State v. Stewart , 2021 Ohio 2928 ( 2021 )

[Cite as State v. Stewart, 2021-Ohio-2928.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
Nos. 109867 and 109868
v. :
JAMES STEWART, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: August 26, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-645843-A and CR-19-645843-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellant.
Regis E. McGann, for appellee James Stewart.
Cullen Sweeney, Cuyahoga County Public Defender, and
Paul A. Kuzmins, Assistant Public Defender, for appellee
Leeandrew Ealom.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, the state of Ohio, appeals an order granting two
motions to suppress filed by defendants-appellees, James Stewart (“Stewart”) and
Leeandrew Ealom (“Ealom”) (collectively “appellees”). The state claims the
following error:
The trial court erred in granting James Stewart and Leeandrew Ealom’s
motion to suppress.
We find merit to the appeal, reverse the trial court’s judgment, and
remand the case to the trial court for further proceedings.
I. Facts and Procedural History
Ealom and Stewart were charged in a nine-count indictment with three
counts of drug trafficking in violation of R.C. 2925.03(A)(2) as alleged in Counts 1,
3, and 5; four counts of drug possession in violation of R.C. 2925.11(A) as alleged in
Counts 2, 4, 6, and 7; and one count of possessing criminal tools in violation of R.C.
2923.14(A) as alleged in Count 8. Counts 1 through 8 included forfeiture of a scale,
a cell phone, a gun, and money. Counts 3 and 5 included firearm specifications
pursuant to R.C. 2941.141(A). In Count 9, Ealom, alone, was charged with improper
handling of a firearm in a motor vehicle in violation of R.C. 2923.16(E)(1).
Stewart and Ealom each filed a motion to suppress, arguing that
Cleveland police did not have probable cause to initiate the traffic stop that led to
the discovery of contraband. They further argued that officers detained them
without reasonable suspicion and that the subsequent search of their vehicle was
unlawful.
The state opposed the motions to suppress, arguing the initial traffic
stop was lawful because Stewart, who was driving the vehicle, was driving erratically,
changed lanes multiple times without signaling, and later turned out of a gas station
parking lot without signaling. The state argued that changing lanes and turning
without a signal are violations of Cleveland Codified Ordinances (“C.C.O.”) 431.14.
Finally, the state argued that during the lawful stop, officers observed a firearm in
plain view, which justified a search for weapons that led to the discovery of
contraband in the vehicle.
Detective Joseph Hess (“Det. Hess”) testified at the suppression
hearing that he and Detective Christopher Allen (“Det. Allen”) were patrolling an
area near East 140th Street and Kinsman on November 8, 2019, at approximately
4:12 p.m., in a police vehicle equipped with lights and sirens. Sergeant Jarrod
Durichko (“Sgt. Durichko”) was also patrolling the area in an undercover vehicle.
Sgt. Durichko notified Detectives Hess and Allen that he observed a white Jeep
Compass driving erratically and changing lanes multiple times without signaling.
(Tr. 19.) The Jeep traveled eastbound on Union Avenue and turned into a gas station
located at East 140th Street and Kinsman Road.
As Detectives Hess and Allen approached the location, Sgt. Durichko
notified them that the same vehicle exited the gas station and turned onto the
roadway again without signaling. (Tr. 20.) By that time, Detectives Hess and Allen
had reached the location, pulled behind the Jeep, and initiated a traffic stop. (Tr.
20.) Sgt. Durichko did not conduct the traffic stop because he was in an undercover
vehicle. (Tr. 20.)
Det. Allen approached the driver’s door and spoke to Stewart while Det.
Hess approached the passenger side door and spoke with Ealom. (Tr. 21.) Det. Hess
spoke with Ealom for approximately four minutes and then asked him to exit the
vehicle for safety purposes and to facilitate communication. (Tr. 21.) As Ealom was
exiting the vehicle, Det. Hess asked Ealom if he had any weapons on his person. (Tr.
22, 57.) Ealom replied: “Yes. I have a concealed carry.” (Tr. 22, 71.) Det. Hess then
observed a gun in the front-passenger door panel. (Tr. 22-23, 58.) Thereafter, Det.
Hess placed Ealom in handcuffs for officer safety because Ealom failed to notify the
officers that he had a concealed weapon. (Tr. 23-24.)
