[Cite as State v. Oden, 2014-Ohio-2752.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27151
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE MAURICE D. ODEN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 12 06 1486
DECISION AND JOURNAL ENTRY
Dated: June 25, 2014
MOORE, Judge.
{¶1} Defendant, Maurice Oden, appeals from the judgment of the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} On May 30, 2013, while patrolling the neighborhood with his partner, Officer
Jeffrey Woolley of the Akron Police Department observed Mr. Oden standing in the parking lot
of an apartment building on Second Avenue in Akron, Ohio. When the officers drove by,
Officer Woolley witnessed Mr. Oden reach his hand into and out of the window of a car parked
next to where he stood. Believing a drug transaction may have taken place, the officers pulled
into the parking lot. Upon seeing the police cruiser, Mr. Oden turned away so that his hands
were not visible to the officers. Officer Woolley then left his car and stopped Mr. Oden on foot.
As a result of a subsequent pat-down search of Mr. Oden, the officers discovered a loaded
firearm and a bag of crack cocaine on Mr. Oden’s person. 2
{¶3} Thereafter, the Summit County Grand Jury indicted Mr. Oden on the following
charges: carrying concealed weapons in violation of R.C. 2923.12(A)(2), possession of cocaine
in violation of R.C. 2925.11(A)/(C)(4), and obstructing official business in violation of R.C.
2921.31(A). Mr. Oden pleaded not guilty at his arraignment, and he later filed a motion to
suppress evidence. The trial court denied the motion, and Mr. Oden amended his plea to no
contest. The trial court found Mr. Oden guilty and imposed sentence. Mr. Oden timely filed a
notice of appeal, and he now raises one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY DENYING [MR. ODEN]’S MOTION TO SUPPRESS.
{¶4} In his sole assignment of error, Mr. Oden argues that the trial court erred by
failing to grant his motion to suppress the evidence. We disagree.
Appellate review of a motion to suppress presents a mixed question of law and fact. 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. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
Accord State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, ¶ 6 (Burnside applied). Here, Mr.
Oden does not challenge the trial court’s findings of fact, which we accept as supported by
competent, credible evidence.
{¶5} On the date at issue, Officer Woolley and his partner were patrolling the area
around Second Street, when they witnessed Mr. Oden standing in an apartment building’s 3
parking lot next to a car. The area of the apartment building was a known drug area, as a number
of drug complaints and arrests had been made at that location. While driving past the parking
lot, Officer Woolley saw Mr. Oden reach into the parked car. Because of the area, and because
of Mr. Oden’s action of placing his hand in the parked car, Officer Woolley was concerned that a
drug exchange had taken place. The officers decided to further investigate by driving around the
block and pulling into the parking lot. When Mr. Oden spotted the cruiser, he turned around, so
that his hands were not visible. Officer Woolley, based upon his experience, believed this action
to have been consistent with hiding or removing a weapon or destroying contraband. Officer
Woolley then exited the patrol vehicle, and stopped Mr. Oden by grabbing his hands.
{¶6} In his motion to suppress, Mr. Oden argued that the officer lacked a reasonable
articulable suspicion of criminal behavior to justify stopping him.
{¶7} The Fourth Amendment to the United States Constitution and Article I, Section
14, of the Ohio Constitution prohibit law enforcement officers from conducting unreasonable
and warrantless searches and seizures. When a police officer stops and detains an individual, the
stop is a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S.
648, 653 (1979). Courts are required to exclude evidence obtained by means of searches and
seizures that are found to violate the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 657
(1961).
{¶8} To comply with the provisions of the Fourth Amendment in the context of a
warrantless investigative stop, a law enforcement officer “must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts, reasonably
warrant” the stop. Terry v. Ohio, 392 U.S. 1, 21 (1968). The propriety of an investigative stop
should be reviewed in light of the totality of the circumstances. State v. Freeman, 64 Ohio St.2d 4
291 (1980), paragraph one of the syllabus. The totality of the circumstances are “viewed through
the eyes of a reasonable and cautious police officer on the scene, guided by his experience and
training.” State v. Carano, 9th Dist. Summit No. 26544, 2013-Ohio-1633, ¶ 8, quoting State v.
Bobo, 37 Ohio St.3d 177, 179 (1988), quoting United States v. Hall, 525 F.2d 857, 859
(D.C.Cir.1976). “A totality of the circumstances review includes consideration of ‘(1) [the]
location; (2) the officer’s experience, training or knowledge; (3) the suspect’s conduct or
appearance; and (4) the surrounding circumstances.’” Carano at ¶ 8, quoting State v. Biehl, 9th
Dist. Summit No. 22054, 2004-Ohio-6532, ¶ 14, citing Bobo at 178-179. “The reputation of an
area for criminal activity is an articulable fact upon which a police officer may legitimately rely
in determining whether an investigative stop is warranted.” (Internal quotation omitted.) Bobo
at 179.
{¶9} Mr. Oden maintains that the officers lacked a reasonable suspicion of criminal
activity because the officers did not witness Mr. Oden with any contraband prior to the stop, and
because his presence in a known drug area alone is insufficient to justify a stop. However, the
officers need not witness criminal activity in order to have reasonable suspicion that criminal
activity is afoot. See State v. Caynon, 9th Dist. Summit No. 26559, 2013-Ohio-2789, ¶ 12 (“This
Court has * * * recognized that reasonable suspicion is something less than probable cause.”
(Quotation and citations omitted.)). Further, the stop was not based solely upon Mr. Oden’s
presence in the area. Instead, it was only one factor upon which the officer relied in making the
stop. The officer also testified to observing Mr. Oden reach into a vehicle and then turn away
from the officers so that his hands were not visible to them. Based upon the totality of the
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[Cite as State v. Oden, 2014-Ohio-2752.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27151
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE MAURICE D. ODEN COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 12 06 1486
DECISION AND JOURNAL ENTRY
Dated: June 25, 2014
MOORE, Judge.
{¶1} Defendant, Maurice Oden, appeals from the judgment of the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} On May 30, 2013, while patrolling the neighborhood with his partner, Officer
Jeffrey Woolley of the Akron Police Department observed Mr. Oden standing in the parking lot
of an apartment building on Second Avenue in Akron, Ohio. When the officers drove by,
Officer Woolley witnessed Mr. Oden reach his hand into and out of the window of a car parked
next to where he stood. Believing a drug transaction may have taken place, the officers pulled
into the parking lot. Upon seeing the police cruiser, Mr. Oden turned away so that his hands
were not visible to the officers. Officer Woolley then left his car and stopped Mr. Oden on foot.
As a result of a subsequent pat-down search of Mr. Oden, the officers discovered a loaded
firearm and a bag of crack cocaine on Mr. Oden’s person. 2
{¶3} Thereafter, the Summit County Grand Jury indicted Mr. Oden on the following
charges: carrying concealed weapons in violation of R.C. 2923.12(A)(2), possession of cocaine
in violation of R.C. 2925.11(A)/(C)(4), and obstructing official business in violation of R.C.
2921.31(A). Mr. Oden pleaded not guilty at his arraignment, and he later filed a motion to
suppress evidence. The trial court denied the motion, and Mr. Oden amended his plea to no
contest. The trial court found Mr. Oden guilty and imposed sentence. Mr. Oden timely filed a
notice of appeal, and he now raises one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY DENYING [MR. ODEN]’S MOTION TO SUPPRESS.
{¶4} In his sole assignment of error, Mr. Oden argues that the trial court erred by
failing to grant his motion to suppress the evidence. We disagree.
Appellate review of a motion to suppress presents a mixed question of law and fact. 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. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
Accord State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, ¶ 6 (Burnside applied). Here, Mr.
Oden does not challenge the trial court’s findings of fact, which we accept as supported by
competent, credible evidence.
{¶5} On the date at issue, Officer Woolley and his partner were patrolling the area
around Second Street, when they witnessed Mr. Oden standing in an apartment building’s 3
parking lot next to a car. The area of the apartment building was a known drug area, as a number
of drug complaints and arrests had been made at that location. While driving past the parking
lot, Officer Woolley saw Mr. Oden reach into the parked car. Because of the area, and because
of Mr. Oden’s action of placing his hand in the parked car, Officer Woolley was concerned that a
drug exchange had taken place. The officers decided to further investigate by driving around the
block and pulling into the parking lot. When Mr. Oden spotted the cruiser, he turned around, so
that his hands were not visible. Officer Woolley, based upon his experience, believed this action
to have been consistent with hiding or removing a weapon or destroying contraband. Officer
Woolley then exited the patrol vehicle, and stopped Mr. Oden by grabbing his hands.
{¶6} In his motion to suppress, Mr. Oden argued that the officer lacked a reasonable
articulable suspicion of criminal behavior to justify stopping him.
{¶7} The Fourth Amendment to the United States Constitution and Article I, Section
14, of the Ohio Constitution prohibit law enforcement officers from conducting unreasonable
and warrantless searches and seizures. When a police officer stops and detains an individual, the
stop is a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S.
648, 653 (1979). Courts are required to exclude evidence obtained by means of searches and
seizures that are found to violate the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 657
(1961).
{¶8} To comply with the provisions of the Fourth Amendment in the context of a
warrantless investigative stop, a law enforcement officer “must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts, reasonably
warrant” the stop. Terry v. Ohio, 392 U.S. 1, 21 (1968). The propriety of an investigative stop
should be reviewed in light of the totality of the circumstances. State v. Freeman, 64 Ohio St.2d 4
291 (1980), paragraph one of the syllabus. The totality of the circumstances are “viewed through
the eyes of a reasonable and cautious police officer on the scene, guided by his experience and
training.” State v. Carano, 9th Dist. Summit No. 26544, 2013-Ohio-1633, ¶ 8, quoting State v.
Bobo, 37 Ohio St.3d 177, 179 (1988), quoting United States v. Hall, 525 F.2d 857, 859
(D.C.Cir.1976). “A totality of the circumstances review includes consideration of ‘(1) [the]
location; (2) the officer’s experience, training or knowledge; (3) the suspect’s conduct or
appearance; and (4) the surrounding circumstances.’” Carano at ¶ 8, quoting State v. Biehl, 9th
Dist. Summit No. 22054, 2004-Ohio-6532, ¶ 14, citing Bobo at 178-179. “The reputation of an
area for criminal activity is an articulable fact upon which a police officer may legitimately rely
in determining whether an investigative stop is warranted.” (Internal quotation omitted.) Bobo
at 179.
{¶9} Mr. Oden maintains that the officers lacked a reasonable suspicion of criminal
activity because the officers did not witness Mr. Oden with any contraband prior to the stop, and
because his presence in a known drug area alone is insufficient to justify a stop. However, the
officers need not witness criminal activity in order to have reasonable suspicion that criminal
activity is afoot. See State v. Caynon, 9th Dist. Summit No. 26559, 2013-Ohio-2789, ¶ 12 (“This
Court has * * * recognized that reasonable suspicion is something less than probable cause.”
(Quotation and citations omitted.)). Further, the stop was not based solely upon Mr. Oden’s
presence in the area. Instead, it was only one factor upon which the officer relied in making the
stop. The officer also testified to observing Mr. Oden reach into a vehicle and then turn away
from the officers so that his hands were not visible to them. Based upon the totality of the
circumstances here, including the location, the officer’s experience, and the conduct of Mr. 5
Oden, we conclude that the officer had reasonable suspicion of criminal activity to support the
investigative stop. See Carano at ¶ 8
{¶10} On appeal, Mr. Oden also argues that Officer Woolley lacked a reasonable
suspicion that he was armed and dangerous to support a pat-down search of his person. This
argument was not raised in Mr. Oden’s motion to suppress. Instead, he limited his suppression
argument to the propriety of the initial stop, and defense counsel confirmed just prior to the
commencement of the suppression hearing that the suppression issues pertained to “reasonable
suspicion for the stop.” The officer provided no testimony as to any events that occurred after he
grabbed ahold of Mr. Oden’s hands. Although the officer indicated that he intended to pat down
Mr. Oden when he restrained his hands, it is unclear from the transcript before us when the pat-
down search occurred, and whether any additional factors may have influenced the officer’s
decision to conduct a pat-down after the stop. This record is limited in this regard because of the
limited motion, and because defense counsel objected to testimony as to any events transpiring
after the officer’s initial detention of Mr. Oden as irrelevant to his motion. Accordingly, as the
propriety of the pat-down search was not a basis for suppression provided in Mr. Oden’s motion,
we conclude that Mr. Oden has forfeited this argument for purposes of appeal. See State v.
Lanik, 9th Dist. Summit Nos. 26192, 26224, 2013-Ohio-361, ¶ 12 (declining to review
arguments that were not raised in the trial court pertaining to a motion to suppress), and State v.
Walters, 9th Dist. Medina No. 11CA0039-M, 2012-Ohio-2429, ¶ 6. Therefore, Mr. Oden’s sole
assignment of error is overruled.
III.
{¶11} Accordingly, Mr. Oden’s sole assignment of error is overruled, and the judgment
of the Summit County Court of Common Pleas is affirmed. 6
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE FOR THE COURT
WHITMORE, J. CONCURS.
BELFANCE, P. J. CONCURRING.
{¶12} I concur in the majority opinion. I write separately to emphasize that the record in
this case contains more than the mere observation of innocuous behavior. For example, Officer
Woolley observed Mr. Oden in a known-drug location. In fact, Officer Woolley testified that he
was aware of a number drug complaints from the specific apartment complex where he saw Mr. 7
Oden. Officer Woolley saw Mr. Oden reach into a parked vehicle and then, when Mr. Oden
observed the officers, he turned his body, obscuring his hands, and made what Officer Woolley
described as furtive movements. The facts in this case go beyond observing a person in a high
crime area or observing a person reaching into a parked vehicle. Thus, under the totality of the
circumstances present in this case, I agree that Officer Woolley possessed reasonable, articulable
suspicion of criminal activity such that an investigatory stop was reasonable.
APPEARANCES:
NICHOLAS J. HORRIGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.