State v. JohnsonState v. Johnson
Rendered on the 20th day of November, 2009.
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MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
VIRGINIA L. CREWS, Atty. Reg. No. 0077837, 7501 Paragon Road, Dayton, Ohio 45459
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Kelvin D. Johnson (“Kelvin“) pled no contest to having weapons while under disability, a third degree felony, after the Montgomery County Court of Common Pleas overruled his motion to suppress evidence. The court found him guilty and sentenced him
I
{¶ 2} The evidence at the suppression hearing established the following facts.
{¶ 3} On July 20, 2008, Dayton Police Officer Willie Hooper was working with the department‘s gang unit, investigating problem areas where gang members “hang out.” At approximately 12:43 a.m., the unit went to a motorcycle club, commonly known as “the bone yard,” located in the area of West Third and Marion Streets. Hooper and Officer Zweisler exited their police vehicles and approached from the west side. The officers, who were wearing Dayton Police Department uniforms, began to walk through the parking lot. Approximately 100 people were there.
{¶ 4} Hooper and Zweisler started to approach a blue Chevy car where Kelvin Johnson, his brother, Billy Johnson, and their mother were standing. As Hooper approached from the driver‘s side, Billy yelled, “Police.” Hooper observed both Billy and Kelvin lean forward and throw handguns under the car, although he could not identify what types of gun they were. Hooper saw both men with handguns.
{¶ 5} Hooper immediately yelled, “Gun!” Billy “tried to take off running,” but Hooper grabbed his t-shirt and dragged him to the ground in front of the car. Kelvin also tried to run, but Zweisler apprehended him. Hooper asked for more crews over his radio, because the Johnsons’ mother “was going toward the gun and I kept yelling to her to get
{¶ 6} After placing Billy in his cruiser, Hooper went to Kelvin and advised him of his Miranda rights by reading from a card issued by the prosecutor‘s office. After each right was read, Kelvin was asked if he understood that right; Kelvin stated that he did. Kelvin did not appear to be confused, he did not ask for an attorney, and he indicated that he was willing to speak with Hooper. Hooper did not inquire if Kelvin had taken any drugs, but he did not smell alcohol and Kelvin did not appear to be under the influence of drugs or alcohol. Kelvin then told Hooper that he had purchased a gun from a boy named “Little Dee” and that he purchased the gun because his girlfriend had been killed two weeks prior to that date. Kelvin stated that he threw the gun away because he was on parole. Hooper did not ask if Kelvin had a permit to carry the weapon.
{¶ 7} On August 5, 2008, Kelvin was indicted for having weapons while under disability and carrying a concealed weapon. Kelvin moved to suppress the statements he made to the police, arguing that the statements were “the fruits of an illegal arrest,” were involuntary, and were made without a valid waiver of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
{¶ 8} The court held a hearing on the motion, during which Officer Hooper testified. At the conclusion of the testimony, the court asked defense counsel to clarify the bases for his motion. Defense counsel stated: “Well, I think initially it was based on Miranda. I would still stick with Miranda as to whether there was true waiver of his rights
II
{¶ 9} In his sole assignment of error, Kelvin claims that the trial court erred in overruling his motion to suppress. He argues that “[t]he Dayton Police approached [him] and his family without reasonable suspicion that anything had occurred or was about to occur.” Kelvin asserts that, due to this illegal detention, the court should have suppressed the evidence and his statements as “fruit of the poisonous tree.” The State responds that Kelvin waived any claim that the police unlawfully stopped him because he did not raise the issue in the trial court as required by
{¶ 10} Under
{¶ 12} Kelvin‘s written motion sought to suppress “all statements” to the police on the grounds that the arrest was unlawful, the statements were made involuntarily, and Kelvin had not waived his Miranda rights. The motion thus informed the State that Kelvin was challenging his arrest. At the hearing, however, Kelvin informed the trial court that he was relying solely on his Miranda argument, and the trial court‘s ruling was directed solely to that argument. We agree with the State that Kelvin‘s decision to rely solely on his Miranda argument at the suppression hearing constituted a waiver of the additional arguments made in his motion to suppress, including any argument that his detention or arrest was unlawful. Accordingly, Kelvin has not preserved this issue for appellate review.
{¶ 13} Even if Kelvin had not waived his challenge to his detention, we would conclude that the trial court did not err in overruling his motion to suppress.
{¶ 14} The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Not all interactions between citizens and the police, however, constitute a seizure. Rather, the interactions between citizens and law enforcement officers can fall
{¶ 15} 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. United States v. Mendenhall (1980), 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497, 504-505. The encounter remains consensual even if the officer asks questions, requests to examine an individual‘s identification, and asks to search the person‘s belongings, provided that the officer does not convey that compliance is required. Florida v. Rodriguez (1984), 469 U.S. 1, 4-6, 105 S.Ct. 308, 83 L.Ed.2d 165, 169-171; Florida v. Bostick (1991), 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389. “The Fourth Amendment guarantees are not implicated in such an encounter unless the police officer has by either physical force or show of authority restrained the person‘s liberty so that a reasonable person would not feel free to decline the officer‘s requests or otherwise terminate the encounter.” (Citations omitted) Taylor, 106 Ohio App.3d at 747-48.
{¶ 16} An individual is subject to an investigatory detention when, in view of all the circumstances surrounding the incident, by means of physical force or show of authority, a reasonable person would have believed that he was not free to leave or was compelled to respond to questions. Mendenhall, 446 U.S. at 553; Terry, 392 U.S. at 16, 19. 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, Montgomery App. No. 20270, 2004-Ohio-2738, at ¶10, citing Terry, supra. “Reasonable suspicion entails some minimal
{¶ 17} The final category is a seizure that is the equivalent of an arrest. “A seizure is equivalent to an arrest when (1) there is an intent to arrest; (2) the seizure is made under real or pretended authority; (3) it is accompanied by an actual or constructive seizure or detention; and (4) it is so understood by the person arrested.” Taylor, 106 Ohio App.3d at 749, citing State v. Barker (1978), 53 Ohio St.2d 135, at syllabus. An arrest must be based on probable cause.
{¶ 18} Officer Hooper testified that he and Officer Zweisler had parked their police vehicles and were walking, in uniform, through a parking lot where gang members hang out. A large number of people were in the parking lot, talking with each other. Hooper noticed two men and a woman standing near a blue Chevrolet. Billy was standing in front of the headlights on the driver‘s side talking with Kelvin, who was standing in front of him; their mother was standing by the passenger side of the car. Hooper turned on his flashlight as Billy yelled “police,” and the two men threw handguns under the front of the car. At that juncture, Hooper and Zweisler had not spoken to the Johnsons or made any effort to try to
{¶ 19} Hooper testified that he saw Billy and Kelvin with handguns, that he observed them throw the weapons under their vehicle, and that Billy and Kelvin tried to run away. At that juncture, Hooper and Zweisler had a reasonable and articulable suspicion that the two men were involved in criminal activity. In addition, because Kelvin did not inform the officers that he had a CCW permit, as he would have been required to do if he had such a permit, see
{¶ 20} The assignment of error is overruled.
III
{¶ 21} The judgment of the trial court will be affirmed.
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FAIN, J. and GRADY, J., concur.
Copies mailed to:
Michele D. Phipps
Virginia L. Crews
Hon. Timothy N. O‘Connell