[Cite as State v. Garcia, 2012-Ohio-5066.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97912




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  SAN PEDRO GARCIA
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                               REVERSED AND VACATED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-537986

        BEFORE: Sweeney, J., Blackmon, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                   November 1, 2012
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Alison Foy
      Milko Cecez
Assistant County Prosecutors
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:

       {¶1}    Defendant-appellant San Pedro Garcia (“defendant”) appeals the trial

court’s denial of his motion to suppress the evidence against him and his subsequent

conviction for carrying a concealed weapon. After reviewing the facts of the case and

pertinent law, we reverse the court’s judgment and vacate defendant’s conviction and

sentence.

       {¶2} On May 25, 2010, defendant was on a bicycle talking to a friend of his who

was in a car that was stopped in the middle of the street near the corner of W. 50th and

Clark Avenue in Cleveland. Police Officers Mark Maguth and Timothy Maffo-Judd,

who were on patrol, saw the two men, turned their marked police vehicle around, and

approached the scene. Defendant began to ride away from the driver’s side window of

the stopped car as he saw the police approach. Officer Maguth told defendant to stop

and then asked him what was going on. As they were talking, defendant kept reaching

for the waistband of his pants.

       {¶3} Officer Maguth exited the zone car and informed defendant that he was

going to search him for weapons. As he was conducting the pat-down, Officer Maguth

asked defendant if he had any weapons, and defendant replied that he had a gun. Officer

Maguth found a loaded .25-caliber handgun with an extra magazine concealed in

defendant’s waistband.
      {¶4} On June 15, 2010, defendant was indicted for carrying a concealed weapon

in violation of R.C. 2923.12(A)(2). After a hearing, the court denied defendant’s motion

to suppress, and the matter proceeded to a bench trial. The court found defendant guilty

as indicted, and on January 18, 2012, sentenced him to one year of community control

sanctions.

      {¶5} Defendant appeals and raises three assignments of error for our review.

                                            I.

      The trial court erred in denying Appellant’s motion to suppress.

              Appellate review of a trial court’s ruling on a motion to suppress
      presents mixed questions of law and fact. An appellate court is to accept the
      trial court’s factual findings unless they are clearly erroneous. We are,
      therefore, required to accept the factual determinations of a trial court if
      they are supported by competent and credible evidence. The application of
      the law to those facts, however, is subject to de novo review. (Internal
      citations omitted.)

State v. Polk, 8th Dist. No. 84361, 2005-Ohio-774, ¶ 2.

      {¶6} Warrantless searches are presumptively unconstitutional, subject to a

limited number of specific exceptions.      One scenario that does not trigger Fourth

Amendment protection is a citizen’s consensual encounter with the police. Florida v.

Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). “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. Logan,

8th Dist. No. 96190, 2011-Ohio-4124, ¶ 9. “[A] person has been ‘seized’ within the

meaning of the Fourth Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to

leave.” U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

      {¶7} In California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d

690 (1991), the United States Supreme Court explained that

      Mendenhall establishes that the 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.

      {¶8} There are several factors that may cause a consensual encounter to become a

seizure, thus implicating the Fourth Amendment. These factors include,

      the threatening presence of several officers, the display of a weapon by an
      officer, some physical touching * * * of the citizen, or the use of language
      or tone of voice indicating that compliance with the officer’s request might
      be compelled.

Mendenhall at 554.

      {¶9} A second exception to the rule requiring warrants is found in Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which stands for the proposition that

“a police officer may in appropriate circumstances and in an appropriate manner approach

a person for purposes of investigating possibl[e] criminal behavior * * *.” Id. at 22. To

warrant a Terry investigatory stop, the police “must be able to point to specific and

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

reasonably warrant that intrusion.” Id. at 21. The Ohio Supreme Court additionally stated

that an investigatory stop “must be viewed in light of the totality of the surrounding

circumstances.” State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980).
      {¶10} Terry also held that “[w]hen an officer is justified in believing that the

individual whose suspicious behavior he is investigating at close range is armed and

presently dangerous” the officer may conduct a protective search for weapons. Terry at

24. See also State v. Williams, 51 Ohio St.3d 58, 554 N.E.2d 108 (1990).

      {¶11} In the instant case, the following testimony was presented at defendant’s

suppression hearing:

      {¶12} Officer Maguth testified that he has “just over three years” experience as a

basic patrol officer with the Cleveland Police Department, and he has made

approximately 40 - 50 drug related arrests. Officer Maguth testified that he and his

partner Officer Maffo-Judd were patrolling the area of W. 50th and Clark around

midnight on May 25, 2010. The officers have made drug arrests in this area before.

      {¶13} From approximately 300 yards away, they observed a man, later identified

as defendant, on a bicycle leaning into the driver’s side window of a car that was stopped

in the middle of W. 50th Street. Officer Maguth and his partner turned their vehicle

around and drove toward the scene. When defendant saw the police car approaching, he

“started riding from the street towards the sidewalk.”   Asked if he ever observed drug

transactions occurring when a person leans into the driver’s side of a vehicle, Officer

Maguth responded, “Yes.”

