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State v. Thomas

Court of Appeals of Ohio, Tenth District

March 1, 2018

State of Ohio, Plaintiff-Appellant,
v.
Titus Thomas, Defendant-Appellee.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 16CR-3963)

         On brief:

          Ron O'Brien, Prosecuting Attorney, Steven L. Taylor and Seth L. Gilbert, for appellant.

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

          DECISION

          HORTON, J.

         {¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the Franklin County Court of Common Pleas in which the trial court granted the motion to suppress of defendant-appellee, Titus Thomas. For the following reasons, we affirm the judgment.

         I. Facts and Procedural History

         {¶ 2} Thomas was indicted on one count of carrying a concealed weapon, a violation of RC. 2923.12, and one count of having a weapon while under a disability, a violation of RC. 2923.13, for an offense alleged to have occurred on or about July 12, 2016. (July 22, 2016 Indictment.) Thomas filed a motion to suppress the evidence that the state intended to introduce as evidence to prove its case, alleging it constituted fruits of an unconstitutional search and seizure. (Sept. 19, 2016 Mot. to Suppress.)

         {¶ 3} The trial court held an evidentiary hearing on the motion on December 6, 2016. At the hearing, the state called Columbus Police Officer Joseph Houseberg as the first witness. Officer Houseberg testified that he has been a patrol officer for nine years and was on patrol with his partner, Officer Brumfield, on July 12, 2016, at approximately 6:00 p.m. They were in a marked cruiser travelling eastbound on Hildreth Avenue when they saw Thomas walking eastbound on the north side of the street. Both officers noticed a single firearm magazine attached to his belt on his left hip. Officer Houseberg stated that he saw Thomas look back towards the cruiser and then move his shirt so it covered the magazine. The officers stopped the cruiser in front of 1436 Hildreth Avenue and saw Thomas turn to go up the stairs to the house. When Thomas "turned, his right side, his shirt kind of pressed against his right side and gave a textbook outline of a - - of a firearm." (Tr. at 12.) Officer Houseberg testified he is very familiar with a firearm concealed in that manner. (Tr. at 13-14.)

         {¶ 4} Officer Brumfield asked Thomas whether he had a permit for the gun and Thomas replied, "what gun and went up the stairs and into the house immediately." (Tr. at 12.) The officers requested backup help and exited the cruiser. Officer Houseberg went around the side of the house in order to monitor the back and prevent Thomas from exiting through the back of the house. Officer Brumfield went to the front door and kicked the door open. Officer Houseberg heard Officer Brumfield giving Thomas commands to get on the ground and so Officer Houseberg followed them into the house. Officer Houseberg deployed his taser on Thomas and the officers took Thomas into custody. Thomas had a firearm on his right side and the magazine on his left side.

         {¶ 5} Officer Bryan Blumfield testified that he and Officer Houseberg were on patrol and saw a magazine and holster on Thomas as he was walking eastbound on Hildreth Avenue. Officer Brumfield stated he saw Thomas look back toward the cruiser and then move his shirt to cover the magazine. Officer Brumfield testified that he asked Thomas whether he had a permit for that pistol. Thomas answered, he "did not have a gun" and then he turned to his right and Officer Brumfield saw "a clear outline of the firearm on his hip." (Tr. at 40-41.) Thomas then "made a straight dash into the house." (Tr. at 28.) Officer Brumfield stated Thomas was "running" inside and the officer pursued him. (Tr. at 41.)

         {¶ 6} Officer Brumfield stated that he followed Thomas into the house. The screen door was open, but the front door was closed so he kicked it open. When Officer Brumfield was struggling to get one of Thomas' hands behind his back, Thomas' shirt lifted and the firearm was visible. (Tr. at 33.) Officer Brumfield testified that carrying a magazine without a firearm is not a crime.

         {¶ 7} Thomas called two witnesses. The first witness was Darlene Williams who lives at 1436 Hildreth Avenue with her husband and three children. She had invited Thomas over for a party for her birthday. She drove Thomas to her house and he had been there approximately two hours when he walked to the corner store to buy potato chips. She drove to the liquor store at the same time. As she returned, she parked in front of her house and Thomas had also returned and was walking onto the porch. Williams heard the police officer ask Thomas if he had a permit and Thomas denied having a weapon. Thomas then went into the house and closed the door. Williams stated that the officer "jumped out of the car with his gun" and "kicked the door." (Tr. at 53.) Williams heard the officer tell Thomas, "Get the F down, get the F down." (Tr. at 53.) She did not enter the house because the officers told her family to stay outside, but she could see Thomas on the ground and an officer with his taser and gun drawn. (Tr. at 53.)

         {¶ 8} The final witness was Sabrea Watts, Williams' daughter. Watts testified that she lives at 1436 Hildreth Avenue with her parents and siblings. She attends Wright State University but was home during the summer. Thomas was at her house for a birthday party. He had been at the house for several hours when he walked to the store. Watts was sitting on the front porch when Thomas returned with chips. Watts testified that when Thomas was opening the screen door, the police officers stopped in front of her house and asked Thomas if he had a permit. Watts recalled that Thomas denied having a weapon and went inside the house. The police officers followed Thomas with their guns drawn and kicked open the door. (Tr. at 70-71.) Watts stated that Thomas was on the ground but the officers were yelling, "Get the fuck on the ground, get the fuck on the ground." (Tr. at 71.) Watts saw the officers use the taser on Thomas but never saw Thomas with a firearm. Watts testified that the door was slightly ajar when the officer kicked it open. (Tr. at 77.)

         {¶ 9} After the hearing, the trial court concluded that the police officers did not have the legal authority to seize and search Thomas without a warrant. The trial court granted the motion to suppress.

         II. Assignments of Error

         {¶ 10} The state of Ohio filed a timely notice of appeal and asserts four assignments of error:

[I.] THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT THERE WAS NO PROBABLE CAUSE TO ARREST DEFENDANT AND WHEN IT FURTHER CONCLUDED THAT THE HANDGUN MUST BE SUPPRESSED BECAUSE OF THE ...

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