State v. Berry

[Cite as State v. Berry, 2018-Ohio-4791.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2018AP060027
:
HANK W. BERRY, JR. :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No. 2018
CR 02 0057
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: November 29, 2018
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
MICHAEL J. ERNEST MARK PERLAKY
TUSC. CO. ASST. PROSECUTOR TUSC. CO. PUBLIC DEFENDER
125 East High Ave. 153 N. Broadway St.
New Philadelphia, OH 44663 New Philadelphia, OH 44663
Tuscarawas County, Case No. 2018AP060027 2
Delaney, J.
{¶1} Appellant state of Ohio appeals from the June 12, 2018 judgment entry of
the Tuscarawas County Court of Common Pleas granting the motion to suppress of
appellee Hank W. Berry, Jr.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on August 7, 2017, when Dennison Police dispatch advised
two witnesses saw a black Dodge Stratus in Thornwood Park, near the basketball courts.
The caller stated she believed individuals in the car were “shooting up.”
{¶3} Ptl. Boitnott arrived at the park but didn’t see the car. He did see the
witnesses who called in the complaint: two women he was familiar with as caretakers of
the park. He asked the women what direction the car went in, and when they pointed it
out, Boitnott was surprised because he had traveled from that direction and didn’t pass a
black Dodge Stratus.
{¶4} Boitnott turned around and went up the street, where he found a black
Dodge Stratus parked one block away, with two occupants. The car was already parked,
although Boitnott did not recall whether it was running, so he did not perform a traffic stop.
Instead, he walked up to the driver’s-side door and encountered appellee sitting in the
driver’s seat. Boitnott informed him of the report about drug use, and appellee denied he
and the passenger had been in the park.
{¶5} The female passenger, though, said they were just in the park “making out.”
{¶6} As Boitnott spoke to appellee, he was aware dispatch said the individuals
appeared to be “shooting up,” and Boitnott observed track marks on appellee’s arms.
Tuscarawas County, Case No. 2018AP060027 3
Boitnott explained “shooting up” refers to intravenous drug use, which may be evidenced
by track marks on a user’s arms.
{¶7} Boitnott also observed appellee trying to conceal something as they spoke.
Appellee was attempting to push something under the driver’s seat with his foot.
{¶8} The female passenger told Boitnott they were in the area to speak to an
individual familiar to Boitnott, whose house was to the right of where the Stratus was
parked. Boitnott testified the house is the location of suspected drug trafficking activity.
{¶9} The female passenger was the registered owner of the vehicle and Boitnott
asked for her permission to search. She agreed. Appellee and the female got out of the
car. Boitnott asked appellee about the track marks on his arms and appellee said they
were from a battery exploding.
{¶10} When appellee stepped out of the car, Boitnott noticed a Crown Royal bag
inside the car which contained a clear plastic baggie. Boitnott also looked under the
driver’s seat, in the area where he believed appellee was trying to hide something, and
found a keychain with a small canister attached to it. The canister contained
methamphetamine.
{¶11} Upon cross-examination, Boitnott testified that once he approached the
vehicle, he did not consider appellee or the passenger free to leave, although he didn’t
communicate this to them. He intended to investigate the complaint of individuals
possibly “shooting up” in a black Dodge Stratus. Appellee introduced the bodycam video
into evidence.
{¶12} Appellee was charged by indictment with one count of aggravated
possession of drugs pursuant to R.C. 2925.11(A) and R.C. 2925.11(C)(1)(a), a felony of
Tuscarawas County, Case No. 2018AP060027 4
the fifth degree, and one count of drug paraphernalia pursuant to R.C. 2925.14(C)(1) and
R.C. 2925.14(F)(1), a misdemeanor of the fourth degree.
{¶13} Appellee entered pleas of not guilty and filed a motion to suppress, arguing
the arresting officer had no reasonable and articulable suspicion of criminal activity to
justify stopping appellant. Appellant filed a memorandum in opposition. An evidentiary
hearing proceeded on April 25, 2018, and on June 12, 2018, the trial court sustained the
motion to suppress.
{¶14} Appellant timely filed a notice of appeal and a Crim.R.12(K) certification.
{¶15} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶16} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING
THE APPELLEE’S MOTION TO SUPPRESS AS REASONABLE ARTICULABLE
SUSPICION EXISTED TO DETAIN THE APPELLEE WITHOUT A WARRANT.”
ANALYSIS
{¶17} In its sole assignment of error, appellant argues the trial court erred in
granting appellee’s motion to suppress. We agree.
{¶18} 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,
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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.
{¶19} 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,
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).
{¶20} In the instant case, appellant argues the trial court incorrectly decided the
ultimate issue raised in the motion to suppress, to wit, whether Boitnott had reasonable
and articulable suspicion to elevate the encounter with appellee to an investigative stop.
{¶21} The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution prohibit the government from conducting unreasonable
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searches and seizures of persons or their property. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968); State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271(1991). “However, not every contact between a police officer and citizen implicates the
Fourth Amendment. “Only when the officer, by means of physical force or show of
authority, has in some way restricted the liberty of a citizen may we conclude that a
‘seizure’ has occurred.” State v. Lopez, 2nd Dist. Greene No. 94 CA 21, 1994 WL 527670(Sept. 28, 1994), quoting Terry, supra, at 19, fn. 16, 88 S.Ct. 1868.
{¶22} Upon our review of the record, we find Boitnott’s interaction with appellee
began as a consensual encounter and progressed to an investigative or Terry stop. Ohio
law recognizes three types of police-citizen encounters: consensual encounters, Terry
stops, and arrests. State v. Taylor, 106 Ohio App.3d 741, 747–49, 667 N.E.2d 60 (2nd
Dist.1995).
{¶23} A consensual encounter occurs when a police officer approaches a person
in a public place, engages the person in conversation, requests information, and the
person is free to refuse to answer and walk away. Id. at 747. The United State Supreme
Court “[has] held repeatedly that mere police questioning does not constitute a seizure.”
Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also
INS v. Delgado, 466 U.S. 210, 212, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). “[M]erely
approaching an individual on the street or in another public place[,]” seeking to ask
questions for voluntary, uncoerced responses, does not violate the Fourth Amendment.
United States v. Flowers, 909 F.2d 145, 147 (6th Cir.1990). “[E]ven when officers have
no basis for suspecting a particular individual, they may generally ask questions of that
individual; ask to examine the individual's identification; and request consent to search
Tuscarawas County, Case No. 2018AP060027 7
his or her luggage.” Bostick, 501 U.S. at 434–435 (citations omitted). The person
approached, however, need not answer any question put to him, and may continue on
his way. Florida v. Royer, 460 U.S. 491, 497–98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
Moreover, he may not be detained even momentarily for his refusal to listen or answer.
Id. 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, 628, 111 S.Ct. 1547, 1552, 113
L.Ed.2d 690 (1991), the encounter is consensual and no reasonable suspicion is required.
Bostick, 501 U.S. at 434.
{¶24} A consensual encounter does not implicate the Fourth Amendment's
protection against unreasonable searches and seizures unless the police officer has
restrained the person's liberty by a show of authority or physical force such that a
reasonable person would not feel free to decline the officer's request or otherwise
terminate the encounter. Id. at 747–48.
{¶25} “The second type of encounter is a ‘Terry stop’ or an investigatory detention.
The investigatory detention is more intrusive than a consensual encounter, but less
intrusive than a formal custodial arrest. The investigatory detention is limited in duration
and purpose and can only last as long as it takes a police officer to confirm or to dispel
his suspicions.” Id. at 748. Such a stop is valid if the officer had reasonable and articulable
suspicions of criminal activity. Id. at 749. However, for the propriety of a brief investigatory
stop pursuant to Terry, the police officer involved “must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Id. at 21. Such an investigatory stop “must be viewed
in the light of the totality of the surrounding circumstances” presented to the police officer.
Tuscarawas County, Case No. 2018AP060027 8
State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the
syllabus. A determination of probable cause is made from the totality of the
circumstances. Factors to be considered include an officer's observation of some criminal
behavior by the defendant, furtive or suspicious behavior, flight, events escalating
reasonable suspicion into probable cause, association with criminal and locations. Katz,
Ohio Arrest, Search and Seizure (2001 Ed.), 83–88, Sections. 3.12–3.19.
{¶26} A person is seized under this category when, in view of all the
circumstances surrounding the incident, by means of physical force or show of authority
a reasonable person would have believed that he was not free to leave or is compelled
to respond to questions. This temporary detention, although a seizure, does not violate
the Fourth Amendment.
{¶27} The third type of police-citizen encounter is an arrest. For an arrest to be
valid the officer must have “probable cause to believe a crime has been committed and
the person stopped committed it.” State v. Richardson, 5th Dist. Stark No. 2004CA00205,
2005-Ohio-554, ¶ 27; Flowers, supra, 909 F.2d at 147. A warrantless arrest is
constitutionally valid if: “[a]t the moment the arrest was made, the officers had probable
cause to make it—whether at that moment the facts and circumstances within their
knowledge and of which they had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the * * * [individual] had committed or was
committing an offense.” State v. Heston, 29 Ohio St.2d 152, 155–156, 280 N.E.2d 376(1972), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). “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
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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, 1661–1662, 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, 2589,
45 L.Ed.2d 623 (1975).
{¶28} This Court has previously recognized a distinction between a Terry stop and
a consensual encounter. State v. Daniels, 5th Dist. Stark No. 2002CA00290, 2003-Ohio-
2492 (May 12, 2003), ¶ 22, quoting Taylor, supra, 106 Ohio App.3d 741, 747, 667 N.E.2d
60 (2nd Dist.1995). Therefore, the first issue we must address is whether in fact the stop
in this case was a Terry stop or a consensual police encounter. We review the issue of
the existence of a consensual encounter by examining the totality of the circumstances.
See Florida v. Royer, 460 U.S. 491, 506–507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
{¶29} Appellant argues Boitnott’s initial encounter with appellee was consensual
and we agree that under the totality of the circumstances, the initial events in the case
sub judice constituted a consensual encounter such that the Fourth Amendment was not
implicated. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497(1980). Boitnott responded to a complaint of persons “shooting up” in a black Dodge
Stratus, located a black Dodge Stratus with two occupants parked a block away, and
approached the driver’s side. “[A]pproaching the occupants of a parked car to ask
questions does not constitute a seizure.” State v. Jack, 156 Ohio App.3d 260, 2004-Ohio-
775, 805 N.E.2d 187, ¶ 13 (2nd Dist.), citing State v. Carter, 2nd Dist. Montgomery No.
19833, 2004-Ohio-454, 2004 WL 225309. Boitnott did not block the vehicle, did not have
Tuscarawas County, Case No. 2018AP060027 10
his lights activated, and did not have his weapon drawn, nor did he direct any orders at
appellee. State v. Imani, 5th Dist. No. CT2016-0067, 2017-Ohio-8113, 98 N.E.3d 1149,
¶ 26. Boitnott testified that once he spotted the car and began speaking to the occupants,
he did not consider them to be free to leave, but as appellant points out, Boitnott’s
subjective intention is immaterial. The subjective intent of the officer to allow the individual
to leave is irrelevant; the test is objective and is based upon whether a reasonable person
would have felt free to leave. State v. Wallace, 145 Ohio App.3d 116, 122, 761 N.E.2d
1143 (6th Dist.2001), citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.
1870, 1877, 64 L.Ed.2d 497, 509, at fn. 6 (1980).
{¶30} As he spoke to appellee and the female passenger, Boitnott observed track
marks on appellee’s arms and noticed appellee’s furtive movements. Further, appellee
first denied the pair was in the park, then admitted they were in the park (albeit “making
out”) when the female said so. The paramount issue thus posed by the instant case is
whether Boitnott had reasonable and articulable suspicion to elevate the encounter from
a consensual encounter to an investigative encounter under the totality of these
circumstances. The propriety of an investigative stop must be viewed in light of the totality
of the circumstances surrounding the stop “as viewed through the eyes of the reasonable
and prudent police officer on the scene who must react to events as they unfold.” State
v. Reece, 5th Dist. Delaware No. 17 CAC 03 0019, 2018-Ohio-150, --N.E.3d--, ¶ 9, citing
State v. Andrews, 57 Ohio St.3d 86, 87–88, 565 N.E.2d 1271 (1991); State v. Bobo, 37
Ohio St.3d 177, 178, 524 N.E.2d 489 (1988). The Supreme Court of the United States
has re-emphasized the importance of reviewing the totality of the circumstances in
making a reasonable-suspicion determination:
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When discussing how reviewing courts should make
reasonable-suspicion determinations, we have said repeatedly that
they must look at the “totality of the circumstances” of each case to
see whether the detaining officer has a “particularized and objective
basis” for suspecting legal wrongdoing. This process allows officers
to draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information
available to them that “might well elude an untrained person.”
Although an officer's reliance on a mere “hunch” is insufficient to
justify a stop, the likelihood of criminal activity need not rise to the
level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard. United States
v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002),
citing United States v. Cortez, 449 U.S. 411, 417–418, 101 S.Ct. 690,
66 L.Ed.2d 621 (1981).
State v. Reece, 5th Dist. Delaware No. 17 CAC 03 0019,
2018-Ohio-150, --N.E.3d--, ¶ 10, citing State v. Caplinger, 5th Dist.
Muskingum No. CT2013-0018, 2013-Ohio-5675, 2013 WL 6834807,
¶ 16.
{¶31} In the instant case, the totality of the circumstances included the call to
dispatch regarding possible drug use in the park, Boitnott’s contact with the caller, his
observation of a car matching the description a short distance away, the track marks on
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appellee, appellee’s furtive movements, the different stories from appellee and the
passenger, and the admission to having been in the park.
{¶32} Upon our review of the record, we find Boitnott had reasonable, articulable
suspicion sufficient to justify an investigation. State v. Woodgeard, 5th Dist. Fairfield No.
01CA50, 2002-Ohio-3936, [parked vehicle, midnight, police “saw heads moving”]; State
v. James, 5th Dist. Coshocton No. 2014CA0016, 2015-Ohio-587, [driving without
headlights through marked parking lanes, citizen tip]; State v. Prigmore, 5th Dist. Stark
No. 2005-CA-00115, 2005-Ohio-6952 [parked car, high drug activity, passenger slid down
into the seat, incense burning inside the car].
{¶33} Appellant’s sole assignment of error is sustained.
CONCLUSION
{¶34} Having sustained the assignment of error, the judgment of the Tuscarawas
County Court of Common Pleas is hereby reversed and the matter is remanded for further
proceedings consistent with this opinion.
By: Delaney, J.,
Wise, John, P.J. and
Hoffman, J., concur.