[Cite as State v. Samuels,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24087

v. : T.C. NO. 07CR5122

MICHAEL D. SAMUELS : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 27th day of May , 2011.

..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

TINA M. McFALL, Atty. Reg. No. 0082586, Assistant Public Defender, 117 S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Michael D. Samuels, filed

June 8, 2010. On January 29, 2008, Samuels was indicted on one count of possession of crack

cocaine (less than one gram), in violation of R.C. 2925.11(A), a felony of the fifth degree. On

February 23, 2010, Samuels pled not guilty, and on March 9, 2010, he filed a motion to suppress, 2

which the trial court overruled after a hearing. Samuels withdrew his not guilty plea and entered a

plea of no contest. The trial court found Samuels guilty and sentenced him to community control

sanctions for a period not to exceed five years.

{¶ 2} Gregory Orick, a City of Dayton police officer, testified for the State at the suppression

hearing. At the time of the hearing, Orick had been with the Dayton Police Department for over 10

years, and he previously worked as a military policeman in the Marine Corps for approximately 16

years. On December 9, 2007, Orick was conducting surveillance on an apartment building in the area

of West Hudson and Wheatley Avenues, having received citizen complaints of drug activity at the

location. According to Orick, he “had also conducted my own investigation there and deemed that it

was continuing on like almost in a sale-type operation at that building.

{¶ 3} “That particular night I was there conducting more investigation for people going in

and out of the apartment building for narcotic activity.” Orick stated that he had arrested 10 to 12

people in the same apartment for drug activity within two to three weeks of the incident at issue, and

in addition to drug activity, “there’s a lot of prostitution” in the area. Orick further stated that “there

were a couple of shootings down on the lower end of Hudson at Main Street.

{¶ 4} “It’s an extreme high-crime transient-type area.” Orick testified that at

approximately 2:15 a.m., “I was directly across the street of the apartment building. I saw a

dark vehicle pull up. The driver got out, went up to the main apartment door. It’s a common

area door. There’s glass situated on each side of the door so you can see back through the

hallway. There was a knock made on the door. At that point, a female came out of the bottom

left apartment; let Mr. Samuels in. He went into the apartment. Approximately two and a half to

three minutes later [he] re-emerged, got back in his car and began driving southbound. 3

{¶ 5} “The reason I mentioned the two to three minutes is is [sic] that’s indicative of a

drug sale in conjunction with all the other things I mentioned.

{¶ 6} “* * *

{¶ 7} “* * * If they’re in there for more than five or ten minutes, it’s usually not

indicative of a sale. But for people that are going in and out for a sale, two to three minutes is

generally the norm of my experience in drug arrests.” Orick continued, “Generally people that

want to buy the drugs don’t want to stay in there. Some drug dealers will allow you to smoke

into an adjacent building or apartment. However, if you’re just buying, you want to get in and

get out and go use your drugs and that’s usually indicative of that time frame.”

{¶ 8} Orick testified that he had been advised that a Caucasian woman named Pam

usually opens the apartment door, and that a “mid-level dope dealer” was selling drugs there.

On the night at issue, an African American woman opened the door for Samuels.

{¶ 9} Based upon his observations, Orick decided to initiate a traffic stop of Samuels,

and he radioed for assistance. Once Samuels had traveled “a distance” from the apartment

building, Orick activated his overhead lights and stopped Samuels, who was the only occupant of

the vehicle. Orick stated that prior to making contact with Samuels, he did not observe any

suspicious movements or behaviors in the vehicle. As Orick approached the vehicle, he

testified, “there’s an eight-step greeting that we use that I teach * * * . Once I start using this

greeting, it’s basically a verbal judo. It’s the same thing I use over and over. It’s my standard

operating procedure. * * * While I’m saying this, I’m looking him over for his demeanor.

{¶ 10} “At this point, I notice that his right hand is starting to go in between the center

console and the seat and I tell him to keep his hands on the steering wheel. I had to repeat this 4

twice at which point then I go ahead and extract him from the vehicle,” due to Orick’s concerns

for officer safety. Orick stated that when he initially observed Samuels’ right hand moving

toward the console, Samuels’ left hand was “on his thigh below the steering wheel and it was

clenched.” As Samuels exited his vehicle, Officer Speelman arrived to assist Orick. Orick

instructed Samuels to open his left hand, and therefrom Orick retrieved what appeared to be crack

cocaine in a baggie. Orick conducted a pat down, handcuffed Samuels and walked him to

Orick’s cruiser. Orick testified that he asked Samuels to open his left hand because he was

concerned that Samuels might be carrying a small knife.

{¶ 11} Once Samuels was inside the rear of the cruiser, Orick, who was in the driver’s

seat, read Samuels his rights from a Miranda card. Samuels appeared alert, and he indicated his

understanding of each right. He did not appear to be intoxicated or under the influence of drugs.

Orick stated that during his interaction with Samuels, Orick did not use physical force or

threaten Samuels. Orick asked Samuels what was in the baggie that had been in his clenched

hand, and Samuels told him it was crack cocaine. Speelman field-tested the substance with

cobalt reagent and determined that it was crack cocaine. Orick then asked Samuels if he had any

other contraband, and Samuels told Orick that he did, in the front pocket of his sweat pants.

Orick removed Samuels from the cruiser and retrieved “a few more pieces” of crack from a white

paper wrapper in Samuels’ pocket. Orick field-tested the pieces and determined that they were

crack cocaine. Orick transported Samuels to jail. Orick subsequently learned that Samuels had

an unrelated warrant from Montgomery County for driving under suspension.

{¶ 12} On cross-examination, Orick stated that Samuels’ vehicle was legally parked

when Samuels approached the apartment, and that Orick did not observe any equipment 5

violations relating to the vehicle. Orick further stated that he did not observe any traffic

violations when Samuels returned to his car and drove away. Orick stated that he decided to

stop Samuels based upon the short duration of time Samuels spent within the apartment coupled

with Orick’s experience there and the information he had received regarding on-going drug

activity. Orick stated that after he stopped Samuels’ vehicle, but before Orick exited his cruiser,

he performed a computer search of the tags on Samuels’ vehicle, and there were no warrants

associated with the vehicle.

{¶ 13} In overruling Samuels’ motion to suppress, after summarizing Orick’s testimony,

the trial court concluded that “the basis for the initial stop, that Defendant went inside a residence

where drugs had been sold and left a few minutes later, was insufficient to justify a stop of the

Defendant. However, whether the initial justification of the stop was lawful or not under both

State and Constitutional safeguards is irrelevant. This Second District Court of Appeals has held

that, because of an outstanding warrant, a defendant has ‘no reasonable expectation of privacy to

be free from arrest and search by the police.’ State v. Williams, Montgomery App. No.22535,

, citing State v. Smith, Montgomery App. No. 22434,

.

The essential argument for upholding an otherwise unjustified stop of a person subject to an

outstanding arrest warrant is that ‘the authority for the stop, and the resulting intrusion upon the

individual’s liberty, is not predicated upon any facts or circumstances known to the stopping

officer, but upon the independent authority of the arrest warrant, itself, thereby making the facts

and circumstances known to the officer immaterial.’ State v. Harding, Montgomery App. No.

22747,

.

{¶ 14} “The fact that officer Orick did not become aware of the outstanding warrant until 6

after the stop and search is likewise irrelevant. (Citation omitted). In short, the existence of the

arrest warrant rendered Officer Orick’s search and seizure of the drugs on Defendant’s person

lawful. See

.

{¶ 15} “With respect to Defendant’s statements made during the stop, defense argues that

‘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.’ * * * The Ohio Supreme court has held that ‘a court may infer

from the totality of the circumstances that a defendant voluntarily, knowingly, and intelligently

waived his rights.’ (Citations omitted). * * *

{¶ 16} “The Court finds that Officer Orick adequately advised Defendant of his Miranda

rights and that Defendant understood those rights. Defendant did not ask for clarification, did

not ask for counsel, and did not state that he did not understand the warnings. Defendant

indicated by nodding his head and answering ‘yes’ when Officer Orick asked him if he

understood each right. Officer Orick read the Miranda warnings directly from a card provided

to him by the Montgomery County Prosecutor’s Office. There is no evidence of any threats

made by Officer Orick, nor any mental incompetence on the part of the Defendant that would

affect the intelligence or voluntariness of Defendant’s waiver. Therefore, the Court finds that

any statements made by Defendant after Officer Orick advised him of his Miranda warnings are

admissible.”

{¶ 17} Samuels asserts one assigned error as follows:

{¶ 18} “THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY THE CASE

LAW AT THE TIME OF THE UNLAWFUL STOP, AND FOUND UNDER THE CURRENT 7

CASE LAW THE DEFENDANT/APPELLANT HAD NO REASONABLE EXPECTATION OF

PRIVACY DUE TO AN OUTSTANDING WARRANT.”

{¶ 19} “Appellate courts give great deference to the factual findings of the trier of facts.

(Internal citations omitted). At a suppression hearing, the trial court serves as the trier of fact,

and must judge the credibility of witnesses and the weight of the evidence. (Internal citations

omitted). The trial court is in the best position to resolve questions of fact and evaluate witness

credibility. (Internal citations omitted). In reviewing a trial court’s decision on a motion to

suppress, an appellate court accepts the trial court’s factual findings, relies on the trial court’s

ability to assess the credibility of witnesses, and independently determines whether the trial court

applied the proper legal standard to the facts as found. (Internal citations omitted). An appellate

court is bound to accept the trial court’s factual findings as long as they are supported by

competent, credible evidence. (Internal citations omitted).” State v. Purser, Greene App. No.

2006 CA 14,

.

{¶ 20} Samuels primarily relies upon State v. Lynch (June 6, 1998), Montgomery

App. No. 17028. In Lynch, we affirmed the trial court’s decision sustaining Lynch’s

motion to suppress. Lynch was stopped by officers in broad daylight, based merely

upon “a generalized hunch,” in an area known for prostitution and drug activity. Lynch

was not suspected of having committed any crime. The officers conducted a pat down,

retrieving a baggie of crack cocaine from Lynch’s person. Lynch was cooperative and

advised the officers that he was subject to outstanding capias warrants. We

determined that both the stop and search were constitutionally improper. We rejected

the State’s argument that the exclusionary rule did not apply due to Lynch’s outstanding

capias: “If the Court were to adopt the reasoning advanced by the State, then any 8

individual with even a minor misdemeanor traffic capias has forfeited any and all Fourth

Amendment safe guards.”

{¶ 21} As the trial court herein noted, we have since determined that the

existence of an outstanding arrest warrant is “independent authority” for an “otherwise

unjustified stop of an individual * * * and the resulting intrusion upon the individual’s

liberty.” Harding, ¶ 20; Williams, ¶22. We disagree with Samuels that Lynch is the

“binding applicable authority at the time of the unlawful stop,” such that the trial court’s

reliance upon Harding and Williams is an unlawful retroactive application of the law.

{¶ 22} “‘In considering the issue of the retroactive application of new case law,

the Supreme Court of Ohio has stated that any judicial alteration of a criminal rule of

law must be applied to any case which is still pending in our state court system.

However, once a conviction has become “final” because the defendant can no longer

pursue any appellate remedy, any new case law cannot be applied retroactively even if

it would be relevant to the facts of his case.’” State v. Harrison, Portage App. No.

2004-P-0068,

, citing, in part, State v. Evans (1972),

.

{¶ 23} Samuels was stopped on December 9, 2007, and Harding and Williams

were subsequently decided, but Samuels’ case had not concluded prior to the

subsequent decisions, and the application of Harding and Williams to the matter herein

is proper. In other words, Samuels lacked a reasonable expectation of privacy, and the

existence of his warrants rendered Orick’s search and seizure of the drugs lawful.

{¶ 24} Finally, we agree with the State that Samuels’ reliance upon State v.

Jamison (May 11, 2001), Montgomery App. No. 18453, is misplaced. See State v. 9

Walker-Stokes,

,

(holding that the

exclusionary rule does not apply to a Terry stop violation involving the subject of an

outstanding arrest warrant and expressly overruling Jamison).

{¶ 25} There being no merit to Samuels’ sole assigned error, it is overruled, and

the judgment of the trial court is affirmed.

..........

FAIN, J. and KLINE, J., concur.

(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

R. Lynn Nothstine Tina M. McFall Hon. Barbara P. Gorman, Administrative Judge (trial judge-Hon. Michael T. Hall)

Case Name: State of Ohio v. Michael D. Samuels Case No.: Montgomery App. No. 24087 Panel: Fain, Donovan, Kline Author: Mary E. Donovan Summary: