[Cite as State v. Mitchem,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-130351 TRIAL NO. B-1207165 Plaintiff-Appellee, :

vs. : O P I N I O N.

MBIYA MITCHEM, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 4, 2014

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

J. Thomas Hodges, for Defendant-Appellant.

Please note: we have removed this case from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

FISCHER, Judge.

{¶1} Defendant-appellant Mbiya Mitchem appeals from the Hamilton

County Common Pleas Court’s judgment convicting him upon no-contest pleas to

carrying concealed weapons in violation of R.C. 2923.12(A)(2) and having weapons

under a disability in violation of R.C. 2923.13(A)(3). Mitchem advances on appeal a

single assignment of error, challenging the overruling of his motion to suppress the

handgun that he was convicted of unlawfully possessing. We affirm the court’s

judgment.

Investigation and Arrest

{¶2} Mitchem’s weapons charges arose from his encounter with several city

of Cincinnati police officers on October 22, 2010. At approximately 12:30 p.m.,

Officer David Hunter, Jr., responded to a citizen’s complaint concerning trespassing

at a house on California Avenue in the city’s Bond Hill neighborhood. The citizen

reported seeing two to three black males in their late teens or early twenties, one in a

gray striped shirt and another in a black jacket, “loitering” at a house posted “no

trespassing.” When the officer arrived, he observed four males sitting on the steps of

the house. The officer knew one individual, a 21-year-old man, by name, and he

knew a second individual, a boy in his “mid-teens,” by a nickname. He did not know

the other two individuals.

{¶3} Officer Hunter managed to detain one of the unknown suspects, while

the others fled. The officer placed the detained suspect in his cruiser and broadcast

the number of the fleeing suspects, the age and race of one of them (“MB 18”), and

the name of the suspect that he knew by name. And because the officer knew that

the named suspect frequented the 1400 block of the next street over, Carolina

2 OHIO FIRST DISTRICT COURT OF APPEALS

Avenue, the officer also indicated in the broadcast his belief that the fleeing suspects

were headed in that direction.

{¶4} Officer Hunter then proceeded to the 1400 block of Carolina Avenue,

where, in response to his broadcast, he was joined by Police Sergeant Demeco

Anderson and Police Sergeant Shawna Lambert. From where the officers sat, they saw

a man, later identified as 35-year-old Mbiya Mitchem, clad in a black shirt and black

pants, emerge from between the houses at 1430 and 1434 Carolina Avenue. Officer

Hunter told Sergeant Anderson and Sergeant Lambert that the man could “possibly” be

one of their suspects and agreed that Sergeant Anderson and Sergeant Lambert “ought

to check it out.”

{¶5} Sergeant Anderson parked just short of where Mitchem stood on the

driveway that ran between the two houses. The officer stepped out of his cruiser and

told Mitchem to stop. Mitchem responded, “[Y]ou can’t touch me, I’m at my house,”

and turned toward the steps leading from the driveway to the front porch of 1430

Carolina Avenue. The officer again told Mitchem to stop and asked him to identify

himself. Mitchem continued toward, then onto, the steps and then the porch and took

a seat there.

{¶6} Sergeant Anderson and Sergeant Lambert followed Mitchem onto the

porch. Ignoring further requests by the officers that he identify himself and stand up,

and despite Sergeant Lambert’s threat to use her stun gun, Mitchem kept his seat and

started to light a cigarette. Sergeant Lambert took the cigarette from him, and when he

again refused their request that he stand, the officers moved to arrest him for

“hindering” their criminal-trespass investigation.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶7} Mitchem forcefully resisted the officers’ efforts to arrest him, causing

Sergeant Anderson to use his stun gun and to take Mitchem to the ground. As

Mitchem, with one hand at the waistband of his pants, tried with his other hand to take

the stun gun from Sergeant Anderson, Sergeant Lambert saw, and alerted Sergeant

Anderson to the presence of, a handgun on the porch floor, next to Mitchem’s shoulder.

Sergeant Lambert’s warning prompted Sergeant Anderson to cast aside the stun gun

and secure Mitchem’s arms, while Sergeant Lambert secured the gun, and a third

officer assisted in handcuffing Mitchem.

Plain View

{¶8} Mitchem moved to suppress the handgun on the ground that its

seizure did not comport with the Fourth Amendment to the United States

Constitution. We hold that the trial court properly overruled the motion, because the

handgun was properly seized under the plain-view exception to the Fourth

Amendment’s warrant requirement.

{¶9} The Fourth Amendment secures the right to be free from an

unreasonable search or seizure and requires a warrant to be particular and supported

by probable cause. Evidence derived from a search or seizure that violates the

Fourth Amendment is subject to exclusion at trial. Mapp v. Ohio,

,

,

(1961).

{¶10} The warrantless seizure by a law enforcement officer of an object in

plain view does not violate the Fourth Amendment if (1) the officer did not violate

the Fourth Amendment in arriving at the place from which the object could be

plainly viewed, (2) the discovery of the evidence was inadvertent, and (3) its

incriminating nature was immediately apparent. Coolidge v. New Hampshire, 403

4 OHIO FIRST DISTRICT COURT OF APPEALS

U.

,

(1971); State v. Williams,

,

(1978), paragraph one of the syllabus.

{¶11} Here, the handgun appeared on the porch floor within Mitchem’s

reach, as he, with one hand at the waistband of his pants, forcefully resisted the officers’

attempts to arrest him. The discovery of the handgun was thus inadvertent, when it

came about not in the course of a search for a weapon, but while the officers were

attempting to arrest Mitchem for “hindering” their investigation. And the gun’s

incriminating nature was immediately apparent, when the circumstances under

which the handgun appeared provided probable cause to arrest Mitchem for carrying a

concealed weapon. See R.C. 2923.12(A)(2) (proscribing the act of knowingly having a

handgun “concealed on [one’s] person or concealed ready at hand”); State v.

Halczyszak,

,

(1986), paragraph three of the

syllabus (holding that “[t]he ‘immediately apparent’ requirement * * * is satisfied

when police have probable cause to associate an object with criminal activity”).

{¶12} Mitchem contends that the officers, when they saw the handgun, had

not attained their vantage point in compliance with the Fourth Amendment. He

argues that the police were not acting upon a reasonable suspicion that he was one of

the fleeing trespassers, that subsequent events did not provide probable cause for an

arrest, and that the officers’ entry onto the porch violated the Fourth Amendment.

We disagree.

{¶13} A public place. The Fourth Amendment, by its terms, protects “the

right of the people to be secure in their * * * houses * * * against unreasonable

searches and seizures.” This protection extends to the area known as the “curtilage”

of a home, defined as “the area immediately surrounding and associated with the

5 OHIO FIRST DISTRICT COURT OF APPEALS

home.” Florida v. Jardines, ___U.S. ___,

,

(2013), quoting Oliver v. United States,

,

,

(1984). Thus, consistent with the Fourth Amendment, a government official may

not effect a search or seizure within the curtilage of a person’s home without either a

warrant or exigent circumstances. United States v. Dunn,

,

,

(1987).

{¶14} An area is protected under the Fourth Amendment as part of a home’s

curtilage if “the area harbors the intimate activity associated with the sanctity of a * *

* home and the privacies of life.”

, quoting

, quoting Boyd v.

United States,

,

,

(1886). Four factors guide

the determination whether an area constitutes a home’s curtilage: (1) the area’s

proximity to the home; (2) how the area is used; (3) whether the area is contained

within an enclosure surrounding the home; and (4) the extent to which the area is

shielded from observation by people passing by. Id. at 301.

{¶15} The front porch of a home has come to be regarded as “the classic

exemplar” of an area protected as part of a home’s curtilage, because it is “an area

adjacent to the home and ‘to which the activity of home life extends.’ ” Jardines at

1415, quoting

. Here, the evidence adduced at the suppression

hearing would not compel a contrary conclusion.

{¶16} The driveway where the police officers first saw and then engaged with

Mitchem was also adjacent to his home. But it was not enclosed in a manner that

shielded it from the view of the officers. And it was not otherwise shown to “harbor[]

the intimate activity associated with the sanctity of a * * * home and the privacies of

life.” Accordingly, the driveway was not part of the home’s curtilage, but instead

6 OHIO FIRST DISTRICT COURT OF APPEALS

constituted a public place. See State v. Eberhart, 1st Dist. Hamilton No. C-010346,

, ¶ 13 (Mar. 15, 2002) (holding that a traffic stop in

defendant’s driveway occurred in a “public place” when there was no evidence that

the driveway was somehow hidden from public view).

{¶17} Reasonable suspicion. For purposes of determining the

protections afforded by the Fourth Amendment, the United States Supreme Court has

identified three categories of police-citizen contacts: (1) a consensual encounter; (2)

an investigative, or Terry, stop; and (3) a seizure that constitutes an arrest. Florida

v. Royer,

,

,

(1982).

{¶18} A police officer may, consistent with the Fourth Amendment, stop and

briefly detain a person without a warrant, if the officer has a reasonable and

articulable suspicion that “criminal activity may be afoot.” Terry v. Ohio,

,

,

(1968). In reviewing a trial court’s reasonable-

suspicion determination, an appellate court must, first, review the trial court’s

findings of the “historical facts” for “clear error,” giving “due weight” to the

inferences drawn by the trial court from those facts, and, second, determine

“whether [the] historical facts, viewed from the standpoint of an objectively

reasonable police officer, amount to reasonable suspicion * * *.” Ornelas v. United

States,

,

,

(1996).

{¶19} In the proceedings below, the trial court made no factual findings. But

the historical facts material to our analysis here are undisputed: Officer Hunter

observed the offense of criminal trespassing and the fleeing suspects; in the course of

investigating the offense and pursuing the suspects, the officers alerted to Mitchem

because, in race, gender, clothing, and location, he matched the description of the

7 OHIO FIRST DISTRICT COURT OF APPEALS

suspects sought; and Officer Hunter confirmed to Sergeant Anderson and Sergeant

Lambert that further investigation was warranted. We conclude, under the totality of

the circumstances, that the officers’ initial stop of Mitchem in the driveway of his home

was undertaken upon a reasonable and articulable suspicion that he had committed the

crime of trespassing.

{¶20} Authority to arrest. We agree with Mitchem that events subsequent

to his initial contact with the police did not give rise to probable cause to arrest him for

criminal trespass. Nor did his conduct provide probable cause to arrest him for

obstruction of official business in violation of R.C. 2921.31, when the record does not

demonstrate that he affirmatively acted with the intent to hamper or impede the

officers’ trespassing investigation, or that his conduct had that effect. See State v.

Grice,

,

,

(1st Dist.)

(holding that the mere refusal to produce identification upon the request of a police

officer cannot support a conviction for obstructing official business). Accord State v.

Crawford, 2d Dist. Montgomery No. 25506,

; State v.

Vitantonio, 11th Dist. Lake No. 2012-L-144,

.

{¶21} But R.C. Chapter 2921 proscribes “Offenses Against Justice and Public

Administration” other than obstruction of official business, including the failure to

disclose one’s personal information in violation of R.C. 2921.29. R.C. 2921.29(A)(1)

provides, in relevant part, that “[n]o person who is in a public place shall refuse to

disclose the person’s name, address, or date of birth, when requested by a law

enforcement officer who reasonably suspects * * * [that] [t]he person * * * has

committed * * * a criminal offense.” Refusing to disclose this information is a fourth-

degree misdemeanor. R.C. 2921.29(B). And a law-enforcement officer may arrest a

8 OHIO FIRST DISTRICT COURT OF APPEALS

person who violates the statute in his presence. See R.C. 2935.03(A) (permitting a

police officer to arrest, and to detain until a warrant can be obtained, any person “found

violating” a state law).

{¶22} During his initial contact with the police as he stood in his driveway,

Mitchem, while in that public place, refused to identify himself when requested to do so

by police officers acting under a reasonable suspicion that he had committed the crime

of trespassing. By his refusal, Mitchem violated R.C. 2921.29(A)(1). And because he

violated the statute in the officers’ presence, the officers were empowered to arrest him.

{¶23} Hot pursuit. A warrantless entry into a home to effect an arrest

violates the Fourth Amendment, unless it is based upon, and within the scope of, a

recognized exception to the warrant requirement. Coolidge,

,

,

. “Hot pursuit” provides the exigency justifying a

warrantless entry, when a suspect seeks to thwart a lawful arrest by retreating from a

public place to a private place. United States v. Santana,

,

,

(1976), citing Warden v. Hayden,

,

,

(1967).

{¶24} The officers’ warrantless entry onto Mitchem’s front porch implicated

the Fourth Amendment, because the porch was part of his home’s curtilage. But the

driveway was a public place. “Hot pursuit” provided the exigency justifying the entry,

because R.C. 2935.03(A) conferred upon the officers the authority to arrest Mitchem

for “hindering” their investigation by failing, as required by R.C. 2921.29(A)(1), to

identify himself upon request in a public place, and he could not thwart his lawful arrest

by retreating from a public place to a private place. See Middletown v. Flinchum,

,

(2002) (holding that “hot pursuit” constitutes

9 OHIO FIRST DISTRICT COURT OF APPEALS

exigent circumstances even if the offense for which the suspect is being arrested is a

misdemeanor). And because the officers’ warrantless entry onto the porch to arrest

Mitchem was based upon, and within the scope of, a recognized exception to the

Fourth Amendment’s warrant requirement, the Fourth Amendment was not violated

by the officers’ seizure of the handgun that appeared in plain view on the porch

during the arrest.

We Affirm

{¶25} Thus, the handgun that Mitchem was convicted of unlawfully

possessing was not subject to exclusion. The warrantless seizure of the handgun in

plain view did not violate the Fourth Amendment, because its discovery was

inadvertent, its incriminating nature was immediately apparent, and “hot pursuit” to

effect a lawful arrest provided the exigency justifying the warrantless entry onto the

front porch, where the handgun appeared in plain view. We, therefore, hold that the

trial court properly overruled Mitchem’s motion to suppress. Accordingly, we

overrule the assignment of error and affirm the court’s judgment.

Judgment affirmed.

CUNNINGHAM, P.J., and DEWINE, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

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