State v. McDaniel ( 1993 )

Defendant-appellant Michael McDaniel appeals from the trial court's decision overruling his motion to suppress illegally seized evidence. For the reasons adduced below, we affirm.

The sole witness to appear at the suppression hearing was Detective Keith Thompson ("Det. Thompson") of the Cleveland Police Department's Strike Force. The appellant chose not to testify.

Det. Thompson testified that as a result of citizen and councilmanic complaints of heavy drug trafficking and drug usage, he was assigned to investigate a certain hallway in a building in the King-Kennedy projects.

While on duty at approximately 4:00 p.m., he observed the appellant in this particular hallway loitering in what he deemed to be suspicious activity. At this time, Det. Thompson was accompanied by two other detectives.

Det. Thompson engaged the appellant in a conversation. The appellant, in response to an inquiry, stated that he did not have drugs or weapons on or about his person. Thereafter, Det. Thompson asked the appellant if he could search him. The appellant, after being asked by Det. Thompson only once, consented to the search. The search of the appellant produced a glass crack pipe with residue which later tested positive for cocaine.

The appellant was charged with possession of cocaine in an amount less than the bulk (R.C. 2925.11[A]). The appellant entered a plea of no contest after his motion to suppress was overruled.

He now appeals and assigns one error for our review:

"The trial court erred in denying Mr. McDaniel's suppression motion as the evidence seized by the Cleveland Police Department was the fruit of an illegal search and seizure of Mr. McDaniel in violation of Article One, Section Fourteen of the Ohio Constitution and the Fourth and Fourteenth Amendments to the United States Constitution."

The appellant argues that the trial court should have granted his motion to suppress, as the crack pipe containing cocaine residue was procured as the result of an illegal search and seizure. Specifically, he contends that Thompson's initial contact with him violated the Fourth Amendment.

The Fourth Amendment to the United States Constitution protects an individual against unreasonable searches andseizures. As stated in United States v. Mendenhall (1980),446 U.S. 544, 554-555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509, "[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ``to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.'"Id., quoting United States v. Martinez-Fuerte (1976),428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116, 1126.

In this case, the focus of our inquiry is not whether there was probable cause to stop and search the appellant but whether the officers' conduct constituted a seizure. See State v.Johnson (1986), 34 Ohio App.3d 94, 517 N.E.2d 262. We hold that, under the facts of this case, the police officers' conduct did not constitute a seizure.

It is well established that "a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ``to disregard the police and go about his business,' California v.Hodari D., 499 U.S. 621, 625 [111 S.Ct. 1547, 1551,113 L.Ed.2d 690, 697] (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not triggerFourth Amendment scrutiny unless it loses its consensual nature."Florida v. Bostick (1991), 501 U.S. ___, ___, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 399; see, also, Florida v.Royer (1983), 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (Fourth Amendment not violated when law enforcement officers merely approach an individual and ask him if he is willing to answer a few questions). "Obviously, not all personal intercourse between policemen and citizens involves ``seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred." Terry v.Ohio (1968), 392 U.S. 1, 19, 88 S.Ct. 1868, 1879,20 L.Ed.2d 889, 904, fn. 16.

The test for determining if a person has been "seized" within the meaning of the Fourth Amendment is whether a reasonable person would have believed he was not free to leave, in view of all the surrounding circumstances. United States v. Mendenhall,supra. The reasonable-person test presupposes an innocent person. Florida v. Bostick, supra, 501 U.S. at ___,111 S.Ct. at 2388, 115 L.Ed.2d at 400. Hence, the reasonable-person standard as applied to the scope of the Fourth Amendment does not vary with the state of mind of the person who is approached by law enforcement officers. Id., citing Michigan v. Chesternut (1988),486 U.S. 567, 574, 108 S.Ct. 1975, 1980, 100 L.Ed.2d 565, 572. For instance, it is indeed possible for an individual to freely consent to a search of his person when he knows he is in possession of contraband. Id. The focus is not on the subjective state of mind of the person being approached, but rather is on the police officer's conduct. Unless a police officer demonstrably curtails an individual's liberty and freedom of movement, a seizure has not taken place. Id.

On the facts of this case, no "seizure" occurred. We find no reason that is supportable by the evidence to stray from these tenets of law as established by the United States Supreme Court. Thompson approached the appellant and asked him a few questions. The appellant was "free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, supra, 501 U.S. at ___, 111 S.Ct. at 2387, 115 L.Ed.2d at 399. Nothing in the record indicates that the officers curtailed the appellant's liberty and freedom of movement.

Accordingly, no constitutional right was infringed.

Ergo, the appellant's assignment of error is overruled.

Judgment affirmed.

PATTON, P.J., and NUGENT, J., concur.

BLACKMON, J., dissents.