[Cite as State v. Will, 2012-Ohio-2616.]


STATE OF OHIO                      )                 IN THE COURT OF APPEALS
                                   )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                        C.A. No.      26080

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JAMES W. WILL                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2011 01 0046

                                  DECISION AND JOURNAL ENTRY

Dated: June 13, 2012



        MOORE, Presiding Judge.

        {¶1}     Appellant, James Will, appeals from the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}     On December 19, 2010, Will and two of his friends were walking in the area of

Winter Parkway Apartments in Cuyahoga Falls, when Officer Schmidt of the Cuyahoga Falls

Police Department was dispatched to the apartment complex due to a report of domestic

violence. Believing that Will was the suspect in the domestic violence report, the officer stopped

Will and his friends to obtain identification. After receiving Will’s social security number, the

officer ran the number through dispatch and discovered that, although Will was not the suspect in

the domestic violence report, he had an outstanding warrant for his arrest. The officer took Will

into custody, and Will subsequently told the officer that he had cocaine in his shoe, which was

then confiscated by the officer.
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          {¶3}   The Summit County Grand Jury indicted Will on the charge of possession of

cocaine, in violation of R.C. 2925.11(A)(C)(4), a felony of the fifth degree. Will pled not guilty

at his arraignment, and later filed a motion to suppress evidence. The trial court denied the

motion, and Will amended his plea to no contest. The trial court found Will guilty and sentenced

him to two years of community control. Will timely filed a notice of appeal and raises one

assignment of error for our review.

                                                  II.

                                    ASSIGNMENT OF ERROR

          THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT [WILL]’S
          MOTION TO SUPPRESS ILLEGALLY OBTAINED EVIDENCE.

          {¶4}   In his sole assignment of error, Will argues that the trial court erred by failing to

grant his motion to suppress the evidence because it was obtained as the result of an unjustified

stop. We do not agree.

          {¶5}   The Fourth Amendment to the United States Constitution and Article I, Section

14, of the Ohio Constitution prohibit law enforcement from conducting unreasonable and

warrantless searches and seizures. When a police officer stops and detains an individual, the

stop is a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S.

648, 653 (1979). Courts are required to exclude evidence obtained by means of searches and

seizures that are found to violate the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 657

(1961).

          {¶6}   To comply with the provisions of the Fourth Amendment in the context of a

warrantless investigative stop, a law enforcement officer “must be able to point to specific and

articulable facts which, taken together with rational inferences from those facts, reasonably

warrant” the stop. Terry v. Ohio, 392 U.S. 1, 21 (1968). The propriety of an investigative stop
                                                 3


should be reviewed in light of the totality of the circumstances. State v. Freeman, 64 Ohio St.2d

291 (1980), paragraph one of the syllabus.

       {¶7}    In his motion to suppress, Will argued that the officers did not have a reasonable

and articulable suspicion to justify stopping him, and thus the evidence obtained resulting from

the stop should have been suppressed. The evidence presented at the suppression hearing is

largely undisputed. At the hearing, Officer Schmidt testified that, on December 19, 2010, the

Cuyahoga Falls Police Department received a report of a domestic dispute involving a father and

his son at the apartment complex on Winter Parkway. Officer Schmidt was on duty at that time,

and dispatch provided him with the suspect’s name and advised the officer that the suspect had

left the scene on foot. Dispatch provided a description of the suspect as a 23-year-old male with

short dark hair, wearing black boots and a black shirt that had skulls on it. Although the officer

mistakenly believed that dispatch had reported that the suspect was wearing a hat with skulls on

it, when the officer arrived in the area of the apartment complex, he observed Will walking away

from the complex wearing a hooded shirt that appeared to have skulls on the shirt and hood. The

officer stopped Will and asked to see his identification, but Will did not have his identification

with him, and instead provided the officer with his name and social security number. Using this

information, Officer Schmidt confirmed Will’s identity through dispatch, at which point the

officer learned that, although Will was not the suspect in the domestic violence dispute, he had

an outstanding arrest warrant. The officer took Will into custody, and Will then disclosed to the

officer that he had cocaine in his shoe, which the officer confiscated. The officer testified that he

stopped Will because he was a young male wearing clothing that had skulls on it, and he was

leaving the area of the domestic violence report on foot.
                                                  4


       {¶8}     Will bases his suppression argument solely upon the propriety of the stop based

upon these facts, and we will limit our discussion accordingly. In his merit brief, Will argues

that because the trial court determined that Will’s clothing did not entirely match the description

of the suspect’s clothing, the officer could not justify stopping Will. In support of his position,

he points out that the trial court determined that the suspect was reported as wearing black boots,

whereas Will was wearing white tennis shoes.          In addition, Officer Schmidt believed that

dispatch had indicated that the suspect was wearing a hat with skulls on it, when dispatch had

instead reported that the suspect was wearing a shirt with a skull on it. Although Will was

wearing a hooded sweatshirt with skulls on it, his knit cap had no skulls on it. Because of these

discrepancies, Will argues that the officer stopped him merely because he was in the vicinity of

reported illegal activity, and this basis alone is insufficient to justify an investigative stop. Will

relies upon our decision in State v. Binford, 9th Dist. No. 22038, 2004-Ohio-5176, in support of

his position.

       {¶9}     Will has misstated our holding in Binford in his merit brief, wherein he argues

that this Court “unanimously upheld the trial court’s decision” suppressing the State’s evidence.

To the contrary, this Court reversed the trial court’s decision to suppress evidence. Id. at ¶ 12.

This misapprehension notwithstanding, legal precedent has established that a suspect’s mere

presence in the vicinity of suspected criminal activity cannot justify a Terry stop. See State v.

Davis, 140 Ohio App.3d 649, 664 (9th Dist.2000). Although a stop cannot be predicated solely

upon an individual’s presence in the area of suspected criminal activity, it is a factor that the

court may consider in reviewing the totality of the circumstances. Id. (stop not justified based

upon individual’s departure from suspect’s apartment where there was “no testimony that the

individual who left the apartment physically resembled the person who was the object of the
                                                 5


search warrant.”). As we noted above, the undisputed evidence before the trial court indicated

that the suspect was a young male, wearing a shirt with skulls upon it, and who was traveling on

foot in the vicinity of the apartments. Furthermore, Officer Schmidt testified that the skulls

appeared on both the body of the hooded sweatshirt as well as the hood; therefore, Will’s

clothing had distinctive markings that matched both the description given by dispatch and

Officer Schmidt’s misapprehension that the skulls also could be on a hat. Based upon the totality

of these circumstances, we conclude that Officer Schmidt’s suspicion that Will was the suspect

in the domestic dispute was reasonable. Therefore, the trial court did not err in denying Will’s

motion to suppress.

                                                III.

       {¶10} Accordingly, Will’s sole assignment of error is overruled, and the judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                              CARLA MOORE
                                              FOR THE COURT



CARR, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

GREGORY A. PRICE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
