State v. Payne

2024 Ohio 396

• Court: Ohio Court of Appeals
• Decided: February 5, 2024
• Docket: 2023-L-059
• Status: Published

Opinion

[Cite as State v. Payne, 2024-Ohio-396.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

STATE OF OHIO, CASE NO. 2023-L-059

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

STEVEN A. PAYNE, Trial Court No. 2022 CR 000874 Defendant-Appellant.

OPINION

Decided: February 5, 2024 Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, Teri R. Daniel, Assistant Prosecutor, and Lisa A. Neroda, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Steven Payne, appeals the trial court’s denying his motion to

suppress evidence. He asserts that: (1) there were no specific and articulatable facts to

warrant his search and seizure; and (2) the Lake County Sheriff’s Department lacked

probable cause to arrest him. For the following reasons, we affirm the judgment of the

Lake County Court of Common Pleas. Procedural History

{¶2} On September 30, 2022, the Lake County Grand Jury indicted Appellant on

seven counts: (1) Aggravated Possession of Drugs, a third-degree felony in violation of

R.C. 2925.11 with a forfeiture specification; (2) Obstructing Official Business, a fifth-

degree felony in violation of R.C. 2921.31; (3) Possession of Drugs, a fifth-degree felony

in violation of R.C. 2925.11; (4) Illegal Use or Possession of Drug Paraphernalia, a fourth-

degree misdemeanor in violation of R.C. 2925.14; (5) Criminal Trespass, a fourth-degree

misdemeanor in violation of R.C. 2911.21(A)(1); (6) Resisting Arrest, a first-degree

misdemeanor in violation of R.C. 2921.33(B); and (7) Disorderly Conduct, a minor

misdemeanor in violation of R.C. 2917.11.

{¶3} On December 22, 2022, Appellant pled not guilty to the charges.

{¶4} On December 29, 2022, Appellant moved to suppress the evidence the

state sought to introduce at trial (drugs found in his bag following a search after his arrest).

In his motion, Appellant asserted the officers had unlawfully arrested him and that there

were no specific or articulatable facts to warrant his search and seizure.

{¶5} On February 21, 2023, the court held a suppression hearing on Appellant’s

motion. Deputy Joe Samac, Lieutenant Robert Harps, and Lieutenant Kevin Raico of the

Lake County Sheriff’s Office testified at the hearing. On February 23, 2023, the court

denied Appellant’s motion. The trial court, in denying Appellant’s motion, found the

officers had probable cause to arrest Appellant for Obstructing Official Business.

{¶6} On March 24, 2023, Appellant moved to withdraw his “not guilty” plea and

change his plea to “no contest” on counts one and three. The court held a change of plea

Case No. 2023-L-059 hearing and, on March 29, 2023, accepted his “no contest” plea. The state dismissed the

remaining counts of the indictment.

{¶7} On May 3, 2023, the court sentenced Appellant to five years on community

control.

Factual History

{¶8} Deputy Joe Samac, Sergeant Robert Harps, and Lieutenant Kevin Raico

testified to the following facts at the February 21, 2023 suppression hearing:

{¶9} On August 5, 2022, Deputy Samac arrived at the Lake County

Administrative Building to provide security services. Upon arrival, an employee advised

him “that there was someone outside screaming obscenities and pacing back and forth

with his shirt off.”

{¶10} Deputy Samac proceeded outside and “recognized the gentleman” as

Appellant. He then “radioed dispatch” to notify the Lake County Sheriff’s Office that he

was outside the administrative building with Appellant. Deputy Samac observed that

Appellant had all of his personal effects spread about 15 yards down the sidewalk and he

was pacing back and forth screaming obscenities about the court and how the court had

treated him. Appellant was moving “back and forth to his duffle bag * * * he was pacing

back and forth, he appeared to be sweating profusely and he just kept yelling f*** the

Court repeatedly and pointing towards the area of the courthouse.” Deputy Samac,

attempting to approach Appellant in a calm manner, “basically told him hey, while your

phone is charging why don't you start getting together your belongings and get moving.”

Deputy Samac observed that Appellant had become “increasing[ly] agitated * * * He

started stepping towards me in a threatening manner and it was at that point where I 3

Case No. 2023-L-059 radioed in and advised dispatch to have my backup step it up.” Deputy Samac drew his

taser on Appellant and “was yelling commands for [Appellant] to get down on the ground

and he was not complying.”

{¶11} As Deputy Samac commanded Appellant to obey orders, Lieutenant Raico

arrived and “immediately went hands on” with him. Lieutenant Raico pushed Appellant

against the wall. Deputy Samac “dry stunned” Appellant with his taser, but it had very

little effect. Lieutenant Raico pushed Appellant to the ground. Appellant “was resisting

continually, Lieutenant Raico managed to get one cuff secured and then the fight, the

fight continued and like 20 seconds later [Appellant] was able to get up with one handcuff

on and he proceeded to run from us toward Main Street.”

{¶12} Sergeant Harps arrived and pursued Appellant as he ran. Sergeant Harps

“told [Appellant] to stop running, to stop. He failed to do so, I pulled out my Taser, I fired

one shot towards [him] which did not hit.” Appellant then “made an abrupt stop at the

corner, put his hands up and faced [Sergeant Harps].” Appellant told Sergeant Harps “to

not to tase him again.” Sergeant Harps instructed Appellant “to get on the ground and he

was slowly backing up in the middle of the street and then started to comply with the

commands and sat down on the ground and he was able to be cuffed and placed under

arrest.”

{¶13} After Appellant’s arrest, officers searched his bag, which was still located at

the administrative building. In it, they found multiple rocks, a white substance believed to

be crystal meth, and a syringe.

Law and Analysis

{¶14} Appellant timely appealed and raises one assignment of error: 4

Case No. 2023-L-059 {¶15} “The trial court erred by denying the Defendant-Appellant’s motion to

suppress in violation of his due process rights and rights against unreasonable search

and seizure and unlawful arrest as guaranteed by the Fourth, Fifth, and Fourteenth

Amendments to the United States Constitution and Article I, sections 10 and 14 of the

Ohio Constitution.”

{¶16} “Appellate review of a motion to suppress presents a mixed question of law

and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

At a hearing on a motion to suppress, the trial court, as the trier of fact, is in the best

position to weigh the evidence by resolving factual questions and evaluating the credibility

of witnesses. Id.; State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). As a

result, an appellate court must accept the trial court's findings of fact if they are supported

by competent, credible evidence. Id. An appellate court reviews the trial court's

application of the law to its factual findings de novo. State v. Belton, 149 Ohio St.3d 165,

2016-Ohio-1581, 74 N.E.3d 319, ¶ 100. Accepting the facts as true, the reviewing court

then must independently determine, without deference to the trial court, whether the trial

court properly applied the substantive law to the facts of the case. Burnside, citing State

v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

{¶17} Appellant argues that the trial court erred in denying his motion to suppress

because: (1) no specific and articulable facts existed to warrant his search and seizure;

and (2) the officers did not have probable cause to lawfully arrest him.1

1. Appellant did not independently assert below or on appeal that the search of his bag was unlawful. Rather, he argued that the bag and its contents were seized pursuant to an illegal arrest and therefore inadmissible “fruits of the poisonous tree.” Because he failed to raise the issue, we do not address whether the officers lawfully searched his bag. 5

Case No. 2023-L-059 {¶18} The Fourth Amendment to the United States Constitution protects “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” Article I, Section 14 of the Ohio Constitution

contains virtually identical language. An arrest is “quintessentially a seizure” that is

subject to the Fourth Amendment and must be reasonable. Payton v. New York, 445

U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

{¶19} “Whether [an] arrest was constitutionally valid depends * * * upon whether,

at the moment the arrest was made, the officers had probable cause to make it.” Beck v.

Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). “A warrantless arrest that is

based upon probable cause and occurs in a public place does not violate the Fourth

Amendment” to the United States Constitution. State v. Brown, 115 Ohio St.3d 55, 2007-

Ohio-4837, 873 N.E.2d 858, ¶ 66, citing United States v. Watson, 423 U.S. 411, 96 S.Ct.

820, 46 L.Ed.2d 598 (1976).

{¶20} “A police officer has reasonable or probable cause to arrest when the events

leading up to the arrest, ‘viewed from the standpoint of an objectively reasonable police

officer, amount to’ probable cause.” State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470,

3 N.E.3d 135, citing Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134

L.Ed.2d 911 (1996). Probable cause is “defined in terms of facts and circumstances

‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was

committing an offense.’” Gerstein v. Pugh, 420 U.S. 103, 111-112, 95 S.Ct. 854, 43

L.Ed.2d 54 (1975).

{¶21} While probable cause means more than bare suspicion, it means less than

evidence that would justify conviction. State v. Pelsue, 11th Dist. Portage No. 95-P-0149,

Case No. 2023-L-059 1997 WL 286174 (May 23, 1997), quoting United States v. Thomas, 11 F.3d 620, 627

(6th Cir. 1993); see also State v. Losey, 11th Dist. Trumbull No. 94-T-5169, 1996 WL

200569 (Jan. 26, 1996) (“However, just because probable cause may exist, this does not

mean that the same quantum of evidence will suffice for a conviction.”)

{¶22} We first address Appellant’s argument that the officers conducted an

investigative stop and did not have specific and articulable facts to warrant Deputy

Samac’s “search and seizure” of Appellant prior to arresting him.

{¶23} An investigative stop is a detention in which “a police officer may stop and

investigate unusual behavior, even without probable cause to arrest, when he reasonably

concludes that the individual is engaged in criminal activity.” State v. Andrews, 57 Ohio

St.3d 86, 87, 565 N.E.2d 1271 (1991). In assessing that conclusion, the officer “must be

able to point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88

S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The standard against which the facts are

judged must be an objective one: “[W]ould the facts available to the officer at the moment

of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the

action taken was appropriate?” Id.

{¶24} The officers here did not conduct an investigative stop. Deputy Samac did

not “stop” Appellant to “investigate” his unusual behavior. Rather, he encouraged

Appellant to gather his belongings and “move on.” Appellant had an opportunity to leave,

but refused to. Prior to his arrest, the Officers did not search Appellant or his belongings.

The Officers also did not initially “seize” or “detain” Appellant; they asked him to leave.

Case No. 2023-L-059 {¶25} While the interaction began with a request for Appellant to leave the area of

the administrative building, ultimately (and there is no dispute that) the officers arrested

him. At bottom, an “arrest” is a substantial intrusion on a person’s Constitutionally

protected liberty interests. State v. Santiago, 195 Ohio App. 3d 649, 2011-Ohio-5292,

961 N.E.2d 264, ¶ 22 (2d Dist.). The question of precisely when the arrest occurred is

not insignificant here since Appellant argues there was no probable cause for the arrest

when it was made.

{¶26} In Ohio, an arrest has several elements, one of which is an actual or

constructive seizure or detention of the person. State v. Barker, 53 Ohio St. 2d 135, 139

(1978). Here, the evidence is clear that no one detained or seized Appellant at least up

to the time Deputy Samac drew his taser and began ordering Appellant to put his hands

up and get on the ground. While those actions may suggest a “constructive seizure,” we

also have the Deputy’s unrebutted testimony that he took them in response to Appellant’s

approaching him in a “threatening manner.” That does not clearly evince an intent to

arrest (which is another of the elements of an “arrest” in Ohio) as opposed to an intent to

protect himself. Id.

{¶27} That said, there likewise is little question that an arrest was in process when

Lieutenant Raico arrived at the scene and “went hands on” with Appellant. So, in

analyzing whether the officers had probable cause to arrest Appellant, we will consider

the evidence of the circumstances at that time.

{¶28} The state asserts probable cause existed to arrest Appellant because “[a]t

a minimum, Appellant’s actions exemplify a violation of R.C. 2921.31(A), Obstructing

Official Business.”

Case No. 2023-L-059 {¶29} R.C. 2921.31(A) provides: “No person, without privilege to do so and with

purpose to prevent, obstruct, or delay the performance by a public official of any

authorized act within the public official's official capacity, shall do any act that hampers or

impedes a public official in the performance of the public official's lawful duties.”

{¶30} The relevant facts and circumstances amply demonstrate that the officers

had probable cause to arrest Appellant for Obstructing Official Business. On August 5,

2022, Deputy Samac arrived to perform his official duty to provide security services at the

Lake County Administrative Building. An employee notified him upon arrival that

Appellant was outside, shirtless, screaming obscenities about a court. Acting within his

official capacity, Deputy Samac “calmly” asked Appellant to gather his belongings and

“move on.” Appellant did neither. He continued to “scream” at Deputy Samac, became

“increasingly agitated,” and behaved threateningly. From Deputy Samac’s objectively

reasonable standpoint, the facts and circumstances support that he had probable cause

to believe Appellant had purposefully prevented, obstructed, or delayed his performance

of, and impeded him in performing, his official duties. While the court did not convict

Appellant of Obstructing Official Business, the standard for finding probable cause to

execute a warrantless arrest is less than evidence that would justify a conviction. State

v. Pelsue, 11th Dist. No. Portage 95-P-0149, 1997 WL 286174 (May 23, 1997).

{¶31} The officers therefore had probable cause to arrest Appellant, believing that

he was committing, at least, Obstructing Official Business.

{¶32} Appellant’s assignment of error is without merit.

Case No. 2023-L-059 {¶33} The judgment of the Lake County Court of Common Pleas is affirmed.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

Case No. 2023-L-059