[Cite as State v. Lee, 2019-Ohio-3904.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                  :

                 Plaintiff-Appellee,            :
                                                                No. 18AP-666
v.                                              :            (C.P.C. No. 17CR-4633)

Dumah M. Lee,                                   :         (REGULAR CALENDAR)

                 Defendant-Appellant.           :



                                          D E C I S I O N

                                   Rendered on September 26, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee. Argued: Sheryl L. Prichard.

                 On brief: Yeura R. Venters, Public Defender, and Timothy E.
                 Pierce, for appellant. Argued: Timothy E. Pierce.

                   APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Defendant-appellant, Dumah M. Lee, appeals from a judgment of the
Franklin County Court of Common Pleas convicting appellant of carrying a concealed
weapon, in violation of R.C. 2923.12, a felony of the fourth degree. For the reasons that
follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} The parties presented the following evidence at the evidentiary hearing on
appellant's motion to suppress. Jonathan Dillon is a detective with the special investigation
unit of the Franklin County Sheriff's Office. Dillon testified that on April 3, 2017, he had
parked his marked police cruiser in the Westland Mall parking lot in Franklin Township.
At approximately 2:14 p.m., Dillon was conversing with the Franklin Township Police Chief
No. 18AP-666                                                                                  2


when a call came over the radio dispatching a unit to the Westland Mall location to
investigate a possible domestic disturbance at the local Bob Evans restaurant.
           {¶ 3} According to Dillon, he then observed a man walking with a woman in the
mall parking lot. As Dillon approached the couple, he observed the man yelling at his
female companion and pointing his finger in her face in a "very aggressive manner." (Tr. at
10.) Dillon could also see that the man had a black backpack over his shoulders. Dillon
made a courtroom identification of appellant as the man he approached in the Westland
Mall parking lot on April 3, 2017.
           {¶ 4} According to Dillon, he asked appellant to step away from the woman, but
appellant ignored his request and kept screaming at the woman and pointing his finger in
her face. When Dillon attempted to grab appellant's arm in an effort to steer him away from
the woman, appellant resisted Dillon by pulling his arm away. Dillon responded
affirmatively when the prosecutor asked him: "[A]t that time, did you have reason to think
that [appellant] may have the ability to either harm you, himself or maybe others around
him at that time?" (Tr. at 12.) Dillon testified he and Chief Smith proceeded to forcibly
secure appellant against the hood of Dillon's cruiser and place him in handcuffs.
           {¶ 5} When Smith asked appellant if he had any weapons on him, he told the
officers that he had a firearm. Dillon then asked appellant where the firearm was located,
and appellant told him it was in the backpack. At some point during the exchange, Dillon
conducted a pat-down search of appellant's person, which included searching appellant's
pockets. A search of the backpack revealed a ski mask, a small amount of marijuana, and a
loaded handgun.
           {¶ 6} On cross-examination, Dillon acknowledged he did not know who made the
report of possible domestic disturbance, and his search of appellant's person included the
inside of his pockets. Dillon was not certain of the point in time he conducted the pat-down
search relative to appellant's admission that he had a firearm.1 Dillon told appellant's trial


1   Dillon testified as follows:
                    Q. And you patted him down?
                    A. Yes.
                    Q. That involved going in his pockets?
                    A. Yes.
                    Q. Okay. And while you were going through his pockets, he said he had a
                    gun in his book bag; is that right?
No. 18AP-666                                                                                    3


counsel that appellant was not free to leave at the point in time when Dillon attempted to
grab appellant's arm. Dillon's narrative report describing the arrest was admitted into
evidence, at appellant's request, as Defendant's Exhibit A.2 The narrative report provides,
in relevant part, as follows:
                  On 4/3/2017, FCSO Det. Dillon was dispatched to a possible
                  domestic dispute in the parking lot of the Westland Mall. Det.
                  Dillon arrived and observed the two individuals matching the
                  description walking in front of the building. Det. Dillon
                  approached them from the rear and the male suspect, later
                  identified as Dumah Lee * * *, was screaming in the face of
                  the female half. Det. Dillon asked Mr. Lee to step away from
                  the female and Mr. Lee refused. Det. Dillon took hold of Mr.
                  Lee's right arm in an attempt to separate the two individuals.
                  Mr. Lee became combative and tried to fight with Det. Dillon.
                  Mr. Lee was secured on the hood of Det. Dillon's vehicle by
                  Det. Dillon and Franklin Twp. Chief Smith. Mr. Lee was
                  handcuffed and while being patted down stated he had a
                  9mm handgun on him. Det. Dillon recovered a Hi Point
                  9mmfirearm serial number P1743481 from Mr. Lee's
                  backpack.
(Emphasis added.) (Def.'s Ex. A.)
          {¶ 7} On cross-examination, Dillon testified when he finally had the chance to
question appellant's female companion about the incident with appellant, she stated
appellant had not engaged in any physical violence, just shouting and gesturing.
          {¶ 8} The trial court ruled from the bench and denied appellant's motion to
suppress. The trial court announced its decision as follows:


                  A. I don't know if it was at the same time I was going through his pockets.
                  It was as he was secured on the hood, the handcuffs, Ms. -- or Chief Smith
                  asked him if he had any weapons.
(Tr. at 19.)
2The   transcript of the suppression hearing contains the following exchange:
                  THE COURT: Does the defense wish to call any witnesses?
                  [APPELLANT'S COUNSEL]: No, Your Honor, but we would move for
                  admission of Defendant's Exhibit A.
                  THE COURT: Okay.
                  ***
                  THE COURT: What was Defense Exhibit A?
                  [APPELLANT'S COUNSEL]: That's the narrative summary by the officer.
                  ***
                  THE COURT: Okay. Then that is admitted, and the State's exhibits are
                  admitted.
(Tr. at 22-23.)
No. 18AP-666                                                                            4


              Okay. Well, I agree with the defense the way it started out,
              that a public argument is not a criminal activity. Simply two
              people yelling at each other certainly wouldn't give an officer
              any right to frisk.
              But as so often happens, things build up; and I think when the
              defendant tried to pull away from him when he took his arm
              – you know, an officer shows up and there's a heated
              argument going on between a male and female, you can't just
              walk away from that. You got to try to break it up.
              And then when he tried to break it up and the defendant
              resisted, then the situation changed. When the defendant
              ignored him and continued to yell at the woman, they had to
              physically separate them by putting him over the hood of a car
              and felt that they had to make an arrest. So that being the case,
              they obviously had a right to check to see if he was armed.
              So I'm going to deny the motion to suppress.
(Tr. at 30-31.)
       {¶ 9} Appellant subsequently pleaded no contest to the charge of carrying a
concealed weapon, and the trial court sentenced appellant to a one-year term of community
control under basic supervision. Appellant timely appealed to this court from the judgment
of conviction and sentence.
II. ASSIGNMENT OF ERROR
       {¶ 10} Appellant assigns the following as trial court error:
              Before their seizure of the firearm law enforcement officials
              had arrested [appellant] without probable cause. All evidence
              obtained as a result of this unlawful arrest should have been
              suppressed as fruit of the poisonous tree under the Fourth and
              Fourteenth Amendments of the United States Constitution
              and Article I, Sections 14 and 16 of the Ohio Constitution.
III. STANDARD OF REVIEW
       {¶ 11} The Supreme Court of Ohio articulated the general standard of review for a
motion to suppress in State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372. State v.
Morales, 10th Dist. No. 17AP-807, 2018-Ohio-3687. In Burnside, the court stated:
              Appellate review of a motion to suppress presents a mixed
              question of law and fact. When considering a motion to
              suppress, the trial court assumes the role of trier of fact and is
              therefore in the best position to resolve factual questions and
              evaluate the credibility of witnesses. Consequently, an
No. 18AP-666                                                                                 5


              appellate court must accept the trial court's findings of fact if
              they are supported by competent, credible evidence.
              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.
(Citations omitted.) Id. at ¶ 8-9.
IV. LEGAL ANALYSIS
       A. Appellant's Assignment of Error
       {¶ 12} In appellant's sole assignment of error, appellant argues that police did not
have probable cause to arrest him and that the firearm seized in the search of appellant's
backpack must be excluded from evidence as the fruit of an illegal search. We disagree.
       {¶ 13} "Under the Fourth Amendment, warrantless searches are per se
unreasonable without prior approval by a judge or magistrate, subject to only a few specific
exceptions." State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, ¶ 15, citing Arizona v. Gant,
556 U.S. 332, 338 (2009), citing Katz v. United States, 389 U.S. 347, 357 (1967). One such
exception is a "search incident to a lawful arrest." Leak at ¶ 15. See also State v. Edwards,
10th Dist. No. 15AP-879, 2016-Ohio-4771, ¶ 19. "The exception for a search incident to a
lawful arrest has two rationales: officer safety and ' "safeguarding evidence that the arrestee
might conceal or destroy." ' " Id. at ¶ 13, quoting Leak at ¶ 16, quoting State v. Adams, 144
Ohio St.3d 429, 2015-Ohio-3954, ¶ 182, citing Gant at 338-39.
       {¶ 14} "A warrantless arrest that is based upon 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). " 'A search incident
to arrest is not only an exception to the warrant requirement; it is also a reasonable search
under the United States and Ohio Constitutions.' " State v. Johnson, 10th Dist. No. 16AP-
689, 2017-Ohio-5527, ¶ 11, quoting State v. White, 10th Dist. No. 07AP-246, 2007-Ohio-
7143, ¶ 11, citing United States v. Robinson, 414 U.S. 218, 235 (1973); State v. Mathews, 46
Ohio St.2d 72, 74-75 (1976).
       {¶ 15} "The test for probable cause to justify an arrest is 'whether at that moment
the facts and circumstances within [the officers'] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing
that the [arrestee] had committed or was committing an offense.' " State v. Hunt, 10th Dist.
No. 18AP-666                                                                                  6


No. 06AP-879, 2007-Ohio-3738, ¶ 15, quoting Beck v. Ohio, 379 U.S. 89, 91 (1964). "In
determining whether probable cause to arrest existed, a reviewing court should examine
the 'totality of the circumstances.' " Hunt at ¶ 15, quoting Illinois v. Gates, 462 U.S. 213,
230-31 (1983). "Probable cause is a lesser standard of proof than that required for a
conviction, such as proof beyond a reasonable doubt or by a preponderance of the
evidence." Hunt at ¶ 15, citing State v. Young, 146 Ohio App.3d 245, 254 (11th Dist.2001).
       {¶ 16} "An arrest occurs when the following four requisite elements are involved:
(1) an intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual
or constructive seizure or detention of the person, and (4) which is so understood by the
person arrested." Columbus v. Beasley, 10th Dist. No. 17AP-629, 2019-Ohio-719, ¶ 58,
citing State v. Darrah, 64 Ohio St.2d 22, 26 (1980). See State v. Edwards, 10th Dist. No.
15AP-879, 2016-Ohio-4771, ¶ 18. " '[A]n officer need not state, "You are under arrest." ' "
Beasley at ¶ 58, quoting Columbus v. Clark, 10th Dist. No. 14AP-719, 2015-Ohio-2046,
¶ 34, quoting State v. Carroll, 162 Ohio App.3d 672, 2005-Ohio-4048, ¶ 14 (1st Dist.).
" 'Rather, arrest "signifies the apprehension of an individual or the restraint of a person's
freedom in contemplation of the formal charging with a crime." ' " Beasley at ¶ 58, quoting
Clark at ¶ 34, quoting Darrah at 26.
       {¶ 17} "Ultimately, 'the point at which an arrest occurs depends on the
circumstances of the particular case.' " Beasley at ¶ 59, quoting Columbus v. Galang, 10th
Dist. No. 02AP-1441, 2003-Ohio-4506, ¶ 16, citing State v. Finch, 24 Ohio App.3d 38, 39
(12th Dist.1985). " 'The point at which an investigative detention exceeds its permissible
scope and rises to the level of a full-fledged arrest is decided on a case-by-case basis.' "
Beasley at ¶ 59, quoting In re Parks, 10th Dist. No. 04AP-355, 2004-Ohio-6449, ¶ 10.
"Factors to be considered in distinguishing an investigative stop from a de facto arrest
include the seriousness of the crime, the location of the encounter, the length of the
detention, the reasonableness of the officer's display of force, and the conduct of the suspect
as the encounter unfolds." (Citations omitted.) Edwards at ¶ 19. For example, "the use of
handcuffs, while a significant factor in determining whether an individual is subject to an
investigatory stop or de facto arrest, is not automatically conclusive." Beasley at ¶ 64, citing
Columbus v. Dials, 10th Dist. No. 04AP-1099, 2005-Ohio-6305, ¶ 29; Edwards at ¶ 19;
State v. Davis, 10th Dist. No. 08AP-102, 2008-Ohio-5756, ¶ 13.
No. 18AP-666                                                                               7


       {¶ 18} The trial court concluded that Dillon had probable cause to arrest appellant
when he and Smith secured appellant against the hood of Dillon's police cruiser and
handcuffed him. At the suppression hearing, Dillon testified as follows:
               Q. Now, Detective, from this encounter you had with Mr. Lee,
               what type of arrestable offenses can you think of in terms of
               misdemeanors that you can think of off the top of your head
               or even felonies?
               A. On the first approachment, when he refused my order, he
               was obstructing my investigation.
               Q. Okay.
               A. And then the failure to comply when I gave him an order.
               Q. Okay.
               A. And those are both misdemeanors, both arrestable.
(Tr. at 14.)
       {¶ 19} Based on the evidence in the record, we agree with the trial court that Dillon
had probable cause to arrest appellant when he and Smith secured appellant against the
hood of Dillon's cruiser and placed him in handcuffs. The offense of obstructing official
business is defined in R.C. 2921.31 as follows:
               (A) No person, without privilege to do so and with purpose to
               prevent, obstruct, or delay the performance by a public official
               of any authorized act within the public official’s official
               capacity, shall do any act that hampers or impedes a public
               official in the performance of the public official’s lawful duties.
               (B) Whoever violates this section is guilty of obstructing
               official business. Except as otherwise provided in this
               division, obstructing official business is a misdemeanor of the
               second degree. If a violation of this section creates a risk of
               physical harm to any person, obstructing official business is a
               felony of the fifth degree.
       {¶ 20} "The elements of the offense of obstructing official business are an
unprivileged act by the defendant, done with a purpose to prevent, obstruct or delay the
performance of a public official, and a showing that such act actually hampers or impedes
the public official in the performance of his or her duties." State v. Zefi, 10th Dist. No.
00AP-950 (Mar. 15, 2001). Accordingly, "one cannot be guilty of obstructing official
business by doing nothing because the text of R.C. 2921.31 specifically requires the offender
to act." (Citations omitted.) Id. "Purposely obstructing official business is determined
No. 18AP-666                                                                                8


from the manner in which it is done, the means used, and all other facts and circumstances
in evidence." State v. Grooms, 10th Dist. No. 03AP-1244, 2005-Ohio-706, citing State v.
Puterbaugh, 142 Ohio App.3d 185 (4th Dist.2001), citing State v. Hardin, 16 Ohio App.3d
243 (10th Dist.1984). The intent to obstruct, delay, or prevent a public official from
carrying out his or her duties may be inferred from appellant's actions. State v. Partee,
10th Dist. No. 17AP-804, 2018-Ohio-3878, ¶ 26.
       {¶ 21} In N. Ridgeville v. Reichbaum, 112 Ohio App.3d 79, 85 (9th Dist.1996),
officers were dispatched to defendant's residence following a complaint of a disturbance.
The evidence showed that defendant repeatedly answered questions the investigating
officer posed to his daughter and shouted so that the officer could not obtain the daughter's
version of the events that had precipitated the disturbance call. The evidence also showed
that, despite several warnings by the investigating officer, defendant continued to interrupt,
resisted suggestions that he go into his house to be questioned, and refused to be led away
from his daughter after being informed that an investigation of the complaint had to be
conducted. The arresting officer testified he arrested defendant when another officer could
not subdue defendant so that he could conduct an investigation.
       {¶ 22} The trial court convicted defendant of obstructing official business. In his
appeal, defendant alleged his conviction was not supported by sufficient evidence. In
rejecting that claim, the court noted that there was "abundant evidence produced at trial
that the defendant committed multiple acts which impeded the officers' investigation." Id.
at ¶ 86. The Ninth District Court of Appeals determined that "it is clear that the officers
had probable cause to arrest the defendant for obstructing official business." Id.
       {¶ 23} In State v. Williams, 5th Dist. No. 01-CA-00026 (Dec. 12, 2001), the Fifth
District Court of Appeals addressed a similar issue to the one presented in this case. In
Williams, defendant sought review of the trial court judgment convicting him of possession
of crack cocaine and preparation of drugs for sale. Defendant contended that the trial court
erred when it denied his motion to suppress evidence obtained by a police officer on the
ground that the evidence was obtained in violation of the Fourth Amendment.
       {¶ 24} In Williams, officers were assisting a bailiff in an eviction when they saw
defendant packing up items located near a bong that was sitting on a table. When one of
the officers asked defendant for identification, he pushed his way past the officer and,
No. 18AP-666                                                                                  9


contrary to the officer's explicit instructions, placed his hand in his pocket. A scuffle ensued
between the officer and the defendant, whereon defendant was handcuffed and placed
under arrest. During the search of defendant's person, police found a large bag of crack
cocaine.
       {¶ 25} In affirming appellant's conviction, the Fifth District held a search of
defendant's person was constitutionally valid as a search incident to defendant's lawful
arrest on the charge of obstructing official business. Id. The Fifth District determined that,
under the circumstances, officers had probable cause to believe that defendant had
obstructed official business in violation of R.C. 2921.31(A). Id.
       {¶ 26} This court has also decided a case involving a motion to suppress evidence
uncovered in a warrantless search incident to an arrest for obstructing official business. In
Zefi, police stopped defendant's vehicle after observing that the rear license plate was not
illuminated. The evidence showed that defendant subsequently refused to produce his
license or to cooperate with officers. The evidence also showed that defendant intentionally
increased the volume of his car stereo at least twice while the officers attempted to gather
information as to his identity so they could determine if defendant had a valid driver's
license and issue a traffic citation.
       {¶ 27} In Zefi, this court noted that a mere refusal to answer questions does not
amount to obstructing official business, but where an individual takes affirmative action to
hamper or impede the police from finding out his or her identity, the defendant may be
found guilty of obstructing official business. Id. In affirming the trial court, this court
found, under the circumstances, the officers had probable cause to believe defendant
committed the offense of obstructing official business. Id.
       {¶ 28} Here, the evidence supports the trial court's determination that Dillon had
probable cause to arrest appellant for obstructing official business prior to the time he
conducted the search of appellant's person and backpack. The undisputed evidence shows
appellant did more than simply refuse to speak with Dillon. Rather, appellant ignored
Dillon's oral command to step away from his female companion and then either pulled
away from Dillon or became combative and tried to fight with Dillon when Dillon tried to
separate appellant from the woman in order to investigate the possible domestic
disturbance. In our view, this evidence is sufficient to warrant a prudent individual in
No. 18AP-666                                                                              10


Dillon's position to believe that appellant had committed an affirmative, unprivileged act
with a purpose to prevent, obstruct, or delay Dillon's performance of his investigation into
a reported domestic disturbance. The evidence further showed appellant's conduct actually
hampered or impeded Dillon's effort to interview appellant's female companion.
       {¶ 29} Based on the foregoing, we hold that the weight of the evidence supports the
trial court's finding that prior to the point in time when Dillon and Smith secured appellant
on the hood of Dillon's cruiser and handcuffed appellant, Dillon had probable cause to
arrest appellant for obstructing official business. On this record, we agree with the trial
court that Dillon placed appellant under arrest and that Dillon's subsequent search of
appellant's person and backpack was a constitutionally reasonable search incident to a
lawful arrest. Accordingly, we hold the trial court did not err when it determined the
firearm uncovered in the search of appellant's backpack should not be suppressed pursuant
to exclusionary rule.
       {¶ 30} Having determined that Dillon had probable cause to arrest appellant for
obstructing official business, we need not address the alternative argument of plaintiff-
appellee, State of Ohio, based on the rule of law in Terry v. Ohio, 392 U.S. 1 (1968).
Similarly, having determined that Dillon had probable cause to arrest appellant for
obstructing official business, we need not address appellant's argument that Dillon did not
have probable cause to arrest appellant for failing to comply with an order or signal of a
police officer. See R.C. 2921.331.
       {¶ 31} For the foregoing reasons, appellant's sole assignment of error is overruled.
V. CONCLUSION
       {¶ 32} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                           BROWN and DORRIAN, JJ., concur.
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