Ohio v. Freeman

414 N.E.2d 1044, 64 Ohio St. 2d 291, 18 Ohio Op. 3d 472, 1980 Ohio LEXIS 880

• Court: Ohio Supreme Court
• Decided: December 30, 1980
• Docket: No. 80-701
• Status: Published

Opinions

Locher, J.

Appellant, in his first proposition of law, asserts, in essence, that, in light of the facts of this cause, the officer did not have specific and articulable facts which would reasonably lead him to believe that appellant was involved in specific criminal activity. Stated otherwise, appellant claims that the seizure of the gun was unlawful, since it is the “fruit of the poisonous tree” of an illegal stop.

We find no merit in this contention.

It is elementary and undisputed herein that, if the initial stop of the appellant was valid and proper, the seizure of the gun was also proper, since it was in plain view of the officer. See Harris v. United States (1968), 390 U. S. 234; Coolidge v. New Hampshire (1971), 403 U. S. 443.

It is important to note that the concern herein involves an investigative stop and not a question of probable cause incident to an arrest. All facts and consequences after the initial stop are undisputed. The record discloses that appellant, after being asked by the officer for identification, submitted, without objection, the driver’s license of Ben Williams, which had an outstanding traffic warrrant, thereby mandating a further detainment.

Thus, the pivotal issue is limited to the incident leading up to the initial investigative stop.

In United States v. Constantine (C.A. 4, 1977), 567 F. 2d 266, the court commented upon the permissibility of an investigative stop. The court aptly noted, at page 267:

“In Terry v. Ohio, 392 U. S. 1, 21***(1968), the Court found that the governmental concern in curtailing crime would permit a police officer in appropriate circumstances to ‘approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’ Id., at 22***. The Court in United States v. Brignoni-Ponee, 442 U. S. 873***(1975), held that probable cause was not required for a brief investigative stop* * *.”

Analysis of the investigative stop herein initiates a discussion of Terry v. Ohio, supra. The United States Supreme Court, in Terry, at pages 21-22, stated:

“***And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. * * * [W] ould the facts available to the officer at the moment of the seizure of the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate? Cf. Carroll v. United States, 267 U. S. 132 (1925); Beck v. Ohio, 379 U. S. 89, 96-97 (1964).***” (Footnotes omitted.)

Other courts have given guidance irt the application of facts that are considered “specific and articulable,” so as to be within the permissible confines for a stop as enunciated in Terry, supra.

In United States v. Constantine, supra (567 F. 2d 266), the court, at page 267, stated:

“Assessing the need for a brief stop, ‘the circumstances ***before [the officer] are not to be dissected and viewed singly; rather they must be considered as a whole.’ United States v. Hall, 174 U. S. App. D. C. 13, 15, 525 F. 2d 857, 859 (1976).***An area’s disposition toward criminal activity is an articulable fact. United States v. Brignoni-Ponce, 422 U. S. at 884-885* * *. The mood of the precinct and the cir-cumambient activities***‘are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.’ United States v. Hall, 174 U. S. App. D. C. at 15, 525 F. 2d at 859. See United States v. Magda, 547 F. 2d 756, 758 (2 Cir. 1976).”

We hold that the facts as presented herein did give the officer the right to minimally intrude upon the appellant. The specific and articulable facts supporting our conclusion are, to wit: (1) the location of the investigation being a high crime area; (2) the officer being quite aware of recent criminal activity in the motel parking lot in which appellant was parked; (3) the time of night being 3:00 a.m.; and (4) the appellant sitting alone in the car at the rear of the building for approximately 20 minutes with the engine turned off.

All facts considered, we hold that the officer was only performing his police duties in a conscientious manner. It is contra to the very nature of the duty of an officer to patrol in a high crime area and to be oblivious to such aforementioned facts. This line of reasoning was advanced by the United States Supreme Court, in Adams v. Williams (1972), 407 U. S. 143, when, at pages 145-146, it stated:

“In Terry this Court recognized 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. 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. 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; see Gaines v. Craven, 448 F. 2d 1236 (CA9 1971); United States v. Unverzagt, 424 F. 2d 396 (CA8 1970).”

In complete compliance with the above-quoted passage, the officer herein made a brief stop of the appellant in order to investigate and to “maintain the status quo momentarily while obtaining more information,” to wit: some identification.

Other jurisdictions, when presented with similar arguments, are in accord with our determination. In People v. Damaska (1978), 404 Mich. 391, 273 N. W. 2d 58, the Supreme Court of Michigan determined that police officers were justified in making an investigative stop of a vehicle, in view of, inter alia, the fact that the defendant emerged from a business parking lot late at night with his car lights extinguished and that the office building had been subject to recent burglaries. See United States v. Constantine, supra, and Commonwealth v. Almeida (1977), 373 Mass. 266, 366 N. E. 2d 756.

For the foregoing reasons, appellant’s first proposition of law is overruled.

In his second proposition of law, appellant asserts that “[a] search warrant is required for the search of luggage that is not within the immediate possession and control of a person [appellant] who has been placed under arrest.”

In accordance with the relevant facts of this cause, we find that appellant had abandoned his luggage, and thus we determine that his second proposition of law is without merit.

It is undisputed that the question herein is not complicated by the possibility that the acts taken to establish the abandonment may have been brought about by unlawful police conduct. Rather, the arrest was made upon a valid warrant issued for appellant.

It is rudimentary that one does not have standing to object to a search and seizure of property that he has voluntarily abandoned. Abel v. United States (1960), 362 U. S. 217 (search of hotel room by FBI agents without a warrant after defendant had relinquished his room and seizure of abandoned articles held permissible); Parman v. United States (C.A. D.C. 1968), 399 F. 2d 559 (evidence obtained from abandoned apartment even without search warrant held admissible); United States v. Edwards (C.A. 5, 1971), 441 F. 2d 749 (search of car trunk proper when defendant abandoned auto and fled on foot after a high speed chase with police); United States v. Moore (C.A. D.C. 1972), 459 F. 2d 1360 (warrantless search of auto permissible when auto involved in a robbery was abandoned after the vehicle went out of control); United States v. Colbert (C. A. 5, 1973), 474 F. 2d 174 (defendants who disclaimed interest in briefcases had no standing to object to the search of abandoned briefcases); and Commonwealth v. Shoatz (1976), 469 Pa. 545, 366 A. 2d 1216 (the search of suitcases held permissible on abandonment theory when defendants dropped suitcases and fled on foot when approached by police).

The issue is, therefore, factual as to whether the appellant’s action herein constitutes abandonment of the suitcases.

The court, in United States v. Colbert, supra, at page 176, gives some guidance to our determination, as follows:

“Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir. 1968, 396 F. 2d 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir. 1971, 440 F. 2d 1105, 1111. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. See Abel v. United States, supra; Edwards v. United States, 5th Cir. 1971, 441F. 2d 749; Lurie v. Oberhauser, 9th Cir. 1970, 431 F. 2d 330. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. United States v. Edwards, supra, 441 F. 2d at 753; cf. Katz v. United States, 1967, 389 U. S. 347***.”

The pertinent facts in the instant cause reveal that appellant tried to deceive the arresting officer into believing that he would cooperate, following which appellant suddenly dropped his luggage, exited through the swinging doors and fled on foot from the scene of the arrest. As far as appellant was concerned the luggage was bona vacantia, and, therefore, its search was proper. The legal effect of the abandonment, as noted above, is to deprive the appellant of standing to challenge the subsequent search.

Appellant’s propositions of law being without merit, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

McBride, Sweeney, Holmes and Dowd, JJ., concur. W. Brown, J., concurs in paragraph one of the syllabus and in the opinion. Celebrezze, C. J., dissents. McBride, J., of the Second Appellate District, sitting for P. Brown, J.