State v. Taylor

2026 Ohio 1041

• Court: Ohio Court of Appeals
• Decided: March 26, 2026
• Docket: 115154
• Status: Published

Opinion

[Cite as State v. Taylor, 2026-Ohio-1041.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 115154 v. :

KENNETH KIMBROUGH : TAYLOR, JR.,

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 26, 2026

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-25-698621-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carla B. Neuhauser, Assistant Prosecuting Attorney, for appellee.

Flowers & Grube, Louis E. Grube, and Michael J. Factor, for appellant.

DEENA R. CALABRESE, J.:

Defendant-appellant Kenneth Kimbrough Taylor, Jr. appeals the trial

court’s order denying his motion to suppress the firearm located on his person during a traffic stop as evidence. Following a thorough review of the facts and

applicable law, we affirm.

I. Procedural History and Facts

On January 27, 2025, the Cuyahoga County Grand Jury returned a

three-count indictment charging appellant with the following offenses:

Count 1: having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of the third degree, with a weapons forfeiture specification pursuant to R.C. 2941.1417(A);

Count 2: carrying a concealed weapon in violation of R.C. 2923.12(A)(2), a felony of the fourth degree, with a weapons forfeiture specification pursuant to R.C. 2941.1417(A); and

Count 3: improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B), with a weapons forfeiture specification pursuant to R.C. 2941.1417(A).

At a pretrial held March 5, 2025, the trial court scheduled a suppression

hearing for April 1, 2025, even though no motion had yet been filed. Appellant filed

his motion to suppress on March 19, 2025. The State filed its brief in opposition on

March 31, 2025. The hearing on appellant’s motion to suppress proceeded as

scheduled on April 1, 2025.

The traffic stop giving rise to this case occurred at approximately

2:30 p.m. on March 6, 2024. The State’s sole witness at the suppression hearing

was Ohio State Highway Patrol Trooper Justin Lister. In addition to testimony, the

State provided the trial court with body-camera footage of Trooper Lister’s

interactions with appellant. Trooper Lister testified that the footage fairly and

accurately depicted the encounter. (Tr. 44-45.) Trooper Lister testified that on the afternoon in question, he observed

a vehicle with what appeared to be an illegally dark window tint. He stepped from

his patrol car to approach the vehicle. Appellant, who was driving, had partially

lowered the driver’s-side window. Trooper Lister testified that while the windows

of the vehicle were intact, he observed broken window glass in the vehicle itself. He

stated that there was “broken glass in the car yet there’s no shattered windows

currently,” which he found “abnormal.” (Tr. 18.)

Appellant handed Trooper Lister an Ohio identification card rather

than a driver’s license. In addition, Trooper Lister testified that the photo on the

identification card “appeared to be a different physical appearance than the driver

that was sitting in front of me.” (Tr. 18-19.) Appellant did, however, have his phone

out, and stated “that he had his driver’s license on his phone.” (Tr. 16.)

Trooper Lister continued by explaining his rationale for asking

appellant to step out of the vehicle:

[B]eing that it was an ID card only and the picture difference, the safest way for me to not approach that car again, unknowingly of what’s in the vehicle, is to bring the driver out, bring him back to my office. It’s common practice. My office meaning the patrol car. And validating what he had said to be, in fact, true, that he has a valid driver’s license.

(Tr. 19.)

Trooper Lister asked appellant to exit the vehicle. Referencing the

body-camera footage, he testified that as appellant stepped out “with his left foot,

his right arm [was] notably hugged toward his midline as if he’s almost holding a

football . . . .” (Tr. 22.) According to Trooper Lister’s testimony, appellant was “hinged over at the waist notably forward,” and appellant’s “right hand [was] almost

hidden into his waistline.” (Tr. 23.) He further testified: “It’s not normal for

someone to step out of a car hinged at the waist hugging his waistline with his right

hand.” (Tr. 23-24.)

Trooper Lister asked appellant “[i]f he had something in his

waistband.” (Tr. 24.) The body-camera footage appears to indicate that appellant

answered in the negative. Trooper Lister then cuffed appellant, donned protective

nitrile gloves, and performed a pat down, which immediately revealed a semi-

automatic handgun with a round in the chamber. (Tr. 24-26.)

In his motion and at the suppression hearing itself, appellant argued

that an officer must tailor the scope and duration of a traffic stop to the reason for

the stop itself, i.e., “writing the citation, and any expanded investigation unrelated

to the traffic violation must be based upon reasonable articulable suspicion.”

(Appellant’s motion to suppress at p. 3.)

The trial court recessed briefly, then went back on the record and

denied appellant’s motion to suppress. It stated that even though no citation was

given for the window-tint violation, its observation of the body-camera footage “does

indicate that the windows were tinted to such a degree that one would have difficulty

seeing into the vehicle.” (Tr. 58.) It further found Trooper Lister’s order for

appellant to step out of the vehicle and the pat down lawful under Pennsylvania v.

Mimms, 434 U.S. 106 (1977), and State v. Hoskins, 2002-Ohio-3451, ¶ 14 (8th Dist.). Trial remained set for May 7, 2025. Appellant appeared that day and

entered a plea of no contest to the indictment. Following a proffer by the State, the

trial court found appellant guilty on all three counts, ordered forfeiture of the seized

Smith & Wesson 9 mm firearm, and imposed a community-control sanction. This

timely appeal followed.1

II. Assignment of Error

Appellant presents a single assignment of error for our review:

The trial court erred, and violated defendant-appellant Taylor’s constitutional rights, when it denied his motion to suppress evidence found during an illegal search.

We overrule appellant’s sole assignment of error and affirm the trial

court’s denial of his motion to suppress.

III. Analysis

A. Standard of Review

Relevant to the issue of searches and seizures, this court has stated:

The Fourth Amendment to the Constitution of the United States and Section 14, Article I, of the Constitution of Ohio, prohibit unreasonable searches of persons and seizure of their property. Evidence obtained by the State in violation of that prohibition must be suppressed from use by the State in its criminal prosecution of the person from whom it was seized.

State v. Baker, 2007-Ohio-5450, ¶ 12 (8th Dist.).

1 “A plea of no contest does not preclude a defendant from asserting upon appeal

that the trial court prejudicially erred in ruling on a pretrial motion, including a motion to suppress evidence. Crim.R. 12(I).” State v. Beasley, 2018-Ohio-16, ¶ 15. “An appellate review of a motion to suppress presents a mixed

question of law and fact.” State v. Byrd, 2022-Ohio-4635, ¶ 14 (8th Dist.), citing

State v. Burnside, 2003-Ohio-5372, ¶ 8. We accept the trial court’s findings of fact

if they are supported by competent, credible evidence. Byrd at ¶ 14, citing State v.

Preztak, 2009-Ohio-621, ¶ 22 (8th Dist.). We then “independently determine, as a

matter of law, whether the applicable legal standard has been satisfied.” State v.

Moore, 2014-Ohio-2979, ¶ 9 (8th Dist.), citing State v. Jones, 2014-Ohio-496 (8th

Dist.).

We find no reason to conclude that the testimony of Trooper Lister was

not competent or credible, particularly considering the body-camera footage played

for the trial court and provided to us with the record on appeal. We further find that

the trial court applied the correct legal standard to the facts and appropriately

denied appellant’s motion to suppress.

B. The Traffic Stop

At the trial-court level, appellant suggested the stop was pretextual.

He has abandoned that argument on appeal, stating in his brief that he “does not

challenge the legitimacy of the original stop” because the trial court made specific

findings that there was “reasonable suspicion of an equipment violation.” Because

the issue was raised below, however, and because appellant still attempts to plant

seeds of doubt regarding whether the tint level was actually unlawful, we briefly

address the legitimacy of the traffic stop. “As a general rule, the decision to stop an

automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” State v. Dansby-East, 2019-Ohio-2218, ¶ 11 (8th

Dist.). As we noted in that very case, “[t]his court has repeatedly held that window

tint violations provide probable cause for a traffic stop.” Id. (collecting cases). An

officer may lawfully initiate a traffic stop if “there was at least a reasonable suspicion

that the windows were illegally tinted.” (Emphasis added.) State v. Bowie, 2007-

Ohio-4297, ¶ 9 (8th Dist.). See also Richmond Hts. v. Williams, 1998 Ohio App.

LEXIS 5572, *6 (8th Dist. Nov. 25, 1998) (officer “had reasonable suspicion based

upon the specific and articulable fact that defendant’s windows were excessively

tinted”). We find and conclude that the traffic stop for a suspected window-tint

violation was not unconstitutional.

C. The Mimms Order

We likewise find, under settled law, that Trooper Lister’s command for

appellant to exit his vehicle did not violate appellant’s constitutional rights. “[T]he

United States Supreme Court has recognized that a police officer may order a driver

or passenger to exit his vehicle if properly stopped for a traffic violation, even if the

officer does not have reasonable suspicion of criminal activity.” State v. Travis,

2013-Ohio-581, ¶ 14 (8th Dist.), citing Mimms, 434 U.S. 106. This applies even in

the absence of “furtive movements or gestures” suggesting concealment of a firearm

or other contraband. Travis at ¶ 14.

In State v. Jackson, 2022-Ohio-4365, which similarly involved a

Mimms order following a stop for a possible window-tint violation, the defendant took “issue with the officer’s decision to order him from the car.” Id. at ¶ 13. The

Ohio Supreme Court rejected that argument in summary fashion:

[T]hat challenge is easily dispensed with. Under Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), fn. 6, “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” An officer needs no justification beyond that necessary for the initial stop to order a driver from the car. State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993).

Id. at ¶ 13. See also Byrd, 2022-Ohio-4635, at ¶ 20 (8th Dist.); Cleveland v. Kalish,

2018-Ohio-682, ¶ 26, fn. 2 (8th Dist.). In Kalish, this court wrote:

[T]he trial court’s reasoning that the scope of the stop was unlawfully exceeded because the officer had no reason to ask Kalish to exit his car, despite a valid traffic stop, was incorrect. Because the traffic stop was valid, Officer Suda could properly ask Kalish to exit his vehicle.

Kalish at ¶ 26, fn. 2. See also State v. White, 2014-Ohio-4202, ¶ 19 (8th Dist.)

(request to exit vehicle “is permitted by a bright line rule given by the United States

Supreme Court” in Mimms); State v. Evans, 67 Ohio St.3d 405, 408 (1993) (“[A]

Mimms order does not have to be justified by any constitutional quantum of

suspicion.”).

For the first time on appeal, appellant argues that we should no longer

apply the Mimms bright-line rule. Specifically, appellant contends we should

interpret Ohio Const., art. I, § 14 as providing more protection than the U.S. Const.,

amend. IV.2 Appellant, however, waived that argument by not advancing it below.

2 Appellant also argues that Mimms, which has not been overruled by the United

States Supreme Court, was incorrectly decided under the Fourth Amendment. We will not entertain that argument. In a motion to suppress, “the accused must state the motion’s legal

and factual bases with sufficient particularity to place the prosecutor and the court

on notice of the issues to be decided.” State v. Shindler, 70 Ohio St.3d 54 (1994),

syllabus. The Ohio Supreme Court clarified that this requirement not only puts the

prosecutor and trial court on notice of the issues to be decided, but also, “by

omission, those issues which are otherwise being waived.” (Emphasis added.)

Shindler at 58. See also State v. Wintermeyer, 2019-Ohio-5156, ¶ 18. “Arguments

not made by the defendant at the suppression hearing are, therefore, deemed to have

been waived.” Id. at ¶ 19, citing Xenia v. Wallace, 37 Ohio St.3d 216, 218 (1988).

