State v. Mitchem , 2014 Ohio 2366 ( 2014 )

[Cite as State v. Mitchem, 2014-Ohio-2366.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130351
TRIAL NO. B-1207165
Plaintiff-Appellee, :
vs. : O P I N I O N.
MBIYA MITCHEM, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 4, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
J. Thomas Hodges, for Defendant-Appellant.
Please note: we have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Defendant-appellant Mbiya Mitchem appeals from the Hamilton
County Common Pleas Court’s judgment convicting him upon no-contest pleas to
carrying concealed weapons in violation of R.C. 2923.12(A)(2) and having weapons
under a disability in violation of R.C. 2923.13(A)(3). Mitchem advances on appeal a
single assignment of error, challenging the overruling of his motion to suppress the
handgun that he was convicted of unlawfully possessing. We affirm the court’s
judgment.
Investigation and Arrest
{¶2} Mitchem’s weapons charges arose from his encounter with several city
of Cincinnati police officers on October 22, 2010. At approximately 12:30 p.m.,
Officer David Hunter, Jr., responded to a citizen’s complaint concerning trespassing
at a house on California Avenue in the city’s Bond Hill neighborhood. The citizen
reported seeing two to three black males in their late teens or early twenties, one in a
gray striped shirt and another in a black jacket, “loitering” at a house posted “no
trespassing.” When the officer arrived, he observed four males sitting on the steps of
the house. The officer knew one individual, a 21-year-old man, by name, and he
knew a second individual, a boy in his “mid-teens,” by a nickname. He did not know
the other two individuals.
{¶3} Officer Hunter managed to detain one of the unknown suspects, while
the others fled. The officer placed the detained suspect in his cruiser and broadcast
the number of the fleeing suspects, the age and race of one of them (“MB 18”), and
the name of the suspect that he knew by name. And because the officer knew that
the named suspect frequented the 1400 block of the next street over, Carolina
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Avenue, the officer also indicated in the broadcast his belief that the fleeing suspects
were headed in that direction.
{¶4} Officer Hunter then proceeded to the 1400 block of Carolina Avenue,
where, in response to his broadcast, he was joined by Police Sergeant Demeco
Anderson and Police Sergeant Shawna Lambert. From where the officers sat, they saw
a man, later identified as 35-year-old Mbiya Mitchem, clad in a black shirt and black
pants, emerge from between the houses at 1430 and 1434 Carolina Avenue. Officer
Hunter told Sergeant Anderson and Sergeant Lambert that the man could “possibly” be
one of their suspects and agreed that Sergeant Anderson and Sergeant Lambert “ought
to check it out.”
{¶5} Sergeant Anderson parked just short of where Mitchem stood on the
driveway that ran between the two houses. The officer stepped out of his cruiser and
told Mitchem to stop. Mitchem responded, “[Y]ou can’t touch me, I’m at my house,”
and turned toward the steps leading from the driveway to the front porch of 1430
Carolina Avenue. The officer again told Mitchem to stop and asked him to identify
himself. Mitchem continued toward, then onto, the steps and then the porch and took
a seat there.
{¶6} Sergeant Anderson and Sergeant Lambert followed Mitchem onto the
porch. Ignoring further requests by the officers that he identify himself and stand up,
and despite Sergeant Lambert’s threat to use her stun gun, Mitchem kept his seat and
started to light a cigarette. Sergeant Lambert took the cigarette from him, and when he
again refused their request that he stand, the officers moved to arrest him for
“hindering” their criminal-trespass investigation.
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{¶7} Mitchem forcefully resisted the officers’ efforts to arrest him, causing
Sergeant Anderson to use his stun gun and to take Mitchem to the ground. As
Mitchem, with one hand at the waistband of his pants, tried with his other hand to take
the stun gun from Sergeant Anderson, Sergeant Lambert saw, and alerted Sergeant
Anderson to the presence of, a handgun on the porch floor, next to Mitchem’s shoulder.
Sergeant Lambert’s warning prompted Sergeant Anderson to cast aside the stun gun
and secure Mitchem’s arms, while Sergeant Lambert secured the gun, and a third
officer assisted in handcuffing Mitchem.
Plain View
{¶8} Mitchem moved to suppress the handgun on the ground that its
seizure did not comport with the Fourth Amendment to the United States
Constitution. We hold that the trial court properly overruled the motion, because the
handgun was properly seized under the plain-view exception to the Fourth
Amendment’s warrant requirement.
{¶9} The Fourth Amendment secures the right to be free from an
unreasonable search or seizure and requires a warrant to be particular and supported
by probable cause. Evidence derived from a search or seizure that violates the
Fourth Amendment is subject to exclusion at trial. Mapp v. Ohio, 367 U.S. 643, 655,
81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
{¶10} The warrantless seizure by a law enforcement officer of an object in
plain view does not violate the Fourth Amendment if (1) the officer did not violate
the Fourth Amendment in arriving at the place from which the object could be
plainly viewed, (2) the discovery of the evidence was inadvertent, and (3) its
incriminating nature was immediately apparent. Coolidge v. New Hampshire, 403
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OHIO FIRST DISTRICT COURT OF APPEALS
U.S. 443, 465-470, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Williams, 55 Ohio
St.2d 82, 377 N.E.2d 1013 (1978), paragraph one of the syllabus.
{¶11} Here, the handgun appeared on the porch floor within Mitchem’s
reach, as he, with one hand at the waistband of his pants, forcefully resisted the officers’
attempts to arrest him. The discovery of the handgun was thus inadvertent, when it
came about not in the course of a search for a weapon, but while the officers were
attempting to arrest Mitchem for “hindering” their investigation. And the gun’s
incriminating nature was immediately apparent, when the circumstances under
which the handgun appeared provided probable cause to arrest Mitchem for carrying a
concealed weapon. See R.C. 2923.12(A)(2) (proscribing the act of knowingly having a
handgun “concealed on [one’s] person or concealed ready at hand”); State v.
Halczyszak, 25 Ohio St.3d 301, 496 N.E.2d 925 (1986), paragraph three of the
syllabus (holding that “[t]he ‘immediately apparent’ requirement * * * is satisfied
when police have probable cause to associate an object with criminal activity”).
{¶12} Mitchem contends that the officers, when they saw the handgun, had
not attained their vantage point in compliance with the Fourth Amendment. He
argues that the police were not acting upon a reasonable suspicion that he was one of
the fleeing trespassers, that subsequent events did not provide probable cause for an
arrest, and that the officers’ entry onto the porch violated the Fourth Amendment.
We disagree.
{¶13} A public place. The Fourth Amendment, by its terms, protects “the
right of the people to be secure in their * * * houses * * * against unreasonable
searches and seizures.” This protection extends to the area known as the “curtilage”
of a home, defined as “the area immediately surrounding and associated with the
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OHIO FIRST DISTRICT COURT OF APPEALS
home.” Florida v. Jardines, ___U.S. ___, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495(2013), quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d
214 (1984). Thus, consistent with the Fourth Amendment, a government official may
not effect a search or seizure within the curtilage of a person’s home without either a
warrant or exigent circumstances. United States v. Dunn, 480 U.S. 294, 310-311, 107
S.Ct. 1134, 94 L.Ed.2d 326 (1987).
{¶14} An area is protected under the Fourth Amendment as part of a home’s
curtilage if “the area harbors the intimate activity associated with the sanctity of a * *
* home and the privacies of life.” Id. at 300, quoting Oliver at 180, quoting Boyd v.
United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Four factors guide
the determination whether an area constitutes a home’s curtilage: (1) the area’s
proximity to the home; (2) how the area is used; (3) whether the area is contained
within an enclosure surrounding the home; and (4) the extent to which the area is
shielded from observation by people passing by. Id. at 301.
{¶15} The front porch of a home has come to be regarded as “the classic
exemplar” of an area protected as part of a home’s curtilage, because it is “an area
adjacent to the home and ‘to which the activity of home life extends.’ ” Jardines at
1415, quoting Oliver at 182, fn. 12. Here, the evidence adduced at the suppression
hearing would not compel a contrary conclusion.
{¶16} The driveway where the police officers first saw and then engaged with
Mitchem was also adjacent to his home. But it was not enclosed in a manner that
shielded it from the view of the officers. And it was not otherwise shown to “harbor[]
the intimate activity associated with the sanctity of a * * * home and the privacies of
life.” Accordingly, the driveway was not part of the home’s curtilage, but instead
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constituted a public place. See State v. Eberhart, 1st Dist. Hamilton No. C-010346,
2002 Ohio App. LEXIS 1157, ¶ 13 (Mar. 15, 2002) (holding that a traffic stop in
defendant’s driveway occurred in a “public place” when there was no evidence that
the driveway was somehow hidden from public view).
{¶17} Reasonable suspicion. For purposes of determining the
protections afforded by the Fourth Amendment, the United States Supreme Court has
identified three categories of police-citizen contacts: (1) a consensual encounter; (2)
an investigative, or Terry, stop; and (3) a seizure that constitutes an arrest. Florida
v. Royer, 460 U.S. 491, 501-507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1982).
{¶18} A police officer may, consistent with the Fourth Amendment, stop and
briefly detain a person without a warrant, if the officer has a reasonable and
articulable suspicion that “criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1,
30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In reviewing a trial court’s reasonable-
suspicion determination, an appellate court must, first, review the trial court’s
findings of the “historical facts” for “clear error,” giving “due weight” to the
inferences drawn by the trial court from those facts, and, second, determine
“whether [the] historical facts, viewed from the standpoint of an objectively
reasonable police officer, amount to reasonable suspicion * * *.” Ornelas v. United
States, 517 U.S. 690, 695-700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
{¶19} In the proceedings below, the trial court made no factual findings. But
the historical facts material to our analysis here are undisputed: Officer Hunter
observed the offense of criminal trespassing and the fleeing suspects; in the course of
investigating the offense and pursuing the suspects, the officers alerted to Mitchem
because, in race, gender, clothing, and location, he matched the description of the
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OHIO FIRST DISTRICT COURT OF APPEALS
suspects sought; and Officer Hunter confirmed to Sergeant Anderson and Sergeant
Lambert that further investigation was warranted. We conclude, under the totality of
the circumstances, that the officers’ initial stop of Mitchem in the driveway of his home
was undertaken upon a reasonable and articulable suspicion that he had committed the
crime of trespassing.
{¶20} Authority to arrest. We agree with Mitchem that events subsequent
to his initial contact with the police did not give rise to probable cause to arrest him for
criminal trespass. Nor did his conduct provide probable cause to arrest him for
obstruction of official business in violation of R.C. 2921.31, when the record does not
demonstrate that he affirmatively acted with the intent to hamper or impede the
officers’ trespassing investigation, or that his conduct had that effect. See State v.
Grice, 180 Ohio App.3d 700, 2009-Ohio-372, 906 N.E.2d 1203, ¶ 9 (1st Dist.)
(holding that the mere refusal to produce identification upon the request of a police
officer cannot support a conviction for obstructing official business). Accord State v.
Crawford, 2d Dist. Montgomery No. 25506, 2013-Ohio-4398, ¶ 17; State v.
Vitantonio, 11th Dist. Lake No. 2012-L-144, 2013-Ohio-4100, ¶ 16.
{¶21} But R.C. Chapter 2921 proscribes “Offenses Against Justice and Public
Administration” other than obstruction of official business, including the failure to
disclose one’s personal information in violation of R.C. 2921.29. R.C. 2921.29(A)(1)
provides, in relevant part, that “[n]o person who is in a public place shall refuse to
disclose the person’s name, address, or date of birth, when requested by a law
enforcement officer who reasonably suspects * * * [that] [t]he person * * * has
committed * * * a criminal offense.” Refusing to disclose this information is a fourth-
degree misdemeanor. R.C. 2921.29(B). And a law-enforcement officer may arrest a
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person who violates the statute in his presence. See R.C. 2935.03(A) (permitting a
police officer to arrest, and to detain until a warrant can be obtained, any person “found
violating” a state law).
{¶22} During his initial contact with the police as he stood in his driveway,
Mitchem, while in that public place, refused to identify himself when requested to do so
by police officers acting under a reasonable suspicion that he had committed the crime
of trespassing. By his refusal, Mitchem violated R.C. 2921.29(A)(1). And because he
violated the statute in the officers’ presence, the officers were empowered to arrest him.
{¶23} Hot pursuit. A warrantless entry into a home to effect an arrest
violates the Fourth Amendment, unless it is based upon, and within the scope of, a
recognized exception to the warrant requirement. Coolidge, 403 U.S. at 474-475, 91
S.Ct. 2022, 29 L.Ed.2d 564. “Hot pursuit” provides the exigency justifying a
warrantless entry, when a suspect seeks to thwart a lawful arrest by retreating from a
public place to a private place. United States v. Santana, 427 U.S. 38, 43, 96 S.Ct.
2406, 2409, 49 L.Ed.2d 300 (1976), citing Warden v. Hayden, 387 U.S. 294, 87 S.Ct.
1642, 18 L.Ed.2d 782 (1967).
{¶24} The officers’ warrantless entry onto Mitchem’s front porch implicated
the Fourth Amendment, because the porch was part of his home’s curtilage. But the
driveway was a public place. “Hot pursuit” provided the exigency justifying the entry,
because R.C. 2935.03(A) conferred upon the officers the authority to arrest Mitchem
for “hindering” their investigation by failing, as required by R.C. 2921.29(A)(1), to
identify himself upon request in a public place, and he could not thwart his lawful arrest
by retreating from a public place to a private place. See Middletown v. Flinchum, 95
Ohio St.3d 43, 45, 765 N.E.2d 330 (2002) (holding that “hot pursuit” constitutes
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exigent circumstances even if the offense for which the suspect is being arrested is a
misdemeanor). And because the officers’ warrantless entry onto the porch to arrest
Mitchem was based upon, and within the scope of, a recognized exception to the
Fourth Amendment’s warrant requirement, the Fourth Amendment was not violated
by the officers’ seizure of the handgun that appeared in plain view on the porch
during the arrest.
We Affirm
{¶25} Thus, the handgun that Mitchem was convicted of unlawfully
possessing was not subject to exclusion. The warrantless seizure of the handgun in
plain view did not violate the Fourth Amendment, because its discovery was
inadvertent, its incriminating nature was immediately apparent, and “hot pursuit” to
effect a lawful arrest provided the exigency justifying the warrantless entry onto the
front porch, where the handgun appeared in plain view. We, therefore, hold that the
trial court properly overruled Mitchem’s motion to suppress. Accordingly, we
overrule the assignment of error and affirm the court’s judgment.
Judgment affirmed.
CUNNINGHAM, P.J., and DEWINE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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