[Cite as In re D.E., 2016-Ohio-4959.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103554
IN RE: D.E.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga Court of Common Pleas
Juvenile Division
Case No. DL15107865
BEFORE: Jones, A.J., Keough, J., and Stewart, J.
RELEASED AND JOURNALIZED: July 14, 2016
ATTORNEYS FOR APPELLANT
Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067
Robert L. Tobik
Cuyahoga County Public Defender
BY: Audrey Del Valle
Assistant County Public Defender
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brandon A. Piteo
Scott C. Zarzycki
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:
{¶1} In this appeal, the juvenile, D.E., challenges the trial court’s decision to deny
his motion to suppress. We affirm.
{¶2} In June 2015, D.E. was charged in a two-count complaint. Count 1 charged
having a weapon while under disability, and contained one- and three-year firearm
specifications. Count 2 charged carrying a concealed weapon. The defense filed a
motion to suppress, and the trial court held a hearing. The following testimony was
elicited at the hearing.
{¶3} At the time in question, which was approximately 10:00 p.m. in June 2015,
two detectives from the Cleveland Police Department’s gang impact unit — Colin Ginley
and Brian Middaugh — were on patrol in the area of East 105th Street around St. Clair
and Superior Avenues. Both detectives testified that this was a “high crime” area, they
routinely patrolled the area, and that many of the residents knew them and were familiar
with the vehicles they drove.1 The detectives testified that the area is considered high
crime because of the frequent arrest rate, poor lighting, and large number of abandoned
houses. They further testified that, although they are members of the gang impact unit,
they frequently conduct other police business unrelated to gang activity, such as traffic
stops.
They were not in a “standard” police cruiser; rather, they were in an unmarked black
1
Suburban, with lights and sirens located inside.
{¶4} As the detectives were driving down one of the streets in the area, they
observed approximately ten males in the middle of the street. A couple of the males
were on bicycles. According to the detectives, no one in the group appeared to be going
in any direction; rather, they appeared to just be congregating in the area. The detectives
testified that they saw “numerous” violations of the Cleveland Codified Ordinances being
committed by the group. They initially drove past the group, but then turned around and
headed back toward them, intending to stop them because of their violations of the city’s
ordinances. They also called for back-up assistance, which they routinely do in high
crime areas and situations involving numerous people.
{¶5} By the time they reached the area where the group had been, all but two of the
individuals — D.E. and another juvenile — had dispersed and the back-up assistance had
arrived. Detectives Ginley and Middaugh had the sirens and lights on their vehicle
activated. Detective Ginley testified that D.E. was riding the bicycle, interweaving
between the sidewalk and the street, while the other juvenile was walking, also
interweaving between the sidewalk and the street.
{¶6} The detectives, as well as the back-up officers, exited their vehicles and told
D.E. and the other juvenile to put their hands up, which they requested because of the
nature of the area and their inability to see due to the poor lighting. The other juvenile
complied, but D.E. did not. Instead, he got off his bicycle, and according to Detective
Ginley, started running; Detective Middaugh testified that D.E. was walking at a fast
pace.
{¶7} D.E. headed in the direction of Detective Ginley, who believed that D.E. did
not initially see him. Detective Ginley saw D.E. reach for his waistband; the detective
drew his service weapon at that time. D.E. pulled a gun out of his waistband, and
moments later, threw it to the ground. The gun was loaded. D.E. was arrested for
carrying a concealed weapon. He was also cited for riding a bicycle on a sidewalk and
lacking a signaling device on his bicycle, which the detectives testified were violations of
Cleveland Codified Ordinances.
{¶8} The juvenile court found that the detectives had reasonable suspicion for the
stop, which then turned into probable cause for the arrest and, therefore, denied D.E.’s
motion to suppress. D.E. pled no contest to both counts, but the firearm specifications
were nolled. The court adjudicated him delinquent of both counts. D.E. had been on
probation at the time the offenses were committed, and the court continued his probation.
D.E. now appeals, and in his sole assignment of error challenges the trial court’s
decision denying his motion to suppress.
{¶9} Our review of a trial court’s ruling on 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. In considering this mixed question, we view the trial court as serving as
the trier of fact and primary judge of witness credibility and the weight of the evidence
presented. State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).
Consequently, we must accept the trial court’s findings of fact so long as they are
supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71,
2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. However, we afford no such deference when
considering the trial court’s application of the law to the facts. Rather, we apply a de
novo review on this point. Burnside at ¶ 8.
{¶10} The Fourth Amendment to the United States Constitution insulates
individuals from unreasonable searches and seizures. United States v. Hensley, 469 U.S.
221, 226, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). A traffic stop initiated by a law
enforcement officer implicates the Fourth Amendment and must comply with the Fourth
Amendment’s general reasonableness requirement. Whren v. United States, 517 U.S.
806, 809, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
{¶11} If an officer’s decision to stop a motorist for a traffic violation is prompted
by a reasonable and articulable suspicion given all the circumstances, the stop is
constitutionally valid. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d
1204, ¶ 8. A citizen riding a bicycle may lawfully be stopped for a traffic violation.
State v. Roberts, 2d Dist. Montgomery No. 23219, 2010-Ohio-300, ¶ 14.
{¶12} D.E. contends that the police were not justified in their initial encounter with
him. Specifically, D.E. contends that the police did not have reasonable suspicion to
approach him for an investigative detention. In support of his contention, he refers to
the two ordinances under which he was cited.
{¶13} In regard to riding his bicycle on the sidewalk, Cleveland Codified
Ordinances 473.09(a) provides that “[n]o person shall ride a bicycle, skateboard or roller
skates upon a sidewalk within a business district.” (Emphasis added.) D.E. contends
that he was not riding his bicycle in a business district; rather, it was a residential area, as
evidenced by Detective Ginley’s testimony that D.E. was arrested in front of a house, in a
residential neighborhood.
{¶14} In regard to failing to have a signaling device on his bicycle in violation of
Cleveland Codified Ordinances 473.05,2 Detective Ginley testified that he and Detective
Middaugh noticed that violation after they had stopped D.E., not before. In light of the
two ordinances, D.E. contends that the police made a mistake in law when they stopped
him, and cites State v. Fears, 8th Dist. Cuyahoga No. 94997, 2011-Ohio-930, in support
of his contention.
{¶15} In Fears, the defendant was stopped by the police for what they believed
was a singular violation of Cleveland Codified Ordinances. The police learned after the
fact, however, that they were wrong about the defendant’s conduct being a violation of
the city’s ordinances. Nonetheless, the state contended that because the police did not
learn of its mistake until later, they were “acting with a good faith belief that they had
witnessed a traffic infraction.” Id. at ¶ 9. The defendant contended that the good-faith
exception does not apply to mistakes of law.
{¶16} This court, citing United States v. McDonald, 453 F.3d 958 (7th Cir.2006),
held that the police’s “mistake of law regarding [the defendant’s] use of a turn signal
2
The ordinance provides, “[n]o person shall operate a bicycle unless it is equipped with a bell
or other signal audible for a distance of at least one hundred (100) feet, except that a bicycle shall not
be equipped with nor shall any person use upon a bicycle any siren or whistle.”
without turning meant that the officers lacked a reasonable, articulate suspicion for the
stop.” Fears at ¶ 13.
{¶17} We agree with D.E. that the stop based on riding a bicycle on the sidewalk
was not a violation of Cleveland Codified Ordinances because the record demonstrates
that he was in a residential, not a business, area. Further, in regard to the lack of a
signaling device, the detectives admitted that they did not know that D.E. did not have a
signaling device on his bicycle until after they stopped him.
{¶18} But, nonetheless, the detectives specifically testified that when the decision
was made to turn around and head back to the group, it was because they believed that
“numerous” city ordinances were being violated. Detective Ginley testified, for
example, that D.E. was not riding the bicycle with due care and did not have any lights or
reflectors on it. See Cleveland Codified Ordinances 473.06, 473.07 and 473.08. That
D.E. was not cited for any of the above-mentioned alleged violations was not fatal to the
police’s position of reasonable suspicion to conduct the stop. Thus, this case is
distinguishable from Fears, where the defendant was stopped for only one alleged traffic
violation, which it turned out he did not violate.
{¶19} In light of the above, the police had reasonable suspicion to stop D.E., and
the trial court did not err in denying his motion to suppress. The sole assignment of
error is, therefore, overruled.
{¶20} 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 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.
LARRY A. JONES, SR., ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR