[Cite as State v. Williams, 194 Ohio App.3d 431, 2011-Ohio-2397.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95483


                                 THE STATE OF OHIO,
                                                          APPELLEE,

                                                     v.

                                           WILLIAMS,
                                                          APPELLANT.



                                   JUDGMENT:
                             REVERSED AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-533510

        BEFORE: S. Gallagher, J., Kilbane, A.J., and Jones, J.

        RELEASED AND JOURNALIZED: May 19, 2011
       Richardson & Kucharski Co., L.P.A., and Jeffrey S. Richardson, for appellant.

       William D. Mason, Cuyahoga County Prosecuting Attorney, and Marc D. Bullard,
Assistant Prosecuting Attorney, for appellee.



       SEAN C. GALLAGHER, Judge.

       {¶ 1} Appellant, Anthony Williams, appeals his convictions in Cuyahoga County

Common Pleas Court Case No. CR-533510 of one count of possession of cocaine and one

count of possession of criminal tools. Williams challenges the trial court’s decision

denying his motion to suppress the evidence of the drugs underlying the charges. For

the following reasons, we reverse the trial court’s decision and remand for further

proceedings consistent with this opinion.

       {¶ 2} On September 15, 2009, the Cuyahoga County Sheriff’s Department

obtained a search warrant for 3488 West 54th Street, Cleveland, Ohio (“target address”).

To execute the warrant, the officers conducted a controlled delivery of a package

containing marijuana to identify the intended recipient.   The search warrant authorized

the search of only the target address.

       {¶ 3} After delivering the package, the officers secured the target address.    Two

sheriffs, Detectives Timothy O’Connor and Tamika Agnew, with weapons drawn, moved

up the next door neighbor’s driveway to secure the gate of the backyard fence of the

target address. Williams was in the backyard of the neighboring house, 3484 West 54th

Street, Cleveland, Ohio (“3484 address”).          Upon seeing Williams, O’Connor
immediately ordered him to the ground to be handcuffed, claiming it was for officer

safety.     O’Connor continued to secure the target address while Agnew guarded

Williams.

          {¶ 4} While the other officers secured and executed the search warrant on the

target address, Agnew noticed Williams fidgeting and attempting to get something from

his pocket.     Agnew then saw what she believed to be a plastic bag with crack cocaine

protruding from Williams’s pocket.        Williams was arrested for possession.       Agnew

then searched Williams, finding $800 and two cell phones.              Williams was never

connected to the target address.

          {¶ 5} Williams filed an unsuccessful motion to suppress the evidence of the

drugs.     The trial court found that the initial detention was lawful pursuant to the

execution of the search warrant and that the discovery of the drugs fell under the

plain-view doctrine. Williams pleaded no contest to both counts and timely appealed the

trial court’s denial of his motion to suppress.

          {¶ 6} Williams’s sole assignment of error is as follows:   “The trial court erred to

the prejudice of the defendant-appellant when it overruled his motion to suppress

challenging the lawfulness of the police search and seizure of his person, in violation of

his constitutional rights against unreasonable search and seizure as guaranteed by the

fourth and fourteen [sic] amendments to the United States Constitution and Section 14,

Article I of the Ohio Constitution.” We find merit to this assignment of error.
       {¶ 7} Appellate review of a suppression ruling involves mixed questions of law

and fact. See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71.

When ruling on a motion to suppress, the trial court serves as the trier of fact and is the

primary judge of the credibility of the witnesses and the weight of the evidence. See

State v. Mills (1992), 62 Ohio St.3d 357, 582 N.E.2d 972; State v. Fanning (1982), 1 Ohio

St.3d 19, 20, 437 N.E.2d 583. An appellate court must accept the trial court’s findings of

fact as true if they are supported by competent and credible evidence. Burnside at ¶ 8.

The appellate court must then determine, without any deference to the trial court, whether

the facts satisfy the applicable legal standard. Id.

       {¶ 8} The Fourth Amendment does not prohibit all searches and seizures, only

unreasonable ones. See the Fourth Amendment to the United States Constitution. In

certain instances, a police officer may stop a person without probable cause for arrest if

the officer has a reasonable and articulable suspicion that the person might be involved in

criminal activity. Terry v. Ohio (1968), 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d

889. If the officer has such a suspicion and reasonably believes that the suspect might be

armed, she may also conduct a protective frisk of the suspect’s outer clothing for the

officer’s safety. Id. at 27.

       {¶ 9} Through Terry v. Ohio and its progeny, the investigative detention has been

extended, still based on the Terry standards, to protective sweeps of the surrounding area

where an arrest is taking place, Maryland v. Buie (1990), 494 U.S. 325, 337, 110 S.Ct.

1093, 108 L.Ed.2d 276, and to detaining persons at the scene of an arrest who are not
within the immediately adjoining area of the arrest. United States v. Maddox (C.A.10,

2004), 388 F.3d 1356, 1362. Furthermore, a search warrant implicitly confers limited

authority on police officers to conduct investigative detentions of persons reasonably

connected to or found on the property subject to the warrant. State v. Schultz (1985), 23

Ohio App.3d 130, 136, 491 N.E.2d 735. While not defining “reasonably connected to

the property,” the court stated that a mere pedestrian would not be subject to a search

“due to propinquity alone.” Id.

       {¶ 10} It is important to recognize that these exceptions to the Fourth Amendment

are all subject to the officer having a reasonable and articulable suspicion that the person

might be involved in criminal activity or poses a danger to the officers. There is no

all-encompassing exception that any bystander, wherever found, can be detained in the

execution of a search warrant.

       {¶ 11} When determining whether an investigative stop is supported by a

reasonable, articulable suspicion of criminal activity, the stop must be viewed in light of

the totality of circumstances surrounding the stop. State v. Bobo (1988), 37 Ohio St.3d

177, 524 N.E.2d 489, paragraph one of the syllabus. An officer’s inchoate hunch or

suspicion will not justify an investigatory stop. For example, “[t]he reputation of an area

for criminal activity is an articulable fact upon which a police officer may legitimately

rely in determining whether an investigative stop is warranted.” Bobo at 179. However,

that fact alone is insufficient. The totality of the facts and circumstances before the

officer must reasonably suggest that some specific criminal activity is afoot. Id. Courts
must give “due weight to the officer’s trained eye and experience” in reviewing the

totality of the circumstances. State v. Andrews (1991), 57 Ohio St.3d 86, 87-88, 565

N.E.2d 1271.

      {¶ 12} In the current case, the officers approached the target address to execute the

search warrant from the neighboring house’s driveway, the 3484 address. Williams was

in the backyard of the 3484 address. The warrant authorized the officers to search only

the target address. Before the officers could even ascertain whether Williams had any

connection whatsoever to the target address, they had him on the ground and handcuffed,

elevating the nature of the encounter beyond simply detaining Williams for officer safety.

See United States v. Gama-Bastidas (C.A.10, 1998), 142 F.3d 1233, 1240

(acknowledging that “the use of firearms, handcuffs, and other forceful techniques are

justified only by probable cause or when the circumstances reasonably warrant such

measures”).

      {¶ 13} The officers had no information to connect Williams to the target address

prior to the initial encounter.   In fact, Williams was never connected to the target

address. The officer who delivered the package did not indicate that Williams was the

person who had signed for the package. Williams was not seen entering or leaving the

target address, engaging in any conduct directed toward the target address, or attempting

to warn the occupants of the target address. See Schultz, 23 Ohio App.3d at 135.

Williams had the misfortune of being in the wrong place at the wrong time.
      {¶ 14} Although William had no connection to the target address before the

detention, the officers still could have conducted a Terry stop and detained Williams if

they had any individualized suspicion of his being involved in criminal activity or

believed that he posed a danger to the officers. Terry, 392 U.S. at 21-22. The state

relies on Maddox, 388 F.3d 1356, for the proposition that officers may detain bystanders

within the arrest area, including areas outside the home. Such reliance is misplaced.

