[Cite as State v. Sweeney, 2012-Ohio-3152.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97414
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SEYMOUR SWEENEY
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-549567
BEFORE: Kilbane, J., Boyle, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: July 12, 2012
ATTORNEY FOR APPELLANT
Michael A. Partlow
112 South Water Street, Suite C
Kent, Ohio 44240
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
James M. Price
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Seymour Sweeney (“Sweeney”), appeals the trial
court’s judgment denying his motion to suppress. For the reasons set forth below, we
reverse and remand.
{¶2} In May 2011, Sweeney was charged with drug trafficking and drug
possession. In July 2011, Sweeney filed a motion to suppress the evidence obtained
against him. Specifically, he argued that he “was not engaged in any activity that * * *
could give rise to reasonable, articulable suspicion for [the] stop” by Cleveland police
officers. The trial court held a hearing on the motion on August 3, 2011, at which the
following evidence was adduced.
{¶3} At approximately 10:00 p.m. on April 21, 2011, officers from the Cleveland
Police Department executed a temporary restraining order at The Gotcha Inn, a bar
located on Lakeside Avenue in Cleveland, Ohio. Lieutenant Jerome Barrow (“Barrow”)
of the Third District Vice Unit testified that he was assigned the task of enforcing the
restraining order issued by Cuyahoga County Common Pleas Court. He testified that
The Gotcha Inn is known for illegal drug activity and shootings. He noted that in the
past year, the Gotcha Inn had over 30 civil violations and approximately four felony
arrests. The SWAT team was first on the scene for officer safety. The SWAT team
entered the bar followed by Barrow, Detective Erin O’Donnell (“O’Donnell”) of the
Third District Vice Unit, and uniformed officers from the community service unit.
{¶4} Barrow testified that there were approximately 50 to 75 patrons in the bar
when they arrived. Barrow reviewed the temporary restraining order prior to executing it
and testified there was nothing stated in the order that led him to believe that he could
detain all of the bar patrons. However, the officers still decided to detain “everyone at
the bar * * * because of the past history of the bar and for officer protection[.]”
{¶5} Sweeney was one of the patrons at The Gotcha Inn that evening.
Cleveland police officers did a patdown search of Sweeney and all of the other bar
patrons for weapons. They did not find any weapons or contraband on Sweeney’s person
or any of the other bar patrons. At this point, the bar was secured. Then, the officers
further detained Sweeney and all other patrons by asking them for their identification.
The sole purpose for the identification was to check for outstanding warrants. The
officers ran Sweeney’s driver’s license through a computer in a zone car. The
identification check revealed that Sweeney had an active warrant for contempt of court in
a driving under suspension case. Barrow testified that Sweeney was detained for
approximately ten minutes while the police completed the identification check. During
this time, Sweeney was asked to remain in the bar. As a result of the active warrant, the
police officers arrested Sweeney. The officers again did a patdown search of Sweeney
before placing him in the police cruiser and found a black plastic bag and crack cocaine
in his pocket.
{¶6} O’Donnell testified that she assisted with the task of enforcing the
restraining order on The Gotcha Inn that evening. She testified that she has been a police
officer for almost 14 years and this was the first time she executed a temporary restraining
order on a bar. O’Donnell testified that all the bar patrons were patted down for officer
safety “[d]ue to the numerous shootings that had occurred in the area[.]” After the
search revealed no weapons, the bar was secured. The officers then further detained
everyone for approximately 15 minutes solely to check for outstanding warrants on all
patrons. When asked if she was able to observe Sweeney’s behavior before he was
arrested, O’Donnell stated: “[n]ot real well. But [Sweeney] was a little bit fidgety. * *
* Like he did not want to be there.” O’Donnell further testified that the bar patrons were
only allowed to leave if they did not have any outstanding warrants.
{¶7} According to Sweeney’s appellate brief, the court denied his motion to
suppress on August 5, 2011. Sweeney then pled no contest to the indictment, and the
trial court found him guilty of the charges. The trial court sentenced him to a total of
four years in prison.
{¶8} Sweeney now appeals, raising the following single assignment of error for
review.
ASSIGNMENT OF ERROR
The trial court erred, as a matter of law, by denying [Sweeney’s] motion to
suppress the evidence.
{¶9} As an initial matter, plaintiff-appellee, the state of Ohio (“State”), notes that
there is no journal entry stating that Sweeney’s motion to suppress was denied. The
State requests that we disregard Sweeney’s assignment of error because his argument is
conjecture. However, this court has found that if “there is no journal entry indicating
appellant’s motion to suppress * * * was denied, we presume the trial court denied said
motion when the record is silent as to a ruling. When a trial court fails to rule on a
motion, the motion is considered denied.” State v. Howell, 8th Dist. No. 91569,
2009-Ohio-3092, fn. 1, citing Solon v. Solon Baptist Temple, Inc., 8 Ohio App.3d 347,
457 N.E.2d 858 (8th Dist.1982), and Georgeoff v. O’Brien, 105 Ohio App.3d 373, 378,
663 N.E.2d 1348 (9th Dist.1995). Therefore, based on the record before us, Sweeney’s
motion to suppress is considered denied, and we next address the merits of Sweeney’s
appeal.
{¶10} In reviewing a trial court’s ruling on a motion to suppress, the reviewing
court must keep in mind that weighing the evidence and determining the credibility of
witnesses are functions for the trier of fact. State v. DePew, 38 Ohio St.3d 275, 277,
528 N.E.2d 542 (1988); State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).
A reviewing court is bound to accept those findings of fact if supported by competent,
credible evidence. See State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th
Dist.1994), citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990). The
reviewing court, however, must decide de novo whether, as a matter of law, the facts
meet the appropriate legal standard. Id.; see also State v. Claytor, 85 Ohio App.3d 623,
627, 620 N.E.2d 906 (4th Dist.1993).
{¶11} Sweeney argues that he was detained without any reasonable and articulable
suspicion that he was engaged in any criminal activity. Thus, he contends that the drugs
found on his person were the fruit of the poisonous tree and should have been suppressed.
The State, on the other hand, argues that the officers’ patdown of the bar patrons was
justified because the officers had reasonable and articulable suspicion that the patrons
might be armed due to The Gotcha Inn’s reputation for illegal drug activity and shootings.
{¶12} The Fourth and Fourteenth Amendments to the United States Constitution
prohibit warrantless searches and seizures. Unless an exception applies, warrantless
searches are per se unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,
19 L.Ed.2d 576 (1967). One exception is an investigative stop. Terry v. Ohio, 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, a police officer may perform a
patdown search for weapons where the officer reasonably concludes that criminal activity
may be afoot and that the persons with whom he is dealing may be armed and presently
dangerous. Id. at 27. The existence of reasonable suspicion is based upon an objective
and particularized suspicion that criminal activity was afoot and must be based on the
totality of the surrounding circumstances. State v. Andrews, 57 Ohio St.3d 86, 87, 565
N.E.2d 1271 (1991). An officer need not testify he was actually in fear of a suspect, but
he must articulate a set of particular facts that would lead a reasonable person to conclude
a suspect may be armed and dangerous. State v. Evans, 67 Ohio St.3d 405, 413,
1993-Ohio-186, 618 N.E.2d 162.
{¶13} The State claims that the police had reasonable and articulable suspicion that
the patrons in the bar might be armed because The Gotcha Inn is known for illegal drug
activity and shootings. However, “[e]ven in high crime areas, where the possibility that
any given individual is armed is significant, Terry requires reasonable, individualized
suspicion before a frisk for weapons can be conducted.” Maryland v. Buie, 494 U.S.
325, 110 S.Ct. 1093, 108 L.Ed.2d 276, fn. 2 (1990). The fact that the bar is known for
criminal activity or located in a high-crime area
“do[es] not diminish the requirements of the Fourth Amendment or its
interpretation in Terry. The facts and circumstances before the officer
must yet reasonably suggest that some specific criminal misconduct is
afoot. That specificity requirement focuses on the criminal character of the
act, not on its setting. Acts that are essentially neutral or ambiguous do not
become specifically criminal in character because they occur in a
high-crime area. Acts that are not specifically criminal in character do not
become criminal because they are inapposite to their setting and, therefore,
‘suspicious.’ The setting can inform the officer’s judgment, but it does not
make the act criminal. In order to detain an individual to investigate for
crime, some nexus between the individual and specific criminal conduct
must reasonably exist and must be articulated by the officer.”
State v. Locklear, 8th Dist. No. 90429, 2008-Ohio-4247, ¶ 29, quoting State v.
Maldonado, 2d Dist. No. 13530, 1993 WL 402772 (Sept. 24, 1993).
{¶14} In the instant case, the officers failed to articulate any nexus between
Sweeney and any suspicious criminal conduct justifying the continued detention solely to
check for outstanding warrants. The record reveals that at 10:00 p.m., several Cleveland
police officers, including members from the SWAT team, vice unit, and community
service unit, went to The Gotcha Inn to execute a temporary restraining order stemming
from a civil nuisance case. Significantly, the officers executed the temporary restraining
order to shut down the bar in the evening when it was full with patrons. The officers
were not at The Gotcha Inn because of a criminal search warrant, which has a more
stringent standard, requiring probable cause and supporting evidence that a crime is being
committed.
{¶15} Barrow candidly testified that the temporary restraining order did not
specifically state anything that led him to believe that he could detain all of the bar
patrons. Rather, everyone at the bar was detained because of the past history of the bar
and for officer protection. O’Donnell testified that none of the 50-75 bar patrons were
free to leave when police asked the patrons to take their hands from their pockets and
patted them down for officer safety.
{¶16} The officers initially patted down Sweeney and all of the other patrons and
did not find any weapons. We recognize that in a liquor establishment officers have
authority to make a brief investigatory stop for the limited purpose of ascertaining
compliance with the liquor control laws of R.C. Chapter 4301, such as underage drinking.
State v. Bailey, 30 Ohio App.3d 44, 47, 506 N.E.2d 256 (1st Dist. 1985). In the instant
case, the bar was secured for officer safety, and it was established that Sweeney was of
legal drinking age. Subsequently, the officers’ interaction with Sweeney should have
ended at this point. Instead, however, the officers further detained Sweeney solely to
check for outstanding warrants.
{¶17} Sweeney was detained for approximately 15 minutes while the police
completed the identification check. Sweeney was not free to leave during this time.
The officers arrested Sweeney because of the active warrant. The officers did a patdown
search of Sweeney a second time before placing him in the police cruiser and found a
black plastic bag and crack cocaine in his pocket. Apart from the general reputation of
the area, the officers failed to connect Sweeney to any criminal conduct justifying the
continued detention to check for outstanding warrants. As this court stated in Locklear,
8th Dist. No. 90429, 2008-Ohio-4247:
“While the greater incidence of crime in an area is likely to make searches
performed there more productive of arrests, that corresponding probability
permits no greater governmental intrusion than the Fourth Amendment
allows elsewhere. In all instances, absent a warrant, the facts before the
officer must reasonably suggest that some specific criminal misconduct is
afoot. Otherwise, law enforcement officers may not invade the right to
personal security and privacy that the Fourth Amendment was designed to
protect.” Maldonado at [*10], citing U.S. v. Porter (C.A.8, 1987), 818
F.2d 679, certiorari denied 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 651
(1984). This court has a long history of concern for officer safety, and we
tend to credit any legitimate fact or circumstance that justifies a weapons
pat-down. However, the record must contain evidence that the officer was
reasonably in fear for his safety and that fear must be substantiated by some
form of objective fact, even in a circumstantial way. See State v. Prevo,
Cuyahoga App. No. 88968, 2007-Ohio-5452, at ¶ 23.
Locklear at ¶ 36.
{¶18} Moreover, we find the court’s reasoning persuasive in State v. Gilmer, 5th
Dist. No. 2009 CA 00283, 2010-Ohio-4631. In Gilmer, Canton police went to
D’Elegance Bar to determine if it had a valid liquor license. Canton police had received
calls that the night before an employee of the bar had a gun and several bags of pills in
the bar. When the police entered the bar, there were eight patrons in the bar. The police
asked all of the patrons to produce identification to prove that they were over the age of
21. The defendant was unable to produce identification. The police then patted down
the defendant for weapons. When the officer patted down the defendant, he felt a large
sum of money and a bag of marijuana in defendant’s pocket. The defendant filed a
motion to suppress, which the trial court denied.
{¶19} In reversing the trial court’s decision, the Gilmer court relied primarily on
Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Id. at ¶ 39-40.
The Gilmer court noted that:
In Ybarra, police officers had a search warrant to search a public tavern and
a bartender for narcotics. When the officer entered the bar, they
announced that they were also going to search the patrons for weapons.
One of the officers frisked Ybarra, who was one of the patrons, twice and
removed a cigarette pack containing several packets of heroin from his
pocket. The United States Supreme Court held that the pat-down search of
Ybarra was unconstitutional under Terry * * * because the warrant did not
authorize a search of the patrons and officers did not have reasonable
suspicion to frisk Ybarra. Ybarra, 444 U.S. at 90-93. The United States
Supreme Court, in Ybarra, stated, in relevant part, as follows: “The initial
frisk of Ybarra was simply not supported by a reasonable belief that he was
armed and presently dangerous, a belief which this Court has invariably
held must form the predicate to a pat-down of a person for weapons.
Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d
612; [Terry, 392 U.S. at 21-24.] When the police entered the Aurora Tap
Tavern on March 1, 1976, the lighting was sufficient for them to observe
the customers. Upon seeing Ybarra, they neither recognized him as a
person with a criminal history nor had any particular reason to believe that
he might be inclined to assault them. Moreover, as Police Agent Johnson
later testified, Ybarra, whose hands were empty, gave no indication of
possessing a weapon, made no gestures or other actions indicative of an
intent to commit an assault, and acted generally in a manner that was not
threatening. At the suppression hearing, the most Agent Johnson could
point to was that Ybarra was wearing a 3/4-length lumber jacket, clothing
which the State admits could be expected on almost any tavern patron in
Illinois in early March. In short, the State is unable to articulate any
specific fact that would have justified a police officer at the scene in even
suspecting that Ybarra was armed and dangerous.” Id. at 92-93 (footnote
omitted).
Gilmer at ¶ 40.
{¶20} The Gilmer court found that the police “did not have a reasonable
individualized suspicion that [defendant] was armed and dangerous[,]” and “the pat-down
search of [defendant] was in violation of [his] Fourth Amendment rights.” Id. at ¶ 42.
In Gilmer, the officer testified that he did not go to the bar to find defendant, that he had
no reports that defendant was involved in any criminal activity, and that he never saw
defendant with a gun. The officer testified that the only reason he believed that
defendant might have a weapon on him was because defendant was nervous while
everyone else at the bar “seemed to [* * *] be okay with the fact that the police are in
there checking the liquor license, asking for people’s identification.” Id. at ¶ 41.
{¶21} Similarly, in the instant case, it was clear that Sweeney was not armed and
dangerous because they did not find any weapons during their initial patdown and the bar
was secured. The State argues that under Terry, the officers legally patted down
Sweeney because he may have appeared “fidgety.” However, just as in Gilmer, we do
not find that this was a reasonable basis for concluding that he was engaged in criminal
conduct, considering that when the SWAT team, officers from the vice unit, and
uniformed officers from the community service unit entered The Gotcha Inn, the 50-75
bar patrons were not free to leave. The officers patted down all of the bar patrons, and
then asked all of the patrons for their identification solely to check for outstanding
warrants.
{¶22} Once the officers did not find any weapons, the bar was secured, and they
verified that Sweeney was of legal drinking age, the officers no longer had a reasonable,
individualized suspicion that Sweeney was involved in any criminal activity. As a result,
we find that the officers’ continued detention to check Sweeney’s identification solely for
outstanding warrants and the subsequent patdown search was in violation of Terry and
thus was illegal.
{¶23} Accordingly, the trial court erred in denying Sweeney’s motion to suppress.
{¶24} The sole assignment of error is sustained.
{¶25} Therefore, judgment is reversed and the matter is remanded to the trial court
for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR