State v. Crossen
| Decision Date | 24 May 2011 |
| Docket Number | Case No. 2010-COA-027 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JAMES E. CROSSEN Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
OPINION
For Plaintiff-Appellee
DAVID M. HUNTER
Assistant Law Director
For Defendant-Appellant
THOMAS L. MASON
{¶1} Defendant-appellant James E. Crossen appeals his conviction and sentence in the Ashland County Municipal Court for one count of Possessing Drug Abuse Instruments, a misdemeanor of the second degree in violation of Ohio Revised Code 2925.12 (A). The plaintiff-appellee is the State of Ohio.
{¶2} On June 2, 2010, Officer Brian Evans of the City of Ashland Police Department responded to a call involving a woman who reportedly could not convince a man to exit her vehicle. Officer Evans arrived in an unmarked cruiser, saw what he believed to be the complainant's vehicle in a parking lot and saw a male walking away from the vehicle. Officer Evans recognized the male and followed him. When a marked cruiser passed, Officer Evans testified he saw the male place his hand inside a tractor wheel well and continued walking. The Officer parked, called the individual's name, and jogged after him. Appellant kept walking until about the third time Officer Evans called his name, when he stopped and turned. Officer Evans motioned for appellant to come to him, appellant complied with the Officer's request. Officer Evans told him to turn around and put his hands behind his back, which he did. Appellant asked what was going on, to which Officer Evans responded, "Well, I just saw you put something back there on that tractor." Appellant denied that he had.
{¶3} Two uniformed officers arrived on the scene and appellant was placed in handcuffs. Appellant was also read his Miranda rights by Officer Evans at this time. Officer Evans then went back to the tractor wheel well and found a syringe. Officer Evans returned to appellant. He asked appellant about the syringe. Appellant initiallydenied putting it on the tractor, but ultimately admitted that he had. He also stated that he was the person in the vehicle that would not get out. Appellant was driven to the police station where Officer Evans continued his questioning of him approximately 2030 minutes later. He did not re-Mirandize appellant. Appellant made other incriminating statements, including that the syringe was used to inject heroin.
{¶4} Appellant filed a motion to suppress evidence, which was heard on August 13, 2010. On August 25, 2010 the trial court issued a Judgment Entry overruling the motion.
{¶5} On September 13, 2010 appellant entered a plea of No Contest to the charge, was found Guilty, and was sentenced to serve sixty (60) days in the Ashland County Jail.
{¶6} Appellant has timely appealed raising as his sole assignment of error,
{¶7}
I.
{¶8} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 20030-Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and to evaluate witness credibility. See State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d 988; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a reviewing court must defer to the trial court's factual findings if competent, credible evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d 1; State v. Medcalf (1996), 111 Ohio App.3d 142, 675 N.E.2d 1268. However, once this Court has accepted those facts as true, it must independently determine as a matter of law whether the trial court met the applicable legal standard. See Burnside, supra, citing State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539; See, generally, United States v. Arvizu (2002), 534 U.S. 266, 122 S.Ct. 744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657. That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review. Ornelas, supra. Moreover, due weight should be given "to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, supra at 698, 116 S.Ct. at 1663.
{¶9} Appellant's sole assignment of error relates to the propriety of the trial court's overruling of his motion to suppress. Specifically, appellant contends that the state failed to produce sufficient evidence that Officer Evans had probable cause to arrest him on June 2, 2010.
{¶10} Contact between police officers and the public can be characterized in three different ways. State v. Richardson, 5th Dist. No.2004CA00205, 2005-Ohio-554 at ¶ 23-27. The first is contact initiated by a police officer for purposes of investigation. "[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 (6th Cir. 1990), 909 F.2d 145, 147. 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, 80L.Ed.2d 247 (1984). "[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, supra, at 434-435, 111 S.Ct. 2382 (citations omitted). The person approached, however, need not answer any question put to him, and may continue on his way. Florida v. Royer (1983), 460 U .S. 491, 497-98. Moreover, he may not be detained even momentarily for his refusal to listen or answer. Id.
{¶11} The second type of contact is generally referred to as "a Terry stop" and is predicated upon reasonable suspicion. Richardson, supra; Flowers, 909 F.2d at 147; See Terry v. Ohio (1968), 392 U.S. 1. This temporary detention, although a seizure, does not violate the Fourth Amendment. Under the Terry doctrine, "certain seizures are justifiable ... if there is articulable suspicion that a person has committed or is about to commit a crime" Florida, 460 U.S. at 498. In holding that the police officer's actions were reasonable under the Fourth Amendment, Justice Rehnquist provided the following discussion of the holding in Terry: "In Terry this Court recognized that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. The Fourth Amendment does not require a police officer who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, maybe most reasonable in light of the facts known to the officer at the time. Adams v. Williams (1972), 407 U.S. 143, 145-47, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612.
{¶12} The third type of contact arises when an officer has "probable cause to believe a crime has been committed and the person stopped committed it." Richardson, supra; Flowers, 909 F. 2d at 147. A warrantless arrest is constitutionally valid if: "[a]t the moment the arrest was made, the officers had probable cause to make it-whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the * * * [individual] had committed or was committing an offense." State v. Heston (1972), 29 Ohio St.2d 152, 155-156, 280 N.E.2d 376, quoting Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142. "The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause." Ornelas v. United States (1996), 517 U.S. 690, 696, 116 S.Ct. 1657, 1661-1162. A police officer may draw inferences based on his own experience in deciding whether probable cause exists. See, e.g., United States v. Ortiz (1975), 422 U.S. 891, 897, 95 S.Ct. 2585, 2589.
{¶13} The Ohio Supreme Court has held that a police officer's statement "Hey, come here a minute," while nominally couched in the form of a demand, is actually a request that a citizen is free to regard or to disregard. State v. Smith (1989), 45 Ohio St.3d 255, 258-259, 544 N.E.2d 239, 242, reversed sub nom. Smith v. Ohio (1990), 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464.
{¶14} In the case at bar, Officer Evans' initial calling out to appellant and motioning him to come over to him would be characterized as a consensual encounter. Nothing in the record establishes that appellant could not have continued to walk away from Officer Evans as he had done the first two times the Officer hailed him. However, once appellant was ordered to place his hands behind his back, confronted with two...
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