State v. Hall

2011 Ohio 5096

Opinion

[Cite as State v. Hall, 2011-Ohio-5096.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 2011CA00032 : : GERALD R. HALL : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Stark County Court of Common Pleas Case No. 2010CR1330

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 26, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO KRISTINA R. POWERS Prosecuting Attorney Stark County Public Defender’s Office Stark County, Ohio 200 W. Tuscarawas Street, Ste. 200 Canton, Ohio 44702 BY: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 [Cite as State v. Hall, 2011-Ohio-5096.]

Edwards, J.

{¶1} Appellant, Gerald Hall, appeals a judgment of the Stark County Common

Pleas Court convicting him of possession of cocaine (R.C. 2925.11(A)(C)(4)(b)) upon a

plea of no contest and sentencing him to three years community control. Appellee is

the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} Detective Mike Volpe has been a Canton Police officer for five years. He

was assigned to the FBI Task Force, which investigates violent crime, bank robberies

and gang activity.

{¶3} In the late morning hours of August 30, 2010, Det. Volpe and two special

agents were investigating a bank robbery. The robbery occurred on August 28, 2010,

and was believed to be connected to the Rated R street gang. The Victory Square

apartment complex, located on 8th St. NE in Canton, is operated by the Stark

Metropolitan Housing Authority and known to be heavily populated with Rated R gang

members. The apartment complex is a high crime area, known for both violent crime

and drug activity. Det. Volpe and the other agents planned to walk around the area in

plain clothes, seeking to obtain information about the bank robbery from anyone who

would cooperate with them.

{¶4} After exiting his unmarked vehicle, Det. Volpe saw appellant standing

within the fenced-in area of Victory Square. He approached appellant, who he

recognized from prior incidents. He identified himself as a police officer and told

appellant he would like to talk to him. According to Volpe, if appellant had run from him,

he would have chased him. However, if appellant had walked away, he would have Stark County App. Case No. 2011CA00032 3

tried to engage appellant in conversation but would have let appellant go if appellant

continued to “blow him off.”

{¶5} Volpe told appellant he wanted to talk to him about the bank robbery and

wanted to pat him down for safety before speaking with him. According to Volpe,

appellant consented to the pat down and agreed to allow the officer to search his pants’

pockets. Det. Volpe felt a large lump in a pocket, but nothing was inside the pants

pocket. He noticed that appellant had a pair of shorts on under his pants, and asked if

he could search the pockets of the shorts. Appellant again consented. Det. Volpe

found crack cocaine in the pocket of appellant’s shorts.

{¶6} While being transported to the police station after his arrest for possession

of cocaine, appellant stated that he wanted to do something to “work off” the charges.

At the station he was read his Miranda rights by Special Agent Mike Jones. Although

Volpe did not remember if appellant expressly waived his rights, appellant continued to

talk with officers after stating that he understood his rights.

{¶7} Appellant was indicted by the Stark County Grand Jury with one count of

possession of cocaine. He moved to suppress the cocaine and the statement he made

to police.1 The court conducted a suppression hearing. Det. Volpe was the only

witness who testified at the hearing. The court found that appellant was not “seized”

within the meaning of the Fourth Amendment, and that he was searched with his

consent. The court further found that appellant was read his Miranda rights and

proceeded to give a statement. The court overruled the motion to suppress in its

entirety.

1 The State maintains the statement made by appellant, essentially trying to work with police to obtain dismissal of the charge, is not essential to the instant prosecution. Stark County App. Case No. 2011CA00032 4

{¶8} Appellant then entered a plea of no contest. He was convicted as charged

and sentenced to three years community control. He assigns a single error on appeal:

{¶9} “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION

TO SUPPRESS EVIDENCE.”

{¶10} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning (1982),

1 Ohio St.3d 19, 437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 486, 597

N.E.2d 1141; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. Second,

an appellant may argue the trial court failed to apply the appropriate test or correct law

to the findings of fact. In that case, an appellate court can reverse the trial court for

committing an error of law. State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d

1141. Finally, assuming the trial court's findings of fact are not against the manifest

weight of the evidence and it has properly identified the law to be applied, an appellant

may argue the trial court has incorrectly decided the ultimate or final issue raised in the

motion to suppress. When reviewing this type of claim, an appellate court must

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95

Ohio App.3d 93, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 620

N.E.2d 906; Guysinger. As the United States Supreme Court held in Ornelas v. U.S.

(1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, “... as a general matter Stark County App. Case No. 2011CA00032 5

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal.”

{¶11} When ruling on a motion to suppress, the trial court assumes the role of

trier of fact and is in the best position to resolve questions of fact and to evaluate the

credibility of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243,

652 N.E.2d 988; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583.

{¶12} Appellant first argues that he was “stopped” without a reasonable,

articulable suspicion of criminal activity as required by Terry v. Ohio (1968), 392 U.S.1.

The trial court found that the encounter was consensual and not a “stop” for which

police were required to have a suspicion of criminal activity.

{¶13} The United States Supreme Court has held that not every contact

between police and citizens constitutes a seizure:

{¶14} “The Fourth Amendment does not proscribe all contact between the police

and citizens, but is designed ‘to prevent arbitrary and oppressive interference by

enforcement officials with the privacy and personal security of individuals.’ United States

v. Martinez–Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976).

Given the diversity of encounters between police officers and citizens, however, the

Court has been cautious in defining the limits imposed by the Fourth Amendment on

encounters between the police and citizens. As we have noted elsewhere: ‘Obviously,

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

restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.’ Terry

v. Ohio, supra, 392 U.S., at 19, n. 16, 88 S.Ct., at 1879 n. 16. While applying such a test Stark County App. Case No. 2011CA00032 6

is relatively straightforward in a situation resembling a traditional arrest, see Dunaway v.

New York, 442 U.S. 200, 212–216, 99 S.Ct. 2248, 2256–2258, 60 L.Ed.2d 824 (1979),

the protection against unreasonable seizures also extends to ‘seizures that involve only

a brief detention short of traditional arrest.’ United States v. Brignoni–Ponce, 422 U.S.

873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). What has evolved from our

cases is a determination that an initially consensual encounter between a police officer

and a citizen can be transformed into a seizure or detention within the meaning of the

Fourth Amendment, ‘if, in view of all the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave.’ Mendenhall,

supra, 446 U.S. at 554, 100 S.Ct., at 1877 (footnote omitted); see Florida v. Royer, 460

U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (plurality opinion).” INS v.

Delgado (1984), 466 U.S. 210, 215.

{¶15} The United States Supreme Court has recently noted that officers may

seek consent-based encounters if they are lawfully present in the place where the

consensual encounter occurs. Kentucky v. King (2011), ___ U.S. ___, 131 S. Ct. 1849,

1858, 179 L.Ed.2d 865. If consent is freely given, it makes no difference that an officer

may have approached the person with the hope or expectation of obtaining consent. Id.

While most citizens will respond to a police request, the fact that people do so, and do

so without being told they are free not to respond, does not eliminate the consensual

nature of the response. Id.

{¶16} Appellant argues that he had limited means of walking away, as he was

stopped against a fence line, there were buildings on either side of him and the fourth

side was blocked by vehicles in the parking lot. He argues there was a small opening at Stark County App. Case No. 2011CA00032 7

the end of the fence, but Volpe testified that he would have pursued him had he

attempted to flee.

{¶17} Volpe testified that appellant could have exited through the opening in the

fence or he could have gone inside the building. While he did testify that he would have

pursued appellant if he ran, he did not testify that he would have restrained appellant

had he walked away. He testified that he would have continued to try to engage

appellant in conversation, but if appellant continued to blow him off, he would have let

him go. Volpe approached appellant just to talk to him, appellant was not a suspect in

the robbery although he was known to associate with members of the Rated R street

gang. The plan of the officers was to talk to whoever they might run into to gain

information. Because the officer testified that appellant would not have been detained

had he walked away and appellant had a method to walk away had he chosen to do so,

the court found he was not seized. The court did not err in this finding based on the

evidence presented at the hearing.

{¶18} Appellant next argues that the court erred in finding the search was

consensual. He argues that he was informed he was going to be patted down, and

therefore did not consent.

{¶19} The question of whether consent to search was voluntary or the product of

duress or coercion, express or implied, is a question of fact to be determined from the

totality of the circumstances. Schneckcloth v. Bustamonte (1973), 412 U.S. 218, 227,

93 S.Ct. 2041, 36 L.Ed.2d 854. The standard for measuring the scope of consent is

objective reasonableness, i.e., what a reasonable person would have understood by the Stark County App. Case No. 2011CA00032 8

exchange between the officer and the suspect. Florida v. Jimeno (1991), 500 U.S.248,

251, 111 S.Ct. 1801, 114 L.E.2d 297.

