[Cite as State v. Garcia, 2012-Ohio-5066.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97912
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SAN PEDRO GARCIA
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND VACATED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-537986
BEFORE: Sweeney, J., Blackmon, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Alison Foy
Milko Cecez
Assistant County Prosecutors
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶1} Defendant-appellant San Pedro Garcia (“defendant”) appeals the trial
court’s denial of his motion to suppress the evidence against him and his subsequent
conviction for carrying a concealed weapon. After reviewing the facts of the case and
pertinent law, we reverse the court’s judgment and vacate defendant’s conviction and
sentence.
{¶2} On May 25, 2010, defendant was on a bicycle talking to a friend of his who
was in a car that was stopped in the middle of the street near the corner of W. 50th and
Clark Avenue in Cleveland. Police Officers Mark Maguth and Timothy Maffo-Judd,
who were on patrol, saw the two men, turned their marked police vehicle around, and
approached the scene. Defendant began to ride away from the driver’s side window of
the stopped car as he saw the police approach. Officer Maguth told defendant to stop
and then asked him what was going on. As they were talking, defendant kept reaching
for the waistband of his pants.
{¶3} Officer Maguth exited the zone car and informed defendant that he was
going to search him for weapons. As he was conducting the pat-down, Officer Maguth
asked defendant if he had any weapons, and defendant replied that he had a gun. Officer
Maguth found a loaded .25-caliber handgun with an extra magazine concealed in
defendant’s waistband.
{¶4} On June 15, 2010, defendant was indicted for carrying a concealed weapon
in violation of R.C. 2923.12(A)(2). After a hearing, the court denied defendant’s motion
to suppress, and the matter proceeded to a bench trial. The court found defendant guilty
as indicted, and on January 18, 2012, sentenced him to one year of community control
sanctions.
{¶5} Defendant appeals and raises three assignments of error for our review.
I.
The trial court erred in denying Appellant’s motion to suppress.
Appellate review of a trial court’s ruling on a motion to suppress
presents mixed questions of law and fact. An appellate court is to accept the
trial court’s factual findings unless they are clearly erroneous. We are,
therefore, required to accept the factual determinations of a trial court if
they are supported by competent and credible evidence. The application of
the law to those facts, however, is subject to de novo review. (Internal
citations omitted.)
State v. Polk, 8th Dist. No. 84361, 2005-Ohio-774, ¶ 2.
{¶6} Warrantless searches are presumptively unconstitutional, subject to a
limited number of specific exceptions. One scenario that does not trigger Fourth
Amendment protection is a citizen’s consensual encounter with the police. Florida v.
Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). “A consensual
encounter occurs when the police approach a person in a public place, engage the person
in conversation, and the person remains free to not answer or walk away.” State v. Logan,
8th Dist. No. 96190, 2011-Ohio-4124, ¶ 9. “[A] person has been ‘seized’ within the
meaning of the Fourth Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to
leave.” U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
{¶7} In California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d
690 (1991), the United States Supreme Court explained that
Mendenhall establishes that the test for existence of a “show of authority” is
an objective one: not whether the citizen perceived that he was being
ordered to restrict his movement, but whether the officer’s words and
actions would have conveyed that to a reasonable person.
{¶8} There are several factors that may cause a consensual encounter to become a
seizure, thus implicating the Fourth Amendment. These factors include,
the threatening presence of several officers, the display of a weapon by an
officer, some physical touching * * * of the citizen, or the use of language
or tone of voice indicating that compliance with the officer’s request might
be compelled.
Mendenhall at 554.
{¶9} A second exception to the rule requiring warrants is found in Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which stands for the proposition that
“a police officer may in appropriate circumstances and in an appropriate manner approach
a person for purposes of investigating possibl[e] criminal behavior * * *.” Id. at 22. To
warrant a Terry investigatory stop, the police “must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Id. at 21. The Ohio Supreme Court additionally stated
that an investigatory stop “must be viewed in light of the totality of the surrounding
circumstances.” State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980).
{¶10} Terry also held that “[w]hen an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close range is armed and
presently dangerous” the officer may conduct a protective search for weapons. Terry at
24. See also State v. Williams, 51 Ohio St.3d 58, 554 N.E.2d 108 (1990).
{¶11} In the instant case, the following testimony was presented at defendant’s
suppression hearing:
{¶12} Officer Maguth testified that he has “just over three years” experience as a
basic patrol officer with the Cleveland Police Department, and he has made
approximately 40 - 50 drug related arrests. Officer Maguth testified that he and his
partner Officer Maffo-Judd were patrolling the area of W. 50th and Clark around
midnight on May 25, 2010. The officers have made drug arrests in this area before.
{¶13} From approximately 300 yards away, they observed a man, later identified
as defendant, on a bicycle leaning into the driver’s side window of a car that was stopped
in the middle of W. 50th Street. Officer Maguth and his partner turned their vehicle
around and drove toward the scene. When defendant saw the police car approaching, he
“started riding from the street towards the sidewalk.” Asked if he ever observed drug
transactions occurring when a person leans into the driver’s side of a vehicle, Officer
Maguth responded, “Yes.”
{¶14} Both officers remained in their zone car, and Officer Maguth said to
defendant, “Stop.” Defendant complied and Officer Maguth asked him, “What’s going
on?” Defendant answered that he found a bike in the middle of the intersection and, as
he was clearing it out of the way, he stopped to talk to a friend who happened to be
driving by. Defendant also told the police that he lived in and owned the four-unit
apartment building on the corner of W. 50th and Clark, the front door of which is
approximately 10-15 feet from where defendant was stopped.
{¶15} Officer Maguth testified that, as they were talking, defendant “kept
reaching into his waistband with his arm.” Officer Maguth asked defendant why he was
reaching for his waist. Defendant did not respond. Officer Maguth stepped out of the
police car and said to defendant, “I’m going to pat you down for weapons.” Officer
Maguth asked defendant if he had any weapons, and defendant responded that he had a
gun. During this Terry pat, a loaded gun with an additional magazine was found
holstered in a cell phone case that was clipped onto the right side of defendant’s
waistband under his shirt. Officer Maguth testified that defendant’s gun was not in plain
view prior to the search. Asked why he patted defendant down, Officer Maguth testified
as follows: “For my safety and my partner’s safety just strictly for weapons.”
{¶16} On cross-examination, Officer Maguth testified that when he and his
partner first approached the scene, the defendant had not made any furtive movements
and no crime had been committed.
{¶17} Officer Maffo-Judd testified that he has been a patrol officer for the
Cleveland Police Department for almost four years. Officer Maffo-Judd was on patrol
with his partner Officer Maguth on May 25, 2010, in the area of W. 50th and Clark,
when he “observed a male on a bicycle having a conversation with someone in the middle
of the street in a car.” Officer Maffo-Judd thought this was “fishy,” and they approached
the scene. Defendant, who was on the bicycle, came towards them. As the police were
questioning him, defendant “started reaching for his waistband * * * or his pockets.”
While this transpired, both officers stayed inside the police car.
{¶18} According to Officer Maffo-Judd, defendant’s gestures at this point were
“pretty suspect,” and Officer Maguth exited the police vehicle to pat defendant down for
weapons. When Officer Maguth asked defendant if he had any weapons, defendant
stated that he had a gun. Officer Maffo-Judd did not observe the gun on defendant prior
to it being discovered during the pat-down.
{¶19} On review, we first analyze whether the initial interaction between
defendant and the police was a consensual encounter or a Terry investigatory stop. In its
July 25, 2011 journal entry denying defendant’s motion to suppress, the court stated the
following in pertinent part:
While both officers were suspicious that some improper activity may have
been taking place, neither testified to seeing any illicit activity. The
officers decided to turn around and investigate what was happening to cause
the car and the bicycle to be stopped in the middle of the street at midnight.
When they initially approached the defendant, Officer Maguth did not get
out of the zone car but simply asked some questions of the defendant. * * *
The officers here never testified to seeing any drug transaction but simply
stopped to investigate an unusual sight, a person on a bicycle in the middle
of the street next to a stopped car around midnight.
{¶20} Under our standard of review, we are to accept the court’s factual findings
if they are supported by competent and credible evidence in the record. The court’s
finding that “Officer Maguth * * * simply asked some questions of the defendant” omits
an essential part of what transpired.
{¶21} The following colloquy occurred during Officer Maguth’s direct
examination:
Q: Your partner drove your car around then you approached the
vehicle and the male on the bicycle?
A: Yes, we conducted — yes, a stop.
***
Q: And again, based on your training and experience, after making
this observation and approaching the male on the bicycle and the stopped
car, what did you do?
A: That’s when I had the male on the bicycle stopped. I asked him
to stop.
{¶22} Additionally, the following colloquy occurred during the officer’s
cross-examination:
Q: Well, you asked [defendant] to stop. Right?
A: Mm-hmm.
Q: And he stopped?
A: Yep.
Q: Right?
A: Yep.
Q: And you asked him to stop. You wanted him to stop. Right?
A: Yeah. I wanted to talk to him.
Q: And when you asked — when you’re in your full uniform and you
ask someone to stop, you expect them to comply. Right?
A: Normally.
{¶23} Officer Maffo-Judd testified that he did not recall whether his partner asked
defendant to stop, but stated that it was “very possible.” Additionally, Officer
Maffo-Judd was asked the following question: “If you asked someone to stop you expect
them to stop. Correct?” Officer Maffo-Judd replied, “Yes. Yes, sir.”
{¶24} In analyzing the circumstances of this case under Mendenhall, we find the
following: Two uniformed police officers in a marked zone car turned their vehicle
around to approach defendant. From the police vehicle, one of the officers told or asked
defendant to stop. Both officers testified that when they ask someone to stop, they
expect that person to stop.
