State v. Thomas ( 2010 )

[Cite as State v. Thomas, 2010-Ohio-1548.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 08-MA-226
)
JERMAINE THOMAS, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 06CR00455
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
James E. MacDonald
Assistant Prosecutor
21 W. Boardman Street, 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Attorney David L. Engler
100 DeBartolo Place, Suite 315
Boardman, Ohio 44512
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: March 30, 2010
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DONOFRIO, J.
{¶1} Defendant-appellant Jermaine Thomas appeals his conviction in the
Mahoning County Common Pleas Court for cocaine and heroin possession. The
central issue is the trial court’s decision overruling his motion to suppress the drugs
found on his person.
{¶2} The events leading to Thomas’s arrest occurred in the Westlake
Terrace housing project located in Youngstown, Ohio. (Tr. 4.) The housing project is
part of the Youngstown Metropolitan House Authority (YMHA) which leases
apartments to tenants. (Tr. 4, 7.) YMHA property is a posted no trespassing site. (Tr.
7.) Pursuant to the YMHA’s rules, tenants are required to escort any visitors to and
from the parking lot. (Tr. 7-8, 23.) Consequently, anyone on the property is subject to
being asked for identification in order to determine whether they are permitted on the
property. (Tr. 8, 27-28, 29.) Police have the discretion to issue a verbal or written
warning for criminal trespass to any unescorted non-tenants found on YMHA
property. (Tr. 8, 29, 44.) After the police issue a written warning to a trespasser, they
forward a copy of it to the YMHA which maintains a criminal trespass list of those
persons that have been warned to stay off the property. (Tr. 9, 38.) Officers assigned
to patrol YHMA’s property carry the trespass list in the trunk of their car along with
copies of the written warnings. (Tr. 42.) After being issued a written warning, if the
police encounter the person on YMHA property again, they are typically arrested and
issued a citation for fourth-degree misdemeanor criminal trespass. (Tr. 8, 11, 38, 44,
46.)
{¶3} In 2006, the Griffith Street 520 parking lot area near apartment building
218 of the Westlake Terrace housing project was considered a high crime area and
was the subject of continuous complaints about illegal drug activity and weapon
sales. (Tr. 4.) Police had made a large number of drug and weapon arrests in that
area. (Tr. 5, 28.)
{¶4} On or about April 18, 2006, Thomas had parked his white Cadillac in
the lot. Loud music coming from Thomas’s vehicle attracted the attention of
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Youngstown Police Officer Patrick Mulligan who verbally warned Thomas about
being in that area. (Tr. 8, 41.)
{¶5} A week later on April 25, 2006, Officer Mulligan and Detective Sergeant
Kevin Mercer, both assigned to the street crimes unit, were patrolling the same area
when they saw Thomas’s white Cadillac, again parked in the Griffith Street 520 lot
area near apartment building 218. (Tr. 4, 10, 36.) The car was backed into a parking
spot near a trash dumpster. (Tr. 4, 8, 37.) Officer Mulligan told Det./Sgt. Mercer
about warning Thomas the week earlier. (Tr. 5, 8, 20, 22-23, 25-26.) Thomas was
seated on the driver’s side of the car and his brother, Dwayne Thomas, was seated
on the passenger’s side. (Tr. 5, 19, 43.)
{¶6} As Det./Sgt. Mercer approached the driver’s side of the car, he could
tell that Thomas and Dwayne were moving their hands beneath window level in the
console area of the car. (Tr. 5, 16.) Because it was a high crime area and Det./Sgt.
Mercer himself had made numerous arrests for drugs and weapons in the area, he
asked Thomas to step from the car in order to conduct a patdown search to check for
weapons and ensure officer safety. (Tr. 5-6, 16-17.) Det./Sgt. Mercer asked Thomas
if he had any drugs or weapons on him and he volunteered that he had a bag of
marijuana on him. (Tr. 6, 18-19.) At that point, Det./Sgt. Mercer handcuffed Thomas
and told him he was under arrest for marijuana possession. (Tr. 6.) In a search
incident to that arrest, Det./Sgt. Mercer recovered seven bindles of heroin from the
right rear pocket of Thomas’s pants and the marijuana from the left front pocket. (Tr.
6.) Det./Sgt. Mercer also recovered money from his coat pocket and pants pocket.
(Tr. 6.) When Det./Sgt. Mercer attempted a patdown of his waistband area, Thomas
pulled away insisting the search was illegal. (Tr. 6.) Suspecting that Thomas had
something concealed in that area, Det./Sgt. Mercer searched the area as best he
could, including shaking Thomas’s pants, but nothing fell out. (Tr. 6.) Det./Sgt.
Mercer cautioned Thomas that if he was concealing any more drugs that he also
would be charged with conveyance into a jail. (Tr. 7.) Thomas continued to deny that
there was anything there. (Tr. 7.)
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{¶7} When they arrived at the county jail, Det./Sgt. Mercer again cautioned
Thomas about carrying drugs in to jail. (Tr. 7.) Thomas again denied that he had
anything there. (Tr. 7.) Det./Sgt. Mercer relayed his suspicions to the deputies at the
jail. (Tr. 7.) When a deputy conducted a more thorough search of Thomas, he
discovered a large chunk of crack cocaine in his waistband/groin area. (Tr. 7.)
{¶8} On May 25, 2006, a Mahoning County grand jury indicted Thomas on
one count of cocaine possession, in violation of R.C. 2925.11(A)(C)(4)(e), a first-
degree felony, and one count of heroin possession, a violation of R.C.
2925.11(A)(C)(6)(a), a fifth-degree felony. (Docket 2.) Both counts carried a
forfeiture specification under R.C. 2925.42. Thomas retained counsel, pleaded not
guilty, and the case proceeded to discovery and other pretrial matters.
{¶9} On July 11, 2006, Thomas’s attorney filed a motion to suppress.
(Docket 13.) The short, two-page motion was devoid of any factual or legal basis.
Also, the motion was inexplicably directed to physical evidence seized from
Thomas’s car. But, based on the record before this court, no evidence was taken
from Thomas’s car and the charges were based solely on evidence discovered on his
person. Characterizing it as a “generic” motion that could apply to any warrantless
stop and search conducted by the Youngstown Police Department, the state
responded with a motion to strike Thomas’s motion to suppress arguing that the
motion lacked any notice as to what Thomas sought to suppress or the reasons for
doing so, citing Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889. (Docket
29.)
{¶10} The trial court held a hearing on Thomas’s motion to suppress on
August 2, 2007. Det./Sgt. Mercer and Officer Mulligan both testified. Officer Mulligan
testified about his first encounter with Thomas and the warning he gave him.
Det./Sgt. Mercer testified about YMHA’s rules, their encounter with Thomas a week
later, and the discovery of the drugs on his person. Photographs of the area where
Thomas’s car was parked, a copy of YMHA’s lease agreement, and a copy of
YMHA’s criminal trespass list were all admitted as evidence. Thomas’s name
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appears on the YMHA’s criminal trespass list as having been warned on July 19,
2005. (Joint Exhibit 7.)
{¶11} Thomas testified that he was just driving through the area when he
spotted his brother and stopped to talk to him. (Tr. 49-50.) While there, someone
else asked Thomas to wait to give Thomas’s girlfriend’s sister a ride to the store. (Tr.
50-52.) He alleged that when approached by Det./Sgt. Mercer, he told him that he
was waiting for someone. (Tr. 52.) He denied that he told Det./Sgt. Mercer that he
had marijuana on him. (Tr. 53.) He explained that having spent almost nine years in
the penitentiary he would never volunteer such information to the police because he
knew it would surely lead to his arrest. (Tr. 53-53.) Thomas acknowledged that both
he and his brother were not tenants at YMHA. (Tr. 50, 59.)
{¶12} Following submission of post-hearing briefs on the motion, the trial
court overruled Thomas’s motion on December 7, 2007. (Docket 40.) The court held
that the police officers had probable cause to approach the vehicle and conduct a
limited Terry search of Thomas. Once Thomas admitted to being in possession of
marijuana coupled with his being on YMHA’s no trespass list, the court concluded
that the officers were justified in arresting Thomas and searching him incident to that
arrest.
{¶13} On February 28, 2008, Thomas filed a motion for reconsideration
arguing that the court erroneously relied on YMHA’s criminal trespass list in justifying
the officers’ initial stop. (Docket 43.) Indeed, when Det./Sgt. Mercer and Officer
Mulligan approached Thomas, they testified that they were not relying on that list as a
basis to approach Thomas. (Tr. 19, 26, 32.)
{¶14} On April 2, 2008, the trial court overruled the motion for reconsideration,
noting that there was adequate probable cause despite the officers’ nonreliance on
the YMHA’s criminal trespass list. (Docket 45.) The court noted that there was
testimony that YMHA’s rules allow for all persons on YMHA property to be asked for
identification, that the area where Thomas was parked was a high crime area, and
that Thomas and his brother were making furtive movements in the car.
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{¶15} On August 29, 2008, the state and Thomas entered into a Crim.R. 11
plea agreement. (Docket 50.) In exchange for a state-recommended three-year
prison sentence, Thomas retracted his former pleas of not guilty and entered pleas of
no contest to the charges in the indictment along with the forfeiture specifications.
{¶16} On November 3, 2008, the trial court held a sentencing hearing and
sentenced Thomas to three years in prison on each count to be served concurrently.
(Docket 55.) This timely appeal followed.
{¶17} Thomas raises two assignments of error. Thomas’s first assignment of
error states:
{¶18} “The Trial Court erred in ruling on Defendant/Appellee’s [sic] Motion to
Suppress in determining that there was probable cause to move beyond an
investigatory stop and to search the Defendant’s person for contraband beyond
insuring there was not a weapon.”
{¶19} The standard of review in an appeal of a suppression issue is two-fold.
State v. Dabney, 7th Dist. No. 02BE31, 2003-Ohio-5141, at ¶9, citing State v. Lloyd
(1998), 126 Ohio App.3d 95, 100-101, 709 N.E.2d 913. Since the trial court is in the
best position to evaluate witness credibility, an appellate court must uphold the trial
court’s findings of fact if they are supported by competent, credible evidence. Id.,citing State v. Winand (1996), 116 Ohio App.3d 286, 288, 688 N.E.2d 9, citing
Tallmadge v. McCoy (1994), 96 Ohio App.3d 604, 608, 645 N.E.2d 802. However,
once an appellate court has accepted those facts as true, the court must
independently determine as a matter of law whether the trial court met the applicable
legal standard. Id., citing State v. Clayton (1993), 85 Ohio App.3d 623, 627, 620
N.E.2d 906. This determination is a question of law of which an appellate court
cannot give deference to the trial court’s conclusion. Id., citing Lloyd.
{¶20} As a preliminary matter and as highlighted by the state, a review of
Thomas’s suppression motion reveals that it is questionable whether it set forth a
sufficient legal and factual basis to challenge the search and seizure. But, since the
trial court held a full hearing on the motion and addressed all the matters presently
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before this court, we will proceed to address the substantive arguments presented.
{¶21} For a search or seizure to be reasonable under the Fourth Amendment,
it generally must be based upon probable cause and executed pursuant to a warrant.
Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. But,
the law does allow for reasonable police searches and seizures in certain
circumstances such as the investigatory stop. A police officer may make a brief,
warrantless, investigatory stop without probable cause when the officer has a
reasonable suspicion that the individual is or has been involved in criminal activity.
Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Reasonable
suspicion means that the investigating officer must be able to point to specific,
articulable facts that, when coupled with any rational inferences that may be drawn
from those facts, warrant the investigation. Id. Moreover, during such an encounter,
an officer is authorized to perform a limited patdown search for weapons as a safety
precaution if there is a reasonable suspicion that the person stopped may be armed
and dangerous. Id.{¶22} The reasonableness of a Terry stop is based on the totality of the
circumstances. State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271.
Additionally, these circumstances are to be viewed through the eyes of the
reasonable and prudent police officer on the scene who must react to events as they
unfold. Id. at 87-88, 565 N.E.2d 1271.
{¶23} In this case, Det./Sgt. Mercer was legally justified in initially
approaching Thomas. He had reasonable suspicion to believe he was criminally
trespassing on YMHA property. Criminal trespass, a fourth-degree misdemeanor, is
defined as when a person, without privilege to do so, does any of the following:
{¶24} “(1) Knowingly enter or remain on the land or premises of another;
{¶25} “(2) Knowingly enter or remain on the land or premises of another, the
use of which is lawfully restricted to certain persons, purposes, modes, or hours,
when the offender knows the offender is in violation of any such restriction or is
reckless in that regard;
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{¶26} “(3) Recklessly enter or remain on the land or premises of another, as
to which notice against unauthorized access or presence is given by actual
communication to the offender, or in a manner prescribed by law, or by posting in a
manner reasonably calculated to come to the attention of potential intruders, or by
fencing or other enclosure manifestly designed to restrict access;
{¶27} “(4) Being on the land or premises of another, negligently fail or refuse
to leave upon being notified by signage posted in a conspicuous place or otherwise
being notified to do so by the owner or occupant, or the agent or servant of either.”
Youngstown Codified Ordinance 541.05(a)(1)-(4),(d); R.C. 2911.21(A)(1)-(4),(D)(1).
{¶28} Det./Sgt. Mercer testified that YMHA property is a posted no
trespassing site. (Tr. 7.) He also testified that pursuant to the YMHA’s rules, tenants
are required to escort any visitors to and from the parking lot and anyone on the
property is subject to being asked for identification in order to determine whether they
are permitted on the property. (Tr. 7-8, 23, 27-28, 29.) He also testified that Officer
Mulligan, who was with him as they encountered Thomas, informed him of warning
Thomas a week earlier about being on the property. (Tr. 5, 8, 20, 22-23, 25-26.)
Thomas acknowledged that neither he nor his brother were a YMHA tenant. (Tr. 50,
59.) Thomas’s presence on YMHA’s property easily fits into any of the four
subsections set forth above. Therefore, Det./Sgt. Mercer had reasonable suspicion
to believe that Thomas was criminally trespassing on YMHA property. Indeed,
although he was not charged, Thomas’s presence there was enough to constitute
probable cause to arrest him for criminal trespass.
{¶29} Det./Sgt. Mercer also had a reasonable suspicion to conduct a patdown
search of Thomas for weapons. Det./Sgt. Mercer testified that the area where
Thomas was found trespassing was considered a high crime area and was the
subject of continuous complaints about illegal drug activity and weapon sales. (Tr.
4.) He himself had made a large number of drug and weapon arrests in that area.
(Tr. 5, 28.) “‘The reputation of an area for criminal activity is an articulable fact upon
which a police officer may legitimately rely in determining whether an investigative
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stop is warranted. United States v. Magda (C.A.2, 1976), 547 F.2d 756, 758,
certiorari denied (1977), 434 U.S. 878, 98 S.Ct. 230, 54 L.Ed.2d 157; United States
v. Brignoni-Ponce (1975), 422 U.S. 873, 884-885, 95 S.Ct. 2574, 2581-2582, 45
L.Ed.2d 607; United States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859. Cf. United
States v. White (C.A.D.C.1981), 655 F.2d 1302, 1304: ‘Past incidents of numerous
law violations of a particular character definitely constitute a fact that officers may
consider in the totality of circumstances they rely upon in arriving at a conclusion that
they have probable cause to make an arrest.’ ‘* * * [T]he “high-crime” character of an
area is a relevant factor, in determining probable cause.’ Id. See, also, United States
v. Thomas (C.A.D.C.1976), 551 F.2d 347, 348; United States v. Brown
(C.A.D.C.1972), 463 F.2d 949, 950; and United States v. Davis (C.A.D.C.1972), 458
F.2d 819.” State v. Bobo (1988), 37 Ohio St.3d 177, 179, 524 N.E.2d 489.
{¶30} Also, as Det./Sgt. Mercer approached the driver’s side of the car, he
observed Thomas and his brother making what the trial court characterized as
“furtive movements” beneath window level in the console area of the car. (Tr. 5, 16.)
