State v. Fisher , 2024 Ohio 3164 ( 2024 )

[Cite as State v. Fisher, 2024-Ohio-3164.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230655
TRIAL NO. B-2300877
Plaintiff-Appellee, :
vs. : O P I N I O N.
MARQUELL TE’VON FISHER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 21, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} After the trial court overruled his motion to suppress, defendant-
appellant Marquell Te’von Fisher pleaded no contest to one count of carrying
concealed weapons under R.C. 2923.12(A)(2). The trial court found him guilty and
sentenced him to two years of community control. He now appeals that conviction,
asserting a single assignment of error, in which he contends that the stop and seizure
of his person was unreasonable under the Fourth Amendment. We find no merit in
his assignment of error, and we affirm his conviction.
{¶2} The record shows that Hamilton County Sheriff’s Deputy Nicholas Price
was dispatched to investigate a robbery in progress at a Frisch’s restaurant in
Hamilton County, about 50 to 60 yards from the Warren County line. The area is
mostly commercial but there are apartments within 50 to 100 yards of Frisch’s.
{¶3} The dispatcher described the robber as a male black, wearing dark-
colored clothing and a ski mask or some kind of face mask. When Deputy Price arrived
at Frisch’s, the restaurant’s manager told him that a black male had come into to the
restaurant, pointed a pink and black gun at him, and told him to take money from the
safe. After the manager got some money from the safe, the robber left the restaurant.
The manager said that the robber had fled on foot and went east toward an area which
was mostly commercial properties, although there were also “residential homes.”
{¶4} Deputy Price reviewed the restaurant’s surveillance video and noted
that the robber in the video “kind of lined up” with the description in the dispatch,
except that the robber was wearing “gray-colored attire.” He provided an updated
description to dispatch, stating that the robber was “Black male, 6-foot tall, average
build, wearing a zip-up Nike hoodie, with Nike emblem on left chest, possibly had gray
boots on.” He also noted some details that were not part of the description, including
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OHIO FIRST DISTRICT COURT OF APPEALS
that the robber appeared to be a biracial man, that the logo on the hoodie was red, and
that the gun was pink and black.
{¶5} Deputy Noah Billmaier of the Warren County Sheriff’s Department
responded to a call from Hamilton County requesting assistance in setting up a
perimeter. Because he was part of the K9 unit, he believed that he would be asked to
have his dog track the robbery suspect. When he arrived, he discovered that Hamilton
County’s K-9 unit was already deployed. He stayed to assist in setting up the perimeter
and went to an area east of Frisch’s. He said that he was looking for a suspect described
on his “dispatch screen” as an “African American male in a black hoodie and boots that
fled the area after committing an armed robbery.”
{¶6} The police set up a large perimeter that encompassed five or six blocks
to the east of Frisch’s. At about 1:15 a.m., about 45 minutes after Deputy Billmaier
responded to the dispatch, he encountered Fisher “not even a football field length”
from Frisch’s. According to the deputy, “He had boots on, a black hoodie up over his
head, and some type of stocking ski-type hat on top of his head.” On cross-
examination, the deputy acknowledged that Fisher was wearing a black hoodie with a
large white emblem that was not a Nike logo, black boots, black jeans, and a light-
colored cap.
{¶7} Deputy Billmaier said that what had initially drawn his attention to
Fisher was that Fisher had been walking in an apartment complex, which was “a big U
shape” with a female. The female immediately walked into the apartment, and Fisher
“walks away and then walks up the sidewalk. He doesn’t try to go to a car. He doesn’t
try to go to the apartment. He doesn’t do anything.” After the deputy made contact
with him, he noticed that Fisher had dirt all over the front of his hooded sweatshirt,
which he thought “was super weird, too.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} Deputy Billmaier told Fisher that there had been an armed robbery in
the area and that he matched the description of the robber. Fisher replied that it was
not him. He had his hands in the pocket of his hoodie and would not take them out.
The deputy asked, “Do you mind taking them out for our safety?” Fisher said that he
would not do that, so the deputy “grabbed ahold of his arm and gently,” walked him
over to the front of his car, and had him take a seat on the “push guards,” while the
deputy “let the radio know” that he was “out with a suspect.”
{¶9} At some point, Fisher told the deputy that he had just come from the
Meijer store, but the deputy suspected that was a lie, because Fisher had been walking
from the west, which was “the opposite direction” of Meijer. Deputy Billmaier testified
that at that time, he had reason to believe that Fisher matched the description of the
armed-robbery suspect, and that people often lie when they are confronted by the
police.
{¶10} When another deputy arrived, Deputy Billmaier again asked Fisher to
take his hands out of his pocket, but he refused. He had Fisher stand up so that he
could conduct a pat-down search. But Fisher said, “No, bro, I’m not going to do that”
and started to walk away. The deputy grabbed Fisher and put him against the hood of
his cruiser. But Fisher continued to resist, engaging in “kind of a wrestling match,”
that “went down to the ground.”
{¶11} At that time, there were two other deputies with Deputy Billmaier.
Fisher began screaming “at the top of his lungs to elicit a crowd response” from people
that had come out from the apartment complex. The deputies were able to calm the
crowd and subdue and handcuff Fisher. Deputy Billmaier asked him, “What is this
about? Do you have warrants? You’re not the guy who robbed [the restaurant]; why
are you acting like this?” Fisher replied that he had a gun on him, and the deputies
recovered a gun from Fisher’s waistband.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} The deputies put Fisher into a cruiser and drove him to Frisch’s, where
Deputy Price had remained. When he saw Fisher, he immediately said, “That’s not the
guy we are looking for.” He indicated that he was “very familiar with” Fisher, whom
he called “Twin,” so he recognized Fisher right away. He said that like the suspect in
the video, Fisher was wearing “darker-colored clothing, but it was not exact.” Deputy
Price also said that the suspect in the video appeared to be biracial, which “was clearly
not Twin.”
{¶13} The trial court found that Deputy Billmaier’s stop of Fisher was based
on a reasonable and articulable suspicion that Fisher was involved in the robbery.
Therefore, the trial court denied his motion to suppress. Subsequently, Fisher entered
his no-contest plea.
{¶14} In his sole assignment of error, Fisher contends that the trial court erred
in overruling his motion to suppress. He argues that under the collective-knowledge
doctrine, the reasonableness of the stop and detention is based on the facts known by
the law enforcement officer who precipitates the dispatch rather than what is known
by the responding officer. He also argues that the stop and detention were
unreasonable under the Fourth Amendment because Fisher did not match the
description of the person who committed the robbery. This assignment of error is not
well taken.
{¶15} Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court’s findings of fact as true if competent,
credible evidence supports them. But we must independently determine whether the
facts satisfy the applicable legal standard. State v. Burnside, 2003-Ohio-5372, ¶
8; State v. Houston, 2020-Ohio-5421, ¶ 56 (1st Dist.).
{¶16} An investigative stop is a seizure within the meaning of the Fourth
Amendment that must be supported by objective justification. State v. Andrews, 57
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio St.3d 86, 87 (1991); Houston at ¶ 57. The analysis is governed by the standards
enunciated in Terry v. Ohio, 392 U.S. 1 (1968), and its progeny. Andrews at 87; State
v. Payne, 2023-Ohio-4198, ¶ 8 (1st Dist.). Terry held that the police may stop and
temporarily detain an individual for investigation “when an officer has reasonable
suspicion based on specific and articulable facts that criminal activity has occurred or
is imminent.” Payne at ¶ 8, quoting State v. Rogers, 2022-Ohio-4535, ¶ 18 (1st Dist.).
{¶17} Reasonable suspicion is an “elusive concept,” and “[p]recisely defining
reasonable suspicion is not possible.” It is not readily reduced to a “neat set of legal
rules.” State v. Hawkins, 2019-Ohio-4210, ¶ 20, quoting Ornelas v. United States, 517
U.S. 690, 695-696 (1996). It is a less demanding standard than probable
cause. Hawkins at ¶ 20.; In re J.C., 2019-Ohio-4815, ¶ 14 (1st Dist.). But it is
something more than an “inchoate and unparticularized suspicion or ‘hunch.’”
Hawkins at ¶ 20; In re J.C. at ¶ 14. The evaluation of the constitutionality of a stop
should be based on the totality of circumstances “viewed through the eyes of the
reasonable and prudent police officer on the scene who must react to events as they
unfold.” State v. Hairston, 2019-Ohio-1622, ¶ 10, quoting Andrews at 87-88.
{¶18} In ruling on a motion to suppress, a court may consider the collective
knowledge of police officers involved in a common investigation. State v. Henderson,
51 Ohio St.3d 54, 57 (1990); Houston, 2020-Ohi0-5421, at ¶ 62 (1st Dist.). Police may
rely on information broadcast over the police radio for reasonable suspicion to make
an investigatory stop or for probable cause to make an arrest. State v. Fultz, 13 Ohio
St.2d 79 (1968), paragraph two of the syllabus; Houston at ¶ 62.
{¶19} Where an officer making an investigatory stop relies solely on a
dispatch, the state must demonstrate that the facts precipitating the dispatch justified
a reasonable suspicion of criminal activity. Maumee v. Weisner, 87 Ohio St.3d 295,
297-298 (1999); Houston at ¶ 62. “Reasonable suspicion may exist based upon the
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OHIO FIRST DISTRICT COURT OF APPEALS
collective knowledge of the police when there is reliable communication between the
officer supplying the information and the officer acting on that information.” State v.
Ojezua, 2016-Ohio-2659, ¶ 30 (2d Dist.), quoting State v. Freeman, 2015-Ohio-2501,
¶ 16 (9th Dist.).
{¶20} We hold that the totality of the circumstances supports the conclusion
that Deputy Billmaier had a reasonable suspicion of criminal activity sufficient to
support the stop. The initial police dispatch described the robber as a black male,
wearing dark-colored clothing and a ski or face mask. After Deputy Price, who had 17
years’ experience, reviewed the surveillance video, he updated the dispatch to include
more details, adding that the robber was a “Black male, 6-foot tall, average build,
wearing a zip-up Nike hoodie, with Nike emblem on the left chest pocket, possibly had
gray boots on.”
{¶21} The details that Deputy Price knew but that were not in the dispatch are
not dispositive. The information actually contained in the dispatch is what is relevant.
While the best practice might be to include all information known by the police in the
description of the suspect in the dispatch, ultimately the standard is whether under
the totality of the circumstances, the police had a reasonable and articulable suspicion
of criminal activity.
{¶22} Deputy Billmaier, who had 20 years of experience, recalled the
description as being for a six-foot tall black male in a black hoodie and boots. About
45 minutes after the robbery and 50 to 100 yards away from Frisch’s, he saw Fisher
who was a black male about six feet tall, wearing a black hoodie, black jeans, black
boots and some type of mask on his head. Thus, he was in close proximity to where
the crime had occurred and close it time to when it had occurred. Further, Fisher
caught the deputy’s attention because he was walking with no apparent direction, and
he had dirt all over the front of his sweatshirt, which he described as “super weird.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} Ultimately, the trial court stated, “I do not believe [Deputy Billmaier]
was randomly picking out people in the neighborhood to stop.” It found that “he made
his stop based on what he believed was a reasonable and articulable suspicion that this
person with the description that he had may have been involved in this particular
crime of robbery.” That finding was supported by competent, credible evidence.
{¶24} It does not matter that Fisher was later determined not to be the robber.
An assessment of the totality of the circumstances “does not deal with hard certainties,
but with probabilities.” Hairston, 2019-Ohio-1622, at ¶ 10, quoting United States v.
Cortez, 449 U.S. 411, 418 (1981). A determination that reasonable suspicion exists
“need not rule out the possibility of innocent conduct.” Hawkins, 2019-Ohio-4210, at
¶ 22, quoting United States v. Arvizu, 534 U.S. 266, 277 (2002). In permitting
detentions based on reasonable suspicions, “Terry accepts the risk officers may stop
innocent people.” Hawkins at ¶ 22, quoting Illinois v. Wardlow, 528 U.S. 119, 126
(2000). Consequently, we overrule Fisher’s assignment of error and affirm the trial
court’s judgment.
Judgment affirmed.
BERGERON, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its own entry this date.
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