Court No. 2015-CR-362
J. Baxter, Erie County Prosecuting Attorney, and Martha S.
Schultes, Assistant Prosecuting Attorney, for appellee.
D. Toth, for appellant.
DECISION AND JUDGMENT
1} Appellant, Kiedrin Page, appeals from the March
14, 2017 judgment of the Erie County Court of Common Pleas
convicting him of possession of heroin, R.C. 2925.11(A) and
(C)(6)(a), following a bench trial, and trafficking in
heroin, R.C. 2925.03(A)(1) and (C)(6)(b), and tampering with
evidence, R.C. 2921.12(A)(1), following a jury trial. For the
reasons which follow, we affirm.
2} On October 14, 2015, appellant was indicted on
multiple charges. Count 1, which alleged possession of
heroin, was based on the events of August 4, 2015, when
heroin was allegedly found when appellant was searched
following his arrest on an outstanding warrant issued
relating to Count 2. Count 2, which alleged trafficking in
heroin, was based on allegations that on June 25, 2015,
appellant knowingly offered to sell one gram of heroin within
1, 000 feet of the Osborne Elementary School. Count 3, which
alleged tampering with evidence, was based on allegations
that on June 25, 2015, appellant hid the suspected heroin in
his mouth and swallowed it, with purpose to impair its value
or availability as evidence in the police investigation.
3} Appellant moved to suppress the evidence obtained
after his seizure on June 25, 2015. The trial court denied
the motion. Appellant consented to a bench trial on Count 1
and a jury trial was held on Counts 2 and 3. Appellant was
convicted of all three counts and sentenced to four years of
community control on each of the counts. The sentences for
Counts 2 and 3 were ordered to be served concurrently to each
other and consecutively to the sentence for Count 1, for a
total of eight years of community control. On appeal,
appellant asserts the following assignments of error:
of Error I
Trial Court incorrectly denied the suppression motion in this
matter. The denial of the Appellant's suppression motion
in the matter was not supported by competent and credible
of Error II
trial court abused its discretion when allowing evidence in
violation of rule 404(B).
of Error III
evidence was insufficient to support the school specification
on the drug trafficking count of the indictment.
4} In his first assignment of error, appellant
argues that the trial court erred in denying his motion to
suppress evidence obtained after he was illegally seized. He
argues there were no articulable facts warranting a stop and
frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.E.2d 889 (1968).
5} The review of a ruling on a motion to suppress
involves a mixed question of law and fact. In re
A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d
629, ¶ 50. We must "accept the trial court's
findings of fact which are supported by competent and
credible evidence * * * and determine, without any deference
to the trial court, whether the facts satisfy the applicable
legal standard." Id.
6} The Fourth Amendment of the United States
Constitution protects individuals against unreasonable police
seizures and searches. Ohio v. Robinette, 519 U.S.
33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Map v.
Ohio, 367 U.S. 643, 654-655, 81 S.Ct. 1684, 6 L.Ed.2d
1081 (1961) (applicable to the states through the Fourteenth
Amendment). Any seizure that occurs "'outside the
judicial process, without prior approval by a judge or
magistrate, is per se unreasonable under the Fourth Amendment
-- subject only to a few specifically established and
well-delineated exceptions.'" Mincey v.
Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d
290 (1978), quoting Katz v. United States, 389 U.S.
347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
"Reasonableness, in turn, is measured in objective terms
by examining the totality of the circumstances."
Robinette. The burden of establishing the exception
is on the prosecution. Coolidge v. New Hampshire,
403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564
7} Two exceptions are presented in this case. The
first exception is the investigative stop and frisk. See
Terry, ¶ 20. This type of seizure is a reasonable
seizure and search under the Fourth Amendment if the officer
has a reasonable suspicion, based upon specific and
articulable facts, that criminal behavior has occurred or is
imminent, and the stop and frisk investigation is kept to a
minimal intrusion. Terry at 21-22; United States
v. Sharpe, 470 U.S. 675, 687-688, 105 S.Ct. 1568, 84
L.Ed.2d 605 (1985).
8} Appellant argues the holdings in Florida v.
J.L., 529 U.S. 266, 268, 120 S.Ct. 1375, 146 L.Ed.2d 254
(2000), and State v. Jordan, 104 Ohio St.3d 21,
2004-Ohio-6085, 817 N.E.2d 864, ¶ 42, superseded by
statute on other grounds as stated in State v.
Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920
N.E.2d 958, ¶ 48, apply to this case. We disagree. Those
cases involve anonymous tips which were not sufficiently
corroborated by the police to ensure their reliability to be
part of the formation of an officer's reasonable
suspicion of criminal activity. J.L.; Jordon. In the
case before us, all of the facts were directly observed by
9} The second exception allows an officer to stop
and arrest an individual without a warrant if the officer has
probable cause to believe the person has committed a felony.
Carroll v. United States,267 U.S. 132, 156-157, 45
S.Ct. 280, 69 L.Ed. 543 (1925); State v. Steele, 138
Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, ¶ 26.
"Probable cause is a stricter standard than reasonable
and articulable suspicion." State v. Mays, 119
Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23.
It is determined under an objective standard of whether a
reasonable police officer would have believed the defendant
had committed a crime. State v. Watson, 12th Dist.
Warren No. CA2014-08-110, 2015-Ohio-2321, ¶ 14. Running
from the police, following a reasonable order to stop, is a
factor which can ...