[Cite as State v. Stewart,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, : Nos. 109867 and 109868 v. :

JAMES STEWART, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: August 26, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-19-645843-A and CR-19-645843-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione, Assistant Prosecuting Attorney, for appellant.

Regis E. McGann, for appellee James Stewart.

Cullen Sweeney, Cuyahoga County Public Defender, and Paul A. Kuzmins, Assistant Public Defender, for appellee Leeandrew Ealom.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, the state of Ohio, appeals an order granting two

motions to suppress filed by defendants-appellees, James Stewart (“Stewart”) and Leeandrew Ealom (“Ealom”) (collectively “appellees”). The state claims the

following error:

The trial court erred in granting James Stewart and Leeandrew Ealom’s motion to suppress.

We find merit to the appeal, reverse the trial court’s judgment, and

remand the case to the trial court for further proceedings.

I. Facts and Procedural History

Ealom and Stewart were charged in a nine-count indictment with three

counts of drug trafficking in violation of R.C. 2925.03(A)(2) as alleged in Counts 1,

3, and 5; four counts of drug possession in violation of R.C. 2925.11(A) as alleged in

Counts 2, 4, 6, and 7; and one count of possessing criminal tools in violation of R.C.

2923.14(A) as alleged in Count 8. Counts 1 through 8 included forfeiture of a scale,

a cell phone, a gun, and money. Counts 3 and 5 included firearm specifications

pursuant to R.C. 2941.141(A). In Count 9, Ealom, alone, was charged with improper

handling of a firearm in a motor vehicle in violation of R.C. 2923.16(E)(1).

Stewart and Ealom each filed a motion to suppress, arguing that

Cleveland police did not have probable cause to initiate the traffic stop that led to

the discovery of contraband. They further argued that officers detained them

without reasonable suspicion and that the subsequent search of their vehicle was

unlawful.

The state opposed the motions to suppress, arguing the initial traffic

stop was lawful because Stewart, who was driving the vehicle, was driving erratically, changed lanes multiple times without signaling, and later turned out of a gas station

parking lot without signaling. The state argued that changing lanes and turning

without a signal are violations of Cleveland Codified Ordinances (“C.C.O.”) 431.14.

Finally, the state argued that during the lawful stop, officers observed a firearm in

plain view, which justified a search for weapons that led to the discovery of

contraband in the vehicle.

Detective Joseph Hess (“Det. Hess”) testified at the suppression

hearing that he and Detective Christopher Allen (“Det. Allen”) were patrolling an

area near East 140th Street and Kinsman on November 8, 2019, at approximately

4:12 p.m., in a police vehicle equipped with lights and sirens. Sergeant Jarrod

Durichko (“Sgt. Durichko”) was also patrolling the area in an undercover vehicle.

Sgt. Durichko notified Detectives Hess and Allen that he observed a white Jeep

Compass driving erratically and changing lanes multiple times without signaling.

(Tr. 19.) The Jeep traveled eastbound on Union Avenue and turned into a gas station

located at East 140th Street and Kinsman Road.

As Detectives Hess and Allen approached the location, Sgt. Durichko

notified them that the same vehicle exited the gas station and turned onto the

roadway again without signaling. (Tr. 20.) By that time, Detectives Hess and Allen

had reached the location, pulled behind the Jeep, and initiated a traffic stop. (Tr.

20.) Sgt. Durichko did not conduct the traffic stop because he was in an undercover

vehicle. (Tr. 20.) Det. Allen approached the driver’s door and spoke to Stewart while Det.

Hess approached the passenger side door and spoke with Ealom. (Tr. 21.) Det. Hess

spoke with Ealom for approximately four minutes and then asked him to exit the

vehicle for safety purposes and to facilitate communication. (Tr. 21.) As Ealom was

exiting the vehicle, Det. Hess asked Ealom if he had any weapons on his person. (Tr.

22, 57.) Ealom replied: “Yes. I have a concealed carry.” (Tr. 22, 71.) Det. Hess then

observed a gun in the front-passenger door panel. (Tr. 22-23, 58.) Thereafter, Det.

Hess placed Ealom in handcuffs for officer safety because Ealom failed to notify the

officers that he had a concealed weapon. (Tr. 23-24.)

Det. Hess rendered the weapon safe and searched the passenger

compartment of the vehicle “for other weapons.” (Tr. 25.) During the search, Det.

Hess found multiple cell phones and a large roll of blank lottery tickets. (Tr. 25.)

Det. Hess, who is a member of the Fourth District Vice Unit, testified based on his

training and experience that these items were common “indicators of drug

trafficking.” (Tr. 25.) He explained that a blank roll of lottery tickets “is one of the

No. 1 packaging materials for narcotics. It’s up there with plastic baggies.” (Tr. 26.)

Det. Hess also found a digital scale with drug residue inside a pouch fastened to the

back of the front passenger seat. (Tr. 27-28.)

After finding the scale, the officers determined they had probable

cause to search the rest of the vehicle. (Tr. 27.) In the back seat, the detectives found

a hairbrush with a hidden compartment containing a bag of heroin and a bag of

cocaine. (Tr. 28-29.) Detectives Hess and Allen then placed Stewart and Ealom under arrest and cited Stewart with a change of course violation pursuant to

C.C.O. 431.14.

In granting the motions to suppress, the court concluded that the city’s

change of course ordinance only applies to public streets and, therefore, does not

apply to parking lots where Stewart turned onto Union Avenue. The trial court’s

written decision did not address the other alleged traffic violations, namely changing

lanes without signaling and erratic driving. The court determined that because

Stewart did not violate any traffic ordinance by turning from a private parking lot

onto a city street, the police had no reasonable justification for initiating the traffic

stop of Stewart’s vehicle and, therefore, the traffic stop violated the Fourth

Amendment. The state now appeals the trial court’s judgment pursuant to Crim.R.

12(K).

II. Law and Analysis

A. Standard of Review

This court reviews a decision on a suppression motion under a mixed

standard of review. “In a motion to suppress, the trial court assumes the role of trier

of fact and is in the best position to resolve questions of fact and evaluate witness

credibility.” State v. Curry,

,

(8th Dist. 1994).

Therefore, a reviewing court must accept the trial court’s findings of fact in ruling

on a motion to suppress if the findings are supported by competent, credible

evidence. State v. Burnside,

,

,

. Accepting the facts as true, the reviewing court must independently determine, without deference to the trial court, whether the trial court properly applied the

substantive law to the facts of the case.

An appellate court reviews the trial

court’s application of the law to its factual findings under a de novo standard. State

v. Belton,

,

,

.

B. The Traffic Stop

The Fourth Amendment of the U.S. Constitution, which is enforceable

against the states through the Due Process Clause of the Fourteenth Amendment,

provides: “The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause.” Mapp v. Ohio,

,

,

(1961). Article I, Section 14 of the Ohio Constitution

has language almost identical to the Fourth Amendment and affords the same

protections against unreasonable searches and seizures. State v. Robinette,

,

(1997).

There are, however, exceptions to the Fourth Amendment’s warrant

requirement. Although stopping an automobile and detaining its occupants

constitutes a “seizure” under the Fourth Amendment, “a traffic stop is

constitutionally valid if an officer has a reasonable and articulable suspicion that a

motorist has committed, is committing, or is about to commit a crime.” State v.

Mays,

,

,

, citing Delaware

v. Prouse,

,

,

(1979). See also Dayton

v. Erickson,

,

(1996)(“[W]here an officer has an articulable reasonable suspicion or probable cause to stop a motorist for any

criminal violation, including a minor traffic violation, the stop is constitutionally

valid * * *.”).

It is well established that “‘[a] police officer may [initiate] a traffic stop

of any motorist for any traffic infraction, even if the officer’s true motive is to detect

more extensive criminal conduct.’” State v. Hrtsyak, 8th Dist. Cuyahoga No.

108506,

, ¶ 21, quoting State v. Bennett, 8th Dist. Cuyahoga No.

