State v. Baber

[Cite as State v. Baber, 2012-Ohio-3467.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97973
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
ERIC BABER
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-555858
BEFORE: E. Gallagher, J., Blackmon, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: August 2, 2012
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Mark DeFranco
Mark A. DeFranco Law Offices
55 Public Square
Suite 1600
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} The state of Ohio appeals the decision of the trial court, granting Eric
Baber’s motion to suppress evidence that was seized and the statements made in
violation of Miranda v. Arizona. In particular, the state argues the trial court erred in
suppressing the evidence because Baber ran from the arresting officer, giving the officer
reasonable suspicion to search Baber and that Baber’s statements made during the
booking process were voluntary and not given as a result of any questioning. For the
following reasons, we affirm the decision of the trial court.
{¶2} On October 25, 2011, Cleveland Heights police officer Matthew Lasker
observed Baber walking in the middle of Avondale Avenue, a well-lit, one-way street in
Cleveland Heights at approximately 1:30 a.m. Officer Lasker stopped Baber to issue a
citation for walking in the middle of the road. Baber provided to the officer his Ohio
drivers license. Officer Lasker informed Baber that he was going to issue a citation and
testified that Baber was not free to leave.
{¶3} Other than the offense of “walking in roadway prohibited, with accessible
sidewalks,” (tr. 47), Officer Lasker did not witness appellant commit any other criminal
activity. Officer Lasker testified that during his interaction with appellant, Baber did
not make any furtive movements, did not reach into his pockets, did not have any bulges
in his clothing and was not verbally combative.
{¶4} Notwithstanding the foregoing, Officer Lasker ordered Baber to place his
hands on the police car so that he could perform a pat-down search before placing Baber
in the back of the police car. Baber did not place his hands on the police car and told
Officer Lasker that he was just walking home. Officer Lasker again asked Baber to
submit to a pat-down search and even offered to drive Baber home after the issuance of
the citation. Officer Lasker asked Baber for a third time to place his hands on the police
car and approached Baber. At that point, Baber fled. Officer Lasker had not even
begun issuing the citation when Baber ran from the area.
{¶5} Officer Lasker chased Baber for approximately two blocks through several
streets, driveways and backyards before apprehending him in front of 1643 Coventry
Road. During the chase, Officer Lasker did not see Baber throw anything to the ground,
reach into his pockets or hold onto his waistband while running. Officer Lasker got on
top of Baber to restrain him from making any movements and to keep him still until
backup arrived.
{¶6} While waiting for backup, but prior to issuing the Miranda warnings,
Officer Lasker asked Baber why he ran. Baber responded that he had a gun in his right
front pants pocket. Baber remained compliant with Officer Lasker, and when backup
arrived, appellant was arrested without any further incident.
{¶7} Officer Jeffrey Mecklenburg transported Baber to the Cleveland Heights
Police Department and brought him into the booking area. Officer Mecklenburg did not
provide Baber with Miranda warnings. During the booking process, Baber asked
Officer Mecklenburg “if he was in serious trouble.” (Tr. 55.) Officer Mecklenburg
responded, “You got a lot to worry about with the gun. The other charges I won’t worry
too much about.” Officer Mecklenburg did not testify as to what Baber said in response
to this statement. However, in his own motion to suppress, Baber admitted that he told
Officer Mecklenburg that he carried a gun for protection.
{¶8} On November 3, 2011, Baber was charged by way of information with one
count of carrying a concealed weapon and one count of possessing a defaced firearm.
On November 15, 2011, Baber filed a motion to suppress the seized handgun, claiming
that Officer Lasker conducted an illegal search and seizure of his person and that the
recovered handgun should be suppressed as fruit of the poisonous tree. On January 9,
2012, Baber filed a supplemental motion to suppress the statements made to Officer
Lasker at the time of his apprehension and to Officer Mecklenburg during the booking
process.
{¶9} The trial court conducted a hearing on the motion to suppress on February
2 and February 9, 2012. During the hearing, the state conceded that Baber’s statement
to Officer Lasker at the time of his apprehension was elicited before proper Miranda
warnings had been given and that it should be suppressed. (Tr. 75.) Additionally, the
state conceded that had Officer Lasker performed a pat-down search of Baber at the
police car, any evidence seized as a result of that search would be suppressed. (Tr. 71.)
{¶10} On February 16, 2012, the trial court granted Baber’s motion to suppress.
The trial court, in its ruling, failed to comply with Crim.R. 12(F), which provides that
“where factual issues are involved in determining a motion, the court shall state its
essential findings on the record.” We find, however, that the record is sufficiently clear
for us to review this matter.
{¶11} The state appeals, raising the following assignment of error:
“The trial court erred by granting appellee’s motion to suppress evidence.”
Our standard of review with respect to motions to suppress is
whether the trial court’s findings are supported by competent, credible
evidence. * * * This is the appropriate standard because “in a hearing on
a motion to suppress evidence, the trial court assumes the role of trier of
facts and is in the best position to resolve questions of fact and evaluate the
credibility of witnesses.” However, once we accept those facts as true, we
must independently determine, as a matter of law and without deference to
the trial court’s conclusion, whether the trial court met the applicable legal
standard.
State v. Lloyd, 126 Ohio App.3d 95, 709 N.E.2d 913 (7th Dist.1998); State
v. Crosby, 8th Dist. No. 86393, 2006-Ohio-2227.
{¶12} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). Searches conducted outside the judicial process, by
officers lacking a prior judicial warrant, are per se unreasonable, subject to a few
specifically established exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,
19 L.Ed.2d 576 (1967). One of those exceptions is the rule regarding investigative
stops announced in Terry. Under Terry, police officers may briefly stop and/or
temporarily detain individuals in order to investigate possible criminal activity if the
officers have a reasonable, articulable suspicion that criminal activity may be afoot.
State v. Martin, 2d Dist. No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry, supra. A
police officer may lawfully stop a vehicle, motorized or otherwise, if he has a reasonable
articulable suspicion that the operator has engaged in criminal activity, including a minor
traffic violation. See State v. Buckner, 2d Dist. No. 21892, 2007-Ohio-4329, ¶ 8.
{¶13} Here, the record clearly reflects that the officer observed Baber walking in
the roadway in violation of a Cleveland Heights City Ordinance and that his reason for
stopping him was to issue a citation for that violation. Consequently, based on the
above, the officer was permitted to stop Baber.
{¶14} That said, the authority to stop an individual does not necessarily equate
to authority to search the individual and place him or her in the back seat of the cruiser.
State v. Roberts, 2d Dist. No. 23219, 2010-Ohio-300, ¶ 16. See also State v. Evans, 67
Ohio St.3d 405, 409, 618 N.E.2d 162 (1993) (stating a Mimms order does not
automatically bestow upon the police officer the authority to conduct a pat-down search
for weapons). Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331(1977). Instead, we must consider whether, based on the totality of the circumstances,
the officer had a reasonable, objective basis to believe that the motorist is armed and
dangerous before patting him down for weapons in anticipation of placing him in the
cruiser. Evans, supra, citing State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271(1991).
{¶15} In its brief, the state of Ohio makes two separate arguments concerning
the attempted pat-down search on Avondale Avenue: (1) because the pat-down search
never happened, the trial court acted preemptively in granting the motion to suppress and
(2) Officer Lasker was entitled to place Baber in the patrol car during the issuance of the
citation for safety reasons and Officer Lasker’s safety required him to pat-down Baber
before doing so. We disagree with both claims.
{¶16} Under Terry, a police officer may frisk a detainee’s outer clothing for
concealed weapons when the officer has a reasonable suspicion that the suspect is armed
and dangerous. Id. at 27. The standard to perform an investigative search, like the
standard for an investigatory stop, is an objective one based on the totality of the
circumstances. Id. The proper inquiry is whether the officer reasonably determines
that the detainee is armed and presently dangerous to the officer or others. State v.
Hoskins, 8th Dist. No. 80384, 2002-Ohio-3451. Reasonable suspicion must be
supported by specific and articulable facts and circumstances which, together with any
rational inferences that may be drawn therefrom, reasonably support a conclusion that
the detainee is armed and dangerous. State v. Locklear, 8th Dist. No. 90429,
2008-Ohio-4247.
{¶17} Here, Officer Lasker did not have reasonable suspicion that Baber was
armed and dangerous when he attempted to perform the pat-down search. Officer
Lasker testified at the hearing on the motion to suppress that at the time he initiated the
pat-down search, he was not in fear for his safety, he did not believe Baber was armed,
Baber made no furtive movements, did not reach into his pockets, did not throw anything
to the ground and had been cooperative with the officer during his detention. Tr.
29-39.
{¶18} Because the record in this case does not contain any facts or
circumstances to suggest that, under the totality of the circumstances, Officer Lasker had
a reasonable suspicion that Baber was armed and dangerous, the continued seizure and
attempted search of Baber’s person was illegal. See Locklear, ¶ 36. We find it
immaterial that Officer Lasker never completed the pat-down search of Baber’s person;
Officer Lasker’s actions in attempting to conduct a pat-down search without a lawful
basis constituted an illegal seizure. Additionally, counsel for the state at the trial court
level conceded that had Officer Lasker performed that pat-down search of Baber, the
fruits of that search would have been suppressed. Tr. 71.
{¶19} Next, the state argues that Officer Lasker acted properly because he
initiated a pat-down search in anticipation of placing Baber in the back of the police car
to issue the citation for walking in the roadway. The state claims that Officer Lasker’s
actions were motivated by concern for his and Baber’s safety. The state cites to State v.
Evans, 67 Ohio St.3d 405, 1993-Ohio-186, 618 N.E.2d 162; and State v. Lozada, 92
Ohio St.3d 74, 2001-Ohio-149, 748 N.E.2d 520, in support of its position. We find the
state’s argument to be erroneous.
{¶20} The Ohio Supreme Court, through its cases of Evans and Lozada, have
covered this area of law thoroughly. In Lozada, the court examined a case factually
similar to the present matter. An Ohio State Patrol Trooper stopped Lozada for
speeding and Lozada produced his license. The officer removed Lozada from the car,
performed a pat-down search and recovered crack cocaine. The court determined that
the officer’s search for weapons before placing Lozada in the police car was
unreasonable.
{¶21} The court concluded that Lozada was not a Terry case because there was
no evidence that the state trooper believed that the defendant was armed and dangerous.
Rather, the state, similar to the present case, urged the court to conclude that if a person
is legitimately detained in a patrol car, the nature of the detention, i.e., placement of the
detainee in close proximity to the officer, raises safety concerns that necessitate
searching any person for weapons before placing that person in the patrol car. Id. at 76.
The court declined to adopt the state’s argument. The Ohio Supreme court held that
during a routine traffic stop, it is unreasonable for an officer to search the driver for
weapons before placing him or her in a patrol car, if the sole reason for placing the driver
in the patrol car during the investigation is for the convenience of the officer. Id. at 77.
{¶22} The court in Lozada distinguished its facts from its prior decision in
Evans, in which the Supreme Court held that “[t]he driver of a motor vehicle may be
subjected to a brief pat-down search for weapons where the detaining officer has a
lawful reason to detain said driver in a patrol car.” The lawful basis for detaining the
driver in a patrol car was that Evans failed to produce a driver’s license during the traffic
stop. Therefore, the court determined that it was reasonable for the officer, who had a
legitimate reason to so detain that person in a patrol car, be interested in guarding against
an ambush from the rear. Id. at 78. However, in Lozada, the defendant produced a
valid driver’s
license when requested by the state trooper, thus it was unreasonable to subject the
defendant to a pat-down search for weapons.
{¶23} Lastly, the Lozada court analyzed the state’s argument that there are
legitimate public policy concerns, such as the safety of the officer and the driver, that
justify an officer’s placement of a driver into his patrol car. The court weighed the
intrusiveness of a pat-down search against the reasonableness of officer safety and
concluded that
during a routine traffic stop, it is reasonable for an officer to search the
driver for weapons before placing the driver in a patrol car, if placing the
driver in the patrol car during the investigation prevents officers or the
driver from being subjected to a dangerous condition and placing the driver
in the patrol car is the least intrusive means to avoid the dangerous
condition. Id. at 79.
The court gave the example of a hostile crowd threatening the officer and the driver, as
an example of a dangerous condition necessitating the placement of the driver into the
patrol car. Ultimately, the court concluded that no dangerous condition existed and that
the state trooper’s search of the defendant for weapons before placing him in the patrol
car was unreasonable. Id. at 81.
{¶24} We find the facts of the instant case similar to those in Lozada. The state
argues that Officer Lasker planned on placing Baber in the patrol car for safety reasons.
The “safety reasons” provided by the state were that Officer Lasker and Baber did not
know each other and that they were alone on a dark roadway. This argument is without
merit. Officer Lasker’s testimony during the hearing on the motion to suppress was that
he was not in fear for his safety and that he did not believe Baber was armed and
dangerous. Further, Officer Lasker had no lawful basis to detain Baber in the patrol car;
Baber provided his driver’s license and, by Officer Lasker’s own account, was
cooperative during the detention. Lastly, there is no evidence that there existed any
dangerous condition warranting the placement of Baber in the patrol car. Officer Lasker
and Baber were alone on a well-lit, one-way street on which there was no other traffic.
We conclude that Officer Lasker’s attempted pat-down search of Baber in order to place
him in the patrol car to issue the citation was unreasonable.
{¶25} Based on the foregoing, we find that Officer Lasker’s illegal seizure of
Baber tainted the subsequent seizure of the handgun and any statements made by Baber
to the police. In other words, the seized handgun and Baber’s statements are “fruit of
the poisonous tree” that the officers acquired as a result of their prior, unlawful conduct.
See Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Wong
Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
{¶26} Anticipating this court’s conclusion, the state argues that the handgun and
Baber’s statement to Officer Mecklenburg need not be suppressed because exceptions to
the exclusionary rule apply to allow the submission of the evidence.
{¶27} The United States Supreme Court has created three exceptions to the
exclusionary rule for evidence obtained as an indirect result of a constitutional violation.
Id. These are (1) the independent-source doctrine, see Silverthorne Lumber Co. v.
United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), (2) the
inevitable-discovery doctrine, see Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81
L.Ed.2d 377 and (3) the attenuation doctrine. See Nardone. The state argues the
independent source doctrine and attenuation doctrine apply in the present case. We
disagree.
{¶28} The state argues that Baber’s own actions in fleeing from Officer Lasker
constituted an independent source and provided the officer with the reasonable suspicion
to search Baber that would have revealed the handgun in Baber’s pants pocket.
Therefore, the handgun should be admissible. The independent source exception allows
admission of evidence that has been discovered by means entirely independent of any
constitutional violation. State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763 (1985);
Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).
{¶29} We decline to find the independent source exception to the exclusionary
rule in this case. In particular, Baber’s flight was not independent from Officer Lasker’s
illegality; it was directly related. Officer Lasker ordered Baber to submit to an illegal
pat-down search of his person, which was the exact reason Baber fled; he wanted to
avoid the search. In response to Baber’s flight, Officer Lasker followed and eventually
apprehended Baber and that is when he seized the handgun. Baber did not commit a
separate crime in fleeing from the officer. While the state argues he could have been
charged with failure to comply with the lawful order or signal of a peace officer, the fact
is that he was not so charged. Further, the order given by Officer Lasker was not
lawful; it amounted to an illegal seizure of Baber’s person.
{¶30} The independent source exception to the exclusionary rule does not apply
to the present case. Lastly, the state argues that the attenuation doctrine applies to allow
the admission of both the handgun and the statement to Officer Mecklenburg. Pursuant
to the attenuation doctrine, secondary evidence that derives from a constitutional
violation may be admissible at trial if the causal connection between the original
illegality and the evidence sought to be admitted has become so attenuated as to dissipate
or extinguish the taint. State v. Harden, 11th Dist. No. 98-L-234, 2000 WL 688727(May 26, 2000). As stated by the United States Supreme Court:
We need not hold that all evidence is “fruit of the poisonous tree” simply
because it would not have come to light but for the illegal actions of the
police. Rather, the more apt question in such a case is “whether, granting
establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint.” (Citation omitted.)
Wong Sun.
{¶31} The attenuation doctrine most often arises in the context of incriminatory
statements made by an accused following a purportedly illegal arrest. Harden. This is
essentially the scenario presented by the instant appeal.
{¶32} The United States Supreme Court and lower federal and state courts
invoking the attenuation doctrine have justified its use by focusing upon the lack of a
deterrent effect on police misconduct that exclusion of the evidence would have. Id.The concept of “dissipation of the taint” is an attempt to identify the point in time at
which the detrimental consequences of illegal police conduct become so attenuated that
the deterrent effect of the exclusionary rule can no longer justify its cost to society.
Brown v. Illinois, 422 U.S. 590, 609, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J.,
concurring in part).
{¶33} In Brown, the United States Supreme Court discussed the factors to be
considered when determining whether the causal connection between the illegality and
the evidence sought to be admitted has become so negligible as to extinguish any
constitutional taint. The court held:
The question whether a confession is the product of a free will under Wong
Sun must be answered on the facts of each case. No single fact is
dispositive. The workings of the human mind are too complex, and the
possibilities of misconduct too diverse, to permit protection of the Fourth
Amendment to turn on such a talismanic test. The Miranda warnings are
an important factor, to be sure, in determining whether the confession is
obtained by exploitation of an illegal arrest. But they are not the only
factor to be considered. The temporal proximity of the arrest and the
confession, the presence of intervening circumstances, * * * and,
particularly, the purpose and flagrancy of the official misconduct are all
relevant. * * * The voluntariness of the statement is a threshold
requirement. * * * And the burden of showing admissibility rests, of
course, on the prosecution.” (Footnotes and citations omitted.)
Brown, 422 U.S. at 603-604.
{¶34} In the present case, we cannot say that the attenuation doctrine applies.
The seizure of the handgun and Baber’s subsequent statement to Officer Mecklenburg
were the direct and immediate result of Officer Lasker’s illegal action. Baber did not
receive Miranda warnings and only a brief amount of time passed between the illegal
seizure and Baber’s statement to Officer Mecklenburg. As such, there was no
“dissipation of the taint” and both the handgun and the statement should be suppressed.
{¶35} We therefore overrule the state’s sole assignment of error.
{¶36} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower court to carry
this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, A.J., and
MARY EILEEN KILBANE, J., CONCUR