[Cite as State v. Wintermeyer, 2017-Ohio-5521.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellant,             :
                                                                     No. 16AP-381
v.                                                :               (C.P.C. No. 15CR-5252)

Justin W. Wintermeyer,                            :          (REGULAR CALENDAR)

                 Defendant-Appellee.              :




                                           D E C I S I O N

                                      Rendered on June 27, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellant. Argued: Seth L. Gilbert.

                 On brief: Dustin M. Blake Co., LLC, and Dustin M. Blake,
                 for appellee. Argued: Dustin M. Blake.

                  APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

        {¶ 1} Plaintiff-appellant, State of Ohio, appeals the May 10, 2016 decision and
entry of the Franklin County Court of Common Pleas granting the motion to suppress
filed by defendant-appellee, Justin W. Wintermeyer. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} On October 23, 2015, a Franklin County Grand Jury filed an indictment
charging defendant with a single count of possession of heroin, in violation of R.C.
2925.11, a felony of the fifth degree.
        {¶ 3} On February 15, 2016, defendant filed a motion to suppress evidence. On
February 22, 2016, the state filed a memorandum contra defendant's motion to suppress
evidence. On April 5, 2016, the trial court held a hearing on defendant's motion to
No. 16AP-381                                                                                  2


suppress. At the suppression hearing, Officer Ryan Wise of the Columbus Division of
Police provided unopposed testimony as the sole witness called by the state.
       {¶ 4} Officer Wise testified that on March 8, 2014, he was working patrol from 7
p.m. to 5 a.m. on the west side of Columbus. On that evening, he was dispatched to
investigate a report that a vacant residence had an open window and may have been
burglarized. Officer Wise met Officer Brad Foulk at the residence. The officers found an
open window in the rear of the residence but were unable to gain entrance through the
window. While they waited for someone to arrive with a key, Officer Foulk stood in front
of the residence and Officer Wise stood behind the residence in the back yard, which
abutted on an alley.
       {¶ 5} Around 8:50 p.m., as he was standing in the back yard, Officer Wise heard
individuals talking in the alley. Although it was dark, Officer Wise observed two
individuals who stopped in the alley directly behind the yard in which Officer Wise was
standing. While he was able to observe the individuals in the alley, Officer Wise thought
that they did not see him. One of the individuals, later identified as defendant, walked
through a back yard on the other side of the alley into a residence while the second
individual, who was referred to at the suppression hearing as Mr. Carlson, remained in
the alley. After "approximately one to two minutes," defendant exited the residence on the
other side of the alley and walked back into the alley. (Tr. at 11.) Officer Wise testified that
as soon as defendant entered the alley, he handed something to the other person.
       {¶ 6} Officer Wise testified he was approximately 10 to 15 feet away from where
defendant and Carlson were standing in the alley. Based on his observations, Officer Wise
thought "they went inside the house and purchased narcotics," followed by "[a]n
exchange, hand-to-hand exchange." (Tr. at 12.) Officer Wise proceeded to shine his
flashlight on defendant and Carlson and began walking toward them. When he shined his
flashlight on them, he saw "a small plastic object" in Carlson's hand. (Tr. at 12.) Officer
Wise stated that the object was "a small object, maybe the size of my pinkie there wrapped
up in plastic wrap." (Tr. at 13.) Officer Wise also described the item as "a plastic
cellophane bag or Saran Wrap." (Tr. at 13.)
       {¶ 7} Officer Wise testified that "[a]s I shined the flashlight and walked up to
them I could see the individual was still holding the plastic baggie in his hand. At that
No. 16AP-381                                                                             3


point I reached down and grabbed it and observed it contain[ed] a brown substance,
which was consistent with heroin." (Tr. at 14.) Officer Wise then radioed that he had two
suspects detained in the alley and requested assistance. Officer Wise testified he detained
defendant and Carlson "[a]s soon as I walked up on them and saw the plastic baggie,
which I suspected was heroin." (Tr. at 15.) Officer Foulk met Officer Wise in the alley and
took the item confiscated by Officer Wise for testing. Officer Foulk reported that he
received a positive field test for heroin. At that point, defendant and Carlson were placed
under arrest.
       {¶ 8} On April 10, 2016, defendant filed a supplement to his motion to suppress.
On May 10, 2016, the trial court filed a decision and entry granting defendant's motion to
suppress.
II. Assignment of Error
       {¶ 9} The state appeals and assigns the following single assignment of error for
our review:
                The trial court committed reversible error in sustaining
                Wintermeyer's motion to suppress.

III. Discussion
       {¶ 10} The state argues on appeal that the trial court erred in granting defendant's
motion to suppress because he lacks the requisite standing. "[A] motion to suppress must
'state with particularity the legal and factual issues to be resolved,' thereby placing the
prosecutor and court 'on notice of those issues to be heard and decided by the court and,
by omission, those issues which are otherwise being waived.' " Columbus v. Ridley, 10th
Dist. No. 15AP-84, 2015-Ohio-4968, ¶ 23, quoting State v. Shindler, 70 Ohio St.3d 54, 58
(1994). "In general, issues not raised by a party during a suppression hearing cannot be
raised for the first time on appeal." State v. Thomas, 10th Dist. No. 14AP-185, 2015-Ohio-
1778, ¶ 37, citing State v. Bing, 134 Ohio App.3d 444, 449 (9th Dist.1999). Here, the state
did not raise the issue of standing at the suppression hearing. Instead, the state focused
its arguments on whether Officer Wise possessed reasonable suspicion or probable cause
No. 16AP-381                                                                                                4


to investigate defendant's actions.1 The state's failure to argue the issue of standing in the
trial court constitutes a waiver of such issues for purposes of appeal. State v. Boyd, 2d
Dist. No. 25182, 2013-Ohio-1067, ¶ 32 (finding the state waived the issue of whether the
defendant had standing to challenge the constitutionality of search). See also
ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, ¶ 16; State v.
Neal, 10th Dist. No. 15AP-771, 2016-Ohio-1406, ¶ 29; Clemens v. Nelson Fin. Group, Inc.,
10th Dist. No. 14AP-537, 2015-Ohio-1232, ¶ 27, citing Niskanen v. Giant Eagle, Inc., 122
Ohio St.3d 486, 2009-Ohio-3626, ¶ 34 ("Generally, a party waives the right to raise on
appeal an argument it could have raised, but did not, in earlier proceedings."); Ridley at
¶ 28. Compare State v. Muldrow, 10th Dist. No. 15AP-1119, 2016-Ohio-4774, ¶ 20.
A. Standard of Review
        {¶ 11} "The review of a motion to suppress is a mixed question of law and fact."
State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 32, citing State v. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. In evaluating the motion to suppress, the trial court
acts as the finder of fact and, therefore, is in the best position to resolve factual questions
and evaluate the credibility of witnesses. Burnside at ¶ 8. Therefore, we must accept the
trial court's findings of fact if they are supported by competent, credible evidence. Id.
"Accepting these facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard." Id. See also State v. Johnson, 10th Dist. No. 13AP-637, 2014-
Ohio-671, ¶ 6 ("We apply a de novo standard in determining whether the trial court
properly denied appellant's motion to suppress.").
        {¶ 12} The trial court made the following factual findings, which we must accept as
true if they are supported by competent, credible evidence:



