State v. Brown , 2021 Ohio 2193 ( 2021 )


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  • [Cite as State v. Brown, 
    2021-Ohio-2193
    .]
    IN THE COURT OF APPEALS
    FIRST APPELLATE DISTRICT OF OHIO
    HAMILTON COUNTY, OHIO
    STATE OF OHIO,                              :        APPEAL NO. C-190755
    TRIAL NO. 19CRB-10233
    Plaintiff-Appellant,                :
    vs.                                       :
    O P I N I O N.
    MAURICE BROWN,                              :
    Defendant-Appellee.                    :
    Criminal Appeal From: Hamilton County Municipal Court
    Judgment Appealed From Is: Affirmed
    Date of Judgment Entry on Appeal: June 30, 2021
    Andrew W. Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting
    Attorney, and Philip A. Worsham, Assistant Prosecuting Attorney, for Plaintiff-
    Appellant,
    Arenstein & Gallagher and William R. Gallagher, for Defendant-Appellee.
    OHIO FIRST DISTRICT COURT OF APPEALS
    ZAYAS, Presiding Judge.
    {¶1}    The state of Ohio appeals from the judgment of the Hamilton County
    Municipal Court granting defendant-appellee Maurice Brown’s motion to suppress
    evidence obtained after a stop and search of his vehicle. For the following reasons,
    we affirm the trial court’s judgment.
    Factual Background
    {¶2}    On April 17, 2019, Maurice Brown was charged with possession of drug
    paraphernalia. Brown filed a motion to suppress the paraphernalia arguing that the
    officer did not have a reasonable suspicion of criminal activity to justify the stop of
    his vehicle and the length of the detention after the stop to await a drug sniffing
    canine.
    {¶3}    At the hearing on the motion, the sole witness was Officer Sullivan.
    Sullivan testified that he was working as an undercover police officer for the
    Cincinnati Police Department on April 17, 2019. Sullivan had been an officer for 13
    years and had spent the past two years with “Violent Crimes.” He received extensive
    training in drug interdiction and drug-trafficking operations by the Desert Snow
    Black Asphalt Company. Sullivan was trained to recognize signs and signals of drug
    trafficking.
    {¶4}    Sullivan had been conducting drug-trafficking surveillance of the UR
    Mart (“Mart”) located at 111 East McMicken Street for two to three months due to a
    high activity of drug trafficking of crack cocaine at the Mart. Over the course of his
    investigation, he had noticed a pattern of individuals loitering in the parking lot and
    engaging in hand-to-hand transactions with persons driving into the parking lot.
    {¶5}    On that particular day, Sullivan again observed several individuals
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    OHIO FIRST DISTRICT COURT OF APPEALS
    loitering outside the store. As cars pulled up and parked, those individuals would
    approach the vehicles and engage in hand-to-hand transactions with the occupants
    of the vehicles.   Sullivan observed an individual pull up in a red pickup truck.
    Sullivan recognized the driver through prior felony drug arrests. Sullivan observed
    the driver of the pickup truck engage in a hand-to-hand transaction at his truck.
    After the transaction, the truck left the parking lot.
    {¶6}    Sullivan also observed Maurice Brown sitting in his vehicle, which was
    parked at the curb behind the red pickup truck. When the red truck drove out of the
    Mart, Sullivan observed Brown leave the Mart behind the red pickup truck.
    {¶7}    Sullivan began following the red pickup truck and relayed his
    observations of the drug transaction conducted by the driver of the red pickup truck
    to two uniformed officers, Officers Wood and Tye. The two uniformed officers
    activated their cruiser lights and stopped the pickup truck for a traffic violation.
