State v. Carter

• Decision Date: 20 April 1994
• Docket Number: No. 93-451,93-451
• Citation: 630 N.E.2d 355,69 Ohio St.3d 57
• Parties: The STATE of Ohio, Appellant, v. CARTER et al., Appellees.
• Court: Ohio Supreme Court

Page 57

69 Ohio St.3d 57

630 N.E.2d 355

The STATE of Ohio, Appellant, v. CARTER et al., Appellees.

No. 93-451.

Supreme Court of Ohio.

Submitted Feb. 22, 1994.

Decided April 20, 1994.

Mathias H. Heck, Jr., Montgomery Co. Pros. Atty., and Carley J. Ingram, Asst. Pros. Atty., for appellant.

John H. Rion & Associates and John H. Rion, Dayton, for appellee Larry T. Carter, Jr.

Gump & Associates and Dennis E. Gump, Dayton, for appellee Christopher R. Ross.

Michael Miller, Franklin Co. Pros. Atty., and Joyce S. Anderson, Asst. Pros. Atty., urging reversal for amicus curiae, Ohio Prosecuting Attorneys Ass'n.

Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., and John S. Pyle, Cleveland, urging affirmance for amicus curiae, Ohio Ass'n of Criminal Defense Lawyers.

PER CURIAM.

The cause is before this court pursuant to the allowance of a motion for leave to appeal.

We adopt the February 4, 1993 decision of the court of appeals, which decision is attached as an appendix to this entry, and affirm the decision of the court of appeals for the reasons stated therein.

Judgment affirmed.

MOYER, C.J., and A. WILLIAM SWEENEY, DOUGLAS, WRIGHT, RESNICK, FRANCIS E. SWEENEY, Sr. and PFEIFER, JJ., concur.

APPENDIX

BROGAN, Judge.

The state of Ohio appeals, pursuant to R.C. 2945.67(A) and Crim.R. 12(J), from a pretrial order of the Common Pleas Court of Montgomery County, Ohio, which suppressed evidence gained from the search of an automobile and a residence.

On March 3, 1992, appellees, Larry T. Carter and Chris R. Ross, were indicted by the Montgomery County Grand Jury upon two counts of aggravated trafficking in cocaine in violation of R.C. 2925.03(A)(9). Pursuant to Crim.R. 12(J), the state has certified that the suppression order has rendered the state's proof so weak that any reasonable possibility of effective prosecution has been destroyed.

At the inception of the pretrial hearing the state stipulated that the defendants had legal standing to object to the search of the residence located at 2010 West Grand Avenue in Dayton, Ohio.

Ray McDonald testified that he loaned his 1987 Ford Bronco to Larry Carter on February 17, 1992 so Carter could move, and he assumed Ross was helping Carter move, so he was permitted as a passenger in McDonald's vehicle. McDonald said he placed no restrictions on how Carter used his Bronco. He said he did not give Carter or Ross his Bronco "to haul cocaine in it."

Major Ronald Lowe testified he managed all uniform personnel for the Dayton Police Department and had eighteen years of experience as a police officer.

On February 19, 1992, at 10:15 a.m., Lowe testified he was in an unmarked cruiser travelling southbound on Philadelphia Drive approaching West Riverview when he noticed McDonald's white Bronco truck. Lowe said he vaguely remembered that he had heard a police broadcast about one or two weeks previously concerning a Bronco being involved in a drive-by shooting on the west side of Dayton. He said he remembered that the shooting allegedly took place twenty to twenty-five blocks from his present location. He said he called the police dispatcher to obtain more details while he followed the Bronco to obtain its license number. He said he also asked the dispatcher if there were other police crews in the area because he wanted to stop the Bronco, but the dispatcher did not reply. He said shortly thereafter he lost sight of the Bronco.

A short time later Lowe said he spotted the Bronco parked behind a garage in an alley behind Grand Avenue. Lowe said he did not initially see anyone in the Bronco and he took up a surveillance position and told the dispatcher of his approximate location.

Lowe said he then observed Larry Carter seated in the driver's seat and he noticed Chris Ross standing by the corner of a garage carrying some type of bundle in his arms. Lowe said Ross switched the bundle from his left arm to his right arm. Lowe said the bundle seemed heavy and was wrapped in something gray. Lowe said he watched Ross get in the passenger seat of the Bronco and Carter then drove the Bronco down the alley and onto Everett.

Lowe then advised the dispatcher that he had relocated the Bronco and needed backup assistance. He said he followed the Bronco and when he observed a uniformed cruiser he ordered that crew to make a "felony stop" on the car. Lowe said a felony stop occurs when a vehicle is stopped and the subjects are ordered out of the vehicle at gunpoint.

Lowe said he ordered the felony stop of the Bronco because he did not know what was in the bundle that the passenger carried into the Bronco and he could not tell if it was a weapon.

