State v. Lynch , 196 Ohio App. 3d 420 ( 2011 )

[Cite as State v. Lynch, 196 Ohio App.3d 420, 2011-Ohio-5502.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96441
THE STATE OF OHIO,
APPELLEE,
v.
TYRONE LYNCH,
APPELLANT.
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-538646
BEFORE: Boyle, P.J., Sweeney, J., and Jones, J.
RELEASED AND JOURNALIZED: October 27, 2011
2
ATTORNEYS:
William D. Mason, Cuyahoga County Prosecuting Attorney, and Jeffrey S.
Schnatter, Assistant Prosecuting Attorney, for appellee.
Jaye M. Schlachet and Eric M. Levy, for appellant.
3
MARY J. BOYLE, Presiding Judge.
{¶ 1} Defendant-appellant, Tyrone Lynch, appeals the trial court’s denial of his
motion to suppress. After reviewing the facts and pertinent law, we reverse the trial
court’s decision and remand the case for further proceedings.
Procedural History and Factual Background
{¶ 2} In June 2010, Lynch was indicted on eight counts: two counts of drug
possession, three counts of drug trafficking, and one count each of possessing criminal
tools, carrying a concealed weapon, and having a weapon while under a disability. All
the counts also included additional specifications (most were forfeiture specifications, but
the drug-related counts also included a one-year firearm specification and one of the
drug-trafficking counts carried a juvenile specification). Lynch moved to suppress all
evidence. The following facts were presented at the suppression hearing.
{¶ 3} Detective Michael Rasberry and Detective Luther Roddy testified that as
Cleveland vice detectives, they had been involved in thousands of drug arrests. On the
night in question, they were investigating citizen complaints of drug activity in the area of
Prince Avenue. The complaints were nearly a year old, but they testified that they had
also made recent drug arrests in the area. They were driving an unmarked black Crown
Victoria.
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{¶ 4} Around midnight, as they were driving, they saw a car stopped in the
middle of Prince Avenue with its brake lights on. A man, later identified to be Lynch,
was standing on the driver’s side of the vehicle, leaning down into the car. Detective
Rasberry said that seeing this “struck a nerve” because he had “witnessed transactions in
the street, transactions with vehicles, individuals hand to hand,” or “some kind of
transaction of drugs for currency, money.” The detectives then saw the vehicle drive
away, definitely exceeding the speed limit. When the car pulled away, Lynch “made a
little hurry-scurry” to an SUV that was running, but legally parked on the side of the road,
and got in the driver’s side of the vehicle.
{¶ 5} At this point, the detectives activated their lights and “pulled right up on the
side of the vehicle.” After they activated their lights, “the seated driver was kind of
jumping around the vehicle to his left of his body.” That suggested to Detective
Rasberry that Lynch was trying to hide drugs or weapons.
{¶ 6} As the detectives approached the driver’s side of the vehicle, they saw a
teenage girl who appeared to be high or intoxicated in the passenger seat. They
identified themselves as police and asked Lynch what he had been doing in the street.
Lynch replied that he was talking to his friend. At that point, the detectives asked Lynch
if he had a driver’s license on his person. When Lynch replied that he did not, the
detectives asked him to step out of the vehicle “to ask him more questions about him not
having a license.” Eventually, the detectives figured out that Lynch had a suspended
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driver’s license and they placed him under arrest. After that, other officers searched
Lynch’s vehicle and discovered drugs and a gun in the car.
{¶ 7} After hearing the evidence, the trial court denied Lynch’s motion to
suppress. Lynch subsequently pleaded no contest to the indictment as charged. It is
from this judgment that Lynch appeals, raising several Fourth Amendment issues.
Standard of Review
{¶ 8} A motion to suppress presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “When
considering a motion to suppress, the trial court assumes the role of trier of fact and is
therefore in the best position to resolve factual questions and evaluate the credibility of
witnesses. * * * Consequently, an appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence. * * * Accepting these facts as
true, the appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.”
(Citations omitted.) Id.Fourth Amendment
{¶ 9} A motion to suppress evidence challenges the warrantless search and
seizure at issue as being in violation of the Fourth Amendment of the United States
Constitution. State v. Williams, 8th Dist. No. 81364, 2003-Ohio-2647, ¶ 7. The
principal remedy for such a violation is the exclusion of evidence from the criminal trial
of the individual whose rights have been violated. Id. Exclusion is mandatory when the
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evidence is obtained as a result of an illegal search. Id., citing Mapp v. Ohio (1961), 367
U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
{¶ 10} The Fourth Amendment to the United States Constitution prohibits
warrantless searches and seizures, rendering them per se unreasonable unless an
exception applies. Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d
576. An investigative stop, or Terry stop, is a common exception to the Fourth
Amendment warrant requirement. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889. It is well recognized that officers may briefly stop and detain an
individual, without an arrest warrant and without probable cause, in order to investigate a
reasonable and articulable suspicion of criminal activity. Id.; see also State v. Bobo
(1988), 37 Ohio St.3d 177, 524 N.E.2d 489. “The propriety of an investigative stop by a
police officer must be viewed in light of the totality of the surrounding circumstances” as
“viewed through the eyes of a reasonable and cautious police officer on the scene, guided
by his experience and training.” State v. Freeman (1980), 64 Ohio St.2d 291, 414
N.E.2d 1044, syllabus; see Bobo at 179.
{¶ 11} The United States Supreme Court, however, has held that “not all personal
intercourse between policemen and citizens involves ‘seizures’ of persons. Only when
the officer, by means of physical force or show of authority, has in some way restrained
the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry at 19, fn.
16.
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{¶ 12} In a recent case, State v. Logan, 8th Dist. No. 96190, 2011-Ohio-4124, ¶ 9,
this court explained: “A consensual encounter occurs when the police approach a
person in a public place, engage the person in conversation, and the person remains free
to not answer or walk away. State v. Jones, 188 Ohio App.3d 628, 636,
2010-Ohio-2854, 936 N.E.2d 529, citing Florida v. Royer (1983), 460 U.S. 491, 497, 103
S.Ct. 1319, 75 L .E.2d 565. * * * A consensual encounter does not implicate the Fourth
Amendment or trigger its protections. Id., citing Florida v. Bostick (1991), 501 U.S.
429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389.”
{¶ 13} These same principles also apply to citizens in motor vehicles. Generally,
an officer’s approach and questioning of the occupants of a parked vehicle does not
constitute a seizure and does not require reasonable, articulable suspicion of criminal
activity. State v. Boys (1998), 128 Ohio App.3d 640, 642, 716 N.E.2d 273.
{¶ 14} In his first assignment of error, Lynch argues that the police lacked a
reasonable and articulable suspicion of criminal activity to justify their initial stop of him.
The state maintains that the “initial stop” of Lynch was not a Terry stop at all, but a
consensual encounter. The officers here did not simply approach Lynch while he was
seated in his vehicle and begin to talk to him; they first activated their red and blue
flashing lights, got out of their vehicle, and identified themselves as police. Thus, the
question that we must first address is whether the officers’ activation of their flashing
police lights converted what would otherwise be a consensual encounter into a seizure.
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Our review of the law in Ohio reveals that there is an apparent conflict between the
districts on this issue.
Activation of Flashing Police Lights
{¶ 15} The state relies on State v. Patterson, 9th Dist. No. 23135, 2006-Ohio-5424,
for the proposition that an officer’s activation of overhead lights does not convert a
consensual stop into a seizure. In Patterson, a police officer “spotted a vehicle parked at
the rear of Denny’s parking lot * * * around 3:10 a.m. The Denny’s restaurant was open
at the time. The [officer] testified that the vehicle’s windows were fogged up, the
parking lights were on, and the car was running. He testified that he could see a person
sitting in the driver’s seat of the car. He said he believed the vehicle had been there
awhile since the windows were fogged up. The [officer] then pulled his cruiser up to the
vehicle with its blue and red lights flashing.” Id. at ¶ 9. On appeal, the defendant
argued that a seizure occurred when the officer activated his overhead lights. The Ninth
District disagreed and held that “ ‘[a] police officer does not necessarily seize the
occupants of a parked vehicle through the activation of a police cruiser’s overhead
lights.’ ” Patterson at ¶ 17, citing State v. Brown (Dec. 10, 2001), 12th Dist. No.
CA2001-04-047.
{¶ 16} In Patterson, the Ninth District relied on Brown, a Twelfth District Court of
Appeals case. In Brown, the court determined that the defendant “was not seized within
the meaning of the Fourth Amendment when [the officer] approached him in a parked car
and asked questions, even though [the officer] had activated his overhead lights. Absent
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any evidence that [the officer] used some form of coercion or duress to force compliance
with his request, [the defendant’s] consent to the search of his vehicle was freely and
voluntarily given.” Id.
{¶ 17} The Eleventh District has also followed Brown in State v. Rozier, 11th Dist.
No. 2009-T-0074, 2010-Ohio-1454. In Rozier, the court held that no seizure occurred
when the officer “approached the vehicle [and] saw that it was running and that there
were two occupants in the front seat. The officer stopped his cruiser about 20 feet
behind the vehicle so as not to block it, and activated his overhead lights. [The officer]
approached the vehicle in order to determine why its occupants were parked there.” Id.
at ¶ 4, 31.
{¶ 18} The Brown court relied on State v. Johnston (1993), 85 Ohio App.3d 475,
620 N.E.2d 128, a Fourth District Court of Appeals case. Our review of Johnston
reveals that the court did not adopt a bright-line test concerning the activation of overhead
police lights. In fact, we find that the holding in Johnston would support the opposite
conclusion in the present case, namely, that a seizure did occur when the officers
activated their overhead lights.
{¶ 19} In Johnston, the court explained:
{¶ 20} “‘In order to determine whether a particular encounter constitutes a seizure,
a court must consider all the circumstances surrounding the encounter to determine
whether the police conduct would have communicated to a reasonable person that the
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person was not free to decline the officers’ requests or otherwise terminate the encounter.
***
{¶ 21} “Although appellant cites no authority in support of his argument on appeal,
our own research reveals that several courts in other jurisdictions have held that activation
of a cruiser’s overhead lights converts a mere police-citizen encounter into a seizure, thus
implicating the protections of the Fourth Amendment. In 3 LaFave, Search and Seizure
(2 Ed.1987) 416-417, Section 9.2(h), the author states that the encounter will likely
constitute a seizure where police officers use flashing lights as a show of authority. See
State v. Stroud (1981), 30 Wash.App. 392, 634 P.2d 316; State v. Walp (1983), 65
Ore.App. 781, 672 P.2d 374, as cited by LaFave at fn. 269. See, also, Ozhuwan v. State
(Alaska App.1990), 786 P.2d 918, 921.
{¶ 22} “We have, however, found no Ohio case either adopting or rejecting this
position. In a subsequent case, the Court of Appeals of Oregon clarified its holding in
Walp, supra, stating that ‘an officer’s use of overhead lights alone does not necessarily
cause an encounter to be a stop.’ State v. Dubois (1985), 75 Ore.App. 394, 398, 706
P.2d 588, 590. The court emphasized instead that in deciding whether an encounter is a
stop, a court must look to the totality of the circumstances. Id.” Johnston, 85 Ohio
App.3d at 479.
{¶ 23} The court reasoned: “Based upon the totality of the circumstances in the
case sub judice, we hold the encounter between [the officer] and appellant did not
constitute a seizure. This case is distinguishable from those cited by LaFave. In those
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cases, the defendant was already parked and the officer approached the defendant’s
parked car. In the case sub judice, appellant pulled into the parking lot behind the
trooper and came to a stop.” Id. The officer had testified, “It was dark, 2:40 in the
morning and I was sitting—I pulled up right there just to turn around. And then this
vehicle pulled in next to me. So, that is when I got out of my car.” Id. “Under these
circumstances, there was no seizure. Activation of the overhead lights did not constitute
such a show of force or authority so as to convert the encounter into a seizure. * * * See
LaFave, supra, at 416-417.” Id.
{¶ 24} Here, the facts are more similar to the facts in the LaFave cases than to
those in Johnston. In Johnston, as the court stated, it was the defendant who pulled next
to the police cruiser. Id.. Here, similar to the LaFave cases (according to the Johnston
court), Lynch was parked, and the officers approached his vehicle after activating their
police lights.
{¶ 25} The concurring opinion in Johnston pointed out, “I concur in the judgment,
but concur separately because I believe our opinion here might be misconstrued to hold
that a police officer’s use of overhead flashing lights does not constitute a stop. Clearly
it does, and it is perceived as a stop by every driver who has been distressed to see those
flashing lights in the rear window.” Id. (Grey, J., concurring).
{¶ 26} In a case with facts nearly identical to those in the present case, the Second
District expressly agreed with Judge Grey’s concurring opinion in State v. Little, 2d Dist.
No. 09-CA-122, 2010-Ohio-2923, ¶ 10. In Little, police officers were on patrol around
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12:45 a.m. when they noticed “a white [SUV], with its lights out, sitting in between the
storage area and the liquor store.” Id. at ¶ 3. “The officers pulled in alongside the
parked SUV, activating the cruiser’s overhead, flashing lights as they did so. They
discovered that the motor of the SUV was running, in neutral. [The defendant] was sitting
in the driver’s seat. A passenger was sitting in the passenger seat.” Id. The Second
District explained: “[T]he activation of overhead flashing lights by police officers in a
marked police cruiser is a universally understood signal that a motorist being followed by
a police cruiser must pull over and stop, because the police officer wants to talk to the
motorist, or that a motorist in a stationary vehicle in the immediate vicinity of the cruiser
should not leave the area, but wait, because the police officer wants to talk to the
motorist.” (Emphasis added.) Id. at ¶ 9.
{¶ 27} In an earlier case, the Second District held that a “motor vehicle
police-citizen contact is thought to lose its consensual character and become a seizure
when a police officer activates his or her emergency lights, spotlight, or siren to pull an
individual over. * * * These actions amount to a show of authority and would make a
reasonable person feel that he or she is required to comply by stopping. However, this
general rule is not hard and fast as some courts have held that an officer’s use of overhead
lights alone does not necessarily cause an encounter to be a seizure. * * * This seeming
inconsistency illustrates that each encounter is to be judged individually, by the totality of
its circumstances.” State v. Osborne (Dec. 13, 1995), 2d Dist. No. 15151.
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{¶ 28} We agree with the concurring opinion in Johnston and the reasoning set
forth by the Second District in Little and Osborne. While there may be limited
circumstances in which the activation of police lights may not rise to the level of a stop
(such as in Johnston, in which the defendant pulled up behind the officer), we find that in
most situations, as here, that is not the case. When a police officer pulls behind or
beside a parked vehicle and activates his or her flashing lights, it is clearly a seizure
within the meaning of the Fourth Amendment. The person inside the vehicle
understands that he or she is not free to simply pull away. Detective Rasberry even
admitted that if Lynch had pulled away, they would have arrested him for failure to
comply with a police directive.
{¶ 29} Based upon the totality of the circumstances in this case, the detectives were
not engaging in a consensual encounter when they activated their police lights,
immediately exited their vehicles, and identified themselves as “police.” No reasonable
person in Lynch’s position would have felt free to leave. Further, we find no distinction
that the detectives were in an unmarked Crown Victoria. Although the unmarked police
car did not have the flashing red and blue police lights on top of the car, it still had
them—one mounted on the inside and one “mounted over the rearview mirror.” The
detectives pulled up directly beside Lynch’s vehicle and activated their lights. Lynch
was certainly not free to leave. Thus, this encounter was not consensual; it was an
investigative stop.
Reasonable Suspicion
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{¶ 30} So the question becomes, did the detectives have an articulable, reasonable
suspicion that Lynch was engaged in criminal activity—such that they were justified in
approaching him to investigate. We conclude that they did not.
{¶ 31} The detectives testified that they were investigating citizen complaints of
drug activity in the area but acknowledged that the complaint they were investigating was
about a year old. They observed Lynch bent over talking to someone in a car. They
then saw the car speed away, and saw Lynch walk back to his vehicle. They then
activated their lights and effectuated a stop of Lynch. It was only then that they saw
Lynch jumping around his car and reaching to the left. But by then, they had already
made a stop without any particularized reason to stop him.
{¶ 32} The state argues that this court should consider other factors that suggest
criminal activity was afoot—such as the late hour in a high-crime neighborhood. The
state maintains that those facts, along with the detectives’ experience making thousands
of drug arrests—in this particular high-crime area—are enough. But this court has
repeatedly held that police officers must still be able to point to specific facts to justify
their conclusion that this defendant was engaged in criminal activity. State v. Scales, 8th
Dist. No. 87023, 2006-Ohio-3946, ¶ 14. Further, it is well settled that an individual’s
presence in a high-drug area does not suspend the protections of the Fourth and
Fourteenth Amendments. See, e.g., State v. Simmons, 8th Dist. No. 89309,
2007-Ohio-6636; Scales; State v. Chandler (1989), 54 Ohio App.3d 92, 97, 560 N.E.2d
832.
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{¶ 33} Here, there is simply no evidence that Lynch was engaged in criminal
activity. He was leaning into a car talking to someone. When the car pulled away,
Lynch walked quickly back to his car and got in it. That is not enough to justify the
investigative stop of him.
{¶ 34} Lynch’s first assignment of error is sustained.
{¶ 35} We need not address Lynch’s remaining assignments of error challenging
the search of his vehicle and his wrongful arrest. Because the initial stop of Lynch was
not warranted, the police had no right to ask for his driver’s license or search his vehicle,
and all evidence must be excluded. We therefore need not address his remaining
assignments.1
Judgment reversed
and cause remanded.
_____________________
SWEENEY and JONES, JJ., concur.
1
“[2] The trial court erred when it failed to grant the defendant’s motion to suppress evidence
based upon [an] unconstitutional search and seizure resulting from the Cleveland police detectives’
wrongful arrest of the defendant as he did not operate a vehicle and therefore did not violate Cleveland
City Ordinance 435.01(A).
“[3] The trial court erred when it failed to suppress evidence obtained by the Cleveland police
detectives’ post-arrest, warrantless search of the vehicle the defendant was arrested from which was not
related to the traffic offense for which the defendant was arrested.
“[4] The trial court erred when it misinterpreted and ignored facts in denying the defendant’s
motion to suppress evidence which was against the manifest weight of the evidence.”