State v. Berry
| Decision Date | 29 November 2018 |
| Docket Number | Case No. 2018AP060027 |
| Citation | 2018 Ohio 4791 |
| Parties | STATE OF OHIO Plaintiff-Appellant v. HANK W. BERRY, JR. Defendant-Appellee |
| Court | Ohio Court of Appeals |
OPINION
For Plaintiff-Appellant:
MICHAEL J. ERNEST
TUSC. CO. ASST. PROSECUTOR
125 East High Ave.
New Philadelphia, OH 44663
For Defendant-Appellee:
MARK PERLAKY
TUSC. CO. PUBLIC DEFENDER
153 N. Broadway St.
New Philadelphia, OH 44663
{¶1} Appellant state of Ohio appeals from the June 12, 2018 judgment entry of the Tuscarawas County Court of Common Pleas granting the motion to suppress of appellee Hank W. Berry, Jr.
{¶2} This case arose on August 7, 2017, when Dennison Police dispatch advised two witnesses saw a black Dodge Stratus in Thornwood Park, near the basketball courts. The caller stated she believed individuals in the car were "shooting up."
{¶3} Ptl. Boitnott arrived at the park but didn't see the car. He did see the witnesses who called in the complaint: two women he was familiar with as caretakers of the park. He asked the women what direction the car went in, and when they pointed it out, Boitnott was surprised because he had traveled from that direction and didn't pass a black Dodge Stratus.
{¶4} Boitnott turned around and went up the street, where he found a black Dodge Stratus parked one block away, with two occupants. The car was already parked, although Boitnott did not recall whether it was running, so he did not perform a traffic stop. Instead, he walked up to the driver's-side door and encountered appellee sitting in the driver's seat. Boitnott informed him of the report about drug use, and appellee denied he and the passenger had been in the park.
{¶5} The female passenger, though, said they were just in the park "making out."
{¶6} As Boitnott spoke to appellee, he was aware dispatch said the individuals appeared to be "shooting up," and Boitnott observed track marks on appellee's arms. Boitnott explained "shooting up" refers to intravenous drug use, which may be evidenced by track marks on a user's arms.
{¶7} Boitnott also observed appellee trying to conceal something as they spoke. Appellee was attempting to push something under the driver's seat with his foot.
{¶8} The female passenger told Boitnott they were in the area to speak to an individual familiar to Boitnott, whose house was to the right of where the Stratus was parked. Boitnott testified the house is the location of suspected drug trafficking activity.
{¶9} The female passenger was the registered owner of the vehicle and Boitnott asked for her permission to search. She agreed. Appellee and the female got out of the car. Boitnott asked appellee about the track marks on his arms and appellee said they were from a battery exploding.
{¶10} When appellee stepped out of the car, Boitnott noticed a Crown Royal bag inside the car which contained a clear plastic baggie. Boitnott also looked under the driver's seat, in the area where he believed appellee was trying to hide something, and found a keychain with a small canister attached to it. The canister contained methamphetamine.
{¶11} Upon cross-examination, Boitnott testified that once he approached the vehicle, he did not consider appellee or the passenger free to leave, although he didn't communicate this to them. He intended to investigate the complaint of individuals possibly "shooting up" in a black Dodge Stratus. Appellee introduced the bodycam video into evidence.
{¶12} Appellee was charged by indictment with one count of aggravated possession of drugs pursuant to R.C. 2925.11(A) and R.C. 2925.11(C)(1)(a), a felony of the fifth degree, and one count of drug paraphernalia pursuant to R.C. 2925.14(C)(1) and R.C. 2925.14(F)(1), a misdemeanor of the fourth degree.
{¶13} Appellee entered pleas of not guilty and filed a motion to suppress, arguing the arresting officer had no reasonable and articulable suspicion of criminal activity to justify stopping appellant. Appellant filed a memorandum in opposition. An evidentiary hearing proceeded on April 25, 2018, and on June 12, 2018, the trial court sustained the motion to suppress.
{¶14} Appellant timely filed a notice of appeal and a Crim.R.12(K) certification.
{¶15} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶16} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE APPELLEE'S MOTION TO SUPPRESS AS REASONABLE ARTICULABLE SUSPICION EXISTED TO DETAIN THE APPELLEE WITHOUT A WARRANT."
{¶17} In its sole assignment of error, appellant argues the trial court erred in granting appellee's motion to suppress. We agree.
{¶18} Appellate review of a trial court's decision to deny a motion to suppress involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998). 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, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996). A reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). 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, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other grounds.
{¶19} There are three methods of challenging a trial court's ruling on a motion to suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In reviewing a challenge of this nature, an appellate court must determine whether the trial court's findings of fact are against the manifest weight of the evidence. See, State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. See, Williams, supra. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issues raised in a motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶20} In the instant case, appellant argues the trial court incorrectly decided the ultimate issue raised in the motion to suppress, to wit, whether Boitnott had reasonable and articulable suspicion to elevate the encounter with appellee to an investigative stop.
{¶21} The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution prohibit the government from conducting unreasonable searches and seizures of persons or their property. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991). "However, not every contact between a police officer and citizen implicates the Fourth Amendment. "Only when the officer, by means of physical force or show of authority, has in some way restricted the liberty of a citizen may we conclude that a 'seizure' has occurred." State v. Lopez, 2nd Dist. Greene No. 94 CA 21, 1994 WL 527670 (Sept. 28, 1994), quoting Terry, supra, at 19, fn. 16, 88 S.Ct. 1868.
{¶22} Upon our review of the record, we find Boitnott's interaction with appellee began as a consensual encounter and progressed to an investigative or Terry stop. Ohio law recognizes three types of police-citizen encounters: consensual encounters, Terry stops, and arrests. State v. Taylor, 106 Ohio App.3d 741, 747-49, 667 N.E.2d 60 (2nd Dist.1995).
{¶23} A consensual encounter occurs when a police officer approaches a person in a public place, engages the person in conversation, requests information, and the person is free to refuse to answer and walk away. Id. at 747. The United State Supreme Court "[has] held repeatedly that mere police questioning does not constitute a seizure." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also INS v. Delgado, 466 U.S. 210, 212, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). "[M]erely approaching an individual on the street or in another public place[,]" seeking to ask questions for voluntary, uncoerced responses, does not violate the Fourth Amendment. United States v. Flowers, 909 F.2d 145, 147 (6th Cir.1990). "[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage." Bostick, 501 U.S. at 434-435 (citations omitted). The person approached, however, need not answer any question put to him, and may continue on his way. Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Moreover, he may not be detained even momentarily for his refusal to listen or answer. Id. So long as a reasonable person would feel free "to disregard the police and go about his business," California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991), the encounter is consensual and no reasonable suspicion is required. Bostick, 501 U.S. at 434.
{¶24} A consensual encounter does not implicate the Fourth Amendment's protection against...
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