    When the truck was pulled over, Brown, who was behind the pickup truck and the
    officers’ vehicle, stopped his car momentarily. Sullivan testified that Brown then
    “slow rolled, and it appeared that he was looking over at the officers who were
    conducting the traffic stop and getting that occupant out of the vehicle” as he passed
    the vehicles. Sullivan further explained:
    At that point, I felt like, with the drug transactions that had been going
    on and Mr. Brown being behind the vehicle, that there was more to it
    than what meets the eye as far as – we have – when we conduct
    controlled purchases and surveillance and observe drug transactions,
    oftentimes the dealers will follow the buyer to some extent. That’s to
    check and see if they are police or if they are a confidential informant,
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    OHIO FIRST DISTRICT COURT OF APPEALS
    things of that nature. So that heightened my awareness.
    So those are my concerns. So they follow – lots of times they relay
    information back to – they act as counter surveillance. They’ll relay
    information back to individuals that are trafficking at those specific
    locations. So that was my concern, that there was more going on than
    meets the eye.
    {¶8}   Sullivan was asked, “So I got that you were paying attention because
    you were concerned about a dealer following a buyer?”             Sullivan responded,
    “Correct.” Sullivan further testified that the basis for the stop of Brown was “for drug
    investigation.”
    {¶9}   Brown drove into the casino parking garage, and Sullivan followed him
    into the parking garage. Although Sullivan did not see any traffic violations, he
    requested that a uniformed officer pull over Brown’s vehicle for a drug investigation.
    Sullivan watched Sergeant Veelay initiate the stop of Brown. A K-9 officer and dog
    were requested. The dog arrived 18 minutes later, and after Sullivan instructed the
    canine officer, the dog alerted on Brown’s car. Brown’s car was searched, and a
    digital scale with residue was found in the car. A lab result identified the residue as
    cocaine.
    {¶10} On cross-examination, Sullivan testified that he had never seen Brown
    or his vehicle at the Mart prior to that day. During his three to four months of
    surveillance, Sullivan had witnessed at least 20 drug transactions, and all of them
    involved hand-to-hand transactions where drivers purchased drugs then drove off.
    Most of these transactions were controlled buys. Sullivan had never seen Brown or
    anyone else follow a buyer out of the parking lot. He admitted that a dealer following
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    OHIO FIRST DISTRICT COURT OF APPEALS
    a buyer was not a pattern at the Mart, but he had seen it while surveilling other
    locations.
    {¶11} Sullivan further testified that it appeared that Brown was engaged in
    conversation at the Mart, but he did not know if Brown was talking on his phone.
    Sullivan did not observe Brown engage in any transaction with the driver of the red
    truck or one of the loiterers selling drugs. Sullivan conceded that Brown had not
    violated any laws at the time he was stopped and detained.
    {¶12} The court granted the motion to suppress, and the state now appeals.
    Law and Analysis
    {¶13} In its sole assignment of error, the state asserts that the trial court
    erred in granting the motion to suppress. The state contends that the perceived
    counter surveillance, observed by Sullivan, constitutes sufficient reasonable
    articulable suspicion of criminal activity to serve as the basis for conducting an
    investigatory stop.
    {¶14} Appellate review of a decision on a motion to suppress presents a
    mixed question of law and fact. State v. Showes, 1st Dist. Hamilton No. C-180552,
    
    2020-Ohio-650
    , ¶ 9. “We must accept the trial court’s findings of fact if they are
    supported by competent and credible evidence, but we review de novo the
    application of the relevant law to those facts.” 
    Id.
     Here, the parties do not dispute
    the facts, so we review the trial court’s legal determination de novo. See 
    id.
    {¶15} It is well-established that a law enforcement officer may temporarily
    detain an individual where he has a reasonable articulable suspicion that the
    individual is engaging in criminal activity. State v. Bobo, 
    37 Ohio St.3d 177
    , 179, 
    524 N.E.2d 489
     (1988), citing Terry v. Ohio, 
    392 U.S. 1
    , 21, 
    88 S.Ct. 1868
    , 
    20 L.Ed.2d 5
    OHIO FIRST DISTRICT COURT OF APPEALS
    889 (1968). An officer must point to “specific and articulable facts which, taken
    together with rational inferences from those facts, reasonably warrant that
    intrusion.” Terry at 21. A court must consider the totality of the circumstances in
    evaluating the facts and inferences supporting the stop. State v. Freeman, 
    64 Ohio St.2d 291
    , 
    414 N.E.2d 1044
     (1980), paragraph one of the syllabus.
    {¶16} “Reasonable suspicion entails a minimal level of objective justification,
    ‘that is, something more than an inchoate and unparticularized suspicion or “hunch,”
    but less than the level of suspicion required for probable cause.’ ” In re J.C., 1st Dist.
    Hamilton Nos. C-180478 and C-180479, 
    2019-Ohio-4815
    , ¶ 14, quoting State v.
    Jones, 
    70 Ohio App.3d 554
    , 556-557, 
    591 N.E.2d 810
     (2d Dist.1990), citing Terry at
    27. “A police officer may not rely on good faith and inarticulate hunches to meet the
    Terry standard of reasonable suspicion.” Jones at 557.
    {¶17} In this case, Sullivan admittedly did not see Brown commit a traffic
    violation or engage in a hand-to-hand drug transaction. Sullivan conceded that
    Brown had not violated any laws at the time he was stopped and detained. Rather,
    Sullivan had Brown stopped to investigate drug dealing because he “felt like, with the
    drug transactions that had been going on and Mr. Brown being behind the vehicle,
    that there was more to it than what meets the eye.”
    {¶18} Sullivan’s belief was based upon his experience that drug dealers often
    conduct counter surveillance on drug buyers to ensure the buyer is not a police
    officer or confidential informant, and then communicate that information to the
    individuals selling drugs at that location. However, Sullivan admitted that he had
    never seen that type of activity occur at the Mart during his two to three months
    surveillance of the Mart.      Sullivan suspected that Brown was a drug dealer
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    OHIO FIRST DISTRICT COURT OF APPEALS
    conducting counter surveillance because Brown was behind the pickup truck at the
    Mart, Brown drove out of the Mart behind the pickup truck, and Brown slow-rolled
    and looked in the direction of the officers pulling over the pickup truck.
    {¶19} The state argues that these facts are sufficient to justify an
    investigative stop because Sullivan suspected that Brown was engaged in counter
    surveillance.   To support its argument, the state cites to numerous cases that
    concluded the officers had sufficient facts indicative of drug trafficking to stop the
    defendants.
    {¶20} For example, in State v. Ramirez, the court found the following facts
    created a reasonable suspicion that defendant was engaged in drug trafficking and
    justified the initial investigatory stop of defendant’s vehicle:
    Officer Helton knew that Ramirez was traveling with a red Dodge with
    a passenger who had a criminal history of marijuana trafficking, both
    vehicles had Texas license plates, Texas is a source state of illegal
    drugs, and although both vehicles were allegedly driving to Cleveland,
    Ramirez exited onto a road that does not lead to Cleveland.
    Additionally, it was established that the red Dodge sped up upon sight
    of the police. Testimony was heard in the trial court that such a tactic
    is common in trafficking drugs. That is, the vehicle not carrying
    contraband will attempt to draw attention away from the vehicle
    carrying the drugs.
    Additionally, Ramirez was observed engaging in suspicious activity.
    Other police officers witnessed Ramirez park his truck in a Hardee’s
    lot, and walk a considerable distance to a motel lobby to wait for
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    OHIO FIRST DISTRICT COURT OF APPEALS
    someone. Eventually, Ramirez was met by someone driving a blue
    Toyota.   The Toyota was observed driving in a large square and
    appeared to be conducting counter-surveillance.
    State v. Ramirez, 9th Dist. Medina No. 04CA0024-M, 
    2004-Ohio-6541
    , ¶ 8-9.
    {¶21} In State v. Brown, the appellant argued that the affidavit in support of
    the search warrant did not contain sufficient facts to establish probable cause. State
    v. Brown, 9th Dist. Summit Nos. 23076 and 23080, 
    2006-Ohio-6749
    , ¶ 6. The
    affidavit contained “detailed information from three informational sources indicating
    that drug activity was taking place at appellant’s residence.” Id. at ¶ 11. After
    surveilling the home, officers observed drug activity at the home.          Id. at ¶ 2.
    Additionally, the vehicles that were stopped upon leaving appellant’s residence
    indicated that drug activity was occurring there. Id. at ¶ 11. A vehicle registered to
    appellant contained marijuana, and a drug dog alerted to the presence of narcotics
    on a truck and trailer previously seen at appellant’s residence. Id. Finally, the
    officers observed counter surveillance by appellant. Id.
    {¶22} In United States v. Del Vizo, the Ninth Circuit Court of Appeals found
    that officers had probable cause to arrest Del Vizo for narcotics trafficking after they
    received a confidential informant’s tip regarding a home in Torrance and observed
    Del Vizo and his associates over the course of five days. United States v. Del Vizo,
    
    918 F.2d 821
    , 822 (9th Cir.1990). The officers corroborated that tip by observing Del
    Vizo and six accomplices picking up packages, delivering and leaving a van in various
    locations, removing boxes from the van and a home, picking up cargo, and engaging
    in counter surveillance by traveling together, circling the area, making U-turns,
    driving faster than the speed limit, and frequently pulling the van to the right curb to
    8
    OHIO FIRST DISTRICT COURT OF APPEALS
    let traffic go by before resuming driving. Id. at 826-827. In concluding that the
    officers had probable cause to believe that Del Vizo was engaged in criminal activity,
    the court was “impressed by the wealth of information gathered by the officers and
    the extent to which that information revealed a ‘pattern of activity’ indicating
    participation in a narcotics transaction.” Id. at 827.
    {¶23} In all of the cases cited by the state, the officers articulated sufficient
    facts to support reasonable suspicion of organized drug trafficking. In each case, the
    observed counter surveillance was merely one factor to support that the accused was
    engaged in drug dealing. Moreover, in each of those cases, multiple people worked
    together trafficking in large quantities of drugs.
    {¶24} Here, in contrast to the cases cited by the state, Sullivan did not
    articulate any fact, other than perceived counter surveillance, indicating that Brown
    was a drug dealer. Sullivan believed that Brown was a drug dealer engaging in
    counter surveillance.     Sullivan defined counter surveillance as a drug dealer
    following a buyer to determine whether the buyer is a police officer or confidential
    informant and communicating that information to the other drug dealers at that
    location. There is no evidence that Brown was a drug dealer or that he was working
    with the individuals selling drugs at the Mart. Although it appeared to him that
    Brown was engaged in conversation while at the Mart, Sullivan did not specify with
    whom he may have been speaking and admitted that Brown could have been on the
    phone. Notably, Sullivan did not observe Brown communicating with any specific
    individuals selling drugs at the Mart or relaying any information to anyone after
    observing the stop of the red pickup truck.
    {¶25} Sullivan had been surveilling the Mart for two to three months and had
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    OHIO FIRST DISTRICT COURT OF APPEALS
    never seen anyone conducting counter surveillance after a hand-to-hand transaction.
    Moreover, Sullivan had never seen Brown or his vehicle at the Mart during this time.
    The fact the Brown’s car was behind the pickup truck and that Brown may have
    looked at the officers while passing the pickup truck is insufficient to establish
    reasonable suspicion of drug trafficking.       Absent any specific, articulable facts
    indicating that Brown was engaged in drug trafficking, Sullivan’s “hunch” that Brown
    was conducting counter surveillance was insufficient to establish a reasonable
    suspicion to believe that Brown was committing a crime. See Jones, 70 Ohio App.3d
    at 557, 
    591 N.E.2d 810
    .
    {¶26} Accordingly, we overrule the sole assignment of error.
    Conclusion
    {¶27} Having overruled the state’s sole assignment of error, we affirm the
    judgment of the trial court.
    Judgment affirmed.
    CROUSE and WINKLER, JJ., concur.
    Please note:
    The court has recorded its own entry this date.
    10
    

Document Info

Docket Number: C-190755

Citation Numbers: 2021 Ohio 2193

Judges: Zayas

Filed Date: 6/30/2021

Precedential Status: Precedential

Modified Date: 6/30/2021