[Cite as State v. Pickens,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Julie A. Edwards, J. -vs- : : Case No. 11CAA090085 MARCUS A. PICKENS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 10CR-I-04-0253

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: June 22, 2012

APPEARANCES:

For Appellant: For Appellee:

DAVID H. BIRCH CAROL O’BRIEN 286 South Liberty St. DELAWARE COUNTY PROSECUTOR Powell, OH 43065 DOUGLAS DUMOLT 140 N. Sandusky St., 3rd Floor Delaware, OH 43015 [Cite as State v. Pickens,

.]

Delaney, J.

{¶1} Appellant Marcus A. Pickens appeals from the judgment of the Delaware

County Court of Common Pleas overruling his motion to suppress. This appeal is

related to State v. Tywhon L. Butler, Fifth District Court of Appeals, Delaware County

case number 11CAA100092. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from a two-part suppression hearing.

The state’s testimonial evidence at the suppression hearing came from two witnesses:

Detective Jason Doty of the Delaware Police Department, whose investigation and

surveillance led to the traffic stop challenged in this appeal, and Sgt. Larry Dore of the

Delaware County Sheriff’s Department, who performed the traffic stop upon

information provided by Doty.

Surveillance of Steven Simpkins

{¶3} This case arose when law enforcement targeted an individual named

Steven Simpkins for investigation. Simpkins is a black male with a light complexion;

he is described as less than six feet tall and weighs approximately 180 pounds.

{¶4} Over the course of two days in April, 2010, Detective Jason Doty

conducted surveillance on Simpkins throughout Marion, Columbus, and Delaware

County, Ohio. Doty had located a vehicle he believed Simpkins drove, but he had not

actually seen Simpkins. Doty learned the address of Simpkins’ girlfriend, Chiquita

Brown, and officers decided to watch the house. Delaware County, Case No. 11CAA090085 3

{¶5} On April 22, 2010, Doty looked for Simpkins in Marion, Ohio. On West

Center Street,1 Doty saw a black male come out of a house wearing a black cap, white

shirt, and black pants. Doty took pictures of this individual, and another detective,

Detective Cox, identified the man in the pictures as Simpkins.

{¶6} Doty was not personally familiar with Simpkins and did not recognize him

on sight, therefore he showed the picture to Cox for confirmation of Simpkins’ identity.

Cox also told Doty Simpkins had a warrant for his arrest.

{¶7} Doty took several pictures of Simpkins as he walked down the street.

Eventually Simpkins was picked up by someone driving a Chevy Malibu. Chiquita

Brown was known to drive a Malibu. Doty lost sight of Simpkins and the Malibu

briefly.

{¶8} Doty then followed the Malibu to East Mark Street, where it stopped at

the house known to be Chiquita Brown’s. He did not see the occupants of the Malibu

get out and go inside, but they did because the car was empty. Doty set up

surveillance on Brown’s house, waiting for the black male to leave.

{¶9} As he watched, Doty saw a “smaller vehicle,” later described as a black

Hyundai, drive eastbound on East Mark Street and perform a U-turn in front of

Brown’s house. A black male came out of the house wearing a black cap, white shirt,

and black pants. This individual got into the right front passenger seat of the car and it

drove away. Doty, trying not to attract attention, did not look into the car as it passed

him and was therefore unable to describe the occupants of the car.

1 Testimony on this point is confusing to this Court, just as it was to the trial court. It is unclear whether Doty initially saw the subject exit a house on West Mark Street or West Center Street, but this point ultimately proves insignificant in the analysis. Delaware County, Case No. 11CAA090085 4

{¶10} Doty radioed to other officers in the area that Simpkins was in the car,

leaving the area, and the surveillance team began to follow the car through Marion,

southbound on U.S. Route 23 to the city of Delaware. At one point the car stopped

and picked up another black male dressed in all red that got into the rear left

passenger seat.

{¶11} Doty advised the Delaware County Sheriff’s Office by radio that Simpkins

was in the right front passenger seat of the car and had a warrant for his arrest for

robbery. Doty and the surveillance team wanted sheriff’s deputies to make the stop so

their surveillance vehicles would not be detected. Doty personally stayed out of the

area when the traffic stop was made and did not see the stop effectuated.

The Traffic Stop

{¶12} Sgt. Larry Dore of the Delaware County Sheriff’s Department was

working on April 22, 2010, when he heard a call on the radio from the Simpkins

investigators. The information Sgt. Dore received was that an individual named

Simpkins, a black male, was a passenger in the right front seat of a maroon2 vehicle

southbound on U.S. Route 23, and Simpkins had a warrant for robbery.

{¶13} Sgt. Dore spotted the vehicle and saw it pull into a gas station. Sgt.

Dore’s cruiser was one of three immediately on the scene, and Sgt. Dore was the first

to approach the vehicle.

{¶14} He walked up to the front passenger seat and escorted the passenger

out of the vehicle. Sgt. Dore was focused on this individual because he believed him

to be the robbery suspect described over the radio. Sgt. Dore observed the individual

reaching into his waistband, so Sgt. Dore grabbed his wrist and pinned him to his 2 This apparent discrepancy is addressed infra. Delaware County, Case No. 11CAA090085 5

cruiser. Sgt. Dore then removed a loaded 9-millimeter handgun from the individual’s

left waistband.

{¶15} Another loaded weapon was found in the rear seat of the car, tucked

underneath the driver’s seat, in front of the rear passenger seat from which another

black male had been removed.

{¶16} Sgt. Dore continued to pat down his suspect, and in addition to the

loaded handgun, found marijuana, powder cocaine, and a rock of cocaine.

{¶17} At some point, Sgt. Dore stated to the individual, “You are wanted for

robbery.” At the suppression hearing, Sgt. Dore did not remember that the man had

any response; he recalled that the individual made no statements to him. The man did

not resist the arrest.

{¶18} At some point, the individual Sgt. Dore removed from the car was

identified as appellant Marcus A. Pickens. The rear male passenger was identified as

co-defendant Tywhon Butler.

{¶19} Steven Simpkins was not in the vehicle.

The Aftermath of the Traffic Stop

{¶20} A car from the surveillance team pulled up at the scene of the traffic

stop. When they learned Simpkins was not in the car, they left immediately.

{¶21} When Doty learned Simpkins was not in the suspect vehicle, he and

other officers on the surveillance team drove back to Marion and made contact with

the Marion Police Department and Marion County Sheriff’s Department. Marion

detectives knocked on Chiquita Brown’s door and were given permission to enter. Delaware County, Case No. 11CAA090085 6

Steven Simpkins was eventually found hiding in the basement of the residence and

was arrested on the robbery warrant.

{¶22} Appellant was charged by indictment with one count of trafficking in

cocaine pursuant to R.C. 2925.03(A)(2) with a forfeiture specification and a firearm

specification, one count of possession of cocaine pursuant to R.C. 2925.11(A) with a

firearm specification, one count of carrying a concealed weapon pursuant to R.C.

2923.12(A)(2), and one count of having weapons under disability pursuant to R.C.

2923.13(A)(3).

{¶23} Co-defendant Tywhon Butler, the rear male passenger of the car, was

charged by indictment with one count of carrying a concealed weapon pursuant to

R.C. 2923.12(A)(2), and two counts of having weapons under disability pursuant to

R.C. 2923.13(A)(2) and 2923.13(A)(3).

{¶24} Appellant and Butler both moved to suppress the evidence resulting from

the traffic stop on the basis that the officers did not have a reasonable belief Pickens

was Simpkins and therefore had no basis to stop the vehicle.

The Discrepancies

{¶25} The suppression hearing explored the reasonableness, or

unreasonableness, of Doty’s belief that the man later identified as appellant was Steve

Simpkins. Simpkins is a physically slight black male with a light complexion.

Appellant, on the other hand, is six foot two, weighs 250 pounds, and has a dark

complexion.

{¶26} The state presented the testimony of Doty and Dore. The state’s

physical evidence at the hearing consisted of the nine surveillance photographs of a Delaware County, Case No. 11CAA090085 7

maroon Malibu and a man walking wearing a black hat, white t-shirt, and black pants.

Doty testified he showed these photographs to Cox and Cox identified the man as

Simpkins.

{¶27} The relevant physical evidence of appellant and Butler included a small

booking photograph of Steven Simpkins, the booking photograph of appellant, and two

of the state’s photographs of Simpkins “blown up” to show the man’s hat includes a

white emblem on the front. Appellant also presented the clothing he wore the day of

the traffic stop and resulting arrest: an all-black baseball-style cap, black sweatpants,

and a white “hoodie”-style sweatshirt with a black design on the front.

{¶28} Appellant also presented his version of events leading up to the traffic

stop through the testimony of his girlfriend Melissa Lucas. Lucas was the driver of the

Hyundai and has two children with appellant. She stated that on the day of the stop,

she and Pickens intended to travel to Columbus to buy a car. The Hyundai was a

rental.

{¶29} First they went to 505 East Mark Street to drop off the two children at

appellant’s grandmother’s house. The grandmother lives across the street from

Chiquita Brown. Lucas stated that she stopped in front of the house and appellant got

out, taking the children inside. She briefly got out of the car to take the car seats out

of the back seat and then got back in behind the wheel. Appellant came out of his

grandmother’s house and answered a call on his phone; as he talked, he walked

across the street to the driveway of Chiquita Brown’s house and stood there briefly,

talking to someone seated inside a maroon Malibu. Appellant then came back across

the street, got into the Hyundai, and they drove away. Delaware County, Case No. 11CAA090085 8

{¶30} Lucas and appellant stopped twice to pick up passengers, Butler and his

friend Amanda. Lucas explained Butler and Amanda came along because they

needed an extra licensed driver to pick up the car and return the rental car. Appellant

had $8200 in cash with him, which Lucas claimed was her tax return money and

wages to buy the car.

{¶31} Lucas stated that on the day of the stop, appellant wore a black hat,

black sweatpants, and a white hooded sweatshirt with black graphics.

{¶32} We note from the record another discrepancy that was not explored at

the suppression hearing. Chiquita Brown, Simpkins’ girlfriend, was known to drive a

maroon Malibu. Doty initially saw Simpkins get out of a maroon Malibu, and Lucas

described a maroon Malibu in Brown’s driveway. Lucas, however, drove a black

Hyundai. Doty saw “Simpkins,” actually appellant, get into a black Hyundai. It is the

black Hyundai that was eventually stopped. The discrepancy, however, is that Sgt.

Dore described the target of the radio dispatch as a maroon car, and describes the car

he actually stopped and removed appellant from as maroon.

{¶33} Testimony at the suppression hearing focused almost exclusively on the

physical differences between Simpkins and appellant, down to their tattoos and the

jewelry they may have been wearing. No one questioned the issue with the vehicle

descriptions. The trial court’s findings of fact indicate Doty saw “Simpkins” get into a

black Hyundai, which was later stopped in response to his dispatch. Because this

finding is supported elsewhere in the record by Doty and Lucas, we can only conclude

Sgt. Dore misspoke, therefore, as to the color of the vehicle involved in the traffic stop. Delaware County, Case No. 11CAA090085 9

Suppression Motions Overruled

{¶34} The trial court overruled the motions to suppress on February 25, 2011.

{¶35} On August 9, 2011, appellant entered pleas of no contest to trafficking in

cocaine with firearm and forfeiture specifications and carrying a concealed weapon.

Appellee dismissed the remaining counts. Butler entered a plea of no contest to one

count of having weapons while under disability and the remaining counts were

dismissed.

{¶36} Appellant appeals from the trial court’s judgment entry overruling his

motion to suppress.

{¶37} Appellant raises one Assignment of Error:

{¶38} “I. THE TRIAL COURT ERRED BY FAILING TO GRANT THE

APPELLANT’S MOTION TO SUPPRESS EVIDENCE.”

I.

{¶39} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long,

,

(4th Dist. 1998). During a suppression hearing, the trial court assumes

the role of trier of fact and, as such, is in the best position to resolve questions of fact

and to evaluate witness credibility. State v. Brooks,

,

(1996). A reviewing court is bound to accept the trial court’s findings of

fact if they are supported by competent, credible evidence. State v. Medcalf,

,

(4th Dist. 1996). Accepting these facts as true, the

appellate court must independently determine as a matter of law, without deference to

the trial court’s conclusion, whether the trial court’s decision meets the applicable legal Delaware County, Case No. 11CAA090085 10

standard. State v. Williams,

,

(4th Dist. 1993),

overruled on other grounds.

{¶40} There are three methods of challenging a trial court’s ruling on a motion

to suppress on appeal. First, an appellant may challenge the trial court’s finding of

fact. In reviewing a challenge of this nature, an appellate court must determine

whether the trial court’s findings of fact are against the manifest weight of the

evidence. See, State v. Fanning,

,

(1982); State v.

Klein,

,

(1991). Second, an appellant may argue

the trial court failed to apply the appropriate test or correct law to the findings of fact.

In that case, an appellate court can reverse the trial court for committing an error of

law. See,

Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issues raised in a motion to suppress. When

reviewing this type of claim, an appellate court must independently determine, without

deference to the trial court’s conclusion, whether the facts meet the appropriate legal

standard in any given case. State v. Curry,

,

(8th Dist. 1994).

{¶41} Appellant argues the trial court incorrectly determined the ultimate issue

raised in the motion to suppress, to wit, that Doty reasonably believed appellant was

Simpkins. We disagree. While we agree Doty’s mistake of fact was reasonable, we

find the ultimate issue is whether Sgt. Dore was entitled to rely upon the radio dispatch

despite the misidentification.

