[Cite as State v. Haynesworth, 2019-Ohio-1986.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                Plaintiff-Appellee,                 :
                                                                  No. 107231
                v.                                  :

ANTHONY HAYNESWORTH,                                :

                Defendant-Appellant.                :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: REVERSED; CONVICTION VACATED
                RELEASED AND JOURNALIZED: May 23, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-618340


                                           Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Nathaniel Tosi, Assistant Prosecuting
                Attorney, for appellee.

                John T. Forristal, for appellant.


MARY EILEEN KILBANE, A.J.:

                  Defendant-appellant,            Anthony   Haynesworth   (“Haynesworth”),

appeals the trial court’s denial of his motion to suppress. For the reasons set forth

below, we reverse and vacate Haynesworth’s conviction and sentence.

                  On June 14, 2017, the city of Lakewood police received an anonymous
call that two men were walking in the middle of the street on Grace Avenue and were

trying the handles of car doors. Approximately two minutes later, a patrol car

responded to the call and observed two males, later identified as Haynesworth and

Wesley Jones (“Jones”),walking along the sidewalk on Detroit Avenue. The police

cruiser pulled next to the sidewalk and the officers quickly exited the vehicle. Officer

Michael Perhacs (“Officer Perhacs”) immediately approached Haynesworth and

Jones and told them of the complaint and asked if they had identification.

               Haynesworth and Jones provided their identification cards and

informed the officers that they had just walked down from Grace Avenue to Detroit

Avenue. Haynesworth and Jones adamantly denied attempting to open any car

doors. Jones informed the officers that he lived around the corner on Dowd Avenue

and that they were en route to a bar on Detroit Avenue.

               Dispatch informed the officers that Haynesworth had an outstanding

warrant in Lake County for an alleged failure to appear in court. The officers

handcuffed Haynesworth and returned Jones’s identification card. They gave Jones

the option of going on his way or waiting until they received confirmation that Lake

County wanted Haynesworth transported to their jurisdiction. Jones opted to wait

with Haynesworth.

               Almost 30 minutes later, after the officers received confirmation that

Haynesworth was to be transported to Lake County, Haynesworth informed them

he had a handgun in the back waistband of his trousers. The officers took possession

of the handgun and advised Haynesworth he was under arrest for carrying a
concealed weapon and having weapons while under disability.

              On August 8, 2017, Haynesworth’s defense counsel filed a motion to

suppress, and requested an oral hearing. Subsequently, through a joint pleading,

the prosecutor and defense counsel informed the trial court that in lieu of a

suppression hearing, they would stipulate that the trial court could rule on the

motion to suppress by relying only on the briefs, exhibit No. 1 (pages 3 and 4 of the

Lakewood police report) and exhibit No. 2 (Lakewood police body camera videos).

              On March 18, 2018, the trial court denied Haynesworth’s motion to

suppress, without issuing any findings of fact or conclusions of law. Thereafter,

defense counsel filed a motion for essential findings concerning the trial court’s

ruling on the motion to suppress.

              On May 2, 2018, Haynesworth pled no contest to the charges and the

trial court found him guilty. Defense counsel withdrew the motion for essential

findings the same day. On May 23, 2018, the trial court sentenced Haynesworth to

90 days of GPS monitored house arrest, 36 months of community control, and 100

hours of community service. In addition, the trial court ordered Haynesworth to

submit to random drug testing, complete an intensive drug treatment program, and

obtain verifiable employment.

              Haynesworth now appeals, assigning the following error for review:

                                Assignment of Error

      The trial court erred when it denied Haynesworth’s motion to suppress.

              In the sole assignment of error, Haynesworth argues the police
officers did not have reasonable suspicion to make the initial investigatory stop.

               Appellate review of 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. The trial court assumes the role of the trier of fact when presented with a

motion to suppress. Id. Therefore, the trial court is in the best position to analyze

the evidence and evaluate the credibility of the witnesses. Id. Accordingly, an

appellate court must defer to the trial court’s findings of fact if they are supported

by competent, credible evidence. Id.

               However, an appellate court must independently determine as a

matter of law, without deference to the trial court’s conclusion, whether the facts

meet the applicable legal standard. State v. Hill, 8th Dist. Cuyahoga Nos. 83762 and

83775, 2005-Ohio-3155, ¶ 12.

               Preliminarily, as previously noted, in denying Haynesworth’s motion

to suppress, the trial court did not provide any findings of fact or any conclusions of

law. Additionally, there is no transcript because of defense counsel’s waiver of a

hearing.

               Crim.R. 12(F) provides that “‘where factual issues are involved in

determining a motion, the court shall state its essential findings on the record.”’

However, it is well settled in Ohio that in order to invoke the court’s duty to issue

findings of fact, the defendant must specifically request the essential findings.

Cleveland v. Cunningham, 8th Dist. Cuyahoga No. 105403, 2018-Ohio-844,

quoting State v. Robinson, 8th Dist. Cuyahoga No. 90731, 2008-Ohio-5580, ¶ 29;
State v. Martin, 8th Dist. Cuyahoga No. 89030, 2007-Ohio-6062, ¶ 13, citing State

v. Brown, 64 Ohio St.3d 476, 481, 597 N.E.2d 97 (1992); Bryan v. Knapp, 21 Ohio

St.3d 64, 65, 488 N.E.2d 142 (1986).

               In the instant case, after the trial court denied the motion to suppress,

defense counsel filed a motion for essential findings, which counsel later withdrew.

As a result of defense counsel withdrawing the motion for essential findings, there

was no request. Thus, the trial court has no duty to issue findings of fact, when there

is no record of the defendant’s request. Robinson at ¶ 30.

               While it would have been better practice to have a hearing on the

motion, for defense counsel to not have withdrawn the motion for essential findings,

and the parties to submit the recording of the anonymous 911 call, we have reviewed

the record as we are required to do. Our review includes the jointly stipulated exhibit

No. 1 (pages 3 and 4 of the police report) and exhibit No. 2 (the police body camera

videos) that the trial considered in ruling on the motion.

               The Fourth Amendment to the United States Constitution and Article

I, Section 14 of the Ohio State Constitution protect against unreasonable

governmental searches and seizures. State v. Callan, 8th Dist. Cuyahoga No. 95310,

2011-Ohio-2279, ¶ 15. Warrantless searches and seizures are considered per se

unreasonable, unless an exception to the warrant requirement applies. Katz v.

United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

               The state contends the Fourth Amendment was not implicated

because the officers’ encounter with Haynesworth was consensual.
              One scenario that does not trigger Fourth Amendment protection is a

citizen’s consensual encounter with the police. Florida v. Bostick, 501 U.S. 429, 434,

111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). A consensual encounter occurs when the

police approach a person in a public place, engage the person in conversation, and

the person remains free to not answer or walk away. State v. Jones, 188 Ohio App.3d

628, 636, 936 N.E.2d 529 (10th Dist. 2010), citing Florida v. Royer, 460 U.S. 491,

497, 103 S.Ct. 1319, 75 L.Ed. 2d 229 (1983). “[A] person has been ‘seized’ within the

meaning of the Fourth Amendment only if, in view of all of the circumstances

surrounding the incident, a reasonable person would have believed that he was not

free to leave.” U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497

(1980).

              In the instant case, despite the state’s claim that this was a casual and

consensual encounter, our review indicates otherwise. The body camera videos

reveal the patrol car approaching from the opposite direction as Haynesworth and

Jones were walking along Detroit Avenue. The patrol car stops suddenly, almost

riding upon the sidewalk. Haynesworth and Jones immediately stopped and the

officers quickly exited the vehicle. Officer Perhacs authoritatively states: “Where

you guys live at? * * * Where you headed to now? * * * What you guys doing coming

down to Grace? * * * We got complaints that you guys were trying door handles on

Grace.”

              Haynesworth and Jones appear surprised by the encounter, with

Haynesworth immediately stating: “Get the f**k no, that’s crazy!” and Jones stating:
“[o]h no, no, never do nothing like that!” Both men adamantly denied trying the

door handles of cars, but Officer Perhacs in a conclusory tone stated: “[g]uess what,

that is why I am stopping you — why would they call and say that” and then

demanded proof of their identities.

               There are various “[e]xamples of circumstances that might indicate a

seizure, even where the person did not attempt to leave, the threatening presence of

several officers, the display of a weapon by an officer, some physical touching of the

person or the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S.

544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). See also dissent in State v.

Forrester, 8th Dist. Cuyahoga No. 101084, 2015- Ohio-98.

               Here, in light of Officer Perhacs’s commanding tone, it does not

appear that Haynesworth and Jones felt they could have declined to engage in the

interaction and proceed on their way to their intended destination.         Haynesworth

and Jones were effectively seized and the encounter as revealed on the body camera

videos was neither casual nor consensual. Indeed, the videos depict Haynesworth

and Jones immediately stopping as the patrol car abruptly stopped in the opposite

direction of traffic, and the officers quickly exiting the vehicle. The officers took their

identification cards and did not return them until dispatch completed a background

check on LEADS.

               The state argues in the alternative, that the stop was permissible

because the officers had reasonable suspicion based on the anonymous 911 call.
               Another exception to the Fourth Amendment warrant requirement is

an investigative stop, or a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968). An investigatory stop is permissible if a law enforcement officer

has a reasonable suspicion, based on specific and articulable facts, that the

individual to be stopped may be involved in criminal activity. Id. at ¶ 21-22.

