[Cite as State v. Phillips, 2016-Ohio-7049.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103895
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
COZTED PHILLIPS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-597714-A
BEFORE: Kilbane, P.J., Blackmon, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: September 29, 2016
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
Paul Kuzmins
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Nathalie E. Naso
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Cozted Phillips (“Phillips”), appeals from his
convictions for having a weapon while under disability, drug possession with a one-year
firearm specification, and obstructing official business. For the reasons set forth below,
we affirm.
{¶2} On August 28, 2015, Phillips was indicted in a six-count indictment. In
Counts 1 and 2, he was charged with having a weapon while under disability and carrying
a concealed weapon, both with a forfeiture specification. In Counts 3 and 6, he was
charged with drug possession and trafficking in less than 5 grams of cocaine, both with a
one-year firearm specification and forfeiture specifications. In Count 4, he was charged
with possession of criminal tools, with a furthermore clause identifying the tool as a 9mm
semiautomatic weapon, and forfeiture specifications. In Count 5, he was charged with
obstructing official business.
{¶3} The state’s evidence demonstrated that on July 20, 2015, Cleveland Police
Detective Thomas Barry (“Detective Barry”) and Sergeant Baeppler, together with other
officers from the Cleveland Police Gang Impact Unit (“CPGIU”), were on patrol in two
separate vehicles in the Buckeye neighborhood in response to complaints of “gang, gun,
and drug activity.” Detective Barry, who has 17 years of experience as a police officer,
and Sergeant Baeppler, who has 20 years of experience, both testified that they have
extensive training in dealing with gangs and identifying individuals who may be in
possession of illegal weapons.
{¶4} At approximately 10:00 p.m., as the officers turned northbound from
Buckeye Road onto East 117th Street, a one-way street, the officers observed
approximately four individuals loitering in East 117th Street, near a car that was parked
on the right side of the road. The officers continued on, then circled around the block a
second time to investigate. At this time, Phillips, who was standing in front of the
vehicle, moved to the front passenger side. According to Sergeant Baeppler, Phillips
bent slightly at the knees and slid his arm along his body, placing an object on the ground
under the car. Phillips then fled. The officers testified that in their experience, this
motion is consistent with a suspect taking a weapon out of his waistband. Sergeant
Baeppler subsequently found a loaded, black, semiautomatic handgun under the car near
the right front tire.
{¶5} According to Detective Barry, Phillips fled southbound on East 117th
Street, but Detective Barry apprehended him in a backyard. While holding Phillips on
the ground, and as he was being handcuffed, Detective Barry found several rocks of
suspected crack cocaine directly under Phillips.
{¶6} After test firing the weapon, it was determined to be operational. The
officers admitted that no DNA analysis was performed on the gun. In an interview with
Phillips at the Justice Center after his arrest, Phillips told the officers that the weapon
belonged to a juvenile who was at the scene. Phillips admitted to possessing crack
cocaine.
{¶7} After analysis, the suspected crack cocaine was determined to be crack
cocaine in an amount of less than 5 grams. This was stipulated by the parties. The
parties also stipulated that in 2014, Phillips was convicted of aggravated riot in Stark
County.
{¶8} At the close of the state’s case, the trial court acquitted Phillips of Count 6,
the trafficking charge. Phillips did not present evidence, and the matter was presented to
the jury. The jury subsequently convicted Phillips of Counts 1, 3, and 5, having a
weapon while under disability, drug possession with a one-year firearm specification, and
obstructing official business. The jury acquitted him of Counts 2 and 4, carrying a
concealed weapon and possession of criminal tools. Phillips was sentenced to a total of
two years of imprisonment. He now appeals, assigning the following sole assignment of
error for our review:
Assignment of Error
Trial counsel was ineffective when he failed to pursue a meritorious motion
to suppress based upon the unlawful seizure of [Phillips].
{¶9} Within this assignment of error, Phillips argues that the arresting officers
lacked reasonable, articulable suspicion to justify an investigatory stop because he and his
friends were simply hanging out, and some of the individuals who had been in the street
had already begun to walk back to the sidewalk by the time the officers returned to the
area. Therefore, he argues that at a minimum, the drugs recovered from him would have
been suppressed if he had effective trial counsel.
{¶10} To prevail on a claim of ineffective assistance of counsel, a defendant must
prove (1) that counsel’s performance fell below an objective standard of reasonableness,
and (2) that counsel’s deficient performance prejudiced the defendant, resulting in an
unreliable or fundamentally unfair outcome of the proceeding. Strickland v.
Washington, 466 U.S. 667-668, 692-693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
McGuire, 80 Ohio St.3d 390, 397, 1997-Ohio-335, 686 N.E.2d 1112.
{¶11} In order to establish deficient performance, it must be shown that, under the
totality of the circumstances, counsel’s representation fell below an objective standard of
reasonableness. Id. at 688. A properly licensed attorney is presumed competent. State
v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988). A court “must indulge
a strong presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance.” Id. at 689. Debatable trial tactics and strategies generally do
not constitute deficient performance. State v. Phillips, 74 Ohio St.3d 72, 85,
1995-Ohio-171, 656 N.E.2d 643. In order to establish prejudice, it must be shown that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Strickland at 694. A reasonable probability
is “a probability sufficient to undermine confidence in the outcome” of the proceeding.
Id.
{¶12} The failure to file a motion to suppress is not per se ineffective assistance of
counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52. As
explained in State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550,
the failure to file a motion to suppress constitutes ineffective assistance of
counsel only when the record demonstrates that the motion would have
been successful if made. Even if some evidence in the record supports a
motion to suppress, counsel is still considered effective if counsel could
reasonably have decided that filing a motion to suppress would have been a
futile act.
Id. at ¶ 28.
{¶13} The Fourth Amendment to the United States Constitution prohibits
warrantless searches and seizures, rendering them, per se, unreasonable unless an
exception applies. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967). An investigative stop or Terry stop is a common exception to the Fourth
Amendment warrant requirement. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968). Under Terry, a police officer may stop and briefly detain a person if the
officer has reasonable suspicion based upon specific articulable facts that the suspect is
engaged in criminal activity. Id. at 21-22.
{¶14} In State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), the Ohio
Supreme Court analyzed “what degree of conduct must a police officer observe to give
rise to a ‘reasonable suspicion.’” Id. at 178. The Bobo court held that the “propriety of
an investigative stop by a police officer must be viewed in light of the totality of the
surrounding circumstances.” Id. at paragraph one of the syllabus. The court further
held that
where a police officer, during an investigative stop, has a reasonable
suspicion that an individual is armed based on the totality of the
circumstances, the officer may initiate a protective search for the safety of
himself and others.
Id. at paragraph two of the syllabus.
{¶15} In making this determination, the Bobo court found the following facts to be
significant:
(1) [T]he area in which the actions occurred was an area of very heavy drug
activity in which weapons were prevalent; (2) it was nighttime, when
weapons could easily be hidden; (3) * * * one of the officers who
approached the vehicle in which Bobo was sitting, had about twenty years
of experience as a police officer and numerous years in the surveillance of
drug and weapon activity — included in this experience were about five
hundred arrests each for guns or drugs city-wide and over one hundred
arrests in the area in which Bobo was parked; (4) [the officer’s] knowledge
of how drug transactions occurred in that area; (5) [the officer’s]
observations of Bobo disappearing from view then reappearing when the
police car was close, looking directly at the officers and then bending down
as if to hide something under the front seat; (6) [the officer’s] experience of
recovering weapons or drugs when an individual would make the type of
gesture made by Bobo in ducking under his seat; and (7) the police officers’
being out of their vehicle and away from any protection if defendant had
been armed.
Id. at 180. Accord State v. Simmons, 2013-Ohio-5088, 5 N.E.3d 670, ¶ 16 (12th Dist.).
{¶16} However, as this court explained in State v. Fincher, 76 Ohio App.3d 721,
603 N.E.2d 329 (8th Dist.1991),where a defendant approaches an occupied car on foot
and then, upon seeing the police, retreats from the scene, this is not sufficient activity to
justify an investigative stop, even in an area of drug activity. Similarly, in State v.
Walker, 90 Ohio App.3d 132, 628 N.E.2d 91 (8th Dist.1993), this court held that the mere
fact that a defendant runs when approached by a police officer in an area of drug activity
is not sufficient to justify an investigative stop.
{¶17} In this matter, the record demonstrated that the CPGIU was patrolling the
area because of complaints of “gang, gun, and drug activity” in response to recent crimes
involving firearms and acts of violence. The stop occurred at approximately 10:00 p.m.,
when weapons could easily be hidden. The officers of the CPGIU had extensive
training on dealing with gangs and identifying individuals who may be in possession of
weapons. The record also established that the officers have extensive knowledge of how
drug transactions occur in that area. While on patrol, the officers observed a group of
people loitering in the street. The officers left the area and circled around the block.
When they returned, some of the individuals who had been in the street were on the
sidewalk, but two males remained in the street near a parked car. The officers noted that
while Phillips was watching them, he made a motion against his body and then placed an
object under the vehicle. The officers testified that with their knowledge and experience
and having made hundreds of arrests, this motion was consistent with a suspect removing
a weapon from the waistband, an area where a gun is typically held. It is a furtive
gesture. Moreover, after Phillips placed the object under the vehicle, he immediately
began to flee.
{¶18} In light of all of the foregoing, we conclude that the officers had
reasonable suspicion based upon specific articulable facts that Phillips was engaged in
criminal activity. Supported by the totality of the surrounding circumstances, and by
application of the factors set forth in Bobo, the officers properly conducted an
investigative stop of Phillips. Therefore, we are unable to conclude that Phillips’s
counsel was ineffective for failing to file a motion to suppress. Accord State v. Vallejo,
8th Dist. Cuyahoga No. 88405, 2007-Ohio-2508 (counsel was not ineffective for failing
to file a motion to suppress where the suspect discarded crack cocaine as he fled through
the abandoned house, was pursued and apprehended by the police); State v. White, 8th
Dist. Cuyahoga No. 93109, 2010-Ohio-521 (sufficient articulable facts to justify an
investigative stop where the officers patrolling a “high drug area” saw males “making
furtive gestures up between the cars and appeared to be throwing something under cars”);
State v. Spencer, 8th Dist. Cuyahoga No. 86441, 2006-Ohio-1200 (sufficient articulable
facts to justify an investigative stop where the defendant turned away and approached the
nearest apartment, began knocking then dropped an object and fled as officers
approached); State v. Love, 8th Dist. Cuyahoga No. 61312, 1992 Ohio App. LEXIS 4225
(Aug. 20, 1992) (sufficient articulable facts to justify an investigative stop where the
officers were patrolling a high crime area and observed the appellant dispose of an object
and flee as the officers approached.)
{¶19} Appellant’s sole assignment of error is overruled.
{¶20} Judgment is affirmed.
It is ordered that appellee recover of 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR