City of Warrensville Heights v. Mollick

607 N.E.2d 861, 79 Ohio App. 3d 494, 1992 Ohio App. LEXIS 1990

• Court: Ohio Court of Appeals
• Decided: April 27, 1992
• Docket: No. 59981.
• Status: Published

Opinions

Pryatel, Judge.

Defendant-appellant Ray Mollick appeals from the trial court’s failure to suppress evidence prior to his plea of no contest to a charge of driving under a suspended license in violation of Warrensville Heights Codified Ordinances 335.07. For the reasons adduced below, we affirm.

A review of the record, which includes in large part a statement made pursuant to App.R. 9(C), reveals that a motion to suppress hearing was held by the trial court. The only witness called to testify at this hearing was Warrensville Heights Patrolman Robert Terpay. A summary of the testimony is provided in the App.R. 9(C) statement at pages 2 through 4:

“He [Terpay] was a duly sworn, uniformed police officer in an appropriately fully marked and equipped black and white police patrol car with overhead red/blue lights; he had come on duty the night of September 28, 1989 and [was] assigned to routine patrol of the east end, the area covering Banbury Village within the City of Warrensville Heights. He had been advised to pay particular attention to Banbury Village because of numerous reported complaints of suspicious, unusual activity associated with crime and illicit drugs.

“He further testified that Banbury Village was almost a totally black community and was familiar with the area; further in one of his routine slow patrols through the area as he was headed south on Banbury he passed a slow moving Chevrolet Camaro headed northbound on Banbury with two white males, the driver being identified as the Defendant-Appellant Mollick. Officer Terpay turned around and within just a few minutes later arrived in front of 4907 Banbury where the Camaro was parked and again saw Appellant at this time standing alongside the vehicle and asked him for identification and what he was doing in the high drug crime area at 3:00 a.m.? In response Appellant handed the officer his Ohio operators license which the officer then had checked through the LEADS computer which revealed that Appellant’s home address was in the far west Cleveland süburb of Westlake and that Appellant’s driving privileges were under suspension indefinitely by the Bureau of Motor Vehicles (BMV).

“As a result of the BMV information Appellant was issued a traffic ticket for driving while his privileges to do so were under suspension (DUS).

“On cross-examination, the Patrolman testified that it was dark when this all happened, was not evasive about the distance the cars were apart when his headlights shined on the Appellant while the automobiles were moving, and when the Appellant was standing outside of the automobile when he was approached.”

Following the denial of his motion to suppress, Mollick entered a plea of no contest on May 10, 1990, was found guilty, and was sentenced to a fine of $250 plus costs, ten days in jail, and suspension of driving privileges for ninety days. The sentence was stayed pending his timely appeal.

Mollick raises one assignment of error for review:

“The trial court erred in overruling the appellant’s motion to suppress.”

This court stated the following in State v. Smith (Aug. 29, 1991), Cuyahoga App. No. 58918, unreported, at 4-5, 1991 WL 185720:

“In State v. Andrews (1991), 57 Ohio St.3d 86 [565 N.E.2d 1271], the Supreme Court of Ohio reasoned that the court must look at the totality of the circumstances when determining the reasonableness of a police officer’s stop and subsequent seizure of evidence.

“The Ohio State Supreme Court in Andrews lessened the standard required to find probable cause for a search to occur, however, admitted that there are no bright lines or easy answers in determining what is reasonable suspicion.

“In the application of Andrews to the case at bar, we are required to look through the eyes of the reasonable and prudent police officer who conducted the search and seizure and ask whether this was a reasonable search and seizure under the totality of the circumstances.”

The Supreme Court of Ohio stated the following in State v. Williams (1990), 51 Ohio St.3d 58, 60, 554 N.E.2d 108, 110-111:

“Terry [v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, 44 O.O.2d 383] stands for the proposition that ‘a police officer may in appropriate circumstances and in an appropriate manner 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. at 1880, 20 L.Ed.2d at 906-907]. ‘The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23 [88 S.Ct. at 1881, 20 L.Ed.2d at 907]. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id., at 21-22 [88 S.Ct. at 1879-80, 20 L.Ed.2d at 905-906]; see Gaines v. Craven, 448 F.2d 1236 (CA 9 1971); United States v. Unverzagt, 424 F.2d 396 (CA8 1970).' ”

In the present case, Officer Terpay invoked the essence of “good police work” under the totality of the circumstances to suspect criminal activity, to wit: (1) the time was 3:00 a.m.; (2) the area was a high drug activity location; (3) the defendant and his passenger were white males; (4) the area in which these facts occurred is a predominantly black residential area; (5) Mollick was driving slowly down the street, and, as Terpay turned around his squad car, Mollick had parked his vehicle, exited the driver’s side and stood beside the vehicle; and (6) the passenger had left the vehicle and was not in the area at the time Terpay approached Mollick at the parked vehicle. (In oral argument, counsel explained that the passenger went to an apartment.)

Given these facts, Terpay was justified in approaching Mollick, requesting that he identify himself, and examining the legitimacy of the identification. This request for and examination of Mollick’s identification are a consensual encounter and implicate no Fourth Amendment interest since this request and examination are not a seizure. State v. Cooper (1989), 61 Ohio App.3d 344, 572 N.E.2d 790, citing Florida v. Rodriguez (1984), 469 U.S. 1, 5-6, 105 S.Ct. 308, 310-311, 83 L.Ed.2d 165, 170-171; Immigration & Naturalization Serv. v. Delgado (1984), 466 U.S. 210, 221-222, 104 S.Ct. 1758, 1765, 80 L.Ed.2d 247, 258-259; Florida v. Royer (1983), 460 U.S. 491, 497-498, 103 S.Ct. 1319, 1323-1324, 75 L.Ed.2d 229, 235-236. Additionally, Mollick was under no compulsion to respond to the request for identification and was free to go on his way until Terpay discovered the fact that Mollick was driving under suspension. See State v. Cooper, supra, at 346, 572 N.E.2d at 791. The fact that Mollick voluntarily produced his driver’s license, rather than some other form of identification such as his car registration, indicates further the consensual nature of the examination. Mollick cannot now complain that information gathered from that form of identification proved to be incriminating.

Assignment overruled.

Judgment affirmed.

John F. Corrigan, J., concurs separately. Krupansky, J., dissents. August Pryatel, J., retired, of the Eighth Appellate District, sitting by assignment.