[Cite as State v. Phillips, 2016-Ohio-7049.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 103895 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

COZTED PHILLIPS

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-597714-A 

BEFORE: Kilbane, P.J., Blackmon, J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: September 29, 2016 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

Paul Kuzmins 

Assistant Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

Nathalie E. Naso 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, P.J.: 

{¶1} Defendant-appellant, Cozted Phillips (“Phillips”), appeals from his 

convictions for having a weapon while under disability, drug possession with a one-year 

firearm specification, and obstructing official business. For the reasons set forth below, 

we affirm. 

{¶2} On August 28, 2015, Phillips was indicted in a six-count indictment. In 

Counts 1 and 2, he was charged with having a weapon while under disability and carrying 

a concealed weapon, both with a forfeiture specification. In Counts 3 and 6, he was 

charged with drug possession and trafficking in less than 5 grams of cocaine, both with a 

one-year firearm specification and forfeiture specifications. In Count 4, he was charged 

with possession of criminal tools, with a furthermore clause identifying the tool as a 9mm 

semiautomatic weapon, and forfeiture specifications. In Count 5, he was charged with 

obstructing official business. 

{¶3} The state’s evidence demonstrated that on July 20, 2015, Cleveland Police 

Detective Thomas Barry (“Detective Barry”) and Sergeant Baeppler, together with other 

officers from the Cleveland Police Gang Impact Unit (“CPGIU”), were on patrol in two 

separate vehicles in the Buckeye neighborhood in response to complaints of “gang, gun, 

and drug activity.” Detective Barry, who has 17 years of experience as a police officer, 

and Sergeant Baeppler, who has 20 years of experience, both testified that they have 

extensive training in dealing with gangs and identifying individuals who may be in 

possession of illegal weapons. 
{¶4} At approximately 10:00 p.m., as the officers turned northbound from 

Buckeye Road onto East 117th Street, a one-way street, the officers observed 

approximately four individuals loitering in East 117th Street, near a car that was parked 

on the right side of the road. The officers continued on, then circled around the block a 

second time to investigate. At this time, Phillips, who was standing in front of the 

vehicle, moved to the front passenger side. According to Sergeant Baeppler, Phillips 

bent slightly at the knees and slid his arm along his body, placing an object on the ground 

under the car. Phillips then fled. The officers testified that in their experience, this 

motion is consistent with a suspect taking a weapon out of his waistband. Sergeant 

Baeppler subsequently found a loaded, black, semiautomatic handgun under the car near 

the right front tire. 

{¶5} According to Detective Barry, Phillips fled southbound on East 117th 

Street, but Detective Barry apprehended him in a backyard. While holding Phillips on 

the ground, and as he was being handcuffed, Detective Barry found several rocks of 

suspected crack cocaine directly under Phillips. 

{¶6} After test firing the weapon, it was determined to be operational. The 

officers admitted that no DNA analysis was performed on the gun. In an interview with 

Phillips at the Justice Center after his arrest, Phillips told the officers that the weapon 

belonged to a juvenile who was at the scene. Phillips admitted to possessing crack 

cocaine. 
{¶7} After analysis, the suspected crack cocaine was determined to be crack 

cocaine in an amount of less than 5 grams. This was stipulated by the parties. The 

parties also stipulated that in 2014, Phillips was convicted of aggravated riot in Stark 

County. 

{¶8} At the close of the state’s case, the trial court acquitted Phillips of Count 6, 

the trafficking charge. Phillips did not present evidence, and the matter was presented to 

the jury. The jury subsequently convicted Phillips of Counts 1, 3, and 5, having a 

weapon while under disability, drug possession with a one-year firearm specification, and 

obstructing official business. The jury acquitted him of Counts 2 and 4, carrying a 

concealed weapon and possession of criminal tools. Phillips was sentenced to a total of 

two years of imprisonment. He now appeals, assigning the following sole assignment of 

error for our review: 

Assignment of Error 

Trial counsel was ineffective when he failed to pursue a meritorious motion 

to suppress based upon the unlawful seizure of [Phillips]. 

{¶9} Within this assignment of error, Phillips argues that the arresting officers 

lacked reasonable, articulable suspicion to justify an investigatory stop because he and his 

friends were simply hanging out, and some of the individuals who had been in the street 

had already begun to walk back to the sidewalk by the time the officers returned to the 

area. Therefore, he argues that at a minimum, the drugs recovered from him would have 

been suppressed if he had effective trial counsel. 
{¶10} To prevail on a claim of ineffective assistance of counsel, a defendant must 

prove (1) that counsel’s performance fell below an objective standard of reasonableness, 

and (2) that counsel’s deficient performance prejudiced the defendant, resulting in an 

unreliable or fundamentally unfair outcome of the proceeding. Strickland v. 

Washington, 466 U.S. 667-668, 692-693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. 

McGuire, 80 Ohio St.3d 390, 397, 1997-Ohio-335, 686 N.E.2d 1112. 

{¶11} In order to establish deficient performance, it must be shown that, under the 

totality of the circumstances, counsel’s representation fell below an objective standard of 

reasonableness. Id. at 688. A properly licensed attorney is presumed competent. State 

v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988). A court “must indulge 

a strong presumption that counsel’s conduct falls within a wide range of reasonable 

professional assistance.” Id. at 689. Debatable trial tactics and strategies generally do 

not constitute deficient performance. State v. Phillips, 74 Ohio St.3d 72, 85, 

1995-Ohio-171, 656 N.E.2d 643. In order to establish prejudice, it must be shown that 

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different. Strickland at 694. A reasonable probability 

is “a probability sufficient to undermine confidence in the outcome” of the proceeding. 

Id. 

{¶12} The failure to file a motion to suppress is not per se ineffective assistance of 

counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52. As 

explained in State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, 
the failure to file a motion to suppress constitutes ineffective assistance of 

counsel only when the record demonstrates that the motion would have 

been successful if made. Even if some evidence in the record supports a 

motion to suppress, counsel is still considered effective if counsel could 

reasonably have decided that filing a motion to suppress would have been a 

futile act. 

Id. at ¶ 28. 

{¶13} The Fourth Amendment to the United States Constitution prohibits 

warrantless searches and seizures, rendering them, per se, unreasonable unless an 

exception applies. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 

(1967). An investigative stop or Terry stop is a common exception to the Fourth 

Amendment warrant requirement. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 

889 (1968). Under Terry, a police officer may stop and briefly detain a person if the 

officer has reasonable suspicion based upon specific articulable facts that the suspect is 

engaged in criminal activity. Id. at 21-22. 

{¶14} In State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), the Ohio 

Supreme Court analyzed “what degree of conduct must a police officer observe to give 

rise to a ‘reasonable suspicion.’” Id. at 178. The Bobo court held that the “propriety of 

an investigative stop by a police officer must be viewed in light of the totality of the 

surrounding circumstances.” Id. at paragraph one of the syllabus. The court further 

held that 
where a police officer, during an investigative stop, has a reasonable 

suspicion that an individual is armed based on the totality of the 

circumstances, the officer may initiate a protective search for the safety of 

himself and others. 

Id. at paragraph two of the syllabus. 

{¶15} In making this determination, the Bobo court found the following facts to be 

significant: 

(1) [T]he area in which the actions occurred was an area of very heavy drug 

activity in which weapons were prevalent; (2) it was nighttime, when 

weapons could easily be hidden; (3) * * * one of the officers who 

approached the vehicle in which Bobo was sitting, had about twenty years 

of experience as a police officer and numerous years in the surveillance of 

drug and weapon activity — included in this experience were about five 

hundred arrests each for guns or drugs city-wide and over one hundred 

arrests in the area in which Bobo was parked; (4) [the officer’s] knowledge 

of how drug transactions occurred in that area; (5) [the officer’s] 

observations of Bobo disappearing from view then reappearing when the 

police car was close, looking directly at the officers and then bending down 

as if to hide something under the front seat; (6) [the officer’s] experience of 

recovering weapons or drugs when an individual would make the type of 

gesture made by Bobo in ducking under his seat; and (7) the police officers’ 

being out of their vehicle and away from any protection if defendant had 

been armed. 