A furtive gesture may be defined as a situation where “police see a person in
possession of a highly suspicious object or some object which is not identifiable but
which because of other circumstances is reasonably suspected to be contraband and
then observe that person make an apparent attempt to conceal that object from
police view[.] * * *” 2 LaFave, Search and Seizure (1987) 58, Section 3.6(d)
(footnotes omitted). Regarding furtive movements, the Ohio Supreme Court has
noted that they alone are not sufficient to justify the search of an automobile without
a warrant. State v. Kessler (1978), 53 Ohio St.2d 204, 208, 373 N.E.2d 1252.
However, they are “factors” which may contribute to an officer’s reasonable suspicion
that a suspect is armed or engaged in criminal activity. Bobo, supra.
{¶31} Moreover, as already indicated, there existed probable cause to arrest
Thomas for criminal trespass and Det./Sgt. Mercer would have been justified in
searching Thomas incident to an arrest for that offense if he had chosen to do so.
{¶32} Nonetheless, it was not a Terry patdown search which yielded the
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contraband, but a lawful search incident to Thomas’s arrest for marijuana that yielded
the drugs which formed the basis of the charges against Thomas. Before Det./Sgt.
Mercer could conduct the previously justified Terry patdown, Thomas admitted to
being in possession of marijuana. Det./Sgt. Mercer placed Thomas under arrest for
marijuana and then proceeded to search him and recover the marijuana and the
other drugs incident to that arrest. Chimel v. Califorinia (1969), 395 U.S. 753, 763, 89
S.Ct. 2034, 23 L.Ed.2d 685.
{¶33} In sum, based on the totality of the circumstances, there was a
reasonable suspicion to support an investigatory stop of Thomas pursuant to Terry.
Those circumstances include that it was a high crime area, Thomas’s furtive
movements, and that Thomas was criminally trespassing on YMHA property.
Further, once Thomas told Det./Sgt. Mercer that he was in possession of marijuana,
Det./Sgt. Mercer then had probable cause to arrest Thomas for first-degree
misdemeanor possession of marijuana. Youngstown Codified Ordinance
513.03(a)(c)(2). Det./Sgt. Mercer was then also justified in conducting a search of
Thomas’s person incident to the arrest for the marijuana which yielded the other
drugs that led to his indictment in this case. Thus, the trial court properly overruled
Thomas’s motion to suppress.
{¶34} Accordingly, Thomas’s first assignment of error is without merit.
{¶35} Thomas’s second assignment of error states:
{¶36} “The Trial Court erred in failing to suppress evidence seized as result of
a minor misdemeanor non-jailable offense.”
{¶37} In support of his second assignment of error, Thomas cites R.C.
2935.26(A). Under R.C. 2935.26(A), a police officer is not allowed to arrest a person
for a minor misdemeanor and instead must issue a citation, unless one of four
exceptions is met. Although this is an accurate statement of the law, it is inapplicable
in the case.
{¶38} Det./Sgt. Mercer placed Thomas under arrest for possession of
marijuana. Possession of marijuana is a minor misdemeanor under the Ohio
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Revised Code. R.C. 2925.11(A)(C)(3)(a). However, possession of marijuana is a
first-degree misdemeanor under Youngstown Codified Ordinance 513.03(a)(c)(2).
The Ohio Supreme Court has found such city ordinances to be constitutional, despite
the difference in the degree of misdemeanor. City of Niles v. Howard (1984), 12 Ohio
St.3d 162, 466 N.E.2d 539. Youngstown Police Officers have the discretion to arrest
under either the Ohio Revised Code or the Youngstown Codified Ordinance. (Tr. 21.)
Moreover, aside from the marijuana possession, there was sufficient evidence that
would have justified Thomas’s arrest for criminal trespass, which is a fourth-degree
misdemeanor under Youngstown Codified Ordinance 541.05(d) and R.C.
2911.21(D)(1).
{¶39} Accordingly, Thomas’s second assignment of error is without merit.
{¶40} The judgment of the trial court is affirmed.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.