State v. Reed , 90 N.E.3d 222 ( 2017 )

[Cite as State v. Reed, 2017-Ohio-2644.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 16CA50
:
RASHAD S. REED :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No. 2015 CR
0994 R
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 1, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
BAMBI COUCH-PAGE ROBERT GOLDBERGER
RICHLAND CO. PROSECUTOR 10 West Newlon Place
DANIEL M. ROGERS Mansfield, OH 44902
38 S. Park St.
Mansfield, OH 44902
Richland County, Case No. 16CA50 2
Delaney, P.J.
{¶1} Appellant Rashad S. Reed appeals from the July 1, 2016 Sentencing Entry
of the Richland County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record of the suppression
hearing on March 18, 2016. During the hearing, two different stories emerged about
events in the parking lot of the American Legion on Harmon Street on November 25,
2015.
Law Enforcement Testimony
Detective Grimshaw
{¶3} Mansfield Police received multiple complaints about a distinctive vehicle
involved in drug transactions: a white Dodge Charger with black pinstripes on the side.
Detectives with METRICH, the narcotics-enforcement division, spotted this vehicle as
they drove in an unmarked car and followed the Charger to the American Legion parking
lot. Detective Ryan Grimshaw testified they began following the vehicle around Harker
Street and Bowman Street, near the Legion. Appellant was the driver and had one
passenger.
{¶4} The Charger parked in the lot and a second car, a 2013 Chevy Malibu,
pulled in and parked directly beside the Charger. Detectives watched what they
described as a hand-to-hand drug transaction between the Charger’s passenger and a
passenger in the Malibu. The Charger’s passenger walked over to the passenger window
of the Malibu, exchanged something through the window, and immediately walked away.
The passenger returned to the Charger and the car left the parking lot.
Richland County, Case No. 16CA50 3
{¶5} Detectives followed the Charger around the block to a Papa John’s Pizza
drive-thru. The Charger then returned to the Legion lot. Detectives contacted a uniformed
patrol officer in a marked cruiser to make contact with the occupants of the Charger.
{¶6} Grimshaw testified that as the uniformed officer arrived on the scene, the
Charger’s passenger was exiting the Legion bar. He testified the officer got the attention
of the driver of the Charger, whom Grimshaw identified as appellant, but no guns were
drawn.
Ptl. Gladden
{¶7} Ptl. Joseph Gladden was the uniformed officer who arrived in response to
METRICH’s request. A METRICH detective called Gladden and told him that while
surveilling a location that was the subject of multiple complaints of drug activity, they
observed a hand-to-hand drug transaction between the occupants of a white Dodge
Charger with black pinstripes and another vehicle. Detectives asked Gladden to make
contact with the occupants of the vehicle.
{¶8} Gladden approached the location and observed the Charger turning left
from Harmon onto Bowman Street. He caught up to the car as it pulled into the Legion
parking lot. The driver, appellant, got out of the car and Gladden verbally stopped him,
although he did not recall his exact words. Gladden approached appellant, identified him,
and learned from dispatch that appellant is a CCW holder. Gladden testified he always
pats down CCW holders for officer safety in case they have a weapon.
{¶9} Before he touched appellant, however, Gladden observed the corner of a
plastic baggie sticking out of appellant’s right jeans pocket. Based upon his training and
experience, Gladden believed the baggie to be consistent with packaging and
Richland County, Case No. 16CA50 4
transportation of narcotics. Gladden patted appellant down and the baggie made a
crinkling sound. Gladden felt the shape of the object and suspected it was a rock of crack
cocaine.
{¶10} Gladden recovered the plastic baggie which did in fact contain a rock of
crack cocaine. Appellant’s right jeans pocket also contained a straw, and a large amount
of cash was found in his left pocket.
Defense Testimony
{¶11} Two witnesses testified for the defense at the suppression hearing: Jessica
Alexander and appellant.
{¶12} Jessica Alexander stated that on November 24, 2015, she was driving her
champagne-colored 2013 Chevy Malibu and came to the Legion on her lunch hour from
work to visit a friend named Delbert Evans, or “Chubby.” Alexander arrived at the Legion,
went inside the bar to use the restroom, and came back out to her car. Chubby came out
to her car from inside the bar.
{¶13} While Alexander had been inside, appellant arrived in the white Charger.
Alexander know appellant because they have mutual friends, including Chubby. When
Alexander came out of the bar, she saw appellant sitting in his car, alone. About five
minutes later, Terrence Hardin, known as “Peanut,” came out of the bar. Peanut came
over to Alexander’s car and spoke to Chubby, who was sitting on the passenger side.
Appellant remained in his own car. Peanut asked Alexander and Chubby if they would
drive him down the street to Papa John’s but Alexander refused. Peanut then asked if
she would drive him to get cigarettes and she refused again because she had to return
to work.
Richland County, Case No. 16CA50 5
{¶14} According to Alexander, Peanut then walked over to appellant’s car and
asked appellant to drive him. Appellant agreed, Peanut got into the car, and they left. In
the meantime, Chubby got out of Alexander’s car to return inside the bar and she left.
{¶15} Appellant testified and said he was driving the white Charger that day
although it belongs to someone else. He acknowledged he has driven the car on other
occasions. On November 24, 2015, he said he pulled into the Legion parking lot, alone,
and parked near a gold Malibu which was backed into a parking spot nearby. Two cars
were between his car and the Malibu in the lot. Peanut was standing on the passenger
side of the Malibu, talking to someone.
{¶16} Appellant rolled his window down and Peanut asked what he was doing.
Appellant said he was about to enter the bar and get a drink. Peanut asked if he would
take him to a drive-thru to get cigarettes and appellant agreed to do so. Appellant took
Peanut to a drive-thru, returned to the Legion, and parked. Peanut went inside the bar.
Appellant got out of the car and walked up to the door of the bar when a police officer got
out of a cruiser, pulled his weapon, and said “You, stop.” Appellant asked if the officer
was talking to him and the officer told him to turn around and place his hands on his head.
Appellant stated he had no choice but to obey the officer.
Indictment, Suppression, and Plea
{¶17} Appellant was charged by indictment with one count of possession of
cocaine in an amount equal to or exceeding five grams but less than ten grams, a felony
of the fourth degree pursuant to R.C. 2925.11(A) and (C)(4)(b) [Count I] and one count of
improper handling of a firearm in a motor vehicle, a misdemeanor of the first degree
pursuant to R.C. 2923.16(E)(1) [Count II]. Count I is accompanied by a forfeiture
Richland County, Case No. 16CA50 6
specification pursuant to R.C. 2941.1417, to wit, that appellant owned or possessed
$1,292.00 and/or a “Glock 23 40 caliber semi auto Serial No. ZMD260” and that he used
or intended to use the property in commission or facilitation of the offense.
{¶18} Appellant entered pleas of not guilty and filed a motion to suppress
evidence arising from his arrest because he was “arrested by police at gunpoint without
probable cause that he had committed any criminal act.” Appellee responded with a
motion in opposition.
{¶19} An evidentiary hearing was held on March 18, 2016, and the trial court
overruled the motion to suppress by judgment entry dated March 21, 2016.
{¶20} On May 17, 2016, appellant changed his pleas of not guilty to ones of no
contest and was referred for a pre-sentence investigation. By sentencing entry dated July
1, 2016, the trial court sentenced appellant to a term of 30 months of community control,
fines, and costs. The property described in the forfeiture specification was forfeited to the
state of Ohio.
{¶21} Appellant now appeals from the judgment entries of conviction and
sentence, incorporating the trial court’s decision overruling his motion to suppress.
{¶22} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶23} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
OVERRULING APPELLANT’S MOTION TO SUPPRESS.”
ANALYSIS
{¶24} In his sole assignment of error, appellant argues the trial court should have
sustained his motion to suppress. We disagree.
Richland County, Case No. 16CA50 7
{¶25} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145,
675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court’s
conclusion, whether the trial court’s decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds.
{¶26} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court’s findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed
to apply the appropriate test or correct law to the findings of fact. In that case, an appellate
court can reverse the trial court for committing an error of law. See, Williams, supra.
Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final
issues raised in a motion to suppress. When reviewing this type of claim, an appellate
court must independently determine, without deference to the trial court’s conclusion,
Richland County, Case No. 16CA50 8
whether the facts meet the appropriate legal standard in any given case. State v. Curry,
95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶27} Appellant argues the trial court incorrectly decided the ultimate issue raised
in his motion to suppress: whether his arrest by Gladden was supported by probable
cause. Appellant argues the trial court incorrectly decided the ultimate issue raised by
the motion to suppress and our standard of review is thus de novo. State v. Levengood,
5th Dist. Tuscarawas No. 2015AP090053, 2016-Ohio-1340, 61 N.E.3d 766, ¶ 17.
{¶28} Appellee acknowledges Gladden arrested appellant, i.e., that appellant was
not free to leave once Gladden called out and stopped him in the parking lot. A
warrantless arrest is valid if the arresting officer possessed probable cause to believe that
the suspect committed an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13
L.Ed.2d 142 (1964); State v. Otte, 74 Ohio St.3d 555, 559, 1996–Ohio–108, 660 N.E.2d
711 (superseded on other grounds). The test for probable cause to justify an arrest is
“whether at that moment the facts and circumstances within [the officers'] knowledge and
of which they had reasonably trustworthy information were sufficient to warrant a prudent
man in believing that the [arrestee] had committed or was committing an offense.” Beck,
supra, 379 U.S. at 91. In determining whether probable cause to arrest existed, a
reviewing court should examine the “totality of the circumstances.” Illinois v. Gates, 462
U.S. 213, 230–231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause is a lesser
standard of proof than that required for a conviction, such as proof beyond a reasonable
doubt or by a preponderance of the evidence. State v. Young, 146 Ohio App.3d 245, 254,
2001–Ohio–4284, 765 N.E.2d 938 (11th Dist.2001).
Richland County, Case No. 16CA50 9
{¶29} We note Gladden could make a warrantless arrest of appellant based upon
his observation of the baggie protruding from appellant’s pocket which Gladden believed
to contain narcotics. R.C. 2935.03(B)(1) states: When there is reasonable ground to
believe that * * * a felony drug abuse offense as defined in section 2925.01 of the Revised
Code has been committed within the limits of the political subdivision * * * in which the
peace officer is appointed * * * a peace officer * * * may arrest and detain until a warrant
can be obtained any person who the peace officer has reasonable cause to believe is
guilty of the violation.
{¶30} Gladden was also entitled to rely upon the information relayed to him by the
METRICH detectives regarding the hand-to-hand transaction they observed. Information
supplied by officers or agencies engaged in a common investigation with an arresting
officer may be used to establish probable cause for a warrantless arrest. State v.
Henderson, 51 Ohio St.3d 54, 554 N.E.2d 104, 105 (1990), syllabus, citing United States
v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Whitely v. Warden, 401
U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); and State v. Lewis, 50 Ohio St. 179, 33
N.E. 405 (1893).
{¶31} Appellant contends Gladden was not justified in arresting him because
Gladden only knew what the METRICH detectives told him and did not observe any
criminal activity himself, and because it was appellant’s passenger who was involved in
the alleged hand-to-hand transaction. The existence of probable cause to arrest is not
dependent upon the “ultimate judicial determination of guilt or innocence, which is
resolved on a reasonable doubt standard,” but whether the officer had “probable cause
sufficient to authorize [the defendant's] arrest.” State v. McDaniel, 5th Dist. Richland No.
Richland County, Case No. 16CA50 10
14CA47, 2015-Ohio-1007, ¶ 42, citing State v. Williams, 2nd Dist. Montgomery No.
16306, unreported, 1997 WL 822672, *2 (Nov. 21, 1997). We find Gladden’s arrest of
appellant was supported by probable cause.
{¶32} Our review of the record is admittedly complicated by the fact that other
people on the scene are not identified in the law-enforcement accounts of events,
including the driver of the Malibu, the passenger in the Charger, and the Malibu passenger
who took part in the hand-to-hand transaction. The lack of identification makes it difficult
to compare appellee’s evidence to appellant’s evidence. We can speculate “Peanut”
interacted with “Chubby” because even in Alexander’s account, the two men conversed
while Chubby was inside the car and Peanut leaned against the car, but this is not entirely
clear from the testimony.
{¶33} The relevant focus, though, is appellant’s activity and what Gladden knew
of it. Appellee contends appellant was searched incident to a lawful arrest, and that the
arrest was premised upon probable cause. Appellee’s assertions are based upon
Grimshaw’s observations, experience, and training. He observed what he believed to be
a hand-to-hand drug transaction in an area where police received complaints of drug
activity, carried out by the passenger in a vehicle reported to be involved in drug activity.
The Charger entered the Legion lot, the transaction occurred, the Charger left the lot, and
then returned. Gladden, in turn, had the information from METRICH, plus his own
observations of appellant, combined with his training and experience. Gladden spotted
the plastic bag sticking out of appellant’s pants pocket and recognized it as likely
containing a narcotic substance.
Richland County, Case No. 16CA50 11
{¶34} The totality of the circumstances in this case equate to probable cause for
appellant’s arrest. “The principal components of a determination of reasonable suspicion
or probable cause will be the events which occurred leading up to the stop or search, and
then the decision whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to reasonable suspicion or to probable
cause.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). A police officer may draw inferences based on his own experience in deciding
whether probable cause exists. See, e.g., United States v. Ortiz, 422 U.S. 891, 897, 95
S.Ct. 2585, 45 L.Ed.2d 623 (1975).
{¶35} Gladden’s arrest of appellant was supported by probable cause. The trial
court did not err in overruled the motion to suppress and appellant’s sole assignment of
error is overruled.
Richland County, Case No. 16CA50 12
CONCLUSION
{¶36} Appellant’s sole assignment of error is overruled and the judgment of the
Richland County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Wise, John, J. and
Wise, Earle, J., concur.
Richland County, Case No. 16CA50 13
Wise, Earle, J., dissents.
{¶37} I respectfully dissent from the majority's opinion.
