State of Ohio v. Timothy N. Mosby, Jr.
Court of Appeals No. L-20-1010
Trial Court No. CR0201902483
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
June 30, 2021
[Cite as State v. Mosby, 2021-Ohio-2255.]
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DECISION AND JUDGMENT
Decided: June 30, 2021
Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
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ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, Timothy Mosby, appeals the judgment of the Lucas County Court of Common Pleas, sentencing him to 42 months in prison after he pled no contest to carrying a concealed weapon, receiving stolen property, having weapons under disability,
A. Facts and Procedural Background
{¶ 2} During the early morning hours of August 16, 2019, law enforcement officers began searching a crowd of people that were congregated in a parking lоt at the Greenbelt Apartments in Toledo. Appellant, who was seated in the rear of a parked vehicle in that lot, was ordered to exit the vehicle. During the encounter, appellant was found to be in possession of a firearm. Consequently, on August 23, 2019, appellant was indicted on one count of carrying a concealed weapon in violation of
{¶ 3} On September 24, 2019, after entering a plea of not guilty to the aforementioned charges, appellant filed a motion to suppress, in which he argued that his August 16 detainment was unconstitutional under both the Constitution of the United States as well as the Ohio Constitution, because the initial stop of the vehicle was not
{¶ 4} A hearing on appellant‘s motion to suppress was held on November 26, 2019. At the hearing, the state called four witness. Its first witness was sergeant Melvin Stachura of the Toledo Police Department‘s gang task force.
{¶ 5} Stachura testified that he was on duty on the morning of August 16, 2019, and participated in detaining appellant at a parking lot located adjacent to an apartment complex known as the Greenbelt Place Apartments. According to Stachura, the parking lot at which the stop was initiated is known as the Wayne Lot, so nаmed after a deceased Cherrywood Crip gang member who was murdered there in early 2018. Stachura explained that the Greenbelt Place Apartments are also known as the Cherrywood apartments, which is a reference to the Cherrywood Crips who occupied the territory surrounding the apartment complex. Stachura testified that the Cherrywood apartment complex is a high crime area in the city of Toledo.
{¶ 6} As he continued, Stachura indicated that the Cherrywood Crips had an ongoing feud with the Gear Gang Crips in Toledo, which led to frequent police calls to the area around the Greenbelt Place apartments. According to Stachura, police “were in that area every night” in response to reports of disorderly conduct, open containers,
{¶ 7} Stachura patrolled the area around the Wayne Lot earlier in his shift on August, 16, 2019, taking note of the large crowd that had gathered there. Upon his return to the Wayne Lot at 2 a.m., Stachura observed that there were “at least 25 people” in the parking lot. He testified that he observed “open alcohol consumption” and detected the odor of burnt marijuana in the area. He further explained that the individuals in the parking lot were “hanging out,” which he determined met the definition of loitering. Staсhura explained that loitering was a “huge problem” at the Wayne Lot, where Stachura frequently encountered “from 20 all the way up to a hundred people * * *, and there would be several fights that would break out.”
{¶ 8} Before engaging the crowd at the Wayne Lot, additional police units were requested. Stachura explained that the request for additional units was made out of concern for officer safety based upon prior incidents of violence and the prevalence of weapons confiscations in that area. Moreover, Stachura stated that the decision to engage in the crowd was made by law enforcement and was not the product of any citizen complaints of сriminal activity occurring at that location.
{¶ 9} When he arrived on the scene, Stachura noticed that there were “two or three cars” parked with the engines not running, around which there were individuals who were drinking alcohol. He stated that “at that point we were going to make a stop on everybody.” He proceeded to the vehicle where appellant was seated as a rear passenger,
{¶ 10} Appellant initially ignored the command to exit the vehicle. Eventually, appellant was removed from the vehicle by police, at which point Stachura overheard other officers stating that they saw a firearm. Thereafter, officers removed appellant from the vehicle, confiscated a firearm from his waistband, and arrested him.
{¶ 11} On cross-examination, Stachura was pressed on his claim that the individuals, including appellant, were loitering at the Wayne Lot. He acknowledged that one of the passengers in the vehicle was a resident of the apartment complex, and was thus permitted to be there at the time. He also admitted that the vehicle was not impeding access to the parking lot or denying anyone passage.
{¶ 12} As to his observation of criminal activity, Stachura stated that the odor of burnt marijuana was not localized to the subject vehicle, and he acknowledged that the odor of burnt marijuana “can carry” over a distance depending on the wind and “several
{¶ 13} As its second witness at the suppression hearing, the state called Benjamin Kiser. Kiser is a police officer for the Toledo Police Department, assigned to the Special Operations Bureau. Like Stachura, Kiser indicated that the Wayne Lot is located in an area of heavy drug gang activity, and he noted that he spent “most of July responding to numerous shots fired calls.”
{¶ 14} Kiser was dispatched to the Wayne Lot on August 16, 2019, in order to provide “overwatch for officer safety.” Upon his arrival, Kiser observed individuals openly consuming alcohol and he detected an odor of burnt marijuana. Kiser noticed that officers who were already on the scene were detaining individuals, but he focused his attention on the vehicle in which appellant was seated because he noticed that “most of the individuals were hanging around” the vehicle. As he approached the vehicle, Kiser heard officers directing the occupants to exit the vehicle. He then ordered appellant to exit the vehicle, and appellant “essentially ignored [him], was moving around in the back seat of the vehicle.” Kiser again instructed him to exit the vehicle, and appellant indicated that he was trying to do so. When appellant ignored Kiser‘s commands to exit the vehicle, Kiser became concerned that appellant was attempting to conceal a weapon or drugs. Thereafter, Kiser grabbed appellant‘s left arm and pulled appellant out of the
{¶ 15} As its third witness, the state called Toledo Police officer Michael Ellerbrock to the stand. Ellerbrock was one of the officers who responded to the Wayne Lot on the night of appellant‘s arrest. He generally corroborated the previous testimony concerning the open consumption of alcohol and the odor of burnt marijuana in the Wayne Lot, acknowledging that he did not observe appellant taking part in either of those activities. Ellerbrock testified that he was the officer who noticed the firearm in appellant‘s waistband as Kiser was pulling appellant out of the vehicle. Upon noticing the firearm, he grabbed appellant by the arm and removed the weapon from appellant‘s waistband. Ellerbrock‘s bоdycam footage depicting his encounter with appellant was introduced into the record and published for the jury.
{¶ 16} For its fourth and final witness, the state called detective Nicholas Bocik of the Toledo Police Department‘s gang task force. Like the other witnesses, Bocik was present at the Wayne Lot on the morning of August 16, 2019. Bocik testified that Toledo police had responded to “over 20 reports involving firearms or shots fired or something of that type of incident” in the area around the Wayne Lot during the three months preceding appellant‘s arrest. Bocik characterized the Wayne Lot as a high crime area, and proceeded to recount several specific incidents of shots fired and other violent crimes involving firearms that took place near the Greenbelt Place Apartments between May
{¶ 17} After the state finished presenting its witnesses, appellant elected not to call any witnesses, and the parties presented their closing arguments. For his part, appellant argued that the state failed to establish the existence of reasonable suspicion to support its investigative stop of the vehicle or appellant. Appellant highlighted the fact that the state‘s witnesses testified that they neither detected an odor of marijuana emanating from the vehicle nor observed any of the occupants of the vehicle consuming alcohol. Appellant further explained that the stop was not premised upon an ongoing emergency or a citizen complaint. Thus, appellant reasoned, the police should have simply issued citations to those who were openly consuming alcohol, and then order the crowd to disperse. Contending that reasonable suspicion was lacking here, appellant argued that the officers were not permitted to detain everyone who was present, including the occupants of the vehicle in which he was a passenger, which was legally parked in the Wayne Lot.
{¶ 18} During its closing argument, the state arguеd that the totality of the circumstances supported the notion that the officers had reasonable suspicion of criminal activity to initiate the stop of appellant and the others in the vehicle. First, the state relied upon the fact that the stop occurred in a high crime area, and referenced the testimony that the Wayne Lot is “one of the most dangerous places in the city of Toledo.” Second, the state pointed to the fact that each of the officers who testified indicated that extensive
{¶ 19} Upon hearing the arguments of the parties, the trial court rendered its decision on appellant‘s motion to suppress from the bench. The court found that the state established reasonable susрicion based upon the expertise of the officers, their knowledge of an ongoing gang war, their observation of open container violations and the odor of burnt marijuana, the high crime nature of the Wayne Lot area, and appellant‘s refusal to exit the vehicle upon command. In light of these factors, and upon finding that officer safety concerns justified the police in ordering appellant out of the vehicle, the trial court denied appellant‘s motion to suppress from the bench. The court issued a written decision summarily denying the motion to suppress on November 27, 2019.
{¶ 20} Thereafter, on December 5, 2019, appellant appeared before the trial court for a change of plea hearing, at which he entered a plea of no contest to the charges contained in the indictment. The trial court accepted appellant‘s plea, found him guilty of the charges, and continued the matter for sentencing.
B. Assignment of Error
{¶ 22} On appeal, appellant assigns the following error for our review:
The Trial Court erred in denying Appellant‘s Motion to Suppress when the officer lacked a reasonable and articulable suspicion to justify the stop and detention of Appellant in violation of the Fourth and Fourteenth Amendments and
Article I, Section 14 of the Ohio Constitution .
II. Analysis
{¶ 23} In his sole assignment of error, appellant arguеs that the trial court erred in denying his motion to suppress.
{¶ 24} Our review of the trial court‘s denial of appellant‘s motion to suppress “presents a mixed question of law and fact.” State v. Wesson, 137 Ohio St.3d 309, 2013-
{¶ 25} Here, appellant argues that the trial court should have granted his motion to suppress, because the discovery of a firearm on his person was the product of an investigatory detention that was not supported by reasonable suspicion and was thеrefore unconstitutional under the Fourth Amendment to the United States Constitution and
{¶ 26} “‘The U.S. Supreme Court has created three categories of police-citizen contact to identify the separate situations where constitutional guarantees are implicated: (1) consensual encounters, (2) investigative or ”Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)]” stops, and (3) arrests.‘” (Citations omitted.) State v. Williams, 6th Dist. Lucas No. L-17-1148, 2018-Ohio-5202, ¶ 20, quoting State v. Staten, 4th Dist. Athens No. 03CA1, 2003-Ohio-4592, ¶ 16. Here, the encounter between appellant and police falls into the category of an investigative Terry stop.
{¶ 27} In order to pass constitutional muster, an investigative stop must be premised upon an officer‘s reasonable, articulable suspicion of criminal activity. Bowling Green v. Murray, 6th Dist. Wood No. WD-18-045, 2019-Ohio-4285, ¶ 12, citing
{¶ 28} In analyzing suppression arguments challenging the propriety of investigative stops, courts must view the totality of the circumstances “through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.” State v. Freeman, 64 Ohio St.2d 291, 295, 414 N.E.2d 1044 (1980), quoting United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976). To be sure, an investigative stop cannot be “based on nothing more substantial than inarticulate hunches * * *.” Terry at 22. Rather, “before stopping a pеrson, the officers must have an objective basis for suspecting that that particular person was involved in the criminal activity. (Emphasis sic.) State v. Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622, 126 N.E.3d 1132, ¶ 26 (Donnelly, J., concurring), citing Cortez at 417-418 and Ybarra v. Illinois, 444 U.S. 85, 94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In determining whether or not the officer has a reasonable suspicion we look at the totality of the circumstances and not to any one factor. Andrews at 87.
{¶ 30} In its brief to this court (and in its arguments before the trial court at the suppression hearing), the state relies upon several factors that appear in the Ohio Supreme Court‘s decision in Andrews. The state claims that these factors provided officers with reasonable suspicion to conduct their investigative stop of the vehicle and its passengers (including appellant). The factors cited by the state include (1) the high crime area in which the Wayne Lot is located, (2) the time of day of the encounter (approximately 2 a.m.), (3) the training and experience of the detaining officers, who were long-time members of the gang task force unit, and (4) appellant‘s suspicious conduct after he was ordered to exit the vehicle.
{¶ 31} As noted, the factors relied upon the by the state were previously used to justify an investigative stop in the Ohio Supreme Court‘s decision in Andrews. Id. at ¶ 88; see also State v. Williams, 6th Dist. Lucas No. L-17-1148, 2018-Ohio-5202 (examining the foregoing factors in the context of a reasonable suspicion analysis). However, as set forth below, we find that one of the factors articulated by the Ohio Supreme Court in Andrews (suspicious activity of the defendant) is not supported by any
{¶ 32} Initially, we reject the state‘s reliance upon appellant‘s allegedly suspicious activity after he was ordered to exit the vehicle. In Andrews, the suspicious activity occurred prior to the stop. Specifically, the officer observed the defendant running away from the police cruiser, and when the defendant saw the officer he suddenly stopped and threw down what he was carrying in his hand. Id.
{¶ 33} By contrast, appellant‘s activity occurred after the investigative stop was already underway. The investigative stop began, and appellant was detained, at the moment he was ordered out of the car. State v. Johnson, 8th Dist. Cuyahoga No. 92540, 2009-Ohio-5377, ¶ 22. Logically, appellant‘s conduct in responding to the officers’ orders to exit the vehicle could not form the basis for the officers to approach the vehicle and initiate the stop in the first place. Unlike the defendant‘s prior conduct in Andrews, which could give rise to a reasonable suspicion of criminal activity, appellant‘s actions in response to the officers’ commands, whether suspicious or not, are irrelevant to the question of whether the investigative stop in this case was supported by reasonable suspicion.
{¶ 34} Turning to the remaining factors, we agree with the state that the testimony provided at the suppression hearing established that the stop was initiated by experienced
{¶ 35} According to Stachura and the other officers, a large crowd of individuals were gathered at the Wayne Lot upon his arrival on the scene. Some of these individuals were openly consuming alcohol, but appellant and the other occupants of the vehicle were not. Further, there was an odor of burnt marijuana in the air, but none of the officers testified that it was emanating from the vehicle, and the officers acknowledged that they did not see the vehicle‘s occupants using marijuana.
{¶ 36} Rather than limit their encounter to the individuals who were engaged in criminal аctivity, Stachura decided to “make a stop on everybody” so that he could “find
Notes
{¶ 37} This testimony is revealing, because it demonstrates that officers lacked any particularized suspicion that the occupants of the vehicle (including appellant) were engaged in, or about to be engaged in, any criminal activity. In essence, the investigative stop at issue here was premised upon officers’ knowledge of historical criminal activity in this high crime area, and observations of conduct of other individuals outside the vehicle, not any observations specific to appellant or the other occupants of the vehicle. Moreover, despite extensive testimony as to the prevalence of gang activity in this area generally, there was no evidence adduced by the state at the suppression hearing to suggest that gang activity was underway at the Wayne Lot at the time of appellant‘s detention, and officers did not testify that appellant or any of the occupants of the vehicle were engaged in gang activity.
{¶ 38} The record below establishes that (1) the Wayne Lot is a high crime area in the city of Toledo and (2) other individuals in the parking lot were engaged in illegal activity.2 In State v. Carter, 69 Ohio St.3d 57, 630 N.E.2d 355 (1994), the Ohio Supreme
{¶ 40} Were we to hold otherwise, we would obliterate the particularization requirement set forth in Terry and its progeny, and establish an “unwise precedent that a police officer may conduct an investigative stop of any person present in a so-called ‘high crime’ area * * *, without any specific and articulable facts pointing more directly to that
{¶ 41} Having found that officers lacked reasonable suspicion to initiate the investigative stop of appellant, it follows that the firearm discovered during the investigative stop should have been suppressed as “fruits of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The trial court erred in denying appellant‘s motion to suppress such evidence, and we therefore find appellant‘s sole assignment of error well-taken.
III. Conclusion
{¶ 42} In light of the foregoing, the judgment of the Lucas County Court of Common Pleas denying appellant‘s motion to suppress is reversed, and this matter is remanded to the trial court for further proceedings consistent with this decision. Pursuant to App.R. 24, appellee is hereby ordered to pay the costs incurred on appeal.
Judgment reversed, and remanded.
Christine E. Mayle, J.
Gene A. Zmuda, P.J.
CONCUR.
Myron C. Duhart, J.
DISSENTS AND WRITES SEPARATELY.
JUDGE
JUDGE
{¶ 43} I respectfully dissent from the majority‘s opinion reversing the trial court‘s denial of Mosby‘s motion to suрpress. I conclude that the facts as articulated do not accurately reflect the reality of the situation with which officers were faced, and, therefore, led to a faulty analysis and result in this case.
{¶ 44} While the majority acknowledges that there was evidence of “over 20 reports involving firearms or shots fired” in the area around the Wayne Lot during the three month‘s preceding appellant‘s arrest, they seem to ignore specific evidence of a recent report, from August 10, 2019, of an incident during which some 40 people who had gathered in the Wayne Lot were fighting. They also fail to mention a report from August 15, 2019 -- the night before appellant‘s arrest in this matter -- of an incident during which a large group of individuаls were loitering at the Wayne Lot and then fled, after which police recovered a firearm on the tire of a vehicle. As testified to by the officers, the Greenbelt Apartments/Wayne Lot area was a high crime area that officers responded to frequently in the summer of 2019.
{¶ 45} Although the majority acknowledges: (1) that the area in question was a high crime area, (2) that people gathered in the area with appellant -- at 2:00 a.m. -- were openly consuming alcohol, and (3) that there was the odor of burnt marijuana in the air, they largely fail to tie these facts to the officer‘s treatment of appellant. The scene of the arrest was not just a high crime area; it was a high crime area in which a сrowd was gathered and where yet-to-be-identified individuals in that crowd were unquestionably
{¶ 46} When the majority states that “the investigative stop * * * was premised upon officers’ knowledge of historical criminal activity in this high crime area, and observations of conduct of other individuals outside the vehicle, [and] not any observations specific to appellant or the other occupants of the vehicle,” they erroneously isolate appellant, his behavior, and his treatment, on the night in question from highly relevant surrounding circumstances. The circumstances of this case involve more than appellant‘s “mere proximity” to others engaging in illegal activity. Because appellant was a part of the crowd in which as-yet-unidentified members were engaged in illegal activity, and because the crowd was located in an area where crowds were frequently and recently the source of violence and illegal firearms, officers had a reasonable basis to suspect that appellant, himself, wаs involved in criminal activity.
{¶ 47} Sgt. Stachura testified that when the 2:00 a.m. detention of appellant occurred, appellant was seated in the back seat of a vehicle that was surrounded by loitering individuals. He further testified that appellant was asked to exit the vehicle for officer safety, because it was difficult to see appellant‘s hands or any weapons he may have possessed. Given the circumstances, I believe that the officers’ precaution in this
{¶ 48} In sum, the chain of events that led to appellant being taken out of the car should be viewed in its totality, as a continuum of suspicion, where each circumstance reasonably increased the officers’ level of suspicion. In so doing, I conclude that evidence of appellant‘s suspicious conduct as described by the officers clearly favors a finding of rеasonable, articulable suspicion. Likewise, I believe the majority errs in limiting the focus of its analysis to the narrow question of whether criminal activity may or may not have been occurring inside the vehicle at the precise time that the officers approached, apparently giving little or no weight to the totality of the circumstances that brought appellant to the attention of the officers in the first place.