[Cite as State v. Belcher,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24385

vs. : T.C. CASE NO. 10CR2436/1

JOSHUA M. BELCHER : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 30th day of September, 2011.

. . . . . . . . .

Mathias H. Heck, Jr., Prosecuting Attorney; Laura M. Woodruff, Asst. Pros. Attorney, Atty. Reg. No. 0084161, P.O. Box 972, Dayton, OH 45422 Attorney for Plaintiff-Appellee

Charles W. Slicer, III, Atty. Reg. No. 0059927, 111 W. First Street, Suite 518, Dayton, OH 45402 Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Defendant, Joshua M. Belcher, appeals from his two

convictions for theft, which were entered on Belcher’s pleas of

no contest after the trial court overruled Defendant’s motion to 2

suppress evidence.

{¶ 2} Belcher and two co-defendants were charged by indictment

with two counts of theft, R.C. 2913.02(A)(1). Count One alleged

that Belcher and his co-defendants had stolen property having a

total value of five hundred dollars or more from nine different

persons, a second degree felony. Count Two alleged that Belcher

and one co-defendant had stolen a credit card belonging to another,

which per R.C. 2913.71(A) is a fifth degree felony. Belcher

entered not guilty pleas.

{¶ 3} Belcher filed a Crim.R. 12(C)(3) motion to suppress

evidence. (Dkt. 12). The motion sought to suppress “all evidence

obtained from Defendant who was a passenger in an automobile” and

“all evidence obtained as a result of information obtained from

Defendant as the result of the stop of Defendant who was a passenger

in an automobile.” The motion further states:

{¶ 4} “As grounds for this Motion, Defendant asserts that the

stop and search of Defendant and the subsequent seizure of evidence

was accomplished without the benefit of a duly issued and executed

search warrant or was outside the scope of a duly issued and

authorized search warrant, was not conducted with the knowledgeable

consent of the Defendant, was not based upon probable cause, nor

within the scope of a search incident to a lawful arrest. Further,

it does not appear that exigent circumstances required an immediate 3

search of Defendant. Such a search and seizure constitutes a

denial of Defendant’s right as guaranteed by the Fourth Amendment

to the United States Constitution and by the Constitution of the

State of Ohio.

{¶ 5} “Defendant further asserts that any statements made by

the Defendant to any law enforcement officers were obtained in

violation of Defendant’s rights guaranteed by the Fifth and

Fourteenth Amendment to the United States Constitution and by

Article One of the Ohio constitution, as such statements were not

made voluntarily and were made without the benefit of counsel,

without full and adequate explanation of Defendant’s rights, and

without a knowing and intelligent waiver of these rights.”

{¶ 6} The Memorandum In Support of Defendant’s motion to

suppress identified no statement Defendant had made or other

“information” police obtained from him. Indeed, the facts leading

to Defendant’s arrest which are set out in the Memorandum explain

that Defendant was stopped, searched, and arrested while he and

his two co-defendants were “walking down the street,” which belies

Defendant’s assertion that he was a “passenger in an automobile.”

Further, the arguments Defendant presented in the Memorandum are

limited to a contention that the officer who detained him lacked

a reasonable and articulable suspicion of criminal activity

required by Terry v. Ohio (1968),

,

, 20

, in order to stop and detain Defendant and his

companions, rendering any evidence derived from that illegality

subject to suppression.

{¶ 7} The court held a hearing on Defendant’s motion to

suppress evidence on October 12, 2010. The only witness called

to testify was Clayton Police Officer Howard Titus, who was called

by the State. At the conclusion of the evidence, the court heard

arguments. Defendant argued that he was stopped and detained by

Officer Titus illegally, because the officer lacked the necessary

reasonable and articulable suspicion of criminal activity required

by Terry. (T. 24-25). The State argued that the officer acted

on a reasonable and articulable suspicion of criminal activity,

because articles seen in plain view in Defendant’s backpack

reasonably connected him to theft offenses that had occurred in

that area. The court took the matter under advisement.

{¶ 8} On October 27, 2010, the court made the following oral

findings of fact:

{¶ 9} “Officer Howard Titus of the Clayton Police Department

was working on August the 7th, 2010. He was working the day shift,

which is 5:45 a.m. to 2:00 p.m. He’s been with Clayton since 1988,

and is a part-time patrol officer working one to two days a week.

{¶ 10} “On his way to work at approximately 5:20 a.m. on Old

Salem Road in the city of Clayton, he observed three males walking 5

in the grass. It was dark. He found it unusual, because foot

traffic is rare in that area, particularly given the time of the

morning, also. He did not recognize any of the individuals, but

was aware that there had been significant recent criminal activity

in the area, including thefts from vehicles, garages, and

residential burglaries. Those individuals were within one quarter

of a mile of the police department. There is no sidewalk in that

area and the individuals were walking in the grass.

{¶ 11} “Officer Titus had taken recent reports in the area

involving events in the overnight hours that involved theft

offenses. Officer Titus was in the uniform of the day. He went

to the police station, got in a marked cruiser and returned then

to the area, saw the same three individuals in the area of Taywood

and Old Salem.

{¶ 12} “He approached those individuals in his vehicle. He

observed one of those individuals, the defendant, Mr. Belcher,

carrying a backpack. As he was pulling – it was at a fire station

– as he was pulling into that area, Mr. Belcher put the backpack

down, walked away from it, and then Mr. Belcher and the two

individuals with him approached Officer Titus.

{¶ 13} “Officer Titus sought to identify the three individuals,

because he felt it was unusual for there to be pedestrian traffic

in that neighborhood at that time of the day. One of the 6

individuals said that they were looking for Main Street, but they

were walking in the opposite direction.

{¶ 14} “Officer Titus called for backup. Mr. Belcher appeared

to be nervous. Mr. Belcher and the two people he was with

approached Officer Titus. They were patted down. The backpack

was retrieved from near a vehicle and it contained a radar detector,

a purse and a power cord. None of the individuals had

identification and they were arrested approximately 20 feet from

the backpack.

{¶ 15} “The Court first finds that the defendant had no standing

to challenge the search of the backpack. The protection afforded

by the Fourth Amendment does not implicate – is not implicated

in every situation between the police and a citizen. The test

to determine whether a person has been seized is whether, in view

of all the circumstances, a reasonable person would believe that

he was not free to leave. There’s no evidence that the officer

physically – well, even if that were the case, the defendant

abandoned the backpack long before any seizure took place. An

individual does not have standing to object to a search of property

that he has voluntarily abandoned.

{¶ 16} “Abandoned property is determined – is a question of

intent and is inferred from words spoken, acts done, and other

objective facts. The Court determines that the property was 7

abandoned, as the defendant put it down, near a vehicle, walked

away from it, evidencing his intention to abandon it. Therefore,

the defendant did not have standing to object to the search of

that property, and his motion is overruled in its entirety. The

Motion to Suppress is overruled.” (T. 2-4).

{¶ 17} Defendant subsequently entered no contest pleas to the

two theft offenses. He was sentenced to serve two concurrent

twelve month terms of incarceration, to pay restitution to the

victims of his theft offenses, and to serve three year terms of

post-release control. Defendant filed a notice of appeal.

ASSIGNMENT OF ERROR

{¶ 18} “THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION

TO SUPPRESS.”

{¶ 19} Defendant argues that the trial court erred when it

overruled his motion to suppress evidence, again relying on the

Terry violation he argued in the trial court.

{¶ 20} The State argues that the trial court did not err when

it found that Defendant abandoned the backpack and its contents.

Alternatively, the State argues that the entire incident was a

consensual encounter, to which the Fourth Amendment has no

application.

{¶ 21} Encounters are consensual where the police merely

approach a person in a public place, engage the person in 8

conversation, request information, and the person is free not to

answer and walk away. United States v. Mendenhall (1980),

,

,

; State

v. Cook, Montgomery App. No. 20427,

. If the

person’s liberty is restrained by police, however, a seizure has

occurred which implicates the Fourth Amendment protections and

requires legal justification. Mendenhall; State v. Gonsior

(1996),

.

{¶ 22} A seizure occurs when, in view of all of the circumstances

surrounding the incident, the police officer has either by physical

force or a show of authority restrained the person’s liberty so

that a reasonable person would not feel free to decline the

officer’s requests and walk away or otherwise terminate the

encounter. Mendenhall; State v. Williams (1990),

; Cook. Factors that might indicate a seizure include the

threatening presence of several police officers, the display of

a weapon, some physical touching of the person, the use of language

or tone of voice indicating that compliance with the officer’s

request might be required, approaching the person in a non-public

place, and blocking the citizen’s path. Mendenhall; Cook.

{¶ 23} When Officer Titus approached the three men he asked

the three men to “step over here.” Officer Titus introduced

himself and told the men he had stopped them because he didn’t 9

recognize them and there had been a lot of problems with vehicle

break-ins and thefts in that area, and he wanted to identify them.

Officer Titus patted each man down, and then ran each man’s name

and identifying information through the computer in his police

cruiser.

{¶ 24} Officer Titus clearly indicated that the men were to

remain where they were while he ran their names, saying: “hang

on for a second, gentlemen, make sure you’re not wanted and we’ll

go from there.” Officer Titus admitted that the men were not free

to leave, and that he would have pursued them had they run. None

of the men had any outstanding warrants. While Officer Titus was

obtaining that information, police back-up arrived. Officer Titus

then walked over to where Defendant had put down the backpack and

looked at it. In the top of the open backpack, Officer Titus

observed a radar detector, a woman’s purse, and a power cord.

At that point Officer Titus arrested Defendant for theft.

{¶ 25} Based upon these facts, we conclude that while the

encounter between Defendant and Officer Titus began as a consensual

encounter, it developed into a Terry investigative stop that

involved a seizure of Defendant’s person. Mendenhall. In our

judgment, under these circumstances, which include Officer Titus’

request for the men to “step over here” and remain there while

he ran their names and identifying information, a direction with 10

which the men complied, a reasonable person would not have felt

free to ignore Officer Titus’ directions and walk away.

This

seizure of Defendant’s person required legal justification in order

to be lawful. Gonsior.

{¶ 26} In State v. Cosby,

,

, this court observed:

{¶ 27} “Warrantless searches and seizures are per se

unreasonable under the Fourth Amendment, subject to only a few

well-recognized exceptions. Katz v. United States (1967),

,

,

. One of those exceptions is the

rule regarding investigative stops, announced in Terry,

,

,

, which provides that a police

officer may stop an individual to investigate unusual behavior,

even absent a prior judicial warrant or probable cause to arrest,

where the officer has a reasonable, articulable suspicion that

specific criminal activity may be afoot.

{¶ 28} “An officer's inchoate hunch or suspicion will not

justify an investigatory stop. Rather, justification for a

particular seizure must be based upon specific and articulable

facts that, taken together with the rational inferences from those

facts, reasonably warrant that intrusion. The facts must be judged

against an objective standard: whether the facts available to the

officer at the moment of seizure or search would warrant a person 11

of reasonable caution in the belief that the action taken was

appropriate.

See also State v. Grayson (1991),

,

.

{¶ 29} “Whether an investigative stop is reasonable must be

determined from the totality of the circumstances that surround

it. State v. Freeman (1980),

,

,

. The totality of the circumstances are ‘to be viewed

through the eyes of the reasonable and prudent police officer on

the scene who must react to events as they unfold.’ State v. Andrews

(1991),

, 87–88,

, citing United

States v. Hall (C.A.D.C. 1976),

;

,

,

.”

{¶ 30} On the facts in this case, Officer Titus did not have

reasonable, articulable suspicion of criminal activity to justify

a Terry investigative stop and detention of Defendant. The conduct

observed by Officer Titus, three men he did not know, one of whom,

was wearing a backpack, who were walking alongside Old Salem Road

at 5:20 in the morning in an area where there had been several

recent vehicle break-ins and theft offenses, fails to demonstrate

a nexus between the men and some particular criminal conduct such

as theft. No matter how unusual someone wearing a backpack and

walking alongside Old Salem Road at 5:20 a.m. may be, that conduct

itself is innocent or at most ambiguous, and not indicative of 12

any criminal activity.

{¶ 31} Furthermore, the mere fact that this innocent or

ambiguous conduct occurred in an area where crimes had occurred

does not make it criminal in character or give rise to a reasonable

suspicion of specific criminal activity. State v. Maldonado

(Sept. 24, 1993), Montgomery App. No. 13530. Simply being present

in a high crime area, by itself, is not indicative of criminal

activity, nor does it justify a Terry investigative stop. Cosby.

Officer Titus detained Defendant on nothing more than an inchoate

hunch, which is legally insufficient to justify a Terry

investigative stop. Id; Gonsior. The Terry investigative stop

and detention/seizure of Defendant’s person in this case was

therefore illegal and violated Defendant’s Fourth Amendment

rights.

{¶ 32} The trial court concluded, however, that Defendant

voluntarily abandoned the backpack before any investigatory stop

and seizure of Defendant took place, and that as a result Defendant

lacks standing to challenge the legality of the search of the

backpack. In State v. Dennis,

,

, we stated:

{¶ 33} “It has long been settled that ‘[a] defendant has no

standing under the Fourth Amendment to the United States

Constitution to object to a search and seizure of property that 13

he has voluntarily abandoned.’ State v. Freeman (1980),

[

],

, paragraph two of the

syllabus. As the Ohio Supreme Court has reiterated:

{¶ 34} “‘Abandonment is primarily a question of intent, and

intent may be inferred from words spoken, acts done, and other

objective facts. United States v. Cowan (C.A.2, 1968),

. All relevant circumstances existing at the time of the

alleged abandonment should be considered. United States v. Manning

(C.A.5, 1971),

. The issue is not abandonment

in the strict property-right sense, but whether the person

prejudiced by the search had voluntarily discarded, left behind,

or otherwise relinquished his interest in the property in question

so that he could no longer retain a reasonable expectation of

privacy with regard to it at the time of the search. United States

v. Edwards, supra, 441 F.2d at 753; Katz v. United States (1967),

[88] S.Ct. 507 [

].’ Id. at 297 [

,

], quoting United States v. Colbert

(C.A.5, 1973),

.” Russell,

,

, at ¶ 21–22.

