[Cite as State v. Forester, 2015-Ohio-98.]




                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 101084



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLANT

                                                  vs.

                                         DANIEL F. FORESTER

                                                        DEFENDANT-APPELLEE




                                           JUDGMENT:
                                     REVERSED AND REMANDED



                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-13-579705-A

        BEFORE: Rocco, P.J., E.A. Gallagher, J., and Stewart, J.

        RELEASED AND JOURNALIZED: January 15, 2015

                                                  -i-
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: John D. Kirkland
       Brett Hammond
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Mark A. Defranco
55 Public Square
Cleveland, Ohio 44113




KENNETH A. ROCCO, P.J.:
       {¶1} Plaintiff-appellant the state of Ohio appeals from the trial court order that granted a

motion to suppress evidence filed by defendant-appellee Daniel F. Forester in this case. Forester

is charged with burglary and theft.

       {¶2} The state presents a single assignment of error, claiming that the trial court’s order is

improper, because the officers simply were conducting a stop of Forester as authorized by Terry

v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This court agrees. Consequently,

the trial court’s order is reversed, and this case is remanded for further proceedings.

       {¶3} The following testimony was presented at the suppression hearing.

       {¶4} Parma police officer Thomas Kuchler was on patrol in his zone car on the afternoon

of October 8, 2013, when dispatch notified him that a call had been made to the department of a

“suspicious male” who was “walking down the street” and “looking into backyards” in the area

of Milford and Torrington Roads. Kuchler and another police vehicle, driven by “patrolman

Brink,” both responded.

       {¶5} Upon their arrival, Kuchler and Brink observed a male “walking” westbound on

Milford. Both exited their cars and approached the male, who was Forester. Kuchler asked

Forester if he could speak to him. Forester seemed cooperative and the three “converged.”

       {¶6} However, before Kuchler could begin to ask Forester any questions, “Brink pointed

at his pocket and said, what is that in your pocket?” Forester stated that “it was a knife.” At

that point, the officers asked Forester to place his hands on the patrol car, patted him down, and

recovered a knife from his pants pocket. Forester was arrested and handcuffed for “carrying a

concealed weapon.”

       {¶7} The officers then “continued the search” of Forester’s person and found additional

items “that were of interest,” viz., a glass pipe that smelled of marijuana and a stack of envelopes
containing what appeared to be “collectible coins.” The officers asked Forester how he came by

the items, and Forester “couldn’t quite explain.” They then asked him “how he got here.”

Forester replied that he drove. They asked him where his car was, and he pointed to a side

street. Brink took Forester in his patrol car while Kuchler located Forester’s car, which was

parked on W. 48th Street. The officers placed the coins into “property found” while they placed

the knife into evidence.

        {¶8} Two days later, Jason Cooke, a Milford Road resident, reported that some coins had

been stolen from a bedroom near an open window. When he came to the police station, he

identified the coins and the knife taken from Forester as the items that were missing from his

home.

        {¶9} The Parma detective assigned to the case signed a complaint against Forester, and he

was subsequently indicted on one count of burglary and one count of theft. Forester eventually

filed a motion to suppress the evidence in this case.

        {¶10} The trial court conducted a hearing on the motion. After considering the officers’

testimony, the trial court granted Forester’s motion. The court determined that: (1) Forester was

“seized” when the officers approached him, (2) prior to that point, the officers had not observed

any possible criminal conduct on Forester’s part, and (3) the informant had not provided the

police with any information that Forester had been engaging in any possible criminal conduct.

        {¶11} The state appeals from the trial court’s order with one assignment of error. In its

assignment of error, the state contends that the police were simply conducting a lawful

investigatory stop, therefore, the trial court’s order is improper. This court agrees.

        {¶12} The trial court assumes the role of trier-of-fact when considering a motion to

suppress, thus, the court is in the best position to resolve factual questions and evaluate the
credibility of a witness. State v. Kobi, 122 Ohio App.3d 160, 701 N.E.2d 420 (6th Dist.1997).

An appellate court must accept the trial court’s findings of fact if they are supported by

competent, credible evidence. Id. Accepting the facts as found by the trial court as true, the

appellate court independently determines as a matter of law, without deferring to the trial court’s

conclusions, whether the facts meet the applicable legal standard. Id.

       {¶13} The Fourth Amendment to the United States Constitution prohibits warrantless

searches and seizures, rendering them per se unreasonable unless an exception applies. Katz v.

United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). An investigative stop, or

Terry stop, is a common exception to the Fourth Amendment warrant requirement. Terry v.

Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968).            In order to conduct a lawful

investigatory stop, the police need only establish a reasonable suspicion based on specific and

articulable facts that defendant is or was engaged in criminal activity. Delaware v. Prouse, 440

U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); State v. Lane, 8th Dist. Cuyahoga No.

89023, 2007-Ohio-5948, ¶ 17; compare Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d

357 (1979). The question of whether reasonable grounds for a stop exist must be viewed in light

of the totality of the circumstances. State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044

(1980), paragraph one of the syllabus.

       {¶14} In this case, the facts presented to the trial court indicated that a citizen informant

called to report suspicious behavior in his or her neighborhood that might have constituted the

crime of trespass. The officers were ordered to investigate, and told to look for a man who was

wearing a white T-shirt and camouflage pants, walking on a specific street, and looking into

“backyards” as he walked. As the officers were bound to do by their duty, they followed those

orders, and saw Forester, who matched the description provided by their dispatcher. Alabama v.
White, 496 U.S. 325, 110 S. Ct. 2412, 110 L.Ed.2d 301 (1990). The officers intended at that

point only to engage Forester in conversation about his activities.         Hence, this situation

constituted an investigative stop.

       {¶15} Because the officers exited their cars merely to “converge” with Forester, the

encounter was, in effect, consensual to that point. Terry. The officer’s question to Forester,

“What do you have in your pocket?” was posed merely for officer safety during the encounter in

accord with Terry rather than in order to elicit an incriminating statement. When Forester

admitted that he carried a knife, however, he thereupon provided the officers with probable cause

to arrest him for carrying a concealed weapon and with authority to seize the knife incident to the

arrest. Id.; see also In re Long, 5th Dist. Stark No. 2004-CA-00377, 2005-Ohio-3825.

       {¶16} The circumstances presented in this case demonstrate the officers were conducting

an investigatory stop based upon specific articulable facts, and questioned Forester only for

officer safety during the encounter.       State v. Hunter, 8th Dist. Cuyahoga No. 97086,

2012-Ohio-2302; see also Akron v. Lacey, 9th Dist. Summit No. 10327, 1982 Ohio App. LEXIS

12236 (Apr. 7, 1982). Consequently, the trial court erred in granting Forester’s motion to

suppress evidence.

       {¶17} The state’s assignment of error is sustained. The trial court’s decision is reversed,

and this case is remanded for further proceedings.

       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.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

MELODY J. STEWART, J., CONCURS;
EILEEN A. GALLAGHER, J., DISSENTS
(SEE ATTACHED OPINION)

EILEEN A. GALLAGHER, J., DISSENTING:

        {¶18} I respectfully dissent from the opinion of my learned colleagues.

        {¶19} At the suppression hearing, Officer Kuchler testified that Forester was cooperative,

answered questions and provided identification upon request. Forester was not belligerent, did

not make any furtive movements and did not appear to be trying to conceal anything. Kuchler

testified that the officers possessed no information to suggest that Forester had committed a

crime, was about to commit a crime or that Forester was armed and, further, they had no concern

for their safety.

        {¶20} In State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254 (8th

Dist.), this court outlined the standard of review on a motion to suppress.

        Our standard of review with respect to motions to suppress is whether the trial

        court’s findings are supported by competent, credible evidence. See State v.

        Winand, 116 Ohio App.3d 286, 688 N.E.2d 9 (7th Dist.1996), citing City of

        Tallmadge v. McCoy, 96 Ohio App.3d 604, 645 N.E.2d 802 (9th Dist.1994). This

        is the appropriate standard because “in a hearing on a motion to suppress

        evidence, the trial court assumes the role of trier of facts and is in the best position
       to resolve questions of fact and evaluate the credibility of witnesses.” State v.

       Hopfer, 112 Ohio App.3d 521, 679 N.E.2d 321 (2nd Dist.1996).

       {¶21} After accepting such factual findings, the reviewing court must independently

determine, as a matter of law, whether the applicable legal standard has been satisfied. State v.

Jones, 8th Dist. Cuyahoga No. 99837, 2014-Ohio-496.

       {¶22} The Fourth Amendment to the United States Constitution prohibits warrantless

searches and seizures, rendering them per se unreasonable unless an exception applies. Katz v.

United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). An investigative stop, or

“Terry-stop,” is a common exception to the Fourth Amendment warrant requirement. See Terry

v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As stated by this court in State v.

Paschal, 169 Ohio App.3d 200, 2006-Ohio-5331, 862 N.E.2d 196 (8th Dist.):

       In the seminal case of Terry v. Ohio, the United States Supreme Court explained
       that the Fourth Amendment allows a police officer to stop and detain an
       individual if the officer possesses a reasonable suspicion, based upon specific and
       articulable facts, that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1,
       9, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); see also State v. Andrews, 57 Ohio St.3d
       86, 565 N.E.2d 1271 (1991). A valid investigative stop must be based upon more
       than an inchoate and unparticularized suspicion or hunch that criminal activity is
       afoot. United States v. Arvizu, 534 U.S. 266, 151 L.Ed.2d 740, 122 S.Ct. 744
       (2002); Terry at 27.

       In deciding whether reasonable suspicion exists, courts must examine the “totality
       of the circumstances” of each case to determine whether the detaining officer has
       a “particularized and objective basis’ for suspecting legal wrongdoing.” Arvizu,
       quoting, United States v. Cortez, 449 U.S. 411, 417-418, 66 L.Ed.2d 621, 101
       S.Ct. 690 (1981); State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1981), citing
       State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980).

       Under this totality of the circumstances approach, police officers are permitted to
       “draw on their own experience and specialized training to make inferences from
       and deductions about the cumulative information available to them that might
       well elude an untrained person.” Arvizu, quoting, Cortez at 418. Thus, a court
       reviewing the officer’s reasonable suspicion determination must give due weight
       to the officer’s trained eye and experience and view the evidence through the eyes
       of those in law enforcement. Id. See also Andrews, at 87-88.

       {¶23} The state argues that the officers had a reasonable suspicion to conduct a

Terry-investigative stop on Forester based on the information provided by the 911 caller. I

disagree. The tip received by police simply described a man walking through the neighborhood

and looking down driveways. As noted by the trial court, the caller did not witness any illegal

activity and there was nothing in the caller’s tip that suggested Forester was engaged in or about

to be engaged in criminal activity.   Finally, Officer Kuchler admitted that he and his partner did

not attempt to covertly observe Forester’s actions prior to stopping him and Forester did not

make any furtive movements or act in a suspicious manner when approached.

       {¶24} Although the Fourth Amendment prohibits unreasonable seizures, not every

police-citizen encounter constitutes a “seizure” subject to Fourth Amendment scrutiny. United

States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).          A Fourth

Amendment seizure does not occur when a law enforcement officer “merely approach[es] an

individual on the street or in another public place” and “ask[s] him if he is willing to answer

some questions.” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

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.    Terry at 19.

A “seizure” of the person occurs when, “taking into account all of the circumstances surrounding

the encounter, the police conduct would ‘have communicated to a reasonable person that he was

not at liberty to ignore the police presence and go about his business.’ Florida v. Bostick, 501

U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), quoting Michigan v. Chesternut, 486

U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).”
       Examples of circumstances that might indicate a seizure, even where the person
       did not attempt to leave, would be the threatening presence of several officers, the
       display of a weapon by an officer, some physical touching of the person of the
       citizen, or the use of language or tone of voice indicating that compliance with the
       officer’s request might be compelled. In the absence of some such evidence,
       otherwise inoffensive contact between a member of the public and the police
       cannot, as a matter of law, amount to a seizure of that person.

(Citations omitted.) Mendenhall at 554.

       {¶25} “[T]he test for existence of a show of authority is an objective one: not whether the

citizen perceived that he was being ordered to restrict his movement, but whether the officer’s

words and actions would have conveyed that to a reasonable person.” California v. Hodari D.,

499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

       “[A]n encounter becomes a seizure if the officer engages in conduct which a
       reasonable man would view as threatening or offensive even if performed by
       another private citizen. This would include such tactics as pursuing a person who
       has attempted to terminate the contact by departing, continuing to interrogate a
       person who has clearly expressed a desire not to cooperate, renewing an encounter
       with a person who earlier responded fully to police inquiries, calling to such a
       person to halt, holding a person’s identification papers or other property, blocking
       the path of the suspect, physically grabbing and moving the suspect, drawing a
       weapon, and encircling the suspect by many officers * * *.”

(Emphasis added.) State v. Blankenship, 4th Dist. Ross No. 13CA3417, 2014-Ohio-3600,

¶ 13, quoting 4 LaFave, Search and Seizure, Section 9.3(a), at 102-104 (3 Ed.1996)

(footnotes omitted).

       {¶26} The trial court in this instance found that the officers seized or detained Forester by

a show of authority. I agree. The officers arrived on the scene in uniform driving separate

marked police vehicles. Although Officer Kuchler testified that the encounter began with a

request to speak with Forester, the trial court was in the best position to weigh this testimony and

was free to discount it in light of the police report that indicated the officers began with a demand

to know what Forester was doing in the area. Forester complied with the officer’s requests for
identification and while he stood face to face with Officer Brink, Officer Kuchler testified to

“quartering behind” Forester during Brink’s questioning.     Considering these facts objectively,

particularly Officer Kuchler’s encircling of Forester, a reasonable person would not feel free to

disregard the police and go about his business.

       {¶27} It is my opinion that the trial court correctly granted Forester’s motion to suppress

because he was seized pursuant to a show of authority without reasonable suspicion to support

the stop.



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