State v. Smith

• Decision Date: 13 September 1989
• Docket Number: No. 88-826,88-826
• Citation: 45 Ohio St.3d 255,544 N.E.2d 239
• Parties: The STATE of Ohio, Appellee, v. SMITH, Appellant.
• Court: Ohio Supreme Court

Page 255

45 Ohio St.3d 255

544 N.E.2d 239

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

No. 88-826.

Supreme Court of Ohio.

Submitted April 12, 1989.

Decided Sept. 13, 1989.

Robert P. DeSanto, Pros. Atty., and Ramona J. Rogers, for appellee.

Stephen Cockley, Mansfield, and David Homer, Albany, N.Y., for appellant.

HOLMES, Justice.

The issue presented in this case is whether the search and seizure of appellant's bag was reasonable within the Fourth Amendment to the United States Constitution, and Section 14, Article I of the Ohio Constitution, which mirrors that amendment. For the reasons which follow, we answer such query in the affirmative, and thus affirm the court of appeals.

Three events occurred in this case which must be analyzed in light of the Fourth Amendment: (1) the encounter between appellant and Officer Thomas, (2) Thomas' seizure of the brown paper bag, and (3) Thomas' search of that bag.

I

No "seizure" of the person of appellant occurred in this case, prior to the discovery of the contraband and appellant's subsequent arrest. It is well established that "[o]bviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio (1968), 392 U.S. 1, 19, at fn. 16, 88 S.Ct. 1868, 1879, at fn. 16, 20 L.Ed.2d 889 "There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets." Id. at 34, 88 S.Ct. at 1886 (White, J., concurring). In United States v. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, the court reaffirmed its position, taken in Terry, supra, and Sibron v. New York (1968), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, and detailed the degree of restraint necessary to invoke constitutional safeguards:

"We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. [Footnote omitted.] Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877.

The court made it clear that "[a]s long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." Id. It is not enough "to establish a seizure that the person asking the question was a law enforcement official," id. at 555, 100 S.Ct. at 1877, nor does it matter that the person is not expressly told by the official that he is free to decline to answer questions. Id. In Florida v. Royer (1983), 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229, a plurality of the court, seven Justices, reaffirmed these principles as to when a seizure occurs. Id. at 497-498, 523, 103 S.Ct. at 1323-24, 1337. See, also, Immigration & Naturalization Service v. Delgado (1984), 466 U.S. 210, 215-217, 104 S.Ct. 1758, 1762-63, 80 L.Ed.2d 247.

In Mendenhall, the respondent, Sylvia Mendenhall, was observed by two federal Drug Enforcement Administration ("DEA") agents as she arrived at the Detroit Metropolitan Airport on a flight from Los Angeles. Mendenhall's behavior appeared to the agents to fit a "drug courier profile," so the agents approached her, identified themselves as federal agents and asked to see her identification and airline ticket, which she produced. Mendenhall answered further questions posed by the agents, and after the agents identified themselves as federal narcotic agents, Mendenhall became visibly nervous. The DEA agents returned her identification and ticket to her, and asked her to accompany them to the airport DEA office. Mendenhall complied and later consented to a search of her person and her handbag. Mendenhall removed two small packages from her undergarments, one of which contained heroin, and she was then arrested for possession of heroin. Id. 446 U.S. at 547-549, 100 S.Ct. at 1873-74. In upholding the denial of Mendenhall's motion to suppress, Justice Stewart reviewed these facts and stated: "[N]othing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents' initial approach to her was not a seizure." ¹ Id. at 555, 100 S.Ct. at 1877. The court also held that Mendenhall voluntarily consented to accompany the agents to the DEA office, id. at 558, 100 S.Ct. at 1879, and she freely and voluntarily consented to the search of her person, id. at 559-560, 100 S.Ct. at 1879-80.

Having set forth these rather simple concepts of when a "seizure" within the meaning of the Fourth Amendment occurs, a review of the facts in this case reveals that, as in Mendenhall, a reasonable person in appellant's position would have believed he was free to leave at any time, prior to his actual arrest following the discovery of contraband. Officers Thomas and Edwards, with combined law enforcement experience of over fifteen years, observed appellant and his companion emerge from the Balducci residence and, for reasons discussed in Part II, infra, became suspicious of their behavior as they entered the YMCA parking lot. The plain-clothes officers, in their unmarked cruiser, pulled up behind the car appellant was approaching and Thomas asked appellant what was in his bag. Appellant did not answer. Thomas got out of the car and said, "hey, come here a minute" to appellant, who looked over his shoulder and kept walking towards the car. Thomas then verbally identified himself as a police officer. The appellant turned towards Thomas, threw the brown paper bag onto the hood of the car and stepped back from the car. ²

Only these two officers, in plain clothes, were present (Edwards had radioed their location and was approaching appellant's companion as Thomas approached appellant). Neither officer displayed his weapon, nor had Thomas physically touched appellant at that time. Thomas, who was the only person to speak, at no time used a threatening tone of voice, did not order appellant into the cruiser at any time, and never stated or indicated anything to the effect that if appellant did not come toward the officer he would be under arrest.

Thus, none of the examples indicating a seizure enumerated in Mendenhall, supra, at 554, 100 S.Ct. at 1877, was present in this case, nor are any other circumstances present such that "a reasonable person would have believed that he was not free to leave." Id. In fact, appellant testified at the suppression hearing that he did not feel compelled to go towards Thomas when he identified himself as a police officer, and corroborated the facts that he had not been spoken to harshly or threatened with arrest, no weapon had been displayed to him, and he stated that the officers' cruiser was not blocking his exit from the YMCA parking lot.

The facts presented in this case are indistinguishable from those presented in Mendenhall, and we decline to adopt appellant's theory that any encounter between a citizen and the police, once the law enforcement officer has identified himself and asks a question of the citizen, constitutes a "seizure" within the Fourth Amendment.

" * * * [C]haracterizing every street encounter between a citizen and the police as a 'seizure,' while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. 'Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515 [83 S.Ct. 1336, 1344, 10 L.Ed.2d 513].' " Schneckloth v. Bustamonte (1973), 412 U.S. 218, at 225, 93 S.Ct. 2041, at 2046, 36 L.Ed.2d 854, quoted in Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877. ³ No seizure of appellant's person, within the meaning of the Fourth Amendment, occurred in this case.

II

Of course, the Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (Emphasis added.) In general, a seizure of personal property, such as the bag carried by appellant here, is considered per se unreasonable within the Fourth Amendment unless it follows from a judicial warrant issued upon probable cause and particularly describing the item to be seized. See Marron v. United States (1927), 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231. Absent a warrant, but where law enforcement officials have probable cause to believe that a container, such as appellant's bag, holds contraband or evidence of a crime, the item may be seized--pending issuance of a warrant to search--"If the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present." United States v. Place (1983), 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110.

In Place, however, the United States Supreme Court went a step further and recognized as reasonable under the Fourth Amendment the temporary, warrantless seizure of personal property ...