State v. Allen

[Cite as State v. Allen, 2012-Ohio-3709.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24587
v. : T.C. NO. 10CR3705
GREGORY ALLEN : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of August , 2012.
..........
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
PAMELA L. PINCHOT, Atty. Reg. No. 0071648, Clyo Professional Center, 7960 Clyo Road,
Dayton, Ohio 45459
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Gregory Allen, filed
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April 13, 2011. Allen appeals from his Judgment Entry of Conviction, dated January 31, 2011,
following a plea of no contest to one count of possession of crack cocaine, in an amount which equaled
or exceeded one gram but was less than five grams, in violation R.C. 2925.11(A). Allen was
sentenced to community control for a period not to exceed five years. We hereby affirm the judgment
of the trial court.
{¶ 2} Allen’s arguments on appeal relate to the trial court’s denial of his motion to suppress,
which was filed on February 15, 2011. At the suppression hearing, Dayton police officer Jason
Berger testified that he has three years of experience with the department, and that on November 13,
2010, at approximately 1:53 a.m., he and his partner, Andrew Clark, were on routine patrol in a
marked cruiser, when Berger observed Allen “crouched down behind a pillar in front of a closed
business.” Berger stated that Allen was on Main Street, directly across the street from an RTA hub.
Berger stated that he often works overtime assignments in the area, “to cut down on fights as well as
there’s a lot of drug trafficking that goes on there. A lot of problems with juveniles.” Berger stated
that he has made drug arrests in the area. According to Berger, Allen was “kneeling down,” and
Berger “could see him doing something with his hands.” Berger stated that he was unable to
determine what Allen was doing because it was “very dark.” The officer stated that he was concerned
that Allen may have been trying to break into a business, or perhaps had “stumbled out of a bar” and
was intoxicated.
{¶ 3} Berger testified that he drove his cruiser onto the sidewalk and got out of
the vehicle to initiate contact with Allen. According to Berger, Allen got up and began to walk
away toward Third Street, and Berger then introduced himself as a Dayton police officer and
asked Allen why he had been crouching behind the pillar. At that time, Allen “started diving for
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his right pocket.” Berger stated that he instructed him, “don’t grab for your pocket,” out of
concern that he might be reaching for a weapon. Berger testified that Allen continued “grabbing
for his right pocket,” and Berger then grabbed Allen’s arm and walked him to his cruiser, placing
his hands on the hood. Berger stated that Allen again reached for his right pocket, and Berger
advised Clark to go “ahead and get your taser out.”
{¶ 4} Berger testified that Allen then cooperated with him, and he “began to conduct a
Terry pat down of his outer clothing” for weapons. Berger stated that he retrieved marijuana and
crack cocaine from Allen’s right pants pocket. When he initially felt the items, Berger stated that
he felt a plastic baggie containing marijuana, and that the marijuana was “kind of soft to the
touch.” Berger testified, “I’ve encountered it a lot of times. I know * * * what it feels like.”
Berger testified, “[y]ou can actually even hear the baggie as your hand’s going over the top of
it.” Regarding the crack cocaine, Berger testified, “I didn’t know it was crack at first. And not
until I went in to pull the marijuana out is where that came out with it. I felt it at that point; I
didn’t know what it was.” Berger stated that the crack cocaine was in a separate baggie, and that
during the pat down he could not tell whether Allen’s pocket contained one or two baggies. Once
the baggies had been retrieved, Berger stated that he immediately placed Allen in handcuffs, and
after completing the pat down, placed him in his cruiser. Berger testified that he considered
Allen to be under arrest for possession of crack cocaine. He stated that he tested the crack
cocaine at the police department.
{¶ 5} Berger stated that Allen did not make any statements during the pat down.
According to Berger, he did not ask Allen any further questions until after he Mirandized him in
the rear of his cruiser, using a rights card from the prosecutor’s office. Berger stated that he
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advised Allen that he had the right to an attorney, and that Allen did not request one. He further
advised Allen that he had a right to remain silent. Berger stated that he advised Allen that anything
he said could be used against him in court. Berger testified that Allen appeared to understand his
rights and did not ask any questions. Berger stated that he asked Allen if he was willing to waive
his rights and speak to him, and that Allen was willing to do so. Berger stated that he questioned
Allen for about 10 minutes, during which time neither he nor Clark threatened him or made any
promises in exchange for his answers. Berger stated that Allen never indicated that he did not
want to talk to him, and he did not request an attorney. Berger eventually transported Allen to
the Montgomery County Jail.
{¶ 6} On cross-examination, Berger testified that he had training at the academy
regarding the detection of drugs in the course of a pat down, and that since then he estimated that
he has conducted at least one pat down in the course of every shift for the past three years.
Berger stated that drugs were recovered in “a third at the very most” of those pat downs, and that
the purpose of the pat downs is to detect weapons and not drugs. Berger testified that his
attention was drawn to Allen due to “the dim litted (sic) area; the closed business. And the fact
that he’s * * * crouched down in front of this closed business and doing something with his
hands.” Berger further noted his “experience with the RTA bus hub, which is directly across the
street, and drug activity.” He stated that in the past year he did not recall responding to the area
due to break-ins. The following exchange occurred:
Q. Would you agree with me that he wasn’t committing a crime though[?]
A. Right. He was not committing a crime.
A. * * * You’ve also indicated - - I don’t know if you recall this, but in your
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report you indicated that that area has been an area where there’s been a lot of
break-ins; correct?
A. Yes.
Q. * * * But you’ve just indicated in your testimony that in the past year
you haven’t been called out - -
A. Right.
Q. - - for any break-ins, correct?
A. We get emails all the time with the hot spots of break-ins and - - and
almost on a daily basis. It come out to * * * our in-work e-mail system with
locations that have been broken into, items that have been stolen and things of that
nature.
Q. But in the past year, you haven’t been called out in that area; correct?
A. I have not personally been called out for a break-in, no.
{¶ 7} Berger stated that he approached Allen for investigative purposes, and to check
on his well-being. When asked why he patted Allen down, Berger testified: “Individuals usually
grabbing for their pockets are trying to hide something and/or they’re trying to get - - to get rid of
something. And I’ve had lots of interactions, at least in the Fifth District, where individuals do
have a gun on them; they do pull it out; they do throw it on the ground; they do take off running.”
When asked why he believed the baggie he felt in Allen’s pocket contained marijuana, Berger
stated that in addition to its feel, he could smell marijuana on Allen’s person.
{¶ 8} Allen testified that at the time of his arrest he was “coming up Main Street going
towards Third Street.” Allen stated that he had been at the home of a cousin, Sholanda, and that
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he was carrying a bowl of spaghetti, which he was eating, and “a pop in a plastic bag with my
CDs in it,” when the officers approached him. Allen stated that he did not recall Berger telling
him to stop, and that he reached into his pocket to retrieve his identification.
{¶ 9} On cross-examination, Allen stated that he was not crouched down at the time but
was walking along, eating his spaghetti with a fork. Allen stated that the area was illuminated by
the street lights on Main Street. Allen stated that he had “the bag in one hand with the bowl and
the fork in my other hand.” Specifically, Allen testified that his fork was in his left hand and the
bowl was in his right hand. According to his testimony, when Allen heard the officers pull onto
the curb, he put his fork into the bowl and reached into his back right pocket for his identification.
When asked if he reached into his right rear pocket with his left hand, he replied, “* * * the type
of pants that I got on, they baggie pants, so the pockets are not that hard for you to reach in to get
‘em.” Allen stated that he reached for his identification before Berger spoke to him, and that
when Berger approached, he put his bowl on the ground.
{¶ 10} The trial court issued an oral decision overruling Allen’s motion on March 9,
2011. The court initially noted that it found Berger’s testimony “to be credible and believable,”
and in contrast “did not find Mr. Allen’s to be credible.” The court incorporated Berger’s
testimony “into this decision as the court’s factual conclusions.” The court identified four issues
for resolution, namely: (1) “the constitutional propriety of the encounter between” the officers
and Allen; (2) whether the pat-down search of Allen was constitutionally appropriate; (3)
“whether under the plain feel doctrine, Officer Berger had the right to retrieve that which turned
out to be crack cocaine” from Allen’s pants pocket; and (4) whether Allen’s statements “after he
was arrested and received his Miranda warnings are subject to suppression.”
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{¶ 11} Regarding the initial encounter between Berger, Clark and Allen, the court
determined that it was in the nature of an investigative detention, or “Terry stop.” The court
determined that “kneeling behind a pillar in front of a closed business at 1:55 a.m. constitutes a
reasonable and articulable suspicion that Mr. Allen * * * was engaging in or about to engage in
criminal activity.” The court accordingly found that “the initial encounter was an appropriate
Terry stop and was constitutionally appropriate and permissible.”
{¶ 12} Regarding the pat-down search, the court determined that it was “constitutionally
appropriate” for Berger to conduct the pat down. Of significance to the trial court was Allen’s
“continued insistence to reach into his right pant pocket, even after being told not to do so on
repeated occasions,” such that Berger had “a sufficient specific articulable suspicion that Mr.
Allen was armed.”
{¶ 13} Regarding the retrieval of the contraband from Allen’s pocket, the trial court
determined that “Berger’s testimony that he immediately recognized that which he felt during the
pat-down search as a probable baggie of marijuana provided the needed probable cause to retrieve
the baggie.” The court noted that the retrieval of the marijuana led to the discovery of the crack
cocaine, and it concluded that there was “no basis upon which to suppress the crack cocaine based
upon any violation of the plain feel doctrine.”
{¶ 14} Finally, regarding any statements made by Allen, the court found that Berger
Mirandized Allen upon arrest, and that Allen made a knowing and voluntary waiver of his rights.
The court noted, “there is nothing in the record to suggest that Mr. Allen, by virtue of intoxication
or any mental defect or disease, lacked the mental capacity to waive his Miranda rights.” The
court further noted, “there is nothing in the record to suggest that Mr. Allen’s will was overcome
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by violence, threats, trickery or false promises.”
{¶ 15} Allen asserts one assigned error as follows:
THE TRIAL COURT ERRED IN OVERRULING
DEFENDANT-APPELLANT’S MOTION TO SUPPRESS AS THE DAYTON
POLICE OFFICER DID NOT HAVE REASONABLE, ARTICULABLE
SUSPICION TO BELIEVE DEFENDANT-APPELLANT WAS ENGAGED IN
CRIMINAL ACTIVITY AT THE TIME OF THE STOP AND, THEREFORE, HE
VIOLATED THE RIGHTS GUARANTEED TO THE
DEFENDANT-APPELLANT BY THE FOURTH AMENDMENT TO THE
UNTIED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE
OHIO CONSTITUTION.
According to Allen, the officers “relied on an inchoate hunch or suspicion and did not have a
reasonable, articulable cause to believe” that Allen was involved in criminal activity. Allen further
asserts that crouching behind a pillar is “essentially neutral or ambiguous,” and that there was not a
“nexus” between his conduct and specific criminal activity.
{¶ 16} As this Court has previously noted:
“Appellate courts give great deference to the factual findings of the trier of
facts. (Internal citations omitted) . At a suppression hearing, the trial court serves
as the trier of fact, and must judge the credibility of witnesses and the weight of the
evidence. (Internal citations omitted). The trial court is in the best position to
resolve questions of fact and evaluate witness credibility. (Internal citations
omitted). In reviewing a trial court’s decision on a motion to suppress, an
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appellate court accepts the trial court’s factual findings, relies on the trial court’s
ability to assess the credibility of witnesses, and independently determines whether
the trial court applied the proper legal standard to the facts as found. (Internal
citations omitted). An appellate court is bound to accept the trial court’s factual
findings as long as they are supported by competent, credible evidence.” State v.
Hurt, Montgomery App. No. 21009, 2006-Ohio-990. State v. Purser, 2d Dist.
Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.
{¶ 17} The Fourth Amendment to the Untied States Constitution, which is applicable to
the states through the Fourteenth Amendment, provides: “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons and things to be seized.”
Violations of the Fourth Amendment require courts to apply the exclusionary rule, suppressing
use of any evidence that was illegally obtained. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6
L.Ed.2d 1081 (1961).
{¶ 18} As this Court has previously noted:
“The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio (1968), 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Not all interactions between citizens and
the police, however, constitute a seizure. Rather, the interactions between citizens
and law enforcement officers can fall within three distinct categories: a consensual
encounter, an investigative detention, and an arrest. State v. Taylor (1995), 106
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Ohio App.3d 741, 747-749, 667 N.E.2d 60.”
***
“An individual is subject to an investigatory detention 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. * * * 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. * * * . ‘Reasonable suspicion entails some minimal level of
objective justification for making a stop - that is, something more than an inchoate
hunch and unparticularized suspicion or “hunch” but less than the level of
suspicion required for probable cause.’ State v. Jones (1990), 70 Ohio App.3d
554, 556-557, 591 N.E.2d 810. We determine the existence of reasonable
suspicion by evaluating the totality of the circumstances, considering those
circumstances ‘“through the eyes of the reasonable and prudent police officer on
the scene who must react to events as they unfold.”’ State v. Heard, Montgomery
App. No. 19323, 2003-Ohio-1047, at ¶ 14, quoting State v. Andrews (1991), 57
Ohio St.3d 86, 87-88, 565 N.E.2d 1271. * * * State v. Curtis, 193 Ohio App.3d
121, 2011-Ohio-1277, 951 N.E.2d 131 (2d Dist.).
{¶ 19} “‘The Fourth Amendment does not require a policeman who lacks the precise
level of information necessary for probable cause to arrest to simply shrug his shoulders and allow
a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may simply be
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the essence of good police work to adopt an intermediate response. * * *.’” State v. Freeman, 64
Ohio St.2d 291, 295-96, 414 N.E.2d 1044 (1980). Further, a “‘brief stop of a suspicious
individual, in order to determine his identity or to maintain the status quo momentarily while
obtaining more information may be most reasonable in light of the facts known to the officer at
the time.’ * * * .” Id., 296.
{¶ 20} Presence in a high crime area, standing alone, is insufficient to justify an
investigative detention. As this Court has previously determined:
The facts and circumstances before the officer must yet reasonably suggest
that some specific criminal activity is afoot. That specificity requirement focuses
on the criminal character of the act, not on its setting. Acts that are essentially
neutral or ambiguous do not become specifically criminal in character because they
occur in a high crime area. Acts that are not specifically criminal in character do
not become criminal because they are inapposite to their setting and, therefore,
“suspicious.” The setting can inform the officer’s judgment, but it does not make
the act criminal. In order to detain an individual to investigate for crime, some
nexus between the individual and specific criminal conduct must reasonably exist
and must be articulated by the officer. State v. Maldonado, 2d Dist. Montgomery
No. 13530, 1993 WL 402772 (Sept. 24, 1993).
{¶ 21} Allen directs our attention to State v. Maldonado, in which this Court vacated
Maldonado’s conviction and remanded the matter for further proceedings, having concluded that
the trial court erred in overruling his motion to suppress. Maldonado had been detained in a high
crime area by officers assigned to “preventative patrol,” and this Court considered the presence of
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law enforcement in the area for such a purpose as follows:
Certainly, that is a proper and legitimate way to discourage crime and
diminish criminal activity. It will, naturally enough, be employed where the
incidence of crime is greater. Those facts do not, however, give officers so
assigned any greater authority to detain or search persons found in their assignment
area. While the greater incidence of crime in an area is likely to make searches
performed there more productive of arrests, that corresponding probability permits
no greater governmental intrusion than the Fourth Amendment allows elsewhere.
In all instances, absent a warrant the facts before the officer must reasonably
suggest that some specific criminal misconduct is afoot. Otherwise, law
enforcement officers may not invade the right to personal security and privacy that
the Fourth Amendment was designed to protect.
{¶ 22} Allen further asserts that the matter herein is analogous to State v. Belcher, 2d
Dist. Montgomery No. 14385, 2011-Ohio-5015. Therein, a police officer on his way to work, at
5:20 a.m., observed three men, whom he did not recognize, walking in the grass in an area not
known for pedestrian traffic and where “there had been significant recent criminal activity in the
area, including thefts from vehicles, garages, and residential burglaries.” Id, ¶ 10. The officer
proceeded to the station and returned to the area in a marked cruiser. When he approached the
men, he noted that one of them carried a backpack. This Court determined as follows:
The conduct observed by Officer Titus * * * fails to demonstrate a nexus
between the men and some particular criminal conduct such as theft. No matter
how unusual someone wearing a backpack and walking along Old Salem Road at
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5:20 a.m. may be, that conduct itself is innocent or at most ambiguous, and not
indicative of any criminal activity.
Furthermore, the mere fact that this innocent or ambiguous conduct
occurred in an area where crimes had occurred does not make it criminal in
character or give rise to a reasonable articulable suspicion of specific criminal
activity. [citing Maldonado]. Simply being present in a high crime area, by itself,
is not indicative of criminal activity, nor does it justify a Terry investigative stop. *
* * Officer Titus detained Defendant on nothing more than an inchoate hunch,
which is legally insufficient to justify a Terry investigative stop. * * * The Terry
investigative stop and detention/seizure of Defendant’s person in this case [were]
therefore illegal and violated Defendant’s Fourth Amendment rights. Id., ¶ 30-31.
{¶ 23} Having thoroughly reviewed the record before us, relying upon the trial court’s
assessment of Berger’s and Allen’s credibility, and accepting the facts as found by the trial court,
we conclude that a reasonable, articulable suspicion justified the investigative detention of Allen,
and that Belcher is distinguishable from the matter herein. Allen was crouched down, behind a
pillar, in front of a closed business. The area was dimly lit, and Allen was doing something with
his hands which Berger could not ascertain due to darkness. Berger testified that Allen’s location
was across the street from the RTA hub, where Berger often works overtime “to cut down on
fights as well as there’s a lot of drug trafficking that goes on there. A lot of problems with
juveniles.” Berger has made drug arrests in the area. When Berger attempted to speak to Allen,
Allen turned to walk away and repeatedly grabbed at his pocket after being instructed not to do so.
Berger was not physically seized until after ignoring Berger’s orders. Also, although he
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personally had not responded to a break-in the area in the past year, Berger indicated in his report
that the area was one where break-ins often occurred.
{¶ 24} In contrast to Belcher, we conclude that the requisite nexus between Allen’s
conduct and criminal activity is present. While the conduct of the suspects in Belcher, merely
walking in a high crime area, was innocent or at most unclear, Allen was crouching behind a
pillar and doing something unknown with his hands, in front of a closed business. In other
words, Allen’s conduct gave rise to a reasonable suspicion of criminal activity, and the trial court
properly overruled Allen’s motion to suppress.
{¶ 25} Allen’s sole assigned error is overruled, and the judgment of the trial court is
affirmed.
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FAIN, J. and FROELICH, J., concur.
Copies mailed to:
Michele D. Phipps
Pamela L. Pinchot
Hon. Michael L. Tucker