[Cite as State v. Taylor, 2019-Ohio-2018.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellant,              :               No. 18AP-7
                                                               (C.P.C. No. 17CR-2375)
v.                                                 :
                                                          (REGULAR CALENDAR)
Guy Taylor,                                        :

                 Defendant-Appellee.               :




                                             D E C I S I O N

                                       Rendered on May 23, 2019


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

                 On brief: Yeura R. Venters, Public Defender, and Ian J.
                 Jones, for appellee. Argued: Ian J. Jones.

                   APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.

        {¶1}     The State of Ohio, plaintiff-appellant, appeals from a judgment of the
Franklin County Court of Common Pleas, in which the court granted the motion to
suppress evidence filed by Guy Taylor, defendant-appellee.
        {¶2}     A confidential informant ("informant") contacted the Whitehall Police
Department ("WPD" or "police") and told them appellee was selling heroin. Using the
informant, police conducted a controlled buy of heroin from appellee. On November 20,
2016, and within 72 hours of the controlled buy, police obtained a search warrant for
appellee's residence. On November 22, 2016, police executed the search warrant using
their "swoop" policy. Pursuant to the swoop policy, police waited for appellee to exit his
No. 18AP-7                                                                                 2

residence, get into his vehicle, and travel about two blocks away from his residence. Police
then initiated a traffic stop of appellee's vehicle. Police informed appellee they had a
search warrant for his residence. Appellee told police that, although he had no drugs at his
residence, he did have heroin on his person. Police searched appellee and confiscated a
bag of heroin.
       {¶3}      Appellee was indicted on one count of trafficking in heroin and one count of
possession of heroin, both fourth-degree felonies. On October 20, 2017, appellee filed a
motion to suppress evidence with regard to the heroin police confiscated from his person
during the traffic stop. Appellee argued the search warrant for his residence did not
authorize police to initiate a traffic stop.
       {¶4}      On December 15, 2017, the trial court held a hearing on appellee's motion to
suppress. At the hearing, WPD Sergeant Jonathan Earl testified on behalf of the state
regarding the circumstances surrounding the informant, search warrant, and traffic stop.
Appellee did not cross-examine Sergeant Earl, call any witnesses, or present any evidence.
       {¶5}      On December 28, 2017, the trial court issued a decision in which it granted
appellee's motion to suppress. The court first found that, pursuant to Bailey v. United
States, 568 U.S. 186 (2013), appellee could not be detained pursuant to the search
warrant because such detainments must be made within the immediate vicinity of the
premises. The court then found police could not stop appellee's vehicle because they did
not have reasonable suspicion pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and they did
not have probable cause to arrest appellee. The court also found the swoop policy was
unconstitutional under the Fourth Amendment, and exclusion of the evidence was the
only meaningful remedy to correct this violation.
       {¶6}      The state appeals the judgment of the trial court, asserting the following
three assignments of error:
                 [I.] THE TRIAL COURT ERRED AND ABUSED ITS
                 DISCRETION WHEN IT GRANTED THE MOTION TO
                 SUPPRESS BASED ON THE FAILURE TO OBTAIN AN
                 ARREST WARRANT FOR DEFENDANT'S PUBLIC ARREST.

                 [II.] THE TRIAL COURT ERRED AND ABSUSED ITS
                 DISCRETION IN CONCLUDING THAT REASONABLE
                 SUSPICION WAS LACKING TO ENGAGE IN A TERRY
                 STOP.
No. 18AP-7                                                                                 3

              [III.] THE TRIAL COURT ERRED AND ABUSED ITS
              DISCRETION WHEN IT EXCLUDED THE EVIDENCE IN
              THE ABSENCE OF A CULPABLE VIOLATION OF THE
              FOURTH AMENDMENT.

