State v. Jones

796 N.E.2d 989, 154 Ohio App. 3d 231, 2003 Ohio 4669

• Court: Ohio Court of Appeals
• Decided: September 4, 2003
• Docket: No. 82133.
• Status: Published

Opinions

Michael J. Corrigan, Presiding Judge.

{¶ 1} Defendant Carol A. Jones filed a motion to suppress evidence of drugs seized from her. She maintained that the police lacked a reasonable suspicion that she had engaged in criminal activity, and further argued that the police conducted an illegal strip search of her in the field. After the court denied the motion to suppress, Jones pleaded no contest to charges of possession of drugs, trafficking in drugs, and possession of criminal tools. The court found Jones guilty, and this appeal followed.

{¶ 2} When reviewing the court’s ruling on a motion to suppress, we give the court’s factual findings great deference. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Our review of the facts as applied to the law is not deferential, however, but independent. Ornelas v. United States (1996), 517 U.S. 690, 696-699, 116 S.Ct. 1657, 134 L.Ed.2d 911; State v. Retherford (1994), 93 Ohio App.3d 586, 592, 639 N.E.2d 498.

{¶ 3} An undercover narcotics detective testified that he had been deployed because of complaints about drug dealing. At around midnight, the detective saw a vehicle driven by Jones pull up to a person waiting for the vehicle’s arrival. With cupped hands, Jones displayed something for the person. He saw the person take money from a pocket and exchange it for what Jones held in her hand.

{¶ 4} The detective went on to witness a second transaction that was identical in form to the first transaction.

{¶ 5} Jones then drove her car to another location and exchanged words with the driver of another car. The two vehicles left together and went to Jones’s house. The detective knew Jones’s address from having conducted an earlier investigation into her conduct. The second driver stayed for about five minutes, then both Jones and the second driver left separately. The detective continued his surveillance and saw Jones engage in a third hand-to-hand transaction.

{¶ 6} At this point, the detective decided to make an investigatory stop pursuant to Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Because he wished to protect the anonymity of the vehicle he was using, the detective called for a uniformed officer to make the stop. The uniform officer did not testify at the suppression hearing, but a female officer who responded to a radio call for patdown said that she responded to conduct the patdown.

{¶ 7} Jones was wearing sweat pants with an elastic waistband. As the female officer tried to conduct the patdown, Jones squirmed and tried to pull away. When the female officer grabbed the waistband of Jones’s sweat pants to keep her from pulling away, she saw a plastic bag stuck halfway into the waistband of Jones’s undergarments. The plastic bag held a “chunk” that the officer believed was crack cocaine.

{¶ 8} The officer did not have any latex gloves handy, so her partner handcuffed Jones and placed her in the cruiser for transportation to the jail and an appointment with the matron. As the officers discussed who would transport Jones, the female officer looked into the cruiser and saw that Jones had slipped her left hand out of the handcuffs and had it in her pants. The officers removed Jones from the car and recuffed her. They patted down Jones and searched the back of the car for the plastic bag, but could not find it. The female officer thought that the plastic bag might have fallen around Jones’s ankles, so she asked Jones to sit in the open car with her feet on the sidewalk. When Jones continued to resist, the officer told Jones to lie down on the car seat. As Jones scooted back on the seat, the friction between the seat and her sweat pants caused her sweat pants to slide down to her ankles. The officer checked the leggings of the sweat pants but did not find any drugs. She concluded that Jones had secreted the drugs in her person.

{¶ 9} The police took Jones to the police station. They called on the matron to perform a strip search. The matron asked Jones if she “had anything on you. You might as well take it out now, if you have anything on you.” Jones reached into the front of her sweat pants and removed a bag containing drugs. Jones also carried three cell phones and $800 in cash.

{¶ 10} Jones’s fiancé and brother-in-law testified that they had both seen Jones’s arrest. The flaneé said that as Jones was handcuffed in the police cruiser, the female police officer had Jones “disrobed from the waist down” and was telling her to spread her legs. The brother-in-law said that he saw the police walking Jones, and she was wearing only a T-shirt. He conceded that it was a long T-shirt and that he could not tell whether she was clothed beneath the T-shirt.

