State v. Cross

2020 Ohio 1039

• Court: Ohio Court of Appeals
• Decided: March 20, 2020
• Docket: 28392
• Status: Published

Opinion

[Cite as State v. Cross, 2020-Ohio-1039.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28392 : v. : Trial Court Case No. 2018-CRB-3178 : TERRANCE L. CROSS : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 20th day of March, 2020.

ANDREW D. SEXTON, Atty. Reg. No. 0070892, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 390, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

BRYAN K. PENICK, Atty. Reg. No. 0071489, 1900 Kettering Tower, 40 North Main Street, Dayton, Ohio 45423 Attorney for Defendant-Appellant

.............

HALL, J. -2-

{¶ 1} Terrance L. Cross appeals from his conviction following a bench trial on a

charge of criminal trespass, a fourth-degree misdemeanor.

{¶ 2} In his sole assignment of error, Cross challenges the trial court’s denial of his

pretrial suppression motion.

{¶ 3} The record reflects that Dayton police officer Stephen Lloyd and his partner,

Wayne Hammock, were patrolling the DeSoto Bass apartment complex on the evening

of May 29, 2018. While doing so, they observed a group of five to seven people “loitering”

in front of an apartment. (Tr. at 6.) The officers approached the group on foot and asked

what they were doing. (Id. at 7.) According to Lloyd, the officers explained that they were

members of a Greater Dayton Premier Management task force and that they wanted to

speak to group members because they were “in a large group.” 1 (Id. at 7-8.) At the

suppression hearing, Lloyd testified that he and Hammock did not order the group

members to do anything. Rather, the officers requested identification from everyone. (Id.

at 17.) Lloyd testified that Cross orally provided his name and Social Security number.

(Id. at 8.) Prior to obtaining this information, the officers did not draw their weapons, touch

Cross, yell at him, or give any commands. (Id. at 8-9.) After obtaining the information from

Cross, Hammock processed it at the police cruiser and discovered that Cross had been

“trespassed” from the property. As a result, the officers arrested him for criminal trespass.

(Id. at 10.)

{¶ 4} On cross-examination, Lloyd stated that the police dispatch center had

1 The record reflects that the DeSoto Bass apartments are owned by Greater Dayton Premier Management, which contracts with the Dayton Police Department to patrol the complex. (Tr. at 6.) -3-

characterized the incident as a “subject stop.” (Id. at 16.) Lloyd described a “subject stop”

as “stopping of individuals.” (Id. at 15.) He agreed with defense counsel’s characterization

of a “subject stop” as stopping someone and saying something like, “Hey you, I need to

talk to you,” or “Sh[ow] me some identification or tell me who you are[.]” (Id. at 15-16.)

{¶ 5} Defense counsel then called Officer Hammock to testify. Hammock agreed

that he had written a police report referring to the incident as a “subject stop” on all of the

people standing outside the apartment. (Id. at 21.) He opined that a “subject stop” can be

consensual or non-consensual depending on the circumstances. (Id.) Hammock testified

that he and Lloyd did not witness any illegal activity at the time of the incident.

{¶ 6} The next witness at the hearing was Cross. He testified that he had come to

the apartment complex to see his mother and that he was about to leave when he

encountered the officers. (Id. at 25.) According to Cross, he had exited his mother’s

apartment and was heading to his car when Lloyd ordered him to “stop.” (Id. at 25, 28.)

Cross testified that he stopped because the officer told him to do so. Otherwise, he would

have proceeded to his car and left. (Id. at 26.)

{¶ 7} Following Cross’s testimony, the State called Officer Hammock in rebuttal.

Hammock testified that he never told Cross to “stop.” He also stated that he did not hear

Lloyd give such an order. (Id. at 31-32.)

{¶ 8} Based on the evidence presented, the trial court overruled Cross’s

suppression motion. (Decision and Entry, March 13, 2019.) It credited the officers’

testimony and agreed with the State’s position that the interaction between Cross and the

officers was a consensual encounter during which Cross voluntarily identified himself.

(Id.) The case proceeded to a bench trial, and the trial court found Cross guilty of criminal -4-

trespass, a fourth-degree misdemeanor. The trial court imposed a jail sentence, which it

suspended on condition that Cross stay off of Greater Dayton Premier Management

property. In its judgment entry, the trial court also imposed a $50 fine and court costs.2

{¶ 9} On appeal, Cross challenges the trial court’s suppression ruling. He argues

that the officers executed an unlawful “subject stop,” which constituted an unconstitutional

seizure by show of authority and without reasonable articulable suspicion, probable

cause, a warrant, or any other legal justification. Based on the belief that he was

unlawfully seized at the outset, Cross also asserts that there could not have been any

“consensual encounter” during which he voluntarily provided his identifying information.

{¶ 10} When ruling on a motion to suppress, “ ‘the trial court assumes the role of

trier of facts and is in the best position to resolve questions of fact and evaluate the

credibility of witnesses.’ ” State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d

Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th

Dist.1994). We must accept the trial court’s findings of fact if they are supported by

competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No.

20662, 2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994). Accepting those facts as true, we then must determine as a

matter of law, without deference to the trial court’s legal conclusion, whether the

applicable legal standard is satisfied. Id.

{¶ 11} With the foregoing standards in mind, we see no error in the trial court’s

ruling. Cross’s argument is premised on his testimony that Officer Lloyd ordered him to

2 Parenthetically, we note that the record does not reflect Cross’s payment of the fine or court costs, thereby negating any potential issue about his appeal being moot. -5-

“stop” and Officer Hammock’s reference to the incident as a “subject stop.” But the trial

court credited the officers’ version of events, which included Lloyd’s testimony that neither

officer gave Cross any orders prior to Cross identifying himself. And the fact that

Hammock referred to the incident as a “subject stop” in a police report is not dispositive.

The issue is what the officers did during their encounter with Cross, not what Hammock

called the incident afterward.

{¶ 12} “Consensual encounters occur when the police merely approach a person

in a public place and engage the person in conversation, and the person remains free not

to answer and to walk away.” State v. Lewis, 2d Dist. Montgomery No. 22726, 2009-Ohio-

158, ¶ 21, citing United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64

L.Ed.2d 497 (1980). Consensual encounters are not seizures, and Fourth Amendment

guarantees are not implicated. State v. Taylor, 106 Ohio App.3d 741, 747-749, 667

N.E.2d 60 (2d Dist.1995), citing Mendenhall at 554. “A request for identification, in and of

itself, is not unconstitutional, and is ordinarily characterized as a consensual encounter[.]”

State v. Morgan, 2d Dist. Montgomery No. 18985, 2002 WL 63196, *2 (Jan. 18, 2002).

{¶ 13} We are unpersuaded by Cross’s argument that his encounter with the

officers was a non-consensual seizure. The test for a consensual encounter “is an

objective one.” State v. Wehner, 2d Dist. Montgomery No. 27217, 2017-Ohio-2788, ¶ 10,

citing State v. Jirac, 2d Dist. Montgomery No. 27003, 2016-Ohio-8187, ¶ 10. “The focus

is on the officer’s conduct, not the defendant’s subjective state of mind.” Id.; see also

California v. Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1551, 113 L. Ed. 2d 690

(1991) (“Mendenhall establishes that the test for existence of a ‘show of authority’ is an

objective one: not whether the citizen perceived that he was being ordered to restrict his -6-

movement, but whether the officer’s words and actions would have conveyed that to a

reasonable person.”). Factors that might indicate a non-consensual encounter “include

the threatening presence of several police officers, the display of a weapon, some

physical touching of the person, the use of language or tone of voice indicating that

compliance with the officer’s request might be required, approaching the person in a

nonpublic place, and blocking the citizen’s path.” State v. Cosby, 177 Ohio App.3d 670,

2008-Ohio-3862, 895 N.E.2d 868, ¶ 13 (2d Dist.).

{¶ 14} Having reviewed the suppression-hearing transcript, we see nothing either

officer did that would support an objective belief Cross was not free to decline Lloyd’s

request for identifying information.3 The trial court assessed witness credibility and plainly

credited the officers’ version of events, including their denial that they told anyone to “stop”

and their testimony that they did not draw weapons, touch Cross, yell at him, or issue any

commands. Based on the officers’ version of events, they simply approached the group

of people gathered outside the apartment and requested identifying information. In light

of the trial court’s acceptance of this testimony, we see nothing either officer did that

would cause a reasonable person to believe he was not free to refuse the request.

Therefore, the trial court did not err in accepting the State’s argument that the encounter

was consensual and that Cross voluntarily provided the officers with his identifying

3 On appeal, Cross suggests that the officers parked their cruiser behind a red car as he was attempting to get into the car to leave. (Appellant’s brief at 2-4, 8.) This argument appears to imply that the officers blocked Cross and prevented him from leaving. As set forth above, however, the suppression-hearing testimony was that the officers spoke to Cross as part of a group outside of an apartment, not as he was trying to enter a car. In addition, a police cruiser recording that was played during the suppression hearing shows that the officers parked behind and to the side of the red car on a street and that the red car was not blocked in. -7-

information. Cross’s assignment of error is overruled.

{¶ 15} The judgment of the Montgomery County Common Pleas Court is affirmed.

TUCKER, P.J., concurs.

DONOVAN, J., dissents:

{¶ 16} Cross’s mere presence on Greater Dayton Premier Management property

does not suspend the protection of the Fourth Amendment. Nor does the fact that 4-6

other individuals were present. This was a holiday weekend, and it was still daylight at

8:30 p.m., as established by the video footage (post-detention). There was no basis to

suspect Cross of misconduct, hence “the balance between the public interest and his right

to personal security and privacy tilts in favor of freedom from police interference.” Brown

v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357. In addition to the lack of

specific and articulable facts upon which to base the initial approach and stop, Officer

Lloyd indicated he “just wanted to talk.” A reasonable person could assume he was not

free to leave at that point.4

{¶ 17} Cross and the others were not entitled to less Fourth Amendment protection

because of their geographic location alone. “The character of the neighborhood should

not be considered in reviewing the reasonable suspicion determination unless the

behavior of the suspect is not common among persons engaged in law-abiding activity at

the time and place observed. Such an approach limits the risk that the character of the

4Notably, the officers own written police report in the narrative section indicates Cross was “stopped.” Furthermore, Officer Hammock testified that he and Officer Lloyd did not witness any illegal activity at the time of the encounter. -8-

neighborhood makes every resident of a high-crime area ‘stop-eligible’ and meaningfully

enforces the requirement that particularized suspicion justify a police stop.” Margaret

Raymond, Down on the Corner, Out in the Street: Considering the Character of the

Neighborhood in Evaluating Reasonable Suspicion, 60 Ohio St. L.J. 99, p. 99 (1999).

{¶ 18} At the time the three officers interacted with Cross and the others, there was

no evidence of violation of any law, nor was there evidence adduced that a loitering policy

at the property had been violated. The policy was not described and the officers did not

observe the individuals for several minutes nor did they attest they were congregating.

The officers did not observe any overt act by Cross at the time, did not describe any

contact between Cross and the others, and did not indicate their proximity to one another.

“Definitiveness is decidedly avoided so as to allow the net to be cast at large.”

Papachristou v. City of Jacksonville, 405 U.S. 156, 165, 92 S.Ct. 839, 31 L.Ed.2d 110

(1972). “The officers’ actions in this matter were precisely the type of conduct that courts

throughout the state have routinely struck down as unconstitutional fishing expeditions.”

State v. Griffin, 133 Ohio App.3d 490, 495, 728 N.E.2d 1097 (6th Dist.1999).

{¶ 19} I would find the police did not have reasonable suspicion based on

articulable facts to detain and conduct the initial investigation of Cross. “While the danger

to the community and police officers in locations labeled ‘high crime areas’ cannot be

minimized, we must also recognize that ‘an average person who lives or works in a high-

crime neighborhood [must] be sure whether just standing on the street in front of his or

her home or workplace might ‘manifest’ something illegal.” Akron v. Rowland, 67 Ohio

St.3d 374, 383, 618 N.E.2d 138 (1993). In the words of Benjamin Franklin, “Those who

would give up essential liberty to purchase a little temporary safety, deserve neither liberty -9-

nor safety.” I would reverse.

Copies sent to:

Andrew D. Sexton Bryan K. Penick Hon. Daniel G. Gehres