State v. Williams ( 2014 )


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  • [Cite as State v. Williams, 
    2014-Ohio-1728
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 100311
    STATE OF OHIO
    PLAINTIFF-APPELLANT
    vs.
    BENJAMIN L. WILLIAMS
    DEFENDANT-APPELLEE
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-13-574933
    BEFORE: E.A. Gallagher, J., S. Gallagher, P.J., and E.T. Gallagher, J.
    RELEASED AND JOURNALIZED: April 24, 2014
    ATTORNEYS FOR APPELLANT
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    BY: Karrie D. Howard
    Assistant County Prosecutor
    Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    Robert L. Tobik
    Cuyahoga County Public Defender
    BY: Cullen Sweeney
    Linda Hricko
    Assistant Public Defenders
    310 Lakeside Avenue
    Suite 400
    Cleveland, Ohio 44113
    EILEEN A. GALLAGHER, J.:
    {¶1} The state of Ohio appeals the decision of the trial court granting Benjamin
    Williams’ motion to suppress.      The state argues the trial court erred in concluding that
    the officers did not have a reasonable articulable suspicion to conduct an investigative
    stop or a protective pat-down of Williams. Finding no merit to the instant appeal, we
    affirm the decision of the trial court.
    {¶2} On May 13, 2013, the Cleveland Police Department received an anonymous
    phone call reporting drug activity being conducted between a white four-door Chrysler
    and a black Alero at East 144th Street and Edgewood Avenue.          Cleveland police officer
    Gobel and his partner investigated the call but did not see anyone at the reported site.
    The officers continued to tour the area and found a white Dodge Charger parked on East
    147th Street, just south of Edgewood Avenue. Officer Gobel testified that he began to
    investigate the vehicle because there were three males standing outside the vehicle and it
    was close to the area where the original call reported criminal activity.      Officer Gobel
    acknowledged that the reported vehicle and the one observed on East 147th Street were
    different.
    {¶3} The officers activated their overhead lights, exited their vehicle and
    approached the three males, during which time, one of the males, later identified as
    Benjamin Williams, walked away.           Officer Gobel testified that Williams’ “eyes started
    shifting around,” and he walked away quickly.         Officer Gobel requested that Williams
    return to the vehicle and Williams complied.        At that time, Officer Gobel testified that
    he smelled marijuana on Williams’ person, which led him to conduct a pat-down search
    of Williams. During the pat-down, Officer Gobel felt a bulge in the front of Williams’
    waistband. Officer Gobel retrieved the bulge and discovered many individually wrapped
    baggies of suspected marijuana.    Officer Gobel arrested Williams for violating state drug
    laws.
    {¶4} Williams moved to suppress the evidence collected during the officers’
    pat-down search, arguing that the search was illegal.   The trial court conducted a hearing
    and, at the conclusion of the evidence, granted Williams’ motion.           The trial court
    concluded the officers did not have a reasonable suspicion to stop Williams based on the
    facts and circumstances of the case.     In particular, the court concluded that although
    Officer Gobel testified that it was nighttime in a high drug area, that fact was insufficient
    in light of Officer Gobel’s admission that it was a different car than what was reported
    and that Officer Gobel’s assertion that Williams appeared nervous was unsupported by
    any further evidence.
    {¶5} The state appeals, raising the following assignments of error:
    The trial court erred in concluding that officers did not have reasonable
    articulable suspicion to conduct an investigative stop of defendant-appellee;
    and
    The trial court erred by concluding that the officers did not have a
    reasonable suspicion to justify a protective pat down of defendant-appellee.
    {¶6} In State v. Preztak, 
    181 Ohio App.3d 106
    , 
    2009-Ohio-621
    , 
    907 N.E.2d 1254
    (8th Dist.), this court outlined the standard of review on a motion to suppress.
    Our standard of review with respect to motions to suppress is whether the
    trial court’s findings are supported by competent, credible evidence. See
    State v. Winland, 
    116 Ohio App.3d 286
    , 
    688 N.E.2d 9
     (7th Dist.1996),
    citing City of Tallmadge v. McCoy, 
    96 Ohio App.3d 604
    , 
    645 N.E.2d 802
    (9th Dist.1994).   This is the appropriate standard because “in a hearing on
    a motion to suppress evidence, the trial court assumes the role of trier of
    facts and is in the best position to resolve questions of fact and evaluate the
    credibility of witnesses.”   State v. Hopsfer, 
    112 Ohio App.3d 521
    , 
    679 N.E.2d 321
     (2nd Dist.1996).
    {¶7} After accepting such factual findings, the reviewing court must independently
    determine as a matter of law whether the applicable legal standard has been satisfied.
    State v. Jones, 8th Dist. Cuyahoga No. 99837, 
    2014-Ohio-496
    .
    {¶8} In its first assignment of error, the state argues the trial court erred in
    concluding that the officers did not have a reasonable articulable suspicion to conduct an
    investigative pat-down. Williams disagrees with the state’s argument. For the reasons
    that follow, we find no merit to the assigned error.
    {¶9} 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, 
    389 U.S. 347
    , 
    88 S.Ct. 507
    , 
    19 L.Ed.2d 576
    (1967). An investigative stop, or “Terry- stop,” is a common exception to the Fourth
    Amendment warrant requirement. See Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S.Ct. 1868
    , 
    20 L.E.2d 889
     (1968).    As stated by this court in State v. Paschal, 
    169 Ohio App.3d 200
    ,
    
    2006-Ohio-5331
    , 
    862 N.E.2d 196
     (8th Dist.):
    In the seminal case of Terry v. Ohio, the United States Supreme Court
    explained that the Fourth Amendment allows a police officer to stop and
    detain an individual if the officer possesses a reasonable suspicion, based
    upon specific and articulable facts, that criminal activity “may be afoot.”
    Terry v. Ohio, 
    392 U.S. 1
    , 9, 
    20 L.Ed.2d 889
    , 
    88 S.Ct. 1868
     (1968); see also
    State v. Andrews, 
    57 Ohio St.3d 86
    , 
    565 N.E.2d 1271
     (1991). A valid
    investigative stop must be based upon more than an inchoate and
    unparticularized suspicion or hunch that criminal activity is afoot. United
    States v. Arvizu, 
    534 U.S. 266
    , 
    151 L.Ed.2d 740
    , 
    122 S.Ct. 744
     (2002);
    Terry at 27.
    In deciding whether reasonable suspicion exists, courts must examine the
    “‘totality of the circumstances’ of each case to determine whether the
    detaining officer has a ‘particularized and objective basis’ for suspecting
    legal wrongdoing.” Arvizu, quoting, United States v. Cortez, 
    449 U.S. 411
    , 417-418, 
    66 L.Ed.2d 621
    , 
    101 S.Ct. 690
     (1981); State v. Bobo, 
    37 Ohio St.3d 177
    , 
    524 N.E.2d 489
     (1981), citing State v. Freeman, 
    64 Ohio St.2d 291
    , 
    414 N.E.2d 1044
     (1980).
    Under this totality of the circumstances approach, police officers are
    permitted to “draw on their own experience and specialized training to
    make inferences from and deductions about the cumulative information
    available to them that ‘might well elude an untrained person.’” Arvizu,
    quoting, Cortez at 418. Thus, a court reviewing the officer’s reasonable
    suspicion determination must give due weight to the officer’s trained eye
    and experience and view the evidence through the eyes of those in law
    enforcement. 
    Id.
     See also Andrews, at 87-88.
    {¶10} The state argues that the officers had a reasonable suspicion to conduct a
    Terry-investigative stop on Williams because he was standing near a white four-door
    Dodge a few blocks away from where the location referenced in the anonymous call
    suggesting drug activity involving a white four-door Chrysler and a black Alero.
    {¶11} Officer Gobel testified that drug dealers often drive around in a car, that 911
    callers occasionally provide bad locations or descriptions and officers, therefore, need to
    use their own experience and observations when investigating 911 calls.        (Tr. 35.)   In
    the instant case, Officer Gobel testified that as soon as the officers observed the parked
    white four-door Dodge Charger, they stopped, activated their overhead lights and
    approached the males.      They did so because the car “was in close proximity to the
    location of the dispatch. * * * There were three males standing around it. So we just
    decided to investigate.”   (Tr. 18.)    The officers suggested that they were also influenced
    because it was at nighttime and they were in an area with a reputation for high drug
    activity.
    {¶12} We decline to adopt the state’s argument.         Absent criminal, or at least
    suspicious, behavior on the part of the suspect, the mere presence of the suspect in a high
    crime area or an area being given “special attention” pursuant to a tip does nothing to
    create reasonable suspicion in a particular case. State v. Porter, 8th Dist. Cuyahoga No.
    86577, 
    2006-Ohio-4584
    .
    {¶13} In Maumee v. Weisner, 
    87 Ohio St.3d 295
    , 
    1999-Ohio-68
    , 
    720 N.E.2d 507
    ,
    the Ohio Supreme Court categorized the sources of informant’s tips and also their
    corresponding indicia of reliability.    In particular, the court noted that the “anonymous
    informant is comparatively unreliable and his tip, therefore, will generally require
    independent police corroboration.” Id. at 300. The parties do not dispute that the
    information received in the present case came from an anonymous tip.            Further, the
    police do not dispute that the vehicle they investigated was in a different area and was a
    different make and model from that described in the anonymous tip. Also, the police
    testimony reveals that the officers immediately stopped to investigate the vehicle without
    first observing any other activity that would give rise to a reasonable suspicion that
    criminal activity was afoot.   Thus, the officers failed to independently corroborate the tip
    they received.
    {¶14} The state claims that Williams was acting suspiciously because he nervously
    shifted his eyes and began to quickly walk away from the officers.     The state argues that
    by walking away, Williams engaged in unprovoked flight. In support of its argument,
    the state cites Illinois v. Wardlow, 
    528 U.S. 119
    , 
    120 S.Ct. 673
    , 
    145 L.Ed.2d 570
     (2000),
    in which the United States Supreme Court held that “nervous, evasive behavior is a
    pertinent factor in determining reasonable suspicion.”      Thus, a suspect’s unprovoked
    flight upon seeing the police can justify a seizure when it occurs in a high crime area.
    State v. McGowan, 8th Dist. Cuyahoga No. 96232, 
    2011-Ohio-5663
    .
    {¶15} However, briskly walking away from approaching police does not justify an
    investigative stop absent the observation of any other suspicious behavior, even in a high
    drug area. State v. Fanning, 
    70 Ohio App.3d 648
    , 
    591 N.E.2d 869
     (8th Dist.1990).
    Furthermore, walking quickly does not turn innocuous behavior into suspicious conduct
    that allows for an investigative stop.      Fanning.    When the officers turned on the
    overhead lights of the cruiser and decided to conduct an investigative search, Williams’
    behavior was innocuous because he was not doing anything illegal or improper.
    Williams was standing next to a white Dodge, not a white Chrysler, and in a different
    location from where the police received a tip about possible drug activity.                 Lastly,
    Williams began to walk away from the officers after they decided to conduct an unlawful
    investigative search.
    {¶16} The state also argued that the officers decided to conduct a search of
    Williams because he appeared to be nervous.           However, any observation that Williams
    appeared nervous occurred after the officers decided to conduct an investigative stop, and
    therefore should not be considered in determining if the officers conducted a lawful
    Terry-stop.1
    {¶17} The first assignment of error is overruled.
    {¶18} Our analysis of the state’s first assigned error renders the remainder of this
    appeal moot.     We therefore decline to review the remaining assigned error.
    {¶19} Judgment affirmed.
    It is ordered that appellee recover of appellant 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
    1
    Even if Officer Gobel’s observation that Williams appeared nervous were to be considered, it would
    not impact the outcome of this case. Courts have routinely rejected generalized observations as
    insufficient to support a Terry-stop. We agree with the trial court that Officer Gobel only provided
    general observations that happened at night from an unspecified distance away from Williams.
    Therefore, Officer Gobel’s observations were insufficient to justify a Terry-stop.
    Rule 27 of the Rules of Appellate Procedure.
    __________________________________________
    EILEEN A. GALLAGHER, JUDGE
    SEAN C. GALLAGHER, P.J., and
    EILEEN T. GALLAGHER, J., CONCUR
    

Document Info

Docket Number: 100311

Judges: Gallagher

Filed Date: 4/24/2014

Precedential Status: Precedential

Modified Date: 2/19/2016