State v. King

[Cite as State v. King, 

.]



                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO


 STATE OF OHIO,                            :   APPEAL NO.      C-240302
                                               TRIAL NO.       B-2305652
       Plaintiff-Appellee,                 :

    vs.                                    :

 NICKELAUS KING,                           :          O P I N I O N.

       Defendant-Appellant.                :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 20, 2024



Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Schuh & Goldberg, LLP, and Brian T. Goldberg, for Defendant-Appellant.
                OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.

       {¶1}   After an individual smoking marijuana with a gun protruding from his

pocket jaywalked across a street in downtown Cincinnati, officers converged on him

to perform a Terry stop, which then shifted to an arrest when he allegedly obstructed

official business. As they conducted a search incident to the arrest, they discovered

drugs and other contraband, precipitating various drug-related charges.           The

defendant sought to suppress the evidence, challenging the propriety of the stop and

subsequent search. The trial court saw it differently, however, denying his motion,

which eventually led to no-contest pleas. On appeal, the defendant attacks the trial

court’s suppression ruling, but, after reviewing the complete record, we see no basis

for disturbing its decision. Accordingly, we affirm the trial court’s judgment.

                                           I.

       {¶2} In November 2023, Sergeant Jerome Herring and Lieutenant Schofield

of the Cincinnati Police Department were patrolling the Over-the-Rhine area within

downtown Cincinnati. While patrolling, Sergeant Herring smelled the odor of burnt

marijuana. As he searched for the origins of the scent, he and Lieutenant Schofield

eventually observed a group of individuals leaning up against a wall on Vine Street,

including defendant-appellant Nickelaus King.

       {¶3} As the officers watched the group, Sergeant Herring saw what he

believed to be a firearm sticking out of Mr. King’s pocket and saw him smoking

marijuana (consistent with the potent smell in the area). Once Mr. King noticed the

officers’ patrol car, he averted his eyes and began shifting his body in a manner to

(presumably) hide the gun from the officers’ view. The officers began following Mr.

King as they circled around the block, continuing to observe him.

       {¶4} In the midst of all of this, Mr. King jaywalked across the street, which,


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                 OHIO FIRST DISTRICT COURT OF APPEALS


in addition to the marijuana and the gun, gave officers what they believed was

sufficient justification to conduct a Terry stop. The officers pulled down the street,

jumped out of their car, and moved to detain him, admonishing him not to run. As

Sergeant Herring ordered him to raise his hands and grabbed ahold of him, Mr. King

tensed up and tried to pull his hands away from the officer, insisting that he had done

nothing wrong.

       {¶5} Once Lieutenant Schofield threatened to tase him, Mr. King reluctantly

complied and put his hands behind his back. As they detained him, officers explained

to Mr. King that he was being charged with obstructing official business by virtue of

his interference with their investigation.

       {¶6} Following Mr. King’s arrest, Sergeant Herring secured the firearm and

searched him finding marijuana, a bottle of oxycodone, a digital scale, and a bindle of

cocaine. The officers then ran a query on the firearm, which indicated that the gun

had been stolen from a nearby residence.

       {¶7}   Based on these discoveries, the State ultimately charged Mr. King with

aggravated possession of drugs and possession of cocaine, both pursuant to R.C.

2925.11(A). Early this year, Mr. King filed a motion to suppress the evidence resulting

from the search, challenging the initial stop and the search. In essence, he claimed

that officers lacked both reasonable suspicion for the initial stop as well as probable

cause to effectuate the arrest and search. The trial court convened a hearing where

Sergeant Herring testified that the entirety of Mr. King’s observed behaviors provided

officers with reasonable suspicion to perform an investigatory stop. Further, Sergeant

Herring detailed how Mr. King’s resistant behaviors once officers made contact

delayed their ability to investigate his firearm possession while smoking marijuana,

smoking of marijuana in a public place, and the jaywalking incident. For that reason,


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                 OHIO FIRST DISTRICT COURT OF APPEALS


officers believed they had probable cause to arrest him for obstruction of official

business. Ultimately, after sifting through the evidence, the trial court sided with the

State and denied his motion to suppress, finding that officers lawfully stopped,

arrested, and searched Mr. King.

       {¶8} In the aftermath of this ruling, Mr. King withdrew his initial not-guilty

pleas and pled no contest to both charges. Subsequently, the trial court sentenced him

to community control for one year. He now appeals, presenting a single assignment

of error.

                                           II.

       {¶9} We consider Mr. King’s sole assignment of error challenging the trial

court’s denial of his motion to suppress. An appellate court’s review of a motion to

suppress presents a mixed question of law and fact. State v. Burnside, 2003-Ohio-

5372, ¶ 8. When considering the motion at an evidentiary hearing, the trial court sits

in the best position to resolve factual questions and evaluate the credibility of

witnesses. 

 citing State v. Mills, 

 (1992). Accordingly, we

generally must accept the trial court’s findings of fact so long as they are supported by

competent, credible evidence. 

 citing State v. Fanning, 

 (1982).

Based on the factual record, we must then independently determine, de novo, whether

the facts satisfy the applicable legal standard. 

 citing State v. McNamara, 

 (4th Dist. 1997).

       {¶10} As we evaluate stops and seizures for compliance with the Fourth

Amendment, we generally recognize three categories of police-citizen interactions,

each with their own robust body of case law: (1) consensual encounters, (2)

investigative detentions, or “Terry stops,” and (3) a seizure amounting to an arrest.

State v. Hall, 

 (1st Dist.). This case began as an investigatory stop


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                OHIO FIRST DISTRICT COURT OF APPEALS


under Terry v. Ohio, 

 (1968), but then morphed into a search incident to

arrest after Mr. King allegedly obstructed official business. We accordingly consider

both frameworks in order to evaluate the trial court’s ruling.

                                          A.

       {¶11} First, under Terry, the police may temporarily detain an individual for

an investigation without running afoul of the Fourth Amendment when an officer has

reasonable suspicion based on specific and articulable facts that criminal activity has

occurred or is imminent. State v. Rogers, 

 (1st Dist.), citing

. Furthermore, if an officer reasonably believes that an individual may be

armed and presently dangerous, the officer may conduct a limited protective search of

the individual for concealed weapons. State v. Henson, 

 (1st

Dist.). Cognizant of an individual’s privacy interests and the limitations of the Fourth

Amendment, however, the scope of this search is restricted to a “pat-down” search of

the individual’s outer clothing for concealed weapons. Id. at ¶ 16, citing State v.

Andrews, 

 (1991).

       {¶12} Reasonable suspicion is an objective standard based on a totality of the

circumstances and facts available to the officer at the time of the seizure. In re J.C.,

 (1st Dist.). Importantly, while there is no precise definition of

what constitutes reasonable suspicion, it requires more than an inchoate,

unparticularized suspicion or a “hunch.” Id. at ¶ 17. At the same time, we know that

it is a less demanding standard than probable cause necessary for an arrest. Id. at ¶

14, citing State v. Jones, 

 (2d Dist. 2019), citing 

.

       {¶13} Mr. King challenges the foundation for the Terry stop, emphasizing that

smoking marijuana in public and jaywalking are not arrestable offenses. True enough,


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                 OHIO FIRST DISTRICT COURT OF APPEALS


but officers can issue tickets for both offenses. Cincinnati Mun.Code § 506-46 and

512-1; R.C. 3780.99(B). And while an individual may carry a firearm in Ohio under a

variety of circumstances, carrying a gun while smoking marijuana gives rise to a

reasonable concern that the individual might be using weapons while intoxicated in

violation of R.C. 2923.15(A).

        {¶14} These factors, collectively, provide a sufficient justification that

reasonable suspicion existed for a Terry stop. We accordingly turn to what happened

next.

                                           B.

        {¶15} Second, as officers approached Mr. King, a brief struggle ensued in

which he moved his hands away from them and seemed poised to flee as they sought

to arrest him. The State points to the factual backdrop here as justifying an arrest for

obstructing official business.

        {¶16} We accordingly must evaluate whether probable cause existed to

effectuate the arrest. “‘“The substance of all the definitions of probable cause is a

reasonable ground for belief in guilt.”’” State v. Martin, 

, quoting

Maryland v. Pringle, 

 (2003). As such, probable cause exits when

the facts and circumstances suffice to provide a reasonable belief that the accused has

committed a crime. 

 The inquiry obliges the judge to review all the circumstances

and make “‘a practical common-sense decision’” as to whether probable cause is

present. 

 quoting Illinois v. Gates, 

 (1983).

        {¶17} An individual obstructs official business under R.C. 2921.31(A) when he

“‘(1) perform[s] an act; (2) without privilege; (3) with [a] purpose [of] prevent[ing],

obstruct[ing], or delay[ing] the performance of a public official of any authorized act

within the public official’s official capacity; and (4) that hampered or impeded the


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                 OHIO FIRST DISTRICT COURT OF APPEALS


performance of the public official’s duties.’” State v. Coffman, 

(1st Dist.), quoting In re Payne, 

 (1st Dist.). Significantly, “[n]ot

every act that ‘can conceivably be said to hinder a police officer will rise to the level of

criminal conduct’”; we typically require a substantial stoppage in the police officer’s

official business. Id. at ¶ 21-22, quoting State v. Harris, 

 (1st

Dist.), quoting 

.

       {¶18} Admittedly, this case doesn’t present the most compelling case of

obstructing official business, but it does contain enough to satisfy us of probable cause.

The trial court made specific findings that Mr. King (1) tried to back away from officers

as if he was going to flee, (2) pulled his arms away as he resisted Sergeant Herring’s

efforts to subdue him, and (3) required a threat of tasing to comply with the officer’s

instructions. These actions, taken by someone who was clearly armed, reasonably

turned a routine Terry stop into a much more volatile situation.

       {¶19} This fact pattern seems to align with State v. Carrion, 

 (1st Dist.), where we found that the defendant tucking his wrists and tensing his

muscles to avoid the placement of handcuffs sufficed to establish that an affirmative

act occurred for purposes of obstructing official business. And by refusing to accede

to the officer’s instructions, it appears that Mr. King acted with the purpose of

preventing, obstructing, or delaying a police investigation. See State v. Brantley,

 (1st Dist.); see also State v. Buttram, 

 (1st

Dist.) (explaining that a defendant’s failure to cooperate at the outset of an encounter

with the police was sufficient evidence of obstruction).

       {¶20} Mr. King says that this may all be well and good, but he didn’t actually

interfere with anything—the entire encounter lasted under a minute. In other words,

even if the State could establish several of the elements of the offense, it falls short on


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                  OHIO FIRST DISTRICT COURT OF APPEALS


the last one because the statute doesn’t criminalize “every ‘minor “delay, annoyance,

irritation, or inconvenience”’ put on a police officer.” Coffman, 

 (1st Dist.), quoting Harris, 

 (1st Dist.), quoting State v.

Vitantonio, 

 (11th Dist.). In Coffman, we held that fleeing from

officers for approximately 20 seconds did not constitute a substantial stoppage of the

police investigation, and therefore the defendant should not have been convicted for

obstruction of official business. Id. at ¶ 29.

       {¶21} But Coffman involved the standard for conviction, not probable cause.

In this case, we don’t have to determine whether Mr. King could have been convicted

for obstruction of official business, just whether probable cause existed to initiate the

arrest. We see enough distinguishing characteristics from Coffman to convince us that

the officers possessed probable cause, particularly since the trial judge in Coffman

specifically found, after trial, that “there is no substantial stoppage . . . .” (Emphasis

added.) Id. at ¶ 24. And internal policies, rather than the defendant’s conduct,

necessitated the call to the supervisor in Coffman that delayed the interaction. Id. at

¶ 27. Unlike Coffman, Mr. King actively and physically interfered with the officers’

attempt to secure a firearm during a legitimate investigatory stop, creating an active

threat to safety. See also 

 (“Therefore, however slight the hampering

and impeding may have been, when reviewing the record in a light most favorable to

the state, there is evidence to show that Carrion’s actions hampered and impeded the

officers in effectuating the arrest.”).

       {¶22} Based on the record at hand, we hold that the trial court did not err in

concluding that the officers possessed probable cause.

                                            C.

       {¶23} Finally, after finding the Terry stop and the arrest valid, we turn to the


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                 OHIO FIRST DISTRICT COURT OF APPEALS


ensuing search. “Upon a person’s lawful arrest, an officer may conduct ‘a full search

[incident to that arrest].’” State v. Grayson, 

 (1st Dist.), quoting

State v. Haynes, 

 (1st Dist.), citing United States v. Robinson,

 (1973). As a result, we necessarily conclude that Sergeant Herring

properly conducted the search of Mr. King that revealed the marijuana, bindle of

cocaine, oxycodone, and digital scale. Because the Terry stop, arrest, and search were

all lawful, we overrule Mr. King’s sole assignment of error.

                                          …

       {¶24} For the foregoing reasons, on the record before us, we agree with the

trial court’s denial of Mr. King’s motion to suppress. Accordingly, we overrule his sole

assignment of error and affirm the judgment of the trial court.

                                                                   Judgment affirmed.

BOCK, P.J., and ZAYAS, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.




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