[Cite as State v. Taylor, 2013-Ohio-3906.]


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

STATE OF OHIO                                        C.A. No.      26693

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
GARY A. TAYLOR                                       COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 12 03 0888

                                  DECISION AND JOURNAL ENTRY

Dated: September 11, 2013



        MOORE, Presiding Judge.

        {¶1}     Defendant, Gary A. Taylor, appeals from the judgment of the Summit County

Court of Common Pleas. We reverse and remand this cause for further proceedings consistent

with this opinion.

                                                I.

        {¶2}     On February 24, 2012, Officer Edward Hornacek of the City of Akron Police

Department initiated a traffic stop on a car that Christine Hersman was driving and in which Mr.

Taylor was a passenger. The stop ultimately led to the officer’s search of Ms. Hersman’s car and

the discovery of items believed to be used in the manufacture of methamphetamine. As a result,

the Summit County Grand Jury indicted Mr. Taylor on one count of illegal assembly or

possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A).

        {¶3}     Mr. Taylor moved to suppress the evidence, the discovery of which he argued, in

part, resulted from an illegal stop of Ms. Hersman’s car. After holding an evidentiary hearing,
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the trial court denied his motion. Thereafter, Mr. Taylor amended his plea to no contest, and the

trial court found him guilty on the sole charge. In a journal entry dated October 11, 2012, the

trial court imposed sentence.

       {¶4}    Mr. Taylor timely filed a notice of appeal from the sentencing entry, and he now

presents one assignment of error for our review.

                                               II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING [MR.
       TAYLOR]’S MOTION TO SUPPRESS.[]

       {¶5}    In his sole assignment of error, Mr. Taylor argues that the trial court erred in

denying his motion to suppress. We agree.

       Appellate review of a motion to suppress presents a mixed question of law and
       fact. 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.

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

Accord State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, ¶ 6 (Burnside applied).

       {¶6}    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. “[W]arrantless searches are per se unreasonable under the

Fourth Amendment subject only to a few specifically established and well-delineated exceptions.

The [S]tate has the burden of establishing the application of one of the exceptions to this rule

designating warrantless searches as per se unreasonable.” (Internal citations and quotations
                                                3


omitted.) State v. Kessler, 53 Ohio St.2d 204, 207 (1978). 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).

       {¶7}    A police-initiated stop of an automobile is a seizure under the Fourth Amendment

and falls within the purview of Terry v. Ohio, 392 U.S. 1 (1968). See Delaware v. Prouse, 440

U.S. 648, 653, 663 (1979). “Both drivers and passengers in a vehicle may challenge the validity

of a traffic stop.” State v. White, 9th Dist. Lorain No. 11CA010005, 2011-Ohio-6748, ¶ 7, citing

State v. Carter, 69 Ohio St.3d 57, 63 (1994). “This is because, ‘when the vehicle is stopped,

they are equally seized, and their freedom of movement is equally affected.’” White at ¶ 7,

quoting Carter at 63. Pursuant to Terry, officers must possess a reasonable suspicion of criminal

activity in order to justify a traffic stop. See Terry at 21. In forming reasonable articulable

suspicion, law enforcement officers may “draw on their own experience and specialized training

to make inferences from and deductions about the cumulative information available to them that

‘might well elude an untrained person.’” United States v. Arvizu, 534 U.S. 266, 273 (2002),

quoting United States v. Cortez, 449 U.S. 411, 417-418 (1981).         However, “[a]n officer’s

reliance on a mere ‘hunch’ is insufficient to justify a stop.” State v. Wagner-Nitzsche, 9th Dist.

Summit No. 23944, 2008-Ohio-3953, ¶ 11, quoting Arvizu at 274.

       {¶8}    At the hearing on Mr. Taylor’s motion to suppress, Officer Hornacek testified as

to his reasons for stopping Ms. Hersman’s car. Officer Hornacek recounted that, on February 24,

2012, Officer Eddie Boyd was working off-duty as a security officer at Roush’s Market in

Akron, Ohio. Officer Boyd had been working this side-job at the market for approximately

twenty years. Roush’s Market is a small grocery store. Officer Hornacek noted that, over the

past two years, he had responded to approximately twenty calls from Officer Boyd pertaining to
                                                 4


the purchase of lye at the market. Through his experience as a police officer, Officer Boyd

recognized that lye is one ingredient that may be used in the manufacturing of

methamphetamine. Of the twenty calls to which Officer Hornacek had responded, all but one

had resulted in his detection of methamphetamine-related offenses.

       {¶9}    On the date at issue, Mr. Taylor and Ms. Hersman entered the market and

purchased various snacks and a bottle of lye. Officer Hornacek maintained that Officer Boyd

radioed in the purchase of the lye to police dispatch, and, when doing so, he noted that the

individuals who had purchased the lye were “suspicious” in that they were unfamiliar to him.

Officer Hornacek responded to the call by following Ms. Hersman’s car. The officer ran the

license plates of the car, learning that it belonged to Ms. Hersman and that it was registered to

her at an address in Louisville, which is located in neighboring Stark County, Ohio. Based upon

the address of the registration, Officer Hornacek believed that Ms. Hersman and Mr. Taylor had

driven from Louisville to the market, which is approximately a thirty to forty minute drive, for

the purpose of purchasing lye. Officer Hornacek believed this behavior, driving to an out-of-the-

way, small, grocery store to purchase a single item used in the manufacture of

methamphetamine, to be consistent with behavior of those involved in the manufacture of

methamphetamine, as such individuals proceed in this manner in order to escape detection.

Therefore, without having observed any criminal behavior or traffic infraction, Officer Hornacek

initiated a traffic stop on Ms. Hersman’s car.

       {¶10} In the trial court’s decision denying the motion to suppress, the trial       court

determined that the stop was based upon a reasonable suspicion of criminal activity, reasoning as

follows:

       * * * As noted above, [Mr. Taylor] and his driver had apparently travelled 30
       miles from another county to purchase a bottle of powdered lye, a bottle of soda
                                                  5


       and a candy bar or two. Each of these items could have readily been purchased at
       many stores between Louisville and Akron. Defendant and his driver were
       Caucasians shopping at a small market in the predominantly African-American
       part of Akron where Roush’s Market is located. Under similar circumstances in
       the past, the police had apprehended approximately 19 suspects on
       methamphetamine manufacture or illegal assembly charges, thus supporting the
       reasonable inference that methamphetamine manufacturers may have spread the
       word that Roush’s sold what they needed and was an out-of-the-way store where
       necessary items could be purchased. The court concludes these facts provided
       police with specific articulable facts upon which to base a suspicion that
       defendant and his companion, already having satisfied one element of the illegal
       assembly offense, were in possession of lye in order to manufacture a controlled
       substance.

       {¶11} On appeal, Mr. Taylor first argues that the police officers impermissibly stopped

him on the basis of his race. After reviewing the transcript of the suppression hearing, we can

locate nothing in Officer Hornacek’s testimony explicitly referencing the race of Mr. Taylor.

Although another officer who responded to the scene after Officer Hornacek had initiated the

stop noted that Mr. Taylor and Ms. Hersman were “two white people,” Officer Hornacek did not

testify that their race was a factor in his suspicion of criminal activity. Further, we can locate

nothing from the testimony adduced at the hearing which would support the trial court’s

conclusion pertaining to the racial demographics of the neighborhood in which the market is

located. In any event, we cannot discern in what way the race of Mr. Taylor as compared to the

racial composition of the community would serve as a factor on which the officer could properly

base his suspicion of criminal behavior. Accordingly, we proceed to review the totality of the

factors that the officer indicated informed his suspicion of criminal activity.

       {¶12} Officer Hornacek testified that he believed that Mr. Taylor and Ms. Hersman were

involved in the manufacture of methamphetamine because their vehicle was registered in another

county, they purchased lye in a small market thirty to forty minutes away from the address where

the car was registered, they were unfamiliar to and “suspicious” to Officer Boyd, and he had
                                                  6


apprehended nineteen other individuals in the past two years for methamphetamine-related

offenses after these individuals purchased lye from the market.

       {¶13} Having reviewed the totality of these circumstances, we conclude that the State

failed to meet its burden of demonstrating that Officer Hornacek possessed a reasonable

suspicion of criminal activity to justify his stop of Ms. Hersman’s vehicle. In reaching this

conclusion, we are mindful that, “[a] court reviewing the officer’s actions must give due weight

to his experience and training and view the evidence as it would be understood by those in law

enforcement.” State v. Floyd, 9th Dist. No. 11CA010033, 2012-Ohio-990, ¶ 4, quoting State v.

Andrews, 57 Ohio St.3d 86, 88 (1991).         However, based upon the limited factors of Ms.

Hersman’s vehicle registration listing an address in an adjacent county, Officer Boyd’s

unfamiliarity with Ms. Hersman and Mr. Taylor, and their purchase of a single item that is not

itself illegal to possess, we cannot conclude that the factors relied on by Officer Hornacek

provided more than a “hunch” that criminal behavior was afoot. See Wagner-Nitzche at ¶ 15.

There was no testimony that Ms. Hersman on the day in question drove from the Stark County

residence past any other stores to travel to Rousch’s Market. There was no testimony from

anyone as to whether she was visiting in the neighborhood, had friends or family there etc. In

fact, Ms. Hersman testified to having moved to a specific Akron address more than three months

before the stop giving rise to these charges. The fact that she and her passenger were unfamiliar

to the private duty officer does not provide reasonable suspicion for any illegal activity.

       {¶14} Accordingly, Mr. Taylor’s sole assignment of error is sustained.
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                                                III.

       {¶15} Mr. Taylor’s assignment of error is sustained. The judgment of the Summit

County Court of Common Pleas is reversed, and this cause is remanded to the trial court 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

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.




                                                       CARLA MOORE
                                                       FOR THE COURT



CARR, J.
HENSAL, J.
CONCUR.
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APPEARANCES:

DAVID G. LOMBARDI, Attorney at Law, for Appellant.

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