[Cite as State v. Hill, 194 Ohio App.3d 93, 2011-Ohio-2019.]




                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


THE STATE OF OHIO,                                         JUDGES:
                                                           Hon. William B. Hoffman, P.J.
        Appellee,                                          Hon. Sheila G. Farmer, J.
                                                           Hon. John W. Wise, J.
v.
                                                           Case No. 10CA96
HILL,

        Appellant.                                         OPINION




CHARACTER OF PROCEEDING:                               Appeal from the Richland County Common
                                                       Pleas court, Case No. 2009CR985


JUDGMENT:                                              Reversed and Remanded


DATE OF JUDGMENT ENTRY:                                April 25, 2011


APPEARANCES:



        James J. Mayer Jr., Richland County Prosecuting Attorney, and Kirsten L.
        Pscholka-Gartner, Assistant Prosecuting Attorney, for appellee.


        David Homer, for appellant.
[Cite as State v. Hill, 194 Ohio App.3d 93, 2011-Ohio-2019.]




        HOFFMAN, Presiding Judge.


        {¶1}     Defendant-appellant, Duane J. Hill, appeals his conviction in the Richland

County Court of Common Pleas on two counts of possession of drugs with forfeiture

specifications, in violation of R.C. 2925.11(A), and two counts of trafficking in drugs with

forfeiture specifications, in violation of R.C. 2925.03(A)(2). Plaintiff-appellee is the state

of Ohio.

                            STATEMENT OF THE FACTS AND CASE

        {¶2}     On December 19, 2009, Officer Korey Kaufman of the Mansfield police

department responded to a call of shots fired, where a woman reported that her baby

had been shot by someone who had fled the area. The dispatch indicated that two

suspects were involved and specifically named Michael Martin and Nick Beem. Upon

arrival at the scene, Officer Kaufman spoke with two neighbors who reported seeing a

black man in a “newer” vehicle, possibly black with four doors. The officer looked for

tracks in the snow, but found nothing. Officer Kaufman never saw a gunshot victim

while at the scene.

        {¶3}     Officer Kaufman then began patrolling the area looking for a black male in

a newer black vehicle. Two or three blocks from the scene of the incident, he observed

a black vehicle in a driveway with the lights on backing out into the street. The vehicle,

a black 2001 Oldsmobile Alero, had two doors. Officer Kaufman blocked the vehicle

and ordered the driver to exit the vehicle. Upon observing the driver to be a black male,

Officer Kaufman began a patdown “for my safety and the safety of the officers who were

standing there with me.” Officer Kaufman knew appellant by name from an incident that
had occurred a few weeks prior. Thus, Officer Kaufman knew appellant was neither

Martin nor Beem as identified in the shots-fired call.

       {¶4}   During the patdown, Officer Kaufman felt a golfball-sized bulge in

appellant’s right pocket and could feel “rocks.” He testified that he immediately knew

the bulge to be crack cocaine. Upon seizing the crack cocaine and continuing the

patdown search, Officer Kaufman retrieved a bundle of cash from appellant’s other

pocket.

       {¶5}   The Richland County Grand Jury indicted appellant on two counts of

possession of drugs with forfeiture specifications, in violation of R.C. 2925.11(A), each a

felony of the fourth degree, and two counts of trafficking in drugs with forfeiture

specifications, in violation of R.C. 2925.03(A)(2), each a felony of the fourth degree.

Appellant was also charged with possession of a Schedule IV controlled substance, a

fifth-degree felony.

       {¶6}   Appellant filed a motion to suppress an illegal search and seizure.

Following a hearing on the motion, the trial court denied the motion. Appellant entered

a plea of no contest to the charges and was sentenced to 18 months in prison.

Appellant now appeals, assigning as error:

       {¶7}   “I. The trial court erred prejudicially by failing to grant the motion to

suppress and to recognize that the search and seizure involved was unconstitutional,

unreasonable and illegal.”

       {¶8}   There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583, and State v. Klein (1991), 73 Ohio

App.3d 486, 597 N.E.2d 1141. Second, an appellant may argue that the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See State v.

Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, an appellant may argue

that the trial court has incorrectly decided the ultimate or final issues raised in a motion

to suppress. When reviewing this type of claim, an appellate court must independently

determine, without deference to the trial court's conclusion, whether the facts meet the

appropriate legal standard in any given case. State v. Claytor (1993), 85 Ohio App.3d

623, 620 N.E.2d 906.

       {¶9}   Both the Fourth Amendment to the United States Constitution, as applied

to the states through the Fourteenth Amendment and Section 14, Article I of the Ohio

Constitution, prohibit the government from conducting warrantless searches and

seizures, rendering them per se unreasonable unless an exception applies. State v.

Mendoza, 10th Dist. Nos. 08AP-645 and 08AP-689, 2009 Ohio 1182, citing Katz v.

United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507. One of those exceptions is the

rule regarding investigative stops announced in Terry v. Ohio (1968), 392 U.S. 1, 88

S.Ct. 1868, which provides that a police officer may stop an individual to investigate

unusual behavior, even absent a prior judicial warrant or probable cause to arrest, if the

officer has a reasonable, articulable suspicion that specific criminal activity may be

afoot. Id.

       {¶10} An officer’s inchoate hunch or suspicion will not justify an investigatory
stop. Rather, justification for a particular seizure must be based upon specific and

articulable facts that, taken together with the rational inferences from those facts,

reasonably warrant that intrusion. The facts must be judged against an objective

standard; whether the facts available to the officer at the moment of seizure or search

would warrant a man of reasonable caution in the belief that the action taken was

appropriate. Id. See also State v. Grayson (1991), 72 Ohio App.3d 283, 594 N.E.2d

651.

       {¶11} Whether an investigative stop is reasonable must be determined from the

totality of the circumstances that surround it. State v. Freeman (1980), 64 Ohio St.2d

291, 414 N.E.2d 1044. The totality of the circumstances is “to be viewed through the

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

events as they unfold.” State v. Andrews (1991), 57 Ohio St.3d 86, 87-88, 565 N.E.2d

1271, citing United States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859; Freeman, 64

Ohio St.2d at 295, 414 N.E.2d 1044.

       {¶12} In this case, Officer Kaufman responded to the call from dispatch stating

that shots had been fired in the area. There were two named suspects, Michael Martin

and Nick Beem. When he arrived at the scene, he spoke with several neighbors and

the 9-1-1 caller. They reported hearing four gunshots and seeing the shooter, a black

male, leave the scene in a newer black vehicle, possibly with four doors. The witnesses

reported seeing the driver drive down Superior toward the area of Cleveland Avenue.

       {¶13} Officer Kaufman testified at the suppression hearing that he remained at

the scene for approximately ten to 15 minutes before leaving in his cruiser to patrol the

area for the suspect. He drove in the direction the witnesses indicated and was two to
three blocks away from the scene when he observed a two-door, 2001 black

Oldsmobile Alero exiting a driveway, being driven by a black male. At the time, Officer

Kaufman had only departed the scene of the shooting four or five minutes prior.

       {¶14} Officer Kaufman blocked the vehicle and ordered the driver to exit.

Kaufman knew appellant from a previous incident.            He then conducted a patdown

search, during which he found the drugs and cash.

       {¶15} Upon review, we find that the stop was not justified under the totality of the

facts and circumstances. The black vehicle was not a newer vehicle and had two

doors, not four. Appellant was not one of the two suspects mentioned in the dispatch

call. Appellant’s proximity to the scene of the shooting is of little, if any, import, since he

was stopped between 14 to 20 minutes after Officer Kaufman arrived at the scene of the

incident. If anything, the timing may mitigate against the stop because a suspect fleeing

the scene would likely be much farther away after more than 14 minutes than two to

three blocks. Discounting the above discrepancies, we are left with the stop of a black

man in a black car. We do not find that this reaches the necessary level of reasonable

and articulable facts to support the stop.

       {¶16} Accordingly, the judgment of the Richland County Court of Common Pleas

is reversed, and the matter is remanded to the trial court for further proceedings in

accordance with the law and this opinion.



                                                                          Judgment reversed

                                                                       and cause remanded.


       FARMER, and W ISE, JJ., concur.
