The STATE of Ohio, Appellant, v. HARDING, Appellee, 180 Ohio App. 3d 497

Fain, Judge. {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from an order of the trial court suppressing evidence. The state contends that the trial court erred in finding that the police officer who stopped defendant-appellee, William R.

Harding, lacked reasonable and articulable suspicion justifying the stop, and, in the alternative, that an outstanding warrant for Harding’s arrest, although unknown to the officer at the time of the stop, furnished an independent basis for the stop. {¶ 2} Although we agree with the trial court that the stopping police officer lacked reasonable and articulable suspicion to justify stopping Harding, we agree with the state that the outstanding warrant for Harding’s arrest furnished an independent basis for the stop, even though the existence of the warrant was unknown to the officer at the time of the stop.

Consequently, we conclude that the trial court erred when it suppressed the evidence obtained as a result of the stop. The order suppressing evidence is reversed, and this cause is remanded for further proceedings consistent with this opinion. I {¶ 3} One morning in October 2007, Dayton Police Officer Greigee Coleman was on bicycle patrol with his partner, Officer Jason Barnes. Officers Coleman and Barnes were members of the Dayton Metropolitan Housing Authority (“DMHA”) task force assigned to patrol the area between Groveland Avenue and McCabe Avenue in Dayton, Ohio.

Officer Coleman testified that he and Officer Barnes had been ordered to check the area for trespassers and report other crimes committed in the area. Officer Coleman maintained that the DMHA property that they were ordered to patrol was known as a high-crime area and that he had personally made several arrests for “trespassing, guns, and drug activity.” {¶ 4} As he and Officer Barnes were traveling down Groveland Avenue, Officer Coleman observed Harding walking between two buildings located on DMHA property.

Officer Coleman testified that it was his experience in patrolling the DMHA property that trespassers would often walk between the buildings to avoid detection by the police. After Harding left the DMHA property and crossed the street, Officer Coleman pulled his bicycle up next to him. Officer Coleman identified himself to Harding as a police officer and stated that he was patrolling the area for trespassers on DMHA property. Harding stopped walking, and Officer Coleman asked him whether he lived at the DMHA property.

Harding stated that he did live at the property, and Officer Coleman asked him whether he could produce identification to verify his residence. Harding, who was wearing only jeans and a t-shirt, began to reach for his back pocket, ostensibly to retrieve his identification. Officer Coleman ordered him to stop moving. Officer Coleman testified that he patted Harding down in order to check for weapons as well as an ID card. Officer Coleman patted Harding down from behind but did not find a weapon or any identification. Harding stated that his ID might be in his front pocket.

Officer Coleman patted the front of Harding’s body down, but again found nothing. Officer Coleman testified that he ordered Harding to hold his hands out to his sides during the search. {¶ 5} After the pat-down, Officer Barnes asked Harding again whether he lived at the DMHA property. Upon being questioned a second time, Harding stated that he did not live at the DMHA property, but lived instead at a residence on South Upland. At this point, Officer Coleman testified that he asked Harding for his social security number, which Harding supplied.

Shortly after transmitting Harding’s social security number to police dispatch, Officer Coleman was informed that Harding had three outstanding warrants for his arrest. Officers Coleman and Barnes then arrested Harding, placed him in handcuffs, and performed a search incident to arrest. During the search, Officer Barnes found a baggie of crack cocaine located in Harding’s right front coin pocket.

Officer Coleman tested the substance at the scene with cobalt reagent; the substance tested positive for cocaine. {¶ 6} Harding was charged by indictment for possession of crack cocaine in an amount exceeding five grams but less than ten grams, in violation of R..C. 2925.11(A), a felony of the third degree. {¶ 7} Harding filed a motion to suppress the evidence, contending that it was obtained as a result of an unlawful search and seizure.

After the suppression hearing, the trial court sustained Harding’s motion to suppress in a written decision in which it found that no evidence was presented by the state that Harding was uncooperative or that he was doing anything illegal prior to the stop. The court held that although the initial encounter between Harding and the police was consensual, Officer Coleman’s pat-down was not based on any reasonable and articulable suspicion that Harding was armed. Thus, the police had unlawfully detained Harding from the point of the pat-down through the remainder of the detention and subsequent arrest.

The trial court further held that the illegality of detention was not cured by the existence of outstanding warrants for Harding’s arrest. The trial court suppressed the crack cocaine found during the search of Harding incident to his arrest. {¶ 8} From the order suppressing evidence, the state appeals.

II {¶ 9} The state of Ohio’s sole assignment of error is as follows: {¶ 10} “The trial court erred in granting the defendant’s motion to suppress evidence discovered during a search incident to defendant’s arrest on outstanding warrants.” {¶ 11} The state contends that the trial court erred when it sustained Harding’s motion to suppress. Initially, the state argues that the totality of the circumstances surrounding Officer Coleman’s pat-down search of Harding was justified by a reasonable and articulable suspicion of criminal activity.

Thus, the state asserts that Harding was lawfully detained when he provided Officers Coleman and Barnes with his social security number, which, in turn, led to Harding’s arrest for three outstanding warrants. Pursuant to a lawful search incident to arrest for the outstanding warrants, Officer Coleman discovered a baggie of crack cocaine in Harding’s right front pocket. {¶ 12} In the alternative, the state argues that even if Harding’s initial detention was unlawful, the officers seized the crack pursuant to a lawful search incident to a valid arrest premised on his three outstanding warrants.

In support of this argument, the state relies on our holding in Dayton v. Click (Oct. 5, 1994), Montgomery App. No. 14328, 1994 WL 543210, in which we stated that when a valid warrant for arrest exists, the exclusionary rule does not apply to exclude evidence of an illegal act discovered after an unlawful detention. In light of the existence of an outstanding warrant, a defendant has no reasonable expectation of privacy to be free from arrest and search by the police. State v. Williams, Montgomery App. No. 22535, 2008-Ohio-6030, 2008 WL 4958640, citing State v. Smith, Montgomery App.

No. 22434, 2008-Ohio-5523, 2008 WL 4688767, at ¶ 11. A. Officer Coleman Lacked Reasonable and Articulable Suspicion. {¶ 13} “Contact between police officers and the public can be characterized in different ways. The first manner of contact and the least restrictive is contact that is initiated by a police officer for purposes of inquiry only. ‘[M]erely approaching an individual on the street or in another public place[,]’ asking questions for voluntary, uncoerced responses, does not violate the Fourth Amendment. United States v. Flowers (C.A.6, 1990), 909 F.2d 145, 147.

The United States Supreme Court has repeatedly held that mere police questioning does not constitute a seizure for Fourth Amendment purposes. Florida v. Bostick (1991), 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389; INS v.

Delgado (1984), 466 U.S. 210, 212, 104 S.Ct. 1758, 80 L.Ed.2d 247. ‘[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; * * *, provided they do not convey a message that compliance with their request is required.’ Bostick, 501 U.S. at 434-35 [111 S.Ct. 2382, 115 L.Ed.2d 389] (citations omitted).

A person approached in this fashion need not answer any questions, and may continue on his or her way unfettered by any real or implied restraint, and he may not be detained even momentarily for his refusal to listen or answer. Id.” State v. Aufrance, Montgomery App. No. 21870, 2007-Ohio-2415, 2007 WL 1454173, ¶ 12. Thus, an individual’s Fourth Amendment rights are not implicated during a consensual encounter initiated by the police.

Id. {¶ 14} Warrantless searches are presumptively unreasonable under the Fourth and Fourteenth amendments to the United States Constitution unless the search comes under one of the narrow exceptions to this rule. See Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Pursuant to Terry, police officers are allowed to perform limited protective searches for concealed weapons when the surrounding circumstances create a suspicion that an individual may be armed and dangerous. Id. {¶ 15} In Ohio, the propriety of a Terry stop must be viewed in light of the totality of the surrounding circumstances.

State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus. The totality of the circumstances must “be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Andrews (1991), 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271, citing State v. Freeman (1980), 64 Ohio St.2d 291, 295, 18 O.O.3d 472, 414 N.E.2d 1044.

In order to be legal, “ ‘[a] search for weapons, whether of the immediate person of the suspect, or of areas to which the suspect has access or will gain access, must be justified by a reasonable and articulable suspicion that the suspect is dangerous and will gain immediate control of weapons.’ ” State v. Bell, Montgomery App. No. 21518, 2006-Ohio-4648, 2006 WL 2578865, at ¶81, quoting State v. Daniel (Apr. 27, 1994), Montgomery App. No. 13891, 1994 WL 151653, at *3, citing Michigan v.

Long (1983), 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201. {¶ 16} Initially, the encounter between Officer Coleman and Harding was arguably consensual. Harding was responsive and cooperative with Coleman’s inquiries. In a Terry stop, a consensual encounter becomes a seizure when, in view of all the circumstances surrounding the incident, by means of physical threat or show of authority, a reasonable person would believe he was not free to leave. State v. Taylor (1995), 106 Ohio App.3d 741, 748, 667 N.E.2d 60, citing United States v. Mendenhall (1980), 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497.

We agree with the trial court’s finding that once Officer Coleman ordered Harding to put his hands out to his sides and began frisking him, any reasonable person would have believed he was not free to leave. Once the pat-down began, the consensual encounter became a seizure. {¶ 17} Officer Coleman did not discover any weapons during the pat-down search of Harding.

Officer Coleman testified that Harding was free to leave after the pat-down was concluded, but Officer Coleman did not inform Harding of that fact, nor do we conclude that Officer Coleman would have simply allowed him to walk away, or, more importantly, that Harding would have concluded that he was free at that point to leave. At that point, Officer Coleman had no reasonable, articulable suspicion that Harding was violating the law. But Officer Barnes persisted in questioning Harding regarding his place of residence. It was only then that Harding disclosed that he did not, in fact, live at the DMHA property.

Upon being requested to do so, Harding gave Officer Coleman his social security number, which resulted in the officers’ discovering the three outstanding warrants. The officers then arrested Harding on the warrants and performed a search incident to the arrest in which they discovered crack in Harding’s pocket. B. The Outstanding Arrest Warrants Constituted an Independent Justification for the Stop. {¶ 18} The state relies upon Dayton v. Click (Oct. 5, 1994), Montgomery App.

No. 14328, 1994 WL 543210, for the proposition that the outstanding warrants for Harding’s arrest, even though unknown to Officer Coleman at the time of the stop, constituted an independent authority for the stop. The state notes that in State v. Jamison (May 11, 2001), Montgomery App.

No. 18453, 2001 WL 501942, we departed from the rule of law espoused in Click and held that “where the identification of a suspect as a person subject to an outstanding arrest warrant is the result of an unlawful search and seizure, the discovery of evidence as the result of a search subsequent to, and incident to, that arrest, is the result of the original unlawful stop and seizure, and must, therefore, be excluded.” {¶ 19} Most recently, however, we reaffirmed our holding in Click in State v. Smith, Montgomery App.

No. 22434, 2008-Ohio-5523, 2008 WL 4688767, wherein we found that the defendant had no reasonable expectation of privacy because he had an outstanding warrant for his arrest. It did not matter that the police became aware of the warrant following, and as a result of, an otherwise unlawful detention. In Smith, we specifically overruled our prior holding in Jamison. {¶ 20} The issue of whether an otherwise unlawful stop is justified by the existence of an outstanding warrant for the arrest of the individual stopped is not free from difficulty. See State v.

Ford, 149 Ohio App.3d 676, 2002-Ohio-5529, 778 N.E.2d 642, ¶ 25. This author has found it possible to make compelling arguments on either side of this issue.

Perhaps the best argument, and the essential argument, in favor of upholding an otherwise unjustified stop of an individual who is subject to an outstanding arrest warrant is that the authority for the stop, and the resulting intrusion upon the individual’s liberty, is not predicated upon any facts or circumstances known to the stopping officer, but upon the independent authority of the arrest warrant, itself, thereby making the facts and circumstances known to the officer immaterial. {¶ 21} In any event, the latest holding of this court can be found in State v. Smith, 2008-Ohio-5523, 2008 WL 4688767.

Especially on close questions of law, the doctrine of stare decisis requires that we follow the latest holding of our court upon an issue of law. Wogoman v. Wogoman (1989), 44 Ohio App.3d 34, 541 N.E.2d 128. {¶ 22} Upon the authority of State v. Smith, the state’s sole assignment of error is sustained. Ill {¶ 23} The state’s sole assignment of error having been sustained, the order of the trial court from which this appeal is taken is reversed, and this cause is remanded for further proceedings consistent with this opinion. Judgment accordingly. Wolff, J., concurs. Donovan, P.J., dissents.