State v. Brown

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The State of Ohio, Appellant, v. Brown, Appellee.

[Cite as State v. Brown (1992), Ohio St.3d .]

Criminal law -- Search and seizure -- Application of harmless

error doctrine -- In making a Crim.R. 52(A) harmless error

analysis, any error will be deemed harmless if it did not

affect the accused's "substantial rights."

(No. 91-1748 -- Submitted October 20, 1992 -- Decided

December 15, 1992.)

Appeal from the Court of Appeals for Stark County, No.

CA-8392.

At approximately 1:00 a.m. on August 1, 1990, Canton

Police Officers Charles Saler and Kevin Clary were patrolling a

high-crime area known for drug activity when they observed

Bergen Allen Brown, appellee, exiting a van in a dimly lit

corner of a bar's parking lot. Appellee was accompanied by two

other men. After passing the individuals, the officers made a

U-turn and reapproached them with the cruiser's lights

extinguished. Upon activating the cruiser's high beams, they

discovered only appellee, who was facing the corner of a

building. Officer Clary testified that moments before the

cruiser was stopped approximately ten feet from appellee,

appellee looked over his shoulder and then tossed something

from his right hand to the ground. Officer Saler further

testified that what appellee tossed appeared to be a "clear

baggie or plastic bag." While Officer Saler restrained

appellee, his partner began looking for the item that had been

thrown. Moments later, he discovered a plastic bag about two

feet from the spot where appellee had been standing. Officer

Clary inspected the plastic bag and recognized its contents as

crack cocaine. No drugs were found on appellee. Appellee was

placed under arrest.

After conducting a pat-down search of appellee, Officer

Clary seized the keys to the van. The officers determined that

appellee was not the registered owner of the vehicle, that the

owner was not available, and that no one was present who could

take custody of the vehicle. Due to these circumstances, the

officers requested an impoundment of the van. While waiting

for the impound unit and tow truck to arrive, the officers

conducted an inventory search of the van's interior. Officer

Saler found a black belt-like pouch in plain view by the front

passenger seat. He then opened it and found a thirty-five

millimeter film canister and several empty bags similar to the

bag that held the crack cocaine. Although the bags were empty,

traces of cocaine were later discovered inside the black

pouch. These items were seized and recorded on an inventory

sheet.

Appellee was subsequently indicted under R.C.

2925.11(C)(1) on one count of drug abuse. Appellee moved to

suppress all evidence seized from the vehicle, specifically the

contents of the black pouch. After a hearing, the trial court

denied the motion.

On October 23, 1990, appellee was found guilty. He

appealed to the Fifth District Court of Appeals, which reversed

and remanded, holding that the contents of the black pouch

should have been suppressed as the product of an illegal search

of a closed container.

The cause is before this court pursuant to the allowance

of a motion to certify the record.

Robert D. Horowitz, Prosecuting Attorney, Ronald Mark

Caldwell and Kristine Wilson Rohrer, Assistant Prosecuting

Attorneys, for appellant.

Steven A. Struhar, for appellee.

Per Curiam. Resolution of the instant appeal centers

exclusively on the proper application of the harmless error

doctrine. As stated by the United States Supreme Court in

Chapman v. California (1967), 386 U.S. 18, 22, 87 S.Ct. 824,

827, 17 L.Ed.2d 705, 709: "[T]here may be some constitutional

errors which in the setting of a particular case are so

unimportant and insignificant that they may, consistent with

the Federal Constitution, be deemed harmless, not requiring the

automatic reversal of the conviction."

The court of appeals, in reversing appellee's conviction,

focused on the search of appellee's van. Relying on the most

recent pronouncement by the United States Supreme Court on

inventory searches, Florida v. Wells (1990), 495 U.S. 1, 110

S.Ct. 1632, 109 L.Ed.2d 1, the court of appeals held that the

police violated appellee's Fourth Amendment rights by opening

the black pouch during the course of the inventory of the van,

because there was "no evidence of a specific Canton Police

Department policy with respect to the opening of closed

containers encountered during inventory searches." Without

clearly stating its reasons, the court of appeals concluded

that the contents of the black pouch were so prejudicial that

their introduction into evidence denied appellee a fair trial.

We cannot agree with the court of appeals. In making a

Crim. R. 52(A) harmless error analysis, any error will be

deemed harmless if it did not affect the accused's "substantial

rights." Otherwise stated, the accused has a constitutional

guarantee to a trial free from prejudicial error, not

necessarily one free of all error. Before constitutional error

can be considered harmless, we must be able to "declare a

belief that it was harmless beyond a reasonable doubt."

Chapman, supra, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at

711. Where there is no reasonable possibility that unlawful

testimony contributed to a conviction, the error is harmless

and therefore will not be grounds for reversal. State v. Lytle

(1976), 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623,

paragraph three of the syllabus, vacated on other grounds in

(1978),438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.

In State v. Tabasko (1970), 22 Ohio St.2d 36, 257 N.E.2d

744, the Chapman rule was applied to affirm a conviction for

knowingly permitting the use of a dwelling for the keeping,

dispensing or administering of narcotics, a violation of former

R.C. 3719.101. Appellant sought to overturn his conviction on

the grounds that the police unlawfully seized drugs from his

house. He maintained that the search warrant was invalid

because it was based on an affidavit lacking facts which could

establish probable cause. In considering the appeal, this

court felt it unnecessary to independently review the affidavit

to determine whether the resulting warrant was based upon

probable cause. Instead, the court directed its attention to

whether the admission into evidence of the items seized during

the search operated to the defendant's prejudice. Citing

Chapman and Harrington v. California (1969), 395 U.S. 250, 89

S.Ct. 1726, 23 L.Ed.2d 284, the court held:

"In a criminal prosecution, the allegedly erroneous

admission in evidence of items unlawfully seized is harmless

beyond a reasonable doubt and does not provide grounds for

reversal of the conviction where the pertinent testimony of

witnesses at the trial is not the product of such seizure and

is overwhelmingly sufficient to independently establish the

elements of the offense beyond a reasonable doubt." Tabasko,

supra, at syllabus.

Since the state's case consisted of testimony which alone

overwhelmingly established beyond a reasonable doubt that

Tabasko had committed the crime as charged, the court concluded

that any alleged constitutional violation was harmless beyond a

reasonable doubt and upheld the conviction.

Likewise, in the case sub judice, we hold that any alleged

error by the trial court in failing to suppress the contents of

the black pouch was harmless beyond a reasonable doubt.

Accordingly, even if we were to find that the police conducted

an unlawful inventory search of the vehicle, such

constitutional violation would not be grounds for reversal of

appellee's conviction in light of the overwhelming evidence of

his guilt. At trial, the prosecution presented the testimony

of Officers Saler and Clary concerning the circumstances

surrounding appellee's arrest. As previously discussed, both

officers witnessed appellee toss an item from his right hand to

the ground. Officer Saler was additionally able to identify

the item in the hand of appellee as a "clear baggie or plastic

bag." When he searched the area around which appellee had

stood, Officer Clary discovered only a plastic bag containing

the crack cocaine. The evidence presented at trial did not

indicate that other plastic bags, or for that matter any other

objects, were found in the immediate area where appellee was

standing.

The jury, therefore, had evidence, solely by way of the

eyewitness testimony of the officers, from which it could only

have concluded that the prosecution had proven beyond a

reasonable doubt that appellee had knowingly possessed

cocaine. The contents of the black pouch could not reasonably

have contributed to that conviction. Also, no additional

unrelated charges were brought against the appellee as a result

of their discovery by the police. The only relevance of the

pouch and its contents came when the prosecution, in closing

arguments, briefly attempted to impeach the accused's

credibility and therefore make holes in his incredible version

of the events that transpired the night of his arrest.1

Accordingly, we hold that appellee's substantial rights were

not prejudiced at trial since there is no reasonable

possibility that the jury would have acquitted him if the

contents of the black pouch had not been admitted into evidence.

On the basis of the foregoing, we reverse the judgment of

the court of appeals and reinstate appellee's conviction.

Judgment reversed.

Moyer, C.J., Holmes, Douglas and Resnick, JJ., concur.

Sweeney, Wright and H. Brown, JJ., dissent.

FOOTNOTE:

1 That statement reads as follows:

"Those are the facts. That's what the officer saw and I

ask you how much credibility[,] how much credibility can you

give to a guy that sits here and tells you that he doesn't use

the cocaine when there's cocaine in his pouch that he takes to

work everyday. The same pouch that contains the baggies and

they're identical to the baggie in State's Exhibit 1."

Wright, J., dissenting. At first blush this does not

appear to be a case of broad significance. The majority has

neither announced a new principle of law nor clarified an old

one. Yet, this case troubles me as it joins many recent state

and federal cases as part of a slow, deliberate movement to

significantly reduce the protections provided by the Fourth

Amendment. The danger in today's opinion is that it does not

declare a departure from settled law--a departure whose merits

can be vigorously debated by the bar and the public. Rather,

like many other decisions here and elsewhere, it announces the

court's adherence to the precepts of the Fourth Amendment while

it quietly declines to honor them. Thus, the accepted rules

governing searches and seizures are not openly challenged and

changed, but are subtly weakened with each passing case.

I see two readily identifiable problems with the majority

opinion: the structure of its constitutional analysis and its

conclusion that the alleged constitutional error was harmless

beyond a reasonable doubt.

A

Since the United States Supreme Court formally recognized

application of the harmless error doctrine to errors involving

constitutional rights in Chapman v. California (1967), 386 U.S.

18, 87 S.Ct. 824, 17 L.Ed.2d 705, cases in which harmless error

has been argued by the state have generally been analyzed by

first considering the alleged constitutional error and, second,

if an error has been found, deciding whether the error was

harmless. See, e.g., Arizona v. Fulminante (1991), 499

U.S. , 111 S.Ct. 1246, 113 L.Ed.2d 302. While this has not

always been the case, see, e.g., State v. Tabasko (1970), 22

Ohio St.2d 36, 257 N.E.2d 744, I believe that this form of

analysis places the Constitution in the proper perspective.

The majority does great harm to the Fourth Amendment by

elevating application of the harmless error doctrine over

analysis of the alleged constitutional error. By focusing

"exclusively on the proper application of the harmless error

doctrine," the majority avoids confronting the Fourth

Amendment. I believe that in criminal cases in which a

constitutional violation is alleged, the court's first duty

always is to determine whether there has indeed been a

constitutional error. If the court determines that there has

been an error, it may proceed, in certain cases,2 to inquire

whether that error was harmless.

This may seem only to be an insignificant matter of

emphasis. I see, however, three very real problems with the

court's limited focus on harmless error. First, the majority

implicitly holds that there has been a constitutional violation

without dealing squarely with the issue. I believe that it is

improper for this court ever to assume that the state has

violated either the Ohio or the United States Constitution.

State law enforcement officials are entitled to be told

unequivocally whether the police conduct at issue in a given

case is constitutionally permissible. Second, if there has

been a constitutional violation it is important for the court

to state specifically what it was and to explain why it

occurred. The decisions of this court are the law of this

state. The bench and bar must follow them in arguing and

deciding future cases, those decisions concerning the Fourth

Amendment define the parameters of Ohioans' reasonable

expectations of privacy, and law enforcement officials are

guided by these decisions in developing and carrying out their

practices and policies. Third, and most important, the

harmless error doctrine is but a narrow exception to the

exclusionary rule and it should be treated as such. To give

harmless error analysis top billing in a Fourth Amendment case

is to trivialize the alleged constitutional error. The court's

treatment of this case seems to indicate, as United States

Supreme Court Justice Robert Jackson warned, "that Fourth

Amendment freedoms are tacitly marked as secondary rights, to

be relegated to a deferred position." Brinager v. United

States (1949), 338 U.S. 160, 180, 69 S.Ct. 1302, 1313, 93 L.Ed.

1879, 1893 (Jackson, J., dissenting).

In this case, the warrantless search of Brown's van

clearly violated the Fourth Amendment. "It remains a 'cardinal

principle that "searches conducted outside the judicial

process, without prior approval by judge or magistrate, are per

se unreasonable under the Fourth Amendment--subject only to a

few specifically established and well-delineated

exceptions."'" California v. Acevedo (1991) 500 U.S. , ,

111 S.Ct. 1982, 1991, 114 L.Ed.2d 619, 634. The state argues

that the inventory search and the inevitable discovery

exceptions to the warrant requirement are applicable in this

case. I disagree.

To be valid, an inventory search of a vehicle "must be

conducted in good faith and in accordance with reasonable

standardized procedure(s) or established routine." State v.

Hathman (1992), 65 Ohio St.3d 403, N.E.2d , paragraph

one of the syllabus. Further, even if an inventory search of a

vehicle is valid, a closed container found in the vehicle "may

only be opened as part of the inventory process if there is in

existence a standardized policy or practice specifically

governing the opening of such containers." Id., paragraph two

of the syllabus. The purpose of these rules is to limit the

discretion of individual police officers to ensure that

inventory searches are not used as "a purposeful and general

means of discovering evidence of crime." Colorado v. Bertine

(1987), 479 U.S. 367, 376, 107 S.Ct. 738, 743, 93 L.Ed.2d 739,

749 (Blackmun, J., concurring). To satisfy the requirements of

the Constitution, a standardized procedure or routine must

limit an officer's discretion in two ways. "First, it must

limit the officer's discretion regarding whether to search a

seized vehicle. * * * Second, [it] must limit an officer's

discretion regarding the scope of an inventory search * * *."

(Citations omitted; emphasis sic.) United States v. Salmon

(C.A.3, 1991), 944 F.2d 1106, 1120.

In this case, the state concedes that the Canton police

did not have a written policy governing the opening of closed

containers during inventory searches. Moreover, there is no

evidence in the record that the Canton police had anything more

than a very vague inventory policy which made the arresting

officers responsible for the contents of vehicles when a driver

was arrested. One of the officers who arrested Brown and

searched the van, in fact, testified that he was aware of no

policy "concerning inventory and contents of automobiles or

vans." To the extent that any policy regarding inventory

searches did exist, it did not adequately limit the officers'

discretion regarding their decision to search the van or the

scope of that search.

The state also contends that the evidence was admissible

under the inevitable discovery exception to the exclusionary

rule because the police would have eventually inventoried the

car and discovered the evidence. Under the inevitable

discovery exception," illegally obtained evidence is properly

admitted in a trial court proceeding once it is established

that the evidence would have been ultimately or inevitably

discovered during the course of a lawful investigation." State

v. Perkins (1985), 18 Ohio St.3d 193, 18 OBR 259, 480 N.E.2d

763, paragraph one of the syllabus.

I believe that because the police did not have a

mandatory, clearly articulated inventory search policy, the

inevitable discovery exception cannot apply. In the absence of

a standard police policy requiring an inventory search and

defining the parameters of the search, it was never inevitable

that the search in question here would occur. Without a

standardized practice or established routine, individual police

officers have the discretion to decide whether to conduct an

inventory search. The factors the police take into account on

their own in deciding whether to inventory a car are not

subject to any objective judicial evaluation. The basic

principle of the inventory search exception is that an

articulated policy removes the discretion of the police from

the determination whether and how thoroughly to search an

impounded vehicle. The search of Brown's van and the black

leather bag found in the van was "inevitable" only because the

police later testified that they inevitably would have searched

them. In fact, the search would have been inevitable only if a

standardized policy required the police to inventory the

vehicle and the contents of all of the closed containers in the

vehicle. Because the record shows that no such policy existed,

I cannot conclude that any of the evidence found in the van was

admissible under the inevitable discovery exception.

Because the search of Brown's van does not fall within any

of the exceptions to the warrant requirement, I would hold that

the evidence found in the van was illegally seized and

improperly admitted at trial.

B

In Chapman v. California (1967), 386 U.S. 18, 87 S.Ct.

824, 17 L.Ed.2d 705, the United States Supreme Court formally

recognized the application of the harmless error rule to

constitutional errors. The rule announced by the court was

that "before a federal constitutional error can be held

harmless, the court must be able to declare a belief that it

was harmless beyond a reasonable doubt." (Emphasis added.)

Id. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-711. In Chambers

v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419,

the court affirmed that the admission of evidence obtained in

violation of the Fourth Amendment can be subject to harmless

error analysis.

Appellate courts have taken three basic approaches to

harmless error analysis in Fourth Amendment cases: (1) some

have emphasized the nature and relevance of the tainted

evidence; (2) some have emphasized the strength of the

untainted evidence; and (3) most have attempted to compare the

probable effect of the tainted evidence with the strength of

the untainted evidence. 4 LaFave, Search and Seizure, A

Treatise on the Fourth Amendment (2 Ed. 1987) 531-537. I

believe the third approach to be the best because it is

designed to assess pragmatically the impact of the tainted

evidence on the trial as a whole. The Illinois Supreme Court

explained this method of analysis:

"In considering whether constitutional error constitutes

harmless error beyond a reasonable doubt *** it is not enough

that the erroneously admitted evidence be considered merely

cumulative or that there be other evidence in the record

sufficient to support the conviction. *** The inquiry of a

court of review should not be as to the amount of untainted

evidence as compared to the amount of tainted evidence. The

focus should rather be upon the character and quality of the

illegally obtained evidence as it relates to the other evidence

bearing on the same issue and the court should appraise the

possible impact upon the jury of the wrongfully obtained

evidence." (Emphasis added.) People v. Black (1972), 52

Ill.2d 544, 555, 288 N.E.2d 376, 383.

It is important to remember that even using this approach,

an appellate court can never be completely certain that a given

error was harmless. Professor Stephen Saltzburg, an authority

on evidence and trial practice, made this observation:

"[W]hen an evidentiary error occurs in the course of a

trial, it disturbs [defense counsel's] delicately balanced

decision-making process. The abnegation of a particular rule

upon which the defense relied may inflict more damage than

initially appears. A meritorious line of defense may be

dropped, an important witness held back, or entire strategies

abandoned even though they should prevail. The impact of the

error upon the defendant's case may be amplified by the fact

that because the error may be held harmless few lawyers will

themselves attempt to depend or advise clients to depend on the

appellate court's setting the record straight. It is much more

likely that trial strategy will change to accommodate rulings

of the trial court, however erroneous." Saltzburg, The Harm of

Harmless Error (1973), 59 Va.L.Rev. 988, 990.

In light of the great difficulty in accurately determining

the effect of erroneously admitted evidence, appellate courts

must be careful to apply the harmless error doctrine only in

the clearest cases. Harmless error should only be found when

the state's case is airtight even without the tainted evidence

and the tainted evidence cannot have materially influenced the

jury. "[W]e must recognize that harmless-error rules can work

very unfair and mischievous results when, for example, highly

important and persuasive evidence, or argument, though legally

forbidden, finds its way into a trial in which the question of

guilt or innocence is a close one." Chapman, supra, at 22, 87

S.Ct. at 827, 17 L.Ed.2d at 710.

In this case, a comparison of the probable effect of the

tainted evidence and the strength of the untainted evidence

leads me to the firm conclusion that the admission of the

tainted evidence was not harmless beyond a reasonable doubt.

Brown was charged with drug abuse, which required the state to

prove that he knowingly obtained, possessed, or used cocaine.

The state sought to prove only that Brown obtained and

possessed cocaine. The evidence presented by the state can be

briefly summarized: The police officers who arrested Brown

testified that they saw him throw something to the ground as

they approached him. The officers searched the area and

discovered a small zip lock bags containing crack cocaine. The

officers then searched the van Brown had been driving and found

a black leather pouch which contained a plastic film canister,

fourteen zip lock bag like the one containing the crack, and a

trace amount of cocaine. The bag containing the crack and the

contents of the black leather pouch were introduced as evidence

at trial.

Brown's defense was that the crack cocaine was not his.

He testified that he did not throw the bag containing the crack

to the ground as the police approached him, that the bag was

never in his possession, and that he had never used crack

cocaine. To support his argument, his attorney stressed to the

jury that the state did not initially request the police lab to

check the bag containing the crack for fingerprints, nor did

the lab find any fingerprints when it ultimately examined the

bag.

In this debate over whether the crack cocaine belonged to

Brown the physical evidence seized from Brown's van is

absolutely crucial to the state's case. Without the black

leather pouch and the fourteen plastic bags, the state's

evidence directly implicating Brown is limited to the oral

testimony of the two arresting officers. Without the evidence

from the van, the jury would have been presented with

conflicting oral testimony: the officers' word against Brown's

word (coupled with the fact that there were no fingerprints on

the bag containing the crack).

When the evidence found in Brown's van is before the jury,

however, the entire complexion of the case changes. The oral

testimony of the arresting officers is buttressed by physical

evidence which links Brown to the bag containing the crack.

The importance of this evidence was not missed by the

prosecutor. In his final point to the jury during the state's

closing argument, he sarcastically responded to Brown's defense

by expressly raising the relationship between the bag

containing the crack and the bag found in Brown's van:

"And I suppose you know it's a coincidence that the bag

that contains this crack cocaine this bag is identical

identical to the bags that Mr. Brown had in his pouch that he

admitted he owned. * * * For some reason they picked Bergen

Brown out of all the residents of Canton, Ohio and I came in

here and said boy Bergen was standing there and just matter of

fact we found this bag laying [sic] there so we're going to say

that he dropped it and coincidentally this bag is identical to

the bag that Mr. Brown has in his pouch that he admits is

his. * * *

"Those are the facts. That's what the officer saw and I

ask you how much credibility[,] how much credibility can you

give to a guy that sits here and tells you that he doesn't use

the cocaine when there's cocaine in his pouch that he takes to

work everyday. The same pouch that contains the baggies and

they're identical to the baggie in State's Exhibit 1."

The evidence found in the van was highly relevant,

extremely strong, and not cumulative. The evidence was

relevant because it directly countered Brown's defense that the

bag containing the crack was not his and because the state used

it to directly challenge Brown's credibility as a witness. The

evidence was strong because it was physical evidence which

Brown admitted belonged to him. And the evidence was not

cumulative because no other physical evidence introduced by the

state connected Brown to the crack.

Contrary to the majority's view, I do not find the

remaining evidence to be "overwhelming." With the exception of

the evidence found in the van, the state's case against Brown

relied entirely on oral testimony by the two arresting officers

that they saw Brown drop the drugs. This testimony was based

on a fleeting glimpse at night.3

Brown's conviction depended on the jury's resolution of

the credibility of the witnesses. I cannot say that this

determination was not influenced by the physical evidence

illegally seized from Brown's van and erroneously admitted by

the trial court. "There is thus at least 'a reasonable

possibility that the evidence complained of might have

contributed to the conviction.'" Stoner v. California (1964),

376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856, 861, fn.8

(quoting Fahy v. Connecticut [1963], 375 U.S. 85, 86, 84 S.Ct.

229, 230, 11 L.Ed.2d 171, 173).

C

Overzealous use of the harmless error doctrine profoundly

weakens the deterrent effect of the Fourth Amendment. If the

state feels that it can introduce illegally obtained evidence

with impunity it will see little reason to avoid infringing on

our Fourth Amendment rights during criminal investigations.

Because the warrantless search of Brown's van did not fall

within any of the exceptions to the warrant requirement, I

would hold that the evidence discovered was erroneously admitted

at trial. Because that evidence bore directly and influentially

on material determinations made by the jury, I would hold that

the error was not harmless beyond a reasonable doubt. The

judgment of the court of appeals should be affirmed. I

respectfully dissent.

Sweeney and H. Brown, JJ., concur in the foregoing

dissenting opinion.

FOOTNOTES:

2 "[T]here are some constitutional rights so basic to a

fair trial that their infraction can never be treated as

harmless error * * *." Chapman, supra, at 23, 87 S.Ct. at

827-828, 17 L.Ed.2d at 710 (citing examples from United States

Supreme Court cases preceding Chapman).

3 The case cited by the majority in support of its

conclusion is factually distinguishable. I believe that the

oral testimony in State v. Tabasko (1970), 22 Ohio St.2d 36,

257 N.E.2d 744, was substantially more compelling than the

testimony in this case for two reasons: First, the three

witnesses in Tabasko were unbiased--they were private citizens

with no interest in the outcome of the trial. Second, in

Tabasko the factual issue before the jury was whether the

witnesses themselves had been permitted to use narcotics in the

defendant's home. The witnesses' testimony was based on their

own actions, not on their perceptions of the defendant's

actions. In contrast, the police officers who arrested Brown

cannot be considered completely unbiased--they were active

participants in the arrest and conviction of the defendant.

Moreover, their crucial testimony did not recount their own

actions, but rather was based entirely on their perceptions of

Brown's actions.