[Cite as State v. Hill, 2011-Ohio-2968.]




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

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 24234
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 09-CR-2383
v.                                                :
                                                  :     (Criminal Appeal from
JEFFREY HILL                                      :     (Common Pleas Court)
                                                  :
        Defendant-Appellant                :
                                                  :
                                               ...........

                                               OPINION

                                Rendered on the 17th day of June, 2011.

                                               ...........

MATHIAS H. HECK, JR., by LAURA M. WOODRUFF, Atty. Reg. #0084161, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JENNIFER S. GETTY, Atty. Reg. 0074317, 46 East Franklin Street, Centerville, Ohio 45459
     Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1} Defendant-appellant Jeffrey Hill appeals from his conviction and sentence,

following a no-contest plea, on one count of Possession of Heroin, in an amount less than one

gram. Hill contends that the trial court erred in overruling his motion to suppress evidence
and statements. We conclude that the trial court did not err. Accordingly, the judgment of

the trial court is Affirmed.

                                                     I

        {¶ 2} Dayton Police Officer Jeff Hieber, a uniformed officer, in a marked police

cruiser, was on routine patrol one evening in late July, 2009, when he was dispatched to the

Express Mart. The owner or manager on duty had reported that an unknown black male,

wearing a green T-shirt, was selling drugs in the store’s parking lot.

        {¶ 3} When Hieber responded to the scene, he saw Hill, a black man wearing a green

shirt, sitting in a vehicle in the parking lot. Hill was the only person in the parking lot at that

time.

        {¶ 4} Hieber parked his cruiser behind Hill’s vehicle, and approached Hill on foot.

According to Hieber, Hill “started making furtive movements. He started – he looked – he

was manipulating or doing something in his lap area. He had his head down. He was doing

something like this (demonstrating) and then he kept on looking around and then he started

doing something real fervently [sic] (demonstrating).        I saw his hands moving like this

(demonstrating) and he kept on looking back and he was going like this (demonstrating) like if

you had been eating food and you had, you know, crumbs or whatever over you. And he was

brushing his shirt (demonstrating) and kept on looking back.”

        {¶ 5} As Hieber approached, Hill’s car began creeping forward. Hieber went back

to his cruiser and turned on his overhead lights to effect a stop. Hieber then walked to Hill’s

vehicle and made contact. Hill was still fidgeting and making movements as if he was

manipulating something on his lap.         As Hieber made contact with Hill, Hill dropped

something in his lap that Hieber feared might be a gun.
       {¶ 6} While this was going on, the store manager had stepped just outside the door of

the store, and was saying something to Hieber. Hieber later learned that the manager was

telling him that Hill was not the man that the manager had reported as having been selling

drugs, that that man had fled the scene earlier. At the time, however, Hieber, concerned for

his safety, was focused exclusively on Hill, and did not pay any attention to what the store

manager was saying.

       {¶ 7} When Hieber looked in at Hill, he could see that Hill had dropped a spoon in

between his legs. Hieber testified that “I have come across many people who are drug users

who use a spoon as part of drug paraphernalia.”

       {¶ 8} Hieber had Hill get out of his vehicle. Hieber saw Hill drop a small piece of

paper inside the car as he was exiting.

       {¶ 9} Hieber had Hill walk back to the police cruiser, patted him down, and placed

Hill in the back of the police cruiser.

       {¶ 10} Hieber then went back to Hill’s car and recovered the spoon and the small

piece of paper. The paper was folded up and had white powder inside it. Hieber field tested

the powder with cobalt reagent, and it tested positive.

       {¶ 11} Hieber then attempted to read Hill his rights under Miranda v. Arizona (1966),

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, but Hill did not respond as Hieber asked him

whether he understood. Hill then started asking Hieber questions. Hieber told Hill he could

not converse with him until Hill’s Miranda rights were explained. Hill then cooperated in the

administration of Miranda warnings. Ultimately, Hill admitted that he was a drug user, and

that “the drugs were his.”

       {¶ 12} Hill testified at the suppression hearing.    He testified that Hieber never
attempted to administer Miranda warnings. In its decision, the trial court expressly found

Hieber’s testimony to be more credible on this point.

       {¶ 13} Hill was arrested and charged with Possession of Heroin.         He moved to

suppress evidence and statements.       Following a hearing, the motion to suppress was

overruled. Hill then pled no contest, was found guilty, and was sentenced to community

control sanctions. From his conviction and sentence, Hill appeals.

                                                  II

       {¶ 14} Hill sets forth two assignments of error:

       {¶ 15} “1. THE TRIAL COURT ERRED IN HOLDING THAT THE OFFICER

WAS JUSTIFIED IN APPROACHING, STOPPING AND SEARCHING DEFENDANT’S

VEHICLE, IN VIOLATION OF HIS FOURTH AND FOURTEENTH AMENDMENT

RIGHTS.

       {¶ 16} “a. The Trial Court Incorrectly Found that Officer Hieber had a Reasonable

and Articulable Basis to Approach Mr. Hill’s Vehicle and Stop him for Further Investigation.

       {¶ 17} “b. The Trial Court Erred in Overruling Defendant’s Motion to Suppress as

the Officer’s Warrantless Search of his Vehicle Did Not Fall Under Any Exception to the Per

Se Rule Against Warrantless Searches.

       {¶ 18} “2.     THE TRIAL COURT ERRED IN FAILING TO SUPPRESS

DEFENDANT’S STATEMENTS MADE TO THE OFFICER, WHO DID [sic] PROPERLY

MIRANDIZE THE DEFENDANT, IN VIOLATION OF HIS FIFTH AMENDMENT

RIGHTS.”

       {¶ 19} Hill’s Second Assignment of Error can be readily overruled. The trial court,

finding Hieber the more credible witness on this point, found that proper Miranda warnings
were administered before custodial interrogation, and there is evidence in the record to support

that finding.

       {¶ 20} As a preliminary matter, the State contends that Hill has forfeited raising any

issue beyond the propriety of the initial investigative stop, since that is the only issue he raised

in the trial court. We agree.

       {¶ 21} The entirety of Hill’s motion to suppress is as follows:

       {¶ 22} “Comes now the Defendant, Jeffrey Hill, by and through his attorney, David R.

Miles, who respectfully moves this Honorable Court for an Order suppressing any and all

evidence including statements arising from an illegal stop on July 23, 2009 by Officer Jeff

Hieber of the Dayton Police Department.

       {¶ 23} “A hearing date has already been set for Thursday, December 3, 2009 at 2:30

p.m. before this Honorable Court. A brief memorandum follows.”

       {¶ 24} In Hill’s memorandum in support of his motion to suppress, he relies

exclusively upon the unlawfulness of the investigative stop:

       {¶ 25} “According to the police report supplied to the undersigned counsel by way of

discovery, Officer Heiber [sic] was dispatched to the Express Mart at 2050 North Gettysburg

on a drug call. The dispatch relayed information identifying a black male wearing a green

t-shirt, who had previously been told to stay off the Express Mart premises, as the one selling

drugs. Officer Heiber [sic] arrived at the parking lot next to Express Mart. Defendant Hill

was wearing a green t-shirt and was inside his burgundy Oldsmobile Cutlass.                A store

employee was also at or outside the store. A short time later, Officer Heiber [sic] stopped

Defendant Hill.

       {¶ 26} “It is Defendant’s position that when Officer Heiber [sic] arrived at the Express
Mart, he was told by a store employee that another individual, who was leaving the Express

Mart, was the one concerning the dispatch, not the defendant. Yet, Officer Heiber [sic]

stopped Defendant Hill anyway. The end result of the stop was the discovery of illegal drugs

on or around Defendant’s person/motor vehicle. Additionally, Officer Heiber [sic] engaged

in conversation with Defendant Hill. The statements/admissions made by Defendant Hill

were obtained as the result of an invalid stop.

       {¶ 27} “The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution guarantees ‘the right of people to be secure in their persons,

houses, papers and effects against unreasonable searches and seizures.’ In this case, Office

[sic] Heiber [sic] conducted a ‘Terry stop’ or an investigatory detention. Terry v. Ohio

(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The investigation detention is limited in

duration and purpose and can only last as long as it takes a police officer to confirm or to

dispel his suspicions. Terry, supra. In this case, once Office [sic] Heiber [sic] learned that

Defendant Hill was not the individual subject pertaining to the dispatch, Officer Heiber’s [sic]

further contact with Defendant Hill was improper.

       {¶ 28} “In conclusion, if a stop is determined to be unconstitutional, all evidence

including statements obtained pursuant to the stop must be suppressed as fruit of the

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

       {¶ 29} “Defense counsel would respectfully request the opportunity to submit

additional legal authority after the conclusion of the suppression hearing.”

       {¶ 30} At the suppression hearing, no statements were made by counsel framing the

issues for the trial court, either before, during, or after the presentation of evidence. No

closing arguments were made, and the trial court took the motion under submission. Neither
party filed any memoranda after the hearing.

       {¶ 31} Hieber and Hill were the only witnesses at the suppression hearing. Hieber’s

direct testimony covered everything that he saw, heard or did, from the time of the dispatch to

Hill’s admission, while in custody in the cruiser, that “the drugs were his.”               Hill’s

cross-examination of Hieber was addressed primarily to the propriety of the stop, especially

the store manager’s having said that Hill was not the individual who had been the subject of

the report. Hill’s attorney did ask Hieber whether the white piece of paper was dropped

inside Hill’s car, or outside the car, but that was the only question touching, in any way, upon

the subsequent search of Hill’s vehicle and the seizure of evidence. Hill’s attorney also asked

Hieber a couple questions about his conversation with Hill following the giving of Miranda

warnings.

       {¶ 32} Hill testified at the suppression hearing. On direct, he testified exclusively

about the stop, excepting only the following colloquy at the end of his direct testimony:

       {¶ 33} “Q. Okay. And the officer, he pat you down at the back of your vehicle?

       {¶ 34} “A. I think he pat [sic] me down on the police car.

       {¶ 35} “Q. Okay. And then what did he do?

       {¶ 36} “A. He put me in the police car.

       {¶ 37} “Q. Okay. Then did he search your vehicle after that?

       {¶ 38} “A. Then he searched my vehicle after that.

       {¶ 39} “Q. Okay, all right.”

       {¶ 40} The subject of statements Hill made to Hieber was only brought up on

cross-examination, when Hill denied that he had been “mirandized.”

       {¶ 41} In the trial court’s decision, the trial court concentrated upon the propriety of
the stop, although the search and seizure and the Miranda issue were touched upon:

       {¶ 42} “Hieber had a reasonable and articulable basis to approach Defendant’s vehicle,

namely the dispatch for a black male wearing a green shirt suspected of drug dealing. While

Defendant may not have been the person about whom the store manager had complained,

Hieber was justified in stopping Defendant’s vehicle for further investigation since Defendant

matched the general description given by the complainant.            When Hieber approached

Defendant’s vehicle, Defendant made furtive gestures and Hieber saw, in plain view, a spoon

and a folded up piece of paper. Hieber had an articulable suspicion for Defendant’s detention

which led to reasonable and objective grounds for Defendant’s arrest. Hieber observed in

plain view a spoon, which is associated with use of heroin. Also, in plain view was a folded

piece of paper containing illegal drugs. Defendant’s possession of those items established

probable cause for Defendant’s arrest.       Therefore, Defendant’s Motions challenging the

detention and arrest are overruled. Moreover, Defendant’s Motion, insofar as it challenges

any statements by Defendant is overruled, as the Court finds more credible the recitation of

events by Hieber, including that Hieber fully advised Defendant of his Miranda rights.”

       {¶ 43} Hill failed to raise in the trial court the issue of the lawfulness of the search of

his vehicle and the seizure of evidence therefrom, independently of the issue of the propriety

of the initial stop, which he did raise. We agree with the State that Hill has therefore forfeited

the search and seizure issue for purposes of appellate review. State v. Carter, Montgomery

App. No. 21999, 2008-Ohio-2588, ¶¶ 18-20.

       {¶ 44} The mere fact that a trial court, in its decision resolving an issue that a

defendant has raised, touches upon an issue that the defendant has not raised, should not

“resurrect” a forfeited issue. The State is no less blind-sided in that case. The State was
never on notice, in this case, that it had to put on evidence to establish the lawfulness of the

search of Hill’s vehicle and the seizure of evidence therefrom, independently of the propriety

of the initial stop. The fact that the trial court touched upon the issue of the search and

seizure in its written decision does not change the fact that the State was never on notice that

this was an issue that it was required to address.

        {¶ 45} Therefore, we conclude that only the propriety of the investigative stop is

properly before us in connection with Hill’s First Assignment of Error. And on that issue, we

agree with the trial court.

        {¶ 46} The trial court found Hieber to be the more credible witness. Hieber testified

that he responded to a report, from a known, non-criminal informant, that a black man in a

green t-shirt was selling drugs in the parking lot of the Express Mart on Gettysburg Avenue.

When he arrived on the scene, there was only one person in the parking lot – Hill, and Hill

was a black man in a green shirt.

        {¶ 47} Hieber testified that because of Hill’s furtive movements, Hieber became

concerned for his safety, as a result of which he focused solely on Hill, and paid no attention

to the store manager, who was then telling him, from the manager’s position just outside the

door of the store, that Hill was not the individual who had been the subject of the report.

Hieber testified that he only later became aware of what the store manager was saying on that

subject.

        {¶ 48} We agree with the trial court that Hieber had a reasonable, articulable suspicion

that criminal activity was afoot, involving Hill, which justified a brief, investigative stop.

        {¶ 49} Hill’s First and Second assignments of error are overruled.

                                                     III
       {¶ 50} Both of Hill’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.

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



GRADY, P.J., and FROELICH, J., concur.



Copies mailed to:

Mathias H. Heck
Laura M. Woodruff
Jennifer S. Getty
Hon. Mary L. Wiseman
