         [Cite as State v. Ward, 2017-Ohio-8141.]
                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NO. C-160560
                                                        TRIAL NO. B-1507108
        Plaintiff-Appellee,                         :

  vs.                                               :      O P I N I O N.

GENO WARD,                                          :

        Defendant-Appellant.                        :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 11, 2017

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

John D. Hill, Jr., for Defendant-Appellant.
                        OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Judge.

      {¶1}    Defendant-appellant Geno Ward appeals the trial court’s denial of his

motion to suppress. Because we hold that there was no probable cause to search

Ward’s vehicle, we reverse the trial court’s ruling.

                                     Background

      {¶2}    The grand jury indicted Ward for carrying a concealed weapon, in

violation of R.C. 2923.12(A)(2), and improperly handling firearms in a motor vehicle,

in violation of R.C. 2923.16(B), both fourth-degree felonies. The charges stemmed

from a traffic stop on December 20, 2015.

      {¶3}    Ward filed a motion to suppress evidence found following a search of

his vehicle, and the trial court held a suppression hearing at which the arresting

officer, Corey Gould, and Ward testified. The officer testified that, at approximately

9 p.m. on the night in question, he pulled onto Ridgeway Avenue and observed

Ward’s car “parked at the curb of 711 Ridgeway, which is a * * * known drug

trafficking area.” He testified that he observed an individual stepping away from

Ward’s vehicle, and that, a few moments later, he initiated a traffic stop because

Ward had pulled away from the curb without using his turn signal.

      {¶4}    The officer testified that he had been a police officer for eight years,

and that he had frequently witnessed drug transactions. He testified that when he

saw Ward’s vehicle, he “believe[d] that [a drug transaction occurring] was a very

strong possibility. Given the area and the fact, you know, there was an individual

that was leaning into his car as I pulled up. That’s typically how we see those things

go down.”

      {¶5}    The officer further testified: “I made contact with the defendant. Ran

his information through our computer system. Found out that he was suspended



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                        OHIO FIRST DISTRICT COURT OF APPEALS

and that there was a warrant from the State of Kentucky that they were going to

extradite for.” The warrant was for nonsupport. The officer then placed Ward under

arrest due to the outstanding Kentucky warrant, and, after securing Ward in his

vehicle, searched the interior of Ward’s vehicle “based on the arrest and the activity

[the officer] had observed when [he] pulled up to Ridgeway.” The officer testified

that he believed drugs were in the car, and while he did not find drugs, he did find a

“loaded nine millimeter semi-auto in the center console.” He also testified that Ward

was cooperative during the traffic stop.

      {¶6}    The officer testified that his cruiser’s camera had videotaped the

encounter, and the video was played in court.         Having reviewed the video, we

conclude that the officer’s testimony is fully in accord with what the video depicts.

      {¶7}    Ward then testified that the person he was speaking to was his uncle,

and that his uncle had flagged him down to ask him for money. Ward testified that

he had been speaking with his uncle for a minute or two before the officer

approached, and that he had given his uncle some money. Ward testified that he

received nothing in exchange from his uncle.

      {¶8}    In denying Ward’s motion to suppress, the trial court stated,

       The defendant admits that there was an exchange of money. Officer

       says he saw an exchange of money in what he thought was a drug

       deal. And the defendant says ‘I never dealt with drugs. I don’t deal

       with drugs.’   That doesn’t take away from the appearance or the

       conclusions that the officer made. Even though the officer, according

       to the defendant, is wrong in those conclusions, they are reasonable.

(Emphasis added.)




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                        OHIO FIRST DISTRICT COURT OF APPEALS

      {¶9}    Contrary to the trial court’s statement, a review of the officer’s

testimony reveals that he never testified that he “saw an exchange of money,” or that

he saw any transaction. Additionally, the video footage does not include an exchange

of money or other hand-to-hand transaction.

     {¶10}    Ward pleaded no contest and was sentenced to community control.

He timely appealed.

                               Assignment of Error

     {¶11}    Ward’s sole assignment of error is that “the trial court erred as a

matter of law in overruling [his] motion to suppress.”

                             Standard of Review

     {¶12}    “Our review of a trial court’s ruling on a motion to suppress presents a

mixed question of law and fact. We must accept the trial court’s findings of fact if

they are supported by competent and credible evidence, but we review de novo the

application of the relevant law to those facts.” (Citations omitted.) In re D.G., 1st

Dist. Hamilton Nos. C-160515, C-160516, C-160517 and C-160518, 2017-Ohio-4261, ¶

7.

     {¶13}    The Fourth Amendment to the United States Constitution, and Article

I, Section 14 of the Ohio Constitution, prohibit “unreasonable searches and seizures.”

“Unless an exception applies, warrantless searches are per se unreasonable.” State v.

Bacher, 170 Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist.).

“ ‘Once a warrantless search is established, the burden of persuasion is on the state to

show the validity of the search.’ ” State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-

6426, 920 N.E.2d 949, ¶ 25, quoting Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524

N.E.2d 889 (1988).




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                         OHIO FIRST DISTRICT COURT OF APPEALS

     {¶14}    Generally, “[a]n illegal search conducted without a warrant is still

illegal, even if there is probable cause.” State v. Keith, 178 Ohio App.3d 46, 2008-

Ohio-4326, 896 N.E.2d 764, ¶ 13 (2d Dist.), citing Agnello v. United States, 269 U.S.

20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925).        “[T]he prosecution bears the burden

of * * * show[ing] by a preponderance of the evidence that, under the totality of the

circumstances, the warrantless search comes within one of the defined exceptions to

the warrant clause of the Fourth Amendment.” (Emphasis added.) State v. Baker,

87 Ohio App.3d 186, 192, 621 N.E.2d 1347 (6th Dist.1993).

     {¶15}    The parties agree that the stop of Ward’s vehicle was proper, that the

search of Ward’s vehicle was a warrantless search, and that the only applicable

exception is the “automobile exception.”

        The Automobile Exception to the Warrant Requirement

     {¶16}    “[U]nder      the    automobile      exception     to     the    warrant

requirement * * * police may conduct a warrantless search of an entire vehicle if the

officers have probable cause to believe that they will discover evidence of a crime.”

In re L.S., 1st Dist. Hamilton No. C-150526, 2016-Ohio-5582, ¶ 15. “As it relates

specifically to an automobile search, probable cause is ‘a belief reasonably arising out

of circumstances known to the seizing officer, that an automobile or other vehicle

contains that which by law is subject to seizure and destruction.’ ” State v. Durham,

2013-Ohio-4764, 999 N.E.2d 1233, ¶ 32 (12th Dist.), quoting State v. Kessler, 53

Ohio St.2d 204, 208, 373 N.E.2d 1252 (1978). See State v. Feliciano, 115 Ohio

App.3d 646, 663, 685 N.E.2d 1307 (9th Dist.1996) (“An officer has probable cause to

search a vehicle if, based on the totality of the circumstances, there was a fair

probability that contraband or evidence of a crime would be found in it.”). “Probable

cause must be based upon objective facts that would justify the issuance of a warrant



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                        OHIO FIRST DISTRICT COURT OF APPEALS

by a magistrate.” State v. Jones, 187 Ohio App.3d 478, 2010-Ohio-1600, 932 N.E.2d

904, ¶ 41 (6th Dist.), citing State v. Welch, 18 Ohio St.3d 88, 92, 480 N.E.2d 384

(1985).

   Reasonable Suspicion, Probable Cause, and “High Crime” Areas

     {¶17}    Other cases involving a fact pattern similar to this one—persons

leaning into cars parked in high-drug-trafficking areas—generally examined the

question of whether there was “reasonable suspicion” to justify a Terry stop, which is

a lower level of suspicion than “probable cause” to search. See Bacher, 170 Ohio

App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, at ¶ 9, quoting Terry v. Ohio, 392 U.S.

1, 28, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“A reasonable suspicion represents

something less than probable cause, but more than an ‘inchoate and unparticularized

suspicion or “hunch.” ’ ”); State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894

N.E.2d 1204, ¶ 23 (“Probable cause is a stricter standard than reasonable and

articulable suspicion. * * * The former subsumes the latter.”).

     {¶18}    Cases where an officer had “probable cause to search” an automobile

generally involve the officer smelling marijuana or other contraband upon

approaching the vehicle, e.g., State v. Davenport, 2017-Ohio-688, __ N.E.3d __ (2d

Dist.), a drug dog indicating on the vehicle, e.g., State v. Blatchford, 2016-Ohio-

8456, 79 N.E.3d 97 (12th Dist.), or the officer observing suspicious behavior and/or

contraband in plain view while conversing with the vehicle’s occupants, e.g., State v.

Wilson, 3d Dist. Hancock No. 5-07-47, 2008-Ohio-2742.

     {¶19}    The Supreme Court of Ohio has held that “ ‘[t]he reputation of an area

for criminal activity is an articulable fact upon which a police officer may legitimately

rely’ in determining whether an investigative stop is warranted.” State v. Bobo, 37

Ohio St.3d 177, 179, 524 N.E.2d 489 (1988), quoting United States v. Magda, 547



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                        OHIO FIRST DISTRICT COURT OF APPEALS

F.2d 756, 758 (2d Cir.1976). However, the Ohio Supreme Court has also held that

simply being in a “high crime” area is “not sufficient to justify an investigative stop.

To hold otherwise would result in the wholesale loss of the personal liberty of those

with the misfortune of living in high crime areas.” (Citation omitted.) State v.

Carter, 69 Ohio St.3d 57, 65, 630 N.E.2d 355 (1994). The Second Appellate District

has stated that “ ‘acts that are essentially neutral or ambiguous do not become

specifically criminal in character because they occur in a high crime area.’ ” State v.

Ferrante, 196 Ohio App.3d 113, 2011-Ohio-4870, 962 N.E.2d 383, ¶ 26 (2d Dist.),

quoting State v. Maldonado, 2d Dist. Montgomery No. 13530, 1993 WL 402772, *4

(Sept. 24, 1993).

     {¶20}    When determining whether there was probable cause for a search, we

review “the totality of the circumstances known to the officer at the time of the

search.” State v. Grubbs, 2017-Ohio-41, 80 N.E.3d 1075, ¶ 33 (6th Dist.), citing Beck

v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). See Safford Unified

School Dist. No. 1 v. Redding, 557 U.S. 364, 370, 129 S.Ct. 2633, 174 L.Ed.2d 354

(2009), quoting Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93

L.Ed. 1879 (1949), and Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69

L.Ed. 543 (1925) (“ ‘Probable cause exists where “the facts and circumstances within

[an officer’s] knowledge and of which [he or she] had reasonably trustworthy

information [are] sufficient in themselves to warrant a [person] of reasonable

caution in the belief that” an offense has been or is being committed,’ and that

evidence bearing on that offense will be found in the place to be searched.”).

     {¶21}    Therefore, our review is concerned only with what the officer knew at

the time he conducted the search of Ward’s vehicle.




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                        OHIO FIRST DISTRICT COURT OF APPEALS

     Probable Cause did not Support the Search of Ward’s Vehicle

     {¶22}     The record reflects that the officer witnessed Ward’s vehicle parked on

the side of the road in a high-drug-trafficking area; a person leaning into the car

window; the same person walking away from the vehicle as the officer approached;

the vehicle pulling away from the curb without using a turn signal a few seconds

later; the vehicle immediately pulling over when the officer initiated lights and

sirens; Ward making no furtive movements during the traffic stop; and Ward

complying with the officer’s requests during the traffic stop. But the trial court

mistakenly believed that the officer had testified that he saw an exchange of money

in what he thought was a drug deal. We will not defer to the trial court’s factual

determinations when those findings are “clearly erroneous.”         See Cincinnati v.

Bryant, 1st Dist. Hamilton No. C-090546, 2010-Ohio-4474, ¶ 22-23. Therefore, the

issue before us is whether, under the totality of the circumstances known to the

officer—and discounting the trial court’s mistaken finding of fact—the officer’s

warrantless search of Ward’s vehicle was permitted under the automobile exception.

See id. at ¶ 24.

     {¶23}     Based on the facts known to the officer at the time of the search, there

was not a “fair probability that contraband or evidence of a crime would be found in”

Ward’s vehicle. See Feliciano, 115 Ohio App.3d at 663, 685 N.E.2d 1307. The facts

as testified to by the officer and as visible in the video are “essentially neutral or

ambiguous,” see Ferrante, 196 Ohio App.3d 113, 2011-Ohio-4870, 962 N.E.2d 383, at

¶ 26, and there is nothing that would merit a “reasonable belief” or “fair probability”

that the officer would discover evidence of a crime. The fact that a gun was found in

the car is immaterial, because “a search or seizure, illegal at inception, cannot be

legitimatized by the results thereof.” State v. Williams, 55 Ohio St.2d 82, 86, 377



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                        OHIO FIRST DISTRICT COURT OF APPEALS

N.E.2d 1013 (1978). The fact that Ward testified that he had provided money to his

uncle is also not a factor that can be considered as this was not knowledge the officer

had when he initiated the search of the vehicle.

     {¶24}    In the cases with a similar fact pattern to this one, the court examined

only whether there was reasonable suspicion to justify a Terry stop. However, these

Terry stop cases are instructive to our analysis because reasonable suspicion is a

lower bar than probable cause, and if reasonable suspicion is lacking, then there can

be no probable cause.

     {¶25}    In State v. Coleman, 8th Dist. Cuyahoga No. 93451, 2009-Ohio-6471,

the Eighth District found that there was no reasonable suspicion to justify a Terry

stop where, in an area of high-drug activity, the officer saw the defendant in his

vehicle with two men either standing by or leaning into his car, and as the officer

approached, the two men dispersed. Id. at ¶ 25-26. In State v. Jones, 70 Ohio

App.3d 554, 591 N.E.2d 810 (2d Dist.1990), the Second District found that there was

no reasonable suspicion to stop a vehicle where the officer observed it parked in a

high-crime area with three to four persons standing around it and one person

leaning into the car; upon the officer’s approach, all of the people outside of the car

began to walk away in different directions; and the occupants made no furtive

movements. Id. at 556-559.

     {¶26}    Here, we have essentially the same facts as in the above cases: in an

area of high-drug activity, the officer saw a vehicle parked near a sidewalk with a

person leaning into the vehicle, and as the officer approached, the person walked

away from the car. If there was no reasonable suspicion in those cases, then the

“stricter” standard of probable cause could not be met under the facts of this case.




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                         OHIO FIRST DISTRICT COURT OF APPEALS

     {¶27}     In light of the foregoing, the officer did not have probable cause to

search Ward’s vehicle.

                                    Conclusion

     {¶28}     Because the totality of the circumstances known to the officer did not

justify his search of Ward’s vehicle, we sustain Ward’s assignment of error, reverse

the judgment of the trial court overruling Ward’s motion to suppress, and remand

this cause for further proceedings consistent with the law and this opinion.

                                               Judgment reversed and cause remanded.

MOCK, P.J., and MYERS, J., concur.

Please note:

       This court has recorded its own entry this date.




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