[Cite as State v. Parson, 2013-Ohio-2763.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25399
Plaintiff-Appellee :
: Trial Court Case No. 2012-CR-339
v. :
:
TRAVIS B. PARSON : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of June, 2013.
...........
MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. #0089541, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
PAMELA L. PINCHOT, Atty. Reg. #0071648, Clyo Professional Center, 7960 Clyo Road,
Dayton, Ohio 45459
Attorney for Defendant-Appellant
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FAIN, P.J.
{¶ 1} Defendant-appellant Travis Parson appeals from his conviction and sentence for
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Tampering With Evidence. Parson contends that the trial court erred by overruling his motion to
suppress evidence, because the officers who stopped his vehicle did not have reasonable,
articulable suspicion of criminal activity.
{¶ 2} We conclude that the trial court did not err in overruling Parson’s motion to
suppress evidence, because the police dispatch on which the officers relied to initiate the traffic
stop was based on a reliable telephone tip. Accordingly, the judgment of the trial court is
Affirmed.
I. The Police Stop a Vehicle Driven by Parson Based on a
Telephone Tip Received by the Police Dispatch
{¶ 3} The trial court made the following findings of fact based on the testimony
presented at the suppression hearing:
City of Dayton Police Officer David House (“House”) testified that on
February 1, 2012 at approximately 3:30 a.m., he responded to a dispatch that a
person had called in that [a] black male in a grey Oldsmobile was driving while
intoxicated and the caller had refused to get into the car with him. The caller
gave her name and telephone number, as well as the name of the allegedly
intoxicated driver. The caller stated that the intoxicated driver was in the All In
One parking lot on James H. McGhee [sic] Blvd. House testified that as he
approached the All in One, he saw a grey Buick exit the parking lot followed by
another Dayton police cruiser. The officer in the other cruiser initiated a stop on
the Buick, which was driven by Defendant Travis B. Parson (“Parson”).
[Cite as State v. Parson, 2013-Ohio-2763.]
House testified that there was a black female passenger in the car as well.
House further stated that he made contact with Defendant and asked for
identification. Defendant was not able to provide any, but gave his name as
Willie Parson and provided a social security number. House asked Defendant’s
age and birthdate. Defendant hesitated and stated that his birthday was June 3,
1969 and that he was 45 years old. If Defendant had been born on such date, he
would have been 43 years. House testified that Defendant was not intoxicated
but he became suspicious that Defendant was hiding his true identity and asked
him to step out of the car. When Defendant exited the vehicle, [H]ouse saw a
large knife on the floor board of the car. House then patted Defendant down for
officer safety.
House testified that he felt a crack pipe during the pat-down. House then
informed Defendant that he was under arrest and commenced a search of
Defendant’s person incident to arrest. House further testified that he observed
Defendant remove what he believed to be a rock of crack cocaine from the fold in
his hat and pop it into his mouth. House and another officer on the scene
struggled with Defendant to get him to spit it out, which he ultimately did after
being pepper sprayed.
House then when [sic] to Defendant’s vehicle to retrieve the knife and
found a piece of crack cocaine. Defendant was then mirandized. House testified
that the name Willie Parson was run through the computer and it showed that
Willie Parson was on federal probation. Defendant then told the police his true
name. Parson is not the name given to the police dispatch by the person calling in
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about the intoxicated driver.
Brent Parrish then testified that he was working as a Montgomery County
Corrections Officer the night that Defendant was booked in the jail. Parrish
testified that Defendant did not make any statements about contraband. Dkt. 21,
p. 1-2.
{¶ 4} There is evidence in the record to support the trial court’s findings. We note,
further, that Officer House testified that the tip was received at 3:35 a.m., the call was dispatched
at 3:37 a.m., and House and the other officer, identified in the record simply as Officer Harding,
arrived on the scene at 3:39 a.m.
II. Course of the Proceedings
{¶ 5} In March 2012, Parson was indicted on one count of Tampering With Evidence
in violation of R.C. 2921.12(A)(1), a felony of the third degree. Parson moved to suppress
evidence obtained during the traffic stop, arguing that the traffic stop was not based on a
reasonable, articulable suspicion of criminal activity. After a hearing, the trial court overruled
the motion to suppress. Parson then pled no contest to Tampering With Evidence. The trial
court found Parson guilty of the offense, and sentenced Parson to twelve months in prison.
{¶ 6} From the judgment, Parson appeals
III. The Police Had a Reasonable, Articulable Suspicion of Criminal Activity
{¶ 7} Parson’s sole assignment of error states:
THE TRIAL COURT ERRED IN OVERRULING
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DEFENDANT-APPELLANT’S MOTION TO SUPPRESS AS THE DAYTON
POLICE OFFICER DID NOT HAVE REASONABLE, ARTICULABLE
SUSPICION AND/OR PROBABLE CAUSE TO STOP AND DETAIN THE
DEFENDANT-APPELLANT AND, THEREFORE, VIOLATED THE RIGHTS
GUARANTEED TO THE DEFENDANT-APPELLANT BY THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE
1, SECTION 14 OF THE OHIO CONSTITUTION.
{¶ 8} In deciding a motion to suppress, “the trial court assumes the role of trier of facts
and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.”
State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v.
Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of appeals must
accept the trial court’s findings of fact if they are supported by competent, credible evidence in
the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-Ohio-3733, ¶ 8, citing State v.
Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d Dist.1994). Accepting those facts as true,
the appellate court must then determine, as a matter of law and without deference to the trial
court’s legal conclusion, whether the applicable legal standard is satisfied. Id. We have
reviewed the evidence presented at the suppression hearing and find that the trial court’s findings
of fact are supported by competent, credible evidence in the record.
{¶ 9} Parson’s motion to suppress raises search and seizure issues under the Fourth
Amendment to the United States Constitution, which guarantees "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]"
Searches and seizures conducted without a warrant are per se unreasonable unless they come
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within one of the " 'few specifically established and well delineated exceptions.' " Minnesota v.
Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), quoting Thompson v.
Louisiana, 469 U.S. 17, 19-20, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984). Evidence is inadmissible
if it stems from an unconstitutional search or seizure. Wong Sun v. United States, 371 U.S. 471,
484-485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
{¶ 10} “An investigative stop, or Terry stop, is a common exception to the Fourth
Amendment warrant requirement.” State v. Carrocce, 10th Dist. Franklin No. 06AP-101,
2006-Ohio-6376, ¶ 28, citing Terry v. Ohio, 392 U.S. 1, 20-22, 30-31, 88 S.Ct. 1868, 29 L.Ed.2d
889 (1968). An officer may conduct an investigative Terry stop on an individual if the officer
has a reasonable suspicion, based upon specific and articulable facts, that criminal behavior has
occurred or is imminent. Terry at 20, 21, 30, 31.
{¶ 11} Here, Officers House and Harding initiated the investigative stop in response to a
police dispatch that was based on a telephone tip from an identified female who indicated that a
black male driving a gray Oldsmobile was intoxicated in the All-In-One parking lot. “Where an
officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a
suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of
criminal activity.” City of Maumee v. Weisner, 87 Ohio St.3d 295, 720 N.E.2d 507 (1999),
paragraph one of the syllabus. “A telephone tip can, by itself, create reasonable suspicion
justifying an investigatory stop where the tip has sufficient indicia of reliability.” Id. at
paragraph two of the syllabus. The informant's veracity, reliability, and basis of knowledge are
highly relevant factors in determining the value of the informant's tip. Id. at 299.
{¶ 12} Based on the testimony of Officer House, the trial court found, in pertinent part:
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House testified that Defendant was driving a grey vehicle out of the exact
location identified by the caller in the original dispatch regarding an intoxicated
driver. The Court finds that the timing, color of the vehicle and its locations
justified the stop of the car to determine whether the driver was intoxicated.
Thus, asking his name and for identification was appropriate. Furthermore,
Defendant began to act suspiciously when asked for such background information,
and House determined correctly that Defendant was not who he said he was.
Thus, the Court finds that there was a reasonable, articulable suspicion of criminal
activity that justified the investigatory stop and detention of Defendant under
Terry. Dkt. 21, p. 3.
{¶ 13} At 3:35 a.m., the police dispatch received a telephone tip from a female who gave
her name and phone number. The caller stated that “the individual [the driver] was intoxicated
and that they had been arguing and that for that reason the caller in decided not to get into the
vehicle with [the driver].” The caller’s report supports a reasonable inference that she and the
driver had interacted sufficiently for her to have formed an opinion that the driver was
intoxicated. We conclude that the telephone tip was sufficiently reliable to justify the traffic
stop when Officers Harding and House, at 3:39 a.m., saw Parson pulling out in a gray vehicle
from a virtually empty All-In-One parking lot four minutes after the telephone tip was received.
{¶ 14} Parson contends that the officers could not reasonably rely upon the tip, because
the tip reported that the possibly intoxicated person was driving a gray Oldsmobile, whereas
Parson was driving a gray Buick LeSabre. But Officer House testified that he did not know,
when the stop was made, that Parson’s vehicle was a Buick LeSabre; he just knew it was gray.
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{¶ 15} We conclude that the trial court did not err in overruling Parson’s motion to
suppress. Parson’s sole assignment of error is overruled.
IV. Conclusion
{¶ 16} Parson’s sole assignment of error having been overruled, the judgment of the trial
court is Affirmed.
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WELBAUM, J., concurs.
FROELICH, J., dissenting:
{¶ 17} The caller gave her name and telephone number, thus falling into the broad
category of a “known” informant, although the record reflects nothing regarding her relationship,
if any, to the Appellant, her state of sobriety, the basis for her conclusion of intoxication, etc. . . .
The caller only said a Shawn Brooks was in the parking lot driving a gray Oldsmobile and was
intoxicated.
{¶ 18} Two officers were on the scene quickly and saw a gray vehicle pull out of the
parking lot and initiated a traffic stop. There is no indication in the record that Appellant was
violating any traffic laws or doing anything suspicious. The only justification for the stop was a
named informant’s saying the driver - Shawn Brooks - was “intoxicated.” I agree with the
majority that a strong showing as to other indicia of reliability may be unnecessary to justify a
Terry stop, based on the tip of a “known informant.” Maumee v. Weisner, 87 Ohio St.3d 295,
300, 720 N.E.2d 507 (1999). However, “[s]imple corroboration of neutral details describing the
suspect or other conditions existing at the time of the stop, without more, will not produce
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reasonable suspicion for an investigatory stop.” State v. Ramsey, 10th Dist. Franklin App. No.
89AP-1298, 1990 WL 135867, *4 (Sept. 20, 1990.)
{¶ 19} For example, in State v. Hipp, 5th Dist. Holmes No. 12CA013, 2013-Ohio-1684,
the caller was an identified cashier at a convenience store who called 911 about a customer and
said he “smelled alcohol on her breath.” He gave the dispatcher a description of the car, the
license number, and the direction the vehicle had proceeded.
{¶ 20} An officer pulled over the vehicle soon thereafter, but did not observe any bad
driving or other suspicious activity. The Court of Appeals held that the “attendant did not
sufficiently indicate bad driving or inappropriate activity or behavior to indicate Appellant was
operating a vehicle while intoxicated prior to Appellant’s stop” and the deputy “did not himself
observe Appellant engage in any unlawful activity.” Therefore, any fruits of the stop should
have been suppressed. Id; See, also, State v. Brant, 10th Dist. Franklin No. 01AP-342,
2001-Ohio-3994 and State v. Bernap, 5th Dist. Delaware No. 11CAC090086, 2012-Ohio-2047.
{¶ 21} I would find that the officers did not have sufficient suspicion for an
investigatory stop.
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Copies mailed to:
Mathias H. Heck
April F. Campbell
Pamela L. Pinchot
Hon. Barbara P. Gorman