State v. PettyState v. Petty
Michael P. Maloney
24441 Detroit Road, Suite 300
Westlake, OH 44145
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Matthew Waters
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
CHRISTINE T. McMONAGLE, P.J.:
I.
{¶ 2} Petty was indicted in April 2008, on one count each of drug possession, drug trafficking, and possession of criminal tools. All the counts contained a forfeiture specification. He filed a motion to suppress, a heаring was held on the motion, and the trial court denied the motion. Petty pleaded no contest to the charges in the indictment and the trial court found him guilty of the charges. He was sentenced to a five-year-prison term on each count, to be served concurrently, and orderеd to forfeit $525 and a 2008 Chevrolet.
II.
{¶ 3} At the suppression hearing, the police testified that they learned from a source that a drug transaction was scheduled to occur at a Chester Avenue gas station. The source revealed that a black Chevrolet HHR would arrive at the lоcation and its occupants would be involved in the transaction. Based on this information, the police set up surveillance of the area.
{¶ 4} A black Chevrolet HHR arrived at the gas station and pulled up to one of the pumps. Detectives Clinton Ovalle and Thomas Azzano, whо were attired in plain clothes and in an unmarked car, pulled their car up behind the
{¶ 5} After seeing the drugs, the detectives ordered Petty and Moore out of the vehicle. The defendants did not comply, however, and instead, Petty drove the car in reverse. The detectives then drew their guns and the other law enforcement officials who were involved in the surveillance assisted in apprehending Petty and Moore.
{¶ 6} Petty and Moore were arrested and the drugs were recovered from the floor. According to Detective Azzano, when Petty drove the car in reverse, the drugs apparently fell from the center console to thе floor. Azzano testified that if the drugs had been on the floor when he and Ovalle first approached the vehicle, they would not have been able to see them.
{¶ 7} Co-defendant Moore testified that he and Petty were at the gas station to get gas before driving to the westside of Clеveland. According to Moore, upon arriving at the station and pulling up to a pump, two or three people came “running” toward the car. Because he and Petty did not know
III.
{¶ 8} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8. In deciding a motion to suppress, the trial court assumes the role of trier of fact. Id. A reviewing court is bound to accept those findings of fact if they are supported by competent, credible evidence. Id. But with respect to the trial court‘s conclusion of law, we apply a de novo standard of review and decide whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara (1977), 124 Ohio App.3d 706, 707 N.E.2d 539.
IV.
{¶ 9} In his first and second assignments of error, Petty challenges the trial court‘s denial of his suppression motion on the basis of the source of the information supplied to the police. Petty contends that the testimony was
{¶ 10} A review of the transcript reveals that the source relied on by the police was not anonymous. The confusion abоut whether the tip was anonymous began with the assistant prosecuting attorney in opening statement stating that “[a]lthough that [the tip coming from an anonymous source] maybe [sic] true, the initial approach of the vehicle * * * didn‘t violate any constitutional rights[.] ” (Tr. 6.)
{¶ 11} On direct examination, Detective Ovalle referred to the source simply as a “tip.” On cross-examination, he was questioned on that point as follows:
{¶ 12} “Q. Now, I understand that you had received an anonymous tip; is that it?
{¶ 13} “A. Correct.
{¶ 14} “Q. That means that somebody called you up and talked to you personally and told you abоut some events that were going to take place?
{¶ 15} “A. That‘s correct.” (Tr. 23-24.)
{¶ 16} The detective further testified on cross-examination as follows:
{¶ 17} “Q. But your purpose in walking to the car was to further investigate: is that right?
{¶ 18} “A. To examine, yes. To determine if my source of information was correct.
{¶ 19} “Q. And the source, yоu didn‘t know who it was; is that right?
{¶ 20} “* * *.
{¶ 21} “A. Yes, I do.
{¶ 22} “Q. [By the court] You are aware of who the source of the information was, but reluctant to reveal the identity of the person”
{¶ 23} “A. Correct.” (Tr. 41-42.)
{¶ 24} Another law enforcement official who was involved in the incident, Sergeant Paul Styles, testified that “anonymous” and “informant” are sometimes used synonymously:
{¶ 25} “Q. In other words when the prosecutor said it was anonymous and when Mr. Ovalle said it was anonymous and you hadn‘t heard anything contrary to that before you came to court, you believed the informant was anonymous, didn‘t you?
{¶ 26} “A. Not in our dealings, no. * * * An anonymous person could also bе an informant.
{¶ 27} “Q. Often times they are.
{¶ 28} “A. Yes, they are.
{¶ 29} “* * *
{¶ 30} “Q. Why do you or why does your police department use the word[ ] [anonymous] when they‘re describing an informant, or why would they?
{¶ 31} “A. The same reason as the term informant is used, because we don‘t want to disclose that information. The identity of that person could be later oh, you know - - could be retaliation later on.” (Tr. 56.)
{¶ 32} Further, Detective Azzano testified that the source of the information was a “confidential informant” and that he knew the informant. (See Tr. 75, 86.)
