[I.] THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT OVERRULED APPELLANT'S MOTION TO SUPPRESS.
Mendoza also assigns a second error:
[II] THE TRIAL COURT ERRED BY INDICATING THAT A "GUILTY" PLEA WAS ENTERED WHEN IN FACT, DEFENDANT ENTERED A "NO CONTEST" PLEA.
Because the trial court did not err in denying defendants' motions to supprеss, but erred in indicating Mendoza entered a guilty plea, we modify the trial court's judgment to reflect Mendoza entered a no contest plea, and affirm as modified.
{¶ 2} During the evening of July 20, 2007, undercover officers assigned to the Strategic Response Bureau of the Columbus Division of Police conducted a stаkeout of a parking lot where drug trafficking was known to occur. To support the undercover officers, two or three patrol units were waiting out of sight nearby; a canine unit also was ready to respond, if needed. Undercover officers watched the lot for approximately four hours without seeing any suspicious activity.
{¶ 3} Two vehicles, a Chevy Silverado and a Chevy Envoy, then entered the lot together, parked away from all the other cars, and left on their headlights. No one got out of the vehicles until a few minutes later, when a third vehicle, a Jeep, pulled up to them. *3 At that time, the passenger in the Silverado exited his vehicle, walked up to the driver's side of the Jeep, and touched closed fists with the driver. The Silverado passenger then reentered his vehicle, and all three vehicles left the parking lot about a minute later. Champagnie was driving the Silverado; Mendoza was his passenger.
{¶ 4} The undercover officers, located approximately 10 to 20 yards away from the three vehicles, were unable to see any money or narcotics exchanged. Detective David LaRoche, however, testified that, based on his experience as a "buy" officer on undercovеr narcotics investigations, the purpose of touching closed fists is to keep anyone from seeing the exchange of money and narcotics during the drug deal. Likewise, Detective William Best, who also witnessed the fist bump, described it as "typical — you can conceal heroin, crack coсaine, anything in the palm of your hand. Real quick drop it off. Pick up your money same hand and you're out." (Mar. 12, 2008 Suppression Hearing Tr. 52.)
{¶ 5} Although the undercover officers found the actions they just had witnessed to be suspicious, they did not actively pursue the three vehicles because they wanted both to protеct their cover and to not advertise that the parking lot was under surveillance. For these reasons, the three vehicles were not pulled over in the parking lot but were allowed to depart. At the request of the undercover officers, patrol units followed them. The Silverado and the Jeeр headed south on Interstate 71; the third left by another route, and police lost contact with it.
{¶ 6} The patrol units followed the Silverado and the Jeep several miles down the interstate until the Jeep exited the highway and stopped at a gas station. At that point, the *4 patrol units tailing both vehicles stoрped them. According to Officer Matthew Hammond, who pulled over defendants' vehicles, he obtained defendants' driver's licenses and requested a LEADS checks for each. The canine unit arrived, and the police dog "hit" on the vehicle, indicating the possible presence of drugs. Hammond then seаrched the Silverado where he found 11.96 pounds of marijuana and over $14,000 in cash.
{¶ 7} By indictment filed September 10, 2007, defendants were each charged with one count of possession of marijuana. After the trial court denied their suppression motions, defendants entered no contest pleas. The trial сourt found defendants guilty, sentencing each to three years of community control.
I. Shared Assignment of Error — Denied Motion to Suppress
{¶ 8} In their joint assignment of error, both defendants contend the trial court erred in denying their motion to suppress the evidence of marijuana found when police searched the Silverado. {¶ 9} "[A]ppellate review of а trial court's decision regarding a motion to suppress evidence involves mixed questions of law and fact."State v. Vest, 4th Dist. No. 00CA2576,
{¶ 10} Defendants argue the warrantless stop and subsequent search of their vehicle violated their
{¶ 11} The
{¶ 12} The propriety of an investigative stop must be viewed in light of the totality of the surrounding circumstances. State v. Bobo (1988),
{¶ 13} "In Bobo, the Ohio Supreme Court determined that the officers in question had reasonable suspicion to conduct an investigatory stop based upon a combination of factors, each with a possibly innocent explanation." State v. Davison, 9th Dist. No. 21825,
{¶ 14} Within those parameters, the totality of the circumstances present in this case gave police officers reasonable suspicion that defendants were engaged in a drug transaction. Indeed, the present case contains many of the same factors both enunciated in Bobo, supra, and determined in many other cases to support the conclusion that police possessed a reasonable and articulable suspicion to support aTerry stop. See State v. Atchley, 10th Dist. No. 07AP-412,
{¶ 15} Initially, defendants were spotted in a location known for drug dealing. While mere presence in a high crime area by itself fails to supply reasonable suspicion, State v. Wells (1990),
{¶ 16} Next, the two undercover officers deployed here had 13 and 15 years experience as police officers, respectively, with three and eight years experience working undercover where they handled narcotics and robbery cases. Both testified they had made hundreds of narcotics arrests and, more importantly, each had purchased narcotics as part of undercover investigations. The experienсe of the undercover officers in this case warrants consideration when assessing whether the police possessed reasonable suspicion, based on the totality of the circumstances, before conducting the investigatory stop of defendants. See Bobo, supra, quoting United States v. Hall (C.A.D.C. 1976),
{¶ 17} Under the Bobo factors, defendants' actions also contribute to a finding of reasonable suspicion. Although "a mere furtive gesture, standing alone, may not creаte sufficient reasonable suspicion in all cases," Atchley, at ¶ 15, defendants' actions, when considered in light of the totality of the circumstances, appear suspicious. Defendants' vehicle was parked alongside another vehicle, each with headlights still lit, in the corner of the parking lot a distanсe away from any other parked vehicles or the entrance to the facility. The occupants remained inside their respective vehicles until a third vehicle arrived. At that point, Mendoza exited the Silverado and exchanged a closed fist handshake with the occupant of the third vehiсle. Significantly, the observing undercover *8 officers knew the hand gesture as a means of exchanging drugs and money. While purchasing drugs during other undercover operations, the officers had themselves exchanged drugs and money in such a manner. The vehicles then quickly left, making the interaction appear even more suspicious.
