DocketNumber: No. 16186.
Citation Numbers: 701 N.E.2d 778, 122 Ohio App. 3d 358
Judges: Young, Brogan, Fain
Filed Date: 8/15/1997
Status: Precedential
Modified Date: 10/19/2024
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 360
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 361
This case comes to us from the Montgomery County Court of Common Pleas, Criminal Division. Defendant-appellant, Patricia Ann Shepherd, appeals from the trial court's denial of her motion to suppress and her subsequent conviction of drug abuse, a violation of R.C.
As Officer Brame approached the scene in the northbound alley running between South Mathison Avenue and Grosvenor Avenue, the driver closed the passenger door and began driving north rapidly. Officer Brame pulled behind the Trans Am as the driver drove away and noticed that "the vehicle also had a loud and defective muffler." Officer Brame testified under oath that he then initiated a traffic stop because of the muffler. The driver pulled the car over after traveling for several blocks. Officer Kurt Schwarz also arrived at the scene in a separate patrol car.
Officer Brame approached the Trans Am, and upon noticing that there were two individuals in the back seat but no one in the front passenger seat, asked the driver why they were in the area and whether there had been a passenger in the front seat. The driver disclosed that the three individuals were in the area for the purpose of purchasing narcotics, and that the front seat had been occupied by a woman who got into the car to sell them crack cocaine. He further disclosed, however, that the transaction was foiled by the arrival of Officer Brame and that the woman had left the car without completing the sale. The driver described the would-be seller as a black female of medium to medium-dark complexion, whose height was 5'5" to 5'6", and who wore a long, black leather coat and blue jeans. The driver gave his name as Melvin Weigandt.
Officer Brame patted down all of the individuals and searched the car, and having failed to discover any crack cocaine, issued the driver a citation for the muffler. The stop had consumed approximately thirty minutes. Both officers then proceeded to the area of Howell and South Mathison to seek out the woman described by the driver. When the officers returned to the alley from which Officer Brame had first emerged to see the Trans Am half an hour earlier, they discovered two men and a woman in the rear of the alley. The woman matched the description given by Weigandt.
The officers informed the woman that they "needed to ask her some questions" and that they were going to check her for weapons and then place her in the back seat of one of the patrol cars. Because no female officer was present to conduct the search, Officer Brame conducted a "visual inspection" by ordering her to open her pockets and looking inside of them. While peering into the left breast pocket of the woman's coat, he observed a small piece of rolled brown paper. Officer Brame testified that he recognized the paper as a common container for crack cocaine. On Officer Brame's request, the woman removed the paper and handed it to him. Officer Brame unrolled the paper and discovered that it contained a *Page 363 substance resembling crack cocaine. Officer Brame placed the woman under arrest, handcuffing her and placing her in the back of his cruiser. He then searched her coat and purse, discovering more of the substance.
The woman, defendant-appellant Patricia Ann Shepherd, was indicted on one count of drug abuse, on April 2, 1996. On April 26, 1996, Shepherd entered a plea of not guilty. Shepherd's court-appointed attorney filed a motion to suppress all the evidence seized from Shepherd by the law enforcement officers on the night of March 23, 1996, on the grounds that the officers violated Shepherd's rights under the
"[C]onsidering the totality of the circumstances, the Court finds that the officers did have sufficient probable cause. Although the officers cannot vouch for the credibility of informant Weigandt, nevertheless, he gave them specific information about a potential drug trafficker containing height, complexion and garments worn. Furthermore, the alleged drug transaction was to have occurred in a ``high drug area.' Furthermore, upon returning to the scene within a short period of time, the officers observed the same individual who fit the description from the informant.
"Considering the totality of the circumstances, the Court finds that the officers had reasonable cause with which to stop the Defendant and inquire about possible drug activity. Furthermore, the officers had a right to pat down the individual for weapons for their protection. The Court finds the procedure of the officers reasonable to request the Defendant to open her pockets versus a patdown since she was a female suspect and there was no female officer on duty. Thereafter, the officers had within plain view suspected contraband and thereafter conducted the arrest and subsequent search."
After the court's denial of her motion to suppress, Shepherd changed her plea to "no contest." On October 4, 1996, the court filed a termination entry sentencing Shepherd to the Ohio Reformatory for Women for an eighteen-month term, but suspending the sentence and placing her on probation for no more than five years. Shepherd filed a timely notice of appeal on October 21, 1996, and asserts two assignments of error.
Under this assignment of error, Shepherd argues that the information provided by Melvin Weigandt was both inadequate to form the basis for reasonable suspicion and unsupported by sufficient indicia of reliability. According to Shepherd, Officer Brame did not have the requisite cause to detain her and did so in contravention of her state and federal constitutional rights against unreasonable searches and seizures. Because the search and seizure protections protected by the
Shepherd's encounter with Officer Brame began as an investigatory detention under Terry v. Ohio (1968),
"[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Terry,
Thus, the Supreme Court has determined that in light of the limited duration and purpose of the search, an officer's decision to conduct an investigatory detention of an individual need only be supported by reasonable, articulable suspicion of criminal activity. Id.; State v. Taylor (1995),
Although the Terry court referred specifically to a police officer's own observation of unusual conduct giving rise to reasonable suspicion, subsequent Ohio and federal law makes clear that a stop may be based on information received from an informant or anonymous tip. Adams v. Williams (1972),
In determining whether reasonable suspicion was present, we sacrifice certainty for flexibility and look to the "totality of the circumstances." Bobo, supra, State v. Wilks (Sept. 30, 1993), Montgomery App. No. 13654, unreported, 1993 WL 386246. In this case, the driver of the Trans Am, Melvin Weigandt, gave Officer Brame a physical description of a woman and informed him that she was attempting to sell crack cocaine in the area that he had just left. When the officers returned to the scene of the alleged near-transaction, they discovered a woman matching the description provided by Weigandt and initiated the Terry stop. The trial court identified the requisite articulable facts constituting reasonable suspicion as follows: Shepherd was in the area where the aborted drug transaction was said to have occurred and matched the description given by Weigandt and she was in a "high drug area." The court determined that under the totality of the circumstances, the officers had reasonable suspicion to detain Shepherd. We are bound to regard the court's findings of fact as true as long as they are supported by competent and credible evidence. State v. Clay (1973),
What we must determine is whether Weigandt was a reliable source of information and, if so, whether the information that he provided to Officer Brame was sufficient to constitute reasonable suspicion that Shepherd was involved in criminal activity. In assessing an informant's reliability, veracity and basis of knowledge are highly relevant factors. See Illinois v. Gates
(1983),
Weigandt's basis of knowledge is not in question, as he related what he purported to be firsthand knowledge to the officer. Veracity, however, presents a different question. As noted above, Weigandt was not a citizen-informant who was victimized or merely happened to witness a crime. Additionally, in contrast with most "known informant" cases involving information gathered from criminal participants themselves, see, e.g., Adams v. Williams
(1972),
of course, as mentioned above, a tip which by itself lacks sufficient indicia of reliability may nonetheless provide reasonable suspicion justifying an investigative detention where it is sufficiently corroborated through independent police work.State v. Halahan (1995),
The only corroboration here was of neutral details. Officer Brame did not see Shepherd engaged in any activity of a suspicious nature, such as entering and exiting parked cars along the street, that would have verified Weigandt's story or provided independent grounds for suspicion. In fact, he verified only that a woman meeting the description — a description Officer Brame admitted was "general" — was in the area, and observed nothing independently indicating that she was involved in criminal activity. Although this case is distinguishable from Harris because it does not involve an anonymous informer, we believe that the principle articulated in that case reaches the facts presented to us today. Here an identified informant who was not known to the police officer and who may have had an incentive to direct the police away from his trail offered a description of a nameless woman in very common clothing that did not include weight, *Page 368 approximate age, any hair description, and did not mention the four-inch scar on the left cheek of the individual subsequently stopped. Police verification of minimal neutral details, which amount to general description and location, is not sufficient to justify an investigative detention.
Beyond arguably confirming some neutral details obtained from Weigandt, Officer Brame had no firsthand observations on which to rely in stopping Shepherd. His earlier observation of the Trans Am parked in the intersection has no bearing on the reasonable-suspicion analysis because he could not state that Shepherd (or anyone resembling her) was present at the scene. Furthermore, even had he seen Shepherd in or around the Trans Am, he would not have had reasonable suspicion on the basis of that observation to detain her. In State v. Jones (1990),
In this case, the only other articulable fact supporting reasonable suspicion that was not provided by Weigandt was Officer Brame's assertion that Shepherd was in a "high drug area" at the time of the encounter in the alley. We dismissed this argument on the facts in Jones, supra, stating that "[a] person's mere presence in an area of high crime activity does not suspend the protections of the
Moreover, while the Supreme Court of Ohio has recognized an area's reputation for criminal activity as an articulable fact supporting reasonable suspicion, State v. Bobo (1988),
Courts sometimes analyze cases involving whether an officer had reasonable suspicion to stop an individual by inverting the question and asking whether the officer would have been delinquent in his duties had he not taken the action that he did. See, e.g., State v. Antill (1993),
The appellant's first assignment of error is sustained.
Under this assignment of error, Shepherd argues that the search of her person was in violation of the
With respect to the Terry stop, an officer may conduct a limited search of an individual who is the subject of an investigatory detention where the officer has a reasonable suspicion that the individual is armed. State v. Williams (1990),
The state responds that, even if the search was unsupported by reasonable suspicion or went beyond the scope of Terry, it was valid because Shepherd consented to the search of her pockets. We disagree. We first note that the trial court clearly rested its decision on the belief that the search of Shepherd's pockets was conducted pursuant to the officer's authority under Terry to frisk for weapons and made no findings suggesting that the search was consensual. Order and Entry, at 3. Moreover, the state has conceded throughout this matter that the encounter between Shepherd and Officers Brame and Schwarz was an investigative detention under Terry. The state has never argued, and we do not understand it to be arguing now, that the encounter was consensual. Rather, it now argues that Shepherd willingly complied with the officer's request to inspect the insides of her pockets. Even if Shepherd did so comply, the search was nonetheless invalid because "consent given during an investigatory detention is only valid if the police officer had reasonable suspicion to detain the person." State v. Taylor
(1995),
Accordingly, the second assignment of error is sustained.
Because we sustain appellant's first and second assignments of error, the judgment of the Montgomery County Court of Common Pleas is reversed, and the cause is remanded for further proceedings consistent with this decision.
Judgment reversed and case remanded.
BROGAN and FAIN, JJ., concur.
Florida v. Royer , 103 S. Ct. 1319 ( 1983 )
State v. Taylor , 106 Ohio App. 3d 741 ( 1995 )
State v. Campbell , 68 Ohio App. 3d 688 ( 1990 )
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