Where the police officer has probable cause to arrest independent of the items obtained in the search, but does not arrest until shortly after the search, the search is not offensive to the Fourth Amendment to the United States Constitution.
State v. Kline
2024 – Ohio – 150
Ninth District Appellate Court
Summit County, Ohio
January 17, 2024
A grand jury indicted Ms. Lori Kline on one count of aggravated possession of methamphetamine. She filed a motion to suppress, and the trial court held a suppression hearing. After the court denied her motion, Ms. Kline entered a no contest plea. The trial court sentenced her to community control and stayed her sentence so she could appeal its suppression ruling.
Ms. Kline’s appeal is now before this Court. She raises six assignments of error for our review. For ease of analysis, we combine several of her assignments of error.
Note: Though there are six different appeals in this case, only one will be analyzed – the search of Ms. Kline’s methamphetamine bag. All six of the appeals, to include the search of the methamphetamine bag were all overruled by the Ninth District Appellate Court.
Did the Officers Establish Reasonable Suspicion to Detain Ms. Lori Kline?
In her second assignment of error, Ms. Kline argues the trial court erred when it denied her motion to suppress. Specifically, she argues that officers lacked reasonable suspicion to detain her, did not have probable cause to arrest her prior to the search of her bags, and did not have consent to conduct that search.
Trial Court’s Factual Findings
The trial court made each of the following factual findings. Norton Police Officer Christopher Beese, a ten-year veteran, responded to an area off Cleveland- Massillon Road. An employee from the Norton Fire Department had reported that a white vehicle was parked in a private clearing beneath power lines owned by Ohio Edison/First Energy. The power lines were on one side of a maintenance road owned by the power company. Railroad tracks located on the other side of the maintenance road belonged to the Barberton Beltway Railroad Company.
Officer Beese Learns Ms. Kline is a Trespassing Recidivist
When Officer Beese and a second officer arrived on scene, they spotted a white, abandoned vehicle beneath the power lines. They ran the vehicle’s registration and discovered that it was registered to Ms. Kline. Officer Beese also discovered that the Barberton Police Department had issued verbal warnings to Ms. Kline on two prior occasions. Specifically, she had been warned to stop trespassing on railroad tracks located in Barberton. Officer Beese noted that those tracks were an extension of the ones running alongside the maintenance road.
Officer Christopher Beese observed rock and methamphetamine collector Ms. Lori Kline on the access road just east of Cleveland-Massillon Road. This information was obtained from Officer Beese in a phone interview on July 5, 2024.
Ms. Kline Claims She is a Rock Collector
Officer Beese and the second officer were standing nearby Ms. Kline’s vehicle when she emerged from a tree line on the railroad track side of the maintenance road. She walked toward the officers carrying three bags, one of which was lime green. She and the officers exchanged greetings, and she set her bags on the ground. When the second officer asked what was in the bags, Ms. Kline said she had been collecting rocks and opened one of the bags to show the officers. The trial court found that Ms. Kline then unzipped the lime green bag and began to describe its contents to the officers. At that point, the trial court found, the second officer told Ms. Kline to “hold on” and slid the lime green bag over to Officer Beese. Officer Beese searched the lime green bag and found suspected methamphetamine inside a large cigarette holder.
Did Ms. Kline Leave her Vehicle Abandoned or Unattended … or Both?
Ms. Kline challenges two of the trial court’s findings. First, she challenges the court’s finding that her vehicle was “abandoned.” She argues that there was no evidence she intended to relinquish her ownership of the vehicle. Yet, nothing in the record suggests the trial court employed the word “abandoned” as a term of art. The court merely used the word as a synonym for unattended. Officer Beese testified that he and a second officer found Ms. Kline’s vehicle empty upon their arrival. Thus, the record contains competent, credible evidence in support of the trial court’s finding that the vehicle was abandoned. This Court accepts that finding as true.
Ms. Kline’s ‘Hold on’ Claim was not based on Competent or Credible Evidence
Second, Ms. Kline argues the trial court erred when it found that the second officer told her to “hold on” before he passed her lime green bag to Officer Beese. A review of a recording from Officer Beese’s bodycam reveals that, before the second officer touched Ms. Kline’s bag, he told her to “calm down, calm down.” He never instructed her to “hold on.” Thus, to the extent the trial court made that finding, it is not based on competent, credible evidence. This Court will disregard that finding in conducting its independent legal determination.
Ms. Kline has not challenged any of the trial court’s remaining factual findings. Our review of the record reveals that those findings are based on competent, credible evidence. Thus, we accept them as true and employ them in our independent legal analysis.
Reasonable Suspicion
Established Case Law
“[A] law enforcement officer may initiate a stop when the officer has a reasonable and articulable suspicion that the individual has been, is, or is about to engage in criminal activity.” State v. Yoder, 2021-Ohio-496. “Reasonable suspicion is based on the totality of the circumstances.” State v. Hochstetler, 2016- Ohio-8389. “A totality of the circumstances review includes consideration of ‘(1) [the] location; (2) the officer’s experience, training or knowledge; (3) the suspect’s conduct or appearance; and (4) the surrounding circumstances.’” State v. Kordich, 2017-Ohio-234.
Ms. Kline Claims the Officers were Not Reasonable to Detain a Lawful Rock and Glass Collector
The trial court found that officers were justified in detaining Ms. Kline because they had reasonable suspicion to believe she was committing the crime of criminal trespassing. Ms. Kline argues that reasonable suspicion did not exist because the area was devoid of any “no trespassing” signs or other indications that it was closed to the public. She notes that she immediately explained her presence to the officers by informing them that she had been collecting rocks and glass from a nearby riverbed. According to Ms. Kline, the officers were not justified in detaining her because she explained her rationale for being there.
Ninth District Determines that Ms. Kline was a Trespasser in Addition to Being a Rock and Glass Collector
Upon consideration of the totality of the circumstances, we must conclude that officers had reasonable suspicion to detain Ms. Kline. Officer Beese testified that Ms. Kline left her vehicle under a power line next to a private maintenance road. The recording from his bodycam showed an unpaved road bisecting a series of power lines and a wooded area that obfuscated the railroad tracks. The area below the power lines was comprised entirely of grass. There was no paved entryway or parking lot, and no other vehicles were parked there. Officer Beese testified that the area was owned by the power company, and the railroad tracks were owned by the Barberton Beltway Railroad Company. Moreover, he testified that Ms. Kline had received two prior warnings from a nearby police department related to her trespassing on railroad tracks. Ms. Kline emerged from a wooded area near the railroad tracks. Her conduct, coupled with her prior history, provided the officers with reasonable suspicion to investigate, determine whether she was trespassing, and decide whether to take any formal action against her. Accordingly, the trial court did not err when it found that the officers were justified in detaining Ms. Kline.
Bag Search
Consent to Search the Lime Bag or was there Probable Cause to Search?
The trial court found that Officer Beese was justified in conducting a warrantless search of Ms. Kline’s lime green bag. The court concluded that Ms. Kline consented to the search by willingly opening her bags and offering them to the officers. Alternatively, the court concluded that officers had probable cause to arrest Ms. Kline for trespassing, and thus, could search her bags incident to her arrest. The court found that searches of property pursuant to an arrest may precede the actual arrest so long as probable cause for the arrest exists.
Ms. Kline challenges the trial court’s decision to uphold the warrantless search of her bag. First, Ms. Kline argues that the police lacked a basis to search her incident to a lawful arrest. She claims there was no probable cause to arrest her prior to the search because she explained her presence at the scene and had no reason to know she was trespassing. Second, she argues that she never consented to the search. According to Ms. Kline, the police wrongly assumed she consented to a search after she opened a single bag of rocks and showed them to the officers. She claims she never touched her lime bag after she set it on the ground. She also claims she was told to “calm down” because the police recognized that she was upset
Established Case Law on Warrantless Searches
Police officers may conduct warrantless searches of an arrestee and any items within his or her immediate control incident to a lawful arrest. State v. Adams, 2015-Ohio-3954. “[T]he actual arrest need not precede the search as long as the fruits of the search are not used to support probable cause for the arrest.” State v. Jones, 112 Ohio App.3d 206, 215 (2d Dist.1996), citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). “‘Where the police officer has probable cause to arrest independent of the items obtained in the search, but does not arrest until shortly after the search, the search is not offensive to the Fourth Amendment to the United States Constitution.’” State v. Duncan, 2003-Ohio- 241.
Second Review of the Facts
As previously noted, officers found Ms. Kline’s empty vehicle parked in an otherwise empty clearing below a series of power lines. There were no other vehicles around, the area was not paved, and only a solitary, grassy maintenance road led into the area. The officers witnessed Ms. Kline emerge from a distant tree line on the railroad side of the maintenance road. At that time, the officers knew Ms. Kline had received two, prior verbal warnings for trespassing on railroad tracks in a nearby area. They also knew that the property on either side of the maintenance road was privately owned, either by the power company or the railroad company. The only explanation Ms. Kline gave for her behavior was that she was collecting rocks and glass from a nearby riverbed. The officers had no information to indicate that she had permission to be in that area.
Competing Arguments on the Trespass Arrest
Having reviewed the record, we must conclude that officers had probable cause to arrest Ms. Kline for trespassing. See O.R.C. §2911.21 (defining the crime of criminal trespass). Ms. Kline argues that the police lacked probable cause to arrest her because they never saw her on the railroad tracks, she explained her presence for being there, and there was no evidence that the area she was in had any signs or other notifications to ward against trespassing. To justify Ms. Kline’s arrest, however, the State did not have to prove she was guilty of criminal trespassing beyond a reasonable doubt.
Court Concludes Ms. Kline was a Trespasser
Officers only needed to reasonably believe, under the totality of the circumstances, that there was a probability she was committing a crime. The information the officers possessed at the time they encountered Ms. Kline, including the secluded nature of the area, its proximity to both power lines and railroad tracks, and Ms. Kline’s prior history of having been warned against trespassing on railroad tracks on two prior occasions, gave rise to probable cause that she was engaging in criminal activity.
A Search Incident to Arrest can Occur Before the Arrest
Accordingly, we must conclude that officers had probable cause to arrest her and to search her bag incident to that arrest. The fact that the search preceded the arrest is inapposite. See State v. Duncan, 2003-Ohio- 241. Likewise, the fact that prosecutors ultimately chose not to pursue a trespassing charge against Ms. Kline is inapposite. See State ex rel. Whittaker v. Lucas County Prosecutor’s Office, 2021-Ohio-1241 (“[A] prosecutor has broad discretion in deciding whether to file particular charges.”). The trial court did not err when it concluded that officers were justified in searching Ms. Kline’s bag incident to her arrest. This Court rejects her argument to the contrary.
Conclusion and Holding
Because we have already determined that officers could search Ms. Kline’s bag incident to her lawful arrest, we need not also consider whether she lawfully consented to that search. Upon review, the trial court did not err when it denied Ms. Kline’s motion to suppress.
Her second assignment of error is overruled.
Information for this article was obtained from State v. Kline, 2024 – Ohio – 150 and from a phone interview with Officer Beese on July 5, 2024.
State v. Kline, 2024 – Ohio – 150 was issued by the Ninth District Appellate Court on January 17, 2024 and is binding in the following Ohio Counties: Lorain, Medina, Summit and Wayne.
Lessons Learned:
- Was Lori Trespassing? Ms. Kline told Officer Christopher Beese that she was collecting rocks and glass in the riverbed when she first observed the officer. In that moment the legal issue was whether Ms. Kline was trespassing. Ms. Kline made arguments that she was not trespassing therefore the officers engaged in an unreasonable seizure. However, the Ninth District Appellate Court determined that she was trespassing “The information the officers possessed at the time they encountered Ms. Kline, including the secluded nature of the area, its proximity to both power lines and railroad tracks, and Ms. Kline’s prior history of having been warned against trespassing on railroad tracks on two prior occasions, gave rise to probable cause that she was engaging in criminal activity.”.
- Can a Search ‘Incident to’ Arrest Precede the Arrest? Once the court determined that the officers had probable cause to believe Ms. Kline was trespassing then the officers could have arrested her.However, the court concluded that the officers searched Ms. Kline PRIOR to her arrest AND that the search was lawful “Accordingly, we must conclude that officers had probable cause to arrest her and to search her bag incident to that arrest. The fact that the search preceded the arrest is inapposite.”. Here the word inapposite means not relevant. Though not common, a search ‘incident to’ arrest can occur prior to the actual arrest. This is based on established case law Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). In that case the U.S. Supreme Court held “Once petitioner admitted ownership of the sizable quantity of drugs found in Cox’s purse, the police clearly had probable cause to place petitioner under arrest. Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”. Additionally, Ohio’s Ninth District Appellate Court held on January 22, 2003 “Where the police officer has probable cause to arrest independent of the items obtained in the search, but does not arrest until shortly after the search, the search is not offensive to the Fourth Amendment to the United States Constitution.” State v. Duncan, 2003-Ohio- 241. Hence, the two requirements to search prior arrest are that 1) An officer must have probable to arrest prior to the search and 2) The search occur quickly after the arrest.
- Pre-Sent Arms! Both Norton Police Officer Christopher Beese and his unnamed partner should be highly commended for the arrest of Ms. Lori Kline. Well done!
Does your agency train on Search Incident to Arrest?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and objectively reasonable!