Id. at 180. Accord State v. Simmons, 2013-Ohio-5088, 5 N.E.3d 670, ¶ 16 (12th Dist.). 

{¶16} However, as this court explained in State v. Fincher, 76 Ohio App.3d 721, 

603 N.E.2d 329 (8th Dist.1991),where a defendant approaches an occupied car on foot 

and then, upon seeing the police, retreats from the scene, this is not sufficient activity to 

justify an investigative stop, even in an area of drug activity. Similarly, in State v. 

Walker, 90 Ohio App.3d 132, 628 N.E.2d 91 (8th Dist.1993), this court held that the mere 
fact that a defendant runs when approached by a police officer in an area of drug activity 

is not sufficient to justify an investigative stop. 

{¶17} In this matter, the record demonstrated that the CPGIU was patrolling the 

area because of complaints of “gang, gun, and drug activity” in response to recent crimes 

involving firearms and acts of violence. The stop occurred at approximately 10:00 p.m., 

when weapons could easily be hidden. The officers of the CPGIU had extensive 

training on dealing with gangs and identifying individuals who may be in possession of 

weapons. The record also established that the officers have extensive knowledge of how 

drug transactions occur in that area. While on patrol, the officers observed a group of 

people loitering in the street. The officers left the area and circled around the block. 

When they returned, some of the individuals who had been in the street were on the 

sidewalk, but two males remained in the street near a parked car. The officers noted that 

while Phillips was watching them, he made a motion against his body and then placed an 

object under the vehicle. The officers testified that with their knowledge and experience 

and having made hundreds of arrests, this motion was consistent with a suspect removing 

a weapon from the waistband, an area where a gun is typically held. It is a furtive 

gesture. Moreover, after Phillips placed the object under the vehicle, he immediately 

began to flee. 

{¶18} In light of all of the foregoing, we conclude that the officers had 

reasonable suspicion based upon specific articulable facts that Phillips was engaged in 

criminal activity. Supported by the totality of the surrounding circumstances, and by 
application of the factors set forth in Bobo, the officers properly conducted an 

investigative stop of Phillips. Therefore, we are unable to conclude that Phillips’s 

counsel was ineffective for failing to file a motion to suppress. Accord State v. Vallejo, 

8th Dist. Cuyahoga No. 88405, 2007-Ohio-2508 (counsel was not ineffective for failing 

to file a motion to suppress where the suspect discarded crack cocaine as he fled through 

the abandoned house, was pursued and apprehended by the police); State v. White, 8th 

Dist. Cuyahoga No. 93109, 2010-Ohio-521 (sufficient articulable facts to justify an 

investigative stop where the officers patrolling a “high drug area” saw males “making 

furtive gestures up between the cars and appeared to be throwing something under cars”); 

State v. Spencer, 8th Dist. Cuyahoga No. 86441, 2006-Ohio-1200 (sufficient articulable 

facts to justify an investigative stop where the defendant turned away and approached the 

nearest apartment, began knocking then dropped an object and fled as officers 

approached); State v. Love, 8th Dist. Cuyahoga No. 61312, 1992 Ohio App. LEXIS 4225 

(Aug. 20, 1992) (sufficient articulable facts to justify an investigative stop where the 

officers were patrolling a high crime area and observed the appellant dispose of an object 

and flee as the officers approached.) 

{¶19} Appellant’s sole assignment of error is overruled. 

{¶20} Judgment is affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

 

MARY EILEEN KILBANE, PRESIDING JUDGE 

PATRICIA A. BLACKMON, J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR