[Cite as State v. Belcher, 2011-Ohio-5015.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 24385 

vs. : T.C. CASE NO. 10CR2436/1 

JOSHUA M. BELCHER : (Criminal Appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 30th day of September, 2011. 

 . . . . . . . . . 

Mathias H. Heck, Jr., Prosecuting Attorney; Laura M. Woodruff, 

Asst. Pros. Attorney, Atty. Reg. No. 0084161, P.O. Box 972, Dayton, 

OH 45422 

Attorney for Plaintiff-Appellee 

Charles W. Slicer, III, Atty. Reg. No. 0059927, 111 W. First Street, 

Suite 518, Dayton, OH 45402 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} Defendant, Joshua M. Belcher, appeals from his two 

convictions for theft, which were entered on Belcher’s pleas of 

no contest after the trial court overruled Defendant’s motion to 
2

suppress evidence. 

{¶ 2} Belcher and two co-defendants were charged by indictment 

with two counts of theft, R.C. 2913.02(A)(1). Count One alleged 

that Belcher and his co-defendants had stolen property having a 

total value of five hundred dollars or more from nine different 

persons, a second degree felony. Count Two alleged that Belcher 

and one co-defendant had stolen a credit card belonging to another, 

which per R.C. 2913.71(A) is a fifth degree felony. Belcher 

entered not guilty pleas. 

{¶ 3} Belcher filed a Crim.R. 12(C)(3) motion to suppress 

evidence. (Dkt. 12). The motion sought to suppress “all evidence 

obtained from Defendant who was a passenger in an automobile” and 

“all evidence obtained as a result of information obtained from 

Defendant as the result of the stop of Defendant who was a passenger 

in an automobile.” The motion further states: 

{¶ 4} “As grounds for this Motion, Defendant asserts that the 

stop and search of Defendant and the subsequent seizure of evidence 

was accomplished without the benefit of a duly issued and executed 

search warrant or was outside the scope of a duly issued and 

authorized search warrant, was not conducted with the knowledgeable 

consent of the Defendant, was not based upon probable cause, nor 

within the scope of a search incident to a lawful arrest. Further, 

it does not appear that exigent circumstances required an immediate 
3

search of Defendant. Such a search and seizure constitutes a 

denial of Defendant’s right as guaranteed by the Fourth Amendment 

to the United States Constitution and by the Constitution of the 

State of Ohio. 

{¶ 5} “Defendant further asserts that any statements made by 

the Defendant to any law enforcement officers were obtained in 

violation of Defendant’s rights guaranteed by the Fifth and 

Fourteenth Amendment to the United States Constitution and by 

Article One of the Ohio constitution, as such statements were not 

made voluntarily and were made without the benefit of counsel, 

without full and adequate explanation of Defendant’s rights, and 

without a knowing and intelligent waiver of these rights.” 

{¶ 6} The Memorandum In Support of Defendant’s motion to 

suppress identified no statement Defendant had made or other 

“information” police obtained from him. Indeed, the facts leading 

to Defendant’s arrest which are set out in the Memorandum explain 

that Defendant was stopped, searched, and arrested while he and 

his two co-defendants were “walking down the street,” which belies 

Defendant’s assertion that he was a “passenger in an automobile.” 

 Further, the arguments Defendant presented in the Memorandum are 

limited to a contention that the officer who detained him lacked 

a reasonable and articulable suspicion of criminal activity 

required by Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 
4

L.Ed.2d 889, in order to stop and detain Defendant and his 

companions, rendering any evidence derived from that illegality 

subject to suppression. 

{¶ 7} The court held a hearing on Defendant’s motion to 

suppress evidence on October 12, 2010. The only witness called 

to testify was Clayton Police Officer Howard Titus, who was called 

by the State. At the conclusion of the evidence, the court heard 

arguments. Defendant argued that he was stopped and detained by 

Officer Titus illegally, because the officer lacked the necessary 

reasonable and articulable suspicion of criminal activity required 

by Terry. (T. 24-25). The State argued that the officer acted 

on a reasonable and articulable suspicion of criminal activity, 

because articles seen in plain view in Defendant’s backpack 

reasonably connected him to theft offenses that had occurred in 

that area. The court took the matter under advisement. 

