[Cite as State v. Floyd,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 11CA010033

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE RICKY G. FLOYD ELYRIA MUNICIPAL COURT COUNTY OF LORAIN, OHIO Appellant CASE No. 2010TRC06716

DECISION AND JOURNAL ENTRY

Dated: March 12, 2012

DICKINSON, Judge.

INTRODUCTION

{¶1} Officer Fred Merrill, a 16-year veteran of the Elyria Police Department, was on

patrol one evening around 11:50 p.m. when he saw the truck in front of him turn into a driveway

and drive behind a building. Officer Merrill thought that the behavior was suspicious because

the business that occupied the building was closed for the day and there had been a number of

break-ins in the area. He parked his cruiser across the street from the business and called for

back-up because he did not want to approach the building alone if there was a burglary in

progress. About two minutes later, he saw the truck drive back out from behind the building.

Once the truck reentered the road, he initiated a traffic stop. He discovered that the truck was

being driven by Ricky Floyd, who had given the owner of the business a ride back to it after they

had socialized at a pool hall. According to Officer Merrill, Mr. Floyd was noticeably

intoxicated. Mr. Floyd subsequently failed field sobriety and blood-alcohol concentration tests 2

and was cited for operating a vehicle under the influence of alcohol and operating a vehicle with

a prohibited blood-alcohol concentration. Mr. Floyd moved to suppress the evidence against

him, arguing that Officer Merrill did not have reasonable suspicion to initiate a traffic stop.

After the municipal court overruled his motion, Mr. Floyd pleaded no contest, and the court

found him guilty of the blood-alcohol concentration offense. He has appealed his conviction,

arguing that the municipal court incorrectly overruled his motion to suppress. We affirm

because, under the totality of the circumstances, Officer Merrill had reasonable suspicion to

conduct an investigatory stop.

STANDARD OF REVIEW

{¶2} Mr. Floyd’s assignment of error is that the municipal court incorrectly overruled

his motion to suppress. A motion to suppress evidence presents a mixed question of law and

fact. State v. Burnside,

,

, at ¶8. Generally, a reviewing

court “must accept the trial court’s findings of fact if they are supported by competent, credible

evidence.”

But see State v. Metcalf, 9th Dist. No. 23600,

(Dickinson, J., concurring). The reviewing court “must then independently determine, without

deference to the conclusion of the trial court, whether the facts satisfy the applicable legal

standard.” Burnside,

, at ¶8. Mr. Floyd has only challenged whether Officer

Merrill had reasonable suspicion to initiate a traffic stop.

REASONABLE SUSPICION

{¶3} Although a police officer generally may not seize a person within the meaning of

the Fourth Amendment unless he has probable cause to arrest him for a crime, “not all seizures

of the person must be justified by probable cause . . . .” Florida v. Royer,

(1983). “A police officer may stop a car if he has a reasonable, articulable suspicion that a 3

person in the car is or has engaged in criminal activity.” State v. Kodman, 9th Dist. No.

06CA0100-M,

(citing State v. VanScoder,

(1994)). “The purpose of an investigatory stop is to allow a police officer to confirm or dispel

suspicions of criminal activity through reasonable questioning.” State v. Stanley, 11th Dist. No.

2007-P-0104,

(citing United States v. Hickman,

(9th

Cir. 1975)). Before initiating such a stop, a “police officer must be able to point to specific and

articulable facts which, taken together with rational inferences from those facts, reasonably

warrant [the] intrusion.” Terry v. Ohio,

(1968). “[I]t is imperative that the facts

be judged against an objective standard: would the facts available to the officer at the moment of

the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken

was appropriate?”

at 21-22 (quoting Carroll v. United States,

(1925)).

{¶4} Whether a police officer had “an objective and particularized suspicion that

criminal activity was afoot must be based on the entire picture – a totality of the surrounding

circumstances.” State v. Andrews,

(1991) (citing United States v. Cortez,

(1981); State v. Bobo,

(1988)). “[The] circumstances

are to be viewed through the eyes of the reasonable and prudent police officer on the scene who

must react to events as they unfold.” Id. at 87-88. “A court reviewing the officer’s actions must

give due weight to his experience and training and view the evidence as it would be understood

by those in law enforcement.” Id. at 88.

{¶5} “[A]n officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop[.]”

United States v. Arvizu,

(2002) (quoting Terry v. Ohio,

(1968)).

Although “[t]he reputation of an area for criminal activity is an articulable fact upon which a

police officer may legitimately rely in determining whether an investigative stop is warranted[,]” 4

a person’s mere presence in a high crime area is insufficient to justify an investigatory stop.

State v. Bobo,

(1988) (quoting United States v. Magda,

(2d Cir. 1976)); Brown v. Texas,

(1979); State v. Carter,

(1994).

{¶6} Both parties have cited several cases that, they have argued, are similar to this

one. As is often true in these cases, each case presents unique facts that thwart an apples to

apples comparison with others. Nevertheless, comparison with other cases can be useful. In

State v. Klein,

(4th Dist. 1991), a police officer saw a car sitting in a car

dealership lot at 1:35 a.m. The officer decided to investigate because “there had been a continual

problem in the summer and fall of 1989 with people tearing up cars and stealing items from cars

in the area of the car lots.”

. When the officer approached the car, it pulled out of the

lot, so the officer initiated a traffic stop. The facts that the State relied on to justify the stop were

“(1) the area in which appellant was observed had experienced a problem with vandalism and

theft; (2) the area in which appellant was observed was private property; (3) the time of the

observation was 1:35 a.m.; and (4) appellant turned out of the area as [the officer’s] police

cruiser approached the area.”

. The Fourth District concluded, however, that, under the

totality of the circumstances, the officer did not have reasonable suspicion to stop the car, noting

that the facts were “equally consistent with innocent behavior.”

{¶7} In State v. Rhude,

(12th Dist. 1993), a sheriff’s deputy on

patrol at 1:30 a.m. saw a car drive down a lane, turn around, and drive back out to the road. The

car then drove two-tenths of a mile down the road and pulled into another driveway. The car did

not violate any traffic laws, but the deputy decided to stop it because “police had received many

complaints concerning prowlers and burglaries in the area . . . .”

. The Twelfth District 5

determined that the deputy did not have reasonable suspicion, concluding that “[t]he fact that a

person pulls out of one driveway and into another a short distance down the road in an area

where several burglaries had been reported is not sufficient to constitute reasonable suspicion . . .

.”

.

{¶8} In State v. Hooper, 5th Dist. No. 94CA07020,

(Dec. 23, 1994),

an officer decided to follow a car at 3:45 a.m. to see if the driver was drunk because “there

wasn’t a lot happening.” Id. at *1. As he turned onto the street, he lost sight of the car, but then

noticed it parked behind a textile services store. He then saw the car pull into the parking lot of a

fast food restaurant, where he approached the driver. According to the officer, there had been

“several break-ins in the area in the past, and he thought that [the driver] might be involved in a

break-in at [the textile services store].” Id. The Fifth District concluded that the officer did not

have reasonable suspicion to detain the driver because “[h]e observed no moving violations[,]

[h]e observed no conduct behind [the store] to support a belief that [the driver] was involved in a

break-in[,] [h]e had no knowledge that [the driver] was involved in any type of illegal activity[,]

[and] [h]e observed nothing about the store to indicate that there had been a break-in recently.”

Id.

{¶9} In State v. Brown,

(7th Dist. 1996), a sheriff’s deputy saw

a car with its headlights on blocking the entrance of a truck dealership at 2:58 a.m. The officer

saw three people inside the car and decided to initiate a traffic stop because there had been prior

thefts at the dealership. The Seventh District concluded that the car’s conduct was not indicative

of criminal behavior, noting that it was “not observed in motion” and no one “was observed

outside the vehicle or engaged in any type of activity that would lead to a reasonable suspicion

that criminal activity was about to take place.”

. 6

{¶10} In City of Fairlawn v. Skoblar,

(9th Dist. 1997), a police

officer noticed a car exiting a cemetery around midnight. The officer was aware of previous

complaints of devil worship at the cemetery that involved cars entering the cemetery late at night

and leaving colored candles at various grave sites. Although the officer did not notice anything

irregular about the driver’s operation of the car, she stopped it to investigate the possibility of

criminal activity. The trial court granted the driver’s motion to suppress, and this Court

affirmed, noting that the cemetery was open at the time of the stop, there was no evidence that

the cemetery was in a high crime area, and the alleged prior acts of devil worship would not even

constitute the offense of criminal mischief.

.

{¶11} In State v. Gray, 11th Dist. No. 99-G-2249,

(July 14, 2000), an

officer with seven years of experience saw a car drive behind a gas station that was at the corner

of an intersection and was closed for the night. Although the officer did not observe any traffic

violations, he stopped the car to “find out what the driver was doing behind the business.” Id. at

*1. The Eleventh District concluded that the officer did not have reasonable suspicion to stop

the car, noting that it was not a high-crime area, there had not been any break-ins in the

neighborhood, the gas station was located at the intersection of two roads, the car did not stop or

slow down as it was passing behind the building, and there were no signs limiting right of access

at night. Id. at *4-5.

{¶12} In State v. Richardson, 9th Dist. No. 21144,

, a police officer on

patrol around 2:30 a.m. saw a truck parked behind a closed restaurant. As the officer approached

the truck, it drove away at a “higher than normal” rate of speed. Id. at ¶2. According to the

officer, there were many businesses in the area, but none of them was open at that time of night.

It was also a very high crime area. This Court concluded that the trial court correctly determined 7

that the officer had a reasonable and articulable suspicion that the driver of the truck was

engaged in criminal activity. Id. at ¶12.

{¶13} In State v. Cowan, 6th Dist. No. WD-05-090,

, a university police

officer was patrolling the grounds of Bowling Green State University around 4:30 a.m. when he

saw a car enter an empty parking lot reserved for daytime parking for commuter students and

travel toward the dead-end part of the lot. There was no overnight parking allowed in the lot,

and the building that the lot was next to was closed and does not conduct any business at night.

The officer stopped the car because he “believed there was no legitimate reason for anyone to be

in that location at that time of night.” Id. at ¶5. The Sixth District concluded that, under the

totality of the circumstances, “an inference that criminal activity may be afoot was reasonable.”

Id. at ¶13.

{¶14} In City of Cuyahoga Falls v. Pollack, 9th Dist. No. 23988,

, an

officer noticed a truck stopped at an intersection two car lengths behind the stop bar. The officer

began following the truck from a distance and, at one point, lost sight of it. When the officer saw

the truck again, it was being driven behind some closed buildings with its headlights off. It was

about 3:00 a.m. This Court concluded that the officer had reasonable suspicion to stop the truck,

noting that, “[w]hile there may be some lawful reason for someone to be behind a closed

commercial building in a truck with extinguished lights late at night, it requires [some] exertion

to conceive of such a reason.”

at ¶7 (quoting State v. Rhines, 9th Dist. No. 16548,

at *2 (Aug. 10, 1994)).

{¶15} The case with facts closest to this one is State v. Howard, 6th Dist. No. L-92-261,

(Mar. 31, 1993). According to the Sixth District, the facts of that case were

that, “[o]n Sunday, April 26, 1992, at approximately 10:00 p.m., a Sylvania police officer by the 8

name of William Ahleman was on routine patrol. Officer Ahleman observed a pickup truck exit

a main thoroughfare into the driveway of a closed commercial building. The pickup truck

extinguished its headlights and proceeded to the rear of the building. Ahleman, a fifteen-year

police veteran, later testified that because this activity aroused his suspicion he called by radio

for backup and turned his own car onto the driveway of an adjacent cemetery. Ahleman’s

intention was to observe the activities of the driver of the pickup truck behind the building. In so

doing, [he] temporarily lost sight of the truck. When Officer Ahleman next saw the truck, it was

emerging from the rear of the building. At this point, Officer Philip Gallup arrived in a backup

unit. Officer Gallup saw the truck leave the private driveway and enter the main street. He

followed the pickup truck for a few blocks, then stopped it as it was entering a highway access

ramp. While Officer Gallup was stopping the pickup, Officer Ahleman was driving his vehicle

to inspect the back of the commercial building.” Id. at *1. The Sixth District concluded that,

under those facts, the officers “not only had cause to conduct an investigatory stop but might

have been derelict had they not done so.” Id. at *3.

{¶16} In this case, Officer Merrill, who had 16 years of experience with the City of

Elyria, saw a truck turn into the driveway of a business and drive behind, what appeared to him

to be, a closed commercial building. It was close to midnight and the building was in an area in

which there had been recent break-ins. While the gentleman who owned the business testified

that the front of his building contains an apartment unit, there is no evidence in the record that

indicates that Officer Merrill knew or should have known that part of the building is an

apartment unit. Furthermore, while there was testimony that there are houses and other

apartments in the vicinity of the building, there was no testimony that the driveway Mr. Floyd

turned into leads to any of those houses or apartment units. 9

{¶17} The main difference between this case and Howard is that the defendant in

Howard turned his headlights off before driving behind the building. While that act made the

defendant’s conduct in that case more suspicious than Mr. Floyd’s, the fact that Mr. Floyd had

his headlights on does not mean that his otherwise similar acts did not also provide reasonable

suspicion that criminal activity was afoot.

{¶18} Mr. Floyd has argued that his actions were consistent with innocent behavior. We

agree that it may have occurred to someone watching his truck that it was simply the owner of

the business going in late to catch-up on unfinished work. The possibility of an innocent

explanation, however, does not deprive an officer of the capacity to entertain a reasonable

suspicion of criminal conduct. State v. Elliott, 4th Dist. No. 98CA613,

at *3

(May 20, 1999). The relevant inquiry in determining whether reasonable suspicion exists “is not

whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to

particular types of non-criminal acts.”

(quoting Illinois v. Gates,

(1983)).

{¶19} Another issue that this Court must consider is whether the brevity of Mr. Floyd’s

stay behind the buildings lessens the suspiciousness of his conduct. In Howard, the Sixth

District did not indicate how long the defendant was behind the building. Its opinion simply

notes that the officer “temporarily” lost sight of the truck. State v. Howard, 6th Dist. No. L-92-

261,

at *1 (Mar. 31, 1993). In this case, Officer Merrill testified that, after he

turned his cruiser around and got into position across the street from the building, it was another

two minutes before the truck came out from behind the building.

{¶20} Two minutes would not have given a thief much time to break into the business,

but the driver of the truck could simply have been in the process of casing buildings in the area 10

or have quickly loaded something that was behind the building into the bed of his truck.

Accordingly, although this case presents a close question, based on the time of day, Officer

Merrill’s experience, the fact that the businesses to which the driveway led were closed, and the

fact that there had been “numerous break-ins . . . burglaries and all kind of crimes committed

specifically in that area,” we conclude that, viewing the evidence “as it would be understood by

those in law enforcement,” the totality of the circumstances supports the municipal court’s

determination that Officer Merrill had reasonable and articulable suspicion to justify stopping

Mr. Floyd’s truck. State v. Andrews,

(1991). Mr. Floyd’s assignment of

error is overruled.

CONCLUSION

{¶21} The municipal court correctly overruled Mr. Floyd’s motion to suppress. The

judgment of the Elyria Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Elyria Municipal

Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 11

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT

WHITMORE, P. J. CARR, J. CONCUR.

APPEARANCES:

SAMIR HADEED, Attorney at Law, for Appellant.

CYNTHIA M. ADAMS, Prosecuting Attorney, for Appellee.