State v. Harris , 2024 Ohio 1025 ( 2024 )

[Cite as State v. Harris, 2024-Ohio-1025.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230379
TRIAL NO. B-2105512
Plaintiff-Appellee, :
vs. : O P I N I O N.
MARKALO HARRIS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 20, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Arenstein & Gallagher and William R. Gallagher, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Markalo Harris appeals his convictions for possession of cocaine,
carrying a concealed weapon, improperly handling a firearm in a motor vehicle, and
having a weapon while under a disability. In two assignments of error, Harris argues
that the trial erred by overruling his motion to suppress the drugs and firearm found
in his vehicle because the trial court’s factual findings were against the manifest weight
of the evidence and his detention after a traffic stop was unreasonable.
Factual Background
{¶2} Harris was indicted for trafficking in cocaine, possession of cocaine,
carrying a concealed weapon, improperly handling a firearm in a motor vehicle, and
having a weapon while under a disability. Harris filed a motion to suppress all
evidence, arguing the officers did not have reasonable suspicion to detain him.
{¶3} At the hearing on the motion, Officer Mark Bode, an officer with the
Cincinnati Police Department (“CPD”), testified that on October 27, 2021, he was
assigned to the Crime Gun Intelligence Center. On that day, Bode was conducting
plainclothes surveillance in Westwood, a high-crime area. While Bode was driving, he
observed an imprint of a firearm in the front pocket of Harris’s bright yellow hoodie
and the handle of a gun protruding from the pocket when Harris crossed the street in
front of him.
{¶4} Bode contacted his unit via a channel reserved solely for his unit,
requested additional officers to respond to McHenry Avenue, and shared his
observations of Harris and his description. Officer Broering responded that he had
recently been involved in a case with Harris, and that Harris was under a disability
from that prior case. Bode intended to stop Harris because he was a convicted felon
in possession of a firearm.
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{¶5} While waiting for the uniformed officers to arrive, Bode parked about
75 feet away and continued to watch Harris for approximately 15 minutes. Harris
repeatedly walked from a BMW parked in a yard on McHenry Avenue to a house across
the street. Harris met with individuals in front of the house but did not enter the
house. The BMW was registered to Harris. Bode believed Harris’s actions were
indicative of drug trafficking. Bode testified that he could still see the gun in his pocket
from 75 feet away using binoculars.
{¶6} Before the other officers arrived, another car pulled up near the BMW.
Harris opened the driver’s door of the BMW and bent over into the driver’s
compartment for less than ten seconds. Then Harris entered the passenger seat of the
car that had just arrived, and the car left. Bode could not see if the gun was still in
Harris’s pocket.
{¶7} Bode relayed this information to his unit, and uniformed cars followed
the car and initiated a traffic stop for a window-tint violation. Bode remained on the
scene while talking to Officers Chiappone and Condon, who had stopped the vehicle.
When the officers reported that they did not find a gun, Bode told them to read Harris
his Miranda rights and tell him that plainclothes officers had observed him with a gun
going in and out of the BMW.
{¶8} Chiappone spoke with Harris and told the unit that Harris stated the
gun was under the floor mat on the driver’s side of the BMW. The keys to the BMW
were taken from Harris and transported to the BMW. The firearm was recovered
under the floor mat, and drugs were found in the driver’s compartment, indicative of
trafficking.
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{¶9} On cross-examination, Bode testified that he did not see money
exchange hands but saw small items being exchanged between Harris and the
individuals in front of the house. Bode reviewed video from Chiappone’s body-worn
camera and confirmed that Chiappone told Harris that he was observed placing the
gun in the BMW. Bode told Chiappone to tell Harris that he saw him put the gun in
the BMW even though he did not see Harris put the gun in the car. Harris was detained
until the search of the BMW was finished. Ten to 15 minutes elapsed from the time
the traffic stop was initiated until the officers arrived with the keys to the BMW. Bode
further testified that the communications over the unit’s channel were not recorded.
{¶10} Officer Thomas Chiappone testified that he received a call from Bode on
the encrypted channel that Harris had a gun. He also learned from Broering that
Harris was under a disability. The original plan was for Chiappone to drive to the
BMW parked on McHenry Avenue. Chiappone was in a uniform and driving a marked
police cruiser. After Harris left the scene in another vehicle, Chiappone and his
partner Condon pulled over that vehicle. Chiappone approached the passenger’s side
of the car. Because there was a gun involved, Chiappone used a Stop Stick to prevent
the car from fleeing and had his firearm drawn.
{¶11} For safety reasons, Condon and Chiappone removed the driver and
Harris from the car and placed them in handcuffs. Condon saw marijuana in the
vehicle, so they searched both individuals and the car, but did not find a gun.
Chiappone found the BMW keys in the car where Harris had been sitting.
{¶12} During the stop, Chiappone told Harris why he was detained and read
him his Miranda rights. Harris told him that the gun belonged to his girlfriend and
was in the BMW. Chiappone removed Harris’s wallet from his pocket and took his
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driver’s license to confirm his identity and ensure he had the correct person.
Chiappone also needed the information for the contact card that is required to be
completed for every traffic stop.
{¶13} Chiappone confirmed that he told Harris that he was seen putting the
gun in the BMW, and that they had to check the BMW before releasing Harris. A
sergeant drove the BMW keys to the car while Chiappone remained with Harris. After
the gun was found, Chiappone drove Harris to McHenry Avenue.
{¶14} When the traffic stop occurred, Chiappone communicated the stop on
the district-wide channel. He reported, “unknown occupants,” meaning he did not
know how many individuals were in the car due to the dark tint on the windows or the
driver’s identity.
{¶15} After Chiappone testified, Harris admitted a flash drive containing the
video from Chiappone’s body-worn camera. The trial court admitted the exhibit
without objection and represented that she would play the video on her own computer
to hear it better.
{¶16} During closing arguments, Harris challenged the credibility of the
officers’ testimony. Specifically, he argued that there was no proof that they knew
Harris’s identity, and that he was a convicted felon when the stop was initiated.
Without that knowledge, the officers had no legal justification to detain, search, and
question Harris.
{¶17} The court overruled the motion after reviewing the transcript and video
because the officers had reasonable suspicion to believe there was a gun, and once
Harris admitted the gun was in the BMW, the search of the BMW was permissible.
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Upon Harris’s request, the trial court issued a written decision denying the motion to
suppress.
{¶18} The court found Bode’s testimony that he observed the gun handle in
Harris’s pocket when he walked in front of him to be credible. The court also believed
that Bode knew from a fellow officer that Harris had a disability that prevented him
from legally possessing a gun. These facts combined to give the officers probable cause
to stop Harris and search for the gun. The court did not believe that Bode observed
the imprint of the gun on the hoodie or that he observed the gun while parked 75 feet
away.
{¶19} Shortly after being Mirandized, Harris voluntarily admitted that there
was a gun under the floor mat of the BMV’s driver side, giving the officers probable
cause to search the BMW. The trial court concluded that the search and subsequent
seizure of the gun and drugs from the BMW did not violate Harris’s Fourth
Amendment rights.
Law and Analysis
{¶20} Appellate review of a decision on a motion to suppress presents a mixed
question of law and fact. State v. Showes, 1st Dist. Hamilton No. C-180552, 2020-
Ohio-650, ¶ 9. “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.” (Citation omitted.) State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “We must accept the trial court’s
findings of fact if they are supported by competent and credible evidence, but we
review de novo the application of the relevant law to those facts.” Showes at ¶ 9.
{¶21} Harris contends that the trial court’s factual findings were against the
manifest weight of the evidence because Bode’s testimony that Broering provided
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OHIO FIRST DISTRICT COURT OF APPEALS
Harris’s identity and that he was under a disability was not credible. Harris further
argues that the officers did not have a reasonable belief that Harris was committing a
crime by having a gun in his pocket because Bode’s testimony was not credible.
{¶22} The record provides competent and credible evidence to support the
court’s findings. Both Chiappone and Bode testified that Broering identified Harris
and informed the unit that Harris was under a disability prior to the stop of the vehicle.
The trial court expressly found Bode’s testimony on those matters to be credible. As
the reviewing court, we accept the trial court’s determination because the court was in
the best position to evaluate his credibility. See Burnside at ¶ 8.
{¶23} Accordingly, we overrule the first assignment of error.
{¶24} In his second assignment of error, Harris argues that the police violated
his Fourth Amendment right to be free from unreasonable searches and seizures when
they detained him in handcuffs without reasonable suspicion that he had committed
a crime.
{¶25} The Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Ohio Constitution generally prohibit unreasonable searches and
seizures. State v. Ward, 2017-Ohio-8141, 98 N.E.3d 1257, ¶ 13 (1st Dist.). A law
enforcement officer may briefly detain an individual when he or she has reasonable
and articulable suspicion that the individual may be engaged in criminal activity.
Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An officer
must be able to cite specific, articulable facts, which, taken together with the rational
inferences that can be drawn from those facts, reasonably warrant the intrusion. Id.The propriety of an investigative stop by a police officer must be viewed in light of the
totality of the surrounding circumstances as seen through the eyes of a reasonable and
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cautious police officer on the scene, guided by his experience and training. State v.
Bobo, 37 Ohio St.3d 177, 179-180, 524 N.E.2d 489 (1988).
{¶26} Harris argues that the officers had no reasonable suspicion or probable
cause to detain him after determining there was no gun on his person or in the car.
{¶27} Bode observed Harris with a gun and knew that he had a disability that
prohibited him from having a gun. Chiappone confirmed that Harris had a disability
shortly after initiating the traffic stop. Thus, the officers had a reasonable suspicion
that Harris had committed a crime. See State v. O’Neal, 1st Dist. Hamilton No. C-
220541, 2023-Ohio-3268, ¶ 13 (holding that the officer’s observation that defendant
possessed a firearm was a fact “sufficient to create reasonable suspicion that
[defendant] may have been committing a weapons-possession offense and to justify
an investigatory stop”). The officers also had probable cause to believe that Harris
committed the offense of having a weapon while under a disability. Probable cause
exists when, based on the totality of the circumstances, “the arresting officer, at the
time of the arrest, possesses sufficient information that would cause a reasonable and
prudent person to believe that a criminal offense has been or is being committed.”
State v. Acoff, 1st Dist. Hamilton Nos. C-160867 and C-160868, 2017-Ohio-8182, ¶ 11,
quoting State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 39.
Thus, the officers did not violate the Fourth Amendment in detaining Harris to inquire
about the gun.
{¶28} We overrule the second of assignment of error.
Conclusion
{¶29} Having overruled Harris’s two assignments of error, we affirm the trial
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court’s judgment.
Judgment affirmed.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry this date.
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