517 N.E.2d 262 | Ohio Ct. App. | 1986
Defendant Larry Johnson appeals his conviction of one count of drug abuse in violation of R.C.
On the evening of May 2, 1985, Cleveland Police Officers Raymond McGann and Rick Warner were assigned to patrol in the area of East 55 Street and Outhwaite Avenue.1 Special attention was being given to that area because of its high degree of illegal drug activity.
At approximately 9:15 p.m., the officers noticed a male acting suspiciously. The individual was at the corner of East 55 and Outhwaite allegedly hiding behind a tree trying to avoid the police. Officers McGann and Warner got out of the patrol car, approached the individual, and asked him his name. The individual identified himself as Larry Johnson. A routine warrant check revealed an active warrant on Larry Johnson.
Johnson was placed under arrest. He was advised of his Miranda rights and the police conducted a pat-down. The pat-down uncovered illegal drugs. The illegal drugs found in Johnson's possession resulted in a June 18, 1985 indictment on two counts of drug law violations.
On July 17, 1985, Johnson filed a motion to suppress the evidence seized. Johnson argued that the police had neither a warrant nor probable cause to justify the stop and arrest. At the August 5, 1985 hearing on the motion, Officer McGann testified to the facts set forth above. The defendant testified that he was not hiding behind the tree. Further, the defendant testified that he was approached by an undercover officer who ordered him over to the patrol car for a warrant check. The trial court overruled the defendant's motion to suppress, holding the stop was valid.
Subsequent to the trial court's denial of the motion, the defendant entered a plea of no contest to the indictment. The trial court found the defendant guilty and on September 16, 1985, sentenced the defendant to a definite term of six months. The sentence was suspended and the defendant was placed on one year's probation.
The defendant filed a timely appeal from the trial court's judgment raising a single assignment of error.
"The trial court erred by overruling appellant's motion to suppress evidence and thereby violated appellant's right to be free from unreasonable searches and seizures as guaranteed by the
The appellant maintains that the police officers' initial contact with him *96
violated the
The
The United States Supreme Court has acknowledged that not all personal intercourse between the police and citizens involves the "seizures" of persons. Reid v. Georgia (1980),
In the case at bar, the defendant was approached by the police and asked his name. Although the police were in uniform, their guns were not drawn and the defendant was not ordered to do anything. The defendant voluntarily gave his name to the police and a routine warrant check was conducted. The check revealed that the defendant had an outstanding warrant. At that point, the police seized the defendant placing him under arrest.
We do not believe that the mere presence of uniformed officers constitutes a seizure under the
"* * * [L]aw enforcement officers do not violate the
Accordingly, we conclude that the defendant was not seized until after the police were aware of an outstanding warrant on the defendant.3 If there is no seizure within the meaning of the
It must also be noted that even assuming the initial contact constituted a seizure, the police were justified in making the stop.
It is well-established that stops which are less intrusive than a traditional arrest may be justified with something less than probable cause. United States v. Brignoni-Ponce (1975),
"Where the intrusion into a person's freedom is slight, it may be justified under the
The court stated further:
"Therefore, we must examine the specific circumstances of the detention here to determine whether the extent of the police intrusion on defendant's liberty was justified by a sufficiently strong suspicion based on specific and articulable facts. If so, the temporary detention was lawful, and the subsequent arrest based on reasonable cause ascertained during the detention was valid. * * *" Id. at 160, 4 OBR at 254,
Applying the considerations set forth in McFarland, we must conclude that the stop was justified. First, it is clear that at best the intrusion into the defendant's freedom was slight. The officers simply asked him his name. Second, the police were able to articulate a reasonable suspicion which would justify such an intrusion. The officers were located in a high crime area, and observed the defendant hiding behind a tree trying to avoid them. While these facts certainly do not rise to the level of probable cause, they do constitute sufficient facts to permit an officer to simply ask the defendant his name.
Finally, the cases relied upon by the appellant, i.e., State v.Mallory (July 28, 1983), Cuyahoga App. No. 45736, unreported;State v. Andino (Feb. 16, 1984), Cuyahoga App. Nos. 46943, 46944 and 46945, unreported; and Brown v. Texas (1979),
Judgment affirmed.
NAHRA, P.J., and CORRIGAN, J., concur.