{¶ 33} Thus, although the word “anonymous” was used to describe the source of the information, both Detectives Ovalle аnd Azzano testified that they knew the informant. Detective Ovalle testified that he was reluctant to reveal the identity of the informant because of fear of retaliation on the informant and Sergeant Styles testified that “anonymous” and “informant” are sometimes used synonymously. On this record, thеrefore, we find that this was not a true “anonymous” tip case and overrule the first assignment of error.
{¶ 34} In his second assignment of error, Petty contends that the information supplied by the informant did not give rise to adequate reasonable suspicion and, therefore, there was no legаl basis for the police to stop him. Petty argues that the police approached his vehicle to conduct an investigatory
{¶ 35} The state, on the other hand, contends that the police attempted to have a consensual encounter with the occupants of the car, but upon approaching the vehicle, saw the drugs in plain view, which gave them probable cause for an arrest.
{¶ 36} There are generally three classifications of interactions between police and private citizens: consensual encounters, investigatory stops, and arrests. See State v. Gove, Cuyahoga App. No. 91972, 2009-Ohio-3463, ¶18. Consensual encounters include many long-standing, routine police practices, including approaching a person in a public place, engaging the person in conversation, requesting information from the person, examining the person‘s identification, and asking the person to search his or her belongings. Florida v. Rodriguez (1984), 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165. Consensual encounters are those that involve no coercion or restraint on liberty. State v. Morris (1988), 48 Ohio App.3d 137, 138, 548 N.E.2d 969.
{¶ 37} In determining whether an encounter was consensual, courts consider whether the police have restrained the person‘s liberty, by physical force or display of authority, in such a way that a reasonable person would not feel free to walk away. United States v. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497. It is well settled that the Fourth Amendment is not implicated in the case of a consensual encounter. United States v. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.
{¶ 38} Generally, the police are free to observe whatever may be seen from a place where they are entitled to be. Florida v. Riley (1989), 488 U.S. 445, 449, 109 S.Ct. 693, 102 L.Ed.2d 835. “This understanding of the Fourth Amendment is expressed in the plain-view, or open-view, doctrine. The doctrine embodies the understanding that privacy must be protected by the individual, and if a police officer is lawfully on a person‘s property and observes objects in plain or open view, no warrant is required to look at them.” Horton v. California (1990), 496 U.S. 128, 134-137, 140-142, 110 S.Ct. 2301, 110 L.Ed.2d 112.
{¶ 39} Some competent, credible evidence supports the position thаt this was an attempt at a consensual encounter, during which drugs were seen in plain view. Although the detectives used the words “investigation” and “investigate,” Detective Ovalle testified that his intent on approaching the car was to see if its occupants would have a “conversаtion” with him, but before he
{¶ 40} We are not persuaded by Petty‘s contention that the detective‘s conflicting testimonies as to who was the first to approach Petty‘s car and where the drugs were observed “is fatal to the state‘s position” of plain view. Thе fact remains that both detectives testified that they saw the drugs in plain view. And the trial court considered the conflicts in the testimonies: “Whether Detective Ovalle was the first to the vehicle or whether Detective Azzano was the first to the vehicle, each testified that they looked inside the vehicle and saw in plain view a large amount of crack cocaine * * *.” (Tr. 127.) “When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the crеdibility of a witness.” State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.
{¶ 41} In light of the above, the second and third assignments of error are overruled.
{¶ 42} In his final assignment of error, Petty contends that his motion to suppress should have been granted because the law enforcement officials did
{¶ 43} Accordingly, the fourth assignment of error is overruled.
{¶ 44} Although not raised by Petty, we address his sentence.
{¶ 45} As this court stated in Moore, “[e]ven though the trial court sentenced appellant to concurrent terms for each conviction, ‘a defendant is prеjudiced by having more convictions than are authorized by law.’ State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31. Further, a no contest plea does not relieve this court of its obligation to ensure that appellant‘s sentence is authorized by law. Id. at ¶26. Therefore, this case must be remanded to the trial court for resentencing whеre the state shall decide on which charge appellant should be convicted and sentenced. State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, paragraph three of the syllabus.” Moore at ¶49. Accordingly, this case is remanded for resentencing in light of the above.
{¶ 46} Finally, we note that the trial court improperly ordered forfeiture1 of $525 against Petty. Petty and his co-dеfendant Moore were charged in a joint indictment. The forfeiture specifications relative to the money listed only Moore as being the owner or possessor of the money. Thus, the orders against Petty for forfeiture of the money shall be vacated upon remand.
Conviction affirmed; case reversed and remanded in part for further proceedings consistent with this opinion.
It is ordered that appellee and appellant share the costs herein taxed.
It is ordered thаt a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
CHRISTINE T. McMONAGLE, PRESIDING JUDGE
LARRY A. JONES, J., CONCURS
ANN DYKE, J., CONCURS IN JUDGMENT ONLY