{¶ 11} The court found that the detective’s observations “provided more than reasonable suspicion” to conduct a Terry stop. The court further found that the female police officer had probable cause to seize the contraband. The court did not resolve the question of fact concerning Jones’s argument that she had been strip-searched in the police cruiser because it did not believe it to be relevant to the motion to suppress.

I

{¶ 12} Jones makes three substantive arguments as to why the court erred by denying her motion to suppress. She argues (a) that the police could not stop and detain her based on the detective’s “bald request” for a stop when those officers lacked any independent basis for believing that Jones had engaged in criminal activity prior to the stop, (b) the circumstances of strip search were impermissible, and (c) the illegality of the stop rendered Jones’s tender of the drugs involuntary and thus inadmissible.

A

{¶ 13} Under Terry, a police officer may briefly stop and detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that “criminal activity may be afoot,” even if the officer lacks probable cause to make an arrest. We look at the totality of the circumstances to determine whether the police officers had a particularized and objective basis for suspecting that Jones was engaged in criminal activity. United States v. Arvizu (2002), 534 U.S. 266, 122 S.Ct. 744, 749-750, 151 L.Ed.2d 740. “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” Arvizu, 534 U.S. 266, 122 S.Ct. at 750, 151 L.Ed.2d 740, quoting United States v. Cortez (1981), 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621.

{¶ 14} In State v. Paul (Feb. 14, 2002), Cuyahoga App. No. 79596, 2002 WL 228848, we stated:

{¶ 15} “We have consistently found a reasonable suspicion of criminal activity exists in cases where the accused engages in exchanges of money for small objects. See, e.g., State v. Ricks (Sept. 28, 2000), Cuyahoga App. No. 76670 [2000 WL 1429432], unreported (suspects flagged down and approached cars, then appeared to be exchanging something for money); State v. Rogers (May 21, 1998), Cuyahoga App. Nos. 72736 and 72737 [1998 WL 269085], unreported (exiting car and cupping hands to show something, then exchanging money); State v. Streeter (July 2, 1992), Cuyahoga App. No. 62682 [1992 WL 159656] (same). Cf. State v. Barr (1993), 86 Ohio App.3d 227, 620 N.E.2d 242 (although not citing to Terry, police observed offender exchange what appeared to be money for drugs and found probable cause for arrest).”

{¶ 16} The undercover detective said that he watched Jones engage in three different transactions, all of which involved Jones displaying to other persons something in her cupped hands, and the other persons exchanging currency for what she held in her hands. This fact pattern is entirely consistent with Paul and the cases cited therein and amply supports the court’s finding that the undercover officer formed a reasonable suspicion that Jones engaged in criminal activity.

B

{¶ 17} During the suppression hearing, the female officer who conducted Jones’s patdown conceded that she had not been told of the circumstances behind the Terry stop and simply responded to the call to pat down a female suspect. Jones argues that the officers who detained her did so illegally because the undercover detective failed to convey to the patrol officers the basis for the investigative stop.

{¶ 18} Once the undercover detective formed a reasonable suspicion that Jones had been engaging in criminal activity, he could validly ask other officers to conduct the Terry stop in order to protect his anonymity. In turn, those other officers could perform the Terry stop for the undercover detective. In State v. Williams, Cuyahoga App. No. 81364, 2003-Ohio-2656, 2003 WL 21196678, we stated at ¶ 10:

{¶ 19} “Reasonable suspicion, however, need not be based only on an officer’s personal observations. Adams v. Williams (1972), 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612. The officer may rely on information gleaned from other valid sources, such as other officers or a police radio dispatch. United States v. Hensley (1985), 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604. This principle is rooted in the notion that ‘effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.’ Id. at 231, 105 S.Ct. at 682, 83 L.Ed.2d at 614, quoting United States v. Robinson (C.A.9, 1976), 536 F.2d 1298, 1299. When a dispatch is involved, therefore, the officer who conducts the initial stop will typically have very little knowledge of the facts that prompted his or her fellow officer to issue the dispatch.

{¶20} “The United States Supreme Court has reasoned, then, that the admissibility of the evidence uncovered during such a stop does not rest upon whether the officers relying upon a dispatch ‘were themselves aware of the specific facts which led their colleagues to seek their assistance.’ It turns instead upon whether the officer who issued the dispatch possessed reasonable suspicion to make the stop. Id. at 231 [105 S.Ct. 675, 83 L.Ed.2d 604]. Thus, if a dispatch was issued in the absence of reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment. Hensley, 469 U.S. at 232 [105 S.Ct. 675, 83 L.Ed.2d 604].”

{¶ 21} As described in Williams, the law does not require that police officers responding to a request for assistance be aware of the “specific facts” prompting the request. The undercover detective testified at the suppression hearing and fully detailed the facts that gave rise to his suspicion that Jones had been trafficking in drugs. With that basis established in evidence, the officers who responded to his call for assistance were not obliged to have the same knowledge of the situation that he possessed.

{¶ 22} We stress that unlike the panel decision in Williams, this is not a case where police officers were dispatched on the basis of an informant’s report. Instead, the officers were dispatched on information provided by one of their own, an undercover detective who testified that he had spent ten years on the force and worked in the narcotics unit for about 18 months. He claimed to have made “innumerable” narcotics arrests. The court had no reason to doubt that the detective’s experience in the field gave him ample qualifications to determine that Jones had been engaging in trafficking based upon the hand-to-hand transactions that he witnessed.

C

{¶ 23} Finally, Jones claims that the court’s findings of fact were deficient because they did not articulate a basis for denying her motion to suppress on the issue of whether the undercover detective communicated to the officers called to the scene his reasons for requesting the Terry stop.

{¶ 24} Crim.R. 12(F) states that when a court makes a ruling on a motion in which factual issues are involved in determining the motion, the court must “state its essential findings on the record.” Despite this language, the rule is not self-executing as to findings of fact. In State v. Eley (1996), 77 Ohio St.3d 174, 179, 672 N.E.2d 640, the Ohio Supreme Court held that former “Crim.R. 12(E) does not control because Eley did not request factual findings. ‘In order to invoke the rule, the defendant must request that the court state its essential findings of fact in support of its denial of a motion.’ Eley’s failure to invoke the rule waived any error.” (Citations omitted.)

{¶ 25} Jones did not make a request for findings of fact, so she must be deemed to have waived the right to argue any error.

{¶ 26} Even had Jones preserved the error for appeal, we would not find the court’s failure to state any factual findings on the issue to be error. The requirement that the court make findings of fact is to enable a reviewing court to understand the basis for the court’s decision. Davis v. Wilkerson (1986), 29 Ohio App.3d 100, 101, 29 OBR 112, 503 N.E.2d 210. Given the specific arguments raised in the motion to suppress, the basis for the court’s rulings is apparent to us.

II

{¶27} Jones argues that the court erred by refusing to find that the police conducted an illegal strip search of her person in the field. Although the female police officer testified that Jones’s undergarments were not removed, Jones’s fiancé testified that he saw Jones standing outside the police cruiser “disrobed from the waist down.” Jones argues that her fiancé’s testimony showed that her sweat pants had been removed while in the police cruiser, and that a strip search had been done. The court appeared to have difficulty reconciling the evidence on this point, for it stated that “we will never know whether or not the pants were on the Defendant, totally off the Defendant, on the car. In any event, I don’t believe that is relevant for purposes of whether or not this evidence should be suppressed.”

{¶ 28} We assume that the court decided that the resolution of the question whether Jones had been strip-searched was irrelevant because even had a strip search been conducted, it would have amounted to a statutory, not constitutional, violation to which Fourth Amendment exclusion of evidence would not apply.