The overriding principle espoused by cases authorizing detentions of persons pursuant to

the execution of warrants stems from Terry and the reasonable-and-articulable-suspicion

standard.

      {¶ 15} For example, in Maddox, the officer had a reasonable, articulable suspicion

of potential danger in his encounter with the defendant, who appeared on the scene of an

in-home arrest after the officers began executing the arrest warrant.    The detaining

officer was outnumbered by more than five-to-one; it was getting dark; and the officer

observed the defendant reach under the seat of a car prior to exiting the vehicle and

approaching the officer. Furthermore, the only reason for being at the remote location

was to access the known drug house where the arrest warrant was being executed. More

importantly, the officer initially detained the defendant without a drawn firearm or

handcuffs.

      {¶ 16} In this case, Williams made no furtive movements. He was compliant with

all requests. The officers were not outnumbered and first encountered the unarmed

Williams with their guns drawn. The officers did not see Williams until coming up the
driveway of the 3484 address, and they immediately ordered him to the ground. There

was only one other person outside the target address, and that person was also on a

neighboring property and subjected to the same treatment that Williams received.

Detective Agnew was able to stay behind to watch Williams. It was not dark, and there

is no evidence that Williams was in a dimly lit area.

       {¶ 17} There was no prior basis to suggest that Williams posed any threat to the

officers or was involved in any criminal activity, other than the fact that he was in close

proximity to the officers closing in on the target address.           Detective O’Connor’s

testimony that, based on his experience, Williams could have been a lookout for the target

address and that executing warrants on drug houses is inherently risky, is insufficient,

standing on its own, to establish an individualized, reasonable, articulable suspicion of

criminal activity to support the initial detention. See Bobo, 37 Ohio St.3d at 179.

       {¶ 18} We are cognizant that this case is as much about officer safety as it is about

the Fourth Amendment.        Police officers are exposed to dangerous situations when

conducting searches of homes.     Events often happen in a matter of seconds, and there is

little time for reflection. The margin of error is often close, and errors carry deadly

consequences.     Nevertheless, police know they will likely encounter uninvolved citizens

on adjacent properties when approaching targeted locations and should be prepared to

deal with them.     Asking citizens on an adjacent property to go indoors, or to stay

indoors, or to leave the immediate vicinity of the search area are all less intrusive options.

If the person then exhibits any behavior that warrants additional police intrusion, such
intrusion can be justified without violating the tenants of the Fourth Amendment.

Officer safety must be a determination of what is both reasonable and acceptable to afford

police the necessary protections to ensure both their personal safety and the safety of the

public. Officer safety cannot justify what amounts to a custodial arrest where the

bystander is in all cases handcuffed and required to lie on the ground.

       {¶ 19} Here, Williams was a bystander found on another property.      The officers’

uncertainty and Williams’s proximity to the target address were insufficient grounds to

authorize the degree of detention Williams was subjected to in this case.     Considering

the facts and all rational inferences at play, we do not find that the circumstances

warranted the intrusion made against Williams’s right to be free of unreasonable searches

and seizures.   Again, we appreciate the risks involved in executing search warrants on

suspected drug houses. This case turns on the degree of intrusion imposed on Williams.

 Officers are free to use their reasonable discretion in handling bystanders during the

execution of a warrant, and there certainly are differing degrees of interaction between a

person and the police that would balance both the police and public’s interests.

However, to subject persons on neighboring properties and bystanders to the same

treatment afforded to the occupants of the target address without a warrant or any

individualized suspicion of criminal activity goes beyond any available exception to the

Fourth Amendment.

       {¶ 20} Because the initial detention of Williams was unlawful, the plain-view

doctrine is inapplicable.   The drugs must be suppressed as “fruit of the poisonous tree.”
Williams’s sole assignment of error is sustained. The judgment of the trial court is

reversed, and we remand this cause for further proceedings consistent with this opinion.

                                                                       Judgment reversed

                                                                     and cause remanded.


      KILBANE, A.J., and JONES, J., concur.
