State v. Freeman

• Citation: 64 Ohio St.2d 291,414 N.E.2d 1044,18 O.O. 3d 472
• Decision Date: 30 December 1980
• Docket Number: No. 80-701,80-701
• Parties: , 18 O.O.3d 472 The STATE of Ohio, Appellee, v. FREEMAN, Appellant.
• Court: United States State Supreme Court of Ohio

Page 291

64 Ohio St.2d 291

414 N.E.2d 1044, 18 O.O.3d 472

The STATE of Ohio, Appellee, v. FREEMAN, Appellant.

No. 80-701.

Supreme Court of Ohio.

Dec. 30, 1980.

Syllabus by the Court

1. The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances.

2. A defendant has no standing under the Fourth Amendment to the United States Constitution to object to a search and seizure of property that he has voluntarily abandoned.

In the early morning hours of March 24, 1979, Vernon Lee Jessee, the alleged victim herein, entered a restaurant in downtown Toledo, Ohio. While inside the restaurant, Jessee inadvertently displayed a sizable sum of money in the presence of Gregory Freeman, appellant herein.

After Jessee left the restaurant, he allegedly was compelled at gunpoint by appellant to go to a public housing project, where he was forced out of his car into an apartment. Thereafter, he was struck with the barrel of a pistol and suffered lacerations. His money and ring were stolen. Jessee managed to escape and went to his mother's home. He was taken to the hospital, whereupon he contacted police, at approximately 6:15 a. m., concerning the incident.

On March 25, 1979, at approximately 3:00 a. m., Officer Robert L. Bratton of the village of Northwood police department was on routine patrol in the vicinity of a Quality Inn in Northwood. In the course of patrolling the area, Bratton entered the parking lot of the motel and passed through its parking lot. At the rear of the motel, Bratton observed a male person, later identified as appellant, sitting alone in an automobile with the engine turned off. Bratton observed further that all the other cars in the lot were unoccupied.

Bratton continued his patrol through the lot and then exited the lot and patrolled several side streets. Approximately 15 to 20 minutes later, he returned to the parking lot of the motel and again observed appellant sitting alone in the idle automobile. Then, Bratton drove to the front of the building and entered the motel. While inquiring from the desk clerk whether there was any trouble or disorder that evening, Bratton saw appellant exiting the parking lot. Thereupon, Bratton stopped appellant's vehicle within a short distance from the motel.

Bratton explained to appellant that he had stopped him due to the fact that there had been much theft and criminal damage in the parking lot lately.

Bratton asked for some identification. Appellant voluntarily gave Bratton the driver's license of one Ben Williams. After a record check on this driver's license, Bratton discovered that a traffic warrant was still outstanding on Ben Williams.

Bratton then advised appellant that he would have to be detained. An officer from the Rossford police department arrived at the scene while Bratton was writing up the field report. As appellant was getting out of his automobile, the Rossford officer noticed a gun on the front seat of appellant's automobile. He informed Bratton, who quickly grabbed the appellant and then secured the gun.

A few days later, on March 28, 1979, Jessee, the victim of the robbery, identified appellant from an array of photographs at the detective bureau. On that same date, warrants for appellant's arrest were issued.

On April 20, 1979, Sergeant William Holmes of the Toledo police department was working on an off-duty job as a security guard at the Greyhound bus station located in downtown Toledo. Holmes maintained the practice of keeping photographs in his possession of persons wanted for serious crimes. He recognized appellant from these photos.

Holmes approached appellant and placed him under arrest. Appellant verbally protested that there must be some mistake, but yet started to accompany Holmes through the bus station, carrying three pieces of luggage. While near the doors, appellant quickly dropped his luggage, exited through the doors and then ran away from Holmes.

Appellant was apprehended and taken, along with his luggage to the detective bureau. After being advised of his legal rights, appellant's luggage was "inventoried" in his presence. Among other contents, a receipt for the purchase of a Cadillac on March 24, 1979, was found. That same receipt, as well as the gun recovered by Bratton, were introduced in evidence at trial.

Appellant was indicted for aggravated robbery in violation of R.C. 2911.01 and for kidnapping in violation of R.C. 2905.01(A), both counts being joined in a single indictment.

Appellant filed a motion to suppress evidence, which included the gun, the receipt and other physical evidence. After a hearing, the court overruled the motion to suppress. The case proceeded to trial to a jury, and appellant was found not guilty of kidnapping, but guilty of aggravated robbery.

The Court of Appeals affirmed the judgment of conviction and the denial of the suppression of both the gun and the receipt.

The Court of Appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Summit County in State v. Pavlic (C.A. No. 9408, February 13, 1980), unreported, and that of the Court of Appeals for Hamilton County in State v. Barrow (1978), 60 Ohio App.2d 335, 397 N.E.2d 422, certified the record of the case to this court for review and final determination.

Anthony G. Pizza, Pros. Atty., and David O. Bauer, Asst. Pros. Atty., for appellee.

John F. Potts, Toledo, for appellant.

LOCHER, Justice.

Appellant, in his first proposition of law, asserts, in essence, that, in light of the facts of this cause, the officer did not have specific and articulable facts which would reasonably lead him to believe that appellant was involved in specific criminal activity. Stated otherwise, appellant claims that the seizure of the gun was unlawful, since it is the "fruit of the poisonous tree" of an illegal stop.

We find no merit in this contention.

It is elementary and undisputed herein that, if the initial stop of the appellant was valid and proper, the seizure of the gun was also proper, since it was in plain view of the officer. See Harris v. United States (1968), 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

It is important to note that the concern herein involves an investigative stop and not a question of probable cause incident to an arrest. All facts and consequences after the initial stop are undisputed. The record discloses that appellant, after being asked by the officer for identification, submitted, without objection, the driver's license of Ben Williams, which had an outstanding traffic warrant, thereby mandating a further detainment.

Thus, the pivotal issue is limited to the incident leading up to the initial investigative stop.

In United States v. Constantine (C.A. 4, 1977), 567 F.2d 266, the court commented upon the permissibility of an investigative stop. The court aptly noted, at page 267:

"In Terry v. Ohio, 392 U.S. 1, 21 (88 S.Ct. 1868, 1879, 20 L.Ed.2d 889) * * * (1968), the Court found that the governmental concern in curtailing crime would permit a police officer in appropriate circumstances to 'approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' Id., at 22 (88 S.Ct. 1880) * * *. The Court in United States v. Brignoni-Ponce, 442 U.S. 873 (95 S.Ct. 2574, 45 L.Ed.2d 607) * * * (1975), held that probable cause was not required for a brief investigative stop * * *."

Analysis of the investigative stop herein initiates a discussion of Terry v. Ohio, supra. The United States Supreme Court, in Terry, at pages 21-22, 88 S.Ct. at 1879-1880, stated:

" * * * And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. * * * (W)ould the facts available to the officer at the moment of the seizure of the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132 (45 S.Ct. 280, 69 L.Ed. 543) (1925); Beck v. Ohio, 379 U.S. 89, 96-97 (85 S.Ct. 223, 229, 13 L.Ed.2d 142) (1964). * * * " (Footnotes omitted.)

Other courts have given guidance in the application of facts that are considered "specific and articulable," so as to be within the permissible confines for a stop as enunciated in Terry, supra.

In United States v. Constantine, supra 567 F.2d 266, the court, at page 267, stated:

"Assessing the need for a brief stop, 'the circumstances * * * before (the officer) are not to be dissected and viewed singly; rather they must be considered as a whole.' United States v. Hall, 174 U.S.App.D.C. 13, 15, 525 F.2d 857, 859 (1976). * * * An area's disposition toward criminal activity is an articulable fact. United States v. Brignoni-Ponce, 422 U.S. at 884-885 (95 S.Ct. at 2581-2582) * * *. The mood of the precinct and the circumambient activities * * * 'are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.' United States v. Hall, 174 U.S.App.D.C. at 15, 525 F.2d at 859. See United States v. Magda, 547 F.2d 756, 758 (2 Cir. 1976)."

We hold that the facts as presented herein did give the officer the right to minimally intrude upon the appellant. The specific and articulable facts supporting our conclusion are, to wit: (1) the location of the investigation being a high crime area; (2) the officer being quite aware of recent criminal activity in the motel parking lot in which appellant was parked; (3) the time of night being 3:00 a. m.; and (4) the appellant sitting alone in the car at the rear of the building for approximately 20 minutes with the engine turned off.

All facts considered, we hold that the officer was only performing his police duties in a...