State v. Carter

[Cite as State v. Carter, 2020-Ohio-589.]

IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellant, :
No. 18AP-948
v. : (C.P.C. No. 17CR-5405)

Armon D. Carter, : (REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on February 20, 2020

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellant. Argued: Seth L. Gilbert

On brief: John P. Rutan, for appellee. Argued: John P.
Rutan.

APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.

{¶ 1} Plaintiff-appellant, State of Ohio, appeals a judgment entered by the Franklin
County Court of Common Pleas on December 4, 2018, suppressing the evidence against
defendant-appellee, Armon D. Carter, because it was obtained as a result of an
unconstitutional stop. Conducting a deferential review of the trial court's factual findings,
we do not find that it clearly erred in determining that the officers blocked in Carter with
their cruiser before developing reasonable suspicion sufficient to justify detaining him. We
affirm the judgment of the trial court and overrule the State's sole assignment of error.
I. FACTS AND PROCEDURAL POSTURE
{¶ 2} A Franklin County Grand Jury indicted Carter on October 4, 2017 for
improper handling of firearms in a motor vehicle, carrying a concealed weapon, and a fifth-
degree felony count for possession of less than five grams of cocaine with a firearm
specification. (Oct. 4, 2017 Indictment at 1-2.) Carter pled "not guilty" and filed a motion
No. 18AP-948 2

to suppress the evidence. (Oct. 18, 2017 Plea Form; May 4, 2018 Mot. to Suppress.) The
State responded in opposition and the trial court held a hearing on the matter on August 14,
2018. (May 18, 2018 Memo. Contra; Hearing Tr., filed Jan. 22, 2019.)
{¶ 3} At the hearing, two officers of the Columbus Division of Police testified.
Officer Nikolaos Velalis testified first. (Hearing Tr. at 6.) He testified that he was in
uniform in a marked cruiser working with his partner, Officer Kevin Stewart, on March 23,
2017. Id. at 7. Stewart's testimony corroborated these basic facts. Id. at 62-63. At
approximately 9:10 p.m. on that evening, he and Stewart patrolled Cooper Park in their
vehicle. At that time of night and season of the year, Cooper Park is not well lit and is
sometimes used for clandestine activities. Id. at 8. Exhibits and testimony introduced at
the hearing showed that the parking lot for Cooper Park consists of a single north-south
lane with parking spaces arrayed perpendicularly on both sides of the lane. Id. at 10-11;
Court's Exs. 1-2. Though the lane continues to the north of the lot, the lane dead-ends some
way further along at some soccer fields. (Hearing Tr. at 11.) Carter was parked nose-in,
occupying the northwest-most parking space so that both the front and passenger sides of
his car were bordered by curbs. Id. at 25-26, 65; Def. Ex. A.1 The car's engine was turned
off and not showing any lights or activity. (Hearing Tr. at 9.) Despite the fact that the car
was legally situated and that Cooper Park did not close to the public until 11 p.m., Velalis
testified that he found the automobile's presence suspicious. Id. at 9, 21-22.
{¶ 4} Velalis' and Stewart's testimony diverge when describing how they
approached Carter's vehicle. Velalis testified that he ran the car's license plate through the
cruiser's computer system when the cruiser was still 10 to 15 feet away. Id. at 10, 28. Then,
after the computer notified him of a "possible warrant" for Carter (the registered owner of
the car), he drove closer, stopping with the nose of his cruiser approximately 4 or 5 feet
behind Carter's sedan. Id. at 10, 35-36. But Velalis admitted that he could not see Carter's
license plate until he was behind the rear bumper of Carter's vehicle. Id. at 44-45. He also
admitted that his written report indicated that he stepped out of his cruiser after he ran
Carter's plate and does not say anything about driving closer first. Id. at 29. By contrast,

1 Defense exhibit A is a compact disk containing multiple video files. The portions of the exhibit that show the

position of Carter's automobile and the position of Velalis and Stewart's cruiser are located at file
"011511_main.wmv" at 21:20:34-36, file "011512_main.wmv" at 21:20:26-30, and file "012933_main.wmv"
at 21:28:33. Citations to defense exhibit A should be understood to refer to these portions of the exhibit.
No. 18AP-948 3

Stewart testified that he and Velalis were in the cruiser approximately 5 or 6 feet behind
Carter's vehicle when they ran the plate. Id. at 66-67. Stewart admitted, under questioning
from the trial judge, that they were "pretty much upon" Carter's vehicle when they ran the
plates. Id. at 73. Both officers testified that, notwithstanding the manner of their approach,
they were not running lights or siren and Carter could have left because it was physically
possible for Carter to have maneuvered his car out of the space. Id. at 11, 27, 73-74.
Specifically, when asked if Carter was free to leave, Velalis testified, "He could have left. I
wasn't going to chase him." Id. at 27. He later elaborated that Columbus Police Department
policy would not have permitted a pursuit. Id. at 29.
{¶ 5} Carter had a different view about whether he was free to leave. Carter stated
that the officers stopped the police SUV directly behind him and that he could not back up
or go forward and did not feel free to leave. Id. at 50-51. He explained that the police cruiser
was close to him and blocking the entrance to the only small path into which he could have
reversed in order to turn his car around. Id. at 53.
{¶ 6} At the hearing, Carter's counsel clarified that Carter was only disputing the
initial seizure. Id. at 17. However, for the sake of completeness, we note that after receiving
notice of the "possible warrant" for Carter, and without first verifying if the warrant was
valid, the officers approached with flashlights. Id. at 20-21, 76. Velalis noticed a gun holster
retention clip on Carter's belt as he attempted to converse with Carter, who had locked
himself in the car and refused to emerge. Id. at 15-18. After calling for and receiving
backup, the officers broke Carter's car window and forcibly removed him and arrested him.
Id. at 18. They ultimately recovered a gun from Carter's person and some amount of cocaine
(massing less than five grams) from a search of the car. Id. Although Velalis testified at the
hearing that the "possible" warrant was valid, in a recorded interview of the defendant, a
Columbus Police Detective admitted that the warrant may not have been valid and that
Madison County (which issued the "possible warrant") may have forgotten to remove the
warrant notion from the Law Enforcement Automated Data System ("LEADS"). Compare
Id. at 19, 21 with Defense Ex. B at 4:50-5:00, 6:30-7:00.
{¶ 7} After the close of evidence in the hearing, the trial court made a number of
comments about the state of the evidence. In particular, the court noted that it found that
Stewart was "more credible" in his testimony "with respect to running the plates and * * *
No. 18AP-948 4

the angle of the vehicle and driving up." Id. at 79. The court also indicated it did not agree
with the State's argument that the officers were not blocking Carter's egress. Id. at 88.
Specifically, it said, "To me, viewing that [Defense Exhibit A] and being within five to ten
feet, yeah, five feet is a lot of distance, but, given the layout there that I observed, I don't
necessarily believe they parked in a manner which he could depart." Id. The court then
recessed the hearing. Id. at 89.
{¶ 8} The parties reconvened for a ruling on December 4, 2018. At the outset, the
trial court stated, in relevant part:
THE COURT: Okay. Okay. Let me make a few statements here,
and then I'm going to go ahead and issue a ruling.

With respect to pulling up behind the vehicle - - and basically
the officers blocked the vehicle in, I believe, based upon the
testimony and just observing everything. They blocked the
vehicle in, which there was testimony that if he wanted to leave
he could have pulled around and went a different direction that
would have been contrary to normal activities.

This occurred at nine o'clock at night in a park. There were no
restrictions on anyone being in the park at nine o'clock at night.
The vehicle was legally parked. Other than pulling up on the
vehicle and saying[,] ["]suspicious activity,["] there was
nothing going on that would cause - - and this is based on the
testimony - - that would cause a person to say, ["W]hat's going
on here? Something's wrong here.["]

Id. at 93-94. After further arguments and discussion by the prosecution and the defense,
the trial court indicated mixed conclusions on the issue, initially indicating an intention to
deny the motion to suppress but then ultimately granting it. Id. at 94-104. Specifically, the
trial court found:
I'm going to reconsider what I said initially. I am going to
suppress - - grant the Motion to Suppress. The officers in this
case approached the vehicle that was legally parked in the park
within the hours that the park was open. In approaching the
vehicle, while they say there was room to back out, I think the
manner in which they approached the vehicle did, in essence,
block that vehicle. And, therefore, the Motion to Suppress is
granted.

Id. at 104.
No. 18AP-948 5

{¶ 9} The same day, December 4, 2018, the trial court issued an entry to journalize
its oral decision to grant the motion to suppress. (Dec. 4, 2018 Entry.) The State has
appealed on the grounds that sustaining Carter's suppression motion rendered the State's
"proof with respect to the pending charges so weak in its entirety that any reasonable
possibility of effective prosecution has been destroyed." (Dec. 11, 2018 Notice of Appeal at
1.) See also Crim.R. 12(K); R.C. 2945.67(A).
II. ASSIGNMENT OF ERROR
{¶ 10} The State submits a single assignment of error for review:
The trial court committed reversible error in granting the
motion to suppress.

III. DISCUSSION
{¶ 11} In reviewing decisions made on motions to suppress, we afford deference to
the trial court's factual determinations and review the trial court's recitation of historical
facts for "clear error"; however, we review statements of law and their application to facts
de novo. See, e.g., Ornelas v. United States, 517 U.S. 690, 699 (1996); In re A.J.S., 120 Ohio
St.3d 185, 2008-Ohio-5307, ¶ 50; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
¶ 8.
{¶ 12} "The United States Supreme Court recognizes three categories of police-
citizen interactions: (1) a consensual encounter, which requires no objective justification,
(2) a brief investigatory stop or detention, which must be supported by reasonable
suspicion of criminal activity, and (3) a full-scale arrest, which must be supported by
probable cause." (Citations omitted.) State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-
2854, ¶ 13, citing Florida v. Bostick, 501 U.S. 429, 434 (1991); Brown v. Illinois, 422 U.S.
590 (1975); Terry v. Ohio, 392 U.S. 1 (1968). Carter does not challenge the arrest and
search that occurred after the officers became aware of the "possible warrant" and saw
evidence that he was illegally carrying a pistol. (Hearing Tr. at 17.) Thus, this case involves
only the distinction between the first and second types of encounters: consensual
encounters, which require only the consent of the citizen, and investigatory stops, which
require reasonable articulable suspicion of criminal activity.
{¶ 13} We have previously discussed reasonable suspicion, explaining:
"[A]n investigative stop does not violate the Fourth
Amendment to the United States Constitution if the police have
No. 18AP-948 6

reasonable suspicion that 'the person stopped is, or is about to
be, engaged in criminal activity.' " State v. Jordan, 104 Ohio
St.3d 21, 2004 Ohio 6085, P35, 817 N.E.2d 864, quoting
United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690,
695, 66 L. Ed. 2d 621.

Reasonable suspicion entails some minimal level of objective
justification, "that is, something more than an inchoate and
unparticularized suspicion or 'hunch,' but less than the level of
suspicion required for probable cause." State v. Jones (1990),
70 Ohio App.3d 554, 556-57, 591 N.E.2d 810, 8 Anderson's
Ohio App. Cas. 48, citing Terry, 392 U.S. at 27, 88 S.Ct. at
1883; State v. Carter, 69 Ohio St.3d 57, 66, 1994 Ohio 343, 630
N.E.2d 355 (concluding a police "officer's inarticulate hunch
will not provide a sufficient basis for an investigative stop").
Accordingly, "[a] police officer may not rely on good faith and
inarticulate hunches to meet the Terry standard of reasonable
suspicion." Jones[, 70 Ohio App.3d] at 557.

Jones at ¶ 16-17.
{¶ 14} Using this definition, it is clear that the police had a hunch rather than a
reasonable suspicion about Carter's legally parked automobile. As the trial court articulated
the issue:
This occurred at nine o'clock at night in a park. There were no
restrictions on anyone being in the park at nine o'clock at night.
The vehicle was legally parked. Other than pulling up on the
vehicle and saying[,] ["]suspicious activity,["] there was
nothing going on that would cause - - and this is based on the
testimony - - that would cause a person to say, ["W]hat's going
on here?["]

(Hearing Tr. at 94.) Given that the trial court did not err in finding that the police did not
have probable cause or reasonable suspicion to stop or seize Carter before running the
numbers on the license plate of his vehicle, the question is whether they did, in fact, seize
him in the sense contemplated by the law.
{¶ 15} We have previously explained:
"[N]ot all personal intercourse between policemen and citizens
involves 'seizures' of persons. Only when the officer, by means
of physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a
'seizure' has occurred" within the meaning of the Fourth
Amendment.
No. 18AP-948 7

Jones at ¶ 11, quoting Terry at 19, citing Brendlin v. California, 551 U.S. 249, 254 (2007).
Here, the trial court repeatedly found (and after reviewing the testimony and video
evidence, we agree) that Carter was seized when the officers pulled up a few feet behind his
car with the result that it was effectively blocked on three sides. (Hearing Tr. at 79, 88, 93-
94, 104.) The State argues that the evidence before the trial court in fact showed that Carter
could have backed out easily. (State's Brief at 10-12.) That argument is at odds with the
trial testimony (at least those parts of it that the trial court determined were credible).
(Hearing Tr. at 79, 88, 93-94, 104.) Further, though we agree that parts of the video could
be interpreted to conclude that Carter could have managed to pull out without striking the
squad car, the maneuver would not have been simple and would have required either
driving over the curb or solid-line marked parking spaces because the police SUV was
stopped on the wrong side of the parking lot lane and was behind Carter's sedan. (Defense
Ex. A.)
{¶ 16} Moreover, the question of whether one is "free to leave" a police encounter is
not whether a contortionist or skilled driver could have wormed his way to freedom without
physically pushing an officer or bumping a squad car. The question is whether " 'in view of
all of the circumstances surrounding the incident, a reasonable person would have believed
that he was not free to leave.' " Brendlin at 255, quoting United States v. Mendenhall, 446
U.S. 544, 554 (1980), citing California v. Hodari D., 499 U.S. 621, 627 (1991); Michigan v.
Chesternut, 486 U.S. 567, 573 (1988); Immigration and Naturalization Serv. v. Delgado,
466 U.S. 210, 215 (1984). As applied to this case, then, the question so raised is what import
would a reasonable person in Carter's position assign to Velalis' decision to pull his police
SUV to the wrong side of the lane behind Carter's sedan and stop there? This is the inquiry
the trial court indicated it was using when it stated that it was "thinking about human
nature and what a person would think" about the positioning of the police SUV. (Hearing
Tr. at 74.) Essentially, the trial court considered whether the police cruiser's blocking action
fully or mostly cut off all physical possibility of escape and whether a reasonable person in
that circumstance would interpret the positioning of the cruiser as a show of authority
indicating that the officer did not want the person to leave? We agree with the trial court
that the answer to these questions is that a reasonable person would not have felt free to
leave.
No. 18AP-948 8

{¶ 17} The State also argues, in the alternative, that even if the police engaged in a
show of authority, Carter was not seized because he did not "submit" to the show of
authority. (State's Brief at 17-20.) As evidence of this, the State points to the fact that Carter
later had to be dragged from his car after the police broke the window. Id. at 18, 20.
However, this simply shows that Carter did not willingly submit to the later arrest. The
relevant seizure on appeal is the one that was effected when Velalis parked his police SUV
in such a way so as to make it difficult for Carter to leave. It is true, as the State argues, that
Carter did not overtly submit to that show of authority. Id. at 18. But the standard
enunciated in Brendlin was developed for situations precisely such as this where the show
of authority and submission to it are less than explicit. That is, Brendlin stated:
When the actions of the police do not show an unambiguous
intent to restrain or when an individual's submission to a show
of governmental authority takes the form of passive
acquiescence, there needs to be some test for telling when a
seizure occurs in response to authority, and when it does not.
The test was devised by Justice Stewart in [Mendenhall, 446
U.S. 544,] who wrote that a seizure occurs if "in view of all of
the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave," id.,
at 554 * * * . Later on, the Court adopted Justice Stewart's
touchstone, see, e.g., [Hodari D., 499 U.S. at 627; Chesternut,
486 U.S. at 573; Delgado, 466 U.S. at 215.]

Brendlin at 255. Since we (and the trial court) have already confirmed that a reasonable
person in Carter's position would not have felt free to simply drive away, the fact that Carter
did not drive away is all that is necessary to show that he submitted to the seizure. See id.
at 262 ("[W]hat may amount to submission depends on what a person was doing before the
show of authority: a fleeing man is not seized until he is physically overpowered, but one
sitting in a chair may submit to authority by not getting up to run away.").
{¶ 18} The State's final argument is that even if Carter was seized illegally before the
officers learned of the possible warrant, a valid warrant against Carter broke the causal
chain between the illegal seizure and the search such that the evidence need not have been
excluded. (State's Brief at 26-28, citing Utah v. Strieff, __ U.S. __, 136 S.Ct. 2056 (2016).
The prototypical formulation of that exception was enunciated in the original "fruit of the
poisonous tree" case, Wong Sun v. United States, 371 U.S. 471, 488 (1963). Wong Sun held,
"[w]e need not hold that all evidence is 'fruit of the poisonous tree' simply because it would
No. 18AP-948 9

not have come to light but for the illegal actions of the police. Rather, the more apt question
in such a case is 'whether, granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary taint.' " Id., quoting
Maguire, Evidence of Guilt, 221 (1959). In several ways, we find this case does not meet the
exception to Wong Sun used in Strieff and is distinguishable from Strieff.
{¶ 19} In Strieff, an officer observed the defendant exit a residence that had been
identified by a tipster as a drug house. Strieff at 2059-60. The officer stopped the
defendant, asked for his identification, ran a warrant check, and found that the defendant
had a valid warrant for his arrest. Id. at 2060. When the officer arrested the defendant and
searched him incident to the arrest, he discovered methamphetamine and paraphernalia.
Id. The United States Supreme Court reasoned that even if the initial stop was not
supported by reasonable suspicion (a point the prosecution conceded), the presence of a
valid arrest warrant was an intervening constitutionally valid justification for the arrest and
search such that those later intrusions could no longer be considered "poisoned fruit" of the
tainted stop. Id. at 2064. In making that judgment, the Court employed a three-part test
considering (1) the temporal proximity between the initially unlawful stop and the search,
(2) the presence of intervening circumstances (the warrant), and (3) the officers' actions in
detaining Carter without cause more obviously violated the Fourth Amendment. Id. at
2062-63. It found that the temporal proximity was very close (which militated in favor of
exclusion). Id. at 2062. But it also found that the officer acted reasonably (if mistakenly)
in detaining Strieff after he exited the suspected drug house and that the existence of a valid
arrest warrant, wholly unconnected with the illegal stop, strongly favored an exception to
exclusion. Id. at 2062-63.
{¶ 20} Here, as in Strieff, the arrest and search immediately followed the illegal
seizure. Thus, that factor weighs strongly in favor of suppression. Unlike in Strieff, Carter
had not just exited a suspected drug house or done anything at all suspicious. He was
merely sitting in a car parked in a public lot after dark during hours the park was open.
Thus, the stop here, conducted with little or no suspicion, was even less justified than the
stop in Strieff. The officers' actions in detaining Carter without cause were commensurately
violating the Fourth Amendment. Finally, the existence of a "valid" warrant that "strongly"
No. 18AP-948 10

militated against suppression was the principal reason the Strieff court declined to
suppress. Id. at 2062. Yet, in Carter's case, although Velalis testified that he thought the
"possible warrant" eventually turned out to be good, video evidence was introduced of a
detective interviewing Carter, essentially admitting that the "possible warrant" turned out
to have been a mistake. Compare Id. at 19, 21 with Defense Ex. B at 4:50-5:00, 6:30-7:00.
{¶ 21} Carter was not visibly breaking any laws or doing anything objectively
suspicious as he sat in his legally parked car at around 9 p.m. in a lot that did not close until
11 p.m. Velalis, based on a hunch, would have been within his rights to approach Carter to
see if he wanted to engage in a consensual conversation. But, instead, Velalis detained
Carter when he positioned his police SUV behind Carter's sedan in a way that would have
communicated to a reasonable person that Carter was not free to leave. After that show of
authority, Carter did not, in fact, attempt to leave. Then, receiving a notification that Carter
was the subject of a "possible warrant," and without first verifying that it was a valid
warrant, Velalis engaged with Carter, saw that he had a gun, broke the window of Carter's
car, dragged him bodily from the vehicle, and arrested him. Velalis' actions, the arrest, and
the search were all gained through "exploitation" of the "primary illegality," to wit, the
illegal detention that prevented Carter from simply driving away. Wong Sun at 488. They
are fruit of the poisonous tree and were properly suppressed by the trial court.
{¶ 22} The State's assignment of error is overruled.
IV. CONCLUSION
{¶ 23} We accord deference to the trial court's factual findings and do not find that
it clearly erred in determining that the officers blocked Carter in with their cruiser before
developing reasonable suspicion sufficient to justify detaining him. Everything that came
after the illegal stop—the discovery of the possible (but not actual) warrant, plain view
observation of the gun holster, breaking the window of Carter's car, forcibly arresting
Carter, and the searching of his car—was accomplished by exploitation of the illegal stop
which kept Carter present when he might otherwise have departed. The evidence obtained
from the officers' actions was properly subject to suppression. We affirm the judgment of
No. 18AP-948 11

the Franklin County Court of Common Pleas and overrule the State's sole assignment of
error.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.