State Of Ohio v. Frias-carvajal
| Decision Date | 08 March 2011 |
| Docket Number | Case No. 10-CA-33 |
| Citation | 2011 Ohio 1197 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. OMAR RAPH FRIAS-CARVAJAL Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, J.
For Plaintiff-Appellee:
Delaware County Prosecutor
(Counsel of Record)
Assistant Prosecuting Attorney
For Defendant-Appellant:
{¶1} Defendant-Appellant, Omar Raph Frias-Carvajal, appeals from a judgment entered by the Delaware County Court of Common Pleas, convicting him of one count of trafficking in heroin in violation of R.C. 2925.03(A)(2).
{¶2} On November 17, 2009, Detective James Owens of the Columbus Police Department Strategic Response Bureau ("SRB"), received information from his sergeant that the Hardin County, Ohio Sheriff's Department had information regarding a possible drug transaction that would be taking place at the Lake Club Apartments on Powell Road in Delaware County, Ohio. Detective Owens stated that SRB has received reliable information from the Hardin County Sherriff's office at least three to five times prior to this incident. The officers did not know from whom the Hardin County authorities received the information.
{¶3} Based upon the information regarding the possible drug transaction, Detective Owens, along with other members of SRB, set up surveillance of the Lake Club Apartments. According to the Hardin County Sheriff's office, the car that was coming down from Hardin County was a green Grand Prix, with a license plate of CUH-3508.
{¶4} The officers waited approximately a half hour to forty-five minutes before they saw a green Grand Prix with the license plate number CUH-3508 pull into the parking lot and drive to the back of the lot before backing into a parking spot. The occupants of the vehicle stayed in the vehicle as though they were waiting for someone.
{¶5} Several minutes later, a van pulled into the parking lot and drove around as if the occupants of the van were looking for someone. The driver of the Grand Prixflashed his headlights and the van immediately drove up to the Grand Prix and the driver of the van parked nose to nose with the Grand Prix. A male got out of the Grand Prix and got into the van.
{¶6} At that time, officers were given the green light to approach the vehicles and to investigate the matter. Detective Russ Sorrell, who was driving an unmarked car, pulled behind the van, blocking it in. Detective Sorrell and Detective Ernest Rice quickly approached the vehicles with guns drawn and identified themselves as police. As Detective Sorrell approached the driver's side of the van, he came upon Appellant, who was sitting in the driver's seat with 350 balloons of what appeared to be heroin in his lap, along with $1,835.00. The man who exited the Grand Prix was sitting in the back of the van. Both men were arrested.
{¶7} On November 17, 2009, Appellant was charged in Delaware County Municipal Court with one count of possession of heroin, in violation of R.C. 2925.11(A), a felony of the second degree. On November 18, 2009, Appellant appeared for arraignment. Appellant was not represented by counsel. The trial court was informed by the deputy that a translator was needed as Appellant did not speak English. The trial court confirmed Appellant did not speak English and attempted to communicate with Appellant in Spanish with only limited success. The trial court then proceeded to conduct the arraignment in English. Appellant was advised of the charges against him and the court set bail at $50,000.00. The trial court stated it was appointing counsel and would note a translator was needed at the time of the preliminary hearing.
{¶8} On November 24, 2009, the Delaware Municipal Court held a preliminary hearing where Appellant was not represented by counsel. An interpreter was presentfor the hearing and translated what was being said by the court to Appellant as well as what was being said by Appellant to the court. After the hearing, the trial court found probable cause that Appellant committed a crime under R.C. 2925.11 and bound the case over to the Delaware County Common Pleas Court.
{¶9} On December 4, 2009, the Delaware County Grand Jury indicted Appellant on one count of Trafficking in Heroin, in violation of R.C. 2925.03(A)(2), a felony of the second degree, and one count of Possession of Heroin, in violation of R.C. 2925.11(A), also a felony of the second degree. Both counts contained forfeiture specifications relating to the cash discovered during the arrest.
{¶10} On December 14, 2009, Appellant was arraigned and he entered not guilty pleas to both counts of the indictment. The trial court increased Appellant's bail to $150,000.00.
{¶11} On December 22, 2009, Appellant's attorney filed a Motion to Suppress evidence obtained as a result of the arrest. Appellant argued, inter alia, that the police officers lacked reasonable suspicion to stop the van and subsequently seize Appellant. The State of Ohio filed its response on January 5, 2010. The trial court held a hearing on January 22, 2010, and denied Appellant's motion on February 1, 2010. Subsequently, Appellant filed a Motion to Dismiss for violating his right to counsel under the Sixth and Fourteenth Amendments of the United States Constitution by conducting a preliminary hearing without appointing counsel to Appellant. The State of Ohio responded and the trial court denied Appellant's motion on April 9, 2010.1
{¶12} Subsequently, Appellant entered a no contest plea to Trafficking in Heroin, a violation of R.C. 2925.03(A)(2), a felony of the second degree and the attached forfeiture specification. The Possession of Heroin charge was dismissed. Appellant was then sentenced to three years in prison.
{¶13} It is from this entry that Appellant appeals, raising two Assignments of Error:
{¶14} "I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS AS THE OFFICERS LACKED PROBABLE CAUSE TO ARREST HIM AND SEARCH HIS VEHICLE INCIDENT TO ARREST.
{¶15}
{¶16} In his first assignment of error, Appellant argues that the trial court erred in denying Appellant's Motion to Suppress because the officers lacked probable cause to arrest him and search his vehicle incident to arrest. We disagree.
{¶17} Appellate review of a trial court's decision to grant or deny a motion to suppress involves a mixed question of law and fact. State v. Long (1998), 127 Ohio App.3d 328, 713 N.E.2d 1. During a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and to evaluate witness credibility. State v. Brooks, (1996), 75 Ohio St.3d 148, 661 N.E.2d 1030. A reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Metcalf (1996), 111 Ohio App.3d142, 675 N.E.2d 1268. Accepting these facts as true, the appellate court must independently determine as a matter of law, without deference to the trial court's conclusion, whether the trial court's decision meets the applicable legal standard. State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141.
{¶18} The Fourth Amendment of the Constitution of the United States guarantees each citizen a right to be free from unreasonable governmental searches and seizures. Specifically, it states:
{¶19} "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
{¶20} Even so, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred within the meaning of the Fourth Amendment. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, at fn. 16.
{¶21} Under Terry, however, a police officer may constitutionally stop or detain an individual without probable cause when the officer has reasonable suspicion, based on specific, articulable facts, that criminal activity is afoot. Reasonable suspicion entails some minimal level of objective justification, that is, something more than an inchoate and unparticularized suspicion or 'hunch', but less than the level of suspicion required for probable cause. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 35. {¶22} Blocking a person's path or otherwise restraining movement is one indication that an investigatory stop has occurred. State v. Lewis, 179 Ohio App.3d 159, 2008-Ohio-5805 (citations omitted).
{¶23} An anonymous informant's tip can give rise to a reasonable suspicion of criminal activity. Alabama v. White (1990), 469 U.S. 325, 110 L.Ed.2d 301. Courts have generally identified three classes of informants: the anonymous informant, the known informant from the criminal world who has provided previous reliable tips, and the identified citizen informant. City of Maumee v. Weisner, 87 Ohio St.3d 295, 299-300, 1990-Ohio-68, 720 N.E.2d 507. Anonymous tips normally require suitable corroboration demonstrating "sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Florida v. J.L. (2000), 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254.
{¶24} It is also well settled that "the propriety of an investigative stop by a police officer must be viewed in light of the...
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