The Akron Legal News

2nd District finds drug search was justified after anonymous tip

ANNIE YAMSON
Special to the Legal News
Published: August 27, 2013

The 2nd District Court of Appeals recently affirmed the judgment of the Montgomery County Court of Common Pleas convicting Crishanda Hinton of possession of heroin.

Hinton appealed the decision by arguing the trial court erred by overruling her motion to suppress evidence upon the ground that it was obtained as the result of an unlawful search and seizure.

The incident leading to Hinton’s indictment took place in late February 2012.

At approximately 1:30 p.m. on that day, Dayton Police Officer Mark Spiers was clearing a house alarm that had been triggered at a residence.

According to the district court’s case summary, Spiers was a 32-year police veteran with 29 years on the Dayton Police Force and three years on the Centerville Police Force before that.

Spiers had served in a drug unit for eight and a half years during his time with the Dayton Police.

After he had cleared the home, a man pulled up in a vehicle alongside Spiers in his cruiser. The stranger told Spiers that a drug transaction was taking place about three or four doors away.

The man told Spiers that he had seen the same individual making numerous drug transactions in the past and he had reported it several times but the police never arrived in time to investigate.

He described the seller as “a black female, short, but tends to dress like a male, short hair, wearing a white tee shirt and baggy jeans.”

He also told Spiers that the dealer was conducting a transaction with “occupants of a gray minivan.”

Spiers did not wait to get the informant’s name or identifying information but instead went straight to the scene of the suspected drug transaction in order to get there in time to investigate and take appropriate action.

As soon as Spiers turned onto the street where the deal was allegedly taking place he saw the gray van and a person matching the description of the drug seller with her hands inside the vehicle.

The seller was later identified as Hinton.

She was standing in the middle of the street leaning into the driver’s side window but when she saw the cruiser driving down the street, Hinton immediately walked toward the sidewalk on the other side of the van and the van pulled away.

Spiers testified at trial that he recognized Hinton from past drug activity complaints and decided to conduct a pat down.

He started the pat down with Hinton’s front pockets, where he felt a baggie. Hinton told Spiers, “It’s just weed.”

When Spiers finished the pat-down, he went to retrieve the baggie of marijuana when he felt a hard, irregularly shaped object in the coin pocket of Hinton’s jeans which he recognized to be heroin.

Hinton was arrested and subsequently charged by indictment with one count of possession of heroin, a fourth-degree felony, and one count of possession of marijuana, a first-degree misdemeanor.

The trial court overruled a motion from Hinton to suppress the evidence obtained in the search and seizure.

She pleaded no contest to possession of heroin, the state dismissed the marijuana charge and the trial court sentenced Hinton to community control and a six-month driver’s license suspension.

In her sole assignment of error upon direct appeal to the 2nd District, Hinton argued the trial court should have granted her motion to suppress the evidence obtained from the pat-down.

She claimed Spiers lacked a proper basis for stopping her but the 2nd District’s three-judge appellate panel sided with the trial court, which found Spiers’ testimony to be “entirely credible.”

The only other witness called at Hinton’s suppression hearing was Antoinette Young, the driver of the gray van, who testified that she was at Hinton’s house in order to give her some money and then leave.

Young claimed that when she saw the cruiser coming, she drove away and moved to the other side of the street, where parking was legal.

She also stated that she witnessed Hinton’s arrest.

“Taking Young’s testimony at face value, and assuming that her interaction with Hinton was innocent, it is irrelevant,” wrote Presiding Judge Mike Fain on behalf of the appeals court. “The issue is whether Spiers had a reasonable, articulable suspicion that Hinton was selling drugs, not whether Hinton was, in fact, selling drugs.”

Hinton contended that the information received from the informant who told Spiers about the alleged drug transaction was entitled little to no weight because it was an anonymous tip.

However, the appellate panel held that an anonymous tip provided to a police officer in person has greater inherent trustworthiness than a tip provided over the phone.

“An in-person tip gives the officer an opportunity to observe the informant’s demeanor and credibility,” wrote Judge Fain, citing a 2011 federal case. “Additionally, an in-person informant’s proximity in time and space to the reported criminal activity indicates the reliability of the tip, because it reflects that the informant acquired the information firsthand.”

Spiers also testified that the activity he witnessed was consistent with drug deals he had seen in the past.

“This was the type of things we would normally see,” said Spiers. “Based on my experience and making drug buys, normally once they see the police approaching, it’s a quick — break contact fairly quickly and the car normally takes off. The dealer normally walks away when they see a marked cruiser.”

Spiers also claimed he was familiar with the area and knew it to be a high crime neighborhood.

In his experience with illegal drugs, he said a weapon was usually involved, which justified his decision to conduct a pat-down search.

“Twenty-nine years of experience tells me that drugs and weapons go hand in hand,” Spiers testified.

The appeals court found that to be sufficient reason to search Hinton: “An officer’s fear of violence when investigating drug activity is a legitimate concern that will justify a pat-down search for weapons.”

Based on Spiers’ extensive experience with drug deals, the appellate panel also determined that he had reasonable suspicion to seize the marijuana and heroin based on touch alone.

Hinton’s sole assignment of error was ultimately overruled and the judgment of the Montgomery County court was affirmed with Judges Mary Donovan and Michael Hall concurring.

The case is cited State v. Hinton, 2013-Ohio-3381.

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