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State v. Anderson

Court of Appeals of Ohio, Second District, Montgomery

January 19, 2018

STATE OF OHIO Plaintiff-Appellee
v.
DEWAN ANDERSON Defendant-Appellant

         Criminal Appeal from Common Pleas Trial Court Case No. 16-CR-3203

          MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Attorney for Plaintiff-Appellee.

          J. ALLEN WILMES, Atty. Attorney for Defendant-Appellant.

          OPINION

          HALL, J.

         {¶ 1} Dewan Anderson appeals from his conviction and sentence following a no-contest plea to one count of cocaine possession, a fifth-degree felony.

         {¶ 2} In his sole assignment of error, Anderson challenges the trial court's denial of a suppression motion he filed prior to entering his plea. Specifically, he contends the trial court erred in finding that the police officer had a reasonable, articulable suspicion of criminal activity to justify stopping and detaining him.

         {¶ 3} The only witness at the suppression hearing was Dayton police officer Jordan Wortham. He testified that he was on patrol on the afternoon of October 5, 2016 when he responded to a report of a silent burglary alarm being activated at a cell-phone business located at 2001 North Main Street. He promptly responded to that address, parked his cruiser across the street facing the business, and monitored the scene. (Tr. at 7, 9). Within a matter of seconds, Wortham saw Anderson walk around the side of the business toward him. Upon seeing the marked cruiser, Anderson abruptly stopped, turned around, and walked the other direction. (Id. at 10). Wortham found Anderson's actions suspicious and decided to make an investigatory stop. He explained his reasoning as follows:

As I look at the business I see the defendant, Mr. Anderson, walk to the left side which would be the south side of the business. I see him appear from directly behind it and he was walking casually until he looked up at my cruiser, and as he looked up at my cruiser he abruptly stopped. * * * [T]hen he quickly turned away facing west away and proceeded to briskly walk so he hurried his walk. He wasn't casually walking like he was when he was directly behind the business until he saw me.
So that heightened my suspiciousness of the fact that he abruptly stopped and looked at me, turned away really fast. The business alarm was activated. He's in close proximity of the business. He's a few feet away from the business. I have to stop him to investigate further into his possible involvement of the burglar alarm being activated at the business.

(Id. at 10).

         {¶ 4} Wortham proceeded to testify that he did not recall seeing anyone else in the area. (Id.). After observing Anderson make an abrupt about-face and walk out of sight, Wortham caught up to him in the cruiser. (Id. at 12). He approached on foot and ordered Anderson to stop. (Id. at 12). As he did so, he noticed a "distinct bulge" protruding from Anderson's waist band. (Id.). Based on his experience and the appearance of the bulge, Wortham suspected that it might be a handgun, particularly in light of the fact that he was investigating an activated alarm and a possible burglary in a noted high-crime area. (Id. at 12-13). As a result, he decided to conduct a weapons frisk. (Id. at 13). Upon doing so, he recognized the "distinct" feel of packaged marijuana and pill capsules where he saw the bulge. (Id.). As he conducted the pat down, he also detected a strong odor of marijuana coming from Anderson. (Id. at 14).

         {¶ 5} On cross examination, Wortham reviewed a cruiser-cam video of the incident. Wortham acknowledged that the video actually showed three or four people other than Anderson entering or leaving the store or walking past. (Id. at 17-18). Wortham explained that he did not approach any of these people because they were "not suspicious." (Id. at 19). Unlike Anderson, who abruptly stopped, turned around, and disappeared from sight upon seeing the police cruiser, these other people appeared to be just walking. (Id. at 18-20). Wortham also admitted that Anderson was not free to go upon being approached by the officer. (Id. at 21). Wortham testified that he patted Anderson's outer clothing and immediately knew that what he felt in Anderson's waist band was drugs. (Id. at 24, 33). In fact, Anderson possessed multiple plastic baggies containing marijuana and pill capsules. (Id. at 26).

         {¶ 6} In the following exchange with defense counsel, Wortham reiterated his suspicion when he observed Anderson:

Q. Okay. You had indicated that you thought he was suspicious. What made you think this guy was suspicious? Because he walks up and ...

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