When the judge swore Mr. Berrian in, the judge did notice a strong odor of burnt marijuana emanating from the defendant.
State v. Berrian
2020 – Ohio – 1515
Tenth District Appellate Court
Franklin County, Ohio
April 16, 2020
On Tuesday July 31, 2018 Columbus Police Officer Ryan Dingfelder was dispatched to 593 South Oakley Avenue. The police dispatcher advised the officer, via radio transmission and “patrol view” computer readout, that a known caller, who provided his name and phone number, said a man was waving a gun around and pointing it at him.
When Officer Ryan Dingfelder arrived there were officers here, out front, so he rightfully decided to go to the rear of the house. Ultimately he found Thomas Berrian, a firearm and an appellate decision.
Dispatch described the suspect as a five-foot-tall black male wearing a black-and-white-striped shirt. Officer Dingfelder stated that when he arrived on the scene, there were already other officers in front of 593 South Oakley Avenue, so he decided to check the alley to the rear of the residence. He drove past the residence, turned on a side street and then began to turn into the alley. In the alley behind the residence, he saw two men talking. One was a short black man, about five feet tall, wearing a black-and-white-striped shirt, who matched the original description provided by the dispatcher. As Officer Dingfelder pulled into the alley, the men looked at the cruiser, got the deer-in-the-headlight look and departed from each other. Spoiler alert – this is a clue.
The male, later identified as Mr. Thomas Berrian, was wearing the striped shirt, walked toward 593 South Oakley Avenue entered via the rear gate. Anytime two persons of interest stare at a police cruiser or police officer, get the deer-in-the-headlight look and depart from one another, they are up to criminal activity. Though law enforcement officers know this behavior is indicative of criminal behavior; reasonable suspicion or probable cause must be established before detaining the person as a suspect.
Mr. Berrian immediately entered the rear gate from the alley when he observed Officer Dingfelder drive up the alley. Soon thereafter Officer Dingfelder discovered that Mr. Berrian was committing a felony.
Officer Dingfelder drew his gun and followed the man, ordering him to stop and raise his hands. According to Officer Dingfelder the suspect (whom the officer identified as Mr. Berrian) admitted he had a firearm on his person when Officer Dingfelder inquired. As Officer Dingfelder held Mr. Berrian at gunpoint, another officer approached and secured Mr. Berrian. Officer Dingfelder then retrieved a gun from Mr. Berrian’s right front pants pocket.
Mr. Berrian walked through this gate and was followed by Officer Dingfelder and a Fourth Amendment symphony.
Mr. Berrian’s testimony was largely consistent with the video and Officer Dingfelder’s testimony, but there were a few additional features and points of conflict of note. Mr. Berrian stated that he had already broken off conversation with the other man and started toward the house when he first became aware of the police cruiser in the alley. He stated that he had a “hoodie” on, not a shirt. Video evidence shows that he was wearing a white-and-gray-striped sleeveless zippered shirt with a black hood. Mr. Berrian testified that he did not admit to the officer that he had a gun. He also stated that the interaction was less cordial than the officer suggested in his testimony; he said he initially was not intending to comply with the officer’s orders to remain still because he felt the commands were unconstitutional and that he only complied when the police threatened to shoot him. The video shows that Mr. Berrian was slow to raise his hands when first confronted by the officer with a drawn weapon.
After a brief recess in which to consider the matter, the trial court issued a ruling from the bench:
The judge would note that Mr. Berrian testified near the bench. When the judge swore Mr. Berrian in, the judge did notice a strong odor of burnt marijuana emanating from the defendant and, quite frankly, I am considering that in weighing the value of his testimony. Mr. Berrian’s testimony was slurred at times, was very slow, very deliberate and the judge has very serious concerns that Mr. Berrian testified while under the influence of marijuana or a combination of drugs. I — I’m not going to have him submit to a urine screen today, but I have a lot of concerns about his state of mind when he testified.
Even without that, Officer Dingfelder did have articulable facts to engage in a brief Terry detention for purposes of the Fourth Amendment and therefore the court will deny the defendant’s motion to suppress at this time.
Even after acknowledging reasonable suspicion existed, Mr. Berrian still argues that the stop and detention violated the Constitution when the police drew and pointed their guns at him in effectuating the stop. It is clearly established in constitutional law that an officer may not actually employ deadly force in effecting a stop or arrest “unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S. at 1, 3. It may be argued here that the officers, at the time they encountered Mr. Berrian behind the house and saw him walking calmly toward it with no visible weapons, did not have probable cause to believe at the time of the stop that Mr. Berrian posed a “significant threat of death or serious physical injury to the officer or others.” However, the officer did not have any assurance that Mr. Berrian did not have the gun that the identified 911 caller stated he had been waving around and pointing at the caller. Moreover, importantly, unlike in Garner, the officer in this case did not actually employ deadly force; he merely threatened it. Further, according to Mr. Berrian’s own marijuana-laced testimony, Mr. Berrian initially did not comply with the order to stop and raise his hands.
Ultimately the Tenth District Appellate Court held “Because the tip in this case provided the police with reasonable suspicion that [Mr.] Berrian was armed and dangerous, the officers were entitled under the law to stop him and to frisk him for weapons. It was not a violation of the Constitution for the police officer to have drawn his weapon and trained it on Berrian to effect the stop and frisk, particularly since Berrian was initially noncompliant and slow in obeying the officer’s instructions to stop and raise his hands.”.
This case was issued on April 16, 2020 by the Tenth District Court of Appeals which is binding on only in Franklin County.
Information for this article was obtained from State v. Berrian, 2020 – Ohio – 1515 and a phone interview with Officer Ryan Dingfelder on January 23, 2021.
- Law enforcement can use citizens tips as a foundation for reasonable suspicion when the tipster is known. The difference between a known and unknown tipster is whether the caller left a name and a phone number. In this case the tipster was known. For more on distinguishing between the unknown and known tipsters see Supreme Court Fence Sitting and Glenn had Enough BudWeis(N)er for a .185 BAC But Was the Traffic Stop Lawful?.
- The fact that Mr. Berrian was not compliant with Officer Dingfelder is very instructive. Today many demand that law enforcement de-escalate incidents so they do not rise to a use of force. However, these pontificators do not demand that felons comply with lawful commands from law enforcement. Not until Officer Dingfelder appropriately threatened deadly force did Mr. Berrian, who was actively committing a felony, comply. Of course, this has to be underscored with the behavior of Mr. Berrian in court. He took the stand and testified after a recess for lunch. Though not stated in the court records, it appears that Mr. Berrian’s had ‘lunch’ with Snoop Dogg because the lunch included smoking so much marijuana, he reeked of it as he took his oath to tell the truth. So no, the judge was not impressed. Under the Fifth Amendment Mr. Berrian did not have to testify. But as Ron White’s book title appropriately states “I Had the Right to Remain Silent but I Didn’t Have the Ability.”. Perhaps Mr. Berrian needs a copy of both the U.S. Constitution and Ron White’s book.
3. This decision was crafted by Judge Jennifer Brunner. Judge Brunner, at the time, was on the Tenth District Court of Appeals. But in November 2020 she was elected to the Supreme Court of Ohio. In January 2021 she began her six-year term on the Supreme Court of Ohio.
- Officer Dingfelder must be commended for his officer safety tactics combined with his fundamental understanding of the tipster legal doctrine. He knew that the caller was known and because the tip involved a man with a gun he could use that information to lawfully detain Mr. Berrian under Terry v. Ohio, 392 U.S. 1 (1968). For more on the Terry doctrine see Objectively Reasonable Launches.
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!