State v. Freudeman

[Cite as State v. Freudeman, 2016-Ohio-908.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27704
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
COURTNEY L. FREUDEMAN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2014 05 1235 (B)
DECISION AND JOURNAL ENTRY
Dated: March 9, 2016
MOORE, Judge.
{¶1} Defendant-Appellant Courtney Freudeman appeals from the judgment of the
Summit County Court of Common Pleas. We affirm.
I.
{¶2} On April 30, 2014, around midnight, the vehicle Ms. Freudeman was driving was
stopped by police shortly after she left the McDonald’s restaurant parking lot in Akron. Ms.
Freudeman, who had a suspended driver’s license, was arrested, and drugs and drug
paraphernalia were found during a search of the vehicle. Ms. Freudeman was indicted on one
count of aggravated possession of drugs, a fifth-degree felony, one count of possessing drug
abuse instruments, a first-degree misdemeanor, and one count of driving under suspension, a
first-degree misdemeanor.
{¶3} Ms. Freudeman filed a motion to suppress asserting that the police lacked
reasonable suspicion to stop the vehicle. After a hearing, the trial court denied the motion to
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suppress. Subsequently, Ms. Freudeman entered a plea of no contest to the indictment. The trial
court sentenced her to an aggregate term of 12 months in prison, but suspended it on the
condition that she complete two years of community control.
{¶4} Ms. Freudeman has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERR[ED] IN FAILING TO GRANT MS.
FREUDEMAN’S MOTION TO SUPPRESS[.]
{¶5} Ms. Freudeman argues in her sole assignment of error that the trial court erred in
denying her motion to suppress. Specifically, she asserts that police lacked reasonable suspicion
to stop the vehicle.
Appellate review of a motion to suppress presents a mixed question of law and
fact. When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. Consequently, an appellate court must
accept the trial court’s findings of fact if they are supported by competent,
credible evidence. Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8.
{¶6} “The investigatory stop of an automobile is a seizure for purposes of the Fourth
Amendment and, consequently, must be based on a law enforcement officer’s reasonable
suspicion ‘that a motorist has committed, is committing, or is about to commit a crime.’” State
v. Dellagnese, 9th Dist. Summit No. 27492, 2015-Ohio-4349, ¶ 6, quoting State v. Mays, 119
Ohio St. 3d 406, 2008-Ohio-4539, ¶ 7. “In justifying the stop, the officer ‘must be able to point
to specific and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.’” Dellagnese at ¶ 6, quoting Terry v. Ohio, 392 U.S. 1, 21
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(1968). “The reasonableness of the officer’s actions is evaluated in light of the totality of the
circumstances surrounding the stop.” Dellagnese at ¶ 6, citing State v. Freeman, 64 Ohio St. 2d
291 (1980), paragraph one of the syllabus. “The totality of the circumstances are viewed through
the eyes of a reasonable and cautious police officer on the scene, guided by his experience and
training.” (Internal quotations and citations omitted.) State v. Greer, 9th Dist. Summit No.
26996, 2014-Ohio-2370, ¶ 6. “A totality of the circumstances review includes consideration of
(1) [the] location; (2) the officer’s experience, training or knowledge; (3) the suspect’s conduct
or appearance; and (4) the surrounding circumstances.” (Internal quotations and citations
omitted.) Id. We remain mindful that “[r]easonable suspicion is something less than probable
cause.” (Internal quotations and citations omitted.) State v. Caynon, 9th Dist. Summit No.
26559, 2013-Ohio-2789, ¶ 12.
{¶7} At the suppression hearing, Officer James Rea of the Akron Police Department,
who had been a police officer for nearly 18 years at the time, testified to the events surrounding
the investigatory stop. On April 30, 2014, Officer Rea was working the 7:00 pm to 3:30 am shift
in the Ellet district, an area he was not used to patrolling. However, previously he was part of a
parking lot interdiction team that targeted drug activity in area parking lots. He described the
area around the McDonald’s as one of the “hot spots” that was targeted by the interdiction team.
He also remembered that this particular McDonald’s parking lot was one of the locations that
they had targeted in the past. Officer Rea explained that people who abuse drugs tend to
purchase drugs and then go to the nearest parking lot to use. Officer Rea testified that during the
parking lot interdiction, his team made stops as well as arrests based on activity occurring in the
McDonald’s parking lot in question. He estimated that three or four arrests were made from that
parking lot over a period of a couple months during the parking lot interdiction.
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{¶8} Around midnight, Officer Rea drove through the McDonald’s parking lot and
noticed there were only a few cars in the parking lot near the front of the restaurant. However,
there also was someone parking a vehicle in the back corner of the parking lot near a dumpster.
He noted that there were other available parking spots closer to the entrance of the McDonald’s
and that the spot the vehicle parked in was the corner farthest from the entrance. Officer Rea
stated that, from his experience, someone who had purchased drugs would park there as it is near
the exit onto Mogadore Road which leads right to the highway.
{¶9} Officer Rea parked his cruiser across the street in a closed Subway restaurant
parking lot. From his location he could observe the vehicle and its two occupants because of a
large overhead light near that area. Nonetheless, he was too far away to see whether the
occupants were male or female. He noticed that the two individuals were “bending down,
moving around and sitting up looking around, bending down, moving around, sitting up and
looking.” He testified that “they just kept scanning, they just kept looking.” Officer Rea
indicated that, in his experience, such activity was consistent with drug activity, i.e. “bending
down, preparing drugs, looking at drugs.”
{¶10} Officer Rea testified that the vehicle was parked in the parking lot for
approximately five to seven minutes before it left. He stated that he never saw anyone exit the
vehicle and no one went into the McDonald’s. Officer Rea agreed that he did not stop every car
that sits in a parking lot. When asked what he was looking for when deciding whether to
conduct a stop, he stated that:
I look at the location where the car was parked from prior stops and arrests. I
look at nobody exited the vehicle, they stayed in one location. They parked
underneath the light so * * * they could see, have the car on. They didn’t park
anywhere near where all the other people parked. They didn’t go into
McDonald’s. * * * [T]heir business there wasn’t for food for the McDonald’s
business.
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{¶11} Prior to the vehicle leaving the parking lot, Officer Rea ran the license plate
through the computer system and it came back as registered to a woman with the last name of
Ingram, who had a valid registration and did not have any outstanding warrants. However, the
in-house system also contained field interview (“FI”) cards. The FI cards indicated that Ms.
Freudeman had been stopped on multiple occasions driving this vehicle. Thereafter, Officer Rea
ran Ms. Freudeman’s name through the system and discovered that she had a suspended driver’s
license.
{¶12} When the vehicle left the McDonald’s, Officer Rea followed it, and shortly
thereafter initiated a traffic stop. At that time he discovered Ms. Freudeman was driving the
vehicle, and proceeded to place her under arrest.
{¶13} Ms. Freudeman initially challenges one of the trial court’s factual findings. She
maintains the trial court incorrectly found that she arrived at the McDonald’s after Officer Rea
had already parked across the street. However, it appears her actual concern is not with the trial
court’s timeline of events but the fact that the timeline leads to the inference that Officer Rea
observed Ms. Freudeman’s entire visit to the McDonald’s.
{¶14} In its entry, the trial court found as follows:
Just before midnight, [Officer] Rea drove through the McDonald’s and then
positioned himself in a parking lot across the street. [Officer] Rea observed that
there were a few cars parked at the McDonald’s near the entrance. [Officer Rea]
then observed a vehicle pull into the McDonald’s and park at the furthest corner
of the parking lot from the restaurant entrance. * * * The passengers never left
the vehicle to purchase food but rather left the parking lot after roughly five
minutes.
{¶15} First we note that it is not clear from the trial court’s entry when it found that
Officer Rea noticed the vehicle, i.e. whether it was while he was pulling through the parking lot,
or after he parked at the Subway. Overall, Officer Rea’s testimony is not a model of clarity.
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During his direct examination he discussed pulling through the parking lot, seeing the vehicle
sitting in the parking lot, and then driving his vehicle across the street to the Subway. However,
during cross-examination, Officer Rea was asked whether he knew if Ms. Freudeman went
through the drive-thru and bought food, to which Officer Rea responded, “I do know that.”
Officer Rea was then asked whether he knew that prior to stopping the car. Officer Rea
responded that, he “did know that because they parked as [he] was pulling through. They
parked, [he] came off of Market and pulled through and went directly across the street.”
Unfortunately, Officer Rea’s testimony was not further clarified by additional questions.
{¶16} Nonetheless, even though there was no specific testimony that Officer Rea
observed the vehicle pull into the McDonald’s, such a finding is not an unreasonable inference
based on the totality of the officer’s testimony. While the exchange is somewhat confusing, a
reasonable inference can be made that Officer Rea drove through the parking lot at the same time
Ms. Freudeman was parking the vehicle, and that he kept the vehicle under surveillance the
entire time it was at McDonald’s. Based on the totality of the record, and the inferences that
could be reasonably made from the officer’s testimony, we conclude that the substance of the
trial court’s challenged findings is supported by competent, credible evidence. See Burnside,
100 Ohio St. 3d 152, 2003-Ohio-5372, at ¶ 8.
{¶17} Ms. Freudeman next argues that the trial court erred in concluding that Officer
Rea possessed reasonable suspicion to stop the vehicle. Based on the totality of the
circumstances, we do not agree.
{¶18} Officer Rea had almost 18 years of experience at the time of the stop and had
been involved in parking lot drug interdictions that also involved the McDonald’s parking lot at
issue. He testified that, during the parking lot interdiction, stops, and approximately 3 or 4
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arrests, were made based upon activity in the parking lot. Thus, he had personal knowledge that
this particular parking lot was associated with drug activity. See State v. Bobo, 37 Ohio St. 3d
177, 179 (1988). Officer Rea also observed what he considered suspicious activity that he
associated with drug activity: (1) a vehicle parked in the far back corner of a parking lot near a
dumpster and an overhead light, despite the fact that there were many open spaces near the
entrance; (2) occupants who did not go into the McDonald’s and left about five minutes after
arriving; and (3) occupants who kept bending down and sitting up and looking around. See id. at
179-180. Moreover, while the McDonald’s was still open, it was nearly midnight, a factor that
also can be considered in the totality of the circumstances analysis. See id. at 178-179. Further,
Officer Rea had information that, while the registered owner of the vehicle had a valid
registration and no outstanding warrants, a person who was known to drive the vehicle, Ms.
Freudeman, had a suspended driver’s license.
{¶19} “In making a determination of reasonable suspicion, the relevant inquiry is not
whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to
particular types of noncriminal acts.” State v. Morton, 9th Dist. Summit No. 25117, 2010-Ohio-
3582, ¶ 9, quoting State v. Lungs, 2d Dist. Montgomery No. 22704, 2008-Ohio-4928, ¶ 17.
“While certain events when viewed separately can appear innocent, taken together the same
events may warrant further investigation.” State v. Patterson, 2d Dist. Montgomery No. 23395,
2009-Ohio-4946, ¶ 25. Given the foregoing, we conclude that Officer Rea possessed a
reasonable, articulable suspicion that Ms. Freudeman was engaged in criminal activity.
Accordingly, the trial court did not err in denying her motion to suppress.
{¶20} Ms. Freudeman’s assignment of error is overruled.
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III.
{¶21} Ms. Freudeman’s assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
WILLIAM A. VASILIOU II, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.