State v. Stewart

[Cite as State v. Stewart, 2022-Ohio-199.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
Nos. 109867 and 109868
v. :
JAMES STEWART, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: January 27, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-645843-A and CR-19-645843-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellant.
Regis E. McGann, for appellee James Stewart.
Cullen Sweeney, Cuyahoga County Public Defender, and
Paul A. Kuzmins, Assistant Public Defender, for appellee
Leeandrew Ealom.
ON RECONSIDERATION1
EILEEN T. GALLAGHER, J.:
Plaintiff-appellant, the state of Ohio, appeals an order granting two
motions to suppress filed by defendants-appellees, James Stewart (“Stewart”) and
Leeandrew Ealom (“Ealom”) (collectively “appellees”). The state claims the
following error:
The trial court erred in granting James Stewart and Leeandrew Ealom’s motion to
suppress.
We find merit to the appeal, reverse the trial court’s judgment, and
remand the case to the trial court for further proceedings.
I. Facts and Procedural History
Ealom and Stewart were charged in a nine-count indictment with three
counts of drug trafficking in violation of R.C. 2925.03(A)(2) as alleged in Counts 1,
3, and 5; four counts of drug possession in violation of R.C. 2925.11(A) as alleged in
Counts 2, 4, 6, and 7; and one count of possessing criminal tools in violation of R.C.
2923.14(A) as alleged in Count 8. Counts 1 through 8 included forfeiture of a scale,
a cell phone, a gun, and money. Counts 3 and 5 included firearm specifications
pursuant to R.C. 2941.141(A). In Count 9, Ealom, alone, was charged with improper
handling of a firearm in a motor vehicle in violation of R.C. 2923.16(E)(1).
1 The original decision in this appeal, State v. Stewart, 8th Dist. Cuyahoga Nos.
109867 and 109868, 2021-Ohio-2928, released on August 26, 2021, is hereby vacated.
This opinion, issued upon reconsideration, is the court’s journalized decision in this
appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.
Stewart and Ealom each filed a motion to suppress, arguing that
Cleveland police did not have probable cause to initiate the traffic stop that led to
the discovery of contraband. They further argued that officers detained them
without reasonable suspicion and that the subsequent search of their vehicle was
unlawful.
The state opposed the motions to suppress, arguing the initial traffic
stop was lawful because Stewart, who was driving the vehicle, was driving erratically,
changed lanes multiple times without signaling, and later turned out of a gas station
parking lot without signaling. The state argued that changing lanes and turning
without a signal are violations of Cleveland Codified Ordinances (“C.C.O.”) 431.14.
Finally, the state argued that during the lawful stop, officers observed a firearm in
plain view, which justified a search for weapons that led to the discovery of
contraband in the vehicle.
Detective Joseph Hess (“Det. Hess”) testified at the suppression
hearing that he and Detective Christopher Allen (“Det. Allen”) were patrolling an
area near East 140th Street and Kinsman on November 8, 2019, at approximately
4:12 p.m., in a police vehicle equipped with lights and sirens. Sergeant Jarrod
Durichko (“Sgt. Durichko”) was also patrolling the area in an undercover vehicle.
Sgt. Durichko notified Detectives Hess and Allen that he observed a white Jeep
Compass driving erratically and changing lanes multiple times without signaling.
(Tr. 19.) The Jeep traveled eastbound on Union Avenue and turned into a gas station
located at East 140th Street and Kinsman Road.
As Detectives Hess and Allen approached the location, Sgt. Durichko
notified them that the same vehicle exited the gas station and turned onto the
roadway again without signaling. (Tr. 20.) By that time, Detectives Hess and Allen
had reached the location, pulled behind the Jeep, and initiated a traffic stop. (Tr.
20.) Sgt. Durichko did not conduct the traffic stop because he was in an undercover
vehicle.2 (Tr. 20.)
Det. Allen approached the driver’s door and spoke to Stewart while Det.
Hess approached the passenger side door and spoke with Ealom. (Tr. 21.) Det. Hess
spoke with Ealom for approximately four minutes and then asked him to exit the
vehicle for safety purposes and to facilitate communication. (Tr. 21.) As Ealom was
exiting the vehicle, Det. Hess asked Ealom if he had any weapons on his person. (Tr.
22, 57.) Ealom replied: “Yes. I have a concealed carry.” (Tr. 22, 71.) Det. Hess then
observed a gun in the front-passenger door panel. (Tr. 22-23, 58.) Thereafter, Det.
2 Traffic stops should generally be conducted by a uniformed officer in a marked
car. Parma Hts. v. Nugent, 92 Ohio Misc.2d 67, 75, 700 N.E.2d 430 (M.C.1998). When
undercover officers observe traffic violations and call in uniformed officers, who saw
nothing of the original traffic violation, to initiate the traffic stops, police often uncover
crimes, but at a price that negatively affects the relationship between police officers and
citizens. The United States Justice Department and the city of Cleveland entered into a
consent decree in 2015, to rebuild community trust with the city’s police department. As
part of that effort, the police department implemented substantial police training
initiatives.
Det. Hess started his employment with the Cleveland Police Department
approximately six years before the incident giving rise to this case. Thus, most, if not all,
of his training would have been after the consent decree. He testified that he has initiated
“hundreds” of traffic stops for traffic violations. Det. Hess also testified that he has had
specialized training investigating narcotics, and “on-the-job” training that aids him in the
performance of his job.
Hess placed Ealom in handcuffs for officer safety because Ealom failed to notify the
officers that he had a concealed weapon. (Tr. 23-24.)
Det. Hess rendered the weapon safe and searched the passenger
compartment of the vehicle “for other weapons.” (Tr. 25.) During the search, Det.
Hess found multiple cell phones and a large roll of blank lottery tickets. (Tr. 25.)
Det. Hess, who is a member of the Fourth District Vice Unit, testified based on his
training and experience that these items were common “indicators of drug
trafficking.” (Tr. 25.) He explained that a blank roll of lottery tickets “is one of the
No. 1 packaging materials for narcotics. It’s up there with plastic baggies.” (Tr. 26.)
Det. Hess also found a digital scale with drug residue inside a pouch fastened to the
back of the front passenger seat. (Tr. 27-28.)
After finding the scale, the officers determined they had probable
cause to search the rest of the vehicle. (Tr. 27.) In the back seat, the detectives found
a hairbrush with a hidden compartment containing a bag of heroin and a bag of
cocaine. (Tr. 28-29.) Detectives Hess and Allen then placed Stewart and Ealom
under arrest and cited Stewart with a change of course violation pursuant to
C.C.O. 431.14.
In granting the motions to suppress, the court concluded that the city’s
change of course ordinance only applies to public streets and, therefore, does not
apply to parking lots where Stewart turned onto Union Avenue. The trial court’s
written decision did not address the other alleged traffic violations, namely changing
lanes without signaling and erratic driving. The court determined that because
Stewart did not violate any traffic ordinance by turning from a private parking lot
onto a city street, the police had no reasonable justification for initiating the traffic
stop of Stewart’s vehicle and, therefore, the traffic stop violated the Fourth
Amendment. The state now appeals the trial court’s judgment pursuant to Crim.R.
12(K).
II. Law and Analysis
A. Standard of Review
This court reviews a decision on a suppression motion under a mixed
standard of review. “In a motion to suppress, the trial court assumes the role of trier
of fact and is in the best position to resolve questions of fact and evaluate witness
credibility.” State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).
Therefore, a reviewing court must accept the trial court’s findings of fact in ruling
on a motion to suppress if the findings are supported by competent, credible
evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. Accepting the facts as true, the reviewing court must independently determine,
without deference to the tri al court, whether the trial court properly applied the
substantive law to the facts of the case. Id. An appellate court reviews the trial
court’s application of the law to its factual findings under a de novo standard. State
v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 100.
B. The Traffic Stop
The Fourth Amendment of the U.S. Constitution, which is enforceable
against the states through the Due Process Clause of the Fourteenth Amendment,
provides: “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause.” Mapp v. Ohio, 367 U.S. 643, 655,
81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Article I, Section 14 of the Ohio Constitution
has language almost identical to the Fourth Amendment and affords the same
protections against unreasonable searches and seizures. State v. Robinette, 80 Ohio
St.3d 234, 245, 685 N.E.2d 762 (1997).
There are, however, exceptions to the Fourth Amendment’s warrant
requirement. Although stopping an automobile and detaining its occupants
constitutes a “seizure” under the Fourth Amendment, “a traffic stop is
constitutionally valid if an officer has a reasonable and articulable suspicion that a
motorist has committed, is committing, or is about to commit a crime.” State v.
Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7, citing Delaware
v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). See also Dayton
v. Erickson, 76 Ohio St.3d 3, 11, 665 N.E.2d 1091 (1996)(“[W]here an officer has an
articulable reasonable suspicion or probable cause to stop a motorist for any
criminal violation, including a minor traffic violation, the stop is constitutionally
valid * * *.”).
It is well established that “‘[a] police officer may [initiate] a traffic stop
of any motorist for any traffic infraction, even if the officer’s true motive is to detect
more extensive criminal conduct.’” State v. Hrtsyak, 8th Dist. Cuyahoga No.
108506, 2020-Ohio-920, ¶ 21, quoting State v. Bennett, 8th Dist. Cuyahoga No.
86962, 2006-Ohio-4274 (emphasis sic). “‘[C]ourts determine whether any violation
occurred, not the extent of the violation.’” Cleveland v. Martin, 2018-Ohio-740, 107
N.E.3d 809 (8th Dist.), quoting State v. Hodge, 147 Ohio App.3d 550, 2002-Ohio-
3053, 771 N.E.2d 331, ¶ 27 (7th Dist.).
Detectives Hess and Allen stopped Stewart’s car because Sgt.
