State v. Robinson

2013 Ohio 1345

• Court: Ohio Court of Appeals
• Decided: April 4, 2013
• Docket: 98564
• Status: Published

Opinion

[Cite as State v. Robinson, 2013-Ohio-1345.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98564

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

STEVEN D. ROBINSON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-556418

BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: April 4, 2013 ATTORNEY FOR APPELLANT

Terry H. Gilbert Friedman & Gilbert 1370 Ontario Street Suite 600 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Stephanie Heibertshausen Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Defendant-appellant, Steven Robinson, appeals the judgment of the common

pleas court overruling his motion to suppress evidence. After careful review of the

record and relevant case law, we affirm the judgment of the trial court.

{¶2} On November 8, 2011, members of the Cleveland Police Department arrested

appellant and codefendant, Ardarrius Williams, for multiple drug offenses. On

December 2, 2011, appellant and Williams were indicted for drug trafficking in violation

of R.C. 2925.03(A)(2), a felony of the third degree; drug possession in violation of R.C.

2925.11(A), a felony of the third degree; and possession of criminal tools in violation of

R.C. 2923.24(A), a felony of the fifth degree.

{¶3} On February 24, 2012, appellant sought the suppression of evidence seized by

the Cleveland Police Department in connection with a traffic stop of his vehicle on

November 8, 2011. On April 23, 2012, the trial court held a suppression hearing and

heard testimony from two witnesses, Officers Duane Taylor and Kevin Fairchild of the

Cleveland Police Department. On April 24, 2012, the trial court denied appellant’s

motion, ruling that the stop was constitutional. Subsequently, appellant entered a plea of

no contest to all counts. On May 21, 2012, appellant was sentenced to one year on each

count, to run concurrently.

{¶4} Appellant now brings this timely appeal, raising one assignment of error for

review: I. The trial court erred by denying appellant’s suppression motion for lack of reasonable articulable suspicion.

Law and Analysis

{¶5} In his sole assignment of error, appellant argues that the trial court erred in

denying his motion to suppress.

{¶6} Appellate review of the denial 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. 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. State v. Carter, 72 Ohio St.3d 545, 552,

1995-Ohio-104, 651 N.E.2d 965; State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972

(1992).

{¶7} Consequently, when reviewing a ruling on a motion to suppress, deference is

given to the trial court’s findings of fact so long as they are supported by competent,

credible evidence. Burnside at ¶ 8. However, an appellate court reviews de novo

whether the trial court’s conclusions of law, based on those findings of fact, are correct.

State v. Anderson, 100 Ohio App.3d 688, 691, 654 N.E.2d 1034 (4th Dist.1995).

{¶8} At the suppression hearing, the following facts were presented to the trial

court. On November 8, 2011, at approximately10:30 p.m., the Cleveland Police

Department received a report of a robbery and shooting at the intersection of West 38th

Street and Denison Avenue in Cleveland, Ohio. Initial reports described the shooter as being a Hispanic male wearing all black, medium build, approximately six feet tall, and in

his mid twenties.

{¶9} While on foot patrol, Officer Maffo-Judd observed an individual matching

the shooter’s description running southbound on West 43rd Street. Officer Maffo-Judd

further described the possible shooter as being a “dark” complexioned Hispanic male with

facial hair; approximately 6’ to 6’1” tall; with a “thinner build”; wearing a black jacket,

dark jeans, and black stocking cap.

{¶10} Approximately 30 minutes after the initial dispatch, Cleveland police

communications received a call from an identified citizen, who indicated that he was

aware that officers were investigating the recent shooting in the area. The caller

indicated that his neighbor had overheard a male talking on a cell phone, saying “[h]urry

up and pick me up because the cops are looking for me.” The caller informed the police

that his neighbor described the individual as a black male walking down West 34th Street

near Highview Avenue wearing blue jeans, a red sweatshirt, and a black hat. The

description was then broadcast to officers in the local area.

{¶11} Patrol Officer Duane Taylor testified at the suppression hearing that he

assisted in locating the shooting suspect. Officer Taylor testified that, based on the

information he received from dispatch, he parked his patrol vehicle near West 34th and

Louisiana Avenue and began looking for suspicious activity. While in his patrol vehicle,

Officer Taylor observed a white Chevy Impala parked on the apron of a nearby driveway.

Officer Taylor testified that the way the Impala was parked raised his suspicions due to the hour of the night. Minutes later, Officer Taylor observed a Hispanic or light-skinned

black male with facial hair, approximately six feet tall, medium build, wearing a red shirt

and jeans, come through a yard and enter the front passenger seat of the Impala.

{¶12} Officer Taylor testified that he followed the Impala northbound on West

33rd Street. When the Impala reached the intersection of West 33rd and Archwood,

Officer Taylor activated his spotlight on the window of the passenger side of the Impala.

Officer Taylor confirmed that the passenger appeared to match the description of the

person of interest in the shooting. At that point, Officer Taylor requested backup and

initiated an investigative stop of the Impala. When Officer Taylor approached the

vehicle, he immediately observed appellant holding a large brick-like object that appeared

to be marijuana.

{¶13} Although the Cleveland police later made a determination that appellant and

codefendant Williams were not involved in the shooting, they were arrested based on the

officer’s recovery of approximately four pounds of marijuana from their vehicle.

{¶14} We find that the trial court’s findings of fact were supported by competent

and credible evidence. Accordingly, we turn to the constitutionality of the search and

seizure.

{¶15} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). Searches conducted outside the judicial process, by

officers lacking a prior judicial warrant, are per se unreasonable and subject to a few specifically established exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967). One of those exceptions is the rule regarding investigative stops

announced in Terry. Under Terry, police officers may briefly stop and/or temporarily

detain individuals in order to investigate possible criminal activity if the officers have a

reasonable, articulable suspicion that criminal activity may be afoot. State v. Martin, 2d

Dist. No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry, supra.

{¶16} We are mindful of the U.S. Supreme Court’s recognition that “[i]n order to

satisfy the reasonableness requirement of the Fourth Amendment, what is generally

demanded of the many factual determinations that must regularly be made by agents of

the government * * * is not that they always be correct, but that they always be

reasonable.” Illinois v. Rodriguez, 497 U.S. 177, 185-186, 110 S.Ct. 2793, 111 L.Ed.2d

148 (1990). Further, “sufficient probability, not certainty, is the touchstone of

reasonableness under the Fourth Amendment.” Hill v. California, 401 U.S. 797, 804, 91

S.Ct. 1106, 28 L.Ed.2d484; see also Brown v. King, 5th Dist. No. 2008-CA-00165,

2009-Ohio-4957. Thus, in evaluating the facts and inferences supporting the stop, a

court must consider the totality of the circumstances as “viewed through the eyes of a

reasonable and cautious police officer on the scene, guided by his experience and

training.” State v. Bobo, 37 Ohio St.3d 177, 179, 524 N.E.2d 489 (1988). This court

has found that “a report of recent gunshots must be taken into consideration under the

totality of the circumstances test.” State v. Johnson, 8th Dist. Nos. 71249 and 71250,

1997 Ohio App. LEXIS 4710 (Oct. 23, 1997). {¶17} In a case like this where the police officers who made the stop received

information from other police officers, the collective knowledge doctrine applies. That

doctrine states that law enforcement officers cooperating in an investigation are entitled

to rely on each other’s knowledge of facts when forming the conclusion that a suspect has

committed or is committing a crime. United States v. Hensley, 469 U.S. 221, 231, 105

S.Ct. 675, 83 L.Ed.2d 604 (1985). This doctrine is grounded in the realization that

“effective law enforcement cannot be conducted unless police officers can act on

directions and information transmitted by one officer to another and that officers, who

must often act swiftly, cannot be expected to cross-examine their fellow officers about the

foundation for the transmitted information.” Id. at 231. The admissibility of the

evidence uncovered during a stop based on information derived from other officers does

not rest on whether the officers relying on a dispatch or flyer “were themselves aware of

the specific facts which led their colleagues to seek their assistance,” but instead on

whether the officers who issued the dispatch possessed reasonable suspicion to make the

stop. Id. at 231.

{¶18} Factors relevant in assessing reasonable suspicion in this case include the

specificity of the description of the suspect, the number of people in the area, where the

person was stopped, and how long ago the crime occurred. See United States v. Goodrich,

450 F.3d 552, 561 (3d Cir.2006). Even though a description is less-than specific, other

factors supporting the stop can exist so long as the facts known yield a limited pool of

suspects. United States v. Broomfield, 417 F.3d 654, 655 (7th Cir.2005). {¶19} Appellant urges this court to find that this case is analogous to State v.

Stewart, 193 Ohio App.3d 716, 2011-Ohio-2910, 953 N.E.2d 886 (8th Dist.). In Stewart,

a shooting occurred at approximately 1:30 a.m. in a residential neighborhood. The

officers who responded were advised that there were two suspects, including a male

described as around 5’10” to 6’ tall, in his late 20s or early 30s, wearing dark clothing;

and a female. Approximately five minutes after the broadcast, officers saw Stewart and

a female walking through a parking lot. The officers stopped Stewart and subsequently

arrested him after discovering a gun in his waistband. In reversing the trial court’s denial

of Stewart’s motion to suppress, this court determined that the description relayed to the

arresting officers was not specific enough to justify the investigative stop. This court

stated,

given the character of the neighborhood and the late hour, the description of the male would have matched just about any other male who might have been out at that time of night. Even so, Stewart did not match the description as he was significantly younger and shorter than the described shooter.

Id. at 889.

{¶20} On review, we find Stewart to be distinguishable from the case at bar.

Unlike the facts presented in Stewart, the basis for Officer Taylor’s investigative stop of

appellant’s vehicle derived from information that we are unable to characterize as

“vague.” Here, Officer Taylor was provided with a first-hand description from an officer

who was previously in hot pursuit of the suspect just minutes after the initial shooting

occurred. The officer provided information relating to the direction the suspect was running and indicated that the suspect was a dark-complexioned male with facial hair;

approximately 6’ to 6’1” tall; wearing a black jacket, dark jeans, and black stocking cap.

Additionally, dispatch provided Officer Taylor with further information obtained from an

identified citizen who lived in the area where the shooting had occurred. The identified

citizen informed the police that his neighbor had overheard an individual state while

talking on his cell phone, “[h]urry up and pick me up because the cops are looking for

me.” The description provided by the identified citizen was generally consistent with the

description given by Officer Maffo-Judd, with the exception that the identified citizen

stated that the suspect was wearing a red shirt and not a black jacket. However, as

addressed by Officer Taylor, it is not unusual for a suspect to “peel off layers of clothing

to try and change their appearance” as they flee from a crime scene.

{¶21} Furthermore, the circumstances surrounding Officer Taylor’s initial

observation of codefendant Williams were significantly different from those presented in

Stewart. In Stewart, the officers conducted an investigatory stop of the defendant after

observing him do “nothing more suspicious than walking though a parking lot in the

company of a female.” By contrast, in the case sub judice, Officer Taylor’s decision to

stop appellant’s vehicle derived from conduct he viewed as suspicious in light of recent

information he received from dispatch. As stated, Officer Taylor testified that he

initially observed an individual matching the suspected shooter’s description walk

through the front yards of the neighborhood toward a vehicle that Officer Taylor

described as suspiciously waiting on the apron of a nearby driveway. We recognize that codefendant Williams’s act of walking through a front yard instead of using sidewalks

and getting into a parked vehicle does not generally give rise to criminal suspicion.

However, in the case at hand, Officer Taylor made these observations with knowledge

that the suspected shooter was believed to be in the general area and was last seen by

officers “cutting” through the neighborhood yards and alleyways. Thus, unlike the

circumstances presented in Stewart, we find Officer Smith’s suspicions to be reasonable

in this matter.

{¶22} Viewing the totality of the circumstances collectively through the eyes of a

reasonable and cautious police officer, we find that Officer Taylor, and the officers who

issued the various dispatches, possessed a reasonable suspicion to believe that

codefendant Williams had engaged in criminal activity, thereby justifying the

investigatory stop of appellant’s vehicle.

{¶23} We recognize that, pursuant to the standard set forth in Maumee v. Weisner,

87 Ohio St.3d 295, 300, 1999-Ohio-68, 720 N.E.2d 507, had the identified citizen’s

“second-hand” tip been the only information available to the officers at the time of the

investigatory stop, it may not have been sufficient to withstand appellant’s Fourth

Amendment challenges.

Where an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity. The appropriate analysis, then, is whether the tip itself has sufficient indicia of reliability to justify the investigative stop. * * * Typically, a personal observation by an informant is due greater reliability than a secondhand description. (Emphasis added.) See id. at paragraph one of the syllabus.

{¶24} However, this is not the case where the information possessed by the police

stemmed solely from an informant’s tip. See State v. Phillips, 4th Dist. No. 06CA10,

2006-Ohio-6710, ¶ 15. Rather, the tip provided in the case at hand was considered in

conjunction with the fact that codefendant Williams fit the physical description provided

by a first responding officer; information that did meet the requisite level of suspicion

necessary to warrant the stop of appellant’s vehicle. Thus, the tip merely served to

supplement the totality of the information available to the officers at the time of their

investigation and was reasonably utilized to narrow the area of the search and the pool of

potential suspects.

{¶25} For these reasons, we find no error in the trial court’s decision to deny the

motion to suppress evidence. Accordingly, we hereby overrule appellant’s assignment of

error and affirm the trial court’s judgment.

{¶26} 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.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

EILEEN T. GALLAGHER, J., CONCURS; EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY