[Cite as In re D.E., 2016-Ohio-4959.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 103554




                                         IN RE: D.E.
                                        A Minor Child




                                        JUDGMENT:
                                         AFFIRMED


                                       Civil Appeal from the
                                  Cuyahoga Court of Common Pleas
                                         Juvenile Division
                                       Case No. DL15107865


        BEFORE: Jones, A.J., Keough, J., and Stewart, J.

        RELEASED AND JOURNALIZED: July 14, 2016
ATTORNEYS FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067

Robert L. Tobik
Cuyahoga County Public Defender

BY: Audrey Del Valle
Assistant County Public Defender
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Brandon A. Piteo
       Scott C. Zarzycki
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:

         {¶1} In this appeal, the juvenile, D.E., challenges the trial court’s decision to deny

his motion to suppress. We affirm.

         {¶2} In June 2015, D.E. was charged in a two-count complaint. Count 1 charged

having a weapon while under disability, and contained one- and three-year firearm

specifications.    Count 2 charged carrying a concealed weapon.          The defense filed a

motion to suppress, and the trial court held a hearing. The following testimony was

elicited at the hearing.

         {¶3} At the time in question, which was approximately 10:00 p.m. in June 2015,

two detectives from the Cleveland Police Department’s gang impact unit — Colin Ginley

and Brian Middaugh — were on patrol in the area of East 105th Street around St. Clair

and Superior Avenues.       Both detectives testified that this was a “high crime” area, they

routinely patrolled the area, and that many of the residents knew them and were familiar

with the vehicles they drove.1 The detectives testified that the area is considered high

crime because of the frequent arrest rate, poor lighting, and large number of abandoned

houses.      They further testified that, although they are members of the gang impact unit,

they frequently conduct other police business unrelated to gang activity, such as traffic

stops.


       They were not in a “standard” police cruiser; rather, they were in an unmarked black
         1

Suburban, with lights and sirens located inside.
        {¶4} As the detectives were driving down one of the streets in the area, they

observed approximately ten males in the middle of the street. A couple of the males

were on bicycles.    According to the detectives, no one in the group appeared to be going

in any direction; rather, they appeared to just be congregating in the area.   The detectives

testified that they saw “numerous” violations of the Cleveland Codified Ordinances being

committed by the group. They initially drove past the group, but then turned around and

headed back toward them, intending to stop them because of their violations of the city’s

ordinances.    They also called for back-up assistance, which they routinely do in high

crime areas and situations involving numerous people.

        {¶5} By the time they reached the area where the group had been, all but two of the

individuals — D.E. and another juvenile — had dispersed and the back-up assistance had

arrived. Detectives Ginley and Middaugh had the sirens and lights on their vehicle

activated.    Detective Ginley testified that D.E. was riding the bicycle, interweaving

between the sidewalk and the street, while the other juvenile was walking, also

interweaving between the sidewalk and the street.

        {¶6} The detectives, as well as the back-up officers, exited their vehicles and told

D.E. and the other juvenile to put their hands up, which they requested because of the

nature of the area and their inability to see due to the poor lighting.   The other juvenile

complied, but D.E. did not. Instead, he got off his bicycle, and according to Detective

Ginley, started running; Detective Middaugh testified that D.E. was walking at a fast

pace.
       {¶7} D.E. headed in the direction of Detective Ginley, who believed that D.E. did

not initially see him.   Detective Ginley saw D.E. reach for his waistband; the detective

drew his service weapon at that time. D.E. pulled a gun out of his waistband, and

moments later, threw it to the ground.     The gun was loaded.      D.E. was arrested for

carrying a concealed weapon.     He was also cited for riding a bicycle on a sidewalk and

lacking a signaling device on his bicycle, which the detectives testified were violations of

Cleveland Codified Ordinances.

       {¶8} The juvenile court found that the detectives had reasonable suspicion for the

stop, which then turned into probable cause for the arrest and, therefore, denied D.E.’s

motion to suppress. D.E. pled no contest to both counts, but the firearm specifications

were nolled.   The court adjudicated him delinquent of both counts.      D.E. had been on

probation at the time the offenses were committed, and the court continued his probation.

 D.E. now appeals, and in his sole assignment of error challenges the trial court’s

decision denying his motion to suppress.

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

question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. In considering this mixed question, we view the trial court as serving as

the trier of fact and primary judge of witness credibility and the weight of the evidence

presented.     State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).

