Lead Opinion
{¶ 2} On the afternoon of December 20, 2002, Judith Steiger ("Steiger") was holiday shopping with her eight-year-old son at Great Lakes Mall in Mentor, Ohio. Steiger and her son exited the mall from the Dillard's department store at the north end of the mall, where she had parked her truck. Steiger loaded her son and her packages into the truck. After seating herself in the driver's seat, Steiger looked up to see a man walking quickly from the front to the rear оf a vehicle, a dark blue Chevrolet Beretta, parked in front of her. This vehicle was parked in the same direction as Steiger's truck so that its trunk was closest to the front of Steiger's truck. Steiger described the man as a thin, African-American male, with his hair worn close to his head. The man was carrying a stack of clothes, about a foot high, in his arms which he put in the trunk of the car. Steiger's suspicions were aroused that the clothing might be stolen because it was not in a bag and the tags, specifically Dillard's pink sales tags, were still attached to the clothing. The man entered the car and drove away.
{¶ 3} Steiger called 911 from her cellular phone to report the incident, providing a description of the man, the vehicle, and the number of the temporary tag.1
{¶ 4} Officer Todd Knupsky ("Knupsky") of the Mentor Police Department received the dispatch call at about 1:05 p.m., while he was patrolling on West Plaza Boulevard, on the west side of Great Lakes Mall. Officer Knuрsky proceeded onto Mentor Avenue towards the mall entrance to Dillard's. As Officer Knupsky turned into the mall, he noticed a Beretta matching Steiger's description waiting to exit onto Mentor Avenue. The vehicle was driven by an African-American male with braids. There were two passengers in the vehicle, a woman in the front passenger's seat and a male in the rear passenger's seat. Officer Knupsky turned his car around and pulled up behind the Beretta, which bore a tempоrary tag in the back window with the same number as reported by Steiger.
{¶ 5} The Beretta crossed Mentor Avenue and entered the parking lot of Value City Furniture located directly across from the mall. Officer Knupsky activated his overhead lights and stopped the vehicle. Hines was driving the Beretta. While waiting for backup, Officer Knupsky asked Hines for his driver's license, which Hines produced. Officer Knupsky then asked the passengers for identification, which they did not produce. The male passenger attempted to flee on foot but was apprehended. When Officer Knupsky was eventually able to run Hines' license through the LEADS computer system, he learned that the license had been suspended. Officer Knupsky placed Hines under arrest for driving with a suspended license and took him into custody.
{¶ 6} Hines' vehicle was impounded. Officer John Koval ("Koval") conducted the search of the vehicle and found $1,173 worth of clothing with Dillard's price tags attached to them in the trunk. Two pieces of clothing were found inside a Dillard's bag. No receipts were found for the clothing and none of the clothing was marked with proof of purchase labels. All the merchandise recovered consisted of women's clothing.2
{¶ 7} After being mirandized, Hines made a statement to the police. Officer Knupsky testified that Hines told him that he lived in Cleveland and that he had driven out to the mall to do some shopping. According to Knupsky, Hines said that the woman in the front seat was an acquaintance known only as "Nette" and that the other passenger was a friend of hers unfamiliar to Hines. After arriving at the mall, Hines and his passengers split up. When Hines returned to his vehicle, he found the clothing in the front seat of his car. According to Officer Knupsky, Hines stated that he knew Nette and her friend did not have any money and he believed that the merchandise was stolen. Hines admitted moving the clothing to the trunk because he did not want stolen merchandise in the vehicle's interior. Hines also admitted to picking up Nette and her friend as he was leaving the mall, although he was mad at them for putting stolen merchandise in his car.
{¶ 8} At trial, Hines testified that he knew the female passenger as "Auntie" and that, prior to taking her and her friend to the mall, Auntie was wearing a nurse's uniform and told him she had just been paid.3 Hines testified that he did not go into the mall that day, but went shopping at Toys R Us located across the street from the mall. Hines testified that when he returned to his vehicle, he found clothes in a Dillard's bag on the flоor of the front passenger's seat and that he put this bag in the trunk so that the clothes would not be stolen. Hines also testified that he did not look inside the Dillard's bag and, therefore, was unable to say whether the clothing still carried price tags.
{¶ 9} Hines was indicted on one count of Theft and one count of Receiving Stolen Property. Hines' trial was held from June 12, 2003 to June 13, 2003. Following a jury trial, Hines was acquitted of the Theft charge and found guilty of Receiving Stolen Property. On March 12, 2004, Hines was sentenced to serve a ten-month prison term. Hines timely appeals and raises the following assignments of error:
{¶ 10} "[1.] The trial court erred to the prejudice of the defendant-appellant by failing to grant his motion to suppress in violation of his rights to due process of law and to be free from unreasonable search and seizure pursuant to the
{¶ 11} "[2.] The trial court erred to the prejudice of the defendant-appellant in denying his motion for acquittal made pursuant to Crim.R. 29(A).
{¶ 12} "[3.] The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence."
{¶ 13} In his first assignment of error, Hines argues that Officer Knupsky lacked grounds for the initial stop of Hines' vehicle. According to Hines, Steiger must be considered an "anonymous informant" because Knupsky was not made aware of her identity until after the stop. Hines further argues that the only details of the dispatch Knupsky was able to corroborate were the description of the vehicle and the temporary tag number and Knupsky did not personally observe Hines doing anything criminal.
{¶ 14} At a suppression hearing, the trial court acts as the trier of fact. City of Ravenna v. Nethken, 2001-P-0040,
{¶ 15} The
{¶ 16} "Where an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity." Maumeev. Weisner,
{¶ 17} We hold that Steiger was a citizen-informant whose information Knupsky could presume reliable and that her tip bore sufficient indicia of reliability. Steiger left her name and telephone number with the police dispatcher so that Knupsky was able to contact her after Hines' arrest. Although the dispatcher did not relate Steiger's name and number to Knupsky in the initial dispatch, this information would have been meaningless as far as Knupsky's ability to evaluate the reliability of the information provided was concerned. What was important for evaluating the reliability of the informant, and what the dispatcher did relate to Knupsky, was that the informant was an eyewitness of the infоrmation received.
{¶ 18} The dispatcher informed Knupsky that a woman shopping at the mall had observed a black male with braids place an armful of clothing, still carrying the sale tags and hangers, in the trunk of a blue Chevy Beretta with the temporary tag number C013171 and drive away. This information provided Knupsky with a reasonable suspicion that the occupants of Hines' vehicle were engaged in criminal activity sufficient to justify the investigatory stop. Weisner,
{¶ 19} The dissent argues that it was necessаry for Steiger to testify at the suppression hearing to establish the constitutionality of Knupsky's investigatory stop of Hines.4
{¶ 20} This court has previously refused to adopt this position. In State v. Liberatore, 11th Dist. No. 2001-L-171,
{¶ 21} This court also pointed out in Liberatore that inWeisner, the leading Ohio Supreme Court case on this issue, the citizen-informant did not testify at the suppression hearing. Id. at ¶ 7, citing Weisner,
{¶ 22} The first assignment of error is without merit.
{¶ 23} In his second assignment of error, Hines argues that there was insufficient evidence to convict him of Recеiving Stolen Property. In order to convict Hines, the state bore the burden of proving, beyond a reasonable doubt, that Hines "receive[d], retain[ed], or dispose[d] of property of another, knowing or having reasonable cause to believe that the property had been obtained through commission of a theft offense." R.C.
{¶ 24} Under the Ohio Rules of Criminal Prоcedure, a defendant may move the trial court for a judgment of acquittal "if the evidence is insufficient to sustain a conviction." Crim.R. 29(A). "`Sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury," i.e. "whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v.Thompkins,
{¶ 25} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v.Jenks (1991),
{¶ 26} The evidence introduced at Hines' trial was legally sufficient to convict him of Receiving Stolen Property. The State introduced evidence which, if believed, showed that Hines was in possession of $1,173 worth of clothing that was not in a bag and still carriеd sales tags, but did not carry proof of purchase labels. The evidence, if believed, further showed that Hines was aware that his passengers were not able to pay for so much clothing, that Hines believed the clothing had, in fact, been stolen, and that Hines placed the clothing in his trunk to avoid having stolen merchandise visible in his vehicle. This evidence is clearly sufficient to convince the average mind that Hines knew or had reason to know the clothing was stolen.
{¶ 27} Hines' second assignment of error is without merit.
{¶ 28} In the third and final assignment of error, Hines contends that his conviction is against the manifest weight of the evidence. Weight of the evidence, in contrast to its sufficiency, involves "the inclination of the greater amount ofcredible evidence." Thompkins,
{¶ 29} Hines argues that the greаter weight of credible evidence showed that the only reasonable inference he could draw from the facts known to him was that the Dillard's merchandise had been legally purchased. Hines relies on his trial testimony that he was not aware of his passengers' true identity or character, that Nette/Auntie wore a nurse's uniform and told him that she had just been paid, and that the clothing was in a Dillard's bag.
{¶ 30} While this evidence tends to support the conclusion that Hines could reasonably believe the merchandise was legally purchased, it is neither conclusive nor overwhelming. Almost every piece of evidence Hines relies upon is contradicted by other evidence in the record. Officer Knupsky testified that Hines made a statement following his arrest to the effect that Hines believed the clothing had been stolen because he knew his passengers did not have any money and that he did not want to be found with stolen merchandise in his vehicle. Contrary to Hines' testimony, Offiсer Koval testified that only two pieces of the clothing recovered from the trunk of Hines' car were in a Dillard's bag, and Steiger testified that none of the clothing she observed Hines carrying was in a bag. Moreover, there was no evidence in the record to contradict Koval's and Steiger's testimony that the clothing still carried the price tags. Since there was equally credible evidence that the Dillard's merchandise recovered from Hines' vehicle had not been legally purchased, we decline to reverse Hines' conviction as being against the manifest weight of the evidence.
{¶ 31} Hines' third assignment of error is without merit.
{¶ 32} For the foregoing reasons, the denial of Hines' motion to suppress and his conviction in the Lake County Court of Common Pleas are affirmed.
O'Toole, J., concurs,
O'Neill, J., dissents with a Dissenting Opinion.
Notes
Dissenting Opinion
{¶ 33} I must respectfully dissent from the majority, for I believe the approach being taken in this matter departs from fundamental constitutional guarantees prohibiting unreasonable searches and seizures. It is undisputed that police officers routinely act upon tips received from a police dispatcher. It would be unreasonable for this court to require a police officer to verify the veracity, reliability, and basis of knowledge of a tip before reacting. However, it would be equally unreasonable for this court to permit the "tipster" to remain free from inquiry as to veracity, reliability, and basis of knowledge of a tip. Yet that is precisely what has happened here. The police officer was the only person to testify at the suppression hearing, and, thus, the basis for the reasonable suspicion that supports the stop has never been examined by anyone, including the police officer, up to that time.
{¶ 34} The Supreme Court of Ohio has adopted a "totality of the circumstances" test to evaluate the reasonableness of a traffic stop predicated upon a dispatch.5 While I do not disagree with that standard, I am clearly troubled by its application in this matter. As stated by the Tenth District Court of Appeals:
{¶ 35} "Reasonable suspicion is dependent upon both the content of the information provided and its degree of reliability.6 Both the quantity of information available and its quality are examined under a totality of the circumstances approach.7 The tip in this case plainly lacks sufficient content or quantity of information to provide any indicia of reliability. Nor was the meager information provided corroborated in any meaningful way. Merely confirming that the identified suspect actually exists is plainly insufficient, for any tip which fails to adequately describe a suspect cannot be acted upon at all. Were it otherwise, a prankster by simply picking up a phone could easily subject another to the intrusion of an investigatory stop. The
{¶ 36} Further, I believe my view is supported by the dissenting opinion in the Maumee v. Weisner case, wherein the police officer's arrest of a person suspected of drunk driving based upon a report from a police dispatcher, who in turn had received a telephone tip from a motorist, who reported that the suspect was "weaving all over the road," was upheld when challenged at a suppression hearing. The dissent in that case was of the opinion that "a telephone caller's unverified report of erratic driving does not, standing alone, provide reasonable suspicion to warrant an investigative traffic stop."9 The dissenting opinion goes on to state that "[i]t is therefore illogical to presume that an unverified citizen's repоrt of erratic driving is inherently reliable."10
{¶ 37} In my opinion, it is not possible to establish reasonable suspicion at a suppression hearing based upon the "totality of the circumstances" where the police officer who is testifying does not personally possess the requisite facts to support a reasonable suspicion for the stop. Ideally, at a suppression hearing, the informant, albeit anonymous, identified, or confidential, must be exposed to the light of day to be quеstioned. It is to be remembered that so-called "anonymous" callers are "comparatively unreliable and * * *, therefore, will generally require independent police corroboration."11
Why, therefore, is it proper to permit an "identified" caller to trigger a series of constitutionally suspect intrusions without ever once being questioned by anyone, including the police officer making the investigatory stop, at or prior to the suppression hearing? Even though an "idеntified" caller may have greater "indicia of reliability"12 than an anonymous caller, to allow his tip to proceed unchallenged during the judicial process leading up to the suppression hearing demeans the protections of the
{¶ 38} In the alternative, I believe that the "totality of the circumstances" to support reasonable suspicion can be established by the arresting officer if he, as suggested by the dissent in the Weisner case, personally verifies the authenticity аnd accuracy of the telephone tipster and then testifies at the suppression hearing; or, if the police dispatcher testifies at the suppression hearing. These last two alternatives present substantive testimony to support reasonable suspicion for an investigatory stop, which is absent when the only testimony elicited is that of an arresting officer relying on third-hand hearsay information.
{¶ 39} Nowhere in this record is the reliability of the tipster, who refused to testify at the suppression hearing, established. Absent testimony from the tipster, or from the police officer who has verified the authenticity and accuracy of the tip, or the police dispatcher who received the call leading up to the investigatory stop, there is no basis to conclude that there was reasonable suspicion for the stop under the "totality of the circumstances" test. To permit a citizen's