UNITED STATES of America, Plaintiff-Appellee, v. Marlon REED, Defendant-Appellant, 220 F.3d 476

HOOD, D. J., delivered the opinion of the court, in which NORRIS, J., joined. GILMAN, J. (pp. 479-85), delivered a separate dissenting opinion. AMENDED OPINION HOOD, District Judge. On December 14, 1998, Marlon Reed entered a conditional guilty plea to one count of possession with the intent to distribute crack cocaine pursuant to 21 U.S.C. § 841(a)(1). As a result of his plea, the district court sentenced Reed to ninety-two months incarceration with a three year period of supervised release, and a fine of $3,500 with a special assessment of $100.

Having reserved his right to appeal the search and seizure issue in his case, Reed filed a timely appeal of the district court’s decision to deny his motion to suppress the nineteen individually wrapped crack cocaine rocks found in a Frito-Lay bag on Reed’s person. This appeal specifically challenges the district court’s finding that probable cause for his arrest existed. I.

Factual Background The events leading up to Reed’s arrest are as follows: Officers Joey Thompson and Robert Horton observed Reed on the sidewalk premises of a housing development known as the Butler Metropolitan Housing Authority (hereinafter “BMHA”). The officers knew Reed by sight from prior contact with him. Officer Thompson had personally warned Reed to stay away from the BMHA property on a previous occasion as Reed was not a resident of the housing development.

Since BMHA’s premises contained twenty-six “No Trespassing” signs, the officers approached Reed for the purpose of arresting him for criminal trespass pursuant to a Hamilton, Ohio ordinance. When Reed attempted to quickly walk away, the officers subdued him. Officer Thompson then began a “pat down” of Reed who started to turn his body away.

Reed then removed the Frito-Lay bag containing the crack cocaine, and attempted to toss it toward a friend standing nearby while simultaneously stating that he did not want to give up his “weed.” A female picked up the bag, whereupon Officer Thompson immediately retrieved it from her. Reed was then taken to the Hamilton Police Department for booking. Prior to trial, Reed filed a motion to suppress the crack cocaine. The district court determined that probable cause existed in Reed’s arrest, and denied said motion on the basis that the evidence was subsequently obtained by the officers incidental to the arrest.

In his appeal, Reed argues that probable cause was lacking, thereby rendering his arrest unlawful. Reed further argues that all evidence obtained as a result of this unlawful arrest should have been suppressed by the district court. II. Analysis “In reviewing a district court’s determinations on suppression questions, a district court’s factual findings are accepted unless they are clearly erroneous; however, the district court’s application of law to the facts, such as a finding of probable cause, is reviewed de novo.” United States v. Thomas, 11 F.3d 620, 627 (6th Cir.1998).

The threshold for probable cause is based upon “ ‘factual and practical considerations of every day life’ [that] could lead a reasonable person to believe that there is a probability that an illegal act has occurred or is about to occur.” United States v. Strickland, 144 F.3d 412, 416 (6th Cir.1998)(citing Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Officers are not required to rule out every possible explanation other than a suspect’s illegal conduct before making an arrest. See Strickland, 144 F.3d at 416.

However, an arresting officer must be able to articulate “concrete facts” from which the “totality of the circumstances” indicates that an arrest is warranted. Id. at 415; Gates, 462 U.S. at 238, 103 S.Ct. 2317. The denial of Reed’s suppression motion was based on the district court’s finding of probable cause in Reed’s arrest. Reed argues that probable cause for criminal trespass was lacking under Hamilton city ordinance § 541.05. Said ordinance provides in pertinent part: (

a) No person, without privilege to do so, shall do any of the following:

(1) Knowingly enter or remain on the land or premises of another;

(2) Knowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes or hours, when the offender knows he is in violation of any such restriction or is reckless in that regard;

(3) Recklessly enter or remain on the land or premises of another, as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access; (4)Being on the land or premises of another, negligently fail or refuse to leave upon being notified to do so by the owner or occupant, or the agent or servant of either. (

d) Whoever violated this

section is guilty of criminal trespass, a misdemeanor of the fourth degree. The officers based their finding of probable cause to arrest Reed for criminal trespass on the following factors:

(1) Reed was given prior warning not to enter BMHA property by Officer Thompson;

(2) Reed was observed on BMHA property;

(3) Reed was not a resident of the BMHA housing project; (4) there were twenty-six “No Trespassing” signs posted throughout the BMHA property, providing adequate notice;

(5) Reed walked away upon the lawful approach of the officers. These factors must be measured up to the time at which Reed thought he was not reasonably “free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The factors do not have to establish a prima facie case for criminal trespass; however, said factors must be sufficient to indicate to a reasonable person that an illegality has occurred or is about to occur. See Strickland, 144 F.3d at 416.

Where probable cause exists, “[a] police officer is permitted to make an arrest without a warrant for a misdemeanor committed in his presence.” United States v. Smith, 73 F.3d 1414, 1416 (6th Cir.1996). The Court finds that these five factors constitute the level of evidence necessary to establish probable cause for Reed’s arrest. All five factors existed during the time in which Reed was free to leave. A reasonable officer in the position of either Thompson or Horton could conclude from the totality of the circumstances that probable caused existed to arrest Reed for criminal trespass.

Although Reed has set forth no controlling authority indicating that the officers must conclude prior to the arrest whether Reed enjoyed the privilege of entering or remaining on BMHA property, we are mindful of the discussion during oral argument that Washington v. Blair, 65 Wash.App. 64, 827 P.2d 356 (1992) finds probable cause to be lacking in circumstances in which an officer had no knowledge of the existence of privilege prior to an arrest for criminal trespass.

However, we believe the Washington state court decision was based upon a requirement negating the affirmative defense of privilege prior to arresting a person for trespass. This Circuit does not require such an added inquiry to the probable cause determination. It is argued that the Supreme Court’s decision of Florida v. J.L., — U.S. —, 120 S.Ct. 1375 (2000), which held that an anonymous tip, without more, is insufficient to justify a stop and frisk by an officer warrants reversal of the district court’s denial of the motion to suppress. We disagree.

The officers’ decision to stop the defendant in J.L. and frisk him for a concealed weapon was based “solely on a call made from an unknown location by an unknown caller.” Id. at 1378. However, the decision by Officers Thompson and Horton to stop Reed for trespassing was based on the five factors identified above. These five factors, unlike an anonymous tip lacking any indicia of reliability, provided the officers with probable cause to stop and pat down Reed. For these reasons, Florida v. J.L. is distinguishable from the facts of the ease sub jtidice. III.

Conclusion There is no indication that the district court’s findings of fact are erroneous. A review of the law applied to said findings of fact leads to a determination that the district court did not err in refusing to suppress the crack cocaine possessed by Reed on the night of his arrest. Said evidence was subsequently obtained by Officers Thompson and Horton incidental to Reed’s arrest. Accordingly, we AFFIRM Reed’s conviction and sentence. .

According to the dissent, "the fact that Reed started to walk away when the officers approached may raise a suspicion that he was engaged in any oné of a multitude of improper activities....” While that may be, the officers were entitled to infer that he was walking away because he knew he was not privileged to be there. They were not required to eliminate all other reasonable inferences. See Strickland, 144 F.3d 412, 416 (6th Cir.1998)(stating "[t]o find probable cause, the law does not require that we rule out every conceivable explanation other than a suspect's illegal conduct.”)