State v. ParrishState v. Parrish
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 21, 2023
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Carl M. Felice, Assistant Prosecuting Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and Michael V. Wilhelm, Assistant Public Defender, for appellee.
EMANUELLA D. GROVES, J.:
{¶ 1} The state of Ohio appeals the trial court‘s judgment granting defendant-appellee, Cortez Parrish‘s (“Parrish“) motion to suppress evidence. For the reasons that follow, we affirm.
{¶ 2} On September 9, 2021, Parrish was indicted on Count 1, having weapons while under disability, a third-degree felony (F3), and Count 2 carrying concealed weapons, a fourth-degree felony (F4). On December 7, 2021, Parrish filed a motion to suppress evidence, which was heard on July 21, 2022.
{¶ 3} The state‘s sole witness was Patrol Officer Carolyn Field, (“Field“) of the Cuyahoga Metropolitan Housing Authority Police Department. Field testified that on August 20, 2021, while patrolling Cedar Estates at approximately 11:23 p.m., she observed, from across the street, 15 or 20 men, including Parrish, participating in a dice game.
{¶ 4} Field called for backup and waited in her parked vehicle. Field testified that upon approaching the group with backup, the men scattered. Parrish, wearing a black shirt, was seen moving away from the group towards the basketball courts. Field stated Parrish was the focus of the investigation because he was part of the gambling group, he had his hand on his waistband, and he headed away from officers once he saw them. Field did not detain Parrish nor find any weapons. Parrish was detained by Officers Vidal and Jochum and placed in cuffs, while Field and other officers searched for weapons. The discovery of firearms along Parrish‘s route ultimately led to his arrest. Parrish was subsequently charged with having weapons while under disability and carrying concealed weapons. After Parrish was arrested, he admitted to Field that one gun belonged to him. Parrish filed a motion to suppress the weapons and his statements.
[Defense Attorney]: Your Honor, I would object to anything beyond this point being shown to the trier of fact as potentially prejudicial. From this point on, he just incriminates himself, I believe, and starts confessing to things, and it has nothing to do with why we‘re here for a motion to suppress.
* * *
The Court: All right. I‘ll sustain the objection.
(Tr. 24, 26.)
{¶ 6} The trial court granted Parrish‘s motion to suppress on September 22, 2022. The state appeals the trial court‘s judgment raising one assignment of error.
Assignment of Error
The trial court erred when it granted appellee‘s motion to suppress.
Standard of Review and
{¶ 7} An appellate review of a motion to suppress ruling involves a mixed question of fact and law. State v. Harrison, 166 Ohio St.3d 479, 2021-Ohio-4465, 187 N.E.3d 510, ¶ 11. A reviewing court must accept the trial court‘s findings of fact when they are supported by competent, credible evidence; however, questions of law are reviewed de novo without consideration of the lower court‘s legal conclusion. Id., citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
{¶ 8} As a preliminary matter, it is undisputed that the trial court did not state its findings of fact on the record, as required by
{¶ 9} “[A] trial court‘s failure to provide its ‘essential findings’ on the record in a case may not be fatal to a review of the trial court‘s ruling on the motion when the record provides a sufficient basis to review appellant‘s assignments of error.” Bedford v. Clarke, 8th Dist. Cuyahoga No. 95594, 2011-Ohio-941, ¶ 8, citing State v. Bennett, 8th Dist. Cuyahoga No. 86962, 2006-Ohio-4274, ¶ 16; S. Euclid v. Njoku, 2022-Ohio-4388, 203 N.E.3d 147, ¶ 47 (8th Dist.).
Law and Analysis
{¶ 11} 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. The Fourth Amendment declares:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
USCS Const. Amendment Four .
{¶ 12} Evidence obtained by the state in violation of the Fourth Amendment must be suppressed and prohibited from use by the state in its criminal prosecution of the person from whom it was seized, as the fruit of the poisonous tree. State v. Boulis, 8th Dist. Cuyahoga No. 86885, 2006-Ohio-3693, ¶ 22. The nature and quality of the intrusion on an individual‘s Fourth Amendment interests must be balanced against the governmental interests alleged to justify the intrusion. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1, (1985). “The purpose of suppression is not to vindicate the rights of the accused person, who may very well have engaged in illegal conduct, but to deter the state from such acts in the future.” State v. Stagger, 8th Dist. Cuyahoga No. 85617, 2005-Ohio-4586, ¶ 11.
{¶ 13} An individual‘s detention, without a warrant, must be based on reasonable and articulable suspicion that the person being detained is directly involved or about to engage in criminal activity. State v. Jones, 8th Dist. Cuyahoga No. 100300, 2014-Ohio-2763, ¶ 21. Here, Field testified that she initiated the investigatory stop of Parrish because he was part of a group of 15 or 20 men she believed were gambling. Field observed them gathered in a circle, crouching down one by one to throw what appeared to be dice and or money in the courtyard. Field could not remember if Parrish was running or walking toward the basketball courts after seeing officers but stated he headed away from officers while holding his side. Field said this was indicative of an individual carrying a weapon. As a result of this observation, Parrish became a subject of investigation.
{¶ 14} Interactions between police and individuals can fall into three distinct categories: 1) a consensual encounter, 2) an investigative detention, or 3) an arrest. State v. Thomas, 2d Dist. Montgomery No. 23979, 2011-Ohio-1292, ¶ 9. The state argues that Parrish was detained for an investigatory stop because Field suspected he was gambling.
{¶ 15} An investigative stop is a warrantless search and seizure that is violative of the Fourth Amendment and Ohio law unless it falls under one of the well-established exceptions. See Katz v. United States, 389 U.S. 347, 19 L.Ed.2d
[Defense Attorney]: If you see a group of — focus on this evening in question - of 15 to 20 black males and you observe that some of them may be gambling, does that give you a right to arrest all 15 to 20 of them?
Field: It gives you the right to detain them for further investigation.
[Defense Attorney]: That‘s your testimony? You believe that‘s the law?
Field: To then find out if there is more to the commission of the crime.
[Defense Attorney]: Commission of the gambling crime, right. So when you approached, you and the other officers approached the defendant, did you see any gambling paraphernalia?
Field: I did not detain him at first, no.
[Defense Attorney]: Did you see any dice?
Field: Again, I was not the first one to detain him.
{¶ 16} Given Field‘s testimony of her observations leading to Parrish‘s detainment, reasonable articulable suspicion was established for an investigatory stop for gambling. Now, our analysis requires additional evidence to justify further detainment and or arrest. The continued detention after the purpose for the original stop has ended constitutes an illegal seizure where there are no articulable facts that give rise to further suspicion of illegal activity. State v. Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d 762 (1997). A thorough review of the record reveals Field observed Parrish holding his side as he was headed away from officers. She acknowledged that Parrish was doing nothing illegal as he headed toward the basketball courts. However, she could not remember if he walked or ran when officers approached. She did not note either in her report. If Parrish had run after seeing officers, while not illegal, running is one consideration justifying an investigatory stop under the totality of circumstances. State v. Banks, 10th Dist. Franklin No. 09AP-1087, 2010-Ohio-5714, ¶ 43-44. Field did not have any contact with Parrish until after the guns were found and Parrish was formally arrested for
{¶ 17} In Glaspie, the trial court‘s denial of a motion to suppress evidence was reversed because “there was no valid arrest preceding the search nor any recitation of facts that would draw the police action within the ring of protection against a claim of an unlawful search.” Cincinnati v. Glaspie, 1st Dist. Hamilton No. C-74139,
In any event, the court did hear testimony that day and has had more than ample time to reflect on it, and, you know, the court is in a generous mood. The court is going to grant the motion to suppress, All right?
{¶ 18} The state contends the statement demonstrates the trial court‘s failure to consider the “reasonable articulated suspicion standard.” We find the state‘s argument unpersuasive. In response to the state‘s argument that the court‘s statement demonstrated a lack of consideration of the appropriate standard, we note that the record reflects the trial court‘s careful consideration of the appropriate legal standard.
{¶ 19} The court stated that it had ample time to reflect on the testimony. “[A] trial judge is presumed to know the applicable law and apply it accordingly.” State v. Thacker, 4th Dist. Lawrence No. 04CA12, 2005-Ohio-1057, ¶ 19. More importantly, during the suppression hearing, the court asked questions that indicated considerations of the appropriate legal standard. During oral argument, the court considered arguments from the defense attorney concerning reasonable suspicion.
[Defense Attorney]: The length of time has nothing to do with the constitutionality of the suppression or the evidence that‘s found. It‘s whether or not there is reasonable suspicion of a crime is the only standard we‘re worried about here. So if the reasonable suspicion has not happened by the time he‘s been handcuffed, they can‘t develop it after the fact.
The Court: That‘s a good point.
(Tr. 26.)
{¶ 21} Finally, this lead opinion would be remiss if it failed to address the dissent opinion. The dissent opines the gun and statement were secured legally. However, it fails to identify how the prohibited evidence is drawn within the ring of protection against an unlawful seizure. The mere presence of the guns along the path, absent facts connecting Parrish to them, is insufficient to eliminate the protection against unreasonable searches. Notably, Field testified that Officers Vidal and Jochum arrested Parrish (tr. 36.) before she encountered him in the police car. Nonetheless, the dissent relies upon Parrish‘s post-arrest statement to establish probable cause. Otherwise, there is nothing to connect Parrish to the gun.
{¶ 22} The judgment of the trial court is 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.
EMANUELLA D. GROVES, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS IN JUDGMENT ONLY; LISA B. FORBES, J., DISSENTS (WITH SEPARATE OPINION)
LISA B. FORBES, J., DISSENTING:
{¶ 23} I respectfully dissent from the lead opinion affirming the trial court‘s judgment entry granting Parrish‘s motion to suppress evidence. I agree with the lead opinion‘s conclusion that a “reasonable articulable suspicion was established for an investigatory stop” and detainment of Parrish. I further agree with the lead opinion‘s conclusion that the responding police officers “had a reasonable belief that Parrish had a weapon because he was holding his side * * *.” However, while the lead opinion finds that the sole alleged criminal activity in this case was gambling, I would find that the CMHA officers involved in this case also had a reasonable, articulable suspicion that Parrish was carrying a concealed weapon,1 which was illegal at the time of Parrish‘s detainment.2
{¶ 25} In the case at hand, Parrish‘s detainment was memorialized by body-camera footage from one of the officers who apprehended him, which was played at the suppression hearing. This footage clearly shows that the officers on scene asked Parrish, who was in handcuffs and being detained for suspicion of gambling and carrying a concealed weapon, what his name and social security number were. Immediately after Parrish gave the police his social security number, an officer said over the police radio, “Got the firearm” and “Got two and marijuana.” The guns and marijuana were found on the ground approximately two minutes after the police detained Parrish. Officer Field testified that she “observed the [firearms and
{¶ 26} A second body-camera video was presented at the suppression hearing. This video, which was timestamped approximately 13 minutes after the police recovered the firearms and marijuana, showed Officer Field informing Parrish of his Miranda rights while he was in the back of a police car. Officer Field testified that she interviewed Parrish after advising him of his rights. In this second video, Officer Field asked Parrish about the guns, inquiring “Are those yours, man? * * * The guns we found in your exact track * * * next to your weed?” Another police officer asked Parrish, “Which one is yours? The Glock or the other one?” Parrish responded, “XD9,” which matches the description of the Springfield XD9 recovered from the scene.
{¶ 27} I disagree with the lead opinion‘s statement in this case that Officer “Field testified that Officers Vidal and Jochum arrested Parrish before she encountered him in the police car.” Rather, Officer Field testified that Parrish “was placed under arrest after being Mirandized and after we located all of the firearms.” Officer Field further testified about Parrish‘s arrest as follows:
Q: Officer Field, who arrested [Parrish] that night?
A: It would be Officer Vidal and Officer Jochum.
Q: Who Mirandized him?
A: I did.
[Videotape played in open court]
Q: Did you hear an interaction between yourself and [Parrish]?
A: Yes.
Q: What were you doing?
A: I was Mirandizing him.
Q: What did you do after that?
A: I then interviewed him after he was Mirandized.
{¶ 28} Other than Officer Field‘s testimony quoted above, there is nothing in the record regarding the precise timeline of Parrish‘s arrest.
{¶ 29} Furthermore, I also disagree with the lead opinion‘s statement that this dissent “relies upon Parrish‘s post-arrest statement to establish probable cause.” Rather, this dissent concludes that, as officers were approaching Parrish to investigate suspected illegal gambling, a reasonable, articulable suspicion arose that Parrish was illegally carrying a concealed weapon. Approximately two minutes later, two weapons were found on the ground in Parrish‘s path of travel. The reasonable, articulable suspicion that Parrish was carrying a concealed weapon arose well before he voluntarily admitted that one of the weapons belonged to him.
{¶ 30} I would find that the investigatory stop and detainment of Parrish did not violate his Fourth Amendment right to be free from unreasonable searches and seizures. Police detained Parrish to investigate their reasonable articulable suspicion that Parrish had been gambling and carrying a concealed weapon. During this brief investigation, the police recovered two firearms on the ground within