{¶ 18} The sum total of these facts rebuts defendants' contention that the police were operating solely on a vague suspicion or a hunch. Although this court held that "an officer's belief that someone is `up to something' or that their actions are `not normal' does not neсessarily justify a reasonable suspicion that criminal activity is afoot," State v. Guinn (June 1, 2000), 10th Dist. No. 99AP-630, in this case the officers testified that they witnessed behavior consistent with a narcotics transaction in an area known for such activity. The officers thus were acting on more than a mere hunch. Given all of the noted factors, the police officers had a reasonable and articulable suspicion to stop defendants pursuant to Terry.
{¶ 19} Defendants next contend the length of their detention was unreasonable, rendering the search a violation of their constitutional search and seizure rights. Defendants' argument rests оn their claim that the police, waiting for the arrival of the police dog, detained them for 52 minutes after the initial stop. In support of their timeline, defendants point first to Hammond's testimony that his report indicated he arrested defendants at 10:25 p.m. and then to Best's statement that the police dog seаrch took place at 11:17 p.m.
{¶ 20} The testimony of Officer Charles Distelhorst, who deployed the police dog utilized that night, contradicts defendants' timeline. According to Distelhorst, he received *9 the initial request at 10:28 p.m. and arrived at the first vehicle at 10:33 p.m., where he conducted a search. He then wеnt to defendants' vehicle and deployed the dog at that location at 10:35 p.m., completing the search at 10:40 p.m.
{¶ 21} In response, defendants contend the time of 10:40 p.m. referred to in Distelhorst's testimony describes when he completed searching the first car, not defendants' vehicle. Distelhorst, however, was directly asked if the 10:40 p.m. time reference pertained to the first vehicle. Distelhorst replied, "I would say 10:40 probably [is] the cleared time on the second vehicle," noting the vehicles "were probably within 300 yards of each other." (Tr. 86.) After further questioning, Distelhorst reiterated, "I believe 10:40 is when I was done, completely done with both vehicles." (Tr. 87.) Moreover, other parts of Hammond's testimony contradict defendants' timeline. Hammond stated he was still running background checks on defendants when the canine unit arrived, and he estimated "no more than 15" minutes elapsed between the time defendants were stoppеd and the canine unit alerted on their vehicle. (Tr. 101.)
{¶ 22} In its decision, the trial court found the police officers' testimony credible, and on that basis it determined "a diligent means of investigation was pursued and was of such a nature (the canine sniff) to quickly confirm or dispel the suspicions of the detectives. As such, thе duration of the stop was reasonable." (Apr. 8, 2008 Decision and Entry, 5.) Since competent, credible evidence supports the trial court's finding of fact with regard to the length of time between the initial stop and the canine search of defendants' vehicle, we defer to the factual finding. Reedy, supra. *10
{¶ 23} Moreovеr, we agree that the duration was not unreasonable. In assessing the timeliness of a detention pursuant to an investigatory stop, "it is appropriate to consider whether police diligently pursued investigation likely to quickly confirm or dispel their suspicions."State v. French (1995),
{¶ 24} Because police possеssed reasonable suspicion that defendants were engaged in criminal activity before conducting the investigative stop, and because the length of detention was not excessive, the search of the vehicle was proper. The trial court did not err in denying defendants' motion to suppress. Dеfendants' shared assignment of error is overruled.
II. Mendoza's Assignment of Error — No Contest Plea
{¶ 25} Mendoza's second assignment of error asserts the trial court erred when it stated in its judgment entry that Mendoza entered a guilty plea to the indicted offense, as he actually entered a no contest plea. *11{¶ 26} Mendoza correctly points out a сlerical error in the trial court's July 16, 2008 judgment entry. Although the entry states Mendoza entered a guilty plea, the record from the plea and sentencing hearing reflects that Mendoza entered a no contest plea, not a guilty plea. Pursuant to Crim. R. 36, which permits a court to correct at any time clerical mistakes arising from oversight or omission, we modify Mendoza's judgment entry to correctly state Mendoza entered a no contest plea.
{¶ 27} Having overruled defendants' shared assignment of error, but having sustained Mendoza's second assignment of error, we (1) affirm as modified the judgment of the trial court regarding Mendoza in case No. 08AP-645, and (2) affirm the judgment of the trial court regarding Champagnie in case No. 08AP-689.
No. 08AP-645 affirmed as modified; No. 08AP-689 affirmed.