State v. Imani
| Decision Date | 05 October 2017 |
| Docket Number | No. CT2016–0067,CT2016–0067 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Kwame IMANI, Defendant–Appellant |
| Court | Ohio Court of Appeals |
D. MICAHEL HADDOX, PROSECUTING ATTORNEY, GERALD V. ANDERSON II, ASSISTANT PROSECUTOR, 27 North 5th Street, P.O. Box 189, Zanesville, Ohio 43702–0189, For Plaintiff–Appellee.
DAVID A. SAMS, Box 40, West Jefferson, Ohio 43162, For Defendant–Appellant.
Wise, J.{¶ 1} Appellant Kwame Imani appeals his conviction and sentence entered in the Muskingum County Court of Common Pleas following a plea of No Contest to one count of possession of drugs (cocaine) and one count of possession of drugs (marijuana).
{¶ 2} Appellee is the State of Ohio.
STATEMENTS OF FACTS AND CASE
{¶ 3} On or about July 20, 2016, Appellant, Kwame Imani, was indicted on one count of Possession of Drugs (Cocaine), a felony of the fifth degree, and one count of Possession of Drugs (Marijuana), a minor misdemeanor.
{¶ 4} On November 23, 2016, a suppression hearing was held. The following testimony was presented by Sergeant Comstock at the hearing:
{¶ 5} Shortly after 3:00 a.m. on March 27, 2016, Sgt. Comstock was on routine patrol when he observed a man, later identified as Defendant–Appellant Kwame Imani, slumped over the steering wheel of a vehicle parked on the side of a public roadway. (Supp. T. at 5–6, 60). Sgt. Comstock parked behind the vehicle without his overhead lights activated, exited his cruiser and approached the parked vehicle from the passenger side to conduct a welfare check on Appellant. (Supp. T. at 6, 61). Sgt. Comstock was shining his flashlight into the vehicle as he approached, and he observed that Appellant was looking at his cell phone. (Supp. T. at 7). When Appellant noticed the light, he appeared startled so Sgt. Comstock shined the light on his badge, identified himself as the police, and asked if Appellant was okay. (Supp. at 7). Sgt. Comstock testified that if Appellant had responded that he was okay, Sgt. Comstock would have asked for identification to run for warrants, but otherwise he would have left. (Supp. T. at 63–64). Appellant did not tell Sgt. Comstock that everything was fine but instead began frantically moving around, digging in his pockets, and suddenly exited the vehicle. (Supp. T. at 7). Appellant reached in and out of his pockets approximately ten (10) times and jumped out of the vehicle within five (5) seconds. (Supp. T. at 24). Appellant was not ordered out of the vehicle and Sgt. Comstock did not have a weapon drawn. (Supp. T. at 7, 10).
{¶ 6} When Appellant exited the vehicle, he began digging in his pockets and continually putting his hands down. (Supp. T. at 8). Sgt. Comstock stated that he was concerned by Appellant's behavior in exiting his vehicle abruptly after learning it was the police, and digging in his pockets, so he ordered him to place his hands on top of the vehicle. (Supp. T. at 8). Appellant placed his hands on the top of the vehicle briefly before taking them back off, turning away from Sgt. Comstock, reaching into his front right pocket, completely turning his back to Sgt. Comstock, looking over his shoulder at him, and failing to follow Sgt. Comstock's commands. (Supp. T. at 8–9, 68). From the time Sgt. Comstock first approached the vehicle to the time that Appellant exited the vehicle, turned away from Sgt. Comstock, and was reaching into his pocket, not even thirty (30) seconds had passed. (Supp. T. at 8, 63).
{¶ 7} Sgt. Comstock testified that he called dispatch for assistance and secured Appellant for officer safety. (Supp. T. at 9, 12, 68–69, 72). Sgt. Comstock stated that he observed something shiny in the front pocket of Appellant's hooded sweatshirt and asked what it was. (Supp. T. at 11, 55–56). Appellant told Sgt. Comstock that he had been drinking and Sgt. Comstock retrieved an open container of alcohol from the pocket. (Supp. T. at 11). Appellant then admitted that he had marijuana on him. (Supp. T. at 11). Appellant's pockets were searched and plastic baggies containing marijuana and cocaine were found on his person. (Supp. T. at 12).
{¶ 8} On November 17, 2016, the trial court denied Appellant's motion to suppress.
{¶ 9} On November 23, 2016, Appellant entered a plea of No Contest.
{¶ 10} On December 19, 2016, the trial court sentenced Appellant to two (2) years of community control, with an alternate sentence of eleven (11) months.
{¶ 11} Appellant now appeals, setting forth the following assignment of error:
ASSIGNMENT OF ERROR
{¶ 12}
I.
{¶ 13} In his sole Assignment of Error, Appellant argues that the trial court erred in overruling his motion to suppress. We disagree.
{¶ 14} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. 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) ; State v. Guysinger , 86 Ohio App.3d 592, 621 N.E.2d 726 (4th Dist.1993). 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. State v. Williams , 86 Ohio App.3d 37, 619 N.E.2d 1141 (4th Dist.1993). Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the 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, 641 N.E.2d 1172 (8th Dist.1994) ; State v. Claytor , 85 Ohio App.3d 623, 620 N.E.2d 906 (4th Dist.1993). As the United States Supreme Court held in Ornelas v. U.S ., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), "... as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal."
{¶ 15} Appellant challenges the trial court's ultimate conclusion finding the evidence resulted from a valid search. Appellant argues the officers lacked reasonable articulable facts to stop him and conduct an investigation. More specifically, Appellant herein argues that the he was unlawfully seized when the officer shined the flashlight on him and identified himself as a police officer while he was lawfully parked on a public street. Appellant argues the officer had no right to approach the vehicle in which he was sitting and search him.
{¶ 16} The Fourth Amendment to the United States Constitution and Section 14, Article I, Ohio Constitution, prohibit the government from conducting unreasonable searches and seizures of persons or their property. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 ; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271. State v. Lopez (Sept. 28, 1994), Greene App. No. 94 CA 21, 1994 WL 527670, quoting Terry, supra , at 19, fn. 16, 88 S.Ct. 1868.
{¶ 17} Ohio law recognizes three types of police-citizen encounters: consensual encounters, Terry stops, and arrests. State v. Taylor (1995), 106 Ohio App.3d 741, 747–49, 667 N.E.2d 60.
{¶ 18} 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, 667 N.E.2d 60. 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, 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 [103 S.Ct. 1319, 75 L.Ed.2d 229]. 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, 111 S.Ct. 2382, 115 L.Ed.2d 389.
{¶ 19} A consensual encounter does not implicate the Fourth Amendment's protection against unreasonable searches and seizures unless the police officer has restrained the person's liberty by a show of authority or physical force such that a reasonable person would not feel free to decline the officer's request or...
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