{¶20} Det. Volpe’s testimony on the issue of consent to the pat down is less than

crystal clear. However, he testified as follows on the issue of consent to both the initial

patdown and the search of appellant’s pants and shorts pockets:

{¶21} “For officer safety purposes only I advised him prior to talking to him that I

was going to pat him down for weapons to insure officer safety and also the safety of

Mr. Hall.

{¶22} “He consented to the patdown. I also asked him if he had anything illegal

on him at that time, specifically guns or weapons. He stated no. I asked consent to

search his persons and he did give consent to search his persons. I specifically asked

him for his pants pocket - - to patdown his or search his pant pockets. He consented to

the search.” Tr. 11.

{¶23} “Q. And then you stated that - - so you had consent to search his pants

pockets. So when you felt the lump did you ask at that point to search the shorts?

{¶24} “A. Yes. After I found the large lump I checked his pant pockets. There

was nothing in the pant pockets, but I could still feel the large lump and he said - - we

noticed that he had a pair of shorts on underneath of that. He was sagging his pants,

which is a normal trend for young adults.

{¶25} “So because of his pants sagging you could tell he had another pair of - -

they weren’t boxer shorts. They weren’t underwear. You could tell it was definitely

either - - another pair of pants or a pair of shorts on underneath. He stated yes. I asked

if he had pockets in those shorts. He said yes. Then I asked consent again for the Stark County App. Case No. 2011CA00032 9

short - - for his short pockets because I could still feel that large lump in that area. He

consented to searching the pockets of his shorts.” Tr. 13-14.

{¶26} “Q. Now, you said that after you say to him I’m going to pat you down for

officer safety you basically say is that okay with you?

{¶27} “A. Correct.

{¶28} “Q. Can you tell me how you said that to him?

{¶29} “A. Probably just as simple as you just did it to me.

{¶30} “Q. Okay. And how did he consent?

{¶31} “A. He said - - he may have said okay or that’s fine.

{¶32} “Q. Do you remember?

{¶33} “A. No, I don’t…

{¶34} “Q. So you don’t recall what he did to consent?

{¶35} “A. No. And prior to patting him down I also asked consent to search his

persons and he consented to that.

{¶36} “Q. How?

{¶37} “A. By saying yes.

{¶38} “Q. You specifically recall him saying yes?

{¶39} “A. Yes, because I asked him if that was okay and he said yes.

{¶40} “Q. Well, if he had consented initially when you felt the lump why did you

ask him to consent the second time?

{¶41} “A. Because he had a second pair of shorts on. I wanted to make sure

that he didn’t have a problem with me going into his other pair of pants.

{¶42} “Q. So you asked consent for each layer of clothing? Stark County App. Case No. 2011CA00032 10

{¶43} “A. I did that day, yes, I did.” Tr. 28-29.

{¶44} As noted earlier, the trial court is in the best position to determine the

credibility of witnesses. Dunlap, supra. Based on Volpe’s uncontradicted testimony, the

trial court did not err in finding consent to the search.

{¶45} Finally, appellant challenges the court’s Miranda ruling. Appellant argues

that he did not validly waive his rights. However, the evidence reflects that appellant

intended to talk to police in an effort to avoid criminal charges. Although an express

waiver was not presented in the instant case, there was evidence that after appellant

initiated conversation with police, appellant was read his Miranda rights, indicated that

he understood his rights, and subsequently made a statement to police. When a

suspect understands his rights in full, he waives his right to remain silent by making a

voluntary statement to police. Berghuis v. Thompkins (2010), ___ U.S. ____, 130 S.Ct.

2250, 2264, 176 L.Ed.2d 1098 (fact that defendant was silent during first two hours and

45 minutes of three hour interrogation was insufficient to invoke his right to remain silent

under Miranda). Stark County App. Case No. 2011CA00032 11

{¶46} The assignment of error is overruled.

{¶47} The judgment of the Stark County Common Pleas Court is affirmed.

By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

______________________________

JUDGES

JAE/r0720 [Cite as State v. Hall, 2011-Ohio-5096.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : GERALD R. HALL : : Defendant-Appellant : CASE NO. 2011CA00032

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.

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