         [Cite as State v. Showes, 2020-Ohio-650.]




                       IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-180552
                                                         TRIAL NO. B-1801398
        Plaintiff-Appellee,                          :

  vs.                                                :      O P I N I O N.

RECAH SHOWES,                                        :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 26, 2020



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Presiding Judge.

       {¶1}   Recah Showes appeals his convictions, after no-contest pleas, for

having a weapon while under a disability, carrying a concealed weapon, aggravated

possession of drugs, and possession of cocaine. In one assignment of error, Showes

contends that the trial court erred in failing to suppress the gun and drugs because

the stop and the pat-down were unconstitutional. We agree that the gun and drugs

should have been excluded because the officer did not have a reasonable basis to

believe that Showes was armed and dangerous.

                              Factual Background

       {¶2}   On March 8, 2018, Recah Showes was indicted for having weapons

while under a disability, carrying a concealed weapon, aggravated possession of

drugs, and possession of cocaine. He filed a motion to suppress the gun and drugs

arguing that the officer did not have a reasonable articulable suspicion to stop him or

to conduct a pat-down. After the trial court overruled the motion to suppress,

Showes entered no-contest pleas to all of the charges. The trial court found him

guilty and sentenced him to an aggregate prison term of 12 months’ incarceration

with credit for 152 days.

                            The Motion to Suppress

       {¶3}   Officer Alexander Berlin of the Hamilton County Sheriff’s Department

was the state’s sole witness. Berlin had been with the Hamilton County Sheriff’s

Office for two-and-a-half years as a patrol officer and had previously worked as a

patrol officer at the Arlington Heights Police Department for two years. Berlin

received a dispatch to 7796 Montgomery Road at 10:50 p.m. while he was patrolling

in Sycamore Township. Two men in dark clothing, one wearing a black hat, had been

seen pulling on the door of a hobby shop located on the corner of Montgomery Road


                                              2
                     OHIO FIRST DISTRICT COURT OF APPEALS



and Kenwood Road, “possibly trying to get into the business.” The dispatch did not

give a racial description or the time that this conduct occurred. Berlin arrived at the

scene approximately two minutes later with another patrol car that drove to the back

of the building.

       {¶4}   When Berlin pulled up at the hobby store, he saw a black male, Recah

Showes, wearing a dark-colored jacket, white Cheesecake Factory pants, and a black

Cheesecake Factory hat. Showes was smoking a cigarette and standing outside a bar,

Tavern on the Corner, which was next to the hobby shop. Showes was the only male

outside when Berlin arrived. He exited from his vehicle and ordered Showes to step

over to his patrol car for questioning. As Berlin approached him, Showes distanced

himself from the officer and stated, “I don’t want any trouble. I don’t want to go back

to jail. I’m going back to jail.” Showes attempted to walk toward the bar as Berlin

approached. As Berlin got closer, he smelled marijuana on Showes.

       {¶5}   After he made contact with Showes, Berlin asked him if he had

anything on him because of the marijuana odor, and Showes became nervous. Berlin

informed him that he was being detained and placed Showes’s hands behind his

back. Berlin conducted a pat-down and felt what he believed to be a gun in Showes’s

right pocket. Berlin placed him in handcuffs and retrieved a loaded .38-caliber

handgun from his pocket. Berlin placed him under arrest.

       {¶6}   During cross-examination, Berlin testified that Showes was not

engaged in any activity that suggested he attempted to break into the hobby shop,

and he was not carrying any tools that could be used to break into the store. Showes

had informed him that he been in the bar, and Berlin acknowledged that smoking




                                              3
                     OHIO FIRST DISTRICT COURT OF APPEALS



was not permitted in the bar. Berlin questioned him about the potential robbery,

and Showes informed him that he had not seen anyone near the shop.

       {¶7}   Berlin further testified that Showes did not try to run from him,

threaten him, or advance in anyway. When asked if he had been in fear for his safety,

Berlin explained that when he initially ordered Showes to approach, he had placed

his hands in his pockets a few time. Berlin expounded, “[s]o through my training

that’s what we do when we pat someone down. Put them at a disadvantage.”

       {¶8}   After hearing Berlin’s testimony, the trial court overruled the motion,

finding the stop and the pat-down constitutional. Showes entered no-contest pleas

to all of the charges, and now appeals, arguing that the trial court erred in failing to

exclude the gun and the drugs.

                               Standard of Review

       {¶9}   “Our review of a trial court’s ruling on a motion to suppress presents a

mixed question of law and fact. We must accept the trial court’s findings of fact if

they are supported by competent and credible evidence, but we review de novo the

application of the relevant law to those facts.” (Citations omitted.) State v. Ward,

2017-Ohio-8141, 98 N.E.3d 1257, ¶ 12 (1st Dist.). Here, the parties do not disagree

on the factual record, so we review the trial court’s legal determination de novo. See

State v. Gilmore, 5th Dist. Stark No. 2009 CA 00283, 2010-Ohio-4631, ¶ 35.

       {¶10} There are two points at which we could find the search

unconstitutional. If we determine that the initial stop was unconstitutional, then we

must conclude that the gun and drugs should have been suppressed. Even if we

determine that the initial stop was lawful, then we must ascertain whether the pat-

down was constitutional.         In this case, we find that the pat-down was




                                               4
                     OHIO FIRST DISTRICT COURT OF APPEALS



unconstitutional, and therefore, we will not address whether the initial stop was

permissible.

   The Pat-Down was not Supported by Specific, Articulable Facts

       {¶11} 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

rendering them per se unreasonable unless an exception applies. See Ward at ¶ 13,

citing State v. Bacher, 170 Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 8

(1st Dist.). “Evidence is inadmissible if it stems from an unconstitutional search or

seizure.” Wong Sun v. United States, 371 U.S. 471, 484-485, 83 S.Ct. 407, 9 L.Ed.2d

441 (1963). The state bears the burden of establishing the validity of a warrantless

search. Ward at ¶ 13.

       {¶12} Under Terry, a police officer may conduct a limited pat-down of a

person if the officer reasonably believes that “the individual whose suspicious

behavior he is investigating at close range is armed and presently dangerous to the

officer or others.” State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993),

quoting Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An

officer is permitted to take reasonable steps to assure the safety of himself and

others. Terry at 24. To justify a pat-down, an officer must have a reasonable,

objective basis to conduct the frisk. State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d

1271 (1991). To that end, an officer must articulate specific facts which would lead a

reasonable person to conclude that the person being investigated is armed and

dangerous. Evans at 413.

       {¶13} Here, Berlin was responding to a dispatch about two men “possibly




                                             5
                     OHIO FIRST DISTRICT COURT OF APPEALS



trying to get into [a Sycamore Township] business,” as opposed to an actual crime in

progress such as shots fired or drug trafficking. There was no information regarding

the time that this alleged conduct occurred. Although the dispatch described the

clothing the men were wearing, the description of the two men did not include the

race, age, height, or weight of either man. There was no allegation that either man

had a gun or any type of weapon. Notably, Berlin did not testify that the hobby shop

in Sycamore Township was located in a high-crime area.

       {¶14} When Berlin encountered Showes, who was wearing a Cheesecake

Factory employee uniform, he was outside of the bar smoking a cigarette. As Berlin

conceded, Showes’s actions before Berlin stopped him demonstrated no grounds to

suspect he was committing a crime.

       {¶15} The state argued that Showes exhibited three suspicious behaviors to

justify the pat-down: (1) he attempted to distance himself when Berlin initially

ordered him to step over to the patrol car; (2) he placed his hands in his pockets; and

(3) he became nervous after Berlin began to interrogate him. We first note that

Berlin never ordered Showes to remove his hands from his pockets, or explained why

placing his hands in his pockets suggested that he was armed and dangerous.

Moreover, he never testified that his experience and training led him to believe that

one’s hands in the pockets is indicative of the presence of a weapon. Accordingly, we

give no weight to the fact that Showes placed his hands in his pockets. See United

States v. Monsivais, 848 F.3d 353, 359 (5th Cir.2017), quoting United States v.

Williams, 731 F.3d 678, 689 (7th Cir.2013) (concluding that “the simple fact that

one’s hands are in one’s pockets is..... of little value. If one were to drive down any

given street, it is likely that an uncountable number of citizens would have their




                                              6
                     OHIO FIRST DISTRICT COURT OF APPEALS



hands in their pockets.”).

       {¶16} After Berlin detained Showes and began questioning him, Berlin

became nervous. His nervousness was not coupled with furtive movements or any

evasive actions or attempts to flee. Showes’s nervousness upon questioning “is an

unreliable indicator” of dangerousness. United States v. Richardson, 385 F.3d 625,

630 (6th Cir.2004). See United States v. Wilson, 506 F.3d 488, 495-496 (6th

Cir.2007) (“Nervous behavior, standing alone, is not enough to justify a Terry

search.”); United States v. Henry, 429 F.3d 603, 613 (6th Cir.2005) (“[W]e have

repeatedly discounted the value of nervousness in the reasonable-suspicion

calculus.”); United States v. McKoy, 428 F.3d 38, 40 (1st Cir.2005) (explaining that

“[n]ervousness is a common and entirely natural reaction to police presence”).

       {¶17} Showes’s attempts to distance himself when initially ordered to stop

and walk toward the officer also did not indicate that he was armed and dangerous.

His initial attempts to distance himself and reenter the bar merely show that his

encounter with Berlin was not consensual. Simply walking away from the police

does not give rise to reasonable suspicion. See Florida v. Royer, 460 U.S. 491, 498,

103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Furthermore, Berlin confirmed that Showes

did not attempt to leave the scene after their initial contact. Considered together,

these factors were not sufficient to warrant a belief that Showes was armed and

dangerous. See United States v. Ford, 333 F.3d 839, 842 and 845 (7th Cir.2003)

(Despite the fact that the defendant appeared nervous, looked around, reached for

his breast pocket, and started to back away when the officer ordered him to step

forward, the court held this “was insufficient to create a reasonable suspicion that

would justify a protective pat-down.”).




                                             7
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18} Finally, Berlin admitted that he asked Showes if he had anything on

him solely because he smelled marijuana. At no time did Berlin ask Showes if he was

carrying a gun or any other type of weapon. To explain why he conducted a pat-

down, Berlin stated that he was trained to conduct a pat-down to put the suspect “at

a disadvantage.” However, “[a]n individual may not be frisked on a belief that he

possesses drugs; the belief must be that the individual possesses a weapon.” State v.

Whitfield, 7th Dist. Mahoning No. 99 CA 111, 2000-Ohio-2596, *4. Considering

Berlin’s testimony and all of the relevant factors, we conclude that the pat-down of

Showes not supported by a reasonable suspicion that he was armed and dangerous.

Accordingly, we sustain the assignment of error.

                                     Conclusion

       {¶19} Finding merit to Showes’s assignment of error, we reverse the

judgment of the trial court overruling his motion to suppress, reverse the convictions

based on the improper evidence, and remand this cause for further proceedings

consistent with this opinion.

                                              Judgment reversed and cause remanded.
BERGERON and CROUSE, JJ., concur.


Please note:
       The court has recorded its own entry this date.




                                                8