86962,

(emphasis sic). “‘[C]ourts determine whether any violation

occurred, not the extent of the violation.’” Cleveland v. Martin,

,

(8th Dist.), quoting State v. Hodge,

, 2002-Ohio-

3053,

(7th Dist.).

Detectives Hess and Allen stopped Stewart’s car because Sgt.

Durichko advised them that Stewart was “driving erratically and switched lanes

multiple times without signaling.” (Tr. 19.) C.C.O. 431.14, governs “Signals Before

Changing Course, Turning, or Stopping,” and provides, in relevant part:

No person shall turn a vehicle * * * or move right or left upon a highway unless and until such person has exercised due care to ascertain that the movement can be made with reasonable safety, nor without giving an appropriate signal in the manner hereinafter provided.

C.C.O. 431.14(a)(1). Thus, C.C.O. 431.14(a)(1) requires one to use a turn signal when

moving from right or left upon a highway. C.C.O. 401.61 defines the term “highway”

as synonymous with the word “street” and includes “the entire width between the boundary lines of every way open to the use of the public as a thoroughfare for

purposes of vehicular travel.”

The trial court concluded that the stop of Stewart’s Jeep violated the

Fourth Amendment because Stewart was not required to use a turn signal when

turning out of the gas station parking lot onto a public street. The trial court found

no evidence of a traffic violation that would justify the stop. However, as previously

stated, the trial court’s decision fails to address Stewart’s other alleged traffic

violations. Defense counsel asserted at oral argument that the trial court must have

found that the testimony regarding other traffic violations was not credible based on

video evidence provided by Det. Hess’s body camera. In the video, which was played

at the suppression hearing, Stewart seems to be seeking clarification as to the reason

for the stop because he asks for confirmation that he was stopped for failing to use

his turn signal. Det. Hess replies in the affirmative and tells Stewart that he failed

to use a signal when he turned out of the gas station parking lot. Det. Hess does not

mention the other traffic violations on the video.

However, the video suggests that Det. Allen had previously told

Stewart that he was stopped for failing to use his signal, but Det. Allen’s conversation

with Stewart preceded Det. Hess’s interaction with him, and Det. Allen’s explanation

for the stop was not captured by Det. Hess’s body camera. We, therefore, do not

know what Det. Allen told Stewart regarding his failure to signal. Nevertheless, Det.

Hess testified at the suppression hearing that Stewart was stopped, in part, because

he failed to signal when he changed lanes. According to Det. Hess, Sgt. Durichko also told Detectives Hess and Allen that Stewart had been “driving erratically.” (Tr.

19.) Thus, there was evidence that Sgt. Durichko observed Stewart violate C.C.O.

431.14(a)(1) by “switching lanes multiple times without signaling” and by failing to

exercise due care before moving right or left because he was “driving erratically.”

(Tr. 19.)

The trial court completely ignored the evidence of the other traffic

violations. This is not a case where the trial court found the evidence of other traffic

violations lacking in credibility; the trial court made no finding at all with respect to

that evidence. We, therefore, find the trial court’s conclusion that Stewart did not

commit a traffic violation is against the manifest weight of the evidence.

As previously stated, a traffic stop is constitutionally valid where

police have observed the driver commit a traffic violation. Dayton,

,

. Although Detectives Hess and Allen did not witness the

traffic violations, police may initiate investigatory stops based on the observations

of other officers or citizens. Lyndhurst v. Brickel, 8th Dist. Cuyahoga No. 72322,

1998 Ohio App.LEXIS 2334 (May 28, 1998); Beachwood v. Sims,

,

(8th Dist. 1994). Therefore, the traffic stop of Stewart’s Jeep

was constitutionally valid because Sgt. Durichko observed Stewart commit multiple

traffic violations.

Because the trial court found the traffic stop was unlawful, it did not

analyze the legality of the interaction between the detectives and appellees following

the initial stop. We have recognized that “‘[w]hen a trial court’s findings of fact are inadequate and the record provides an appellate court with a sufficient basis to

review appellant’s assignments of error, the appellate court need not remand for the

entry of findings of fact.’” State v. Burrell, 8th Dist. Cuyahoga No. 72113,

, 9 (Apr. 16, 1998), quoting Parma v. Reschke, 8th Dist. Cuyahoga

No. 58015,

, 4 (Feb. 14, 1991).

After briefly talking with appellees during the traffic stop, Hess asked

Ealom to step out of the Jeep. “[A]n officer can ask a person to exit a vehicle during

a lawful traffic stop without having reasonable suspicion of any further criminal

activity.” Cleveland v. Kalish,

,

(8th Dist.),

citing Pennsylvania v. Mimms,

,

,

(1977) (“Once a motor vehicle has been lawfully detained for a traffic violation, the

police officers may order the driver to get out of the vehicle without violating the

Fourth Amendment’s proscription of unreasonable searches and seizures.”).

As previously stated, Det. Hess asked Ealom if he had any weapons on

his person as he was exiting the car. Ealom responded, “Yes, I have a concealed

carry.” (Tr. 22, 71.) Det. Hess then observed a firearm in plain view in the front-

passenger door panel. (Tr. 22-23.) The plain view doctrine is another exception to

the Fourth Amendment’s warrant requirement. State v. Williams,

,

(1978).

In order for evidence to be seized under the plain view exception to the search warrant requirement it must be shown that (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities.

at paragraph one of the syllabus. See also State v. Halczyszak,

,

(1986).

Having determined that the initial traffic stop was constitutional, the

first of the three requirements necessary for the plain view doctrine to apply has

been satisfied. With respect to the other two requirements, the Ohio Supreme Court

has held that the “inadvertent discovery” requirement “may be satisfied when police

lack antecedent probable cause, i.e., an advance particularized knowledge of, or

intent to seize, those objects ultimately seized.” Halczyszak at paragraph two of the

syllabus. The “immediately apparent” requirement of the plain view doctrine is

satisfied where police officers have probable cause to associate the object with

criminal activity.

at paragraph three of the syllabus. “In ascertaining the

required probable cause to satisfy the ‘immediately apparent’ requirement, police

officers may rely on their specialized knowledge, training and experience * * *.”

at paragraph four of the syllabus.

Det. Hess observed the firearm in the front-passenger door panel as

Ealom was exiting the car. The discovery was inadvertent because neither Det. Hess

nor Det. Allen had any prior knowledge that the gun would be found in that location.

The gun’s incriminating nature was immediately apparent because Ealom failed to

disclose its existence to police during the traffic stop as required by R.C.

2923.12(B)(1). R.C. 2923.12(B)(1) states, in relevant part, that “[n]o person who has been issued a concealed handgun license shall * * * fail to promptly inform any law

enforcement officer who approaches the person after the person has been stopped

that the person has been issued a concealed handgun license and that the person

then is carrying a concealed handgun[.]”

The purpose of the duty to “promptly inform” an officer of a concealed

weapon is to protect the officer’s safety. State v. Lyle, 1st Dist. Hamilton No. C-

190447,

. Courts interpreting the duty to promptly inform police

of the existence of a concealed weapon have held that “to do something ‘promptly’

is to do it ‘without delay and with reasonable speed.’” State v. Griffin, 1st Dist.

Hamilton No. C-190369,

, quoting State v. Brown,

,

,

(11th Dist.). See also Lyle at

¶ 26-27 (holding that there was insufficient evidence of a concealed weapons

violation because the defendant promptly informed police that he had a firearm

while the interaction with police was still consensual and had not yet become a

“stop” for law enforcement purposes). Indeed, the plain meaning of the word

“promptly” is defined as “without delay[,] very quickly or immediately.” Merriam-

Webster.com dictionary, “promptly” available at Merriam-Webster,

https://www.merriam-webster.com/dictionary/promptly (accessed July 9, 2021).

Stewart and Ealom were legally stopped due to traffic violations.

Ealom did not notify police that he had a firearm in his possession until after

conversing with police for approximately four minutes and not until after Det. Hess

asked him if he had any weapons on his person. (Tr. 21.) Therefore, Ealom’s failure to promptly notify police of the concealed weapon constituted a carrying a concealed

weapons offense in violation of R.C. 2923.12(B).1 See State v. Nelson, 2d Dist.

Montgomery No. 22718,

, ¶ 46 (Defendant’s failure to inform police

officers of a concealed weapon as required by R.C. 2923.12(B)(1) gave officers

probable cause to believe the gun was evidence of a carrying concealed weapon

violation.); State v. White, 8th Dist. Cuyahoga No. 92229,

, ¶ 14

(holding that defendant violated R.C. 2923.12(B)(1) where defendant voluntarily

produced an Ohio I.D. to police but failed to inform police of the presence of a

firearm in the vehicle during the exchange). Thus, Det. Hess properly seized the gun

pursuant to the plain view doctrine.

Having discovered a concealed weapon in the Jeep, Detectives Hess

and Allen had probable cause to search the Jeep. Under the automobile exception,

police may search a vehicle without a warrant if there is probable cause to believe

that the vehicle contains contraband, and exigent circumstances necessitate a search

or seizure. State v. Mills,

,

(1992); Maryland

v. Dyson,

,

,

(1999). “A vehicle’s

mobility is the traditional justification for this exception to the warrant

requirement.” State v. Warnick, 2d Dist. Miami No. 2019-CA-14,

, citing

;

. “[T]he automobile exception does not have

1 R.C. 2923.12(B) provides that “[n]o person who has been issued a concealed handgun license shall * * * fail to promptly inform any law enforcement officer who approaches the person after the person has been stopped that the person has been issued a concealed handgun license and that the person then is carrying a concealed handgun[.]” a separate exigency requirement: ‘If a car is readily mobile and probable cause exists

to believe it contains contraband, the Fourth Amendment * * * permits police to

search the vehicle without more.’”

, quoting Pennsylvania v. Labron,

,

,

(1996).

Having found an undisclosed concealed weapon in the Jeep,

Detectives Hess and Allen had probable cause to search the vehicle for additional

weapons. In State v. White, 8th Dist. Cuyahoga No. 92229,

, we

held that police had probable cause to search the defendant’s vehicle after learning

that he violated R.C. 2923.12(B)(1) by failing to inform police during a stop that he

was carrying a concealed weapon. See also State v. Fields, 4th Dist. Athens No.

96CA1742,

(Dec. 2, 1996) (holding that police had

probable cause to search the defendant’s vehicle after learning that he illegally

possessed a concealed weapon in the trunk).

As previously stated, Ealom committed a concealed weapons violation

by failing to disclose the existence of his gun to police during the traffic stop.

Therefore, Detectives Hess and Allen had probable cause to search the Jeep for

additional weapons without a warrant.

While searching the Jeep for weapons, Det. Hess found multiple cell

phones and a large roll of blank lottery tickets. (Tr. 25.) Det. Hess testified, based

on his training and experience investigating drug trafficking, that these items were

“indicators of drug trafficking.” (Tr. 25.) The Ohio Supreme Court has held that the

discovery of other indicia of criminal activity in the vehicle during a search gives rise to probable cause to search other areas of the vehicle, including containers that

could contain contraband. State v. Vega,

,

,

; State v. Taylor, 8th Dist. Cuyahoga No. 108322, 2020-Ohio-

5079, ¶ 15 (en banc).

After finding a roll of blank lottery tickets, Detectives Hess and Allen

searched the back seat of the car, including a pouch affixed to the back of the

passenger seat, where they found a scale with drug residue. They also found bags of

cocaine and heroin inside a hidden compartment of a hairbrush. Because they had

probable cause to search the vehicle, we find the search was lawful, and the evidence

found during the search should not have been suppressed.

We, therefore, sustain the sole assignment of error.

Judgment reversed. We remand the case to the trial court for trial.

It is ordered that appellant recover from appellees 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., CONCURS WITH SEPARATE ATTACHED OPINION; LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE ATTACHED OPINION

SEAN C. GALLAGHER, P.J., CONCURRING:

I concur fully with the majority, but write separately to briefly discuss

the type of police enforcement underlying the facts of this case.

