[Cite as State v. Carmichael, 2011-Ohio-2921.]


          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95618




                                    STATE OF OHIO
                                                       PLAINTIFF-APPELLANT

                                                 vs.

                          TYRELL L. CARMICHAEL
                                                       DEFENDANT-APPELLEE




                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-531894

        BEFORE:           Rocco, J., Celebrezze, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: June 16, 2011

                                                 -i-
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ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY:   Mollie Ann Murphy
      Matthew E. Meyer
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Michael S. Weiss
602 Rockefeller Building
614 Superior Avenue
Cleveland, Ohio 44113



KENNETH A. ROCCO, J.:

        {¶ 1} Plaintiff-appellant the state of Ohio appeals from the trial court

order     that   granted   the   motion      to   suppress   evidence   filed   by

defendant-appellee Tyrell L. Carmichael.

        {¶ 2} The state presents one assignment of error. The state argues the

trial court incorrectly determined the police investigative stop of the van in

which Carmichael was riding violated the Fourth Amendment’s prohibition

against unreasonable searches and seizures.
                                       3

      {¶ 3} Upon a review of the record, this court disagrees. Consequently,

the trial court’s order is affirmed.

      {¶ 4} Carmichael was indicted in this case on six counts, charged with

two counts each of drug trafficking and possession, possession of criminal

tools, and tampering with evidence, with several forfeiture specifications,

based upon an incident that occurred on December 3, 2009 at approximately

10:00 p.m. During their testimony at the hearing on Carmichael’s motion to

suppress evidence, the state’s witnesses provided the following account of the

incident.

      {¶ 5} Cleveland police detective Gerald Crayton testified he was in an

undercover vehicle parked on Hampden Avenue approximately twenty feet

from Hampden’s intersection with E. 105th Street. Crayton was part of a

team of officers; he was “spotting,” watching the area for possible criminal

activity.

      {¶ 6} Across the intersection and approximately “three houses east” of

it, Crayton observed a “silver minivan sitting there.” As Crayton watched, a

man emerged from the darkness, went up to the passenger side of the

minivan, “conversed real quickly,” then “handed something to the passenger,”

before walking back to “wherever” he came from. The minivan drove off,
                                     4

proceeding eastbound on Hampden. Crayton testified he could not see what

was exchanged, and he could not clearly see the license plate of the minivan.

      {¶ 7} Via police radio, Crayton informed Det. McCully, one of his other

team members who traveled in another undercover vehicle, of his

observations.   Crayton asked McCully to follow the minivan.            Crayton

testified   McCully   responded;   Crayton   stated   that   he   saw   McCully

approaching the intersection, traveling on E. 105th Street, and that McCully

turned onto Hampden to follow the minivan.

      {¶ 8} McCully testified he was to the rear of Crayton’s vehicle on

Hampden when he received Crayton’s broadcast. Although McCully stated

Crayton provided the minivan’s license plate number, at the time of the

hearing, McCully could not remember it.

      {¶ 9} McCully testified he drove around Crayton’s car, crossed E. 105th

Street, and followed the minivan.      McCully stated the minivan traveled

approximately “half a block” before it parked on Tacoma near E. 106th Street.

McCully “radioed the take-down cars” of the minivan’s location. When he

saw two marked police cars arrive to block the minivan, he “pulled off.”

      {¶ 10} Officer Todd Kilbane was driving one of the marked police cars.

Kilbane testified he and his colleagues were “assisting the narcotics unit, or

the vice unit, and they gave a description of a [sic] automobile, gave the
                                      5

license plate, and informed us that a drug transaction had happened. One of

the detectives followed the auto to Tacoma.       The auto pulled over as it

approached, like, 105, and we came right around the corner and activated our

lights and took the car down.”

      {¶ 11} Kilbane stated he and his partner exited their patrol car “with

guns drawn,” and Kilbane approached the passenger side shouting, “Show me

your hands.”   Kilbane saw the passenger, later identified as Carmichael,

“shoving, looked like a plastic bag down in his waistband area.”         Since

Kilbane “didn’t know if he had a weapon or what he had,” Kilbane “took him

out of the car,” put Carmichael up against the side of it, and “cuffed him for

our safety.” Kilbane stated that as he “assisted [Carmichael] in opening his

legs” for a pat-down, a plastic baggie with what later proved to be crack

cocaine “fell right down his pant leg onto the ground.”