See also State v. Peagler, 76 Ohio St.3d 496, 500 (1996) (“Failure on the part of the

defendant to adequately raise the basis of his challenge constitutes a waiver of that

issue on appeal.”).

In State v. Hall, 2022-Ohio-2772 (8th Dist.), the defendant argued on

appeal that because medical marijuana was legal in Ohio, the odor of marijuana did

not provide probable cause for a search. This court observed that Hall had not made

that argument to the trial court. It then held that “[b]ecause Hall did not raise this

argument in the joint motion to suppress, nor did his counsel make this argument

orally at the suppression hearing, we decline to consider this argument.” Id. at ¶ 26.

See also State v. Riedel, 2017-Ohio-8865, ¶ 48 (8th Dist.) (“This waiver rule applies

to arguments not asserted either in a written motion to suppress or at a suppression

hearing.”); State v. Massingill, 2009-Ohio-6221, ¶ 20 (8th Dist.) (“[T]he failure to

raise suppression claims in the trial court prior to the commencement of trial precludes raising the argument for the first time on appeal.”); State v. Jones, 2009-

Ohio-5701, ¶ 46 (8th Dist.) (“Jones’s failure to raise the custodial interrogation-

Miranda issue, either in his motion to suppress or at the suppression hearing,

constituted a waiver of that issue.”); State v. Roubideaux, 2010-Ohio-73, ¶ 44 (8th

At oral argument, we asked appellant whether he had argued to the

trial court that under the specific facts of this case, Ohio Const., art. I, § 14 should be

interpreted more expansively than the U.S. Const., amend. IV. The best appellant

could do was note that at the trial-court level, he had cited State v. Robinette, 80

Ohio St.3d 234 (1997), which he believed preserved all arguments under the Ohio

Constitution. We reject that contention. While Robinette certainly addressed both

the Ohio Constitution and the Fourth Amendment, the Ohio Supreme Court held in

that case “that Section 14, Article I of the Ohio Constitution affords protections that

are coextensive with those provided by the Fourth Amendment.” (Emphasis added.)

Id. at 245. More importantly, a careful review of appellant’s brief below and the

hearing transcript reveal that he cited Robinette for general constitutional principles

governing the extension of a traffic stop based upon “reasonably articulable facts

giving rise to a suspicion of criminal activity.” Id. at 241.

There is a chasm of difference between this species of argument and

the contention that Ohio Const., art. I, § 14 provides more robust protection in the

present circumstances than the Fourth Amendment. The proof of this is appellant’s

own exemplary reply brief, which urges a “break with parallelism” and discusses, inter alia, Ohio’s “strong history and tradition of limiting the power of law

enforcement to carry out minimal-suspicion searches and seizures” and this state’s

“frontier spirit.” (Appellant’s reply at p. 5-7.) None of these arguments, nor

anything like them, were made below. Appellant’s argument that Ohio’s

Constitution should provide stronger protection than the Fourth Amendment to the

United States Constitution in the Mimms context has been waived. We will not

address it.

Moreover, appellant has not argued that the trial court’s denial of the

motion to suppress was plain error. “Where a defendant does not argue plain error

on appeal, the appellate court need not consider the issue.” State v. Speights, 2021-

Ohio-1194, ¶ 14 (8th Dist.); State v. Tate, 2022-Ohio-4745, ¶ 20 (8th Dist.). Even if

appellant had briefed plain error, there is authority that in considering

constitutional challenges, “addressing an argument not raised below in support of a

motion to suppress, even under plain error, would be inappropriate.” State v.

Walker, 2017-Ohio-9255, ¶ 29 (1st Dist.). As the Eleventh District wrote in State v.

Mock, 2013-Ohio-874, ¶ 10 (11th Dist.):

[W]e question the propriety of a plain error analysis in the context of a defendant’s failure to make constitutional arguments in a suppression motion. Under appellant’s line of reasoning, the trial court, to avoid the alleged error in this case, would have been required to raise new suppression issues on behalf of appellant, request the parties to present evidence on those matters, and then evaluate the issues.

(Emphasis in original.) Id. at ¶ 10. In any event, and particularly in light of the line

of Ohio cases following Mimms from both the Ohio Supreme Court and this court, we cannot find anything in the record to suggest that the trial court’s denial of the

motion to suppress was plain error.

D. The Pat Down

We have already concluded that Trooper Lister’s order that appellant

step out of his vehicle was constitutional under Mimms and its progeny. “If

reasonable suspicion thereafter arises from acts of the motorist while alighting or

the officer’s better observation of the motorist, an officer may proceed with other

investigatory steps that require reasonable suspicion.” Kalish, 2018-Ohio-682, at

¶ 27 (8th Dist.). See Terry v. Ohio, 392 U.S. 1 (1968). See also State v. Mathews,

1994 Ohio App. LEXIS 4063, *11 (8th Dist. Sept. 15, 1994). In other words, “‘the

police may conduct a limited protective search for concealed weapons if the officers

reasonably believe that the suspect may be armed or a danger to the officers or to

others.’” Moore, 2014-Ohio-2979, at ¶ 13 (8th Dist.), quoting State v. Lawson,

2009-Ohio-62, ¶ 21 (2d Dist.). “The purpose of this limited search is not to discover

evidence of crime, but to allow the officer to pursue his investigation without fear of

violence.” Evans, 67 Ohio St.3d at 422, citing Terry at 24. See also Moore at ¶ 13.

“To justify a pat-down, ‘the police officer must be able to point to specific and

articulable facts which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.’” Id. at ¶ 13, quoting Terry at 27.

In Hoskins, 2002-Ohio-3451 (8th Dist.), which the trial court cited,

this court emphasized that “[t]he mere fact that an officer has ordered an occupant

from his or her vehicle does not bestow upon the officer entitlement to conduct a Terry search.” Id. at ¶ 15. Rather, as discussed above, Terry permits a “limited

protective search” for concealed weapons if the officer reasonably determines a

detained individual might be armed and dangerous. Id. In Hoskins, the police

officer “approached the vehicle [and] noticed Hoskins’ right hand placed down the

front of his pants in a posture leading him to believe Hoskins was hiding or

retrieving a weapon.” Id. at ¶ 16. In addition to other indicators of a possibly

dangerous situation, this court concluded that the officer “had a reasonable,

objective basis for conducting a Terry search of Hoskins.” Id. at ¶ 16.

In light of Hoskins and similar precedent, we will not disturb the trial

court’s denial of appellant’s motion to suppress. Trooper Lister testified that

appellant exited the vehicle with a posture that suggested he was concealing

something in or near his waistband. “[H]is right arm [was] notably hugged toward

his midline as if he’s almost holding a football . . . .” (Tr. 22.) According to Trooper

Lister, appellant was “hinged over at the waist notably forward,” and appellant’s

“right hand [was] almost hidden into his waistline.” (Tr. 23.) Trooper Lister

testified that in his experience, it was “not normal for someone to step out of a car

hinged at the waist hugging his waistline with his right hand.” (Tr. 23-24.) In

addition, appellant had already displayed an Ohio identification card instead of a

valid driver’s license, and Trooper Lister had observed broken glass on the floor. In

reviewing the body-camera footage, we observe that the pat down appeared to be

precisely the kind of “cursory search for weapons” permitted under Terry. State v.

Knox, 2013-Ohio-1662, ¶ 23 (8th Dist.). It is no stretch to say that within moments of beginning the pat down, Trooper Lister discovered appellant’s Smith & Wesson 9

mm handgun in exactly the location appellant’s unusual posture led him to suspect.

The traffic stop was constitutionally permissible. The order to step

out of the vehicle was lawful under Mimms and its progeny. The pat down was

constitutionally sound under Terry and the Ohio cases applying it. Appellant’s sole

assignment of error is overruled.

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.

DEENA R. CALABRESE, JUDGE

EILEEN T. GALLAGHER, P.J., and EMANUELLA D. GROVES, J., CONCUR