           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0171P (6th Cir.)
                    File Name: 00a0171p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                 ;
                                  
 UNITED STATES OF AMERICA,
                                  
           Plaintiff-Appellee,
                                  
                                  
                                     No. 99-3394
          v.
                                  
                                   >
 MARLON REED,                     
        Defendant-Appellant. 
                                 1
     Appeal from the United States District Court
    for the Southern District of Ohio at Cincinnati.
   No. 98-00097—Herman J. Weber, District Judge.
                    Argued: April 27, 2000
               Decided and Filed: May 23, 2000
 Before: NORRIS and GILMAN, Circuit Judges; HOOD,
                  District Judge.*
                      _________________
                            COUNSEL
ARGUED: Richard W. Smith-Monahan, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for
Appellant. Timothy D. Oakley, UNITED STATES

    *
     The Honorable Joseph M. Hood, United States District Judge for the
Eastern District of Kentucky, sitting by designation.

                                  1
2    United States v. Reed                       No. 99-3394

ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF:
Richard W. Smith-Monahan, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.
Timothy D. Oakley, UNITED STATES ATTORNEY,
Cincinnati, Ohio, for Appellee.
  HOOD, D. J., delivered the opinion of the court, in which
NORRIS, J., joined. GILMAN, J. (pp. 7-17), delivered a
separate dissenting opinion.
                    _________________
                        OPINION
                    _________________
   JOSEPH M. HOOD, District Judge. On December 14,
1998, Marlon Reed entered a conditional guilty plea to one
count of possession with the intent to distribute crack cocaine
pursuant to 21 U.S.C. § 841(a)(1). As a result of his plea, the
district court sentenced Reed to ninety-two months
incarceration with a three year period of supervised release,
and a fine of $3,500 with a special assessment of $100.
Having reserved his right to appeal the search and seizure
issue in his case, Reed filed a timely appeal of the district
court’s decision to deny his motion to suppress the nineteen
individually wrapped crack cocaine rocks found in a Frito-Lay
bag on Reed’s person. This appeal specifically challenges the
district court’s finding that probable cause for his arrest
existed.
I. Factual Background
  The events leading up to Reed’s arrest are as follows:
Officers Joey Thompson and Robert Horton observed Reed
on the sidewalk premises of a housing development known as
the Butler Metropolitan Housing Authority (hereinafter
“BMHA”). The officers knew Reed by sight from prior
contact with him. Officer Thompson had personally warned
Reed to stay away from the BMHA property on a previous
occasion as Reed was not a resident of the housing
development. Since BMHA’s premises contained twenty-six
No. 99-3394                       United States v. Reed      3

“No Trespassing” signs, the officers approached Reed for the
purpose of arresting him for criminal trespass pursuant to a
Hamilton, Ohio ordinance.
  When Reed attempted to quickly walk away, the officers
subdued him. Officer Thompson then began a “pat down” of
Reed who started to turn his body away. Reed then removed
the Frito-Lay bag containing the crack cocaine, and attempted
to toss it toward a friend standing nearby while
simultaneously stating that he did not want to give up his
“weed.” A female picked up the bag, whereupon Officer
Thompson immediately retrieved it from her. Reed was then
taken to the Hamilton Police Department for booking.
  Prior to trial, Reed filed a motion to suppress the crack
cocaine. The district court determined that probable cause
existed in Reed’s arrest, and denied said motion on the basis
that the evidence was subsequently obtained by the officers
incidental to the arrest. In his appeal, Reed argues that
probable cause was lacking, thereby rendering his arrest
unlawful. Reed further argues that all evidence obtained as a
result of this unlawful arrest should have been suppressed by
the district court.
II. Analysis
   “In reviewing a district court’s determinations on
suppression questions, a district court’s factual findings are
accepted unless they are clearly erroneous; however, the
district court’s application of law to the facts, such as a
finding of probable cause, is reviewed de novo.” United
States v. Thomas, 11 F.3d 620, 627 (6th Cir. 1993).
  The threshold for probable cause is based upon “`factual
and practical considerations of every day life’ [that] could
lead a reasonable person to believe that there is a probability
that an illegal act has occurred or is about to occur.” United
States v. Strickland, 144 F.3d 412, 416 (6th Cir.
1998)(quoting Illinois v. Gates, 462 U.S. 213, 231 (1983).
Officers are not required to rule out every possible
explanation other than a suspect’s illegal conduct before
4      United States v. Reed                       No. 99-3394     No. 99-3394                      United States v. Reed   17

making an arrest. See Strickland, 144 F.3d at 416. However,        probable cause. Consequently, the officers had the right to
an arresting officer must be able to articulate “concrete facts”   stop Reed under Terry and ask him whether he lived on the
from which the “totality of the circumstances” indicates that      property or was visiting a resident. But the officers had no
an arrest is warranted. Id. at 415; Gates, 462 U.S. at 238.        right to immediately arrest him for criminal trespass.
  The denial of Reed’s suppression motion was based on the           I would therefore suppress the evidence of the crack
district court’s finding of probable cause in Reed’s arrest.       cocaine and reverse the judgment of the district court.
Reed argues that probable cause for criminal trespass was
lacking under Hamilton city ordinance § 541.05. Said
ordinance provides in pertinent part:
    (a) No person, without privilege to do so, shall do of the
    following:
    (1) Knowingly enter or remain on the land or premises of
    another;
    (2) Knowingly enter or remain on the land or premises of
    another, the use of which is lawfully restricted to certain
    persons, purposes, modes or hours, when the offender
    knows he is in violation of any such restriction or is
    reckless in that regard;
    (3) Recklessly enter or remain on the land or premises of
    another, as to which notice against unauthorized access
    or presence is given by actual communication to the
    offender, or in a manner prescribed by law, or by posting
    in a manner reasonably calculated to come to the
    attention of potential intruders, or by fencing or other
    enclosure manifestly designed to restrict access;
    (4) Being on the land or premises of another, negligently
    fail or refuse to leave upon being notified to do so by the
    owner or occupant, or the agent or servant of either.
                                ...
    (d) Whoever violated this section is guilty of criminal
    trespass, a misdemeanor of the fourth degree.
  The officers based their finding of probable cause to arrest
Reed for criminal trespass on the following factors: (1) Reed
was given prior warning not to enter BMHA property by
Officer Thompson; (2) Reed was observed on BMHA
property; (3) Reed was not a resident of the BMHA housing
project; (4) there were twenty-six “No Trespassing” signs
16   United States v. Reed                        No. 99-3394      No. 99-3394                              United States v. Reed            5

   Moreover, I believe that my view is consistent with the         posted throughout the BMHA property, providing adequate
spirit of the Supreme Court’s recent unanimous holding in          notice; (5) Reed walked away upon the lawful approach of the
Florida v. J.L., __ U.S. __ , 120 S.Ct. 1375 (2000). In J.L.,      officers. These factors must be measured up to the time at
an anonymous caller telephoned the police to inform them           which Reed thought he was not reasonably “free to leave.”
that they should watch for a black youth in a plaid shirt at a     United States v. Mendenhall, 446 U.S. 544, 554 (1980). The
particular bus stop because he was carrying a gun. Six             factors do not have to establish a prima facie case for criminal
minutes later, officers went to that particular bus stop and       trespass; however, said factors must be sufficient to indicate
found a youth meeting the caller’s description. The officers       to a reasonable person that an illegality has occurred or is
stopped and frisked the suspect, uncovering a firearm. In          about to occur. See Strickland, 144 F.3d at 416.
concluding that the officers did not have a reasonable
suspicion to stop the youth, and that evidence of the firearm         Where probable cause exists, “[a] police officer is
should be suppressed, the Supreme Court commented that             permitted to make an arrest without a warrant for a
“the Fourth Amendment is not so easily satisfied.” Id. at          misdemeanor committed in his presence.” United States v.
1380. If the officers in J.L. did not have a reasonable basis to   Smith, 736 F.3d 1414, 1416 (6th Cir. 1996). The Court finds
conduct even a Terry stop under the circumstances of that          that these five factors constitute the level of evidence
case, then I cannot fathom how the officers in the present case    necessary to establish probable cause for Reed’s arrest. All
have satisfied the Fourth Amendment’s higher probable cause        five factors existed during the time in which Reed was free to
standard in arresting Reed.                                        leave.1 A reasonable officer in the position of either
                                                                   Thompson or Horton could conclude from the totality of the
   Finally, I note the government’s alternative arguments that     circumstances that probable caused existed to arrest Reed for
the crack cocaine should not be suppressed either because (1)      criminal trespass. Although Reed has set forth no controlling
it was in plain view or (2) it was abandoned by Reed. These        authority indicating that the officers must conclude prior to
arguments have little merit. Based on my view that the arrest      the arrest whether Reed enjoyed the privilege of entering or
of Reed was illegal, and because the illegal arrest caused         remaining on BMHA property, we are mindful of the
Reed to remove the Frito-Lay bag from his pocket and throw         discussion during oral argument that Washington v. Blair, 827
it toward a friend standing nearby, the evidence from the bag      P.2d 356 (Wash. Ct. App. 1992), finds probable cause to be
is inadmissible under the “fruits of the poisonous tree”           lacking in circumstances in which an officer had no
doctrine. See Wong Sun v. United States, 371 U.S. 471              knowledge of the existence of privilege prior to an arrest for
(1963) (explaining the doctrine); United States v. Simpson,        criminal trespass. However, we believe the Washington state
944 F. Supp. 1396, 1404 (S.D. Ind. 1996) (holding that if          court decision was based upon a requirement negating the
there is a causal nexus between the police’s misconduct and        affirmative defense of privilege prior to arresting a person for
the “abandonment,” then the evidence must be suppressed);
United States v. Foster, 566 F. Supp. 1403, 1412 (D. D.C.
                                                                       1
1983) (“[A]n abandonment that is the product of police                   According to the dissent, “the fact that Reed started to walk away
misconduct is not voluntary and cannot, therefore, vitiate the     when the officers approached may raise a suspicion that he was engaged
taint of an illegal detention.”).                                  in any one of a multitude of improper activities....” While that may be, the
                                                                   officers were entitled to infer that he was walking away because he knew
                                                                   he was not privileged to be there. They were not required to eliminate all
  In summary, the circumstances presented by this case gave        other reasonable inferences. See Strickland, 144 F.3d 412, 416(6th Cir.
the officers nothing more than a reasonable suspicion to           1998)(stating “[t]o find probable cause, the law does not require that we
believe that Reed was trespassing. This is far short of            rule out every conceivable explanation other than a suspect’s illegal
                                                                   conduct.”)
6     United States v. Reed                        No. 99-3394      No. 99-3394                       United States v. Reed    15

trespass. This Circuit does not require such an added inquiry         Q. All right. So you had approached along with Officer
to the probable cause determination.                                     Thompson to pat down some individuals that you
                                                                         saw standing on BMHA property; is that correct?
III. Conclusion                                                       A. I grabbed my party to pat him down.
                                                                         ...
   There is no indication that the district court’s findings of       Q. And now how many people altogether were there
fact are erroneous. A review of the law applied to said                  when you approached that scene?
findings of fact leads to a determination that the district court     A. Initially there were approximately four, I believe
did not err in refusing to suppress the crack cocaine possessed          four other parties.
by Reed on the night of his arrest. Said evidence was                 Q. And when you approached that scene, was it your
subsequently obtained by Officers Thompson and Horton                    intention to search all four of those people?
incidental to Reed’s arrest. Accordingly, we AFFIRM                   A. We were going to pick up Mr. Reed for sure. I
Reed’s conviction and sentence.                                          could not state what we were going to do with the
                                                                         others.     They started to walk away as we
                                                                         approached.
                                                                      Q. So if they hadn’t walked away, you would have went
                                                                         ahead and done a pat-down on those people also; is
                                                                         that right?
                                                                      A. Probably after we got Mr. Reed into custody, yes.
                                                                      Q. And that’s even though you had no idea whether
                                                                         those other two people were actually trespassing or
                                                                         not; is that right?
                                                                         ...
                                                                      A. I didn’t get to see who they were, so I’m not sure.
                                                                      Q. So you had no idea whether they would have been
                                                                         trespassing or not, is that right –
                                                                      A. The two people.
                                                                      Q. – because they could have been residents?
                                                                      A. That’s fair to say.
                                                                      The above testimony from the arresting officers clearly
                                                                    demonstrates that they thought it irrelevant whether or not
                                                                    Reed was privileged to be on the property. In other words,
                                                                    the officers admit that at the time of the arrest they did not
                                                                    know whether Reed had recently moved into the BMHA
                                                                    property or had been invited there by others. They decided to
                                                                    arrest him for criminal trespass as soon as they spotted him,
                                                                    no questions asked. Under these circumstances, the wisdom
                                                                    of Blair, Jones, and Jason Allen D. cries out for a result
                                                                    contrary to that reached by the majority.
14   United States v. Reed                       No. 99-3394      No. 99-3394                        United States v. Reed          7

engaged in any one of a multitude of improper activities, but                          ________________
is not particularly probative as to whether Reed was
privileged to be on the property. In any event, both officers                              DISSENT
admitted that even before they saw Reed start to walk away,                            ________________
they had already decided to arrest him for criminal trespass.
                                                                    RONALD LEE GILMAN, Circuit Judge, dissenting. In
  Even if all five factors are considered collectively, they at   affirming the district court’s denial of Reed’s motion to
most gave the officers a reasonable suspicion that Reed had       suppress, the majority holds that he was legally arrested for
no legitimate purpose for being there. This would have            criminal trespass even though the police failed to first
justified stopping Reed to inquire as to whether he lived on      ascertain whether Reed had a legitimate reason for being on
BMHA’s property or was there by invitation. See Terry v.          the property. I respectfully dissent because, in my view, the
Ohio, 392 U.S. 1 (1968); Washington v. Blair, 827 P.2d 356,       police officers arrested Reed without having probable cause
359 (Wash. Ct. App. 1992). The officers, however, made no         to do so.
such inquiry.
                                                                    Although not cited by Reed, I have found three cases with
  At the suppression hearing, Officer Thompson gave the           facts very similar to those before us that address the issue of
following response to the government’s question:                  probable cause in relation to criminal trespass. In each case,
                                                                  the court concluded that the officers must have probable cause
  Q. And do you have information as to whether or not             to believe that the defendant was on the property without
     Mr. Reed had permission from the Housing                     privilege before making an arrest.
     Authority to be on that property?
  A. No, I did not.                                                 The earliest case is Washington v. Blair, 827 P.2d 356
                                                                  (Wash. Ct. App. 1992). Faced with an almost identical fact
Thompson also made the following statements on cross-             pattern, the Washington Court of Appeals held as follows:
examination:
                                                                    Officer Williams simply drove up to Blair and ordered
  Q. Did you find out during the course of your                     him into the police cruiser where he arrested him. Had
     investigation, though, that he did have a girlfriend           Officer Williams taken a moment to ask Blair where he
     there who had – he had a child by?                             was going and for what purpose, he could have
  A. I don’t recall. I mean, I don’t remember him saying            determined whether Blair was in fact visiting a friend or
     that but it’s possible, but it would have been                 was trespassing. Because he knew Blair did not live in
     irrelevant.                                                    Roxbury Village, had admonished Blair not to return and
  Q. I’m sorry?                                                     had arrested him nearby for a drug transaction, Officer
  A. It would have been irrelevant whether he was – had             Williams had an articulable suspicion that Blair might be
     a girlfriend on the property.                                  trespassing on September 1. Based on this information,
  Q. Now, you would have stopped him anyway; is that                Officer Williams could properly stop Blair, ask him why
     right?                                                         he was on the premises, and investigate to see if his
  A. That’s correct. He wasn’t with her at the time.                purpose for being there was in fact legitimate. However,
                                                                    the fact that the officer had told Blair not to return to the
  In addition, Officer Horton testified as follows in response
to questions from the government’s attorney:
8      United States v. Reed                       No. 99-3394     No. 99-3394                        United States v. Reed      13

    premises does not, in itself, create probable cause for        on BMHA’s property without privilege at the time of his
    arresting him on the charge of criminal trespass.              arrest.
Id. at 359 (citation omitted).                                       First of all, the fact that on one prior occasion Reed had
                                                                   been ordered off of BMHA’s property by Officer Thompson
  The majority attempts to distinguish Blair on the following      indicates at most that Reed may not have been on the property
basis:                                                             by invitation on that particular occasion. On the other hand,
                                                                   because Officer Thompson could not recall whether his
    Blair . . . finds probable cause to be lacking in              previous encounter with Reed was weeks or months earlier,
    circumstances in which an officer has no knowledge of          Reed could have become a resident in the interim. Moreover,
    the existence of privilege prior to an arrest for criminal     Thompson’s past encounter with Reed provides no answer to
    trespass. However, we believe the Washington state             the question of whether Reed had been invited onto BMHA’s
    court decision was based upon a requirement negating           property on the day he was arrested.
    the affirmative defense of privilege prior to arresting a
    person for trespass. This Circuit does not require such an       Second, the majority cites the uncontested fact that Reed
    added inquiry to the probable cause determination.             was on BMHA’s property. This, however, has no bearing on
                                                                   the issue of whether the officers had probable cause to believe
I do not believe, however, that Blair can be so easily             that Reed was on the property without privilege. The case
distinguished. The ordinance in Blair made it illegal for a        would be different if the apartment manager had complained
person who is not licensed, invited, or otherwise privileged to    about Reed, or had requested the officers to remove him,
enter or remain on private property. See Blair, 827 P.2d at        because then the officers would have had probable cause to
358. Deciding if Officer Williams had probable cause to            believe that he was not privileged to be there.
believe that Blair was committing a crime thus depended “on
whether the circumstances known to the officer indicated that        Third, there is no indication in the record that at the time of
Blair was not on the property for legitimate purposes.” Id. at     Reed’s arrest the officers knew that Reed was not a resident.
359.                                                               In fact, the district court did not even make such a finding.
                                                                   The testimony at the suppression hearing indicates that the
  Although the State of Washington provides an affirmative         basis for Officers Thompson and Horton believing that Reed
defense to criminal trespass if “[t]he actor reasonably believed   was not a resident of the BMHA property was solely
that the owner of the premises . . . would have licensed him       Thompson’s past encounter with Reed. I thus find the
or her to enter or remain,” see Blair, 827 P.2d at 359, that was   majority’s reliance on this factor to be misplaced.
not the focus of the Blair court’s inquiry. Instead, the court
focused on the officer’s reasonable beliefs, not the actor’s.         Fourth, the fact that there were twenty-six “No
Contrary to the majority’s analysis, the Blair court did not       Trespassing” signs posted on BMHA’s property is similarly
require the state to negate an affirmative defense. What it did    irrelevant as to whether the officers had probable cause to
require was a showing that the officer had probable cause to       believe that Reed was not a resident or did not have an
believe that the defendant was on the property without a           invitation to be on the property. The government conceded
legitimate purpose at the time of his arrest.                      this point at oral argument.
  The next case with facts very similar to those before us is        Fifth, the fact that Reed started to walk away when the
Jones v. Commonwealth, 443 S.E.2d 189 (Va. Ct. App. 1994).         officers approached might raise a suspicion that he was
12    United States v. Reed                          No. 99-3394       No. 99-3394                        United States v. Reed         9

   I fully agree with the result in Strickland, but find its factual   In Jones, an owner of an apartment complex who had posted
setting a world apart from that in the present case. Based on          “No Trespassing” signs complained to the City of
the overwhelming evidence in Strickland, the detectives had            Richmond’s police department that he was having problems
probable cause to believe that Strickland had engaged in a             with trespassers and drug dealers in the parking area. He
drug transaction. Because of that, they did not need to dispel         asked for police assistance. Shortly thereafter, a man named
all innocent explanations for the meeting between Strickland           Jones was seen “hanging out” in the parking lot and was
and Haggard before arresting Strickland. The officers in the           arrested by the Richmond police for criminal trespass. The
case at hand, however, never had probable cause to arrest              search incident to the arrest uncovered heroin. In ordering the
Reed for criminal trespass in the first place.                         heroin suppressed, the Virginia Court of Appeals held as
                                                                       follows:
  To explain the difference another way, let us assume that
BMHA’s apartment manager had informed the officers that                  Jones’s mere presence with another man on the premises
Reed was trespassing. The officers would then have had                   at four o’clock in the afternoon near an automobile
probable cause to arrest Reed for criminal trespass. If, after           parked on a street by an apartment complex was
his arrest, Reed had argued that his seizure was illegal                 insufficient to establish probable cause to believe that
because the officers had failed to inquire as to whether he was          Jones was neither a resident of the apartment complex
invited onto the property by a tenant, his argument would fail.          nor legitimately upon the premises at the invitation of a
At that point, like in Strickland, the officers would have had           resident. The officer’s observation permitted only a bare
probable cause to arrest and would not have had to dispel                suspicion. Indeed, the officer’s assertion that Jones and
every innocent explanation. Those, however, are not the facts            the other man were “hanging out” did not add sufficient
of the present case.                                                     information to raise his suspicion of trespassing to
                                                                         probable cause.
   The trespass ordinance in the case before us, like the ones
in Blair, Jones, and In re Jason Allen D., provides that a             Id. at 191.
person must enter or remain on another’s property without
privilege. See Ohio v. Clelland, 615 N.E.2d 276, 287 (Ohio               Finally, in a case where the facts were much more
Ct. App. 1992) (“The concept of privilege has been broadly             compelling for the state than the ones at bar, the Maryland
construed, and the state has been required to prove lack of            Court of Special Appeals reversed the appellant’s trespass
privilege.”). The majority concludes that the following facts          conviction, holding as follows:
establish probable cause for Reed’s arrest for criminal
trespass: (1) Reed had been given a prior warning not to                 Officer Custead’s mere observation of Jason “hanging
enter the BMHA property by Officer Thompson, (2) Reed was                out” on the sidewalk at the housing project two hours
observed on the BMHA property, (3) Reed was not a resident               after an earlier and arguably invalid arrest for trespassing
of the BMHA housing project, (4) there were twenty-six “No               was insufficient to establish probable cause that Jason
Trespassing” signs posted throughout the BMHA property,                  was a criminal trespasser. We reiterate that, in
and (5) Reed walked away when the officers approached. For               evaluating probable cause, we must relate what the
the reasons set forth below, I do not believe that any of the            officer knew about the circumstances of the arrest to the
five factors that the majority relies upon justify the conclusion        elements of the offense that the officer believed was
that the officers had probable cause to believe that Reed was            being or had been committed. Here, appellant was
                                                                         arrested for trespassing, not for loitering. Thus, the fact
                                                                         that appellant was “hanging out” on the property
10   United States v. Reed                       No. 99-3394      No. 99-3394                        United States v. Reed      11

  provides very little guidance as to whether Officer               Instead of addressing or attempting to distinguish Jones and
  Custead had probable cause to believe appellant was a           In re Jason Allen D., which deal specifically with the issue at
  trespasser. . . . For the purpose of analyzing probable         hand, the majority cites and relies heavily upon general
  cause, we review what Officer Custead knew when he              language from United States v. Strickland, 144 F.3d 412 (6th
  sought to arrest Jason for trespassing: 1) Jason was on         Cir. 1998). In Strickland, the police used a man named
  Sagner property; 2) Jason was not a resident; 3) Jason          Haggard, an indicted drug offender who was working as a
  had received a no-trespassing notice; 4) Jason had been         police informant, to set up a drug transaction with a suspected
  arrested less than two hours earlier for trespassing at         dealer named Strickland. Haggard telephoned Strickland in
  Sagner, although Jason was not on Sagner property when          the presence of police detectives. The detectives heard
  the first arrest occurred. Yet, Officer Custead’s own           Haggard agree to a meeting with Strickland at 7:30 p.m. that
  knowledge about the questionable validity of the earlier        evening at a convenience store called the Corner Market.
  arrest diffuses the import of Jason’s later reappearance on     Upon finishing his call with Strickland, Haggard informed the
  the property. Further, although the officer saw appellant       detectives that he had arranged to purchase cocaine from
  with a group of people, he conceded that he had no              Strickland for $1,000. Haggard also explained that he and
  information about Jason’s relationship to the persons           Strickland had a course of dealing where they would meet
  who were with him, no knowledge as to whether any of            inside an automobile, talk for a few moments, and then
  the persons with Jason resided at Sagner, nor did the           exchange money for drugs. One of the detectives then gave
  officer inquire of Jason or the others about Jason’s            Haggard $1,000 in marked bills. Shortly thereafter, the
  presence at Sagner. As in Blair and Jones, Officer              detectives, who had the Corner Market under surveillance,
  Custead ignored the possibility that appellant was at           observed Haggard meeting Strickland at 7:30 p.m. at the
  Sagner at the invitation of an authorized resident. Like        Corner Market, Strickland getting into Haggard’s car, the two
  Blair and Jones, we conclude that, on these facts, Officer      men chatting, and Strickland leaving Haggard’s vehicle a few
  Custead did not have probable cause to make an arrest.          minutes later. Strickland was then arrested and searched,
                                                                  uncovering the $1,000 of marked bills.
In re Jason Allen D., 733 A.2d 351, 371-72 (Md. Ct. Spec.
App. 1999) (citations and internal quotation marks omitted)          Claiming a lack of probable cause, Strickland filed a
(emphasis added).                                                 motion to suppress the evidence. The issue before this court
                                                                  was whether the police had probable cause to arrest Strickland
   All three of the above cases require that an officer have      for possession of cocaine with the intent to distribute when
probable cause to believe that a person is on private property    they had not actually seen the transaction take place in the car.
without privilege before making an arrest for criminal            In other words, Strickland argued that the detectives did not
trespass. This is an appropriate requirement because there are    “know” that he had sold drugs to Haggard, and that there
only two elements to criminal trespass: (1) a person has to be    could be other innocent explanations for his meeting Haggard
on private property, and (2) he or she has to be there without    at the Corner Market. Based on the compelling circumstantial
privilege. See City of Hamilton, Ohio, Ordinance § 541.05.        evidence summarized above, this court held that the
If police officers do not need probable cause to believe that a   detectives had probable cause to believe that Strickland had
suspect lacks a legitimate reason for being on private property   sold cocaine to Haggard, despite the possibility that there
before making an arrest for criminal trespass, then they could    could have been an innocent explanation for the meeting
legally arrest and search anyone they see on private property.    between them.
Such is clearly not the law.
