State v. Saunders

[Cite as State v. Saunders, 2018-Ohio-2624.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2017-0052
JOSHUA D. SAUNDERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2016-0397
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 29, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ERIC J. ALLEN
PROSECUTING ATTORNEY THE LAW OFFICE of ERIC J. ALLEN, LTD
GERALD V. ANDERSON II 4605 Morse Road
ASSISTANT PROSECUTOR Suite 201
27 North Fifth Street, P. O. Box 189 Gahanna, Ohio 43230
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0052 2
Wise, P. J.
{¶1} Defendant-Appellant Joshua D. Saunders appeals the decision of the Court
of Common Pleas, Muskingum County, which denied his motion to suppress the results
of a pedestrian stop and arrest effectuated by a Dresden police officer. Appellee is the
State of Ohio. The relevant facts leading to this appeal are as follows:
{¶2} At approximately 1:15 AM on September 8, 2016, Curtis Rogers, a police
officer for the Village of Dresden, was on patrol in his cruiser in the vicinity of West Twelfth
Street, which he later described as a “wrap-around [road] of a trailer complex” lacking any
sidewalks. Supp.Tr. at 9. He then happened upon Appellant Saunders, who was walking
down the roadway, toward the officer’s cruiser, “staggering left to right.” Id. Rogers
stopped his vehicle, exited, and went to speak with appellant. Id. The officer “asked him
to stop” and did not draw his weapon. Supp.Tr. at 10.
{¶3} Appellant, when asked where he was coming from, stated that he had been
at the local Circle K gas station. Officer Rogers did not believe him, based on his
knowledge of the geography of the area. The officer observed that appellant’s “speech
was slightly slurred, and [that] his eyes were glassy.” Supp.Tr. at 12. Rogers believed that
appellant was under the influence of alcohol or drugs, and he asked to see identification.
Id. Rogers further explained: “*** [H]e was walking down the roadway which is a safety
hazard for himself. So I was checking his welfare at the time which is the reason I asked
for his identification.” Id. Appellant refused to provide any identification, even after being
asked at least one more time. Supp.Tr. at 12-13. The only information he provided was
that his first name was “Josh.” Supp.Tr. at 29.
Muskingum County, Case No. CT2017-0052 3
{¶4} As this encounter transpired, appellant kept his hands in the front pockets
of his jeans. He also started “looking in the opposite direction,” which, in the officer’s
experience, was a sign that he was looking for a means to flee. Supp. Tr. at 13. Officer
Rogers asked appellant several times to remove his hands from his pockets, but appellant
refused. Officer Rogers then grabbed appellant's left wrist and pulled appellant's left hand
from his pocket. Appellant tried to pull away and began struggling with Rogers, trying to
pull his arm free. Rogers then put appellant in a hold with his left arm behind his back and
his right arm on the hood of the cruiser, close to the windshield. The officer made a radio
call for assistance, and was thereafter able to get appellant handcuffed. Once appellant
quit struggling, Rogers moved him in front of the cruiser and waited for back-up.
{¶5} In the interim, Officer Rogers asked appellant several times if he had
anything in his pockets that might poke, stick, or hurt him. Appellant responded simply by
claiming that the officer could not lawfully search his pockets.
{¶6} Deputy Brewer of the Muskingum County Sheriff’s Office then arrived in
response to Officer Roger’s dispatch for assistance. Rogers then again asked appellant
if he possibly had anything on his person that would poke or stick him. This time, appellant
responded that he had a knife in his front right pocket.
{¶7} Rogers began a pat-down of appellant, but several items felt in his pockets
prevented the officer from being able to tell where the purported knife was. Rogers
therefore proceeded to empty all of appellant’s pockets for officer safety.
{¶8} It was discovered, however, that appellant was not carrying a knife, but he
did have a wallet, a metal “Altoids” mints can, a cell phone charger, and a napkin. After
appellant was placed in the cruiser, Rogers opened the Altoids can, which contained
Muskingum County, Case No. CT2017-0052 4
some papers and cardboard, a piece of aluminum foil, a pink baggie with a crystal-like
white substance, a clear baggie with a fine white crystal-like substance, and another clear
baggie containing additional baggies. The white crystal-like substance was later
determined to be methamphetamine.
{¶9} Rogers initially arrested appellant for obstruction of official business and
resisting arrest. Supp.Tr. at 22.
{¶10} On November 30, 2016, the Muskingum County Grand Jury indicted
appellant on one count of possession of drugs (methamphetamine), a felony of the third
degree, R.C. 2925.11(A), and one count of resisting arrest, a misdemeanor of the second
degree, R.C. 2921.33(A).
{¶11} Appellant was arraigned on March 17, 2017. At that time, pleas of not guilty
were entered on his behalf on each count. Defense counsel was also appointed.
{¶12} On May 4, 2017, appellant filed a motion to suppress. A hearing on the
motion was set for May 25, 2017, and later continued until June 16, 2017. On said date,
after hearing the testimony and arguments of counsel, the trial court overruled the motion
to suppress.
{¶13} On June 19, 2017, appellant entered pleas of no contest to the two charges.
On June 26, 2017, the court accepted the no contest pleas, and made a finding of guilty
on both counts. However, the resisting arrest charge was thereafter dismissed by
agreement of the parties.
{¶14} Sentencing was scheduled for July 31, 2017, and the trial court ordered the
preparation of a presentence investigation report.
Muskingum County, Case No. CT2017-0052 5
{¶15} However, in the meantime, on July 21, 2017, appellant was arrested and
bond was revoked for violating the fourth condition of his bond.
{¶16} On August 2, 2017, the trial court sentenced appellant to thirty months in
prison and a mandatory fine of five thousand dollars. The court further notified appellant
of three years of post-release control (optional), as well as the consequences for violating
the conditions of PRC imposed by the Parole Board under R.C. 2967.28.
{¶17} On August 11, 2017, appellant filed a notice of appeal. He herein raises the
following sole Assignment of Error:
{¶18} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION
TO SUPPRESS AS THE POLICE VIOLATED HIS FOURTH AMENDMENT RIGHT
AGAINST UNREASONABLE SEARCH AND SEIZURE MADE APPLICABLE TO THE
STATES BY THE FOURTEENTH AMENDMENT.”
I.
{¶19} In his sole Assignment of Error, appellant challenges the trial court’s denial
of his motion to suppress.
Standard of Review
{¶20} The Fourth Amendment to the United States Constitution and Section 14,
Article I, Ohio Constitution, prohibit the government from conducting unreasonable
searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.
1, 88 S. Ct. 1868, 20 L. Ed. 2d 889; State v. Andrews (1991), 57 Ohio St. 3d 86, 87, 565
N.E.2d 1271.
{¶21} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's finding of fact.
Muskingum County, Case No. CT2017-0052 6
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third 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 the given case. See State v. Fanning (1982), 1 Ohio St. 3d 19, 1 OBR
57, 437 N.E.2d 583; State v. Williams (1993), 86 Ohio App. 3d 37, 619 N.E.2d 1141; State
v. Curry (1994), 95 Ohio App. 3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85
Ohio App. 3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App. 3d 592,
621 N.E.2d 726. The United States Supreme Court has held that “... as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de novo
on appeal.” Ornelas v. U.S. (1996), 517 U.S. 690, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d
911.
Scope of Present Appellate Review
{¶22} As an initial matter, we note appellant’s brief lacks a statement of the issues
presented for review. See App.R. 16(A)(4). We nonetheless find appellant herein limits
his argument to whether there was “reasonable suspicion justifying the investigative stop.”
See Appellant’s Brief at 4. This differs from the focal issue set forth in his motion to
suppress at the trial court, wherein appellant (then represented by a different attorney)
maintained that his arrest for obstruction of official business and resisting arrest was
unlawful. See Docket Item 13; Supp.Tr. at 4. Under the general rule of Crim.R. 47, a
motion to suppress “shall state with particularity the grounds upon which it is made.”
Failure of the defendant to adequately raise the basis of his or her challenge constitutes
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a waiver of that issue on appeal. See City of Xenia v. Wallace (1988), 37 Ohio St. 3d 216,
218–219, 524 N.E.2d 889.
{¶23} However, in the interest of justice we will address the issue before us on the
merits.
Initial Encounter between Appellant and Officer Rogers
{¶24} Police officers are permitted to engage in “consensual encounters” with
citizens without running afoul of Fourth Amendment prohibitions on searches and
seizures. See United States v. Hinojosa, 534 Fed.Appx. 468, 470 (6th Cir. 2013), citing
Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991); United
States v. Waldon, 206 F.3d 597, 602–03 (6th Cir. 2000). A consensual encounter occurs
“* * * when the police merely approach a person in a public place, engage the person in
conversation, request information, and the person is free not to answer and walk away.”
State v. Daniels, 5th Dist. Stark No. 2002CA00290, 2003–Ohio–2492, ¶ 12, quoting State
v. Taylor (1995), 106 Ohio App. 3d 741, 747, 667 N.E.2d 60. We review the issue of the
existence of a consensual encounter by examining the totality of the circumstances. See
Florida v. Royer (1983), 460 U.S. 491, 506–507, 103 S. Ct. 1319, 75 L. Ed. 2d 229.
{¶25} Upon review of the record in the case sub judice, we find Officer Rogers’
initial contact with appellant on West Twelfth Street constituted a valid consensual
encounter. The officer was clearly in the scope of his duties in making a “welfare check”
on someone walking in a staggering fashion on a public street at 1:15 AM. Furthermore,
police officers are not required to possess reasonable suspicion of criminal activity when
exercising “community caretaking” functions. State v. Chapa, 10th Dist. No. 04AP-66,
2004-Ohio-5070, ¶8.
Muskingum County, Case No. CT2017-0052 8
{¶26} However, because some contacts that start out as constitutional may at
some point cross a line and become an unconstitutional seizure (see United States v.
Weaver, 282 F.3d 302, 309 (4th Cir. 2002) ), we next consider the constitutionality of the
next stage of Officer Rogers’ stop of appellant.
Terry Stop
{¶27} “Under Terry [supra], 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, including a minor
traffic violation.” State v. Swift, 2nd Dist. Montgomery No. 27036, 2016–Ohio–8191, ¶ 10.
A Terry stop is an investigatory detention, more intrusive than a consensual encounter,
but less intrusive than a formal custodial arrest. See State v. Stonier, 5th Dist. Stark No.
2012 CA 00179, 2013–Ohio–2188, ¶ 43. Reasonable suspicion constitutes something
less than probable cause. State v. Carlson (1995), 102 Ohio App. 3d 585, 590. The
propriety of an investigative stop must be viewed in light of the totality of the
circumstances. State v. Bobo (1988), 37 Ohio St. 3d 177, paragraph one of the syllabus.
{¶28} In the case sub judice, Officer Rogers, having previously observed appellant
staggering on a public street, also observed his slurred speech and glassy eyes during
their initial conversation. Appellant in the meantime exacerbated the situation by refusing,
after being asked, to remove his hands from his pockets for the safety of the officer. While
we recognize that public intoxication normally is a minor misdemeanor in Ohio (R.C.
2917.11(B)), a minor misdemeanor may become an arrestable offense, instead of merely
the basis for a citation, if “the offender requires medical care or is unable to provide for
his own safety.” State v. Greene, 2nd Dist. Montgomery No. 19163, 2002-Ohio-1886,
Muskingum County, Case No. CT2017-0052 9
citing R.C. 2935.26(A)(1). As such, we find a reasonable, articulable suspicion of a
pedestrian’s public intoxication may provide a basis for a Terry stop. Therefore, even
though in this instance Officer Rogers’ initial focus was on appellant’s welfare, and
appellant was never actually charged with public intoxication, under the circumstances
presented we conclude the State demonstrated a reasonable articulable suspicion of
criminal activity justifying an expansion of the initial consensual encounter into a
pedestrian Terry stop.
Conclusion
{¶29} Upon review, we find no error in the trial court’s denial of the motion to
suppress regarding the question of the investigative stop of appellant by the officer.
{¶30} Appellant's sole Assignment of Error is therefore overruled.
{¶31} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By: Wise, P. J.
Hoffman, J., and
Baldwin, J., concur.
JWW/d 0607