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State v. Stocks

Court of Appeals of Ohio, Second District, Montgomery

July 19, 2019

STATE OF OHIO Plaintiff-Appellee
CHARLES F. STOCKS Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2017-CR-1835.

          MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Attorney for Plaintiff-Appellee.

          SUSAN F. SOUTHER, and JACOB S. SEIDL, Attorney for Defendant-Appellant.


          FROELICH, J.

         {¶ 1} After the trial court overruled his motion to suppress, Charles F. Stocks pled no contest to aggravated possession of drugs, a felony of the fifth degree. The trial court sentenced him to community control. Stocks appeals from his conviction, claiming that the trial court erred in denying his motion to suppress. For the following reasons, the trial court's judgment will be reversed, and the case will be remanded for further proceedings.

         I. Factual and Procedural History

         {¶ 2} The evidence at the suppression hearing consisted of the testimony of Dayton Police Officer Jonathan Rudy, a video-recording from Rudy's cruiser, and maps of the area offered by the defense. The evidence established the following facts.

         {¶ 3} On June 13, 2017, Officer Rudy was part of the Community Problem Response Team, pursuant to which he was assigned to address a particular neighborhood's complaints; the complaints oftentimes related to drug houses or problems with drugs in the neighborhood. Rudy described his assigned neighborhood as a "high drug and crime area."

         {¶ 4} At approximately midnight on June 13, Officer Rudy was headed northbound on South Garfield Street, a residential street, in a marked cruiser, when he observed Stocks walking eastbound on McKinley Street toward the cruiser. Rudy saw Stocks "rapidly change directions to go south into an alley that sits along 30 McKinley." (Tr. at 8.) When asked if he saw anything else about Stocks or his movements, Officer Rudy responded, "Just that he was walking extremely fast." (Tr. at 9.) Rudy later stated that Stocks was "pretty close to running," but not running.

         {¶ 5} Officer Rudy turned around on South Garfield Street and headed southbound. He testified that he "wanted to stop and talk to Mr. Stocks. I believed at that point that he was trying to evade me and evade any contact with police." (Tr. at 10.) Officer Rudy encountered Stocks, walking eastbound, at the corner of South Garfield and East Fourth Street. Officer Rudy stated that when the cruiser became visible, Stocks put his right hand down into his right pocket. Rudy pulled up beside Stocks and exited the cruiser to made contact with Stocks, who was then walking past the passenger side of the cruiser. Officer Rudy did not have his overhead lights on, nor did he use his spotlight. According to Officer Rudy, he did not know Stocks prior to that day and did not observe Stocks committing any criminal act.

         {¶ 6} Stocks stopped walking when Rudy got out of his cruiser. Officer Rudy told Stocks to "put his hands up for me" due to officer safety concerns. (Tr. at 13-14.) The officer then asked Stocks for his name, to which Stocks responded, "Freddie."[1] Stocks then put his left hand into his left pocket, and Officer Rudy again told Stocks to take his hands out of his pockets. Stocks indicated that he did not have identification with him. When asked at the suppression hearing what he intended to do with Stocks's identification, Officer Rudy testified, "Just run him through records. Make sure he wasn't wanted, anything like that." (Tr. at 16.)

         {¶ 7} Officer Rudy asked Stocks if he (Stocks) had anything that would poke or stick the officer. Stocks responded that he did not have anything. The officer then asked Stocks for consent to search Stocks's pockets. Officer Rudy testified that Stocks nodded, giving his consent. The trial court found that the cruiser camera recording did not show that Stocks gave any audible response to the request to search, and that it showed that Officer Rudy touched Stocks's elbow prior to asking his consent to search. The recording further showed that Stocks had a cigarette pack in his hand, and that he lit and smoked a cigarette when Officer Rudy searched him. Rudy testified that he did not restrain Stocks in any way, but Stocks was not free to leave.

         {¶ 8} Although not discussed at the suppression hearing, Officer Rudy located drugs on Stocks's person. The following month, Stocks was indicted for aggravated possession of drugs, i.e., carfentanil, in violation of R.C. 2925.11(A).

         {¶ 9} On July 23, 2018, Stocks moved to suppress the evidence against him. He claimed that the stop and search violated his constitutional rights, as the officer did not have reasonable suspicion that he was engaged in any criminal activity. He further claimed, generally, that any statements he made were involuntary and in violation of his Fifth ...

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