State v. Logan ( 2011 )

[Cite as State v. Logan, 2011-Ohio-4124.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96190
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAKEEYAN LOGAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-539792
BEFORE: Keough, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: August 18, 2011
ATTORNEYS FOR APPELLANT
Iverson M. Jackson
420 Lakeside Place
323 West Lakeside Avenue
Cleveland, OH 44113
Steven M. Gaulding
75 Public Square
Suite 1111
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Margaret A. Troia
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} This case came to be heard upon the accelerated calendar
pursuant to App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Jakeeyan
Logan (“Logan”), appeals the trial court’s decision denying his motion to
suppress. For the reasons that follow, we affirm.
{¶ 2} In July 2010, Logan was charged with carrying a concealed
weapon. Logan filed a motion to suppress, arguing that the officers lacked
reasonable suspicion to justify the warrantless stop. At the suppression
hearing, the following evidence was presented.
{¶ 3} East Cleveland police officer John Donitzen testified that he was
working undercover with Sergeant Randy Hicks on the night of July 14, 2010
and patrolling a six or seven block area around Carolyn, Superior, Hayden,
and East 125th streets because it was “a problem area” for drug sales and
robberies. They were dressed in plain clothes with police vests over their
clothing and riding in an unmarked red pickup truck.
{¶ 4} At approximately 1:30 a.m. as they were parked at the Marathon
gas station on the corner of Carolyn and Superior streets, the officers
observed a male wearing jeans and a black hooded sweatshirt sitting on a
bicycle across the street in a dimly lit area, facing their direction. The hood
portion of the sweatshirt was pulled up onto the male’s head and the strings
were pulled tightly around his face, exposing only his eyes, nose, and mouth.
Officer Donitzen testified that he found the male’s appearance to be unusual
for the weather because it was a relatively warm night. He also found the
manner in which the hood was tied to be suspicious because a majority of the
robbery reports they received from that area involved individuals who had
pulled their sweatshirt hoods down over their faces in a similar fashion.
{¶ 5} Officer Donitzen testified that he and Sergeant Hicks activated
their police lights and drove their unmarked police pickup truck toward
Logan with the purpose of stopping him. Logan pedaled his bicycle down the
driveway toward the officers but started turning away from them when he
reached the street. According to Officer Donitzen, he and Sergeant Hicks
immediately exited the pickup truck and announced “police.” Logan stopped
peddling, rested his feet on the ground, stood up, and turned towards the
officers. At that time, Officer Donitzen could see the back half of a black
semi-automatic handgun sticking out of the side waistband of Logan’s jeans.
Officer Donitzen immediately yelled “gun,” removed it from Logan’s
waistband, and placed him under arrest for carrying a concealed weapon.
When Officer Donitzen removed the gun from Logan’s waistband, Sergeant
Hicks was standing directly in front of Logan. Logan testified that Sergeant
Hicks grabbed his arm before Officer Donitzen yelled “gun.”
{¶ 6} When questioned regarding what prompted the officers to stop
Logan, Officer Donitzen responded that it was their intent to stop Logan
because of what he was wearing and because he was in the shadows. “Just
due to the fact that he was kind of lurking in the shadow[s] and what he was
wearing and how he had presented himself was in correlation with my past
training and experience of people that are going to rob somebody, so we were
just making sure everything was okay, you know.” When pressed, Officer
Donitzen testified that the officers’ specific reason for stopping Logan was
because he was a “suspicious person” due to the time and place. According to
Officer Donitzen, Logan made no furtive movements as they were watching
him and they did not see the gun in his waistband prior to approaching him.
{¶ 7} The trial court denied Logan’s motion, concluding that the stop
was consensual and the gun recovered from Logan’s waistband was in plain
view. Logan subsequently entered a plea of no contest to the charge and was
found guilty by the court. He appeals, asserting in his sole assignment of
error that the denial of his motion was improper because the undercover
police officers lacked reasonable suspicion to justify the stop. In effect,
Logan challenges the factual basis for the stop.
{¶ 8} Appellate review of 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. In deciding a motion to suppress, the
trial court assumes the role of trier of fact. Id. A reviewing court is bound
to accept those findings of fact if they are supported by competent, credible
evidence. Id. But with respect to the trial court’s conclusion of law, we
apply a de novo standard of review and decide whether the facts satisfy the
applicable legal standard. Id., citing State v. McNamara (1977), 124 Ohio
App.3d 706, 707 N.E.2d 539.
{¶ 9} In this case, the trial court concluded that the interaction
between the officers and Logan was consensual. 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. The person “‘may not be detained even momentarily without
reasonable, objective grounds for doing so.’” Id., quoting Royer at 498. 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.
{¶ 10} In this case, the officers were not engaging in a consensual
encounter when they activated their police lights and announced “police” as
they immediately exited their vehicle and approached Logan. Logan
testified that Sergeant Hicks also stated “Stop. Don’t move.” No reasonable
person in Logan’s position would have felt free to leave because the activation
of police lights and the announcement of “police,” and possible police
directives, are significant signs of authority that makes a police-citizen
encounter considerably more intrusive than a simple consensual one. See
State v. Little, Clark App. No. 09-CA-122, 2010-Ohio-2923, ¶9 (activation of
overhead flashing lights by police officers in a marked police vehicle is not a
consensual encounter under the Fourteenth Amendment). Understandably,
the officers could have been activating their lights for their own safety
because they were driving in an unmarked pickup truck and dressed in plain
clothes in the early morning hours. Nevertheless, we do not find that the
stop was consensual.
{¶ 11} Instead, we find that this interaction between the officers and
Logan was an investigatory stop, which constitutes a seizure for purposes of
the Fourth Amendment. A police officer may stop or detain an individual
without probable cause when the officer has reasonable suspicion based on
specific, articulable facts that criminal activity is afoot. Terry v. Ohio (1968),
392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889. Accordingly, an “investigatory
stop does not violate the Fourth Amendment * * * if the police have
reasonable suspicion that ‘the person stopped is, or is about to be, engaged in
criminal activity.’” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817
N.E.2d 864, ¶35, quoting United States v. Cortez (1981), 449 U.S. 411, 417,
101 S.Ct. 690, 66 L.Ed.2d 621.
{¶ 12} Reasonable suspicion entails some minimal level of objective
justification, “that is, something more than an inchoate and unparticularized
suspicion or ‘hunch,’ but less than the level of suspicion required for probable
cause. State v. Jones (1990), 70 Ohio App.3d 554, 556-557, 591 N.E.2d 810,
citing Terry at 27. Accordingly, “a police officer may not rely on good faith
and inarticulate hunches to meet the Terry standard of reasonable suspicion.”
Jones at 557. Reasonable suspicion requires that the officer “point to
specific, articulable facts which, together with rational inferences from those
facts, reasonably warrant the intrusion.” Id., citing Terry at 21.
{¶ 13} “In making a determination of reasonable suspicion, the relevant
inquiry is not whether particular conduct is innocent or guilty, but the degree
of suspicion that attaches to particular types of noncriminal acts.” State v.
Taylor (1995), 106 Ohio App.3d 741, 747-49, 667 N.E.2d 60. An appellate
court views the propriety of a police officer’s investigative stop in light of the
totality of the surrounding circumstances. State v. Bobo (1988), 37 Ohio
St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus, approving and
following State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044,
paragraph one of the syllabus. “Assessing the need for a brief stop, ‘the
circumstances * * * before [the officer] are not to be dissected and viewed
singly; rather they must be considered as a whole.’” Freeman at 295, quoting
United States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859. Officers may “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.’” United States v. Arvizu (2002), 534 U.S.
266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740, quoting Cortez at 418.
{¶ 14} Based upon the examination of the totality of the circumstances,
the officers in this case were justified to engage in a brief investigatory stop of
Logan. The officers’ experience and training, the distinct manner in which
Logan was positioned, the time of day, the location of the area known for drug
activity and robberies, Logan’s dress despite the temperature, and the
manner in which his hood was affixed around his face and tied under his
chin, coupled with reports regarding how robbery suspects in that area tied
their hoods closed, justified a brief investigatory stop. Once the officers
approached Logan, the gun in Logan’s waistband appeared in plain view and
warranted the arrest.
{¶ 15} “A brief stop of a suspicious individual, in order to determine his
identity or to maintain the status quo momentarily while obtaining more
information, may be the most reasonable in light of facts known to the officer
at the time.” Adams v. Williams (1972), 407 U.S. 143, 145-46, 92 S.Ct. 1921,
32 L.Ed.2d 612. “The Fourth Amendment does not require a policeman who
lacks the precise level of information necessary for probable cause to arrest to
simply shrug his shoulders and allow a crime to occur or a criminal to
escape.” Id. at 145.
{¶ 16} Accordingly, we conclude that the officers, believing that criminal
activity was afoot, had reasonable suspicion to justify the stop, and therefore
did not abridge the protections guaranteed by the Fourth Amendment.
Hence, the trial court did not err in denying the motion to suppress. Logan’s
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from 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. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR