dissenting.
In affirming the district court’s denial of Reed’s motion to suppress, the majority holds that he was legally arrested for criminal trespass even though the police failed to first ascertain whether Reed had a legitimate reason for being on the property. I respectfully dissent because, in my view, the police officers arrested Reed without having probable cause to do so.
Although not cited by Reed, I have found three cases with facts very similar to those before us that address the issue of probable cause in relation to criminal trespass. In each case, the court concluded that the officers must have probable cause to believe that the defendant was on the property without privilege before making an arrest.
The earliest case is Washington v. Blair, 65 Wash.App. 64, 827 P.2d 356 (1992). Faced with an almost identical fact pattern, the Washington Court of Appeals held as follows:
Officer Williams simply drove up to Blair and ordered him into the police cruiser where he arrested him. Had Officer Williams taken a moment to ask Blair where he was going and for what purpose, he could have determined whether Blair was in fact visiting a friend or was trespassing. Because he knew Blair did not live in Roxbury Vil*480lage, had admonished Blair not to return and had arrested him nearby for a drug transaction, Officer Williams had an ar-ticulable suspicion that Blair might be trespassing on September 1. Based on this information, Officer Williams could properly stop Blair, ask him why he was on the premises, and investigate to see if his purpose for being there was in fact legitimate. However, the fact that the officer had told Blair not to return to the premises does not, in itself, create probable cause for arresting him on the charge of criminal trespass.
Id. at 359 (citation omitted).
The majority attempts to distinguish Blair on the following basis:
Blair ... finds probable cause to be lacking in circumstances in which an officer has 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.
I do not believe, however, that Blair can be so easily distinguished. The ordinance in Blair made it illegal for a person who is not licensed, invited, or otherwise privileged to enter or remain on private property. See Blair, 827 P.2d at 358. Deciding if Officer Williams had probable cause to believe that Blair was committing a crime thus depended “on whether the circumstances known to the officer indicated that Blair was not on the property for legitimate purposes.” Id. at 359.
Although the State of Washington provides an affirmative defense to criminal trespass if “[t]he actor reasonably believed that the owner of the premises ... would have licensed him or her to enter or remain,” see Blair, 827 P.2d at 359, that was not the focus of the Blair court’s inquiry. Instead, the court focused on the officer’s reasonable beliefs, not the actor’s. Contrary to the majority’s analysis, the Blair court did not require the state to negate an affirmative defense. What it did require was a showing that the officer had probable cause to believe that the defendant was on the property without a legitimate purpose at the time of his arrest.
The next ease with facts very similar to those before us is Jones v. Commonwealth, 18 Va.App. 229, 443 S.E.2d 189 (1994). In Jones, an owner of an apartment complex who had posted “No Trespassing” signs complained to the City of Richmond’s police department that he was having problems with trespassers and drug dealers in the parking area. He asked for police assistance. Shortly thereafter, a man named Jones was seen “hanging out” in the parking lot and was arrested by the Richmond police for criminal trespass. The search incident to the arrest uncovered heroin. In ordering the heroin suppressed, the Virginia Court of Appeals held as follows:
Jones’s mere presence with another man on the premises at four o’clock in the afternoon near an automobile parked on a street by an apartment complex was insufficient to establish probable cause to believe that Jones was neither a resident of the apartment complex nor legitimately upon the premises at the invitation of a resident. The officer’s observation permitted only a bare suspicion. Indeed, the officer’s assertion that Jones and the other man were “hanging out” did not add sufficient information to raise his suspicion of trespassing to probable cause.
Id. at 191.
Finally, in a case where the facts were much more compelling for the state than the ones at bar, the Maryland Court of Special Appeals reversed the appellant’s trespass conviction, holding as follows:
Officer Custead’s mere observation of Jason “hanging out” on the sidewalk at the housing project two hours after an earlier and arguably invalid arrest for *481trespassing was insufficient to establish probable cause that Jason was a criminal trespasser. We reiterate that, in evaluating probable cause, we must relate what the officer knew about the circumstances of the arrest to the elements of the offense that the officer believed was being or had been committed. Here, appellant was arrested for trespassing, not for loitering. Thus, the fact that appellant was “hanging out” on the property provides very little guidance as to whether Officer Custead had probable cause to believe appellant was a trespasser.... For the purpose of analyzing probable cause, we review what Officer Custead knew when he sought to arrest Jason for trespassing: 1) Jason was on Sagner property; 2) Jason was not a resident; 3) Jason had received a no-trespassing notice; 4) Jason had been arrested less than two hours earlier for trespassing at Sagner, although Jason was not on Sagner property when the first arrest occurred. Yet, Officer Custead’s own knowledge about the questionable validity of the earlier arrest diffuses the import of Jason’s later reappearance on the property. Further, although the officer saw appellant with a group of people, he conceded that he had no information about Jason’s relationship to the persons who were with him, no knowledge as to whether any of the persons with Jason resided at Sagner, nor did the officer inquire of Jason or the others about Jason’s presence at Sagner. As in Blair and Jones, Officer Custead ignored the possibility that appellant was at Sagner at the invitation of an authorized resident Like Blair and Jones, we conclude that, on these facts, Officer Custead did not have probable cause to make an arrest.
In re Jason Allen D., 127 Md.App. 456, 733 A.2d 351, 371-72 (1999) (citations and internal quotation marks omitted) (emphasis added).
All three of the above cases require that an officer have probable cause to believe that a person is on private property without privilege before making an arrest for criminal trespass. This is an appropriate requirement because there are only two elements to criminal trespass: (1) a person has to be on private property, and (2) he or she has to be there without privilege. See City of Hamilton, Ohio, Ordinance § 541.05. If police officers do not need probable cause to believe that a suspect lacks a legitimate reason for being on private property before making an arrest for criminal trespass, then they could legally arrest and search anyone they see on private property. Such is clearly not the law.
Instead of addressing or attempting to distinguish Jones and In re Jason Allen D., which deal specifically with the issue at hand, the majority cites and relies heavily upon general language from United States v. Strickland, 144 F.3d 412 (6th Cir.1998). In Strickland, the police used a man named Haggard, an indicted drug offender who was working as a police informant, to set up a drug transaction with a suspected dealer named Strickland. Haggard telephoned Strickland in the presence of police detectives. The detectives heard Haggard agree to a meeting with Strickland at 7:30 p.m. that evening at a convenience store called the Corner Market. Upon finishing his call with Strickland, Haggard informed the detectives that he had arranged to purchase cocaine from Strickland for $1,000. Haggard also explained that he and Strickland had a course of dealing where they would meet inside an automobile, talk for a few moments, and then exchange money for drugs. One of the detectives then gave Haggard $1,000 in marked bills. Shortly thereafter, the detectives, who had the Corner Market under surveillance, observed Haggard meeting Strickland at 7:30 p.m. at the Corner Market, Strickland getting into Haggard’s car, the two men chatting, and Strickland leaving Haggard’s vehicle a few minutes later. Strickland was then arrested and *482searched, uncovering the $1,000 of marked bills.
Claiming a lack of probable cause, Strickland filed a motion to suppress the evidence. The issue before this court was whether the police had probable cause to arrest Strickland for possession of cocaine with the intent to distribute when they had not actually seen the transaction take place in the car. In other words, Strickland argued that the detectives did not “know” that he had sold drugs to Haggard, and that there could be other innocent explanations for his meeting Haggard at the Corner Market. Based on the compelling circumstantial evidence summarized above, this court held that the detectives had probable cause to believe that Strickland had sold cocaine to Haggard, despite the possibility that there could have been an innocent explanation for the meeting between them.
I fully agree with the result in Strickland, but find its fact situation a world apart from that in the present case. Based on the overwhelming evidence in Strickland, the detectives had probable cause to believe that Strickland had engaged in a drug transaction. Because of that, they did not need to dispel all innocent explanations for the meeting between Strickland and Haggard before arresting Strickland. The officers in the case at hand, however, never had probable cause to arrest Reed for criminal trespass in the first place.
To explain the difference another way, let us assume that BMHA’s apartment manager had informed the officers that Reed was trespassing. The officers would then have had probable cause to arrest Reed for criminal trespass. If, after arrest, Reed had argued that the officers lacked probable cause to arrest because they failed to inquire as to whether he was invited onto the property by a tenant, his argument would fail. At that point, like in Strickland, the officers would have had probable cause to arrest and would not have had to dispel every innocent explanation. Those, however, are not the facts of the present case.
The trespass ordinance in the case before us, like the ones in Blair, Jones, and In re Jason Allen D., provides that a person must enter or remain on another’s property without 'privilege. See Ohio v. Clelland, 83 Ohio App.3d 474, 615 N.E.2d 276, 287 (1992) (“The concept of privilege has been broadly construed, and the state has been required to prove lack of privilege.”). The majority concludes that the following facts establish probable cause for Reed’s arrest for criminal trespass: (1) Reed had been given a prior warning not to enter the BMHA property by Officer Thompson, (2) Reed was observed on the 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, and (5) Reed walked away when the officers approached. For the reasons set forth below, I do not believe that any of the five factors that the majority relies upon justify the conclusion that the officers had probable cause to believe that Reed was on BMHA’s property without privilege at the time of his arrest.
First of all, the fact that on one prior occasion Reed had been ordered off of BMHA’s property by Officer Thompson indicates at most that Reed may not have been on the property by invitation on that particular occasion. On the other hand, because Officer Thompson could not recall whether his previous encounter with Reed was weeks or months earlier, Reed could have became a resident in the interim. Moreover, Thompson’s past encounter with Reed provides no answer to the question of whether Reed had been invited onto BMHA’s property on the day he was arrested.
Second, the majority cites the uncontested fact that Reed was on BMHA’s property. This, however, has no bearing on the issue of whether the officers had probable cause to believe that Reed was on the *483property without privilege. The case would be different if the apartment manager had complained about Reed, or had requested the officers to remove him, because then the officers would have had probable cause to believe that he was not privileged to be there.
Third, there is no indication in the record that at the time of Reed’s arrest the officers knew that Reed was not a resident. In fact, the district court did not even make such a finding. The testimony at the suppression hearing indicates that the basis for Officers Thompson and Horton believing that Reed was not a resident of the BMHA property was solely Thompson’s past encounter with Reed. I thus find the majority’s reliance on this factor to be misplaced.
Fourth, the fact that there were twenty-six “No Trespassing” signs posted on BMHA’s property is similarly irrelevant as to whether the officers had probable cause to believe that Reed was not a resident or did not have an invitation to be on the property. The government conceded this point at oral argument.
Fifth, the fact that Reed started to walk away when the officers approached may raise a suspicion that he was engaged in any one of a multitude of improper activities, but is not particularly probative as to whether Reed was privileged to be on the property. In any event, both officers admitted that even before they saw Reed start to walk away, they had already decided to arrest him for criminal trespass.
Even if all five factors are considered collectively, they at most gave the officers a reasonable suspicion that Reed had no legitimate purpose for being there. This would have justified stopping Reed to inquire as to whether he lived on BMHA’s property or was there by invitation. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Washington v. Blair, 65 Wash.App. 64, 827 P.2d 356, 359 (1992). The officers, however, made no such inquiry.
At the suppression hearing, Officer Thompson gave the following response to the government’s question:
Q. And do you have information as to whether or not Mr. Reed had permission from the Housing Authority to be on that property?
A. No, I did not.
Thompson also made the following statements on cross-examination:
Q. Did you find out during the course of your investigation, though, that he did have a girlfriend there who had — he had a child by?
A. I don’t recall. I mean, I don’t remember him saying that but it’s possible, but it would have been irrelevant.
Q. I’m sorry?
A. It would have been irrelevant whether he was — had a girlfriend on the property.
Q. Now, you would have stopped him anyway; is that right?
A. That’s correct. He wasn’t with her at the time.
In addition, Officer Horton testified as follows in response to questions from the government’s attorney:
Q. All right. So you had approached along with Officer Thompson to pat down some individuals that you saw standing on BMHA property; is that correct?
A. I grabbed my party to pat him down.
Q. And now how many people altogether were there when you approached that scene?
A. Initially there were approximately four, I believe four other parties.
Q. And when you approached that scene, was it your intention to search all four of those people?
A. We were going to pick up Mr. Reed for sure. I could not state what we *484were going to do with the others. They started to walk away as we approached.
Q. So if they hadn’t walked away, you would have went ahead- and done a pat-down on those people also; is that right?
A. Probably after we got Mr. Reed into custody, yes.
Q. And that’s even though you had no idea whether those other two people were actually trespassing or not; is that right?
A. I didn’t get to see who they were, so I’m not sure.
Q. So you had no idea whether they would have been trespassing or not, is that right—
A. The two people.
Q. —because they could have been residents?
A. That’s fair to say.
The above testimony from the arresting officers clearly demonstrates that they thought it irrelevant whether or not Reed was privileged to be on the property. In other words, the officers admit that at the time of the arrest they did not know whether Reed had recently moved into the BMHA property or had been invited there by others. They decided to arrest him for criminal trespass as soon as they spotted him, no questions asked. Under these circumstances, the wisdom of Blair, Jones, and Jason Allen D. cries out for a result contrary to that reached by the majority.
Moreover, I believe that my view is consistent with the spirit of the Supreme Court’s recent unanimous holding in Florida v. J.L., — U.S. —, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). In J.L., an anonymous caller telephoned the police to inform them that they should watch for a black youth in a plaid shirt at a particular bus stop because he was carrying a gun. Six minutes later, officers went to that particular bus stop and found a youth meeting the caller’s description. The officers stopped and frisked the suspect, uncovering a firearm. In concluding that the officers did not have a reasonable suspicion to stop the youth, and that evidence of the firearm should be suppressed, the Supreme Court commented that “the Fourth Amendment is not so easily satisfied.” Id. at 1380. If the officers in J.L. did not have a reasonable basis to conduct even a Terry stop under the circumstances of that case, then I cannot fathom how the officers in the present case have satisfied the Fourth Amendment’s higher probable cause standard in arresting Reed.
Finally, I note the government’s alternative arguments that the crack cocaine should not be suppressed either because (1) it was in plain view or (2) it was abandoned by Reed. These arguments have little merit. Based on my view that the arrest of Reed was illegal, and because the illegal arrest caused Reed to remove the Frito-Lay bag from his pocket and throw it toward a friend standing nearby, the evidence from the bag is inadmissible under the “fruits of the poisonous tree” doctrine. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (explaining the doctrine); United States v. Simpson, 944 F.Supp. 1396, 1404 (S.D.Ind.1996) (holding that if there is a causal nexus between the police’s misconduct and the “abandonment,” then the evidence must be suppressed); United States v. Foster, 566 F.Supp. 1403, 1412 (D.D.C.1983) (“[A]n abandonment that is the product of police misconduct is not voluntary and cannot, therefore, vitiate the taint of an illegal detention.”).
In summary, the circumstances presented by this case gave the officers nothing more than a reasonable suspicion to believe that Reed was trespassing. This is far short of probable cause. Consequently, the officers had the right to stop Reed under Terry and ask him whether he lived on the property or was visiting a resident. But the officers had no right to immediately arrest him for criminal trespass.
*485I would therefore suppress the evidence of the crack cocaine and reverse the judgment of the district court.