State v. Thompson

[Cite as State v. Thompson, 2020-Ohio-486.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, :
No. 107999
v. :

TAYVON THOMPSON, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: February 13, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-629864-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tasha L. Forchione, Assistant Prosecuting
Attorney, for appellant.

Mark A. Stanton, Cuyahoga County Public Defender, and
Robert McCaleb, Assistant Public Defender, for appellee.

RAYMOND C. HEADEN, J.:

The state of Ohio (“the state”) appeals from the trial court’s decision

granting defendant-appellee Tayvon Thompson’s (“Thompson”) motion to

suppress. For the reasons that follow, we reverse.
Procedural and Substantive History

This case stems from events that occurred on June 14, 2018, around

11 p.m. Seven members of the Cleveland Police Department’s Gang Impact Unit

were patrolling the area surrounding 10841 Tacoma Avenue in Cleveland, Ohio in a

caravan of unmarked vehicles. Officers were aware of recent shootings in the area

and were patrolling in response to residents’ desires for more attention to that street.

Observing a group of approximately 8 to 12 people on the sidewalk,

in the front yard, and on the porch of the house at 10841 Tacoma Avenue, officers

pulled over with their lights and sirens activated. Detective James Skernivitz

(“Detective Skernivitz”) and Sergeant Alfred Johnson (“Sergeant Johnson”) testified

at the suppression hearing. Detective Skernivitz stated that as he was exiting his

vehicle, he observed a group of males shooting dice on the sidewalk. Although the

report from this incident made no mention of money being exchanged related to the

dice game, both officers testified that they observed money. As officers approached,

some of the group began to disperse. One young man, D.W., was observed going up

the driveway to the backyard of the house, fumbling with his waistband and pulling

out an object, and then coming back down the driveway, onto the porch, and into

the house. Detective Skernivitz testified that D.W. was walking. Sergeant Johnson

testified that D.W. was running and this caught his attention; this is reflected in the

incident report.

Sergeant Johnson asked Detective Skernivitz to follow D.W.’s path to

the backyard. Detective Skernivitz did so, recovering a firearm presumed to have
just been discarded by D.W. Meanwhile, Sergeant Johnson went to the front porch

in an attempt to speak with the homeowner to determine if D.W. lived at the house.

According to Sergeant Johnson, as he walked up the steps to the porch, he saw

Thompson on the porch to the left of the front door. At Thompson’s feet, Sergeant

Johnson saw the butt of a firearm that was partially covered by a coat or blanket.

Sergeant Johnson then asked everyone on the porch to stand up and move away

from the area. Sergeant Johnson asked Thompson several times to stand up and

leave the porch, and Thompson declined to do so. In response to Thompson’s failure

to comply with this instruction, Sergeant Johnson ordered Thompson to stand and

told him that he was under arrest. Thompson stood up and attempted to go through

the front door of the house. Sergeant Johnson grabbed Thompson from behind and

physically restrained him from entering the house. As both men fell to the ground,

Thompson reached into his waistband and threw a gun inside the house. Thompson

was placed under arrest for impeding the officers’ investigation of D.W.

As a result of the above, Thompson and D.W. were both taken into

custody. The Cuyahoga County Grand Jury indicted Thompson on one count of

carrying a concealed weapon in violation of R.C. 2923.12(A)(2), and one count of

receiving stolen property in violation of R.C. 2913.51(A).

On October 26, 2018, Thompson filed a motion to suppress, arguing

that the officers lacked reasonable articulable suspicion to justify his initial seizure.

The state filed a brief in opposition to this motion, and the court held a hearing on

the suppression motion on November 27, 2018.
 On December 11, 2018, the court granted Thompson’s motion to

suppress, finding that the state failed to demonstrate a reasonable articulable

suspicion of criminal activity by Thompson to justify his initial stop and detention.

The court also found that police lacked probable cause to arrest Thompson.

The state appeals, presenting a single assignment of error for our

review.

Law and Analysis

In the state’s sole assignment of error, it argues that the trial court

erred in granting Thompson’s motion to suppress. We review a trial court’s decision

on a suppression motion using a mixed standard of review. State v. Riedel, 2017-

Ohio-8865, 100 N.E.3d 1155, ¶ 30 (8th Dist.). Because the trial court assumes the

role of trier of fact and is in the best position to resolve factual questions and evaluate

witness credibility, we must accept the trial court’s findings of fact if they are

supported by competent, credible evidence. Id., citing State v. Curry, 95 Ohio

App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994), and State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The trial court’s application of the

law to its factual findings is reviewed de novo. Id., citing State v. Belton, 149 Ohio

St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 100.

The Fourth and Fourteenth Amendments to the United States

Constitution prohibit warrantless searches and seizures. Warrantless searches are

per se unreasonable unless an exception applies. Katz v. United States, 389 U.S.

347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Evidence obtained from an
unreasonable search or seizure must be suppressed. Mapp v. Ohio, 367 U.S. 643,

651, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

One well-known exception to the Fourth Amendment’s warrant

requirement is an investigative stop. In Terry v. Ohio, the United States Supreme

Court held that an officer may stop an individual when the officer has a reasonable

suspicion, supported by specific and articulable facts and rational inferences from

those facts, that the individual is engaged in criminal activity. Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion justifying a

Terry stop requires something more than an “inchoate and unparticularized

suspicion or ‘hunch.’” Cleveland v. Maxwell, 8th Dist. Cuyahoga No. 104964, 2017-

Ohio-4442, ¶ 19, quoting Terry at 27. Courts reviewing whether an officer had a

reasonable articulable suspicion must consider the totality of the circumstances “‘as

viewed through the eyes of the reasonable and prudent police officer on the scene

who must react to events as they unfold.’” Id., quoting State v. Andrews, 57 Ohio

St.3d 86, 87-88, 565 N.E.2d 1271 (1991).

At the suppression hearing, Sergeant Thompson justified his arrest of

Thompson by explaining that Thompson’s refusal to comply with an order to leave

the porch was impeding the officer’s investigation of D.W., who had just discarded

a firearm and ran into the house. The Supreme Court’s holding in Terry is as

follows:

[W]here a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity
may be afoot and that the persons with whom he is dealing may be
 armed and presently dangerous, where in the course of investigating
this behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of the
encounter serves to dispel his reasonable fear for his own or others’
safety, he is entitled for the protection of himself and others in the area
to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to
assault him.

Terry at 30. Further, the Ohio Supreme Court has held that in viewing the totality

of circumstances when determining the reasonableness of a search or seizure, courts

may consider such factors as (1) the location of the investigation being a high crime

area; (2) the time of day; (3) the officer’s experience training related to drug

transactions and weapon activity; (4) the officer’s knowledge of how these

transactions occur; (5) the officer’s observations of any furtive movements; (6) the

officer’s experience of recovering weapons or drugs when an individual makes

furtive movement; and (7) the officer being out of his or her vehicle and away from

protection. State v. Cooper, 8th Dist. Cuyahoga No. 104599, 2017-Ohio-970, ¶ 13,

citing State v. Bobo, 37 Ohio St.3d 177, 179, 524 N.E.2d 489 (1988).

Here, officers in the gang impact unit were patrolling a high crime

area after 11 p.m., and at the beginning of this incident they observed D.W. run into

the backyard as they approached in order to discard a firearm. As Sergeant Johnson

approached the porch to investigate the situation, he observed an unsecured firearm

on the floor of the porch next to Thompson and within Thompson’s reach. In an

attempt to secure the area and continue his investigation of D.W., Sergeant Johnson

ordered everyone off the porch in an attempt to secure the area and continue his
investigation. Thompson failed to comply with the officer’s instructions, which were

issued in a reasonable attempt to secure the area and continue his investigation.

In light of these circumstances, we find that Sergeant Johnson had a

reasonable, articulable suspicion that Thompson was engaged in criminal activity.

Further, we find that Thompson’s conduct following Sergeant Johnson’s approach

of the porch — failing to comply with instructions and thereby effectively impeding

an investigation, attempting to flee the porch when he was ordered to stand, and

throwing a loaded firearm into the house — constitutes probable cause for his arrest.

