2004 Ohio 6449 | Ohio Ct. App. | 2004
The trial court erred in failing to suppress evidence taken in an unlawful seizure. This decision violated the
Because the trial court improperly denied appellant's motion, we reverse.
{¶ 2} On September 16, 2003, two bicycle police officers were patrolling appellant's neighborhood, known to be an area with high drug trafficking activity. Officer Richard Griggs noticed appellant, 17 years old at the time, standing with several other youths. Officer Griggs observed appellant with his left hand extended, pointing to or moving something in his palm. As the officers approached appellant to ask him a few questions, appellant put his hand in his pocket. The officers suspected appellant possessed crack cocaine.
{¶ 3} The officers asked appellant to sit on the ground, and they inquired what appellant was doing, to which appellant responded "nothing." Officer Griggs asked appellant if he could conduct a search of appellant since appellant was not doing anything. Appellant insisted he did not do anything wrong and refused the officer permission. A few minutes later, a man believed to be appellant's father came outside. Officer Griggs told appellant's father they believed appellant possessed crack cocaine. The officers allowed appellant's father to speak to appellant in confidence on two occasions. At some point during the interaction, an officer explained to appellant that they thought they had enough evidence to obtain a search warrant. Eventually, appellant stood up and pulled out of his pocket a baggie with several rocks of crack cocaine. Appellant was not handcuffed prior to revealing the baggie.
{¶ 4} Later that same day, a delinquency complaint for possession of crack cocaine was filed in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. Appellant filed a motion to suppress the crack cocaine evidence, arguing that his detention and search were unlawful. The magistrate overruled the motion, adjudicated appellant a delinquent, and recommended placing him on probation for one year or until all terms and conditions of probation were complete. Appellant filed objections to the magistrate's decision, but the trial court overruled the objections and adopted the magistrate's decision.
{¶ 5} In his single assignment of error, appellant asserts the trial court improperly denied his motion to suppress. Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside,
{¶ 6} The
{¶ 7} The United States Supreme Court recognizes three categories of police interaction with citizens: a consensual encounter, an arrest, and an investigatory detention. Florida v.Royer (1983),
{¶ 8} A seizure constituting an arrest must be supported by probable cause. State v. Barker (1978),
{¶ 9} An officer briefly may detain an individual for questioning, known as an investigatory stop or detention, if the officer reasonably suspects that the individual is engaging, or has been engaged, in criminal activity. Terry v. Ohio (1968),
{¶ 10} The parties do not dispute that appellant was seized within the meaning of the
{¶ 11} A "complete restriction" of liberty that is not excessive does not convert an investigatory detention into an arrest. U.S. v. Bautista (C.A.9, 1982),
{¶ 12} Appellant's brief on appeal characterizes appellant's detention as an arrest and maintains no probable cause supported the arrest. Perhaps because appellant's objections in the trial court did not raise the issue of probable cause, the trial court's analysis focused on whether appellant's detention was proper under the "reasonable suspicion" standard. In any event, we agree with the trial court that appellant initially was subjected to an investigatory detention as opposed to a formal arrest.
{¶ 13} Officer Griggs testified his intent was simply to investigate the situation by asking appellant a few questions; he did not intend to arrest appellant. He further testified that the detention was brief in duration, lasting approximately five minutes, and was for purposes of investigating appellant's actions. Appellant was not handcuffed at any time, and the officers never uttered the words "you're under arrest" until after appellant produced the baggie containing crack cocaine. If the trial court believed the officer's testimony to be true, it could reasonably conclude appellant initially was subject to an investigative detention and was not under formal arrest. In reM.H., Medina App. No. 2003 06 DQ 0295,
{¶ 14} The fact an individual is in a neighborhood that drug users frequent is alone insufficient to support reasonable suspicion. Brown, at 52 (noting that the officer was unable to point to any facts supporting his conclusion that the situation was "suspicious," the record indicated people's presence in the alley was not unusual, and appellant's presence in a neighborhood frequented by drug users, standing alone, was not a basis for concluding that appellant himself was engaged in criminal conduct). As the court in Brown explained, "the appellant's activity was no different from the activity of other pedestrians in that neighborhood." Id.
{¶ 15} On the other hand, officers are not required "to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Illinois v. Wardlow (2000),
{¶ 16} The propriety of an investigatory stop must be assessed in light of the totality of circumstances viewed from the standpoint of a reasonable police officer who must confront those circumstances on the scene. Wright, supra, quoting Statev. Williams (Aug. 30, 2001), Cuyahoga App. No. 78732 (other citations omitted); State v. DeCaminada,
{¶ 17} Under those parameters, the officers here had reasonable suspicion to detain appellant. The officers knew the area where the stop took place to be an area of high crime and drug activity. Although this fact alone is insufficient to demonstrate reasonable suspicion for purposes of an investigatory stop, additional specific and articulable facts are present in this case. The officers noticed appellant standing with several other juveniles pointing to, or moving, something in the palm of his left hand. According to Officer Griggs, one juvenile nudged appellant to alert him to the officers' presence. Once appellant noticed the officers, he not only appeared nervous, but "quickly" put that hand into his pocket. (Tr. 9.) Officer Griggs added that appellant was a suspected crack cocaine dealer: "[w]e know that Tyshawn and his brothers are suspected of selling crack-cocaine." (Tr. 22.) The officers had extensive experience with law enforcement related to drugs, particularly in the area where they found appellant.
{¶ 18} While appellant's conduct may have been wholly lawful, the specific facts to which the officers testified were sufficient to raise reasonable suspicion in officers who observe drug "behavior" on a regular basis. Wardlow, at 125 (noting that "[e]ven in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation"). Appellant's initial detention thus was lawful.
{¶ 19} The next issue argued on appeal is whether appellant voluntarily consented to the search subsequent to the investigatory stop. The record is not clear whether the officers physically searched appellant. Officer Griggs testified appellant relinquished the baggie containing crack cocaine from his pocket after speaking to his father the second time. Appellant's father testified he could not recall whether the officers physically searched appellant's pocket. In either event, the issue is whether appellant voluntarily allowed the officers access to the baggie.
{¶ 20} A defendant waives his or her
{¶ 21} "The standard of proof to show a waiver of
{¶ 22} Factors used to determine voluntariness of consent include: (1) the voluntariness of the appellant's custodial status, (2) the presence of coercive police procedures, (3) the extent and level of the appellant's cooperation with the police, (4) the appellant's awareness of his right to refuse consent, (5) the appellant's education and intelligence, and (6) the appellant's belief that no incriminating evidence will be found. Id. Other factors may include the age of the appellant and the duration of questioning. State v. Bennett (June 21, 2000), Ross App. No. 99 CA 2509. Although knowledge is a factor, an appellant need not know he or she had a right to refuse consent.Schneckloth, supra. Further, the fact of custody alone is insufficient to demonstrate a coerced consent to search. U.S. v.Watson (1976),
{¶ 23} Applying the above factors, we note that although appellant did not agree to his detention at the hands of the officer, appellant was lawfully detained based on the officers' reasonable suspicion that criminal activity was afoot. Under the second and third prongs, appellant initially cooperated by sitting on the ground when so asked, and he answered the officers' initial questions, but he initially refused consent to search. The fourth prong is difficult to assess on this record, as the evidence does not indicate appellant was advised of his right to refuse consent. Similarly, an analysis of the fifth prong is problematic on this record, as appellant's education and intelligence level are not apparent from the record. While appellant was a juvenile at the time, the officers allowed appellant to speak with his father in confidence on two occasions during the detention, thereby mitigating at least to some degree appellant's age. Finally, under the sixth element, appellant was aware incriminating evidence would be found in his pocket if he were searched.
{¶ 24} Under the foregoing analysis, the issue is whether the police procedures were coercive, when appellant, who knew he had incriminating evidence in his pocket, was detained until he allowed the search but only after the officer mentioned a search warrant.
{¶ 25} Consent may be invalidated where it is premised on a search warrant that turns out to be invalid. Bumper v. State ofNorth Carolina (1968),
{¶ 26} In Clelland, the appellant argued his consent to search was involuntary, contending he gave permission to search his car only because the officers stated that if he did not consent, they would obtain a search warrant. Disagreeing, the court stated that "[w]here the record clearly reveals no coercion and a police officer does not falsely claim possession of a search warrant, but rather candidly informs a person why a search is needed, either with his consent or with a search warrant, and the person clearly understood that he had a constitutional right to withhold consent, a finding of voluntariness is appropriate." Id. Because the appellant had signed a consent form and knew of his right to refuse, the court held the consent to search was voluntarily given. Id. at 481-482; Vanleer, supra.
{¶ 27} By contrast, in State v. Clark (Nov. 3, 2000), Montgomery App. No. 18314, the court noted that consent is involuntary where officers advise they will obtain a search warrant in the absence of consent, but the officers lack probable cause to obtain the warrant. As the court explained, "[i]f the officer's statement simply advises the suspect of his precise legal situation, such a `threat' is not coercion. State v. Berg (Oct. 4, 1996), Montgomery App. No. 15313, unreported at p. 3. However, this requires the officer to be confident in his assessment that probable cause exists to issue a search warrant. Even if the officer has a good faith expectation that a warrant will issue, if he is wrong, he has thereby misinformed the suspect of a key fact that he relied on in giving his consent. For this reason, if an officer advises a suspect he will obtain a search warrant if consent is not given, probable cause must exist to obtain that warrant." Clark, supra.
{¶ 28} In Jackson, a case factually similar to this appeal, the court held the appellant's consent to search was involuntary. Based on a reported disturbance in a park where the appellant was stopped, the officer in Jackson detained the appellant's vehicle to identify the occupants and asked the appellant what he was doing in the park. Given the appellant's answers, the officer asked to search the appellant's vehicle. The appellant made comments about taking American Government in school and was aware of his right to refuse consent without a warrant. The officer replied "[b]ut there is also the possibility of obtaining a search warrant." Id. at 139.
{¶ 29} The court found that the officer's stated purpose in conducting the investigatory stop ended when he identified the occupants of the car, as the officer discovered no further evidence of criminal activity. As the court explained, "[b]y the time Officer David asked appellant for permission to search the car, he had identified the occupants of the vehicle and found no other indicia of criminal conduct. While the officer's first request for such a search might be considered as ordinary police work, once such a request is clearly and definitively denied, the encounter begins to take on a coercive tone. In this case, the officer and appellant engaged in a prolonged colloquy on the issue of police power to search a vehicle. During this time, appellant repeatedly refused the officer permission to search. Yet the officer continued in his pursuit to obtain appellant's consent. It was not until the specter of a search warrant was raised that appellant acquiesced to the search." (Emphasis added.) Id. at 143. Considering the totality of the circumstances, the court held appellant's consent was the result of coercive police procedure and granted only in submission to a claim of lawful authority. Id.
{¶ 30} Similarly, in DeCaminada the court held appellant's eventual relinquishment of a pill bottle to be involuntary. The appellant was a woman alone in the vehicle at a late hour in a dimly lit parking lot. After the officer, during a lawful detention, noticed a bottle in the appellant's vehicle, the officer two times or, according to appellant, three times requested the bottle. The appellant consistently refused to give the bottle to the officer. According to the appellant's testimony, the officer implied a more difficult and prolonged detention if she failed to cooperate. In examining the facts, the court stated the evidence gave rise to a reasonable inference that the appellant refused to hand over the bottle because it contained incriminating evidence. "That fact supports a finding that her subsequent acquiescence to the officer's renewed demand was involuntary." Id. at 220. As the court explained, although a suspect's refusal to hand over incriminating evidence is not necessarily determinative of coercion, it is an "important" factor to determine whether coercion was used in further demands. Id.
{¶ 31} Whether appellant's consent was voluntary is a close question. Appellant relies on three factors to support his contention that he was coerced into turning over the baggie: he knew incriminating evidence would be found in his pocket, the officers repeatedly asked him to allow them to search his pockets, and the officers raised the issue of their obtaining a search warrant. The officers' continued requests to appellant is troubling. Although the officers' purpose in detaining appellant was not fulfilled, nothing in the record suggests the officers were continuing to investigate the circumstances. Rather, the officers were simply continuing to request that they be permitted to search appellant. The officers may not continue to question appellant until they receive the responses they want. Jackson, supra. Moreover, although appellant was surrounded by other individuals, including his father, and was in his own neighborhood, those factors primarily serve to mitigate appellant's youthful age.
{¶ 32} While the officers' allowing appellant to speak with his father makes this a closer case than either Jackson orDeCaminada, the totality of the circumstances is similar toJackson. Here, as in Jackson, the officers' detention of appellant had reached an impasse: they discovered no illegal activity as a result of their detaining appellant. As a result, they, as the officers in Jackson, began to repeat their request to search appellant. Appellant refused their request, and in response the officers, as in Jackson, mentioned they could get a warrant, even though the facts here would not support one. Their statement produced the same result: appellant handed over the incriminating evidence. When we combine those factors with the fact that appellant surely knew, as did the appellant inDeCaminada, that the material he turned over to the officers was incriminating, we are compelled to conclude appellant did not voluntarily consent to hand over the baggie to the officers.
{¶ 33} Accordingly, we sustain appellant's single assignment of error, reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment reversed and case remanded.
Lazarus, P.J., and Bowman, J., concur.
