[Cite as State v. Lynch, 196 Ohio App.3d 420, 2011-Ohio-5502.]




                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 96441



                                THE STATE OF OHIO,
                                                          APPELLEE,

                                                     v.

                                    TYRONE LYNCH,
                                                          APPELLANT.




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-538646

        BEFORE: Boyle, P.J., Sweeney, J., and Jones, J.

        RELEASED AND JOURNALIZED: October 27, 2011
                                   2

ATTORNEYS:

      William D. Mason, Cuyahoga County Prosecuting Attorney, and Jeffrey S.
Schnatter, Assistant Prosecuting Attorney, for appellee.

Jaye M. Schlachet and Eric M. Levy, for appellant.
                                             3




       MARY J. BOYLE, Presiding Judge.

       {¶ 1} Defendant-appellant, Tyrone Lynch, appeals the trial court’s denial of his

motion to suppress.    After reviewing the facts and pertinent law, we reverse the trial

court’s decision and remand the case for further proceedings.

                           Procedural History and Factual Background

       {¶ 2} In June 2010, Lynch was indicted on eight counts: two counts of drug

possession, three counts of drug trafficking, and one count each of possessing criminal

tools, carrying a concealed weapon, and having a weapon while under a disability.        All

the counts also included additional specifications (most were forfeiture specifications, but

the drug-related counts also included a one-year firearm specification and one of the

drug-trafficking counts carried a juvenile specification).    Lynch moved to suppress all

evidence.   The following facts were presented at the suppression hearing.

       {¶ 3} Detective Michael Rasberry and Detective Luther Roddy testified that as

Cleveland vice detectives, they had been involved in thousands of drug arrests. On the

night in question, they were investigating citizen complaints of drug activity in the area of

Prince Avenue.    The complaints were nearly a year old, but they testified that they had

also made recent drug arrests in the area.   They were driving an unmarked black Crown

Victoria.
                                               4

       {¶ 4} Around midnight, as they were driving, they saw a car stopped in the

middle of Prince Avenue with its brake lights on. A man, later identified to be Lynch,

was standing on the driver’s side of the vehicle, leaning down into the car.       Detective

Rasberry said that seeing this “struck a nerve” because he had “witnessed transactions in

the street, transactions with vehicles, individuals hand to hand,” or “some kind of

transaction of drugs for currency, money.”       The detectives then saw the vehicle drive

away, definitely exceeding the speed limit.      When the car pulled away, Lynch “made a

little hurry-scurry” to an SUV that was running, but legally parked on the side of the road,

and got in the driver’s side of the vehicle.

       {¶ 5} At this point, the detectives activated their lights and “pulled right up on the

side of the vehicle.”    After they activated their lights, “the seated driver was kind of

jumping around the vehicle to his left of his body.”            That suggested to Detective

Rasberry that Lynch was trying to hide drugs or weapons.

       {¶ 6} As the detectives approached the driver’s side of the vehicle, they saw a

teenage girl who appeared to be high or intoxicated in the passenger seat.             They

identified themselves as police and asked Lynch what he had been doing in the street.

Lynch replied that he was talking to his friend. At that point, the detectives asked Lynch

if he had a driver’s license on his person.          When Lynch replied that he did not, the

detectives asked him to step out of the vehicle “to ask him more questions about him not

having a license.”    Eventually, the detectives figured out that Lynch had a suspended
                                           5

driver’s license and they placed him under arrest.     After that, other officers searched

Lynch’s vehicle and discovered drugs and a gun in the car.

       {¶ 7} After hearing the evidence, the trial court denied Lynch’s motion to

suppress. Lynch subsequently pleaded no contest to the indictment as charged. It is

from this judgment that Lynch appeals, raising several Fourth Amendment issues.

                                      Standard of Review

       {¶ 8} A motion to suppress presents a mixed question of law and fact.       State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.                  “When

considering a motion to suppress, the trial court assumes the role of trier of fact and is

therefore in the best position to resolve factual questions and evaluate the credibility of

witnesses. * * * Consequently, an appellate court must accept the trial court’s findings of

fact if they are supported by competent, credible evidence. * * * Accepting these facts as

true, the appellate court must then independently determine, without deference to the

conclusion of the trial court, whether the facts satisfy the applicable legal standard.”

(Citations omitted.) Id.

                                       Fourth Amendment

       {¶ 9} A motion to suppress evidence challenges the warrantless search and

seizure at issue as being in violation of the Fourth Amendment of the United States

Constitution.   State v. Williams, 8th Dist. No. 81364, 2003-Ohio-2647, ¶ 7.           The

principal remedy for such a violation is the exclusion of evidence from the criminal trial

of the individual whose rights have been violated. Id. Exclusion is mandatory when the
                                           6

evidence is obtained as a result of an illegal search. Id., citing Mapp v. Ohio (1961), 367

U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

       {¶ 10} 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 (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d

576.   An investigative stop, or Terry stop, is a common exception to the Fourth

Amendment warrant requirement. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889.     It is well recognized that officers may briefly stop and detain an

individual, without an arrest warrant and without probable cause, in order to investigate a

reasonable and articulable suspicion of criminal activity. Id.; see also State v. Bobo

(1988), 37 Ohio St.3d 177, 524 N.E.2d 489. “The propriety of an investigative stop by a

police officer must be viewed in light of the totality of the surrounding circumstances” as

“viewed through the eyes of a reasonable and cautious police officer on the scene, guided

by his experience and training.” State v. Freeman (1980), 64 Ohio St.2d 291, 414

N.E.2d 1044, syllabus; see Bobo at 179.

       {¶ 11} The United States Supreme Court, however, has held that “not 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.” Terry at 19, fn.

16.
                                             7

       {¶ 12} In a recent case, State v. Logan, 8th Dist. No. 96190, 2011-Ohio-4124, ¶ 9,

this court explained:    “A consensual encounter occurs when the police approach a

person in a public place, engage the person in conversation, and the person remains free

to not answer or walk away.             State v. Jones, 188 Ohio App.3d 628, 636,

2010-Ohio-2854, 936 N.E.2d 529, citing Florida v. Royer (1983), 460 U.S. 491, 497, 103

S.Ct. 1319, 75 L .E.2d 565. * * * A consensual encounter does not implicate the Fourth

Amendment or trigger its protections. Id., citing Florida v. Bostick (1991), 501 U.S.

429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389.”

       {¶ 13} These same principles also apply to citizens in motor vehicles.       Generally,

an officer’s approach and questioning of the occupants of a parked vehicle does not

constitute a seizure and does not require reasonable, articulable suspicion of criminal

activity. State v. Boys (1998), 128 Ohio App.3d 640, 642, 716 N.E.2d 273.

       {¶ 14} In his first assignment of error, Lynch argues that the police lacked a

reasonable and articulable suspicion of criminal activity to justify their initial stop of him.

 The state maintains that the “initial stop” of Lynch was not a Terry stop at all, but a

consensual encounter.     The officers here did not simply approach Lynch while he was

seated in his vehicle and begin to talk to him; they first activated their red and blue

flashing lights, got out of their vehicle, and identified themselves as police. Thus, the

question that we must first address is whether the officers’ activation of their flashing

police lights converted what would otherwise be a consensual encounter into a seizure.
                                              8

Our review of the law in Ohio reveals that there is an apparent conflict between the

districts on this issue.

                                  Activation of Flashing Police Lights

       {¶ 15} The state relies on State v. Patterson, 9th Dist. No. 23135, 2006-Ohio-5424,

for the proposition that an officer’s activation of overhead lights does not convert a

consensual stop into a seizure.     In Patterson, a police officer “spotted a vehicle parked at

the rear of Denny’s parking lot * * * around 3:10 a.m. The Denny’s restaurant was open

at the time.    The [officer] testified that the vehicle’s windows were fogged up, the

parking lights were on, and the car was running.       He testified that he could see a person

sitting in the driver’s seat of the car.    He said he believed the vehicle had been there

awhile since the windows were fogged up.        The [officer] then pulled his cruiser up to the

vehicle with its blue and red lights flashing.”       Id. at ¶ 9.   On appeal, the defendant

argued that a seizure occurred when the officer activated his overhead lights.      The Ninth

District disagreed and held that “ ‘[a] police officer does not necessarily seize the

occupants of a parked vehicle through the activation of a police cruiser’s overhead

lights.’ ”   Patterson at ¶ 17, citing State v. Brown (Dec. 10, 2001), 12th Dist. No.

CA2001-04-047.

       {¶ 16} In Patterson, the Ninth District relied on Brown, a Twelfth District Court of

Appeals case.     In Brown, the court determined that the defendant “was not seized within

the meaning of the Fourth Amendment when [the officer] approached him in a parked car

and asked questions, even though [the officer] had activated his overhead lights. Absent
                                            9

any evidence that [the officer] used some form of coercion or duress to force compliance

with his request, [the defendant’s] consent to the search of his vehicle was freely and

voluntarily given.”   Id.

       {¶ 17} The Eleventh District has also followed Brown in State v. Rozier, 11th Dist.

No. 2009-T-0074, 2010-Ohio-1454. In Rozier, the court held that no seizure occurred

when the officer “approached the vehicle [and] saw that it was running and that there

were two occupants in the front seat.      The officer stopped his cruiser about 20 feet

behind the vehicle so as not to block it, and activated his overhead lights.   [The officer]

approached the vehicle in order to determine why its occupants were parked there.”        Id.

at ¶ 4, 31.

       {¶ 18} The Brown court relied on State v. Johnston (1993), 85 Ohio App.3d 475,

620 N.E.2d 128, a Fourth District Court of Appeals case. Our review of Johnston

reveals that the court did not adopt a bright-line test concerning the activation of overhead

police lights. In fact, we find that the holding in Johnston would support the opposite

conclusion in the present case, namely, that a seizure did occur when the officers

activated their overhead lights.

       {¶ 19} In Johnston, the court explained:

       {¶ 20} “‘In order to determine whether a particular encounter constitutes a seizure,

a court must consider all the circumstances surrounding the encounter to determine

whether the police conduct would have communicated to a reasonable person that the
                                           10

person was not free to decline the officers’ requests or otherwise terminate the encounter.

 ***

       {¶ 21} “Although appellant cites no authority in support of his argument on appeal,

our own research reveals that several courts in other jurisdictions have held that activation

of a cruiser’s overhead lights converts a mere police-citizen encounter into a seizure, thus

implicating the protections of the Fourth Amendment. In 3 LaFave, Search and Seizure

(2 Ed.1987) 416-417, Section 9.2(h), the author states that the encounter will likely

constitute a seizure where police officers use flashing lights as a show of authority.   See

State v. Stroud (1981), 30 Wash.App. 392, 634 P.2d 316; State v. Walp (1983), 65

Ore.App. 781, 672 P.2d 374, as cited by LaFave at fn. 269. See, also, Ozhuwan v. State

(Alaska App.1990), 786 P.2d 918, 921.

       {¶ 22} “We have, however, found no Ohio case either adopting or rejecting this

position. In a subsequent case, the Court of Appeals of Oregon clarified its holding in

Walp, supra, stating that ‘an officer’s use of overhead lights alone does not necessarily

cause an encounter to be a stop.’ State v. Dubois (1985), 75 Ore.App. 394, 398, 706

P.2d 588, 590.   The court emphasized instead that in deciding whether an encounter is a

stop, a court must look to the totality of the circumstances. Id.” Johnston, 85 Ohio

App.3d at 479.

       {¶ 23} The court reasoned: “Based upon the totality of the circumstances in the

case sub judice, we hold the encounter between [the officer] and appellant did not

constitute a seizure.   This case is distinguishable from those cited by LaFave.    In those
                                               11

cases, the defendant was already parked and the officer approached the defendant’s

parked car.      In the case sub judice, appellant pulled into the parking lot behind the

trooper and came to a stop.”         Id. The officer had testified, “It was dark, 2:40 in the

morning and I was sitting—I pulled up right there just to turn around. And then this

vehicle pulled in next to me. So, that is when I got out of my car.” Id.         “Under these

circumstances, there was no seizure. Activation of the overhead lights did not constitute

such a show of force or authority so as to convert the encounter into a seizure. * * *     See

LaFave, supra, at 416-417.”        Id.

       {¶ 24} Here, the facts are more similar to the facts in the LaFave cases than to

those in Johnston.       In Johnston, as the court stated, it was the defendant who pulled next

to the police cruiser.     Id..   Here, similar to the LaFave cases (according to the Johnston

court), Lynch was parked, and the officers approached his vehicle after activating their

police lights.

       {¶ 25} The concurring opinion in Johnston pointed out, “I concur in the judgment,

but concur separately because I believe our opinion here might be misconstrued to hold

that a police officer’s use of overhead flashing lights does not constitute a stop.    Clearly

it does, and it is perceived as a stop by every driver who has been distressed to see those

flashing lights in the rear window.” Id. (Grey, J., concurring).

       {¶ 26} In a case with facts nearly identical to those in the present case, the Second

District expressly agreed with Judge Grey’s concurring opinion in State v. Little, 2d Dist.

No. 09-CA-122, 2010-Ohio-2923, ¶ 10. In Little, police officers were on patrol around
                                             12

12:45 a.m. when they noticed “a white [SUV], with its lights out, sitting in between the

storage area and the liquor store.”     Id. at ¶ 3.   “The officers pulled in alongside the

parked SUV, activating the cruiser’s overhead, flashing lights as they did so. They

discovered that the motor of the SUV was running, in neutral. [The defendant] was sitting

in the driver’s seat.   A passenger was sitting in the passenger seat.”    Id.    The Second

District explained: “[T]he activation of overhead flashing lights by police officers in a

marked police cruiser is a universally understood signal that a motorist being followed by

a police cruiser must pull over and stop, because the police officer wants to talk to the

motorist, or that a motorist in a stationary vehicle in the immediate vicinity of the cruiser

should not leave the area, but wait, because the police officer wants to talk to the

motorist.”   (Emphasis added.)     Id. at ¶ 9.

       {¶ 27} In an earlier case, the Second District held that a “motor vehicle

police-citizen contact is thought to lose its consensual character and become a seizure

when a police officer activates his or her emergency lights, spotlight, or siren to pull an

individual over. * * * These actions amount to a show of authority and would make a

reasonable person feel that he or she is required to comply by stopping.         However, this

general rule is not hard and fast as some courts have held that an officer’s use of overhead

lights alone does not necessarily cause an encounter to be a seizure. * * * This seeming

inconsistency illustrates that each encounter is to be judged individually, by the totality of

its circumstances.” State v. Osborne (Dec. 13, 1995), 2d Dist. No. 15151.
                                           13

       {¶ 28} We agree with the concurring opinion in Johnston and the reasoning set

forth by the Second District in Little and Osborne.          While there may be limited

circumstances in which the activation of police lights may not rise to the level of a stop

(such as in Johnston, in which the defendant pulled up behind the officer), we find that in

most situations, as here, that is not the case.   When a police officer pulls behind or

beside a parked vehicle and activates his or her flashing lights, it is clearly a seizure

within the meaning of the Fourth Amendment.              The person inside the vehicle

understands that he or she is not free to simply pull away.       Detective Rasberry even

admitted that if Lynch had pulled away, they would have arrested him for failure to

comply with a police directive.

       {¶ 29} Based upon the totality of the circumstances in this case, the detectives were

not engaging in a consensual encounter when they activated their police lights,

immediately exited their vehicles, and identified themselves as “police.”    No reasonable

person in Lynch’s position would have felt free to leave. Further, we find no distinction

that the detectives were in an unmarked Crown Victoria.      Although the unmarked police

car did not have the flashing red and blue police lights on top of the car, it still had

them—one mounted on the inside and one “mounted over the rearview mirror.”              The

detectives pulled up directly beside Lynch’s vehicle and activated their lights.     Lynch

was certainly not free to leave. Thus, this encounter was not consensual; it was an

investigative stop.

                                      Reasonable Suspicion
                                           14

       {¶ 30} So the question becomes, did the detectives have an articulable, reasonable

suspicion that Lynch was engaged in criminal activity—such that they were justified in

approaching him to investigate. We conclude that they did not.

       {¶ 31} The detectives testified that they were investigating citizen complaints of

drug activity in the area but acknowledged that the complaint they were investigating was

about a year old.   They observed Lynch bent over talking to someone in a car.         They

then saw the car speed away, and saw Lynch walk back to his vehicle.              They then

activated their lights and effectuated a stop of Lynch.      It was only then that they saw

Lynch jumping around his car and reaching to the left.        But by then, they had already

made a stop without any particularized reason to stop him.

       {¶ 32} The state argues that this court should consider other factors that suggest

criminal activity was afoot—such as the late hour in a high-crime neighborhood.         The

state maintains that those facts, along with the detectives’ experience making thousands

of drug arrests—in this particular high-crime area—are enough.          But this court has

repeatedly held that police officers must still be able to point to specific facts to justify

their conclusion that this defendant was engaged in criminal activity. State v. Scales, 8th

Dist. No. 87023, 2006-Ohio-3946, ¶ 14. Further, it is well settled that an individual’s

presence in a high-drug area does not suspend the protections of the Fourth and

Fourteenth Amendments.         See, e.g., State v. Simmons, 8th Dist. No. 89309,

2007-Ohio-6636; Scales; State v. Chandler (1989), 54 Ohio App.3d 92, 97, 560 N.E.2d

832.
                                                 15

        {¶ 33} Here, there is simply no evidence that Lynch was engaged in criminal

activity.   He was leaning into a car talking to someone.              When the car pulled away,

Lynch walked quickly back to his car and got in it. That is not enough to justify the

investigative stop of him.

        {¶ 34} Lynch’s first assignment of error is sustained.

        {¶ 35} We need not address Lynch’s remaining assignments of error challenging

the search of his vehicle and his wrongful arrest. Because the initial stop of Lynch was

not warranted, the police had no right to ask for his driver’s license or search his vehicle,

and all evidence must be excluded.             We therefore need not address his remaining

assignments.1

                                                                                  Judgment reversed

                                                                               and cause remanded.

                                    _____________________

        SWEENEY and JONES, JJ., concur.




        1
        “[2] The trial court erred when it failed to grant the defendant’s motion to suppress evidence
based upon [an] unconstitutional search and seizure resulting from the Cleveland police detectives’
wrongful arrest of the defendant as he did not operate a vehicle and therefore did not violate Cleveland
City Ordinance 435.01(A).

         “[3] The trial court erred when it failed to suppress evidence obtained by the Cleveland police
detectives’ post-arrest, warrantless search of the vehicle the defendant was arrested from which was not
related to the traffic offense for which the defendant was arrested.

        “[4] The trial court erred when it misinterpreted and ignored facts in denying the defendant’s
motion to suppress evidence which was against the manifest weight of the evidence.”
