[Cite as State v. Gardner,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 25312 Plaintiff-Appellee : : Trial Court Case No. 2011-CR-2773 v. : : REGINALD B. GARDNER, JR. : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ........... OPINION Rendered on the 17th day of May, 2013. ...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ADELINA E. HAMILTON, Atty. Reg. #0078595, Law Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant

.............

HALL, J.

{¶ 1} Reginald Gardner appeals from his conviction and sentence following a no-contest plea to one count of heroin possession.

{¶ 2} In his sole assignment of error, Gardner contends the trial court erred in

overruling his motion to suppress the heroin.

{¶ 3} The facts underlying the present appeal are set forth in the trial court’s

decision, entry, and order overruling the motion. In making its factual findings, the trial court

credited the testimony of police officer David House. In pertinent part, the trial court’s

findings are as follows:

David House (“Officer House”) has been a police officer with the

Dayton Police Department for 20 years. Officer House has been in his current

assignment since July of 2010 and before that he was in the Narcotics Bureau

as a Detective for 13 years. During that time, Officer House observed and made

arrests for drugs “thousands” of time[s].

On August 10, 2011, Officer House was on patrol from 11:00 P.M. to

7:00 A.M. and in a marked cruiser. That night, Officer House responded to a

dispatch about a “breaking and entering” at 443 Harriett Street. Officer House

is familiar with the Harriett Street area because he has made arrests for

narcotics there in the past and the police department had been receiving

complaints about vehicle-to-vehicle drug transactions in this area. The call

about the “breaking and entering” came in through an anonymous caller who

said that there were two black males going in and out of a vacant house at 443

Harriett Street and that there was a dark colored pick-up truck in the driveway.

When Officer House pulled into the 400 block of Harriett Street, he was

looking for the specific address, and observed a dark green Ford Expedition in 3

the driveway between 441 Harriett Street and the house immediately to the

west of 441 Harriett Street. Officer House testified that there were no lights on

in the house, the grass was slightly overgrown, and it appeared that the house

could have been vacant but it was not “boarded up.” Officer House testified

that he observed a black male standing outside the open passenger door of the

dark green Ford Expedition. The black male was later identified as Reginald B.

Gardner, Jr. (the “Defendant”).

Officer House stopped his vehicle at the curb and exited the cruiser, at

which time the Defendant sat back in the front passenger seat. However, the

Defendant did not get all the way in the vehicle, he just sat on the seat with his

feet on the ground outside the vehicle. Officer House approached the

Defendant and asked if he lived there and the Defendant said that it was his

father’s house. As Officer House continued to speak with the Defendant, he

observed that the Defendant was sitting “very awkwardly” in the seat. The

Defendant had his upper body turned towards the seat, as if he was turning

around to speak with someone in the back of the vehicle. Officer House

observed that the Defendant’s right hand was between him and the back of the

seat, reaching back behind him toward the center console area, and moving his

arm around as if he was trying to find something or trying to manipulate

something without looking. Officer House testified that the Defendant

“remained in that awkward position” while they spoke.

Officer House had some concerns about the Defendant’s behavior 4

because he still did not know whether the Defendant was supposed to be at the

house or if there was a “breaking and entering” occurring. Because of this, and

with the way the Defendant was acting, Officer House was fearful the

Defendant was trying to retrieve a weapon. Officer House then put his hand on

his duty weapon and asked the Defendant to step out of the vehicle. The

Defendant turned even further toward the back of the vehicle and reached to the

back of the vehicle with his right hand and then proceeded to get out of the

vehicle and Officer House observed that the Defendant’s right hand was empty.

Based on the complaint, and the Defendant’s movements and actions, Officer

House proceeded to pat down the Defendant.

While Officer House was conducting the pat down, the Defendant’s

father, Reginald Gardner, Sr. (the “Father”) came out of the house and said

“here I am.” Officer House completed the pat down and did not recover any

evidence. Officer House escorted the Defendant down the driveway and

secured the Defendant in the back of his police cruiser. Officer House asked the

Defendant what he tossed into the back of the vehicle, and the Defendant

responded that he did not know what Officer House was talking about. Officer

House then closed the door of the police cruiser and returned to the passenger

side of the Ford Expedition where the passenger door was still standing open.

Officer House looked inside the vehicle where the Defendant had been

reaching to ensure there were no weapons, because he was still investigating

the possibility of a break-in, and although the Defendant was secured in the 5

police cruiser, the Father was still outside of the house. As Officer House

leaned into the vehicle, he could see between the seats in the back of the

vehicle on the passenger side floorboard where there was a baggie containing

56 gel capsules. Officer House reached through the seats and recovered the

baggie and secured it in his pocket and then looked underneath the seat to

check for weapons.

Officer House then spoke with the Father and asked for identification.

Officer House explained why he was there to the Father and told him that the

Defendant was under arrest. Officer House found out that the Father owned the

Ford Expedition. The Father showed Officer House that he had keys to the

front door. Officer House returned to the cruiser with the Father’s identification

and spoke with the Defendant and checked them for [being] wanted and prior

history. Officer Jennifer Stack (“Officer Stack”) then arrived on the scene.

Officer House tested the capsules for heroin with a marquis testing kit and the

capsules tested positive for heroin. At that time, Officer House advised the

Defendant that he was under arrest and secured him in handcuffs. Officer

House then returned to the police cruiser and asked the Defendant if he wanted

to talk about the incident and the Defendant said that he did not want to talk to

Officer House. For this reason, Officer House did not give Miranda warnings to

the Defendant nor did he ask about the drugs. The Defendant made statements

while he was in custody but not as a result of any questions asked by Officer

House. 6

(Doc. #18 at 1-3).

{¶ 4} Based on the foregoing facts, the trial court found (1) that Officer House had

reasonable, articulable suspicion of criminal activity to justify briefly detaining appellant

Gardner, (2) that House’s pat-down search of Gardner was lawful, (3) that House observed the

baggie of heroin in plain view, and (4) that House’s discovery of the heroin gave him probable

cause to arrest Gardner. As a result, the trial court overruled the suppression motion. (Id. at

4-9).

{¶ 5} Following the trial court’s ruling, Gardner pled no contest to heroin

possession, a third-degree felony. The trial court found him guilty and sentenced him to

community control. This appeal followed.

{¶ 6} In his lone assignment of error, Gardner challenges the trial court’s

suppression ruling. He contends the trial court erred in finding reasonable, articulable

suspicion of criminal activity to justify an investigatory detention. He also claims the trial

court erred in finding that the baggie of heroin was in plain view. He maintains that the baggie

was discovered through a search and that his furtive movements alone were not enough to

justify a protective search for weapons. Finally, he argues that the search violated Arizona v.

Gant,

,

,

(2009).

{¶ 7} “In reviewing a decision of a trial court on a motion to suppress, an appellate

court gives broad deference to a trial court’s findings of fact. * * * But whether the facts found

by the trial court justify suppression of the evidence is a question of law subject to de novo

review.” State v. Anderson, 2d Dist. Montgomery No. 24678,

. Here the

trial court’s factual findings are supported by Officer House’s suppression-hearing testimony. 7

Applying those facts to the legal issues before us, we find, for the reasons below, that the trial

court correctly overruled Gardner’s motion.

{¶ 8} As a threshold matter, we conclude that Officer House had reasonable,

articulable suspicion of criminal activity to justify removing Gardner from the SUV and

detaining him under Terry v. Ohio,

,

,

(1968). An

officer briefly may detain an individual without an arrest warrant or probable cause for an

arrest to investigate if the officer has reasonable suspicion of criminal activity. To do so, 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.” State v. Andrews,

,

(1991), quoting

. The propriety of an

investigative stop must be viewed under the totality of the circumstances, which themselves

must “be viewed through the eyes of a reasonable and cautious police officer on the scene,

guided by his experience and training.” State v. Bobo,

,

(1988).

{¶ 9} On appeal, Gardner asserts that an uncorroborated, anonymous tip is not

enough to justify a Terry stop or detention. We do not disagree. “A tip from an anonymous

informant, standing alone, is generally insufficient to support reasonable suspicion of criminal

activity, because it lacks the necessary indicia of reliability.” State v. Jordan,

,

,

, ¶36. In the present case, however, House did not rely

solely on an unverified tip from an anonymous source when he detained Gardner.

{¶ 10} As set forth above, an anonymous caller reported that two black males were

entering and exiting a vacant residence at 443 Harriett Street and that a dark-colored pick-up 8

truck was in the driveway. House arrived at the scene around 11:30 p.m. and saw a

dark-colored SUV in a driveway near 441 Harriett Street and 443 Harriett Street. The

driveway ran between the two houses, which sat approximately ten feet away on each side of

it. (Suppression Tr. at 8). Although House did not know it, the driveway actually belonged to

the residence at 441 Harriett Street. (Id. at 27-28). He could not see any house numbers,

however, and the residence at 441 Harriett Street appeared to be vacant. The front of the house

was dark, the grass was a little overgrown, and he did not recall there being any window

coverings. (Id. at 9). Other than the dark-colored SUV, no other vehicles were present. (Id. at

28). House also observed two black males. He initially saw appellant Gardner standing outside

the parked SUV. He later saw Gardner’s father exit the residence at 441 Harriett Street.

{¶ 11} House’s observations admittedly did not confirm the anonymous caller’s

assertion of a breaking and entering in progress. Before he seized Gardner, however, House

did corroborate the caller’s information insofar as he saw (1) a dark-colored vehicle parked

next to the reported address, (2) what appeared to be a vacant house, and (3) a black male

present.1 But because this partial corroboration did little to confirm the anonymous caller’s

1 With regard to corroboration, the trial court reasoned in part: “The SUV was sitting in the driveway of 441 Harriett Street, which this Court finds is close enough in proximity to 443 Harriett Street to corroborate that anonymous tip. Additionally, the dark colored ‘pick-up truck’ was an SUV, which this Court finds to be close to the description from the anonymous caller.” (Doc. #18 at 5). We agree with the trial court’s reasoning. As noted above, the driveway was directly between the two houses, the house numbers were not clear, and no vehicles other than the SUV were present. During the suppression hearing House explained: “As I’m pulling up, I’m in the area as described in the dispatch call where they’re saying it’s a—a house, again, 441, 43, in that area, where there’s a dark-colored—described as a pick-up truck. I see a dark-colored SUV sitting in the driveway with a black male standing next to it. Obviously I would not be doing my job if I just dismissed everything, saying ‘Well, the call says 443, this is 441. Even though the houses are side by side, the call says it’s a pick-up truck; however, this is an SUV. The call says there’s two black males; I only see one black male. If I just drive on through, then obviously I’m not doing my job. I did stop to investigate * * *.” (Suppression Tr. at 26-27). 9

assertion of illegality, the corroboration alone was not enough to give House a reasonable,

articulable suspicion of criminal activity. Jordan at ¶42.

{¶ 12} Significantly, however, House did not base his decision to detain Gardner

solely on the partially corroborated tip. As House approached the SUV, Gardner sat down in

the front passenger seat with his feet on the ground and his upper body twisted awkwardly

toward the rear of the vehicle. (Suppression Tr. at 10). Gardner kept reaching back out of sight

and moving his arm around as if “tying to find something or manipulating something without

trying to look at it.” (Id. at 11). At that point, House had not confirmed whether Gardner was

legitimately at the residence, whether a breaking and entering was in progress, or whether

another crime was occurring. (Id.) Gardner’s behavior caused House to fear he was trying to

retrieve a weapon. (Id.). We note that up to this point, House’s contact with appellant, and any

observations made, were the result of a consensual encounter which does not implicate the

Fourth Amendment. When House asked Gardner to step out of the vehicle, Gardner

responded by turning “even further toward the back of the vehicle and reach[ing] further into

the vehicle with his right hand.” (Id.). Gardner then stepped out of the vehicle with empty

hands. (Id. at 12).

{¶ 13} It is well settled that a defendant’s furtive gestures may be considered in

assessing whether police had reasonable, articulable suspicion of criminal activity to justify an

investigatory detention or search. State v. Abner,

,

,

(2d Dist.). Even though furtive gestures alone typically are not enough,

they “can be considered in making a totality-of-the-circumstances determination.” Id. at ¶12.

Here House was entitled to consider Gardner’s unusual body position and furtive gestures, as 10

well as the fact that Gardner was waiting outside what appeared to be a vacant house near

midnight.

{¶ 14} House also was entitled to consider his personal knowledge that Harriett Street

was a site of frequent criminal activity, including drug sales.2 (Suppression Tr. at 6). Illinois

v. Wardlow,

,

,

(2000) (“An individual’s

presence in an area of expected criminal activity, standing alone, is not enough to support a

reasonable, particularized suspicion that the person is committing a crime. * * * But officers

are not required to ignore the relevant characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we

have previously noted the fact that the stop occurred in a ‘high crime area’ among the relevant

contextual considerations in a Terry analysis.”).

{¶ 15} Based on the totality of the circumstances, of which the anonymous breaking

and entering tip was a part, the time of night, the nature of the area, the observation of Gardner

outside an apparently vacant residence, and Gardner’s furtive movements when approached,

we believe Officer House possessed reasonable, articulable suspicion of criminal activity to

justify a brief investigation under Terry. Therefore, he lawfully ordered Gardner out of the

SUV.

{¶ 16} After Gardner exited the vehicle, House performed a pat-down but found

nothing. Because the pat-down produced no evidence, we need not address whether it was

2 Although the anonymous caller had reported a breaking and entering rather than a drug transaction, the fact that Harriett Street was a high-crime area remained a relevant consideration. When he encountered Gardner, House had not yet determined what crime, if any, was occurring. 11

permissible. Following the pat-down, House placed Gardner in his police cruiser without

handcuffs while he investigated further. House returned to the passenger side of the SUV,

where the door remained open. (Suppression Tr. at 12-13). He “leaned” inside the vehicle and

looked to be sure Gardner had not been reaching for a weapon. (Id. at 13). While doing so, he

“could see from between the seats, lying on the back passenger side floorboard was a baggie”

containing 56 heroin capsules. (Id.). House retrieved the baggie and examined the passenger

area further to be sure no weapon was present. (Id. at 14).

{¶ 17} In its ruling, the trial court held that House lawfully had observed the baggie

of heroin “in plain view.” Gardner argues on appeal that the plain-view doctrine does not

apply because House unlawfully intruded into the vehicle in order to see the baggie. Gardner

reasons that House’s act of leaning into the SUV constituted an unauthorized search under the

Fourth Amendment.

{¶ 18} For the plain-view doctrine to apply, two requirements must be satisfied: “(1)

the initial intrusion must be lawful or the officer must properly be in a position where he can

view the particular area, and (2) it must be immediately apparent to the officer that the items

he observes may be evidence of a crime, contraband, or otherwise subject to seizure.” State v.

Pitts, 2d Dist. Montgomery No. 18964,

, *1 (Nov. 21, 2001).

{¶ 19} In Pitts, this court held that an officer’s act of leaning into a stopped vehicle

did not constitute a “search.” This court reasoned:

* * * Pitts argues that the State is unable to meet the first prong of the

plain view test because Officer Orndorff leaning into the car with his flashlight

to attempt to view the area between the seat and the console was an unlawful 12

search. Thus, Ms. Pitts argues that Officer Orndorff was not lawfully intruding

into her vehicle and therefore his leaning into the vehicle was an unlawful

search. * * * We cannot agree that there exists an invisible boundary line

around the interior of a vehicle which the police officers may not cross.

Therefore, we determine that leaning into a vehicle and illuminating the interior

is not a search. Thus, the State also meets the first prong of the plain view

doctrine as Officer Orndorff was lawfully and properly in a place when he

observed the crack cocaine.

Id. at *2.

{¶ 20} This court expressly followed Pitts in State v. Lungs, 2d Dist. Montgomery

No. 22704,

. In Lungs, an officer leaned into a van that contained injured dogs

and dog-fighting paraphernalia. Citing Pitts, this court found that the officer’s act of leaning

into the van did not constitute a search. According to the Lungs panel, “the fact that [the

officer] leaned into the van and utilized a flashlight in observing the evidence [did] not elevate

his conduct to a search, and it [did] not negate the fact that the items were otherwise openly

visible.” Id. at ¶24.

{¶ 21} Pitts and Lungs support the trial court’s determination that the baggie of

heroin was in plain view despite House’s act of leaning into the SUV to see it. In adherence to

stare decisis, we will follow Pitts and Lungs. Therefore, we reject Gardner’s argument that

leaning into the SUV constituted a search and that the baggie was not in plain view.3

3 We note that Pitts cited no authority for its rejection of “an invisible boundary line around the interior of a vehicle which the police officers may not cross.” Not all courts have rejected such a boundary. In U.S. v. Montes-Ramos,

(10th Cir. 2009), the Tenth Circuit Court of Appeals held that “a police officer’s intentional act of intruding a vehicle’s air space, even if by only a 13

{¶ 22} In any event, even if we assume, arguendo, that House engaged in a search

when he leaned into the SUV, the search was permissible. “[P]olice may search the passenger

compartment of an automobile, limited to those areas in which a weapon may be placed or

hidden, if an officer possesses a reasonable belief that an individual is dangerous and may gain

immediate control of weapons located in the vehicle upon returning to it.” State v. Walker, 2d

Dist. Montgomery No. 24542,

. In Walker, this court addressed the

legality of a protective search for weapons when the occupants of a vehicle made furtive

movements during a traffic stop. In finding the search permissible, this court reasoned:

* * * Detective House, a lone officer, initiated a traffic stop after dark in

a high crime area. He testified that, after he activated his flashing lights, shone

a flashlight into the van, and identified himself as a police officer, he observed

Walker and Burcham frantically moving their hands near the floorboard, out of

the officer’s sight. The men did not immediately respond to his commands that

they show their hands. The detective stated that he had concerns that they might

“come up with a weapon.” Under the totality of the circumstances, Detective

House had a reasonable basis to believe that Walker or Burcham may have

been armed and/or that a weapon may have been hidden in the front passenger

few inches, constitutes a search within the meaning of the Fourth Amendment.” Likewise, in U.S. v. Powell,

, 838 (D.C. Cir. 2007), the District of Columbia Circuit Court of Appeals characterized an officer’s act of leaning his head into a stopped car as an unauthorized “search” and found the plain-view doctrine inapplicable. See also State v. Newsome, 8th Dist. Cuyahoga No. 93328,

, ¶33 (McMonagle, J., dissenting) (“Finally, I disagree with the majority’s conclusion summarily finding that the drugs in question were in plain view. Officer Lentz testified that after removing the female passenger from the car, he leaned inside and did a ‘safety search’ * * * ; it was only then that the officer observed a plastic bag containing small individual bags of crack cocaine in the cup holder of the rear portion of the center console of the car. This was not plain view; it was a search.”). 14

area of the van. Accordingly, House was entitled to conduct a limited

protective search for weapons for his safety.

The lawfulness of House’s protective search of the passenger area of the

vehicle was not limited by the fact that the men were handcuffed and seated on

the curb when the search occurred. House testified: “After checking the area

where these individuals had been reaching, if nothing had been discovered, Mr.

Burcham would have been issued a citation for driving with an expired license

plate. And both individuals would have been allowed to leave.” Considering

that, at the time of the search, it was likely that one, if not both, of the

occupants would be permitted to return to the van, House acted reasonably

when, out of a concern for the officers’ safety, the van was searched for

weapons prior to allowing Burcham and Walker to re-enter the vehicle.

Id. at ¶30-31.

{¶ 23} We reach the same conclusion in this case, which coincidentally involves the

same officer. Working alone while investigating a reported breaking and entering, House

approached a parked SUV near midnight in a high crime area. He observed Gardner standing

next to the vehicle outside an apparently vacant residence. Gardner proceeded to sit down in

the passenger seat while reaching back and moving his arm around as if to locate something.

House feared that Gardner was trying to retrieve a weapon. When asked to step out of the

vehicle, Gardner did not immediately comply. Instead, he reached even further with his hand.

Under these circumstances, House reasonably believed Gardner may have been attempting to

retrieve a weapon. Accordingly, he was entitled to conduct a protective search for his safety. 15

{¶ 24} As in Walker, our conclusion is not altered by Gardner’s detention in a police

cruiser when House conducted the protective search. Although Gardner was being detained,

his father also had stepped outside. At that time, House did not know whether a crime was

occurring or what Gardner’s father would do. (Suppression Tr. at 13). Additionally, House

testified that Gardner was not under arrest and would have been permitted to return to the

SUV if heroin had not been discovered. (Id. at 17). Under these circumstances, House acted

reasonably when, out of a concern for his safety, he searched the vehicle for weapons prior to

allowing anyone to re-enter it.

{¶ 25} Finally, we reject Gardner’s argument that House violated Arizona v. Gant,

,

,

(2009), when he found the baggie of heroin in

the SUV. Gant addressed whether the search-incident-to-arrest exception to the Fourth

Amendment’s warrant requirement allowed a vehicle search after a driver was arrested and

placed in a patrol car. Here Gardner was not under arrest when House observed the baggie.

House arrested Gardner only after discovering the heroin. (Suppression Tr. at 16). As there

was no search incident to arrest, Gant does not apply.

{¶ 26} Based on the reasoning set forth above, we overrule Gardner’s assignment of

error and affirm the judgment of the Montgomery County Common Pleas Court.

.............

DONOVAN, J., concurs.

FROELICH, J., concurring:

{¶ 27} The officer had the right to approach the Appellant and ask him to step away

from the vehicle. I question placing the Appellant in the cruiser, but there apparently was

nothing found as a result of this action. 16

{¶ 28} There is no discussion of how far the officer “leaned” inside the vehicle; we

have held in Pitts and Lungs that merely “breaking the close” does not constitute a search. At

the same time, an officer’s entering the vehicle and then finding something in “plain view”

would be prohibited; the burden is on the State to prove that the officer’s observations of the

drugs were made from a place where the officer lawfully was. The trial court determined that

the officer simply was “leaning into the vehicle” and “was not unlawfully intruding into” the

vehicle. With the record before us, I cannot say the court erred.

..........

Copies mailed to:

Mathias H. Heck R. Lynn Nothstine Adelina E. Hamilton Hon. Dennis J. Adkins