State v. RossState v. Ross
Robert C. Nemo for Appellant
Matthew Frericks for Appellee
{¶1} Defendant-appellant, William T. Ross (“Ross“), appeals the July 21, 2014 judgment entry of sentence of the Marion County Court of Common Pleas. He argues that the trial court erred in denying his motion to suppress. For the reasons that follow, we affirm.
{¶2} On March 5, 2014, the Marion County Grand Jury indicted Ross on one count of possession of cocaine in violation of
{¶3} On March 10, 2014, Ross appeared for arraignment and entered a plea of not guilty. (Doc. No. 7).
{¶4} On March 25, 2014, Ross filed a motion to suppress, arguing that the “arresting officer lacked sufficient grounds to stop” him and that “the arresting officer, even if he had a right to conduct a weapons search, thereafter, conducted a search of [Ross‘s] body without a warrant and without [Ross‘s] consent.” (Doc.
{¶5} After a hearing on April 28, 2014, the trial court overruled Ross‘s motion to suppress on May 15, 2014. (Doc. No. 31).
{¶6} On May 23, 2014, Ross withdrew his not-guilty plea and entered a no-contest plea to the indictment. (Doc. No. 33). On July 21, 2014, the trial court accepted Ross‘s no-contest plea, found him guilty as to the indictment, and sentenced Ross to two years of community control. (July 21, 2014 JE, Doc. No. 36).
{¶7} Ross filed his notice of appeal on August 15, 2014. (Doc. No. 50). He raises one assignment of error for our review.
Assignment of Error
The trial court erred when it denied Appellant‘s motion to suppress.
{¶8} In his sole assignment of error, Ross argues that the trial court erred in overruling his motion to suppress. Specifically, Ross argues that Officer Gosnell did not have reasonable suspicion to conduct a Terry stop and frisk of Ross. Ross further argues that even if the Terry stop was lawful, Officer Gosnell‘s pat-down search of Ross exceeded the scope of a Terry stop and frisk.
{¶9} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress, deference is given to the trial court‘s findings of fact so long as they are supported by competent, credible evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court‘s conclusions of law, however, our standard of review is de novo; and therefore, we must decide whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).
{¶10} At the suppression hearing, Officer Gosnell testified that he has been a police officer with the Marion City Police Department for 12 years. (Apr. 28, 2014 Tr. at 4). Officer Gosnell testified that he was dispatched to 182 West Columbia Street at 3:30 a.m. on March 2, 2014 after the Marion City Police Department received a 911 call reporting a fight with a gun at that location. (Id. at 5, 28). When Officer Gosnell arrived at the scene, other law enforcement officers had already stopped two vehicles. (Id. at 5-6). Officer Gosnell provided backup for one of the stopped vehicles. (Id. at 6). As Officer Gosnell was approaching the passenger-side window of that vehicle, he testified that he observed a man, whom he was “99.9% sure who he was” exit a silver Cadillac that was parked in a parking lot adjacent to 182 West Columbia Street, where criminal activity was
{¶11} According to Officer Gosnell, because the law enforcement officers were not “sure who had a gun, if there was a gun, [or] where the gun was,” he instructed Ross to stop so that he could continue his search for the gun. (Id. at 7-8). Ross stopped and returned to the silver Cadillac at Officer Gosnell‘s instruction. (Id. at 8). At the back of the silver Cadillac, Officer Gosnell “frisked [Ross] for weapons.” (Id.). While Officer Gosnell did not locate any weapons on Ross, he felt “some kind of lump in his watch pocket of his pants he was wearing” and “heard the crackling of cellophane.” (Id. at 8). Officer Gosnell stated, “from my experience being on the street most – a lot of times people who use and/or carry drugs will carry them in cellophane, like for instance a cigarette wrapper or something like that. And they commonly put it in that pocket because of the fact it doesn‘t fall out, it‘s small.” (Id.). Officer Gosnell testified that he did not manipulate the cellophane bindle, “just felt it as [he] was running [his] hand up” and heard the noise from the cellophane. (Id.).
{¶12} Officer Gosnell asked Ross “what it was” and Ross responded that “he wasn‘t sure.” (Id. at 8-9). At that point, Officer Gosnell asked Ross if he minded if Officer Gosnell removed the cellophane bindle from his pants, to which
{¶13} On cross-examination, Officer Gosnell testified that he instructed Ross to stop because he knew that Ross was going to enter 182 West Columbia Street since he was walking up “a little rise that leads to [the house], where the front porch area is for that building.” (Id. at 13). According to Officer Gosnell, he “wanted to find out what his purpose of going towards the house was.” (Id.). At the time that Officer Gosnell instructed Ross to stop walking toward the house and return to the silver Cadillac, Officer Gosnell testified that Ross was not free to continue walking away because Officer Gosnell wanted to “check him for weapons” since “he was walking toward the front of the house and [law enforcement officers] were not sure who and/or if a weapon at that point was still in that area.” (Id. at 19-20).
{¶14} Officer Gosnell testified that he recognized Ross “[f]rom previous dealings” with him related to drugs. (Id. at 14). However, Officer Gosnell testified that he could not “be a hundred percent sure” whether any of his previous dealings with Ross involved weapons. (Id.). He testified, “A lot of the time guns and drugs go hand in hand.” (Id. at 24). In response to whether Officer Gosnell wanted to “check” Ross for weapons because he recognized him from his prior
[I]t was the fact that we – like I said we did not know – we had very little preliminary information at that point in time. As I‘m approaching the other vehicle he comes out of his vehicle and starts making a move towards the front of the [house] where we had just had this supposed fight with a possible gun.
(Id. at 15).
{¶15} However, Officer Gosnell testified that prior to searching Ross, he was advised that the person that could have the gun was a subject with the last name of “Anderson.” (Id. at 16). Nonetheless, Officer Gosnell confirmed that his search of Ross “was more of an officer safety issue. We had two cars occupied by numerous subjects and two officers at that point available for the two vehicles, and the subjects that we were trying to figure out what was going on from.” (Id. at 17). Officer Gosnell also confirmed that Ross consented to Officer Gosnell removing the cellophane bindle from his pocket. (Id. at 25).
{¶17} On redirect-examination, Officer Gosnell testified that, because there was not a lot of “foot traffic” in that area at that time of the morning, “we had reason to believe at that point pulling up that anyone in that area could have likely been involved in this.” (Id. at 29). He testified that the Marion City Police Department takes all reports involving guns seriously. (Id.). Regarding the report that “Anderson” was the last name of the subject possessing the gun, Officer Gosnell testified that he did not recall whether that information was relayed to him by dispatch or “mentioned after the fact.” (Id.). Nonetheless, Officer Gosnell testified, “We would check anyone for the pure and simple fact that a gun is so easily handed off to different people. Obviously we weren‘t there the whole time so we wouldn‘t know if the gun could have been passed off to another individual.” (Id. at 30).
{¶18} The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution generally prohibit warrantless searches and seizures, and any evidence that is obtained during an unlawful search or seizure will be excluded from being used against the defendant. State v. Steinbrunner, 3d Dist. Auglaize No. 2-11-27, 2012-Ohio-2358, ¶ 12, citing Mapp v. Ohio, 367 U.S. 643, 649 (1961). An investigative stop, or Terry stop, is a common exception to the Fourth Amendment warrant requirement. State v. Morlock, 3d Dist. Allen No. 1-12-21, 2013-Ohio-641, ¶ 22, citing Terry v. Ohio, 392 U.S. 1 (1968). “Because the ‘balance between the public interest and the individual‘s right to personal security’ tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer‘s action is supported by reasonable, articulable suspicion to believe that criminal activity ‘may be afoot.‘” State v. Shepherd, 5th Dist. Coshocton Nos. 2014CA0003 and 2014CA0009, 2014-Ohio-4611, ¶ 19, quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) and United States v. Sokolow, 490 U.S. 1, 7 (1989). “In Terry, the Supreme Court held that a police officer may stop an individual if the officer has a reasonable suspicion based upon specific and articulable facts that criminal behavior has occurred or is imminent.” Shepherd at ¶ 19, citing State v. Chatton, 11 Ohio St.3d 59, 61 (1984). “Reasonable articulable suspicion exists when there are ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.‘” State v. Klose, 3d Dist. Hancock No. 5-10-12, 2010-Ohio-5674, ¶ 19, quoting State v. Stephenson, 3d Dist. Union No. 14-04-08, 2004-Ohio-5102, ¶ 16, quoting State v. Bobo, 37 Ohio St.3d 177, 178 (1988).
{¶20} “In determining whether reasonable articulable suspicion exists, a reviewing court must look to the totality of the circumstances.” Steinbrunner, 2012-Ohio-2358, at ¶ 14, citing State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991). “Under this analysis, a court should consider ‘both the content of the information possessed by police and its degree of reliability.‘” Id., citing Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999), quoting Alabama v. White, 496 U.S. 325, 330 (1990). “A police officer‘s testimony alone is sufficient to establish reasonable articulable suspicion for a stop.” State v. McClellan, 3d Dist. Allen No. 1-09-21, 2010-Ohio-314, ¶ 38, citing State v. Claiborne, 2d Dist. Montgomery No. 19060, 2002-Ohio-2696.
{¶21} Based on the totality of the circumstances of this case, Officer Gosnell had reasonable suspicion to stop Ross and conduct a pat-down search of him for the gun. Officer Gosnell was informed through a Marion City Police Department dispatch that there was an altercation involving a gun at 182 West Columbia Street. “An officer does not have to have personally observed a traffic violation or criminal activity to justify detaining someone; rather, an officer can rely on information transmitted to him through a dispatch or a flyer.” Steinbrunner at ¶ 15, citing Maumee at 297, citing United States v. Hensley, 469 U.S. 221, 231 (1985). “‘A telephone tip can, by itself, create reasonable suspicion justifying an investigatory stop where the tip has sufficient indicia of reliability.‘” Id., citing Maumee at paragraph two of the syllabus.
[T]he admissibility of the evidence uncovered during * * * a stop does not rest upon whether the officers relying upon a dispatch or a flyer “were themselves aware of the specific facts which led their colleagues to seek assistance.” It turns instead upon “whether the officers who issued the flyer” or dispatch possessed reasonable suspicion to make the stop.
(Emphasis sic.) Id., quoting Maumee at 297, quoting Hensley at 231.
{¶23} First, the content of the tip relayed information that criminal behavior occurred or was imminent. That is, unlike an anonymous tip of a suspicious individual or vehicle, the tip relayed that a gun was involved in an altercation within the vicinity of 182 West Columbia Street. Compare Shepherd at ¶ 25 (anonymous tip of suspicious blue van in driveway does not support a reasonable suspicion of criminal activity); State v. Anderson, 11th Dist. Geauga No. 2003-G-2540, 2004-Ohio-3192, ¶ 13 (anonymous tip of a suspicious vehicle, absent any observation of criminal activity, does not support a reasonable suspicion of criminal activity); City of Bowling Green v. Tomor, 6th Dist. Wood No. WD-02-012, 2002-Ohio-6366, ¶ 11 (anonymous tip of a suspicious vehicle coupled with the time of night and an officer‘s knowledge of break-ins in the neighborhood does not rise to the level of reasonable suspicion).
{¶25} Aside from that, Officer Gosnell testified that he was “99.9% sure” of Ross‘s identity and was aware that Ross was previously involved in drug-related activity based on his prior experience with him. (Id. at 7). Officer Gosnell
{¶26} Moreover, while Officer Gosnell testified that he learned that the subject with the gun had the last name of “Anderson,” he described that the gun could have easily been “passed off” by that individual to another individual at the scene. As a result, Officer Gosnell was acting diligently when he stopped and frisked Ross under the circumstances enumerated above. In addition, that Officer Gosnell testified that it was later discovered that the anonymous tipster did not see a gun or hear gunfire, is inconsequential to the outcome of this case.
{¶28} In conducting his pat-down search of Ross, Officer Gosnell testified that he did not manipulate the cellophane bindle; rather, he averred that he simply felt it and heard the crinkle of the cellophane as he ran his hand over it during his frisk of Ross. Officer Gosnell testified that, when he felt the cellophane bindle and heard it crinkle, he asked Ross what it was to which Ross responded that he did not know. However, Officer Gosnell testified that he knew from his experience that people carry drugs in cellophane in the watch pocket of pants. Even so, Officer Gosnell did not at that time seize the cellophane bindle from Ross. Thus, Officer Gosnell‘s pat-down search of Ross did not exceed the scope permitted under Terry.
{¶29} Once Officer Gosnell completed his Terry stop and frisk of Ross, Ross consented to Officer Gosnell removing the cellophane bindle from his pocket. Officer Gosnell testified that he asked Ross for his permission to remove the cellphone bindle and Ross consented to Officer Gosnell removing the
{¶30} As such, the trial court did not err in overruling Ross‘s motion to suppress.
{¶31} Ross‘s assignment of error is, therefore, overruled.
{¶32} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
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