               When determining whether an investigative traffic 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, 37 Ohio

St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus, cert. denied, 488

U.S. 910, 109 S.Ct. 264, 102 L.Ed.2d 252 (1988).

               In the instant case, the officers’ decision to stop Haynesworth and

Jones was not based on any observation of their own, but based solely on an

anonymous 911 call, which is not contained in the record. An audio recording of the

anonymous 911 call, as well as information about the caller, is critical for the review

of the motion to suppress.

               Ohio courts have recognized three categories of informants: (1)

citizen informants; (2) known informants, those from the criminal world who have

previously provided reliable tips; and (3) anonymous informants, who are

comparatively unreliable. Maumee v. Weisner, 87 Ohio St.3d 295, 300, 1999-Ohio-

68, 720 N.E.2d 507. “[A]n anonymous tip alone seldom demonstrates the

informant’s basis of knowledge or veracity” to justify an investigative stop. Alabama

v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). (Citation
omitted.) “This is not to say that an anonymous caller could never provide the

reasonable suspicion necessary for [an investigative] stop.” Id. A stop is lawful if the

facts relayed in the tip are “sufficiently corroborated to furnish reasonable suspicion

that [the defendant] was engaged in criminal activity.” Id. at 331.

               In the instant case, the anonymous tip did not provide the officers

with information upon which they could test the caller’s veracity. Much to the

contrary. Exhibit No. 1, pages three and four of the police report, indicated that

Officer McNeely checked the vehicles parked on the street of Grace Avenues and

none appeared to have been tampered with or entered.1                Officer McNeely’s

assessment also undermines the anonymous caller’s report of men walking in the

middle of the street, yet able to try the door handles of cars parked on the sides of

the street.

               In Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254

(2000), which we find instructive, an anonymous caller reported to the Miami-Dade

Police Department that a young black male standing at a particular bus stop and

wearing a plaid shirt was carrying a gun. Officers went to the bus stop and saw three

black males, one of whom was wearing a plaid shirt. Other than the tip, the officers

had no reason to suspect any of the three men of illegal conduct. The officers did not

see a firearm or observe any unusual movements. One of the officers frisked J.L.

and seized a gun from his pocket. J.L., who was almost 16 at the time, was charged



       1 Pages three and four are the only pages from the six-page police report contained
in the record.
under state law with carrying a concealed firearm without a license and possessing

a firearm while under the age of 18. The trial court granted his motion to suppress

the gun as the fruit of an unlawful search. The intermediate appellate court reversed,

but the Supreme Court of Florida quashed that decision and held the search invalid

under the Fourth Amendment. Id. at syllabus.

               The United States Supreme Court in affirming the Florida Supreme

Court, held that an anonymous tip that a person is carrying a gun is not, without

more, sufficient to justify a police officer’s stop and frisk of that person. The Court

stated:

       Florida contends that the tip was reliable because its description of the
       suspect’s visible attributes proved accurate: There really was a young
       black male wearing a plaid shirt at the bus stop. Brief for Petitioner 20-
       21. The United States as amicus curiae makes a similar argument,
       proposing that a stop and frisk should be permitted “when (1) an
       anonymous tip provides a description of a particular person at a
       particular location illegally carrying a concealed firearm, (2) police
       promptly verify the pertinent details of the tip except the existence of
       the firearm, and (3) there are no factors that cast doubt on the
       reliability of the tip . . . .” Brief for United States 16. These contentions
       misapprehend the reliability needed for a tip to justify a Terry stop.

Id. at 271.

               Here, unlike Florida v. J.L., where the state contended that the tip

was reliable because it accurately described J.L.’s visible attributes, the anonymous

caller did not even provide a description of the two men. The caller did not indicate

the race of the two men; did not give an approximate age of the men; did not describe

their physical attributes or their clothing; and did not indicate that one of the men
was carrying a book bag.2 The anonymous caller only said “two men.”

               As a result, the only information the officers had when they stopped

Haynesworth and Jones, albeit walking on a different street, was the bare bones

report of two men walking down the middle of Grace Avenue trying car doors. If

the United States Supreme Court found an anonymous call describing a person’s

visible attributes of race, clothing, plus location, insufficient to justify an

investigatory stop, then an anonymous call, which provided much less, cannot be

sufficient to justify the present stop.

               The state cites Navarette v. California, 572 U.S. 393, 134 S.Ct. 1683,

188 L.Ed.2d 680 (2014), for the proposition that an anonymous 911 call may be

sufficiently reliable for an investigatory stop. However, Navarette is distinguishable

from the facts in this case. Navarette involved an anonymous eyewitness that

claimed a truck had just run the caller off the road and continued driving. The caller

specifically described the make, model, and color of the truck; the license plate

number; what she witnessed the truck do to her and its direction of travel.3 The

anonymous caller in this case did not provide any details regarding the suspects

other than “two men” walking down Grace Avenue. The facts in this case are more

aligned with the facts in Florida v. J.L.

               In State v. Whitsette, 8th Dist. Cuyahoga No. 92566, 2009-Ohio-




      2 The body camera video reveals that Haynesworth was carrying a bookbag.
      3 The use of the 911 system for the reliability of the call was only one factor the
Court considered.
4373, which involved a fact pattern centering on an anonymous call, this court

affirmed the trial court’s decision to grant the defendant’s motion to suppress

because “the caller-informant failed to provide more specific details that the officers

could corroborate for veracity[.]” Id. at ¶ 14, quoting Florida v. J.L., 529 U.S. 266,

270, 120 S.Ct. 1375, 146 L.Ed.2d 254. We further noted, “[t]he anonymous call

concerning [the defendant] provided no predictive information and, therefore, left

the police without means to test the informant’s knowledge or credibility.” Id.

               Here, like the scenario in Whitsette, when the officers stopped

Haynesworth and Jones, approximately two minutes after their department

received the anonymous call, the men were simply out walking along the sidewalk

on Detroit Avenue, on a summer evening in the city of Lakewood. The record does

not contain any further information of criminal or suspicious behavior to warrant

an investigatory stop. State v. Williams, 8th Dist. Cuyahoga No. 100311, 2014-Ohio-

1728, citing State v. Porter, 8th Dist. Cuyahoga No. 86577, 2006-Ohio-4585.

               Nothing about this innocent activity of walking down the street would

indicate that these were the two men that were the subjects of the anonymous 911

call that did not provide a description of the two men’s visible attributes. Thus, at

the time the officers stopped Haynesworth and Jones, we find there were

insufficient surrounding circumstances to provide the officers with reasonable

suspicion of criminal activity.

               While this appeal was pending, State v. Hairston, Slip Opinion No.

2019-Ohio-1622, was released. In Hairston, as two Columbus police officers were
responding to a radio call one night, they heard the sound of nearby gunshots. They

immediately drove a short distance to the area where the shots seemed to be coming

from and, with guns drawn, detained the only person in the area. A pat-down of the

man revealed a handgun. Defense counsel filed a motion to suppress.

              The trial court stated it was a close call, but denied the motion to

suppress. On appeal, the court held that the stop violated the Fourth Amendment

and concluded that the trial court should have granted the motion to suppress the

handgun and other evidence obtained during the stop. The Ohio Supreme Court

found no violation of the Fourth Amendment.

              Although at first blush, Hairston appears similar to the instant case,

because in both instances the officers stopped the first individuals they saw,

Hairston is easily distinguishable from the instant case.

              In Hairston, in concluding the officers had a reasonable suspicion to

stop Hairston, the court stated:

      Officer Moore personally heard the sound of gunshots - the gunshots
      were not faint and sounded close-by. This is not a case in which the
      officers relied on a radio dispatch or other secondhand information
      about shots being fired, In re D.W., 184 Ohio App.3d 627, 2009-Ohio-
      5406, 921 N.E.2d 1114, ¶ 32 (2d Dist.), but one in which they heard and
      immediately reacted to the sound of nearby gunfire.

2019-Ohio-1622, at ¶ 11.

              Here, unlike Hairston, the officers relied solely on a radio dispatch

regarding an anonymous tip of two men walking down the middle of Grace Avenue

trying door handles.       Also, unlike Hairston, where the responding officers

personally heard shots being fired nearby, there was no personal firsthand
observation.   In addition, unlike Hairston, the officers were not immediately

reacting to personally hearing the sound of gunfire nearby or personally observing

activities that taken together rose to the level of reasonable suspicion.

               We are not discounting that Haynesworth was carrying a concealed

weapon, and we fully appreciate the threat police officers face each day patrolling

our streets, but the Fourth Amendment does not permit officers to stop, seize, or

search any person without corroborating information that the person in question is

presently involved in criminal activity.

               Based on our independent review of the record and the

aforementioned exhibits, we find that at the time the officers observed Haynesworth

and Jones walking on Detroit Avenue, the officers did not possess a reasonable and

articulable suspicion of criminal activity, before initiating a Terry stop. As a result,

the trial court erred in denying Haynesworth’s motion to suppress.

               Accordingly, the sole assignment of error is sustained.

               Judgment is reversed; conviction vacated.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue 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.


                                 _________
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR
