Because the officers failed to articulate an objectively reasonable basis to suspect that appellant was engaged in criminal activity, relying instead on the fact that appellant was sitting in a parked car in a high crime area, we hold that reasonable suspicion was lacking here.
State v. Mosby
2021 – Ohio – 2255
Sixth District Appellate Court
Lucas County, Ohio
June 30, 2021
On Friday August 16, 2019 at approximately 2 a.m. Toledo Police Sgt. Melvin Stachura, Officer Benjamin Kiser, Officer Michael Ellerbrock and Det. Nicholas Bocik were attempting to stem violent gang activity at a parking lot euphemistically called Wayne’s Lot. This crime filled parking lot is known as the Wayne Lot, so named after a deceased Cherrywood Crip gang member who was murdered there in early 2018. The parking lot is adjacent to Section 8 housing and regularly the location of shots fired, weapons offenses, disorderly conduct, fights, open container violations, drug use and loitering. In short, this is a very high crime area.
On Friday August 16, 2019 Toledo Police Officers detained approximately twenty-five people in this parking lot in an effort to curb felonious behavior. The detention included Mr. Tim Mosby, a convicted felon, who was in possession of a firearm.
On this night the officers arrived at Wayne’s lot to find at least twenty-five people hanging out. As the officers exited their cruisers there was a strong odor of freshly burnt marijuana wafting through the air. Among those who arrived was Sgt. Stachura and he observed “two or three cars” parked cars with the engines not running, around which there were individuals who were drinking alcohol. He stated that “at that point we were going to make a stop on everybody.”. The detention of everyone at scene would be the significant factor that led to overturning the conviction of the gun toting, convicted felon, Mr. Timothy Mosby Jr.
Sgt. Stachura proceeded to the vehicle where Mr. Mosby was seated as a rear passenger, and “asked all the occupants of that vehicle to please exit their vehicle.” He stated at the suppression hearing that he ordered the occupants out of the vehicle for officer safety in light of the “type of activities that go on in that area,” which he again identified as “several instances of weapons and shootings even with police on scene.”. He further elaborated that he wanted to detain everyone at the scene so that he could “find out who is actually doing the open consumption of alcohol, all the other various criminal activity that’s going on at that moment.” Moreover, Sgt. Stachura indicated that he wanted to check everyone’s identification so that he could ascertain who belonged at the apartment complex and who was loitering.
Mr. Mosby initially ignored the command to exit the vehicle. Eventually, he was removed from the vehicle by police, at which point Sgt. Stachura overheard other officers stating that they saw a firearm. Thereafter, officers removed Mr. Mosby from the vehicle, confiscated a firearm from his waistband, and arrested him.
On cross-examination, Sgt. Stachura was pressed on his claim that the individuals, including Mr. Mosby, were loitering at the Wayne Lot. He acknowledged that one of the passengers in the vehicle was a resident of the apartment complex and was thus permitted to be there at the time. He also admitted that the vehicle was not impeding access to the parking lot or denying anyone passage.
As to his observation of criminal activity, Sgt. Stachura stated that the odor of burnt marijuana was not localized to the subject vehicle, and he acknowledged that the odor of burnt marijuana “can carry” over a distance depending on the wind and “several factors.”. Sgt. Stachura testified that he did not see Mr. Mosby or any of the occupants of the vehicle drinking alcohol, using marijuana, or engaging in any specific criminal activity. Nonetheless, Sgt. Stachura indicated that he stopped the vehicle “because there [were] several individuals around it drinking and smoking marijuana.”
Mr. Mosby was charged with carrying a concealed weapon, receiving stolen property, having weapons under disability, resisting arrest, and obstructing official business. He filed a Motion to Suppress his detention, search and possession of the firearm. The trial court ruled against the motion, Mr. Mosby plead No Contest and was sentenced to forty-two months in prison. He filed an appeal to the Sixth District Appellate Court which held “Because the officers failed to articulate an objectively reasonable basis to suspect that appellant was engaged in criminal activity, relying instead on the fact that appellant was sitting in a parked car in a high crime area, we hold that reasonable suspicion was lacking here … Having found that officers lacked reasonable suspicion to initiate the investigative stop of appellant, it follows that the firearm discovered during the investigative stop should have been suppressed as “fruits of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 487 – 488 (1963). The trial court erred in denying appellant’s motion to suppress such evidence, and we therefore find appellant’s sole assignment of error well-taken.”.
Information for this article was obtained from State v. Mosby, 2021 – Ohio – 2255.
This case was issued by the Sixth District Appellate Court and is binding in Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood Counties.
- Each time law enforcement detains, arrests, uses force or in any way restricts the liberty of a citizen he must have, at minimum – reasonable suspicion. In this case the sergeant and officers were attempting to thwart criminal activity in a very high crime area. Clearly the law enforcement team had a gut feeling that Mr. Mosby was involved in criminal activity which is why he was the focus of an investigative detention stop. However, simply detaining twenty-five people in a parking lot is unreasonable – even if it is Wayne’s Lot that is chock full of criminal activity. Each specific person must have particularized reasonable suspicion for law enforcement to detain each person. For more on the application of a gut feeling see Officer Williams’ Gut Feeling was Scientifically Accurate But Was It Legally Justified?.
- The Sixth District Appellate Court recognized that Wayne’s Lot was a high crime area but cautioned law enforcement against creating “Fourth Amendment Free Zones”. On page fifteen of the decision in Footnote #1 the court stated in pertinent part “While we acknowledge that the area in which the stop in this case occurred was a high crime area, this fact does not eclipse the need for a particularized suspicion in order to justify a Terry stop. Otherwise, officers patrolling in high crime areas would be given carte blanche to stop an individual simply because the individual is found in an area associated with crime. This would encourage the arbitrary exercise of law enforcement power, and usher in something akin to “Fourth- Amendment-free zones” in certain locations. We recognize that the high crime nature of an area is a factor to be considered in evaluating a stop under Terry, but we reject the state’s attempt to make high crime, standing alone, a sufficient factor to support a Terry stop.” [emphasis added]
- What should not be lost in the analysis of this case is that Sgt. Stachura, Officer Benjamin Kiser, Officer Michael Ellerbrock and Det. Nicholas Bocik all had a gut feeling about Mr. Mosby. As testimony indicated, there was a crowd of approximately twenty-five gang related loiterers at Wayne’s Lot on Friday August 16, 2019. Out of ALL of the loiterers the officers’ gut feeling directed them to Mr. Mosby and their gut feeling was spot-on correct. Their gut feeling directed them directly to a convicted felon in possession of a firearm. Even though Mr. Mosby’s firearm was suppressed, we will never know if these officers’ gut feeling saved a life on this night – – it even could have been Mr. Mosby’s life.
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!