[Cite as State v. Berrian, 2020-Ohio-1515.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                      No. 19AP-428
v.                                                  :              (C.P.C. No. 18CR-3319)

Thomas A. Berrian,                                  :           (REGULAR CALENDAR)

                 Defendant-Appellant.               :



                                              D E C I S I O N

                                      Rendered on April 16, 2020


                 On brief: Ron O'Brien, Prosecuting                Attorney,   and
                 Barbara A. Farnbacher, for appellee.

                 On brief: Yeura R. Venters, Public Defender, and George M.
                 Schumann, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Thomas A. Berrian, appeals from a judgment of the
Franklin County Court of Common Pleas entered on June 13, 2019, imposing a two-year
period of community control for the offense of carrying a concealed weapon. In this appeal,
Berrian challenges the denial of his motion to suppress the weapon on which the charge
was based. Because a 911 caller provided the police with reasonable suspicion that Berrian
was armed and dangerous, they were entitled to stop him and to frisk him for weapons.
Where Berrian was slow to comply with orders to stop and raise his hands, we find that the
officer effecting the stop did not violate the Constitution when he drew and pointed his
weapon in order to gain compliance with his order. We therefore overrule Berrian's sole
assignment of error and affirm the judgment of the trial court.
No. 19AP-428                                                                                              2


I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On July 11, 2018, a Franklin County Grand Jury indicted Berrian for carrying
a concealed weapon. (July 11, 2018 Indictment.) Soon after pleading "not guilty," Berrian
filed a motion to suppress. (July 13, 2018 Plea Form; Dec. 10, 2018 Mot. to Suppress.) The
trial court held a hearing on the motion in April 2019. (Apr. 3, 2019 Hearing Tr. filed
Aug. 14, 2019.)
        {¶ 3} At the hearing, two witnesses testified—Officer Ryan Dingfelder of the
Columbus Division of Police and Berrian himself. Id. at 4, 29. Dingfelder testified that on
July 31,1 2018, he was dispatched to 593 South Oakley Avenue. Id. at 7. The police
dispatcher advised the officer, via radio transmission and "patrol view" computer readout,
that a known caller, who provided his name and phone number, said a man was waving a
gun around and pointing it at him. Id. at 8; State's Ex. A. Dispatch described the suspect
as a five-foot-tall black male wearing a black-and-white-striped shirt. (Apr. 3, 2019 Hearing
Tr. at 8-10; State's Ex. A.) Dingfelder stated that when he arrived on the scene, there were
already other officers in front of 593 South Oakley Avenue, so he decided to check the alley
to the rear of the residence. (Apr. 3, 2019 Hearing Tr. at 10.) He drove past the residence,
turned on a side street and then began to turn into the alley. Id. at 10-11, 22. In the alley
behind the residence, he saw two men talking. Id. at 10-11. One was a short black man,
about five feet tall, wearing a black-and-white-striped shirt. Id. As Dingfelder pulled into
the alley, the men terminated their conversation and the fellow in the striped shirt started
toward the back of the house. Id. at 16-17. Dingfelder drew his gun and followed the man,
ordering him to stop and raise his hands. Id. at 19, 23-24. According to the officer, the man
(whom the officer identified as Berrian) admitted he had a weapon on his person when
Dingfelder inquired. Id. at 19. As Dingfelder held Berrian at gunpoint, another officer
approached and secured Berrian. (State's Ex. E1 at 0:33-1:23.) Dingfelder then retrieved a
gun from Berrian's pocket. Id. at 1:23-1:27. Dingfelder acknowledged that the verbal
interactions were not captured on the video because the 60-second look-back period from
the moment of the camera's activation does not contain audio data, and he did not activate
his body camera until he closed with Berrian. (Apr. 3, 2019 Hearing Tr. at 24-26.) But it is


1Given that Berrian was indicted on July 13, 2018 and the indictment contains the allegation that the offense
took place on July 1, 2018, we assume the date given by the officer at the hearing was either a misstatement
or mistranscription. See July 11, 2018 Indictment at 1.
No. 19AP-428                                                                               3


clear from gesturing visible in the video that the two engaged in conversation before
Dingfelder pointed his weapon and the other officer secured Berrian. (State's Ex. E1 at
0:33-1:23.)
       {¶ 4} Berrian's testimony was largely consistent with the video and Dingfelder's
testimony, but there were a few additional features and points of conflict of note. Berrian
stated that he had already broken off conversation with the other man and started toward
the house when he first became aware of the police cruiser in the alley. (Apr. 3, 2019
Hearing Tr. at 30.) He stated that he had a "hoodie" on, not a shirt. Id. at 31. Video
evidence shows that he was wearing a white-and-gray-striped sleeveless zippered shirt with
a black hood. (State's Ex. E1 at 0:54-1:05.) Berrian testified that he did not admit to the
officer that he had a gun. (Apr. 3, 2019 Hearing Tr. at 32.) He also stated that the
interaction was less cordial than the officer suggested in his testimony; he said he initially
was not intending to comply with the officer's orders to remain still because he felt the
commands were unconstitutional and that he only complied when the police threatened to
shoot him. Id. at 31, 34-35. The video shows that Berrian was slow to raise his hands when
first confronted by the officer with a drawn weapon. (State's Ex. E1 at 0:33-1:05.)
       {¶ 5} After a brief recess in which to consider the matter, the trial court issued a
ruling from the bench:
              THE COURT: The Court has had a chance to review the
              testimony as well as the exhibits admitted into evidence,
              Exhibits A1, A2, A3, Exhibit A, the dispatch call, Exhibit B, as
              well as Exhibit E1.

              The Court received the testimony of Officer Dingfelder. He
              testified that while working in a marked cruiser he received a
              911 dispatch to the area of 591/593 South Oakley Avenue on a
              report of a male black, about five-foot tall, in a black-and-
              white-striped shirt pointing a gun at the caller. A review of
              Exhibit A does indicate that the caller left the name Jerry and a
              contact phone number for officers.

              In response, Officer Dingfelder testified that other patrol units
              had gone to the front of the suspected residence. He went down
              the alley. As he went down the alley, he saw a male black
              matching that description in the alley talking to another
              individual on a bicycle. He said -- he testified that the suspect
              went into a backyard behind the residence at South Oakley.
No. 19AP-428                                                                   4


           He exited his cruiser, made contact with the suspect, that he
           asked if they had a weapon on his person and that the suspect
           indicated he did, that he then ordered the suspect to keep their
           hands raised. He approached and ultimately recovered a
           loaded firearm.

           Also admitted as part of Officer Dingfelder's testimony is
           Exhibit E1. It does not demonstrate what happened prior to the
           officer's arrival, his immediate observations upon arriving, but
           Exhibit E1 does confirm much of what his testimony was.
           Officer Dingfelder testified about the operation of the body
           cam, that once it's activated, it automatically goes back 60
           seconds, what he calls a look-back, that there's no audio during
           that look-back provision.

           But it's clear from reviewing Exhibit E1 that there is a
           conversation between the officer and the defendant and that a
           conversation took place. There's no audio to detail exactly what
           was said, but an individual matching the description of the
           defendant and matching a description of what the caller who
           called 911 -- the description given, it matches up very much
           with what was described, what the officer knew at the time he
           approached the scene.

           Officer Dingfelder testified that during that conversation the
           defendant admitted he had a firearm and therefore was
           detained pursuant to a search and a firearm was ultimately
           recovered.

           The Court also received the testimony of the defendant,
           Thomas Berrian. Mr. Berrian testified he was already in the
           backyard when the officers arrived, that he had not been in the
           alley prior to seeing the officers. Mr. Berrian testified that he
           did not tell the officers that he had a firearm. This can neither
           be confirmed nor denied by the body camera in Exhibit E1
           because of that look-back provision doesn't provide audio for
           those intervening 60 seconds of the look-back as testified to by
           Officer Dingfelder.

           The Court would note that Mr. Berrian testified near the bench.
           When the Court swore Mr. Berrian in, the Court did notice a
           strong odor of burnt marijuana emanating from the defendant
           and, quite frankly, I am considering that in weighing the value
           of his testimony. Mr. Berrian's testimony was slurred at times,
           was very slow, very deliberate and the Court has very serious
           concerns that Mr. Berrian testified while under the influence of
           marijuana or a combination of drugs. I -- I'm not going to have
No. 19AP-428                                                                                                   5


                 him submit to a urine screen today, but I have a lot of concerns
                 about his state of mind when he testified.

                 Even without that, Officer Dingfelder did have articulable facts
                 to engage in a brief Terry detention for purposes of the Fourth
                 Amendment and therefore the Court will deny the defendant's
                 motion to suppress at this time.

                 Looking at the totality of the circumstances, the 911 call, this is
                 not an anonymous caller. This is a caller with a number and a
                 name. The description given matches that of what the officer
                 found when he arrived at the scene. And State's Exhibit E1, the
                 body cam, although it would be nice to have that recording of
                 the audio when he first arrived, it does match up with the
                 officer's testimony.

                 The Court finds that Officer Dingfelder testified accurately and
                 finds his testimony simply more credible based on all the
                 information before the Court. Therefore, in light -- you know,
                 comparing Officer Dingfelder's testimony to that of Mr.
                 Berrian, the Court finds that Officer Dingfelder is, for purposes
                 of today's hearing, more credible. Therefore the motion to
                 suppress will be denied.

                 Furthermore, the motion regarding the statements -- to
                 suppress the statements, although Mr. Berrian was not
                 Mirandized, the officer's questioning was necessary for officer
                 safety and to protect the public regarding the existence of a
                 firearm. The nature of the call was that there was a firearm
                 displayed and used in a threatening manner to the caller and
                 therefore the statements will be admitted at trial as well.

(Apr. 3, 2019 Hearing Tr. at 36-40.)
        {¶ 6} The trial court memorialized its decision in an entry issued later that day.
(Apr. 3, 2019 Entry.) Less than one week later, Berrian pled "no contest" to the charge of
carrying a concealed weapon. (Apr. 8, 2019 Plea Form; Apr. 8, 2019 Plea Hearing Tr., filed
Aug. 14, 2019.) On June 13, 2019, the trial court sentenced Berrian to two years of
community control. (June 13, 2019 Jgmt. Entry2; June 13, 2019 Sentencing Hearing Tr.,
filed Aug. 14., 2019.)
        {¶ 7} Berrian now appeals.


2The trial court also issued a corrected entry on July 23, 2019, correcting a clerical error in the original entry
that had incorrectly stated that Berrian pled "guilty" rather than "no contest." Compare June 13, 2019 Jgmt.
Entry at 1 with July 23, 2019 Corr. Jgmt. Entry at 1.
No. 19AP-428                                                                                 6


II. ASSIGNMENT OF ERROR
       {¶ 8} Berrian presents a single assignment of error for review:
              The trial court erred in denying the Defendant-appellant's
              motion to suppress evidence obtained in violation of U.S.
              Const. Amend. IV, XIV, and Ohio Const. Art I, § 14.

III. DISCUSSION
       {¶ 9} 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.
       {¶ 10} "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 (10th Dist.), 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). In this case, there seems to be little
dispute that Berrian was the subject of a "brief investigatory stop or detention" when
Dingfelder told Berrian to put his hands up and trained his gun on him. See, e.g., State's
Brief at 4-5; Berrian's Brief at 8. The question at the trial level was whether that stop was
based on reasonable suspicion of criminal activity.
       {¶ 11} We have previously explained the framework of reasonable suspicion:
              "[A]n investigative stop does not violate the Fourth
              Amendment to the United States Constitution if the police have
              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),
No. 19AP-428                                                                               7


              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 at 557.

Jones at ¶ 16-17. Though Berrian argued before the trial court that there was not reasonable
suspicion for Dingfelder's actions to stop and detain him, on appeal, Berrian now concedes
that there was reasonable suspicion to stop him based on the identified 911 caller's
information. (Berrian's Brief at 10.) See also, e.g., Navarette v. California, 572 U.S. 393,
395, 399-402 (2014). Berrian's argument now centers on the contention that the police
acted unreasonably in how they applied the information they received from the caller.
(Berrian's Brief at 10-23.)
       {¶ 12} The United States Supreme Court has "described 'the balancing of competing
interests' as 'the key principle of the Fourth Amendment.' Michigan v. Summers, 452 U.S.
692, 700, n. 12 (1981). See also Camara v. Municipal Court, 387 U.S. 523, 536-537 (1967).
Because one of the factors is the extent of the intrusion, it is plain that reasonableness
depends on not only when a seizure is made, but also how it is carried out. United States v.
Ortiz, 422 U.S. 891, 895 (1975); Terry v. Ohio, 392 U.S. 1, 28-29 (1968)." Tennessee v.
Garner, 471 U.S. 1, 8 (1985). Berrian argues that the police acted unreasonably in this case
because they effected the Terry seizure at gunpoint. (Berrian's Brief at 10-23.)
       {¶ 13} As this argument was not asserted in the trial court but involves significant
constitutional implication, we review it for plain error. State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, ¶ 21-22. An appellant seeking to show plain error must show that an
obvious error affected his or her substantial rights. Id.; see also Crim.R. 52. He must
"demonstrate 'a reasonable probability that the error resulted in prejudice,' such that there
is a 'probability of a different result [that] is sufficient to undermine confidence in the
outcome of the proceeding.' " (Emphasis sic.) State v. Pippins, 10th Dist. No. 15AP-137,
2020-Ohio-503, ¶ 25, quoting State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, ¶ 130;
accord State v. Burney, 10th Dist. 15AP-197, 2020-Ohio-504, ¶ 23.
       {¶ 14} The police officer in this case had information from an identified 911 caller
(as relayed through a police dispatcher) that a short black man in a black-and-white-striped
No. 19AP-428                                                                                  8


shirt was waving a gun around and had pointed it at the caller. (Apr. 3, 2019 Hearing Tr.
at 8; State's Ex. A.) Berrian has conceded that this amounted to reasonable suspicion to
stop him, and this is consistent with caselaw finding such identified citizen callers are more
reliable than anonymous tipsters. (Berrian's Brief at 10.) See also, e.g., Navarette, 572 U.S.
at 399-402. Reasonable suspicion only exists, however, where the information relayed
supports an inference that criminal activity may be afoot. Id. at 401, quoting Terry at 30.
Thus, implicit in Berrian's admission that there was reasonable suspicion is the recognition
that one or more violent crimes may be inferred from a report that a person was waving a
gun around and pointing it at someone.              See, e.g., R.C. 2901.01(A)(9)(a); R.C.
2903.11(A)(2); R.C. 2903.12(A)(2); R.C. 2903.21(A). On the facts of this case, Berrian's
admission is tantamount to an admission that the police had reason to suspect that he was
armed and dangerous sufficient to trigger the right to frisk him for weapons under Terry at
25-28.
         {¶ 15} Even after acknowledging reasonable suspicion existed, Berrian still argues
that the stop and detention violated the Constitution when the police drew and pointed
their guns at him in effectuating the stop. It is clearly established in constitutional law that
an officer may not actually employ deadly force in effecting a stop or arrest "unless it is
necessary to prevent the escape and the officer has probable cause to believe that the
suspect poses a significant threat of death or serious physical injury to the officer or others."
(Emphasis added.) Garner, 471 U.S. at 1, 3. It may be argued here that the officers, at the
time they encountered Berrian behind the house and saw him walking calmly toward it with
no visible weapons, did not have probable cause to believe at the time of the stop that
Berrian posed a "significant threat of death or serious physical injury to the officer or
others." Id.; see also State's Ex. E1 at 0:22-1:05. However, the officer did not have any
assurance that Berrian did not have the gun that the identified 911 caller stated he had been
waving around and pointing at the caller. Moreover, importantly, unlike in Garner, the
officer in this case did not actually employ deadly force; he merely threatened it. Further,
according to Berrian's own testimony, Berrian initially did not comply with the order to
stop and raise his hands. (Apr. 3, 2019 Hearing Tr. at 31, 34-35; State's Ex. E1 at 0:33-
1:05.) The parties cite no case (nor could we find one) in which a court found a violation of
the Constitution where officers chose to draw and point their weapons when confronting a
suspect they reasonably believed to be armed and dangerous. In fact, the little caselaw we
No. 19AP-428                                                                               9


have found on this issue falls in precisely the opposite direction, against Berrian's
argument. State v. Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622, ¶ 22.
       {¶ 16} We do not find that the officers effected the stop and search in this case in an
unreasonable way. Nor do we find plain error in the trial court's failure to suppress on that
ground. Berrian's sole assignment of error is overruled.
IV. CONCLUSION
       {¶ 17} Because the tip in this case provided the police with reasonable suspicion that
Berrian was armed and dangerous, the officers were entitled under the law to stop him and
to frisk him for weapons. It was not a violation of the Constitution for the police officer to
have drawn his weapon and trained it on Berrian to effect the stop and frisk, particularly
since Berrian was initially noncompliant and slow in obeying the officer's instructions to
stop and raise his hands. Because we overrule Berrian's sole assignment of error, we affirm
the judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.

                      DORRIAN and BEATTY BLUNT, JJ., concur.