Consequently, we must accept the trial court’s findings of fact so long as they are

supported by competent, credible evidence.        State v. Roberts, 110 Ohio St.3d 71,
2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100.       However, we afford no such deference when

considering the trial court’s application of the law to the facts.   Rather, we apply a de

novo review on this point. Burnside at ¶ 8.

       {¶10} The Fourth Amendment to the United States Constitution insulates

individuals from unreasonable searches and seizures. United States v. Hensley, 469 U.S.

221, 226, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). A traffic stop initiated by a law

enforcement officer implicates the Fourth Amendment and must comply with the Fourth

Amendment’s general reasonableness requirement. Whren v. United States, 517 U.S.

806, 809, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

       {¶11} If an officer’s decision to stop a motorist for a traffic violation is prompted

by a reasonable and articulable suspicion given all the circumstances, the stop is

constitutionally valid. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d

1204, ¶ 8.   A citizen riding a bicycle may lawfully be stopped for a traffic violation.

State v. Roberts, 2d Dist. Montgomery No. 23219, 2010-Ohio-300, ¶ 14.

       {¶12} D.E. contends that the police were not justified in their initial encounter with

him. Specifically, D.E. contends that the police did not have reasonable suspicion to

approach him for an investigative detention. In support of his contention, he refers to

the two ordinances under which he was cited.

       {¶13} In regard to riding his bicycle on the sidewalk, Cleveland Codified

Ordinances 473.09(a) provides that “[n]o person shall ride a bicycle, skateboard or roller

skates upon a sidewalk within a business district.”     (Emphasis added.)     D.E. contends
that he was not riding his bicycle in a business district; rather, it was a residential area, as

evidenced by Detective Ginley’s testimony that D.E. was arrested in front of a house, in a

residential neighborhood.

        {¶14} In regard to failing to have a signaling device on his bicycle in violation of

Cleveland Codified Ordinances 473.05,2 Detective Ginley testified that he and Detective

Middaugh noticed that violation after they had stopped D.E., not before. In light of the

two ordinances, D.E. contends that the police made a mistake in law when they stopped

him, and cites State v. Fears, 8th Dist. Cuyahoga No. 94997, 2011-Ohio-930, in support

of his contention.

        {¶15} In Fears, the defendant was stopped by the police for what they believed

was a singular violation of Cleveland Codified Ordinances.               The police learned after the

fact, however, that they were wrong about the defendant’s conduct being a violation of

the city’s ordinances.      Nonetheless, the state contended that because the police did not

learn of its mistake until later, they were “acting with a good faith belief that they had

witnessed a traffic infraction.” Id. at ¶ 9.         The defendant contended that the good-faith

exception does not apply to mistakes of law.

        {¶16} This court, citing United States v. McDonald, 453 F.3d 958 (7th Cir.2006),

held that the police’s “mistake of law regarding [the defendant’s] use of a turn signal



        2
         The ordinance provides, “[n]o person shall operate a bicycle unless it is equipped with a bell
or other signal audible for a distance of at least one hundred (100) feet, except that a bicycle shall not
be equipped with nor shall any person use upon a bicycle any siren or whistle.”
without turning meant that the officers lacked a reasonable, articulate suspicion for the

stop.” Fears at ¶ 13.

       {¶17} We agree with D.E. that the stop based on riding a bicycle on the sidewalk

was not a violation of Cleveland Codified Ordinances because the record demonstrates

that he was in a residential, not a business, area.    Further, in regard to the lack of a

signaling device, the detectives admitted that they did not know that D.E. did not have a

signaling device on his bicycle until after they stopped him.

       {¶18} But, nonetheless, the detectives specifically testified that when the decision

was made to turn around and head back to the group, it was because they believed that

“numerous” city ordinances were being violated.           Detective Ginley testified, for

example, that D.E. was not riding the bicycle with due care and did not have any lights or

reflectors on it. See Cleveland Codified Ordinances 473.06, 473.07 and 473.08. That

D.E. was not cited for any of the above-mentioned alleged violations was not fatal to the

police’s position of reasonable suspicion to conduct the stop.          Thus, this case is

distinguishable from Fears, where the defendant was stopped for only one alleged traffic

violation, which it turned out he did not violate.

       {¶19} In light of the above, the police had reasonable suspicion to stop D.E., and

the trial court did not err in denying his motion to suppress. The sole assignment of

error is, therefore, overruled.

       {¶20} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      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.




LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR
