COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60291 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : PAUL MINCHAK : : Defendant-Appellee : : DATE OF ANNOUNCEMENT APRIL 9, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-251115 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: JEFFREY MARGOLIS BRIAN M. FALLON Assistant County Prosecutor 450 Standard Bldg. 8th Floor, Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Paul Minchak, defendant-appellee, hereinafter Appellee was indicted by the Cuyahoga County Grand Jury on one count of possession of cocaine in less than the bulk amount in violation of R.C. 2925.11 and one count of possession of criminal tools in violation of R.C. 2923.24. He filed a motion to suppress evidence illegally seized by the State of Ohio, plaintiff- appellant, hereinafter Appellant which was granted. Appellant timely appeals and for the reasons set forth below, we affirm. On the evening of February 16, 1990, Appellee arrived at the apartment of one Steve Assid. The circumstances leading up to Appellee's arrival at the apartment were testified to by Appellee. He testified that he was employed as a sales clerk at the Daystar Boutique in Cleveland, Ohio and was working at the boutique on the evening in question. According to Appellee's testimony, he received a phone call at the boutique from Steve Assid, who indicated that he could not make it to the store by the nine o'clock closing time and wanted to know if Appellee had plans to stay late at the store. Appellee told Assid that he would be at the store after nine o'clock because he was waiting for his girlfriend. Appellee further testified that Assid did not arrive at the store but phoned at approximately 9:15 p.m. and 1 asked Appellee to drop off some incense foundation, screens, a silk wall hanging, and a butane torch. 1 Screens are often used in the smoking of contraband and serve as a filter when inserted into a pipe. -3- Appellee waited until approximately ten o'clock for his girlfriend to arrive, who never arrived. He testified that he phoned his boss, told him he was leaving the store, going to drop off the requested items at Assid's apartment, and would then bring the sales receipts for the day over to his boss' house. Appellee knew where Assid lived because he had delivered items to him before. According to Appellee, his boss had instructed him to give Assid preferred customer treatment because of all the money Assid had spent in the store. Appellee testified that he placed the requested items in a bag and drove to Assid's apartment. Appellee further testified that he parked his car in the apartment building's parking lot and locked it. He left a black gym bag containing personal items on the floor of the car; the bag was closed and zipped according to Appellee's testimony. The bag contained Appellee's personal items, the day's store receipts, uncashed payroll checks, and a cash register tape. On his person, Appellee testified that he had a Bic lighter, some Joker rolling papers, and a small plastic bag of marijuana all of which were in his coat pockets. In his pants pockets, Appellee testified that he had Six Hundred and Twenty Dollars ($620.00), Five Hundred Dollars ($500.00) of which he planned to utilize to purchase inventory for the store. The remainder of the money was Appellee's. At this point with respect to the sequence of events, the testimony of all the witnesses conflicts. Appellee testified -4- that he knocked on the door to Assid's apartment and it came open six to eight inches without turning the knob. He further testified that after taking a peek inside, the door was pulled open and a black male hopped out and placed a gun at his temple. Appellee identified this man as Detective Sparks. A Detective Oliver also got up off the floor and placed his gun at Appellee's other temple. Appellee was guided into the apartment, according to his testimony, and a person identified by Appellee who turned out to be Sergeant Metcalfe grabbed the paper bag containing the items he was bringing to Assid. His testimony was that he was then shoved against a wall, handcuffed, and patted down without the police removing anything from his pockets. He was then moved to the other side of the room where he noticed Assid and two other people handcuffed on a couch. According to Appellee's testimony, it was at this point that the police went through his pockets. It was also the testimony of Appellee that he did not have State's Motion Exhibit #2 (the cylinder type object) in his pocket. In addition, Appellee insisted during his direct examination that he never gave either written or oral consent to the officers to search his vehicle. Appellee was not cross- examined. Appellant produced several officers to testify in the motion hearing. The first officer was Sergeant Gordon Metcalfe, an East Cleveland policeman, temporarily assigned to a Federal Government Task Force. Metcalfe was sworn as a temporary agent for one year -5- to work on narcotics cases. He was present during the execution of the search warrant on February 16, 1990. His direct testimony contained inconsistencies. Metcalfe testified that after knocking on Assid's unlocked door Appellee walked in and then attempted to turn and walk out. Metcalfe and Detective Sparks, according to Metcalfe's direct examination, grabbed Appellee before he could leave and Sparks performed a pat down search. His testimony was that, in the process of the pat down, Detective Sparks removed a "white pipe", like a straight shooter used for smoking cocaine. Sergeant Metcalfe, on the same page of the transcript, then refers to the object as an "amber tube or pipe." Appellee was then handcuffed and arrested prior to Detective Sparks continuing to search him according to Metcalfe. Sergeant Metcalfe then testified that Appellee gave his car keys to him and a Detective Dunn. Oddly, according to Sergeant Metcalfe's own testimony, Appellee would have given him the keys while handcuffed. He then changed his testimony in response to a leading question from the prosecutor, that the keys were found. On further direct examination, Sergeant Metcalfe's testimony was changed again when he stated that Appellee "gave" him the keys. On cross-examination, Metcalfe was not sure if the keys were found, taken, or given to them. According to Metcalfe, he and Detective Dunn went downstairs to search Appellee's vehicle. He testified that Appellee's car was entered with the keys. With respect to the issue of consent to search the car, Metcalfe testified that even though the -6- officers had consent forms with them Appellee was not asked to execute one with regard to the search of his auto. Sergeant Metcalfe also testified that the vehicle was being searched, secured, and towed because it is the police's responsibility to secure the vehicle of anyone arrested. This was his testimony even though Assid's car was not towed but parked in the same lot. Metcalfe did testify, however, that he searched Assid's vehicle. Metcalfe also offered as a reason for the automobile search the fact that the officers wanted to see if they could find any other drugs in the vehicle. Metcalfe offered testimony as to what was found in Appellee's car. Despite Metcalfe's testimony that he believed that Detective Dunn made an inventory report, he never saw Dunn complete it nor did he see a report containing reference to the inventory. Metcalfe admitted that no narcotics were discovered in Appellee's vehicle and that the items that were found in the car were not specifically illegal. He also testified that Appellee's black gym bag was located on the front passenger side floor, open, with a roll of money exposed in plain view. He did recall seeing some checks as well but neither the money nor the checks were produced at the hearing. The second witness called on behalf of Appellant was Detective Milford Sparks, who was a Regional Transit Authority Police Officer likewise assigned to the Federal Government. Detective Sparks testified that Appellee just opened the door, -7- walked in, and froze; Sparks stated that he was securing one of the female suspects at the time. Sparks' testimony was that he immediately left his female suspect and approached Appellee while identifying himself as a police officer. Sparks ordered Appellee to freeze and patted him down for his own safety. During the pat down, Sparks testified that he felt a hard object in the right side jacket pocket of Appellee. He removed it and identified it as "glass tubing", which he referred to as a snorter or sniffer but also indicated that it was not a pipe. According to Detective Sparks, he turned this contraband over to Agent Frye who tagged it and logged it in as evidence. He testified that the tube had more residue in it at the time it was confiscated. Sparks also removed a small package of suspected marijuana from the same jacket pocket which was likewise given to Agent Frye. He did not recall removing any other items from Appellee's person. Sparks returned to the female suspect after the arrest of Appellee. On cross-examination, Sparks testified that he had not placed his initials on the "sniffer," even though he was the officer who confiscated it. Detective Sparks was not able to positively identify Appellee's jacket when it was shown to him. Sparks testified that Appellee was handcuffed as soon as he found the vial in his pocket. Sparks further testified that Sergeant Metcalfe went through Appellee's jacket and pants pockets while he was handcuffed. Oddly, Sergeant Metcalfe testified that it was Detective Sparks who went through Appellee's pockets. -8- Detective Sparks then contradicted his testimony at the preliminary hearing when he testified that he did not hear Appellee knock on the door. His preliminary hearing testimony was that he heard Appellee knock on two occasions. Counsel for Appellee impeached him with this prior sworn testimony. Det. Sparks could not indicate, with respect to the pat down search, exactly what weapon he believed the sniffer to be when he removed it from Appellee's pocket. Additionally, he was unable to find any burnt residue on the sniffer during the motion hearing even though he testified at the preliminary hearing that it contained burnt residue. Det. Sparks testified at the motion hearing that he did not look into the bag that Minchak was carrying. However, his preliminary hearing testimony was that he had looked into the bag and concluded that it contained nothing illegal. His testimony that Appellee never attempted to leave after entering the apartment directly contradicted Sergeant Metcalfe's testimony that Appellee attempted to leave after walking in the apartment. The trial court also conducted a limited examination of Detective Sparks with respect to the pat down search. Detective Sparks illuded to the court that he was taught to cuff someone and pat the individual down for weapons. Again, as he did on cross-examination, Detective Sparks was unable to explain to the trial court what kind of weapon he thought the tube could have been. -9- Special Agent Frye was the next witness for Appellant. While he did not observe the search of Appellee, he did recall Sparks handing him an object similar to the sniffer. He testified that everyone inside the apartment had been handcuffed prior to Appellee's arrival at the apartment. This testimony directly contradicts Sparks' testimony about securing the female as Appellee walked in. Frye was unable to say for sure that the vial or sniffer shown to him during the motion hearing was the same one given to him by Sparks on the night of the search. Frye also admitted that a photograph that was supposed to portray the items seized from Appellee contained other items not in the property envelope but supposedly attributable to Appellee. Furthermore, there were two items allegedly seized from Appellee that were not even in the photograph. The prosecution called as its final witness, Detective Brian Dunn, who had been in the courtroom at counsel table for all of the prior testimony at counsel table. Dunn was unable to explain why the two items allegedly seized from Appellee were not in the photograph even though he was the one who took the photo. Dunn testified that the purpose of searching Appellee's vehicle was twofold. The first reason was that because Appellee was being arrested his car would have to be towed. The second reason was that they were going to inventory the car and search it for drugs. Even though Dunn recalled searching Appellee a second time and finding money, he could not recall how the keys to Appellee's vehicle came into Sergeant Metcalfe's possession. -10- He, too, insisted that the black gym bag was on the floor of the car, wide open, with cash money in plain view sticking out of the bag. Dunn's testimony contained a number of other discrepancies and inconsistencies. Appellee called some other officers that participated during the search. These officers, likewise, presented versions of the facts that contained discrepancies and contradictions. Det. Brian Joyce's testimony was that it only took about three minutes to handcuff the occupants of Assid's apartment. This directly contradicts Det. Sparks testimony with respect to securing the female. Joyce testified that he was in the living room when Appellee arrived. Sergeant Metcalfe did not place Joyce in the living room. Joyce testified that Oliver was not near the door but on the other side of the room. Joyce claimed that Appellee did try to leave. Sparks said he did not. Joyce also testified that even though he was present in the living room he did not see Appellee searched. Detectives Adrian Candelaria and George Oliver were both called by Appellee as witnesses. They were both in agreement that everyone inside the apartment was handcuffed almost immediately. After hearing the testimony of all the officers, reviewing the physical evidence, and observing all the witnesses, the trial court concluded that he did not find the police officers to be credible. In fact, the trial court found Appellee to be the most credible. He further found that the officers failed to -11- testify to specific and articulable facts that would create a reasonable suspicion of criminal activity. Instead, their testimony focused on the pat down search which the court found not plausible. As a consequence, the motion to suppress evidence was granted. Appellant's assignment of error one states: THE TRIAL COURT IMPROPERLY GRANTED THE APPELLEE'S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM THE DEFENDANT'S PERSON BECAUSE IT WAS OBTAINED THROUGH A VALID TERRY PAT-DOWN SEARCH FOR THE PROTECTION OF THE OFFICERS INVOLVED IN THE SEARCH. The issue raised