{¶25} We are being asked to categorize this scenario as either an “encounter” or a
“stop.” It would be somewhat ironic to conclude that in using the word “stop,” the
police were not conducting a stop, but rather were engaging defendant in a consensual
encounter.
{¶26} We conclude that the circumstances of the instant case would convey to a
reasonable person a “show of authority” such that he or she was being ordered to restrict
his or her movement. Therefore, the initial interaction between defendant and the police
was a seizure, which implicated the Fourth Amendment.
{¶27} We turn to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968), to determine if the investigatory stop of defendant was warranted. Reasonable
suspicion to conduct a Terry stop requires more than an “inchoate and unparticularized
suspicion or ‘hunch.’” Id. at 27.
{¶28} In the instant case, Officer Maguth gave no explanation as to why he and
Officer Maffo-Judd turned around to approach defendant, other than testifying that, in his
training and experience, drug transactions have occurred when people lean into the
windows of vehicles. Officer Maffo-Judd testified that the reason they turned around to
approach defendant was that the situation looked “kind of fishy.” Both officers testified
that defendant did not make any furtive gestures before being stopped, nor did he commit
any criminal activity before they approached the scene.
{¶29} In State v. Boulis, 8th Dist. No. 86885, 2006-Ohio-3693, ¶ 20, this court
affirmed the trial court’s granting the defendant’s motion to suppress evidence under the
following facts:
The record fails to indicate that the stop of Boulis was supported by the
specific, articulable facts necessary to perform an investigative stop under
Terry. First, Officer Havranek admitted that observing someone driving an
SUV who stops to speak to someone riding a bicycle is benign. Second,
although Officer Havranek testified that they observed what they believed
to be a drug transaction, he * * * could not state with specificity or certainty
that he observed drugs and money being exchanged between Boulis and the
man on the bicycle. Based on these facts, we conclude that the officers
initiated the stop on the mere hunch that a drug transaction had taken place.
{¶30} This court reached a similar conclusion in State v. Coleman, 8th Dist. No.
93451, 2009-Ohio-6471, where the denial of a motion to suppress was reversed. The
police officer in Coleman testified that “the only reason [the defendant] was stopped is
that they saw two men leaning into his car,” and this court concluded that this was not
sufficient to justify a Terry stop. Id. at ¶ 8. See also State v. Pettegrew, 8th Dist. No.
91816, 2009-Ohio-4981 (no reasonable suspicion of criminal activity when the defendant
and a man made a hand-to-hand transaction through the driver’s side window of a
vehicle, but the police officer testified that he “could not see what was exchanged, and
said it ‘could have been anything’”).
{¶31} The State argues that the facts of the case at hand are “eerily similar” to the
facts in State v. Ligon, 8th Dist. No. 81987, 2003-Ohio-3257, ¶ 27, where this court held
that “trial counsel’s failure to file a motion to suppress does not constitute ineffective
assistance of counsel.” However, we find Ligon distinguishable from the case at hand.
The issue in Ligon was defense counsel’s effectiveness. No suppression hearing was
held, and the analysis was based on trial testimony, which showed that when the police
approached “a car stopped in the middle of the street with two males leaning inside of it *
* * the two males fled on foot, and the driver immediately turned the vehicle into a
driveway.” Id. at ¶ 3. Here defendant did not flee when he saw the police; on the
contrary, he stopped when told to do so by Officer Maguth.
{¶32} In State v. Arrington, 64 Ohio App.3d 654, 657-658, 582 N.E.2d 649 (8th
Dist. 1990), this court held the following:
It is not illegal for four males to assemble by a car and engage the occupant
in conversation. * * * It is not unreasonable for a young * * * male living
in a neighborhood with drug sales and liable to be stopped to run when
approached by a police car whose officers assume a drug sale whenever
someone speaks to someone in a car and believe the mere act of
congregating justified a seizure.
This is not to deny the reality the officers face in combating the drug sellers.
But although drugs are often sold to occupants of cars by people who gather
near them it is just as likely that those merely by a car are engaged in an
innocent activity as it is that they are engaged in a illegal one. The actions
of the residents of drug “supermarkets” are nonetheless protected even if
they coincidentally mirror those of the sellers.
{¶33} Upon review, we find that the facts of the case at hand do not create a
reasonable belief of suspicious behavior justifying police intrusion. Thus, the weapon
discovered during defendant’s pat-down is inadmissible because it is fruit of the
poisonous tree. The court erred in denying defendant’s motion to suppress, and his first
assignment of error is sustained. Pursuant to App.R. 12(A)(1)(c), defendant’s second
and third assignments of error are moot.
II.
The trial court erred in denying Appellant’s motion for acquittal as to the
charges when the state failed to present sufficient evidence to sustain a
conviction.
III.
Appellant’s conviction * * * [is] against the manifest weight of the
evidence.
{¶34} Judgment reversed and defendant’s conviction and sentence are vacated.
Case remanded for proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee his costs
herein.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
State v. Garcia
Combined Opinion