State v. Wynn ( 2011 )

[Cite as State v. Wynn, 2011-Ohio-1832.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24253
vs. : T.C. CASE NO. 09CR3146/1
KENNETH LAVON WYNN : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 15th day of April, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros.
Attorney, Atty. Reg. No.0067685, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Daniel J. O’Brien, Atty. Reg. No.0031461, 1210 Talbott Tower, 131
N. Ludlow Street, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Kenneth Wynn, appeals from his convictions
for possession of heroin, R.C. 2925.11(A), and trafficking in
heroin, R.C. 2925.03(A)(1), which were entered on Defendant’s pleas
of no contest in common pleas court Case No. 2009CR3146 after the
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court overruled Defendant’s Crim.R. 12(C)(3) motion to suppress
evidence.
{¶ 2} Defendant was arrested on September 21, 2009, following
his flight from police during which Defendant threw down a plastic
baggie that officers seized after Defendant’s apprehension and
arrest. The baggie contained heroin, which Defendant’s motion
sought to suppress and that formed the basis of Defendant’s
convictions in Case No. 2009CR3146.
FIRST ASSIGNMENT OF ERROR
{¶ 3} “THE TRIAL COURT PREJUDICIALLY ERRED IN NOT SUPPRESSING
THE EVIDENCE THAT WAS FRUIT OF THE POISONOUS TREE - THE UNLAWFUL
DETENTION OF DEFENDANT AFTER THE TIME AND THE REASON FOR THE STOP
HAD ENDED.”
{¶ 4} The error assigned pertains to the trial court’s decision
Case No. 2009CR218, overruling Defendant’s motion to suppress
evidence seized in a search of Defendant’s person on January 20,
2009, at the Montgomery County Jail, following Defendant’s arrest
on outstanding warrants. Defendant filed “joint” motion to
suppress evidence in Case Nos. 2009CR218 and 2009CR3146. The
judgment of conviction in Case No. 2009CR3146 is the final order
from which the notice of appeal in the case presently before us,
Appellate Case No. 24253, was filed. Defendant’s conviction in
Case No. 2009CR218 is the subject of another appeal, from a notice
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of appeal that was separately filed in Appellate Case No. 24252.
{¶ 5} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT PREJUDICIALLY ERRED IN NOT SUPPRESSING
THE EVIDENCE THAT WAS FRUIT OF THE POISONOUS TREE - THE STOP MADE
MERELY ON SPECULATION OR A HUNCH.”
{¶ 7} Defendant’s apprehension and arrest on September 21,
2009, following his flight on foot from police, during which he
discarded the baggie of drugs that Defendant’s motion sought to
suppress, began with an incident in which an officer allegedly
saw Defendant sell drugs to another man through the open windows
of the two cars in which they sat. At the hearing on Defendant’s
motion to suppress, the officer testified that he saw Defendant
drop what appeared to be heroin capsules into the other man’s hand.
When the officer approached in his cruiser, Defendant drove off
at a high speed.
{¶ 8} After Defendant’s vehicle malfunctioned and came to a
stop, officers tried to arrest him but Defendant fled on foot.
Another officer testified that during the subsequent chase on foot
he saw Defendant take a baggie from his pocket and throw it on
the ground. After Defendant was subsequently apprehended and
arrested, the same officer returned to that location and seized
the baggie of drugs he saw Defendant discard.
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{¶ 9} In his motion to suppress (Dkt. 15), Defendant argued
that the officers lacked a reasonable and articulable suspicion
of criminal activity sufficient to justify his seizure and arrest.
Because of that, according to Defendant, the “intrusion of (sic)
his freedom of movement was unlawful and any evidence resulting
from such arrest should be suppressed.”
{¶ 10} The State filed a Memorandum contra (Dkt. 25), arguing
that Defendant lacks standing to challenge the seizure of the baggie
and the drugs it contained because his abandonment of that property
operated to relinquish any reasonable expectation of privacy in
that property which Defendant had. The State cited and relied
on our decision in State v. DeLoach (Aug. 11, 2000), Montgomery
App.No. 18072.
{¶ 11} The court took evidence on Defendant’s motion.
Following the hearing, the court filed a written decision (Dkt.
26). With respect to the grounds for suppression which Defendant’s
motion raised, the court found that when Defendant was seen by
an officer selling drugs to another man, that fact created
reasonable and articulable suspicion permitting his attempted
detention and subsequent arrest. In crediting the officer’s
testimony, the court found that it was corroborated by the
cross-examination testimony of Defendant’s witness, Ford.
However, the grounds on which the court overruled Defendant’s
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motion to suppress evidence were that “[p]roperty abandoned during
flight from the police is voluntary and cannot be challenged as
inadmissible.” Id., p. 4.
{¶ 12} On appeal, Defendant argues that the trial court abused
its discretion in finding that the substance of Ford’s
cross-examination testimony corroborated the State’s case when
it did not. However, that finding was not a part of the basis
on which the court overruled Defendant’s motion to suppress, which
was instead the abandonment theory on which the State relied.
Defendant has not addressed that conclusion of law or the findings
of fact on which it was based.
{¶ 13} In DeLoach, we wrote:
{¶ 14} “When a person abandons property that he owns or
possesses, the act of abandonment operates to relinquish any
reasonable expectation of privacy he had in the property which
the Fourth Amendment protects. Rawlings v. Kentucky (1980), 448
U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633. Therefore, property that
has been abandoned is outside the prohibition against unreasonable
searches and seizures which the Fourth Amendment imposes. Hester
v. United States (1924), 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898;
Abel v. United States (1968), 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d
668.” Id., p.1.
{¶ 15} Hester announced the “open fields” doctrine and
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exception to the Fourth Amendment warrant requirement. As one
commentator has noted:
{¶ 16} “The significance of abandoned property in the law of
search and seizure lies in the maxim that the protection of the
fourth amendment does not extend to it. Thus, where one abandons
property, he is said to bring his right of privacy therein to an
end, and may not later complain about its subsequent seizure and
use in evidence against him. In short, the theory of abandonment
is that no issue of search is presented in such a situation and
the property so abandoned may be seized without probable cause.”
Mascole, The Role of Abandonment in the Law of Search and Seizure:
An application of a Misdirected Emphasis, 20 Buffalo Law Review,
399, 400-01(1971).
{¶ 17} As the title of the foregoing law review article
suggests, the holding in Hester has been the subject of criticism
and exceptions. The “open fields” rule is a variant of the “plain
view” exception to the warrant requirement, in which an officer
must lawfully be in a position to discover what he sees in plain
view. When property is abandoned in the course of a police pursuit
undertaken to effect an illegal detention, is it then reasonable
to not suppress evidence of the property that was abandoned? That
seems to be the gist of Defendant’s argument on appeal.
{¶ 18} That issue was more recently resolved by the United
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States Supreme Court in California v. Hodari D. (1991), 499 U.S.
621, 113 L.Ed.2d 690, 111 S.Ct. 1547. On similar facts, the Supreme
Court held that, even where a police pursuit was not based on
reasonable suspicion, cocaine the suspect discarded during the
course of the pursuit was not the fruit of a “seizure” within the
meaning of the Fourth Amendment, because: (1) an arrest – the
quintessential seizure of the person under Fourth Amendment
jurisprudence – requires either (a) the application of physical
force with lawful authority, or (b) submission to the assertion
of authority; (2) the accused had not been touched by the officer
at the time he discarded the cocaine; and (3) assuming that the
officer’s pursuit of the accused constituted a show of authority
enjoining the accused to halt, the accused did not comply with
that injunction and therefore was not seized until the officer
tackled him.
{¶ 19} The facts of the present case align almost exactly with
the factors in Hodari D. which the Supreme Court cited, with but
one exception. In Hodari D. there was insufficient reasonable
and articulable suspicion to justify the attempted detention by
officers from which the defendant fled. In the present case, the
officer’s belief that he witnessed Defendant sell heroin to
another man provided ample suspicion. Defendant challenged the
reasonableness of that suspicion, arguing that the officer was
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not in a position to see what he said he saw. The trial court
rejected that contention, relying, in part, on the
cross-examination of Defendant’s witness, Ford. Even had the
court misconstrued Ford’s testimony, a contention with which we
do not agree, that would not affect the “abandonment” finding on
which the court overruled Defendant’s motion to suppress. We see
no error in that finding.
{¶ 20} The second assignment of error is overruled. The
judgment of the trial court will be affirmed.
FROELICH, J. And BROGAN, J., concur.
(Hon. James A. Brogan, retired from the Second District Court of
Appeals, sitting by assignment of the Chief Justice of the Supreme
Court of Ohio.)
Copies mailed to:
Johnna M. Shia, Esq.
Daniel J. O’Brien, Esq.
Hon. Connie S. Price