State v. Higgins , 2016 Ohio 7890 ( 2016 )

[Cite as State v. Higgins, 2016-Ohio-7890.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104007
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MELEKE HIGGINS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-598858-A
BEFORE: McCormack, P.J., Boyle, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: November 23, 2016
ATTORNEY FOR APPELLANT
Kelly A. Gallagher
P.O. Box 45551
Westlake, OH 44145
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Aqueelah A. Jordan
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Meleke Higgins appeals from his conviction of
having weapons while under disability. For the reasons that follow, we affirm.
{¶2} Higgins was charged with having weapons while under disability in
violation of R.C. 2923.13(A)(2). He moved to suppress the evidence, which included
the weapon and his statement. Following a hearing, the trial court denied Higgins’s
motion. The court found that the police officers conducted an investigatory stop, rather
than a traffic stop, and “the totality of the circumstances and the experience and training
of the officers gave rise to a reasonable suspicion that criminal activity was afoot.”
{¶3} Thereafter, Higgins entered a no contest plea. The court found him guilty
and sentenced him to 12 months in prison.
{¶4} On appeal, Higgins raises one error for our review: the trial court erred
when it denied his motion to suppress.
Testimony at the Suppression Hearing
{¶5} Bedford detective, Brian Sara, testified concerning the events of August
27, 2015. Detective Sara has been a police officer for 11 years and has received
training in several areas of law enforcement, including narcotics, traffic stops, and
criminal investigations. Detective Sara and his partner arrived at the Atlantic Gun &
Tackle (“gun shop”) on the morning of August 27, 2015, where they were following up
on a stolen gun case. The detectives parked in the parking lot and waited for the shop
to open, in order to speak to the owner.
{¶6} Detective Sara testified that prior to the owner’s arrival, he observed two
males arrive in another car and park a couple of spaces to their right. The store owner
arrived, approached the detectives in their car, and spoke with the detectives about the
issue they had come to discuss with him. In the course of that conversation, Detective
Sara “sensed” that the men in the other car were watching the detectives. At one point,
Detective Sara’s partner exited the vehicle in order to take a phone call, and he observed
the license plate of the parked car in which the two men sat.
{¶7} Once the store opened, the detectives remained in their car in order to
complete some paperwork. During this time, the detectives noticed that the other men
did not immediately enter the store when it opened for business; rather, they remained in
their car. Detective Sara found this behavior suspicious, and the detectives decided to
park across the street to continue to observe the men, because this gun shop had
previously been the target of “numerous robberies.”
{¶8} After observing the men for approximately 20 minutes, the detectives saw
another male arrive at the store on foot. The two men in the car exited the car and
greeted the third man, and then the three men entered the store together. The detectives
continued to observe the men. Detective Sara testified concerning the men’s “odd”
behavior, stating that “[a]t various points it would either be two of them, then one would
come out. They went in and out of the store numerous times. At one point they were
all in the store, [and] at certain times, two of them were in the store.” He stated that the
detectives now suspected a possible illegal straw purchase of a firearm, where an
individual purchases a firearm and then passes the firearm to another individual who may
not be able to purchase the firearm himself. At this point, the detectives contacted two
Southeast Area Law Enforcement (“SEALE”) narcotics detectives, whose duties include
investigations of illegal gun transactions.
{¶9} Detective Sara and his partner observed the SEALE detectives arrive on
the scene. The SEALE detectives entered the gun shop in order to investigate whether
a straw purchase was, in fact, taking place. Within one minute of the detectives’ entry
into the shop, Detective Sara saw the three men they had been observing exit the shop.
The SEALE detectives then exited the shop and returned to their surveillance position.
Detective Sara testified that, once again, he observed the three men “going in and out of
the store” in different combinations of the three of them.
{¶10} Detective Sara testified that all three of the men ultimately got into the car.
Shortly before they got into the car, however, he observed one of the men “take what
appeared to be a handgun” and pass it to another, and the three men continued to pass the
gun around to each other. Eventually, one of the men placed the gun in the waistband
of his pants. The men then entered the car and left the parking lot. Detective Sara
testified that based upon his training and experience, the placement of the gun in the
man’s waistband and his entering the car was an improper handling of a firearm in a
motor vehicle.
{¶11} Bedford Heights detective, Frankie Reed, testified that he and Detective
Glenn Daniels were on the scene the morning of August 27. Detective Reed has been a
police officer for 19 years and has received training in basic patrol, homicide
investigations, interviewing techniques, crime scene, and advanced SWAT school.
{¶12} On the day in question, Detective Reed responded to a call about suspicious
behavior at the Atlantic Gun & Tackle. Upon arriving at the gun shop, Detective Reed
observed three men standing around a parked vehicle. Detective Reed testified that he
observed one of the men, later identified as Higgins, reach into the car and he “came out
with a gun cupped in his hands.” Higgins then entered the store, where he “stayed in
there for awhile,” and then the second man entered the store. Detective Reed observed
the two men then exit the store, where Higgins handed the gun to the second individual,
who then placed the gun in his waistband. Thereafter, all three men entered the car and
exited the parking lot.
{¶13} Detective Reed, who observed the three men for approximately one hour,
testified that the men “hanging out” in the gun store parking lot for some time, producing
a handgun, entering and exiting the store, passing the handgun around, and tucking the
handgun into one’s waistband was “very suspicious” behavior. He also noted that
while two men went into the store, the third man “kind of distanced himself from the
two.” Detective Reed suspected, initially, that perhaps a robbery was occurring,
because the shop had been robbed many times. One of the detectives phoned the store
and confirmed that the men inside the store were not robbing the store, but rather, they
were looking for a magazine for a gun that the store clerk told them the store did not
have. Nevertheless, Detective Reed continued to observe them because they continued
to exhibit suspicious behavior in the parking lot. The detective testified that “[j]ust
because it wasn’t robbed at that particular moment doesn’t mean it won’t be robbed
later,” when “they get the nerve to do it.”
{¶14} When the three men left the parking lot, Detective Reed requested a marked
police car to effectuate a stop. The detective explained that he and his partner were in
an unmarked car and plain clothes, and the men being stopped would have no way of
knowing Detective Reed and his partner were police officers. He further explained that
he wished to continue his investigation of the three men with the gun. At this point in
time, after running the plates through the system, the detectives only had the name of
record of the owner of the vehicle, who was female. There were no females at the
scene. Furthermore, Detective Reed believed that the gun was being improperly
transported. He stated that based upon his 22 years in law enforcement, if the situation
was on the “up-and-up,” the gun would have been carried properly in the vehicle, not in
one’s waistband.
{¶15} Finally, Bedford Heights detective, Glenn Daniels, testified on behalf of the
state. Detective Daniels has been a police officer for 21 years. He has been a
detective with Bedford Heights for two years, and prior to that, he was employed as a
SEALE narcotics detective. Detective Daniels is a certified firearms instructor, an
Ohio Peace Officer Training Academy (“OPOTA”) instructor, and a member of the
SWAT team.
{¶16} Detective Daniels testified that he and Detective Reed received a call from
the SEALE narcotics detectives regarding three suspicious males at the Atlantic Gun &
Tackle. He was informed that the officers on the scene suspected a possible straw
purchase. When they arrived on the scene, the three males were inside the shop. After
approximately 20 minutes, the detectives on the scene decided that the SEALE detectives
should go inside to investigate. Detective Daniels testified that the detectives were
aware that this particular shop had been robbed multiple times, it had been broken into
multiple times, and “more weapons are recovered in criminal acts that were stolen from
[this] particular” shop.
{¶17} Detective Daniels testified that the undercover SEALE detectives entered
the shop, and within one minute of the detectives entering, the three males exited the
shop. He found this behavior suspicious because the men did not immediately leave.
Rather, they “just came out and stood by their car and talked amongst themselves as if
they were waiting for whoever had just went in to leave again.” The SEALE detectives
then left the parking lot and stationed themselves in a different observation post, and the
remaining detectives continued to observe the men in the parking lot.
{¶18} At that point, the individual later identified as Higgins got into the vehicle,
sat inside the vehicle “for a second,” and exited the vehicle. The detective stated that
when he got out of the vehicle, Higgins had a gun “cupped” in his hand. Higgins then
walked back into the shop, and shortly thereafter, he was followed by a second
individual. The third individual remained in the parking lot and appeared to be looking
around and watching his surroundings. Detective Daniels testified that the detectives
were “a little antsy” because it appeared that Higgins was hiding the gun as he walked
into the shop.
{¶19} Thereafter, Detective Daniels phoned the gun shop in order to ensure they
were not being robbed. He confirmed that there was no robbery in progress and he
asked the clerk what the men inside were doing. He ended the phone call because the
two males exited the shop. The detectives then observed the men stand around and talk
to each other for some time, and then Higgins handed the gun to the second individual,
who tucked the gun into his waistband and covered it with his shirt. The detectives
continued to observe the men until they got into the vehicle and drove out of the parking
lot. They had observed the men for “well over an hour.”
{¶20} Detective Daniels testified that he believed there was a violation of the
transportation of a firearm in a motor vehicle, “at least,” stating that “there was a
violation of weapons law occurring, either a violation of the concealed carry law,
definitely a violation of transporting a firearm in a motor vehicle.” He explained that
the manner in which the gun was retrieved from the car, “hidden inside of a cupped
hand, trying to be hidden,” was unusual. Additionally, the manner in which the gun
was handled, “tak[ing] the gun inside the gun store, com[ing] back out, and hand[ing] it
to another guy to put inside his waistband,” was unusual. He stated that the detectives
were “still trying to figure out what was going on.” Detective Daniels explained that
based upon his training and experience as a firearms instructor, “the way the gun was
currently handled and being carried out * * * is not reasonable.” Detective Daniels
believed that the gun should be secured in a holster, not in one’s waistband.
Law and Analysis
{¶21} In his sole assignment of error, Higgins contends that the trial court erred in
denying his motion to suppress the evidence.
{¶22} An 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. When considering a motion to suppress, the trial court, as the trier of fact, is in the
best position to resolve factual questions and evaluate the credibility of witnesses. State
v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). We therefore accept the trial
court’s findings of fact if they are supported by competent, credible evidence. State v.
Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 22 (8th Dist.).
Once we accept the factual findings as true, however, we must independently determine,
as a matter of law and without deference to the trial court’s conclusion, whether the trial
court’s decision meets the applicable legal standard. Burnside, citing State v.
McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).
{¶23} The Fourth Amendment to the United States Constitution prohibits
warrantless searches and seizures as, per se, unreasonable. State v. Crawford, 8th Dist.
Cuyahoga No. 98605, 2013-Ohio-1659, ¶ 42, citing Mapp v. Ohio, 367 U.S. 643, 81
S.Ct. 1684, 6 L.Ed.2d 1081 (1961). An exception to the warrant requirement exists
where the police officer engages in an investigatory stop, or “Terry stop.” Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, a police officer
may stop or detain an individual when the officer has reasonable suspicion based on
specific, articulable facts that criminal activity is afoot. Id. at 30; State v. Eason, 8th
Dist. Cuyahoga No. 103575, 2016-Ohio-5516, ¶ 15.
{¶24} Reasonable suspicion exists where there is an objective and particularized
suspicion that the individual was engaged in criminal activity. State v. Sweeney, 8th
Dist. Cuyahoga No. 97414, 2012-Ohio-3152, ¶ 12, citing State v. Andrews, 57 Ohio
St.3d 86, 87, 565 N.E.2d 1271 (1991). It entails “a minimal level of objective
justification” for making the stop. State v. Taylor, 106 Ohio App.3d 741, 752, 667
N.E.2d 60 (2d Dist.1995), citing Terry at 27. “Inarticulable hunches” or “general
suspicion” is insufficient as a matter of law.” State v. Smith, 8th Dist. Cuyahoga No.
89432, 2008-Ohio-2361, ¶ 8. On the other hand, the level of suspicion required is less
than the degree of suspicion required for probable cause. Id. “[T]he relevant inquiry
is not whether particular conduct is innocent or guilty, but [rather, it is] the degree of
suspicion that attaches to particular types of noncriminal acts.” United States v.
Sokolow 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
{¶25} Moreover, the propriety of an investigative stop or detention must be
viewed in light of the totality of the surrounding facts and circumstances. State v.
Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988). The circumstances must be “viewed
through the eyes of a reasonable and prudent police officer on the scene who must react
to events as they unfold.” Andrews at 87-88. Accordingly, the court must take into
consideration the officer’s training and experience and view the evidence as it would be
understood by the officers on the scene. State v. Arafat, 8th Dist. Cuyahoga No.
102662, 2016-Ohio-385, ¶ 23; see also United States v. Cortez, 449 U.S. 411, 418, 101
S.Ct. 690, 66 L.Ed.2d 621 (1981) (“[A] trained officer draws inferences and makes
deductions — inferences and deductions that might well elude an untrained person.”).
{¶26} After thorough review, we find that the trial court’s findings are supported
by competent and credible evidence in the record. We further find that based upon the
totality of the circumstances, the officers’ observations created reasonable and
articulable suspicion that criminal activity was afoot, thus justifying further investigation
and the detention of appellant.
{¶27} We find in this case that the officers engaged in an investigatory stop.
Detective Sara, one of the first detectives on the scene, testified that he observed
suspicious behavior when the three men remained in the parking lot when the shop
opened for business. Due to the fact that this gun shop had been the target of numerous
robberies, the detectives decided to continue their observation of the men. Thereafter,
the detective observed a third individual arrive and the three men continued to enter and
exit the shop in various combinations. At this point, the detectives suspected a possible
illegal straw purchase and contacted SEALE detectives for further investigation.
Detective Sara continued to observe the men. When the SEALE detectives entered the
store to investigate whether a straw purchase was taking place, the men exited the store
and remained in the parking lot. Once again, the men continued to enter and exit the
shop.
{¶28} Detectives Reed and Daniels observed this behavior as well. They also
observed the men pass a gun around in the parking lot, with one of the men tucking the
gun in his waistband, before all three men entered their vehicle and left. Both
detectives testified that because the men continued to engage in suspicious behavior, and
because they suspected the gun was being improperly transported, they continued their
investigation. They, therefore, requested a patrol car to effectuate the stop, as the
detectives were dressed in plain clothes and driving an unmarked vehicle. These facts
demonstrate that the eventual traffic stop was made for the purposes of furthering the
detectives’ investigation. The men were not stopped for a violation of a traffic law.
{¶29} Having found that the officers engaged in an investigatory stop, we must
now determine whether, based upon the totality of the circumstances, the officers’
observations created reasonable and articulable suspicion that criminal activity was
afoot, thus justifying further investigation and the resultant traffic stop.
{¶30} Here, Detectives Reed and Daniels responded to a call from a Bedford
police detective regarding suspicious behavior at Atlantic Gun & Tackle. Upon
arriving at the gun shop, Detectives Reed and Daniels observed the three men for over an
hour. During this time, they observed the following: three men standing around a
parked car in the parking lot; Higgins cupping a gun in his hands; the men passing the
gun around; Higgins and the second man entering and exiting the shop, while the third
man remained in the parking lot, looking around and watching his surroundings; and one
of the men eventually tucking the gun in his waistband and covering it with his shirt,
before entering their vehicle and leaving the parking lot.
{¶31} Based upon this behavior and the detectives’ knowledge that the gun shop
was the target of numerous robberies, it had been broken into multiple times, and it had,
as a result, supplied stolen weapons used in many crimes, the detectives suspected a
possible robbery. Detective Daniels phoned the shop to confirm that it was not
presently being robbed. Higgins contends that because the detectives confirmed the
shop was not being robbed, their suspicion had dissipated. The detectives’ suspicion of
criminal activity was not dispelled, however, because they continued to observe the
men’s suspicious behavior in the parking lot after the phone call, as noted above, and
Detective Reed stated that he was concerned about the possibility of a future robbery,
when the men “got the nerve to do it.”
{¶32} Detective Daniels also testified that they further suspected a violation of a
weapons law, either carrying a concealed weapon or improperly transporting a firearm in
a motor vehicle. He testified that the manner in which the men handled the gun, by
hiding it inside of a cupped hand and passing it to another individual who tucked the gun
in his waistband was suspicious. He further testified that based upon his experience
and training as a firearms instructor, he believed the gun should have been secured in a
holster.
{¶33} Higgins contends that because the officers had no personal information on
the men, such as their identities, they had no reason to believe they were violating the
laws regarding concealed carry.
{¶34} R.C. 2923.12(A)(2) provides that “[n]o person shall knowingly carry or
have, concealed on the person’s person or concealed ready at hand * * * [a] handgun
other than a dangerous ordnance.” However, the statute further provides that R.C.
2923.12(A)(2) does not apply to anyone who is carrying a “valid concealed handgun
license.” R.C. 2923.12(C)(2).
{¶35} R.C. 2923.16(B) prohibits transporting a gun by way of a motor vehicle
that could be accessed by the driver or passenger without getting out of the vehicle.
R.C. 2923.16(C) specifies how a gun is to be transported, stating that “[n]o person shall
knowingly transport or have a firearm in a motor vehicle, unless the person may lawfully
possess that firearm under applicable law of this state or the United States, the firearm is
unloaded, and the firearm is carried” in one of four ways: in a closed package, in a
compartment that can be reached only by leaving the vehicle, in plain sight and secured
in a rack, or in plain sight with the action open or the weapon stripped. These divisions
do not apply where “the person transporting or possessing the handgun is carrying a
valid concealed handgun license” and the individual “is not knowingly in a place
described in [R.C. 2923.126],” such as a courthouse, police station, or school. R.C.
2923.16(F)(5).
{¶36} In accordance with the above, Ohio law prohibits the carrying of a
concealed weapon, unless the individual possesses a license to carry a concealed
weapon. Here, the detectives testified that Higgins “cupped” the gun, as if to “hide” it.
Concealing a gun in this manner is sufficient to constitute a violation of R.C. 2923.12.
See State v. Sims, 8th Dist. Cuyahoga No. 89261, 2007-Ohio-6821. Therefore, unless
Higgins possessed a valid license to carry a concealed weapon, it is possible that Higgins
was violating the law.
{¶37} Police officers, however, are not required to verify the existence of a
concealed carry license prior to a lawful Terry stop. See State v. Taylor, 8th Dist.
Cuyahoga No. 92382, 2009-Ohio-5822, ¶ 8. Where a police officer has reasonable
suspicion that an individual has committed a violation of the concealed carry laws, the
officer is entitled to detain the individual in order to investigate that possibility, including
whether the individual possesses a valid concealed carry license. Id.; see State v.
Williamson, 2d Dist. Montgomery No. 25479, 2014-Ohio-325, ¶ 24. The defendant
bears the burden of establishing that he had a valid concealed carry license with him at
the time he was stopped. State v. Meyers, 11th Dist. Lake Nos. 2013-L-042 and
2013-L-043, 2014-Ohio-1357, ¶ 43 (where the defendant was charged with a violation of
improperly transporting a firearm in a motor vehicle, it is the defendant’s burden to
establish that he had his concealed carry license with him at the time he was stopped,
which would have rendered R.C. 2923.16(C) inapplicable to him).
{¶38} Here, the detectives had a reasonable suspicion, based upon the men’s
going in and out of the gun shop, “cupping” the gun as if to hide it, passing the gun
around, and then tucking in the waistband and covering with a shirt, that the men were
engaged in criminal activity, namely carrying a concealed weapon. This suspicion was
sufficient to justify conducting a Terry stop in order to investigate.
{¶39} Higgins also contends that the officers mistakenly believed that even if an
individual possesses a concealed carry permit, the gun must be carried in a holster while
transporting. Higgins argues, therefore, that the traffic stop was based upon a mistake
of law and, thus, the officers lacked reasonable suspicion. In support of his position,
Higgins cites to State v. Fears, 8th Dist. Cuyahoga No. 94997, 2011-Ohio-930. 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. This court held that the officers’ mistake of law regarding the violation
meant that the officers lacked a reasonable, articulable suspicion for the stop. Id. at ¶
13.
{¶40} Higgins’s reliance upon Fears is misplaced. Fears involved a traffic stop,
where the police officers’ only articulable facts regarding criminal activity was the traffic
violation that proved not to be a violation at all. Here, however, the detectives
conducted an investigatory stop, which resulted from the detectives’ suspicion of several
crimes. In their observation that exceeded one hour, the detectives observed the
following: three men go in and out of the gun shop numerous times and in different
combinations of the three of them; Higgins “cupping” the gun in an effort to hide it; the
men passing the gun around; and the third individual placing the gun in his waistband
and covering it with his shirt. In light of the men’s suspicious behavior, and the
detectives’ knowledge of previous criminal activity at this gun shop, the detectives had
reasonable suspicion of several possible crimes, including robbery, carrying a
concealed weapon, and improperly transporting/handling a weapon. Therefore, even if
the detectives were mistaken regarding whether Higgins violated R.C. 2923.16, this
mistake is not fatal to their suspicion of other criminal activity afoot.
{¶41} Based upon the foregoing, and viewed in light of the totality of the
surrounding facts and circumstances and the extensive training and experience of the
investigating officers, we find that the officers had a reasonable suspicion that criminal
activity was afoot. The investigatory stop of Higgins was therefore lawful, and the trial
court’s denial of Higgins’s motion to suppress was proper.
{¶42} Higgins’s sole assignment of error is overruled.
{¶43} Judgment affirmed.
It is ordered that appellee recover of 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_______________________________________
TIM McCORMACK, PRESIDING JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR