603 N.E.2d 329 | Ohio Ct. App. | 1991
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *723
Appellant, William Fincher, was convicted of a violation of R.C.
Patrolman Gerald Crayton testified at the hearing on appellant's motion to suppress that at 4:08 p.m. he and his partner were in a police cruiser in an area of high drug activity when they saw appellant walking toward a car that had traffic stopped on the street. According to Crayton, "[the appellant] observed us and he quickly turned around and started heading back toward the side of the street that he had walked off of." Crayton and his partner exited the cruiser and Crayton pursued appellant but when he got within ten feet, appellant dropped a pill bottle which Crayton recovered. The pill bottle contained three rocks of suspected "crack" cocaine. After appellant was patted down and told his constitutional rights he told Crayton he was "just getting a little for a friend." A search at the station revealed a glass pipe containing suspected crack cocaine residue.
Appellant denied that he dropped the bottle or that he was "Mirandized," but admitted having the pipe which he said he was holding for a friend and did not know that it contained cocaine. He testified that he and some friends went to get in the car but when they saw the police they walked away so that his friends wouldn't get in trouble when the police stopped him, since he was a parolee living in a drug traffic area. The officer found the bottle on the ground and although appellant and his friend denied ownership the officer said that it was one of them and told his partner that he assumed he saw appellant throw the bottle. Appellant admitted that his companion, Michael, was going to buy cocaine when they saw the police but he insisted he was not involved.
The trial judge assesses the credibility of the witnesses and determines questions of fact. However, even assuming that appellant threw the bottle away, the pursuit that precipitated that abandonment must have been proper or the evidence must be suppressed.
"A defendant has no standing under the
The bottle was thrown away because the police officer was pursuing appellant. The mere fact that one is associating with or conversing with known drug users is not enough to warrant an inference of possession or sale of drugs. Sibron v. New York
(1968),
"The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances." State v. Bobo (1988),
"`* * * [I]n determining whether the seizure and search were "unreasonable" our inquiry is a dual one — whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the inference in the first place.'
"* * *
"`* * * And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. * * *'" Bobo,
Bobo cited five factors which, when viewed collectively, justified an investigative stop: an area of high drug activity, the late hour, the experience and training of the officer, the officer's familiarity with the area and how drug transactions occur, and the officer's observation of defendant popping up and then ducking down or leaning forward which may indicate an attempt to conceal a gun or drugs. Bobo,
Here, the parties agree the area was one of high drug activity and the experience, training and familiarity of the officer are not disputed. However, not only was it only 4:08 p.m., but appellant had done nothing more than walk toward a stopped car, and, upon seeing the officers, walk away. We have previously held that a stop is not justified when based on nothing more than the fact that the defendant ran upon being approached by a police officer in an area of drug activity.State v. Hewston (Aug. 2, 1990), Cuyahoga App. No. 59095, unreported, at 3, 1990 WL 109183. The mere fact that drug selling may occur when pedestrians approach a stopped car does not justify an investigative stop. "This activity in and of itself does not amount to the articulable suspicion sufficient to justify a stop and search of the defendant." State v. Crosby
(1991),
"In State v. Arrington (1990),
Here, appellant's behavior may have been suspicious, butTerry and Bobo hold that the officer must have more than a vague suspicion. He must have a reasonable suspicion that criminal activity is imminent and must be able to state specific facts to justify the conclusion that the defendant is engaged in criminal activity. Terry and Bobo, supra.
Approaching an occupied car is not illegal and even when it occurs in an area of drug activity it does not justify a seizure even for investigative purposes. Crosby; Hewston; Arrington,supra. Given the officer's assumption that anyone who stands by an occupied car is involved in drug sales or possession it was not unreasonable to walk away from the scene. We hold that approaching an occupied car on foot and then, upon seeing the police, retreating from the scene is not sufficient activity to justify an investigative stop, even in an area of drug activity. The motion to suppress was improperly denied. Assignment of Error No. I is sustained.
We address the remaining assignments of error solely because of our obligation under App.R. 12(A).
Appellant notes that immediately after the trial judge stated that appellant had lied to the court and the jury and that she didn't like liars she sentenced him to the maximum term. Appellant contends that R.C.
"A silent record raises the presumption that a trial court considered the factors contained in R.C.
R.C.
"(A) In determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed, the court shall consider the risk that the offender will commit another crime * * *; the nature and circumstances of the offense; the victim impact statement * * *; and the history, character, and condition of the offender and his need for correctional or rehabilitative treatment.
"* * *
"(D) The criteria listed in divisions (B) and (C) of this section do not limit the matters that may be considered in determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed."
The court was required to consider "the history, character, and condition of the offender and his need for correctional or rehabilitative treatment." In addition, the court is not limited to the stated criteria. Accordingly, when determining an indefinite sentence for a felony a trial court may consider the fact that a defendant lied. State v. Barhams (June 21, 1990), Cuyahoga App. No. 51748, unreported, at 15-16, 1990 WL 84253, citing State v. O'Dell (1989),
Had the evidence not been suppressed and the conviction vacated this court would have upheld the denial of appellant's motion for acquittal and held that the verdict was not against the manifest weight of the evidence.
Officer Crayton testified that he saw appellant drop the pill bottle. The parties stipulated that the bottle and the pipe contained cocaine. Viewing the evidence in the light most favorable to the prosecution the motion for acquittal was properly denied.
"In considering the claim that the conviction was against the manifest weight of the evidence * * * [t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." State v.Martin (1983),
This court has relied on guidelines to assist in the resolution of this question:
"In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court:
"1. The reviewing court is not required to accept as true the incredible;
"2. whether the evidence is uncontradicted;
"3. whether a witness was impeached;
"4. what was not proved; *729
"5. the certainty of the evidence;
"6. the reliability of the evidence;
"7. whether a witness' testimony is self-serving;
"8. whether the evidence is vague, * * * conflicting or fragmentary." (Emphasis deleted.) State v. Mattison (1985),
Appellant disputed Crayton's account by denying that he dropped the bottle or that he was Mirandized.
The trier of fact believed Crayton rather than appellant. Crayton's testimony was not incredible, contradictory, unreliable, uncertain or self-serving. The verdict was not against the manifest weight of the evidence.
Had the evidence not been suppressed Assignment of Error No. III would have been overruled.
In light of the fact that the motion to suppress should have been granted, the conviction is vacated and appellant is discharged.
Judgment reversed.
ANN McMANAMON and JAMES D. SWEENEY, JJ., concur.