Lowe said that Officers Christine Bean and Raymond Martin ordered Carter and Ross out of the Bronco at gunpoint. Lowe said he approached the Bronco and looked in the open passenger door for possible weapons. He said he noticed a bundle lying on the front floorboard and it appeared to be the bundle he saw Ross carrying into the Bronco. Lowe said he unwrapped the gray bundle and found a small package wrapped in brown opaque paper. Lowe said he thought the package might contain narcotics and so he secured the van and called for the evidence and narcotics units. Carter and Ross were then placed in separate police cruisers.

Lowe said the package was field tested and determined to be two pounds of cocaine and he then ordered the police to secure the residence at 2010 West Grand Avenue until a search warrant could be obtained. The gray material Ross was carrying was determined to be gray pants or jeans.

Lowe admitted upon cross-examination that he did not observe Carter or Ross violate any law. Lowe made the following explanation:

"[THE WITNESS:] At that particular time, I didn't feel as a major and as a police officer that I needed to see him violate any statute in that he was in a high drug area.

"[MR. RION, attorney for defendants:] Objection, Your Honor. Move it be stricken.

"[MR. HECK, prosecuting attorney:] Let him finish, Judge. I wish you would instruct counsel to let him finish his answers.

"[MR. RION:] Your Honor, he is loading the record and--

"[MR. HECK:] He doesn't like what he was going to hear. Let's let justice come out.

"[THE COURT:] Continue your answer.

"[THE WITNESS:] The Bronco was in a high drug activity area. It was backed or pulled up against a garage in this high crime area. I felt, and I feel all our officers should feel, anything that suspicious, the vehicle will be stopped."

On cross-examination, Lowe admitted he had no information prior to February 19 concerning drug activity at 2010 West Grand Avenue. He admitted he had not seen Ross enter or leave any residence.

Lowe further explained his reason for ordering the felony stop of Carter and Ross:

"[THE WITNESS:] I see another subject walking between a fence and a garage out of a back yard with an arm of something in the middle of the daytime, which is very suspicious to me, and what I did, after he got in the car, I thought I had probable cause to stop it.

"[BY MR. RION:]

"Q. Didn't you just testify under oath, sir, that the broadcast gave no color about the type of Bronco that you had heard a week or two before?

"A. Sir, I just said I saw a Bronco sitting at the rear of 2010 West Grand Avenue that fit the description of the one I was just trying to check out. I wasn't going to stop the car for the gun thing or whatever. My intention was to get the license number on the Bronco, call in for backup in case some type of violation would have occurred so that this Bronco could have been stopped.

"Q. Well, you clearly went beyond that when they arrested them with guns drawn, didn't you?

"A. After I saw him come out of the back yard with something in his arms--

"Q. With a handful of jeans.

"A. It contained something else."

Lowe testified that he ordered the officers to conduct a felony stop on the car because he suspected that a breaking and entering had occurred, because he noticed a subject carrying a bundle from the rear of a residence with another subject in a van parked at the rear of the residence. When asked what evidence he had to support his conclusions that a breaking and entering had occurred, Lowe answered:

"[Lowe:] There was no evidence, counselor, of that happening. That just happened to be a procedural type of thing."

Later that day Officer Chris Weber appeared before Dayton Municipal Court Judge Daniel Gehres in order to obtain a search warrant for 2010 West Grand Avenue in Dayton. Weber's affidavit provided in pertinent part:

"On Wednesday, February 19, 1992, at approximately 10:30 a.m. Major Lowe observed a white Ford Bronco, License HB 2283 driving up Everette Dr. Major Lowe recalled a broadcast last week by the dispatcher. The dispatcher at the time advised a light colored Bronco was involved in shooting guns in the area of W. Third and James H. McGee. Major Lowe called for a crew to stop the Bronco for F.I.C.'s in reference to the broadcast by the dispatcher. Major Lowe lost the vehicle for a few seconds and then observed it stopped at the rear of 2010 W. Grand Ave. Major Lowe observed the driver, later identified as Larry T. Carter seated in the truck. Major Lowe observed the passenger, later identified as Chris R. Ross walking from the rear of 2010 W. Grand and go to the Bronco, indicating the driver was waiting for Ross to make a pick up or a delivery. Major Lowe observed Ross carrying a pair of brown jeans bundled up as if to hide something. Major Lowe noted that there was a six foot fence surrounding the back yard. Det. Miller later checked and found that there is no gate in the front, the fence abuts the front of the house on both sides. The fact that the yard was surrounded by a six foot fence made it unlikely that Ross could of [sic ] been in any other house. The Bronco pulled off and Major Lowe gave directions to the responding crews.

"The Bronco was stopped on Riverview at Philadelphia by uniform crews. Uniform officers and...