[Cite as State v. Mosby , 2021-Ohio-2255.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1010 Appellee Trial Court No. CR0201902483

v. Timothy N. Mosby, Jr. DECISION AND JUDGMENT Appellant Decided: June 30, 2021

* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee

. Autumn D. Adams, for appellant.

* * * * * ZMUDA, P.J.

I. Introduction {¶ 1} Appellant, Timothy Mosby, appeals the judgment of the Lucas Cou nty Court of Common Pleas, sentencing him to 42 months in prison after he pled no contest to carrying a concealed weapon, receiving stolen property, having weapons under disability,2. resisting arrest, and obstructing official business. Because w e find that appellant’s motion to suppress should have been granted, we reverse the tri al court’s judgment and

remand this matter to the trial court. A. Facts and Procedural Background {¶ 2} During the early morning hours of August 16, 2019, law enforcem ent officers began searching a crowd of people that were congregate d in a parking lot at the Greenbelt Apartments in Toledo. Appellant, who was seated in t he rear of a parked vehicle in that lot, was ordered to exit the vehicle. During t he encounter, appellant was found to be in possession of a firearm. Consequently, on Augus t 23, 2019, appellant was indicted on one count of carrying a concealed weapon in violati on of R.C. 2923.12(A)(2) and (F)(1), a felony of the fourth degree, one count of receivi ng stolen property in violation of R.C. 2913.51(A) and (C), a felony of the fourth de gree to which a firearm specification was attached, one count of having weapons while u nder disability in violation of R.C. 2923.13(A)(2) and (B), a felony of the third degree, one count of resisting arrest in violation of R.C. 2921.33(A) and (D), a mis demeanor of the second degree, and one count of obstructing official business in viola tion of R.C. 2921.31(A) and (B), a misdemeanor of the second degree. {¶ 3} On September 24, 2019, after entering a plea of not guilty to t he aforementioned charges, appellant filed a motion to suppress, i n which he argued that his August 16 detainment was unconstitutional under both the Consti tution of the United States as well as the Ohio Constitution, because the initial st op of the vehicle was not3. supported by reasonable, articulable suspicion. In its memoran dum in opposition to the motion to suppress, the state argued that the stop was permissi ble under the totality of the circumstances, pointing to the timing of the stop (around 2 a.m .), the high crime location of the stop (a parking lot to which officers had previously res ponded for weapons-related offenses), and the fact that appellant was a participant in “a large disorderly disturbance.” {¶ 4} A hearing on appellant’s motion to suppress was held on Novembe r 26, 2019. At the hearing, the state called four witness. Its firs t witness was sergeant Melvin Stachura of the Toledo Police Department’s gang task force. {¶ 5} Stachura testified that he was on duty on the morning of August 16, 2019, and participated in detaining appellant at a parking lot locate d adjacent to an apartment complex known as the Greenbelt Place Apartments. According to Stachura, the parking lot at which the stop was initiated is known as the Wayne Lot, so named after a deceased Cherrywood Crip gang member who was murdered there in early 201 8. Stachura explained that the Greenbelt Place Apartments are also known as the Cherrywood apartments, which is a reference to the Cherrywood Crips who oc cupied the territory surrounding the apartment complex. Stachura testified that the Cherrywood apartment complex is a high crime area in the city of Toledo. {¶ 6} As he continued, Stachura indicated that the Cherrywood Crips h ad an ongoing feud with the Gear Gang Crips in Toledo, which led to f requent police calls to the area around the Greenbelt Place apartments. According to S tachura, police “were in that area every night” in response to reports of disorderly con duct, open containers,4. drinking, drug use, loitering, and shots fired. These encounte rs, according to Stachura, led to the confiscation of “a lot of weapons.” {¶ 7} Stachura patrolled the area around the Wayne Lot earlier in his shift on August, 16, 2019, taking note of the large crowd that had gathe red there. Upon his return to the Wayne Lot at 2 a.m., Stachura observed that there were “ at least 25 people” in the parking lot. He testified that he observed “open alcohol consu mption” and detected the odor of burnt marijuana in the area. He further explained that the individuals in the parking lot were “hanging out,” which he determined met the def inition of loitering. Stachura explained that loitering was a “huge problem” at the W ayne Lot, where Stachura frequently encountered “from 20 all the way up to a hu ndred people * * *, and there would be several fights that would break out.” {¶ 8} Before engaging the crowd at the Wayne Lot, additional police u nits were requested. Stachura explained that the request for additional units was made out of concern for officer safety based upon prior incidents of violen ce and the prevalence of weapons confiscations in that area. Moreover, Stachura stated that the decision to engage in the crowd was made by law enforcement and was not the produc t of any citizen complaints of criminal activity occurring at that location. {¶ 9} When he arrived on the scene, Stachura noticed that there were “two or three cars” parked with the engines not running, around which there w ere individuals who were drinking alcohol. He stated that “at that point we were going to make a stop on everybody.” He proceeded to the vehicle where appellant was se ated as a rear passenger,5. and “asked all the occupants of that vehicle to please exit the ir vehicle.” He stated at the suppression hearing that he ordered the occupants out of the ve hicle for officer safety in light of the “type of activities that go on in that area,” whic h 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 th at he could “find out who is actually doing the open consumption of alcohol, all the othe r various criminal activity that’s going on at that moment.” Moreover, Stachura indicated that he wanted to check everyone’s identification so that he could ascertain who belong ed at the apartment complex and who was loitering. {¶ 10} Appellant initially ignored the command to exit the vehicle. E ventually, appellant was removed from the vehicle by police, at which poin t Stachura overheard other officers stating that they saw a firearm. Thereafter, of ficers removed appellant from the vehicle, confiscated a firearm from his waistband, and arrested him. {¶ 11} On cross-examination, Stachura was pressed on his claim that th e individuals, including appellant, were loitering at the Wayne L ot. He acknowledged that one of the passengers in the vehicle was a resident of the apar tment 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. {¶ 12} As to his observation of criminal activity, Stachura stated tha t the odor of burnt marijuana was not localized to the subject vehicle, and h e acknowledged that the odor of burnt marijuana “can carry” over a distance depending o n the wind and “several6. factors.” Stachura testified that he did not see appellant or any of the occupants of the vehicle drinking alcohol, using marijuana, or engaging in any s pecific criminal activity. Nonetheless, Stachura indicated that he stopped the vehicle “be cause there [were] several individuals around it drinking and smoking marijuana.” {¶ 13} As its second witness at the suppression hearing, the state cal led Benjamin Kiser. Kiser is a police officer for the Toledo Police Departm ent, assigned to the Special Operations Bureau. Like Stachura, Kiser indicated that the Way ne Lot is located in an area of heavy drug gang activity, and he noted that he spent “m ost of July responding to

numerous shots fired calls.” {¶ 14} Kiser was dispatched to the Wayne Lot on August 16, 2019, in or der to provide “overwatch for officer safety.” Upon his arrival, Kise r observed individuals openly consuming alcohol and he detected an odor of burnt marij uana. Kiser noticed that officers who were already on the scene were detaining individua ls, but he focused his attention on the vehicle in which appellant was seated because he noticed that “most of the individuals were hanging around” the vehicle. As he approa ched the vehicle, Kiser heard officers directing the occupants to exit the vehicle. He then ordered appellant to exit the vehicle, and appellant “essentially ignored [him], was moving around in the back seat of the vehicle.” Kiser again instructed him to exit the v ehicle, and appellant indicated that he was trying to do so. When appellant ignored Kiser’s commands to exit the vehicle, Kiser became concerned that appellant was attempti ng to conceal a weapon or drugs. Thereafter, Kiser grabbed appellant’s left arm and p ulled appellant out of the7. vehicle. On cross-examination, Kiser acknowledged that he did not observe appellant consuming alcohol or using marijuana prior to appellant’s arres t. {¶ 15} As its third witness, the state called Toledo Police officer Mi chael

Ellerbrock to the stand. Ellerbrock was one of the officers wh o responded to the Wayne Lot on the night of appellant’s arrest. He generally corrobora ted the previous testimony concerning the open consumption of alcohol and the odor of burn t marijuana in the Wayne Lot, acknowledging that he did not observe appellant taki ng part in either of those

activities. Ellerbrock testified that he was the officer who n oticed the firearm in appellant’s waistband as Kiser was pulling appellant out of the vehicle. Upon noticing the firearm, he grabbed appellant by the arm and removed the we apon from appellant’s waistband. Ellerbrock’s bodycam footage depicting his encounte r with appellant was introduced into the record and published for the jury. {¶ 16} For its fourth and final witness, the state called detective Ni cholas Bocik of the Toledo Police Department’s gang task force. Like the other witnesses, Bocik was present at the Wayne Lot on the morning of August 16, 2019. Bo cik testified that Toledo police had responded to “over 20 reports involving firearms or shots fired or something of that type of incident” in the area around the Wayne Lot duri ng the three months preceding appellant’s arrest. Bocik characterized the Wayne Lo t as a high crime area, and proceeded to recount several specific incidents of shots fi red and other violent crimes involving firearms that took place near the Greenbelt Place Apa rtments between May8. 2019 and August 2019. Notably, Bocik did not testify as to any reports of shots fired in connection with the August 16, 2019 Wayne Lot encounter. {¶ 17} After the state finished presenting its witnesses, appellant el ected not to call any witnesses, and the parties presented their closing argument s. For his part, appellant argued that the state failed to establish the existence of reas onable suspicion to support its investigative stop of the vehicle or appellant. Appellant high lighted the fact that the state’s witnesses testified that they neither detected an odor of marijuana emanating from the vehicle nor observed any of the occupants of the vehicle co nsuming alcohol. Appellant further explained that the stop was not premised upon an ongoing emergency or a citizen complaint. Thus, appellant reasoned, the police s hould have simply issued citations to those who were openly consuming alcohol, and then order the crowd to disperse. Contending that reasonable suspicion was lacking her e, appellant argued that the officers were not permitted to detain everyone who was pres ent, including the occupants of the vehicle in which he was a passenger, which was legally parked in the Wayne Lot. {¶ 18} During its closing argument, the state argued that the totality of the circumstances supported the notion that the officers had reason able suspicion of criminal activity to initiate the stop of appellant and the others in th e vehicle. First, the state relied upon the fact that the stop occurred in a high crime area, and referenced the testimony that the Wayne Lot is “one of the most dangerous places in the city of Toledo.” Second, the state pointed to the fact that each of the officers who tes tified indicated that extensive9. criminal activity had occurred in and around the area of the Wa yne Lot during the summer of 2019. Third, the state relied upon the time of day i n which the stop took place as a factor weighing in favor of a finding that officer’s had r easonable suspicion to justify the stop. Fourth, the state contended that the stop was justif ied based upon appellant’s suspicious activity, namely his “repeated refusal to exit the v ehicle when he was ordered to do so.” Finally, the state cited the training and experienc e of the officers, who testified that had been involved in gang suppression for many years and w ere familiar with the area around the Wayne Lot and the Greenbelt Place Apartments. {¶ 19} Upon hearing the arguments of the parties, the trial court rend ered its decision on appellant’s motion to suppress from the bench. The court found that the state established reasonable suspicion based upon the expertise of th e officers, their knowledge of an ongoing gang war, their observation of open container vio lations and the odor of burnt marijuana, the high crime nature of the Wayne Lot area, a nd appellant’s refusal to exit the vehicle upon command. In light of these factors, and upon finding that officer safety concerns justified the police in ordering appellant out of the vehicle, the trial court denied appellant’s motion to suppress from the bench. The cour t issued a written decision summarily denying the motion to suppress on November 2 7, 2019. {¶ 20} Thereafter, on December 5, 2019, appellant appeared before the trial court for a change of plea hearing, at which he entered a plea of no contest to the charges contained in the indictment. The trial court accepted appellan t’s plea, found him guilty of the charges, and continued the matter for sentencing.10. {¶ 21} At a December 23, 2019 sentencing hearing, the trial court orde red appellant to serve prison sentences of 12 months for carrying a concealed weapon, 12 months for receiving stolen property, 18 months for having weap ons while under disability, 90 days for resisting arrest, and 90 days for obstr ucting official business. Additionally, the trial court imposed a sentence of one year fo r the firearm specification attached to the charge of receiving stolen property. Appellant was then ordered to serve the 12-month sentences and 90-day sentences concurrently to one another, but consecutively to the remaining 18-month sentence and one-year s entence, for an aggregate prison sentence of 42 months. Thereafter, appellant filed his timely notice of appeal. B. Assignment of Error {¶ 22} On appeal, appellant assigns the following error for our review : The Trial Court erred in denying Appellant’s Motion to Suppress when the officer lacked a reasonable and articulable suspicion to justify the stop and detention of Appellant in violation of the Fourth and Fourteenth Amendments and Article I, Section 14 of the Ohio Constitution. II. Analysis {¶ 23} In his sole assignment of error, appellant argues that the tria l court erred in denying his motion to suppress. {¶ 24} Our review of the trial court’s denial of appellant's motion to suppress “presents a mixed question of law and fact.” State v. Wesson , 137 Ohio St.3d 309, 2013-11. Ohio-4575, 999 N.E.2d 557, ¶ 40, quoting State v. Burnside , 100 Ohio St.3d 152, 2003- Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court’ s factual findings if they are supported by competent credible evidence, and “independentl y determine, without deference to the conclusion of the trial court, whether the fac ts satisfy the applicable legal

standard.” Wesson at ¶ 40, quoting Burnside at ¶ 8. {¶ 25} Here, appellant argues that the trial court should have granted his motion to suppress, because the discovery of a firearm on his person was the product of an investigatory detention that was not supported by reasonable su spicion and was therefore

unconstitutional under the Fourth Amendment to the United State s Constitution and Article I, Section 14 of the Ohio Constitution, both of which p rotect citizens from

unreasonable searches and seizures. {¶ 26} “‘The U.S. Supreme Court has created three categories of police -citizen contact to identify the separate situations where constitutiona l guarantees are implicated: (1) consensual encounters, (2) investigative or “ Terry [ v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)]” stops, and (3) arrests.’” (Citations o mitted.) State v. Williams , 6th Dist. Lucas No. L-17-1148, 2018-Ohio-5202, ¶ 20, quoting State v. Staten , 4th Dist. Athens No. 03CA1, 2003-Ohio-4592, ¶ 16. Here, the encounter be tween appellant and police falls into the category of an investigative Terry stop. {¶ 27} In order to pass constitutional muster, an investigative stop must be premised upon an officer’s reasonable, articulable suspicion of criminal activity. Bowling Green v. Murray , 6th Dist. Wood No. WD-18-045, 2019-Ohio-4285, ¶ 12, citing12. State v. Mesley , 134 Ohio App.3d 833, 840, 732 N.E.2d 477 (6th Dist.1999). Su ch suspicion must be objective, particularized, and based on the t otality of the circumstances confronted by the officer prior to the stop. State v. Andrews , 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991); see also United States v. Cortez , 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (“Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the pa rticular person stopped of criminal activity.”). {¶ 28} In analyzing suppression arguments challenging the propriety of investigative stops, courts must view the totality of the circu mstances “‘through the eyes of a reasonable and cautious police officer on the scene, guide d by his experience and training.’” State v. Freeman , 64 Ohio St.2d 291, 295, 414 N.E.2d 1044 (1980), quoting

United States v. Hall , 525 F.2d 857, 859 (D.C.Cir.1976). To be sure, an investigati ve stop cannot be “based on nothing more substantial than inarticu late hunches * * *.” Terry at 22. Rather, “before stopping a person, the officers must h ave an objective basis for suspecting that that particular person was involved in the criminal activity. (Emphasis sic.) State v. Hairston , 156 Ohio St.3d 363, 2019-Ohio-1622, 126 N.E.3d 1132, ¶ 26 (Donnelly, J., concurring), citing Cortez at 417-418 and Ybarra v. Illinois , 444 U.S. 85, 94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In determin ing whether or not the officer has a reasonable suspicion we look at the totality of t he circumstances and not to any one factor. Andrews at 87.13. {¶ 29} The investigative stop at issue in this case took place upon of ficers’ arrival at the Wayne Lot. Ellerbrock’s bodycam footage of his encounte r with appellant and testimony from the officers reveals that the vehicle in which a ppellant was a passenger was targeted for detention almost immediately upon officers’ ar rival on the scene, without any observation of criminal or even suspicious conduct on appellant’s part. {¶ 30} In its brief to this court (and in its arguments before the tri al court at the suppression hearing), the state relies upon several factors tha t appear in the Ohio Supreme Court’s decision in Andrews . The state claims that these factors provided officers with reasonable suspicion to conduct their investigati ve stop of the vehicle and its passengers (including appellant). The factors cited by the state include (1) the high crime area in which the Wayne Lot is located, (2) the time of d ay of the encounter (approximately 2 a.m.), (3) the training and experience of the detaining officers, who were long-time members of the gang task force unit, and (4) app ellant’s suspicious

conduct after he was ordered to exit the vehicle. {¶ 31} As noted, the factors relied upon the by the state were previou sly used to justify an investigative stop in the Ohio Supreme Court’s decis ion in Andrews

. Id. at ¶ 88; see also State v. Williams , 6th Dist. Lucas No. L-17-1148, 2018-Ohio-5202 (examining the foregoing factors in the context of a reasonable suspicion analysis). However, as set forth below, we find that one of the factors ar ticulated by the Ohio Supreme Court in Andrews (suspicious activity of the defendant) is not supported by any14. evidence in this case, and the other factors do not give rise t o a particularized suspicion that appellant was engaged in criminal activity. {¶ 32} Initially, we reject the state’s reliance upon appellant’s alle gedly suspicious activity after he was ordered to exit the vehicle. In Andrews , the suspicious activity

occurred prior to the stop. Specifically, the officer observed the defendant ru nning away from the police cruiser, and when the defendant saw the officer he suddenly stopped and threw down what he was carrying in his hand. Id

. {¶ 33} By contrast, appellant’s activity occurred after the investigative stop was already underway. The investigative stop began, and appellant was detained, at the

moment he was ordered out of the car. State v. Johnson , 8th Dist. Cuyahoga No. 92540, 2009-Ohio-5377, ¶ 22. Logically, appellant’s conduct in respon ding to the officers’

orders to exit the vehicle could not form the basis for the off icers to approach the vehicle and initiate the stop in the first place. Unlike the defendant ’s prior conduct in Andrews , which could give rise to a reasonable suspicion of criminal act ivity, appellant’s actions in response to the officers’ commands, whether suspicious or not, are irrelevant to the question of whether the investigative stop in this case was sup ported by reasonable suspicion. {¶ 34} Turning to the remaining factors, we agree with the state that the testimony provided at the suppression hearing established that the stop w as initiated by experienced15. officers, in a high crime area, late at night. 1 However, these factors alone do not support the initiation of an investigative stop, because the officers w ho responded to the Wayne Lot did not possess the requisite reasonable suspicion to belie ve that appellant was engaged in criminal activity. Indeed, there is a dirth of evid ence in the record that appellant or any of the other passengers in the vehicle were su spected of any criminal activity. {¶ 35} According to Stachura and the other officers, a large crowd of individuals were gathered at the Wayne Lot upon his arrival on the scene. Some of these individuals were openly consuming alcohol, but appellant and the other occu pants of the vehicle were not. Further, there was an odor of burnt marijuana in the air, but none of the officers testified that it was emanating from the vehicle, and the officers acknowledged that they did not see the vehicle’s occupants using marijuana. {¶ 36} Rather than limit their encounter to the individuals who were e ngaged in criminal activity, Stachura decided to “make a stop on everybod y” so that he could “find

1 The dissent emphasizes the facts supporting these factors, and finds that we fail to tie these facts to the officer’s treatment of appellant. While we acknowledge that the area in which the stop in this case occurred was a high crime area, thi s 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 crim e. This would encourage the arbitrary exercise of law enforcement power, and usher in s omething akin to “FourthAmendment-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 sufficien t factor to support a Terry stop.16. out who is actually doing the open consumption of alcohol, all the other various criminal activity that’s going on at that moment.” Stachura indicated t hat he stopped the vehicle “because there [were] several individuals around it drinking an d smoking marijuana.” {¶ 37} This testimony is revealing, because it demonstrates that offic ers lacked any particularized suspicion that the occupants of the vehicle (including appellant) were engaged in, or about to be engaged in, any criminal activity. In essence, the investigative stop at issue here was premised upon officers’ knowledge of his torical criminal activity in this high crime area, and observations of conduct of other i ndividuals outside the vehicle, not any observations specific to appellant or the othe r occupants of the vehicle. Moreover, despite extensive testimony as to the prevalence of g ang activity in this area generally, there was no evidence adduced by the state at the su ppression hearing to suggest that gang activity was underway at the Wayne Lot at the time of appellant’s detention, and officers did not testify that appellant or any o f the occupants of the vehicle were engaged in gang activity. {¶ 38} The record below establishes that (1) the Wayne Lot is a high c rime area in the city of Toledo and (2) other individuals in the parking lot were engaged in illegal activity. 2 In State v. Carter , 69 Ohio St.3d 57, 630 N.E.2d 355 (1994), the Ohio Supreme

2 At the suppression hearing, officers briefly asserted that the individuals at the Wayne Lot were loitering, without elaborating as to whether appellant ’s presence in the vehicle constituted a violation of the city of Toledo’s loitering ordin ance or any other loitering law. Moreover, the officers acknowledged that one of the occup ants of the vehicle was a resident of the Greenbelt Place apartments and was therefore pe rmitted to be at the parking lot. On this record, we find that loitering did not pr ovide a basis for the17. Court examined the propriety of an investigative stop that took place in a high crime area, and stated “that factor alone is not sufficient to justify an i nvestigative stop. * * * To hold otherwise would result in the wholesale loss of the personal li berty of those with the misfortune of living in high crime areas.” Id. at 65; see also Brown v. Texas , 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (being “in a neigh borhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct”). Further, appellant’s “mere prox imity to others independently suspected of criminal activity does not, without more, provide a sufficient constitutional basis to [stop] that person.” State v. Rosa , 8th Dist. Cuyahoga No. 85247, 2005-Ohio-3028, ¶ 14; see also Ybarra v. Illinois , 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (examining the issue of particularity in the context of the search of a person, and stating that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”).

investigative stop in this case. See State v. Griffin , 133 Ohio App.3d 490, 500, 728 N.E.2d 1097 (6th Dist.1999), quoting Thornhill v. Alabama , 310 U.S. 88, 97-98, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (“Subjectively interpreting the loite ring laws to provide probable cause to arrest in order to search an individual in a high crime or drug area, where there was no probable cause to believe any drug offense h ad occurred, creates a convenient but impermissible tool for ‘harsh and discriminatory enforcement by local prosecuting officials against particular groups deemed to merit their displeasure.’”); Johnson , supra , 8th Dist. Cuyahoga No. 92540, 2009-Ohio-5377, at ¶ 24 (“merel y because [the defendant] was in a car parked in an area where se veral people were loitering on a sidewalk does not give the state justification t o search [him] or the car he was occupying.”).18. {¶ 39} While the officers may have had the requisite reasonable suspic ion to initiate an investigative stop of the individuals outside the v ehicle, they possessed nothing more than an “inchoate and unparticularized suspicion,” or a “h unch” that appellant was engaged in criminal activity. State v. Rivera , 6th Dist. Lucas No. L-04-1369, 2006-Ohio1867, ¶ 18, quoting Terry , 392 U.S. at 27, 88 S.Ct. 1868, 20 L.Ed.2d 889. Because the officers failed to articulate an objectively reasonable basis t o 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 suspic ion was lacking here. 3 {¶ 40} Were we to hold otherwise, we would obliterate the particulariz ation requirement set forth in Terry and its progeny, and establish an “unwise precedent that a police officer may conduct an investigative stop of any person present in a so-called ‘high crime’ area * * *, without any specific and articulable facts p ointing more directly to that

3 The dissent focuses on officer safety as a basis for the offic ers to order appellant out of the vehicle, concluding that the officers exercised reasonable and prudent precaution by clearing the vehicle while conducting the investigation of thos e individuals who were loitering at the Wayne Lot. We recognize the need for officers to ensure their own safety in carrying out legitimate police functions, but we reject the notion that such safety concerns trump the constitutional rights enjoyed by those indiv iduals with whom police interact. Instead, safety precautions must be crafted by offic ers to both protect the officer and safeguard the individual’s constitutional rights. In this case, the officers could have fulfilled this dual objective by, for example, simply ordering the driver of the vehicle in which appellant was a passenger to depart from the Wayne Lot, t hereby removing the vehicle and its occupants from the area entirely. This would h ave been especially appropriate here, because the officers had no indication that t he detected odor of marijuana was emanating from the vehicle at the time of the enc ounter and there were no other indicia of criminal activity specific to the occupants of the vehicle.19. particular person’s being engaged in criminal activity.” Hairston , supra , 156 Ohio St.3d 363, 2019-Ohio-1622, 126 N.E.3d 1132, at ¶ 32 (O’Connor, C.J., dissenting). {¶ 41} Having found that officers lacked reasonable suspicion to initi ate the investigative stop of appellant, it follows that the firearm di scovered during the investigative stop should have been suppressed as “fruits of th e poisonous tree.” See Wong Sun v. United States , 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (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.

III. Conclusion {¶ 42} In light of the foregoing, the judgment of the Lucas County Cou rt of Common Pleas denying appellant’s motion to suppress is reversed , and this matter is remanded to the trial court for further proceedings consistent with this decision. Pursuant to App.R. 24, appellee is hereby ordered to pay the costs incur red on appeal. Judgment reversed, and remanded.

Christine E. Mayle, J. ____________________

___________ JUDGE Gene A. Zmuda, P.J. CONCUR. _______________________________ JUDGE

Myron C. Duhart, J. DISSENTS AND WRITES SEPARATELY.20. DUHART, J. {¶ 43} I respectfully dissent from the majority's opinion reversing th e trial court's denial of Mosby’s motion to suppress. I conclude that the fact s as articulated do not accurately reflect the reality of the situation with which offi cers were faced, and, therefore, led to a faulty analysis and result in this case. {¶ 44} While the majority acknowledges that there was evidence of “ove r 20 reports involving firearms or shots fired” in the area around t he Wayne Lot during the three month’s preceding appellant’s arrest, they seem to ignore specific evidence of a recent report, from August 10, 2019, of an incident during whic h some 40 people who had gathered in the Wayne Lot were fighting. They also fail to mention a report from August 15, 2019 -- the night before appellant’s arrest in this matter -- of an incident during which a large group of individuals were loitering at the Wayne Lot and then fled, after which police recovered a firearm on the tire of a vehicle . As testified to by the officers, the Greenbelt Apartments/Wayne Lot area was a high cr ime area that officers responded to frequently in the summer of 2019. {¶ 45} Although the majority acknowledges: (1) that the area in questi on was a high crime area, (2) that people gathered in the area with appe llant -- at 2:00 a.m. -- were openly consuming alcohol, and (3) that there was the odor of bu rnt marijuana in the air, they largely fail to tie these facts to the officer’s treatment of appellant. The scene of the arrest was not just a high crime area; it was a high crime area in which a crowd was gathered and where yet-to-be-identified individuals in that cro wd were unquestionably21. involved in illegal activity. While the majority admits that “t he officers may have had the requisite reasonable suspicion to initiate an investigative sto p of [other unnamed or otherwise identified] individuals outside the vehicle,” they pu zzlingly conclude that the officers “possessed nothing more than an ‘inchoate and unpartic ularized suspicion,’ or a ‘hunch’ that appellant was engaged in criminal activity inside the car. {¶ 46} When the majority states that “the investigative stop * * * was premised upon officers’ knowledge of historical criminal activity in thi s high crime area, and

observations of conduct of other individuals outside the vehicl e, [and] not any observations specific to appellant or the other occupants of th e vehicle,” they erroneously isolate appellant, his behavior, and his treatment, on the nigh t in question from highly relevant surrounding circumstances. The circumstances of this c ase involve more than appellant’s “mere proximity” to others engaging in illegal acti vity. Because appellant was a part of the crowd in which as-yet-unidentified members we re engaged in illegal activity, and because the crowd was located in an area where cr owds were frequently and recently the source of violence and illegal firearms, officers had a reasonable basis to suspect that appellant, himself, was involved in criminal activ ity. {¶ 47} Sgt. Stachura testified that when the 2:00 a.m. detention of ap pellant occurred, appellant was seated in the back seat of a vehicle th at was surrounded by loitering individuals. He further testified that appellant was asked to exit the vehicle for officer safety, because it was difficult to see appellant’s han ds or any weapons he may have possessed. Given the circumstances, I believe that the of ficers’ precaution in this22. regard was lawful, reasonable, and prudent. Officer Kiser testi fied that appellant refused to exit the vehicle and was “moving around” in the back seat, a lthough nothing was impeding him from exiting and, instead, he was merely ignoring officer directions. Officer Kiser testified that he was concerned that appellant wa s concealing weapons or drugs, something that Officer Kiser had commonly experienced su spects doing. Officer Ellerbrock likewise testified that appellant refused to exit th e vehicle, and Officer Ellerbrock subsequently observed the firearm in appellant’s wai stband. {¶ 48} In sum, the chain of events that led to appellant being taken o ut of the car should be viewed in its totality, as a continuum of suspicion, where each circumstance reasonably increased the officers’ level of suspicion. In so d oing, I conclude that evidence of appellant’s suspicious conduct as described by the officers clearly favors a finding of reasonable, articulable suspicion. Likewise, I beli eve the majority errs in limiting the focus of its analysis to the narrow question of wh ether criminal activity may or may not have been occurring inside the vehicle at the precis e time that the officers approached, apparently giving little or no weight to the totali ty of the circumstances that brought appellant to the attention of the officers in the first place.