STATE OF OHIO, Plaintiff-Appellee, vs. ZION LYLE, Defendant-Appellant.
APPEAL NO. C-190447 | TRIAL NO. 19CRB-9096
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 30, 2020
[Cite as State v. Lyle, 2020-Ohio-4683.]
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed, Appellant Discharged, and Cause Remanded
Paula Boggs Muething, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Jon Vogt, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant.
{¶1} Defendant-appellant Zion Lyle was convicted of carrying a concealed weapon in violation of
{¶2} The issues in this case are whether and when Lyle was “stopped for a law enforcement purpose” according to
{¶3} For the reasons discussed below, we sustain both assignments of error and reverse the judgment of the trial court.
Factual Background
{¶4} Cincinnati Police Officer Caleb Sarchet testified that he and several Hamilton County sheriff‘s deputies responded to a report of gunshots in the vicinity of Baymiller and Livingston Streets. As they walked down Baymiller Street to investigate, Sarchet noticed a car occupied by two individuals parked on the side of the street. As he approached the car, Sarchet noticed the passenger, who turned out to be Lyle, twice turn toward the back seat and then back to the front.
{¶5} Footage from Sarchet‘s body camera was played during trial. At the 45-second mark, Sarchet knocked on the passenger window and asked Lyle to roll it
{¶6} Sarchet asked the driver, “Hey, real quick, can I talk to you for one second?” As Sarchet walked over to the driver‘s side, he told one of the deputies to watch the passenger door. The driver got out of the car and walked back toward Sarchet. Sarchet ordered him to face the car and patted him down. He asked the driver, “Hey, where‘s your weed at?” The driver denied having any. Sarchet handcuffed the driver, sat him down on the curb, and questioned him about the marijuana. Three minutes and ten seconds into the video, the deputy standing by Lyle‘s door turned toward Sarchet and said, “There‘s a gun in the backseat.”
{¶7} Sarchet and the deputy then prepared to remove Lyle from the car. The deputy told Lyle, “I‘m going to put you in handcuffs alright? You‘re not in trouble, but we‘re going to put you in handcuffs.” While the deputy and Sarchet removed Lyle from the car and patted him down, Lyle told them that he had a “license.” Sarchet pulled Lyle‘s CHL card out of his wallet, and Lyle said, “Right there, my CCW.” Sarchet asked Lyle why he had not told him earlier, and Lyle said that he had told the deputy that had been standing by his door. Sarchet testified that as he patted Lyle down, he discovered that Lyle was wearing an empty holster, prompting him to believe that Lyle had moved the firearm to the backseat as police approached the car.
{¶9} On cross-examination, defense counsel asked Sarchet what law he was intending to enforce as he approached the vehicle. Sarchet testified that at that point it was “just an investigation. I was just talking to them as I would talk to any other person. * * * My intention was simply to investigate the call that I was on for gunshots heard in the area.”
{¶10} After a bench trial, the court found Lyle guilty, sentenced him to probation for one year, ordered him to pay a fine of $150 and court costs, revoked his CHL, and ordered forfeiture of the firearm.
First Assignment of Error
{¶11} In his first assignment of error, Lyle argues that the trial court erred in overruling his
{¶12} The test for determining if the evidence was sufficient to sustain a conviction is whether “after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.” State v. MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). It is a question of law for the court to determine, the court is not to
{¶13} A motion for an acquittal under
{¶14} Lyle was convicted of carrying a concealed weapon in violation of
(B) No person who has been issued a concealed handgun license shall do any of the following:
(1) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, fail to promptly inform any law enforcement officer who approaches the person after the person has been stopped that the person has been issued a concealed handgun license and that the person then is carrying a concealed handgun.
(Emphasis added.)
{¶15} There are two crucial questions in this case: (1) at what point during the interaction was Lyle “stopped for a law enforcement purpose,” and (2) when stopped, did Lyle “promptly inform” the officers of the firearm and that he possessed a CHL?
{¶16} The purpose of the “promptly inform” requirement is for officer safety, so that during an interaction between an officer and a CHL holder, the officer is
{¶17} When Sarchet knocked on the passenger window and asked Lyle and the driver whether they had heard any gunshots, he and the other officers were performing a “law enforcement purpose.” However, Sarchet testified that he “was just talking to them as I would talk to any other person. * * * My intention was simply to investigate the call that I was on for gunshots heard in the area.” We find the encounter to be consensual at that point.
{¶18} The state argues that a consensual encounter can be a “stop” under
{¶19} Where an encounter between police and the public is consensual, there is no seizure. State v. Boys, 128 Ohio App.3d 640, 642, 716 N.E.2d 273 (1st Dist.1998). “A seizure does not occur simply because a police officer approaches an individual and asks a few questions,” including when the individual is sitting in a parked car. Id. Thus, a consensual encounter with the police does not amount to a “stop” under
{¶20} This interpretation of
{¶21} In Lyle‘s case, the trial court found, and the state argues, that once Sarchet saw and smelled marijuana, the encounter was “converted” from a “neutral” encounter into a law enforcement stop, and that Lyle should have informed Sarchet about the firearm and his CHL at that time.
{¶22} Whether an individual was stopped is an objective test based on an officer‘s conduct. See Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (to determine whether a seizure occurred under the Fourth Amendment, a court must “consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.“). Therefore, that Sarchet considered the encounter to be a drug investigation once he saw and smelled the marijuana is insufficient to change the consensual nature of the encounter into a stop unless his conduct indicated such a change to Lyle and the driver. Sarchet did not mention marijuana or indicate in any way that the encounter had evolved into a drug investigation until he was questioning the driver, alone, behind the car. Therefore, we find that Lyle was not stopped at the point Sarchet smelled and saw marijuana.
{¶23} So how do we answer the question of when Lyle was “stopped for law enforcement purposes?” Fourth Amendment caselaw is instructive to our analysis. A seizure occurs when the officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” California v. Hodari D., 499 U.S. 621, 625, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Police questioning, by itself, is unlikely to result in a seizure under the Fourth Amendment. I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). “Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.” Id.
{¶24} The state contends that even if the encounter was initially consensual, it evolved into a stop once Sarchet made a “show of authority” by asking to speak with the driver and telling the deputy to keep an eye on Lyle in the passenger seat.
{¶25} We disagree with the state‘s contention. Sarchet did not order the driver out of the car; he simply asked to speak with him and walked over to the driver‘s side while directing one of the deputies to watch the passenger‘s side. The driver exited from the car on his own volition and walked back toward Sarchet, who was standing at the rear of the vehicle on the driver‘s side. The encounter undoubtedly evolved into a stop of the driver once Sarchet ordered him to face the car, patted him down, and placed him in handcuffs at approximately one minute 15 seconds into the body camera video.
{¶26} While Sarchet was dealing with the driver (for approximately two minutes), his body camera video showed the deputy standing by Lyle‘s door appearing to talk with Lyle. Lyle testified that he informed the deputy of the firearm before he was removed from the car. The video seems to confirm this due to the fact that at approximately three minutes ten seconds, the video shows the deputy, after speaking with Lyle, inform Sarchet there was a firearm in the backseat of the car. Curiously, the state did not call the deputy as a witness at trial.
{¶28} We hold that, even in the light most favorable to the prosecution, it did not present sufficient evidence that Lyle failed to “promptly inform” the officers of his CHL and the firearm after being “stopped for a law enforcement purpose.” Lyle‘s first assignment of error is sustained and his conviction for carrying a concealed weapon in violation of
Second Assignment of Error
{¶29} Since Lyle‘s conviction is reversed, there is no basis for his firearm to be forfeited or his CHL to be suspended. His second assignment of error is sustained.
Conclusion
{¶30} Because Lyle was not “stopped for a law enforcement purpose” until after he had disclosed that there was a firearm in the vehicle, his conviction under
Judgment reversed, appellant discharged, and cause remanded.
Bergeron, J., concurs.
Myers, P.J., dissents.
Myers, P.J., dissenting.
{¶31} Because I would find that Lyle failed to “promptly inform” the officer that he had a gun and a concealed handgun license after being “stopped for a law enforcement purpose,” I respectfully dissent.
{¶32} I agree that the first issue we must decide is when, if ever, Lyle was “stopped” for a law enforcement purpose. As the majority recognizes, the officers were engaged in a law enforcement purpose when investigating a shooting in the area where Lyle and his friend were parked. And I would find that under the plain meaning of the statute, Lyle was “stopped” for this purpose the moment the officers approached him and asked him to roll his window down.
{¶33} The majority relies on well-established search-and-seizure law when coming to its conclusion that Lyle was not “stopped” when the officers told him to roll down his window and questioned him. I agree that Lyle was not “seized” at this point. Nor was he “detained” or “arrested.” Under Fourth Amendment principles, this likely was a “consensual encounter.” But I disagree that this is the correct analysis to be used in this case.
{¶34} As recognized by the majority, the purpose of
{¶35} This leads me to the meaning of “stop” under
{¶36} Having concluded that Lyle was stopped when the officer began his investigation, I would find that Lyle did not “promptly” disclose the weapon and his license to carry. Again, recognizing the purpose of officer safety, a citizen is required to inform the officer of the gun. While “promptly” does not mean immediately, it is pretty close. And, it certainly is not three minutes into the investigation, when the officer apparently is alerted to the gun.
{¶37} The majority relies on City of Strongsville v. Johnson, 2017-Ohio-7066, 95 N.E.3d 809 (8th Dist.). In that case, the court first determined that unlike
{¶38} When a citizen is permitted to carry a concealed weapon, the legislature has put a corresponding duty on the citizen to alert police that the citizen is carrying a gun when stopped for a law enforcement purpose. This is not an onerous burden, and involves no intrusion on constitutional rights protected by the Fourth Amendment. There was sufficient evidence supporting Lyle‘s conviction, and I would therefore affirm the trial court‘s judgment.
Please note: The court has recorded its own entry on the date of the release of this opinion.