2006 Ohio 4914 | Ohio Ct. App. | 2006
{¶ 2} Appellee was indicted with the following counts: possession of cocaine, a violation of R.C.
{¶ 3} At the hearing on appellee's motion to suppress, four officers who participated in appellee's arrest and the searches of his vehicle and residence testified for the state, and appellee's girlfriend and his girlfriend's daughter, both of whom were present during the arrest and searches, testified on appellee's behalf. Laurie Renz, a detective with the Toledo Police Department's metro drug task force, testified that two confidential informants notified police that appellee was "delivering" cocaine in the area of Lewis Avenue, Alexis, and Laskey Road in Toledo. One confidential informant ("CI") participated in a "controlled buy" of cocaine from appellee on March 2, 2005. Police obtained appellee's identification and residential address from a database search of the license plate of the vehicle used during the buy. Renz did not specify how much cocaine was involved.
{¶ 4} The next day, March 3, 2005, officers were informed by the second CI that appellee would be delivering cocaine in the area in his "tan van" that day. One officer spotted the van driving on Alexis Road, another officer followed appellee to a Bob Evans parking lot. The van parked; a few moments later, another vehicle arrived in the parking lot. That driver exited his car, got into appellee's van for a few moments, then left the van, and drove his own vehicle out of the lot with appellee following in his van. Appellee never exited the van. The officers did not view any activity inside the van.
{¶ 5} Officers continued to observe appellee over the next week. On March 7, 2005, appellee was seen driving a blue Lumina in the area of Alexis and Lewis. On March 10, 2005, the first CI informed police that appellee would be making a delivery of cocaine "somewhere" on Lewis Avenue between 6 and 7 p.m. that evening. Renz testified that "our best bet" was to go to appellee's residence and set up surveillance. Appellee resided inside a mobile home park; the park had one driveway exiting the park onto Lewis Avenue. Officers sat in two unmarked cars near the exit of the mobile home park with a view of appellee's residence, and other officers sat in one other unmarked car on Lewis Avenue.
{¶ 6} At approximately 6:30 p.m., Renz, sitting seven to eight homes away from appellee's home, saw "an individual" leave the home, enter the tan van, and exit the park. As it drove by the detectives, they saw it was "a female" and let the van proceed. The van went to a gas station across Lewis Avenue, returned ten minutes later, and parked in front of the home with its lights on. Another car pulled in next to the van, and Renz saw a person who "appeared to be a male" leave the mobile home and lean into the car's passenger side window of the car. After only a minute or two, the man returned inside the mobile home. Three to five minutes later, Renz saw appellee leave the mobile home and enter the tan van, which began to leave via the driveway.
{¶ 7} When asked what information from the CI had been corroborated up to that point, Renz only stated that appellee was leaving during the time specified, 6 to 7 p.m. It was at that point that Renz "decided to conduct a traffic stop." She radioed to the other officers that appellee was leaving the mobile home park. Renz stopped her car in front of and next to appellee's van; another detective pulled up behind the van, and a third detective, with another riding along, drove nose towards the van and stopped in front of it.
{¶ 8} All three police vehicles were unmarked; none of the officers wore uniforms, though some wore their badges around their necks. When the van stopped, hedged in by the unmarked cars, all the officers, including Renz, exited their vehicles with their guns drawn, and approached appellee's van. The van went into reverse briefly, then lurched forward slightly; appellee then exited his van and ran toward the mobile home park's fence. Renz, together with Detective Awls, chased, tackled, then handcuffed appellee. A search of appellee's pockets yielded four individually wrapped bags of cocaine, a bag of marijuana, two cell phones, and some cash. After being Mirandized, appellee was transported to Saint Vincent's hospital for a head wound he received during the arrest.
{¶ 9} Appellee's girlfriend, Patricia Blackford, was in the passenger seat of the van. She was handcuffed, searched, and Mirandized. Her two children, ages 13 and four, were in the back of the van. It was later revealed that the group was leaving for a restaurant to celebrate the 13 year old's birthday. Renz and the other officers testified that they had not seen anyone except appellee enter the van after Blackford returned from the gas station.
{¶ 10} Officers gave Blackford a "consent form" to search the mobile home where she and appellee lived. She signed, although at the hearing, she repeatedly asserted that officers had threatened to charge her for drug trafficking and take her children away if she did not consent to the search. It is unclear whether she signed while in handcuffs or after they were removed. Also, she testified at the hearing that, since it was dark and snowy and the officers were in plain clothes and unmarked cars, she and appellee thought they were being robbed when the officers "pinched" their cars and approached with drawn guns. Blackford and her two children accompanied officers back to her mobile home, where a search uncovered more cocaine and marijuana. Appellee was not charged in connection with the controlled buy of March 2; the charges stemmed only from the evidence gathered from appellee's arrest and the searches of the van and his residence.
{¶ 11} In its decision granting appellee's motion, the trial court relied heavily on our decision in State v. Young, 6th Dist. No. E-04-13,
{¶ 12} The state of Ohio asserts two assignments of error:
{¶ 13} "I. The court erred in granting the motion to suppress because the officers had probable cause to arrest defendant on the evening of March 10, 2005.
{¶ 14} "II. The trial court erred in granting the motion to suppress because the officers had reasonable suspicion to stop defendant's vehicle."
{¶ 15} An appellate court reviews a trial court's decision on a motion to suppress de novo. State v. Bing (1999),
{¶ 17} The Fourth Amendment permits law enforcement officers to briefly detain a suspect without the detention rising to the level of a formal arrest. There are two types of "stops": the investigatory, or "Terry" stop, Terry v. Ohio (1968),
{¶ 18} As for the circumstances constituting a seizure, "[t]he word `seizure' readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful." California v. Hodari D.
(1991),
{¶ 19} When determining whether a "seizure" has been effectuated, the pertinent inquiry is not the subjective intentions of the police officer at the time. Rather, "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer v.McCarty (1984),
{¶ 20} Whether a seizure has escalated to an arrest depends upon the "existence of four requisite elements: (1) an intent to arrest, (2) under real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested." State v.Barker (1978),
{¶ 21} When officers surrounded appellee's van with three unmarked cars, they intended to "pinch" his car and prevent any movement. The testimony indicates that the officers exited their vehicles with guns drawn to approach the van before appellee exited the van. The United States Supreme Court in Mendenhall
specifically listed these circumstances as indicative of a "seizure." Mendenhall,
{¶ 22} Applying the test of whether an arrest was effectuated, a reasonable person driving slowly down their driveway, confronted with a car approaching head-on, a car blocking exit from the rear, and a car blocking from the side, with officers exiting those vehicles with drawn guns, would not feel free to leave. The trial court held that the officers' purpose in seizing appellee's vehicle was "not to conduct a brief investigatory stop but rather, for the sole and immediate purpose of arresting the defendant." Regardless of whether the surrounding facts and circumstances renders the act of hemming in and "pinching" appellee's van an "arrest" or a "seizure," the officers required probable cause. We find the state's argument — that the act of stopping appellee's van was an investigatory stop — without merit. The second assignment of error is therefore not well-taken.
{¶ 24} Discussing the standard of probable cause, the state relies upon Illinois v. Gates (1983),
{¶ 25} "An arrest without a warrant is constitutionally invalid unless the arresting officer had probable cause to make it at that time. To have probable cause, the arresting officer must have sufficient information derived from a reasonably trustworthy source to warrant a prudent man in believing that a felony has been committed and that it has been committed by the accused." State v. Timson (1974),
{¶ 26} First, we discard the state's argument that appellee's attempt to flee contributes to probable cause. Because appellee was arrested or seized when the officers "pinched" appellee's van, preventing his movement and approaching the van with their guns drawn, appellee's subsequent attempt to flee is irrelevant to a determination of whether probable cause existed at the moment of his seizure.
{¶ 27} The subjective intentions of the officers are irrelevant in a probable cause determination. Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. Devenpeck v. Alford (2004),
{¶ 28} The facts objectively known to the officers were as follows: (1) appellee had sold cocaine to a CI during a controlled buy eight days before his arrest; (2) officers observed appellee driving his van in the general area of Toledo in which the informants said appellee was delivering cocaine; (3) appellee had apparently, according to officers, participated in a sale of cocaine when he pulled into a Bob Evans parking lot and a man momentarily entered appellee's van; (4) appellee began to exit his mobile home park during the time period in which a CI had said a cocaine transaction was to take place.
{¶ 29} We may easily discard the "apparent" drug transaction observed in the Bob Evans parking lot and the sight of appellee driving his van in the general area, as both activities are entirely commensurate with innocent activity. State v. Nelson
(1991),
{¶ 30} The events of March 10 also cannot, taken alone, create probable cause. These facts are, as the trial court noted, striking similar to those known to officers in State v. Young,
6th Dist. No. E-04-013,
Id. at ¶ 4. The defendant's brother, who had previously done a "controlled buy" at the defendant's residence, also entered and left the residence. Id. When the defendant left his residence, he placed an unknown "something" in the trunk of a car, then drove east toward Cleveland. Id. at ¶ 5. At that point, officers stopped the car and arrested the defendant and his girlfriend. At the hearing, officers acknowledged that regardless of which car the defendant was driving, and regardless of other details of his behavior, they would have arrested the defendant when he left his home and traveled east toward Cleveland on the day of the "buy." Id. at ¶¶ 7-9.
{¶ 31} Renz testified that she knew appellee was validly licensed when she initiated what she characterized as a "traffic stop" when appellee drove towards the mobile home park exit. She also testified that the CI only informed officers that appellee would make a delivery of cocaine "somewhere" on Lewis Avenue "sometime" between 6 and 7 p.m. She was the "lead" on the investigation, and she acknowledged that she told the other officers that "we have to attempt to make a traffic stop if possible prior to him getting to the location." However, all four testifying officers affirmed that appellee's vehicle committed no traffic violations.
{¶ 32} Renz testified that their intention in stopping appellee's vehicle at that time was to catch appellee transporting drugs. Kyle Fulmer, a special agent at the FBI office in Toledo, acknowledged that their intention was not to allow the transaction to take place, and to stop appellee before the transaction. Kevin Wiezbenski, a vice narcotics detective with the Lucas County Sheriff's Department, testified that his role from the beginning of March 10 was "to go in front of Mr. Cabell as he was leaving the trailer park that he was residing in." He and a partner sat in an unmarked vehicle at the exit of the mobile home park, and were "simply out front waiting for those that did have an eye to let us know that a vehicle was leaving from there so that we could do our — what we were instructed to do." Later, he reiterated by saying, "Well, we had information that [appellee] would be going between 6 and 7 p.m., and at that time would be making a delivery of cocaine. At that point, we, [his partner] and I together, and we were instructed that when they would call out that he was leaving that we would cut him off." He agreed, on cross-examination, that "the purpose of cutting him off" was to "apprehend" appellant, even though he later characterized it as an "investigative stop."
{¶ 33} Alexander Schaller, with the Toledo Police Department's metro drug task force, testified that he was informed that appellee would be leaving his mobile home sometime between 6 and 7 p.m. to deliver cocaine, and that they were to stop the vehicle as it left the mobile home park. He described the manner in which they stopped appellee: "[W]e tried to pinch it or stop the van by blocking it with our vehicles." He answered affirmatively the question, "Is it fair to say that on March 10, 2005, the decision was made to stop and apprehend Mr. Cabell when he left his mobile home?" As in Young, "there was no actual evidence of any criminal activity at the time of [appellee's] arrest which reasonably indicated that [appellee] was about to commit any criminal acts."
{¶ 34} Discarding the foregoing, only appellee's participation in the controlled buy of eight days prior to his arrest remains. The state argues that the "antecedent successful controlled buy" renders Young inapposite; that is, in contrast to Young, appellee's participation in the controlled buy of March 2 provides probable cause, regardless of whether the officers arrested appellee intending to charge him for the controlled buy. In response, appellee argues that, regardless of the officers' belief that appellee sold cocaine on March 2, they would "need independent evidence of criminal activity on the evening of March 10 in order to justify a warrantless arrest at that time." We find the state's argument unpersuasive.
{¶ 35} The United States Supreme Court has rejected the "closely related offense" defense. Devenpeck,
{¶ 36} The trial court relied heavily upon our statement inYoung that probable cause "generally focuses on the actions of the accused just prior to arrest."
{¶ 37} Although a Terry stop may be made to investigate a reasonable suspicion that an individual may have been involved in a completed felony, U.S. v. Hensley (1985),
{¶ 38} Thus, appellee's actions of March 10 alone — merely attempting to exit his mobile home park during a one-hour time frame — do not satisfy the probable cause requirement. As inNelson and Newell, the officers acted prematurely, before observing further action by appellee indicative of criminal activity, such as appellee's traveling to a location of a drug transaction as specified by a CI. Moreover, although the state asserts its ongoing investigation revealed that the controlled buy of March 2 was indicative of a pattern of ongoing criminal activity, we have already stated that appellee's actions of randomly driving around, parking in restaurant parking lots, and talking briefly with others, does not indicate that appellee was acting suspiciously. Appellee's actions between March 2 and March 10 simply did not indicate "ongoing" criminal activity.
{¶ 39} Since the officers unlawfully arrested appellee, then the search of his person incident to that arrest also violates the Fourth Amendment. A search incident to a lawful arrest is one exception to the general prohibition of warrantless searches.U.S. v. Robinson (1973),
{¶ 40} The trial court did not confront whether appellee's girlfriend's consent for officers to search the mobile home was an "independent act of free will," valid regardless of the illegal seizure and arrest. An individual's voluntary consent, determined under the totality of the circumstances, may validate a search subsequent to an illegal detention if the consent is an "independent act of free will." Florida v. Royer (1983),
{¶ 41} The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Handwork, J. Singer, P.J. Skow, J. concur.