[Cite as State v. Robinson, 2013-Ohio-1345.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98564
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
STEVEN D. ROBINSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-556418
BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: April 4, 2013
ATTORNEY FOR APPELLANT
Terry H. Gilbert
Friedman & Gilbert
1370 Ontario Street
Suite 600
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Stephanie Heibertshausen
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, Steven Robinson, appeals the judgment of the common
pleas court overruling his motion to suppress evidence. After careful review of the
record and relevant case law, we affirm the judgment of the trial court.
{¶2} On November 8, 2011, members of the Cleveland Police Department arrested
appellant and codefendant, Ardarrius Williams, for multiple drug offenses. On
December 2, 2011, appellant and Williams were indicted for drug trafficking in violation
of R.C. 2925.03(A)(2), a felony of the third degree; drug possession in violation of R.C.
2925.11(A), a felony of the third degree; and possession of criminal tools in violation of
R.C. 2923.24(A), a felony of the fifth degree.
{¶3} On February 24, 2012, appellant sought the suppression of evidence seized by
the Cleveland Police Department in connection with a traffic stop of his vehicle on
November 8, 2011. On April 23, 2012, the trial court held a suppression hearing and
heard testimony from two witnesses, Officers Duane Taylor and Kevin Fairchild of the
Cleveland Police Department. On April 24, 2012, the trial court denied appellant’s
motion, ruling that the stop was constitutional. Subsequently, appellant entered a plea of
no contest to all counts. On May 21, 2012, appellant was sentenced to one year on each
count, to run concurrently.
{¶4} Appellant now brings this timely appeal, raising one assignment of error for
review:
I. The trial court erred by denying appellant’s suppression motion for lack
of reasonable articulable suspicion.
Law and Analysis
{¶5} In his sole assignment of error, appellant argues that the trial court erred in
denying his motion to suppress.
{¶6} Appellate review of the denial of a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. 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. Carter, 72 Ohio St.3d 545, 552,
1995-Ohio-104, 651 N.E.2d 965; State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972
(1992).
{¶7} Consequently, 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. Burnside at ¶ 8. However, an appellate court reviews de novo
whether the trial court’s conclusions of law, based on those findings of fact, are correct.
State v. Anderson, 100 Ohio App.3d 688, 691, 654 N.E.2d 1034 (4th Dist.1995).
{¶8} At the suppression hearing, the following facts were presented to the trial
court. On November 8, 2011, at approximately10:30 p.m., the Cleveland Police
Department received a report of a robbery and shooting at the intersection of West 38th
Street and Denison Avenue in Cleveland, Ohio. Initial reports described the shooter as
being a Hispanic male wearing all black, medium build, approximately six feet tall, and in
his mid twenties.
{¶9} While on foot patrol, Officer Maffo-Judd observed an individual matching
the shooter’s description running southbound on West 43rd Street. Officer Maffo-Judd
further described the possible shooter as being a “dark” complexioned Hispanic male with
facial hair; approximately 6’ to 6’1” tall; with a “thinner build”; wearing a black jacket,
dark jeans, and black stocking cap.
{¶10} Approximately 30 minutes after the initial dispatch, Cleveland police
communications received a call from an identified citizen, who indicated that he was
aware that officers were investigating the recent shooting in the area. The caller
indicated that his neighbor had overheard a male talking on a cell phone, saying “[h]urry
up and pick me up because the cops are looking for me.” The caller informed the police
that his neighbor described the individual as a black male walking down West 34th Street
near Highview Avenue wearing blue jeans, a red sweatshirt, and a black hat. The
description was then broadcast to officers in the local area.
{¶11} Patrol Officer Duane Taylor testified at the suppression hearing that he
assisted in locating the shooting suspect. Officer Taylor testified that, based on the
information he received from dispatch, he parked his patrol vehicle near West 34th and
Louisiana Avenue and began looking for suspicious activity. While in his patrol vehicle,
Officer Taylor observed a white Chevy Impala parked on the apron of a nearby driveway.
Officer Taylor testified that the way the Impala was parked raised his suspicions due to
the hour of the night. Minutes later, Officer Taylor observed a Hispanic or light-skinned
black male with facial hair, approximately six feet tall, medium build, wearing a red shirt
and jeans, come through a yard and enter the front passenger seat of the Impala.
{¶12} Officer Taylor testified that he followed the Impala northbound on West
33rd Street. When the Impala reached the intersection of West 33rd and Archwood,
Officer Taylor activated his spotlight on the window of the passenger side of the Impala.
Officer Taylor confirmed that the passenger appeared to match the description of the
person of interest in the shooting. At that point, Officer Taylor requested backup and
initiated an investigative stop of the Impala. When Officer Taylor approached the
vehicle, he immediately observed appellant holding a large brick-like object that appeared
to be marijuana.
{¶13} Although the Cleveland police later made a determination that appellant and
codefendant Williams were not involved in the shooting, they were arrested based on the
officer’s recovery of approximately four pounds of marijuana from their vehicle.
{¶14} We find that the trial court’s findings of fact were supported by competent
and credible evidence. Accordingly, we turn to the constitutionality of the search and
seizure.
{¶15} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). Searches conducted outside the judicial process, by
officers lacking a prior judicial warrant, are per se unreasonable and subject to a few
specifically established exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967). One of those exceptions is the rule regarding investigative stops
announced in Terry. Under Terry, police officers may briefly stop and/or temporarily
detain individuals in order to investigate possible criminal activity if the officers have a
reasonable, articulable suspicion that criminal activity may be afoot. State v. Martin, 2d
Dist. No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry, supra.
{¶16} We are mindful of the U.S. Supreme Court’s recognition that “[i]n order to
satisfy the reasonableness requirement of the Fourth Amendment, what is generally
demanded of the many factual determinations that must regularly be made by agents of
the government * * * is not that they always be correct, but that they always be
reasonable.” Illinois v. Rodriguez, 497 U.S. 177, 185-186, 110 S.Ct. 2793, 111 L.Ed.2d
148 (1990). Further, “sufficient probability, not certainty, is the touchstone of
reasonableness under the Fourth Amendment.” Hill v. California, 401 U.S. 797, 804, 91
S.Ct. 1106, 28 L.Ed.2d484; see also Brown v. King, 5th Dist. No. 2008-CA-00165,
2009-Ohio-4957. Thus, in evaluating the facts and inferences supporting the stop, a
court must consider the totality of the circumstances as “viewed through the eyes of a
reasonable and cautious police officer on the scene, guided by his experience and
training.” State v. Bobo, 37 Ohio St.3d 177, 179, 524 N.E.2d 489 (1988). This court
has found that “a report of recent gunshots must be taken into consideration under the
totality of the circumstances test.” State v. Johnson, 8th Dist. Nos. 71249 and 71250,
1997 Ohio App. LEXIS 4710 (Oct. 23, 1997).
{¶17} In a case like this where the police officers who made the stop received
information from other police officers, the collective knowledge doctrine applies. That
doctrine states that law enforcement officers cooperating in an investigation are entitled
to rely on each other’s knowledge of facts when forming the conclusion that a suspect has
committed or is committing a crime. United States v. Hensley, 469 U.S. 221, 231, 105
S.Ct. 675, 83 L.Ed.2d 604 (1985). This doctrine is grounded in the realization that
“effective law enforcement cannot be conducted unless police officers can act on
directions and information transmitted by one officer to another and that officers, who
must often act swiftly, cannot be expected to cross-examine their fellow officers about the
foundation for the transmitted information.” Id. at 231. The admissibility of the
evidence uncovered during a stop based on information derived from other officers does
not rest on whether the officers relying on a dispatch or flyer “were themselves aware of
the specific facts which led their colleagues to seek their assistance,” but instead on
whether the officers who issued the dispatch possessed reasonable suspicion to make the
stop. Id. at 231.
{¶18} Factors relevant in assessing reasonable suspicion in this case include the
specificity of the description of the suspect, the number of people in the area, where the
person was stopped, and how long ago the crime occurred. See United States v. Goodrich,
450 F.3d 552, 561 (3d Cir.2006). Even though a description is less-than specific, other
factors supporting the stop can exist so long as the facts known yield a limited pool of
suspects. United States v. Broomfield, 417 F.3d 654, 655 (7th Cir.2005).
{¶19} Appellant urges this court to find that this case is analogous to State v.
Stewart, 193 Ohio App.3d 716, 2011-Ohio-2910, 953 N.E.2d 886 (8th Dist.). In Stewart,
a shooting occurred at approximately 1:30 a.m. in a residential neighborhood. The
officers who responded were advised that there were two suspects, including a male
described as around 5’10” to 6’ tall, in his late 20s or early 30s, wearing dark clothing;
and a female. Approximately five minutes after the broadcast, officers saw Stewart and
a female walking through a parking lot. The officers stopped Stewart and subsequently
arrested him after discovering a gun in his waistband. In reversing the trial court’s denial
of Stewart’s motion to suppress, this court determined that the description relayed to the
arresting officers was not specific enough to justify the investigative stop. This court
stated,
given the character of the neighborhood and the late hour, the description of
the male would have matched just about any other male who might have
been out at that time of night. Even so, Stewart did not match the
description as he was significantly younger and shorter than the described
shooter.
Id. at 889.
{¶20} On review, we find Stewart to be distinguishable from the case at bar.
Unlike the facts presented in Stewart, the basis for Officer Taylor’s investigative stop of
appellant’s vehicle derived from information that we are unable to characterize as
“vague.” Here, Officer Taylor was provided with a first-hand description from an officer
who was previously in hot pursuit of the suspect just minutes after the initial shooting
occurred. The officer provided information relating to the direction the suspect was
running and indicated that the suspect was a dark-complexioned male with facial hair;
approximately 6’ to 6’1” tall; wearing a black jacket, dark jeans, and black stocking cap.
Additionally, dispatch provided Officer Taylor with further information obtained from an
identified citizen who lived in the area where the shooting had occurred. The identified
citizen informed the police that his neighbor had overheard an individual state while
talking on his cell phone, “[h]urry up and pick me up because the cops are looking for
me.” The description provided by the identified citizen was generally consistent with the
description given by Officer Maffo-Judd, with the exception that the identified citizen
stated that the suspect was wearing a red shirt and not a black jacket. However, as
addressed by Officer Taylor, it is not unusual for a suspect to “peel off layers of clothing
to try and change their appearance” as they flee from a crime scene.
{¶21} Furthermore, the circumstances surrounding Officer Taylor’s initial
observation of codefendant Williams were significantly different from those presented in
Stewart. In Stewart, the officers conducted an investigatory stop of the defendant after
observing him do “nothing more suspicious than walking though a parking lot in the
company of a female.” By contrast, in the case sub judice, Officer Taylor’s decision to
stop appellant’s vehicle derived from conduct he viewed as suspicious in light of recent
information he received from dispatch. As stated, Officer Taylor testified that he
initially observed an individual matching the suspected shooter’s description walk
through the front yards of the neighborhood toward a vehicle that Officer Taylor
described as suspiciously waiting on the apron of a nearby driveway. We recognize that
codefendant Williams’s act of walking through a front yard instead of using sidewalks
and getting into a parked vehicle does not generally give rise to criminal suspicion.
However, in the case at hand, Officer Taylor made these observations with knowledge
that the suspected shooter was believed to be in the general area and was last seen by
officers “cutting” through the neighborhood yards and alleyways. Thus, unlike the
circumstances presented in Stewart, we find Officer Smith’s suspicions to be reasonable
in this matter.
{¶22} Viewing the totality of the circumstances collectively through the eyes of a
reasonable and cautious police officer, we find that Officer Taylor, and the officers who
issued the various dispatches, possessed a reasonable suspicion to believe that
codefendant Williams had engaged in criminal activity, thereby justifying the
investigatory stop of appellant’s vehicle.
{¶23} We recognize that, pursuant to the standard set forth in Maumee v. Weisner,
87 Ohio St.3d 295, 300, 1999-Ohio-68, 720 N.E.2d 507, had the identified citizen’s
“second-hand” tip been the only information available to the officers at the time of the
investigatory stop, it may not have been sufficient to withstand appellant’s Fourth
Amendment challenges.
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. The appropriate analysis, then, is whether the tip itself has
sufficient indicia of reliability to justify the investigative stop. * * *
Typically, a personal observation by an informant is due greater reliability
than a secondhand description. (Emphasis added.)
See id. at paragraph one of the syllabus.
{¶24} However, this is not the case where the information possessed by the police
stemmed solely from an informant’s tip. See State v. Phillips, 4th Dist. No. 06CA10,
2006-Ohio-6710, ¶ 15. Rather, the tip provided in the case at hand was considered in
conjunction with the fact that codefendant Williams fit the physical description provided
by a first responding officer; information that did meet the requisite level of suspicion
necessary to warrant the stop of appellant’s vehicle. Thus, the tip merely served to
supplement the totality of the information available to the officers at the time of their
investigation and was reasonably utilized to narrow the area of the search and the pool of
potential suspects.
{¶25} For these reasons, we find no error in the trial court’s decision to deny the
motion to suppress evidence. Accordingly, we hereby overrule appellant’s assignment of
error and affirm the trial court’s judgment.
{¶26} Judgment 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY