[Cite as State v. Shoulders, 196 Ohio App.3d 178, 2011-Ohio-2659.]



                     Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                          No. 95224



                                       THE STATE OF OHIO,

                                                          APPELLEE,

                                                     v.

                                             SHOULDERS,

                                                          APPELLANT.




                                        JUDGMENT:
                                  REVERSED AND REMANDED




                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-530756


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

        RELEASED AND JOURNALIZED: June 2, 2011
ATTORNEYS:

William D. Mason, Cuyahoga County Prosecuting Attorney, and W. Mona Scott,
Assistant Prosecuting Attorney, for appellee.

John L. Spellacy and Albert A. Giuliani, for appellant.
       KATHLEEN ANN KEOUGH, Judge.

       {¶ 1} Defendant-appellant, Christopher Shoulders, appeals from his conviction for drug

trafficking. He contends that (1) the trial court erred in denying his motion to suppress, (2) his

conviction was against the manifest weight of the evidence, and (3) the prosecutor’s misconduct

during trial deprived him of a fair trial. Finding merit to the appeal, we reverse and remand.

                                                     I

       {¶ 2} Shoulders was charged in a multicount indictment with one count each of drug

trafficking, receiving stolen property (a gun), and possession of criminal tools (cell phones, cash,

and a gun), with forfeiture and firearm specifications. He pleaded not guilty and the matter was

set for trial. Prior to trial, Shoulders filed a motion to suppress. The trial court subsequently

held an evidentiary hearing at which the state presented the testimony of Cleveland police

detective Ralph Valentino and Sergeant Ali Pillow.

       {¶ 3} Detective Valentino testified that on October 29, 2009, he and other officers from

the gang-impact squad were dressed in street clothes and riding in several unmarked police cars

in the area of East 84th Street and Superior Avenue. They were looking for a suspect in a

shooting that had occurred several hours earlier.

       {¶ 4} As they drove past a car wash on Superior Avenue, the officers saw a vehicle

related to an ongoing investigation at the car wash. The owner of the car, Lavelle Moore, was

standing outside the vehicle. Officers from the gang unit squad had been investigating Moore

for several weeks for gang activity relating to an alleged threat made to a Cleveland Browns
football player; they were aware that he carried guns and was dangerous. According to Sergeant

Pillow, the officers wanted to question Moore about the threat.

        {¶ 5} Detective Valentino testified that upon seeing Moore at the car wash, he alerted

the other units and then the police “entered the parking lot, exited our vehicles with our weapons

drawn and ordered everybody to stay put, at that time stand still and show us their hands.”

Sergeant Pillow testified that his attention was focused on Moore, who was standing at the rear

of the car, when Shoulders, an employee of the car wash who had been stooped down drying

Moore’s car, “popped up all of a sudden saying, ‘I didn’t do anything, I didn’t do anything,’ and

then turned and began to run away.”

        {¶ 6} Detective Valentino likewise testified that Shoulders yelled loudly that he had not

done anything wrong and then tried to run away.               Detective Valentino caught Shoulders,

handcuffed him, and then patted him down for officer safety. Upon patting him down, Detective

Valentino found 22 small plastic baggies of marijuana inside a larger plastic bag, 1 two cell

phones, and $227 cash in Shoulders’s pockets. He also discovered a loaded pistol in a holster

inside Shoulders’s pants. The gun was subsequently determined to have been stolen.

        {¶ 7} Sergeant Pillow testified that upon learning that Shoulders had a gun, he ordered

the other men who had been standing by the car to their knees, handcuffed them, and searched

them.       The other men, including Moore, were released after the officers checked their

identification for any outstanding warrants. Shoulders, however, was arrested and charged with

drug trafficking, possession of criminal tools, and receiving stolen property.




        1
        It was subsequently determined that the marijuana weighed 11.68 grams.
         {¶ 8} Shoulders testified at the suppression hearing that he managed the car wash and

was drying the windows of Moore’s car when the police pulled up. Shoulders denied that he

tried to run away and said that he just kept moving around the car, drying its windows, after the

officers got out of their cars with their guns drawn. He said that one of the officers then grabbed

him, threw him on top of the car, and patted him down, whereupon the officer found the

marijuana, cash, and gun.

         {¶ 9} Kenneth Holyfield, a patron at the car wash who witnessed the incident, also

testified that Shoulders kept drying the car and did not run when the officers pulled up.

According to Holyfield, the police then approached Shoulders and forcefully pushed him on the

car. Elbert Harris, an employee of the car wash, likewise testified that Shoulders did not run

from the police.

         {¶ 10} The trial court denied Shoulders’s motion to suppress, finding that his attempt to

run from the police justified an investigatory stop and pat-down. At trial, the trial court granted

Shoulders’s renewed motion for acquittal in part and dismissed Counts 2 and 3, receiving stolen

property and possession of criminal tools. The jury subsequently found Shoulders guilty of drug

trafficking with a firearm specification and forfeiture specifications2 and the trial court sentenced

him to 18 months’ incarceration.

                                                               II




         2
            In granting Shoulders’s Crim.R. 29 motion in part, the trial court dismissed Count 3, possession of criminal
tools (i.e., the gun, money, and cell phones) for lack of evidence that the items were involved in drug trafficking or
drug activity. The same items (the gun, money, and cell phones) were listed in the forfeiture specifications
relating to the drug-trafficking charge in Count 1 and, therefore, the trial court should have also dismissed the
forfeiture specifications regarding Count 1. Shoulders does not raise any argument about this inconsistency,
however, and therefore we do not address it.
       {¶ 11} In his first assignment of error, Shoulders contends that the trial court erred in

denying his motion to suppress.

       {¶ 12} Appellate review of 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. In deciding

a motion to suppress, the trial court assumes the role of trier of fact. Id. A reviewing court is

bound to accept those findings of fact if they are supported by competent, credible evidence. Id.

 But with respect to the trial court’s conclusion of law, we apply a de novo standard of review

and decide whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara

(1997), 124 Ohio App.3d 706, 707 N.E.2d 539.

       {¶ 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 (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. One exception is an

investigative stop. Terry v. Ohio (1968), 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889. A

police officer may make a brief, warrantless, investigatory stop of an individual where the officer

reasonably suspects that the individual is or has been involved in criminal activity. Id. at 21.

In reaching that conclusion, the officer must be able to point to specific and articulable facts that,

taken together with rational inferences from those facts, reasonably warrant the intrusion. State

v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271, citing Terry.                  Whether an

investigatory stop is reasonable depends upon the totality of the circumstances surrounding the

incident. State v. Williams (1990), 51 Ohio St.3d 58, 60, 554 N.E.2d 108. A court evaluating

the validity of a Terry stop must consider the totality of the circumstances as “viewed through the

eyes of the reasonable and prudent police officer on the scene who must react to events as they

unfold.” Andrews at 87-88.
        {¶ 14} In this case, the police did not have a reasonable, articulable suspicion that

Shoulders was engaged in criminal activity sufficient to justify an investigatory stop.

Significantly, both Detective Valentino and Sergeant Pillow admitted that they did not observe

any criminal activity or even any suspicious activity at the car wash, either by Shoulders or any of

the other individuals, before they pulled in. Nevertheless, despite the lack of any reasonable

suspicion or probable cause, they got out of their vehicles with their guns drawn3 and ordered

everyone in the vicinity to “freeze” so they could conduct what Detective Valentino described as

“an interview stop.”        Without an articulated, reasonable suspicion of criminal activity, the

investigatory stop was unlawful under Terry.

        {¶ 15} The state argues that the officers properly stopped Shoulders because they had

been investigating Moore regarding his alleged threat and knew that Moore often carried

weapons.      But the United States Supreme Court had made clear that “a person’s mere

propinquity to others independently suspected of criminal activity does not, without more, give

rise to probable cause to search that person.” Ybarra v. Illinois (1979), 444 U.S. 85, 91, 100

S.Ct. 338, 62 L.Ed.2d 238. “[T]he belief of guilt must be particularized with respect to the

person to be searched or seized.” Maryland v. Pringle (2003), 540 U.S. 366, 371, 124 S.Ct.

795, 157 L.Ed.2d 769, citing Ybarra.                Here, the police admitted there was no indication

whatsoever that Shoulders was engaged in any criminal activity before they stopped him.

Accordingly, the stop was unlawful.

        {¶ 16} This court reached the same result in State v. Brown (1992), 83 Ohio App.3d 673,

615 N.E.2d 682. In that case, the defendant was walking down the street with an acquaintance

        3
           Detective Valentino testified that both he and Sergeant Pillow got out of their car with their guns drawn;
sergeant Pillow testified that his gun was not drawn when he first got out of the car. Nevertheless, it is apparent
that at least one gun was pointed at Shoulders and the other individuals at the car wash.
who was drinking beer from an open container. The police stopped both men, arrested the

defendant’s acquaintance, and then, after patting down the defendant and discovering plastic

baggies of marijuana, arrested him. This court held that the trial court had erred in denying the

defendant’s motion to suppress because there was no indication when he was stopped by the

police that he was involved in criminal activity. This court held that the defendant’s mere

proximity to his acquaintance, who was involved in criminal activity, was insufficient, without

more, to give rise to a reasonable suspicion sufficient to justify an investigatory stop.

       {¶ 17} The state argues, however, that even if the initial stop were unlawful, Shoulders’s

subsequent attempt to flee from the police gave rise to a reasonable suspicion of criminal activity

sufficient to justify his seizure. It relies on Illinois v. Wardlow (2000), 528 U.S. 119, 120 S.Ct.

673, in which United States Supreme Court stated: “Our cases have also recognized that

nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong

flight — wherever it occurs — is the consummate act of evasion: [i]t is not necessarily indicative

of wrongdoing, but it is certainly suggestive of such.” (Citations omitted.) Id. at 676.

       {¶ 18} But this case is distinguishable from Wardlow. In Wardlow, the Supreme Court

found that the defendant’s “unprovoked flight” upon observing a four-car uniformed police

convoy, combined with his presence in an area known for heavy drug trafficking, was sufficient

to give rise to a reasonable suspicion to justify an investigative stop. Id. Here, however, the

police relied only on Shoulders’s flight to justify the stop; there were no other factors suggesting

that he was engaged in criminal activity. There was no testimony that the car wash was in a

high-crime area and no testimony that the car wash was known to the police as a place of

criminal activity.
       {¶ 19} Further, it is not apparent that Shoulders’s flight was “unprovoked.” Detective

Valentino and Sergeant Pillow got out of their unmarked cars wearing plain clothes and ordered

everyone to “freeze.” There was no evidence that they identified themselves as police or that

Shoulders was even aware they were the police. It is not unreasonable to conclude on these facts

that Shoulders’s flight was provoked by the gun that was pointed at him.

       {¶ 20} In Wardlow, the United States Supreme Court specifically recognized that it was

not adopting a per se rule that unprovoked flight always authorizes the temporary detention of

anyone who flees at the mere sight of a police officer. Id. at 677. Further, it noted that it

continued to adhere to the view that reasonable suspicion must be determined by “ ‘ “the totality

of the circumstances — the whole picture.” ’ ” Id., quoting United States v. Sokolow (1989),

490 U.S. 1, 7-8, 109 S.Ct. 1581, 104 L.Ed.2d 1, quoting United States v. Cortez (1981), 449 U.S.

411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621. Here, in the absence of any evidence of criminal

activity other than Shoulders’s flight, we find that under the totality of the circumstances, the

police did not have reasonable suspicion sufficient to justify an investigatory stop. See State v.

Smith, Cuyahoga App. No. 87735, 2007-Ohio-281, ¶ 18 (defendant’s flight, by itself, not enough

to create reasonable suspicion sufficient to justify investigatory stop).

       {¶ 21} Accordingly, we hold that the trial court erred in denying Shoulders’s motion to

suppress and remand for further proceedings consistent with this opinion. Appellant’s first

assignment of error is sustained. In light of our resolution of the first assignment of error,

assignments of error two and three are moot and we need not address them. App.R. 12(A)(1)(c).

                                                                       Judgment reversed
                                                                       and cause remanded.

BOYLE, P.J., and SWEENEY, J., concur.
