Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
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
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 ...