[Cite as State v. Belcher, 2011-Ohio-5015.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24385
vs. : T.C. CASE NO. 10CR2436/1
JOSHUA M. BELCHER : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of September, 2011.
Mathias H. Heck, Jr., Prosecuting Attorney; Laura M. Woodruff, Asst. Pros. Attorney, Atty. Reg. No. 0084161, P.O. Box 972, Dayton, OH 45422 Attorney for Plaintiff-Appellee
Charles W. Slicer, III, Atty. Reg. No. 0059927, 111 W. First Street, Suite 518, Dayton, OH 45402 Attorney for Defendant-Appellant
GRADY, P.J.:
{¶ 1} Defendant, Joshua M. Belcher, appeals from his two
convictions for theft, which were entered on Belcher’s pleas of
no contest after the trial court overruled Defendant’s motion to 2
suppress evidence.
{¶ 2} Belcher and two co-defendants were charged by indictment
with two counts of theft, R.C. 2913.02(A)(1). Count One alleged
that Belcher and his co-defendants had stolen property having a
total value of five hundred dollars or more from nine different
persons, a second degree felony. Count Two alleged that Belcher
and one co-defendant had stolen a credit card belonging to another,
which per R.C. 2913.71(A) is a fifth degree felony. Belcher
entered not guilty pleas.
{¶ 3} Belcher filed a Crim.R. 12(C)(3) motion to suppress
evidence. (Dkt. 12). The motion sought to suppress “all evidence
obtained from Defendant who was a passenger in an automobile” and
“all evidence obtained as a result of information obtained from
Defendant as the result of the stop of Defendant who was a passenger
in an automobile.” The motion further states:
{¶ 4} “As grounds for this Motion, Defendant asserts that the
stop and search of Defendant and the subsequent seizure of evidence
was accomplished without the benefit of a duly issued and executed
search warrant or was outside the scope of a duly issued and
authorized search warrant, was not conducted with the knowledgeable
consent of the Defendant, was not based upon probable cause, nor
within the scope of a search incident to a lawful arrest. Further,
it does not appear that exigent circumstances required an immediate 3
search of Defendant. Such a search and seizure constitutes a
denial of Defendant’s right as guaranteed by the Fourth Amendment
to the United States Constitution and by the Constitution of the
State of Ohio.
{¶ 5} “Defendant further asserts that any statements made by
the Defendant to any law enforcement officers were obtained in
violation of Defendant’s rights guaranteed by the Fifth and
Fourteenth Amendment to the United States Constitution and by
Article One of the Ohio constitution, as such statements were not
made voluntarily and were made without the benefit of counsel,
without full and adequate explanation of Defendant’s rights, and
without a knowing and intelligent waiver of these rights.”
{¶ 6} The Memorandum In Support of Defendant’s motion to
suppress identified no statement Defendant had made or other
“information” police obtained from him. Indeed, the facts leading
to Defendant’s arrest which are set out in the Memorandum explain
that Defendant was stopped, searched, and arrested while he and
his two co-defendants were “walking down the street,” which belies
Defendant’s assertion that he was a “passenger in an automobile.”
Further, the arguments Defendant presented in the Memorandum are
limited to a contention that the officer who detained him lacked
a reasonable and articulable suspicion of criminal activity
required by Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 4
L.Ed.2d 889, in order to stop and detain Defendant and his
companions, rendering any evidence derived from that illegality
subject to suppression.
{¶ 7} The court held a hearing on Defendant’s motion to
suppress evidence on October 12, 2010. The only witness called
to testify was Clayton Police Officer Howard Titus, who was called
by the State. At the conclusion of the evidence, the court heard
arguments. Defendant argued that he was stopped and detained by
Officer Titus illegally, because the officer lacked the necessary
reasonable and articulable suspicion of criminal activity required
by Terry. (T. 24-25). The State argued that the officer acted
on a reasonable and articulable suspicion of criminal activity,
because articles seen in plain view in Defendant’s backpack
reasonably connected him to theft offenses that had occurred in
that area. The court took the matter under advisement.
{¶ 8} On October 27, 2010, the court made the following oral
findings of fact:
{¶ 9} “Officer Howard Titus of the Clayton Police Department
was working on August the 7th, 2010. He was working the day shift,
which is 5:45 a.m. to 2:00 p.m. He’s been with Clayton since 1988,
and is a part-time patrol officer working one to two days a week.
{¶ 10} “On his way to work at approximately 5:20 a.m. on Old
Salem Road in the city of Clayton, he observed three males walking 5
in the grass. It was dark. He found it unusual, because foot
traffic is rare in that area, particularly given the time of the
morning, also. He did not recognize any of the individuals, but
was aware that there had been significant recent criminal activity
in the area, including thefts from vehicles, garages, and
residential burglaries. Those individuals were within one quarter
of a mile of the police department. There is no sidewalk in that
area and the individuals were walking in the grass.
{¶ 11} “Officer Titus had taken recent reports in the area
involving events in the overnight hours that involved theft
offenses. Officer Titus was in the uniform of the day. He went
to the police station, got in a marked cruiser and returned then
to the area, saw the same three individuals in the area of Taywood
and Old Salem.
{¶ 12} “He approached those individuals in his vehicle. He
observed one of those individuals, the defendant, Mr. Belcher,
carrying a backpack. As he was pulling – it was at a fire station
– as he was pulling into that area, Mr. Belcher put the backpack
down, walked away from it, and then Mr. Belcher and the two
individuals with him approached Officer Titus.
{¶ 13} “Officer Titus sought to identify the three individuals,
because he felt it was unusual for there to be pedestrian traffic
in that neighborhood at that time of the day. One of the 6
individuals said that they were looking for Main Street, but they
were walking in the opposite direction.
{¶ 14} “Officer Titus called for backup. Mr. Belcher appeared
to be nervous. Mr. Belcher and the two people he was with
approached Officer Titus. They were patted down. The backpack
was retrieved from near a vehicle and it contained a radar detector,
a purse and a power cord. None of the individuals had
identification and they were arrested approximately 20 feet from
the backpack.
{¶ 15} “The Court first finds that the defendant had no standing
to challenge the search of the backpack. The protection afforded
by the Fourth Amendment does not implicate – is not implicated
in every situation between the police and a citizen. The test
to determine whether a person has been seized is whether, in view
of all the circumstances, a reasonable person would believe that
he was not free to leave. There’s no evidence that the officer
physically – well, even if that were the case, the defendant
abandoned the backpack long before any seizure took place. An
individual does not have standing to object to a search of property
that he has voluntarily abandoned.
{¶ 16} “Abandoned property is determined – is a question of
intent and is inferred from words spoken, acts done, and other
objective facts. The Court determines that the property was 7
abandoned, as the defendant put it down, near a vehicle, walked
away from it, evidencing his intention to abandon it. Therefore,
the defendant did not have standing to object to the search of
that property, and his motion is overruled in its entirety. The
Motion to Suppress is overruled.” (T. 2-4).
{¶ 17} Defendant subsequently entered no contest pleas to the
two theft offenses. He was sentenced to serve two concurrent
twelve month terms of incarceration, to pay restitution to the
victims of his theft offenses, and to serve three year terms of
post-release control. Defendant filed a notice of appeal.
ASSIGNMENT OF ERROR
{¶ 18} “THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION
TO SUPPRESS.”
{¶ 19} Defendant argues that the trial court erred when it
overruled his motion to suppress evidence, again relying on the
Terry violation he argued in the trial court.
{¶ 20} The State argues that the trial court did not err when
it found that Defendant abandoned the backpack and its contents.
Alternatively, the State argues that the entire incident was a
consensual encounter, to which the Fourth Amendment has no
application.
{¶ 21} Encounters are consensual where the police merely
approach a person in a public place, engage the person in 8
conversation, request information, and the person is free not to
answer and walk away. United States v. Mendenhall (1980), 446
U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497, 504-505; State
v. Cook, Montgomery App. No. 20427, 2004-Ohio-4793. If the
person’s liberty is restrained by police, however, a seizure has
occurred which implicates the Fourth Amendment protections and
requires legal justification. Mendenhall; State v. Gonsior
(1996), 117 Ohio App.3d 481.
{¶ 22} A seizure occurs when, in view of all of the circumstances
surrounding the incident, the police officer has either by physical
force or a show of authority restrained the person’s liberty so
that a reasonable person would not feel free to decline the
officer’s requests and walk away or otherwise terminate the
encounter. Mendenhall; State v. Williams (1990), 51 Ohio St.3d
58, 61; Cook. Factors that might indicate a seizure include the
threatening presence of several police officers, the display of
a weapon, some physical touching of the person, the use of language
or tone of voice indicating that compliance with the officer’s
request might be required, approaching the person in a non-public
place, and blocking the citizen’s path. Mendenhall; Cook.
{¶ 23} When Officer Titus approached the three men he asked
the three men to “step over here.” Officer Titus introduced
himself and told the men he had stopped them because he didn’t 9
recognize them and there had been a lot of problems with vehicle
break-ins and thefts in that area, and he wanted to identify them.
Officer Titus patted each man down, and then ran each man’s name
and identifying information through the computer in his police
cruiser.
{¶ 24} Officer Titus clearly indicated that the men were to
remain where they were while he ran their names, saying: “hang
on for a second, gentlemen, make sure you’re not wanted and we’ll
go from there.” Officer Titus admitted that the men were not free
to leave, and that he would have pursued them had they run. None
of the men had any outstanding warrants. While Officer Titus was
obtaining that information, police back-up arrived. Officer Titus
then walked over to where Defendant had put down the backpack and
looked at it. In the top of the open backpack, Officer Titus
observed a radar detector, a woman’s purse, and a power cord.
At that point Officer Titus arrested Defendant for theft.
{¶ 25} Based upon these facts, we conclude that while the
encounter between Defendant and Officer Titus began as a consensual
encounter, it developed into a Terry investigative stop that
involved a seizure of Defendant’s person. Mendenhall. In our
judgment, under these circumstances, which include Officer Titus’
request for the men to “step over here” and remain there while
he ran their names and identifying information, a direction with 10
which the men complied, a reasonable person would not have felt
free to ignore Officer Titus’ directions and walk away. Id. This
seizure of Defendant’s person required legal justification in order
to be lawful. Gonsior.
{¶ 26} In State v. Cosby, 177 Ohio App.3d 670, 2008-Ohio-3862
at ¶16-18, this court observed:
{¶ 27} “Warrantless searches and seizures are per se
unreasonable under the Fourth Amendment, subject to only a few
well-recognized exceptions. Katz v. United States (1967), 389 U.S.
347, 88 S.Ct. 507, 19 L.Ed.2d 576. One of those exceptions is the
rule regarding investigative stops, announced in Terry, 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889, which provides that a police
officer may stop an individual to investigate unusual behavior,
even absent a prior judicial warrant or probable cause to arrest,
where the officer has a reasonable, articulable suspicion that
specific criminal activity may be afoot.
{¶ 28} “An officer's inchoate hunch or suspicion will not
justify an investigatory stop. Rather, justification for a
particular seizure must be based upon specific and articulable
facts that, taken together with the rational inferences from those
facts, reasonably warrant that intrusion. The facts must be judged
against an objective standard: whether the facts available to the
officer at the moment of seizure or search would warrant a person 11
of reasonable caution in the belief that the action taken was
appropriate. Id. See also State v. Grayson (1991), 72 Ohio App.3d
283, 594 N.E.2d 651.
{¶ 29} “Whether an investigative stop is reasonable must be
determined from the totality of the circumstances that surround
it. State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472,
414 N.E.2d 1044. The totality of the circumstances are ‘to be viewed
through the eyes of the reasonable and prudent police officer on
the scene who must react to events as they unfold.’ State v. Andrews
(1991), 57 Ohio St.3d 86, 87–88, 565 N.E.2d 1271, citing United
States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859; Freeman, supra,
at 295, 18 O.O.3d 472, 414 N.E.2d 1044.”
{¶ 30} On the facts in this case, Officer Titus did not have
reasonable, articulable suspicion of criminal activity to justify
a Terry investigative stop and detention of Defendant. The conduct
observed by Officer Titus, three men he did not know, one of whom,
was wearing a backpack, who were walking alongside Old Salem Road
at 5:20 in the morning in an area where there had been several
recent vehicle break-ins and theft offenses, fails to demonstrate
a nexus between the men and some particular criminal conduct such
as theft. No matter how unusual someone wearing a backpack and
walking alongside Old Salem Road at 5:20 a.m. may be, that conduct
itself is innocent or at most ambiguous, and not indicative of 12
any criminal activity.
{¶ 31} Furthermore, the mere fact that this innocent or
ambiguous conduct occurred in an area where crimes had occurred
does not make it criminal in character or give rise to a reasonable
suspicion of specific criminal activity. State v. Maldonado
(Sept. 24, 1993), Montgomery App. No. 13530. Simply being present
in a high crime area, by itself, is not indicative of criminal
activity, nor does it justify a Terry investigative stop. Cosby.
Officer Titus detained Defendant on nothing more than an inchoate
hunch, which is legally insufficient to justify a Terry
investigative stop. Id; Gonsior. The Terry investigative stop
and detention/seizure of Defendant’s person in this case was
therefore illegal and violated Defendant’s Fourth Amendment
rights.
{¶ 32} The trial court concluded, however, that Defendant
voluntarily abandoned the backpack before any investigatory stop
and seizure of Defendant took place, and that as a result Defendant
lacks standing to challenge the legality of the search of the
backpack. In State v. Dennis, 182 Ohio App.3d 674, 2009-Ohio-2173,
at ¶38-39, 41, we stated:
{¶ 33} “It has long been settled that ‘[a] defendant has no
standing under the Fourth Amendment to the United States
Constitution to object to a search and seizure of property that 13
he has voluntarily abandoned.’ State v. Freeman (1980), 64 Ohio
St.2d 291 [18 O.O.3d 472], 414 N.E.2d 1044, paragraph two of the
syllabus. As the Ohio Supreme Court has reiterated:
{¶ 34} “‘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 (C.A.2, 1968), 396 F.2d
83, 87. All relevant circumstances existing at the time of the
alleged abandonment should be considered. United States v. Manning
(C.A.5, 1971), 440 F.2d 1105, 1111. 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; Katz v. United States (1967),
389 U.S. 347, 83 [88] S.Ct. 507 [19 L.Ed.2d 576].’ Id. at 297 [18
O.O.3d 472, 414 N.E.2d 1044], quoting United States v. Colbert
(C.A.5, 1973), 474 F.2d 174, 176.” Russell, 2007-Ohio-137, 2007
WL 93202, at ¶ 21–22.
{¶ 35} “* * *
{¶ 36} “The government bears the burden of establishing, by
a preponderance of the evidence, that the defendant abandoned the
property at issue. State v. Dubose, 164 Ohio App.3d 698, 14
2005-Ohio-6602, 843 N.E.2d 1222, ¶ 43.”
{¶ 37} The evidence demonstrates that as Officer Titus
approached and began exiting his cruiser, Defendant took off the
backpack he wore. Defendant did not throw or “discard” the
backpack, but rather placed it on the ground of the parking lot
of the fire station where he stood, and then walked some twenty
feet over to Officer Titus, in response to the officer’s direction
to “step over here.” Defendant never left the scene where he placed
the backpack and, having been instructed to remain where he was
standing, Defendant did not have an opportunity thereafter to
return and retrieve the backpack. Under these facts and
circumstances, Defendant did not voluntarily abandon or relinquish
his interest in the backpack, and it cannot be said that he no
longer retained a reasonable expectation of privacy with regard
to it at the time of the search. Dennis.
{¶ 38} The trial court erred when it found that Defendant lacks
standing to object to the seizure and search of his backpack and
its contents because he abandoned them when he placed the backpack
on the ground. Even though the trial court’s decision overruling
Defendant’s motion on that basis was likewise erroneous, we may
affirm by deciding the suppression issue on grounds different from
those determined by the trial court so long as the evidentiary
basis on which we decide the legal issue concerned was adduced 15
before the trial court and made a part of its record. State v.
Peagler (1996), 76 Ohio St.3d 496.
{¶ 39} The Fourth Amendment prohibits unreasonable searches
and seizures of “persons” and their “houses, papers, and effects.”
The search and seizure of Defendant’s backpack was performed
without benefit of a judicial warrant. Warrantless searches are
per se unreasonable. Katz v. United States (1967), 389 U.S. 347,
88 S.Ct. 507, 19 L.Ed.2d 576. Warrantless searches and seizures
are not illegal, however, if one of the several exceptions to the
Fourth Amendment’s warrant requirement is demonstrated.
{¶ 40} The State relied on the “plain view” exception to the
warrant requirement, which permits seizure of objects falling in
the plain view of an officer who has a right to be in a position
to see them. Harris v. United States (1968), 390 U.S. 234, 88
S.Ct. 932, 19 L.Ed.2d 1067. It is undisputed that the contents
of the backpack were in Officer Titus’s plain view when he walked
over to the backpack and looked at it. The issue is whether he
was then legally in a position to do that.
{¶ 41} We found that what began as a consensual encounter became
a detention for purpose of Terry when Officer Titus subsequently
instructed Defendant and his companions to remain where they were
standing, before he walked over to the backpack Defendant had put
on the ground. Because that detention lacked the reasonable and 16
articulable suspicion of criminal activity that Terry requires,
the detention and any search it involved were illegal. The
exclusionary rule requires suppression of evidence seized in the
course of unlawful search. Weeks v. United States (1914), 232
U.S. 383, 58 L.Ed.2d 652, 34 S.Ct. 341.
{¶ 42} The exclusionary rule also requires suppression of
derivative evidence: that is, evidence that is the product of the
primary evidence illegally seized, or that is otherwise acquired
as an indirect result of the unlawful search, up to the point at
which the connection with the unlawful search becomes “so
attenuated as to dissipate the taint” of the particular illegality.
Nardone v. United States (1939), 308 U.S. 338, 341, 84 L.Ed.307,
60 S.Ct. 266. Such evidence is exempt from suppression under the
“independent source” doctrine. Silverthorne Lumber Co. v. United
States (1920), 251 U.S. 385, 392, 64 L.Ed.319, 40 S.Ct. 182.
Because the purpose of the exclusionary rule is to put police in
the same, not a worse, position that they would have been in had
no illegal conduct occurred, the independent source rule generally
applies to “all evidence acquired in a fashion untainted by the
illegal evidence-gathering activity.” Murray v. United States
(1988), 487 U.S. 533, 537-538, 108 S.Ct. 2529, 101 L.Ed.2d 472,
480.
{¶ 43} After the backup assistance he requested had arrived, 17
Officer Titus walked to where Defendant put the backpack on the
ground when the consensual encounter began. Because Defendant
placed the backpack on the ground before the illegal detention
occurred, the plain view of that evidence that Officer Titus
subsequently acquired was untainted by the Terry illegality the
subsequent detention involved. Further, the backpack was located
in a public place, where the backpack and its contents were open
to view and plainly visible, and there is no reasonable expectation
of privacy regarding such property. Katz, Ohio Arrest, Search
and Seizure (2008), §14.5. Accordingly, the trial court did not
err when it overruled Defendant’s motion to suppress evidence
obtained in the search and seizure of Defendant’s backpack that
Officer Titus performed.
{¶ 44} The assignment of error is overruled. The judgment of
conviction from which the appeal is taken will be affirmed.
FAIN, J. And DONOVAN, J., concur.
Copies mailed to: Laura M. Woodruff, Esq. Charles W. Slicer, III, Esq. Hon. Mary Katherine Huffman