         [Cite as State v. Acoff, 2017-Ohio-8182.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NOS. C-160867
                                                                      C-160868
        Plaintiff-Appellant,                         :   TRIAL NOS. 16CRB-17209A
                                                                    16CRB-17209B
  vs.                                                :
                                                            O P I N I O N.
TAMAR ACOFF,                                         :

    Defendant-Appellee.                              :




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 13, 2017



Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Appellate Director, for Plaintiff-Appellant,

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellee.
                       OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}     The state of Ohio has appealed from the trial court’s entries granting

defendant-appellee Tamar Acoff’s motion to suppress. Because Acoff’s arrest was

supported by probable cause, and because the search of the vehicle that Acoff was

seated in when arrested was permissible under the automobile exception to the

warrant requirement, we find that the trial court’s granting of the motion to suppress

was in error.

                                  Factual Background


       {¶2}     Acoff was arrested for criminal trespass in the parking lot of a Shell gas

station. Following his arrest, the vehicle that he had been seated in was searched,

and a bottle of prescription drugs with the label removed and other unspecified

drugs were found in the center console of the vehicle.

       {¶3}     Acoff was charged with criminal trespass in violation of R.C.

2911.21(A)(1) and possession of prescription drugs in violation of Cincinnati

Municipal Code 601-23. He filed a motion to suppress all evidence seized following

his arrest, arguing that it was the fruit of an unlawful arrest that had not been

supported by probable cause.

       {¶4}     The following evidence was adduced at a hearing on Acoff’s motion to

suppress. Cincinnati Police Officer Zach Sterbling testified that, while on uniformed-

foot patrol on June 28, 2016, he had entered the Shell gas station located on

Harrison Avenue. Officer Sterbling had been aware that drug activity often took

place in the general area of the gas station, and the station owner told him that

several drug deals had taken place on the sides of the building that day. Officer



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                      OHIO FIRST DISTRICT COURT OF APPEALS



Sterbling noticed Acoff sitting in the driver’s seat of a vehicle parked on the side of

the building. A no-loitering sign, approximately three feet by two feet in size, was on

the outside wall of the station, directly across from the side of the vehicle and visible

from the vehicle.

       {¶5}   Officer Sterbling noticed that Acoff remained inside the vehicle for

approximately ten minutes without entering the gas station. So he asked the station

owner if Acoff was an employee, or if the owner knew Acoff or knew of any reason for

him to be there. When the owner responded “no” to his questions, Officer Sterbling

approached both Acoff and his backseat passenger, Kijuane Jones. Acoff was leaning

over the center console as he approached.

       {¶6}   Officer Sterbling asked Acoff and Jones what business they had on the

property, and Acoff replied that they were “hanging out.” Officer Sterbling then

removed both men from the vehicle and placed them under arrest for criminal

trespass. He explained that he had arrested them because they had admitted that

they were “hanging out” in the parking lot, which was prohibited by the posted no-

loitering sign. Both Acoff and Jones were searched immediately following their

arrest. No contraband was found on Acoff, but heroin was found on Jones. Officer

Sterbling then searched the vehicle and found a bottle of prescription drugs with the

label removed and other unspecified drugs in the center console.

       {¶7}   Officer Sterbling conceded that he did not have a warrant to arrest

Acoff, to search Acoff, or to search the vehicle. He further acknowledged that Acoff

had not consented to a search of his person or the vehicle.

       {¶8}   The trial court granted Acoff’s motion to suppress. It found that Acoff

had a privilege to be in the parking lot, and that he had not lost that privilege. It




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                      OHIO FIRST DISTRICT COURT OF APPEALS



further determined that Acoff’s arrest for criminal trespass was not supported by

probable cause and that there was no justification for Officer Sterbling to search the

vehicle without a warrant.

       {¶9}   The state has appealed, arguing in one assignment of error that the

trial court’s granting of the motion to suppress was in error.

                                  Standard of Review


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

mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶ 8. 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. Id.

                               Probable Cause to Arrest


       {¶11} The state first argues that the trial court erred in finding that Acoff’s

arrest was not supported by probable cause. A warrantless arrest is supported by

probable cause when “the arresting officer, at the time of the arrest, possess[es]

sufficient information that would cause a reasonable and prudent person to believe

that a criminal offense has been or is being committed.” State v. Elmore, 111 Ohio

St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 39. A probable-cause determination

is based on the totality of the circumstances. Id.

       {¶12} The state contends that Officer Sterbling had probable cause to arrest

Acoff for criminal trespass under R.C. 2911.21(A)(4), which provides that “[n]o

person, without privilege to do so, shall * * * [b]eing on the land or premises of

another, negligently fail or refuse to leave upon being notified by signage posted in a




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conspicuous place or otherwise being notified to do so by the owner or occupant, or

the agent or servant of either.”

       {¶13} Following our review of the record, we find that, under the totality of

the circumstances, Officer Sterbling had probable cause to believe that Acoff had

committed the offense of criminal trespass. Officer Sterbling testified that he was

aware that the gas station was located in a high-drug-activity area, and that several

drug sales had taken place in the parking lot of the gas station earlier that day. He

observed Acoff sitting in a parked car in the gas station’s parking lot for ten minutes,

next to a no-loitering sign, without patronizing the store. And he had been told by

the station owner that Acoff was not an employee and that the owner was unaware of

Acoff’s purpose for being there. Further, when asked about his reason for being on

the premises, Acoff told Officer Sterbling that he was “hanging out.”

       {¶14} Upon learning that Acoff had no legitimate purpose for being in the

gas station’s parking lot, Officer Sterbling had probable cause to arrest him for a

violation of R.C. 2911.21(A)(4). At that point, not only had Acoff failed to patronize

the business, but Officer Sterbling could reasonably infer from his statement that he

had no intention of doing so.

       {¶15} Acoff argues that he had a right to be in the parking lot because the gas

station was open to the public for business, and that the no-loitering sign was

insufficient to notify him that his right had been revoked. His argument ignores the

plain language of R.C. 2911.21(A)(4), which provides in relevant part that a person

shall not negligently fail or refuse to leave a premises after “being notified by signage

posted in a conspicuous place.” The statute clearly indicates that a sign may serve as

notice that a person does not have the right to remain on a private property, and that




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                     OHIO FIRST DISTRICT COURT OF APPEALS



notification from an owner or agent thereof is not the only way to communicate that

a person no longer has such a right.

       {¶16} Acoff initially had a privilege to be in the parking lot as a business

invitee. A business invitee is a “business visitor, or one who rightfully comes upon

the premises of another by invitation, express or implied, for some purpose that is

beneficial to the owner.” Estate of Sapp v. Helping Hands Household Sales, Inc., 1st

Dist. Hamilton No. C-030605, 2004-Ohio-3133, ¶ 10, citing Gladon v. Greater

Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996). A

business invitee’s rights are not absolute, but are limited by the scope of the owner’s

invitation. Estate of Sapp at ¶ 11. A person “has the status of an invitee only while

he is on the part of the land to which his invitation extends—or in other words, the

part of the land upon which the possessor gives him reason to believe that his

presence is desired for the purpose for which he has come.” Gladon at 315, quoting

2 Restatement of the Law 2d, Torts, Section 332, Comment l (1965).

       {¶17} The record indicates that a no-loitering sign was conspicuously placed

on a wall across from where Acoff was parked and was visible to him as he sat in the

vehicle. This sign notified Acoff that his privilege to be on the gas-station property

only extended to his patronage of the business, and not to remain on the property for

his own purposes of “hanging out.” That the sign read “no loitering,” as opposed to

“no trespassing,” is of no consequence. The sign served the purpose of notifying

Acoff that use of the property was limited to patronage of the business.

       {¶18} We find that Officer Sterbling had probable cause to arrest Acoff for a

violation of R.C. 2911.21(A)(4).




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19} The state further argues that Officer Sterbling had probable cause to

arrest Acoff for the offense of loitering with the intention of committing unlawful

drug transactions in violation of Cincinnati Municipal Code 910-21(b), which

provides that “[i]t shall be unlawful for any person to loiter in a public place with the

intention of engaging in unlawful drug-related activity.” The ordinance provides

that, under certain circumstances, a police officer may detain an individual to

investigate whether the individual is in violation of the ordinance. See Cincinnati

Municipal Code 910-21(c). Pursuant to Cincinnati Municipal Code 910-21(d), an

officer may not detain a person for such an investigation unless two conditions are

met. The first condition requires the person to have engaged in one or more of the

following behaviors:

       (A) The person passes or receives from passers-by, bystanders or

       persons in motor vehicles money, objects having characteristics

       consistent with controlled substances, and/or an envelope, bag or

       other container which could reasonably contain such objects or money.

       (B)   The person conceals or attempts to conceal an object having

       characteristics consistent with controlled substances and/or an

       envelope, bag or other container which could reasonably contain such

       objects.

       (C) The person flees or obscures himself upon seeing law enforcement

       officers.

       (D) The person communicates the fact that law enforcement officers

       are in the vicinity to another person in a manner which suggests that

       the communication is a warning.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       (E) The officer observes the person in possession of any instrument or

       object which is customarily used in the sale, administration or use of

       controlled substances[.]

Cincinnati Municipal Code 910-21(d)(1).

       {¶20} At the time that Officer Sterbling approached Acoff, he had knowledge

that the area in which the gas station was located was known for drug activity and

that several drug sales had taken place on the gas-station property that day. But he

had no evidence that Acoff had engaged in any of the behaviors specified by

Cincinnati Municipal Code 910-21(d)(1). So even if this ordinance applies to the

private property upon which the gas station is located, we find that Officer Sterbling

did not have sufficient information to believe that Acoff had committed a violation of

Cincinnati Municipal Code 910-21(b), and consequently, that he lacked probable

cause to arrest him for that offense.

                                   Search of Vehicle


       {¶21} The state further argues that the trial court erred in suppressing the

search of the vehicle that Acoff had been seated in when arrested.

       {¶22} Unreasonable searches and seizures are prohibited by the Fourth

Amendment to the United States Constitution. Accord Ohio Constitution, Article I,

Section 14. Unless a recognized exception applies, warrantless searches are per se

unreasonable. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d

576 (1967).

       {¶23} The state contends that the vehicle search was permissible under the

automobile exception to the warrant requirement. Under the automobile exception,

officers are permitted to “conduct a warrantless search of a lawfully stopped



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automobile if they have probable cause to believe that the vehicle contains

contraband.” State v. Jones, 1st Dist. Hamilton No. C-130069, 2014-Ohio-1201, ¶ 6,

citing United States v. Ross, 456 U.S. 798, 799, 102 S.Ct. 2157, 72 L.Ed.2d 572

(1982). When an officer has probable cause to search an automobile, the officer may

“conduct a warrantless search of every part of the vehicle and its contents, including

all movable containers and packages that could contain the object of the search.” In

re L.S., 1st Dist. Hamilton No. C-150526, 2016-Ohio-5582, ¶ 19.

       {¶24} The absence of a traffic stop does not prevent application of the

automobile exception, as it does not detract from the automobile’s inherent mobility

or affect the officer’s belief that the vehicle contains contraband. State v. Bazrawi,

10th Dist. Franklin No. 12AP-1043, 2013-Ohio-3015, ¶ 27. See State v. Friedman,

194 Ohio App.3d 677, 2011-Ohio-2989, 957 N.E.2d 815, ¶ 11 (9th Dist.) (the

warrantless search of a parked vehicle alerted on by a police drug dog was

permissible under the automobile exception because “no meaningful distinction”

exists between a search conducted pursuant to a traffic stop and the search of a

locked car parked in a public area).

       {¶25} During the search incident to arrest of Acoff and Jones, Officer

Sterbling found heroin on Jones. We find that the presence of heroin on a passenger

in the automobile, Officer Sterbling’s knowledge that the gas station was located in

an area known for drug activity, and his knowledge that several drug sales had taken

place that day in the station’s parking lot, provided probable cause for Officer

Sterbling to believe that the vehicle, including the console, would contain drugs.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶26} Because the search of the vehicle was permissible under the

automobile exception to the warrant requirement, we hold that the trial court erred

by suppressing the evidence found during that search.

       {¶27} In summary, because the arresting officer had probable cause to arrest

Acoff for criminal trespass, and because the search of the vehicle that Acoff had been

seated in was permitted under the automobile exception to the warrant requirement,

we find that the trial court erred in granting Acoff’s motion to suppress. The state’s

assignment of error is sustained. The judgments of the trial court are reversed, and

the cause is remanded for further proceedings.

                                              Judgments reversed and cause remanded.



MOCK, P.J., and CUNNINGHAM, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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