State v. Smith

Holmes, J.

The issue presented in this case is whether the search and seizure of appellant’s bag was reasonable within the Fourth Amendment to the United States Constitution, and Section 14, Article I of the Ohio Constitution, which mirrors that amendment. For the reasons which follow, we answer such query in the affirmative, and thus affirm the court of appeals.

Three events occurred in this case which must be analyzed in light of the Fourth Amendment: (1) the encounter between appellant and Officer Thomas, (2) Thomas’ seizure of the brown paper bag, and (3) Thomas’ search of that bag.

I

No “seizure” of the person of appellant occurred in this case, prior to the discovery of the contraband and appellant’s subsequent arrest. It is well established that “[o]bviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio (1968), 392 U.S. 1, 19, at fn. 16. “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.” Id. at 34 (White, J., concurring). In United States v. Mendenhall (1980), 446 U.S. 544, the court reaffirmed its position, taken in Terry, supra, and Sibron v. New York (1968), 392 U.S. 40, and detailed the degree of restraint necessary to invoke constitutional safeguards:

“We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. [Footnote omitted.] Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Menden-hall, supra, at 554.

The court made it clear that “[a]s long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.” Id. It is not enough “to establish a seizure that the person asking the question was a law enforcement official,” id. at 555, nor does it matter that the person is not expressly told by the official that he is free to decline to answer questions. Id. In Florida v. Royer (1983), 460 U.S. 491, a plurality of the court, seven Justices, reaffirmed these principles as to when a seizure occurs. Id. at 497-498, 523. See, also, Immigration & Naturalization Service v. Delgado (1984), 466 U.S. 210, 215-217.

In Mendenhall, the respondent, Sylvia Mendenhall, was observed by two federal Drug Enforcement Administration (“DEA”) agents as she arrived at the Detroit Metropolitan Airport on a flight from Los Angeles. Mendenhall’s behavior appeared to the agents to fit a “drug courier profile,” so the agents approached her, identified themselves as federal agents and asked to see her identification and airline ticket, which she produced. Mendenhall answered further questions posed by the agents, and after the agents identified themselves as federal narcotic agents, Mendenhall became visibly nervous. The DEA agents returned her identification and ticket to her, and asked her to accompany them to the airport DEA office. Mendenhall complied and later consented to a search of her person and her handbag. Mendenhall removed two small packages from her undergarments, one of which contained heroin, and she was then arrested for possession of heroin. Id. at 547-549. In upholding the denial of Mendenhall’s motion to suppress, Justice Stewart reviewed these facts and stated: “[N]othing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents’ initial approach to her was not a seizure.”1 Id. at 555. The court also held that Mendenhall voluntarily consented to accompany the agents to the DEA office, id. at 558, and she freely and voluntarily consented to the search of her person, id. at 559-560.

Having set forth these rather simple. concepts of when a “seizure” within the. meaning of the Fourth Amendment occurs, a review of the facts in this case reveals that, as in Mendenhall, a reasonable person in appellant’s position would have believed he was free to leave at any time, prior to his actual arrest following the discovery of contraband. Officers Thomas and Edwards, with combined law enforcement experience of over fifteen years, observed appellant and his companion emerge from the Balducci residence and, for reasons discussed in Part II, infra, became suspicious of their behavior as they entered the YMCA parking lot. The plain-clothes officers, in their unmarked cruiser, pulled up behind the car appellant was approaching and Thomas asked appellant what was in his bag. Appellant did not answer. Thomas got out of the car and said, “hey, come here a minute” to appellant, who looked over his shoulder and kept walking towards the car. Thomas then verbally identified himself as a police officer. The appellant turned towards Thomas, threw the brown paper bag onto the hood of the car and stepped back from the car.2

Only these two officers, in plain clothes, were present (Edwards had radioed their location and was approaching appellant’s companion as Thomas approached appellant). Neither officer displayed his weapon, nor had Thomas physically touched appellant at that time. Thomas, who was the only person to speak, at no time used a threatening tone of voice, did not order appellant into the cruiser at any time, and never stated or indicated anything to the effect that if appellant did not come toward the officer he would be under arrest.

Thus, none of the examples indicating a seizure enumerated in Mendenhall, swpra, at 554, was present in this case, nor are any other circumstances present such that “a reasonable person would have believed that he was not free to leave.” Id. In fact, appellant testified at the suppression hearing that he did not feel compelled to go towards Thomas when he identified himself as a police officer, and corroborated the facts that he had not been spoken to harshly or threatened with arrest, no weapon had been displayed to him, and he stated that the officers’ cruiser was not blocking his exit from the YMCA parking lot.

. The facts presented in this case are indistinguishable from those presented in Mendenhall, and we decline to adopt appellant’s theory that any encounter between a citizen and the police, once the law enforcement officer has identified himself and asks a question of the citizen, constitutes a “seizure” within the Fourth Amendment.

“* * * [Characterizing every street encounter between a citizen and the police as a ‘seizure,’ while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. ‘Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515.’ ” Schneckloth v. Bustamonte (1973), 412 U.S. 218, at 225, quoted in Mendenhall, supra, at 554.3 No seizure of appellant’s person, within the' meaning of the Fourth Amendment, occurred in this case.

II

Of course, the Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” (Emphasis added.) In general, a seizure of personal property, such as the bag carried by appellant here, is considered per se unreasonable within the Fourth Amendment unless it follows from a judicial warrant issued upon probable cause and particularly describing the item to be seized. See Marron v. United States (1927), 275 U.S. 192, 196. Absent a warrant, but where law enforcement officials have probable cause to believe that a container, such as appellant’s bag, holds contraband or evidence of a crime, the item may be seized — pending issuance of a warrant to search — “if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” United States v. Place (1983), 462 U.S. 696, 701.

In Place, however, the United States Supreme Court went a step further and recognized as reasonable under the Fourth Amendment the temporary, warrantless seizure of personal property (luggage, in that case) in an intermediate, Terry-type situation, i.e., a seizure on the basis of reasonable, articulable suspicion, premised on objective facts, that such property contains contraband or evidence of a crime. Place, supra, at 702. The court recognized that the “ar-ticulable suspicion” exception to the probable-cause requirement recognized in Terry and its progeny rests on the balance of “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Id. at 703. Noting that “ ‘[t]he public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit,’ ” id., quoting Mendenhall, supra, at 561 (Powell, J.), and that “seizures of property can vary in intrusiveness,” id. at 706, the Place court opined that “some brief detentions of personal effects may be so minimally intrusive of Fourth Amendment interests that [such] strong countervailing governmental interests will justify a seizure based only on specific articulable facts that the property contains contraband or evidence of a crime.” Id. at 706.

As the court explained in United States v. Cortez (1981), 449 U.S. 411, 417-418:

“Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like ‘ar-ticulable reasons’ and ‘founded suspicion’ are not self-defining; they fall short of providing clear guidance dis-positive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture-mast be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. * * *

“The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.

“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

“The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. * * *” (Emphasis added.) See, also, United States v. Jacobsen (1984), 466 U.S. 109, 121-122.

Applying these rudiments of Fourth Amendment jurisprudence to the facts of this case, it is evident that Officer Thomas, far from having the inarticulate hunch perceived by appellant, possessed sufficient objective facts to support a particularized ar-ticulable suspicion that the bag carried by appellant contained contraband.

During the suppression hearing, both officers testified as to their prior law enforcement experience, including drug arrests by Thomas and the circumstances they observed prior to seizing appellant’s bag. While preparing to go on a gambling raid, they observed appellant and his companion emerge from the home of Wilma Balducci, who the officers knew to be a convicted felon (for forgery) out on probation. The officers also knew that approximately six months prior to that time the Ashland County Sheriff’s Department had executed a warrant to search the Balducci residence and that drug paraphernalia had been found as a result of such search. In addition, Thomas testified that he had received recent tips from informants that Balducci had been dealing in drugs, and neighbors of Balducci had complained of heavy traffic in and out of her residence. Officer Edwards testified that he had spoken to a witness in an earlier investigation who stated Balducci had purchased property in exchange for cash and drugs.

Coupled with these suspicions regarding the Balducci residence, the officers observed appellant carrying the closed grocery bag down at his side, keeping it level and, as testified by Edwards, appellant “was walking kind of gingerly with it.” Thomas testified to several prior investigations and arrests in which the suspects carried drugs or narcotics in this fashion. Finally, as the officers approached to investigate, appellant abruptly disassociated himself from the bag as he, with a mumbled curse, threw the bag onto the hood of the car and backed away from it. Obviously, none of these observations, standing alone, would give rise to an articulable suspicion that the bag contained contraband. It was the culmination of all these observations which led Thomas to reasonably believe that appellant’s bag contained narcotics,4 and thus he was permitted, under the principles of Terry and its progeny, to detain the bag briefly to investigate further the circumstances that aroused his suspicion. See Place, supra, at 706. “Indeed, Terry itself involved ‘a series of acts, each of them perhaps innocent’ if viewed separately, ‘but which taken together warranted further investigation.’ 392 U.S., at 22 * * *.” United States v. Sokolow (1989), 490 U.S. _, 104 L. Ed. 2d 1, 12, 109 S. Ct. 1581, 1587.

In Sokolow, decided just five months ago by a compelling seven-to-two majority, the court held that DEA agents had a reasonable suspicion that Sokolow was transporting illegal drugs when they stopped him at Honolulu Airport, based on the agent’s belief that Sokolow’s behavior was consistent with one of the DEA’s “drug courier profiles.”5 The court noted, id. at_, 104 L. Ed. 2d at 11, 109 S. Ct. at 1586, that “[a]ny one of these [profile] factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.” (Emphasis added.)

The officers’ suspicions here were clearly articulated at the suppression hearing, and were supported by objective facts. Thus, the seizure of appellant’s bag was reasonable under the Fourth Amendment.

Ill

Finally, we conclude that the search of appellant’s bag contemporaneous with his arrest was justified by the need to prevent the destruction of evidence of the crime.6 In United States v. Chadwick (1977), 433 U.S. 1, 14-15, the court detailed the justifications for searches “incident to [an] arrest”:

“* * * When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless ‘search of the arrestee’s person and the area “within his immediate control”— construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.’ Chimel v. California [1969], 395 U.S. [752], 763 * * *.

“Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the ‘immediate control’ area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. United States v. Robinson, 414 U.S. 218 (1973); Terry v. Ohio, supra. However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ Preston v. United States, 376 U.S. [364], at 367, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the ar-restee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” (Emphasis added.) See, also, Terry, supra.

The court in Chimel v. California, supra, at 763, was straightforward:

“* * * [I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. * * * There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’— construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

The search here was neither remote in time nor place from appellant’s arrest. Furthermore, the bag was still within appellant’s easy reach. Although Thomas lawfully seized the bag, he had not — at the time appellant reached out in attempt to prevent such seizure — reduced the bag to his “exclusive control.” The danger of appellant obtaining the bag and destroying all or part of its contents was still present, and thus the search was warranted.

For all of the foregoing reasons, we affirm the judgment of the court of appeals, upholding the denial of appellant’s motion to suppress.

Judgment affirmed.

Moyer, C.J., and Resnick, J., concur.

Douglas, J., concurs in judgment.

Sweeney, Wright and H. Brown, JJ., dissent.

1 Then Justice Rehnquist joined in this conclusion. The Chief Justice and Justices Powell and Blackmun concurred in the judgment, but felt it was not proper to reach the issue of whether the initial stop by the agents constituted a seizure within the meaning of the Fourth Amendment, since neither of the lower courts had considered the question. The concurring Justices assumed, however, that the stop constituted a seizure, and concluded that it was a reasonable investigative stop not offensive to the Fourth Amendment. Justice Powell, writing for the concurring Justices, concluded:

“* * * The public interest in preventing drug traffic is great, and the intrusion upon respondent’s privacy was minimal. The specially trained agents acted pursuant to a well-planned, and effective, federal law enforcement program. They observed respondent engaging in conduct that they reasonably associated with criminal activity. Furthermore, the events occurred in an airport known to be frequented by drug couriers. [Footnote omitted.] In light of all of the circumstances, I would hold that the agents possessed reasonable and articulable suspicion of criminal activity when they stopped the respondent in a public place and asked her for identification.

“The jurisprudence of the Fourth Amendment demands consideration of the public’s interest in effective law enforcement as well as each person’s constitutionally secured right to be free from unreasonable searches and seizures. In applying a test of'reasonableness, ’ courts need not ignore the considerable expertise that law enforcement officials have gained from their special training and experience.” (Emphasis added.) Mendenhall, supra, at 565-566. See, also, Part II, infra.

2 Both officers testified at the suppression hearing that appellant threw the bag onto the hood of the car. Appellant’s own testimony was contradictory. On direct examination, the appellant stated:

“Q. And then what happened next?

“A. He asked me again, and then he said he was a police officer, and by then, I put the bag on top the hood of the car.

“Q. Did you throw the bag?

“A. I didn’t exactly throw it. I sort of set it up there.

“Q. And then what did you do?

“A. Walked back towards him, which by then, he was about like three, four feet from me.”

On cross-examination, the following exchange took place:

“Q. Isn’t it a fact that you threw the bag on the trunk to attempt to disassociate yourself with [sic] the cocaine?

“A. No, not really. I didn’t throw it on the trunk. I threw it on the hood.

“Q. If you threw it on the hood, isn’t it a fact that you threw it on the hood to disassociate yourself from what you knew was cocaine in that bag?

“A. No.

, “Q. Why did you throw it on the hood?

“Á. I just sat [sic] it up there to go see what he wanted.”

The trial court, in its findings of fact, specifically found that “[w]hen Sgt. Thomas identified himself as a police officer, the Defendant threw the brown grocery bag away from himself and onto the hood of his car and stepped backwards away from the bag * * It is axiomatic that “[o]n the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus.

3 Consider the following observations from Terry v. Ohio, supra, at 13-15:

“The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves unwarranted intrusions upon constitutional protections. Moreover, in some contexts the rule is ineffective as a deterrent. Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. * * * Doubtless some police ‘field interrogation’ conduct violates the Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. * * *

“* * * [A] rigid anc[ unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. * * *”

4 In United States v. Mendenhall, supra, at 563-564, Justice Powell, in the plurality opinion, observed:

“* * * [I]t is important to recall that a trained law enforcement agent may be ‘able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.’ * * * Among the circumstances that can give rise to reasonable suspicion are the agent’s knowledge of the methods used in recent criminal activity and the characteristics of persons engaged in such illegal practices. Law enforcement officers may rely on the ‘characteristics of the area’ and the behavior'of a suspect who appears to be evading police contact. United States v. Brignoni-Ponce, 422 U.S. 873, 884-885. ‘In all situations the officer is entitled to, assess the facts in light of his experience.’ Id., at 885.” (Emphasis added.) See, also, State v. Bobo (1988), 37 Ohio St. 3d 177, 179-180, 524 N.E. 2d 489, 492.

5 “When respondent was stopped, the agents knew, inter alia, that (1) he paid $2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage.” Sokolow, supra, at_, 104 L. Ed. 2d at 7-8, 109 S. Ct. at 1583.

6 We do not adhere to the view taken by the lower courts to the effect that appellant had “abandoned” the bag when he threw it on the car and thus no longer retained any reasonable expectation of privacy with regard to it. Appellant was, at most, only two steps away from the bag at any time, and the evidence presented at the suppression hearing is clear that appellant physically attempted to prevent Officer Thomas from seizing the bag. Thus, in our view, appellant had not “ ‘voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.’ ” (Emphasis added.) State v. Freeman (1980), 64 Ohio St. 2d 291, 297,18 O.O. 3d 472, 476, 414 N.E. 2d 1044, 1048, quoting United States v. Colbert (C.A. 5, 1973), 474 F. 2d 174, 176.