[Cite as State v. Jones, 2013-Ohio-5791.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO                                  :
                                                :         Appellate Case No. 25780
          Plaintiff-Appellee                    :
                                                :         Trial Court Case No. 12-CR-3544
 v.                                             :
                                                :
 BRANDON JONES                                  :         (Criminal Appeal from
                                                :         (Common Pleas Court)
          Defendant-Appellant                   :

                                            ...........
                                            OPINION
                            Rendered on the 31st day of December, 2013.
                                            ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MARCY A. VONDERWELL, Atty. Reg. #0078311, Finlay, Johnson & Beard Ltd., 260 North
Detroit Street, Xenia, Ohio 45385
        Attorney for Defendant-Appellant

                                            .............

FAIN, P.J.

        {¶ 1}     Defendant-appellant Brandon S. Jones appeals from his conviction and sentence,

following a no-contest plea, upon one count of Possession of Cocaine in an amount less than five
                                                                                                 2


grams, in violation of R.C. 2925.11(A), a felony of the fifth degree, and one count of Possession

of Heroin in an amount equaling or exceeding ten unit doses, but less than fifty unit doses, in

violation of R.C. 2925.11(A), a felony of the fourth degree. Jones’s assigned counsel has filed a

brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), indicating that she has not found any potential assignments of error having arguable

merit.

         {¶ 2}    By entry herein on October 3, 2013, we have afforded Jones the opportunity to

file his own, pro se brief. He has not done so.

         {¶ 3}    After our independent review of the record required by Anders, we conclude that

there are no potential assignments of error having arguable merit. Accordingly, the judgment of

the trial court is Affirmed.



                         I. Jones Is Stopped, Arrested, and Questioned

         {¶ 4}    One week after the suppression hearing in this case, the trial court made the

following findings in open court:

                 Now going into the substance of those conclusions, I note that [Dayton

         Police] Detective [Patrick] Bell and also [Dayton Police] Detective [Ryan T.]

         Halburnt on November 28th, 2012, were partners assigned to the Dayton Police

         Department’s street crimes unit, with this unit being an arm of the department’s

         narcotics bureau. Detective Bell on this date had a telephone conversation with a

         reliable confidential informant wherein the confidential informant informed

         Detective Bell about a white Chrysler 300 automobile parked in a parking lot
                                                                                        3


behind the three unit apartment building located at 435 Hunter Avenue which is

located in Dayton’s north side.

       The CI provided the vehicle’s license plate number and further indicated

that the vehicle was occupied by a heavyset African American male and that this

person possessed illegal narcotics. Detective Bell did not testify concerning when

the telephone conversation occurred, but since the detectives immediately traveled

to the indicated parking lot and they were two miles or so from the location of the

parking lot, and also given the fact that the detectives arrived at the parking lot a

little after 3:00 p.m., it is fair to conclude that Detective Bell’s telephone

conversation with the confidential informant occurred at approximately 3:00 p.m.

give or take a few minutes in either direction. [On cross-examination, Bell

testified that: “We were * * * probably a couple of minutes away as I recall.”]

       Detective Bell[,] turning to his history with the confidential informant,

indicated that he was responsible for signing up the individual as a confidential

informant. Detective Bell testified that in the past, this confidential informant has

consistently provided information that has proven to be accurate that is reliable.

Detective Bell further testified that information provided by the CI has led to the

arrest of individuals on drug and weapons charges and the location and also

information provided by the confidential informant has led to the finding of

wanted individuals.

       Detective      Bell   when   pressed   on    the   CI’s   reliability   during

cross-examination testified again in a credible fashion that the information
                                                                                                                                                    4


        provided by the confidential informant has always proven accurate as to an

        individual’s identity and also as to the quantity of drugs present at a particular

        location with the issue of quantity being not always completely accurate, but with

        some relatively minor variation on one side of the equation or the other.

                    The detectives based upon the confidential informant[’]s information

        decided to travel to the parking lot behind 435 Hunter Avenue to investigate.

        Detectives were driving an unmarked Dayton Police Department vehicle. Each

        detective wore a vest marked with the word police on the vest. Further, each

        detective’s badge was attached to a lanyard and was worn around each detective’s

        neck.

                    The detectives pulled into the alley behind 435 Hunter. The entry was

        from the north with the detectives traveling from the north towards the south.

        The involved parking lot is to the east, that is to the detectives’ left as the

        detectives approached the parking lot.

                    The detectives as they approached observed a white Chrysler 300 in the

        parking lot. The detectives further observed a heavyset African American male

        occupying the vehicle.                    Further, as previously noted, a white female was

        positioned near the vehicle but each detective has a different recollection

        concerning her location. And that’s already been outlined previously.1

                    The detectives further confirmed that the license plate number provided by

           1
              In previously determining that it found the officers’ testimony credible, and Jones’s testimony not credible, the trial court noted
that the officers differed in their recollections concerning on which side of the vehicle the female was standing, but concluded that this single
discrepancy did not render the rest of their testimony other than credible.
                                                                                                                                                  5


        the confidential informant matched the license plate number of the Chrysler 300

        that was observed in the parking lot behind the apartment complex at 435 Hunter

        Avenue. The detectives parked their vehicle some 15 feet from the Chrysler 300.

          The positioning of the detectives’ vehicle did not block the Chrysler 300's ability

        to exit the parking lot and drive from the alley.

                   The detectives approached the Chrysler 300 as follows.                                           Detective

        Halburnt approached the driver’s side window with Detective Bell crossing

        behind the Chrysler 300 to approach the vehicle’s passenger side.

                   ***

                   Again, Detective Bell’s recollection again which I believe is probably the

        accurate recollection because of the detail provided and his recollection is that the

        female was at the driver’s window and that this female as she became aware of the

        approaching detectives and as one would expect immediately backed away from

        the window that she occupied.

                   The detectives at this point were without doubt aggressively approaching

        the Chrysler 300. And they were doing so to effectuate a stop, that is a seizure of

        [Jones] 2 who of course was the occupant of the Chrysler 300. However, the

        detectives at this point had not reached the vehicle nor commanded [Jones] to take

        or refrain from any action. [Jones] probably in response to the female moving

        away from the vehicle or upon hearing the detectives approach, looked over his

           2
              Throughout this part of the transcript, the trial court consistently referred to Jones as “Mr. Evans,” a name having no apparent
significance in this case. When, at the conclusion of the trial court’s oral announcement of its decision, this was brought to the attention of
the trial court, the trial court indicated that it had intended these references to have been to Jones.
                                                                                                                                                    6


         left shoulder, saw the detectives and immediately turned to his right, dipped his

         shoulder down and appeared to either be reaching for something or perhaps

         discarding some item that he had been clutching.

                    This action created a more than reasonable concern on the part of each

         detective that [Jones] was perhaps reaching for a weapon,3 prompting Detective

         Halburnt to open [Jones’s] door and place his hands upon [Jones] to forcibly

         remove [Jones] from the vehicle.                          Detective Bell by this time was on the

         passenger side of the vehicle and he observed [Jones] as he was being removed

         from the vehicle by Detective Halburnt. He observed [Jones] open his right hand

         and drop two baggies containing what Detective Bell surmised were illegal

         narcotics.

                    Detective Bell alerted Detective Halburnt of this observation with [Jones]

         then being immediately placed in handcuffs.                                  The baggies were of course

         retrieved and it was ultimately determined that the baggies contained the illegal

         narcotics at issue in this case and at issue in this motion to suppress with one

         baggie containing heroin and with the second baggie containing cocaine.

         {¶ 5}        There is evidence in the record to support these findings.

         {¶ 6}        Bell read Jones his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966), from a card he kept for that purpose. Jones agreed to speak to

Bell without an attorney present. Bell then asked Jones questions, which Jones answered.

