[Cite as State v. Harrison , 2022-Ohio-741.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO, PLAINTIFF-APPELLANT, CASE NO. 8-21-31

v. KANDALE L. HARRISON, O P I N I O N

DEFENDANT-APPELLEE.

Appeal from Logan County Common Pleas Court Trial Court No. CR 20 07 0162 Judgment Reversed and Cause Remanded Date of Decision: March 14, 2022

APPEARANCES:



### Eric C. Stewart for Appellant 

### Kenneth J. Rexford for AppelleeCase No. 8-21-31

-2- SHAW, J. {¶1} Plaintiff-Appellant, State of Ohio (“State”), brings this appea l from the September 21, 2021 judgment of the Logan County Common Pleas Co urt granting in part and denying in part Defendant-Appellee, Kandale L. Harrison’s m otion to suppress. On appeal, the State argues that the trial court should not have s uppressed the evidence found during an Adult Parole Authority Officer’s search of Harrison’s vehicle. Background {¶2} On July 14, 2020, Harrison was indicted on four criminal charge s stemming from two separate incidents on May 27, 2020 and June 13, 2020. Based on the first incident, Harrison was indicted on Counts One and Two: (1) pos session of fentanyl-related compound in violation of R.C. 2925.11, a third-degree felony, a nd (2) possession of cocaine in violation of R.C. 2925.11, a fifth-degree felony. B ased on the second incident, Harrison was indicted on Counts Three and Four: (3) possession of cocaine in violation of R.C. 2925.11, a fifth-degree felony, and (4) illegal conveyance of drugs of abuse onto grounds of a specified governmental facility in violation of R. C. 2921.36(A)(2), a thirddegree felony. {¶3} After a not guilty plea, Harrison filed a motion to suppress. In his motion, Harrison sought to suppress evidence obtained on June 13, 2020 as well, but the sole focus on appeal is the warrantless search of the vehicle Harrison was observed operating on MayCase No. 8-21-31

-3- 27, 2020. Harrison’s new counsel thereafter filed supplemental briefing on the motion. The State filed a memorandum contra to the motion to suppress. {¶4} A hearing was held on the suppression motion on August 25, 2021 . Testimony at Harrison’s suppression hearing reflects that he was on post release control in May 2020. Condition No. 7 of the conditions of Harrison’s post release co ntrol supervision provided: “I agree to the warrantless search of my person, motor vehicle, place of residence, personal property, or property that I have been given permission to use, by my supervising officer or other authorized personnel of the Ohio Department of Rehabil itation and Correction at any time.” (State’s Exhibit 1). {¶5} On May 27, 2020, while on patrol, Bellefontaine Police Officer Hostetler testified that he observed Harrison operating a vehicle. Offic er Hostetler recognized him from a prior drug trafficking investigation. A license check r evealed that Harrison was under an “OVI” suspension. However, due to traffic reasons, Of ficer Hostetler was unable to catch up with Harrison to initiate a traffic stop at that ti me. Soon afterward, while patrolling, Office Hostetler encountered another vehicle he was familiar with as involved in prior drug activity, so then he began following that vehicle into the Highland Hills Plaza parking lot. As Officer Hostetler entered the plaza parking lo t, he observed Harrison’s vehicle. He further observed both Harrison get out of his vehi cle and a male from the other vehicle, who he was familiar with for selling and receiving lar ge amounts of marijuana, and they were both walking toward one another. According to Of ficer Hostetler, once theyCase No. 8-21-31

-4- observed the Officer’s patrol car, they both then stopped walki ng toward one another, attempted to enter the Dollar General Store (which was locked), and then entered the Community Market grocery store. Because Officer Hostetler had knowledge that Harrison was on post release control, he then called Adult Parole Author ity (“APA”) Officer McKirahan in Bellefontaine and explained to him “that I observe d [Harrison] driving under suspension. I also explained to Officer McKirahan the behavior that I observed in the parking lot between both males[.]” (Tr. at 39). {¶6} APA Officer McKirahan testified that he received a call from th e Bellefontaine Police Department, on May 27, about Harrison. “It was in regar ds to what appeared to be suspicious drug activity.” Id. at 63. When asked whether he was told anything else about Harrison, APA Officer McKirahan replied, “That he drove there i n a vehicle, and I’m pretty sure his license was suspended too.” Id. at 64. At that time, APA Officer McKirahan told the Bellefontaine Police Officer “that he was good to [arrest H arrison] on a [parole violation] due to him being in the city in what appeared to be a violation of rule standard condition number one, which is no illegal drug activity or anyt hing of that.” Id. at 65. {¶7} After exiting the store, Harrison did not return to his vehicle . Instead, he walked around the store to the back of the plaza shopping cente r. Officer Hostetler made contact with Harrison and said Harrison became argumentative wh en he arrested him for an alleged “parole violation.” Harrison was placed in the back seat of Officer Hostetler’s partner’s patrol car. APA Officer McKirahan arrived. Harrison denied he owned theCase No. 8-21-31

-5- vehicle and refused to turn over the key fob. Law enforcement attempted to obtain the key fob, but they were not able to recover it from Harrison at the scene. After Harrison was transported to the jail, law enforcement did recover the key fo b. The fob was taken back to the plaza center parking lot where Officer McKirahan subsequent ly conducted a search of the vehicle and found a digital scale, marijuana, cocaine, and fentanyl. {¶8} Following this incident, on June 8, APA Officer Burns issued Ha rrison a sanction receipt. The receipt stated, in part, “[y]ou also fai led to comply with [a] direct order from your Supervising officer [i.e., APA Officer Burns], to STAY OUT of City of Bellefontaine while on supervision.” (State’s Exhibit 2). The sanction receipt also stated: “You are ordered to STAY OUT of the [City] of Bellefontaine whi le on supervision, only allowed to be in the City of Belle[]fontaine to attend Court He arings as scheduled.” Id. {¶9} Based on the suppression-hearing testimony, the trial court gra nted in part and denied in part Harrison’s motion to suppress. His motion was g ranted as to Counts One

and Two but denied as to Counts Three and Four. The trial cour t granted Harrison’s motion

as to Counts One and Two for the reasons that APA Officer McKir ahan did not have reasonable grounds to conduct the search of Harrison’s vehicle pursuant to the warrantless search Condition No. 7 of his post release control supervision and that the search was not based on probable cause. As a consequence, the trial court sup pressed all evidence resulting from the search on May 27, 2020.Case No. 8-21-31

-6- {¶10} The State now appeals, asserting the following assignment of er ror for our

review. The trial court erred in suppressing the State’s evidence found during an APA Officer’s search of the Defendant’s vehicle. {¶11} In its assignment of error, the State argues that the trial cou rt erred by granting Harrison’s motion to suppress the State’s evidence found during APA Officer McKirahan’s

search of Harrison’s vehicle. Standard of Review {¶12} A suppression motion is a device used to eliminate evidence fro m a criminal trial that has been secured illegally in violation of the Fourt h, Fifth, or Sixth Amendment.

State v. French , 72 Ohio St.3d 446, 449, 1995-Ohio-32. Appellate review of a decision on a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id . citing State v. Mills , 62 Ohio St.3d 357, 366 (1992). When reviewing a motion to suppress, “an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence.” Id ., citing State v. Fanning , 1 Ohio St.3d 19 (1982). With respect to the trial court’s conc lusions of law, however, our

standard of review is de novo , and we must independently determine whether the facts satisfy the applicable legal standard. Id ., citing State v. McNamara , 124 Ohio App.3d 706 (4th Dist.1997).Case No. 8-21-31

-7- Argument and Analysis {¶13} In support of its assignment of error, the State argues that th e trial court failed to consider the adult parole authority’s statutory authority to analyze the validity of the APA Officer’s verbal arrest order of a person suspected of viol ating post release control conditions and his subsequent warrantless post release control search. {¶14} The State first argues APA Officer McKirahan’s verbal arrest or der was justified pursuant to R.C. 2967.15 because he had reasonable ca use to believe there were violations of the Conditions of Supervision based on facts rela yed that Harrison was observed operating a vehicle with a suspended license in Bellef ontaine and that he was possibly involved in suspected drug activity. {¶15} The APA has statutory authority to arrest or have a police offi cer arrest a person alleged to be in violation of his post release control, R.C. 2967.15. Specifically, Section (A) states that: If an adult parole authority field officer has reasonable cause to believe that a person * * * who is under the supervision of the adult p arole authority has violated or is violating the condition of a condi tional pardon, parole, other form of authorized release, transitional control, or post-release control * * * or any other term or condition of th e person's conditional pardon, parole, other form of authorized release, transitional control, or post-release control, the field office r may arrest the person without a warrant or order a peace officer to arrest the person without a warrant. R.C. 2967.15(A).Case No. 8-21-31

-8- {¶16} Under the circumstances of the instant case, there was sufficie nt evidence that Officer Hostetler lawfully arrested Harrison pursuant to APA Of ficer McKirahan’s order. According to Officer Hostetler, he had informed APA Officer McK irahan of the fact that he observed Harrison driving under suspension in Bellefontaine and that he had also observed Harrison appear to rendezvous and begin to engage with a person known by Officer Hostetler to have been involved in prior drug activity. The driving under suspension alone was a clear violation of Harrison’s first cond ition of supervision which required him to “obey federal, state and local laws and ordinan ces, including those related to illegal drug use.” (State’s Exhibit 1). APA Officer McKira han then ordered the arrest, which was supported by all of the foregoing information known t o him at the time. {¶17} While we do not rely specifically upon the fact of Harrison bei ng in “the city,” i.e. Bellefontaine as a conclusive violation of conditions, bec ause, as noted by the trial court, that condition had not yet been reduced to a written con dition, we do find that this

circumstance was at least some additional evidence to establish reasonable cause to suspect that Harrison was not complying with the conditions of his post release control. As presented by his supervising APA officer’s testimony, Harrison was given a prior verbal order by APA Officer Burns to stay out of the city of Bellefont aine while on supervision because Harrison had previously claimed that he was “getting st opped or harassed” every time he goes there . (Tr. at 17). The second co ndition of supe rvision required Harrison to “follow all orders given to [him] by [his] supervising officer. ” (State’s Exhibit 1). As suchCase No. 8-21-31

