[Cite as State v. Roberts, 2016-Ohio-7327.]




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

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 2015-CA-104
                                                    :
 v.                                                 :   Trial Court Case No. 15-CR-128
                                                    :
 AARON J. ROBERTS                                   :   (Criminal Appeal from
                                                    :    Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                            Rendered on the 14th day of October, 2016.

                                               ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

BRIAN A. HICKS, Atty. Reg. No. 0065022, Post Office Box 359, Lebanon, Ohio 45036
     Attorney for Defendant-Appellant

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

HALL, J.

        {¶ 1} Aaron J. Roberts appeals from his conviction and sentence following a no-

contest plea to one count of having a weapon while under disability.
                                                                                           -2-




       {¶ 2} In his sole assignment of error, Roberts contends the trial court erred in

overruling a suppression motion he filed prior to his plea.

       {¶ 3} The record reflects that Springfield Police Officer Cody Anderson observed

Roberts driving a green pick-up truck on March 4, 2015. Anderson testified at a

suppression hearing that he recognized Roberts and knew that Roberts’ driver’s license

had been suspended six to twelve months earlier. Anderson further testified that he pulled

behind Roberts and ran Roberts’ information through his cruiser’s mobile computer.

According to Anderson, the computer search confirmed that Roberts’ license remained

suspended. Anderson then activated his cruiser’s overhead lights and initiated a traffic

stop. In response, Roberts exited his own vehicle and fled. During an ensuing foot chase,

Roberts threw a firearm to the ground. Police ultimately caught Roberts and recovered

the firearm. As a result of the foregoing incident, Roberts was charged with having a

weapon while under disability, receiving stolen property (the firearm) with a firearm

specification, improper handling of a firearm in a motor vehicle, carrying a concealed

weapon, and tampering with evidence (discarding the firearm during the foot chase).

       {¶ 4} The trial court initially overruled Roberts’ suppression motion, finding that

Anderson’s traffic stop was justified based on his discovery, prior to the stop, that Roberts’

license remained suspended. Roberts then entered a no-contest plea to the charge of

having a weapon while under disability in exchange for dismissal of the other charges.

The parties stipulated to the following recitation of the facts:

              * * * [T]he State would have called Officer Anderson and Officer

       Hobbs to testify that on March 4, 2015, here in Clark County, Ohio that a
                                                                                            -3-


       traffic stop was performed on Mr. Roberts’ vehicle. Officer Anderson then

       got into a foot chase with Mr. Roberts; and during that foot chase, it would

       be testified to that Mr. Roberts did, in fact, possess a firearm and did, in fact,

       try to tamper with evidence in throwing that firearm to the ground so it would

       not be discovered by the officers.

              Officer Hobbs would testify, Your Honor, that in the area of that

       chase, he was able to locate a firearm that did match a magazine that was

       also dropped by the Defendant in this matter.

              Mr. Roberts cannot possess a firearm due to prior convictions for

       possession of drugs, all out of Clark County, Ohio, that being 03-CR-975-

       B, 03-CR-906, and 02-CR-203, Your Honor.

(Plea Tr. at 6-7).

       {¶ 5} Prior to making a finding of guilt, the trial court re-opened the suppression

issue and allowed Roberts to present additional evidence. In particular, Roberts

presented testimony from Springfield Police Lieutenant Brad Moos regarding the

computer search allegedly performed by Anderson before commencing the traffic stop.

Moos testified that he had reviewed Anderson’s portable-data-terminal search results for

the day in question and had found no evidence of any search performed on Roberts.

Moos testified that if Anderson in fact had conducted a “LEADS” search on Roberts, it

would have been reflected on a printout that Moos had reviewed. Therefore, Moos opined

that Anderson had not conducted a LEADS check on Roberts through the portable data

terminal in Anderson’s police cruiser. Based on Moos’ testimony, Roberts argued that the

traffic stop was unlawful because Anderson lacked reason to believe Roberts’ license
                                                                                             -4-


remained suspended when Anderson initiated the traffic stop. Therefore, Roberts argued

that all evidence seized following the traffic stop, particularly the firearm, was subject to

suppression.

       {¶ 6} The trial court rejected Roberts’ argument. Although it expressed “some

concern regarding the probable cause of the stop,” the trial court concluded that Roberts

subsequently had “abandoned” the firearm during the foot chase and, therefore, lacked

standing to challenge its admissibility. (See, e.g., Sept. 15, 2015 Tr. at 3-4). The trial court

proceeded to make a finding of guilt on the weapon-under-disability charge to which

Roberts had pled no contest. The trial court subsequently imposed a three-year prison

sentence. (Judgment Entry, Doc. #31).

       {¶ 7} On appeal, Roberts relies on Moos’ testimony and insists that Anderson

lacked probable cause to make a traffic stop. In connection with this argument, Roberts

insists that Anderson’s knowledge of his license being suspended six to twelve months

earlier was too stale to justify a stop. Thus, according to Roberts, any item seized as a

result of the stop normally would be subsect to suppression. Roberts acknowledges,

however, when a defendant abandons property, the act of abandonment negates any

Fourth Amendment expectation of privacy, meaning that suppression is not required even

if the act of abandonment follows an attempted unlawful stop. Roberts insists that this

exception does not apply here because he did not “abandon” the firearm. Instead, he

reasons that he “tampered with” the firearm when he discarded it. In support, he notes

the parties’ stipulation of facts above, which referenced him trying to tamper with the

firearm. He argues:

               This is a completely different scenario than abandonment. In
                                                                                -5-


abandonment, one has relinquished all claim to the property. But in this

case, Roberts did not do so. Rather, he attempted to maintain ownership

and possession of the weapon, but did so by trying to conceal the weapon

from the officer. The attempt to conceal evidence of a crime when one

knows that there is a police investigation going on is the definition of

tampering with evidence. That is precisely what took place here. Roberts

knew, because he was involved in a foot chase with an officer in hot pursuit,

that an investigation was underway. He further knew that he was a

convicted felon with no right to possess a weapon and that he had a weapon

on him. So, his solution was to try to hide the weapon. It is critical to

remember that the State and the Defense stipulated that these were the

facts. The facts as given and stipulated to the court were that Roberts

tampered with evidence. No facts were presented by the State that

Roberts abandoned the weapon, and the defense did not stipulate that the

weapons [sic] were abandoned. There was no testimony that the weapon

was abandoned, only an assertion by the prosecutor later when it became

apparent that if the case sank or swam on the vehicle stop he had a bad

case.

        This court, to counsel’s knowledge, has never considered the effect

of tampering with evidence as to abandonment. However, one cannot

tamper with property that you do not have or possess or control. The State

indicted for tampering with evidence. The State asserted as its factual basis

for the weapon under disability that Roberts tampered with evidence for the
                                                                                            -6-


       purpose of hiding it. The State has therefore established that Roberts had

       no intention of abandoning the property, but was rather tampering with

       evidence to avoid being caught with it.

              Since Roberts was tampering with evidence, and not abandoning the

       weapon, he in fact was seized and the weapon was seized after he was in

       their physical control. This search, then, still flows from the illegal stop which

       had no probable cause, nor even a reasonable suspicion. As such, it is

       fruit from the poisonous tree and must be excluded.

              Without the weapon, there of course is no basis to convict for a

       weapons under disability. The Motion to Suppress the weapon should

       have been upheld and the weapon excluded from evidence.

(Appellant’s brief at 9-10).

       {¶ 8} Upon review, we find Roberts’ argument to be unpersuasive. We will assume,

as the trial court apparently did, that Anderson’s traffic stop was without justification.

Despite that fact, Roberts appears to concede that he was not “seized” until after he

discarded his firearm. (Appellant’s brief at 8) (“Case law in this District and elsewhere has

established that a seizure * * * does not occur until an officer uses physical force and

places hands on the defendant.”). Although Roberts stopped his car, he did not then

submit to Anderson’s show of authority. Instead, he exited his vehicle and continued his

flight from the officer on foot.1 See, e.g., United States v. Ray, 597 Fed.Appx. 832, 837-


1 Even if we were to accept that the act of stopping Roberts’ car itself constituted a
momentary seizure, Roberts was not seized when he proceeded to flee on foot and
discard the firearm. Hodari D., 499 U.S. 621, at 625 (“To say that an arrest is effected by
the slightest application of physical force, despite the arrestee’s escape, is not to say that
for Fourth Amendment purposes there is a continuing arrest during the period of fugitivity.
                                                                                       -7-


838 (6th Cir.2015) (citing cases and finding no “seizure” when, in response to a traffic

stop, the defendant stopped his car and proceeded to flee on foot); see also California v.

Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that cocaine

discarded while the defendant was fleeing from police was not the fruit of a “seizure” and

therefore was not subject to suppression even if the attempted stop was unlawful).

      {¶ 9} This court itself addressed the foregoing issue in State v. Wynn, 2d Dist.

Montgomery No. 24253, 2011-Ohio-1832, reasoning:

             When property is abandoned in the course of a police pursuit

      undertaken to effect an illegal detention, is it then reasonable to not

      suppress evidence of the property that was abandoned? That seems to be

      the gist of Defendant’s argument on appeal.

             That issue was more recently resolved by the United States Supreme

      Court in California v. Hodari D. (1991), 499 U.S. 621, 113 L.Ed.2d 690, 111

      S.Ct. 1547. On similar facts, the Supreme Court held that, even where a

      police pursuit was not based on reasonable suspicion, cocaine the suspect

      discarded during the course of the pursuit was not the fruit of a “seizure”

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

      quintessential   seizure   of   the   person   under   Fourth   Amendment

      jurisprudence—requires either (a) the application of physical force with

      lawful authority, or (b) submission to the assertion of authority; (2) the

      accused had not been touched by the officer at the time he discarded the


If, for example, Pertoso had laid his hands upon Hodari to arrest him, but Hodari had
broken away and had then cast away the cocaine, it would hardly be realistic to say that
the disclosure had been made during the course of an arrest.”).
                                                                                         -8-


       cocaine; and (3) assuming that the officer’s pursuit of the accused

       constituted a show of authority enjoining the accused to halt, the accused

       did not comply with that injunction and therefore was not seized until the

       officer tackled him.

Id. at ¶17-18.

       {¶ 10} The same analysis applies here. Under the reasoning of Hodari D., Roberts

concedes that if he “abandoned” his firearm while being chased, the weapon would not

be subject to suppression even if Anderson lacked lawful authority to seize him.

(Appellant’s brief at 8) (“If Roberts abandoned the weapon, then this court’s precedent

would dictate [that] result.”).

       {¶ 11} Roberts’ only argument on appeal is that he did not “abandon” the firearm.

He asserts instead that he “tampered” with it. In support, he cites the parties’ stipulation

of fact that he tried to tamper with the firearm by throwing it to the ground so that police

would not discover it. Implicit in Roberts’ argument is the proposition that a person cannot

simultaneously “abandon” evidence and “tamper” with it. We disagree.

       {¶ 12} “Abandonment” of property in the present context primarily involves a

question of intent, which may be inferred. State v. Freeman, 64 Ohio St.2d 291, 297, 414

N.E.2d 1044 (1980). “ ‘The issue is not abandonment in the strict property-right sense,

but whether the person prejudiced by the search had voluntarily discarded, left behind, or

otherwise relinquished his interest in the property in question so that he could no longer

retain a reasonable expectation of privacy with regard to it at the time of the search.’ ”

(Citations omitted.) Id. The legal effect of abandonment is to deprive a defendant of

standing to challenge the admissibility of the evidence he abandoned. Id. at 298.
                                                                                       -9-




       {¶ 13} Here we harbor no doubt that Roberts “abandoned” the firearm in his

possession when he threw it to the ground while being pursued by police, thereby

relinquishing any reasonable expectation of privacy in it. We see no reason why that act

of abandonment could not also constitute evidence tampering, which involves, inter alia,

concealing or removing any thing with the purpose to impair its availability as evidence.2

R.C. 2912.12(A)(1). In other words, when Roberts discarded the firearm he abandoned it

and, by so doing, also concealed or removed it to impair its availability as evidence

against him. Stated differently, Roberts tampered with evidence by abandoning it prior to

his seizure. See, e.g., State v. Bussle, 11th Dist. Portage No. 2009-P-0061, 2010-Ohio-

4943, ¶65 (“The number of Ohio courts which have upheld convictions for Tampering with

Evidence based on similar factual patterns, i.e. defendants abandoned drugs in their

possession while in flight from the police, is considerable.”).

       {¶ 14} Based on the reasoning set forth above, we find Roberts’ argument to be

unpersuasive. His assignment of error is overruled, and the judgment of the Clark County

Common Pleas Court is affirmed.

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

DONOVAN, P.J., and FAIN, J., concur.

Copies mailed to:

Megan M. Farley
Brian S. Hicks

2 We note that Roberts was convicted of having a weapon while under disability, not
evidence tampering, and we express no opinion as to whether he actually committed the
offense of evidence tampering. We will address his argument, however, because he
contends the parties’ stipulation that he tried to tamper with evidence when he discarded
the firearm necessarily precludes a finding of abandonment.
                          -10-


Hon. Richard J. O’Neill