{¶38} Undercover detectives observed a suspicious white Dodge Charger with
black pinstripes, ultimately determined to have been driven by appellant. T. at 5-6. The
vehicle parked in the American Legion lot. The detectives observed appellant's
passenger exit the vehicle and approach a second vehicle which was parked in the same
lot. T. at 9. The passenger made contact with a person in the second vehicle through
the passenger side window. Id. The detectives described the contact as what appeared
to be a hand-to-hand drug transaction. T. at 8-9. The passenger reentered the Charger
and the Charger drove away. T. at 9.
{¶39} The detectives related what they had observed to Patrolman Gladden, a
uniformed police officer driving a marked cruiser. T. at 17-18, 21. Patrolman Gladden,
with direction from the undercover detectives, found the suspect vehicle. He observed
the Charger return to and park in the same American Legion lot. T. at 18. At that point,
Patrolman Gladden activated his overhead emergency lights, pulled in behind the vehicle,
and blocked its exit. T. at 20, 23. He stepped out of his cruiser and called out to appellant
who was already standing outside of the Charger. T. at 14, 22-23. Based on testimony
elicited from Patrolman Gladden during the suppression hearing, the state conceded that
appellant was under arrest at that point. T. at 24, 43; Appellee's Brief at 6-7.
{¶40} After the conceded point of arrest, Patrolman Gladden made a closer
approach to appellant. He then observed a plastic baggie sticking out of appellant's
pocket. T. at 19, 24. Patrolman Gladden searched appellant incident to the arrest and
retrieved a rock of crack cocaine from his pocket, along with money and other contraband.
Richland County, Case No. 16CA50 14
T. at 19, 21. These observations occurred after the arrest and cannot form the basis of
the probable cause determination for the arrest.1
{¶41} The relevant inquiry as to probable cause for the arrest must be based on
the circumstances and observations made by the undercover detectives of appellant's
actions during the first time the Charger was in the American Legion parking lot.
Patrolman Gladden had no additional information prior to making the arrest.
{¶42} One of the undercover detectives at the scene, Detective Grimshaw,
testified at the suppression hearing regarding what he observed the first time the Charger
was at the American Legion. He testified, "[w]e observed a vehicle that we had received
complaints on possibly involved in drug trafficking," the aforementioned white Dodge
Charger with black pinstripes. T. at 5. The source(s) and/or time frame(s) of the
complaints were not specified. The Charger pulled into and parked in the American
Legion parking lot. The passenger of the Charger exited the vehicle and walked to the
passenger window of the second vehicle. T. at 9. Detective Grimshaw stated, "[i]t
appeared they made a hand-to-hand drug transaction inside the vehicle." Id.{¶43} Defense counsel asked Detective Grimshaw to further explain the hand-to-
hand transaction (Id):
Q. Well, when you say that, tell me what you mean by that.
1The state initially argued in its March 17, 2016 response to the motion to suppress that
the observation of the baggie sticking out of appellant's pocket and the items recovered
in the "pat down" for officer safety occurred prior to the arrest and were part of the
circumstances that contributed to the probable cause for the arrest. However, after the
testimony of Patrolman Gladden, the state conceded the arrest occurred prior to the
sighting of the baggie and the collection of the contraband from appellant.
Richland County, Case No. 16CA50 15
A. The passenger walked up. You could seem them. It appeared
they exchanged something with their hands and immediately walked away.
Q. Did you see money?
A. No. From our - - where we were sitting, we were too far to see
that.
Q. Did you see anything packaged in your training that appeared to
be drugs?
A. No, sir.
Q. Only the physical movements of the individuals?
A. That’s correct.
Q. Was this other individual, not the [appellant], who was outside the
car reaching in a passenger window or a driver's window?
A. Passenger window.
Q. Shortly thereafter, [appellant's] passenger gets back in the car
and they go to the Papa John's. Correct?
A. Correct.
{¶44} Later, on recross-examination, Detective Grimshaw and defense counsel
had the following exchange (T. at 16):
Q. Since you don't want to get too close, it is certainly quite possible
that whatever activity was taking place at the car window could have been
legal. Correct?
A. That's correct.
Richland County, Case No. 16CA50 16
{¶45} Detective Grimshaw testified that after he witnessed the event he "had a
marked patrol unit respond and contact the vehicle." T. at 5. The prosecutor asked why
he requested a marked cruiser and Detective Grimshaw testified, "[w]e believed we just
observed a drug transaction involving a white Dodge Charger. We wanted the marked
police cruiser to find a reason to pull over the Dodge Charger." Id.{¶46} Based upon the foregoing, I find the totality of the circumstances at this point
was insufficient for a finding of probable cause to arrest appellant. I would grant the
assignment of error.
________________________________
HON. EARLE E. WISE, JR.