       {¶7}   The state argues in its first assignment of error the trial court erred when it
granted the motion to suppress based on the failure to obtain an arrest warrant for
appellee's public arrest. An appellate review of a ruling on a motion to suppress evidence
presents mixed questions of law and fact. State v. Long, 127 Ohio App.3d 328, 332 (4th
Dist.1998). During a suppression hearing, the trial court assumes the role of the trier of
fact and is therefore in the best position to resolve questions of fact and evaluate witness
credibility. State v. Mills, 62 Ohio St.3d 357, 366 (1992); State v. Hopfer, 112 Ohio App.3d
521, 548 (2d Dist.1996). As a result, an appellate court must accept a trial court's factual
findings if they are supported by competent and credible evidence. State v. Guysinger, 86
Ohio App.3d 592, 594 (4th Dist.1993). The reviewing court must then review the trial
court's application of the law de novo. State v. Russell, 127 Ohio App.3d 414, 416 (9th
Dist.1998).
       {¶8}   In the present case, the state argues there existed probable cause for the
police to arrest appellee. Warrantless searches are unreasonable per se, subject only to a
few specifically established and well-delineated exceptions. State v. Kessler, 53 Ohio St.2d
204, 207 (1978). A warrantless arrest that is based on probable cause and occurs in a
public place does not violate the Fourth Amendment. State v. Brown, 115 Ohio St.3d 55,
2007-Ohio-4837, ¶ 66, citing United States v. Watson, 423 U.S. 411 (1976). R.C. 2935.04
provides that "[w]hen a felony has been committed, or there is reasonable ground to
believe that a felony has been committed, any person without a warrant may arrest
another whom he has reasonable cause to believe is guilty of the offense, and detain him
until a warrant can be obtained." Probable cause for a warrantless arrest exists "if all the
facts and circumstances within the officer's knowledge were sufficient to cause a prudent
person to believe that the individual has committed or was committing an offense." State
v. Dingess, 10th Dist. No. 01AP-1232, 2002-Ohio-2775, ¶ 9, citing Ornelas v. United
States, 517 U.S. 690, 696 (1996). "A warrantless arrest does not require the officer's
absolute knowledge that a crime has been committed; it requires only a reasonable belief
based on the totality of the circumstances." State v. Grayson, 8th Dist. No. 102057, 2015-
No. 18AP-7                                                                                  4

Ohio-3229, ¶ 19. Furthermore, probable cause is not subjective. State v. Abrams, 12th
Dist. No. CA2007-03-040, 2008-Ohio-94, ¶ 12. "The subjective intentions of the officers
are irrelevant in a probable cause determination." State v. Cabell, 6th Dist. No. L-06-
1026, 2006-Ohio-4914, ¶ 27. Rather, probable cause is viewed under an objective
standard. Abrams at ¶ 12.
       {¶9}   Here, the trial court found police did not have probable cause to arrest
appellee on the date in question. The court held that exigent circumstances did not exist
to justify a warrantless arrest and search of appellee in that the state did not meet the
heavy burden to demonstrate an urgent need to arrest appellee without a warrant. The
court concluded that police had ample opportunity to obtain an arrest warrant for
appellee based on Sergeant Earl's knowledge of the controlled sale to the informant but
strategically decided not to request an arrest warrant in order to utilize their swoop policy.
       {¶10} In its assignment of error, the state asserts police had probable cause to
make a warrantless public arrest of appellee based on their knowledge of the previous
controlled buy. The state points out that police monitored the controlled hand-to-hand
drug transaction involving the informant, police confirmed the drug as heroin, police had
appellee's photograph from his driver's license, and the informant had identified
appellee's photograph. The state argues that, despite the court's finding that police lacked
probable cause to arrest appellee on the date of the search because there were no
attendant exigent circumstances at the time, probable cause still existed at the time of the
stop based on the controlled sale five days prior, and both the Supreme Court of Ohio and
the United States Supreme Court have rejected the need for any exigency requirement for
an arrest warrant for a public arrest based on probable cause.
       {¶11} After reviewing the evidence presented at the suppression hearing and
reviewing pertinent case law, we agree with the state and find the trial court erred when it
found there existed no probable cause here and that exigent circumstances were required
for a warrantless arrest. The facts, as testified to at the hearing, clearly detail the
controlled buy by the informant five days before appellee's arrest. Sergeant Earl testified
that he was informed by the informant that appellee was selling heroin in Whitehall.
Sergeant Earl identified appellee using several law enforcement databases and was able to
identify where appellee was living. Police set up a controlled buy with the informant and
No. 18AP-7                                                                                 5

observed appellee selling heroin to the informant. The informant was someone who had
been reliable multiple times previously. Sergeant Earl testified that, after obtaining a
search warrant for appellee's residence, police allowed appellee to leave his residence in
his vehicle and then a uniformed officer took him "into custody." After appellee told
Sergeant Earl he had heroin on his person, Sergeant Earl "[c]onducted a search incident
to arrest." He testified that, when appellee left his residence, he believed appellee was
involved or may have been involved in criminal activity based on the controlled narcotics
buy.
       {¶12} There can be no serious dispute that the controlled buy provided probable
cause to arrest appellee. The offenses for which appellee was indicted, possession of
heroin and trafficking in heroin, are felony offenses, pursuant to R.C. 2925.11 and
2925.03, respectively. Thus, appellee's offenses clearly fall under the authorization for
warrantless arrests for felony offenses outlined in R.C. 2935.04, as quoted above.
Furthermore, this court, as well as others, has found probable cause under similar
circumstances, even when the controlled buy was remote in time to the arrest. See, e.g.,
State v. Hovatter, 5th Dist. No. 17-CA-37, 2018-Ohio-2254 (there was sufficient probable
cause to arrest the defendant based on the three prior controlled drug transactions
occurring five to six months prior to the arrest); State v. Phillips, 10th Dist. No. 15AP-
1038, 2016-Ohio-5944 (defendant's warrantless arrest was justified as officers had
probable cause to arrest him based on two controlled drug buys from a confidential
informant occurring within 72 hours and 7 days prior to the arrest). Thus, we find
probable cause existed based on the controlled drug buy by the informant.
       {¶13} However, in granting the motion to suppress, the trial court found that, in
addition to probable cause, there must exist exigent circumstances that prevented police
from obtaining an arrest warrant, and police had ample opportunity to obtain an arrest
warrant for appellee based on Sergeant Earl's knowledge of the controlled sale to the
informant five days prior. In support of such proposition, the trial court relied on State v.
VanNoy, 188 Ohio App.3d 89, 2010-Ohio-2845 (2d Dist.), and State v. Heston, 29 Ohio
St.2d 152 (1972). In VanNoy, the Second District Court of Appeals held that a warrantless
arrest "must not only be supported by probable cause, but it must also be shown that
obtaining an arrest warrant beforehand was impracticable under the circumstances, i.e.,
No. 18AP-7                                                                                 6

that exigent circumstances exist." Id. at ¶ 23, citing Heston. In Heston, the Supreme Court
found that a warrantless arrest may be made when a police officer has probable cause to
believe that a felony has taken place and the circumstances must be such as to make it
impracticable to secure a warrant. Id. at 155.
       {¶14} However, this court has never followed VanNoy for the proposition relied
on by appellee and the trial court and has, instead, followed the Supreme Court's decision
in Brown. Similarly, the Fifth District Court of Appeals noted in Hovatter that the Second
District's approach in VanNoy is a minority position and is not the state of the law in
Ohio's Fifth Appellate District, which uniformly follows the Supreme Court's Brown
decision. Hovatter at ¶ 15-16. There is also dissent within the Second District Court of
Appeals as to whether exigent circumstances are required for warrantless arrests made
with probable cause. See State v. Armstead, 2d Dist. No. 26640, 2015-Ohio-5010
(Welbaum, J., dissenting) (Heston has been discredited by Watson and Brown, and
exigent circumstances or an undue delay requirement cannot be imposed on warrantless
arrests made with probable cause). Indeed, in Watson, the United States Supreme Court
specifically refused to find an exigency requirement for warrantless arrests made with
probable cause, finding:
              Congress has plainly decided against conditioning warrantless
              arrest power on proof of exigent circumstances. Law
              enforcement officers may find it wise to seek arrest warrants
              where practicable to do so, and their judgments about
              probable cause may be more readily accepted where backed
              by a warrant issued by a magistrate. But we decline to
              transform this judicial preference into a constitutional rule
              when the judgment of the Nation and Congress has for so long
              been to authorize warrantless public arrests on probable cause
              rather than to encumber criminal prosecutions with endless
              litigation with respect to the existence of exigent
              circumstances, whether it was practicable to get a warrant,
              whether the suspect was about to flee, and the like.

(Citations omitted.) Watson at 423-24. We echoed this finding in Watson in State v.
Salvito, 10th Dist. No. 81AP-152 (Nov. 3, 1981), stating " 'The necessary inquiry, therefore,
was not whether there was a warrant or whether there was time to get [a warrant], but
whether there was probable cause for the arrest.' " Id., quoting Watson at 417. Therefore,
we continue to adhere to the holdings in Brown and Watson that a warrantless arrest that
No. 18AP-7                                                                                  7

is based on probable cause and occurs in a public place does not violate the Fourth
Amendment.
       {¶15} This court addressed similar circumstances in Phillips and found probable
cause existed without any analysis of exigent circumstances. In Phillips, the WPD
obtained a search warrant for the defendant's home based on two prior controlled drug
buys—one within the prior 7 days and one within the prior 72 hours—using a confidential
informant. Following the issuance of the search warrant, police stopped the defendant in
his vehicle after he left the residence identified in the search warrant. At the suppression
hearing, the officer testified that, at the time the defendant was stopped, he still had
probable cause to believe the defendant had committed a drug trafficking offense. He said
that, after stopping the defendant, they arrested him, seized his keys, and used the keys to
open the door of the residence named in the search warrant. The trial court denied the
motion to suppress. On appeal, we considered whether the defendant's warrantless arrest
prior to the execution of the search warrant was proper. We concluded that detention of
the defendant's vehicle and subsequent arrest were justified because the officers had
probable cause to arrest him based on the two prior drug transactions. We found that,
based on the facts and circumstances that were known at the time of the defendant's
detention, a reasonably prudent person would believe the defendant had committed an
offense. Therefore, we held in Phillips, under the totality of the circumstances, probable
cause existed to arrest the defendant without a warrant.
       {¶16} Likewise, in the present case, police had probable cause to stop appellee's
vehicle and initiate an arrest based on the prior controlled drug buy. The prior controlled
drug transaction with the informant was known to police officers at the time they pulled
over appellee's vehicle. Similar to the testifying detective in Phillips, Sergeant Earl
testified here that, when appellee left his residence, he still believed appellee was involved
in criminal activity based on the earlier controlled narcotics purchase. Thus, here, we find
that based on the prior controlled drug buy known to police, a reasonably prudent person
would believe appellee had committed an offense.
       {¶17} Appellee contends police had no actual intent to arrest him but, instead,
only intended to detain him away from the scene of the search warrant while the warrant
was executed. We disagree. There was sufficient evidence provided by the state at the
No. 18AP-7                                                                                  8

hearing to conclude police intended to arrest appellee. Sergeant Earl testified a uniformed
officer took appellee "into custody" and "[c]onducted a search incident to arrest."
Sergeant Earl stated the method they used to apprehend appellee in his vehicle away from
the search warrant site was "a quiet way of arresting a subject." The trial court specifically
found Sergeant Earl's testimony credible, consistent, and uncontroverted, without any
suggestion of bias or motive to lie. The trial court also apparently agreed appellee was
arrested, as it made several references to the fact that appellee was arrested after police
pulled over his vehicle. The state bears the burden of proof on whether a warrantless
arrest was based on probable cause, State v. Otte, 74 Ohio St.3d 555, 559 (1996), and,
here, at the suppression hearing, the state presented the credible testimony of Sergeant
Earl to support a finding that police intended to arrest appellee based on the prior
controlled buy.
       {¶18} We note appellee claims that other circumstances also demonstrate there
was no intent to arrest him after he was pulled over. Appellee contends he was never
charged with anything out of the controlled sale, police did not conform with the
requirements of an arrest under R.C. 2935.07, and a warrant was never obtained
following the arrest as required by Crim.R. 4(E)(2) and (F) and R.C. 2935.03. However,
there was no evidence presented at the suppression hearing with regard to these claims.
Our review on appeal of a motion to suppress is limited to evidence presented at the
suppression hearing. State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, ¶ 45-46
(10th Dist.) (holding that in reviewing a trial court's ruling on a motion to suppress, an
appellate court may only consider evidence that was presented during the suppression
hearing). Although the state bore the burden of proving probable cause, in response,
appellee failed to present any evidence or witnesses at the suppression hearing to
contradict Sergeant Earl's testimony and did not cross-examine Sergeant Earl. Therefore,
we find appellee's unsupported arguments without merit.
       {¶19} Based on all the foregoing, we find the evidence at the suppression hearing
established that police had knowledge of the prior controlled drug buy, police intended to
arrest appellee, and a reasonably prudent person would have believed appellee committed
an offense. Therefore, police had probable cause here, and the trial court erred when it
No. 18AP-7                                                                              9

granted appellee's motion to suppress. The state's first assignment of error is sustained.
Given this determination, the state's second and third assignments of error are moot.
      {¶20} Accordingly, the state's first assignment of error is sustained, the second
and third assignments of error are rendered moot, the judgment of the Franklin County
Court of Common Pleas is reversed, and this matter is remanded to that court for further
proceedings in accordance with law, consistent with this decision.
                                                Judgment reversed and cause remanded.

                          DORRIAN and NELSON, JJ., concur.

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