{¶ 29} In Kettering v. Hollen (1980), 64 Ohio St.2d 232, 234-235, 18 O.O.3d 435, 416 N.E.2d 598, the Supreme Court stated: “The exclusionary rule has been applied by this court to violations of a constitutional nature only.” It went on to hold that “[i]t is clear * * * that the exclusionary rule will not ordinarily be applied to evidence which is the product of police conduct violative of state law but not violative of constitutional rights.” In State v. Jones (2000), 88 Ohio St.3d 430, 727 N.E.2d 886, the Supreme Court held that the rule about violations of statutory rights not giving rise to the exclusion of evidence was not absolute. It found that a full custodial arrest for a minor misdemeanor violated the Fourth Amendment, even though the arrest was only a violation of statute. The validity of this holding may be in question, however, as in Atwater v. Lago Vista (2001), 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549, the United States Supreme Court rejected the idea that a full custodial arrest for the violation of a misdemeanor violated the Fourth Amendment. See State v. Weideman, 94 Ohio St.3d 501, 764 N.E.2d 997, 2002-Ohio-1484, 764 N.E.2d 997 (Cook, J., concurring in judgment only). We agree with Justice Cook’s concurring opinion and believe that Jones cannot be considered viable precedent. The Ohio Supreme Court decided Jones on the basis of United States Supreme Court precedent, not Ohio precedent. Because it did not set forth an independent basis for its decision under the Ohio Constitution, we believe that the Ohio Supreme Court would likely disapprove of its holding in Jones, at least insofar as it relied on federal law as a basis for its decision.

{¶ 30} R.C. 2933.32(A)(2) defines a “strip search” as:

{¶ 31} “[A]n inspection of the genitalia, buttocks, breasts, or undergarments of a person that is preceded by the removal or rearrangement of some or all of the person’s clothing that directly covers the person’s genitalia, buttocks, breasts, or undergarments and that is conducted visually, manually, by means of any instrument, apparatus, or object, or in any other manner while the person is detained or arrested for the alleged commission of a misdemeanor or traffic offense.”

{¶ 32} A law enforcement officer may conduct a strip search if that officer “has probable cause to believe that the person is concealing evidence of the commission of a criminal offense, including fruits or tools of a crime, contraband, or a deadly weapon * * See R.C. 2933.32(B)(2). There are, of course, serious limitations to how the police may carry out strip searches. In Hidey v. Ohio State Hwy. Patrol (Sept. 22, 1998), Franklin App. No. 97API12-1587, 1998 WL 655277, the Tenth District Court of Appeals stated:

{¶ 33} “R.C. 2933.32 places express limitations on the manner in which strip searches are to be conducted. First, unless there is a valid medical emergency, a warrant must be obtained authorizing the search. Thus, probable cause to believe that the person is concealing evidence of the commission of a criminal offense is required. R.C. 2933.32(B)(2). Second, the permission of the individual in command of the law enforcement agency must also be obtained prior to a search. R.C. 2933.32(B)(5). Provided a warrant is issued and permission obtained, the search must be performed by a person of the same sex, in a manner and in a location that permits only the person or persons who are physically conducting the search and the person who is being searched to observe. R.C. 2933.32(B)(6).”

{¶ 34} The court’s disinclination to resolve the evidentiary conflict between Jones’s flaneé and the police officer who conducted the patdown likely meant that it believed that even had a strip search been conducted in violation of R.C. 2933.32(B), that violation did not rise to the level of constitutional error. We agree that no constitutional violation arose because a unique level of urgency arose when Jones freed one hand from the handcuffs and placed it in her sweat pants. The female police officer would have been justified in thinking that Jones was trying to hide evidence. Under these circumstances, the police officer acted properly to prevent the destruction of evidence, a step asserting a legitimate governmental interest that outweighs the intrusion into Jones’s liberty.

Ill

{¶ 35} Finally, Jones argues that her act of handing the contraband to the jail matron after being brought in for a body-cavity search did not render her compliance consensual, nor did it negate the legality of the initial stop.

{¶ 36} To the extent that this argument questions the validity of the initial stop, we reject it for the reasons previously stated.

{¶ 37} As to the voluntary nature of her handing over the drugs, we find that Jones did not raise this as an issue in her motion to suppress. Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889, paragraph one of the syllabus, states that an accused who seeks the suppression of evidence obtained during a warrantless search or seizure must “raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis for the challenge.” See, also, State v. Davis (Mar. 14, 2002), Cuyahoga App. No. 79771, 2002 WL 407895.

{¶ 38} Jones’s motion to suppress did not raise the voluntariness of her act of handing the drugs to the matron — she raises it for the first time on appeal. We therefore decline to address it.

Judgment affirmed.

Ann Dyke, J., concurs. Anne L. Kilbane, J., dissents.