State v. Shoulders , 196 Ohio App. 3d 178 ( 2011 )

[Cite as State v. Shoulders, 196 Ohio App.3d 178, 2011-Ohio-2659.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95224
THE STATE OF OHIO,
APPELLEE,
v.
SHOULDERS,
APPELLANT.
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-530756
BEFORE: Keough, J., Boyle, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: June 2, 2011
ATTORNEYS:
William D. Mason, Cuyahoga County Prosecuting Attorney, and W. Mona Scott,
Assistant Prosecuting Attorney, for appellee.
John L. Spellacy and Albert A. Giuliani, for appellant.
KATHLEEN ANN KEOUGH, Judge.
{¶ 1} Defendant-appellant, Christopher Shoulders, appeals from his conviction for drug
trafficking. He contends that (1) the trial court erred in denying his motion to suppress, (2) his
conviction was against the manifest weight of the evidence, and (3) the prosecutor’s misconduct
during trial deprived him of a fair trial. Finding merit to the appeal, we reverse and remand.
I
{¶ 2} Shoulders was charged in a multicount indictment with one count each of drug
trafficking, receiving stolen property (a gun), and possession of criminal tools (cell phones, cash,
and a gun), with forfeiture and firearm specifications. He pleaded not guilty and the matter was
set for trial. Prior to trial, Shoulders filed a motion to suppress. The trial court subsequently
held an evidentiary hearing at which the state presented the testimony of Cleveland police
detective Ralph Valentino and Sergeant Ali Pillow.
{¶ 3} Detective Valentino testified that on October 29, 2009, he and other officers from
the gang-impact squad were dressed in street clothes and riding in several unmarked police cars
in the area of East 84th Street and Superior Avenue. They were looking for a suspect in a
shooting that had occurred several hours earlier.
{¶ 4} As they drove past a car wash on Superior Avenue, the officers saw a vehicle
related to an ongoing investigation at the car wash. The owner of the car, Lavelle Moore, was
standing outside the vehicle. Officers from the gang unit squad had been investigating Moore
for several weeks for gang activity relating to an alleged threat made to a Cleveland Browns
football player; they were aware that he carried guns and was dangerous. According to Sergeant
Pillow, the officers wanted to question Moore about the threat.
{¶ 5} Detective Valentino testified that upon seeing Moore at the car wash, he alerted
the other units and then the police “entered the parking lot, exited our vehicles with our weapons
drawn and ordered everybody to stay put, at that time stand still and show us their hands.”
Sergeant Pillow testified that his attention was focused on Moore, who was standing at the rear
of the car, when Shoulders, an employee of the car wash who had been stooped down drying
Moore’s car, “popped up all of a sudden saying, ‘I didn’t do anything, I didn’t do anything,’ and
then turned and began to run away.”
{¶ 6} Detective Valentino likewise testified that Shoulders yelled loudly that he had not
done anything wrong and then tried to run away. Detective Valentino caught Shoulders,
handcuffed him, and then patted him down for officer safety. Upon patting him down, Detective
Valentino found 22 small plastic baggies of marijuana inside a larger plastic bag, 1 two cell
phones, and $227 cash in Shoulders’s pockets. He also discovered a loaded pistol in a holster
inside Shoulders’s pants. The gun was subsequently determined to have been stolen.
{¶ 7} Sergeant Pillow testified that upon learning that Shoulders had a gun, he ordered
the other men who had been standing by the car to their knees, handcuffed them, and searched
them. The other men, including Moore, were released after the officers checked their
identification for any outstanding warrants. Shoulders, however, was arrested and charged with
drug trafficking, possession of criminal tools, and receiving stolen property.
1
It was subsequently determined that the marijuana weighed 11.68 grams.
{¶ 8} Shoulders testified at the suppression hearing that he managed the car wash and
was drying the windows of Moore’s car when the police pulled up. Shoulders denied that he
tried to run away and said that he just kept moving around the car, drying its windows, after the
officers got out of their cars with their guns drawn. He said that one of the officers then grabbed
him, threw him on top of the car, and patted him down, whereupon the officer found the
marijuana, cash, and gun.
