The Akron Legal News

Appeals court: Trial court erred by suppressing evidence from unwarranted search and seizure

JESSICA SHAMBAUGH
Special to the Legal News
Published: July 15, 2013

The 10th District Court of Appeals recently reversed a trial court’s decision to suppress evidence found during an unwarranted search and seizure.

The 2-1 majority opinion sustained the state’s argument that the Franklin County Court of Common Pleas abused its discretion by granting a motion to suppress evidence recovered when a police officer seized Rommel Jennings in his apartment complex parking lot and searched under the hood of his car.

The facts of the case state that Columbus Police Officer Ryan Steele was patrolling an area known to experience drug activity around 1 a.m. on Aug. 6, 2009.

During his patrol, Steele saw a car with its hood up in the parking lot of an apartment complex.

He saw Jennings standing near the car’s front, driver’s-side quarter panel and noted that Jennings looked “panicked” when he saw the officer.

Steele reported seeing Jennings make a tossing or reaching gesture toward the open hood but stated that he did not see an object thrown under it.

The officer entered the parking lot and approached Jennings, asking him to sit on the sidewalk.

Jennings attempted to shut the hood of his car and the officer prevented him from doing on.

Jennings made a second attempt to lower the hood and Steele said he removed his hands to avoid injury, allowing Jennings to successfully close the hood.

Jennings then sat on the sidewalk as requested and Steele searched under the hood of his car.

The officer found a crack pipe and a bag of crack cocaine in the car’s engine compartment near the quarter panel where Jennings was standing.

The state charged Jennings with possession of cocaine as a fifth-degree felony and he moved to suppress the evidence, arguing it was taken during an illegal search and seizure.

The common pleas court held that the only rationale Steele provided for his stop was numerous complaints about criminal activity in the area, several previous arrests in the area, the car with its hood up and Jennings’ “panicked look.”

“The court termed Officer Steele’s basis for the stop as merely a hunch,” 10th District Judge Susan Brown wrote in her case summary.

The trial court ruled there was no reasonable, articulable suspicion to justify the seizure and granted Jennings’ motion to suppress.

On appeal to the 10th District, the state argued the trial court abused its discretion by suppressing the evidence.

The appellate panel stated it must first determine at what point Jennings was seized.

It held that Steele’s initial contact was a consensual encounter because he did not use a specific show of force or authority.

The judges found Steele only asked Jennings to sit on the sidewalk and did not order or command him to do so.

They also noted Jennings was not seized at that point because he did not comply with Steele’s request, but instead tried to lower the hood.

“Although it could be argued that Officer Steele’s attempt to prevent appellee from shutting the hood began a new seizure because the officer was restraining appellee’s liberty using physical force, appellee then again failed to comply with Officer Steele by attempting to shut the hood a second time; thus, no seizure had taken place at this point,” Brown stated.

The majority found Jennings was seized after he successfully lowered the hood because at that point he could not reasonably believe he was free to leave.

“Accordingly, the question becomes whether Officer Steele had reasonable, articulable suspicion at this juncture that criminal activity was afoot,” Brown wrote.

The panel held Steele had several reasons for initiating the stop, including the area’s reputation for drug and gang activity, knowledge that drugs had previously been sold from the apartment complex, an understanding that area drug dealers often carried guns, the time of night, the vehicle with its hood raised, Jennings’ “panicked” look and nervous response, Jennings’ tossing motion and Jennings’ noncompliance with the officer’s request that he sit on the sidewalk.

“None of the trial court’s or (Jennings’) arguments challenging the above basis is convincing,” Brown stated.

The judges maintained Steele had several reasons to support his suspicion of criminal activity and ruled that the circumstances warranted an investigatory stop.

Therefore, they reversed the trial court’s judgment and remanded for further proceedings.

Presiding Judge William Klatt joined Brown to form the majority.

Judge Gary Tyack dissented from the majority and held that the trial court was in the best position to determine the officer’s credibility.

“The trial court judge, based upon the testimony presented before her, reached a different set of factual conclusions than that reached by the majority of this panel. Again, we are not in a position to reach such different factual conclusions. We did not see the officer testify and cannot say he was believable,” Tyack wrote in his dissent.

“We should not conclude that, because the officer said it on the witness stand, it must be so. Police officers make mistakes and sometimes testify in a way to justify what they have done earlier.”

Emphasizing that the burden of proof was with the state to show a reason for the warrantless search, Tyack ruled that the state failed to do so and he would therefore affirm the trial court’s findings.

The case is cited State v. Jennings, case No. 2013-Ohio-2736.

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