State v. Purley

2019 Ohio 3931

State of Ohio Appellee v. Roosevelt Purley Appellant

Court of Appeals No. WD-18-011

COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

September 27, 2019

Trial Court No. 2016CR0530

DECISION AND JUDGMENT

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

Neil S. McElroy, for appellant.

OSOWIK, J.

{¶ 1} This is an appeal from an October 26, 2017 judgment of the Wood County Common Pleas Court denying appellant's motion to suppress.

{¶ 2} Procedurally, appellant was indicted on December 8, 2016, on one count of Possession of Cocaine, in violation of R.C. 2925.11(A) and 2925.11(C)(4)(c), a felony of the third degree and one count of Trafficking in Cocaine, in violation of R.C. 2925.03(A)(2) and 2925.03(C)(4)(d), a felony of the third degree.

{¶ 3} On May 4, 2017, appellant filed a motion to suppress and a hearing on the motion was held on August 10, 2017. The court denied the motion to suppress on October 26, 2017. On December 22, 2017, appellant then pled no contest to the charges specified in the indictment. A sentencing hearing was held on February 9, 2018, at which time count one was merged into count two and appellant was sentenced to a 30-month prison term. Appellant appeals from the February 12, 2018 journalized sentencing order and he presents a single assignment of error as follows:

First Assignment of Error: The trial court erred to the prejudice of Mr. Purley when it denied his motion to suppress.

Standard of Review

{¶ 4} The review of a motion to suppress is a mixed question of law and fact. State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 32, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In evaluating the motion to suppress, the trial court acts as the finder of fact and, therefore, is in the best position to resolve factual questions and evaluate the credibility of witnesses. Burnside at ¶ 8.

"An appellate court independently reviews a challenged suppression ruling to determine whether, given the established facts, the ruling meets the appropriate legal standard. No deference is afforded the trial court's conclusions of law." State v.Barnhart, 6th Dist. Huron No. H-10-005, 2011-Ohio-2693, ¶ 11, citing Burnside at ¶ 8 and State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).

{¶ 5} In this case, the only testimony that was presented was that of Officer (detective) Frederick R. Smith of the Hancock County Sheriff's Office in Findlay, Ohio.

{¶ 6} The detective testified that his office had initiated a truck stop prostitution investigation in cooperation with the Wood County Sheriff's Office. The undercover officers would initiate contact with various females through use of an internet site known as backpage.com where it was believed to be a "common area where people will advertise for escort services."

{¶ 7} In this instance a time and date for a rendezvous was established at a Petro truck stop located in Wood County, Ohio. As the clock ticked away, the female contact indicated to the task force that she was arriving at the truck stop just in time for her scheduled engagement. Surveillance noticed a female exiting a silver Lincoln sedan that pulled into the McDonald's drive-through area which was adjacent to the truck stop. Another detective met the female a slight distance away from the McDonald's, verified that she was the person with whom he spoke with, and made an agreement for a sexual act and a dollar amount. She was then arrested.

{¶ 8} The vehicle from which she had emerged had just departed the drive-through area and was now parked. The driver had just gotten out of the vehicle and was approaching the building. At this point, Detective Smith and Officer Webb approached the car. A third officer met with the driver. Smith testified that in the event that someoneremained in the vehicle that was the subject of surveillance, the practice would be to have them get out of the vehicle, "speak with them, make sure they don't have any weapons and try to determine if they were an active participant in arrangements or if they were just there, if they have any knowledge basically is what we're looking for."

{¶ 9} Only the appellant remained in the vehicle and he was seated in the passenger right front seat. He was eating a sandwich. There was no testimony concerning which epigastric delight was selected by appellant from the menu board at the drive-through. We are left to speculate as to whether this exquisite sandwich was an Artisan Grilled Chicken, a Big Mac® or the ever tasty Filet-O-Fish&reg. Regardless, appellant was completely consumed by this sandwich at that moment. As he relished each morsel, appellant made it well known that he was not going to be distracted by the officers that surrounded the vehicle. Officer Webb approached the driver's side door. Through the closed window, Webb ordered appellant to put his sandwich down and place his hands on the dash. Appellant resolutely ignored him as he religiously continued enjoying his snack, as if it were his last supper. Webb again issued his command and was met with the same cool disinterest by appellant. Ultimately, Webb reached through the window of the drivers' side and unlocked the doors. Officer Smith then opened the passenger side door where appellant was seated. At this point, appellant put his sandwich in the bag, seemingly with hopeful intent of returning and finishing this mouthwatering delight after he begrudgingly attended to the officers' inquiry. Smith grabbed hold of appellant's right hand and escorted him out of the vehicle to the back trunk area on the side of the car.

{¶ 10} Officer Smith noticed that appellant kept his "left hand right up against his body near his pocket and belt area." Smith instructed him to take his hands away and to "show me his hand." When appellant refused, the officer "grabbed hold of it." Smith was concerned that appellant was "trying to cover, whether it be a gun, a knife, anything, or he could be keeping it back in order to assault me."

{¶ 11} While engaging in a pat down and running his hands down the outside of appellant's pants to determine if he had any weapons, the officer noticed a crinkling of a plastic bag and then felt something hard in his left pocket. Smith reached into appellant's left pocket and pulled out a "bundle of money with some cards in it and also a plastic bag that had a brownish substance in it." He suspected the substance was heroin. Appellant was ultimately indicted on one count of Possession of Cocaine and one count of Trafficking in Cocaine.

{¶ 12} The first task in our review of appellant's sole assignment of error is to determine at what point in this encounter with the police that the Fourth Amendment becomes relevant. Terry v. Ohio, 392 U.S. 1, 4, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{¶ 13} The Fourth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or other things to be seized."

{¶ 14} Article I, Section 14 of the Ohio Constitution utilizes similar language:

The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized.

{¶ 15} Historically, the protections afforded by Article I, Section 14 of the Ohio Constitution have been construed as coextensive with the protections of the Fourth Amendment of the United States Constitution. State v. Geraldo, 68 Ohio St.2d 120, 125-26, 429 N.E.2d 141 (1981).

{¶ 16} However, in certain circumstances, the Supreme Court of Ohio has construed Article I, Section 14 of the Ohio Constitution as providing greater protection than the Fourth Amendment to the United States Constitution. For example, searches and seizures conducted by members of law enforcement who lack authority to make an arrest. State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, ¶ 23.

{¶ 17} The touchstone of any analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

{¶ 18} The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. Katz v. United States, 389 U.S. 347, 359, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

{¶ 19} In keeping with this principle, both the Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and Article I, Section 14 of the Ohio Constitution, prohibit the government from conducting warrantless searches and seizures, subject to certain exceptions. Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions. State v. Limoli, 10th Dist. Franklin No. 11AP-924, 2012-Ohio-4502, ¶ 20, citing State v. Fowler, 10th Dist. Franklin No. 10AP-658, 2011-Ohio-3156, ¶ 11-12. Common exceptions to the warrant requirement include a consensual encounter with a police officer and an investigative detention, commonly referred to as a Terry stop. State v. Wintermeyer, 2017-Ohio-5521, 93 N.E.3d 397, ¶ 13-15 (10th Dist.), appeal allowed, 152 Ohio St.3d 1405, 2018-Ohio-723, 92 N.E.3d 877.

{¶ 20} Since...