      {¶ 12} As previously stated, based upon this incident, Carmichael was

arrested and ultimately indicted on six counts. After he received discovery

from the state, Carmichael challenged the state’s intention to use the

evidence by filing a motion to suppress.

      {¶ 13} The trial court conducted a hearing on Carmichael’s motion.

After the detectives and the police officer testified, Carmichael presented two

witnesses. One of them, Madaral Lewis, testified that he was driving the
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minivan on the night of the incident. Lewis described his route of travel to

Tacoma Avenue to park in front of his sister’s mother’s house; the record

reflects he used a map of the area. Lewis testified that he had not driven on

the intersection of E. 105th Street and Hampden Avenue at all.

      {¶ 14} In granting Carmichael’s motion to suppress evidence, the trial

court relied upon this court’s decision in State v. Pettegrew, Cuyahoga App.

No. 91816, 2009-Ohio-4981, [appeal not allowed, 124 Ohio St.3d 1493,

2010-Ohio-670, 922 N.E.2d 228] and made the following pertinent comments:

      {¶ 15} “ * * * [T]he big tough nut issue is whether there was an

articulation or a reasonable suspicion of criminal activity in the first place.

      {¶ 16} “ * * *

      {¶ 17} “ * * * It’s not enough to witness a hand-to-hand transaction when

you don’t know what’s being transacted.

      {¶ 18} “ * * *

      {¶ 19} “ * * * It’s the exchange of drugs that makes it criminal.       And

you’re still allowed to go touch somebody and exchange pencils or aspirin or

whatever.

      {¶ 20} *   * [I]t was just a hand-to-hand between two human beings, and

that’s not enough to base a stop on because they could have been doing

anything, including shaking hands. * * *
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      {¶ 21} “ * * * and the question is, whether you’re going to let the police

stop people in a free society for any — when that’s all they’re seeing. And

you are literally saying that [Crayton] saw a, quote, exchange. This is a man

that sat here and said he couldn’t read the license plate on the car. But he

saw an exchange. Now, you know, that’s kind of — that’s heavy stuff.

      {¶ 22} “I understand it’s a high crime area, that’s relevant.   The time of

night, I’m sure that’s relevant. I know we have an experienced officer. But

all we have is this thing he’s calling a hand-to-hand, it’s human contact

between two people at a car. It could involve anything * * *. And there is

not an articulation of reasonable suspicion of criminal activity. * * *.”

      {¶ 23} The state appeals from the trial court’s decision and presents one

assignment of error.

      {¶ 24} “I.   The trial court erred in suppressing evidence seized

following a constitutional stop based on Terry v. Ohio.”

      {¶ 25} The state argues the trial court improperly applied the law to the

facts presented in this case.    The state contends that as long as a police

officer sees an “exchange” occur between two people, that fact, along with the

other facts articulated, is enough to justify an investigative stop.        Based

upon the record of this case, this court disagrees.
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      {¶ 26} A motion to suppress evidence challenges the warrantless search

and seizure at issue as being in violation of the Fourth Amendment of the

United States Constitution. State v. Williams, Cuyahoga App. No. 81364,

2003-Ohio-2647, ¶7.       The principal remedy for such a violation is the

exclusion of evidence from the criminal trial of the individual whose rights

have been violated.      Id.   Exclusion is mandatory when such evidence is

obtained as a result of an illegal search. Id., citing Mapp v. Ohio (1961), 367

U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

      {¶ 27} Appellate 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 7, ¶8. This court accepts the trial court’s

findings of fact if they are supported by competent, credible evidence. State

v. Gross, Cuyahoga App. No. 91080, 2009-Ohio-611, ¶24. Accepting these

facts as true, this court must independently determine, as a matter of law

and without deference to the trial court’s conclusion, whether those facts meet

the applicable legal standard. Burnside; Williams at ¶8.

      {¶ 28} The Fourth and Fourteenth Amendments to the United States

Constitution prohibit warrantless searches and seizures, unless an exception

applies.   Id. at ¶25.     One exception to the warrant requirement is the
                                       9

investigatory stop, which is permitted pursuant to Terry v. Ohio (1968), 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

      {¶ 29} This type of exception is “narrowly drawn”; it “allows a police

officer without probable cause to stop and briefly detain a person if the officer

has a reasonable suspicion based upon specific articulable facts that the

suspect is engaged in criminal activity.”         (Emphasis added.)       State v.

Franklin (1993), 86 Ohio App.3d 101, 103, 619 N.E.2d 1182. The court in

Franklin noted, at 104, 619 N.E.2d 1182, “In Terry, the United States

Supreme Court set forth a dual inquiry for evaluating the reasonableness of a

search conducted incident to such an investigative stop:

      {¶ 30} “‘[1] whether the officer’s action was justified at its inception, and

[2] whether it is reasonably related in scope to the circumstances which

justified the interference in the first place.’” (Emphasis added.) Id. at 20.

      {¶ 31} The initial inquiry, which the trial court faced in this case, entails

a determination of whether, under the totality of the facts available to the

officer at the moment of the stop, the investigating officer can point to specific

and articulable facts to support his reasonable belief that a crime may be

occurring; if so, the intrusion is permitted. Franklin, supra.

      {¶ 32} In Pettegrew, this court stated in pertinent part as follows:
                                      10

      {¶ 33} “The Ohio Supreme Court has held that a Terry stop is valid

when viewed through the eyes of a reasonable and prudent police officer on

the scene who must act when the crime is unfolding. This view is defined as

the totality of the circumstances. These circumstances have been defined as

location, character of location, and action of the suspect or suspects (fleeing).

Regardless of the officer’s lens to assess the criminal behavior, he must have a

reasonable articulable suspicion before a stop is made and the logical

inference is that he must be able to articulate what he observed that gave rise

to that suspicion.

      {¶ 34} “We conclude that these facts do not satisfy the above stated legal

standard.    The officer failed to articulate the basis for his reasonable

suspicion that a crime was afoot.      He never stated that he observed the

unidentified male exchange something with Pettegrew, or vice versa.           He

never said he saw Pettegrew’s hands outside the car. He said he saw the

unidentified male reach into the car, but could not describe anything other

than he reached into the car. Instead, he labeled their action a hand-to-hand

transaction or interaction without describing what they were doing.          We

realize that this is a close case. However, because the action of the men [was]

consistent with innocent behavior, we resolve this case in favor of Pettegrew’s

Fourth Amendment rights.
                                      11

      {¶ 35} “ * * * .”

      {¶ 36} “The officer must be able to articulate the criminal activity that

he observed. Labeling the behavior is not sufficient as a matter of law. The

officer must be able to say he saw a hand-to-hand exchange. During the

officer’s testimony, he tried to explain what he meant by hands interacting,

but was not clear.        The officer must be able to make sense of what he

observed, especially when one person is sitting in the car, the other is on the

outside, and the officer is too far away to see anything being exchanged. The

Fourth Amendment requires more than a hunch when the suspicious

behavior is consistent with innocent behavior. * * *.” ( Emphasis added.)

      {¶ 37} Subsequently, in State v. Agee, Cuyahoga App. No. 94035,

2010-Ohio-5074 at ¶15, this court repeated the stricture that “labeling the

behavior” will be insufficient for Fourth Amendment purposes. A review of

the trial court’s comments in this case demonstrates that the court

determined Crayton was labeling what he observed, perhaps even as a

pretense to justify the stop and search. Although Crayton testified he saw a

“hand-to-hand” gesture that he thought could be an exchange of drugs, the

court simply did not believe him. The court, as the trier of fact in ruling on a

motion to suppress evidence, is free to believe all, part, or none of the

testimony of each witness. Cleveland v. Fields, Cuyahoga App. No. 82070,
                                     12

2003-Ohio-1965; see, also, State v. Harriston (1989), 63 Ohio App.3d 58, 63,

577 N.E.2d 1144, citing State v. Antill (1964), 176 Ohio St. 61, 197 N.E.2d

548.

       {¶ 38} The court concluded Crayton’s assertion was unlikely in light of

his other testimony that, from his distance, he could not read the license plate

of the vehicle he observed.     The trial court’s conclusion that Crayton’s

suspicion was unreasonable finds support in the contradictory testimony

supplied by both McCully and Kilbane.

       {¶ 39} Although Crayton testified he saw McCully’s car turn onto

Hampden from E. 105th Street, McCully stated positively that he was behind

Crayton rather than on E.105th Street.       For his part, Kilbane could not

remember which special unit he was assisting that night.          Kilbane also

testified that as he ran toward the vehicle, he saw Carmichael “shoving” a

“plastic baggie” into his waistband, but then caught himself and asserted the

item Carmichael was attempting to hide might have been a weapon.

       {¶ 40} Based upon the record, therefore, the stop and search of the

minivan in which Carmichael was a passenger violated the Fourth

Amendment.       The trial court properly granted Carmichael’s motion to

suppress evidence, and, accordingly, the state’s assignment of error is

overruled.
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      The judgment is 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 issue out of this court directing the

common pleas 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.



      ___________________________________
      KENNETH A. ROCCO, JUDGE

      COLLEEN CONWAY COONEY, J.,
      CONCURS IN JUDGMENT ONLY;
      FRANK D. CELEBREZZE, JR., P.J., DISSENTS
      (SEE ATTACHED OPINION)

      FRANK D. CELEBREZZE, JR., P.J., DISSENTING:

      {¶ 41} I respectfully dissent.     I would reverse the trial court’s

suppression of the crack cocaine retrieved from appellant by police officers on

December 3, 2009. Under the totality of the circumstances, I would find that

Det. Crayton had a reasonable suspicion that criminal activity “may be afoot”

to justify a Terry stop.

      {¶ 42} “Under Terry, an officer must articulate a reasonable basis for

detaining an individual.”     State v. Smith, Cuyahoga App. No. 89443,
                                    14

2008-Ohio-2361.    In deciding whether reasonable suspicion exists, courts

must examine the “totality of the circumstances” of each case in order to

determine whether the detaining officer had an objective basis for suspecting

criminal activity. State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489,

citing State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044. Under

this approach, police officers are permitted to 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. State v. Scales, Cuyahoga App. No. 87023, 2006-Ohio-3946, ¶11.

     {¶ 43} At trial, Det. Crayton testified, “I observed a male walk from the

south side of the street up to the passenger’s side of the minivan.        He

conversed real quickly with whoever was in the passenger’s side of the car. I

saw an exchange of something come out of his hand, something was handed

to this person.”    When asked what made him believe that it was a

hand-to-hand transaction, Det. Crayton stated, “I could see the male’s hands

into the car and something went out of his hand and then something was

handed to this person.” Det. Crayton testified that he concluded that a drug

transaction had occurred based on his training and experience, the area’s

known drug activity, and the time of night when his observation was made.
                                      15

      {¶ 44} In State v. Toles,    Cuyahoga App. Nos. 94886 and 94889,

2011-Ohio-217, ¶13, this court stated that, “without a firm statement from

the testifying officer that a hand-to-hand exchange occurred, the legal

standard found in Pettegrew is not met.” In the case at bar, Det. Crayton

clearly and affirmatively stated that he observed a hand-to-hand exchange

occur in a high crime area. Despite the trial court’s conclusions, Pettegrew

does not require the officer to identify that the object being exchanged is drug

related. Rather, Pettegrew only requires the officer to firmly state on the

record that an exchange had occurred. See Pettegrew, at ¶22 (“We do not

hold that the officer must identify what the item is, when a hand-to-hand

exchange takes place in a high crime area. However, the officer must be able

to say that an exchange occurred.”)

      {¶ 45} In light of Det. Crayton’s testimony and pursuant to the

appropriate standard of review for a motion to suppress, I would reverse.
