[Cite as State v. Parson,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 25399 Plaintiff-Appellee : : Trial Court Case No. 2012-CR-339 v. : : TRAVIS B. PARSON : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 28th day of June, 2013.

...........

MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. #0089541, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

PAMELA L. PINCHOT, Atty. Reg. #0071648, Clyo Professional Center, 7960 Clyo Road, Dayton, Ohio 45459 Attorney for Defendant-Appellant

.............

FAIN, P.J.

{¶ 1} Defendant-appellant Travis Parson appeals from his conviction and sentence for 2

Tampering With Evidence. Parson contends that the trial court erred by overruling his motion to

suppress evidence, because the officers who stopped his vehicle did not have reasonable,

articulable suspicion of criminal activity.

{¶ 2} We conclude that the trial court did not err in overruling Parson’s motion to

suppress evidence, because the police dispatch on which the officers relied to initiate the traffic

stop was based on a reliable telephone tip. Accordingly, the judgment of the trial court is

Affirmed.

I. The Police Stop a Vehicle Driven by Parson Based on a

Telephone Tip Received by the Police Dispatch

{¶ 3} The trial court made the following findings of fact based on the testimony

presented at the suppression hearing:

City of Dayton Police Officer David House (“House”) testified that on

February 1, 2012 at approximately 3:30 a.m., he responded to a dispatch that a

person had called in that [a] black male in a grey Oldsmobile was driving while

intoxicated and the caller had refused to get into the car with him. The caller

gave her name and telephone number, as well as the name of the allegedly

intoxicated driver. The caller stated that the intoxicated driver was in the All In

One parking lot on James H. McGhee [sic] Blvd. House testified that as he

approached the All in One, he saw a grey Buick exit the parking lot followed by

another Dayton police cruiser. The officer in the other cruiser initiated a stop on

the Buick, which was driven by Defendant Travis B. Parson (“Parson”). [Cite as State v. Parson,

.] House testified that there was a black female passenger in the car as well.

House further stated that he made contact with Defendant and asked for

identification. Defendant was not able to provide any, but gave his name as

Willie Parson and provided a social security number. House asked Defendant’s

age and birthdate. Defendant hesitated and stated that his birthday was June 3,

1969 and that he was 45 years old. If Defendant had been born on such date, he

would have been 43 years. House testified that Defendant was not intoxicated

but he became suspicious that Defendant was hiding his true identity and asked

him to step out of the car. When Defendant exited the vehicle, [H]ouse saw a

large knife on the floor board of the car. House then patted Defendant down for

officer safety.

House testified that he felt a crack pipe during the pat-down. House then

informed Defendant that he was under arrest and commenced a search of

Defendant’s person incident to arrest. House further testified that he observed

Defendant remove what he believed to be a rock of crack cocaine from the fold in

his hat and pop it into his mouth. House and another officer on the scene

struggled with Defendant to get him to spit it out, which he ultimately did after

being pepper sprayed.

House then when [sic] to Defendant’s vehicle to retrieve the knife and

found a piece of crack cocaine. Defendant was then mirandized. House testified

that the name Willie Parson was run through the computer and it showed that

Willie Parson was on federal probation. Defendant then told the police his true

name. Parson is not the name given to the police dispatch by the person calling in 4

about the intoxicated driver.

Brent Parrish then testified that he was working as a Montgomery County

Corrections Officer the night that Defendant was booked in the jail. Parrish

testified that Defendant did not make any statements about contraband. Dkt. 21,

p. 1-2.

{¶ 4} There is evidence in the record to support the trial court’s findings. We note,

further, that Officer House testified that the tip was received at 3:35 a.m., the call was dispatched

at 3:37 a.m., and House and the other officer, identified in the record simply as Officer Harding,

arrived on the scene at 3:39 a.m.

II. Course of the Proceedings

{¶ 5} In March 2012, Parson was indicted on one count of Tampering With Evidence

in violation of R.C. 2921.12(A)(1), a felony of the third degree. Parson moved to suppress

evidence obtained during the traffic stop, arguing that the traffic stop was not based on a

reasonable, articulable suspicion of criminal activity. After a hearing, the trial court overruled

the motion to suppress. Parson then pled no contest to Tampering With Evidence. The trial

court found Parson guilty of the offense, and sentenced Parson to twelve months in prison.

{¶ 6} From the judgment, Parson appeals

III. The Police Had a Reasonable, Articulable Suspicion of Criminal Activity

{¶ 7} Parson’s sole assignment of error states:

THE TRIAL COURT ERRED IN OVERRULING 5

DEFENDANT-APPELLANT’S MOTION TO SUPPRESS AS THE DAYTON

POLICE OFFICER DID NOT HAVE REASONABLE, ARTICULABLE

SUSPICION AND/OR PROBABLE CAUSE TO STOP AND DETAIN THE

DEFENDANT-APPELLANT AND, THEREFORE, VIOLATED THE RIGHTS

GUARANTEED TO THE DEFENDANT-APPELLANT BY THE FOURTH

AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE

1, SECTION 14 OF THE OHIO CONSTITUTION.

{¶ 8} In deciding a motion to suppress, “the trial court assumes the role of trier of facts

and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.”

State v. Hopfer,

,

(2d Dist. 1996), quoting State v.

Venham,

,

(4th Dist. 1994). The court of appeals must

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

the record. State v. Isaac, 2d Dist. Montgomery No. 20662,

, citing State v.

Retherford,

,

(2d Dist. 1994). Accepting those facts as true,

the appellate court must then determine, as a matter of law and without deference to the trial

court’s legal conclusion, whether the applicable legal standard is satisfied.

We have

reviewed the evidence presented at the suppression hearing and find that the trial court’s findings

of fact are supported by competent, credible evidence in the record.

{¶ 9} Parson’s motion to suppress raises search and seizure issues under the Fourth

Amendment to the United States Constitution, which guarantees "[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]"

Searches and seizures conducted without a warrant are per se unreasonable unless they come 6

within one of the " 'few specifically established and well delineated exceptions.' " Minnesota v.

Dickerson,

,

,

(1993), quoting Thompson v.

Louisiana,

,

,

(1984). Evidence is inadmissible

if it stems from an unconstitutional search or seizure. Wong Sun v. United States,

,

,

(1963).

{¶ 10} “An investigative stop, or Terry stop, is a common exception to the Fourth

Amendment warrant requirement.” State v. Carrocce, 10th Dist. Franklin No. 06AP-101,

, citing Terry v. Ohio,

,

,

(1968). An officer may conduct an investigative Terry stop on an individual if the officer

has a reasonable suspicion, based upon specific and articulable facts, that criminal behavior has

occurred or is imminent. Terry at 20, 21, 30, 31.

{¶ 11} Here, Officers House and Harding initiated the investigative stop in response to a

police dispatch that was based on a telephone tip from an identified female who indicated that a

black male driving a gray Oldsmobile was intoxicated in the All-In-One parking lot. “Where an

officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a

suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of

criminal activity.” City of Maumee v. Weisner,

,

(1999),

paragraph one of the syllabus. “A telephone tip can, by itself, create reasonable suspicion

justifying an investigatory stop where the tip has sufficient indicia of reliability.”

at

paragraph two of the syllabus. The informant's veracity, reliability, and basis of knowledge are

highly relevant factors in determining the value of the informant's tip. Id. at 299.

{¶ 12} Based on the testimony of Officer House, the trial court found, in pertinent part: 7

House testified that Defendant was driving a grey vehicle out of the exact

location identified by the caller in the original dispatch regarding an intoxicated

driver. The Court finds that the timing, color of the vehicle and its locations

justified the stop of the car to determine whether the driver was intoxicated.

