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State of Ohio v. James Huey

October 27, 2011

STATE OF OHIO PLAINTIFF-APPELLANT
v.
JAMES HUEY DEFENDANT-APPELLEE



Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-536469

The opinion of the court was delivered by: Mary Eileen Kilbane, A.J.

Cite as

State v. Huey,

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

BEFORE: Kilbane, A.J., Celebrezze, J., and Keough, J.

{¶1} Plaintiff-appellant the state of Ohio appeals from the trial court order that granted the motion to suppress evidence filed by defendant-appellee James Huey.

{¶2} The state presents one assignment of error. The state argues the trial court incorrectly determined the police investigative search conducted of Huey violated the Fourth Amendment's prohibition against unreasonable searches and seizures. Upon a review of the record, this court disagrees. Consequently, the trial court's order is affirmed.

{¶3} Huey was indicted in this case on three counts -- having a weapon while under disability, carrying a concealed weapon, and possessing a defaced firearm, all with forfeiture specifications, based upon an incident that occurred on April 15, 2010 at approximately 1:50 a.m. During their testimony at the hearing on Huey's motion to suppress evidence, the state's two witnesses provided differing accounts of the incident.

{¶4} East Cleveland police officer Brandon Zinner testified that he was on routine patrol with his sergeant when he observed a vehicle that appeared to be "drag racing" with another. The two officers followed the vehicles, lost sight of the second vehicle, but saw the first one "run a red light at Superior [Avenue] and Coventry [Road]."*fn1 The officers conducted a traffic stop of the vehicle.

{¶5} When the vehicle stopped, Zinner observed four men inside; the officers called for back up before approaching. Officer Robert Nicholson responded.

{¶6} Nicholson testified the sergeant directed him to assist Zinner at the passenger side of the vehicle. Nicholson stated there were three men inside the car. He also stated that, as the sergeant spoke to the driver, Nicholson walked toward the car and saw the rear-seat passenger, Huey, lean down.

{¶7} Nicholson testified he asked Huey to place his hands on the front seat headrest. Rather than complying, Huey "kept his hands down and he was still moving," so Nicholson repeated the request.

{¶8} Nicholson testified that Huey then obeyed, and, at that time, Nicholson used his flashlight to illuminate the floor area; he observed that Huey had an open beer can between his feet. Nicholson testified that this was an "arrestable offense."

{¶9} Nicholson stated he told Huey to step out of the vehicle "because [Nicholson did not] know the extent of what he was reaching for." Nicholson testified he believed Huey had been concealing something. Nicholson also testified that he asked Huey for identification, but Huey could not produce anything.

{¶10} Nicholson stated that he removed Huey from the car and escorted him around to the driver's side before conducting a pat down search; Nicholson offered no explanation for doing so. Nicholson testified that, as Huey faced the vehicle with his hands on the roof and Nicholson commenced the pat down, Huey dropped his left hand toward his waistband.

{¶11} Nicholson stated he "grabbed" Huey's hand and placed it back on the roof, ordered Huey not to do that again, and restarted the pat down. However, Huey "took his hand and dropped it again." At that point, Nicholson told Huey he was putting him in handcuffs, but, before Nicholson could follow through, Huey "took his right elbow [and] swung it back," causing Nicholson to duck. Huey then "took off running." As Nicholson "tackled him to the ground, [a] gun fell out."

{ΒΆ12} Zinner recollected the incident differently. Zinner testified that Nicholson placed Huey in handcuffs as soon as Huey exited the vehicle because Huey had an "open container" and that was an "arrestable offense." Zinner also stated ...


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