[Cite as State v. Robinson, 2014-Ohio-579.]


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

STATE OF OHIO                                         C.A. No.       26741

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RAYSHAWN L. ROBINSON                                  COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 12 04 1099 (B)

                                 DECISION AND JOURNAL ENTRY

Dated: February 19, 2014



        BELFANCE, Judge.

        {¶1}     Rayshawn Robinson appeals from his convictions in the Summit County Court of

Common Pleas. For the reasons set forth below, we reverse and remand the matter for further

proceedings.

                                                 I.

        {¶2}     On April 12, 2012, Cleophus Thompson was arrested when he was found pushing

a stolen car. Officer Patty Thorn, the driver of the patrol wagon holding Mr. Thompson, radioed

Detective Michael Zimcosky and told him that an individual she had in the wagon had drug

information that he wanted to relate to her and to a narcotics officer in the hopes that it might

help his case. Detective Zimcosky met Officer Thorn on South Arlington Street where Mr.

Thompson told the officers that he had just stolen a car and ran out of gas in an attempt to fill the

tank up on the vehicle because he was late for a meeting with a subject by the name of “YG”

who was supposed to sell him six grams of crack cocaine.
                                                 2


       {¶3}    Mr. Thompson described YG as a black male in his twenties who drove a black

SUV and a red SUV and lived in an apartment complex on Neville Street. Mr. Thompson stated

that YG’s vehicles would be parked in the rear lot of the apartment complex. Mr. Thompson

also stated that YG did not carry drugs but that his girlfriend, who was white, would accompany

him and would carry drugs.

       {¶4}    After receiving permission from his supervisor, Detective Zimcosky sent several

surveillance cars out to the Neville Street area. Detective Zimcosky also told Detective Kandy

Shoaff to go to the apartment complex on Neville Street and attempt to find the black and red

SUVs. Detective Shoaff saw a black SUV and a red SUV parked behind an apartment complex

on Neville Street. The apartment complex was described as containing a series of approximately

12 to 14 apartment buildings with a narrow alley for parking in the rear of the buildings.

       {¶5}    Mr. Thompson was directed to place a call on his cell phone while Detective

Zimcosky listened on speakerphone. Detective Zimcosky described the call as very short, lasting

15 to 20 seconds, and stated that the substance of the call was that Mr. Thompson was at the

Taco Bell and wanted the other man to pick him up. Detective Zimcosky also indicated that

there was no discussion about a possible drug deal during the short conversation.

       {¶6}    Shortly after the call was made, Detective Shoaff radioed Detective Zimcosky to

inform him that the black SUV had left the parking lot and was driving up Neville Street.

Detective Shoaff could not see into the vehicle and thus could only discern that there were

people in the vehicle without further detail as to their description. Detective Zimcosky planned

to stop the black SUV as soon as it turned south on South Arlington Street toward the Taco Bell.

However, the black SUV never went to the Taco Bell.            Instead, it turned north on South
                                               3


Arlington Street, which was away from the Taco Bell, and proceeded through a drive-through

before returning to Neville Street.

        {¶7}   The officers stopped the black SUV after it returned from the drive-through to

Neville Street. Officers searched the car and found a BB gun, a scale, and about $600. Mr.

Robinson, who was driving, was arrested, and the passenger, Megan Husk, was taken into

custody. Ms. Husk later told police officers that she had four and a half grams of crack cocaine

in her bra.

        {¶8}   Based on the search of the car and the information provided by Mr. Thompson,

Detective Zimcosky obtained a search warrant for Mr. Robinson’s address. Officers found 38

grams of crack cocaine, a weapon, ammunition for different weapons, and a large amount of cash

at Mr. Robinson’s address.

        {¶9}   Mr. Robinson was charged with trafficking in cocaine, possession of cocaine, and

having weapons while under disability. Mr. Robinson moved to suppress the evidence obtained

from the stop of his vehicle. The trial court denied Mr. Robinson’s motion to suppress. Mr.

Robinson then pleaded no contest to all three charges, and the court sentenced him to seven years

in prison.

        {¶10} Mr. Robinson has appealed, raising one assignment of error for our review.

                                               II.

                                  ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED IN OVERRULING MR. ROBINSON’S MOTION
        TO SUPPRESS, IN VIOLATION OF THE FOURTH AMENDMENT TO THE
        UNITED STATES CONSTITUTION, AND SECTION 14, ARTICLE 1 OF THE
        OHIO CONSTITUTION.
                                                4


       {¶11} In his sole assignment of error, Mr. Robinson argues that his motion to suppress

the evidence obtained from the stop and search of his vehicle should have been granted because

the officers did not have reasonable suspicion to stop and search his vehicle. We agree.

       {¶12} Generally, “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, ¶ 8. Thus, we defer to the trial

court’s findings of fact if they are supported by competent, credible evidence and review its

application of the law to the facts de novo. State v. Metcalf, 9th Dist. Summit No. 23600, 2007-

Ohio-4001, ¶ 6.

       {¶13} The Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the

Ohio Constitution protect individuals from unreasonable searches and seizures. Searches and

seizures conducted outside the judicial process are per se unreasonable under the Fourth

Amendment, subject to well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357

(1967). Stopping a vehicle and detaining its occupants constitutes a seizure under the Fourth

Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979). However, an investigative traffic

stop does not violate the Fourth Amendment where an officer has reasonable suspicion that the

individual is engaged in criminal activity. Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999).

Whether reasonable suspicion exists is based on the totality of the circumstances. State v. Mays,

119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7.

       {¶14} In some cases, reasonable suspicion may be based on information from an

informant or from an anonymous tip. See Alabama v. White, 496 U.S. 325, 330-331 (1990).

Information received from a tip can foster reasonable suspicion if it is supported by significant

indicia of reliability or corroborated by independent police work. Id. at 330-331. If the only

information that police had before the stop came from an informant’s tip, reasonable suspicion
                                                  5


must be determined based on whether the tip had significant indicia of reliability to justify the

stop. Weisner at 299, citing White at 330.

       {¶15} To ensure significant indicia of reliability, courts have determined that there are

three categories of informants: anonymous informants, known criminal informants who have

given reliable tips in the past, and identified citizen informants. Weisner at 300. If an informant

is implicated in criminal activity, there is no presumption that his tip is reliable. State v.

Shepherd, 122 Ohio App.3d 358, 366 (2d Dist.1997). This is because, unlike an identified

citizen informant who is not involved yet wants to aid a police investigation, an informant

implicated in criminal activity may “have a bad motive in giving police a tip[.]” State v. Rivera,

6th Dist. No. L-04-1369, 2006-Ohio-1867, ¶ 20.

       {¶16} In this case, Mr. Thompson was not a presumptively reliable source of

information. He had never given tips to police in the past and, thus, was not a known informant

with a track record to support his credibility. He was already under arrest when he spoke to

Detective Zimcosky and, as Detective Zimcosky indicated, wanted to provide information in the

hope that he could help his own criminal matter. As such, Mr. Thompson’s tip lacked reliability

and, as conceded by the State at oral argument, his tip was more akin to that of an anonymous

informant. See Shepherd at 366; Rivera at ¶ 20.

       {¶17} Anonymous informants are generally treated as unreliable, and police must

corroborate their tips with independent police work. Weisner, 87 Ohio St.3d at 300, citing White,

496 U.S. at 329. Tips are considered more reliable when officers are able to corroborate a

suspect’s future actions than when officers merely confirm currently existing conditions. See

also Illinois v. Gates, 462 U.S. 213, 245 (1983) (An anonymous letter listed “future actions of

third parties ordinarily not easily predicted” that police later corroborated independently.); White
                                                  6


at 332 (An informant’s “ability to predict respondent’s future behavior * * * demonstrated inside

information * * *.”) (Emphasis in original.).

       {¶18} Mr. Robinson argues that the trial court erred because it incorrectly concluded

that Detective Zimcosky and Detective Shoaff independently corroborated that potential drug

buy that was to occur at the Taco Bell. Mr. Robinson further argues that, in reaching its

conclusion, the trial court relied in part upon facts existing after the stop. We agree.

       {¶19} Given the totality of the circumstances, we conclude that, at the time of the stop,

Mr. Thompson’s tip was not sufficiently corroborated to furnish reasonable suspicion that the

occupants of the vehicle were committing or about to commit a crime. The record establishes

that Mr. Thompson’s tip was unreliable, and, thus, the police were required to independently

corroborate the tip. See Weisner at 300. Detective Shoaff was able to confirm the existence of

vehicles matching the general description in the location given by Mr. Thompson. Therefore, the

police were able to confirm previously existing conditions or conditions that were easily known

to others. Detective Shoaff also relayed the fact that one of the vehicles left the location shortly

after Mr. Thompson called YG. However, neither officer was able to verify the significant

aspects of Mr. Thompson’s tip that detailed the suspect’s future behavior, namely, that YG, a

black male, would go to the Taco Bell with a white female to complete a drug deal. Detective

Shoaff stated that she did not see who entered the vehicle and could not determine whether there

was a black male and white female in the vehicle as it left the apartment complex. Moreover, the

vehicle never went to the Taco Bell and did not even initially turn in the direction of the Taco

Bell after it left the apartment complex, which would have been consistent with the tip. Instead,

the vehicle proceeded north on South Arlington Street in the opposite direction of the Taco Bell

where it ultimately entered a drive-through. After proceeding through the drive-through, the
                                                   7


vehicle did not go to the Taco Bell but instead returned to Neville Street where it was stopped

before it reached the drive of the apartment complex. Thus, police observed benign, non-

criminal behavior that ultimately was inconsistent with the predictions of the tipster.

Accordingly, on the whole, the significant details of the tip were not independently corroborated.

See White at 330 (In evaluating the totality of the circumstances, a court should consider the

quantity, or content, and quality, or degree of reliability, of the information available to the

officer.); see also Florida v. J.L., 529 U.S. 266, 272 (2000) (A tip should “be reliable in its

assertion of illegality, not just in its tendency to identify a determinate person.”).

       {¶20} Given the totality of the circumstances, we agree that the trial court erred in its

determination that there was reasonable articulable suspicion to effectuate the stop.           Mr.

Robinson’s assignment of error is sustained.

                                                  III.

       {¶21} In light of the foregoing, the judgment of the Summit County Court of Common

Pleas is reversed, and the matter is remanded for further proceedings consistent with this opinion.

                                                                                  Judgment reversed,
                                                                                 and cause remanded.




       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
                                                8


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.

       Costs taxed to Appellee.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

VALERIE KUNZE, Assistant State Public Defender, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