in this assigned error is the pivotal one of the case. The reason for this statement is embodied in the exclusionary rule. Appellant appropriately and accurately cites the rule in Terry v. Ohio (1968), 392 U.S. 1. When the police officer observes activity which creates a reasonable suspicion of criminal activity, the police officer may conduct a brief investigative detention to satisfy his suspicions. Id. Further, the United States Supreme Court states in Terry at 24: When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. It is, however, Appellant's application of the rule in Terry to the facts in the instant case that becomes troublesome. Appellant argues that in the instant case the police had a -12- reasonable suspicion of criminal activity based upon articulable facts. The first fact suggested is that the police were in a drug house. The second is that Appellee entered with a bag of drug paraphernalia. The third is that Appellee entered unannounced and voluntarily. Appellant concludes being a drug house, one could reasonably conclude that any person voluntarily entering may well be a drug dealer or user and could pose an undue risk to the officers conducting the search. The first fact, cited by Appellant, does not give rise to an articulable fact that creates a reasonable suspicion of criminal activity in Appellee. (Emphasis added.) The mere fact that the police are in a drug house is not an articulable fact that generates a mexus between Appellee and criminal activity. A mailman or delivery person could walk up to a drug house to make a delivery. This does not in and of itself create a suspicion of criminal activity in the mailman or delivery person. The second reason, as stated by Appellant, is inaccurate. The record clearly reflects that the contents of the paper bag was not specifically illegal. A police officer testified to this fact. Further, at the time that the officer is generating the reasonable suspicion of criminal activity, the officer would have no idea what was contained in the paper bag because those suspicions would have to be formed as Appellee walked in, prior to any knowledge of the bag's contents. Third, the fact that Appellee entered voluntarily and unannounced is a fact in contention. In fact, the trial court specifically found the -13- officers to not be credible witnesses. Appellee testified that the officers snatched him into the apartment at gunpoint. Furthermore, the fact that an individual would walk into an apartment full of police officers voluntarily and unannounced is arguably indicative of having nothing to hide and no criminal behavior. It is difficult to fathom a criminal engaged in criminal activity with contraband on his person, just walking right into an apartment filled with police. The most critical flaw in Appellant's rationale is that the trier of facts found no such testimony that gave rise to these purported specific and articulable facts. The trial court stated as part of its explanation for its ruling, the following: The police here, however, did not claim that they searched him for drugs. They claim that they searched him for a weapon, which, frankly, I don't think was the truth. I don't think this was a truthful statement as to why they went to him, and, as I say, I don't think that they did anything except handcuff him and put him into the room, as he testified. So what we have here is what might very well be a valid search of him if the court had some credible and articulated facts as to what really happened that would justify their going in to conduct a search of him. But it's rather clear to me that what has happened here is that everything that was found was taken summarily and peremptorily, including the opening of the bag, and I don't have any question also -14- that if they had given some facts and some explanation for this, that they might have shown a basis for opening the bag. Thus, we must hold that where the police fail to testify to specific and articulable facts that give rise to a reasonable suspicion of criminal activity there can be no investigatory detention and corresponding Terry search. Undoubtedly, this is a determination to be left largely in the hands of the fact finder who in a motion to suppress hearing is the trial court. As an appellate court on review, we must give substantial deference to the trier of fact especially in a case like this where the record supports the credibility concerns of the trial court. Assignment of error one is overruled. Assignment of error two states: THE TRIAL COURT IMPROPERLY GRANTED THE APPELLEE'S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM THE APPELLEE'S PERSON, THE BAG HE WAS CARRYING, HIS VEHICLE AND THE VEHICLE ITSELF BECAUSE THE VEHICLE WAS OBTAINED PURSUANT TO A VALID SEARCH WARRANT PROPERLY EXECUTED. Appellant begins to support its argument with the statement that any person who is on the premises or voluntarily enters the premises during the course of the execution of a search warrant which orders the police to search the premises is legitimately subject to a search of his person. In discussing Appellant's reasoning for the affirmance of this assigned error, this court will address the supporting contentions individually. With respect to this first supporting premise, it is an inaccurate statement of law and a misstatement -15- of the facts in this case. The factual aspect is easily explained. The trial court did not find that Appellee entered the premises voluntarily. Specifically, the trial court stated: "Frankly, of all the accounts of what happened at the point of entry, I found the Defendant's account to be the more believable. And that is that he did knock on the door; that he was confronted there by the officer at the door; and that he was, in fact, ordered in at gunpoint; and that nothing was taken from him in the initial frisk; and that they placed him on a chair and then searched his pockets and found something." Nonetheless, for purposes of legal explanation, the proposition will be accepted for a moment as is. In Ybarra v. Illinois (1979), 444 U.S. 85, the United States Supreme Court held that a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. The facts, in Ybarra with the exception of the defendant already being on the premises, are similar to the instant case. The police entered a bar with a search warrant for the bartender and establishment for evidence of drugs and drug trafficking. The officers informed the patrons that they would be conducting a Terry style search. The defendant was lined up and patted down with the other patrons. An officer felt a cigarette pack with objects in it in the pocket of the defendant, which he later removed and discovered six packages of heroin. Id. In Ybarra, the government attempted, as it does in the case at bar to rely on the Terry philosophy that this was a limited frisk for weapons. The Supreme Court did not accept this -16- argument because the officers failed to articulate any specific fact that would have justified a police officer suspecting that the defendant was armed and dangerous. The trial court, in the instant case, based on his assessment of the credibility of the witnesses reached the same conclusion as the United States Supreme Court in Ybarra. Appellant's second contention supporting assignment of error two is unfounded. Appellant states that the testimony of seven police officers makes it clear that appellee voluntarily stepped into the premises being searched. As the foregoing excerpt from the transcript clearly indicates, the trial court and trier of the facts found the exact opposite; Appellee was not inside the premises voluntarily. The third contention of Appellant is that once Appellee was found to have an instrument with possible cocaine residue on it and a bag of screens there was a certain reasonable connection between the premises and the individual. This contention completely ignores the doctrine of the fruit of the poisonous tree. For all the aforementioned reasons, the initial search and detention of Appellee was an improper constitutional violation and therefore Appellant is not permitted to utilize any evidence derived from that constitutional violation, including the search of Appellee's automobile. Assignment of error two is overruled. Appellant's assignment of error three states: -17- THE TRIAL COURT IMPROPERLY GRANTED THE APPELLEE'S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM THE VEHICLE AND THE VEHICLE ITSELF AS SAID EVIDENCE AND VEHICLE WERE OBTAINED PURSUANT TO A VALID CONSENT SEARCH. Because of the rationale in assignment of error two, this assignment of error must be overruled. Evidence derived from an initial unconstitutional search can not be utilized by Appellant. Assignment of error three is overruled. Appellant's assignment of error four states: THE TRIAL COURT IMPROPERLY GRANTED APPELLEE'S MOTION TO SUPPRESS EVIDENCE FROM THE VEHICLE AND THE VEHICLE ITSELF BECAUSE THE VEHICLE WAS PROPERLY THE SUBJECT OF AN INVESTIGATORY SEARCH UPON ITS BEING TOWED AS A CRIMINAL TOOL. Appellant attempts here to usurp the derivative evidence rule by suggesting that Appellee consented to the search of his car. Appellee testified that he did not. Sergeant Metcalfe and Detective Dunn could not get their respective stories to correlate on whether the appellee gave them the keys, whether they took the keys, or found them. With the trial court's expressed conclusion that he did not believe the officers and that Appellee's version of the facts was probably the most accurate, this court is not prepared to find consent by Appellee to the search of his car on this record. Judgment affirmed. -18- It is ordered that Appellee recover of Appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and HARPER, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .