[Cite as State v. Stanton , 2020-Ohio-4087.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. ROBERT LEQUAN STANTON Defendant-Appellant : : : : : : : : : : Appellate Case No. 28574

Trial Court Case No. 2019-CR-1092 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 14th day of August, 2020.

. . . . . . . . . . . MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218 , Montgomery County Prosecutor’s Office, Appellate Division, Montgomery Coun ty Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee JOHN S. PINARD, Atty. Reg. No. 0085567, 120 West Second Street, Suite 603, Dayton, OH 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FROELICH, J.-2-

{¶ 1} After the trial court overruled his motion to suppress, Robert Lequan Stanton pled no contest to having weapons while under disability. The trial court found him guilty and sentenced him to up to five years of community control. St anton appeals from his conviction, claiming that the trial court erred in denying his motion to suppress. For the following reasons, the trial cour t’s judgment will be affirmed. I. Factual and Procedural History {¶ 2} The evidence at the suppression hearing revealed the following facts. {¶ 3} Around 11:00 p.m. on March 25, 2019, a tan 2008 Buick Lucerne 1 (a fourdoor sedan) with a temporary license plate fled from Officer An drew Lane and his partner, Officer Zachary Banks. Officer Lane testified that the color o f the Buick was “kind of unique,” and he believed it was not a “factory paint color.” T he officers had no

information about the driver of the Buick. Officer Lane resear ched the license plate and learned that the vehicle was registered to a woman. {¶ 4} A few days later on March 28 at 7:27 p.m, while on road patrol in a marked cruiser, Officers Lane and Banks noticed what they believed was the same Buick parked in the parking lot of an Auto Zone. The officers turned into t he Auto Zone parking lot. At the same time, Stanton walked out of the store and proceeded along the sidewalk between the store and the parked vehicles, toward the Buick. L ane indicated that there were three or four other vehicles in the parking lot, and “they were all parked right along

1 Officer Lane testified that he thought the broadcast was for a Buick LaCrosse, but indicated that the model was listed in the police report. The report identified the vehicle as a Buick Lucerne.-3- the front row of the building there.” 2 Stanton was looking down at his purchase as he

walked. {¶ 5} The officers pulled in front of the Buick, which had backed int o the parking space. Stanton then stepped off the curb along the driver’s si de of the Buick, took a couple steps toward the driver’s door, and stopped. Officer La ne acknowledged that he did not see Stanton reach for the door handle, but he testified that Stanton had gone over to the driver’s door. Based on Officer Lane’s testimony, the t rial court found that Stanton “walked up to the car.” (July 2, 2019 Hrg., p. 9.) {¶ 6} Stanton looked up and saw the officers. Stanton then “[did] a double take and turn[ed] around and start[ed] to walk away from the car bac k towards the back of the parking lot.” It is somewhat unclear which direction Stanton w alked. On crossexamination, Officer Lane stated that Stanton tried to walk pas t the cruiser and leave the parking lot. (Supp. Tr. at 26.) Officer Lane later stated tha t Stanton stepped back onto

the sidewalk and started to head toward an area where no cars w ere parked. (Supp.T r. at 33.) {¶ 7} Both officers stepped out of the cruiser. Upon exiting their v ehicle, the officers noticed that the Buick’s engine was running, the car h ad dark tinted side windows, no one was inside it, and music was playing loudly. (The offic ers had heard the music upon turning into the parking lot.)

2 In its oral ruling on the motion to suppress, the trial court stated that it had “observed all the photographs on the disk [State’s Ex. 1] as well as the ones that were admitted. Those photographs surely were not taken the second that the officers saw the Defendant and so to suggest that because the photographs show vehicles around the vehicle in question is not a representation of what was occurring when they had fir st saw the Defendant approach the vehicle.” (July 2, 2019 Hrg., p. 8-9.)-4- {¶ 8} Officer Lane walked around the Buick to look at the back licens e plate; it matched the plate of the vehicle that had previously fled from them. At the same time, Officer Banks approached Stanton, identified himself, and asked Stanton to speak with them. Stanton responded that he was just leaving. Officer Ban ks asked Stanton if he was driving the Buick. Stanton pointed to another car in the p arking lot (a Nissan to the left of the Buick) and said that was his car, but he then tried to continue walking out of the parking lot. After Officer Lane confirmed that the Buick was t he vehicle that had fled, Officer Banks handcuffed Stanton and placed him in the cruiser. {¶ 9} Officer Lane went into the store and asked an employee if she k new who owned the Nissan; the employee indicated that the Nissan was he rs. The officers walked around the Buick. Officer Banks, standing along the passenger side, told Officer Lane that he (Banks) could see a handgun sticking out from under the driver’s seat. Officer Lane looked down and saw the gun through the driver’s side wind ow. Lane testified that he could see it more easily through the windshield, which was n ot tinted. Officer Lane took photographs of the gun from the exterior of the vehicle pr ior to collecting it. At some point, Officer Banks tested the window tint of the Buick and co nfirmed that it was in

violation of Ohio’s window tint statute. Officer Lane testifie d that the loud music also

constituted a code violation. {¶ 10} Officer Banks spoke with Stanton and asked him for identifying information. Soon thereafter, the officers learned that Stanton was subject to an arrest warrant. Ultimately, they arrested him on that warrant as well as for ha ving a weapon while under disability. {¶ 11} Because the Buick was in a public parking lot and Stanton was n ot the-5- registered owner of the vehicle, the officers decided to tow th e Buick pursuant to Dayton’s tow policy. The officers collected the gun as part of the inve ntory of the Buick. {¶ 12} Approximately 30 minutes after Stanton was placed in the cruise r, Officer

Banks read Stanton his Miranda rights. Officer Lane testified that he did not observe any behavior by Stanton that would suggest that Stanton was intoxic ated or otherwise could not understand his rights. Lane did not hear Officer Banks mak e any threats or otherwise suggest that Stanton had to make statements. Stanton subsequen tly admitted to driving the car, but denied owning the gun. {¶ 13} Stanton was charged with having weapons while under disability, a felony of the third degree. He subsequently moved to suppress the evi dence, claiming that he was not lawfully stopped and detained and that the statements h e made were not voluntary and were made in violation of his Miranda rights. {¶ 14} The trial court denied the motion to suppress. In its oral rul ing, the court specifically found that Stanton had walked up to the Buick. Th e court found that Stanton “only turned away when he saw the officers as he was at the doo r.” (July 2, 2019 Hrg., p. 9.) Based on the window tint and the loud music, the office rs had a reasonable suspicion of criminal activity to detain Stanton, “even if they didn’t know that the Defendant was associated with the fleeing from the traffic stop the day p reviously [sic].” ( Id .) The court further found that statements Stanton made regarding the Nissan were spontaneous statements and that the gun in the Buick was in plain view from outside the vehicle. The court also concluded that the statements made by Stanton while in the cruiser were not subject to suppression. The court filed a written entry adopti ng its oral pronouncement. {¶ 15} Stanton subsequently pled no contest to having weapons while un der-6- disability. The court sentenced him to community control. Sta nton raises one assignment of error on appeal. II. Validity of the Stop and Detention {¶ 16} Stanton’s sole assignment of error claims that the officers lac ked a reasonable and articulable suspicion of criminal activity to ju stify stopping and detaining him and, therefore, the evidence they gathered as a result of t he stop should have been subject to the exclusionary rule. {¶ 17} In ruling on a motion to suppress, the trial court “assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.” State v. Retherford , 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial court’s findings of fact if they are supported by competent, cr edible evidence. Retherford at 592. “Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court’s conclusion, whether they meet the applicable legal standard.” Id

. {¶ 18} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry , police officers may briefly stop and/or temporarily detain individuals in order to investigate possible criminal activity if the officers have a reasonable, articulable suspicion that criminal activity may be afoot. Id .; State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8. We determine the existence of reasonable suspicion by evaluating the totality of the circumstances,-7- considering those circumstances “through the eyes of the reason able and prudent police officer on the scene who must react to events as they unfold.” State v. Heard , 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews , 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991); State v. Hairston , 156 Ohio St.3d 363, 2019-Ohio1622, 126 N.E.3d 1132, ¶ 10. {¶ 19} The Ohio Supreme Court recently emphasized that “[a]n assessmen t of the totality of the circumstances ‘does not deal with hard certaint ies, but with probabilities.’ We consider the cumulative facts ‘not in terms of library analy sis by scholars, but as understood by those versed in the field of law enforcement.’ ” Hairston at ¶ 10, quoting

United States v. Cortez , 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Moreover, the existence of reasonable suspicion is determined “ based on the collection of factors, not on the individual factors themselves.” (Emphasi s sic.) Id. at ¶ 15, quoting

State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 19. {¶ 20} Nevertheless, the officer must have more than an inchoate and unparticularized hunch or suspicion to justify an investigatory stop. State v. Belvin , 2d Dist. Montgomery No. 25987, 2014-Ohio-3634, ¶ 8; Terry at 22. “[T]he Fourth Amendment requires at least a minimal level of objective justif ication for making the stop.”

Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). {¶ 21} Stanton argues that the totality of the circumstances consisted of only two facts: the officers believed the parked Buick may have fled fro m them two days prior, and Stanton was walking near the Buick in an area where other cars also were parked.

Stanton believes these facts were insufficient to establish rea sonable suspicion. Stanton emphasizes that the officers had no information about the drive r of the vehicle that had-8- fled, and Officer Lane had to look at the license plate of the parked Buick to confirm that it was the same vehicle. He further emphasizes that the office rs did not see Stanton with keys in his hand or see him reach for the door handle. Stanton thus asserts that the

officers did not have a reasonable basis to conclude that he wa s the driver of the parked

Buick. {¶ 22} Stanton also argues that the trial court made several errors in its ruling on the motion to suppress. Stanton argues that the court’s factua l finding that the vehicle was empty contradicted Officer Lane’s testimony that the office rs did not know if the vehicle was occupied when they approached Stanton. Stanton fur ther asserts that the

trial court’s reliance on window tint and music violations was incorrectly premised on an assumption that the officers had a reasonable suspicion that St anton was the driver of the parked Buick. {¶ 23} As an initial matter, the trial court’s finding that the vehicl e was empty was supported by competent, credible evidence. During his direct e xamination, Officer Lane

testified about what was “notable about the car at the time” th at he saw it. (Supp. Tr. at 9.) Read in context, the prosecutor appeared to be asking what the officers noted when they stopped in front of the Buick and got out. Lane responded : “Well, the engine’s running, there’s no one inside at the time, it has dark tinted windows on the side and -- and that's about it at that time.” ( Id . at 9.) With further questioning, Lane testified that the officers could hear music playing from the car, and they be gan hearing it as soon as they turned into the parking lot. ( Id .) {¶ 24} After cross-examination, the court had a few follow-up question s: THE COURT: I do have a question because I want to make sure I’m clear.-9- When you approached that vehicle, you a re investigating the fli ght from you several days before.

THE WITNESS: Yes. THE COURT: Okay. And when you or your partner approached the Defendant, did you have any intention of searching that vehicle at that time or were you, again – THE WITNESS: In that moment, we didn’t even know if anybody was actually in the car yet. THE COURT: Okay. THE WITNESS: So we were just kind of – THE COURT: Trying to figure out what was going on? THE WITNESS: Trying to figure out what was going on. THE COURT: Okay.

THE WITNESS: Yes. ( Id . at p. 30-31.) {¶ 25} On redirect, the prosecutor attempted to clarify the violations that Officer

Lane had seen. Q Judge had asked a couple questions. When you pull into the l ot, you are investigating the failure to comply as you stated to the judge.

A Yes. Q What were the other violations, though, that the vehicle had? A Yeah. Once we approached we observed the window tint and we could hear the loud music playing. The car had been left unattended, unlocked,-10- running with the keys in it which we didn’t know just yet but. Those were all the violations that [sic] just on initial contact. ( Id . at p. 31.) {¶ 26} Based on Officer Lane’s testimony, the trial court could have r easonably found that the officers could hear music when they entered the parking lot, but did not have additional information about the Buick, such as if it were occupied. The officers stopped the cruiser in front of the Buick, which was faced outw ard toward the parking lot; the front windshield, which faced the cruiser, was not tinted. The court could have reasonably found that when the officers exited their cruiser in front of the Buick, the officers could then see that the Buick was unoccupied, was runn ing, had heavily tinted side windows, and had loud music emanating from it. Although O fficer Lane’s testimony was somewhat inconsistent, the trial court resolved the factual question and its finding was supported by competent, credible evidence. {¶ 27} The evidence at the suppression hearing also supported a conclu sion that the Buick was involved in criminal activity. Officer Lane test ified that he and Officer Banks recognized the Buick as a vehicle that he had fled from t hem a few days earlier. Most notably, Officer Lane testified that the vehicle was an un usual color, and he believed it was not a factory paint col or for that car. Upon pulling up to the Buick, the officers noted that the side windows were heavily tinted and the car was playing music loudly, both of which were code violations. As Officer Banks approache d Stanton, Officer Lane looked at the Buick’s license plate and confirmed that the Buic k was the same vehicle that had fled. When Officer Banks subsequently handcuffed Stan ton and placed him in the cruiser, the officers had a reasonable suspicion that the B uick previously had been-11- involved in a failure to comply offense and was currently in vi olation of noise and window

tint statutes. {¶ 28} Stanton’s primary argument is that the officers lacked a reason able suspicion that he was the driver of the Buick. He thus claims that, even if the officers may have reasonably suspected that the Buick was associated wit h past and current criminal activity (the window tint violation, the noise violati on, and the March 25 failure to comply), the officers lacked a reasonable suspicion of criminal activity by him specifically. {¶ 29} Our resolution of this question rests on the trial court’s fact ual determination as to whether Stanton was heading to the Buick. As stated abov e, Officer Lane testified that Stanton came out of the store, walked along the sidewalk, and stepped off the curb

on the driver’s side of the Buick. Lane indicated that Stanton then went “over to the driver’s door of that car” and stopped. According to Lane, onl y after Stanton saw the

officers did he turn around and start to walk toward the back o f the parking lot. Lane stated that it was “our belief that he was probably the one dri ving the car so we went ahead and detained him.” Based on Lane’s testimony, the trial court reasonably found that Stanton “walked up to the car [the Buick]” and was not mer ely walking through the parking lot. With that factual finding, the officers had a rea sonable suspicion that Stanton was the driver of the vehicle, and thus the officers were justi fied in stopping Stanton to investigate criminal violations connected with the Buick. {¶ 30} Stanton’s assignment of error is overruled.

III. Conclusion {¶ 31} The trial court’s judgment will be affirmed.

. . . . . . . . . . . . .-12-

DONOVAN, J. and WELBAUM, J., concur.

Copies sent to: Mathias H. Heck, Jr. Jamie J. Rizzo John S. Pinard Hon. Mary Katherine Huffman