COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68200 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RODERICK SPENCER : : PER CURIAM Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 15, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 310563 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Edward G. Lentz Cuyahoga County Prosecutor 4403 St. Clair Avenue By: Mark Fellenbaum Cleveland, Ohio 44103 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: This case came on to be heard upon the accelerated calendar pursuant to App.R. 11 and Loc. App.R. 25. Defendant-appellant, Roderick Spencer, appealed the court's overruling of his motion to suppress evidence. Defendant-appellant, Roderick Spencer, was indicted for one count of Drug Law, in violation of R.C. 2903.03 and one count of Drug Abuse, in violation of R.C. 2925.11. The appellant filed a Motion to Suppress Evidence on July 20, 1994, and the motion was heard by the trial court on August 25, 1994. The trial court denied the appellant's Motion to Suppress and the appellant subsequently pled no contest to the indictment. On October 30, 1994, the trial court sentenced appellant to probation for one year. A notice of appeal was filed on November 25, 1994. For the reasons set forth, the trial court's decision to overrule appellant's motion to suppress evidence should be reversed. I. The following facts were set forth at the motion to suppress evidence hearing. On March 26, 1994, the Cleveland Police Narcotics Detectives, Kenneth Patterson, Jeffrey Sampson, and Raymond Gercar, arrested an unnamed juvenile for violation of the state drug law. The unnamed juvenile said that he lived at the C.M.H.A. housing complex on Cedar Avenue, with his mother. At approximately 5:30 p.m., the plainclothes detectives in an unmarked car arrived in the parking lot of the C.M.H.A. housing project at 2700 Central Avenue in Cleveland. As the police car pulled into the parking lot, -3- Detective Patterson testified that the juvenile stated, "that is my uncle sitting over in the car." On direct examination, Detective Patterson testified that the officers drove into the C.M.H.A. parking lot. Sergeant Gercar was driving, Detective Patterson was in the front passenger seat and Detective Sampson was in the rear seat. Detective Patterson said that as they approached the car it was still daylight outside. After they drove into the parking lot, Sergeant Gercar pulled up behind the parked car and the officers observed three males in the car. The detective said that they pulled up close so they would not have to walk as far. When they got out of their patrol car, Detective Sampson went to the driver's side, and Detective Patterson and Sergeant Gercar went to the passenger side. Detective Patterson stated that Detective Sampson asked the occupants in the car whether any one was the juvenile's uncle. Detective Patterson said that sometimes juveniles lie to get released. They needed to speak with the uncle so the uncle could verify and sign for the juvenile. While Detective Sampson questioned the occupants of the car, Detective Patterson observed the defendant reach into his jacket pocket with his right hand and pull out a plastic bag and attempt to push it down under the seat. At that point, he told the males to put their hands up where he could see them. On cross-examination, Detective Patterson stated that as the officers approached the car, he thought he asked the juvenile the name of the uncle. However, Detective Patterson did not recall the name of the uncle. In addition, he stated that it was police -4- procedure to return the juvenile to the home address. In this case, they stopped at the parked car because they could release a juvenile to an adult relative. Detective Patterson stated that he could not recall if there was a parked car on the left side, nor did he believe that there was a car parked on the right side. When the officers pulled up they did not blow their horn. The officers asked the juvenile again if the man in the car was the uncle. The juvenile did not deny that the uncle was in the car. Detective Patterson said that he did not remove his weapon as he approached the car. Detective Patterson said that he pulled his gun when he observed the defendant's hands come out of the jacket and into the seat of the car. Detective Patterson also stated that as they walked up to the parked vehicle, the officers did not call out the uncle's name, nor did they call out the name of the juvenile. When Detective Patterson was asked whether the individuals in the car were free to leave, in view of the fact that one officer had his gun drawn, the detective replied that was a difficult question to answer. The detective said that had they backed out they would have run into the police car. Furthermore, the detective stated that had the occupants of the car denied knowing the kid, they would have been free to leave. Detective Sampson on direct examination, testified that he observed three males seated inside the parked car and also stated that the juvenile told the officers that his uncle was sitting in the parked car. Detective Sampson stated that the juvenile told them his address and provided directions to get to the address. He -5- stated that he observed movement in the right front area of the car as he approached and he immediately withdrew his revolver from its holster. He told all the occupants to put their hands up where he could observe them. After they complied, Detective Sampson placed his service revolver back in its holster. On redirect examination, Detective Sampson stated that as they pulled into the parking lot, he observed no car on either side of the blue car. Once they were in the parking lot, the juvenile stated that he believed his uncle was in the car. Detective Sampson stated that Sergeant Gercar, the officer driving the car, pulled up behind the car because it would have been really simple for the uncle to come back and sign the release form and release the juvenile to the uncle. Detective Sampson stated that he did not ask the juvenile what the uncle's name was and did know whether or not the other officers asked the juvenile his uncle's name. Detective Sampson reiterated the fact that he had only a brief conversation with the occupants of the car. Detective Sampson stated that his service revolver was drawn to his side when he approached the car. When asked why they approached the car, Detective Sampson stated that they did so in order to return the juvenile to a relative who is of age. Juv. R. 7(B) sets forth the guidelines to be used when a person may take a child into custody. Once a juvenile has been taken into custody, R.C. 2151.311 sets forth the procedures for releasing a child. -6- III. Appellant's sole assignment of error states: THE TRIAL COURT ERRED BY OVERRULING THE APPELLANT'S MOTION TO SUPPRESS THE FRUITS OF THE WARRANTLESS SEARCH CONDUCTED IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, 16 OF THE OHIO CONSTITUTION. In this assignment of error, appellant contends that the trial court erred by overruling his motion to suppress evidence, because he was seized in a manner that violated protections that are afforded to him by the Fourth Amendment. Appellant contends that the seizure of his person was unlawful, hence any evidence gathered should have been excluded. Appellee argues that the appellant lacks standing to oppose the seizure of the evidence. Moreover, the "plain view" exception permits the seizure of the evidence, given the circumstances of this case. The issue presented by this appeal is whether the trial court was correct in overruling the appellant's motion to suppress the evidence, given the manner in which the defendant was initially seized. We agree with the appellant for the reasons set forth below. In a motion to suppress, the trial court assumes the role of the trier of fact, and as such, is in the best position to resolve questions of fact and to evaluate witness credibility. State v. Williams (1993), 86 Ohio App.3d 37,41. It is axiomatic that the evaluation of the evidence and the credibility of witnesses at a suppression hearing are issues for the trial court as fact finder. State v. Miles (1992), 62 Ohio St.3d 357; State v. Fanning (1982), 1 Ohio St.3d 19, 20. The reviewing court is bound to accept the -7- trial court's findings of fact if they are supported by competent, credible evidence. State v. Klein (1991), 73 Ohio App.3d 486, 488. In a suppression hearing the state bears the burden of proof and must demonstrate that the warrantless search and seizure were reasonable under the Fourth Amendment. State v. Bevan (1992), 80 Ohio App.3d 126. The appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, the appellate court must independently determine as a matter of law without deference to the trial court's conclusion, whether they met the appropriate legal standard. Klein, supra; State v. McCulley (Apr. 28, 1994), Cuyahoga App. No. 64470, unreported. The Fourth Amendment of the United States Constitution protects all individuals against unreasonable searches and seizures. United States v. Mendenhall (1980), 446 U.S. 544, 166 S.Ct. 1870, 64 L.Ed.2d 497; State v. McDaniel (Oct. 17,1993), Cuyahoga App. No. 65023, unreported at 3. A defendant has standing to urge the suppression of the evidence obtained in the violation of the Fourth Amendment only if the defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure. State v. Goodlow (1992), 84 Ohio App.3d 529. Appellant contends that he was seized within the meaning of the Fourth Amendment prior to the contraband being observed by the police officers. A "seizure" in the context of the Fourth Amendment occurs when there is some application of physical force, even if extremely slight, or a show of authority to which the object -8- yields. California v. Hodari (1991), 449 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690. 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 he was not free to leave. Mendenhall, at 554. The Supreme Court in Hodari stated: To constitute a seizure of the person, just as to constitute an arrest--the quintessential "seizure of the person" under the Fourth Amendment jurisprudence--there must be either the application of physical force, however slight, or where that is absent, submission to an officer's 'show of authority' to restrain the subject's liberty. Hodari, at 623. A seizure is scrutinized under the test of reasonableness under the Fourth Amendment any time "an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. We note that not every encounter between the police and the citizen constitutes a seizure of the person and is deemed as unreasonable and unlawful. An unlawful seizure of the person occurred in this instance, when, according to the police officers they pulled up behind the car. The pertinent facts indicate that the defendant was restrained from leaving the premises: 1) the police car prevented the defendant from leaving the premises; 2) the defendant was aware that one police officer had his gun drawn; 3) defendant complied when the officer told him to get his hands up. Under the circumstances, a reasonable person would have believed that he was not free to leave. Therefore, we -9- conclude that the initial seizure of the defendant's person was unlawful. Appellant argues that the plain view exception is applicable to the warrantless seizure. Coolidge v. New Hampshire (1971), 403 U.S. 473, 91 S.Ct. 2022, 29 L.Ed.2d, 564; Texas v. Brown (1983), 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502. However, in light of an unlawful seizure that violated the protections afforded to the defendant by the Fourth Amendment, we disagree. For the above mentioned reasons, we hold that the trial court erred by admitting evidence that was obtained as a result of a warrantless search. Judgment reversed and remanded. -10- It is ordered that appellant recover of appellee 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, 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 journalization, at which time .