[Cite as State v. Gordon,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26786

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE JACK A. GORDON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 12 09 2669

DECISION AND JOURNAL ENTRY

Dated: November 13, 2013

BELFANCE, Presiding Judge.

{¶1} Defendant-Appellant Jack Gordon appeals from the denial of his motion to

suppress in the Summit County Court of Common Pleas. For the reasons set forth below, we

affirm.

I.

{¶2} Following the September 2012 traffic stop of a vehicle in which Mr. Gordon was

a passenger, Mr. Gordon was indicted on one count of possession of drugs (Clonazepam) in

violation of R.C. 2925.11(A)(C)(2), a fifth-degree felony, and one count of aggravated

possession of drugs (Oxycodone/Percocet) in violation of R.C. 2925.11(A)(C)(1), a felony of the

fifth degree. Mr. Gordon filed a motion to suppress asserting, inter alia, that police lacked

probable cause to arrest him, and, thus, the search incident to arrest was unlawful. The matter

proceeded to a hearing after which both sides filed briefs in support of their arguments. The trial 2

court denied Mr. Gordon’s motion, and he entered a no-contest plea to the charges. The trial

court sentenced Mr. Gordon to two years of community control.

{¶3} Mr. Gordon has appealed, raising a single assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT’S MOTION TO SUPPRESS.

{¶4} Mr. Gordon asserts in his sole assignment of error that the trial court erred in

denying his motion to suppress. Specifically, he challenges whether the officer had probable

cause to arrest him.

{¶5} Generally, review of a motion to suppress presents a mixed question of law and

fact. State v. Burnside,

,

, ¶ 8. Thus, we defer to the trial

court’s findings of fact if they are supported by competent, credible evidence and review its

application of the law to the facts de novo. State v. Metcalf, 9th Dist. Summit No. 23600, 2007-

Ohio-4001, ¶ 6.

{¶6} “A warrantless arrest by an officer who does not have probable cause at the time

of the arrest is constitutionally invalid.” State v. Finney, 9th Dist. Summit No. 21180, 2003-

Ohio-529, ¶ 18. Whether probable cause exists turns on “whether at that moment [of arrest] the

facts and circumstances within the[ officers’] knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a prudent man in believing that the

[defendant] had committed or was committing an offense.” Beck v. Ohio,

(1964). “Once a defendant has shown a warrantless seizure and has adequately demonstrated

that the basis of his challenge is lack of probable cause, the state bears the burden of proof on the

issue of whether probable cause existed.” Finney at ¶ 18. 3

{¶7} The only witness to testify at the suppression hearing was Officer Timothy

Wypasek. Officer Wypasek testified that he was working the night shift on September 13, 2012,

with a partner in a known drug area when they stopped a vehicle for failing to use a turn signal.

While his partner, Officer Donohue, was addressing the driver of the vehicle, Officer Wypasek

proceeded to approach the passenger, Mr. Gordon. As he did so, Officer Wypasek noticed that

Mr. Gordon had a pill bottle in his hand and was “looking back at [Officer Donohue] and the

driver area[.]” Mr. Gordon then “stuffed the pill bottle between his seat and the center console

area.” Based on this observation, which Officer Wypasek interpreted as Mr. Gordon attempting

to hide contraband, Officer Wypasek handcuffed and arrested Mr. Gordon. Officer Wypasek

testified that Mr. Gordon appeared intoxicated, was not cooperative, and asked several times why

he was being handcuffed. Officer Wypasek told Mr. Gordon that it was because he was

attempting to hide the pill bottle. In his mind, Officer Wypasek believed that Mr. Gordon was

committing a criminal offense, namely obstructing official business1, and that was the basis of

the arrest.

{¶8} After arresting Mr. Gordon, Officer Wypasek located a pill bottle missing its top

in the vehicle and also searched Mr. Gordon. While nothing was found inside the pill bottle,

Officer Wypasek found a top to a pill bottle in Mr. Gordon’s pocket along with “various pills[.]”

{¶9} Mr. Gordon argues that the officer lacked probable cause to arrest him because he

did not have probable cause to arrest him for obstructing official business. We conclude that Mr.

Gordon’s arrest was not constitutionally invalid. The proper question is whether Officer

Wypasek had probable cause to arrest Mr. Gordon for any offense. Although Mr. Gordon has

1 Obstructing official business is generally a misdemeanor of the second degree. See R.C. 2921.31(B). 4

focused upon Officer Wypasek’s subjective belief as to the offense he believed he witnessed, the

officer’s subjective belief is not determinative. Rather, the question is whether, under the

circumstances, the officer’s belief that he had witnessed the commission of a criminal offense

was objectively reasonable. See Dixon v. Maxwell,

, 21 (1964); see also

Devenpeck v. Alford,

(2004) (“Our cases make clear that an arresting officer’s

state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.

That is to say, his subjective reason for making the arrest need not be the criminal offense as to

which the known facts provide probable cause. As we have repeatedly explained, the fact that

the officer does not have the state of mind which is hypothecated by the reasons which provide

the legal justification for the officer’s action does not invalidate the action taken as long as the

circumstances, viewed objectively, justify that action.”) (Internal quotations and citations

omitted.); State v. Ware, 11th Dist. Lake No. 2003-L-141,

; State v. Jeter,

5th Dist. Stark No. 1999CA00029,

, *4 (Sept. 20, 1999), fn. 3. Irrespective of

whether there was probable cause to arrest Mr. Gordon for obstructing official business, as

Officer Wypasek believed, the facts and circumstances before Officer Wypasek would lead a

reasonable person to believe that Mr. Gordon was committing a crime by hiding the pill bottle.

See Beck,

; Finney,

, at ¶ 20-21. For instance, the facts and

circumstances could cause a reasonable person to believe that Mr. Gordon was tampering with

evidence, a felony of the third degree. See R.C. 2921.12(A)(1). The statute prohibiting

tampering with evidence provides that “[n]o person, knowing that an official proceeding or

investigation is in progress, or is about to be or likely to be instituted, shall * * * conceal[] or

remove any * * * thing, with purpose to impair its value or availability as evidence in such

proceeding or investigation[.]” 5

{¶10} After the traffic stop, as Officer Wypasek was walking over to Mr. Gordon, Mr.

Gordon looked over at Officer Donohue, who was addressing the driver, and then proceeded to

stuff the pill bottle between the seat and the console. Given the circumstances, a reasonable

person could conclude that Mr. Gordon was tampering with evidence. Mr. Gordon’s actions

could be viewed objectively to indicate an awareness of a police investigation and intent to hide

the pill bottle so that it would not be found during the investigation. We note that “there is no

requirement that an arresting officer absolutely know, in fact, that the person arrested has

committed a crime. Only probable cause is needed * * *.” State v. Noe, 6th Dist. Fulton No. F-

82-3,

, *4 (Sept. 3, 1982). Moreover, the fact that Mr. Gordon was not prosecuted

for either obstruction of official business or tampering with evidence does not invalidate the

arrest. See

(noting that “[w]hether or not charges are ever filed has no effect on the validity

of the original arrest[]”); see also Cuyahoga Falls v. Jones, 9th Dist. Summit No. 10668,

, *3 (Oct. 6, 1982). To the extent that Mr. Gordon argues that the pill bottle was

unrelated to the traffic violation which the officers were investigating and, thus, could not be

support for a finding of probable cause to arrest him for tampering, we see no merit to this

argument. We note that this Court has upheld convictions for tampering with evidence in which

the evidence tampered with was not directly related to the officer’s purpose for investigating the

defendant. See State v. Skorvanek,

,

(9th Dist.)

(“This court has never held that a defendant commits the offense of tampering with evidence

only if he tampers with an item directly related to a police officer’s purpose for investigating the

defendant.”). Given that police had probable cause to arrest Mr. Gordon, Officer Wypasek also

was authorized to search Mr. Gordon incident to that arrest. See Finney,

, at ¶ 22.

Mr. Gordon does not dispute this proposition, and, thus, given our above conclusions, there is no 6

argument that the pills found on Mr. Gordon were not discovered as a result of a lawful search.

Accordingly, the trial court properly denied Mr. Gordon’s motion to suppress. We overrule Mr.

Gordon’s sole assignment of error.

III.

{¶11} In light of the foregoing, we affirm the judgment of the Summit County Court of

Common Pleas.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT 7

WHITMORE, J. HENSAL, J. CONCUR.

APPEARANCES:

DAVID G. LOMBARDI, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.