State v. Collier

[Cite as State v. Collier, 2019-Ohio-3197.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-104
:
v. : Trial Court Case No. 2017-CR-423
:
DONALD COLLIER II : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 9th day of August, 2019.

...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee

CHRIS BECK, Atty. Reg. No. 0081844, 1370 N. Fairfield Road, Suite C, Beavercreek,
Ohio 45432
Attorney for Defendant-Appellant

.............
 -2-

FROELICH, J.

{¶ 1} Donald Collier II was convicted after a jury trial in the Clark County Court of

Common Pleas of trafficking in cocaine, a felony of the second degree, and aggravated

trafficking in drugs, a felony of the fourth degree. Collier appeals from his convictions,

claiming that the trial court erred in denying his pretrial motion to suppress. For the

following reasons, the trial court’s judgment will be reversed, and the case will be

remanded for further proceedings.

I. Facts and Procedural History

{¶ 2} Springfield Police Officer Kevin Hoying testified for the State at the

suppression hearing. Collier called Officer Phil Belcher as a witness. The defense also

offered five exhibits: (1) K-9 deployment report, (2) probable cause affidavit, (3) dispatch

report, (4) a recording of the 911 call, and (5) a recording of the dispatch. The evidence

at the suppression hearing established the following facts.

{¶ 3} At approximately 12:57 p.m. on March 27, 2017, an unidentified woman

called 911, stating that she was at a Wendy’s fast-food restaurant on East Main Street

and there was “suspicious activity.” She told the dispatcher that there was a “guy parked

out in a red car, and he’s had like three people show up and go straight to his car.” Upon

further questioning by the dispatcher, the woman stated that the car was a two-door

Camry, that the driver was “black,” and that the car had been there for “maybe 10 [or] 15

minutes.” The caller responded “yes” to the question of whether she believed there was

possible drug activity. There was no indication that the caller was a Wendy’s employee,

and she did not provide any information to identify herself. (See Exhibit D, 911 call.)

{¶ 4} Officer Hoying had been a police officer with the City of Springfield for more
 -3-

than 11 years; he had been a certified K-9 officer for more than four of those years. His

K-9 partner was Spike. Officer Hoying was on patrol in a marked cruiser with Spike when

he was dispatched to the Wendy’s restaurant. The dispatcher told Hoying to “check for

the red Toyota Camry on the lot” with a “black male driver, possibly dealing out of this

car.” The dispatcher reported that the caller had said the car had been there for “about

15 minutes and there’s a lot of foot traffic to this car.”

{¶ 5} Officer Hoying testified that he had conducted many traffic stops and

conducted drug search warrants in the area of Springfield where the Wendy’s was

located. However, he did not consider that particular street necessarily to be a high

crime area. He stated, “[I]t’s high in drug activity coming and going[,] but there’s a lot of

good business going on there too. It’s just a high traffic area[.]” Hoying later testified

that he had made more drug arrests near the Wendy’s than in some areas of Springfield,

but he had made substantially more drug arrests in other areas of Springfield than near

the Wendy’s.

{¶ 6} When Officer Hoying arrived at the Wendy’s, he observed a red Camry with

a black male in the driver’s seat; Hoying identified the driver as Collier at the suppression

hearing. Hoying also observed another male in the front passenger seat. Hoying did

not know either individual, and he had not previously arrested either of them for any kind

of illegal activity. The Camry was legally parked. Hoying saw other cars in the drive-

thru lane and customers in the restaurant, but he did not see any foot traffic to or from

Collier’s car; Hoying testified that “it was pretty empty where [Collier] was parked.”

Officer Hoying pulled up behind the Camry and parked. Hoying testified that the Camry

could not back out without hitting the cruiser.
 -4-

{¶ 7} Officer Hoying exited his cruiser and approached the vehicle on the driver’s

side. He noticed that the passenger had a Wendy’s Frosty dessert that was partially

eaten and had melted, and Hoying concluded from this that the individuals had been

sitting in the car for a while. Hoying testified that Collier acted “extremely nervous,”

sweating, and was not “talking real clearly as if he was trying to figure out * * * what to

say to me as to why he was there.” Officer Hoying testified that he “immediately saw a

large bulge in his [Collier’s] waistband or groin area.” Based on his experience, Hoying

had a “guess” or “suspicion” of what was located in Collier’s pants, but he did not know

what it was. Hoying did not see anything illegal in the Camry.