Thus, asking his name and for identification was appropriate. Furthermore,

Defendant began to act suspiciously when asked for such background information,

and House determined correctly that Defendant was not who he said he was.

Thus, the Court finds that there was a reasonable, articulable suspicion of criminal

activity that justified the investigatory stop and detention of Defendant under

Terry. Dkt. 21, p. 3.

{¶ 13} At 3:35 a.m., the police dispatch received a telephone tip from a female who gave

her name and phone number. The caller stated that “the individual [the driver] was intoxicated

and that they had been arguing and that for that reason the caller in decided not to get into the

vehicle with [the driver].” The caller’s report supports a reasonable inference that she and the

driver had interacted sufficiently for her to have formed an opinion that the driver was

intoxicated. We conclude that the telephone tip was sufficiently reliable to justify the traffic

stop when Officers Harding and House, at 3:39 a.m., saw Parson pulling out in a gray vehicle

from a virtually empty All-In-One parking lot four minutes after the telephone tip was received.

{¶ 14} Parson contends that the officers could not reasonably rely upon the tip, because

the tip reported that the possibly intoxicated person was driving a gray Oldsmobile, whereas

Parson was driving a gray Buick LeSabre. But Officer House testified that he did not know,

when the stop was made, that Parson’s vehicle was a Buick LeSabre; he just knew it was gray. 8

{¶ 15} We conclude that the trial court did not err in overruling Parson’s motion to

suppress. Parson’s sole assignment of error is overruled.

IV. Conclusion

{¶ 16} Parson’s sole assignment of error having been overruled, the judgment of the trial

court is Affirmed.

..........

WELBAUM, J., concurs.

FROELICH, J., dissenting:

{¶ 17} The caller gave her name and telephone number, thus falling into the broad

category of a “known” informant, although the record reflects nothing regarding her relationship,

if any, to the Appellant, her state of sobriety, the basis for her conclusion of intoxication, etc. . . .

The caller only said a Shawn Brooks was in the parking lot driving a gray Oldsmobile and was

intoxicated.

{¶ 18} Two officers were on the scene quickly and saw a gray vehicle pull out of the

parking lot and initiated a traffic stop. There is no indication in the record that Appellant was

violating any traffic laws or doing anything suspicious. The only justification for the stop was a

named informant’s saying the driver - Shawn Brooks - was “intoxicated.” I agree with the

majority that a strong showing as to other indicia of reliability may be unnecessary to justify a

Terry stop, based on the tip of a “known informant.” Maumee v. Weisner,

,

(1999). However, “[s]imple corroboration of neutral details describing the

suspect or other conditions existing at the time of the stop, without more, will not produce 9

reasonable suspicion for an investigatory stop.” State v. Ramsey, 10th Dist. Franklin App. No.

89AP-1298,

, *4 (Sept. 20, 1990.)

{¶ 19} For example, in State v. Hipp, 5th Dist. Holmes No. 12CA013,

,

the caller was an identified cashier at a convenience store who called 911 about a customer and

said he “smelled alcohol on her breath.” He gave the dispatcher a description of the car, the

license number, and the direction the vehicle had proceeded.

{¶ 20} An officer pulled over the vehicle soon thereafter, but did not observe any bad

driving or other suspicious activity. The Court of Appeals held that the “attendant did not

sufficiently indicate bad driving or inappropriate activity or behavior to indicate Appellant was

operating a vehicle while intoxicated prior to Appellant’s stop” and the deputy “did not himself

observe Appellant engage in any unlawful activity.” Therefore, any fruits of the stop should

have been suppressed. Id; See, also, State v. Brant, 10th Dist. Franklin No. 01AP-342,

and State v. Bernap, 5th Dist. Delaware No. 11CAC090086,

.

{¶ 21} I would find that the officers did not have sufficient suspicion for an

investigatory stop.

.............

Copies mailed to:

Mathias H. Heck April F. Campbell Pamela L. Pinchot Hon. Barbara P. Gorman