      {¶14}    Both officers remained in their zone car, and Officer Maguth said to

defendant, “Stop.” Defendant complied and Officer Maguth asked him, “What’s going

on?” Defendant answered that he found a bike in the middle of the intersection and, as

he was clearing it out of the way, he stopped to talk to a friend who happened to be
driving by. Defendant also told the police that he lived in and owned the four-unit

apartment building on the corner of W. 50th and Clark, the front door of which is

approximately 10-15 feet from where defendant was stopped.

       {¶15}   Officer Maguth testified that, as they were talking, defendant “kept

reaching into his waistband with his arm.” Officer Maguth asked defendant why he was

reaching for his waist. Defendant did not respond. Officer Maguth stepped out of the

police car and said to defendant, “I’m going to pat you down for weapons.” Officer

Maguth asked defendant if he had any weapons, and defendant responded that he had a

gun.   During this Terry pat, a loaded gun with an additional magazine was found

holstered in a cell phone case that was clipped onto the right side of defendant’s

waistband under his shirt. Officer Maguth testified that defendant’s gun was not in plain

view prior to the search. Asked why he patted defendant down, Officer Maguth testified

as follows: “For my safety and my partner’s safety just strictly for weapons.”

       {¶16}   On cross-examination, Officer Maguth testified that when he and his

partner first approached the scene, the defendant had not made any furtive movements

and no crime had been committed.

       {¶17}   Officer Maffo-Judd testified that he has been a patrol officer for the

Cleveland Police Department for almost four years. Officer Maffo-Judd was on patrol

with his partner Officer Maguth on May 25, 2010, in the area of W. 50th and Clark,

when he “observed a male on a bicycle having a conversation with someone in the middle

of the street in a car.” Officer Maffo-Judd thought this was “fishy,” and they approached

the scene. Defendant, who was on the bicycle, came towards them. As the police were
questioning him, defendant “started reaching for his waistband * * * or his pockets.”

While this transpired, both officers stayed inside the police car.

       {¶18} According to Officer Maffo-Judd, defendant’s gestures at this point were

“pretty suspect,” and Officer Maguth exited the police vehicle to pat defendant down for

weapons. When Officer Maguth asked defendant if he had any weapons, defendant

stated that he had a gun. Officer Maffo-Judd did not observe the gun on defendant prior

to it being discovered during the pat-down.

       {¶19}    On review, we first analyze whether the initial interaction between

defendant and the police was a consensual encounter or a Terry investigatory stop. In its

July 25, 2011 journal entry denying defendant’s motion to suppress, the court stated the

following in pertinent part:

       While both officers were suspicious that some improper activity may have
       been taking place, neither testified to seeing any illicit activity. The
       officers decided to turn around and investigate what was happening to cause
       the car and the bicycle to be stopped in the middle of the street at midnight.
       When they initially approached the defendant, Officer Maguth did not get
       out of the zone car but simply asked some questions of the defendant. * * *
       The officers here never testified to seeing any drug transaction but simply
       stopped to investigate an unusual sight, a person on a bicycle in the middle
       of the street next to a stopped car around midnight.

       {¶20} Under our standard of review, we are to accept the court’s factual findings

if they are supported by competent and credible evidence in the record. The court’s

finding that “Officer Maguth * * * simply asked some questions of the defendant” omits

an essential part of what transpired.

       {¶21}     The following colloquy occurred during Officer Maguth’s direct

examination:
             Q: Your partner drove your car around then you approached the
      vehicle and the male on the bicycle?

              A: Yes, we conducted — yes, a stop.

      ***

             Q: And again, based on your training and experience, after making
      this observation and approaching the male on the bicycle and the stopped
      car, what did you do?

             A: That’s when I had the male on the bicycle stopped. I asked him
      to stop.

      {¶22}     Additionally, the following colloquy occurred during the officer’s

cross-examination:

              Q: Well, you asked [defendant] to stop. Right?

              A: Mm-hmm.

              Q: And he stopped?

              A: Yep.

              Q: Right?

              A: Yep.

              Q: And you asked him to stop. You wanted him to stop. Right?

              A: Yeah. I wanted to talk to him.

            Q: And when you asked — when you’re in your full uniform and you
      ask someone to stop, you expect them to comply. Right?

              A: Normally.

      {¶23} Officer Maffo-Judd testified that he did not recall whether his partner asked

defendant to stop, but stated that it was “very possible.”        Additionally, Officer
Maffo-Judd was asked the following question: “If you asked someone to stop you expect

them to stop. Correct?” Officer Maffo-Judd replied, “Yes. Yes, sir.”

       {¶24} In analyzing the circumstances of this case under Mendenhall, we find the

following: Two uniformed police officers in a marked zone car turned their vehicle

around to approach defendant. From the police vehicle, one of the officers told or asked

defendant to stop. Both officers testified that when they ask someone to stop, they

expect that person to stop.

       {¶25} We are being asked to categorize this scenario as either an “encounter” or a

“stop.” It would be somewhat ironic to conclude that in using the word “stop,” the

police were not conducting a stop, but rather were engaging defendant in a consensual

encounter.

       {¶26} We conclude that the circumstances of the instant case would convey to a

reasonable person a “show of authority” such that he or she was being ordered to restrict

his or her movement. Therefore, the initial interaction between defendant and the police

was a seizure, which implicated the Fourth Amendment.

       {¶27} We turn to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968), to determine if the investigatory stop of defendant was warranted. Reasonable

suspicion to conduct a Terry stop requires more than an “inchoate and unparticularized

suspicion or ‘hunch.’” Id. at 27.

       {¶28} In the instant case, Officer Maguth gave no explanation as to why he and

Officer Maffo-Judd turned around to approach defendant, other than testifying that, in his

training and experience, drug transactions have occurred when people lean into the
windows of vehicles. Officer Maffo-Judd testified that the reason they turned around to

approach defendant was that the situation looked “kind of fishy.” Both officers testified

that defendant did not make any furtive gestures before being stopped, nor did he commit

any criminal activity before they approached the scene.

       {¶29} In State v. Boulis, 8th Dist. No. 86885, 2006-Ohio-3693, ¶ 20, this court

affirmed the trial court’s granting the defendant’s motion to suppress evidence under the

following facts:

       The record fails to indicate that the stop of Boulis was supported by the
       specific, articulable facts necessary to perform an investigative stop under
       Terry. First, Officer Havranek admitted that observing someone driving an
       SUV who stops to speak to someone riding a bicycle is benign. Second,
       although Officer Havranek testified that they observed what they believed
       to be a drug transaction, he * * * could not state with specificity or certainty
       that he observed drugs and money being exchanged between Boulis and the
       man on the bicycle. Based on these facts, we conclude that the officers
       initiated the stop on the mere hunch that a drug transaction had taken place.

       {¶30} This court reached a similar conclusion in State v. Coleman, 8th Dist. No.

93451, 2009-Ohio-6471, where the denial of a motion to suppress was reversed. The

police officer in Coleman testified that “the only reason [the defendant] was stopped is

that they saw two men leaning into his car,” and this court concluded that this was not

sufficient to justify a Terry stop. Id. at ¶ 8. See also State v. Pettegrew, 8th Dist. No.

91816, 2009-Ohio-4981 (no reasonable suspicion of criminal activity when the defendant

and a man made a hand-to-hand transaction through the driver’s side window of a

vehicle, but the police officer testified that he “could not see what was exchanged, and

said it ‘could have been anything’”).
       {¶31} The State argues that the facts of the case at hand are “eerily similar” to the

facts in State v. Ligon, 8th Dist. No. 81987, 2003-Ohio-3257, ¶ 27, where this court held

that “trial counsel’s failure to file a motion to suppress does not constitute ineffective

assistance of counsel.” However, we find Ligon distinguishable from the case at hand.

The issue in Ligon was defense counsel’s effectiveness. No suppression hearing was

held, and the analysis was based on trial testimony, which showed that when the police

approached “a car stopped in the middle of the street with two males leaning inside of it *

* * the two males fled on foot, and the driver immediately turned the vehicle into a

driveway.” Id. at ¶ 3. Here defendant did not flee when he saw the police; on the

contrary, he stopped when told to do so by Officer Maguth.

       {¶32} In State v. Arrington, 64 Ohio App.3d 654, 657-658, 582 N.E.2d 649 (8th

Dist. 1990), this court held the following:

       It is not illegal for four males to assemble by a car and engage the occupant
       in conversation. * * * It is not unreasonable for a young * * * male living
       in a neighborhood with drug sales and liable to be stopped to run when
       approached by a police car whose officers assume a drug sale whenever
       someone speaks to someone in a car and believe the mere act of
       congregating justified a seizure.

       This is not to deny the reality the officers face in combating the drug sellers.
       But although drugs are often sold to occupants of cars by people who gather
       near them it is just as likely that those merely by a car are engaged in an
       innocent activity as it is that they are engaged in a illegal one. The actions
       of the residents of drug “supermarkets” are nonetheless protected even if
       they coincidentally mirror those of the sellers.

       {¶33} Upon review, we find that the facts of the case at hand do not create a

reasonable belief of suspicious behavior justifying police intrusion. Thus, the weapon

discovered during defendant’s pat-down is inadmissible because it is fruit of the
poisonous tree. The court erred in denying defendant’s motion to suppress, and his first

assignment of error is sustained. Pursuant to App.R. 12(A)(1)(c), defendant’s second

and third assignments of error are moot.

                                              II.

      The trial court erred in denying Appellant’s motion for acquittal as to the
      charges when the state failed to present sufficient evidence to sustain a
      conviction.

                                              III.

      Appellant’s conviction * * * [is] against the manifest weight of the

      evidence.

      {¶34} Judgment reversed and defendant’s conviction and sentence are vacated.

Case remanded for proceedings consistent with this opinion.

          It is, therefore, considered that said appellant recover of said appellee his costs

herein.

          It is ordered that a special mandate be sent to said 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.




JAMES J. SWEENEY, JUDGE

PATRICIA ANN BLACKMON, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
