COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68906 STATE OF OHIO : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION RONALD FIELDS : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 1, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 317814 JUDGMENT Reversed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: STEPHANIE TUBBS-JONES DONALD TITTLE, ESQ. Cuyahoga County Prosecutor 22649 Lorain Road EDWARD F. FERAN, Assistant Fairview Park, Ohio 44126 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Plaintiff-appellant State of Ohio appeals from an order of the trial court suppressing drugs found in a warrantless search of a hand bag carried by defendant-appellee Ronald Fields on a stop and seizure at Cleveland Hopkins Airport. Defendant was charged with two counts of violating the drug laws (R.C. 2925.03) and possession of criminal tools (R.C. 2923.24). A suppression hearing was held on March 10, 1995. On March 31, 1995, following the filing of post hearing briefs, the court suppressed the evidence stating that "the Court finds that unsubstantiated suspicions of law enforcement officers does not provide a reasonable evidence to stop." We disagree with the trial court's disposition and reverse. Deputy Harry Acklin of the Cuyahoga County Sheriff's Department was assigned to a Drug Enforcement Administration (DEA) task force working out of Cleveland Hopkins Airport. His job for the past two years was to detect drugs entering and exiting Cleveland, most frequently from "source cities" such as Los Angeles, New York City, Miami, Houston and Detroit. On December 13, 1994, Deputy Acklin received a tip from an unknown caller who told Acklin that he should check the "red eye" from Los Angeles the next day. The caller advised that a black male, approximately 40 years old, six feet tall and thin, would be transporting cocaine on his person through the airport. Acklin knew the only "red eye" from Los Angeles would be operated by Continental Airlines. - 3 - At 6:00 a.m. on Wednesday, December 14, 1994, Sheriff Captain Veres and Detectives Acklin, Vlk, Strimpel and Michlowsky met at the airport. The police had drug-sniffing dog "Sunny" with them. Detectives Michlowsky and Strimpel, with Sunny, went to the rear baggage area to check the luggage from Continental Flight No. 258 from Los Angeles. Detective Acklin went to Gate C-9 where the plane arrived, while Detective Vlk stood by the security area. Detective Acklin observed a black male who fit the description given by the caller deplane at 6:12 a.m. from the incoming Los Angeles Continental flight. He was carrying a black duffel bag and was walking fast toward the main terminal. Detective Acklin followed the male and observed him enter a restroom. A few minutes later, he came out of the restroom and proceeded through the terminal at a fast pace. After proceeding through the security area, Detective Acklin was joined by Detective Vlk. Detective Vlk remained outside the security area because he was carrying his weapon and Detective Acklin's weapon. The male under surveillance, later identified as defendant Ronald Fields, did not attempt to claim any luggage, but proceeded directly down the escalator toward the exit of the airport. Detective Acklin and Vlk approached the defendant and identified themselves as police officers both verbally and by presenting their credentials. Detective Acklin asked Fields, "Where are you coming from?" Fields replied, "Los Angeles." Detective Acklin asked to see his - 4 - ticket. Fields handed over a Continental airline ticket under the name of Rosco Fletcher, showing a departure from Cleveland on December 9, 1994, to Los Angeles, California, with a return on December 14, 1994. The ticket was purchased with cash at Air and Cruise Travel, North Olmsted, Ohio. Detective Vlk asked Fields for some identification. The defendant showed identification with the name of Ronald Fields and a Seattle, Washington address. Fields was asked why he was traveling under the name "Rosco Fletcher," and he replied that a friend had bought the ticket. Detective Acklin asked Fields for consent to search his duffel bag. The defendant said, "No, I found [it] in the restroom." Detective Acklin knew otherwise because he had earlier seen Fields exit the plane with the duffel bag. Fields asked to call a lawyer, consent was given, and he was taken to a pay phone. Detective Acklin then left the scene to retrieve the other detectives and the drug dog. Fields told Detective Vlk "Go ahead and search it if you want to." Fields then dropped the bag, exited the terminal and began walking towards the freeway. Detective Vlk went after him and brought him back inside. At this time, Detective Acklin opened the bag and found it contained two bricks (kilograms) of suspected cocaine. Fields was placed under arrest and Detective Vlk read him his Miranda rights. The defendant was booked at the Justice Center for - 5 - violations of the state drug law. The evidence was placed into the evidence room and later transported to the Bureau of Criminal Investigation for analysis. The State's sole assignment of error, with subparts, states as follows: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE. A. THE DETECTIVES HAD REASONABLE SUSPICION TO MAKE AN INVESTIGATIVE STOP. B. THE DEFENDANT CANNOT CLAIM A FOURTH AMENDMENT INTEREST IN PROPERTY HE ABANDONED. In granting the defendant's motion to suppress, the trial court held that "unsubstantiated suspicions of law enforcement officers does not provide a reasonable evidence to stop." The trial court did not make any factual findings other than holding that the suspicions of the officers were unsubstantiated. We find that the trial court misapplied the law to the facts of this case in reaching his conclusion. In doing so, we acknowledge the standards of review set out in State v. Harris (1994), 98 Ohio App.3d 543, 546: 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 factfinder. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, 981-982; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 57-58, 437 N.E.2d 583, 584-585. Appellate courts will defer to the factual findings of the trial court when such findings are supported by competent, credible evidence. State v. Klein (1991), 73 Ohio App.3d 486, 488, 597 N.E.2d 1141, 1142-1143; State v. Claytor - 6 - (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. Accepting the findings of fact of the trial court as true, an appellate court must then independently determine as a matter of law, without deference to the trial court's conclusion, whether the trial court erred in applying the substantive law to the facts of the case. Klein, supra; State v. McCulley (Apr. 28, 1994), Cuyahoga App. No. 64470, unreported, 1994 WL 164013. The crucial factual issue on this appeal turns on the initial contact between the detectives and the defendant. The trial court characterized the initial contact as a "stop" that required "reasonable evidence" on the part of the officers. The focus of our review is not whether there was probable cause to stop and search the defendant based on the informant's tip, but whether the officers' original contact with defendant constituted a seizure or was a consensual encounter. We find that the initial contact between the officers and the defendant in this case did not constitute a seizure and was consensual. It is well settled that a "seizure does not occur simply because a police officer approaches an individual and asks a few questions." Florida v. Bostick (1991), 501 U.S. 429, 434; State v. McDaniel (1993), 91 Ohio App.3d 189, 191. A seizure of a person occurs when an officer has restrained the liberty of the person in such a manner that a reasonable person would have believed he or she was not free to leave. Bostick, supra; United States v. Menderhall (1980), 446 U.S. 544; State v. Johnson (1993), 85 Ohio St.3d 475, 478. - 7 - Our analysis of the instant case is further informed by the recent decision of State v. Robinette (1995), 73 Ohio St.3d 650, where, in a four to three decision, the Ohio Supreme Court held that constitutional guarantees require "that citizens stopped for traffic offenses be clearly informed by the detaining officer when they are free to go after a valid detention before the officer attempts to engage in a consensual interrogation." Paragraph two of syllabus. The majority found that "without a clear break from the detention, the succeeding encounter is not consensual at all." Id. at 655. In the instant case, there was no detention before the consensual encounter commenced. The Court in Robinette recognized that "consensual encounters between police and citizens are an important and constitutional tool [citing Florida v. Bostick] *** the legality of consensual encounters between police and citizens should be preserved." Id. The traditional test as to whether a person has been seized is whether a reasonable person would feel free to go about his business in the usual way. Robinette at 656 (Justice Sweeney, dissenting); Menderhall, supra; State v. Chism (1993), 92 Ohio App.3d 317, 321. The facts of this case are similar to those in Bostick and Menderhall as distinguished from Robinette. The three officers testified that the defendant exhibited the conduct and characteristics of a drug courier. A drug courier profile has been established to aid the Federal Drug Enforcement Administration and local narcotics units in identifying drug - 8 - couriers upon their arrival at national airports. Among the characteristics which lead to suspicion of illegal drug activity are: an arrival from a notorious source of narcotics; a passenger who is among the first or last to deplane; a passenger who carries little luggage and fails to claim baggage; the airline ticket was purchased with cash; a passenger who is traveling under an assumed name; a passenger who hurries through the airport and appears nervous; and an early morning arrival when narcotics security is typically relaxed. State v. Fost (1991), 77 Ohio App.3d 644, 647; State v. Haffey (1983), 9 Ohio App.3d 231, 232. In the present case, the officers initially began following the defendant based on the information supplied by the informant. As they observed him proceed through the terminal, they noted that his actions were compatible with that of a drug courier. The officers themselves testified at the suppression hearing that they did not have enough reasonable suspicion to stop and search the defendant in what is known as a "Terry" stop. Terry v. Ohio (1968), 392 U.S. 1, 19. Although their suspicions were aroused, they decided on a consensual encounter. The officers approached the defendant and asked to see his ticket and identification, which he readily provided. The officers did not physically restrain the defendant or curtail his freedom of movement. The application of physical force was not used, nor was there evidence which would suggest a show of authority sufficient to have conveyed to a reasonable - 9 - person that, by the officers' conduct and words, defendant was under restraint or detained. The officers were not in uniform and did not have their weapons visible. This initial consensual encounter required no objective justification from the officers. The defendant was free to leave at any time, which in fact he attempted to do at a later point. A careful review of the facts leads us to conclude that the initial encounter between the officers and the defendant was consensual and did not rise to the level of a "Terry" type stop and search. The trial court misinterpreted this initial contact as a stop. The nature of the encounter changed, however, when the defendant stated that he found the black duffel bag in the rest room. The officers knew this statement was a lie for they observed him leave the plane with the duffel bag in hand. At this point, the officers had reasonable suspicion to believe that by lying defendant was attempting to cover up some illegal activity. The encounter also changed at this point from the initial consensual encounter to an investigatory Terry stop. Haffey, supra. An investigatory detention is justified if the police officer has a reasonable, articulable suspicion of criminal activity. State v. Bobo (1988), 37 Ohio St.3d 177, 180; State v. Rojas (1993), 92 Ohio App.3d 336, 339. The defendant's appearance and actions not only matched the information given by the informant, but also corresponded to the accepted profile of a drug courier. This information coupled with - 10 - defendant's denial of ownership of the duffel bag was sufficient, under the totality of the surrounding circumstances, to perform an investigatory stop of the defendant. State v. Andrews (1991), 57 Ohio St.3d 86, 87; State v. Curry (1994), 95 Ohio App.3d 93. At this point, the officers informed the defendant that they were going to check the duffel bag with the drug dog. Officer Acklin went to retrieve the drug dog. The defendant then told Lt. Vlk: "Go ahead and search it if you want to." He dropped the bag and walked out of the airport and started up the exit ramp which was not equipped with a sidewalk. Detective Vlk went after him and brought him back into the airport. Detective Acklin returned to the scene and being advised of defendant's conduct, opened the bag and discovered the two kilos of cocaine. Detective Acklin testified at the suppression hearing that he believed the bag was abandoned by the defendant and that he was justified in searching it. We agree. The defendant in this case abandoned the duffel bag by dropping it, claiming it was not his and walking out of the airport terminal away from the officers. A voluntary abandonment of property deprives a defendant of standing to challenge a subsequent seizure of said property. State v. Freeman (1980), 64 Ohio St.2d 291, 297-98; State v. Barnwell (1993), 87 Ohio App.3d 637, 639. In Freeman, supra, the court held: Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir. 1968, 396 F.2d - 11 - 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir. 1971, 440 F.2d 1105, 1111. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. See Abel v. United States, supra; Edwards v. United States, 5th Cir. 1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir. 1970, 431 F.2d 330. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had 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. United States v. Edwards, supra, 441 F.2d at 753; cf. Katz v. United States, 1967, 389 U.S. 347 ***. Id. at 297, citing United States v. Colbert (5th Cir. 1973), 474 F.2d 174, 176. In this case, the defendant relinquished his expectations of privacy regarding the duffel bag when he dropped it and proceeded to walk away from the officers. In this case, his abandonment of the bag was undoubtedly motivated by his fear of the drug dog's reaction. Yet there was nothing unlawful or improper in the officer's decision to use the dog. A dog sniff is not a search. State v. Carlson (1995), 102 Ohio App.3d 585, 594; State v. Riley (1993), 88 Ohio App.3d 468, 475. See, also, United States v. Place (1983), 462 U.S. 696. The duffel bag having been abandoned, defendant's Fourth Amendment rights were not violated by the search. United States v. Tolbert (6th Cir. 1982), 692 F.2d 1041 (no expectation of privacy to suitcase left in baggage claim area where individual denies ownership). - 12 - In considering the totality of the circumstances in this case, we conclude that the officers did not violate defendant's Fourth Amendment rights. The State's sole assignment of error is sustained. Judgment reversed. - 13 - It is ordered that appellant recover of appellee its costs herein taxed. It is ordered that a special mandate be sent to the Court of Common Pleas 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. NAHRA, J., and O'DONNELL, J., CONCUR. JAMES M. PORTER PRESIDING 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 .