[Cite as State v. Crossen,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2010-COA-027 JAMES E. CROSSEN : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland Municipal Court, Case No. 10-CRB-566

JUDGMENT: Affirmed in part; Reversed in part and Remanded

DATE OF JUDGMENT ENTRY: May 24, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAVID M. HUNTER THOMAS L. MASON Assistant Law Director P.O. Box 345 1213 East Main Street Ashland, OH 44805 Ashland, OH 44805 [Cite as State v. Crossen,

.]

Gwin, P.J.

{¶1} Defendant-appellant James E. Crossen appeals his conviction and

sentence in the Ashland County Municipal Court for one count of Possessing Drug

Abuse Instruments, a misdemeanor of the second degree in violation of Ohio Revised

Code 2925.12 (A). The plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 2, 2010, Officer Brian Evans of the City of Ashland Police

Department responded to a call involving a woman who reportedly could not convince a

man to exit her vehicle. Officer Evans arrived in an unmarked cruiser, saw what he

believed to be the complainant's vehicle in a parking lot and saw a male walking away

from the vehicle. Officer Evans recognized the male and followed him. When a marked

cruiser passed, Officer Evans testified he saw the male place his hand inside a tractor

wheel well and continued walking. The Officer parked, called the individual's name, and

jogged after him. Appellant kept walking until about the third time Officer Evans called

his name, when he stopped and turned. Officer Evans motioned for appellant to come to

him, appellant complied with the Officer’s request. Officer Evans told him to turn around

and put his hands behind his back, which he did. Appellant asked what was going on, to

which Officer Evans responded, "Well, I just saw you put something back there on that

tractor." Appellant denied that he had.

{¶3} Two uniformed officers arrived on the scene and appellant was placed in

handcuffs. Appellant was also read his Miranda rights by Officer Evans at this time.

Officer Evans then went back to the tractor wheel well and found a syringe. Officer

Evans returned to appellant. He asked appellant about the syringe. Appellant initially Ashland County, Case No. 2010-COA-027 3

denied putting it on the tractor, but ultimately admitted that he had. He also stated that

he was the person in the vehicle that would not get out. Appellant was driven to the

police station where Officer Evans continued his questioning of him approximately 20-

30 minutes later. He did not re-Mirandize appellant. Appellant made other incriminating

statements, including that the syringe was used to inject heroin.

{¶4} Appellant filed a motion to suppress evidence, which was heard on August

13, 2010. On August 25, 2010 the trial court issued a Judgment Entry overruling the

motion.

{¶5} On September 13, 2010 appellant entered a plea of No Contest to the

charge, was found Guilty, and was sentenced to serve sixty (60) days in the Ashland

County Jail.

{¶6} Appellant has timely appealed raising as his sole assignment of error,

{¶7} “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY RULING

THAT POLICE HAD PROBABLE CAUSE TO ARREST THE APPELLANT.”

I.

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

and fact. State v. Burnside,

,

, 20030-

Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role

of trier of fact and is in the best position to resolve questions of fact and to evaluate

witness credibility. See State v. Dunlap (1995),

,

; State v. Fanning (1982),

,

. Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See

State v. Ashland County, Case No. 2010-COA-027 4

Long (1998),

,

; State v. Medcalf (1996),

,

. However, once this Court has accepted those facts

as true, it must independently determine as a matter of law whether the trial court met

the applicable legal standard. See

citing State v. McNamara (1997),

,

; See, generally, United States v. Arvizu (2002),

,

; Ornelas v. United States (1996),

,

. That is, the application of the law to the trial court's findings of fact is subject to a

de novo standard of review.

Moreover, due weight should be given “to

inferences drawn from those facts by resident judges and local law enforcement

officers.”

,

.

{¶9} Appellant’s sole assignment of error relates to the propriety of the trial

court’s overruling of his motion to suppress. Specifically, appellant contends that the

state failed to produce sufficient evidence that Officer Evans had probable cause to

arrest him on June 2, 2010.

{¶10} Contact between police officers and the public can be characterized in

three different ways. State v. Richardson, 5th Dist. No.2004CA00205,

. The first is contact initiated by a police officer for purposes of investigation.

“[M]erely approaching an individual on the street or in another public place [,]” seeking

to ask questions for voluntary, uncoerced responses, does not violate the Fourth

Amendment. United States v. Flowers (6th Cir. 1990),

. The United

State Supreme Court “[has] held repeatedly that mere police questioning does not

constitute a seizure.” Florida v. Bostick,

,

,

(1991); see also INS v. Delgado,

,

, 80 Ashland County, Case No. 2010-COA-027

(1984). “[E]ven when officers have no basis for suspecting a particular

individual, they may generally ask questions of that individual; ask to examine the

individual's identification; and request consent to search his or her luggage.”

,

(citations omitted). The person approached,

however, need not answer any question put to him, and may continue on his way.

Florida v. Royer (1983), 460 U .S. 491, 497-98. Moreover, he may not be detained even

momentarily for his refusal to listen or answer.

{¶11} The second type of contact is generally referred to as “a Terry stop” and is

predicated upon reasonable suspicion.

Flowers,

;

See Terry v. Ohio (1968),

. This temporary detention, although a seizure,

does not violate the Fourth Amendment. Under the Terry doctrine, “certain seizures are

justifiable ... if there is articulable suspicion that a person has committed or is about to

commit a crime” Florida, 460 U.S. at 498. In holding that the police officer's actions were

reasonable under the Fourth Amendment, Justice Rehnquist provided the following

discussion of the holding in Terry: “In Terry this Court recognized that a police officer

may in appropriate circumstances and in an appropriate manner approach a person for

purposes of investigating possible criminal behavior even though there is no probable

cause to make an arrest. The Fourth Amendment does not require a police officer who

lacks the precise level of information necessary for probable cause to arrest to simply

shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary,

Terry recognizes that it may be the essence of good police work to adopt an

intermediate response. A brief stop of a suspicious individual, in order to determine his

identity or to maintain the status quo momentarily while obtaining more information, may Ashland County, Case No. 2010-COA-027 6

be most reasonable in light of the facts known to the officer at the time. Adams v.

Williams (1972),

,

,

.

{¶12} The third type of contact arises when an officer has “probable cause to

believe a crime has been committed and the person stopped committed it.”

Flowers,

. A warrantless arrest is constitutionally valid if: “[a]t the

moment the arrest was made, the officers had probable cause to make it-whether at

that moment the facts and circumstances within their knowledge and of which they had

reasonably trustworthy information were sufficient to warrant a prudent man in believing

that the * * * [individual] had committed or was committing an offense.” State v. Heston

(1972),

,

, quoting Beck v. Ohio (1964),

,

,

. “The principal components of a

determination of reasonable suspicion or probable cause will be the events which

occurred leading up to the stop or search, and then the decision whether these

historical facts, viewed from the standpoint of an objectively reasonable police officer,

amount to reasonable suspicion or to probable cause.” Ornelas v. United States (1996),

,

. A police officer may draw inferences

based on his own experience in deciding whether probable cause exists. See, e.g.,

United States v. Ortiz (1975),

,

.

{¶13} The Ohio Supreme Court has held that a police officer's statement “Hey,

come here a minute,” while nominally couched in the form of a demand, is actually a

request that a citizen is free to regard or to disregard. State v. Smith (1989),

,

, reversed sub nom. Smith v. Ohio (1990),

,

,

. Ashland County, Case No. 2010-COA-027 7

{¶14} In the case at bar, Officer Evans’ initial calling out to appellant and

motioning him to come over to him would be characterized as a consensual encounter.

Nothing in the record establishes that appellant could not have continued to walk away

from Officer Evans as he had done the first two times the Officer hailed him. However,

once appellant was ordered to place his hands behind his back, confronted with two

uniformed officers in addition to Officer Evans, placed in handcuffs and read his

Miranda rights the situation quickly changed.

{¶15} It is well established that a warrantless arrest without probable cause is

unconstitutional. State v. Timson (1974),

,

, paragraph

one of the syllabus. Probable cause arises when “the facts and circumstances within [a

police officer's] knowledge and of which [he has] reasonably trustworthy information

were sufficient in themselves to warrant a man of reasonable caution in the belief” that

criminal conduct was afoot. Carroll v. United States (1924),

,

,

; see, also, State v. Heston (1972),

,

. If, after being arrested, a defendant asserts that probable cause was

lacking at the time of arrest, the State bears the burden of proof on the issue of whether

probable cause existed at the time of arrest. Xenia v. Wallace (1988),

,

, paragraph two of the syllabus.

{¶16} In United States v. Mendenhall (1980),

,

, the

United States Supreme Court made the following observation: “[w]e conclude that a

person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of

all of the circumstances surrounding the incident, a reasonable person would have

believed that he was not free to leave. Examples of circumstances that might indicate a Ashland County, Case No. 2010-COA-027 8

seizure, even where the person did not attempt to leave, would be the threatening

presence of several officers, the display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of language or tone of voice indicating

that compliance with the officer's request might be compelled. See Terry v. Ohio, supra,

,

; Dunaway v. New York,

, and n. 6,

,

; 3 W. LaFave, Search and Seizure

53-55 (1978)”. Id. at 544,

. On the facts of this case, clearly a

“seizure" of the appellant occurred.

{¶17} Upon review, under the totality of the circumstances, we conclude the

events in the case sub judice constituted an arrest such that the officers were required

to have probable cause to believe a crime had been committed and that appellant

committed it. However, that does not end our inquiry. Rather, the question is whether

Officer Evans’ discovery of the syringe was the result of the unlawful arrest. See United

States v. Bentley (6th Cir. 1994),

(concluding that, even though

the defendant was arrested prematurely, the police had reasonable suspicion to detain

him, and evidence observed in plain view constituted an independent basis to justify the

subsequent search of the defendant's vehicle).

{¶18} In United States v.

the Sixth Circuit Court of Appeals

refused to suppress evidence obtained immediately after an illegal arrest. In Bentley,

agents of the Bureau of Alcohol, Tobacco & Firearms (“ATF”) stopped the defendants'

vehicle and immediately handcuffed them and put them in the back of a police cruiser.

The ATF agents then approached their vehicle and observed a variety of firearms and Ashland County, Case No. 2010-COA-027 9

firearm boxes, which the agents collected as evidence. State v. Blake, Columbiana App.

No.

,

at ¶ 46-47.

{¶19} The defendants filed a motion to suppress the evidence found in the

vehicle. The Bentley court held that the arrest was not supported by probable cause. Id.

at 1075. Nevertheless, the court held that there were independent reasons to justify the

search of the vehicle and the seizure of evidence apart from the illegal arrest. Id. The

court found that the original stop of the vehicle was constitutionally permissible under

Terry v. Ohio (1968),

,

,

, and that the guns

were discovered pursuant to the plain view doctrine. Id. at 1075-1076. Because these

independent reasons justified the manner in which the government acquired the

evidence, the court held that, “the premature arrest played no role in the seizing of the

evidence * * *.” Id. at 1076. Accord United States v. Eylicio-Montoya (C.A. 10, 1995),

; cf. People v. Tariq (1991),

,

(statements made at police station were not the fruit of illegal arrest where detention in

police station was otherwise legal); see also People v. Monson (1967),

,

(trial court is free to infer that legal Terry stop, rather than illegal

arrest, was the basis for police acquiring evidence). State v. Blake, supra.

{¶20} In the case at bar, the manner in which appellant was detained did rise to

the level of an arrest, but the officers' display of authority and use of force to detain him

did not create the circumstances that led to the discovery of the syringe. Rather, it was

Officer Evans’ observation that appellant had placed something inside the tire well of

the tractor that led to the discovery of the syringe. See, United States v. Howard (6th Cir

2010),

. Police may freely seize and search abandoned items, such Ashland County, Case No. 2010-COA-027 10

as items thrown from vehicles during a police chase, items placed in trash containers, or

items dropped by a pedestrian while fleeing from the police. See, e.g., Abel v. United

States (1960),

,

,

; State v. Freeman

(1980),

,

,

; United States v.

Flynn (C.A.10, 2002),

; United States v. Mustone (C.A.1, 1972),

; State v. Hill (1998),

,

. Since the Fourth

Amendment protects only those places and items that a person expects to remain

private, and since abandoned items are available for anyone to find and peruse, courts

have consistently denied Fourth Amendment protection over abandoned items. Bond v.

United States (C.A.7, 1996),

. See, State v. Dubose (2005),

,

,

.

{¶21} Accordingly, we find that the premature arrest played no role in the seizing

of the evidence from the tractor. It follows that the fact that the arrest was premature is

not grounds for the suppression of that evidence.

{¶22} Appellant also argues that the trial court should have suppressed the

statements he made to Officer Evans after the discovery of the drugs.

{¶23} In Barry v. New Jersey1, the United States Supreme Court observed,

{¶24} “In order for a statement given to police after an illegal arrest to be

admissible at trial, the statement must not only be voluntary by Fifth Amendment

standards, but it must also not be the result of exploiting the illegal arrest; rather, it must

be ‘an act of free will [sufficient] to purge the primary taint.’ Wong Sun v. United States,

,

,

(1963); Brown v. Illinois,

See, Barry v. New Jersey,

,

(1979), cert. granted,

,

(1980), rev'd,

,

(1981), cert. denied,

,

,

(1981) (the Supreme Court denied certiorari, with three justices dissenting). Ashland County, Case No. 2010-COA-027 11

590, 602,

,

(1975). Brown held that Miranda

warnings, by themselves, cannot always make a confession ‘sufficiently a product of

free will to break, for Fourth Amendment purposes, the causal connection between the

illegality and the confession.’ 422 U.S., at 603, 95 S.Ct. at 2261. By focusing on the

causal connection between an illegal arrest and a subsequent confession, Brown

sought to implement the policies behind the use of the exclusionary rule to effectuate

the Fourth Amendment. Dunaway v. New York,

,

,

(1979). It identified three factors for determining whether it

is necessary to exclude a confession obtained following an illegal arrest: ‘The temporal

proximity of the arrest and the confession, the presence of intervening circumstances, ...

and, particularly, the purpose and flagrancy of the official misconduct are all relevant.’

Brown v. Illinois, supra,

,

(footnotes

omitted).” Barry v. New Jersey,

,

. In articulating this

multi-factored test, the Court rejected a ‘but for’ approach to admissibility of a

confession following an illegal arrest, and recognized that ‘persons arrested illegally

frequently may decide to confess, as an act of free will unaffected by the initial illegality.’

Brown,

. See, State v. Cranford, Montgomery App. No. 20633, 2005-

Ohio-1904 at ¶26.

{¶25} In Brown, the Court stated that the giving of Miranda warnings, though

relevant to a determination of whether a confession was obtained by exploitation of the

illegal arrest, was not dispositive.

{¶26} In the case at bar, the State argues that appellant was read his Miranda

rights, and further was lawfully arrested after the syringe was discovered, therefore his Ashland County, Case No. 2010-COA-027 12

arrest was with probable cause. The record reveals appellant was never advised that he

was under arrest. (T. at 21).

{¶27} Officer Evans did not read appellant his Miranda rights after discovery of

the syringe, during transportation or while appellant was detained and questioned at the

police station. In terms of the purposes of the exclusionary rule, allowing a confrontation

such as occurred in this case to qualify as an intervening circumstance would permit the

police to seize and detain any person without probable cause, secure in the knowledge

that a confession later obtained by confronting the accused with evidence against him

would be admissible. Barry v. New Jersey, supra

,

.

Nothing in the facts suggests that there was any intervening circumstance that may

have served to separate the statements at the scene from the illegal arrest.

{¶28} The third Brown factor to be considered is the purpose and flagrancy of

the police conduct. “Although the police conduct here was not designed to cause fright

and confusion as it was in Brown,

,

, the police

admittedly lacked probable cause to arrest petitioner, and the purpose of the arrest was

to detain ‘in the hope that something might turn up.’

This purpose is itself sufficient

to exclude a confession, absent a sufficient intervening event. Dunaway v. New York,

supra,

,

.” Barry v. New Jersey, supra

,

. In the case at bar, appellant was confronted with two uniformed

police officers and one undercover officer. Appellant was ordered to place his hands

behind his back. He was placed in handcuffs. At that point the officers did not have

probable cause to arrest appellant. The Fourth Amendment forbids the police from

arresting someone because they feel that person is involved in a crime. Probable cause Ashland County, Case No. 2010-COA-027 13

is required, not suspicion. Accordingly, the statements obtained from appellant at the

scene must be suppressed.

{¶29} Appellant also made incriminating statements while in custody at the

police station. That interrogation occurred twenty to thirty minutes after the initial

encounter. (T. at 13). Appellant was not advised of his Miranda rights while in custody at

the police station before being questioned by Officer Evans.

{¶30} The question of an effective waiver of a Federal Constitutional right in a

State criminal proceeding is governed by Federal standards. Boykin v. Alabama (1969),

395, U.S. 238. (Citing Douglas v. Alabama (1965)

). For a waiver to be

valid under the Due Process clause of the United States Constitution, it must be: “[a]n

intentional relinquishment or abandonment of a known right or privilege.” Boykin, supra,

395 U.S. at 243 n. 5 (Quoting Johnson v. Zerbst (1938),

).

{¶31} In State v. Dailey (1990),

,

, the Ohio

Supreme Court outlined the manner in which a suspect must be informed of his or her

Miranda rights: “[i]n Miranda, supra, the court indicated that ‘the prosecution may not

use statements, whether exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination.’ Id. at 444, 86 S.Ct. at 1612.

{¶32} We note that there is no written or recorded waiver of rights by appellant in

the record of this case. Accordingly, nothing in the record suggests that appellant

knowingly, intelligently and voluntarily waived his rights prior to questioning at the police

station. Here as we have previously noted, there is nothing in the record to establish

that the statements made at the police station were not obtained by exploitation of the Ashland County, Case No. 2010-COA-027 14

initial illegal arrest. As we have noted, appellant was not informed that he was under

arrest after the syringe was discovered; nor was he advised of, or asked to waive, his

constitutional rights subsequent to the discovery.

{¶33} Accordingly, appellant’s sole assignment of error is sustained in part and

overruled in part.

{¶34} For the forgoing reasons, the judgment of the Ashland Municipal Court,

Ashland County, Ohio is affirmed in part and reversed in part, and this case is

remanded for proceedings in accordance with our opinion and the law.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. PATRICIA A. DELANEY

WSG:clw 0428 [Cite as State v. Crossen,

.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JAMES E. CROSSEN : : : Defendant-Appellant : CASE NO. 2010-COA-027

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Ashland Municipal Court, Ashland County, Ohio is affirmed in part and

reversed in part, and this case is remanded for proceedings in accordance with our

opinion and the law. Costs to be divided equally between the parties.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. PATRICIA A. DELANEY