Det. Hess rendered the weapon safe and searched the passenger
compartment of the vehicle “for other weapons.” (Tr. 25.) During the search, Det.
Hess found multiple cell phones and a large roll of blank lottery tickets. (Tr. 25.)
Det. Hess, who is a member of the Fourth District Vice Unit, testified based on his
training and experience that these items were common “indicators of drug
trafficking.” (Tr. 25.) He explained that a blank roll of lottery tickets “is one of the
No. 1 packaging materials for narcotics. It’s up there with plastic baggies.” (Tr. 26.)
Det. Hess also found a digital scale with drug residue inside a pouch fastened to the
back of the front passenger seat. (Tr. 27-28.)
After finding the scale, the officers determined they had probable
cause to search the rest of the vehicle. (Tr. 27.) In the back seat, the detectives found
a hairbrush with a hidden compartment containing a bag of heroin and a bag of
cocaine. (Tr. 28-29.) Detectives Hess and Allen then placed Stewart and Ealom
under arrest and cited Stewart with a change of course violation pursuant to
C.C.O. 431.14.
In granting the motions to suppress, the court concluded that the city’s
change of course ordinance only applies to public streets and, therefore, does not
apply to parking lots where Stewart turned onto Union Avenue. The trial court’s
written decision did not address the other alleged traffic violations, namely changing
lanes without signaling and erratic driving. The court determined that because
Stewart did not violate any traffic ordinance by turning from a private parking lot
onto a city street, the police had no reasonable justification for initiating the traffic
stop of Stewart’s vehicle and, therefore, the traffic stop violated the Fourth
Amendment. The state now appeals the trial court’s judgment pursuant to Crim.R.
12(K).
II. Law and Analysis
A. Standard of Review
This court reviews a decision on a suppression motion under a mixed
standard of review. “In a motion to suppress, the trial court assumes the role of trier
of fact and is in the best position to resolve questions of fact and evaluate witness
credibility.” State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).
Therefore, a reviewing court must accept the trial court’s findings of fact in ruling
on a motion to suppress if the findings are supported by competent, credible
evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. Accepting the facts as true, the reviewing court must independently determine,
without deference to the trial court, whether the trial court properly applied the
substantive law to the facts of the case. Id. An appellate court reviews the trial
court’s application of the law to its factual findings under a de novo standard. State
v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 100.
B. The Traffic Stop
The Fourth Amendment of the U.S. Constitution, which is enforceable
against the states through the Due Process Clause of the Fourteenth Amendment,
provides: “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause.” Mapp v. Ohio, 367 U.S. 643, 655,
81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Article I, Section 14 of the Ohio Constitution
has language almost identical to the Fourth Amendment and affords the same
protections against unreasonable searches and seizures. State v. Robinette, 80 Ohio
St.3d 234, 245, 685 N.E.2d 762 (1997).
There are, however, exceptions to the Fourth Amendment’s warrant
requirement. Although stopping an automobile and detaining its occupants
constitutes a “seizure” under the Fourth Amendment, “a traffic stop is
constitutionally valid if an officer has a reasonable and articulable suspicion that a
motorist has committed, is committing, or is about to commit a crime.” State v.
Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7, citing Delaware
v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). See also Dayton
v. Erickson, 76 Ohio St.3d 3, 11, 665 N.E.2d 1091 (1996)(“[W]here an officer has an
articulable reasonable suspicion or probable cause to stop a motorist for any
criminal violation, including a minor traffic violation, the stop is constitutionally
valid * * *.”).
It is well established that “‘[a] police officer may [initiate] a traffic stop
of any motorist for any traffic infraction, even if the officer’s true motive is to detect
more extensive criminal conduct.’” State v. Hrtsyak, 8th Dist. Cuyahoga No.
108506, 2020-Ohio-920, ¶ 21, quoting State v. Bennett, 8th Dist. Cuyahoga No.
86962, 2006-Ohio-4274 (emphasis sic). “‘[C]ourts determine whether any violation
occurred, not the extent of the violation.’” Cleveland v. Martin, 2018-Ohio-740, 107
N.E.3d 809 (8th Dist.), quoting State v. Hodge, 147 Ohio App.3d 550, 2002-Ohio-
3053, 771 N.E.2d 331, ¶ 27 (7th Dist.).
Detectives Hess and Allen stopped Stewart’s car because Sgt.
Durichko advised them that Stewart was “driving erratically and switched lanes
multiple times without signaling.” (Tr. 19.) C.C.O. 431.14, governs “Signals Before
Changing Course, Turning, or Stopping,” and provides, in relevant part:
No person shall turn a vehicle * * * or move right or left upon a highway
unless and until such person has exercised due care to ascertain that
the movement can be made with reasonable safety, nor without giving
an appropriate signal in the manner hereinafter provided.
C.C.O. 431.14(a)(1). Thus, C.C.O. 431.14(a)(1) requires one to use a turn signal when
moving from right or left upon a highway. C.C.O. 401.61 defines the term “highway”
as synonymous with the word “street” and includes “the entire width between the
boundary lines of every way open to the use of the public as a thoroughfare for
purposes of vehicular travel.”
The trial court concluded that the stop of Stewart’s Jeep violated the
Fourth Amendment because Stewart was not required to use a turn signal when
turning out of the gas station parking lot onto a public street. The trial court found
no evidence of a traffic violation that would justify the stop. However, as previously
stated, the trial court’s decision fails to address Stewart’s other alleged traffic
violations. Defense counsel asserted at oral argument that the trial court must have
found that the testimony regarding other traffic violations was not credible based on
video evidence provided by Det. Hess’s body camera. In the video, which was played
at the suppression hearing, Stewart seems to be seeking clarification as to the reason
for the stop because he asks for confirmation that he was stopped for failing to use
his turn signal. Det. Hess replies in the affirmative and tells Stewart that he failed
to use a signal when he turned out of the gas station parking lot. Det. Hess does not
mention the other traffic violations on the video.
However, the video suggests that Det. Allen had previously told
Stewart that he was stopped for failing to use his signal, but Det. Allen’s conversation
with Stewart preceded Det. Hess’s interaction with him, and Det. Allen’s explanation
for the stop was not captured by Det. Hess’s body camera. We, therefore, do not
know what Det. Allen told Stewart regarding his failure to signal. Nevertheless, Det.
Hess testified at the suppression hearing that Stewart was stopped, in part, because
he failed to signal when he changed lanes. According to Det. Hess, Sgt. Durichko
also told Detectives Hess and Allen that Stewart had been “driving erratically.” (Tr.
19.) Thus, there was evidence that Sgt. Durichko observed Stewart violate C.C.O.
431.14(a)(1) by “switching lanes multiple times without signaling” and by failing to
exercise due care before moving right or left because he was “driving erratically.”
(Tr. 19.)
The trial court completely ignored the evidence of the other traffic
violations. This is not a case where the trial court found the evidence of other traffic
violations lacking in credibility; the trial court made no finding at all with respect to
that evidence. We, therefore, find the trial court’s conclusion that Stewart did not
commit a traffic violation is against the manifest weight of the evidence.
As previously stated, a traffic stop is constitutionally valid where
police have observed the driver commit a traffic violation. Dayton, 76 Ohio St.3d at
9, 11-12, 665 N.E.2d 1091. Although Detectives Hess and Allen did not witness the
traffic violations, police may initiate investigatory stops based on the observations
of other officers or citizens. Lyndhurst v. Brickel, 8th Dist. Cuyahoga No. 72322,
1998 Ohio App.LEXIS 2334 (May 28, 1998); Beachwood v. Sims, 98 Ohio App.3d
9, 14, 647 N.E.2d 821 (8th Dist.1994). Therefore, the traffic stop of Stewart’s Jeep
was constitutionally valid because Sgt. Durichko observed Stewart commit multiple
traffic violations.
Because the trial court found the traffic stop was unlawful, it did not
analyze the legality of the interaction between the detectives and appellees following
the initial stop. We have recognized that “‘[w]hen a trial court’s findings of fact are
inadequate and the record provides an appellate court with a sufficient basis to
review appellant’s assignments of error, the appellate court need not remand for the
entry of findings of fact.’” State v. Burrell, 8th Dist. Cuyahoga No. 72113, 1998 Ohio
App. LEXIS 1623, 9 (Apr. 16, 1998), quoting Parma v. Reschke, 8th Dist. Cuyahoga
No. 58015, 1991 Ohio App. LEXIS 644, 4 (Feb. 14, 1991).
After briefly talking with appellees during the traffic stop, Hess asked
Ealom to step out of the Jeep. “[A]n officer can ask a person to exit a vehicle during
a lawful traffic stop without having reasonable suspicion of any further criminal
activity.” Cleveland v. Kalish, 2018-Ohio-682, 106 N.E.3d 881, ¶ 26 (8th Dist.),
citing Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331(1977) (“Once a motor vehicle has been lawfully detained for a traffic violation, the
police officers may order the driver to get out of the vehicle without violating the
Fourth Amendment’s proscription of unreasonable searches and seizures.”).
As previously stated, Det. Hess asked Ealom if he had any weapons on
his person as he was exiting the car. Ealom responded, “Yes, I have a concealed
carry.” (Tr. 22, 71.) Det. Hess then observed a firearm in plain view in the front-
passenger door panel. (Tr. 22-23.) The plain view doctrine is another exception to
the Fourth Amendment’s warrant requirement. State v. Williams, 55 Ohio St.2d 82,
377 N.E.2d 1013 (1978).
In order for evidence to be seized under the plain view exception to the
search warrant requirement it must be shown that (1) the initial
intrusion which afforded the authorities the plain view was lawful; (2)
the discovery of the evidence was inadvertent; and (3) the
incriminating nature of the evidence was immediately apparent to the
seizing authorities.
Id. at paragraph one of the syllabus. See also State v. Halczyszak, 25 Ohio St.3d
301, 303, 496 N.E.2d 925 (1986).
Having determined that the initial traffic stop was constitutional, the
first of the three requirements necessary for the plain view doctrine to apply has
been satisfied. With respect to the other two requirements, the Ohio Supreme Court
has held that the “inadvertent discovery” requirement “may be satisfied when police
lack antecedent probable cause, i.e., an advance particularized knowledge of, or
intent to seize, those objects ultimately seized.” Halczyszak at paragraph two of the
syllabus. The “immediately apparent” requirement of the plain view doctrine is
satisfied where police officers have probable cause to associate the object with
criminal activity. Id. at paragraph three of the syllabus. “In ascertaining the
required probable cause to satisfy the ‘immediately apparent’ requirement, police
officers may rely on their specialized knowledge, training and experience * * *.” Id.at paragraph four of the syllabus.
Det. Hess observed the firearm in the front-passenger door panel as
Ealom was exiting the car. The discovery was inadvertent because neither Det. Hess
nor Det. Allen had any prior knowledge that the gun would be found in that location.
The gun’s incriminating nature was immediately apparent because Ealom failed to
disclose its existence to police during the traffic stop as required by R.C.
2923.12(B)(1). R.C. 2923.12(B)(1) states, in relevant part, that “[n]o person who has
been issued a concealed handgun license shall * * * fail to promptly inform any law
enforcement officer who approaches the person after the person has been stopped
that the person has been issued a concealed handgun license and that the person
then is carrying a concealed handgun[.]”
The purpose of the duty to “promptly inform” an officer of a concealed
weapon is to protect the officer’s safety. State v. Lyle, 1st Dist. Hamilton No. C-
190447, 2020-Ohio-4683. Courts interpreting the duty to promptly inform police
of the existence of a concealed weapon have held that “to do something ‘promptly’
is to do it ‘without delay and with reasonable speed.’” State v. Griffin, 1st Dist.
Hamilton No. C-190369, 2020-Ohio-3707, ¶ 28, quoting State v. Brown, 168 Ohio
App.3d 314, 2006-Ohio-4174, 859 N.E.2d 1017, ¶ 23 (11th Dist.). See also Lyle at
¶ 26-27 (holding that there was insufficient evidence of a concealed weapons
violation because the defendant promptly informed police that he had a firearm
while the interaction with police was still consensual and had not yet become a
“stop” for law enforcement purposes). Indeed, the plain meaning of the word
“promptly” is defined as “without delay[,] very quickly or immediately.” Merriam-
Webster.com dictionary, “promptly” available at Merriam-Webster,
https://www.merriam-webster.com/dictionary/promptly (accessed July 9, 2021).
Stewart and Ealom were legally stopped due to traffic violations.
Ealom did not notify police that he had a firearm in his possession until after
conversing with police for approximately four minutes and not until after Det. Hess
asked him if he had any weapons on his person. (Tr. 21.) Therefore, Ealom’s failure
to promptly notify police of the concealed weapon constituted a carrying a concealed
weapons offense in violation of R.C. 2923.12(B).1 See State v. Nelson, 2d Dist.
Montgomery No. 22718, 2009-Ohio-2546, ¶ 46 (Defendant’s failure to inform police
officers of a concealed weapon as required by R.C. 2923.12(B)(1) gave officers
probable cause to believe the gun was evidence of a carrying concealed weapon
violation.); State v. White, 8th Dist. Cuyahoga No. 92229, 2009-Ohio-5557, ¶ 14
(holding that defendant violated R.C. 2923.12(B)(1) where defendant voluntarily
produced an Ohio I.D. to police but failed to inform police of the presence of a
firearm in the vehicle during the exchange). Thus, Det. Hess properly seized the gun
pursuant to the plain view doctrine.
Having discovered a concealed weapon in the Jeep, Detectives Hess
and Allen had probable cause to search the Jeep. Under the automobile exception,
police may search a vehicle without a warrant if there is probable cause to believe
that the vehicle contains contraband, and exigent circumstances necessitate a search
or seizure. State v. Mills, 62 Ohio St.3d 357, 367, 582 N.E.2d 972 (1992); Maryland
v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.E.2d 442 (1999). “A vehicle’s
mobility is the traditional justification for this exception to the warrant
requirement.” State v. Warnick, 2d Dist. Miami No. 2019-CA-14, 2020-Ohio-4240,
¶ 30, citing Mills at 367; Dyson at 467. “[T]he automobile exception does not have
1 R.C. 2923.12(B) provides that “[n]o person who has been issued a concealed
handgun license shall * * * fail to promptly inform any law enforcement officer who
approaches the person after the person has been stopped that the person has been issued
a concealed handgun license and that the person then is carrying a concealed handgun[.]”
a separate exigency requirement: ‘If a car is readily mobile and probable cause exists
to believe it contains contraband, the Fourth Amendment * * * permits police to
search the vehicle without more.’” Dyson at 467, quoting Pennsylvania v. Labron,
518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996).
Having found an undisclosed concealed weapon in the Jeep,
Detectives Hess and Allen had probable cause to search the vehicle for additional
weapons. In State v. White, 8th Dist. Cuyahoga No. 92229, 2009-Ohio-5557, we
held that police had probable cause to search the defendant’s vehicle after learning
that he violated R.C. 2923.12(B)(1) by failing to inform police during a stop that he
was carrying a concealed weapon. See also State v. Fields, 4th Dist. Athens No.
96CA1742, 1996 Ohio App. LEXIS 5558 (Dec. 2, 1996) (holding that police had
probable cause to search the defendant’s vehicle after learning that he illegally
possessed a concealed weapon in the trunk).
As previously stated, Ealom committed a concealed weapons violation
by failing to disclose the existence of his gun to police during the traffic stop.
Therefore, Detectives Hess and Allen had probable cause to search the Jeep for
additional weapons without a warrant.
While searching the Jeep for weapons, Det. Hess found multiple cell
phones and a large roll of blank lottery tickets. (Tr. 25.) Det. Hess testified, based
on his training and experience investigating drug trafficking, that these items were
“indicators of drug trafficking.” (Tr. 25.) The Ohio Supreme Court has held that the
discovery of other indicia of criminal activity in the vehicle during a search gives rise
to probable cause to search other areas of the vehicle, including containers that
could contain contraband. State v. Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, 116
N.E.3d 1262, ¶ 20; State v. Taylor, 8th Dist. Cuyahoga No. 108322, 2020-Ohio-
5079, ¶ 15 (en banc).
After finding a roll of blank lottery tickets, Detectives Hess and Allen
searched the back seat of the car, including a pouch affixed to the back of the
passenger seat, where they found a scale with drug residue. They also found bags of
cocaine and heroin inside a hidden compartment of a hairbrush. Because they had
probable cause to search the vehicle, we find the search was lawful, and the evidence
found during the search should not have been suppressed.
We, therefore, sustain the sole assignment of error.
Judgment reversed. We remand the case to the trial court for trial.
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE ATTACHED
OPINION;
LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE ATTACHED OPINION
SEAN C. GALLAGHER, P.J., CONCURRING:
I concur fully with the majority, but write separately to briefly discuss
the type of police enforcement underlying the facts of this case.
Traffic enforcement should normally be conducted by a uniformed
officer in a marked cruiser and stops initiated to enforce traffic infractions. Parma
Hts. v. Nugent, 92 Ohio Misc.2d 67, 700 N.E.2d 430 (M.C.1998). The practice of
undercover observation coupled with calling in uniformed officers in a marked
cruiser (who saw nothing of the original traffic violation) will invariably raise
surveillance concerns when part of a concerted effort to stop motorists for further
investigations based on the pretext of spotting traffic infractions. Crimes are indeed
uncovered and thwarted at times by such practices, but of course, that conduct
comes at a price in the relationship between police officers and citizens.
There is certainly a lesser expectation of privacy in a motor vehicle,
but the fine line between police enforcement and the protections of the Fourth
Amendment are put to the test in scenarios as the one that played out in this case.
The decision in this case hinged on a few critical facts that if slightly different could
have taken the outcome in another direction.
Officers face difficult challenges in enforcing laws, but it is always
important for them to assess their methods and how those methods impact the
community they serve. Although I share some of the concerns raised in this case,
the law compels reversal.
LARRY A. JONES, J., DISSENTING:
I respectfully dissent. Of particular concern to me in this case is the
majority’s finding that “Ealom’s failure to notify police of the concealed weapon
constituted a carrying-a-concealed-weapons offense in violation of R.C.
2923.12(B).” I would find that Ealom properly notified the police that he had a
concealed weapon and license to carry one.
Specifically, when Detective Hess asked Ealom if he had any weapons
on his person, Ealom responded, “Yes. I have a concealed carry.” The record
demonstrates that Ealom indeed had a license to carry a concealed weapon, but the
majority finds that Ealom did not “promptly inform” the police of the weapon and
that he had a license to have it. R.C. 2923.12(B). The majority cites State v. Lyle,
1st Dist. Hamilton No. C-190447, 2020-Ohio-4683, State v. Nelson, 2d Dist.
Montgomery No. 22718, 2009-Ohio-2546, and State v. White, 8th Dist. Cuyahoga
No. 92229, 2009-Ohio-5557, in support of its finding that Ealom failed to properly
inform the police of the weapon. I believe Lyle is more supportive of my position
that Ealom properly notified the police of his carrying concealed weapon license,
and I find Nelson and White distinguishable from this case.
In Nelson, an officer stopped the defendant after observing the vehicle
the defendant was driving cross over the right shoulder lane line. In speaking with
the defendant, the officer noticed that the defendant was extremely nervous and
unable to accurately tell the officer where he was headed. Therefore, the officer
called for back-up assistance. When another officer arrived, a pat-down search of
the defendant was performed and revealed an empty gun holster. The police asked
the defendant where the gun was; the defendant responded that it was in the car
between the seats. As the defendant was being placed in the police cruiser, another
officer saw “in plain sight, the handle of a gun between the driver and passenger
seats.” Id. at ¶ 14. The police questioned the defendant about the gun. He admitted
that it was his and that he did not have a carrying concealed weapon license. He was
charged with and convicted of improperly handling a firearm in a motor vehicle. The
conviction was upheld on appeal.
Nelson is distinguishable from this case for two reasons. First, the
timing is different. In Nelson, the defendant was already out of his vehicle when the
police discovered that he had a gun. Here, Ealom told the police that he had a gun
as he was exiting the vehicle. Second, and most importantly, the defendant in
Nelson did not have a carrying-concealed-weapon license, while, here, Ealom did.
Likewise, in White, after the defendant was ordered out of his vehicle
so that he could be placed under arrest, he informed the police that he “thought”
there was a gun in the vehicle, and his mother had put it in the center console. Id.
at ¶ 6. The police did retrieve a gun from the vehicle, and the defendant’s mother
denied the gun was hers. Most importantly, the defendant in White did not have a
carrying-concealed- weapon license.
This case is more akin to Lyle, 1st Dist. Hamilton No. C-190447, 2020-
Ohio-4683. In Lyle, the defendant (Lyle), like Ealom here, was convicted of carrying
a concealed weapon for failing to promptly inform the officers that he possessed a
concealed handgun license and that there was a firearm in the vehicle. Lyle was a
passenger in a parked vehicle (Ealom was a passenger in Stewart’s vehicle in this
case). The police were in the area of the parked vehicle, responding to a report of
gunshots. When the police saw that Lyle and another person were in the vehicle,
they began to approach. As they approached the vehicle, one of the officers saw Lyle
twice turn toward the back seat and then back to the front.
One of the officers approached the front passenger door, where Lyle
was seated, and asked Lyle to roll the window down, which Lyle did. The officer
asked Lyle and the driver if they had heard any gunshots; both responded that they
had not. According to the officer, “at that point he could smell burnt and raw
marijuana coming from the vehicle, could see marijuana residue on the driver’s
pants, and observed what appeared to be an open container of alcohol in the center
console.” Id. at ¶ 5. The officer did not mention what he observed to the driver or
Lyle at that time, however.
The officer asked the driver if he could talk to him briefly. As the
officer walked over to the driver’s side door, he asked another officer to watch the
passenger’s side, where Lyle was. The driver got out of the car and walked back
toward the other officer. The officer ordered the driver to face the car and patted
him down. The officer then asked the driver, “Hey, where’s your weed at?” Id. at ¶
6. The driver denied having any. The officer then handcuffed the driver, sat him
down on the curb, and questioned him about the marijuana. Three minutes and ten
seconds into the video, the officer standing by Lyle’s door turned toward the other
officer and said, “There’s a gun in the backseat.” Id.
The officer who was by Lyle told him, “I’m going to put you in
handcuffs alright? You’re not in trouble, but we’re going to put you in handcuffs.”
Id. at ¶ 7. While the police removed Lyle from the car and patted him down, Lyle
told them that he had a carrying-concealed-weapon license; the police found his
license in his wallet. The police asked Lyle why he had not told them earlier, and
Lyle said that he had told the one officer that had been standing by his door. The
officer who conducted the pat-down search testified that during the pat-down he
discovered that Lyle was wearing an empty holster, prompting him to believe that
Lyle had moved the firearm to the backseat as the police approached the car.
The police retrieved the firearm, which had been partially hidden
under a booster seat in the backseat of the car. Lyle was charged for failing to
promptly inform the officers of the firearm and his license.2 After a bench trial, Lyle
was found guilty of carrying a concealed weapon in violation of R.C. 2923.12(B)(1)
for failing to promptly inform the officers that he possessed a concealed-handgun
license and that there was a firearm in the vehicle. Lyle appealed, contending that
the evidence was insufficient to sustain the conviction. The First Appellate District
agreed.
The first issue presented in Lyle ─ at what point during the interaction
was Lyle stopped for a law-enforcement purpose ─ is not at issue in this case. Here,
the stop was for a law-enforcement purpose from the beginning. But the second
issue presented in Lyle ─ when stopped, did Lyle “promptly inform” the police of
the firearm and that he had a license ─ is, in my opinion, the salient issue in this
case. R.C. 2923.112(B)(1). I believe Ealom promptly informed the police.
In Lyle, the First Appellate District held that Lyle’s initial interaction
with the police was a consensual encounter, but became a law-enforcement stop
when the “officers prepared to remove him from the vehicle, by which time
defendant had informed a deputy of the firearm, and informed him shortly
thereafter that he possessed a concealed-handgun license.” Id. at ¶ 27. That was
after the police had already spotted the weapon in plain view. Yet still, the First
Appellate District found that Lyle timely informed the police that he had a weapon.
Here, Ealom informed the police of the gun as he was being removed from the
2 Fentanyl was also discovered in the vehicle, but the grand jury did not charge Lyle
with that.
vehicle, and prior to the police seeing it. In my view, he properly informed them;
therefore, the subsequent search of the car, which was based on the police’s view
that they were not properly informed, was invalid.
Therefore, I believe the evidence found as a result of the search should
have been suppressed; I would affirm the trial court’s decision granting Stewart and
Ealom’s motions to suppress and overrule the state’s assignment of error.