State v. WaltonState v. Walton
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
OPINION
PIPER, P.J.
{1} Appellant, Marcquan Walton, appeals a decision of the Butler County Court of Common Pleas denying his motion to suppress evidence related to his convictions for trafficking in a fentanyl-related compound, possession of a fentanyl-related compound, and illegal possession of drug paraphernalia.
{2} Police received a call that a robbery occurred behind the U.S. Market in Hamilton, Ohio. The information obtained by police indicated that the robbery involved a
{3} Approximately 30 seconds after arriving at U.S. Market, and one block away from the market itself, the officers observed two African American males walking. One of the males, later identified as Walton, looked like a teenager. The sergeant asked Walton to raise his hands and then approached him. The sergeant asked Walton whether he had weapons or illegal items on his person, and Walton replied that he had marijuana in his pocket. Walton then reached for his right pocket, and the sergeant reminded him to keep his hands in the air. Even then, Walton reached again toward his right pocket.
{4} The sergeant and his partner performed a pat down of Walton and located marijuana, fentanyl, a digital scale, as well as approximately $2,300 in cash. Walton was indicted for trafficking and possession of a fentanyl-related compound, as well as possession of drug paraphernalia. Walton filed a motion to suppress, arguing that the police lacked reasonable articulable suspicion to stop him and that police lacked legal grounds to search his person. The trial court denied the motion, and Walton pled no contest to the charges. The trial court found Walton guilty, merged the allied offenses, and sentenced Walton to community control. Walton now appeals the trial court‘s denial of his motion to suppress, raising the following assignment of error:
{5} THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO SUPPRESS.
{6} Walton argues in his assignment of error that the trial court erred by denying his motion to suppress.
{7} Appellate review of a ruling on a motion to suppress presents a mixed
{8} This court is therefore bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Cyrek, 12th Dist. Butler No. CA2019-02-037, 2019-Ohio-4515, 9. “An appellate court, however, independently reviews the trial court‘s legal conclusions based on those facts and determines, without deference to the trial court‘s decision, whether as a matter of law, the facts satisfy the appropriate legal standard.” State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, 12.
{9} Both the
{10} Pursuant to Terry, a police officer may detain an individual without probable cause when the officer has reasonable suspicion based on specific, articulable facts, that criminal activity is afoot. Id. at 21. “An investigatory stop does not violate the
{11} Reasonable articulable suspicion is “something more than an undeveloped suspicion or hunch” but is less than the level of suspicion required for probable cause. State v. Hinkston, 12th Dist. Clermont No. CA2020-03-012, 2020-Ohio-6903, 18; United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581 (1989). “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. Hill, 12th Dist. Warren No. CA2015-05-044, 2015-Ohio-4655, 10.
{12} Reasonable and articulable suspicion is determined by evaluating the totality of the circumstances “through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Popp, 12th Dist. Butler No. CA2010-05-128, 2011-Ohio-791, 13. “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744 (2002).
{13} An assessment of the totality of the circumstances “does not deal with hard certainties, but with probabilities.” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, (1981). As such, this court will consider the cumulative facts “not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Id.
{14} After an officer makes a lawful Terry stop, the officer may conduct a limited protective search, or a pat down, for weapons if the officer has “reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Terry, 392 U.S. at 27; Popp at 12. “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably
{15} Based on the totality of the circumstances presented in the present case, we find that law enforcement had reasonable and articulable suspicion to effectuate a Terry stop on Walton in order to investigate the possibility of criminal activity and that the officers acted lawfully in conducting a protective pat down of Walton for weapons.
{16} At the time law enforcement encountered Walton, they had just received notice that a robbery occurred at the U.S. Market location and that such robbery involved a firearm. The officers encountered Walton within 30 seconds of arriving on the scene and only one block away from the reported location of the robbery. See State v. Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622 (finding Terry stop valid where the stop occurred “very close in time” and in location to where officers heard gunshots and appellant was the only person officers saw after they heard the shots).
{17} The officers were also told that a firearm was used in the commission of the robbery, which gave the sergeant reason to be on alert for weapons. The sergeant had been told that multiple African American teenagers were the perpetrators of the crime, and Walton matched the description of the suspects. While Walton was not accompanied by exactly four others at the time the sergeant observed him, the sergeant testified that he was not necessarily looking for a group of five because the perpetrators would “spread” after commission of the crime and “they usually don‘t stay together if it happens.”1
{19} Based on the officers’ understanding of the reported crime, the short response time, Walton‘s matching the description of the purported assailants, Walton‘s admission of having marijuana on his person, as well as Walton‘s behavior of continually reaching toward his pocket, we find that the officers had sufficient reasonable suspicion to conduct a pat down of Walton in order to complete an investigative stop pursuant to Terry.
{20} Despite the circumstances as they existed at the time of the stop, Walton challenges the reliability of the dispatch in support of his argument that the stop was invalid. However, Walton did not raise the reliability issue to the trial court or in his motion to suppress, and thus has waived the issue on appeal. State v. J.A.C., 12th Dist. Warren Nos. CA2017-04-044 and CA2017-04-045, 2018-Ohio-361, 22.
{21} Pursuant to
{22} Walton‘s failure to challenge the reliability of the dispatch denied the sergeant the ability to testify to the details of the dispatch, and also denied the state an ability to demonstrate the reliability of the information at the suppression hearing. We agree with the concurring opinion, “Walton needed to raise his arguments regarding the reliability of the dispatch earlier, specifically in his motion to suppress, in order to impose a burden on the state to prove the reliability of the dispatch.” (Citation omitted).
{23} After reviewing the record, considering all of Walton‘s arguments, and viewing the circumstances through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold, we find that the sergeant had reasonable articulable suspicion to perform a Terry stop of Walton so that the trial court properly denied the motion to suppress. Walton‘s single assignment of error is therefore, overruled.
{24} Judgment affirmed.
HENDRICKSON, J., concurs.
BYRNE, J., concurs separately.
BYRNE, J., concurring separately.
{25} I agree with the majority opinion‘s statement of the facts and procedural history, as well as its description of the key legal principles at issue in this case, as set forth
Timing of Terry Stop
{26} The
The United States Supreme Court has recognized three categories of police interactions with members of the public: (1) a consensual encounter, which requires no objective justification, (2) a brief investigatory detention, which must be supported by reasonable suspicion of criminal activity, and (3) a full arrest, which must be supported by probable cause.
Id. at 13, citing State v. Wynne, 10th Dist. Franklin No. 18AP-531, 2019-Ohio-1013, 12.
In determining whether an encounter between a police officer and a citizen is a seizure and thus implicates the Fourth Amendment, the question is whether, in light of all the circumstances surrounding the encounter, a reasonable person would believe he or she was not free to leave.
Id. at 14, citing Wynne at 13. “Stated otherwise, the question is whether, taking into account all the circumstances surrounding the encounter, a reasonable person would feel free to decline the officer‘s request or terminate the encounter.” Id., citing State v. Brown, 12th Dist. Clermont No. CA2001-04-047, 2001 WL 1567340, *5-6 (Dec. 10, 2001), in turn citing Florida v. Bostick, 501 U.S. 429, 436-437, 111 S. Ct. 2382, (1991). “As long as a reasonable person would feel free to disregard the officer, the encounter is consensual and
Circumstances indicating that a person has been seized include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of language or tone of voice indicating that compliance with the officer‘s request might be compelled, and blocking the person‘s path.
Id., citing Brown at *6; United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870 (1980); Wynne at 13.
{27} In this case, after observing Walton and his companion walking on South Monument Street in Hamilton, the sergeant, placing his hands on his own head and approaching Walton, demanded that Walton place his hands on his head. I conclude that the Terry stop occurred at this point in the encounter. An officer‘s verbal demand that an individual place his hands on his head would convey to a reasonable person that the person was not free to decline the officer‘s request or terminate the encounter. See id. As a result, Walton was, at that point, seized for
Reasonable Suspicion for Terry Stop
{28} Having determined when the Terry stop occurred, I must next analyze whether the officers had reasonable suspicion to conduct the Terry stop. At the point that the Terry stop occurred, the only information known to the officers was the information
{29} In his first issue presented for review, Walton argues that the officers lacked reasonable suspicion for the Terry stop because they lacked “specific facts that a robbery occurred behind the U.S. Market or that Walton participated in it.” He cites a well-developed line of cases holding that an anonymous tip (which he assumes was the basis of the dispatch) is presumed unreliable, and requires independent police corroboration to support reasonable suspicion. See Maumee v. Weisner, 87 Ohio St.3d 295, 298 (1999); State v. Sexton, 12th Dist. Butler No. CA2019-08-133, 2020-Ohio-4179, 29-30.
