant case, since protection of the CI along with preservation

of evidence was paramount. The state argues that probable cause is present since

warrantless entries based solely on listening to the completed drug transaction of a CI

have previously passed legal muster. On this occasion, the state asserts that probable

cause was provided the instant the drug transaction was heard.

{¶ 13} “In a motion to suppress, the trial court assumes the role of trier of fact and

is in the best position to resolve questions of fact and evaluate witness credibility. A

reviewing court is bound to accept those findings of fact if supported by competent,

credible evidence. However, without deference to the trial court’s conclusion, it must be

determined independently whether, as a matter of law, the facts meet the appropriate legal

standard.” State v. Curry (1994),

,

.

{¶ 14} “The right of the people to be secure in their persons, houses, papers and

effects, against unreasonable searches and seizures, shall not be violated, and no warrants

shall issue, but upon probable cause, supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” Fourth

Amendment to the United States Constitution. Probable cause “is a fluid concept, to be

based on the totality of the circumstances, and not reduced to a neat set of legal rules.”

State v. Ingram (1984),

,

citing Illinois v. Gates

(1983),

,

,

. Probable cause exists

when law enforcement has reasonably trustworthy information that is sufficient to convince a person of reasonable caution that contraband or evidence is at the location or

place to be searched. Beck v. Ohio (1964),

,

,

;

Carroll v. U.S. (1925)

,

,

.

{¶ 15} “[W]here the initial impetus for an arrest is an informer’s tip, information

gathered by the arresting officers can be used to sustain a finding of probable cause for an

arrest that could not adequately be supported by the tip alone.” Whiteley v. Warden,

Wyo. State Penitentiary (1971),

,

,

, citing

Draper v. United States (1959),

,

,

. When

determining if probable cause is present, information and tips received from informants is

but one factor to be considered within the totality of the facts and circumstances known to

law enforcement. Illinois v. Gates (1983),

,

,

.

{¶ 16} Law enforcement may not enter an individual’s home to effect a warrantless

arrest or search absent exigent circumstances, and as a general rule, “warrantless searches

are, per se, unreasonable, and therefore invalid unless they fall within one of the

established exceptions.” Payton v. New York (1980),

,

,

; State v. Morrison, 8th Dist. No. 88129,

; Katz

v. United States (1967),

,

,

. Police officers are

not permitted to intentionally initiate exigent circumstances to legitimize a warrantless

entry into a private residence. State v. Jenkins (1995),

,

. Exigent circumstances exist in situations “where the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action.”

U.S. v. Morgan (C.A.6, 1984),

. A warrantless entry by law

enforcement is permissible to prevent “the imminent destruction of vital evidence,” and

also “to protect or preserve life or avoid serious injury.” Wong Sun v. United States

(1963),

,

,

, Mincey v. Arizona (1978),

,

,

.

{¶ 17} While Freeman is correct in his argument that a mere tip from a

newly-minted confidential informant of questionable reliability would not suffice to

provide probable cause for the issuance of a warrant, the information provided by the CI

was nevertheless adequate for the detectives to initiate a controlled drug buy. Probable

cause that an illegal drug transaction had taken place emerged when the detectives

listened to the transaction by audio surveillance and overheard the completed drug sale.

{¶ 18} Furthermore, law enforcement’s establishing of a perimeter outside the

residence for the purpose of apprehending offenders involved in unlawful drug activity

cannot be rationally equated with self-created exigent circumstances. Freeman had

previously become alerted to the presence of law enforcement because he observed an

unmarked police vehicle in the vicinity of the residence, and had stated as much to the CI

prior to entering the home to complete the drug sale.

{¶ 19} Detective Zickes testified that after the sale was completed, Freeman

opened and then abruptly shut the front door when he spotted the detectives. Under the

circumstances, reasonable minds could conclude that the CI could be in danger if Freeman or Creighton suspected his involvement in the operation. The potential

destruction of evidence provided an additional exigency, since the detectives testified that

they overheard the order to “flush it.”

{¶ 20} Based upon the totality of the circumstances, probable cause, as well as

exigent circumstances, were present and justified the initial entry by the detectives. After

conducting a protective sweep of the residence, the detectives obtained a warrant based

upon contraband in plain view. Accordingly, Freeman’s first assignment of error is

overruled.

{¶ 21} Freeman, in his second assignment of error, argues that his resulting

convictions are against the manifest weight of the evidence because no ecstasy pills were

ever recovered and the CI’s testimony lacked credibility.

{¶ 22} A weight of the evidence calculus involves “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather than

the other.” State v. Thompkins,

,

,

.

The manifest weight of the evidence standard of review requires us to review the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Otten (1986),

,

, paragraph one of the syllabus. {¶ 23} Here, the potential unreliability of the CI and the failure to recover large

quantities of ecstasy is wholly offset by tangible as well as circumstantial evidence of

guilt. The detectives testified about the recording of the drug buy that captures

Freeman’s voice conducting an illegal drug sale. The buy money provided to the CI was

found on Freeman. Lieutenant Caraballo testified that he misrepresented to Freeman that

drugs had been recovered from the soil stack, and Freeman conceded to him that his DNA

would likely be recovered from the pills. An electric bill, gas bill, foreclosure notice, tax

bill, and other miscellaneous paperwork found on the scene was addressed to Freeman.

A sophisticated marijuana grow operation occupied several areas of the residence.

Evidence of guilt is both weighty and significant. Freeman’s second assignment of error

is overruled.

{¶ 24} Lastly, Freeman maintains that the trial court erred when it did not make

findings to justify consecutive sentences as required by statute.

{¶ 25} Ohio’s sentencing guidelines previously contained a presumption that

sentences were to be served concurrently, and a trial court was, in most instances,

required to make additional findings of fact prior to the imposition of consecutive

sentences. Thereafter, portions of Ohio’s felony sentencing structure were found to be in

conflict with the United States Supreme Court’s decision in Blakely v. Washington

(2004),

,

,

, and as a result, unconstitutional.

In State v. Foster,

,

,

, the supreme court

severed the offending portions of the applicable sentencing statutes. Consequently, the portions of the statutes previously mandating judicial fact-finding no longer have legal

effect. Instead, for purposes of consecutive sentencing, a trial court must only

“consider” the statutory factors. Id. at ¶42.

{¶ 26} Therefore Freeman’s third assignment of error is also without merit.

Judgment affirmed.

It is ordered that appellee recover of appellant its 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 Cuyahoga

County Common Pleas Court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MELODY J. STEWART, PRESIDING JUDGE

JAMES J. SWEENEY, J., CONCURS;

KENNETH A. ROCCO, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION

KENNETH A. ROCCO, J., CONCURRING IN JUDGMENT ONLY: {¶ 27} I concur in judgment only. I write separately to express my concern about

one of the reasons the majority relies on to justify the forced entry into the residence of

the appellant Freeman.

{¶ 28} The majority states, “[c]oncerns for the CI’s safety, as well as the potential

destruction of evidence, prompted them to forcibly enter the residence ***.” (Emphasis

supplied.) At oral argument, however, both sides conceded that there is no evidence in

the record Franklin (CI) was in danger. Indeed, Franklin was trying to leave the

residence with the pills in hand when the detectives were approaching the front porch to

enter the residence.

{¶ 29} The detectives listened via the transmitter as the controlled buy occurred.

Instead of waiting for Franklin to leave the 89th Street residence with pills in hand, when

the detectives heard money being counted and a description of the Ecstasy, they

immediately proceeded to the front door to apprehend Freeman. At the same time,

Franklin had walked to the front door and was about to exit when Freeman saw the police

approach the porch to enter the home. Freeman slammed the interior door shut and

locked it. Also, on the outside of the front door was an exterior iron security door that

was shut and locked. The detectives then heard Franklin shout “flush the shit.”

Franklin testified that following the detectives’ arrival, Freeman grabbed the Ecstasy from

Franklin and ran upstairs.

{¶ 30} Unable to enter the home, the detectives smashed through a front window

and gained entry without a warrant. Detective Zickes testified that once inside, he saw Freeman coming down the stairs from the second floor and apprehended him. Another

detective observed Freeman at the bottom of the stairs and Franklin about half-way up the

stairs to the second floor.

{¶ 31} The state never explained why the detectives did not wait for the CI,

Franklin, to exit the residence with the one hundred Ecstasy pills in hand, thereby

establishing him as a confidential reliable informant (CRI) to set up future drug buys

and/or a search of the residence with a warrant. Also unexplained is why Franklin

shouted “flush the shit” after he saw the detectives approach the front porch. The buy

appeared to be more out of control than “controlled.”

{¶ 32} Nonetheless, the concerns for the potential destruction of evidence justified

the detectives’ forcible entry in the appellant Freeman’s residence.

{¶ 33} For this reason I concur in judgment only.