{¶ 35} “* * *

{¶ 36} “The government bears the burden of establishing, by

a preponderance of the evidence, that the defendant abandoned the

property at issue. State v. Dubose,

, 14

,

.”

{¶ 37} The evidence demonstrates that as Officer Titus

approached and began exiting his cruiser, Defendant took off the

backpack he wore. Defendant did not throw or “discard” the

backpack, but rather placed it on the ground of the parking lot

of the fire station where he stood, and then walked some twenty

feet over to Officer Titus, in response to the officer’s direction

to “step over here.” Defendant never left the scene where he placed

the backpack and, having been instructed to remain where he was

standing, Defendant did not have an opportunity thereafter to

return and retrieve the backpack. Under these facts and

circumstances, Defendant did not voluntarily abandon or relinquish

his interest in the backpack, and it cannot be said that he no

longer retained a reasonable expectation of privacy with regard

to it at the time of the search. Dennis.

{¶ 38} The trial court erred when it found that Defendant lacks

standing to object to the seizure and search of his backpack and

its contents because he abandoned them when he placed the backpack

on the ground. Even though the trial court’s decision overruling

Defendant’s motion on that basis was likewise erroneous, we may

affirm by deciding the suppression issue on grounds different from

those determined by the trial court so long as the evidentiary

basis on which we decide the legal issue concerned was adduced 15

before the trial court and made a part of its record. State v.

Peagler (1996),

.

{¶ 39} The Fourth Amendment prohibits unreasonable searches

and seizures of “persons” and their “houses, papers, and effects.”

The search and seizure of Defendant’s backpack was performed

without benefit of a judicial warrant. Warrantless searches are

per se unreasonable. Katz v. United States (1967),

,

,

. Warrantless searches and seizures

are not illegal, however, if one of the several exceptions to the

Fourth Amendment’s warrant requirement is demonstrated.

{¶ 40} The State relied on the “plain view” exception to the

warrant requirement, which permits seizure of objects falling in

the plain view of an officer who has a right to be in a position

to see them. Harris v. United States (1968),

,

,

. It is undisputed that the contents

of the backpack were in Officer Titus’s plain view when he walked

over to the backpack and looked at it. The issue is whether he

was then legally in a position to do that.

{¶ 41} We found that what began as a consensual encounter became

a detention for purpose of Terry when Officer Titus subsequently

instructed Defendant and his companions to remain where they were

standing, before he walked over to the backpack Defendant had put

on the ground. Because that detention lacked the reasonable and 16

articulable suspicion of criminal activity that Terry requires,

the detention and any search it involved were illegal. The

exclusionary rule requires suppression of evidence seized in the

course of unlawful search. Weeks v. United States (1914),

,

,

.

{¶ 42} The exclusionary rule also requires suppression of

derivative evidence: that is, evidence that is the product of the

primary evidence illegally seized, or that is otherwise acquired

as an indirect result of the unlawful search, up to the point at

which the connection with the unlawful search becomes “so

attenuated as to dissipate the taint” of the particular illegality.

Nardone v. United States (1939),

, 84 L.Ed.307,

. Such evidence is exempt from suppression under the

“independent source” doctrine. Silverthorne Lumber Co. v. United

States (1920),

, 64 L.Ed.319,

.

Because the purpose of the exclusionary rule is to put police in

the same, not a worse, position that they would have been in had

no illegal conduct occurred, the independent source rule generally

applies to “all evidence acquired in a fashion untainted by the

illegal evidence-gathering activity.” Murray v. United States

(1988),

,

,

.

{¶ 43} After the backup assistance he requested had arrived, 17

Officer Titus walked to where Defendant put the backpack on the

ground when the consensual encounter began. Because Defendant

placed the backpack on the ground before the illegal detention

occurred, the plain view of that evidence that Officer Titus

subsequently acquired was untainted by the Terry illegality the

subsequent detention involved. Further, the backpack was located

in a public place, where the backpack and its contents were open

to view and plainly visible, and there is no reasonable expectation

of privacy regarding such property. Katz, Ohio Arrest, Search

and Seizure (2008), §14.5. Accordingly, the trial court did not

err when it overruled Defendant’s motion to suppress evidence

obtained in the search and seizure of Defendant’s backpack that

Officer Titus performed.

{¶ 44} The assignment of error is overruled. The judgment of

conviction from which the appeal is taken will be affirmed.

FAIN, J. And DONOVAN, J., concur.

Copies mailed to: Laura M. Woodruff, Esq. Charles W. Slicer, III, Esq. Hon. Mary Katherine Huffman