[Cite as State v. Wynn, 2011-Ohio-1832.]




          IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                    :

        Plaintiff-Appellee                       :   C.A. CASE NO. 24253

vs.                                             :    T.C. CASE NO. 09CR3146/1

KENNETH LAVON WYNN                               :   (Criminal Appeal from
                                                      Common Pleas Court)
        Defendant-Appellant                      :

                                      . . . . . . . . .

                                           O P I N I O N

                   Rendered on the 15th day of April, 2011.

                                      . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros.
Attorney, Atty. Reg. No.0067685, P.O. Box 972, Dayton, OH 45422
     Attorneys for Plaintiff-Appellee

Daniel J. O’Brien, Atty. Reg. No.0031461, 1210 Talbott Tower, 131
N. Ludlow Street, Dayton, OH 45402
     Attorney for Defendant-Appellant

                                      . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Kenneth Wynn, appeals from his convictions

for possession of heroin, R.C. 2925.11(A), and trafficking in

heroin, R.C. 2925.03(A)(1), which were entered on Defendant’s pleas

of no contest in common pleas court Case No. 2009CR3146 after the
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court overruled Defendant’s Crim.R. 12(C)(3) motion to suppress

evidence.

     {¶ 2} Defendant was arrested on September 21, 2009, following

his flight from police during which Defendant threw down a plastic

baggie that officers seized after Defendant’s apprehension and

arrest.     The baggie contained heroin, which Defendant’s motion

sought to suppress and that formed the basis of Defendant’s

convictions in Case No. 2009CR3146.

     FIRST ASSIGNMENT OF ERROR

     {¶ 3} “THE TRIAL COURT PREJUDICIALLY ERRED IN NOT SUPPRESSING

THE EVIDENCE THAT WAS FRUIT OF THE POISONOUS TREE - THE UNLAWFUL

DETENTION OF DEFENDANT AFTER THE TIME AND THE REASON FOR THE STOP

HAD ENDED.”

     {¶ 4} The error assigned pertains to the trial court’s decision

 Case No. 2009CR218, overruling Defendant’s motion to suppress

evidence seized in a search of Defendant’s person on January 20,

2009, at the Montgomery County Jail, following Defendant’s arrest

on outstanding warrants.      Defendant filed “joint” motion to

suppress evidence in Case Nos. 2009CR218 and 2009CR3146.        The

judgment of conviction in Case No. 2009CR3146 is the final order

from which the notice of appeal in the case presently before us,

Appellate Case No. 24253, was filed.    Defendant’s conviction in

Case No. 2009CR218 is the subject of another appeal, from a notice
                                                                  3

of appeal that was separately filed in Appellate Case No. 24252.

     {¶ 5} Defendant’s first assignment of error is overruled.

     SECOND ASSIGNMENT OF ERROR

     {¶ 6} “THE TRIAL COURT PREJUDICIALLY ERRED IN NOT SUPPRESSING

THE EVIDENCE THAT WAS FRUIT OF THE POISONOUS TREE - THE STOP MADE

MERELY ON SPECULATION OR A HUNCH.”

     {¶ 7} Defendant’s apprehension and arrest on September 21,

2009, following his flight on foot from police, during which he

discarded the baggie of drugs that Defendant’s motion sought to

suppress, began with an incident in which an officer allegedly

saw Defendant sell drugs to another man through the open windows

of the two cars in which they sat.   At the hearing on Defendant’s

motion to suppress, the officer testified that he saw Defendant

drop what appeared to be heroin capsules into the other man’s hand.

 When the officer approached in his cruiser, Defendant drove off

at a high speed.

     {¶ 8} After Defendant’s vehicle malfunctioned and came to a

stop, officers tried to arrest him but Defendant fled on foot.

Another officer testified that during the subsequent chase on foot

he saw Defendant take a baggie from his pocket and throw it on

the ground.   After Defendant was subsequently apprehended and

arrested, the same officer returned to that location and seized

the baggie of drugs he saw Defendant discard.
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       {¶ 9} In his motion to suppress (Dkt. 15), Defendant argued

that the officers lacked a reasonable and articulable suspicion

of criminal activity sufficient to justify his seizure and arrest.

 Because of that, according to Defendant, the “intrusion of (sic)

his freedom of movement was unlawful and any evidence resulting

from such arrest should be suppressed.”

       {¶ 10} The State filed a Memorandum contra (Dkt. 25), arguing

that Defendant lacks standing to challenge the seizure of the baggie

and the drugs it contained because his abandonment of that property

operated to relinquish any reasonable expectation of privacy in

that property which Defendant had.             The State cited and relied

on our decision in State v. DeLoach (Aug. 11, 2000), Montgomery

App.No. 18072.

       {¶ 11} The   court   took    evidence     on   Defendant’s    motion.

Following the hearing, the court filed a written decision (Dkt.

26).    With respect to the grounds for suppression which Defendant’s

motion raised, the court found that when Defendant was seen by

an officer selling drugs to another man, that fact created

reasonable and articulable suspicion permitting his attempted

detention and subsequent arrest.           In crediting the officer’s

testimony, the court found that it was corroborated by the

cross-examination       testimony    of   Defendant’s     witness,     Ford.

However, the grounds on which the court overruled Defendant’s
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motion to suppress evidence were that “[p]roperty abandoned during

flight from the police is voluntary and cannot be challenged as

inadmissible.”       Id., p. 4.

      {¶ 12} On appeal, Defendant argues that the trial court abused

its     discretion    in   finding    that   the   substance   of   Ford’s

cross-examination testimony corroborated the State’s case when

it did not.     However, that finding was not a part of the basis

on which the court overruled Defendant’s motion to suppress, which

was instead the abandonment theory on which the State relied.

Defendant has not addressed that conclusion of law or the findings

of fact on which it was based.

      {¶ 13} In DeLoach, we wrote:

      {¶ 14} “When a person abandons property that he owns or

possesses, the act of abandonment operates to relinquish any

reasonable expectation of privacy he had in the property which

the Fourth Amendment protects. Rawlings v. Kentucky (1980), 448

U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633. Therefore, property that

has been abandoned is outside the prohibition against unreasonable

searches and seizures which the Fourth Amendment imposes. Hester

v. United States (1924), 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898;

Abel v. United States (1968), 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d

668.”    Id., p.1.

      {¶ 15} Hester    announced     the   “open   fields”   doctrine   and
                                                                   6

exception to the Fourth Amendment warrant requirement.       As one

commentator has noted:

     {¶ 16} “The significance of abandoned property in the law of

search and seizure lies in the maxim that the protection of the

fourth amendment does not extend to it.   Thus, where one abandons

property, he is said to bring his right of privacy therein to an

end, and may not later complain about its subsequent seizure and

use in evidence against him.   In short, the theory of abandonment

is that no issue of search is presented in such a situation and

the property so abandoned may be seized without probable cause.”

 Mascole, The Role of Abandonment in the Law of Search and Seizure:

An application of a Misdirected Emphasis, 20 Buffalo Law Review,

399, 400-01(1971).

     {¶ 17} As the title of the foregoing law review article

suggests, the holding in Hester has been the subject of criticism

and exceptions.   The “open fields” rule is a variant of the “plain

view” exception to the warrant requirement, in which an officer

must lawfully be in a position to discover what he sees in plain

view.   When property is abandoned in the course of a police pursuit

undertaken to effect an illegal detention, is it then    reasonable

to not suppress evidence of the property that was abandoned?   That

seems to be the gist of Defendant’s argument on appeal.

     {¶ 18} That issue was more recently resolved by the United
                                                                    7

States   Supreme Court in California v. Hodari D. (1991), 499 U.S.

621, 113 L.Ed.2d 690, 111 S.Ct. 1547.   On similar facts, the Supreme

Court held that, even where a police pursuit was not based on

reasonable suspicion, cocaine the suspect discarded during the

course of the pursuit was not the fruit of a “seizure” within the

meaning of the Fourth Amendment, because: (1) an arrest – the

quintessential seizure of the person under Fourth Amendment

jurisprudence – requires either (a) the application of physical

force with lawful authority, or (b) submission to the assertion

of authority; (2) the accused had not been touched by the officer

at the time he discarded the cocaine; and (3) assuming that the

officer’s pursuit of the accused constituted a show of authority

enjoining the accused to halt, the accused did not comply with

that injunction and therefore was not seized until the officer

tackled him.

     {¶ 19} The facts of the present case align almost exactly with

the factors in Hodari D. which the Supreme Court cited, with but

one exception.   In Hodari D. there was insufficient reasonable

and articulable suspicion to justify the attempted detention by

officers from which the defendant fled.     In the present case, the

 officer’s belief that he witnessed Defendant sell heroin to

another man provided ample suspicion.      Defendant challenged the

reasonableness of that suspicion, arguing that the officer was
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not in a position to see what he said he saw.     The trial court

rejected   that     contention,   relying,   in   part,   on     the

cross-examination of Defendant’s witness, Ford.      Even had the

court misconstrued Ford’s testimony, a contention with which we

do not agree, that would not affect the “abandonment” finding on

which the court overruled Defendant’s motion to suppress.      We see

no error in that finding.

     {¶ 20} The second assignment of error is overruled.         The

judgment of the trial court will be affirmed.



FROELICH, J. And BROGAN, J., concur.

(Hon. James A. Brogan, retired from the Second District Court of
Appeals, sitting by assignment of the Chief Justice of the Supreme
Court of Ohio.)

Copies mailed to:

Johnna M. Shia, Esq.
Daniel J. O’Brien, Esq.
Hon. Connie S. Price
