State v. PoppState v. Popp
Brandabur, Bowling & Crehan Co., L.P.A., Kyle Rapier, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant-appellant
HENDRICKSON, J.
{¶1} Defendant-appellant, Francis Popp, appeals his conviction in the Butler County Court of Common Pleas for one count of possession of сocaine. We affirm the conviction.
{¶2} During the early morning hours of October 30, 2009, Detective Robert Horton of the Hamilton Police Department, Vice Section, was positioned in a building across from the J&J Bar on Third Street in Hamilton, and used binoculars to surveil the
{¶3} During the three prior drug surveillances, officers observed patterns of behavior indicative of drug activity. According to Horton‘s testimony, some of the drug deals occurred in the north parking lot of the bar, where people would walk, drive, or ride bikes into the lot and then be approached by a party who would sell them drugs. Horton also testified that other deals involved a vehicle pulling over to the curb near the bar, a person entering the vehicle, and then exiting a short time later once the transaction was complete. At least 10 drug arrests resulted from the October surveillances.
{¶4} On the 30th, the fourth surveillance of the month, Horton observed an unidentified party come outside to the front of the bar, stand on the corner, and look up and down the street. Shortly thereafter, Horton observed a Ford Ranger pick-up truck pull into the lot, at which time, the unidentified party went over and got into the passenger side of the truck. After the truck pulled approximately ten feet further into the lot, it stopped and the unidentified party exited the truck within 20 seconds of entering it, and went back into the bar. Horton radioed information regarding the pickup truck to other officers assisting in the surveillance, and Detective Daniel Stevenson began to follow the truck away from the bar in an unmarked police cruiser. Stevenson continued to relay information to other units regarding the truck‘s whereabouts until Officer Gary Crоuch, who was in a marked police cruiser, initiated the stop.
{¶5} According to Crouch‘s testimony at the motion to suppress hearing, he was
{¶6} After Crouch received word that the pickup truck was involved in suspected drug activity, Crouch initiated a stop and approached the driver‘s side of the truck. The driver, later identified as Popp, was alone in the truck and exited the vehicle upon Crouch‘s request. Crouch placed Popp in handcuffs and patted down his pockets. According to Crouch‘s testimony, “I wаs alone on the stop by myself, based on the guns and drugs we had been dealing with at the location, it was for officer safety purposes. I wanted to secure his hands before I made my pat down or search of the vehicle.” After the pat down, Crouch handcuffed Popp and directed him to sit in the back of his police cruiser. Crouch returned to the vehicle to check for weapons and contraband, and upon moving a coat on the front seat, observed an off-white rock on the console that he recognized as crack cocaine.
{¶7} Popp was indicted on one count of possession of cocaine, and later filed a motion to suppress the evidence Crouch collected as a result of the stop. The trial court denied Popp‘s motion and the case proceeded to trial. A jury found Popp guilty after a one-day trial, and the trial court sentenced him to community control for three years and fines. Popp now appeals his conviction, raising the following assignments of error.
{¶8} Assignment of Error No. 1:
{¶9} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY OVERRULING HIS MOTION TO SUPPRESS EVIDENCE.”
{¶10} Popp argues in his first assignment of error that the trial court erred in
{¶11} Appellate review of a ruling on a motion to suppress presents a mixed question оf law and fact. State v. Cochran, Preble App. No. CA2006-10-023, 2007-Ohio-3353. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Oatis, Butler App. No. CA2005-03-074, 2005-Ohio-6038. “An appellate court, however, independently reviews the trial court‘s legal conclusions based on those facts and determines, without deference to the trial court‘s decision, whether as a matter of law, the facts satisfy the appropriate legal standard.” Cochran at ¶12.
{¶12} The
{¶13} Upon review, this court determines the existence of reasonable and articulable suspicion by evaluating the totality of the circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Chadwell, Montgomery App. No. 22698, 2009-Ohio-1630, ¶22.
{¶14} Based on the totality of the circumstances in the present case, detectives had a reasonable and articulable suspicion to effectuate a Terry stop on Popp in order to investigate the possibility of criminal activity. Detective Horton testified that he and other officers had performed surveillance of the bar during October and that several drug related arrests resulted from the surveillance. He also testified that their surveillance was the result of several сomplaints regarding drug activity in the area, and one such complaint from the owner of the bar regarding drug activity and gun use in his bar. Horton identified the primary ways in which the drug transactions would occur, including a party approaching a vehicle, staying for a short time in the vehicle, and then exiting to return to the bar.
{¶15} On the night of Popp‘s arrest, Detective Horton observed Popp‘s pickup truck approach the bar, an unidentified party enter the truck, and then exit within 20 seconds of getting in. This pattern of behavior, according to Horton, was indicative of a drug transaction. Based on testimony from law-enforcement, the trial court heard evidence that the J&J Bar was located in a well-known high crime area, and Officer Crouch testified that the bar had a reputation as an open-air drug market. See Chadwell, 2009-Ohio-1630 (finding reasonable articulable suspicion to support Terry stop where appеllant was observed acting suspiciously in a high crime area in which drug activity was known to occur); and State v. Manning, Lucas App. No. L-08-1278, 2009-Ohio-2605 (finding articulable suspicion where there was a history of drug
{¶16} In a case very similar to the one at bar, the Second District Court of Appeals found that lаw enforcement had a reasonable articulable suspicion to effectuate a Terry stop to investigate alleged drug activity. State v. Pierce (Mar. 7, 1997), Montgomery App. No. 15911, 1997 WL 102009. In Pierce, police had received multiple complaints regarding drug activity at a property believed to be operating as a drug house, and consequently began to surveil the location. Police effectuated several arrests at the location specific to drug transactions, and had observed parties going into the house and staying only a few moments before exiting. Officers ultimately observed Pierce visit the house and engage in the pattern previously observed by officers indicating a drug transaction, including staying momentarily and then driving away. Detectives then relayed the information to police in cruisers, and officers stopped Pierce‘s car to investigate further. The court concluded that the totality of the circumstances indicated that the officers had a reasonable articulable suspicion.
{¶17} Popp argues that his case is not a typical Terry stop situation because Crouch did not directly observe the alleged drug transaction, and had no particular facts to rely upon to initiate a lawful stop. However, the record is clear that Detective Horton relayed information regarding his direct observations to the other officers, including Crouch. Crouch also testified that the reason he initiated the stop was that Horton “relayed to me that the driver had just bought drugs at the J&J Bar.”
{¶18} Contrary to Popp‘s argument, Crouch was aware that Popp was suspected of drug activity, and knew what vehicle Popp was driving. Testimony established that Detective Stevenson followed Popp‘s truck until Crouch could catch up, and that Stevenson did not break his pursuit until Crouch sighted Popp and began following him.
{¶19} Popp next argues that Crouch violated his
{¶20} This court has consistently held that an officer does not effectuate an arrest by merely placing a person in the back of a police cruiser. “Having an individual sit in a police cruiser for a short time to answer a few questions does not necessarily elevate the situation to something greater than an ordinary traffic stop. This is true whether the individual is being requested to stay while an accident report is completed or relevant facts are ascertained. An individual may also be temporarily restrained either for his own safety or that of the officer.” State v. Johnson (May 1, 2000), Clermont App. No. CA99-06-061, 8-9. “Confining an individual to the police cruiser is not a custodial placement if it is part of the investigation, even if the suspect in the рolice cruiser is not free to leave.” In re M.D., Madison App. No. CA2003-12-038, 2004-Ohio-5904, ¶18.
{¶21} According to Crouch‘s testimony, he asked Popp to exit the truck and secured him in the back of his police cruiser. On cross-examination, Crouch stated that
{¶22} Officer Crouch expressly stated that he searched the truck, not incident to arrest, but in order to check for weapons. When determining whether a protective search is justified, we must employ an objective standard to decide if the “facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.‘” State v. Bobo (1988), 37 Ohio St.3d 177, 178-179, quoting Terry, 392 U.S. 21-22. The totality of the circumstances approach allows a court to consider factors such as the time of day the stop occurred, the officer‘s experience, the officer‘s position or proximity to his cruiser, and the high-crime nature of the area. Id. A court may also consider the defendant‘s suspicious activities before and during the stop, such as furtive gestures. Id.
{¶23} Here, the totality of the circumstances demonstrates that Crouch was justified in using a protective sweep to ensure that no weapons were in Popp‘s truck. The stop occurred at night, and Crouch was alone during his investigation. As discussed above, Crouch was an experienced officer who had effectuated several hundred arrests, many of which involved weapons. The high-crime nature of the area was undisputed, and drugs and guns had been the focus of several complaints and constituted the very reason for the surveillаnce conducted that night.
{¶24} We note that the trial court expressed hesitation regarding the likelihood of Popp returning to his truck to get a weapon to use on Crouch. However, the Supreme
{¶25} Like Long, and as discussed above, Popp was not under arrest at the time of the protective search. Because he was not under arrest before Crouch conducted the search, and assuming Crouch had not found drugs in the truck, Popp would have been permitted to re-enter his truck and would have had access to any weapons inside. Therefоre, Crouch‘s search for any potential weapons was valid, and was not an unlawful search incident to arrest.
{¶26} In lieu of a protective sweep, the trial court stated that the evidence supported a finding of probable cause to search the car. Although the trial court did not perform a complete analysis regarding the vehicle search exception, it noted that Crouch had probable cause to search Popp‘s truck because it was “very likely” to contain drugs. Although the search was justified under a protective sweep analysis, we agree with the trial court that the vehicle exception would apply as well.
{¶27} “If a car is readily mobile and probable cause exists to believe it contains contraband, the
{¶28} The record is clear that Popp‘s truck was readily mobile in that he was traveling in it before Crouch pulled him over. As previously discussed, Crouch had a reasonable belief that Popp‘s truck contained drugs, a substance subject to seizure and destruction, because Detective Horton specifically recounted his observations regarding the exchange indicative of a drug transaction. Whether based on a protective sweep or the vehicle search exception, the search was lawful, and Popp‘s first assignment of error is overruled.
{¶29} Assignment of Error No. 2
{¶30} “DEFENDANT‘S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.”
{¶31} In his second assignment of error, Popp argues that his conviction was against thе manifest weight of the evidence because he did not have possession of the cocaine. There is no merit to this argument.
{¶32} “In determining whether a conviction is against the manifest weight of the evidence, the 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 tier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Cummings, Butler App. No. 2006-09-224, 2007-Ohio-4970, ¶12.
{¶33} While appellate review includes the responsibility to consider the credibility
{¶34} Popp was convicted of possession of cocaine in violation of
{¶35} The accused may be in actual or constructive possession or control оf the drug. State v. Contreras, Butler App. No. CA2004-07-181, 2006-Ohio-1894, ¶21. Constructive possession exists when one is conscious of the presence of the object and able to exercise dominion and control over it, even if it is not within one‘s immediate physical possession. State v. Gaefe, Clinton App. No. CA2001-11-043, 2002-Ohio-4995, ¶9. The discovery of readily accessible drugs in close proximity to a person constitutes circumstantial evidence that the person was in constructive possession of the drugs. Contreras at ¶24.
{¶36} During Popp‘s trial, Crouch testified that during his search of Popp‘s truck, he moved a jacket off of the truck‘s front-seat console and observed a single off-white rock under the jacket. Crouch further testified that the rock, later confirmed to be
{¶37} After a review of the record, we are unable to say that the tier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Neither can we say that the evidence presented at trial weighed heavily in favor of acquittal. Accordingly, Popp‘s second assignment of error is overruled.
{¶38} Judgment affirmed.
POWELL, P.J., and YOUNG, J., concur.
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