DECISION AND JUDGMENT

YARBROUGH, P.J.

I. Introduction

{¶ 1} Appellant, Sherrie Powell, appeals the judgment of the Toledo Municipal Court, sentencing her to one year of probation for failing to inform law enforcement that she was carrying a concealed weapon at a traffic stop. We reverse.

A. Facts and Procedural Background

{¶ 2} The incident giving rise to this criminal appeal occurred at around 3:00 a.m. on March 25, 2012. At that time, appellant was returning home from hosting a party at a Toledo-area club. She was driving along Central Avenue, traveling in excess of the posted speed limit. Three other females were riding in the vehicle with appellant.

{¶ 3} At some point, appellant determined that she needed to make a left turn. Because she was driving in the right lane at the time, appellant needed to merge into the left lane to complete the turn. In doing so, however, appellant nearly collided with an unmarked police vehicle occupied by four detectives.

{¶ 4} After witnessing the near-collision, two Toledo police patrol officers initiated a traffic stop. To do so, the officers pulled behind appellant's vehicle and activated their lights and siren. The detectives in the unmarked police vehicle also stopped. The detectives had recently executed a search warrant at Big Shots Bar in Toledo, and were wearing masks to protect themselves from the tear gas that was dispensed upon their entrance into the bar. As the detectives pulled alongside appellant's vehicle, the driver of the vehicle, Sergeant Morelli, noticed that appellant was reaching toward the glove compartment. He alerted the other detectives of appellant's movement. Fearing that appellant may have been reaching for a weapon, the detectives exited their vehicle with guns drawn, and ordered everyone out of appellant's vehicle. Appellant and the passengers were subsequently placed at the back of the vehicle while the officers secured the area. Detective Sweat testified that this was done in order to eliminate the possibility that someone would grab a weapon from a compartment inside the vehicle.

{¶ 5} After securing the passengers, appellant was patted down. During that time, Morelli was standing next to appellant, where he was able to detect an odor of alcohol coming from appellant. Further, Morelli noticed that appellant's eyes were "glassy" and her speech was slurred. Meanwhile, Sweat and Detective Boudreaux began to search the vehicle.

{¶ 6} Within two minutes of the initiation of the search, Boudreaux located a firearm in the glove compartment. The individual who was riding in the front passenger seat of the SUV indicated to the officers that appellant had a concealed carry permit. Appellant did not inform the officers that she was in possession of a firearm, nor did she indicate that she held a concealed carry permit.

{¶ 7} As a result of appellant's apparent intoxication and failure to inform the officers that she was in possession of a firearm, appellant was arrested and subsequently charged with, inter alia, one count of carrying a concealed weapon—failure to inform a law enforcement officer in violation of R.C. 2923.12(B)(1), and one count of using a weapon while intoxicated in violation of Toledo Municipal Code 549.03. Appellant entered a plea of not guilty and a jury trial ensued. Upon completion of the trial, the jury found appellant guilty of carrying a concealed weapon—failure to inform a law enforcement officer, and not guilty of using a weapon while intoxicated. The trial court proceeded immediately to sentencing, and appellant was placed on probation for one year and ordered to pay court costs. It is from this judgment that appellant now appeals.

B. Assignments of Error

{¶ 8} On appeal, appellant assigns the following errors for our review:

II. Analysis

{¶ 9} For ease of discussion, we will address appellant's assignments of error out of order.

A. Trial Court's Response to Jury Question

{¶ 10} In her second assignment of error, appellant asserts that her right to a fair trial was denied when the trial court responded to a written question from the jury. Specifically, appellant argues that, under State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188 (1989), the trial court was required to give a supplemental instruction to the jury in response to the forewoman's, Sherry Scott, statement that she did not believe the jury would be able to reach a verdict as to one of the charges.

{¶ 11} During deliberations, a question was posed to the trial court by the jury. Prior to responding to the question, the trial court engaged in the following discussion with defense counsel and the prosecution:

{¶ 12} The jury was subsequently brought into the courtroom, and the following discussion took place:

{¶ 13} Appellant argues that the foregoing conversation demonstrates "that the jurors did not understand how they were to approach reaching the verdicts and recording the verdicts in the case." Consequently, appellant argues, the trial court should have provided a supplemental instruction to the jury to deal with the confusion they were experiencing. To the contrary, the state contends that a supplemental instruction was not necessary because the jury was not deadlocked at the time the discussion took place.

{¶ 14} Under Howard, a supplemental instruction should be given by the trial court to the jury upon a determination that the jury is deadlocked on the question of conviction or acquittal. Howard at paragraph one of the syllabus. The substance of the instruction was set forth in Howard as follows:

{¶ 15} The decision to provide a Howard instruction is within the sound discretion of the trial court and, therefore, will not be reversed absent an abuse of that discretion. State v. Witcher, 6th Dist. Lucas No. L-06-1039, 2007-Ohio-3960, ¶ 28. An abuse of discretion connotes that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 16} Here, we find that the trial court did not err in responding to Scott's concern that the jury was not going to get a verdict on one of the charges. When read in its context, it is clear that Scott's statement was not meant as a statement that the jury was deadlocked. Instead, the statement was made in response to the trial court's suggestion that the jury recess for the evening if they were unable to reach a verdict on both charges by 6:00 p.m. Since it was already after 5:00 p.m. when the discussion took place, Scott was indicating to the court that the jury was unlikely to reach a decision by 6:00 p.m., not that the jury would be unable to reach a decision altogether. Thus, because the jury was not deadlocked at the time, a supplemental instruction was not necessary. State v. Minnis, 10th Dist. Franklin No. 91AP-844, 1992 WL 30720, *4 (Feb. 11, 1992) (stating that a Howard instruction is to be given to a jury "when a determination has been made that the jury is deadlocked in its decision").

{¶ 17} Accordingly, appellant's second assignment of error is not well-taken.

B. Ineffective Assistance of Counsel

{¶ 18} In her third assignment of error, appellant argues that she was deprived of the effective assistance of trial counsel.

{¶ 19} To support a claim for ineffective assistance of counsel, appellant must satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that but for counsel's error, the result of the proceedings would have been different. Id. at 687-688, 694. In Strickland, the United States Supreme Court opined,

{¶ 20} Here, appellant asserts that trial counsel was ineffective because he did not request a Howard instruction, failed to preserve his definition of "promptly" for the record, and failed to file a motion to suppress.

{¶ 21} Concerning the Howard instruction, we have already determined that such an instruction was unnecessary because the jury was not deadlocked. Thus, counsel's failure to request such an instruction was not unreasonable under the circumstances.

{¶ 22} As to appellant's assertion that trial counsel was ineffective for failing to preserve the record, we find that appellant was not prejudiced by counsel's efforts. Indeed, the definition that was included in the jury instructions was the definition proffered by defense counsel. The trial transcript contains the following discussion, which took place outside the hearing of the jury at the close of evidence:

{¶ 23} Notably, defense counsel's definition of "promptly" was considered and adopted by the trial court for use in the jury instructions. Moreover, out of the two definitions that were proffered, defense counsel's definition was the most favorable to appellant. Therefore, we find that appellant was not prejudiced by defense counsel's failure to preserve the record.

{¶ 24} Next, we turn to appellant's argument that defense counsel was ineffective for failing to file a motion to suppress.

{¶ 25} We note at the outset that failure to file a motion to suppress does not constitute ineffective assistance of counsel per se. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). To establish ineffective assistance of counsel for failure to file a motion to suppress, a defendant must prove that there was a basis to suppress the evidence in question. State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35.

{¶ 26} Here, appellant argues that defense counsel should have filed a motion to suppress regarding the stop and search of the vehicle. In particular, appellant asserts that the warrantless search of her vehicle constituted an unreasonable search under the Fourth Amendment. The state responds by arguing that the initial stop of the vehicle was permissible based on appellant's testimony that she was speeding. As to the search of appellant's vehicle, the state contends that "[o]nce stopped, the police had the right to search the vehicle for any weapons that would have been within reach of any of the many passengers within the vehicle."

{¶ 27} The Fourth Amendment generally prohibits unreasonable searches and seizures with limited exceptions. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Warrantless searches conducted outside these exceptions are per se unreasonable. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

{¶ 28} With regard to the basis for the stop, several officers testified that appellant abruptly changed lanes as she was driving along Central Avenue, nearly causing a collision with the detectives. Regarding appellant's operation of her vehicle, Detective Whatmore stated: "I saw an SUV * * * coming up on our right and it cut us off. It swerved into our lane, real quick, and cut us off and our driver — our sergeant, who was driving, was able to keep control of our vehicle. And at that time, we were all a little stunned." Sergeant Morelli testified that appellant's vehicle "came up, actually, in our lane at a high rate of speed and swerved to the other lane and swerved back over and cut us off." In light of such testimony, we find that the officers had reasonable suspicion to believe that appellant had committed a traffic offense. Further, appellant testified that she was speeding at the time she was pulled over by the police. Thus, we find that the initial stop was not unreasonable under the Fourth Amendment. See Terry at 22 (concluding that a police officer may conduct an investigatory stop based upon reasonable suspicion that the person stopped is involved in criminal activity).

{¶ 29} Having concluded that the stop was permissible, we now turn to the constitutionality of the subsequent search of appellant's vehicle. A protective search is permitted so that police may discover weapons on or near a suspect which might pose a threat to the officer's safety. The reasonableness of a protective search of an automobile was addressed by the United States Supreme Court in Michigan v. Long, 463 U.S. 1032, 1045-1052, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). There, the court held that a warrantless protective search of an automobile during a lawful investigatory stop is permissible if "the police officer possesses a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Id. at 1049, citing Terry, supra, at 21.

{¶ 30} In this case, appellant was pulled over for speeding and driving erratically. While in the process of stopping appellant, Morelli noticed appellant moving toward the glove compartment. The officers then secured the area by ordering the occupants out of the vehicle and placing them at the back of the vehicle. There was no testimony at trial that the officers feared for their safety at the time of the search. Indeed, the only articulable reason for the search was appellant's movement around the glove compartment during the stop. Such movement, standing alone, does not give rise to a reasonable belief that appellant was armed and dangerous. See State v. Meeseman, 6th Dist. Wood No. 93-WD-015, 1993 WL 513187, *4 (Dec. 10, 1993) ("While furtive gestures may combine with other facts to create a reasonable inference that an individual may be a threat to an officer, such gestures, standing alone, do not justify a warrantless search."); State v. Jackson, 110 Ohio App.3d 137, 673 N.E.2d 685 (6th Dist.1996) (concluding that the trial court erroneously denied the defendant's motion to suppress a protective search where the search was based strictly upon the "lateness of the hour and the passenger's `furtive gesture' at the time of the stop"). Therefore, we conclude that the search was not justified as a protective search under Long and its progeny.

{¶ 31} Notwithstanding the foregoing, the state argues that the evidence should not be suppressed because it would have been inevitably discovered in any event. The inevitable discovery rule allows the admission of illegally obtained evidence where "it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation." State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763 (1985), syllabus, adopting the rule set forth in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377. The state bears the burden of showing "within a reasonable probability that police officials would have discovered the derivative evidence apart from the unlawful conduct." Perkins at 196. Proof of inevitable discovery "involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment." Williams at 444. Here, the state contends that the evidence would have been discovered upon a LEADS check in which appellant's license to carry a concealed weapon would have been revealed. While it may be true that the officers would have questioned appellant as to whether she was carrying a concealed weapon upon learning of her license to do so, whether she would answer in the affirmative is a matter of pure speculation. Had she indicated to the officers that she was not carrying a concealed weapon, they would have had no constitutionally valid reason to search the vehicle to discover the firearm.

{¶ 32} Under these facts, we find that a reasonable probability exists that but for counsel's error, the evidence obtained as a result of the protective search would have been suppressed. Further, we find that defense counsel was ineffective for failing to move the trial court to suppress the evidence.

{¶ 33} Accordingly, appellant's third assignment of error is well-taken.

III. Conclusion

{¶ 34} For the foregoing reasons, appellant's conviction is vacated and the judgment of the Toledo Municipal Court is reversed, and this matter is remanded to the trial court for further proceedings consistent with this decision. The state is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J., Thomas J. Osowik, J. and Stephen A. Yarbrough, P.J., Concur.