{¶ 8} Officer Hoying told Collier that he was there to investigate him and asked

about the foot traffic. According to Hoying’s probable cause affidavit, Collier told Hoying

that several of his (Collier’s) friends saw him sitting there and walked over to say hello.

Hoying testified at the hearing that Collier responded that “cars driving by would see him

sitting there and would pull in and get out and go approach him to say hello for a second,

get back in the car, and leave.”

{¶ 9} Approximately three minutes after the dispatch, Officer Hoying ran Collier’s

and his passenger’s information through dispatch. Dispatch informed Hoying that

neither man had any warrants, and that the Camry was properly registered. The

dispatcher provided additional information regarding the passenger’s criminal history.

{¶ 10} Shortly after Hoying’s arrival, two other officers, Officers Phil Belcher and

Jason Phillips, arrived at the scene in another marked cruiser; the officers parked behind

Hoying’s cruiser, further blocking Collier’s car from the leaving the parking lot.1 Officer

1
The exact timing of Officers Belcher and Phillip’s arrival in relation to Officer Hoying’s
 -5-

Belcher testified that he also did not see any foot traffic going to or from the Camry.

Officer Belcher walked up to Hoying, and Officer Phillips walked to the front passenger

side of the Camry. Belcher stated that Collier was acting “nervous, kind of anxious, voice

was a little crackly, talking low.” Belcher did not see Collier doing anything else out of

the ordinary.

{¶ 11} Once the other officers were there, Hoying instructed Collier to exit the

vehicle and told Collier that he (Hoying) was going to run his K-9 around the vehicle.

Officer Phillips asked the passenger to exit the vehicle. Officer Belcher testified that

Hoying had his hand on Collier’s belt to “secure” Collier until Hoying passed Collier off to

him (Officer Belcher). Officer Belcher then had his hand on Collier’s belt as they walked

to the rear of Collier’s vehicle. The officers did not handcuff Collier, but Belcher had

Collier stand with his hands on the trunk and his feet spread. Officer Belcher then walked

Collier toward the cruisers so that the K-9 could walk around the Camry.

{¶ 12} Officer Hoying walked Spike around the Camry for a free air sniff; Spike

alerted on the car’s driver’s door handle. Hoying testified that the alert indicated that

drugs were in the vehicle or had recently been in the vehicle; he stated that “recently”

could be “five minutes before or it could have been a week or more” prior to the alert.

{¶ 13} After the alert, Officer Hoying approached Collier due to the large bulk in his

pants, patted him down, and felt something hard in Collier’s waistband. Collier stated

that it was “his junk.” Hoying responded that it was not, and asked if it was a scale.

arrival is somewhat unclear. Officer Hoying’s reports suggest that the other officers
arrived contemporaneously with Hoying’s arrival. Officer Belcher testified that Officer
Hoying had arrived shortly before he and Phillips did, and that Officer Hoying was beside
the driver’s side of Collier’s vehicle when he (Belcher) got out of his cruiser. Belcher
stated that there was “a brief amount of time” between Hoying’s arrival and his.
 -6-

Collier said no. Hoying put on gloves and retrieved the item from Collier’s pants; it was

a scale. Collier also removed suspected crack cocaine from Collier’s waistband.

{¶ 14} Hoying then returned to the Camry and searched it. He located rubber

gloves, ripped plastic bags (which Hoying described as “bite and twist” drug packaging),

and a “beanie hat” with $20. Hoying testified that the drugs were sent to BCI for analysis,

and a portion tested positive for fentanyl.2

{¶ 15} On July 31, 2017, Collier was indicted for trafficking in cocaine (greater than

or equal to 20 grams, but less than 27 grams, a second-degree felony), possession of

cocaine (greater than or equal to 20 grams, but less than 27 grams, a second-degree

felony), aggravated trafficking in drugs (less than the bulk amount, a fourth-degree

felony), and aggravated possession of drugs (less than the bulk amount, a fifth-degree

felony).3 Collier subsequently moved to suppress the drugs. The trial court conducted

the suppression hearing on January 17 and February 12, 2018, during which Officers

Hoying and Belcher testified. Transcripts of the suppression hearing were prepared, and

the parties filed post-hearing memoranda.

{¶ 16} On May 22, 2018, the trial court overruled the motion to suppress. The trial

court found that the evidence was “sufficient to show that under the totality of the

circumstances the officer had a reasonable articulable suspicion of drug activity justifying

2Officer Hoying did not provide additional details about the drugs at the suppression
hearing. The BCI report submitted at Collier’s subsequent trial indicated that four
envelopes of unknown substances were submitted for analysis; three of the substances
were found to contain cocaine and one was determined to be furanyl fentanyl.
3 The indictment did not specify the Schedule I controlled substance that was the subject
of the aggravated trafficking/possession of drugs charges. However, the evidence at
trial indicated that the substance was furanyl fentanyl.
 -7-

the removal of the defendant from the car and a free air sniff by the K-9. As a result of

the positive indication by the K-9 of drugs having been in the car, the officer had probable

cause to search the car and the defendant.”

{¶ 17} The matter proceeded to a jury trial, at the conclusion of which the jury found

Collier guilty of all four offenses. The court ordered a presentence investigation. At

sentencing, the trial court merged the trafficking counts with the possession counts, and

the State elected to proceed on the trafficking counts. The court ordered Collier to serve

six years in prison for trafficking in cocaine (Count One) and 17 months for aggravated

trafficking in drugs (Count Three), with the sentence for Count Three to be served

consecutively to the sentence for Count One. The trial court imposed a mandatory fine

of $7,500 for Count One and $2,500 for Count Three, and ordered Collier to pay court

costs. The court suspended Collier’s driver’s license for five years.

{¶ 18} Collier appeals from his convictions. His sole assignment of error claims

that the trial court “erred in finding that the police did not violate the Fourth Amendment

when it denied Appellant’s motion to suppress.”

II. Waiver of Issue for Appeal

{¶ 19} On appeal, Collier argues that, at the time the police parked behind Collier’s

vehicle, they lacked a reasonable and articulable suspicion of criminal activity. He

emphasizes that the dispatch was based on an anonymous caller, which did not include

adequate indicia of reliability to allow the officers to seize and subsequently search him.

Collier notes that, although a Camry was located at the Wendy’s as reported, the vehicle

was legally parked, Hoying testified that it was not unusual for person to be in his or her

car at the Wendy’s at lunchtime, and Hoying saw no foot traffic to or from the Camry.
 -8-

{¶ 20} In response, the State first argues that the issue raised by Collier on appeal

was not raised before the trial court. The State notes that Collier specifically argued in

his motion to suppress that the officers lacked a reasonable articulable suspicion of

criminal activity to order him from his vehicle and lacked a reasonable suspicion that he

was armed and dangerous to justify as search of Collier’s person and vehicle. The State

asserts that the “issues raised at suppression and on appeal are at best tangentially

related,” and the State would have had a chance to introduce additional evidence if the

issue had been raised below. The State thus argues that Collier waived his argument

regarding the tip for appeal.

{¶ 21} Under Crim.R. 47, a motion, including a motion to suppress evidence, must

“state with particularity the grounds upon which it is made and shall set forth the relief or

order sought. It shall be supported by a memorandum containing citations of authority,

and may also be supported by an affidavit.”

{¶ 22} If a motion to suppress fails to state a particular basis for relief, that issue is

waived and cannot be argued on appeal. E.g., State v. Davis, 2017-Ohio-5613, 94

N.E.3d 194, ¶ 21 (2d Dist.); State v. Cullins, 2d Dist. Montgomery No. 23017, 2009-Ohio-

6136, ¶ 10. As stated by the Supreme Court of Ohio with respect to a motion to suppress

evidence obtained from a warrantless search:

The prosecutor must know the grounds of the challenge in order to prepare

his case, and the court must know the grounds of the challenge in order to

rule on evidentiary issues at the hearing and properly dispose of the merits.

Therefore, the defendant must make clear the grounds upon which he

challenges the submission of evidence pursuant to a warrantless search or
 -9-

seizure. Failure on the part of the defendant to adequately raise the basis

of his challenge constitutes a waiver of that issue on appeal.

