COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77593 STATE OF OHIO : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION KYLE MARTIN : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 9, 2000 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-383,519 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: WILLIAM D. MASON Cuyahoga County Prosecutor MARY H. McGRATH, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: DAVID L. GRANT Attorney at Law 1148 Euclid Avenue C.A.C. Building, Suite 300 Cleveland, Ohio 44115 KENNETH A. ROCCO, J.: -2- KENNETH A. ROCCO, J.: Plaintiff-appellant the State of Ohio appeals pursuant to Crim.R. 12(J) from the trial court order that granted the motion to suppress evidence filed by defendant-appellee Kyle Martin. The state asserts the trial court's order was improper, contending the police officers' initial investigative stop of appellee had a reasonable basis. This court disagrees; hence, the trial court's order is affirmed. The testimony presented by appellant at the hearing held on appellee's motion to suppress evidence was only that of Cleveland Police Sergeant Dennis Scott Hill. Hill testified he was a twelve- year veteran of the police department assigned to the Fifth District's strike force unit. On September 10 or 11, 1999 Hill arrived at a house located at 12610 Griffing Avenue in response to a complaint made by the leaseholder of the premises. The leaseholder informed Hill that persons had been "congre- gating" and "loitering"1 on the property, particularly the front porch area, without her permission. She stated that "drug activity" was being conducted there. She instructed Hill that since "no one" was to be on the porch, should he see anyone, he was to "run them off."2 1Quotes are taken from Hill's testimony at the hearing on appellant's motion to suppress evidence. 2Hill admitted the leaseholder had informed him she had an adult son but indicated since he had been told the son did not live there, he did not expect anyone but the leaseholder, herself, to be on the property. Appellee testified he had been invited on the property by the leaseholder's son, who made his presence known after the police arrived. -3- Thereafter, Hill made it a part of his routine to "check the area" while on his patrol. He directed other officers in his unit also to do so; thus, the address was scrutinized "[a]lmost on a daily basis." On September 25, 1999, at approximately 8:00 p.m., Hill was driving in a patrol vehicle with his partner. Hill's vehicle was in the company of both another two-person police vehicle and a one- person police vehicle. The five officers were traveling eastbound on East 126th Street when Hill observed activity at the house at 12610 Griffing Avenue. Hill could see "between four to six people congregated on the porch and stairs." Hill immediately turned onto Griffing, "drove across the curb" of the street, and steered over the sidewalk "into the driveway" at an angle. The two companion police vehicles followed; one stopped to the rear of Hill's vehicle while the other parked on the street in front of the house. All of the officers exited their vehicles. As Hill identified himself, he focused his attention on "a male that was standing at the bottom landing *** near a pillar," later identified as appellee. Appellee had his hand in his pocket. Upon the arrival of the officers, appellee took his hand out of his pocket and placed it on top of the pillar. This small movement raised Hill's suspicions. Hill asked the people in front of the house what they were "doing" there, approaching appellee as he spoke. When Hill came closer, he -4- observed on the pillar "a bag of marihuana right there where [appellee's] hand had been." Hill asked appellee if the bag were his. Appellee responded affirmatively. Hill informed appellee he would have to issue appellee a citation for possession of the substance.3 Hill decided to "put [appellee] in the rear of the police car" to accomplish this. He secured one of appellee's wrists with a handcuff, then led him to the vehicle. As Hill prepared to conduct a pat-down search to ensure appellee had no weapons before placing him inside, Hill asked, "[D]o you have anything on you?" Appellee answered, "[Y]eah, I have my pistol on me. Hill finished placing the handcuffs on appellee and retrieved a .22 caliber revolver from appellee's right rear pants pocket. Appellee, at that point, was arrested for carrying a concealed weapon, R.C. 2923.12. Appellee subsequently was indicted for that offense, along with a violation of R.C. 2923.13, having a weapon while under dis- ability. Prior to trial, appellee filed a motion to suppress evidence. In his brief in support of the motion, appellee argued that the officers lacked a reasonable basis upon which to conduct the stop of him. The trial court held a hearing on appellee's motion. After listening to the testimony of Hill and of appellee, and the arguments of counsel, the trial court granted the motion. The trial court reasoned as follows: 3Pursuant to R.C. 2925.11(C)(3)(a), this offense constitutes a minor misdemeanor. R.C. 2935.26 prohibits the arrest of this type of offender except in certain limited circumstances. -5- *** [T]he Court finds that the State has failed to establish that the intervention by the police on the 25th of September, 1999, was with a reasonable basis. While I can see that there is probably no line or test for deter- mining when a complaint by a citizen is stale, a two-week delay or interval from the initial complaint to when the police acted without having made any observations or conducting any surveilance (sic) in the interim that would lead to the conclusion that illegal activity was occurring is, under the circumstances, too long. There may be circumstances under which a two-week period, where there is an active investigation, might be appropriate. In this case, the lack of any continuity is apparent. And, I do not believe that the record supports the action of the police. The state has filed a timely appeal of the trial court's order. It presents the following assignment of error for review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION TO SUPPRESS IN THAT THE OFFICERS HAD REASONABLE SUSPICION THAT DEFENDANT-APPELLEE WAS ENGAGED IN CRIMINAL ACTIVITY TO JUSTIFY AN INVESTIGATIVE STOP. The state argues Hill "point[ed] to specific and articulable facts *** which reasonably warrant[ed the] intrusion" into appellee's Fourth Amendment rights, as required by Terry v. Ohio (1968), 392 U.S. 1. This court disagrees. In State v. Williams (1990), 51 Ohio St.3d 58, 61, the Ohio Supreme Court stated that an officer's brief investigative stop made pursuant to Terry is warranted only when it is "justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." (Emphasis added.) The officer's actions are viewed in light of the totality of the -6- surrounding circumstances. State v. Freeman (1980), 64 Ohio St.2d 21, syllabus 1. In this case, the totality of the circumstances does not support Hill's action. Although Hill had received a complaint about criminal activities from the leaseholder, the complaint was made approximately two weeks prior to the incident. Hill stated he had made an effort thereafter to have the property checked frequently; however, he failed to indicate he had seen any suspicious activity within that two-week period. State v. Gonsior (1996), 117 Ohio App.3d 481. It is also apparent the leaseholder made no further complaints. State v. Cook (1995), 107 Ohio App.3d 154. Moreover, although Hill observed a number of persons on the porch area, he saw no apparent criminal activity. Id.; cf. State v. Pierce (1998), 125 Ohio App.3d 592. There were no signs posted prohibiting trespassing. Cf. State v. Roberts (Jan. 20, 1994), Cuyahoga App. No. 63730, unreported. Additionally, the persons Hill saw simply were "milling around." State v. Hegwood (July 24, 1997), Cuyahoga App. No. 70650, unreported; cf. State v. Pierce (Mar. 7, 1997), Montgomery App. No. 15911, unreported. Although Hill intimated the area in which the house was located had an unsavory reputation, two additional facts are notable: (1) rather than pausing to watch appellee and his companions to ascertain whether their actions were suspicious in nature, Hill and his convoy abruptly accosted them; and (2) -7- despite this obvious demonstration of police presence, no one fled. Cf. Illinois v. Wardlow (2000), ____ U.S. ____, 120 S.Ct. 673. The two-week-old information Hill possessed did not, by itself, justify such an intrusion. State v. Gonsior, supra; State v. Cook, supra; see, also, Florida v. J. L. (2000) ____ U.S.____, 120 S.Ct. 1375. Therefore, the trial court did not err in granting appellee's motion to suppress evidence.4 Appellant's assignment of error, accordingly, is overruled. Judgment affirmed. 4In view of this court's disposition of the state's argument on appeal, it is not necessary to address the propriety of the search, the alternate basis put forward by appellee for upholding the trial court's decision. Nevertheless, in view of State v. Jones(2000), 88 Ohio St.3d 430, Hill's action in placing appellee in handcuffs in order to issue a citation for a minor misdemeanor offense appears to be prohibited. See footnote 3. -8- It is ordered that appellee recover of appellant his 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 Cuyahoga County Court of Common Pleas 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. TIMOTHY E. McMONAGLE, P.J. and MICHAEL J. CORRIGAN, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .