State v. Keller

2011 Ohio 5546

• Court: Ohio Court of Appeals
• Decided: October 28, 2011
• Docket: 24485
• Status: Published

Opinion

[Cite as State v. Keller, 2011-Ohio-5546.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24485

v. : T.C. NO. 09CR4151

KIMBERLY KELLER : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 28th day of October , 2011.

JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

PAUL D. GILBERT, Atty. Reg. No. 0010129, 120 W. Second Street, Suite 503, Dayton, Ohio 45402 Attorney for Defendant-Appellant

FROELICH, J.

{¶ 1} After the trial court overruled her motion to suppress evidence, Kimberly

Keller pled no contest to possession of crack cocaine, a fifth degree felony. The trial court

found her guilty and sentenced her to five years of community control. Keller appeals from 2

her conviction, claiming that the trial court erred in denying her motion to suppress. For the

following reasons, the trial court’s judgment will be affirmed.

I

{¶ 2} At the suppression hearing, the State presented the testimony of Detectives

David House and Douglas Hall, both of whom were assigned to the Narcotics Unit of the

Dayton police department. Their testimony established the following facts.

{¶ 3} At approximately 7:50 p.m. on December 9, 2009, Detective House was

“proactively” patrolling “high drug areas” of the city in an unmarked police car. When he

came to a red light at the intersection of Free Pike and Gettysburg Avenue, he stopped

behind a white GMC Envoy with out-of-county license plates. Because House was aware

that many individuals from outside of Montgomery County come to that area of Dayton to

purchase illegal drugs, House ran the license plate through his on-board computer system.

{¶ 4} The computer indicated that the vehicle was registered to Kimberly Keller,

and there was a description of Keller. The officer learned that Keller had two prior

drug-related “field interviews” with the Dayton police, that she was an admitted prostitute

and crack addict, that she had a drug conviction in 2003, and that, also in 2003, she had been

“nuisance abated” from an apartment where crack cocaine, crack pipes, and a handgun had

been found. When the Envoy turned southbound onto Gettysburg, House saw that the

driver matched Keller’s description. House decided to follow the Envoy.

{¶ 5} After a few miles, Keller’s vehicle turned into a residential neighborhood

where House had made numerous arrests related to vehicle-to-vehicle drug transactions.

After two quick left turns, the Envoy pulled to the right side of the street, parked, and turned 3

off its lights. House saw the passenger door open and a man, later identified as John Dixon,

exit the Envoy. House drove past the Envoy, turned around at the next street, and parked

along the curb, facing Keller’s vehicle. Although House did not observe Dixon get back

into the Envoy, it appears that Dixon got into the driver’s seat of the Envoy while House was

turning around.

{¶ 6} Within a couple of minutes, a black Mercedes pulled to the curb and parked

in front of the Envoy; the driver of the Mercedes got out and went into a residence.

(Detective House did not believe the driver of the Mercedes was involved in any unlawful

activity.) Almost immediately after the Mercedes parked, the Envoy pulled away from the

curb and circled the block. When the Envoy approached the same intersection where it had

previously parked, the Envoy again pulled to the curb and turned off its headlights; the

occupants remained in the vehicle. Detective House passed the Envoy, crossed the

intersection, and pulled into a driveway a few houses away from the Envoy.

{¶ 7} Within a few minutes, a white Yukon approached the Envoy from the

opposite direction. The Yukon pulled to the curb directly across from the Envoy and turned

off its lights. Dixon exited the driver’s seat of the Envoy, closed the door, walked around

the front of the Yukon, and got into the front passenger seat of the Yukon. Detective House

could not see what occurred inside the Yukon. However, after approximately one minute,

Dixon got out of the Yukon and back into the driver’s seat of the Envoy, and he drove off.

The Yukon also drove away.

{¶ 8} House testified that the Envoy’s and Dixon’s behavior were “very consistent

with narcotic transactions of this type that I’ve observed again on numerous occasions.” 4

Earlier that day, House had also received a complaint from an identified resident about

vehicle-to-vehicle drug transactions that she had observed in the neighborhood; the resident

lived two blocks away from where the Yukon and Envoy had stopped.

{¶ 9} House radioed to other officers to follow the Yukon; Detective House and

Detective Doug Hall, whom House had contacted, followed the Envoy in unmarked vehicles.

The Envoy drove to Third Street, then to Gettysburg, and onto U.S. Route 35. As Hall and

House followed the Envoy, Detective House heard radio reports that the Yukon was fleeing

from the other officers by running stop signs. Detective Hall drove past the Envoy and got

in front of it. When Hall, House, and the Envoy stopped at a red light at the U.S. Route 35

and Abbey Road intersection (with Hall in front of the Envoy and House behind it), House

activated his red and blue flashing lights, and the detectives exited their vehicles and

approached the Envoy.

{¶ 10} Detective Hall approached the passenger side of the Envoy and made contact

with Keller. He asked Keller to exit the vehicle, and she complied. Hall provided Miranda

warnings to Keller; Keller indicated that she understood them and was willing to talk to him.

Keller subsequently told Hall that she had illegal drugs and drug paraphernalia concealed

on her person. Hall contacted a female officer, who transported Keller to the police station

and retrieved the drugs.

{¶ 11} Keller was indicted for possession of crack cocaine in an amount less than

one gram. She moved to suppress the drugs, arguing that the stop was unlawful. After a

hearing, the trial court denied Keller’s motion. Keller subsequently pled no contest to the

charge, and she was sentenced accordingly. 5

II

{¶ 12} In her sole assignment of error, Keller claims that the trial court should have

granted her motion to suppress, because “the officers did not have sufficient basis to stop

defendant and defendant’s vehicle.”

{¶ 13} In addressing a motion to suppress, the trial court assumes the role of the trier

of fact. State v. Morgan, Montgomery App. No. 18985, 2002-Ohio-268, citing State v.

Curry (1994), 95 Ohio App.3d 93, 96. The court must determine the credibility of the

witnesses and weigh the evidence presented at the hearing. Id. In reviewing the trial

court’s ruling, an appellate court must accept the findings of fact made by the trial court if

they are supported by competent, credible evidence. Id. However, “the reviewing court

must independently determine, as a matter of law, whether the facts meet the appropriate

legal standard.” Id.

{¶ 14} The Fourth Amendment to the United States Constitution protects individuals

from unreasonable searches and seizures. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868,

20 L.Ed.2d 889. Under Terry, police officers may briefly stop and/or temporarily detain

individuals in order to investigate possible criminal activity if the officers have a reasonable,

articulable suspicion that criminal activity may be afoot. State v. Martin, Montgomery App.

No. 20270, 2004-Ohio-2738, ¶10, citing Terry, supra. An individual is subject to an

investigatory detention when, in view of all the circumstances surrounding the incident, by

means of physical force or show of authority, a reasonable person would have believed that

she was not free to leave or was compelled to respond to questions. United States v.

Mendenhall (1980), 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497; Terry, 392 U.S. at 6

16, 19.

{¶ 15} “Reasonable suspicion entails some minimal level of objective justification

for making a stop – that is, something more than an inchoate and unparticularized suspicion

or ‘hunch,’ but less than the level of suspicion required for probable cause.” State v. Jones

(1990), 70 Ohio App.3d 554, 556-557, citing Terry, 392 U.S. at 27. We determine the

existence of reasonable suspicion of criminal activity by evaluating the totality of the

circumstances, considering those circumstances “through the eyes of the reasonable and

prudent police officer on the scene who must react to events as they unfold.” State v.

Heard, Montgomery App. No. 19323, 2003-Ohio-1047, ¶14, quoting State v. Andrews

(1991), 57 Ohio St.3d 86, 87-88.

{¶ 16} Keller argues that most of the observations used by Detective House to justify

the stop of her vehicle were consistent with innocent conduct. She argues that the detective

should not have relied on the field interviews and her past conviction, because they were

six years old and thus the information was stale. She further asserts that her presence in an

area with high drug activity, standing alone, was insufficient to justify the stop of her

vehicle. Finally, she argues that the detective should not have relied on reports that the

Yukon was fleeing, particularly when she was not in the Yukon and the State did not

establish that the Yukon’s alleged flight was motivated by the presence of the police.

{¶ 17} Upon review of the totality of the circumstances, viewed from the perspective

of a reasonable and prudent police officer, we conclude that Detective House had a

reasonable and articulable suspicion of criminal activity to justify his stop of the Envoy.

House initially decided to follow the Envoy due to its out-of-county plates and the 7

information regarding Keller’s past field interviews, “nuisance abatement,” and drug

conviction. However, House did not initiate a Terry stop on that basis.

{¶ 18} House testified that he had nineteen years of experience, that he had

participated in “literally thousands” of drug investigations, and that the Envoy’s behavior

upon entering the residential neighborhood was consistent with vehicle-to-vehicle drug

transactions. The Envoy went to a quiet residential street, pulled to the curb, and shut off its

lights; there is no evidence that the occupants entered a residence. When a resident parked

in front of the Envoy, the Envoy circled the block and parked near the same intersection.

Within minutes, the Yukon arrived and pulled to the curb across from the Envoy. Dixon

exited the Envoy, went into the Yukon for approximately a minute, and then both vehicles

drove away. Although Detective House did not observe what occurred inside the Yukon,

based on his experience, the detective had a reasonable and articulable basis to believe that

he had witnessed a vehicle-to-vehicle drug transaction.

{¶ 19} Keller correctly states that the Envoy’s presence in a high drug area, standing

alone, would not have been sufficient to justify a stop of the vehicle. E.g., State v. Belcher,

Montgomery App. No. 24385, 2011-Ohio-5015, ¶31. Nevertheless, in viewing the totality

of the circumstances, House was permitted to consider that an identified resident who lived

two blocks away had complained of vehicle-to-vehicle drug transactions occurring in the

neighborhood that day and, also, that the events occurred in a neighborhood where such drug

activity was common. The fact that the Yukon may have fled from other Dayton police

officers upon leaving the neighborhood further buttressed House’s reasonable belief that a

drug transaction had occurred. 8

{¶ 20} Keller further argues that all of the conduct of the Envoy’s occupants may

have constituted innocent acts. While a series of events may appear innocent when viewed

separately, taken together, they can warrant further investigation. E.g., State v. Jarnigan,

Montgomery App. No. 22682, 2009-Ohio-1640; State v. White, Montgomery App. No.

18731, 2002-Ohio-262, citing United States v. Sokolow (1989), 490 U.S. 1, 9-10, 109 S.Ct.

1581, 1587, 104 L.Ed.2d 1. “[I]t is the very essence of Terry to permit officers to briefly

detain an individual for investigation in order to resolve ambiguity in their conduct.” State

v. Carter, Montgomery App. No. 21145, 2006-Ohio-2823, ¶15. See, also, State v. Todd,

Montgomery App. No. 23921, 2011-Ohio-1740.

{¶ 21} Based on the totality of the circumstances, Detective House had a reasonable

and articulable suspicion that an occupant of the Envoy had engaged in a drug transaction.

Accordingly, the police were justified in stopping that vehicle, in which Keller was a

passenger at the time of the stop.

{¶ 22} Keller’s assignment of error is overruled.

III

{¶ 23} The trial court’s judgment will be affirmed.

DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Johnna M. Shia Paul D. Gilbert Hon. Gregory F. Singer