1 We note the state contends that it raised arguments relating to the issue of standing in its memorandum

contra. Specifically, the state points to its citation of Rakas v. Illinois, 439 U.S. 128 (1978), which was
followed by a parenthetical stating only "[s]tanding." This citation followed the state's assertion that "[a]n
evidentiary hearing relative to claims of improper search and/or seizure will establish that the evidence
sought to be introduced by the state was obtained by Constitutionally [sic] valid means and that no
applicable Exclusionary Rule bars its admission into evidence." Here, an evidentiary hearing was held and
the state failed to advance any argument related to standing. Additionally, we find no merit to the state's
argument that defendant's assertion of "his" constitutional rights in general was sufficient absent more to
preserve the issue of standing. We further note that the trial court in its entry conducted no analysis
regarding the issue of standing and made no findings regarding the same. (Decision and Entry at 1.)
No. 16AP-381                                                                          5


               Officer Wise's testimony revealed that on the evening of
               March 8, 2014, Officer Wise was dispatched to 625 S.
               Burgess Ave. to investigate a report of an open window and
               possible burglary. As Officer Wise was standing in the
               backyard of 625 S. Burgess Ave., he heard and saw two men
               walking in the alley. The men stopped behind a house across
               the alley from where Officer Wise was standing. He saw one
               of the men, later identified as Defendant Wintermeyer, leave
               the alley, walk up to and enter a house. After several
               minutes, Defendant Wintermeyer exited the house and
               returned to his companion in the alley. Officer Wise testified
               that neither of the men had done anything suspicious up to
               this point.
               As Defendant Wintermeyer was returning to his companion,
               Officer Wise noticed that Wintermeyer was holding a small
               object in his hand, which he appeared to hand to his
               companion. Officer Wise decided to investigate. He turned
               on his flashlight, identified himself as a police officer and
               approached the men. Neither of the men attempted to flee.
               As Officer Wise approached, he observed that the object
               Defendant Wintermeyer had handed to his companion
               appeared to be a small plastic bag. Officer Wise then
               reached out and took the bag from the companion's hand.
               After taking the plastic bag, Officer Wise was able to see that
               the bag contained a brown substance, which Officer Wise
               immediately suspected was heroin. Officer Wise arrested
               Defendant Wintermeyer, placed him in the back of the
               cruiser, and had the contents of the plastic bag field-tested
               by another officer. The result was positive for heroin.
(Decision and Entry at 1-2.)
B. Applicable Law
1. Constitutional Protections
       {¶ 13} The Fourth Amendment to the United States Constitution, applied to the
states through the Fourteenth Amendment, provides that "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched,
and the persons or other things to be seized."         Article I, Section 14 of the Ohio
Constitution contains a nearly identical provision:
               The right of the people to be secure in their persons, houses,
               papers, and possessions, against unreasonable searches and
No. 16AP-381                                                                                6


               seizures shall not be violated; and no warrant shall issue, but
               upon probable cause, supported by oath or affirmation,
               particularly describing the place to be searched and the
               person and things to be seized.

See also R.C. 2933.22(A) and Crim.R. 41(C).
       {¶ 14} Historically, the protections afforded by Article I, Section 14 of the Ohio
Constitution have been construed as coextensive with the protections of the Fourth
Amendment of the United States Constitution. State v. Geraldo, 68 Ohio St.2d 120, 125-
26 (1981) ("We are disinclined to impose greater restrictions in the absence of explicit
state constitutional guarantees protecting against invasions of privacy that clearly
transcend the Fourth Amendment. * * * It is our opinion that the reach of Section 14,
Article I, of the Ohio Constitution * * * is coextensive with that of the Fourth
Amendment."); State v. Robinette, 80 Ohio St.3d 234, 239 (1997) (stating that courts
"should harmonize * * * interpretation of Section 14, Article I of the Ohio Constitution
with the Fourth Amendment, unless there are persuasive reasons to find otherwise");
State v. Jones, 88 Ohio St.3d 430, 434 (2000), modified in State v. Brown, 99 Ohio St.3d
323, 2003-Ohio-3931, syllabus. However, it is well-recognized that states may "rely on
their own constitutions to provide broader protection for individual rights, independent of
protections afforded by the United States Constitution." Robinette at 238. See Arnold v.
Cleveland, 67 Ohio St.3d 35, 38 (1993), paragraph one of the syllabus ("In the areas of
individual rights and civil liberties, the United States Constitution, where applicable to the
states, provides a floor below which state court decisions may not fall."). Thus, in certain
circumstances, the Supreme Court of Ohio has construed Article I, Section 14 of the Ohio
Constitution as providing greater protection than the Fourth Amendment to the United
States Constitution. Brown at ¶ 22; State v. Brown, 143 Ohio St.3d 444, 2015-Ohio-2438,
¶ 23 ("Article I, Section 14 of the Ohio Constitution affords greater protection than the
Fourth Amendment against searches and seizures conducted by members of law
enforcement who lack authority to make an arrest."). See Robinette at 238 (noting that a
"state may impose greater restrictions on police activity pursuant to its own state
constitution than is required by federal constitutional standards").
       {¶ 15} "The touchstone of the Fourth Amendment is reasonableness." Florida v.
Jimeno, 500 U.S. 248, 250 (1991), citing Katz v. United States, 389 U.S. 347, 360 (1967).
No. 16AP-381                                                                               7


"The Fourth Amendment does not proscribe all state-initiated searches and seizures; it
merely proscribes those which are unreasonable." Id. In keeping with this principle, both
the Fourth Amendment to the United States Constitution, as applied to the states through
the Fourteenth Amendment, and Article I, Section 14 of the Ohio Constitution prohibit
the government from conducting warrantless searches and seizures, subject to certain
exceptions. Arizona v. Gant, 556 U.S. 332, 338 (2009), quoting Katz at 357 (" '[S]earches
conducted outside the judicial process, without prior approval by judge or magistrate, are
per se unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.' "); State v. Limoli, 10th Dist. No. 11AP-924,
2012-Ohio-4502, ¶ 20, citing State v. Fowler, 10th Dist. No. 10AP-658, 2011-Ohio-3156,
¶ 11-12. Common exceptions to the warrant requirement include a consensual encounter
with a police officer and an investigative detention, commonly referred to as a Terry
stop.2
2. Consensual Encounter
           {¶ 16} An encounter between a police officer and a member of the public is
consensual if a reasonable person would feel free to disregard the officer's questions or
terminate the encounter and go about his or her business. Florida v. Bostick, 501 U.S.
429, 434 (1991), citing California v. Hodari D., 499 U.S. 621, 628 (1991). Because a
consensual encounter does not involve a restraint on a person's liberty or privacy, such
encounter does not constitute a seizure for purposes of the Fourth Amendment. Terry v.
Ohio, 392 U.S. 1, 19 (1968), fn. 16 ("[N]ot all personal intercourse between policemen and
citizens involves 'seizures' of persons. Only when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of a citizen may we conclude that
a 'seizure' has occurred."). Thus, consensual encounters between police officers and
members of the public do not implicate Fourth Amendment protections. Florida v.
Royer, 460 U.S. 491, 498 (1983) (plurality opinion) ("If there is no detention—no seizure
within the meaning of the Fourth Amendment—then no constitutional rights have been
infringed."); United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of
Stewart, J.); State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854, ¶ 20 (10th Dist.);
State v. Moyer, 10th Dist. No. 09AP-434, 2009-Ohio-6777, ¶ 13.

2   Terry v. Ohio, 392 U.S. 1 (1968).
No. 16AP-381                                                                              8


       {¶ 17} "A police officer may lawfully initiate a consensual encounter without
probable cause or a reasonable, articulable suspicion that an individual is currently
engaged in criminal activity or is about to engage in such conduct." State v. Westover,
10th Dist. No. 13AP-555, 2014-Ohio-1959, ¶ 15, citing Mendenhall at 556. "[E]ven when
officers have no basis for suspecting a particular individual, they may generally ask
questions of that individual, ask to examine identification, and request consent to search
luggage, provided they do not convey a message that compliance with their requests is
required." (Citations omitted.) Bostick at 434-35. "Generally, when a police officer
merely approaches and questions persons seated within parked vehicles, a consensual
encounter occurs that does not constitute a seizure so as to require reasonable suspicion
supported by specific and articulable facts." Jones, 2010-Ohio-2854, ¶ 20, citing State v.
McClendon, 10th Dist. No. 09AP-554, 2009-Ohio-6421, ¶ 8.
3. Investigative Detention
       {¶ 18} An investigative detention, unlike a consensual encounter, constitutes a
seizure for purposes of the Fourth Amendment. Jones, 2010-Ohio-2854, at ¶ 16. See
Delaware v. Prouse, 440 U.S. 648, 653 (1979) (finding that a traffic stop entails a seizure
"even though the purpose of the stop is limited and the resulting detention quite brief").
Under Terry, an investigative detention may be conducted without violating the Fourth
Amendment if the investigating officer "reasonably suspects that the person apprehended
is committing or has committed a criminal offense." Arizona v. Johnson, 555 U.S. 323,
326 (2009). See Terry at 21; State v. Fisher, 10th Dist. No. 10AP-746, 2011-Ohio-2488,
¶ 18, citing State v. Williams, 51 Ohio St.3d 58, 60-61 (1990) ("To justify a brief
investigative stop or detention of an individual pursuant to Terry, a police officer must be
able to cite specific and articulable facts which, taken together with rational inferences
derived from those facts, give rise to a reasonable suspicion that the individual is engaged
or about to be engaged in criminal activity."). Although the standard for finding
reasonable suspicion is less stringent than for a finding of probable cause, it cannot be
met by an officer's mere "inchoate and unparticularized suspicion or 'hunch.' " Terry at
27. See State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 35, citing Alabama v.
White, 496 U.S. 325, 330 (1990) ("Reasonable suspicion can arise from information that
is less reliable than that required to show probable cause."); Illinois v. Wardlow, 528 U.S.
No. 16AP-381                                                                               9


119, 123 (2000) (finding that although a reasonable suspicion "requires a showing
considerably less than preponderance of the evidence, the Fourth Amendment requires at
least a minimal level of objective justification for making the stop").
       {¶ 19} An appellate court reviews the propriety of an investigative detention in
light of the totality of the surrounding circumstances. State v. Bobo, 37 Ohio St.3d 177
(1988), paragraph one of the syllabus, approving and following State v. Freeman, 64 Ohio
St.2d 291 (1980), paragraph one of the syllabus. "[A]n investigative detention must be
temporary and last no longer than is necessary to effectuate the purpose of the stop."
Royer at 500. "[A]n investigatory stop which is prolonged and extends beyond the scope
of the initial detention must be supported by a reasonable suspicion the suspect is
engaged in another criminal activity." State v. Owens, 10th Dist. No. 03AP-423, 2004-
Ohio-5159, ¶ 18, citing State v. Venham, 96 Ohio App.3d 649, 656 (4th Dist.1994).
C. Analysis
1. Nature of the Encounter
       {¶ 20} We begin by considering whether the encounter between Officer Wise and
defendant was in the nature of a consensual encounter or an investigative detention.
Here, the state admits that Officer Wise ultimately detained defendant, but contends that
"[i]t is not clear exactly when Wise detained [defendant] and Carlson in relation to when
he took the baggie of heroin from Carlson." (State's Brief at 13.) The trial court found that
"Officer Wise did not have reasonable suspicion of criminal activity until after [defendant]
had been detained and Officer Wise had seized the small plastic object he had seen
[defendant] carry from the house across the alley from where Officer Wise was standing."
(Decision at 3.) Although the court did not determine the exact point of detention, from
this statement, it is clear the trial court found that Officer Wise detained defendant prior
to seizing the plastic bag.
       {¶ 21} The trial court's finding that Officer Wise detained defendant prior to
seizing the plastic bag is supported by Officer Wise's testimony at the suppression
hearing:
               [Defense counsel]: You immediately detained him, correct?

               [Officer Wise]: Yes.

               [Defense counsel]: Then you collected the plastic baggie?
No. 16AP-381                                                                                                  10


                 [Officer Wise]: Yes.

                 [Defense counsel]: Then after that you                        immediately
                 recognized that it was an illegal narcotic, right?

                 [Officer Wise]: Correct.

                 [Defense counsel]: You did not upon approach ask them who
                 they were, did you?

                 [Officer Wise]: I don't remember.

                 [Defense counsel]: You didn't ask them anything with regard
                 to why they were there or what they were doing?

                 [Officer Wise]: I don't recall what I said to them specifically.

                 [Defense counsel]: But you did detain them, right?

                 [Officer Wise]: Yes.

                 [Defense counsel]: And at that point in time the detention was
                 based upon the handing over of a small object, correct?

                 [Officer Wise]: And visibly seeing a small plastic baggie.

(Tr. at 24-25.) On redirect, Officer Wise testified as follows:

                 [Assistant Prosecutor]: [A]t what point were those individuals
                 no longer allowed to leave that alley?

                 [Officer Wise]: When I approached them and I could clearly
                 see [Carlson] was holding a plastic bag in his hand that was
                 suspected narcotics.

(Tr. at 27.)
        {¶ 22} Here, nothing in the record demonstrates that Officer Wise's interaction
with defendant and Carlson was consensual. Officer Wise did not testify that he asked
defendant any questions or engaged him in conversation. Indeed, Officer Wise was not
able to specifically recall saying anything at all upon approaching defendant.3 However,


3 We note that, although the trial court found that Officer Wise "identified himself as a police officer," no
support for this finding appears in the record. (Decision at 2.) The state concedes this point. (State's Brief at
12.)
No. 16AP-381                                                                             11


Officer Wise did specifically agree that he "immediately detained [defendant]" and "then
* * * collected the plastic bag." (Tr. at 24.)
       {¶ 23} An officer's subjective intent is irrelevant in determining whether a seizure
has occurred. However, such intent is relevant when conveyed to the defendant. See
Michigan v. Chesternut, 486 U.S. 567, 575 (1988), fn. 7; United States v. Fuller, 120
F.Supp.3d 669, 677-78 (E.D.Mich.2015); State v. Lunce, 12th Dist. No. CA2000-10-209
(May 21, 2001). Here, Officer Wise confirmed the statement in his written report that he
"detained both subjects and collected the small plastic baggie that Mr. Carlson was now
holding." (Tr. at 23.) Regardless of Officer Wise's statement that he detained defendant,
at the moment Officer Wise physically seized the item in question from Carlson's hands, a
detention certainly occurred. See West v. Davis, 767 F.3d 1063, 1070-71 (11th Cir.2014)
(finding officer "seized [the person in question] at the moment that he physically grabbed
her hand") (Emphasis added.); Slusher v. Carson, 540 F.3d 449, 454-55 (6th Cir.2008);
United States v. Casado, 303 F.3d 440, 443 (2d Cir.2002) (finding "[defendant] was
seized when [the officer] grabbed his hand"); United States v. Fonville, 127 F.Supp.3d
790, 797 (E.D.Mich.2015); State v. Simmons, 12th Dist. No. CA2012-11-229, 2013-Ohio-
5088, ¶ 16. See also Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989) ("Violation of the
Fourth Amendment requires an intentional acquisition of physical control. A seizure
occurs even when an unintended person or thing is the object of the detention or
taking.").
       {¶ 24} Thus, we conclude the trial court did not err in finding that Officer Wise
detained defendant prior to taking the plastic bag. See State v. Lynch, 196 Ohio App.3d
420, 2011-Ohio-5502, ¶ 28 (8th Dist.) (finding detective's statement that the defendant
would have been arrested if he attempted to leave supported conclusion that the
encounter was not consensual, but rather an investigative stop).
2. Legality of the Detention
       {¶ 25} Having found that defendant was subject to an investigative detention, we
next consider whether such detention was supported by reasonable suspicion that
defendant was engaged in or was about to be engaged in criminal activity. The state
contends that Officer Wise reasonably suspected defendant was engaged in criminal
activity because, prior to seizing the plastic bag, Officer Wise made the following
No. 16AP-381                                                                             12


observations: "(1) [defendant] and Carlson approach a house at night through the alley,
(2) [defendant] goes inside the house while Carlson waits in the alley, (3) [defendant]
emerges from the house one or two minutes later, (4) [defendant] hands Carlson [an]
object, (5) Wise sees in plain view Carlson carrying a small object that is wrapped in a
plastic, cellophane baggie." (State's Brief at 13-14.)
       {¶ 26} Here, the state argues that "the brief time that [defendant] was inside the
house suggested that he was a 'short term visitor who may have been consummating a
drug transaction.' " (State's Brief at 14, quoting Utah v. Strieff, __ U.S. __, 136 S.Ct.
2056, 2063 (2016).)      In Strieff, an officer conducted intermittent surveillance of a
residence based on a tip of drug-related activity. Following his observation of frequent,
short-duration visits to the residence by different individuals, the officer suspected the
occupants of the residence were selling drugs. Here, unlike in Strieff, Officer Wise was not
responding to a report of drug-related activity or conducting surveillance on the residence
that defendant entered. Furthermore, Officer Wise's testimony does not reflect his
knowledge of whether defendant lived at the residence in question or was merely a visitor.
Thus, we do not construe Strieff so broadly as to find that a brief visit to a residence
without more is indicative of the consummation of a drug transaction.
       {¶ 27} The state also points to Officer Wise's observation of defendant handing
Carlson a small object wrapped in plastic. Although Officer Wise observed defendant
hand Carlson an object, he testified he was not able to observe whether the object
defendant handed to Carlson contained illegal drugs. Specifically, on cross-examination,
Officer Wise testified regarding his written report of his observations:
               [Defense counsel]: You report: Several minutes later
               [defendant] exited the residence and met up with [Carlson].
               Officer Wise observed [defendant] was holding a small object
               in his hand, correct?

               [Officer Wise]: Yes, correct.

               [Defense counsel]: At no point in time do you identify at that
               time that the substance you believed was visibly heroin or any
               illegal drugs, correct?

               [Officer Wise]: Correct.
No. 16AP-381                                                                          13


               [Defense counsel]: Continue: And was handing over the object
               to [Carlson], correct?
               [Officer Wise]: Yes.

               [Defense counsel]: And at no point in time did you identify
               that you believed that that substance would be illegal drugs or
               heroin, right, in that sentence?

               [Officer Wise]: Not in that sentence, no.

               [Defense counsel]: Next sentence: At this time Officer Wise
               approached both subjects and observed the object [defendant]
               was holding was a small plastic baggie, correct?

               [Officer Wise]: Correct.

               [Defense counsel]: Alright. Nowhere in that sentence do you
               identify that you visibly observed that to be heroin, correct?

               [Officer Wise]: Correct.

               [Defense counsel]: Next sentence: Officer Wise detained both
               subjects and collected the small plastic baggie that [Carlson]
               was now holding, correct?

               [Officer Wise]: Correct.

(Tr. at 22-23.) Furthermore, Officer Wise testified that neither defendant nor Carlson
attempted to flee or made any furtive movements when he approached them.
Additionally, Officer Wise did not report that defendant or Carlson appeared to be
nervous. Compare In re Parks, 10th Dist. No. 04AP-355, 2004-Ohio-6449, ¶ 17 (finding
the defendant's nervousness to be a factor in determining reasonable suspicion of
criminal activity); Wardlow at 124 (recognizing that "nervous, evasive behavior is a
pertinent factor in determining reasonable suspicion").
      {¶ 28} The state also points to two cases from the Eighth Appellate District: State
v. Morgan, 8th Dist. No. 87578, 2007-Ohio-71, and State v. Barr, 86 Ohio App.3d 227
(8th Dist.1993). In Morgan, a police officer in a "high drug activity area" stopped the
defendant's vehicle after observing another person enter, leave, and return to the
defendant's vehicle, handing the defendant a bag. Morgan at ¶ 6. After pulling over the
defendant's vehicle and ordering him out, officers seized a plastic bag they observed
No. 16AP-381                                                                               14


sticking out of the defendant's front pants pocket which they later determined contained
illegal drugs. The court found that officers had reasonable suspicion of criminal activity to
stop the vehicle and were justified in seizing the bag based on the "plain view" exception
to the warrant requirement.
       {¶ 29} In Barr, detectives were "monitoring a high drug-trafficking area" when
they observed a male individual walk up to the defendant and engage her in a brief
conversation. Id. at 230. The man gave the defendant money, she reached into her shirt
pocket, pulled out a plastic bag, and gave the man something out of the plastic bag.
Detectives approached the pair and identified themselves as police officers. The man ran
away, and the defendant stuck the plastic bag in her shirt pocket. Initially, the defendant
walked away from the detectives and did not comply with their request to stop. Upon
approaching the defendant, the detectives observed a plastic bag protruding from the
defendant's pocket. Detectives asked the defendant for identification and inquired what
was in her pocket. After the defendant stated that she did not have identification and
denied that anything was in her pocket, the detectives removed the bag that was
protruding from the pocket. The court found that the officers possessed probable cause to
associate the visible plastic bag with criminal activity, thereby justifying its seizure under
the plain view exception to the warrant requirement.
       {¶ 30} Unlike both Morgan and Barr, there was no testimony that Officer Wise
was surveilling an area known for a high rate of illegal drug transactions. As the state
admits, even if the record did reflect this encounter occurred in a high-crime area, such
evidence alone would not be sufficient to create a reasonable suspicion. See Wardlow at
124 (finding that "[a]n individual's presence in an area of expected criminal activity,
standing alone, is not enough to support a reasonable, particularized suspicion that the
person is committing a crime," although such fact is "among the relevant contextual
considerations in a Terry analysis"); State v. Bradford, 10th Dist. No. 14AP-322, 2014-
Ohio-5527, ¶ 29. Furthermore, although Officer Wise characterized defendant's handing
of the plastic bag to Carlson as a "hand-to-hand exchange," Officer Wise did not observe
defendant and Carlson exchange money, unlike in Barr. (Tr. at 12.)
       {¶ 31} In the trial court, the state did not argue that the plain view exception
applied; therefore, such argument is waived and cannot be raised for the first time on
No. 16AP-381                                                                            15


appeal. Thomas at ¶ 37, citing Bing at 449; ProgressOhio.org, Inc. at ¶ 16; Neal at ¶ 29.
Nonetheless, even if we were to consider such argument for the first time on appeal, we
cannot agree that the plain view exception applies under the facts of this case.
       {¶ 32} Neither the evidence in the record nor the trial court's findings support the
conclusion that Officer Wise was able to observe anything prior to seizing the plastic bag
that would give him probable cause to believe that the item was associated with criminal
activity sufficient to satisfy the "immediately apparent" requirement to the plain view
exception. Minnesota v. Dickerson, 508 U.S. 366, 376 (1993) ("[T]he Fourth
Amendment's requirement that the officer have probable cause to believe that the item is
contraband before seizing it ensures against excessively speculative seizures."); State v.
Groves, 156 Ohio App.3d 205, 2004-Ohio-662, ¶ 42 (2d Dist.); State v. Johnson, 10th
Dist. No. 08AP-990, 2009-Ohio-3436, ¶ 33 (Bryant, J., concurring). The trial court found
that only "[a]fter taking the plastic bag" was Officer Wise "able to see that the bag
contained a brown substance, which Officer Wise immediately suspected was heroin."
(Decision at 2.) The trial court's finding is supported by competent, credible evidence in
the form of Officer Wise's own testimony under cross-examination. See supra at ¶ 27. We
must, therefore, accept such finding. Burnside at ¶ 8.
       {¶ 33} Therefore, having reviewed the totality of the circumstances, we conclude
Officer Wise did not possess a reasonable suspicion that defendant was engaged in or was
about to be engaged in criminal activity. Accordingly, we conclude the detention violated
defendant's Fourth Amendment rights.
3. Application of the Exclusionary Rule
       {¶ 34} Next, we address the state's argument that even if defendant's Fourth
Amendment rights were violated, "the exclusionary rule does not apply." (State's Brief at
22.)
       {¶ 35} The exclusionary rule operates to bar the state's use of evidence obtained in
violation of a person's Fourth Amendment rights. Weeks v. United States, 232 U.S. 383
(1914); Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding that "all evidence obtained by
searches and seizures in violation of the Constitution is, by that same authority,
inadmissible in a state court"). The exclusionary rule "is a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect,
No. 16AP-381                                                                              16


rather than a personal constitutional right of the party aggrieved." United States v.
Calandra, 414 U.S. 338, 348 (1974). The United States Supreme Court has held that the
exclusionary rule applies to both "primary evidence obtained as a direct result of an illegal
search or seizure" and "evidence later discovered and found to be derivative of an illegality
or 'fruit of the poisonous tree.' " Segura v. United States, 468 U.S. 796, 804 (1984),
quoting Nardone v. United States, 308 U.S. 338, 341 (1939). See also Wong Sun v.
United States, 371 U.S. 471 (1963).
       {¶ 36} Much like the exceptions to the general prohibition on warrantless searches
and seizures, courts have recognized exceptions to application of the exclusionary rule.
Strieff at 2061 (listing some of the exceptions). Two exceptions relevant to the instant case
are the attenuation doctrine and the good-faith exception.
       {¶ 37} The good-faith exception to the exclusionary rule, recognized by the United
States Supreme Court in United States v. Leon, 468 U.S. 897 (1984), and adopted by the
Supreme Court of Ohio in State v. Wilmoth, 22 Ohio St.3d 251 (1986), provides that "the
exclusionary rule should not be applied to bar use of evidence obtained by officers acting
in objectively reasonable reliance on a search warrant issued by a detached and neutral
magistrate but ultimately found to be unsupported by probable cause." State v. Hoffman,
141 Ohio St. 3d 428, 2014-Ohio-4795, ¶ 29, citing Leon at 918-23, 926. The good-faith
exception is supported by the rationale that, generally, "when an officer acting with
objective good faith has obtained a search warrant from a judge or magistrate and acted
within its scope * * * there is no police illegality and thus nothing to deter." Leon at 920-
21. See also Davis v. United States, 564 U.S. 229, 238 (2011), quoting Herring v. United
States, 555 U.S. 135, 143 (2009) (finding that "the deterrence benefits of exclusion 'var[y]
with the culpability of the law enforcement conduct' at issue"); Arizona v. Evans, 514 U.S.
1, 14 (1995); Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984).
       {¶ 38} Although there was no search warrant in this case, we note the United
States Supreme Court has extended the good-faith exception to circumstances other than
an invalid search warrant. See Illinois v. Krull, 480 U.S. 340 (1987) (applying good-faith
exception to searches conducted in reasonable reliance on subsequently invalidated
statute); Evans (applying good-faith exception where officers reasonably relied on
mistaken information regarding an arrest warrant in a computer database maintained by
No. 16AP-381                                                                             17


judicial employees); Herring (extending good-faith exception where officer reasonably
relied on erroneous information regarding a warrant in a database maintained by police
employees); Davis, 564 U.S. at 241 (applying good-faith exception where officers acted in
objectively reasonable reliance on binding judicial precedent). Similarly, the Supreme
Court of Ohio has expanded the application of the good-faith exception. See State v.
Johnson, 141 Ohio St.3d 136, 2014-Ohio-5021 (applying good-faith exception where
officer acted in objectively reasonable reliance on United States Supreme Court precedent
that was overturned after the officer completed the search); State v. Brown, 142 Ohio
St.3d 92, 2015-Ohio-486 (applying good-faith exception where a probate judge issued a
warrant without authority). Thus, underlying Leon and its progeny is the general principle
that the exclusionary rule's purpose, i.e. deterrence of police conduct in violation of the
Fourth Amendment, is not achieved by punishing an officer for acting in objectively
reasonable reliance on information or authority that, unbeknownst to the officer, was
erroneous.
       {¶ 39} Here, however, Officer Wise was not acting in objectively reasonable
reliance on information that later was revealed to be erroneous. Instead, he acted on the
basis of his own inchoate suspicion of criminal activity when he detained defendant in
violation of his Fourth Amendment rights. See Thomas at ¶ 48, quoting State v. Simon,
119 Ohio App.3d 484, 488 (9th Dist.1997) (finding that " '[i]t is significant that the
mistake * * * was not made by a third person, but by the officers themselves' "). Such
conduct is precisely what the exclusionary rule is meant to deter. Herring at 144 ("To
trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion
can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price
paid by the justice system."); Krull at 348-49, quoting United States v. Peltier, 422 U.S.
531, 542 (1975) ("[B]ecause the purpose of the exclusionary rule is to deter police officers
from violating the Fourth Amendment, evidence should be suppressed 'only if it can be
said that the law enforcement officer had knowledge, or may properly be charged with
knowledge, that the search was unconstitutional under the Fourth Amendment.' ").
Therefore, because Officer Wise was not acting in objectively reasonable reliance on
erroneous information, we conclude that the good-faith exception is inapplicable. See
No. 16AP-381                                                                               18


Thomas at ¶ 48; State v. Dickman, 10th Dist. No. 14AP-597, 2015-Ohio-1915, ¶ 26; State
v. Forrest, 10th Dist. No. 11AP-291, 2011-Ohio-6234, ¶ 17-18; Simon at 488-89.
       {¶ 40} We next consider application of the attenuation doctrine to these facts. The
attenuation doctrine provides that evidence discovered as a result of unconstitutional
police conduct is admissible where the causal connection between the offending conduct
and the resultant discovery is remote or has been interrupted by an intervening event
such that "the interest protected by the constitutional guarantee that has been violated
would not be served by suppression of the evidence obtained." Hudson v. Michigan, 547
U.S. 586, 593 (2006). See Nardone at 341; Wong Sun; Brown v. Illinois, 422 U.S. 590
(1975); Columbus v. Shepherd, 10th Dist. No. 10AP-483, 2011-Ohio-3302, ¶ 42, citing
State v. Carter, 69 Ohio St.3d 57, 67 (1994). The United States Supreme Court has
identified three factors to be considered when applying the attenuation doctrine: (1) the
"temporal proximity" between the unconstitutional conduct and the discovery of
evidence, (2) the "presence of intervening circumstances," and (3) the "purpose and
flagrancy of the official misconduct." Brown, 422 U.S. at 603-04.
       {¶ 41} Here, in support of its argument that the exclusionary rule does not apply,
the state again points to the recent United States Supreme Court decision in Strieff. As we
have previously discussed, in that case, an officer suspected that illegal drug activity was
taking place at a residence following an anonymous tip and his observation of frequent,
short-duration visits. During his surveillance of the residence, the officer observed Strieff
exit the house and walk to a nearby convenience store. The officer detained Strieff in the
store's parking lot, identified himself, and demanded to know what Strieff was doing in
the residence. The officer requested Strieff's identification and Strieff complied. The
officer used Strieff's identification to check for warrants and discovered that Strieff had an
outstanding arrest warrant for a traffic violation. The officer arrested Strieff pursuant to
the warrant and performed a search of Strieff incident to the arrest, discovering drugs and
drug paraphernalia on Strieff's person.
       {¶ 42} In that case, the United States Supreme Court examined the attenuation
doctrine in considering "whether the discovery of a valid arrest warrant was a sufficient
intervening event to break the causal chain between the unlawful stop and the discovery
of drug-related evidence." Strieff at 2062. Applying the three factor test, the court found
No. 16AP-381                                                                              19


that although the temporal proximity between the stop and discovery favored
suppression, that consideration was outweighed by the "critical intervening circumstance"
of the pre-existing arrest warrant that was "wholly independent of the illegal stop" and the
absence of "flagrantly unlawful police misconduct." Id. Therefore, the court held that "the
evidence [the officer] seized as part of his search incident to arrest is admissible because
his discovery of the arrest warrant attenuated the connection between the unlawful stop
and the evidence seized from Strieff incident to arrest." Id. at 2064.
       {¶ 43} Applying the three-part test articulated in Brown, 422 U.S. 590, to the facts
of this case, we first examine the temporal proximity factor. In considering the temporal
proximity factor, courts have looked to whether there was a "substantial time" separating
the unlawful detention and the discovery of evidence. Kaupp v. Texas, 538 U.S. 626, 633
(2003). See also Brown, 422 U.S. at 604. Here, the record does not reflect there was any
substantial break between the unlawful detention and the discovery of the evidence. Thus,
as in Strieff, the temporal proximity between the unlawful conduct and the discovery of
evidence favors suppression.
       {¶ 44} Second, we consider whether there were any intervening circumstances.
Following from our analysis of the first factor, there were no intervening circumstances
present here. The record is devoid of any events or other circumstances separating the
unlawful detention and the discovery of evidence. Significantly, unlike in Strieff, the
record does not reflect that Officer Wise was acting pursuant to a search or arrest warrant.
See also Segura at 815. Thus, the second factor favors suppression.
       {¶ 45} Finally, we examine the third factor, i.e. the purpose and flagrancy of the
officer's actions. Here, unlike in Strieff, Officer Wise was not acting on the basis of a tip
that drug activity was taking place. Furthermore, as discussed in our analysis of the good-
faith exception, Officer Wise did not act on the basis of erroneous information from a
third party, but rather based on his own inchoate suspicion. Thus, we find the third factor
favors suppression. In light of our analysis of the three-part test in Brown, 422 U.S. 590,
we find that, on the facts and circumstances of this case, the connection between the
unlawful conduct and the resultant discovery of evidence is not "sufficiently attenuated to
dissipate the taint." Segura at 815.
No. 16AP-381                                                                                                  20


        {¶ 46} In conclusion, we agree with the trial court that the detention was unlawful
and we find no exception to the exclusionary rule applies. Therefore, the trial court did
not err in granting defendant's motion to suppress. Accordingly, we overrule the state's
single assignment of error.
IV. Conclusion
        {¶ 47} Having overruled the state's single assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                                        Judgment affirmed.
                                          HORTON, J., concurs.
                                          SADLER, J., dissents.

SADLER, J., dissenting.
        {¶ 48} Because I believe the trial court erred in granting defendant's motion to
suppress, I would sustain the state's assignment of error and reverse the judgment of the
trial court. Because the majority does not, I respectfully dissent.
        {¶ 49} In my view, the warrantless seizure of the narcotics in Carlson's possession
is justified under the plain view exception to the warrant requirement first expressly
recognized by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S.
443 (1971). The plain view doctrine allows police officers, under particular circumstances,
to seize an "article of incriminating character" without a warrant. State v. Halczyszak, 25
Ohio St.3d 301, 303 (1986). "The doctrine 'is grounded on the proposition that once
police are lawfully in a position to observe an item first-hand, its owner's privacy interest
in that item is lost.' " Id., quoting Illinois v. Andreas, 463 U.S. 765, 771 (1983).4




4 The majority suggests that the state waived the plain view doctrine for purposes of appeal by failing to raise

it at the suppression hearing. Under similar facts, this court, in State v. Muldrow, 10th Dist. No. 15AP-1119,
2016-Ohio-4774, rejected defendant's claim that the state waived an argument based on the "collective
knowledge doctrine" even though the state did not specifically mention the doctrine in briefing or in its
closing argument at the suppression hearing. Id. at ¶ 20. In Muldrow, we held that the state had not waived
the collective knowledge doctrine for purposes of appeal because "the state argued the crux of its collective
knowledge theory to the trial court, albeit without extensive briefing or citation to relevant authority." Id.
We further explained that "[e]ven though the state did not fully develop this argument in the trial court, the
state did raise the issue before the trial court, and, thus, we will consider the merits of the state's collective
knowledge doctrine argument." Id.
No. 16AP-381                                                                                               21


        {¶ 50} The warrantless seizure by a law enforcement officer of an object in plain
view does not violate the Fourth Amendment of the United States Constitution if (1) the
officer did not violate the Fourth Amendment in arriving at the place from which the
object could be plainly viewed, and (2) its incriminating nature was immediately
apparent. State v. Williams, 55 Ohio St.2d 82 (1978), paragraph one of the syllabus.5
        {¶ 51} With respect to the first prong of the Coolidge test, "not all personal
intercourse between policemen and citizens involves 'seizures' of persons. Only when the
officer, by means of physical force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S.
1, 19 (1968), fn. 16. "The Fourth Amendment is not implicated when a police officer
approaches a person in a public place, requests to speak to him, receives permission to do
so and then asks questions because the person is free to walk away." State v. Pierce, 125
Ohio App.3d 592, 598 (10th Dist.1998), citing Florida v. Royer, 460 U.S. 491, 497-98
(1983). "[E]ven when officers have no basis for suspecting a particular individual, they
may generally ask questions of that individual * * *; ask to examine the individual's
identification * * *; and request consent to search his or her luggage." Florida v. Bostick,
501 U.S. 429, 434-35 (1991). The person approached, however, need not answer any
question put to him and may continue on his way. Royer at 497-98.
        {¶ 52} The facts developed at the suppression hearing with regard to Officer Wise's
approach to Carlson and defendant establish that Officer Wise simply approached two
individuals standing in a dark alley from a distance of ten to fifteen feet away while
shining his flashlight at the object in Carlson's hand. There is no evidence that Officer
Wise ordered the two suspects to remain where they were or told them they were not free
to go, no evidence that he drew a weapon, no evidence that he physically restrained either


Here, though the prosecutor did not expressly state that the drugs were in "plain view" when Officer Wise
seized the baggie from Carlson's hand, the crux of the state's argument was that Officer Wise lawfully
approached Carlson and defendant, that he was able to better observe the baggie from that vantage point,
and that, based on his prior observation of a hand-to-hand exchange, he reasonably believed that the small
object wrapped in plastic was illegal narcotics. Thus, in my view, the prosecutor argued the plain view
theory in the trial court even though he did not use the term "plain view" either in briefing or in closing
argument.
5 "The plain view doctrine previously had a * * * requirement that the officer must discover the incriminating

evidence inadvertently, but this requirement was eliminated." State v. Pitts, 2d Dist. No. 18964 (Nov. 21,
2001), citing State v. Waddy, 63 Ohio St.3d 424, 442 (1992), fn. 5, citing Horton v. California, 496 U.S. 128
(1990).
No. 16AP-381                                                                                22


Carlson or defendant, no evidence that he blocked their path, and no evidence of any
other demonstration of authority by Officer Wise that would have caused a reasonable
person in defendant's position to believe he was not free to go. In my view, these facts
establish that Officer Wise was lawfully in a position where he could get a better look at
the object in Carlson's hand under illumination. Certainly, the appearance of Officer Wise
in a public alley would be less intrusive than an officer who "approaches and questions
persons seated within parked vehicles." (Majority at ¶ 17, quoting State v. Jones, 188
Ohio App.3d 628, 2010-Ohio-2854, ¶ 20 (10th Dist.), citing State v. McClendon, 10th
Dist. No. 09AP-554, 2009-Ohio-6421, ¶ 8.)
       {¶ 53} Neither the record nor case law supports the trial court's conclusion that
Officer Wise detained Carlson and defendant at any point in time prior to grabbing the
baggie from Carlson's hand. Even if Officer Wise's intent was to conduct an investigation
of suspected drug activity, the Fourth Amendment did not require a reasonable suspicion
that Carlson and defendant were engaged in criminal activity before Officer Wise could
approach them with a flashlight in a public alley way in order to get a better view of the
object in Carlson's hand. See United States v. Dunn, 480 U.S. 294, 305 (1987) (officer's
use of the beam of a flashlight, directed through the essentially open front of the barn,
does not transform their observations into an unreasonable search within the meaning of
the Fourth Amendment); United States v. Wright, 449 F.2d 1355 (D.C.Cir.1971) (officer's
conduct in shining a flashlight through a gap between the defendant's closed garage doors
was not a search for purposes of the Fourth Amendment); State v. Pitts, 2d Dist. No.
18964 (Nov. 21, 2001) (officer leaning into a lawfully stopped vehicle with his flashlight to
attempt to view the area between the seat and the console was not a search); State v.
Lungs, 2d Dist. No. 22704, 2008-Ohio-4928, ¶ 24 ("the fact that [the officer] leaned into
the van and utilized a flashlight in observing the evidence [did] not elevate his conduct to
a search, and it [did] not negate the fact that the items were otherwise openly visible"). In
my view, the first prong of the Coolidge test is satisfied because the evidence shows that
Officer Wise was lawfully in a position to observe, with the aid of a flashlight, the object in
Carlson's hand before reaching out and grabbing it.
       {¶ 54} "The 'immediately apparent' requirement of the 'plain view' doctrine is
satisfied when police have probable cause to associate an object with criminal activity."
No. 16AP-381                                                                                           23


Halczyszak at paragraph three of the syllabus.6 "In ascertaining the required probable
cause to satisfy the 'immediately apparent' requirement, police officers may rely on their
specialized knowledge, training and experience." Id. at paragraph four of the syllabus. In
the context of the plain view doctrine, "[p]robable cause is a flexible, common-sense
standard, merely requiring that the facts available to the officer would warrant a man of
reasonable caution to believe that certain items may be contraband." Texas v. Brown,
460 U.S. 730, 731 (1983). "Probable cause to associate an object with criminal activity
does not demand certainty in the minds of police, but instead merely requires that there
be 'a fair probability' that the object they see is illegal contraband or evidence of a crime."
State v. Thompson, 134 Ohio App.3d 1, 4 (2d Dist.1999), quoting State v. George, 45 Ohio
St.3d 325 (1989), paragraph one of the syllabus. "[A]n officer may rely on specialized
knowledge and training 'to draw inferences and make deductions that might well elude an
untrained person.' " Halczyszak at 307, quoting Brown at 746. Accordingly, it is of no
consequence that Officer Wise was not absolutely certain that the object contained heroin
until he held it in his hand and his partner subsequently field tested the substance.
Rather, under Coolidge it is sufficient for purposes of the "immediately apparent" prong
of the plain view doctrine that Officer Wise had probable cause to associate the object
with criminal activity.
        {¶ 55} In State v. Wade, 12th Dist. No. CA93-12-043 (May 16, 1994), a state
trooper stopped the defendant's car for speeding.7                When the defendant voluntarily
opened the trunk of the car to retrieve his operator's license from a gym bag, the trooper
noticed several small plastic bags in the trunk and rolled up baggies in the defendant's
gym bag. Though the trooper could not see what was in the plastic baggies, he reached
into the gym bag and removed a baggie. The trooper recognized the material in the baggie
as marijuana and placed the defendant under arrest. The defendant was subsequently
indicted for drug trafficking and possession of drug paraphernalia, but the trial court
suppressed the evidence as the fruit of an illegal search. The Twelfth District held that the



6 Implied in Coolidge and the case law applying the plain view doctrine is the recognition that "probable

cause" for purposes of the plain view doctrine is distinguishable from probable cause to search or probable
cause to arrest. Texas v. Brown, 460 U.S. 730 (1983); State v. George, 45 Ohio St.3d 325 (1989);
Halczyszak.
7 Motion for delayed appeal denied in State v. Wade, 70 Ohio St.3d 1437 (1994).
No. 16AP-381                                                                               24


trial court's decision was contrary to the evidence. Id. The court of appeals explained its
reasoning as follows:
               Trooper Brown immediately recognized that the baggies
               signaled the presence of illicit drug activity. The fact that he
               could not readily see the substance contained in the baggies is
               of no consequence. The distinctive character of the baggies
               and the manner in which they were kept, particularly to the
               experienced eye of Trooper Brown, made it immediately
               apparent that they contained contraband. See Texas v. Brown
               (1983), 460 U.S. 730, 103 S.Ct. 1535, 75 L. Ed. 2d 502. Based
               on the foregoing analysis, we find that the [immediately
               apparent] prong of the Coolidge test has been satisfied.
               Trooper Brown lawfully viewed the baggies in appellee's trunk
               and was justified under the plain view doctrine in seizing
               them.
Id.
       {¶ 56} Here, Officer Wise estimated that during his career as a patrol officer for the
Columbus Division of Police, he had made "a few dozen" narcotics arrests. (Tr. at 17.)
Officer Wise suspected that defendant "went inside the house and purchased narcotics,"
based on the relatively short time of one to two minutes defendant had been in the house
before returning to the alley to hand off the object to Carlson. (Tr. at 12.) Officer Wise
acknowledged that when defendant handed the small object to Carlson, he was unable to
see it well enough in the darkness to identify it as narcotics, but he suspected at that point
in time he had observed a drug transaction. He testified that "[w]hen I approached them
and I could clearly see * * * Carlson was holding a plastic bag in his hand that was
suspected narcotics." (Tr. at 27.) Officer Wise shone his flashlight on the object in
Carlson's hand and he could see "a small object, maybe the size of my pinkie there
wrapped up in plastic wrap." (Tr. at 13.) Under these circumstances, as in Wade, the
"immediately apparent" prong of the plain view doctrine has been satisfied.
       {¶ 57} Accordingly, I believe the evidence presented at the suppression hearing
establishes that both prongs of Coolidge have been met. Officer Wise saw defendant go
into a residence for one to two minutes and return to the alley where he immediately
passed a small object to Carlson. Based on his experience as an officer who had made
multiple previous drug arrests, Officer Wise suspected he had witnessed a hand-to-hand
drug transaction and decided to further investigate by approaching the two individuals in
a public place, lawfully utilizing his flashlight to illuminate the object defendant handed to
No. 16AP-381                                                                                              25


Carlson. When Officer Wise saw in plain view a pinkie sized object wrapped in plastic
wrap, he suspected it to be heroin. Officer Wise grabbed the baggie from Carlson's hand
and observed that the pinkie sized object was brown in color, indicating heroin.8 On these
facts, the record establishes that Officer Wise was lawfully in a position where he could
plainly view the object handed off from defendant to Carlson and, after lawfully
illuminating the object, Officer Wise was able to observe a substance under circumstances
which would warrant a man of reasonable caution to believe that the substance was illegal
narcotics.9
        {¶ 58} "When * * * officers observe[] what could be interpreted as a drug-buy, they
[have] a duty to investigate." State v. Hartman, 2d Dist. No. 13332 (Oct. 22, 1992).
Because I believe that Officer Wise observed what he reasonably believed to be illegal
drugs in plain view after approaching Carlson and defendant in a public place, I conclude
that no violation of defendant's constitutional rights occurred when the baggie was taken
from Carlson and that the trial court erred when it granted defendant's motion to
suppress.
        {¶ 59} For the foregoing reasons, I would reverse the judgment of the trial court
and remand this matter for further proceedings.                   Because the majority does not, I
respectfully dissent.




8Even if defendant was detained the moment Officer Wise grabbed the baggie from Carlson, because Officer
Wise was lawfully in a position where he could see the baggie in Carlson's hand and because the criminality
of the contents of the baggie was apparent to him, Carlson had no privacy right to the object and Officer
Wise could lawfully seize it under the plain view doctrine.

9 Though the majority distinguishes the plain view case law cited by the state because there was additional
evidence presented in those cases that the arresting officer was surveilling an area known for drug activity,
there is no case law holding that such circumstances are required for the application of the plain view
doctrine. Nor is there any case law suggesting that the arresting officer must see an exchange of money, as
was the case in State v. Barr, 86 Ohio App.3d 227 (8th Dist.1993), in order to associate an object with an
illegal drug transaction.
