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State v. Thomas

Court of Appeals of Ohio, Second District, Montgomery

November 17, 2017

STATE OF OHIO Plaintiff-Appellee
LORENZO R. THOMAS Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 16-CR-2075

          MATHIAS H. HECK, JR., by DYLAN G. SMEARCHECK, Atty. Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellee

          MATTHEW SUELLENTROP, Atty. Attorney for Defendant-Appellant


          HALL, P.J.

         {¶ 1} Lorenzo R. Thomas appeals from his conviction and sentence following a no-contest plea to one count of heroin possession, a fifth-degree felony.

         {¶ 2} In his sole assignment of error, Thomas challenges the trial court's denial of a suppression motion he filed prior to his plea. The motion sought suppression of evidence obtained as a result of an allegedly unlawful seizure. (Doc. #16).

         {¶ 3} The suppression issue proceeded to an April 5, 2017 hearing. The only witness at the hearing was Mark Orick, a Dayton police officer. Orick testified that on June 28, 2016, he was in a marked cruiser and wearing the uniform of the day. He was assigned to patrol public-housing properties, including the Hilltop apartments in Dayton. He was driving a patrol car with a passenger, Officer Zack O'Diam. While patrolling the Hilltop property at approximately 4:00 p.m., he observed a silver Buick with its windows down parked in a parking lot with one entrance. (Tr. at 7-8). Orick noticed that the two individuals in the Buick "appeared to be leaned back real far in their seats." (Id.). He circled his cruiser around again and reported what he had seen to another police officer, Jack Miniard, who was nearby in a separate cruiser. (Id. at 7). Orick then "went back to make contact with the individuals to determine one, if they belonged on the property, if they were visiting because at this point they were not making any movements to leave the car, to go to an apartment, they were just loitering in the parking lot." (Id.).

         {¶ 4} Miniard and Orick both pulled their cruisers into the parking lot. (Id. at 8). As Miniard did so, one occupant of the Buick exited the driver's side and fled on foot toward a nearby apartment. Miniard and O'Diam pursued this person. (Id.). Orick began to exit his cruiser to make contact with the Buick's other occupant, who was Thomas. As Orick did so, Thomas began running south. (Id.). Orick followed Thomas in the police cruiser, using the PA system to give him several commands to stop. (Id. at 9). After running about three blocks, Thomas stopped and Orick took him into custody. (Id. at 9-10). Orick handcuffed Thomas and placed him under arrest for obstructing official business based on his flight. (Id. at 10). As he conducted a search incident to arrest, Orick discovered two individually-wrapped baggies of heroin in Thomas' pocket. (Id. at 11).

         {¶ 5} On cross examination, Orick testified that his purpose in approaching the stopped vehicle was to engage in a consensual encounter to determine whether the occupants of the Buick "belonged on the property or not." (Id.). He testified that Miniard pulled in about ten to fifteen feet from the passenger's side of the Buick when the occupant on the driver's side fled on foot. (Id. at 12). Orick pulled in about fifteen feet from Miniard's cruiser. (Id.).

         {¶ 6} In response to questioning from the trial court, Orick stated that the Buick was not blocked in any way. (Id.). With regard to his concern about the occupants of the Buick lawfully being on the property, Orick explained: "* * * Due to the GDPM Management with the contract that individuals sign when they reside in GDPM properties that a very thorough contract determining what visitors they're allowed to have, and trespass individuals, and that's the biggest problem that GDPM has is trespassed individuals returning to the properties. And, we have the authority per GDPM management to check on individuals that are either on the trespass list or not on the trespass list." (Id. at 13). Orick also testified that no lights, sirens, or audible commands were used or given before the two occupants of the Buick fled. (Id.). He stated: "* * * [W]e just pulled into the lot and then the driver immediately bailed from the car and ran leaving the driver's side door open and Mr. Thomas began to run." (Id.).

         {¶ 7} One week after the suppression hearing, the trial court ruled from the bench and denied Thomas' motion. (Id. at 16-20). Based on Orick's testimony, the trial court found no show of authority and, therefore, no seizure prior to Thomas' flight on foot. The trial court further found that Thomas' flight constituted evasive behavior that provided reasonable suspicion of criminal activity. The trial court reasoned that Thomas' continued flight after Orick ordered him to stop provided probable cause to arrest him for obstructing official business. Finally, the trial court concluded that Thomas was searched incident to a lawful arrest. (Id.). The trial court filed a written decision journalizing its oral ruling. (Doc. # 20). Following the ruling, Thomas pled no contest to the charge against him. The trial court accepted the plea. It found him guilty and imposed community-control sanctions. (Doc. # 23).

         {¶ 8} On appeal, Thomas limits his argument to the trial court's first finding, namely that he was not seized prior to his flight on foot. Thomas asserts that, prior to his flight, the Buick in which he was sitting was subjected to an unlawful investigatory stop and he unlawfully was seized. (Appellant's brief at 7). In support, Thomas insists that there was a show of authority by the officers because they entered the parking lot in two cruisers "and essentially blocked any avenue of escape." (Id. at 8). He argues:

* * * The vehicle itself was then subject to a Terry stop without any reasonable suspicion of criminal activity. At that point, the driver of the Buick got out of the vehicle. The driver fled on foot and was pursued by Miniard and O'Diam. Mr. Thomas stayed in the vehicle. While Mr. Thomas remained seated in the car, there was a police cruiser (Officer Miniard's cruiser) pointing directly at where Mr. Thomas was sitting and another police cruiser immediately behind it. Mr. Thomas had just witnessed two officers engage in a foot pursuit of the driver and another officer was getting out of the second police cruiser. From that point forward, Mr. Thomas was the subject of an investigatory detention based on the totality of the circumstances, and the protections of the Fourth Amendment, and Article I, Section 10 of the Ohio Constitution attached. No reasonable person would have felt free to leave at that moment.
Critically, the encounter between Mr. Thomas and Officer Orick was not consensual. Rather, based on the totality of the circumstances, Mr. Thomas was subject to an investigatory detention in the absence of reasonable suspicion of criminal activity. Certainly, upon the driver's flight and subsequent pursuit by the police, no reasonable person or passenger in such a situation would have felt free to leave or felt free to otherwise terminate the encounter. To the contrary, any reasonable person in ...

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