State v. Miller
| Decision Date | 21 January 1997 |
| Docket Number | No. 96-L-055,96-L-055 |
| Citation | 117 Ohio App.3d 750,691 N.E.2d 703 |
| Parties | The STATE of Ohio, Appellee, v. MILLER, Appellant. Eleventh District, Lake County |
| Court | Ohio Court of Appeals |
Charles E. Coulson, Lake County Prosecuting Attorney, Ariana E. Tarighati and Taylir K. Linden, Assistant Prosecuting Attorneys, Painesville, for appellee.
R. Paul LaPlante, Lake County Public Defender, and Mark Gardner, Assistant Public Defender, Painesville, for appellant.
The instant appeal has been taken from a final judgment of the Lake County Court of Common Pleas. Appellant, James V. Miller, seeks the reversal of his conviction on one count of drug abuse, in violation of R.C. 2925.11(A). As the basis for this appeal, appellant maintains that the trial court erred in denying his motion to suppress certain evidence obtained during an investigative stop of a motor vehicle.
The sole charge against appellant was predicated upon the following facts. During the early morning hours of May 19, 1995, Patrolman John Levicki and several other officers of the Painesville Police Department conducted a surveillance of a single-family dwelling located on Argonne Drive. At 11:00 p.m., the beginning of their shift that night, the officers had been instructed to "be aware" of certain drug activity that allegedly was taking place in that area of the city. Based upon information they had received from confidential informants and other sources, and which they had reason to believe was reliable, the officers decided to concentrate their efforts upon the Argonne Drive residence.
Patrolman Levicki parked his police cruiser approximately one hundred yards from the residence in question. From this position, he was able to see the driveway of the residence through binoculars. However, he was unable to see any of the doors to the residence.
During the first thirty minutes of the surveillance, Patrolman Levicki saw a number of vehicles pull into the driveway of the residence. In each instance, a person would exit the vehicle and walk toward the residence. Within a few minutes, the person would come back to the vehicle, which would then drive away. Because this type of behavior was consistent with the purchase and possible consumption of drugs, the officers decided to initiate stops of the vehicles once they had driven away from the residence. The first stop which the officers made resulted in the confiscation of a crack pipe.
Ten to fifteen minutes subsequent to the first stop, Patrolman Levicki saw a dark-colored Cadillac pull into the driveway behind two other vehicles. He watched appellant exit the Cadillac from the front passenger seat and walk toward the residence. Consistent with the behavior of the previously observed individuals, appellant returned to the front passenger seat of the Cadillac within a few minutes. The Cadillac then drove away from the residence.
After the Cadillac had turned onto another street and had traveled approximately a quarter of a mile, Patrolman Levicki and a second officer stopped the vehicle. Upon exiting his police cruiser and approaching the Cadillac, Patrolman Levicki stood by the passenger side of the vehicle while the second officer spoke to the driver of the vehicle.
From his vantage point, Patrolman Levicki could see that appellant, who was seated in the front passenger seat, had an aluminum pop can in his hands. Patrolman Levicki further saw that appellant was "fidgeting" in his seat and shuffling the can from hand to hand. Appellant then appeared to be trying to place the can between the seat and the door, but apparently could not. After about fifteen seconds, Patrolman Levicki saw appellant place the can between his legs and then shove the can between the crack of the split-bench seat.
Once the initial conversation between the second officer and the driver had ended, Patrolman Levicki, who had been observing only appellant until that time, asked appellant to exit the vehicle and stand in front of it. He then questioned appellant as to why he and his companions in the vehicle had stopped at the Argonne Drive residence. While this conversation was taking place, the second officer was questioning the driver about the same subject matter.
At the conclusion of both conversations, the officers compared notes and found that the two accounts were inconsistent. The second officer then asked the driver to allow the officers to search the inside of the vehicle. In response, the driver agreed to the search.
As part of the search, Patrolman Levicki specifically told a third officer to look at the pop can which appellant had hidden. After removing the can from between the seats, the third officer, at Patrolman's Levicki's request, held it upside down and shook it. A small rock of crack cocaine then fell from the can.
Based upon the foregoing incident, appellant was indicted on one charge of drug abuse under R.C. 2925.11(A). Upon entering an initial plea of not guilty, appellant moved the trial court to suppress the seized evidence. In relation to the initial stop of the vehicle, appellant argued that Patrolman Levicki did not have a reasonable suspicion of any criminal activity on the part of appellant or the other two persons in the vehicle. As to the search of the pop can, he asserted that the officers had acted unreasonably in relying upon the driver's consent to support the search of the can because Patrolman Levicki had known that only appellant had performed acts of possession over the can. 1
An evidentiary hearing was held on appellant's motion. In testifying on behalf of the state, Patrolman Levicki gave a detailed description of the events which led to the stop and to the search of the can. In addition, Patrolman Levicki testified as to the following: (1) he had been a police officer for approximately four years prior to this incident and had conducted surveillances of suspected crack houses on many occasions; (2) prior to this incident, he was aware that the department had received numerous complaints from various residents of the area concerning possible drug activity at this residence; (3) some two to three weeks before, he had spoken to the owner of the house and the owner's father; (4) both men had indicated to him that the house had been taken over by drug dealers who had forced the son to cooperate; (5) he knew that a number of drug-related arrests had been made stemming from this residence over the prior six months; and (6) based upon his professional experience, he had felt that the actions of appellant had been indicative of drug activity.
Approximately one month after the evidentiary hearing, the trial court rendered a judgment in which it denied appellant's motion to suppress. As to the initial stop of the Cadillac, the court found that the stop had been predicated upon a reasonable suspicion of criminal behavior. As to the search of the can, the court found that the facts of the case supported a reasonable belief on the part of the officers that the driver of the vehicle had the "authority" to consent to the search of the can.
Upon the denial of his motion, appellant changed his plea from not guilty to one of no contest. After accepting this new plea and finding appellant guilty of the charged offense, the trial court sentenced appellant to six months in a state penitentiary and sixty days in a county jail, but suspended the six-month term. The court also placed him on probation for three years.
In appealing this conviction, appellant has raised the following as error:
"The trial court erred to the prejudice of the defendant-appellant in overruling his motion to suppress any and all evidence obtained by the Painesville Police Department."
Under this sole assignment, appellant seeks to challenge the propriety of both parts of the trial court's decision concerning the constitutionality of the actions of the officers during the investigative stop. First, he contends that the court erred in finding that the stop itself had been predicated upon a reasonable suspicion of criminal behavior on his part. Essentially, he argues that a reasonable suspicion did not exist because Patrolman Levicki never saw him purchase drugs or engage in any other illegal activity.
As a preliminary matter, this court notes that, in ruling upon the merits of appellant's motion to suppress, the trial court assumed the role of the trier of fact. State v. Kingery (Mar. 18, 1992), Ross App. No. 1792, unreported, 1992 WL 56769. Thus, in reviewing the propriety of the trial court's decision, this court is required to accept its factual findings if they are supported by competent, credible evidence in the record. State v. Yemma (Aug. 9, 1996), Portage App. No. 95-P-0156, unreported, 1996 WL 495076. However, as to the legal issue of whether those facts supported the conclusion that a reasonable suspicion of criminal activity had existed, we are required to make a de novo determination without any deference to the trial court's holding. Id.
As was first articulated in the seminal case of Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, a police officer is allowed to briefly stop an individual when the officer reasonably suspects that the individual is involved, or has been involved, in criminal behavior. In order for such a stop to be constitutionally permissible, the officer's level of suspicion does not have to be as great as is necessary to support a finding of probable cause; instead, the officer must have only a "reasonable suspicion" of criminal behavior. United States v. Montoya de Hernandez (1985), 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381.
In defining the "reasonable suspicion" standard, the United States Supreme Court has indicated that an inarticulate hunch is insufficient to justify an investigatory stop. See Brown v. Texas (1979), 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357. Instead, the stop must be based upon some objective...
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