Traffic enforcement should normally be conducted by a uniformed

officer in a marked cruiser and stops initiated to enforce traffic infractions. Parma

Hts. v. Nugent,

,

(M.C. 1998). The practice of

undercover observation coupled with calling in uniformed officers in a marked

cruiser (who saw nothing of the original traffic violation) will invariably raise

surveillance concerns when part of a concerted effort to stop motorists for further

investigations based on the pretext of spotting traffic infractions. Crimes are indeed

uncovered and thwarted at times by such practices, but of course, that conduct

comes at a price in the relationship between police officers and citizens.

There is certainly a lesser expectation of privacy in a motor vehicle,

but the fine line between police enforcement and the protections of the Fourth

Amendment are put to the test in scenarios as the one that played out in this case. The decision in this case hinged on a few critical facts that if slightly different could

have taken the outcome in another direction.

Officers face difficult challenges in enforcing laws, but it is always

important for them to assess their methods and how those methods impact the

community they serve. Although I share some of the concerns raised in this case,

the law compels reversal.

LARRY A. JONES, J., DISSENTING:

I respectfully dissent. Of particular concern to me in this case is the

majority’s finding that “Ealom’s failure to notify police of the concealed weapon

constituted a carrying-a-concealed-weapons offense in violation of R.C.

2923.12(B).” I would find that Ealom properly notified the police that he had a

concealed weapon and license to carry one.

Specifically, when Detective Hess asked Ealom if he had any weapons

on his person, Ealom responded, “Yes. I have a concealed carry.” The record

demonstrates that Ealom indeed had a license to carry a concealed weapon, but the

majority finds that Ealom did not “promptly inform” the police of the weapon and

that he had a license to have it. R.C. 2923.12(B). The majority cites State v. Lyle,

1st Dist. Hamilton No. C-190447,

, State v. Nelson, 2d Dist.

Montgomery No. 22718,

, and State v. White, 8th Dist. Cuyahoga

No. 92229,

, in support of its finding that Ealom failed to properly

inform the police of the weapon. I believe Lyle is more supportive of my position that Ealom properly notified the police of his carrying concealed weapon license,

and I find Nelson and White distinguishable from this case.

In Nelson, an officer stopped the defendant after observing the vehicle

the defendant was driving cross over the right shoulder lane line. In speaking with

the defendant, the officer noticed that the defendant was extremely nervous and

unable to accurately tell the officer where he was headed. Therefore, the officer

called for back-up assistance. When another officer arrived, a pat-down search of

the defendant was performed and revealed an empty gun holster. The police asked

the defendant where the gun was; the defendant responded that it was in the car

between the seats. As the defendant was being placed in the police cruiser, another

officer saw “in plain sight, the handle of a gun between the driver and passenger

seats.” Id. at ¶ 14. The police questioned the defendant about the gun. He admitted

that it was his and that he did not have a carrying concealed weapon license. He was

charged with and convicted of improperly handling a firearm in a motor vehicle. The

conviction was upheld on appeal.

Nelson is distinguishable from this case for two reasons. First, the

timing is different. In Nelson, the defendant was already out of his vehicle when the

police discovered that he had a gun. Here, Ealom told the police that he had a gun

as he was exiting the vehicle. Second, and most importantly, the defendant in

Nelson did not have a carrying-concealed-weapon license, while, here, Ealom did.

Likewise, in White, after the defendant was ordered out of his vehicle

so that he could be placed under arrest, he informed the police that he “thought” there was a gun in the vehicle, and his mother had put it in the center console. Id.

at ¶ 6. The police did retrieve a gun from the vehicle, and the defendant’s mother

denied the gun was hers. Most importantly, the defendant in White did not have a

carrying-concealed- weapon license.

This case is more akin to Lyle, 1st Dist. Hamilton No. C-190447, 2020-

Ohio-4683. In Lyle, the defendant (Lyle), like Ealom here, was convicted of carrying

a concealed weapon for failing to promptly inform the officers that he possessed a

concealed handgun license and that there was a firearm in the vehicle. Lyle was a

passenger in a parked vehicle (Ealom was a passenger in Stewart’s vehicle in this

case). The police were in the area of the parked vehicle, responding to a report of

gunshots. When the police saw that Lyle and another person were in the vehicle,

they began to approach. As they approached the vehicle, one of the officers saw Lyle

twice turn toward the back seat and then back to the front.

One of the officers approached the front passenger door, where Lyle

was seated, and asked Lyle to roll the window down, which Lyle did. The officer

asked Lyle and the driver if they had heard any gunshots; both responded that they

had not. According to the officer, “at that point he could smell burnt and raw

marijuana coming from the vehicle, could see marijuana residue on the driver’s

pants, and observed what appeared to be an open container of alcohol in the center

console.” Id. at ¶ 5. The officer did not mention what he observed to the driver or

Lyle at that time, however. The officer asked the driver if he could talk to him briefly. As the

officer walked over to the driver’s side door, he asked another officer to watch the

passenger’s side, where Lyle was. The driver got out of the car and walked back

toward the other officer. The officer ordered the driver to face the car and patted

him down. The officer then asked the driver, “Hey, where’s your weed at?” Id. at ¶

6. The driver denied having any. The officer then handcuffed the driver, sat him

down on the curb, and questioned him about the marijuana. Three minutes and ten

seconds into the video, the officer standing by Lyle’s door turned toward the other

officer and said, “There’s a gun in the backseat.” Id.

The officer who was by Lyle told him, “I’m going to put you in

handcuffs alright? You’re not in trouble, but we’re going to put you in handcuffs.”

Id. at ¶ 7. While the police removed Lyle from the car and patted him down, Lyle

told them that he had a carrying-concealed-weapon license; the police found his

license in his wallet. The police asked Lyle why he had not told them earlier, and

Lyle said that he had told the one officer that had been standing by his door. The

officer who conducted the pat-down search testified that during the pat-down he

discovered that Lyle was wearing an empty holster, prompting him to believe that

Lyle had moved the firearm to the backseat as the police approached the car.

The police retrieved the firearm, which had been partially hidden

under a booster seat in the backseat of the car. Lyle was charged for failing to promptly inform the officers of the firearm and his license.2 After a bench trial, Lyle

was found guilty of carrying a concealed weapon in violation of R.C. 2923.12(B)(1)

for failing to promptly inform the officers that he possessed a concealed-handgun

license and that there was a firearm in the vehicle. Lyle appealed, contending that

the evidence was insufficient to sustain the conviction. The First Appellate District

agreed.

The first issue presented in Lyle ─ at what point during the interaction

was Lyle stopped for a law-enforcement purpose ─ is not at issue in this case. Here,

the stop was for a law-enforcement purpose from the beginning. But the second

issue presented in Lyle ─ when stopped, did Lyle “promptly inform” the police of

the firearm and that he had a license ─ is, in my opinion, the salient issue in this

case. R.C. 2923.112(B)(1). I believe Ealom promptly informed the police.

In Lyle, the First Appellate District held that Lyle’s initial interaction

with the police was a consensual encounter, but became a law-enforcement stop

when the “officers prepared to remove him from the vehicle, by which time

defendant had informed a deputy of the firearm, and informed him shortly

thereafter that he possessed a concealed-handgun license.” Id. at ¶ 27. That was

after the police had already spotted the weapon in plain view. Yet still, the First

Appellate District found that Lyle timely informed the police that he had a weapon.

Here, Ealom informed the police of the gun as he was being removed from the

2 Fentanyl was also discovered in the vehicle, but the grand jury did not charge Lyle

with that. vehicle, and prior to the police seeing it. In my view, he properly informed them;

therefore, the subsequent search of the car, which was based on the police’s view

that they were not properly informed, was invalid.

Therefore, I believe the evidence found as a result of the search should

have been suppressed; I would affirm the trial court’s decision granting Stewart and

Ealom’s motions to suppress and overrule the state’s assignment of error.