State v. Cook , 2019 Ohio 3918 ( 2019 )

[Cite as State v. Cook, 2019-Ohio-3918.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2019-CA-28
:
v. : Trial Court Case No. 2018-CR-810
:
TIMOTHY COOK, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 27th day of September, 2019.
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JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JOHN S. PINARD, Atty. Reg. No. 0085567, 120 West Second Street, Suite 603, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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TUCKER, J.
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{¶ 1} Timothy Cook, Jr. appeals from his conviction for improper handling of a
firearm in a motor vehicle, which followed the trial court’s decision overruling his motion
to suppress evidence obtained as a result of a traffic stop and search of his vehicle. We
conclude that the stop and search did not violate the Fourth Amendment. Thus, the trial
court’s judgment will be affirmed.
Facts
{¶ 2} On December 6, 2018, at approximately 3:40 p.m., following the end of his
duty shift, Clark County Sheriff’s Sergeant Ralph Underwood was driving home in a
marked cruiser. A male driver, who was accompanied by a “younger female,” pulled his
vehicle alongside Underwood’s cruiser “in a panic” and motioned to Underwood to “roll
down the [cruiser’s] window.” The individual then informed Underwood that “the guy
behind [Underwood] in the white car [was] waving a gun.” Because Underwood’s
immediate “focus was on the car behind [him] which supposedly had a gun,” Underwood
did not obtain the informant’s identifying information.
{¶ 3} Underwood radioed dispatch to request assistance. Clark County Sheriff
Deborah Burchett arrived soon thereafter. Underwood then initiated a stop of Cook’s
vehicle. Based upon the reported gun, Underwood approached Cook’s vehicle with his
service weapon drawn. Cook and his passenger were ordered out of the vehicle and
handcuffed. Underwood advised Cook and the passenger they were being handcuffed
for everyone’s “protection,” and that “if it works out…I’ll let you go.”
{¶ 4} At this point, Burchett advised Underwood there was a mask in plain view on
the “passenger side” of Cook’s vehicle. The mask, referred to by the parties as an “opera
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mask” and depicted in photographic exhibits 2 and 3, depicted a male face. At this
juncture, Underwood looked under the vehicle’s passenger seat and observed a semi-
automatic handgun. An unattached magazine was located beside the handgun. Cook was
administered Miranda warnings, and, upon questioning, he admitted he owned the
handgun.
{¶ 5} Cook was indicted for improper handling of a firearm in a motor vehicle in
violation of R.C. 2923.16(B), a fourth degree felony. Cook filed a motion to suppress the
handgun and his post-Miranda statements. After conducting a hearing, the trial court
overruled the suppression motion. Cook thereafter entered a no contest plea and was
found guilty. The trial court sentenced Cook to a six-month prison term. This appeal
followed.
Analysis
{¶ 6} Cook raises two assignments of error as follows:
The officer lacked a reasonable, articulable suspicion to effectuate a
traffic stop based solely on an anonymous tipster with no independent
corroboration;
The officers lacked probable cause to search the vehicle based
solely on an uncorroborated anonymous tip and [the discovery of] a black
opera mask.
Standard of Review
{¶ 7} An appellate court, when reviewing a motion to suppress decision, must
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accept the trial court’s factual findings as long as the findings are supported by credible
evidence. State v. Walker, 2d Dist. Montgomery No. 24542, 2012-Ohio-847, ¶ 17. But an
appellate court’s review of the legal conclusions drawn from those facts is de novo. Id.The Stop
{¶ 8} Based upon the informant’s purported anonymous status and the absence of
corroboration of the informant’s information, Cook asserts that Underwood did not
possess a reasonable, articulable suspicion of criminal activity, and thus, the stop violated
the Fourth Amendment.
{¶ 9} Informants are classified into three basic, but on occasion “somewhat
blurred,” groups: (1) the anonymous informant, (2) the known (often criminally connected)
informant who has previously provided reliable information, and (3) the known citizen
informant. State v. Gregory, 2d Dist. Montgomery No. 28240, 2019-Ohio-3000, ¶ 24
quoting Maumee v. Weisner, 87 Ohio St.3d 295, 300, 720 N.E.2d 507 (1999). Irrespective
of the informant’s status, when the police execute an investigative stop based exclusively
on an informant’s tip, the stop’s legality is determined by an assessment of the informant’s
reliability and, assuming the tip’s reliability, whether the tip established a reasonable,
articulable suspicion that the person to be stopped was, or was about to be, engaged in
criminal activity. State v. Lester, 2d Dist. Montgomery No. 27762, 2018-Ohio-3601, ¶ 33,
quoting State v. Hamilton, 1st Dist. Hamilton No. C-160247, 2017-Ohio-8140, ¶ 13, citing
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In this case, the
tip, if reliable, established a reasonable suspicion that Cook was engaged in criminal
activity. Thus, our determination turns on the informant’s reliability. The reliability
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judgment is based upon the totality of circumstances including the informant’s status and
basis of knowledge. Id.{¶ 10} An uncorroborated anonymous tip is “ ‘seldom [sufficient to] demonstrate[e]
the informant’s basis of knowledge or veracity’ ” but even so, “under appropriate
circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to
provide reasonable suspicion to make [an] investigative stop.’ ” Navarette v. California,
572 U.S. 393, 397, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), quoting Alabama v. White,
496 U.S. 325, 327, 110 S.Ct. 2412, 100 L.Ed.2d 301 (1990).
{¶ 11} In contrast, “an identified citizen informant is accorded a ‘greater degree of
reliability’ [than an anonymous tipster] and ‘therefore, a strong showing as to the other
indicia of reliability [i.e. indicia other than the classification of the informant] may be
unnecessary.’ ” State v. Pickett, 2017-Ohio-5830, 94 N.E.3d 1046, ¶ 11 (2d Dist.), quoting
State v. Carrocce, 10 Dist. Franklin No. 06AP-101, 2006-Ohio-6376, ¶ 32, quoting City of
Weisner at 300-301. Thus, when “a citizen-informant * * * is victimized or merely
witnesses a crime and reports it out of a sense of civic duty, the police may be entitled to
presume that the informant is reliable.” Pickett at ¶ 11, quoting Carrocci at ¶ 32. (Other
citations omitted.)
{¶ 12} Based upon Underwood’s failure to obtain the informant’s identifying
information or to corroborate the tip, Cook argues that the informant was appropriately
classified as an unreliable anonymous tipster. The circumstances surrounding the tip
suggests otherwise. In contrast to a true anonymous tipster who acts to conceal his
identity, the citizen in this case openly contacted Underwood on a public street. The
informant, upon making contact, could not know that Underwood would not obtain his
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identifying information, Underwood’s immediate, and understandable, focus upon the
informant’s information did not make the informant a mere anonymous tipster. The
informant’s open, public contact with Underwood was, instead, consistent with a citizen,
albeit not identified, who, out of civic duty, reports criminal conduct he has witnessed. As
noted, the categories, as here, are not always neat and tidy. But the categories are simply
a tool used to assist in the ultimate determination of the informant’s reliability.
{¶ 13} Based upon the informant’s face-to-face, contemporaneous, and panicked
report of a startling event (the waving of a gun in the vehicle directly behind Underwood’s
cruiser), we conclude that the informant’s tip was reliable. This reliability allowed
Underwood “to credit the [informant’s] allegation” that the driver of the vehicle positioned
directly behind his cruiser had been waving a gun. See Navarette at 399. Given this, the
stop was a proper investigative stop under the Fourth Amendment and under Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The Search
{¶ 14} Cook next argues that the search of his vehicle was not supported by
probable cause. In response, the state asserts that the search was supported by probable
cause that a handgun was present within the vehicle under the totality of circumstances,
including the discovery of the mask. However, consistent with our investigative stop
determination, we conclude that Underwood’s search of the vehicle’s passenger
compartment was a protective weapons search sanctioned by Michigan v. Long, 463 U.S.
1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In Long, the Supreme Court concluded
that the protective pat down search for weapons authorized by Terry may extend to a
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vehicle’s passenger compartment.1 Consistent with Terry, such a search is permissible
when an officer, upon making an investigative stop involving a vehicle, has a reasonable
belief, based upon specific, articulable facts, that the person stopped is dangerous, that
a weapon may be within the vehicle’s passenger compartment, and that the suspect,
upon his return to the vehicle, could gain immediate control of a hidden weapon. Long at
1049. See also State v. Walker, 2d Dist. Montgomery No. 24542, 2012-Ohio-847, ¶ 28;
State v. Roye, 2d Dist. Greene No. 2001-CA-5, 2001 WL 703869, *3 (June 22, 2001).
{¶ 15} We have already concluded that Underwood’s stop of Cook’s vehicle was
authorized based upon the reasonable suspicion that, just before the stop, Cook had been
waving a handgun inside the vehicle. This conclusion also supported the reasonable,
prudent belief that Cook was dangerous and a handgun was within the vehicle. Finally,
assuming the investigative stop did not otherwise reveal a handgun, Cook would have
had immediate access to such a handgun upon the stop's completion and his return to
the vehicle. Under these facts, we conclude that Underwood’s search of the vehicle’s
passenger compartment was a protective weapons search that did not violate the Fourth
Amendment.
{¶ 16} Cook’s assignments of error are overruled.
Conclusion
1
Terry, of course, allows an officer conducting an investigative stop to perform a weapons
patdown search when the officer has a “reasonable individualized suspicion that the
suspect is armed and dangerous * * *.” State v. Reece, 2d Dist. Montgomery No. 27058,
2016-Ohio-7805, ¶ 11, quoting State v. Roberts, 2d Dist. Montgomery No. 23219, 2010-
Ohio-300, ¶ 18, citing Terry at 27. The constitutionality of a weapons patdown search
turns on “whether a reasonably prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger.” Id.-8-
{¶ 17} Having found that neither the stop nor the search violated the Fourth
Amendment, the judgment of the Clark County Common Pleas Court is affirmed.
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FROELICH, J. and HALL, J., concur.
Copies sent to:
John M. Lintz
John S. Pinard
Hon. Douglas M. Rastatter