(Citations omitted.) Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988).

{¶ 23} Collier’s motion to suppress, filed on October 24, 2017, asked the trial court

to suppress all items seized from his person and from his vehicle. He asserted that

(1) “there was no reasonable, articulable suspicion that defendant was engaged in

criminal activity such as would warrant stopping and/or detaining defendant,” (2) “there

was no reason to believe that defendant was armed and dangerous to justify search of

person and/or search of the vehicle within which defendant was sitting,” (3) “there was no

warrant to search and no probable cause to arrest defendant, and (4) “there was no legal

justification to search vehicle.”

{¶ 24} In his supporting memorandum, Collier contended that the officers had no

reasonable, articulable suspicion of criminal activity on defendant’s part to justify the

officers’ order that he exit the car, the search of his person, or the search of the car.

Collier further contended that the officer did not have reasonable suspicion that he was

armed and dangerous to warrant ordering him from the car or searching his person and

the car.

{¶ 25} Collier’s motion to suppress satisfied Crim.R. 47’s requirement that he

articulate particular grounds for the suppression of the evidence against him. Those

grounds included an assertion that the officers lacked a reasonable and articulable

suspicion of criminal activity to warrant an investigatory detention. The State was on

notice, prior to the hearing, that it would be required to establish that the officers’

encounter with Collier was lawful. We find the State’s argument that the issues raised
 -10-

on appeal “are at best tangentially related” to the issues raised in the motion to suppress

to be unsupported by the record.

{¶ 26} Moreover, Officer Hoying was thoroughly questioned by both parties about

the entire sequence of the investigation, including questions about the wording of the 911

call, whether the caller was anonymous, the wording of the dispatch, Officer Hoying’s

observations upon arriving at the Wendy’s, the position of Hoying’s cruiser in relation to

Collier’s vehicle, Hoying’s observations and questions to Collier upon approaching

Collier’s vehicle, when Collier was ordered to exit his vehicle, the K-9 sniff, the search of

Collier’s person, and the search of Collier’s vehicle. Officer Belcher was also questioned

about his observations upon arriving at the Wendy’s, how he parked his cruiser, what he

observed upon joining Officer Hoying at Collier’s vehicle, and how Collier was physically

controlled upon exiting the vehicle. Collier’s exhibits included, among other items,

recordings of the 911 call and of the dispatch. The suppression hearing proceedings

thus reflect that the parties considered the totality of encounter at the Wendy’s – from the

911 call to Collier’s arrest – to have been raised by Collier’s motion to suppress.

{¶ 27} The State filed a post-hearing memorandum on March 9, 2017. The

State’s memorandum included statements of the law regarding when police may conduct

an investigative stop, when police have a right to conduct a pat-down search, when

probable cause exists for an arrest, and that a canine alert “provides the probable cause

necessary for searches and seizures.” After summarizing the evidence at the

suppression hearing, the State asserted that “Officer Hoying had a reasonable and

articulable suspicion to conduct a pat-down of the defendant due to the nature of the call,

nervousness of the defendant, and the particular bulge coming from his groin area.
 -11-

Furthermore, he had probable cause to arrest the defendant based upon the canine

indicating on the vehicle. * * * The officer had sufficient indicia of probable cause to

conduct the arrest upon the canine indicating. Lastly, searching the vehicle would have

further allowed the officer to search the defendant incident to arrest based upon the

canine indicating, locating rubber gloves, and locating bite and twist bags.” The State

did not discuss whether the officers had reasonable articulable suspicion to initiate an

investigatory detention and when that detention began.

{¶ 28} Collier’s post-hearing memoranda were filed a week later (Doc. #22, 23).

Collier’s initial memorandum identified two issues for the trial court to focus on:

(1) whether Hoying had a reasonable articulable suspicion that Collier was engaged in

criminal activity to justify the officer’s ordering him out of his car, and (2) whether the dog’s

alert on the car justified a search of Collier’s person for drugs. Before addressing these

two issues, Collier provided a statement of law regarding the different types of police-

citizen encounters, when a Terry stop occurs, and when officers can conduct limited

protective searches. Collier argued:

In this case, two police cruisers pulled up behind the car in which

defendant was sitting, preventing defendant from leaving the parking lot;

three uniformed officers approached the car, two on the driver side and one

on the passenger side; Hoying opened the car door and ordered defendant

to get out of the car; Hoying grabbed defendant by the belt or waistband as

defendant exited the car, and passed defendant off to a second officer; the

second officer grabbed defendant by the belt and escorted defendant to the

rear of the vehicle, and then had defendant bend over, spread his legs and
 -12-

place his hands on the trunk of the car. Defendant was then placed in the

back seat of a police cruiser while Hoying ran his dog around the car from

which defendant had been removed. This was not a consensual

encounter. Defendant’s liberty was clearly restrained by show of force or

authority. It was at the very least an investigatory detention, if not an actual

arrest.

{¶ 29} Although Collier directed the trial court to particular issues in his post-

hearing memoranda, his memoranda cannot be read to abandon a more general

argument that the officers lacked a reasonable and articulable suspicion to justify an

investigatory detention. Accordingly, we will address the merits of Collier’s argument on

appeal.

III. Validity of the Terry Stop

{¶ 30} In ruling on a motion to suppress, the trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

court’s findings of fact if they are supported by competent, credible evidence. Retherford

at 592. “Accepting those facts as true, we must independently determine as a matter of

law, without deference to the trial court’s conclusion, whether they meet the applicable

legal standard.” Id.

A. Timing of Investigative Detention

{¶ 31} The Fourth Amendment to the United States Constitution protects
 -13-

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). 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. Id.; State v.

Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8. “An individual is

subject to an investigatory detention when, in view of all the circumstances surrounding

the incident, by means of physical force or show of authority, a reasonable person would

have believed that he was not free to leave or [was] compelled to respond to questions.”

State v. Lewis, 2d Dist. Montgomery No. 22726, 2009-Ohio-158, ¶ 22, citing United States

v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) and Terry at

19. Fourth Amendment protections are implicated in an investigatory detention, i.e., a

Terry stop.

{¶ 32} A pivotal issue in this case is when the investigatory detention of Collier

began. We conclude that it began when Officer Hoying parked behind Collier’s legally

parked vehicle such that Collier was unable to drive away without hitting Hoying’s cruiser.

{¶ 33} A “seizure” requires either “some application of physical force” or “a show

of authority to which the subject yields.” State v. Franklin, 2d Dist. Montgomery No.

15875, 1997 WL 476693, *2 (Aug. 22, 1997), citing California v. Hodari D., 499 U.S. 621,

111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); State v. Thomas, 2017-Ohio-8606, 100 N.E.3d

899, ¶ 11 (2d Dist.). Absent more, an officer does not initiate an investigatory detention

merely by approaching an individual seated in a legally parked car. See, e.g., Thomas

(officer did not detain defendants when he drove up to defendant’s vehicle without lights,

sirens, or commands and parked without blocking in defendant’s vehicle); State v. Carter,
 -14-

2d Dist. Montgomery No. 19833, 2004-Ohio-454, ¶ 19-20 (an officer’s act of pulling into

a parking lot, stopping behind a defendant’s parked car without blocking it in, illuminating

the vehicle with a spotlight, and approaching to ask questions did not constitute a Terry

stop); State v. Lopez, 2d Dist. Greene No. 94-CA-21, 1994 WL 527670, *3 (Sept. 28,

1994) (merely approaching individuals seated in a parked car does not constitute a

seizure, particularly when the vehicle is parked in a public parking lot).

{¶ 34} However, “[c]ourts have generally held that, if an officer positions his cruiser

so that a person cannot exit a parking lot without asking the officer to move, the officer

has exhibited a show of authority constituting a seizure.” State v. Bergk, 5th Dist.

Fairfield No. 16-CA-45, 2017-Ohio-8210, ¶ 19, citing State v. Wallace, 145 Ohio App.3d

116, 122-23, 761 N.E.2d 1143 (6th Dist. 2001) and State v. Inabnitt, 76 Ohio App.3d 586,

589-90, 602 N.E.2d 740 (2d Dist.1991); see also, e.g., State v. Curtis, 193 Ohio App.3d

121, 2011-Ohio-1277, 951 N.E.2d 131 (2d Dist.); State v. Maitland, 9th Dist. Summit No.

25823, 2011-Ohio-6244, ¶ 6; State v. Cookson, 4th Dist. Washington No. 00CA53, 2001

WL 1155710, *4 (Sept. 25, 2001). As we stated in Inabnitt:

One whose vehicle is blocked by a police cruiser from free movement and

who is under questioning by a uniformed officer cannot “feel free” to get into

his car and leave. His detention constitutes a “seizure” within the meaning

of the Fourth Amendment. However, the seizure was no greater than that

involved in an “investigative” stop, which is permitted when an officer

possesses reasonable and articulable suspicion that a crime may have

been committed.

Inabnitt at 589-590, citing Terry.
 -15-

{¶ 35} In this case, Officer Hoying testified that, upon arriving at the Wendy’s

restaurant, he parked behind Collier’s vehicle, which was legally parked. Hoying testified

that the Camry could not back out, because it would have hit the cruiser. When asked if

“the Camry was blocked from leaving the parking lot if the driver chose to do so,” Hoying

responded, “Correct.” In addition, Hoying testified that, when Officers Belcher and

Phillips arrived, they pulled up behind his cruiser, further blocking Collier’s vehicle from

leaving the parking lot. Hoying approached Collier on the driver’s side of the vehicle,

and Officer Belcher soon joined Officer Hoying; Officer Phillips went to the passenger side

of the Camry. Officer Hoying’s action of parking his cruiser behind Collier’s legally

parked Camry such that Collier could not leave without hitting Hoying’s cruiser was a

show of authority sufficient to initiate an investigatory detention.

B. Reasonable Articulable Suspicion

{¶ 36} Having concluded that the investigatory stop began when Hoying parked

behind Collier’s vehicle, the next question is whether Officer Hoying had a reasonable

suspicion of criminal activity to initiate the investigatory stop. We conclude he did not.

{¶ 37} We determine the existence of reasonable suspicion by evaluating the

totality of the circumstances, considering those circumstances “through the eyes of the

reasonable and prudent police officer on the scene who must react to events as they

unfold.” State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting

State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). The officer must

have more than an inchoate hunch or suspicion to justify an investigatory stop. State v.

Belvin, 2d Dist. Montgomery No. 25987, 2014-Ohio-3634, ¶ 8.

{¶ 38} “[If] an officer making an investigative stop relies solely upon a dispatch, the
 -16-

State must demonstrate * * * that the facts precipitating the dispatch justified a reasonable

suspicion of criminal activity.” (Emphasis omitted.) Maumee v. Weisner, 87 Ohio St.3d

295, 298, 720 N.E.2d 507 (1999); Maitland, 9th Dist. Summit No. 25823, 2011-Ohio-6244,

at ¶ 7.

Whether a telephone tip alone can create reasonable suspicion justifying

an investigative stop depends on its indicia of reliability. Maumee v.

Weisner, 87 Ohio St.3d 295, 299, 720 N.E.2d 507 (1999). “Factors

considered ‘highly relevant in determining the value of [the informant’s]

report’ are the informant’s veracity, reliability, and basis of knowledge.” Id.

(quoting Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 110 L.Ed.2d

301 (1990)).

Maitland at ¶ 8.

{¶ 39} “Courts have generally recognized three categories of informants: (1) the

identified citizen informant, (2) the known informant, i.e., someone from the criminal world

who has a history of providing reliable tips, and (3) the anonymous informant.” State v.

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 36, citing Maumee at

300. “[A] tip from an identified citizen informant who is a victim or witnesses a crime is

presumed reliable, particularly if the citizen relates his or her basis of knowledge.” State

v. Gress, 2d Dist. Montgomery No. 16899, 1998 WL 321014, *2 (June 19, 1998); State v.

Keith, 2016-Ohio-1263, 62 N.E.3d 649, ¶ 30 (2d Dist.).

{¶ 40} In contrast, an anonymous tip generally lacks the indicia of reliability

necessary to justify a stop. See Navarette v. California, 572 U.S. 393, 134 S.Ct. 1683,

188 L.Ed.2d 680 (2014); Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254
 -17-

(2000). In J.L., the United States Supreme Court held that an anonymous tip that a

person was carrying a gun was not, without more, sufficient to justify a police officer’s

stop and frisk of that person. Id. at 271. In so holding, the Supreme Court expressly

rejected the government’s assertion that the tip was reliable because the description of

the suspect’s visible attributes proved to be correct, i.e., that there really was a young

male of a particular race wearing a plaid shirt at the bus stop. Id. at 271-272. The Court

stated:

An accurate description of a subject’s readily observable location and

appearance is of course reliable in this limited sense: It will help the police

correctly identify the person whom the tipster means to accuse. Such a tip,

however, does not show that the tipster has knowledge of concealed

criminal activity. The reasonable suspicion here at issue requires that a tip

be reliable in its assertion of illegality, not just in its tendency to identify a

determinate person.

Id. at 272.

{¶ 41} In Navarette, the Supreme Court concluded that a motorist’s 911 call was

sufficiently reliable to justify a traffic stop of a pickup truck that reportedly ran the caller’s

vehicle off the road. Addressing the reliability of the tip, the court emphasized that (1) the

caller identified the specific vehicle, thus “necessarily claim[ing] eyewitness knowledge of

the alleged dangerous driving,” (2) the timeline of events from call to stop of the vehicle

indicating that the caller reported the incident soon after she was run off the road, and (3)

the fact that the caller used the 911 emergency system, which “has some features that

allow for identifying and tracing callers.” Id. at 399-401. The Court further concluded
 -18-

that the tip created a reasonable suspicion of an ongoing crime, such as drunk driving,

as opposed to an isolated episode of past recklessness. The Court reasoned that the

caller had reported “a specific and dangerous result of the driver’s conduct,” not just a

minor infraction, and that it was reasonable to conclude that running another vehicle off

the road was a significant indicator of drunk driving. Id. at 403. The Supreme Court

recognized that this was a “close case,” but concluded that, under the totality of the

circumstances, the indicia of reliability were sufficient to provide the officer with

reasonable suspicion that the pickup truck’s driver had run another vehicle off the road,

and thus the officer was justified in executing a traffic stop. Id. at 404.

{¶ 42} We have commented that “Navarette adds nothing to standards Ohio has

long applied.” State v. Berry, 2d Dist. Montgomery No. 28199, 2019-Ohio-1254, ¶ 43,

citing Maumee, 87 Ohio St.3d 295, 296, 302-303, 720 N.E.2d 507 (1999) (telephone

informant’s tip of report of erratic driving, i.e., “weaving all over the road”, was reliable

enough to warrant investigative traffic stop on suspicion of driving under the influence).

{¶ 43} Here, an unknown woman reportedly at the Wendy’s restaurant called 911

shortly before 1:00 p.m. to report that a red Toyota Camry had been parked in the

Wendy’s lot for 10 to 15 minutes, that the car was occupied by a black male in the driver’s

seat, and that “he’s had like three people show up and go straight to his car.” The caller

stated that she thought the behavior was suspicious, and when asked if she was

concerned about possible drug activity, the caller responded, “Yes.”

{¶ 44} At the suppression hearing, Officer Hoying agreed that the caller was

anonymous; the caller did not provide a name, Officer Hoying did not know who the caller

was, and the officer never spoke to any individual who acknowledged calling the police.
 -19-

The caller reported being located at the Wendy’s; there was no indication whether the

person was an employee of the Wendy’s restaurant. Hoying expressly testified on cross-

examination that, “because of an anonymous caller, I wanted to confirm what was being

told to us by dispatch that there was something illegal afoot. So that is why I chose to

run the dog around the car prior to looking more into the bulge.” (Tr. at 46.)

{¶ 45} When Officer Hoying arrived at the Wendy’s, he observed a red Camry with

a black male in the driver’s seat; another male was in the front passenger seat. The

Camry was legally parked. Hoying testified that he saw other cars in the drive-thru lane

and customers in the restaurant, but he did not see any foot traffic to or from Collier’s car.

In fact, Hoying testified that “it was pretty empty where [Collier] was parked.” Officer

Belcher similarly testified that, after arriving at the Wendy’s parking lot, he did not see any

foot traffic going to or from the Camry.

{¶ 46} Hoying’s testimony and the 911 call indicate that the 911 caller was an

anonymous caller, whose report is generally considered to be comparatively unreliable

and would require independent corroboration. Officer Hoying acknowledged that there

was nothing unusual about a car sitting in the parking lot for 15 minutes at Wendy’s at

1:00 in the afternoon. When Hoying and the other officers arrived, the area where the

Camry was parked was empty; the officers observed no one near the parked vehicle.

The fact that a red Camry was located at the Wendy’s restaurant, as reported, was

sufficient to identify the vehicle at issue, but the officers observed nothing to indicate that

the tip was reliable in its “assertion of illegality.” See J.L., 529 U.S. at 272, 120 S.Ct.

1375, 146 L.Ed.2d 254 (2000).

{¶ 47} Even assuming that the 911 caller were considered to be an identified
 -20-

citizen informant, the information she provided during her 911 call was insufficient to

create a reasonable articulable suspicion of criminal activity to justify the officers’

immediate blocking of Collier’s ability to leave and their initiating an investigative

detention. The 911 caller reported that she saw three individuals approach a car that

had been parked in the Wendy’s parking lot for 10 or 15 minutes at lunchtime. Although

the caller indicated that she was concerned about possible drug dealing, the caller

provided no details of the individuals’ interactions with the Camry’s occupants. The

caller did not report that she had observed one or more drug transactions or any other

criminal or dangerous activity. When asked on cross-examination about whether it

would be unusual for people to walk up to a car of someone they knew, Officer Hoying

testified that he “thought it was strange that several, enough to receive a dispatch call,

saw him [Collier] and approached him to talk to him.” Hoying nevertheless

acknowledged that “[i]t can happen.”

{¶ 48} We conclude that the officers lacked a reasonable articulable suspicion of

criminal activity to justify Collier’s investigatory detention. Consequently, the trial court

erred in denying Collier’s motion to suppress the evidence seized as a result of the

detention. Collier’s assignment of error is sustained.

IV. Conclusion

{¶ 49} The trial court’s judgment will be reversed, and the case will be remanded

for further proceedings.

.............

WELBAUM, P.J., concurs:

{¶ 50} I agree with the analysis and result in the majority opinion. However, I
 -21-

disagree with the statement in ¶ 40 of the opinion that “an anonymous tip generally lacks

the indicia of reliability necessary to justify a stop.” Rather, as the majority opinion also

states, the indicia of reliability is governed by the totality of the circumstances test in

Navarette, 572 U.S. 393, 134 S.Ct. 1683, 188 L.Ed.2d 680. In Navarette, the Supreme

Court of the United States stressed that “under appropriate circumstances, an

anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable

suspicion to make [an] investigatory stop.’ ” Id. at 397, quoting Alabama v. White, 496

U.S. 325, 327, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

{¶ 51} In considering this issue, the court described White and J. L., 529 U.S. 266,

120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), as “useful guides.” Id. at 404. After fully

analyzing these cases, the court concluded that:

Like White, this is a “close case.” As in that case, the indicia of the 911

caller's reliability here are stronger than those in J.L., where we held that a

bare-bones tip was unreliable. Although the indicia present here are

different from those we found sufficient in White, there is more than one way

to demonstrate “a particularized and objective basis for suspecting the

particular person stopped of criminal activity.” Under the totality of the

circumstances, we find the indicia of reliability in this case sufficient to

provide the officer with reasonable suspicion that the driver of the reported

vehicle had run another vehicle off the road. That made it reasonable

under the circumstances for the officer to execute a traffic stop. * * *

(Citations omitted.) Navarette at 404.

{¶ 52} In all other respects, I agree with the majority that the trial court erred in
 -22-

overruling the motion to suppress.

TUCKER, J., concurs:

{¶ 53} Although it is disconcerting that the timing of the stop was not a focus of the

suppression hearing, I agree with the majority opinion’s conclusion that a stop occurred

when Hoying positioned his cruiser so that Collier could not drive his vehicle from the

Wendy’s parking lot. I also conclude, irrespective of the tipster’s status, that the

information the tipster provided was not sufficient to allow an investigative stop. Thus, I

concur in the majority opinion’s conclusion that the drugs at issue should have been

suppressed.

Copies sent to:

John M. Lintz
Chris Beck
Hon. Richard J. O’Neill