State v. Hinkston

S
[Cite as State v. Hinkston, 2020-Ohio-6903.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




 STATE OF OHIO,                                  :

        Appellant,                               :        CASE NO. CA2020-03-012

                                                 :               OPINION
     - vs -                                                      12/28/2020
                                                 :

 DAMON PERRY HINKSTON,                           :

        Appellee.                                :




          CRIMINAL APPEAL FROM CLERMONT COUNTY OF COMMON PLEAS
                            Case No. 2019CR000724


D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellant

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East
Main Street, Batavia, Ohio 45103, for appellee



        HENDRICKSON, P.J.

        1     Appellant, the state of Ohio, appeals a decision of the Clermont County Court

of Common Pleas granting a motion to suppress evidence filed by appellee, Damon

Hinkston. For the reasons discussed below, we reverse the trial court's decision.

        2     Hinkston was charged with possession of a fentanyl compound and having

weapons while under a disability. The charges were the result of an investigation that began
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with a police stop of a vehicle in which Hinkston was a passenger. Hinkston moved to

suppress the evidence discovered as a result of the stop, arguing there was no basis for

police to stop the vehicle.

       3   At the suppression hearing, Police Officer Corey Herren testified that he has

19 years of law enforcement experience and is currently a canine handler for the

Williamsburg Police Department.        On June 10, 2019, Officer Herren was conducting

surveillance on a known drug house at around 11:30 in the evening. He testified that

Williamsburg is a small jurisdiction and he was familiar with the residences in the area with

a record of drug activity and it was his job to patrol and survey those areas frequently.

       4   Officer Herren testified that prior to the traffic stop in this case, there had been

"70 some" different traffic stops where drugs were retrieved from automobiles after leaving

the house he was surveilling. He also testified that the house was confirmed as a drug

house when controlled buys were conducted by the drug unit. A search warrant was

conducted and ultimately the owner was federally indicted on drug charges.

       5   On the date in question, Officer Herren observed a vehicle pull in the driveway

of the drug house. The car was not from the area and when Herren ran the registration, he

discovered that the vehicle was registered to a deceased male. A male and female exited

the vehicle and entered the house. Shortly after, the pair came out of the house, got into

the vehicle and left. Herren testified that based on his training and experience, the behavior

was suspicious because of the history of the house, the fact that the car was from out of the

area, and the actions of the vehicle occupants.

       6   Officer Herren followed the vehicle for about a mile. He testified that he

believed the vehicle was in violation of Ohio traffic laws because he knew the owner was

deceased and could not be operating the vehicle. Officer Herren further stated that he had

previous incidents with the same type of scenario of a vehicle registered to a deceased

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person and frequently the vehicles were driven by people who were not supposed to be in

the vehicle at all. While following, Officer Herren noticed "a lot of activity" in the vehicle.

He described the activity as the male passenger "moving around quite a bit," moving side

to side, and the passenger appeared to be trying to hide something.            Officer Herren

activated his lights and siren and stopped the vehicle.

       7   When the vehicle was stopped, Officer Herren noticed the female driver

appeared "quite a bit" more nervous than typical for a traffic stop and the male passenger

would not make eye contact. The driver initially gave Officer Herren her twin sister's

identification and the officer was suspicious because the identification did not match his

observations of the driver. Officer Herren then asked for a Social Security number which

the driver provided him. As Herren was verifying the driver's identification, other officers

arrived, and these officers took over the traffic stop duties while Officer Herren received

consent to run his drug dog around the vehicle. The canine indicated a positive response

on the front driver and passenger doors. The driver and passenger were removed from the

vehicle and the vehicle was searched.

       8   A firearm was discovered in the back seat, behind but within reach of the

passenger's seat with the butt of the handgun sticking out. Officers discovered baggies in

the center console of the vehicle which contained residual drugs inside. Officers also

discovered a black bag that contained several items, including a needle cap, five rounds of

ammunition of the same caliber as the firearm, and a key that belonged to Hinkston's

mother.

       9   During the stop, officers identified the driver as Sapphire Miracle and

determined that she had a suspended driver's license. Officers also discovered that there

was a request for Hinkston to be detained for investigation of a burglary offense. Hinkston

was arrested, and during booking procedures at the jail, fentanyl was discovered in

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Hinkston's wallet.   As mentioned above, Hinkston was charged with possession of a

fentanyl compound and with having a weapon while under a disability.

       10 After considering the testimony at the suppression hearing, the trial court

determined that Officer Herren did not have probable cause to make the traffic stop based

on R.C. 4549.11(A), the statutory provision that prohibits an owner from driving a vehicle

registered to a previous owner. The trial court also determined that there was not a

reasonable articulable suspicion of criminal activity that allowed Officer Herren to stop the

vehicle based on the surrounding circumstances. Because it determined there was no legal

basis for the vehicle stop, the trial court granted Hinkston's motion and suppressed all

evidence arising out of the stop.

       11 The state of Ohio now appeals the trial court's decision to grant the

suppression motion and raises the following assignment of error for our review:

       12 THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO

SUPPRESS.

       13 Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 

100 Ohio St. 3d 152

, 2003-Ohio-5372,  8. An

appellate court must accept the trial court's findings of fact if they are supported by

competent, credible evidence. State v. Hawkins, 

158 Ohio St. 3d 94

, 2019-Ohio-4210,  16.

However, after accepting the trial court's factual findings, the appellate court must determine

the legal questions independently, without deference to the trial court's decision. Id.;

Burnside at  8.

       14 Both the Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution protect individuals from unreasonable searches and

seizures by the government. State v. Martin, 12th Dist. Warren No. CA2018-09-105, 2019-

Ohio-2792,  14. This protection includes unreasonable automobile stops. Bowling Green

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v. Godwin, 

110 Ohio St. 3d 58

, 2006-Ohio-3563,  11.

       15 Ohio recognizes two types of lawful traffic stops, each requiring a different

constitutional standard. State v. Ratliff, 12th Dist. Butler No. CA2019-09-163, 2020-Ohio-

3315,  6-7; State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, 

45. One is a typical noninvestigatory stop where an officer directly observes a traffic

violation, giving rise to probable cause to stop the vehicle. Whren v. United States (1996),

517 U.S. 806

, 810, 

116 S. Ct. 1769

. The second type of stop is an investigative or "Terry"

stop, which occurs where an officer has a reasonable suspicion based upon specific and

articulable facts that criminal behavior has occurred or is imminent. Terry v. Ohio (1968),

392 U.S. 1

, 21, 

88 S. Ct. 1868

.

       16 On appeal, the state argues the vehicle stop in this case was supported by

both probable cause based on a traffic violation and as an investigatory stop based on a

reasonable, articulable suspicion of drug activity. Because we find it dispositive of the

appeal, we begin with the state's argument that Officer Herren had a reasonable articulable

suspicion for the stop based on his observations.

       17 A brief, investigative stop does not require as much probability of criminal

activity as the probable cause required for an arrest. Terry v. Ohio (1968), 

392 U.S. 1

, 

88 S. Ct. 1868

. Because the extent of the intrusion upon a suspect's protected liberty interests

is less in a brief, investigative stop, the amount of suspicion required to justify that intrusion

is correspondingly less. State v. Letner, 2d Dist. Montgomery No. 24277, 2011-Ohio-3732.

Only a reasonable, articulable suspicion of criminal activity is required.

Id. 18

While the concept of reasonable and articulable suspicion has not been

precisely defined, it has been described as something more than an undeveloped suspicion

or hunch, but less than probable cause. State v. Moore, 12th Dist. Fayette No. CA2010-

12-037, 2011-Ohio-4908,  31-33.         To determine whether an officer had reasonable

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suspicion to conduct a Terry stop, the "totality of circumstances" must be considered and

"viewed through the eyes of the reasonable and prudent police officer on the scene who

must react to events as they unfold." State v. Andrews, 

57 Ohio St. 3d 86

, 87-88 (1991).

"This process allows officers to 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, 

534 U.S. 266

, 273,

122 S. Ct. 744

, (2002), quoting United States v. Cortez, 

449 U.S. 411

, 

101 S. Ct. 690

(1981);

State v. Hawkins, 

158 Ohio St. 3d 94

, 2019-Ohio-4210,  19-22.

       19 In this case, Officer Herren observed an out-of-the-area vehicle pull into a

known drug house late at night. The passengers exited the vehicle, entered the house and

returned shortly thereafter. Herren determined the vehicle was registered to a deceased

person and knew from experience that often drivers of such vehicles did not have

permission to use the vehicle. While following the vehicle, the passenger made movements

that to Officer Herren indicated the passenger was trying to hide something.

       20 The Ohio Supreme Court has determined that an officer's experience in

narcotics investigations, combined with conduct by a defendant consistent with drug activity

supports a finding of reasonable suspicion. See State v. Bobo, 

37 Ohio St. 3d 177

, 179-180

(1988). Likewise, this court has previously determined that reasonable articulable suspicion

existed to extend a search based on a suspect's activity at a known drug house. State v.

Sexton, 12th Dist. Butler No. CA2019-08-133, 2020-Ohio-4179,  34 (active investigation

into drug complaints at house, citizen complaints of defendant's brief activity at house, along

with nervous behavior created reasonable articulable suspicion).

       21 Similarly, other Ohio appellate courts have determined reasonable articulable

suspicion existed under circumstances involving suspicious activity at a known drug house.

See State v. Karsikas, 11th Dist. Ashtabula No. 2020-A-0017, 2020-Ohio-5058,  20-25.

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(suspect with prior drug related interactions with police stopped and entered known drug

house for five minutes, then parked next to another known drug house); State v. Miller, 

117 Ohio App. 3d 750

, 759 (11th Dist.1997) (defendant's stop at house suspected of drug activity

for brief period, consistent with other drug transactions at residence); State v. White, 2d

Dist. Montgomery Case No. 18731, 2002-Ohio-262 (vehicle pulled into motel parking lot

without occupants exiting vehicle, and two individuals exited motel with one entering vehicle

while other stood on corner); State v. Binford, 9th Dist. Summit No. 22038, 2004-Ohio-4976,

 11 (reasonable articulable suspicion where defendant entered and exited a known drug

house for a short duration). Accordingly, we find the facts in this case, when viewed through

the eyes of a reasonable police officer, provided reasonable, articulable suspicion to stop

the vehicle for further investigation.

       22 Hinkston argues that there was not reasonable articulable suspicion for the

vehicle stop because there was uncertainty in the officer's testimony regarding the timing

of the homeowner's arrest, the record was silent as to where the vehicle was from, and the

state failed to explain suspicious nature of driving a deceased person's car. Hinkston further

argues that it is not uncommon for a person to be out at 11:30 at night and the court did not

find the officer's testimony that Hinkston was trying to hide something credible.

       23 Although it is not clear from Officer Herren's testimony when the owner of the

house was arrested, it is evident from the record that the house was a known drug house

at the time of these events. Numerous drug arrests had occurred based on stops of people

leaving the home. The unknown timing of the owner's arrest does not detract from the

nature of the residence as a drug house. In addition, with regard to ownership of the vehicle,

Officer Herren himself discussed the suspicious nature of a person driving an automobile

registered to a deceased person and explained that often in such circumstances the person

did not have permission to drive the vehicle.

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       24 The trial court noted in its decision that Officer Herren was not able to describe

"any facts, other than his observation that the passenger moved "from side to side'" as a

basis for the officer's opinion that the passenger appeared to be trying to hide something.

However, the trial court's statement discusses the basis for Officer Herren's suspicion that

the passenger was trying to hide something and does not discredit the officer's testimony

that the passenger was making some type of movements the officer found suspicious. This

observation was based on the officer's experience and was just one of the factors in creating

reasonable, articulable suspicion.

       25 Finally, although none of the facts observed by Officer Herren in this case,

including stopping at a house late at night, are criminal, this does not detract from the totality

of the circumstances creating reasonable articulable suspicion.             A determination of

reasonable, articulable suspicion must be based on the collection of factors, not on the

individual factors themselves. State v. Batchili, 

113 Ohio St. 3d 403

, 2007-Ohio-2204,  19;

State v. Ratliff, 12th Dist. Butler No. CA2019-09-163, 2020-Ohio-3315,  6-7.

       26 Moreover, a determination that reasonable suspicion exists need not rule out

the possibility of innocent conduct. Hawkins, 

158 Ohio St. 3d 94

, 2019-Ohio-4210, at  19-

22. In permitting detentions based on reasonable suspicion, "Terry accepts the risk that

officers may stop innocent people." Illinois v. Wardlow, 

528 U.S. 119

, 126, 

120 S. Ct. 673

(2000). When determining whether reasonable suspicion exists, 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. Karsikas, 2020-Ohio-5058 at  23. "Behavior and

circumstances that are noncriminal by nature may 'be unremarkable in one instance * * *

while quite unusual in another.'" Hawkins, 

158 Ohio St. 3d 94

at  23, quoting U.S. v. Arvizu,

534 U.S. 266

, 274, 

122 S. Ct. 744

(2002). Therefore, "[a]n officer is 'entitled to make an

assessment of the situation in light of his specialized training and familiarity with the

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customs of the area's inhabitants.'"

Id. 27

In conclusion, we find that the vehicle stop in this case was supported by

reasonable, articulable suspicion. Therefore, the trial court erred in granting Hinkston's

motion to suppress evidence. Accordingly, the judgment of the trial court is reversed and

this case is remanded for further proceedings.

       28 Judgment reversed.


       RINGLAND and M. POWELL, JJ., concur.




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