State v. Deckard , 2023 Ohio 1398 ( 2023 )

[Cite as State v. Deckard, 2023-Ohio-1398.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29611
:
v. : Trial Court Case No. 2021 CR 04088
:
JASON NEVADA DECKARD : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on April 28, 2023
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MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee
THERESA G. HAIRE, Attorney for Appellant
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TUCKER, J.
{¶ 1} Jason Nevada Deckard appeals from his conviction following a no-contest
plea to one count of aggravated drug possession.
{¶ 2} Deckard contends the trial court erred in overruling his motion to suppress
drugs found in his possession after University of Dayton police officers unlawfully
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detained him in a university-owned parking lot. He argues that the officers lacked
reasonable, articulable suspicion of criminal activity and that they unlawfully prolonged
his detention after resolving their initial reason for the stop.
{¶ 3} We agree with Deckard that the officers lacked particularized suspicion of
criminal activity to justify an investigatory stop. As a result, the trial court erred in failing
to sustain his suppression motion. The trial court’s judgment will be reversed, and the
case will be remanded for further proceedings.
I. Background
{¶ 4} A grand jury indicted Deckard on charges of aggravated drug possession,
possession of a fentanyl-related compound, and possession of cocaine. The first charge
was a third-degree felony. The other two were fifth-degree felonies. The charges
stemmed from Deckard’s being stopped by University of Dayton police officers around
2:30 a.m. on Friday, August 6, 2021, as he walked across a university-owned parking lot
carrying a guitar.
{¶ 5} Following his indictment, Deckard moved to suppress the drug evidence,
arguing that the officers had lacked grounds for an investigatory stop. The matter
proceeded to a June 24, 2022 evidentiary hearing. The only witnesses were University of
Dayton police officers Jonathan Pease and Kelvin Buerkle.
{¶ 6} Officer Pease testified that he saw Deckard walking in an area of university-
owned housing between Woodland Cemetery and Brown Street. Although summer
school was in session, there was little pedestrian traffic at that time. Pease watched
Deckard walk through an alley and cut across a university-owned parking lot. Deckard
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appeared to be older than a typical student. He also was carrying a guitar, which Pease
thought “seemed a little odd and out of place at the time.” Pease wondered where the
guitar “might have come from.”
{¶ 7} Pease and another officer got into one cruiser while Officer Buerkle and a
sergeant entered a second cruiser. The officers then approached Deckard and detained
him. Pease explained that the officers had obtained his identifying information and used
it to check for warrants. Pease also checked to see if Deckard had been “trespassed from
the university.” With regard to potential criminal activity, Pease stated on direct
examination that “technically once [Deckard] got into our lot it would be trespassing, you
know, if he’s not a student or has any legitimate business to be there.” Pease agreed with
the prosecutor’s assessment that “other than potentially possibly trespassing,” Deckard
was not seen engaging in criminal activity.
{¶ 8} While speaking with Deckard, one of the officers ordered him to put down the
guitar. When Deckard complied, the officers were able to see the top of a syringe sticking
out of his pants pocket. One of the officers conducted a pat down in connection with
retrieving the needle. As he did so, he discovered a second needle, drugs, and a crack
pipe in Deckard’s pocket. A dispatcher reported that Deckard had arrest warrants out of
Beavercreek and Kettering. As a result, he was handcuffed and arrested.
{¶ 9} When asked on cross-examination about the purpose of the stop, Pease
explained that it was “[a]n investigative stop just to see why he was in the area.” Pease
acknowledged, however, that it was “not illegal” for Deckard to be “in that area.” Pease
also agreed that the parking lot was “a natural shortcut to the [United Dairy Farmers store]
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on Brown Street,” which was open 24 hours a day. Finally, Pease acknowledged that the
syringe would not have been visible if Deckard had not been ordered to put the guitar
down.
{¶ 10} In his testimony, Officer Buerkle stated that there had been “a large amount
of burglaries” in the area. He was concerned because Deckard looked “out of place.”
Buerkle stopped Deckard in parking lot RP14, which was the University of Dayton’s
private property. Buerkle testified that the parking lot had signs identifying it as university
property. According to Buerkle, the officers prevented Deckard from walking away while
they were trying to identify him. Explaining why Deckard was not free to leave, Buerkle
stated: “I am trying to investigate who they are and probable cause based off of suspicion
that he may have committed a crime. I’m going to figure out who he was.” Buerkle agreed
with the prosecutor’s suggestion that it was important to see whether “they have been
trespassed from UD property previously.”
{¶ 11} On cross-examination, Buerkle reaffirmed his belief that Deckard seemed
“out of place” walking through the parking lot carrying a guitar. Buerkle admitted that he
had “no idea” at the time of the stop whether Deckard had been involved in any criminal
activity. When asked whether it was “unlawful to cut through that parking lot to get to the
stores on Brown Street,” Buerkle responded, “No.” Buerkle conceded that when he
prevented Deckard from walking away he still “had no specific indication of criminal
conduct[.]” Buerkle agreed that the reason for the stop was “just that he was out of place.”
Buerkle also confirmed that during the stop Deckard produced a receipt proving he had
purchased the guitar. With regard to the signs in the parking lot, Buerkle clarified that they
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identified the lot as university property but did not tell non-faculty or non-students to keep
out.
{¶ 12} Based on the evidence presented, the trial court filed a July 29, 2022
Decision, Entry, and Order overruling Deckard’s suppression motion. With regard to the
officers stopping and detaining Deckard, the trial court reasoned:
This Court agrees with the notion that merely walking around with a
guitar at 2:00 a.m. does not solely lend itself to being reasonably suspicious,
[but] that is not where the analysis ends in this case. [“]In certain
circumstances wholly, lawful conduct may justify an officer’s suspicion that
criminal activity is afoot. . . . Moreover, circumstances which appear
innocent to the outside observer may suggest criminal activity to
experienced law enforcement personnel, and in determining whether
reasonable suspicion exists, law enforcement authorities may assess these
circumstances in light of their experience.” (citations omitted). State v.
Wilkins, 1998 Ohio App. LEXIS 2740, (Ohio 2nd Dist. Ct. of Appeals, June
19, 1988), 1998 WL 320940. * * *
When viewed under the totality of circumstances, Defendant was
observed looking out of place on University of Dayton private property and
multiple signage was displayed to indicate as such. Ofc. Pease’s duties
include making sure no one is getting into buildings which were either U.D.
owned or landlord properties. Not only was it 2:00 a.m., there were no
students on campus due to it being summer break. A majority of the foot
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traffic in that area occurs on Brown Street and very little foot traffic occurs
in the neighborhood where Defendant was stopped, especially during that
time at night and time of year. Additionally, Ofc. Buerkle testified to there
having been a large amount of burglaries and thefts in that area. U.D.
officers likely have a duty to maintain the safety of the residents and
potential students who may be in the area or are located still on campus.
No criminal activity was observed by the officers except for him being on
private UD property. The Court finds the officers did not lack the authority
to conduct a brief investigatory stop.
{¶ 13} Following the trial court’s ruling, Deckard pled no contest to aggravated drug
possession in exchange for dismissal of the other charges. The trial court accepted the
plea, made a finding of guilt, and sentenced him to community-control sanctions.
II. Analysis
{¶ 14} In his sole assignment of error, Deckard challenges the trial court’s
suppression ruling. His primary argument is that the University of Dayton police officers
lacked reasonable, articulable suspicion of criminal activity to justify stopping him. He also
asserts that the officers unlawfully prolonged his detention after discovering that he had
a receipt for the guitar.
{¶ 15} In ruling on a motion to suppress, the trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d
498 (2d Dist.1994). Accordingly, when we review suppression decisions, we must accept
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the trial court’s findings of fact if they are supported by competent, credible evidence. Id.“Accepting those facts as true, we must independently determine as a matter of law,
without deference to the trial court’s conclusion, whether they meet the applicable legal
standard.” Id.{¶ 16} Here the facts underlying Deckard’s suppression motion were relatively
straightforward. The only witnesses at the hearing were Officers Pease and Buerkle, who
both testified for the State. There were no real factual disputes to resolve or credibility
decisions for the trial court to make. The primary issue on appeal involves a legal
determination: whether the officers’ testimony supported a finding that they were justified
in detaining Deckard.
{¶ 17} The Fourth Amendment to the United States Constitution and Article 1,
Section 14, Ohio Constitution prohibit unreasonable searches and seizures. Terry v. Ohio,
392 U.S. 1, 8, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Taylor, 138 Ohio
App.3d 139, 145, 740 N.E.2d 704 (2d Dist.2000). Warrantless searches and seizures
violate this prohibition unless conducted pursuant to one of the “few specifically
established and well-delineated exceptions.” (Citations omitted.) Katz v. United States,
389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One exception “is commonly
known as an investigative or Terry stop.” (Citation omitted.) State v. Dorsey, 10th Dist.
Franklin No. 04AP-737, 2005-Ohio-2334, ¶ 17.
{¶ 18} “In Terry, the United States Supreme Court held that a police officer may
detain a person for brief questioning where the officer has a reasonable suspicion that
the [person] is engaged in criminal activity.” (Citation omitted.) State v. Shepherd, 122
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Ohio App.3d 358, 364, 701 N.E.2d 778 (2d Dist.1997). Reasonable suspicion “is ‘vaguely
defined as something more than an inchoate or unparticularized suspicion or “hunch,” but
less than the level of suspicion required for probable cause.’ ” Id., quoting State v.
Osborne, 2d Dist. Montgomery No. 15151, 1995 WL 737913, *4 (Dec. 13, 1995).
Assessing the existence of reasonable suspicion for an investigatory stop “entails an
evaluation of the totality of the circumstances from the perspective of a ‘reasonable and
prudent police officer on the scene who must react to events as they unfold.’ ” State v.
Zafr, 2d Dist. Montgomery No. 28434, 2019-Ohio-4602, ¶ 13, quoting State v. Andrews,
57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). As the trial court recognized, a series
of “innocent” acts viewed collectively may justify an officer’s suspicion that criminal activity
is afoot and warrant an investigatory detention. State v. Brown, 2d Dist. Montgomery No.
19804, 2003-Ohio-6533, ¶ 36.
{¶ 19} In the present case, however, we see no indicia of criminal activity by
Deckard to justify an investigatory detention. Nor does the record reflect a series of
innocent acts or lawful conduct that reasonably might have caused the University of
Dayton police officers to believe Deckard was about to engage in criminal activity or that
he had just done so. The officers’ attention was drawn to Deckard because he was cutting
across a university-owned parking lot in the early morning hours carrying a guitar. He
appeared to be older than a traditional student and was in the vicinity of university-owned
housing while heading toward Brown Street and an open convenience store.
{¶ 20} Even accepting Buerkle’s testimony about burglaries having been
committed in the general area, the foregoing facts were insufficient to create reasonable
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suspicion that Deckard was involved in criminal activity. Buerkle testified that the reason
for the stop was that Deckard seemed “out of place” in the parking lot. Again, the
articulable facts supporting that assessment were that Deckard, who appeared to be older
than a typical student, was near university-owned housing carrying a guitar in the early-
morning hours. The officers acknowledged, however, that his route was a natural shortcut
to an open convenience store on Brown Street. (In fact, Deckard later told the officers
that he had been heading to the United Dairy Farmers store to purchase coffee.)
Nevertheless, when he initially saw Deckard, Pease thought his carrying a guitar “seemed
a little odd and out of place at the time,” causing the officer to wonder where the guitar
“might have come from.”
{¶ 21} Although Deckard’s act of walking toward an open convenience store
carrying a guitar in the vicinity of university-owned housing may have been odd, it did not
give rise to a reasonable suspicion of criminal activity. Buerkle did not suggest otherwise
at the suppression hearing. The officer admitted detaining Deckard despite having “no
idea” whether he had been involved in any criminal activity. When he subsequently
prevented Deckard from walking away, Buerkle still “had no specific indication of criminal
conduct.” Under these circumstances, the record compels a finding that the officers
possessed no more than an inchoate suspicion or hunch that Deckard may have been
doing something illegal.
{¶ 22} In reaching our conclusion, we recognize that the act of trespassing itself
can be a crime and that an officer’s reasonable, articulable suspicion that a person has
committed criminal trespass may justify a Terry stop. In Brown, 2d Dist. Montgomery No.
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19804, 2003-Ohio-6533, upon which the trial court relied, we found a Terry stop
warranted where police observed a suspect walking slowly and cutting through a
residential yard in the middle of the night. As he walked, the suspect repeatedly looked
over his shoulder and turned his body to look back. This court held that officers possessed
reasonable, articulable suspicion that the suspect was committing criminal trespass and
may have been preparing to break into a house. Id. at ¶ 37-43.
{¶ 23} We find Brown to be distinguishable. Although Deckard was in the vicinity
of university-owned student housing, neither officer testified that he was near a particular
house or that he was behaving suspiciously while apparently trespassing on a residential
lawn. The officers simply observed him walking across an unfenced, open, university-
owned parking lot.
{¶ 24} Ohio’s criminal-trespass statute provides:
(A) No person, without privilege to do so, shall do any of the following:
(1) Knowingly enter or remain on the land or premises of another;
(2) Knowingly enter or remain on the land or premises of another, the use
of which is lawfully restricted to certain persons, purposes, modes, or hours,
when the offender knows the offender is in violation of any such restriction
or is reckless in that regard;
(3) Recklessly enter or remain on the land or premises of another, as to
which notice against unauthorized access or presence is given by actual
communication to the offender, or in a manner prescribed by law, or by
posting in a manner reasonably calculated to come to the attention of
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potential intruders, or by fencing or other enclosure manifestly designed to
restrict access;
(4) Being on the land or premises of another, negligently fail or refuse to
leave upon being notified by signage posted in a conspicuous place or
otherwise being notified to do so by the owner or occupant, or the agent or
servant of either;
5) Knowingly enter or remain on a critical infrastructure facility.
{¶ 25} Under the specified circumstances, the criminal-trespass statute prohibits
either knowingly or recklessly entering or remaining on the land or premises of another
“without privilege.” The Revised Code defines “privilege” as “an immunity, license, or right
conferred by law, bestowed by express or implied grant, arising out of status, position,
office, or relationship, or growing out of necessity.” R.C. 2901.01(A)(12). The term
“privilege” is “broader than permission as such.” See Legislative Service Commission
notes following R.C. 2901.01.
{¶ 26} Here the only possible provision Deckard could have violated is the general
prohibition in R.C. 2911.21(A)(1). Subsection (A)(2) would not apply because use of the
parking lot was not clearly restricted to certain persons, purposes, modes, or hours.
Although the parking lot had signs identifying it as private property, Deckard did not
attempt to park a vehicle there. The signs on the lot did not prohibit the general public
from walking across the lot, and they were not “no trespassing” signs. Subsection (A)(3)
would not apply because there was no fencing and no posted notice prohibiting
unauthorized access or presence. Subsection (A)(4) would not apply because Deckard
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did not fail to leave after being notified to do so. Finally, subsection (A)(5) would not apply
because the parking lot was not “a critical infrastructure facility,” which is specifically
defined in R.C. 2911.21(F)(4).
{¶ 27} With regard to R.C. 2911.21(A)(1), Deckard did knowingly enter on the land
of another when he cut across the university-owned parking lot. The record before us,
however, does not suggest that he did so “without privilege.” To the contrary, the record
indicates that Deckard had a right to walk across the lot arising from an implied grant of
permission. Officer Buerkle notably testified that it was “not unlawful” for Deckard to cut
across the parking lot. Officer Pease similarly acknowledged that it was “not illegal” for
Deckard to be “in that area.” The only reasonable inference to draw from this testimony
is that the University of Dayton did not care if pedestrians walked across its open parking
lot, meaning that such activity was “privileged.”
{¶ 28} The foregoing conclusion is buttressed by both officers’ concern about
whether Deckard had been “trespassed” from University of Dayton property. In a legal
sense, being “trespassed” means a person’s permission to be in a particular area has
been revoked. See, e.g., State v. Roark, 2d Dist. Montgomery No. 23559, 2010-Ohio-
2841, ¶ 14 (“In this case police had a reasonable suspicion that Defendant was
trespassing on DMHA property. Officer Wolpert knew Defendant was on the DMHA
trespass list because, just four months earlier, Wolpert had personally trespassed
Defendant off of all DMHA property for carrying concealed weapons.”); State v. Scott, 2d
Dist. Montgomery No. 19902, 2004-Ohio-271, ¶ 19 (“We emphasize that Fletcher was
aware of the DMHA criminal trespass policy and of the fact that Scott had been given
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trespass notices, thus barring him from DMHA property, pursuant to that policy.”); State
v. McLemore, 2d Dist. Montgomery No. 24211, 2011-Ohio-243, ¶ 4 (noting that officers
found a field-interview card stating the defendant had “been ‘trespassed’ from a BP
station, meaning he had been informed that he was no longer allowed on the property”);
Gessner v. Vore, 2d Dist. Montgomery No. 22297, 2008-Ohio-3870, ¶ 6 (citing a “trespass
notice” advising an individual “that he was no longer authorized to enter and/or remain on
the premises”).
{¶ 29} Of course, for permission to be revoked pursuant to a trespass notice,
permission to be present must exist in the first instance. For example, in State v. Carman,
2d Dist. Montgomery No. 18050, 2001 WL 85788 (Feb. 2, 2001), a University of Dayton
graduate received a trespass notice advising her that her existing “privilege to enter onto
the property of the University of Dayton had been revoked.” Id. at *1. Similarly, in City of
Akron v. Niepsuj, 9th Dist. Summit No. 21369, 2003-Ohio-6581, the defendant was
prosecuted for criminal trespass on University of Akron property after receiving a trespass
notice that prohibited him from being on the premises. In that case, an officer testified that
everyone was welcome on University of Akron property unless they had caused a
disturbance and received a trespass notice. Although the University of Dayton is a private
school, the testimony of Officer Buerkle and the particular concerns expressed by both
Buerkle and Pease about whether Deckard had been “trespassed” indicated that the
University of Dayton had a similar open-access policy with respect to unrestricted areas,
particularly its parking lots.
{¶ 30} We recognize that Officer Pease at one point did reference Deckard
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“technically” trespassing in the parking lot. Reading the suppression-hearing transcript as
a whole, however, we are compelled to conclude that both officers knew cutting across
the lot would be trespassing only if Deckard previously had been banned from university
property by being “trespassed.” Relying solely on Pease’s statement about “technically”
trespassing to find that the officers had reasonable suspicion of criminal activity would
require us to ignore (1) both officers’ expressed concern about whether Deckard in fact
had been “trespassed” from university property, (2) Pease’s recognition that it was “not
illegal” for Deckard to be “in that area,” and (3) Buerkle’s unequivocal testimony that it
was “not unlawful” for Deckard to cut across the parking lot.
{¶ 31} Based on the reasoning set forth above, we hold that the University of
Dayton police officers lacked reasonable, articulable suspicion of criminal activity to justify
stopping Deckard in the parking lot. In light of that determination, we need not address
Deckard’s alternative argument about the officers prolonging the stop after discovering
that he had purchased the guitar he was carrying.
{¶ 32} Deckard’s assignment of error is sustained.
III. Conclusion
{¶ 33} The judgment of the Montgomery County Common Pleas Court is reversed,
and the case is remanded for further proceedings.
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LEWIS, J. and HUFFMAN, J., concur.
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