IN THE SUPREME COURT OF OHIO. STATE OF OHIO On Appeal from the Lorain Appellee, County Court of Appeals, Ninth V. Appellate District

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1 IN THE SUPREME COURT OF OHIO STATE OF OHIO On Appeal from the Lorain Appellee, County Court of Appeals, Ninth V. Appellate District RICKY FLOYD Appellant. Court of Appeals Case No. 11CA MEMORANDUM IN SUPPORT OF APPEAL OF APPELLANT RICKY FLOYD SAMIR HADEED, (Counsel of Record) Center Ridge Rd. #45214 Westlake, OH Attorney for Appellant, Ricky Floyd City of Elyria Prosecutor's Office, Cynthia Adams 601 Broad St. APR 2,^^ ZOIZ CLERK OF COURT SUPREME CUURT OF OHIO Elyria, OH Prosecuting Attorney for City of Elyria OEM 1 APR 2 3'2012 CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS P s` r EXPLANATION OF WHY THIS CASE INVOLVES A CONSTITUTIONAL QUESTION AND IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST ; 3 STATEMENT OF THE CASE AND FACTS ^ ^4 IARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ^ Proposition of Law No. 1 An individual's nighttime presence in a Scommercial business area that had prior complaints, standing alone, may not be used as the basis for stopping an individual's vehicle, especially when that specific area is both, residential and commercial. 4 4 H L O F OF SERV ICE ^-; 9 _^--- Opinion and Judgement Entry of the Lorain County Court of Appeals (March 12, 2012) ^ 2

3 EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION AND IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST This case presents the issue of whether police violate a citizen's 4`s Amendment right to be free of unreasonable seizures simply because a citizen is traveling at nighttime near a closed business in an area that received prior complaints? The Court of Appeals decided that individuals may be stopped because of their nighttime presence near closed businesses and residences. Several appellate courts throughout Ohio have held different outcomes on a common theme that is on par with the instant case. The decision in the instant case affects the everyday citizen due to the nature of the ruling. The ruling allows police to stop vehicles in any area simply because there were prior complaints in the area. What is more troublesome, is the fact that police need not even specifically identify when the break-ins were reported, how many break-ins, a description of possible suspects, etc. The ruling also allows police to stop vehicles that may have legally and innocently turned into a closed business parking lot or driveway for a minute or two. Every person, regardless if they are a doctor, lawyer, judge, court employee, or off-duty police officer, would be subjected to unnecessary stops using the mere fact that a closed business is present in the area. It appears that law enforcement has discovered a way to circumvent Ohio law. Any citizen can be subjected to a stop if police simply state that the citizen was present in an area with recent break-ins. The major problem with this ruling is that it violates the Ohio Supreme Court's holding from State v. Carter, (1994) 69 Ohio St.3d 57, 630 N.E.2d 355 and State v. Bobo, (1988) 37 Ohio St. 3d 177. Another problem is that the ruling creates a new standard far beyond any boundaries that the Ohio Supreme Court has set. Police do not even need to label the area a "high crime area" in order to be considered a factor that warrants police intrusion into the citizen's everyday life. The 3

4 ruling allows anyone driving through any area that received prior complaints to be stopped when that area contains a closed business. STATEMENT OF THE FACTS Officer Fred Merrill of the Elyria Police Department was on general patrol one evening around 10:45 P.M. when he saw an SUV in front of him on a main road turn into a driveway and drive behind a building. This building has an apartment complex in it as well as a business. There were also houses further down the road. Despite only being on general patrol, officer Merrill thought that it was suspicious for someone to drive behind this building that has apartment complexes and houses in the immediate area. Officer Merrill indicated that there were previous complaints of break-ins in the area without mentioning any detail as to when or where or how many or the manner in which they were committed. Officer Merrill waited on the main road and between 1-2 minutes later, the vehicle was back on the main road again. Officer Merrill stopped the vehicle because he thought that a burglary had occurred in the 1-2 minutes it took for the vehicle to drive down the driveway and then back up the driveway and turn onto the main road again. Mr. Floyd committed no traffic violations at any point nor was he driving in any suspicious manner. When Officer Merrill made contact with Mr. Floyd, he detennined he was operating under the influence and was arrested. A motion to suppress at the trial court was overrrniled and Mr. Floyd appealed to the 9'b District and affirmed the trial court's ruling. ARGUMENT IN SUPPORT OF PROPOSITION OF LAW PROPOSITION OF LAW #1 An individual's nighttime presence in a commercial business area that had prior complaints, standing alone, may not be used as the basis for stopping an individual's vehicle, especially when that specific area is both, residential and commercial. 4

5 In the instant case, it is noteworthy to point out that there was nothing in the record to indicate that Mr. Floyd was in a high crime area; merely in an area with prior complaints of break-ins. Nonetheless, This Court as well as the United States Supreme Court held that: Although the investigative stop took place in a high crime area, that factor alone is not sufficient to justify an investigative stop. Brown v. Texas (1979), 443 U S 47, S.Ct. 2637, 2641, 61 L.Ed.2d 357, (being "in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct"). To hold otherwise would result in the wholesale loss of the personal liberty of those with the misfortune of living in high crime areas. State v. Carter, (1994) 69 Oliio St.3d 57,65, 630 N.E.2d 355, 362. The Court of Appeals has completely ignored the principles set forth in State v. Carter and in Brown v. Texas. Allowing this decision to be upheld would grant police the ability to stop anyone they observe in ANY area simply because there were prior complaints. This case was brought up in Appellant-Floyd's brief and again during oral argument, nonetheless, the appellate Court's opinion failed to consider how State v. Carter or Brown v. Texas would apply to the instant case. In State v. Bobo, this Court held that there was reasonable suspicion of criminal activity because of numerous specific factors. Of those factors, the defendant in Bobo was observed ducking his head and making furtive gestures in a high crime area, at night time, and the police officer was able to articulate that in his 20 years of experience, defendants normally do such movements in these types of scenarios in an attempt to conceal guns. State v. Bobo, (1988) 37 Ohio St. 3d 177, 179, 524 N.E.2d 489, However, in the instant case, the Court of Appeals has misinterpreted the lengthy explanations in Bobo for the rather general, inarticulate explanation given in the case at hand. There was no description of when the break-ins occurred, how many within a recent period of time, in what manner they were committed, how many 5

6 people would be involved, etc. The Court of Appeals has extended the holding in Bobo to mean that citizens can be stopped even if police cannot articulate specific behaviors about a citizen that warrants the investigatory stop. In this case, Mr. Floyd was in an area with an apartment complex in the same building as a business. The officer thought that Mr. Floyd had no reason to be behind the building at 10:45 P.M. despite admitting the existence of the apartment building and houses further down the road. The decision effectively allows police to circumvent the decision in State v. Carter by characterizing an area as a business area that has prior complaints. Then, an individual simply needs to be present in this area and that person may be stopped by police for no other stated reason. No longer do police need to state that an area is a high-crime area, but they can circumvent the State v. Carter decision by stating that someone was present near a business that had prior problems. They do not even need to mention the manner of the suspect or consider any other factor in determining whether to stop that individual. In the instant matter, Mr. Floyd was present for one or two minutes in a business area that contained apartments and houses. The officer thought that Mr. Floyd may have committed a burglary. It is hardly conceivable by any sense of the imagination to suspect that a person could drive down a road and go behind a building, commit a burglary, and then drive back up the road, all within one or two minutes and without driving in a suspicious or out of the ordinary manner. However, the decision allows anyone to be stopped for no reason because they were present in an area that had a closed business. The decision creates new law, in that regardless of how inconceivable the stated reason for the stop is, a person's presence in an area with a closed business is enough to conduct a stop, even if that area also contains residences. It appears that Terry v. Ohio no longer applies to people who are present in a closed business area according to the decision. 6

7 Appellate districts throughout Ohio have made different decisions on substan6ally similar facts that contain a common theme. The common theme throughout the cases are that individuals are traveling in or near a closed business lot and that particular business or area surrounding the business has received prior complaints for break-ins. The following cases have been provided as a reference to this major discrepancy. 1). State v. Klein, 73 Ohio App.3d 486 (4th Dist. 1991) (Car sitting in business lot at 1:35 A.M. and prior complaints of thefts and vandalism from that business and area does not amount to reasonable suspicion to stop). 2). State v. Rhude, 91 Ohio App.3d 623 (12'h Dist. 1993) (Car pulling into driveway at 1:30 A.M. and then pulling out and going into another driveway in area with prior complaints of burglaries does not amount to reasonable suspicion to stop). 3). State v. Hooper, 5`t` Dist. No. 94 CA07020, 1994 WL (Car parked behind a textile services store at 3:45 A.M. and prior complaints of break-ins at textile services store does not amount to reasonable suspicion to stop the vehicle). 4). State v. Brown, 116 Ohio App.3d 477 (7`h Dist. 1996), (Car in entrance of truck dealership at 2:58 A.M. with prior thefts from the dealership does not amount to reasonable suspicion to stop the vehicle). 5). State v. Gray, 11`h Dist. No. 99-G-2249, 2000 WL (July 14, 2000), (Car driving behind a gas station that was closed for the night does not amount to reasonable suspicion to stop the vehicle). 6). State v. Richardson, 9`h Dist. No , 2003-Ohio-246, (Vehicle parked behind closed restaurant at 2:30 A.M. in an area with high crime amounts to reasonable suspicion to stop the vehicle). 7). State v. Cowan, 6th Dist. No. WD , 2006-Ohio-6177 (Vehicle enters empty parking lot at 4:30 A.M. that is reserved for day-time commuters and building by parking lot is closed amounts to reasonable suspicion to stop the vehicle). Finally, the instant case is that a vehicle travels down a side road and goes behind a building (containing houses and apartments in the area as well as a closed business) at 10:45 P.M. for a brief 1 or 2 minute stay amounts to reasonable suspicion of criminal activity according to the appellate court. 7

8 The common theme in these cases is that individuals are traveling at nighttime in or near a closed business that received prior complaints. These cases are so factually similar that they are able to be grouped together into this common theme. As such, it violates all notions of a Defendant's right to be free of unreasonable seizures to be subjected to stops under these circumstances. It is also noteworthy to point out that the Court of Appeals made an error in the recitation of the facts that were different from the findings of fact from the trial court. The trial court identified the time as 10:45 P.M. and not 11:50 P.M. Additionally, on two occasions in the court's opinion, the appellate court came up with arguments for the police officer in their opinion that was not stated specifically by the police officer and thus, became part of the basis for concluding that there was reasonable suspicion. To illustrate, the officer testified that he was only concerned that an actual burglary was taking place in the 1 or 2 minutes that the Defendant was behind the building. He never testified to any other concern. However, the appellate court, in their opinion, acknowledged that 1-2 minutes would not be enough time to commit a burglary, but stated that it could be enough time to case the place. Another issue that the appellate court confused was the officer's knowledge of the presence of houses and apartments. Despite the officer testifying that he knows that residences and apartments were in the immediate area, the court's opinion argued for the police officer by stating that there was nothing to indicate that the officer knew or should have known that the part of the building where Defendant was located also contained aparhnent units. These discrepancies formed part of the basis for concluding that there was reasonable suspicion of criminal activity to justify the stop. Police have an important job in protecting the community and citizens. However, in performance of their duties, they may not side-step well established principles. Business areas 8

9 that received prior complaints are not like "high crime" areas. But even in high crime areas, this Court as well as the U.S. Supreme Court have held that presence in a high crime area is only one factor to be considered in the totality of circumstaiyces. Business areas with prior complaints should not have a different standard to apply. It appears, however, that the appellate court has applied a different standard which allows someone's presence near a business area to be stopped. CONCLUSION For the reasons discussed above, this case involves matters of public and great general interest and a substantial constitutional question. The appellant requests that this court accept jurisdiction in this case so that the important issues presented will be reviewed on the merits. Respectfully Submitted, SAMIR HADEED, Center Ridge Rd. #45214 Westlake, OH Phone samirhadeedlawk . com CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing motion has been forwarded tq City of Elyria Prosecutor's Office, 601 Broad St. Elyria, OH on this 1g^' d^ of r-d 2012 via hand delivery. SAMIR HADEED, ATTORNEY FOR APPELLANT 9

10 APPENDIX `A' 10

11 ^OUPiT OF APPEALS STATE OF OHIO COUNTY OF LORAIN STATE OF OHIO IN THE COURT OF APPEALS?NINTH JUDICIAL DISTRICT C.A. Nb. 11CA Appellee V. RICKY G. FLOYD Appellant ^ APPELL4T', FROM JUDGMENT IN THE ELYRIA MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE No. 2010TRC06716 DECISION AND JOURNAL ENTRY Dated: March 12, 2012 DICKINSON, Judge. INTRODUCTION { 1} Officer Fred Merrill, a 16-year veteran of the Elyria Police Department, was on patrol one evening around 11:50 p.m. when he saw the truck in front of him turn into a driveway and drive behind a building. Officer Merrill thought that the behavior was suspicious because the business that occupied the building was closed for the day and there had been a number of break-ins in the area. He parked his cruiser across the street from the business and called for back-up because he did not want to approach the building alone if there was a burglary in progress. About two minutes later, he saw the truck drive back out from behind the building. Once the truck reentered the road, he initiated a traffic stop. He discovered that the truck was being driven by Ricky Floyd, who had given the owner of the business a ride back to it after they had socialized at a pool hall. According to Officer Merrill, Mr. Floyd was noticeably intoxicated. Mr. Floyd subsequently failed field sobriety and blood-alcohol concentration tests

12 and was cited for operating a vehicle under the influence of alcohol and operating a vehicle with a prohibited blood-alcohol concentration. Mr. Floyd moved to suppress the evidence against him, arguing that Officer Merrill did not have reasonable suspicion to initiate a traffic stop. After the municipal court overruled his motion, Mr. Floyd pleaded no contest, and the court found him guilty of the blood-alcoh9l corlcentratipn?ffe+'has appealed his conviction, arguing that the municipal court incorrectly overruled his motion to suppress. We affirm because, under the totality of the circumstances, Officer Merrill had reasonable suspicion to conduct an investigatory stop. STANDARD OF REVIEW { 2} Mr. Floyd's assignment of error is that the municipal court incorrectly overruled his motion to suppress. A motion to suppress evidence presents a mixed question of law and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, at 8. Generally, a reviewing court "must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id. But see State v. Metcalf, 9th Dist. No , 2007-Ohio-4001, at 14 (Dickinson, J., concurring). The reviewing court "must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Burnside, 2003-Ohio-5372, at 8. Mr. Floyd has only challenged whether Officer Merrill had reasonable suspicion to initiate a traffic stop. REASONABLE SUSPICION { 3} Although a police officer generally may not seize a person within the meaning of the Fourth Amendment unless he has probable cause to arrest him for a crime, "not all seizures of the person must be justified by probable cause...." Florida v. Royer, 460 U.S. 491, 498 (1983). "A police officer may stop a car if he has a reasonable, articulable suspicion that a

13 person in the car is or has engaged in criminal activity." State v. Kodman, 9th Dist. No. 06CA0100-M, 2007-Ohio-5605, at 3 (citing State v. VanScoder, 92 Ohio App. 3d 853, 855 (1994)). "The purpose of an investigatory stop is to allow a police officer to confrrm or dispel suspicions of criminal activity through reasonable questioning." State v. Stanley, 11th Dist. No P-0104, 2008-Ohio-3258, at 18 (citing United States v. Hickman, 523 F. 2d 323, 327 (9th Cir. 1975)). Before initiating such a stop, a "police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968). "[I]t is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief that the action taken was appropriate?" Id. at (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). { 4} Whether a police officer had "an objective and particularized suspicion that criminal activity was afoot must be based on the entire picture - a totality of the surrounding circumstances." State v. Andrews, 57 Ohio St. 3d 86, 87 (1991) (citing United States v. Cortez, 449 U.S. 411, (1981); State v. Bobo, 37 Ohio St. 3d 177 (1988)). "[The] circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold." Id. at "A court reviewing the officer's actions must give due weight to his experience and training and view the evidence as it would be understood by those in law enforcement " Id. at 88. { 5} "[A]n officer's reliance on a mere `hunch' is insufficient to justify a stop[.]" United States v. Arvizu, 534 U.S. 266, 274 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). Although "[t]he reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely in determining whether an investigative stop is warranted[,]"

14 4 a person's mere presence in a high crime area is insufficient to justify an investigatory stop. State v. Bobo, 37 Ohio St. 3d 177, 179 (1988) (quoting United States v. Magda, 547 F.2d 756, 758 (2d Cir. 1976)); Brown v. Texas, 443 U.S. 47, 52 (1979); State v. Carter, 69 Ohio St. 3d 57, 62 (1994). { 6} Both parties have cited several cases that, they have argued, are similar to this one. As is often true in these cases, each case presents unique facts that thwart an apples to apples comparison with others. Nevertheless, comparison with other cases can be useful. In State v. Klein, 73 Ohio App. 3d 486 (4th Dist. 1991), a police officer saw a car sitting in a car dealership lot at 1:35 a.m. The officer decided to investigate because "there had been a continual problem in the summer and fall of 1989 with people tearing up cars and stealing items from cars in the area of the car lots." Id. at 488. When the officer approached the car, it pulled out of the lot, so the officer initiated a traffic stop. The facts that the State relied on to justify the stop were "(1) the area in which appellant was observed had experienced a problem with vandalism and theft; (2) the area in which appellant was observed was private property; (3) the time of the observation was 1:35 a.m.; and (4) appellant turned out of the area as [the officer's] police cruiser approached the area." Id. at 489. The Fourth District concluded, however, that, under the totality of the circumstances, the officer did not have reasonable suspicion to stop the car, noting that the facts were "equally consistent with innocent behavior." Id. { 7} In State v. Rhude, 91 Ohio App. 3d 623 (12th Dist. 1993), a sheriff's deputy on patrol at 1:30 a.m. saw a car drive down a lane, turn around, and drive back out to the road. The car then drove two-tenths of a mile down the road and pulled into another driveway. The car did not violate any traffic laws, but the deputy decided to stop it because "police had received many complaints concerning prowlers and burglaries in the area..." Id. at 625. The Twelfth District

15 5 determined that the deputy did not have reasonable suspicion, concluding that "[t]he fact that a person pulls out of one driveway and into another a short distance down the road in an area where several burglaries had been reported is not sufficient to constitute reasonable suspicion... " Id. at 626. {18} In State v. Hooper, 5th Dist. No. 94CA07020, 1994 WL (Dec. 23, 1994), an officer decided to follow a car at 3:45 a.m. to see if the driver was drunk because "there wasn't a lot happening." Id. at * 1. As he turned onto the street, he lost sight of the car, but then noticed it parked behind a textile services store. He then saw the car pull into the parking lot of a fast food restaurant, where he approached the driver. According to the officer, there had been "several break-ins in the area in the past, and he thought that [the driver] might be involved in a break-in at [the textile services store]." Id. The Fifth District concluded that the officer did not have reasonable suspicion to detain the driver because "[h]e observed no moving violations[,] [h]e observed no conduct behind [the store] to support a belief that [the driver] was involved in a break-in[j [h]e had no knowledge that [the driver] was involved in any type of illegal activity[,] [and] [h]e observed nothing about the store to indicate that there had been a break-in recently." Id. {19} In State v. Brown, 116 Ohio App. 3d 477 (7th Dist. 1996), a sheriff's deputy saw a car with its headlights on blocking the entrance of a truck dealership at 2:58 a.m. The officer saw three people inside the car and decided to initiate a traffic stop because there had been prior thefts at the dealership. The Seventh District concluded that the car's conduct was not indicative of criminal behavior, noting that it was "not observed in motion" and no one "was observed outside the vehicle or engaged in any type of activity that would lead to a reasonable suspicion that criminal activity was about to take place." Id. at 481.

16 6 { 10} In City of Fairlawn v. Skoblar, 122 Ohio App. 3d 464 (9th Dist. 1997), a police officer noticed a car exiting a cemetery around midnight. The officer was aware of previous complaints of devil worship at the cemetery that involved cars entering the cemetery late at night and leaving colored candles at various grave sites. Although the officer did not notice anything irregular about the driver's operation of the car, she stopped it to investigate the possibility of criminal activity. The trial court granted the driver's motion to suppress, and this Court affirmed, noting that the cemetery was open at the time of the stop, there was no evidence that the cemetery was in a high crime area, and the alleged prior acts of devil worship would not even constitute the offense of criminal mischief. Id. at { 11} In State v. Gray,llth Dist. No. 99-G-2249,.2000 WL (July 14, 2000), an officer with seven years of experience saw a car drive behind a gas station that was at the corner of an intersection and was closed for the night. Although the officer did not observe any traffic violations, he stopped the car to "find out what the driver was doing behind the business." Id. at * 1. The Eleventh District concluded that the officer did not have reasonable suspicion to stop the car, noting that it was not a high-crime area, there had not been any break-ins in the neighborhood, the gas station was located at the intersection of two roads, the car did not stop or slow down as it was passing behind the building, and there were no signs limiting right of access at night. Id. at *4-5. { 12} In State v. Richardson, 9th Dist. No , 2003-Ohio-246, a police officer on patrol around 2:30 a.m. saw a truck parked behind a closed restaurant. As the officer approached the truck, it drove away at a "higher than normal" rate of speed. Id. at 2. According to the officer, there were many businesses in the area, but none of them was open at that time of night. It was also a very high crime area. This Court concluded that the trial court correctly determined

17 7 that the officer had a reasonable and articulable suspicion that the driver of the truck was engaged in criminal activity. Id. at 12. {1[13} In State v. Cowan, 6th Dist. No. WD , 2006-Ohio-6177, a university police officer was patrolling the grounds of Bowling Green State University around 4:30 a.m. when he saw a car enter an empty parking lot reserved for daytime parking for commuter students and travel toward the dead-end part of the lot. There was no overnight parking allowed in the lot, and the building that the lot was next to was closed and does not conduct any business at night. The officer stopped the car because he "believed there was no legitimate reason for anyone to be in that location at that time of night." Id. at 5. The Sixth District concluded that, under the totality of the circumstances, "an inference that criminal activity may be afoot was reasonable." Id. at 13. {1114} In City of Cuyahoga Falls v. Pollack, 9th Dist. No , 2008-Ohio-2024, an officer noticed a truck stopped at an intersection two car lengths behind the stop bar. The officer began following the truck from a distance and, at one point, lost sight of it. When the officer saw the truck again, it was being driven behind some closed buildings with its headlights off. It was about 3:00 a.m. This Court concluded that the officer had reasonable suspicion to stop the truck, noting that, "[w]hile there may be some lawful reason for someone to be behind a closed commercial building in a truck with extinguished lights late at night, it requires [some] exertion to conceive of such a reason." Id. at 7 (quoting State v. Rhines, 9th Dist. No , 1994 WL at *2 (Aug. 10, 1994)). {1115} The case with facts closest to this one is State v. Howard, 6th Dist. No. L , 1993 WL (Mar. 31, 1993). According to the Sixth District, the facts of that case were that, "[o]n Sunday, Apri126, 1992, at approximately 10:00 p.m., a Sylvania police officer by the

18 8 name of William Ahleman was on routine patrol. Officer Ahleman observed a pickup truck exit a main thoroughfare into the driveway of a closed commercial building. The pickup truck extinguished its headlights and proceeded to the rear of the building. Ahleman, a fifteen-year police veteran, later testified that because this activity aroused his suspicion he called by radio for backup and turned his own car onto the driveway of an adjacent cemetery. Ahleman's intention was to observe the activities of the driver of the pickup truck behind the building. In so doing, [he] temporarily lost sight of the truck. When Officer Ahleman next saw the truck, it was emerging from the rear of the building. At this point, Officer Philip Gallup arrived in a backup unit. Officer Gallup saw the truck leave the private driveway and enter the main street. He followed the pickup truck for a few blocks, then stopped it as it was entering a highway access ramp. While Officer Gallup was stopping the pickup, Officer Ahleman was driving his vehicle to inspect the back of the commercial building." Id. at * 1. The Sixth District concluded that, under those facts, the officers "not only had cause to conduct an investigatory stop but might have been derelict had they not done so." Id. at *3. { 16} In this case, Officer Merrill, who had 16 years of experience with the City of Elyria, saw a truck turn into the driveway of a business and drive behind, what appeared to him to be, a closed commercial building. It was close to midnight and the building was in an area in which there had been recent break-ins. While the gentleman who owned the business testified that the front of his building contains an apartment unit, there is no evidence in the record that indicates that Officer Merrill knew or should have known that part of the building is an apartment unit. Furthermore, while there was testimony that there are houses and other apartments in the vicinity of the building, there was no testimony that the driveway Mr. Floyd turned into leads to any of those houses or apartment units.

19 9 { 17} The main difference between this case and Howard is that the defendant in Howard turned his headlights off before driving behind the building. While that act made the defendant's conduct in that case more suspicious than Mr. Floyd's, the fact that Mr. Floyd had his headlights on does not mean that his otherwise similar acts did not also provide reasonable suspicion that criminal activity was afoot. { 18} Mr. Floyd has argued that his actions were consistent with innocent behavior. We agree that it may have occurred to someone watching his truck that it was simply the owner of the business going in late to catch-up on unfinished work. The possibility of an innocent explanation, however, does not deprive an officer of the capacity to entertain a reasonable suspicion of criminal conduct. State v. Elliott, 4th Dist. No. 98CA613, 1999 WL at *3 (May 20, 1999). The relevant inquiry in determining whether reasonable suspicion exists "is not whether particular conduct is `innocent' or `guilty,' but the degree of suspicion that attaches to particular types of non-criminal acts." Id. (quoting Illinois v. Gates, 462 U.S. 213, (1983)). { 19} Another issue that this Court must consider is whether the brevity of Mr. Floyd's stay behind the buildings lessens the suspiciousness of his conduct. In Howard, the Sixth District did not indicate how long the defendant was behind the building. Its opinion simply notes that the officer "temporarily" lost sight of the truck. State v. Howard, 6th Dist. No. L , 1993 WL at * 1(Mar. 31, 1993). In this case, Officer Merrill testified that, after he turned his cruiser around and got into position across the street from the building, it was another two minutes before the truck came out from behind the building. {1120} Two minutes would not have given a thief much time to break into the business, but the driver of the truck could simply have been in the process of casing buildings in the area

20 10 or have quickly loaded something that was behind the building into the bed of his truck. Accordingly, although this case presents a close question, based on the time of day, Officer Merrill's experience, the fact that the businesses to which the driveway led were closed, and the fact that there had been "numerous break-ins... burglaries and all kind of crimes committed specifically in that area," we conclude that, viewing the evidence "as it would be understood by those in law enforcement," the totality of the circumstances supports the municipal court's determination that Officer Merrill had reasonable and articulable suspicion to justify stopping Mr. Floyd's truck. State v. Andrews, 57 Ohio St. 3d 86, 88 (1991). Mr. Floyd's assignment of error is overruled. CONCLUSION { 21} The municipal court correctly overruled Mr. Floyd's motion to suppress. The judgment of the Elyria Municipal Court is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Elyria Municipal Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this joumal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

21 11 instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. CL^AI'-/ R-'~. DICKINSON FOR THE COURT WHITMORE, P. J. CARR, J. CONCUR. APPEARANCES: SAMIR HADEED, Attorney at Law, for Appellant. CYNTHIA M. ADAMS, Prosecuting Attorney, for Appellee.