State v. Westover

• Decision Date: 08 May 2014
• Docket Number: No. 13AP–555.,13AP–555.
• Citation: 10 N.E.3d 211
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Drew M. WESTOVER, Defendant–Appellant.
• Court: Ohio Court of Appeals

10 N.E.3d 211

STATE of Ohio, Plaintiff–Appellee,

v.Drew M. WESTOVER, Defendant–Appellant.

No. 13AP–555.

Court of Appeals of Ohio, Tenth District, Franklin County.

May 8, 2014.

Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, Columbus, for appellee.

Yeura R. Venters, Public Defender, and John W. Keeling, Columbus, for appellant.

CONNOR, J.

{¶ 1} Defendant-appellant, Drew M. Westover, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to a plea of no contest, of one count of possession of heroin, in violation of R.C. 2925.11. Defendant assigns the following sole assignment of error for our review:

WHEN THREE POLICE OFFICERS STOPPED, APPROACHED, AND QUESTIONED THE DEFENDANT, WHO WAS LEGALLY STANDING AND TALKING WITH FRIENDS, AND INTERROGATED THE ENTIRE GROUP ABOUT THEIR ACTIVITIES AND TOOK THEIR DRIVER'S LICENSES TO RUN A WARRANT CHECK, THE DEFENDANT DID NOT FEEL FREE TO LEAVE AND HE WAS UNCONSTITUTIONALLY DETAINED IN THE ABSENCE OF ANY REASONABLE,

ARTICULABLE SUSPICION THAT HE WAS ENGAGED IN ANY CRIMINAL ACTIVITY AND THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS UNDER THIS COURT'S DECISION IN STATE V. JONES, 188 Ohio App.3d 628, 2010-OHIO-2854, 936 N.E.2d 529 (10th DIST.)

Because the trial court erred in denying defendant's motion to suppress the evidence against him, we reverse the judgment and remand the case to the trial court.

I. FACTS & PROCEDURAL HISTORY

{¶ 2} The State indicted defendant on September 13, 2012, on one count of possession of heroin, a felony of the fifth degree. The events giving rise to the indictment occurred on February 25, 2012, in Grandview Heights, Ohio.

{¶ 3} On February 25, 2012, at 8:00 p.m., Sergeant Lesley Jackson of the Grandview Heights police department was on routine patrol in the area of Broadview Avenue and W. 3rd Avenue. She was driving her marked police cruiser and wore her police uniform. As Sergeant Jackson drove southbound on Broadview Avenue, she noticed three to four people standing outside of a car which was legally parked on the east side of the street.

{¶ 4} Sergeant Jackson stated that the group “seemed nervous” as she drove by, and she then noticed that the trunk was open. In her rearview mirror, Sergeant Jackson saw someone take something from the trunk of the car up to the house located at 1273 Broadview Avenue. Sergeant Jackson was familiar with that particular house, as she had been called there “on more than one occasions” due to drug activity. (Tr. 7.) Specifically, she stated that “[o]ne of the residents to the house overdosed a couple of times, and one person has been known to stay there regularly who had a pending drug-trafficking charge against him.” (Tr. 7.)

{¶ 5} After driving by the group, Sergeant Jackson turned her cruiser around at the end of the street and drove back to the group to “see what was going on.” (Tr. 6.) Sergeant Jackson parked her cruiser directly behind the car the group was standing around. She then radioed for assistance, stating over the radio that “she had a suspicious group of people.” (Tr. 19.)

{¶ 6} The group of individuals, which included defendant, was standing on the sidewalk near their vehicle. Sergeant Jackson exited her vehicle, approached the group, and asked what they were doing. They explained that “they were waiting for somebody to come out of 1273 Broadview.” (Tr. 6.) Sergeant Jackson then asked the group what was in the box that the individuals had taken up to the house. They told her “it was a tool box.” (Tr. 8.) Sergeant Jackson then asked everyone for identification,¹ in order to “find out, you know, who's there.” (Tr. 8.) Sergeant Jackson stated that she routinely asks individuals for identification, noting that “[e]veryone we stop and talk to we ask for identification to verify that's who they are.” (Tr. 10.) Everyone in the group handed their identifications over to Sergeant Jackson. As Sergeant Jackson was collecting the identifications, two other uniformed officers, Officers Greg Gillespie and Russell Blank, arrived in their marked police vehicle.Officers Gillespie and Blank parked directly behind Sergeant Jackson's vehicle.

{¶ 7} Sergeant Jackson took everyone's identification back to her police cruiser and ran a check for outstanding warrants on all the individuals present in the group. As Sergeant Jackson was running the warrants check, the two other officers exited their vehicle and were standing on the sidewalk “with [the] group of people to observe if anybody did anything, you know, for [Sergeant Jackson's] safety.” (Tr. 20.) Officers Blank and Gillespie were standing on the sidewalk “right next to” defendant, approximately “four or five feet” away from him. (Tr. 26, 35.) Officer Gillespie noted that he was having a conversation with the defendant as they stood on the sidewalk, noting that he knew defendant from “when he was in high school.” (Tr. 28.) There is no indication that Sergeant Jackson informed the group that she wanted their identifications in order to run a warrants check; rather, the record demonstrates that Sergeant Jackson simply requested everyone's identification, and then took the identifications to her cruiser to run the warrants check.

{¶ 8} Sergeant Jackson's warrant check revealed that defendant had an outstanding warrant for his arrest. Officers Blank and Gillespie arrested defendant based on the warrant. In the search incident to arrest, the officers discovered heroin on defendant's person.

{¶ 9} Defendant filed a motion to suppress on February 4, 2013, asserting that the evidence against him was obtained while he was unreasonably detained in violation of the Fourth Amendment to the United States Constitution. After hearing the above noted evidence, the trial court orally denied the motion to suppress. The trial court noted that the State argued that “there was reasonable suspicion to run a records check or warrant check,” but the trial court did “not agree there was reasonable suspicion.” (Tr. 48–49.) Nevertheless, the trial court held that, because defendant voluntarily provided his identification to the officers, the officers then had “a right to run a record check, and if a record check comes back with a warrant at that point, they have a right to make an arrest.” (Tr. 49.) The trial court found that no warrantless seizure occurred in this case.

{¶ 10} Thereafter, defendant entered a no contest plea to the charged crime. The trial court accepted the plea and found defendant guilty of possession of heroin.

II. UNCONSTITUTIONAL SEIZURE

{¶ 11} “[A]ppellate review of a trial court's decision regarding a motion to suppress evidence involves mixed questions of law and fact.” State v. Vest, 4th Dist. No. 00CA2576, 2001 WL 605217 (May 29, 2001). Thus, an appellate court's standard of review of the motion to suppress is two-fold. State v. Reedy, 10th Dist. No. 05AP–501, 2006-Ohio-1212, 2006 WL 648861, ¶ 5, citing State v. Lloyd, 126 Ohio App.3d 95, 100–01, 709 N.E.2d 913 (7th Dist.1998). When considering a motion to suppress, the trial court assumes the role of trier of fact, and therefore is in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. As a result, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Id. Then, the appellate court must independently determine whether the facts satisfy the applicable legal standard, pursuant to a de novo review and without giving deference to the conclusion of the trial court. Id.

{¶ 12} The Fourth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment, as well as Ohio Constitution, Article I, Section 14, prohibit the government from conducting warrantless searches and seizures, rendering them per se unreasonable unless an exception applies. State v. Mendoza, 10th Dist. No. 08AP–645, 2009-Ohio-1182, 2009 WL 690204, ¶ 11, citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, “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” within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), fn. 16; Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

{¶ 13} In determining whether a particular encounter constitutes a “seizure,” and thus implicates the Fourth Amendment, the question is whether, in view of all the circumstances surrounding the encounter, a reasonable person would believe he or she was “not free to leave,” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), or “not free to decline the officers' requests or otherwise to terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). See also Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). “[T]he crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Bostick at 437, 111 S.Ct. 2382, quoting Chesternut at 569, 108 S.Ct. 1975. See also Bostick at 438, 111 S.Ct. 2382, citing Royer at 519, 103 S.Ct. 1319, fn. 4 (Blackmun, J., dissenting) (Emphasis sic.) (noting that the “ ‘reasonable person’ test presupposes an innocent person”) (Emphasis added.). A person “may not be detained even momentarily without reasonable, objective grounds for...