[Cite as State v. Logan, 2011-Ohio-4124.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96190




                                    STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 JAKEEYAN LOGAN
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                 Case No. CR-539792

        BEFORE: Keough, J., Boyle, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: August 18, 2011
ATTORNEYS FOR APPELLANT

Iverson M. Jackson
420 Lakeside Place
323 West Lakeside Avenue
Cleveland, OH 44113

Steven M. Gaulding
75 Public Square
Suite 1111
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Margaret A. Troia
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶ 1} This case came to be heard upon the accelerated calendar

pursuant to App.R. 11.1 and Loc.R. 11.1.     Defendant-appellant, Jakeeyan

Logan (“Logan”), appeals the trial court’s decision denying his motion to

suppress. For the reasons that follow, we affirm.

      {¶ 2} In July 2010, Logan was charged with carrying a concealed

weapon. Logan filed a motion to suppress, arguing that the officers lacked
reasonable suspicion to justify the warrantless stop.      At the suppression

hearing, the following evidence was presented.

      {¶ 3} East Cleveland police officer John Donitzen testified that he was

working undercover with Sergeant Randy Hicks on the night of July 14, 2010

and patrolling a six or seven block area around Carolyn, Superior, Hayden,

and East 125th streets because it was “a problem area” for drug sales and

robberies. They were dressed in plain clothes with police vests over their

clothing and riding in an unmarked red pickup truck.

      {¶ 4} At approximately 1:30 a.m. as they were parked at the Marathon

gas station on the corner of Carolyn and Superior streets, the officers

observed a male wearing jeans and a black hooded sweatshirt sitting on a

bicycle across the street in a dimly lit area, facing their direction. The hood

portion of the sweatshirt was pulled up onto the male’s head and the strings

were pulled tightly around his face, exposing only his eyes, nose, and mouth.

Officer Donitzen testified that he found the male’s appearance to be unusual

for the weather because it was a relatively warm night. He also found the

manner in which the hood was tied to be suspicious because a majority of the

robbery reports they received from that area involved individuals who had

pulled their sweatshirt hoods down over their faces in a similar fashion.

      {¶ 5} Officer Donitzen testified that he and Sergeant Hicks activated

their police lights and drove their unmarked police pickup truck toward
Logan with the purpose of stopping him. Logan pedaled his bicycle down the

driveway toward the officers but started turning away from them when he

reached the street. According to Officer Donitzen, he and Sergeant Hicks

immediately exited the pickup truck and announced “police.” Logan stopped

peddling, rested his feet on the ground, stood up, and turned towards the

officers. At that time, Officer Donitzen could see the back half of a black

semi-automatic handgun sticking out of the side waistband of Logan’s jeans.

Officer Donitzen immediately yelled “gun,” removed it from Logan’s

waistband, and placed him under arrest for carrying a concealed weapon.

When Officer Donitzen removed the gun from Logan’s waistband, Sergeant

Hicks was standing directly in front of Logan. Logan testified that Sergeant

Hicks grabbed his arm before Officer Donitzen yelled “gun.”

     {¶ 6} When questioned regarding what prompted the officers to stop

Logan, Officer Donitzen responded that it was their intent to stop Logan

because of what he was wearing and because he was in the shadows. “Just

due to the fact that he was kind of lurking in the shadow[s] and what he was

wearing and how he had presented himself was in correlation with my past

training and experience of people that are going to rob somebody, so we were

just making sure everything was okay, you know.” When pressed, Officer

Donitzen testified that the officers’ specific reason for stopping Logan was

because he was a “suspicious person” due to the time and place. According to
Officer Donitzen, Logan made no furtive movements as they were watching

him and they did not see the gun in his waistband prior to approaching him.

      {¶ 7} The trial court denied Logan’s motion, concluding that the stop

was consensual and the gun recovered from Logan’s waistband was in plain

view. Logan subsequently entered a plea of no contest to the charge and was

found guilty by the court. He appeals, asserting in his sole assignment of

error that the denial of his motion was improper because the undercover

police officers lacked reasonable suspicion to justify the stop.   In effect,

Logan challenges the factual basis for the stop.

      {¶ 8} Appellate review of a motion to suppress presents a mixed

question of law and fact.        State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶8. In deciding a motion to suppress, the

trial court assumes the role of trier of fact. Id. A reviewing court is bound

to accept those findings of fact if they are supported by competent, credible

evidence.   Id.   But with respect to the trial court’s conclusion of law, we

apply a de novo standard of review and decide whether the facts satisfy the

applicable legal standard. Id., citing State v. McNamara (1977), 124 Ohio

App.3d 706, 707 N.E.2d 539.

      {¶ 9} In this case, the trial court concluded that the interaction

between the officers and Logan was consensual.       A consensual encounter

occurs when the police approach a person in a public place, engage the person
in conversation, and the person remains free to not answer or walk away.

State v. Jones, 188 Ohio App.3d 628, 636, 2010-Ohio-2854, 936 N.E.2d 529,

citing Florida v. Royer (1983), 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.E.2d

565.    The person “‘may not be detained even momentarily without

reasonable, objective grounds for doing so.’” Id., quoting Royer at 498. A

consensual encounter does not implicate the Fourth Amendment or trigger its

protections. Id., citing Florida v. Bostick (1991), 501 U.S. 429, 434, 111 S.Ct.

2382, 115 L.Ed.2d 389.

       {¶ 10} In this case, the officers were not engaging in a consensual

encounter when they activated their police lights and announced “police” as

they immediately exited their vehicle and approached Logan.              Logan

testified that Sergeant Hicks also stated “Stop. Don’t move.” No reasonable

person in Logan’s position would have felt free to leave because the activation

of police lights and the announcement of “police,” and possible police

directives, are significant signs of authority that makes a police-citizen

encounter considerably more intrusive than a simple consensual one. See

State v. Little, Clark App. No. 09-CA-122, 2010-Ohio-2923, ¶9 (activation of

overhead flashing lights by police officers in a marked police vehicle is not a

consensual encounter under the Fourteenth Amendment). Understandably,

the officers could have been activating their lights for their own safety

because they were driving in an unmarked pickup truck and dressed in plain
clothes in the early morning hours. Nevertheless, we do not find that the

stop was consensual.

      {¶ 11} Instead, we find that this interaction between the officers and

Logan was an investigatory stop, which constitutes a seizure for purposes of

the Fourth Amendment. A police officer may stop or detain an individual

without probable cause when the officer has reasonable suspicion based on

specific, articulable facts that criminal activity is afoot. Terry v. Ohio (1968),

392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889. Accordingly, an “investigatory

stop does not violate the Fourth Amendment * * * if the police have

reasonable suspicion that ‘the person stopped is, or is about to be, engaged in

criminal activity.’” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817

N.E.2d 864, ¶35, quoting United States v. Cortez (1981), 449 U.S. 411, 417,

101 S.Ct. 690, 66 L.Ed.2d 621.

      {¶ 12} Reasonable suspicion entails some minimal level of objective

justification, “that is, something more than an inchoate and unparticularized

suspicion or ‘hunch,’ but less than the level of suspicion required for probable

cause. State v. Jones (1990), 70 Ohio App.3d 554, 556-557, 591 N.E.2d 810,

citing Terry at 27. Accordingly, “a police officer may not rely on good faith

and inarticulate hunches to meet the Terry standard of reasonable suspicion.”

 Jones at 557.     Reasonable suspicion requires that the officer “point to
specific, articulable facts which, together with rational inferences from those

facts, reasonably warrant the intrusion.” Id., citing Terry at 21.

      {¶ 13} “In making a determination of reasonable suspicion, the relevant

inquiry is not whether particular conduct is innocent or guilty, but the degree

of suspicion that attaches to particular types of noncriminal acts.” State v.

Taylor (1995), 106 Ohio App.3d 741, 747-49, 667 N.E.2d 60. An appellate

court views the propriety of a police officer’s investigative stop in light of the

totality of the surrounding circumstances.       State v. Bobo (1988), 37 Ohio

St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus, approving and

following State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044,

paragraph one of the syllabus.      “Assessing the need for a brief stop, ‘the

circumstances * * * before [the officer] are not to be dissected and viewed

singly; rather they must be considered as a whole.’” Freeman at 295, quoting

United States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859. Officers may “draw

on their own experience and specialized training to make inferences from and

deductions about the cumulative information available to them that ‘might

well elude an untrained person.’” United States v. Arvizu (2002), 534 U.S.

266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740, quoting Cortez at 418.

      {¶ 14} Based upon the examination of the totality of the circumstances,

the officers in this case were justified to engage in a brief investigatory stop of

Logan. The officers’ experience and training, the distinct manner in which
Logan was positioned, the time of day, the location of the area known for drug

activity and robberies, Logan’s dress despite the temperature, and the

manner in which his hood was affixed around his face and tied under his

chin, coupled with reports regarding how robbery suspects in that area tied

their hoods closed, justified a brief investigatory stop.    Once the officers

approached Logan, the gun in Logan’s waistband appeared in plain view and

warranted the arrest.

      {¶ 15} “A brief stop of a suspicious individual, in order to determine his

identity or to maintain the status quo momentarily while obtaining more

information, may be the most reasonable in light of facts known to the officer

at the time.” Adams v. Williams (1972), 407 U.S. 143, 145-46, 92 S.Ct. 1921,

32 L.Ed.2d 612. “The Fourth Amendment does not require a policeman who

lacks the precise level of information necessary for probable cause to arrest to

simply shrug his shoulders and allow a crime to occur or a criminal to

escape.” Id. at 145.

      {¶ 16} Accordingly, we conclude that the officers, believing that criminal

activity was afoot, had reasonable suspicion to justify the stop, and therefore

did not abridge the protections guaranteed by the Fourth Amendment.

Hence, the trial court did not err in denying the motion to suppress. Logan’s

assignment of error is overruled.

      Judgment affirmed.
      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
