State v. Johnson, 28426

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtDONOVAN, J.
Citation154 N.E.3d 387,2020 Ohio 2742
Parties STATE of Ohio, Plaintiff-Appellee v. Dorian JOHNSON, Defendant-Appellant
Docket NumberNo. 28426,28426
Decision Date01 May 2020

154 N.E.3d 387
2020 Ohio 2742

STATE of Ohio, Plaintiff-Appellee
Dorian JOHNSON, Defendant-Appellant

No. 28426

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on May 1, 2020



{¶ 1} Dorian Johnson appeals from his conviction, following a no contest plea, of possession of heroin in violation of R.C. 2925.11(A), a felony of the fifth degree. We conclude that the trial court erred in overruling Johnson's motion to suppress, and we reverse the judgment of the trial court.

{¶ 2} Johnson was indicted on December 28, 2018, for possession of fentanyl, possession of heroin, and obstructing official business. Johnson pled not guilty on January 24, 2019, and he filed his motion to suppress on February 11, 2019. After a hearing, the trial court overruled the motion to suppress. Johnson then entered a plea agreement wherein he pled no contest to possession of heroin, and the other counts were dismissed. Johnson was found guilty and sentenced to community control sanctions for a period not to exceed five years.

{¶ 3} At the hearing on the suppression motion, Officer Zachary O'Diam testified for the State. He had been a patrol officer for the City of Dayton Police Department for six and a half years. O'Diam testified that, on October 29, 2018, just after 5:00 p.m., he was operating his cruiser, in uniform, with Officer Joshua Bowling as his partner, when they encountered a black Chrysler 300 while their cruiser was stopped at the light at South Gettysburg Avenue and Third Street. O'Diam testified that "[e]xactly a week prior," the same vehicle had fled from him and another officer near South Broadway during an attempted traffic stop. On October 29, 2018, O'Diam recognized the vehicle by its license plate, make, model, and color; the vehicle also had excessively tinted windows, which had been the basis for the attempted traffic stop the previous week. O'Diam further testified that, on October 29, 2018, Bowling advised him that "a heavyset black male" was in the passenger seat of the Chrysler "with short dreads," and a "tall skinny black male" was in the driver's seat of the vehicle.

{¶ 4} O'Diam testified that, due "to the vehicle's propensity to flee" and their position, it was not safe for the officers to turn their cruiser around at the time, so they "relocated to the area" where the vehicle had been observed the previous week. They did not observe the vehicle there, so they proceeded west on Watson Street toward Danner Avenue. O'Diam testified that they observed the Chrysler "parked against the east curb" on Danner Avenue; 15 to 20 minutes had elapsed between their initial observation of the vehicle and encountering it on Danner Avenue. O'Diam testified that, as he pulled up, he activated his overhead lights to initiate a traffic stop "[b]ecause of the illegal dark window tint, and also, we still hadn't solved the failure to comply [from the prior week] as well."

{¶ 5} O'Diam testified that, when he observed the vehicle on Danner, a passenger

154 N.E.3d 390

was "moving in the front passenger seat," and there was no driver in the vehicle. Bowling directed his attention to Johnson on the porch of a home on Danner Avenue, which was on the opposite side of the street from the Chrysler. O'Diam exited his cruiser and began to approach Johnson to "detain him for investigation of the vehicle." As he did so, O'Diam observed that Johnson was fumbling with his keys, looking around the northeast corner of the house, looking at O'Diam, and looking at his keys, seemingly "indecisive." Johnson made eye contact with O'Diam, and O'Diam stated, "hey, how's it going." Johnson continued to look around and "seemed to be not sure what he was going to do." O'Diam testified that Johnson was 15-20 feet from him at that point. O'Diam testified that Johnson's conduct concerned him, "especially with the vehicle's propensity to flee" and Johnson's actions, which O'Diam "correlated with somebody that [he had] typically dealt with that would run."

{¶ 6} O'Diam testified that there was "a good gap" between Johnson and him at this point, such that O'Diam was worried that Johnson would either enter the house or run, thus preventing the issuance of a citation. O'Diam testified that Johnson "started to put the keys in the door" while there was still "a pretty good distance" between them, so O'Diam tried to get Johnson "off subject" or distract him by asked him if he had seen a kid in the area. O'Diam testified that he "wanted to grab ahold of him so he couldn't flee, and explained to him the reason for the stop." According to O'Diam, Johnson matched Officer Bowling's description of the driver, and "with the positioning of the car and where he was, it was obvious that * * * he was the driver of the vehicle." O'Diam testified that he was concerned that Johnson "was going to be able to make that corner" of the house before O'Diam "was able to get a view of him" and that Johnson "was going to get out of sight and out of range of being able to detain him."

{¶ 7} The following exchange occurred:

[Prosecutor] Q. * * * Why * * * did you want to grab ahold of him and detain him from the traffic stop?

A. It wasn't a typical traffic stop where somebody's going to comply, with the vehicle already failing to comply -- if they're going to flee in a car, they're going to flee on foot typically.

Q. * * * And then did you ultimately, as you put it, grab ahold of him?

A. Yes.

Q. * * * And what did you grab ahold of?

A. The back of his waistband.

* * *

Q. * * * [W]hat happened at that point in time?

A. When I grabbed ahold of him -- from the moment we had eye contact and I think I originally asked him -- after I said how's it going, I asked him if he had any identification on him, it was apparent he knew I was trying to speak with him. But when I grabbed ahold of him, he just started flailing his arms. Said, what are you doing; I said, stop. I continued to try to say, stop, so I could explain to him. But he kept -- continued to flail. Eventually actually broke my grasp and was able to make it towards the east end of this porch here, and almost got down the porch before I was able to grab ahold -- back ahold of his jacket; continued to tell him to stop. He continued screaming, what are you doing, what are you doing. I continued to try to just grab ahold of him before I could explain to him and everything. Eventually got a better hold of him. Was able to force him to the left side of this doorway here up against the wall. I was able to control his movements better,
154 N.E.3d 391
and at that point I explained to him this is just a traffic stop, you know, I'm stopping you for driving this vehicle. I need you to put your hands behind your back. And, at that point he began to comply.

{¶ 8} O'Diam testified that Johnson initially stated that he did not have any identification. He testified that, when Johnson broke away, Johnson took "three steps, all the way to the [north] edge of the porch there. * * *. It wasn't just normal three steps; he was struggling to get all steps away from me before I was able to grab back ahold of him." When O'Diam grabbed Johnson the second time, O'Diam "was able to pull his jacket back and then grab ahold of his whole waistband and * * * basically pick up his body weight and detain him then." O'Diam continued to tell Johnson to stop.

{¶ 9} O'Diam testified that he placed Johnson in handcuffs after the struggle and that Johnson was under arrest for obstruction, because when told to stop, Johnson "was able to actually push his arm back off of me to gain distance between he and I, and continued to try to run away." O'Diam testified that Johnson's actions impeded O'Diam's ability to investigate the window tint violation and the previous failure to comply.

{¶ 10} O'Diam stated that as Officer Bowling began to approach, Johnson, "continued to act disorderly," notwithstanding that he was in handcuffs; Johnson "was able to get his keys from behind his back and throw them to * * * a teenage kid," saying "here, take my keys." O'Diam testified that Johnson was also "screaming," and two kids from down the street ran toward the scene because of the disturbance Johnson was causing, which put the kids in danger; Bowling ordered the kids to get back. As the responding crews were arriving, they saw the kids running away and thought they were part of the disturbance, and they were detained again by some of the responding officers. Johnson was placed in the cruiser, at which point he settled down.

{¶ 11} O'Diam testified that he conducted a search incident to arrest next to the cruiser:

I began to pat him down for weapons, and as I'm patting him down, I asked him if it was okay if I could check to see if he had any guns, knives, or drugs on him. He stated, yeah, and said, you already are, meaning my pat down. He thought that was a search. So at that point I was still going to search him incident to arrest, and checked his left front pocket and recovered a small clear plastic baggie of what appeared to be crack cocaine.

{¶ 12} When asked why he requested Johnson's consent to conduct the pat down he intended to perform, O'Diam responded, "I just always do. It's just kind of -- you get more compliance * * * if they kind of think that they're in charge." Once in the cruiser with Johnson, O'Diam "eventually" got Johnson's identification; he then read Johnson his Miranda warnings from a...

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