{¶ 9} Kenneth Holyfield, a patron at the car wash who witnessed the incident, also
testified that Shoulders kept drying the car and did not run when the officers pulled up.
According to Holyfield, the police then approached Shoulders and forcefully pushed him on the
car. Elbert Harris, an employee of the car wash, likewise testified that Shoulders did not run
from the police.
{¶ 10} The trial court denied Shoulders’s motion to suppress, finding that his attempt to
run from the police justified an investigatory stop and pat-down. At trial, the trial court granted
Shoulders’s renewed motion for acquittal in part and dismissed Counts 2 and 3, receiving stolen
property and possession of criminal tools. The jury subsequently found Shoulders guilty of drug
trafficking with a firearm specification and forfeiture specifications2 and the trial court sentenced
him to 18 months’ incarceration.
II
2
In granting Shoulders’s Crim.R. 29 motion in part, the trial court dismissed Count 3, possession of criminal
tools (i.e., the gun, money, and cell phones) for lack of evidence that the items were involved in drug trafficking or
drug activity. The same items (the gun, money, and cell phones) were listed in the forfeiture specifications
relating to the drug-trafficking charge in Count 1 and, therefore, the trial court should have also dismissed the
forfeiture specifications regarding Count 1. Shoulders does not raise any argument about this inconsistency,
however, and therefore we do not address it.
{¶ 11} In his first assignment of error, Shoulders contends that the trial court erred in
denying his motion to suppress.
{¶ 12} 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
(1997), 124 Ohio App.3d 706, 707 N.E.2d 539.
{¶ 13} 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 (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. One exception is an
investigative stop. Terry v. Ohio (1968), 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889. A
police officer may make a brief, warrantless, investigatory stop of an individual where the officer
reasonably suspects that the individual is or has been involved in criminal activity. Id. at 21.
In reaching that conclusion, the officer must be able to point to specific and articulable facts that,
taken together with rational inferences from those facts, reasonably warrant the intrusion. State
v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271, citing Terry. Whether an
investigatory stop is reasonable depends upon the totality of the circumstances surrounding the
incident. State v. Williams (1990), 51 Ohio St.3d 58, 60, 554 N.E.2d 108. A court evaluating
the validity of a Terry stop must consider the totality of the circumstances as “viewed through the
eyes of the reasonable and prudent police officer on the scene who must react to events as they
unfold.” Andrews at 87-88.
{¶ 14} In this case, the police did not have a reasonable, articulable suspicion that
Shoulders was engaged in criminal activity sufficient to justify an investigatory stop.
Significantly, both Detective Valentino and Sergeant Pillow admitted that they did not observe
any criminal activity or even any suspicious activity at the car wash, either by Shoulders or any of
the other individuals, before they pulled in. Nevertheless, despite the lack of any reasonable
suspicion or probable cause, they got out of their vehicles with their guns drawn3 and ordered
everyone in the vicinity to “freeze” so they could conduct what Detective Valentino described as
“an interview stop.” Without an articulated, reasonable suspicion of criminal activity, the
investigatory stop was unlawful under Terry.
{¶ 15} The state argues that the officers properly stopped Shoulders because they had
been investigating Moore regarding his alleged threat and knew that Moore often carried
weapons. But the United States Supreme Court had made clear that “a person’s mere
propinquity to others independently suspected of criminal activity does not, without more, give
rise to probable cause to search that person.” Ybarra v. Illinois (1979), 444 U.S. 85, 91, 100
S.Ct. 338, 62 L.Ed.2d 238. “[T]he belief of guilt must be particularized with respect to the
person to be searched or seized.” Maryland v. Pringle (2003), 540 U.S. 366, 371, 124 S.Ct.
795, 157 L.Ed.2d 769, citing Ybarra. Here, the police admitted there was no indication
whatsoever that Shoulders was engaged in any criminal activity before they stopped him.
Accordingly, the stop was unlawful.
{¶ 16} This court reached the same result in State v. Brown (1992), 83 Ohio App.3d 673,
615 N.E.2d 682. In that case, the defendant was walking down the street with an acquaintance
3
Detective Valentino testified that both he and Sergeant Pillow got out of their car with their guns drawn;
sergeant Pillow testified that his gun was not drawn when he first got out of the car. Nevertheless, it is apparent
that at least one gun was pointed at Shoulders and the other individuals at the car wash.
who was drinking beer from an open container. The police stopped both men, arrested the
defendant’s acquaintance, and then, after patting down the defendant and discovering plastic
baggies of marijuana, arrested him. This court held that the trial court had erred in denying the
defendant’s motion to suppress because there was no indication when he was stopped by the
police that he was involved in criminal activity. This court held that the defendant’s mere
proximity to his acquaintance, who was involved in criminal activity, was insufficient, without
more, to give rise to a reasonable suspicion sufficient to justify an investigatory stop.
{¶ 17} The state argues, however, that even if the initial stop were unlawful, Shoulders’s
subsequent attempt to flee from the police gave rise to a reasonable suspicion of criminal activity
sufficient to justify his seizure. It relies on Illinois v. Wardlow (2000), 528 U.S. 119, 120 S.Ct.
673, in which United States Supreme Court stated: “Our cases have also recognized that
nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong
flight — wherever it occurs — is the consummate act of evasion: [i]t is not necessarily indicative
of wrongdoing, but it is certainly suggestive of such.” (Citations omitted.) Id. at 676.
{¶ 18} But this case is distinguishable from Wardlow. In Wardlow, the Supreme Court
found that the defendant’s “unprovoked flight” upon observing a four-car uniformed police
convoy, combined with his presence in an area known for heavy drug trafficking, was sufficient
to give rise to a reasonable suspicion to justify an investigative stop. Id. Here, however, the
police relied only on Shoulders’s flight to justify the stop; there were no other factors suggesting
that he was engaged in criminal activity. There was no testimony that the car wash was in a
high-crime area and no testimony that the car wash was known to the police as a place of
criminal activity.
{¶ 19} Further, it is not apparent that Shoulders’s flight was “unprovoked.” Detective
Valentino and Sergeant Pillow got out of their unmarked cars wearing plain clothes and ordered
everyone to “freeze.” There was no evidence that they identified themselves as police or that
Shoulders was even aware they were the police. It is not unreasonable to conclude on these facts
that Shoulders’s flight was provoked by the gun that was pointed at him.
{¶ 20} In Wardlow, the United States Supreme Court specifically recognized that it was
not adopting a per se rule that unprovoked flight always authorizes the temporary detention of
anyone who flees at the mere sight of a police officer. Id. at 677. Further, it noted that it
continued to adhere to the view that reasonable suspicion must be determined by “ ‘ “the totality
of the circumstances — the whole picture.” ’ ” Id., quoting United States v. Sokolow (1989),
490 U.S. 1, 7-8, 109 S.Ct. 1581, 104 L.Ed.2d 1, quoting United States v. Cortez (1981), 449 U.S.
411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621. Here, in the absence of any evidence of criminal
activity other than Shoulders’s flight, we find that under the totality of the circumstances, the
police did not have reasonable suspicion sufficient to justify an investigatory stop. See State v.
Smith, Cuyahoga App. No. 87735, 2007-Ohio-281, ¶ 18 (defendant’s flight, by itself, not enough
to create reasonable suspicion sufficient to justify investigatory stop).
{¶ 21} Accordingly, we hold that the trial court erred in denying Shoulders’s motion to
suppress and remand for further proceedings consistent with this opinion. Appellant’s first
assignment of error is sustained. In light of our resolution of the first assignment of error,
assignments of error two and three are moot and we need not address them. App.R. 12(A)(1)(c).
Judgment reversed
and cause remanded.
BOYLE, P.J., and SWEENEY, J., concur.