-9- the order to arrest by Officer McKirahan was consistent with go od faith reliance on APA

Officer Burns’ instructions to Harrison. {¶18} In any event, based upon the statutory authority of R.C. 2967.1 5 and the totality of the circumstances in this case, there was reasonabl e cause for APA Officer McKirahan to believe Harrison was violating his “Conditions of Supervision” while under post release control and thereby order the detention and arrest

. {¶19} The second suppression issue is whether APA Officer McKirahan p roperly initiated the subsequent search of Harrison’s vehicle. The Sta te argues that the search of his vehicle was supported by reasonable grounds pursuant to R.C . 2967.131(C) and the consent to search provisions of Condition No. 7 of the terms an d conditions of post release

control set forth earlier. {¶20} The statutory authority afforded to APA officers to conduct war rantless searches of offenders released on post release control supervis ion is found in R.C. 2967.131(C), which states that “authorized field officers of th e authority * * * may search, * * * without a warrant,” a felon’s person, residence, vehicle, or other property if they “have reasonable grounds to believe” that he “is not complying with the terms and conditions” of his post release control. R.C. 2967.131(C). Th is standard is further supported in Condition 7 of the terms and conditions of Harriso n’s post release control as set forth earlier, providing for a blanket consent to conduct a warrantless search of any motor vehicle he operated at any time.Case No. 8-21-31

-10- {¶21} Officer Hostetler testified that he detained Harrison until APA Officer McKirahan arrived, which was about eleven minutes later accordi ng to his police cruiser video. Upon his arrival, APA Officer McKirahan and Harrison ha d an argumentative conversation about the arrest and when asked about the vehicle, Harrison claimed that he did not drive there, but he had the key fob on him. Officer Mc Kirahan asked him for the key fob to the vehicle and as the officers attempted to retriev e the key fob, the car alarm for the vehicle that was under suspicion started going off, whi ch vehicle was registered to Harrison’s mother. In his testimony, Officer McKirahan describ ed Harrison’s behavior, stating that “his behavior was conducive to what I believed of trying to suppress us from finding something. So, with his behavior and how he was acting and just his body language and pushing and trying to get us to get away from the vehicle g ave me reasonable grounds to believe that he was hiding something in that car.” (Tr. at 67). {¶22} We reiterate, the standard for evaluating the search in this in stance is established in R.C. 2967.131(C), to wit: “reasonable grounds to believe [Harrison] is not complying with the terms and conditions of his post release con trol” as opposed to the more traditional standard of probable cause to believe that the vehi cle contained drugs, exclusively relied upon by the trial court in its decision to s uppress. As such, it is our conclusion that the personal interaction and conversation with Harrison at the scene, coupled with the totality of circumstances known to Officer McK irahan up to this point, including the driving under suspension, apparent effort to rend ezvous with and approach aCase No. 8-21-31

-11- known drug dealer, and the evasive behavior in the parking lot prior to his detention by Officer Hostetler, constituted sufficient grounds to support th e search of the car pursuant to the governing standards of R.C. 2967.131(C) and Condition 7 of the terms and conditions of post release control. {¶23} In our judgment, and given the constant communication between O fficer Hostetler and Officer McKirahan leading up to the arrest and se arch, the time delay of approximately eleven minutes in Officer McKirahan arriving is n ot significant in this case. Further, it is evident from APA Officer McKirahan’s testimony t hat he did not rely solely

on Officer Hostetler’s observations but also relied on his own observations and interaction with Harrison prior to searching the vehicle. Officer McKiraha n’s conversation with Harrison as described above, is alone objectively consistent wi th reasonable grounds to believe that there was something in the vehicle which would pla ce Harrison in violation of his post release control, and that Harrison knew it. {¶24} For all of the foregoing reasons, it is our conclusion that the trial court improperly granted the motion to suppress as to Counts One and Two and the State’s assignment of error is sustained. {¶25} We therefore reverse the judgment of the trial court granting t he motion to suppress in part as to Counts One and Two and remand the matter to the trial court forCase No. 8-21-31

-12- further proceedings according to law. Judgment Reversed and Cause Remanded MILLER, and WILLAMOWSKI, J.J., concur. /jlr