{30} The majority concludes that Walton waived any argument regarding the dispatch‘s reliability because he did not challenge the dispatch‘s reliability before the trial court or in his motion to suppress. See 20-21 above. The majority also notes that, if Walton had argued against the reliability of the dispatch in his motion to suppress, the state would have had the burden to prove that the dispatch was reliable. I agree. The Ohio Supreme Court has held that:
To suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis for the challenge.
Xenia v. Wallace, 37 Ohio St.3d 216 (1988), paragraph one of the syllabus. A defendant is required to give the prosecutor notice of the grounds on which the defendant challenges a warrantless search or seizure, but this is not the same thing as the defendant having the burden of proof. That burden is on the state. The Ohio Supreme Court in Wallace went on to explain that:
Once a defendant has demonstrated a warrantless search or seizure and adequately clarified that the ground upon which he challenges its legality is lack of probable cause, the prosecutor bears the burden of proof, including the burden of going forward with evidence, on the issue of whether probable cause existed
for the search or seizure.
Id. at paragraph two of the syllabus. While Wallace referred to probable cause, rather than reasonable suspicion, we have applied Wallace‘s burden of proof analysis when reviewing the denial of motions to suppress alleging a lack of reasonable suspicion. State v. Blatchford, 12th Dist. Preble, No. CA2015-12-023, 2016-Ohio-8456, 28, 35-36.
{31} In his motion to suppress Walton entirely failed to mention or argue in any way that the dispatch was not reliable, and therefore the state never had the burden of proving that the dispatch was reliable. For this reason I agree with the majority that we may not consider Walton‘s arguments regarding the reliability—or lack thereof—of the dispatch.3
{32} Because Walton did not challenge the reliability of the dispatch in his motion to suppress, the only question remaining regarding the reasonable suspicion analysis is whether the officers could lawfully perform a Terry stop based on the very limited description provided by the dispatch. Walton argues they could not, because, as he states in his appellate brief, “race alone is not a reasonable factor when the suspect‘s race is the predominant race for the area.” Walton cites as his sole support United States v. Brignoni-Ponce, 422 U.S. 873, 885-886, 95 S.Ct. 2574 (1975).
{33} Walton raises a serious concern that merits careful consideration. Police should not detain individuals based solely on their race. But that is not what happened here. In fact, Walton and his companion were not stopped because of “race alone” (as
{34} Walton also argues that “proximity to a crime is not a reasonable factor that particularizes the detainee to the crime.” Walton cites State v. Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622, 26. But Walton‘s citation is to Justice Donnelly‘s concurrence in the judgment in Hairston, not to the majority opinion, and the majority held that the Terry stop in that case—which involved facts very similar to this case—was based on reasonable suspicion. Id. at 23. Furthermore, the concurrence cited by Walton goes on to state that “Given how close Hairston was to the crime, in both time and place, I would hold that the trial court‘s determination of reasonable suspicion was legally justified.” Id. at 27. As with Brignoni-Ponce, Hairston does not support Walton‘s appeal.5
{35} For these reasons I agree with the majority that the officers had reasonable suspicion to stop Walton. But this is a very close case, and my conclusion is highly dependent on Walton‘s waiver of any challenge to the reliability of the dispatch and the very small amount of time between the dispatch and the Terry stop. My conclusion does not at all suggest that a dispatch identifying a suspect‘s race, and nothing else, would give police carte blanche to detain everyone of that race; other identifying factors are required, and they were present here.
Pat Down Search
{36} I agree with the majority‘s analysis regarding the pat down search.
Walton‘s Argument Based on the Ohio Constitution
{37} One final note. Walton argues that the Ohio Supreme Court has found the
{38} Ohio courts should be open to arguments that, in some instances, the Ohio
{39} For all of these reasons I concur in the judgment.