ORIGINAL AUG AUG 1 ' A^G CLFRK CIERK OF COURT. Ct,ER4t OF COURT SUPREME COUR i OF OHIO

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1 ORIGINAL IN TI-IE SUPREME COURT OF OHIO Case No STATE OF OHIO Appellant -vs- KEVIN STEWART Appellee On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Court of Appeals CA: MEMORANDUM IN OPPOSITION OF APPELLEE ROBERT L. TOBIK, ESQ. Cuyahoga County Public Defender BY: CULLEN SWEENEY, ESQ. (COUNSEL OF RECORD) # Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, OH (216) (216) FAX COUNSEL FOR APPELLE, WILLIAM MASON, ESQ. Cuyahoga County Prosecutor BY: T. ALLAN REGAS, ESQ. (COUNSEL OF RECORD) The Justice Center - 9`h Floor 1200 Ontario Street Cleveland, OH (216) COUNSEL FOR APPELLANT, THE STATE OF OHIO D AUG 1 ' A^G CLFRK CIERK OF COURT SUPREME SUPflEME COU W l RT OF OHIO F ED AUG Ct,ER4t OF COURT SUPREME COUR i OF OHIO

2 TABLE OF CONTENTS PAGES EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OR ISSUE OF GREAT PUBLIC INTEREST:... 1 STATEMENT OF THE CASE...3 STATEMENT OF FACTS...4 LAW AND ARGUMENT Proposition of Law I (as formulated by Appellant-State of Ohio): Immediately after and in the vicinity of a shooting police may stop an individual based upon a general physical description if the surrounding circumstances indicate a reasonable probability the individual is the wanted suspect. Proposition of Law II (as formulated by Appellant-State of Ohio): Where an investigative stop that is justified at its inception occurs immediately after and in the vicinity of a shooting, police may reasonably conduct a pat-down of the stopped individual if the individual refuses to answer and makes furtive movements when asked if he has a weapon. CONCLUSION...14 SERV ICE...15

3 1 WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OR ISSUE OF GREAT PUBLIC INTEREST: The Defendant-Appellee, Kevin Stewart, respectfully opposes the State's request for this Court to accept jurisdiction over State v. Stewart, Cuyahoga App. No , 2011 Ohio 2910 ("Opinion Below"). The instant case involves a heavily fact-laden suppression ruling that relies on well-established legal principles. The State's two propositions of law break no new ground and simply ask this Court to decide whether the Court of Appeals properly applied Terry v. Ohio (1968), 392 U.S. 1 to a specific set of facts. As such, this case does not involve a substantial constitutional question or implicate an issue of great public interest. Moreover, this Court should decline jurisdiction because the Eighth District correctly held that the evidence should be suppressed, finding that the police officers lacked reasonable suspicion of criminal activity to justify their investigative stop of the defendant and lacked a legitimate basis for frisking him. Police stopped and searched Stewart because they believed he was "close" to a vague description of a shooting suspect that originated with unknown persons (and was decidedly different from that given by eyewitnesses to the shooting and memorialized in the police report). The Eight District found that the stop itself was not supported by reasonable suspicion for several reasons: 1) The description relied on by the officers was "not specific enough to justify the investigative stop;" 2) Stewart did not even match the vague description "as he was significantly younger and shorter than the described shooter;" and 3) The officers were "committed to stopping any young African-American couple they encountered." Opinion Below at 9 and 13. Taken separately or together, these reasons demonstrate that the officers lacked a reasonable suspicion that Stewart was the shooter.

4 2 The Eighth District also correctly held that the frisk was not justified. Because Stewart was immediately eliminated as a suspect in the shooting, the sole reason for the frisk was Stewart's failure to respond to the officer's question about whether or not he had a weapon. Stewart had the right not to answer any questions by police. United States v. Mendenhall (1980), 446 U.S. 544, 554. And the Eighth District rightly held that Stewart's "constitutionally-protected right not to speak with the officer" could not "provide a basis, in the absence of other factors, to justify a patdown." Opinion Below at 16. Despite the State's repeated suggestions that Stewart made "furtive movements," there was no evidence presented at the hearing to support that assertion. The police did not testify that Stewart made furtive movements. They only testified that Stewart "looked both ways" when asked a question. The State's contention that this case "threatens to handcuff officers who pursue dangerous suspects during and immediately after the commission of violent crimes" is hyperbolic at best. (State's Br. at 2). The Eighth District's decision does no such thing. Rather, it stands for the unremarkable proposition that police cannot stop someone who does not even match an exceedingly vague description of a suspect and cannot frisk that person simply because he exercises his right not to answer questions.

5 3 STATEMENT OF THE CASE Kevin Stewart was charged in a single-count indictment with carrying a concealed weapon ("CCW") in violation of R.C (A)(2). This single count included a furthermore specification that the weapon was either loaded or the ammunition was "ready at hand." With the furthermore specification, the CCW charge is a felony of the fourth degree. Mr. Stewart filed a suppression motion, arguing that the weapon seized from his person must be suppressed because it was obtained as a result of an unlawful search and seizure. The trial court held a suppression hearing and denied Stewart's motion, concluding that the officers had reasonable suspicion to conduct a Terry stop and frisk of Stewart. Specifically, the court explained: In this case, the arresting officers had reasonable and articulable suspicion that Stewart may have been engaged in criminal activity. Both CPD officers testified they had learned a black female and black male left the scene of the shooting. A description of the black male was given being five foot ten to six feet, darlc clothing, late twenties to early thirties in the company of a female. The officers, seeing a black male matching the description with the female, in an area only two to three blocks away from where the shooting occurred, the officers, while touring the area for the suspects, came across them within five minutes of leaving the shooting scene and saw the defendant. The totality of the circumstances justified a Terry stop to investigate. When the defendant was asked if he had any weapons, he did not respond. This further justified a further search and patdown of the defendant for officer safety. The officers felt a bulge in defendant's waistband, and the weapon was found in his waist area.

6 4 After his motion was denied, Stewart pled no contest to the indictment. Based on Stewart's no contest plea, the trial court found him guilty and sentenced him to one year of community control sanctions. Kevin Stewart filed a timely appeal with the Eighth District Court of Appeals. On June 16, 2011, the Eighth District reversed the trial court, concluding that it had erred in denying Stewart's suppression motion. State v. Stewart, Cuyahoga App. No , 2011-Ohio The State's appeal of the Eighth District's decision is now before this Court. STATEMENT OF FACTS A. The Shooting On an October evening in 2009, Sarah Williams and Beth White were hanging out at White's house along with three other individuals, Jay, Miguel, and an unidentified individual. The unidentified individual "pistol-whipped" Miguel, put a gun to his head, and said "who are you." Sarah and Beth then ran out of the house. Once outside, Sarah heard "three gimshots." Police responded a short time later. When Officers Brinker and Hartman arrived, Sarah Williams described the unknown shooting suspect as a six foot black man with braids and a tattoo of a number onthe right side of his face. According to Sarah Williams, the suspect was wearing a hat, a black t-shirt, and black jeans. Officer Brinker further described the shooting suspect in his police report as 6 feet tall, 35 years old, and with a light complexion. Officer Brinker's report refers to two black males leaving the scene. There was no mention of a black female in his report. Sarah Williams testified that there were no black women present that night.

7 5 B. Cleveland Police Officers Helscel and Guerra respond to the shooting. Cleveland police officers Helscel and Guerra responded a few minutes later to assist with the search for the suspect. Officers Helscel and Guerra received a vague description of the suspects from other officers and unknown people at the scene. According to Officer Guerra, the shooting suspect was simply described as a black man with a black female. According to Officer Helscel, the shooting suspect was described as a six-foot black man in his late 20s, early 30s, wearing dark clothing, and accompanied by a black female. Officer Helscel did not record the description of the suspect in his reportbecause the description was so "vague." Officer Helscel conceded that the vague description could have matched a lot of people in the City of Cleveland. C. The Search and Seizure of Kevin Stewart Officers Helscel and Guerra re-entered their police car and "started touring the area for possible suspects." After driving for about five minutes, Officer Helscel decided to go "check the apartment buildings by Wanda Avenue." Just before the police pulled into the building's parlcing lot, Marchae Jackson and Kevin Stewart pulled in as well. Kevin Stewart lived at the "high-rise apartment building" at 1300 Wanda Avenue and Jackson was driving him home. After Jackson and Stewart parked, they exited Jackson's car and started walking across the parking lot towards the apartment building. Jackson and Stewart were then stopped by Officers Helscel and Guerra who had also gotten out of their police car.1 'Officer Helscel aclcnowledged that Stewart and Jackson may have just exited a car in the parking lot before he detained them.

8 6 Officer Guerra testified that Stewart was not doing anything suspicious when they detained him. The sole reason that they detained Stewart was because he was a black man accompanied by a black woman approximately 1/3 of a mile away from the shooting. Officer Guerra ordered Stewart to "come here" and Stewart complied. It was immediately apparent that Stewart was a very young looking black male without a tattoo on his face or braids. While Stewart was complying with the officer's request, Officer Guerra asked him if he had any weapons on him. According to the police, Kevin Stewart "looked both ways" and did not answer the question. 2 Officer Guerra testified that, based on his experience, "anything but a no is a yes." He then searched Stewart and Jackson, and searched Jackson's car. During his search of Stewart, Officer Guerra found a gun in Stewart's waistband. However, because Stewart did not match the description of the suspect, the officers reported over the radio that he was not a suspect in the shooting. LAW AND ARGUMENT Proposition oflaw I (as formulated by Appellant-State of Ohio): Immediately after and in the vicinity of a shooting police may stop an individual based upon a general physical description if the surrounding circumstances indicate a reasonable probability the individual is the wanted suspect. The State's proposition of law essentially restates the Terry standard for reasonable suspicion. If the State had reasonable suspicion to believe that Stewart was the shooting suspect, then the Fourth Amendment permits the State to briefly detain him to investigate that suspicion. The problem with the State's argument is afactual one. The 2 Stewart denies that he turned his head in response to the question.

9 7 facts in this case do not give rise to reasonable suspicion that Stewart was the shooting suspect. A. Applicable Legal Principles The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirination, and particularly describing the place to be searched, and the persons or things to be seized. The Fourth Amendment's protection "belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs." Terry v. Ohio, 392 U.S. 1, 8-9 (1968); see also Article I, Section 14 of the Ohio Constitution. In order to make effective the constitutional guarantees embodied by the Fourth Amendment, evidence seized during an unlawful search may not be used against the defendant at trial. Weeks v. United States (1914), 232 U.S. 383; Wong Sun v. United States (1963), 371 U.S. 471, 484; Murray v. United States (1988), 487 U.S. 533, 536. This exclusionary rule extends to the indirect products of the search which are tainted by the initial illegality. i.e. "fruit of the poisonous tree." Wong Sun, 371 U.S. at and 4$$. B. Kevin Stewart Was "Seized" Without a Warrant. Cleveland police seized Stewart without a warrant thus implicating the protections of the Fourth Amendment and Article I, Section 14 of the Ohio Constitution. A person is "seized" for purposes of the Fourth Amendment when "a reasonable person" would have believed "that he was not at liberty to ignore the police presence and go about his business." Florida v. Bostick (1991), 501 U.S. 429, 437 (quoting Michigan v. Chesturnut (1988), 486 U.S. 567, 569). In this case, a warrantless seizure occurred when Stewart

10 8 complied with Officer Guerra order to "come here." No reasonable person in Stewart's position would believe that he was free to ignore Officer Guerra's order and leave. A warrantless search and seizure is "per se" unreasonable "subject only to a few specifically established and well delineated exceptions." Xenia v. Wallace (1988), 37 Ohio St. 3d 216, 218. The State of Ohio bears the burden of establishing that a warrantless search and seizure is valid under one of the exceptions to the warrant requirement. State v. Kessler (1978), 53 Ohio St. 2d 204, 207. In this case, the State relied on the investigatory detention and "plain feel" exceptions to the warrant requirement under Terry v. Ohio (1968), 392 U.S. 1 and Minnesota v. Dickerson (1993), 508 U.S C. Policc Lacked Reasonable Suspicion To Justify Terry Stop of Kevin Stewart Police lacked the reasonable suspicion necessary to justify a Terry stop. Stewart did not match the description of the suspect given by Sarah Williams, the only eyewitness who testified at the hearing, or the description in the police report. The sole reason he was detained was because he was "close" to the "vague" description of a shooting suspect obtained from some unspecified source. However, the only part of the vague description that Stewart matched was that he was black man with a black woman. The Fourth Amendment does not permit the police, investigating a crime involving a black suspect, to detain any black person. A Terry stop is a"narrowly drawn exception to the probable cause requirement of the fourth amendment" United States v. Swanson (C.A ), 341 F.3d 524, 528, which involves "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat." Terry, 392 U.S. at 20. Pursuant to Terry, police may carry out a brief investigative stop based upon reasonable suspicion that an individual is engaged in

11 9 criminal activity. Id at 30; Illinois v. Wardlow (2000), 528 U.S. 119, 126; United States v. Cortez (1981), 449 U.S. 411, Reasonable suspicion requires more than an "inchoate and unparticularized suspicion or `hunch' of criminal activity." Terry, 392 U.S. at 27. In order to have reasonable suspicion, the officer must be able to point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Id. at 21. In assessing reasonable suspicion, "the totality of the circumstances -- the whole picture-- must be taken into account." United States v. Cortez, 449 U.S. 411, 417 (1981). 1. The police lacked reasonable suspicion to detain Kevin Stewart because he looked nothing like the description of the shooting suspect. The sole reason that Kevin Stewart was detained by police was that he was black man with a black woman in the general area of the shooting. He was not otherwise doing anything suspicious when he was detained by police. Because Kevin Stewart looked nothing like the description of the shooting suspect, police lacked reasonable suspicion to detain him. Sarah Williams was one of only four individuals who aetualfy saw the shooter and was the only eyewitness to testify at the suppression hearing. Kevin Stewart looked completely different than the shooter described by Williams. Ms. Williams described the shooter as a six foot tall black man with braids and a distinctive tattoo of a number on the right side of his face; wearing a black t-shirt, black jeans, and a hat. Kevin Stewart does not have braids, does not have a tattoo on his face, and is only 5'8" and 151 pounds. Moreover, on the night of the shooting, Kevin Stewart was wearing blue jeans, a white sweatshirt with a hood, and a blue Polo cap with white lettering. Sarah Williams was also adamant that there were no black woman at her friend's house when the shooting

12 10 occurred. At the time of his detention by police, Kevin Stewart was walking with his girlfriend from her car to his apartment. Kevin Stewart also looked nothing like the suspect described in Officer Brinker's police report. The police report described the suspect as 35 years old, with a light complexion, and accompanied by another black man. Kevin Stewart, on the other hand, is only 20 years old, and looks even younger, has a dark complexion, and was accompanied by a black woman. While Stewart looked nothing like the description of the suspect given by eyewitnesses, he was nonetheless detained because Officers Helscel and Guerra believed he was "close" to the "vague" description of a shooting suspect obtained from some unknown sourcc.3 According to Officer Guerra, the shooting suspect was simply described as a black man with a black female. According to Officer Helscel, the shooting suspect was described as a six-foot black man in his late 20s, early 30s, wearing dark clothing, and accompanied by a black female. Other than being a black man with a black woman, Stewart did not match even the vague description. He was only 20 years old, 5'8", and 151 pounds. Moreover, unlike the suspect who was described as leaving on foot, Stewart arrived at the parking lot of his apartment building in his girlfriend's car. Indeed, Officers Helscel and Guerra clearly recognized that he did not match the description as they immediately eliminated as a suspect in the shooting. ' Officer Guerra testified that the description he was given came from some people at the scene but he did not know thcir names. Officer Helscel testified that he received the description second-hand from Officer Brinker and "other people that were there at the scene." Regarding the othcr people at the scene, Officer Helscel testified that they "were just people there" and he did not "even know if they were witnesses."

13 11 Because Kevin Stewart did not match the description of the shooting suspect, the police lacked reasonable suspicion to detain him. Accordingly, the Terry stop was unconstitutional and the Eighth District properly held that the evidence should be suppressed. 3. The police lacked reasonable suspicion to detain Kevin Stewart based on the vavue description of the shooting suspect. Even if Stewart had matched the vague description purportedly relied on by the arresting officers, which he did not, it was so vague that it could not reasonably be relied upon to stop Kevin Stewart. According to Officer Guerra, the shooting suspect was merely described as a "black male." Officer Helscel testified that the suspect was described a black male "around 6 feet tall in his late 20s, early 30s" and wearing dark clothing." While Helscel offered a little more detail, he acknowledged that the description of the suspect was so "vague" that he did not even record it in his police report. He also conceded that the vague description could have matched a lot of people in the City of Cleveland. The Fourth Amendment does not permit warrantless detentions based on generic and vague descriptions. State v. Woods, Lake App. No. 99-L-111, 2000 WL , *2-3; State v. Rakaf, Portage App. No P-0057, 2008 Ohio 6996, In Woods, the victim of an armed robbery told police that the suspect was a "black male wearing a dark ski mask and a dark hooded nylon jacket." 2000 WL , * 1. Acting on that vague description, police pulled over a black man wearing a "black stocking cap" and a green coat. Id The Eleventh District held that the stop was unconstitutional because it was based on a"hunch" that the driver was the armed robbery suspect rather than reasonable suspicion. Id. at *2-3. Similarly, in Rakaf, the Eleventh District

14 12 concluded that police lacked reasonable suspicion to detain a white male based on a vague description that "described half the individuals present in the downtown area that night." 2008 Ohio 6996 at The warrantless detention in this case was likewise not supported by reasonable suspicion. Kevin Stewart was walking through the parking lot of his apartment building when he was detained by police. Officer Guerra testified that Stewart was not doing anything suspicious prior to his detention. The sole reason that police stopped him was because he was a black man accompanied by a black woman approximately 1/3 of a mile away from the shooting. Indeed, the police made clear in their testimony that they were "committed to stopping any young African American couple they encountered." Opinion Below at 14. The Fourth Amendment does not permit a warrantless police intrusion based on a description that matches much of the City of Cleveland. That is particularly true when, as here, the person detained by police did not even match the vague description of the suspect. Kevin Stewart is a young black man; he is only 20 years old and looks even younger. The shooting suspect, on the other hand, was described as a black man in his "late 20s, early 30s." Kevin Stewart was wearing blue jeans, a white sweatshirt with a hood, and a blue Polo cap with white lettering. The shooting suspect, on the other hand, was merely described as wearing "dark clothing." Kevin Stewart arrived at his apartment complex in a car. The shooting suspect, on the other hand, was described as leaving on foot. Indeed, immediately after Stewart was detained, he was eliminated as a suspect in the shooting. Proposition of Law 1I (as formulated by Appellant-State of Ohio): Where an investigative stop that is justifaed at its inception occurs immediately after and in the vicinity of a shooting, police may reasonably conduct a pat-down of the stopped individual if the

15 13 individual refuses to answer and makesfurtive movements when asked if he has a weapon. There are two problcros with the State's second proposition of law-one legal, the other factual. As a factual matter, Stewart did not make any "furtive" movements as alleged by the State in its memorandum. The police did not testify that Stewart made furtive movements. They only testified that Stewart "looked both ways" when asked a question. The legal problem with the State's argument is that the police did not believe Stewart was a suspect in the shooting and thus did not have a reasonable belief that Stewart was both "armed" and "presently dangerous." Terry, 392 U.S. at 27 and 30; State v. Andrews (1991), 57 Ohio St. 3d 86, 89. Recognizing that Stewart was immediately eliminated as a suspect, the State attempts to justify the search for weapons on the basis that Stewart did not respond to police when asked whether he had any weapons. Stewart's lack of response to the officer's question does not justify further detention and does not permit the officer to conduct a patdown under 7'erry. After determining that Stewart was not involved in the shooting, the police were free to ask further questions, but Stewart was equally justified in not answering. An investigative detention must be limited in duration and scope and last only as long as is necessary for an officer to confirm or dispel his suspicions. Florida v. Royer ( 1983), 460 U.S. 491, 500. Once any suspicion of criminal activity has been dispelled, a police officer is nonetheless free to ask questions in a consensual encounter. Id. at 497. However, the person approached "need not answer any question put to him" and his refusal to answer the question does not, by itself, permit the police to detain him "even

16 14 momentarily." Id. at ; see also State v. Rackow, Wayne App. No. 06-CA-0066, 2008 Ohio 507. In th;s case, Stewart was not doing anything suspicious when he was stopped by police. Moreover, Stewart complied the officer's request to "come over" and police quickly dispelled their suspicion that Stewart was a suspect in the shooting. At that point, police were nonetheless free to ask whether Stewart had a weapon, but Stewart was equally free not to respond. And Royer and Rackow make clear that Stewart's lack of response does not justify fiirther detention, let alone the patdown conducted by the police. Because the police could not rely on Stewart's decision not to respond to their question to conduct a patdown, the search violated the Fourth Amendment. Accordingly, the evidence seized as a consequence of that illegal search must be suppressed. CONCLUSION For the foregoing reasons, Defendant-Appellee Kevin Stewart respectfully asks this Court to decline jurisdiction over this matter as it does not present a substantial constitutional question for review. Respectfully Submitted, CA CULLEN SWEENEY, ESQ. Counsel for Appellee

17 15 CERTIFICATE OF SERVICE A copy of the foregoing Memorandum In Response was served upon WILLIAM D. MASON, ESQ., Cuyahoga County Prosecutor, The Justice Center - 9th Floor, 1200 Ontario Street, Cleveland, Ohio on this ^ day of August, CULLEN SWEENEY Counsel for Appellee