[W]e find that Sergeant Johnson had a reasonable, articulable suspicion that Thompson was engaged in criminal activity.

State v. Thompson

2020 – Ohio – 486

Eighth District Appellate Court

Cuyahoga County, Ohio

On Thursday June 14, 2018, around 11 p.m. seven members of the Cleveland Police Department’s Gang Impact Unit were patrolling the area surrounding 10841 Tacoma Avenue in Cleveland, Ohio in a caravan of unmarked vehicles. Officers were aware of recent shootings in the area and were patrolling in response to residents’ desires for more attention to that street.

Observing a group of approximately eight to twelve people on the sidewalk, in the front yard, and on the porch of the house at 10841 Tacoma Avenue, officers pulled over with their lights and sirens activated. Detective James Skernivitz and Sergeant Alfred Johnson testified at the suppression hearing. Det. Skernivitz stated that as he was exiting his vehicle, he observed a group of males shooting dice on the sidewalk. Although the report from this incident made no mention of money being exchanged related to the dice game, both officers testified that they observed money. As officers approached, some of the group began to disperse. One young man, D.W., was observed going up the driveway to the backyard of the house, fumbling with his waistband and pulling out an object, and then coming back down the driveway, onto the porch, and into the house. Det. Skernivitz testified that D.W. was walking. Sgt. Johnson testified that D.W. was running and this caught his attention; this is reflected in the incident report.

Sgt. Al Johnson arrested Mr. Thompson on the front porch of 10841 Tacoma Avenue in Cleveland, Ohio.

Sgt. Johnson asked Det. Skernivitz to follow D.W.’s path to the backyard. Det. Skernivitz did so, recovering a firearm presumed to have just been discarded by D.W. Meanwhile, Sgt. Johnson went to the front porch in an attempt to speak with the homeowner to determine if D.W. lived at the house. According to Sgt. Johnson, as he walked up the steps to the porch, he saw Mr. Tayvon Thompson on the porch to the left of the front door. At Mr. Thompson’s feet, Sgt. Johnson saw the butt of a firearm that was partially covered by a coat or blanket. Sgt. Johnson then asked everyone on the porch to stand up and move away from the area. Sgt. Johnson asked Mr. Thompson several times to stand up and leave the porch, and Mr. Thompson declined to do so. In response to Mr. Thompson’s failure to comply with this instruction, Sgt. Johnson ordered Mr. Thompson to stand and told him that he was under arrest. Mr. Thompson stood up and attempted to go through the front door of the house. Sgt. Johnson grabbed Mr. Thompson from behind and physically restrained him from entering the house. As both men fell to the ground, Mr. Thompson reached into his waistband and threw a gun inside the house. Mr. Thompson was placed under arrest for impeding the officers’ investigation of D.W.

As a result of the above, Mr. Thompson and D.W. were both taken into custody. The Cuyahoga County Grand Jury indicted Thompson on one count of carrying a concealed weapon in violation of R.C. 2923.12(A)(2), and one count of receiving stolen property in violation of R.C. 2913.51(A).

On October 26, 2018, Mr. Thompson filed a motion to suppress, arguing that the officers lacked reasonable articulable suspicion to justify his initial seizure.

On December 11, 2018, the court granted Mr. Thompson’s motion to suppress, finding that the state failed to demonstrate a reasonable articulable suspicion of criminal activity by Thompson to justify his initial stop and detention. The court also found that police lacked probable cause to arrest Thompson.  Thereafter the City of Cleveland appealed and on February 13, 2020 the Eighth District Appellate Court overturned the trial court and held “[W]e find that Sergeant Johnson had a reasonable, articulable suspicion that Thompson was engaged in criminal activity. Further, we find that Thompson’s conduct following Sergeant Johnson’s approach of the porch — failing to comply with instructions and thereby effectively impeding an investigation, attempting to flee the porch when he was ordered to stand, and throwing a loaded firearm into the house — constitutes probable cause for his arrest.”.

This case was issued on February 13, 2020 by the Eighth District Court of Appeals which is only binding on Cuyahoga County.  For the rest of the State of Ohio this case is considered persuasive.  Though law enforcement agencies in other counties do not have to follow the decision, it is considered instructive.

Lessons Learned:

  1. Both Sgt. Johnson and Det. Skernivitz should be commended. They were able to recognize that in a high crime area recently plagued by shootings a group of eight to twelve people hanging out, some of whom were shooting dice at 11 p.m. had at least three firearms among them.  Neither of the gun-toters were cooperative but these two brave officers arrested each.  Thompson’s feeble attempt to flee in the house and subsequently throwing his firearm into the home was quickly squashed.
  1. Though Mr. Thompson was on a front porch, Sgt. Johnson had the legal authority to order him to move so the firearm at Mr. Thompson’s feet could be secured. In that moment and unbeknownst to Sgt. Johnson, Mr. Thompson was unlawfully concealing another firearm.  Surprisingly, the Eighth District Appellate Court decision was two to one.  The dissenting judge did not believe that Sgt. Johnson had probable cause.  Judge Patricia Ann Blackmon stated in pertinent part “I do not find the probable cause required to justify Thompson’s arrest for impeding an investigation. Thompson did not move from his own front porch when he was ordered by the police officer. I do not see how this impedes the investigation of another man who was allegedly seen throwing an object from his waistband into the yard.”.  Clearly, Judge Blackmon has intentional myopia because Sgt. Johnson had seen a firearm at the feet of Mr. Thompson.  To insure everyone’s safety, Mr. Thompson needed to distance him from the firearm, which is why Sgt. Johnson told Mr. Thompson to get up and move away.   It was NOT because another man was seen throwing a firearm in the backyard.  Judge Blackmon also stated in pertinent part “[A]llegedly seen throwing an object from his waistband into the yard.”.  The ‘object’ was confirmed to be a firearm!  And it was not ‘allegedly’ seen as the court determined the firearm actually was thrown.
  1. Though this case has a positive ending, the rest of the story does not. This case was issued by the Eighth District Appellate Court on February 13, 2020.  On Thursday September 3, 2020 Det. Skernivitz was shot and killed in the line of duty.  He was shot and killed on the West side of Cleveland at West 65th Avenue and Storer Avenue, while the Thompson arrest occurred on the East side of Cleveland at 10841 Tacoma Avenue.  Det Skernivitz was a true hero and protected the citizens of Cleveland no matter what area of town.  We should all take a moment and learn from State v. Thompson as Det. Skernivitz continues to serve law enforcement long past his tragic death.

A link to the Officer Down Memorial Page for Detective James Skernivitz  https://www.odmp.org/officer/24846-detective-james-m-skernivitz

Information for this article was obtained from State v. Thompson, 2020 – Ohio – 486.

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Robert H. Meader Esq.