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State of Ohio v. andre Mcgowan

November 3, 2011


Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-541216

The opinion of the court was delivered by: Melody J. Stewart, J.:

Cite as State v. McGowan,




BEFORE: Stewart, J., Blackmon, P.J., and Cooney, J.

{¶1} The state of Ohio appeals from a ruling that suppressed marijuana seized from defendant-appellee, Andre McGowan. Police gave chase to two men, one whom they later claimed was McGowan, after they unexplainedly fled upon seeing the officers. They located him in an apartment building and found the marijuana during a pat-down they conducted when he appeared to reach into his pocket. The court was unpersuaded that the police accurately identified McGowan as the person who fled into the apartment. The state's sole assignment of error contests this ruling.


{¶2} Two police officers testified at the suppression hearing. They were partners in a patrol car and received an order to investigate a complaint of drug activity in front of an apartment building. When they arrived at the site of the complaint, they saw a group of people gathered in front of the building. One of the officers testified that two men, upon seeing the police car, "ran inside the building"; the other officer testified that they "quickly walked in" the building. The officers identified themselves as police officers and told both men to stop, but were ignored. The apartment building was a three-story building with 19 apartments. It had a center staircase with windows that allowed the officers to watch the two men climb the stairs and enter a second-floor apartment.

{¶3} The building had a locked front entrance that prevented the officers from following the men. After a "few moments," a male exited the same apartment that the two men entered and asked the officers for an explanation. The male identified himself as the tenant of the apartment. When the officers asked the tenant to identify the two men who ran into the apartment, the tenant told them that they were "some people he knew, they weren't really friends, but they were acquaintances, and he was surprised to see them." The officers asked if they could speak to the men, so the tenant took them inside. By this time, two more police officers had arrived as backup.

{¶4} The police entered the apartment and saw McGowan and another male sitting on the couch. McGowan "seemed very nervous." They asked McGowan why he ran, at which point McGowan started reaching into his pocket. Concerned that he might be reaching for a weapon, the police ordered McGowan to put his hands on his head and then conducted a pat-down for their own safety. During the pat-down, an officer felt "numerous small hard lumps"that he knew from experience were drugs. He "visually inspected" the pocket by pulling it open to ensure that there were no needles or razor blades that could harm him. He then removed 14 individually-wrapped bags of marijuana from McGowan's pocket.

{¶5} The tenant testified for McGowan and said that he had invited McGowan to visit. They were talking and drinking beer when his girlfriend came over to visit. The tenant went downstairs to let her in and saw the police. The police told him to hold the door and asked, "who ran in through [tenant's] apartment?" The tenant replied, "[n]o one." He said that the police grabbed him by the arm and walked him up the stairs, telling him "if [he doesn't] open the door, they'll take me to jail." They entered the apartment and the police ordered the tenant to restrain his dog. After he secured the dog, he learned from the police that they found drugs on McGowan. The tenant testified that McGowan and the other male had been in his apartment the entire time and that they did not leave the apartment and then run back inside.

{¶6} Ruling from the bench, the court stated that it was "troubled that the police had the right person." It wondered how the police were able to claim that they saw McGowan run into the building, climb a flight of stairs, and enter the apartment in the daylight:

{ΒΆ7} "So you just ask yourself: how exactly in essentially daylight, 7 o'clock in August, do you look inside a building? *** And then you have to accept that in this 19-suite apartment building the person who just this second is opening the door to the building is the person who belongs to ...

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