{¶42} The extensive, often confusing testimony at the suppression hearing

focused almost entirely on Doty’s surveillance of Simpkins and whether he could Delaware County, Case No. 11CAA090085 11

reasonably mistake Pickens for Simpkins when the two men are physically dissimilar.

We find, however, that the inquiry is properly focused instead on the actions of Sgt.

Dore, the sheriff’s deputy who actually made the stop and arrest. Doty was not on the

scene when the stop was made (T. 23, 56). The sole reason the car containing

appellant was stopped was because Doty radioed to the Delaware County Sheriff’s

Department that Simpkins was in the car and had a warrant for robbery (T. 47, 55).

{¶43} The Fourth Amendment to the United States Constitution prohibits

warrantless searches and seizures, rendering them per se unreasonable unless an

exception applies. Katz v. United States,

,

,

(1967). A police stop of a motor vehicle is a significant intrusion requiring

justification as a “seizure” within the meaning of the Fourth Amendment. Delaware v.

Prouse,

,

,

(1979).

{¶44} A police officer may stop an automobile for investigation where the

officer has an articulable and reasonable suspicion that the motorist is unlicensed or

that an automobile is not registered, or that either the vehicle or an occupant is

otherwise subject to seizure for violation of law. State v. Chatton,

,

(1984), cert. denied,

,

,

(1984), citing Delaware v.

The investigative stop exception to the

Fourth Amendment warrant requirement permits a police officer to stop an individual

provided the officer has the requisite reasonable suspicion based upon specific,

articulable facts that a crime has occurred or is imminent. Terry v. Ohio,

,

,

(1968). In evaluating the propriety of an

investigative stop, a reviewing court must examine the totality of the circumstances Delaware County, Case No. 11CAA090085 12

that provided the foundation for the officer’s suspicion to warrant an inquiry. State v.

Bobo,

,

(1988).

{¶45} Doty mistakenly believed the individual he saw get into the Hyundai was

Steve Simpkins, the target of the investigation. The trial court found Doty’s conclusion

to be reasonable. We are bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence, and such is the case. It is evident Doty

lost sight of the target of his surveillance several times, which led to him mistaking the

individual getting into the Hyundai for Simpkins. Based upon our review of the record,

there is no evidence that Doty’s mistaken identification of appellant as Simpkins upon

his entering the Hyundai is anything other than a mistake of fact.

{¶46} The United States Supreme Court has held that a police officer’s mistake

of fact will not lead to the suppression of evidence where the mistake was

“understandable” and a reasonable response to the situation facing the police officer.

Hill v. California,

, 91 S.Ct.1106,

(1971). Here, the

trial court’s finding that Doty’s misidentification was reasonable is supported by

competent, credible evidence in the record: while Simpkins and appellant are

physically dissimilar based solely upon their physical descriptions, Doty’s mistake is

easier to understand when the photos of Simpkins in State’s Exhibits 6, 7, 8, and 9 are

compared with the photo of appellant, wearing what appears to be a white t-shirt, in

his booking photo (Defendant’s Exhibit D). Doty’s distance from the individual,

combined with his efforts not to be detected, leads us to the conclusion his mistake

was reasonable. Delaware County, Case No. 11CAA090085 13

{¶47} We are mindful of the U.S. Supreme Court’s recognition that “[i]n order to

satisfy the reasonableness requirement of the Fourth Amendment, what is generally

demanded of the many factual determinations that must regularly be made by agents

of the government * * * is not that they always be correct, but that they always be

reasonable.” Illinois v. Rodriguez,

,

,

. Further, “sufficient probability, not certainty, is the touchstone of

reasonableness under the Fourth Amendment.” Hill v. California, supra,

; see also, Brown v. King, 5th Dist. No. 2008-CA-00165,

.

{¶48} Doty’s reasonable mistake of fact led to the radio dispatch heard by Sgt.

Dore: a suspect with a warrant was in a black Hyundai southbound on Route 23. The

fact of the mistaken identification does not render the ensuing stop invalid.

{¶49} Sgt. Dore performed the stop independent of Doty on the basis of

information received in a radio dispatch. “Information received on a police broadcast

is in the nature of an official communication, and ordinarily it must be considered as a

trustworthy source of information. A police officer necessarily relies on the information

he receives over the police radio, and upon the receipt of such information it is the

duty of the officer to act quickly.” State v. Fultz,

,

(1968), cert. denied,

,

,

(1968). See also,

State v. Woodfork, 4th Dist. No. 04CA2798,

, appeal not allowed,

,

,

; State v. Fields, 4th Dist. No.

96CA1742,

(Dec. 2, 1996); State v. Kuno,

,

(1976); State v. Chapa, supra. Delaware County, Case No. 11CAA090085 14

{¶50} In short, Sgt. Dore needed only a reasonable, articulable suspicion of

criminal activity to stop the suspect vehicle, which was supplied by the dispatch that

an individual in the car had a warrant for his arrest. Ultimately the mistake of identity

is not controlling.

{¶51} There is no evidence, and no party has alleged, that any of the law

enforcement officers involved did not act in good faith. See, State v. Campbell, 8th

Dist. No. 83787,

. Appellant makes no claim, nor is there any

evidence, that the actions of any police officer or sheriff’s deputy involved in this case

were part of a deceptive course of conduct or “merely pretense.” See, State v. Chapa,

10th Dist. No. 04AP-66,

.

{¶52} In Village of Granville v. Young, a police officer observed a car go left of

center and requested a check of the car’s license status. 5th Dist. No. 97-CA-110,

(Apr. 29, 1998). The dispatcher told the officer the driver’s license

was suspended. On that basis, the officer stopped the car. Upon speaking with the

driver, the officer detected an odor of an alcoholic beverage, and some drug-related

items were discovered. As the O.M.V.I. investigation progressed, the officer learned

the driver’s license was not suspended; the radio dispatch regarding the license status

was incorrect. The driver moved to suppress, arguing the stop was unlawful because

the driver’s license status information was wrong. The trial court denied the motion

and we agreed, finding the mistake over the license status was irrelevant. The

dispatch regarding the suspended license gave the officer sufficient facts, as known to

him then, to form a reasonable, articulable suspicion to stop the vehicle for the

purpose of checking the driver’s license.

citing State v. Chatton, 11 Ohio St.3d Delaware County, Case No. 11CAA090085 15

59, 61,

(1984), cert. denied,

, 105 S.Ct.182,

.

{¶53} In State v. Mathis, police were in search of a suspect who fled the scene

of a domestic violence incident. 9th Dist. No. CIV.A.22039, CIV.A.22040, 2004-Ohio-

6749. Officers noticed a man, West, in the area wearing clothes matching the

description of the suspect, and approached. The man fled and eventually entered

Mathis’ house, with police in pursuit. Inside Mathis’ house was a quantity of

marijuana. The state appealed the trial court’s granting of Mathis’ motion to suppress,

arguing that police had reasonable suspicion to stop and question West because

West’s clothing fit the description of the domestic violence suspect. The appellate

court agreed, despite the fact that West is African-American and the domestic violence

suspect was white: the officers were searching for a man in the general area

surrounding the victim’s residence who had, from what they had been told, threatened

to kill the victim. At the time of the stop, the officers knew only that West met the

description they had been given of the suspect. Their mistake as to his race did not

affect the validity of the stop, since they were unaware of race at the time. Id., 2004-

Ohio-6749 at ¶ 15 (citation omitted).

{¶54} Similarly in the instant case, Sgt. Dore was only aware that a black male

named Steven Simpkins was the right-front passenger in a car traveling south on

Route 23, and had a warrant for his arrest. Details of complexion and clothing were

unknown. Further, the misidentification was not discovered until after Sgt. Dore

escorted appellant to the cruiser, appellant reached into his waistband, and Dore

discovered the firearm. (T. 95). Thus there was no intervening event which would Delaware County, Case No. 11CAA090085 16

have alerted Dore that the reason for the initial stop was invalid. See, State v.

.

{¶55} We find Sgt. Dore’s stop of the vehicle, and the resulting evidence

discovered and arrests made, are not rendered invalid by Doty’s misidentification of

appellant as Steven Simpkins.

{¶56} For the foregoing reasons, appellant’s sole assignment of error is

overruled, and the judgment of the Delaware County Court of Common Pleas is

affirmed.

By: Delaney, P.J.

Edwards, J. concurs.

Hoffman, J. concurs separately.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. JULIE A. EDWARDS

PAD:kgb Delaware County, Case No. 11CAA090085 17

Hoffman, J., concurring {¶57} I concur in the majority’s disposition of Appellant’s sole assignment of

error. However, unlike the majority, I find the reasonableness of the mistaken identity is

controlling.

________________________________ HON. WILLIAM B. HOFFMAN [Cite as State v. Pickens,

.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MARCUS A. PICKENS : : : Case No. 11CAA090085 Defendant-Appellant :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. JULIE A. EDWARDS