{¶ 8} On October 27, 2010, the court made the following oral 

findings of fact: 

{¶ 9} “Officer Howard Titus of the Clayton Police Department 

was working on August the 7th, 2010. He was working the day shift, 

which is 5:45 a.m. to 2:00 p.m. He’s been with Clayton since 1988, 

and is a part-time patrol officer working one to two days a week. 

{¶ 10} “On his way to work at approximately 5:20 a.m. on Old 

Salem Road in the city of Clayton, he observed three males walking 
5

in the grass. It was dark. He found it unusual, because foot 

traffic is rare in that area, particularly given the time of the 

morning, also. He did not recognize any of the individuals, but 

was aware that there had been significant recent criminal activity 

in the area, including thefts from vehicles, garages, and 

residential burglaries. Those individuals were within one quarter 

of a mile of the police department. There is no sidewalk in that 

area and the individuals were walking in the grass. 

{¶ 11} “Officer Titus had taken recent reports in the area 

involving events in the overnight hours that involved theft 

offenses. Officer Titus was in the uniform of the day. He went 

to the police station, got in a marked cruiser and returned then 

to the area, saw the same three individuals in the area of Taywood 

and Old Salem. 

{¶ 12} “He approached those individuals in his vehicle. He 

observed one of those individuals, the defendant, Mr. Belcher, 

carrying a backpack. As he was pulling – it was at a fire station 

– as he was pulling into that area, Mr. Belcher put the backpack 

down, walked away from it, and then Mr. Belcher and the two 

individuals with him approached Officer Titus. 

{¶ 13} “Officer Titus sought to identify the three individuals, 

because he felt it was unusual for there to be pedestrian traffic 

in that neighborhood at that time of the day. One of the 
6

individuals said that they were looking for Main Street, but they 

were walking in the opposite direction. 

{¶ 14} “Officer Titus called for backup. Mr. Belcher appeared 

to be nervous. Mr. Belcher and the two people he was with 

approached Officer Titus. They were patted down. The backpack 

was retrieved from near a vehicle and it contained a radar detector, 

a purse and a power cord. None of the individuals had 

identification and they were arrested approximately 20 feet from 

the backpack. 

{¶ 15} “The Court first finds that the defendant had no standing 

to challenge the search of the backpack. The protection afforded 

by the Fourth Amendment does not implicate – is not implicated 

in every situation between the police and a citizen. The test 

to determine whether a person has been seized is whether, in view 

of all the circumstances, a reasonable person would believe that 

he was not free to leave. There’s no evidence that the officer 

physically – well, even if that were the case, the defendant 

abandoned the backpack long before any seizure took place. An 

individual does not have standing to object to a search of property 

that he has voluntarily abandoned. 

{¶ 16} “Abandoned property is determined – is a question of 

intent and is inferred from words spoken, acts done, and other 

objective facts. The Court determines that the property was 
7

abandoned, as the defendant put it down, near a vehicle, walked 

away from it, evidencing his intention to abandon it. Therefore, 

the defendant did not have standing to object to the search of 

that property, and his motion is overruled in its entirety. The 

Motion to Suppress is overruled.” (T. 2-4). 

{¶ 17} Defendant subsequently entered no contest pleas to the 

two theft offenses. He was sentenced to serve two concurrent 

twelve month terms of incarceration, to pay restitution to the 

victims of his theft offenses, and to serve three year terms of 

post-release control. Defendant filed a notice of appeal. 

ASSIGNMENT OF ERROR

{¶ 18} “THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION 

TO SUPPRESS.” 

{¶ 19} Defendant argues that the trial court erred when it 

overruled his motion to suppress evidence, again relying on the 

Terry violation he argued in the trial court. 

{¶ 20} The State argues that the trial court did not err when 

it found that Defendant abandoned the backpack and its contents. 

 Alternatively, the State argues that the entire incident was a 

consensual encounter, to which the Fourth Amendment has no 

application. 

{¶ 21} Encounters are consensual where the police merely 

approach a person in a public place, engage the person in 
8

conversation, request information, and the person is free not to 

answer and walk away. United States v. Mendenhall (1980), 446 

U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497, 504-505; State 

v. Cook, Montgomery App. No. 20427, 2004-Ohio-4793. If the 

person’s liberty is restrained by police, however, a seizure has 

occurred which implicates the Fourth Amendment protections and 

requires legal justification. Mendenhall; State v. Gonsior

(1996), 117 Ohio App.3d 481. 

{¶ 22} A seizure occurs when, in view of all of the circumstances 

surrounding the incident, the police officer has either by physical 

force or a show of authority restrained the person’s liberty so 

that a reasonable person would not feel free to decline the 

officer’s requests and walk away or otherwise terminate the 

encounter. Mendenhall; State v. Williams (1990), 51 Ohio St.3d 

58, 61; Cook. Factors that might indicate a seizure include the 

threatening presence of several police officers, the display of 

a weapon, some physical touching of the person, the use of language 

or tone of voice indicating that compliance with the officer’s 

request might be required, approaching the person in a non-public 

place, and blocking the citizen’s path. Mendenhall; Cook. 

{¶ 23} When Officer Titus approached the three men he asked 

the three men to “step over here.” Officer Titus introduced 

himself and told the men he had stopped them because he didn’t 
9

recognize them and there had been a lot of problems with vehicle 

break-ins and thefts in that area, and he wanted to identify them. 

 Officer Titus patted each man down, and then ran each man’s name 

and identifying information through the computer in his police 

cruiser. 

{¶ 24} Officer Titus clearly indicated that the men were to 

remain where they were while he ran their names, saying: “hang 

on for a second, gentlemen, make sure you’re not wanted and we’ll 

go from there.” Officer Titus admitted that the men were not free 

to leave, and that he would have pursued them had they run. None 

of the men had any outstanding warrants. While Officer Titus was 

obtaining that information, police back-up arrived. Officer Titus 

then walked over to where Defendant had put down the backpack and 

looked at it. In the top of the open backpack, Officer Titus 

observed a radar detector, a woman’s purse, and a power cord. 

At that point Officer Titus arrested Defendant for theft. 

{¶ 25} Based upon these facts, we conclude that while the 

encounter between Defendant and Officer Titus began as a consensual 

encounter, it developed into a Terry investigative stop that 

involved a seizure of Defendant’s person. Mendenhall. In our 

judgment, under these circumstances, which include Officer Titus’ 

request for the men to “step over here” and remain there while 

he ran their names and identifying information, a direction with 
10

which the men complied, a reasonable person would not have felt 

free to ignore Officer Titus’ directions and walk away. Id. This 

seizure of Defendant’s person required legal justification in order 

to be lawful. Gonsior. 

{¶ 26} In State v. Cosby, 177 Ohio App.3d 670, 2008-Ohio-3862 

at ¶16-18, this court observed: 

{¶ 27} “Warrantless searches and seizures are per se 

unreasonable under the Fourth Amendment, subject to only a few 

well-recognized exceptions. Katz v. United States (1967), 389 U.S. 

347, 88 S.Ct. 507, 19 L.Ed.2d 576. One of those exceptions is the 

rule regarding investigative stops, announced in Terry, 392 U.S. 

1, 88 S.Ct. 1868, 20 L.Ed.2d 889, which provides that a police 

officer may stop an individual to investigate unusual behavior, 

even absent a prior judicial warrant or probable cause to arrest, 

where the officer has a reasonable, articulable suspicion that 

specific criminal activity may be afoot. 

{¶ 28} “An officer's inchoate hunch or suspicion will not 

justify an investigatory stop. Rather, justification for a 

particular seizure must be based upon specific and articulable 

facts that, taken together with the rational inferences from those 

facts, reasonably warrant that intrusion. The facts must be judged 

against an objective standard: whether the facts available to the 

officer at the moment of seizure or search would warrant a person 
11

of reasonable caution in the belief that the action taken was 

appropriate. Id. See also State v. Grayson (1991), 72 Ohio App.3d 

283, 594 N.E.2d 651. 

{¶ 29} “Whether an investigative stop is reasonable must be 

determined from the totality of the circumstances that surround 

it. State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 

414 N.E.2d 1044. The totality of the circumstances are ‘to be viewed 

through the eyes of the reasonable and prudent police officer on 

the scene who must react to events as they unfold.’ State v. Andrews

(1991), 57 Ohio St.3d 86, 87–88, 565 N.E.2d 1271, citing United 

States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859; Freeman, supra, 

at 295, 18 O.O.3d 472, 414 N.E.2d 1044.” 

{¶ 30} On the facts in this case, Officer Titus did not have 

reasonable, articulable suspicion of criminal activity to justify 

a Terry investigative stop and detention of Defendant. The conduct 

observed by Officer Titus, three men he did not know, one of whom, 

was wearing a backpack, who were walking alongside Old Salem Road 

at 5:20 in the morning in an area where there had been several 

recent vehicle break-ins and theft offenses, fails to demonstrate 

a nexus between the men and some particular criminal conduct such 

as theft. No matter how unusual someone wearing a backpack and 

walking alongside Old Salem Road at 5:20 a.m. may be, that conduct 

itself is innocent or at most ambiguous, and not indicative of 
12

any criminal activity. 

{¶ 31} Furthermore, the mere fact that this innocent or 

ambiguous conduct occurred in an area where crimes had occurred 

does not make it criminal in character or give rise to a reasonable 

suspicion of specific criminal activity. State v. Maldonado

(Sept. 24, 1993), Montgomery App. No. 13530. Simply being present 

in a high crime area, by itself, is not indicative of criminal 

activity, nor does it justify a Terry investigative stop. Cosby. 

 Officer Titus detained Defendant on nothing more than an inchoate 

hunch, which is legally insufficient to justify a Terry

investigative stop. Id; Gonsior. The Terry investigative stop 

and detention/seizure of Defendant’s person in this case was 

therefore illegal and violated Defendant’s Fourth Amendment 

rights. 

{¶ 32} The trial court concluded, however, that Defendant 

voluntarily abandoned the backpack before any investigatory stop 

and seizure of Defendant took place, and that as a result Defendant 

lacks standing to challenge the legality of the search of the 

backpack. In State v. Dennis, 182 Ohio App.3d 674, 2009-Ohio-2173, 

at ¶38-39, 41, we stated: 

{¶ 33} “It has long been settled that ‘[a] defendant has no 

standing under the Fourth Amendment to the United States 

Constitution to object to a search and seizure of property that 
13

he has voluntarily abandoned.’ State v. Freeman (1980), 64 Ohio 

St.2d 291 [18 O.O.3d 472], 414 N.E.2d 1044, paragraph two of the 

syllabus. As the Ohio Supreme Court has reiterated: 

{¶ 34} “‘Abandonment is primarily a question of intent, and 

intent may be inferred from words spoken, acts done, and other 

objective facts. United States v. Cowan (C.A.2, 1968), 396 F.2d 

83, 87. All relevant circumstances existing at the time of the 

alleged abandonment should be considered. United States v. Manning

(C.A.5, 1971), 440 F.2d 1105, 1111. The issue is not abandonment 

in the strict property-right sense, but whether the person 

prejudiced by the search had voluntarily discarded, left behind, 

or otherwise relinquished his interest in the property in question 

so that he could no longer retain a reasonable expectation of 

privacy with regard to it at the time of the search. United States 

v. Edwards, supra, 441 F.2d at 753; Katz v. United States (1967), 

389 U.S. 347, 83 [88] S.Ct. 507 [19 L.Ed.2d 576].’ Id. at 297 [18 

O.O.3d 472, 414 N.E.2d 1044], quoting United States v. Colbert 

(C.A.5, 1973), 474 F.2d 174, 176.” Russell, 2007-Ohio-137, 2007 

WL 93202, at ¶ 21–22. 

{¶ 35} “* * * 

{¶ 36} “The government bears the burden of establishing, by 

a preponderance of the evidence, that the defendant abandoned the 

property at issue. State v. Dubose, 164 Ohio App.3d 698, 
14

2005-Ohio-6602, 843 N.E.2d 1222, ¶ 43.” 

{¶ 37} The evidence demonstrates that as Officer Titus 

approached and began exiting his cruiser, Defendant took off the 

backpack he wore. Defendant did not throw or “discard” the 

backpack, but rather placed it on the ground of the parking lot 

of the fire station where he stood, and then walked some twenty 

feet over to Officer Titus, in response to the officer’s direction 

to “step over here.” Defendant never left the scene where he placed 

the backpack and, having been instructed to remain where he was 

standing, Defendant did not have an opportunity thereafter to 

return and retrieve the backpack. Under these facts and 

circumstances, Defendant did not voluntarily abandon or relinquish 

his interest in the backpack, and it cannot be said that he no 

longer retained a reasonable expectation of privacy with regard 

to it at the time of the search. Dennis. 

{¶ 38} The trial court erred when it found that Defendant lacks 

standing to object to the seizure and search of his backpack and 

its contents because he abandoned them when he placed the backpack 

on the ground. Even though the trial court’s decision overruling 

Defendant’s motion on that basis was likewise erroneous, we may 

affirm by deciding the suppression issue on grounds different from 

those determined by the trial court so long as the evidentiary 

basis on which we decide the legal issue concerned was adduced 
15

before the trial court and made a part of its record. State v. 

Peagler (1996), 76 Ohio St.3d 496. 

{¶ 39} The Fourth Amendment prohibits unreasonable searches 

and seizures of “persons” and their “houses, papers, and effects.” 

 The search and seizure of Defendant’s backpack was performed 

without benefit of a judicial warrant. Warrantless searches are 

per se unreasonable. Katz v. United States (1967), 389 U.S. 347, 

88 S.Ct. 507, 19 L.Ed.2d 576. Warrantless searches and seizures 

are not illegal, however, if one of the several exceptions to the 

Fourth Amendment’s warrant requirement is demonstrated. 

{¶ 40} The State relied on the “plain view” exception to the 

warrant requirement, which permits seizure of objects falling in 

the plain view of an officer who has a right to be in a position 

to see them. Harris v. United States (1968), 390 U.S. 234, 88 

S.Ct. 932, 19 L.Ed.2d 1067. It is undisputed that the contents 

of the backpack were in Officer Titus’s plain view when he walked 

over to the backpack and looked at it. The issue is whether he 

was then legally in a position to do that. 

{¶ 41} We found that what began as a consensual encounter became 

a detention for purpose of Terry when Officer Titus subsequently 

instructed Defendant and his companions to remain where they were 

standing, before he walked over to the backpack Defendant had put 

on the ground. Because that detention lacked the reasonable and 
16

articulable suspicion of criminal activity that Terry requires, 

the detention and any search it involved were illegal. The 

exclusionary rule requires suppression of evidence seized in the 

course of unlawful search. Weeks v. United States (1914), 232 

U.S. 383, 58 L.Ed.2d 652, 34 S.Ct. 341. 

{¶ 42} The exclusionary rule also requires suppression of 

derivative evidence: that is, evidence that is the product of the 

primary evidence illegally seized, or that is otherwise acquired 

as an indirect result of the unlawful search, up to the point at 

which the connection with the unlawful search becomes “so 

attenuated as to dissipate the taint” of the particular illegality. 

Nardone v. United States (1939), 308 U.S. 338, 341, 84 L.Ed.307, 

60 S.Ct. 266. Such evidence is exempt from suppression under the 

“independent source” doctrine. Silverthorne Lumber Co. v. United 

States (1920), 251 U.S. 385, 392, 64 L.Ed.319, 40 S.Ct. 182. 

Because the purpose of the exclusionary rule is to put police in 

the same, not a worse, position that they would have been in had 

no illegal conduct occurred, the independent source rule generally 

applies to “all evidence acquired in a fashion untainted by the 

illegal evidence-gathering activity.” Murray v. United States

(1988), 487 U.S. 533, 537-538, 108 S.Ct. 2529, 101 L.Ed.2d 472, 

480. 

{¶ 43} After the backup assistance he requested had arrived, 
17

Officer Titus walked to where Defendant put the backpack on the 

ground when the consensual encounter began. Because Defendant 

placed the backpack on the ground before the illegal detention 

occurred, the plain view of that evidence that Officer Titus 

subsequently acquired was untainted by the Terry illegality the 

subsequent detention involved. Further, the backpack was located 

in a public place, where the backpack and its contents were open 

to view and plainly visible, and there is no reasonable expectation 

of privacy regarding such property. Katz, Ohio Arrest, Search 

and Seizure (2008), §14.5. Accordingly, the trial court did not 

err when it overruled Defendant’s motion to suppress evidence 

obtained in the search and seizure of Defendant’s backpack that 

Officer Titus performed. 

{¶ 44} The assignment of error is overruled. The judgment of 

conviction from which the appeal is taken will be affirmed. 

FAIN, J. And DONOVAN, J., concur. 

Copies mailed to: 

Laura M. Woodruff, Esq. 

Charles W. Slicer, III, Esq. 

Hon. Mary Katherine Huffman