We agree with the trial court that the testimony presented at the

suppression hearing does not support the state’s assertion that officers observed

money changing hands during a late night dice game. We also acknowledge that

Thompson’s conduct at the outset of this incident — sitting on his porch — cannot

on its own be characterized as criminal or even suspicious. Our conclusion does not

depend on the state’s assertion that there was an illegal dice game taking place.

Further, we do not analyze Thompson’s conduct in a vacuum. As discussed above,

we consider the totality of the circumstances; this includes Thompson’s proximity

to a firearm and his failure to comply with Sergeant Thompson’s instructions to

leave the porch. For the foregoing reasons, the state’s assignment of error is

sustained.

Judgment reversed and 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.

RAYMOND C. HEADEN, JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS (WITH SEPARATE CONCURRING
OPINION);
PATRICIA ANN BLACKMON, P.J., DISSENTS (WITH SEPARATE DISSENTING
OPINION)

FRANK D. CELEBREZZE, JR., J., CONCURRING:

I concur with the majority’s resolution of the state’s sole assignment

of error. I write separately to emphasize that based on the totality of the

circumstances, Sergeant Johnson’s conduct and the commands he issued to

Thompson were both reasonable and reasonably calculated to secure the area of the

porch and ensure the safety of the officers on scene.

Sergeant Johnson testified about his observations upon walking onto

the porch:

Well, I noticed the people on the porch and in my approach I looked
down, I looked of course to check my area, check the area for my own
safety. I saw the firearm underneath — the butt of the firearm
underneath the jacket. At that point I didn’t want to proceed to the
door without — I mean knowing that I had a firearm right behind me
that’s unsecured and knowing we have other people on the porch.

(Tr. 59.) Sergeant Johnson explained that after he observed the rifle on the porch:
 I asked everyone to stand up and essentially move away from the area.
I want to put them between me and the firearm and so I could make the
firearm safe. Well, actually, and I wanted to also get to that door. And
I don’t know who’s behind the door and I don’t know what’s going on
with the person that went into the house [D.W.].

(Tr. 59-60.)

Finally, Sergeant Johnson asserted that he wanted to move the

individuals on the porch away from the rifle “[s]o that I don’t get shot or no one

reaches for the gun, or no one — myself or any of my guys even think that someone’s

reaching for the gun.” (Tr. 60.)

Until the rifle had been secured, Sergeant Johnson had a legitimate

and reasonable basis upon which to fear for his own safety and the safety of the other

officers on scene. Although Thompson was not holding or reaching for the rifle, he

was sitting close enough such that he could have grabbed the rifle — becoming

armed and presently dangerous — at any moment.

Detective Skernivitz, described the rifle that was recovered from the

porch as an “AK47 type rifle.” (Tr. 22.) Detective Skernivitz, a 20-year veteran of

the Cleveland Police Department, testified that based on his training and experience,

he would “[s]ecure” and “recover” an unsecured “AK47 type rifle” sitting in plain

view. (Tr. 23.)

For all of these reasons, I would find that Sergeant Johnson’s fear for

his own safety and the safety of the officers on the scene was reasonable based on

the totality of the circumstances, and that he was entitled to secure the porch and
the rifle to protect himself before continuing to investigate D.W. and the gun he

discarded in the backyard.

PATRICIA ANN BLACKMON, P.J., DISSENTING:

I respectfully dissent from the majority’s opinion in this case, and I

would find no error with the trial court’s granting Thompson’s motion to suppress.

Thompson was sitting on his front porch when the police arrested

him; he made no furtive movements and was not observed to be engaging in any

illegal activity. The trial court concluded that the state did not meets its burden of

demonstrating a reasonable, articulable suspicion of criminal activity required to

justify a Terry investigatory stop. Reasonable suspicion requires something more

than an “inchoate and unparticularized suspicion or hunch.” Terry, 392 U.S. at 27,

88 S.Ct. 1868, 20 L.Ed.2d 889. I agree with the trial court.

Furthermore, I do not find the probable cause required to justify

Thompson’s arrest for impeding an investigation. Thompson did not move from his

own front porch when he was ordered by the police officer. I do not see how this

impedes the investigation of another man who was allegedly seen throwing an object

from his waistband into the yard.

Therefore, I would affirm the trial court’s granting Thompson’s

motion to suppress.