State v. Simmons

[Cite as State v. Simmons, 2013-Ohio-5088.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-11-229

: OPINION
- vs - 11/18/2013
:

CALVIN SIMMONS, SR., :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2012-04-0566

Michael T. Gmoser, Butler County Prosecuting Attorney, Government Services Center, 315
High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Fred S. Miller, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Calvin Simmons, Sr., appeals from his convictions for

possession of cocaine and resisting arrest following his plea of no contest in the Butler

County Court of Common Pleas. Appellant argues the trial court erred in overruling his

motion to suppress evidence obtained from an illegal search and seizure. For the reasons

set forth below, we overrule appellant's arguments and affirm his convictions.
 Butler CA2012-11-229

{¶ 2} On May 30, 2012, appellant was indicted on one count of possession of

cocaine in violation of R.C. 2925.11 and one count of resisting arrest in violation of R.C.

2921.33(A). On August 3, 2012, appellant filed a motion to suppress evidence relating to his

arrest "on the grounds that said evidence is the fruit of an unconstitutional search and seizure

in violation of the rights guaranteed * * * by the Fourth and Fourteenth Amendments to the

United States Constitution and Article I, Section 14 of the Ohio Constitution." The trial court

held an evidentiary hearing on the motion to suppress on September 6, 2012.

{¶ 3} Aaron Hucke, an officer with the City of Hamilton Police Department, was the

only witness who testified at the suppression hearing. Hucke explained that he and his

partner, Officer Johnson, were both in uniform and riding in a marked police cruiser in the

area of Ludlow and 6th Street in the city of Hamilton, Ohio on the evening of April 5, 2012.

During their patrol, Hucke saw appellant sitting on the "outside stairs" of an apartment

building. Hucke stated he had patrolled the area for over nine years, and he described it as a

"high drug area" where there had been multiple arrests for narcotic activities, including

possession and trafficking. Hucke further stated that he had made between eight to ten

arrests, five or six of which were drug arrests, at the same corner of Ludlow and 6th Street

where he observed appellant sitting. However, Hucke had no prior encounters with

appellant.

{¶ 4} At the time Hucke observed appellant sitting on the stairs outside the apartment

building, Hucke noticed three females with whom he had prior dealings for drugs and

prostitution walking away from the corner, approximately 15 feet south of appellant. Hucke

did not observe any contact between appellant and these three females. When the patrol car

Hucke was riding in stopped at a stop sign at the intersection of Ludlow and 6th Street,

Hucke observed appellant looking down at his left hand, as if he was "counting something in

his hand." At this time, appellant was sitting approximately ten to 12 feet away from the
-2-
 Butler CA2012-11-229

patrol car. Hucke testified that upon looking up and noticing the patrol car, appellant "got

startled, closed his hand - - clenched his hands and brought his hand down to his * * * left

side." Hucke described appellant as acting "extremely nervous."

{¶ 5} At this point in time, appellant stood up and began walking in Hucke's direction.

Appellant's left fist was clenched by his side and, in his right hand, he carried a cane. Hucke

exited the patrol car and approached appellant, asking what appellant had in his hand.

Appellant responded "nothing." Appellant then started to walk away from Hucke, with his left

hand remaining clenched. At this time, Hucke was able to see between a quarter-of-an-inch

to an inch worth of a clear plastic baggie sticking out of the back of appellant's closed hand.

Hucke testified that seeing the plastic baggie was "significant" to him because "[t]hat's the

way that drugs are usually transported." Hucke again asked appellant if he had anything in

his hand, and appellant said "no" while continuing to walk away. Hucke then grabbed ahold

of appellant's left hand. Appellant pulled away from Hucke and put what Hucke described as

a plastic baggie containing "off-white rocks" into his jacket pocket. Hucke tried grabbing

ahold of appellant while shouting to his partner that appellant was carrying "dope." Hucke

then "placed the [appellant] off balance and took him to the ground" because he was

concerned about the cane appellant still had in his right hand.

{¶ 6} Once appellant was on the ground, he pulled the baggie from his pocket and

put it inside his mouth. Johnson was able to pull the baggie from appellant's mouth and

retrieve one of the off-white rocks. At Johnson and Hucke's orders, appellant "spit out" three

more off-white rocks onto the ground. Appellant was then placed under arrest.

{¶ 7} On September 10, 2012, the trial court denied appellant's motion to suppress.

The trial court found appellant's interaction with Hucke was consensual until the point Hucke

grabbed appellant's left hand. The trial court then found the totality of the circumstances,

including Hucke's "observation of the [appellant's] demeanor and his - - his activity of the
-3-
 Butler CA2012-11-229

furtive movements as well as his nervous or startled demeanor, [and] the high * * * crime

area," provided Hucke with reasonable and articulable suspicion to make a Terry stop

pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). During the Terry stop, Hucke

observed the drugs in plain view. "Once he observe[d] those drugs * * * [Hucke] ha[d]

probable cause to effect and arrest [appellant]."

{¶ 8} After the trial court denied his motion to suppress, appellant entered a plea of

no contest to the charges of possession of cocaine and resisting arrest. Appellant was

sentenced to six months in prison.

{¶ 9} Appellant now appeals, raising as his sole assignment of error the following:

{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT REFUSED TO SUPPRESS THE FRUITS OF AN ILLEGAL SEARCH

AND SEIZURE.

{¶ 11} Appellant argues the trial court erred in denying his motion to suppress as the

encounter between Hucke and appellant was not consensual when the police "persisted in

investigating" appellant by asking him to reveal what was in his left hand. He further

contends that Hucke lacked reasonable and articulable suspicion to justify a Terry stop. In

support of his arguments, appellant relies on the Second District's decision in State v. Cook,

2d Dist. Montgomery No. 20427, 2004-Ohio-4793, and the Eighth District's decision in State

v. Nealen, 84 Ohio App.3d 235 (8th Dist.1992).

{¶ 12} Our review of a trial court's denial of a motion to suppress presents a mixed

question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve

factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial

of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.
-4-
 Butler CA2012-11-229

CA2005-03-074, 2005-Ohio-6038, ¶ 10. "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." Cochran at ¶ 12.

{¶ 13} "It is well-recognized that officers may briefly stop and detain an individual,

without an arrest warrant and without probable cause, in order to investigate a reasonable

articulable suspicion of criminal activity." State v. Potter, 12th Dist. Butler No. CA2006-07-

166, 2007-Ohio-4216, ¶ 12, citing Terry, 392 U.S. at 19-21. "The propriety of an investigative

stop by a police officer must be viewed in light of the totality of the surrounding

circumstances" as "viewed through the eyes of a reasonable and cautious police officer on

the scene, guided by his experience and training." State v. LeClair, 12th Dist. Clinton No.

CA2005-11-027, 2006-Ohio-4958, ¶ 9, citing State v. Freeman, 64 Ohio St.2d 291 (1980),

paragraph one of the syllabus.

{¶ 14} It is equally well-recognized that the Fourth Amendment is not implicated in all

personal encounters between police officers and citizens, such as the case where there is a

consensual encounter. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382 (1991); Potter

at ¶ 13; Hamilton v. Stewart, 12th Dist. Butler No. CA2000-07-148, 2001 WL 208838, *2

(Mar. 5, 2001). "An encounter which does not involve physical force or a show of authority is

a consensual encounter that does not trigger Fourth Amendment scrutiny; therefore, an

officer does not need reasonable suspicion merely to approach an individual in order to make

reasonable inquires of him." Potter at ¶ 13, citing Stewart at *2. The fact that a police officer

identifies himself as such does not "convert the encounter into a seizure requiring some level

of objective justification." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319 (1983).

Rather, "'[e]ncounters are consensual where the police merely approach a person in a public

place, engage the person in conversation, request information, and the person is free not to
-5-
 Butler CA2012-11-229

answer and walk away.'" Potter at ¶ 13, quoting State v. Taylor, 106 Ohio App.3d 741, 747

(2d Dist.1995).

{¶ 15} Based on our review of the evidence, we find that the initial encounter between

appellant and Hucke was consensual. At the beginning of his interaction with appellant,

Hucke did not use any force, did not exercise his authority as a police officer, did not indicate

that appellant could not leave, and did nothing to impede appellant's travel. Rather, the

record reflects that until the point Hucke grabbed appellant's left hand after spotting the

plastic baggie clenched in appellant's fist, Hucke did no more than approach appellant in a

public area and ask two reasonable questions: "what's in your hand" and "do you have

anything in your hand." As we have repeatedly held, "an officer does not need reasonable

suspicion merely to approach an individual in order to make reasonable inquires of him."

Potter at ¶ 13; Stewart at *2; State v. Brock, 12th Dist. Clermont No. CA97-09-077, 1998 WL

281307, *3 (June 1, 1998).

{¶ 16} However, once Hucke grabbed appellant's hand, the nature of the encounter

changed from a consensual encounter to a Terry stop. Here, the totality of the

circumstances surrounding Hucke's interaction with appellant justified Hucke's detention of

appellant, as there were "specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant[ed] [such] intrusion." Terry, 392 U.S. at 21.

The following facts justified Hucke's investigative stop: (1) the area where his encounter with

appellant took place is known as a high crime area with frequent drug activity; (2) Hucke had

made eight to ten previous arrests, five or six of which were drug arrests, at the same corner

of Ludlow and 6th Street where he observed appellant sitting; (3) Hucke observed appellant

looking down and "counting something" in his left hand and becoming "startled" and

"extremely nervous" upon spotting a police officer; (4) Hucke observed appellant making

furtive gestures by clenching his hand and dropping it to his side after appellant noticed
-6-
 Butler CA2012-11-229

Hucke's presence; (5) Hucke knew appellant was being dishonest about having "nothing" in

his left hand as Hucke observed a plastic baggie sticking out of appellant's fist; and (6)

Hucke's experience as a police officer gave him knowledge that clear plastic baggies, like the

one clenched in appellant's fist, were commonly used to transport and sell drugs.

{¶ 17} While several of the above considerations, standing alone or with few other

supporting grounds, would not create a reasonable and articulable suspicion of criminal

wrongdoing, the totality of the circumstances in this instance support Hucke's detention of

appellant. As the Supreme Court recognized in State v. Bobo, 37 Ohio St.3d 177, 179

(1988), the "reputation of an area for criminal activity is an articulable fact upon which a

police officer may legitimately rely" in determining whether to make an investigative stop.

Furthermore, a defendant's movements, such as furtive gestures, can also be considered in

analyzing whether a police officer had reasonable suspicion. Id. at 179-180. While a furtive

gesture, standing alone, does not create probable cause for a search, reliance on such a

clandestine gesture when other facts indicating a reasonable suspicion of criminal activity are

also present is sufficient for a Terry stop. Id.; London v. Edley, 75 Ohio App.3d 30, 33 (12th

Dist.1991). Finally, "although some degree of nervousness during interactions with police

officers is not uncommon * * * nervousness can be a factor to weigh in determining

reasonable suspicion." State v. Jennings, 10th Dist. Franklin No. 12AP-179, 2013-Ohio-

2736, ¶ 13.

{¶ 18} Given Hucke's knowledge of the area, his observations while interacting with

appellant, and his experience and training in detecting drug activity, we find Hucke had

sufficient articulable suspicion that appellant possessed drugs to effectuate a Terry stop.

Moreover, during the course of the Terry stop, Hucke observed the "off-white rocks" or

"dope" in plain view as appellant attempted to conceal the drugs in his jacket pocket. "[T]he

'plain view' doctrine authorizes the seizure of contraband without a warrant if the initial
-7-
 Butler CA2012-11-229

intrusion leading to discovery of the object was lawful and the incriminating or illegal nature of

the items was immediately apparent." Potter, 2007-Ohio-4216 at ¶ 18. Once Hucke

observed the drugs, he had probable cause to seize the contraband and arrest appellant.

See Potter at ¶ 20; State v. Jimenez, 12th Dist. Warren No. CA2011-09-103, 2012-Ohio-

3318, ¶ 17-18.

{¶ 19} For the foregoing reasons, we find no error in the trial court's denial of

appellant's motion to suppress. Hucke's initial encounter with appellant was consensual, the

subsequent Terry stop was supported by the totality of the circumstances, and appellant's

arrest and the seizure of evidence was supported by probable cause.

{¶ 20} In reaching this determination, we find the two cases relied upon by appellant to

be factually distinguishable and inapplicable to the case at hand. In Cook, 2004-Ohio-4793,

the defendant had been walking along a public street with her left hand clenched when an

officer detained her by using his police cruiser to impede her travel. Id. at ¶ 3, 15. In addition

to asking the defendant questions, such as "what was going on" and "why was she walking

eastbound," the officer ordered the defendant to "open up your hand so I can see what's

inside of it." Id. at ¶ 14-15. The Second District held law enforcement lacked a reasonable

articulable suspicion to justify detaining the defendant and the encounter between the officer

and defendant was not consensual as "a reasonable person would not have felt free to

ignore the order of a police officer and walk away." Id. at ¶ 16.

{¶ 21} We find the present case to be factually distinguishable from Cook, as

appellant's path of travel was not interfered with in any way until after Hucke observed a

plastic baggie protruding from appellant's hand. Further, Hucke did not order or command

appellant to open his left hand. Rather, he merely asked appellant if he had anything in his

hand and what was in his hand. Appellant was free to ignore Hucke's questioning and walk

away until the point reasonable articulable suspicion for the Terry stop developed.
-8-
 Butler CA2012-11-229

{¶ 22} In Nealen, 84 Ohio App.3d 235, the Eighth District held that an encounter

between three plain-clothed police officers sitting in an unmarked police cruiser and a

defendant walking through a high-crime area was a Terry stop that lacked the requisite

suspicion to justify the stop. Id. at 238-243. The defendant, a young white male, was

walking from an "all black" project courtyard to a parked car. Id. at 236. The officers pulled

up beside him, identified themselves as police officers, and asked what he was doing and

what he had clenched in his fist. Id. at 236-237. As the defendant attempted to enter his

parked car, he dropped a rock of cocaine out of his hand and onto the ground. Id. The Eight

District determined that the defendant's motion to suppress was properly granted as "[the]

words 'police,' 'what are you doing,' and 'what do you have in your hand,' denote[d] an

investigatory stop" when there was no "specific and articulable facts" to justify the stop. Id. at

238. In the Eighth District's opinion, "[t]he police wanted an answer; otherwise they would

not have asked the questions after identifying themselves as policemen." Id. "Clearly, the

police presence was intimidating, they expected an answer, and a reasonable person could

assume he was not free to leave until the officers were satisfied with a response." Id. at 242.

{¶ 23} We disagree with the Eighth District's reasoning in Nealen. We do not believe

that, simply because a police officer asks a question of an individual, that person is

necessarily seized. See Royer, 460 U.S. at 497; Potter, 2007-Ohio-4216 at ¶ 13; State v.

Hurt, 2d Montgomery No. 14882, 1995 WL 259176, *5 (May 5, 1995). "While it may be true

that when a police officer (or any person) posits a question, he expects an answer, it does

not always follow that the person to whom the question is directed is constrained to respond."

Hurt at *5. Furthermore, the mere presence of a police officer, without more, may be

intimidating, but it is not a seizure. Id., citing Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct.

1975 (1988). As we have previously stated, appellant's encounter with Hucke was

consensual as appellant was free to walk away and ignore Hucke's questions regarding what,
-9-
 Butler CA2012-11-229

if anything, appellant had in his hand.

{¶ 24} Accordingly, for the reasons set forth above, appellant's sole assignment of

error is overruled.

{¶ 25} Judgment affirmed.

PIPER and M. POWELL, JJ., concur.

- 10 -