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State v. Michael

Court of Appeals of Ohio, Tenth District

September 10, 2013

State of Ohio, Plaintiff-Appellee,
v.
Shawnquel A. Michael, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 11CR-10-5252

Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.

Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellant.

DECISION

KLATT, P.J.

{¶ 1} Defendant-appellant, Shawnquel A. Michael, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas. Because the trial court did not err by denying appellant's motion to suppress, we affirm that judgment.

I. Factual and Procedural Background

{¶ 2} On the afternoon of August 30, 2011, Columbus Police Officer Doug Wilkinson was working as part of the police department's community response team, a specialized police safety initiative designed to combat crimes and gun violence. Around 4:30 p.m., he and his partner responded to an officer-in-trouble call in Rainbow Park on the east side of Columbus. Other officers had responded to an earlier call that persons in the area were pointing guns at each other and that a man with a gun had been seen walking away from that area toward the intersection of Fairwood and East Livingston Avenues. The officers at the scene needed help to control the crowd that had gathered in the area. Wilkinson arrived at the area and observed one suspect who had been tasered and was lying on the ground. After police secured and cleared the scene, Officer Wilkinson began to patrol the area in order to maintain a police presence there.

{¶ 3} About an hour later, while still patrolling the area, Officer Wilkinson observed appellant walking near the intersection of Fairwood and East Livingston Avenues. Officer Wilkinson saw a bulge on the right side of appellant's clothing. Appellant hesitated when he saw the police car and moved his hand to touch the area of the bulge. Based on Officer Wilkinson's training and experience, he concluded that appellant had a gun and, in fact, told his partner that "that guy is carrying a gun right there." (Tr. 20.) Officer Wilkinson got out of his car and approached appellant. Without saying anything, Officer Wilkinson reached for the area where he observed the bulge in appellant's clothing. He lifted appellant's shirt and grabbed a gun from appellant's waistband. Appellant ran away but was later apprehended and arrested.

{¶ 4} As a result of these events, a Franklin County Grand Jury indicted appellant with one count of carrying a concealed weapon in violation of R.C. 2923.12. Appellant entered a not-guilty plea to the charge and filed a motion to suppress the gun found by the officer. He argued that Officer Wilkinson discovered the gun during an unreasonable and warrantless search not supported by reasonable suspicion or probable cause in violation of his Fourth Amendment rights.

{¶ 5} The trial court held a hearing on appellant's motion. Officer Wilkinson testified to the above version of events regarding his search of appellant. The trial court denied appellant's motion to suppress, concluding that the officer's search was reasonable in light of the totality of the circumstances. The trial court noted the officer's belief that appellant had a weapon on him and that the officer's conduct of lifting appellant's shirt was also reasonable.

{¶ 6} After the trial court's decision, appellant entered a no-contest plea to one count of carrying a concealed weapon. The trial court accepted the plea, found appellant guilty, and sentenced him accordingly.

II. The Appeal

{¶ 7} Appellant appeals and assigns the following errors: First Assignment of Error

The lower court erred in determining that the stop of the Appellant was supported by the requisite level of suspicion announced in Terry v. Ohio, 392 U.S. 1 (1968). All evidence seized as a result of this unlawful encounter should have been suppressed pursuant to the Fourth and Fourteenth Amendments of the ...

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