            3
              Bell testified that he believed Jones was either trying to get a weapon to hurt them, or was trying to put a weapon or drugs in the
 center console. Halburnt testified that when, after Halburnt said “Dayton police,” Jones swivelled and “started messing” with the center
 console, Halburnt thought Jones was either retrieving or hiding a weapon or drugs.
                                                                                                   7




                                II. The Course of Proceedings

        {¶ 7}   Jones was charged by indictment with one count of Possession of Cocaine, a

fifth-degree felony, and one count of Possession of Cocaine, a fourth-degree felony. He moved

to suppress both the evidence obtained when he was stopped and arrested, and the statements he

made thereafter.

        {¶ 8}   Following a hearing, the trial court overruled Jones’s motion to suppress. Jones

thereafter pled no contest to both charges, and was found guilty as charged. He was sentenced to

community control sanctions for a period not to exceed five years, and his driver’s license was

suspended for six months, concurrently, on each offense.           Six months is the minimum

mandatory license suspension for these offenses. Jones was also assessed a supervision fee of

$50, an appointed counsel fee of $130, and a “Lab Fee to the Dayton Police Department” of

$125.

        {¶ 9}   From his conviction and sentence, Jones appeals. His assigned counsel has filed

a brief under the authority of Anders v. California, supra, indicating that she has not been able to

find any potential assignments of error having arguable merit. We afforded Jones 60 days within

which to file his own, pro se brief. He has not done so.



                   III. Our Independent Review of the Record Reveals No

                   Potential Assignments of Error Having Arguable Merit

        {¶ 10} The trial court gave the following as its legal reasoning for overruling Jones’s

motion to suppress:
                                                                                      8


           Now I thought about this a lot and I’ve actually approached it from two

different directions. But I note initially that a Fourth Amendment seizure requires

and I’m quoting from the decision of the Second District Court of Appeals, [State

v. Wynn, 2d Dist. Montgomery No. 24253, 2011-Ohio-1832, ¶ 18]. And I’m

quoting from paragraph 18 of that decision. And so that decision indicates as

follows.

           Again a Fourth Amendment seizure “requires either (a) the application of

physical force with lawful authority” or (B) a suspect’s “submission to the

assertion of” such “authority.” In this case, as Detectives Bell and Halburnt were

approaching [Jones’s] 4 vehicle, but before he made the described movement,

which led the officers to conclude that [Jones] was perhaps retrieving a weapon,

the detectives without a doubt at that point had every intent to make a seizure, to

accomplish a seizure. But at that moment, at that instant, they had not made such

a seizure. And again, for that conclusion, I rely upon the [State v. Wynn] decision

which is in conformity with the decision of the United States Supreme Court in

[California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)].

           So at that point, under the [California v. Hodari D. and State v. Wynn]

standard, a seizure had not been accomplished because the officers – detectives

had made no physical contact with [Jones] nor had [Jones] submitted to the

detective’ [sic] assertion of any authority. Therefore, the detectives based upon

[Jones’s] movement consistent with the potential retrieval of a weapon, had the

 4
     See footnote 2.
                                                                                      9


right under the Fourth Amendment to accomplish a seizure of [Jones] to ensure

their safety. The seizure led to [Jones] discarding the baggies as described and

once this occurred, [Jones] lost any interest he had in the baggies and the content

of either baggie.

       This conclusion is reached among other reasons based on the fact that the

baggies at that point were in plain view. The detectives were in a location where

they had a right to be under the Constitution. And based upon that which was

observed in the totality of the circumstances, the detectives immediately realized

the baggies probably contained contraband.

       Therefore, [Jones] was – thereafter [Jones] was advised of his Miranda

rights by Detective Halburnt and [Jones] agreed to answer Detective Halburnt’s

questions.

       Now that’s the first way that I approached this, that there was no seizure

until [Jones] made the movement in his car which led them to the conclusion, the

reasonable conclusion under the Fourth Amendment by the detectives that he was

perhaps retrieving a weapon which gave them the right at that point to finish the

seizure that they had – that they were going to make in order to make sure that

[Jones] was not in fact retrieving a weapon. That was prudent and reasonable

conduct and sanctioned by the Fourth Amendment.

       The other way to look at this though and I’m relying upon several cases

including this case from the Second District Court of Appeals, [State v. English,

2d Dist. Montgomery No. 18648, 2001-Ohio-1548].
                                                                                         10


           And this case stands for the proposition that information supplied by a

reliable confidential informant when verified can act to provide a sufficient

reasonable articulable suspicion of criminal activity to justify a Terry stop, a Terry

seizure. 5        And in this case based upon the information provided by the

confidential informant and the reliability of that confidential informant was

testified to by Detective Bell, based upon that information and then the

information verified by the officers when they arrived at the scene, gave them the

right again under the Fourth Amendment and pursuant to Terry to make a seizure.

As they were getting ready to make that seizure we have the movement by [Jones]

in the vehicle which then confirmed their right to make that seizure if for nothing

else to ensure that [Jones] was not reaching for a gun. It was done in order to

ensure officer safety and that activity by the detectives was consistent with the

Fourth Amendment.

           And then obviously we have the situation where the drugs were dropped

leading then to the retrieval of those drugs and [Jones’s] ultimate arrest on the

drug charges.

           Now going back to the Miranda situation, again following [Jones] being

arrested, he did receive his Miranda rights by Detective Halburnt and he agreed at

that point to discuss the situation, to talk to Detective Halburnt. And there is no

indication in the record that [Jones’s] ability to knowingly waive his Miranda

rights were compromised by [Jones’s] intoxication based upon either alcohol or

 5
     See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
                                                                                                     11


       drugs or that [Jones] has any mental deficiency which would act to compromise

       [Jones’s] ability to make a voluntary waiver.

               It is therefore concluded as to the first prong of the test that [Jones] did in

       fact voluntarily waive his Miranda rights. Further there is nothing in the record to

       support a conclusion that [Jones] was not – that [Jones’s] will was overcome by

       force, threats of force, false promises or anything else.

               It is therefore concluded that [Jones’s] waiver of his Miranda rights was a

       knowing and voluntary waiver since there – the waiver was both voluntary and

       knowing, that portion of the motion to suppress is also overruled. So the portion

       of the motion requesting the drugs found be suppressed is overruled. The portion

       of the motion requesting the suppression of any statements is also overruled.

       {¶ 11} The only quibble we have with the trial court’s reasoning is that we question its

conclusion that Jones lost any interest in the baggies and their contents when he dropped them.

Bell testified that Jones dropped them “on the driver’s side floorboard.” Since he did not drop

them outside of the vehicle in which he was the sole occupant, it is not clear that he was thereby

abandoning his interest in the baggies. Of course, Jones’s assertion of an interest in the baggies

at this point is not helped by his having responded to Halburnt’s question about the bags of drugs

he dropped that “he didn’t know [what Halburnt was] talking about.” But since Bell testified that

he recognized the contents of the baggies as likely consisting of illegal drugs, and he

communicated this to Halburnt, Halburnt had probable cause to arrest Jones at that point.

       {¶ 12} Outside of this one, immaterial quibble, we find no flaw in the trial court’s

reasoning. We find no potential assignment of error directed to the overruling of Jones’s motion
                                                                                            12


to suppress having any arguable merit.

       {¶ 13} We have reviewed the plea colloquy, and we find it to be exemplary. Likewise,

the sentencing hearing, which resulted in Jones receiving the minimum possible sentence of

community control sanctions and a six-months driver’s license suspension, contains nothing

giving rise to any potential assignments of error having any arguable merit.

       {¶ 14} In short, after reviewing the entire record, including the pre-sentence

investigation, we find no potential assignments of error having arguable merit.



                                         IV. Conclusion

       {¶ 15} This court having found no potential assignments of error having arguable merit,

the judgment of the trial court is Affirmed.

                                          .............

HALL and WELBAUM, JJ., concur.


Copies mailed to:

Mathias H. Heck
Carley J. Ingram
Marcy A. Vonderwell


Brandon Jones
Hon. Michael Tucker