Durichko advised them that Stewart was “driving erratically and switched lanes
multiple times without signaling” and because they turned out of a gas station onto
the roadway without signaling. (Tr. 19.) C.C.O. 431.14, governs “Signals Before
Changing Course, Turning, or Stopping,” and provides, in relevant part:
No person shall turn a vehicle * * * or move right or left upon a highway
unless and until such person has exercised due care to ascertain that
the movement can be made with reasonable safety, nor without giving
an appropriate signal in the manner hereinafter provided.
C.C.O. 431.14(a)(1). Thus, C.C.O. 431.14(a)(1) requires one to use a turn signal when
moving from right or left upon a highway. C.C.O. 401.61 defines the term “highway”
as synonymous with the word “street” and includes “the entire width between the
boundary lines of every way open to the use of the public as a thoroughfare for
purposes of vehicular travel.”
The trial court concluded that the stop of Stewart’s Jeep violated the
Fourth Amendment because Stewart was not required to use a turn signal when
turning out of the gas station parking lot onto a public street. The trial court
concluded that no traffic violation occurred. However, even if a police officer is
mistaken in his belief that a traffic violation occurred, the police officer’s mistaken
belief, if objectively reasonable, may constitute reasonable suspicion to justify a
traffic stop. State v. Spellacy, 8th Dist. Cuyahoga No. 106909, 2019-Ohio-785, ¶ 24-
32 . See also State v. Leder, 12th Dist. Clermont No. CA2018-10-072, 2019-Ohio-
2866, ¶ 19, quoting State v. Kirkpatrick, 2017-Ohio-7629, 97 N.E.3d 871, ¶ 6 (1st
Dist.) (“‘[a] police officer’s objectively reasonable belief that a traffic violation has
occurred, including reasonable mistakes of law, can constitute reasonable suspicion
to justify a traffic stop.’”); State v. Petty, 4th Dist. Washington Nos. 18CA26 and
18CA27, 2019-Ohio-4241, ¶ 27 (Officer’s erroneous, but reasonable, belief that a
traffic violation occurred provided reasonable suspicion to justify a traffic stop.).
Cleveland police issued Stewart a traffic ticket for turning out of the
gas station without signaling. (Tr. 50-52.) The police, therefore, believed that
turning out of the gas station without signaling constituted a violation of C.C.O.
431.14. This court recently held that pulling out of a gas station without using a turn
signal is a violation of C.C.O. 431.14 and that such a traffic violation is a valid basis
to effectuate a traffic stop. State v. Marneros, 8th Dist. Cuyahoga No. 109258, 2021-
Ohio-2844, ¶ 25. Therefore, despite the trial court’s conclusion to the contrary, the
officers had a reasonable belief that Stewart committed a traffic violation, and they
had reasonable suspicion to stop Stewart’s vehicle.3
Although Detectives Hess and Allen did not witness the traffic
violation, police may initiate investigatory stops based on the observations of other
officers or citizens. Lyndhurst v. Brickel, 8th Dist. Cuyahoga No. 72322, 1998 Ohio
App. LEXIS 2334 (May 28, 1998); Beachwood v. Sims, 98 Ohio App.3d 9, 14, 647
N.E.2d 821 (8th Dist.1994). Therefore, the traffic stop of Stewart’s Jeep was
constitutionally valid because Sgt. Durichko observed Stewart turn out of a gas
station without signaling, and he had reasonable belief that the turn without
signaling constituted a traffic violation. There was also testimony, not addressed by
the trial court, that Stewart illegally changed lanes without signaling.
Because the trial court found the traffic stop was unlawful, it did not
analyze the legality of the interaction between the detectives and appellees following
the initial stop. “[A]n appellate court limits its review to issues actually decided by
the trial court in its judgment.” Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-
422, 51 N.E.3d 593, ¶ 21. Although an appellate court may make factual conclusions
if the record provides a sufficient basis for review, we may not make legal
3 Although the state did not cite Marneros in its brief, the state argued, among
other things, that “[e]ven if detectives were mistaken that Stewart violated Cleveland
Codified Ordinance § 431.14 or the evidence would be insufficient to prove the elements
of the offense beyond a reasonable doubt, detectives had an objectively reasonable belief
that a traffic violation occurred, thus constituting reasonable suspicion to justify the
traffic stop.” (State’s merit brief p. 9.) Thus, the state not only argued in the trial court
that turning out of the gas station without signaling was a valid basis for the traffic stop,
it disputed the trial court’s interpretation of C.C.O. 431.14 in its merit brief.
conclusions, such as whether the police had probable cause to search Stewart’s
vehicle, for the first time on appeal. Id.; Philbin v. Cleveland, 8th Dist. Cuyahoga
No. 105767, 2018-Ohio-100, ¶ 26 (remanding case to trial court to consider the
merits of an issue raised for the first time on appeal.)
We, therefore, sustain the sole assignment of error and reverse the
trial court’s judgment. We remand the case to the trial court to consider whether
Ealom promptly informed police that he had a concealed weapon and, thus, whether
police had probable cause to search Stewart’s vehicle following a lawful traffic stop.
It is ordered that appellant recover from appellees 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 Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
SEAN C. GALLAGHER, A.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR