State v. TaylorState v. Taylor
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-502326
RELEASED: November 5, 2009
JOURNALIZED:
Sean F. Kelleher
5909-B State Road
Parma, OH 44134
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: James Hofelich
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, Dartanone Taylor (“Taylor“), appeals his conviction for carrying a concealed weapon. Finding no merit to the appeal, we affirm.
{¶ 2} This case arose in October 2007, when Taylor was charged with carrying a concealed weapon. In July 2008, he moved to suppress evidence of the gun that police found on his person. After a hearing on the issue, the trial court denied the motion to suppress, and Taylor pled no contest to the charge. The trial court sentenced him to two years of community control sanctions.
{¶ 3} Taylor appeals, arguing in his sole assignment of error that the court erred in denying his motion to suppress. He claims that the gun was the fruit of an illegal stop because the arresting officers lacked reasonable suspicion that he was engaged in criminal activity when they stopped him.
{¶ 4} The following facts underlie this appeal. On the night of September 19, 2007, Detective Stephanie Murphy (“Murphy“) was working undercover performing “gun suppression duty.” She had parked her undercover vehicle near the intersection of Euclid Avenue and Reyburn Road, in a high-crime area known for drug and prostitution activities. It was a clear night with good visibility, and for five minutes, Murphy observed Taylor and another man from across Euclid Avenue, a four-lane street. The two
Standard of Review
{¶ 5} The Ohio Supreme Court explained the standard of review for a motion to suppress in State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8:
“Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d 706, 707, 707 N.E.2d 539.”
{¶ 6} The Fourth Amendment to the United States Constitution prohibits warrantless searches and seizures, with some exceptions. Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. In Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the United States Supreme Court established one such exception, holding that a law enforcement officer may briefly detain an individual when he or she has reasonable and articulable suspicion that the individual may be engaged in criminal activity. A mere hunch or after-acquired facts cannot justify a Terry stop. Id.; Brown v. Texas (1979), 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357. In determining the lawfulness of the stop, a court must consider the totality of the circumstances, “viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Andrews (1990), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271. Evidence that law enforcement officers obtain from a stop that violates the Fourth Amendment must be excluded from evidence as “fruit of the poisonous tree.” Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Mapp v. Ohio (1961), 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
{¶ 7} In the instant case, the arresting officers had reasonable and articulable suspicion that Taylor may have been engaged in criminal activity. At the suppression hearing, Murphy, the sole witness, testified that she observed the handle of a gun protruding from Taylor‘s waistband. The trial court found Murphy‘s testimony credible, and we accept the trial court‘s
{¶ 8} After observing the gun handle, Murphy formed a reasonable and articulable suspicion that Taylor might be engaged in criminal activity. Under Ohio law, only certain individuals may carry concealed weapons.
{¶ 9} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
_________________________________________________________
COLLEEN CONWAY COONEY, ADMINISTRATIVE JUDGE
MELODY J. STEWART, J., CONCURS (WITH SEPARATE OPINION);
KENNETH A. ROCCO, J., CONCURS IN JUDGMENT ONLY (SEE SEPARATE OPINION).
MELODY J. STEWART, J., CONCURRING:
{¶ 10} I agree with the majority‘s decision in this case. I write separately to address the circumstances surrounding Taylor‘s detention.
{¶ 11} The stop and frisk of Taylor were legal so long as the officers had a “reasonable suspicion” to believe that Taylor was illegally carrying a weapon. See Terry v. Ohio (1968), 392 U.S. 1. The undercover officer never actually saw a gun because what she saw was completely covered by Taylor‘s shirt. Nevertheless, the officer testified that, based on her training and experience, she saw what looked like the handle of a gun protruding from the waistband of Taylor‘s trousers. Unlike cases in which an officer sees a misshapen bulge in clothing or one pocket of a coat riding lower than another, the description of a gun handle provided a degree of specificity which led to a reasonable suspicion that Taylor was carrying a concealed weapon.
{¶ 13} A Terry stop is a brief investigatory detention, not an arrest. An “arrest” is a seizure, and a person has been “seized” within the meaning of the Fourth Amendment if, in view of all of the circumstances surrounding the incident, “a reasonable person would have believed that he was not free to leave.” Michigan v. Chesternut (1988), 486 U.S. 567, 573. Determining whether a seizure has occurred is a highly fact-bound inquiry, but the
{¶ 14} The record in this case reveals that after being informed of the undercover officer‘s observation, the responding officers approached Taylor with their weapons drawn and ordered him to the ground.2 No reasonable person would have believed that he was free to leave under these circumstances. The intrusive and coercive nature of this detention can only be characterized as a seizure.
{¶ 16} Weapons drawn on a suspect is highly intrusive and under certain circumstances will be tantamount to an arrest, but the mere use of weapons will not necessarily convert a stop into an arrest. United States v. Hardnett (C.A. 6, 1986), 804 F.2d 353, 357, citing United States v. Greene (C.A.9, 1986), 783 F.2d 1364, 1367, certiorari denied (1986), 476 U.S. 1185; United States v. White (C.A.D.C. 1981), 648 F.2d 29, 34, certiorari denied (1981), 454 U.S. 924. The police are generally permitted to effectuate a Terry stop with guns drawn when the circumstances surrounding the stop are such that their safety can reasonably be called into question.
{¶ 17} The police were “authorized to take such steps as were reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop.” United States v. Hensley (1985), 469 U.S. 221, 235. And although there may be some question whether the police ordered Taylor to the ground during the stop, that fact is immaterial as the courts have held that “the right to make an arrest or investigatory stop necessarily
{¶ 18} Determining what constitutes reasonable force during a Terry stop “is not capable of precise definition or mechanical application.” Bell v. Wolfish (1979), 441 U.S. 520, 559. The courts must, however, give “careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, supra, at 396-397. In no event, however, is the use of force per se justified — the police must show the circumstances giving rise to the use of force. See United States v. Ceballos (C.A.2, 1981), 654 F.2d 177 (finding police stop in which suspect vehicle was blocked and police approached vehicle with drawn guns was overly intrusive and constituted an arrest when there were no articulated facts that the suspect was armed or that warranted the use of force).
{¶ 19} When a Terry stop is predicated on the suspicion that a person might be concealing a firearm, the threat to an officer‘s safety is so manifestly obvious that the use of force is largely justified. In this case, the suspicion that Taylor might be concealing a gun was more than conjecture — the undercover officer saw the shape of a gun handle, not just an amorphous
{¶ 20} The degree of intrusion into a suspect‘s personal safety must be in direct proportion to the immediate danger of officer harm. In light of the foregoing analysis, I conclude that the risk of officer harm in this case was sufficient to justify the degree of intrusion and consider the force used to be at the outer limit of what would be constitutionally acceptable.
KENNETH A. ROCCO, J., CONCURRING IN JUDGMENT ONLY:
{¶ 21} Because Ohio statutes allow persons with permits to carry concealed weapons, Detective Murphy did not have probable cause to arrest Taylor when she observed that Taylor had what appeared to be the handle of a gun protruding from his waistband. At most, the police could stop Taylor for further investigation pursuant to Terry. While I reluctantly agree that that is what the police did in this case, I write separately to emphasize that (1) the police conduct came dangerously close to the outside boundaries of an
{¶ 22} To approach Taylor with guns drawn and order him to the ground was an extreme means of protecting officer safety during an investigatory stop, even though the police knew that Taylor was carrying a weapon. Furthermore, once Taylor was immobilized on the ground, officer safety was assured for the duration of the encounter, making a “frisk” unnecessary for safety purposes. Therefore, I cannot agree with my colleagues that the search of Taylor‘s person was justified as a “frisk” for officer safety. However, the search of Taylor‘s person need not be justified as a “frisk” for officer safety, because it was justified as a search incident to arrest.
{¶ 23} Murphy‘s observation that Taylor had a weapon, combined with the fact that Taylor did not inform the officers that he had a permit and was carrying a concealed weapon, as required by
{¶ 24} Accordingly, I concur in judgment only.