      [Cite as State v. Jordan, 2020-Ohio-689.]

                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :   APPEAL NOS. C-180559
                                                                 C-180560
      Plaintiff-Appellee,                         :   TRIAL NOS. B-1702130
                                                                 B-1607185A
      vs.                                         :

LEANDRE JORDAN,                                   :     O P I N I O N.

      Defendant-Appellant.                        :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: February 28, 2020




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




CROUSE, Judge.

         {¶1}   Defendant-appellant LeAndre Jordan appeals his convictions for

aggravated trafficking in drugs. In two assignments of error, he argues that the trial

court erred in denying his motion to suppress, and in failing to document a three-

year license suspension in its sentencing entry. For the following reasons, Jordan’s

first assignment of error is overruled and his second assignment of error is sustained.

                               Factual Background


         {¶2}   The majority of the relevant facts revolve around a burglary that

Jordan was accused of committing, but the cases before us relate to drugs and other

evidence seized from Jordan’s residence after police executed a search warrant

looking for evidence related to the burglary.

         {¶3}   Shortly after 4:30 p.m. on December 12, 2016, James and Emiko Locke

returned home to find that their home had been burglarized. The only item missing

was a safe containing $40,000 in cash. Cincinnati Police Detective Mark Longworth

investigated the burglary. Longworth determined that the burglar’s entry and exit

point was a broken window in the back of the house. Since there was only one entry

and exit point, and no valuables missing besides the safe, Longworth determined

that it was likely that the burglar knew what he was looking for when he entered the

house.

         {¶4}   Longworth testified that the burglary was believed to have occurred

between 4:15 p.m. and 4:30 p.m. when no one was at home. Longworth testified that

the Lockes informed him that only two other people knew what was inside the safe

and where it was hidden: their son Michael and their godson Demarco Daniels.



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Michael had been “kicked out” of the house by his parents, and had “just recently

come back around.” The Lockes informed Longworth that Michael had called them

on the phone a couple of times around the time of the burglary, trying to determine

whether they were home. Longworth testified that the Lockes were “very suspicious”

of Michael’s attempts to determine if they were home. With Michael’s permission,

Longworth looked at Michael’s phone call history and discovered that he had called

his parents at 4:23 p.m. and 4:29 p.m.

       {¶5}   Longworth testified the Lockes told him that after they discovered the

burglary, Michael came to the house and was “kind of fishing around for information

about what had happened, what they knew.” A neighbor came over and told the

Lockes that he had seen a suspicious crème-colored Chrysler 300 parked near their

house around the time of the burglary. When the neighbor told the Lockes about the

Chrysler, Michael became upset and “yelled at [the neighbor] and told him to get

out.” Longworth testified that the car’s movements, as described by the neighbor,

raised his suspicion that it may have been involved in the burglary. Longworth

testified that the Lockes informed him that as soon as the neighbor described the car,

they knew that it was “Dre’s” car. They told Longworth that Michael had been

hanging out with Dre lately, and that they thought Dre was trouble.

       {¶6}   Dre is LeAndre Jordan. The Lockes informed Longworth that Jordan

worked at a barbershop on Warsaw Avenue by a Kroger store. Longworth located a

crème-colored Chrysler in the parking lot of the Kroger, by the barbershop.

Longworth described the car as “unique,” and discovered that the car was registered

to Jordan’s mother. He took photographs of the car and confirmed with Michael that

it was Jordan’s car. Michael also confirmed that he was friends with Jordan, and




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                       OHIO FIRST DISTRICT COURT OF APPEALS



that he had been with Jordan the day of the burglary. Upon further review of

Michael’s phone call history, Longworth discovered that on the day of the burglary

Michael had called Jordan at 4:36 p.m. and 4:49 p.m., and Jordan had called

Michael at 5:03 p.m.

       {¶7}    Longworth placed Jordan under surveillance.          Jordan parked the

Chrysler in the same spot every day—in the Kroger parking lot across from the

barbershop. Police watched him come and go from the car and barbershop for

several days. Eight days after the burglary, Longworth arrested Jordan, without a

warrant, as Jordan walked to a different car he was driving that day, a black Lexus.

Following the arrest, police searched Jordan and discovered keys to his residence.

Longworth obtained a search warrant for the residence. When officers searched the

residence, they found $2,907, heroin, cocaine, a scale, and an inoperable pistol.

                                 Motion to Suppress


       {¶8}    In his first assignment of error, Jordan argues that the trial court erred

in denying his motion to suppress the evidence seized from his apartment.

Specifically, Jordan argues that his arrest was illegal because it was not based on

probable cause and was made without a warrant. Jordan contends that all evidence

seized from his residence must be suppressed as “fruit of the poisonous tree.” See

Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

       {¶9}    “Appellate review of a motion to suppress presents a mixed question of

law and fact.” State v. Olagbemiro, 1st Dist. Hamilton Nos. C-170451 and C-170452,

2018-Ohio-3540, ¶ 9. “We defer to the trial court’s factual findings if they are

supported by competent and credible evidence, but we review de novo the court’s

application of the law to those facts.” Id.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} “A warrantless seizure is per se unreasonable unless it falls within one

of the recognized exceptions to the warrant requirement.” State v. Pies, 140 Ohio

App.3d 535, 539, 748 N.E.2d 146 (1st Dist.2000).           One such exception is a

warrantless arrest in a public place, which does not violate the Fourth Amendment if

the police officer had probable cause to believe that the person committed or was

committing a felony. State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873

N.E.2d 858, ¶ 66, citing United States v. Watson 423 U.S. 411, 427, 96 S.Ct. 820, 46

L.Ed.2d 598 (1976); R.C. 2935.04.

       {¶11} The test for establishing probable cause to arrest without a warrant is

“whether the facts and circumstances within an officer’s knowledge were sufficient to

warrant a prudent individual in believing that the defendant had committed or was

committing an offense.” State v. Deters, 128 Ohio App.3d 329, 333, 714 N.E.2d 972

(1st Dist.1998). “Probable cause is a lesser standard of proof than that required for a

conviction, which is proof beyond a reasonable doubt. Probable cause only requires

the existence of circumstances that warrant suspicion.” State v. Hackney, 1st Dist.

Hamilton No. C-150375, 2016-Ohio-4609, ¶ 26. It “requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity.” State

v. Thorton, 1st Dist. Hamilton Nos. C-170586 and C-170587, 2018-Ohio-2960, ¶ 21,

quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), fn. 13.

Probable cause is a “practical, nontechnical concept.” Gates at 287. It does not

require officers to rule out an innocent explanation for suspicious facts. Thorton at ¶

22.

       {¶12} Jordan first argues that the trial court erred by relying on facts learned

by police post-arrest in finding that probable cause existed for the arrest. When a




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court relies on post-arrest evidence in its denial of a motion to suppress, this court

must disregard that evidence to determine if the remaining evidence gave the officer

probable cause to arrest. See City of Washington Court House v. Wagner, 12th Dist.

Fayette No. CA91-01-001, 1991 WL 149551, *2 (Aug. 5, 1991); State v. Johnson, 11th

Dist. Lake No. 2003-L-210, 2005-Ohio-2077, ¶ 13-16.

       {¶13} When the trial court overruled Jordan’s motion to suppress, it based

its decision, in part, on the fact that “Mr. Jordan himself acknowledge[d] the fact

that he drove both cars.” Jordan did admit that the Chrysler was his mother’s and

that he drove it from time to time, but those admissions were made during the post-

arrest interview, and so were not known to police at the time of the arrest.

Therefore, it was error for the court to rely on Jordan’s admissions when ruling on

the motion to suppress. The state concedes this error, but argues that other evidence

established probable cause to arrest Jordan even without Jordan’s post-arrest

statements.

       {¶14} Jordan argues that after discounting the post-arrest admissions, the

remaining evidence relied upon by the court in overruling the motion to suppress

was subjective and unreliable. He points to the lack of certain evidence, such as the

license plate number of the Chrysler. But, the test is not about what evidence was

missing; rather it is about what evidence was before the court.

       {¶15} Longworth is a 19-year veteran of the police department. He testified

that he determined there was probable cause to arrest Jordan based on “the phone

records, the interview with Michael Locke, the interview with the family, the

interview with the neighbor, the observations that I made that corroborated those

things.”




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} It is clear that the Lockes did not like Jordan and thought he was

trouble, but their suspicions of Jordan were not based solely on their dislike of him

or pure speculation. Rather, once the neighbor told them he had seen a suspicious

crème-colored Chrysler near the house around the time of the burglary, they told

Longworth that Jordan drove that kind of car, and that Michael (who they suspected

was involved in the burglary based on his knowledge of the safe and the phone calls)

had been hanging out with Jordan recently.

       {¶17} Although the court’s consideration of Jordan’s post-arrest admissions

was error, once we excise the admissions, we are left with evidence sufficient to cause

a prudent person to believe that a burglary had been committed, and that Jordan was

involved in the burglary.

       {¶18} Next, Jordan argues that police failed to obtain an arrest warrant, and

that no exigency existed to excuse that requirement.       Jordan cites to a Second

District case, State v. VanNoy, 188 Ohio App.3d 89, 2010-Ohio-2845, 934 N.E.2d

413, ¶ 23 (2d Dist.), for the proposition that Longworth should have obtained an

arrest warrant even though he made the arrest in a public place and with probable

cause. In VanNoy, the court held that “in order for an officer to lawfully perform a

warrantless arrest in a public place, the arrest must not only be supported by

probable cause, it must also be shown that obtaining an arrest warrant beforehand

was impracticable under the circumstances, i.e., that exigent circumstances exist.”

Id., citing State v. Heston, 29 Ohio St.2d 152, 280 N.E.2d 376 (1972), paragraph two

of the syllabus.

       {¶19} However, the proposition in VanNoy and Heston is at odds with Ohio

Supreme Court precedent. “A warrantless arrest that is based upon probable cause




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                      OHIO FIRST DISTRICT COURT OF APPEALS



and occurs in a public place does not violate the Fourth Amendment.” Brown, 115

Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, at ¶ 66, citing Watson, 423 U.S. at

427, 96 S.Ct. 820, 46 L.Ed.2d 598.

       {¶20} As stated by State v. Taylor, 10th Dist. Franklin No. 18AP-7, 2019-

Ohio-2018, ¶ 14, the Second District’s position in VanNoy is a minority position.

There is even dispute within the Second District as to VanNoy’s viability. See State

v. Armstead, 2d Dist. Montgomery No. 26640, 2015-Ohio-5010, ¶ 40 (Welbaum, J.,

dissenting) (explaining that 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).

       {¶21} This court follows the majority approach. See State v. Evans, 1st Dist.

Hamilton    No.   C-080129,    2009-Ohio-241,     ¶   13,   citing   Watson    at   427

(“a warrantless arrest of a person is proper if it is supported by probable cause”).

Therefore, the state was not required to show that exigent circumstances existed

when it arrested Jordan. Jordan’s arrest occurred in a public place and Longworth

had probable cause to believe that Jordan had committed a felony. Because Jordan’s

arrest did not violate the Fourth Amendment, the trial court did not err in denying

the motion to suppress. Jordan’s first assignment of error is overruled.

                               License Suspension

       {¶22} In Jordan’s second assignment of error, he argues that the trial court

erred where it announced a three-year license suspension at the sentencing hearing,

but imposed a five-year license suspension in its sentencing entry.           The state

concedes the error.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23} The five-year license suspension in the judgment entry is clearly a

clerical error, as the record shows that the trial court imposed a three-year license

suspension at the sentencing hearing. We sustain Jordan’s second assignment of

error, and remand this cause to the trial court to make an entry nunc pro tunc

correcting the clerical error in the sentencing entry so that the entry reflects a three-

year license suspension. See Crim.R. 36; State v. Cooper, 1st Dist. Hamilton No. C-

180401, 2019-Ohio-2813, ¶ 1.

                                      Conclusion


       {¶24} We sustain Jordan’s second assignment of error and remand this cause

for a nunc pro tunc entry correcting the license-suspension portion of his sentence.

We overrule Jordan’s first assignment of error, and the judgment of the trial court is

affirmed.

                                               Judgment affirmed and cause remanded.



MYERS, P.J., and WINKLER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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