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Date: 01-20-2021
Case Style:
STATE OF OHIO v. DERRICK DORROH
Case Number: 109158
Judge: LARRY A. JONES, SR.
Court: COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Nora C. Bryan, Assistant Prosecuting
Attorney
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Cleveland, Ohio - Criminal defense attorney represented Derrick Dorroh with challenging the trial court’s judgment denying his motion to suppress. .
Dorroh was charged by way of information with one count each of
carrying a concealed weapon and having weapons while under disability. He had a
codefendant, Brandon Pritchett (“Pritchett”), who was charged with one count of
carrying a concealed weapon. Pritchett and Dorroh filed motions to suppress, and
a hearing was held on them.
At the conclusion of the hearing, the trial court denied their motions.
Both defendants entered pleas of no contest to the charges against them. Dorroh
was sentenced to five years of community control sanctions. Dorroh now appeals,
raising two assignments of error for our review:1
I. It was error to arrest and ultimately indict Derrick Dorroh for any
crime, since there was no probable cause to search this appellant.
II. The testimony of the police was hearsay and inadmissible.
Facts Adduced from Suppression Hearing
On May 7, 2019, the Cleveland police recovered a gun from Dorroh’s
person; Dorroh did not have a concealed weapon permit. In his suppression motion,
Dorroh contended that the stop was reasonable, but the continued detention was
impermissibly excessive and the search was unreasonable.2
1Codefendant Pritchett has also filed an appeal, which is pending as a companion to this
case. State v. Pritchett, 8th Dist. Cuyahoga No. 109149.
2 The state did not file a brief in opposition to Dorroh’s motion. However, it did file a brief
in opposition to Pritchett’s motion, in which it contended that Pritchett consented to the
search by voluntarily, and without having been prompted, handing his backpack to the
police; the state maintained that position at the hearing and continued to maintain it in
both Pritchett’s and Dorroh’s appeals.
The facts of this case are adduced from the one witness the state
presented at the suppression hearing ─ Officer Rabee Nasser (“Officer Nasser”) ─
and the documentary evidence derived from Officer Nasser’s body camera, which
was admitted into evidence.
At approximately 4:00 a.m. on the day in question, Officer Nasser, as
well as other officers, responded to a “code 1” call regarding two males who were
attempting to break into a PNC Bank ATM at 10900 Lorain Ave., Cleveland, Ohio.
A description of both males was given, including that they had backpacks. The
officer testified that code 1 is the highest priority call. Officer Nasser was nearby and
able to promptly respond. The record shows that Officer Nasser and his partner
were the first on the scene, and shortly thereafter two other officers responded as
well; thus, there were four officers on the scene.
Upon arriving at the scene, Officer Nasser saw two males ─ Pritchett
and Dorroh ─ who fit the description that had been given. The police approached
the two. They did not have their lights or siren on, and they did not approach with
drawn weapons. Officer Nasser said to Pritchett and Dorroh, “Yo, come over here.
Let me see some hands”; Pritchett and Dorroh complied without incident. The
police asked the defendants if they had any weapons on them, and the defendants
indicated that they did not.
Approximately one minute into the encounter, Officer Nasser said
over the police radio that “we’re gonna be out with them”; he asked for another
officer to check the ATM. The defendants told the police that they had just finished
their shift at Taco Bell and went to the ATM to withdraw money. A shirt could be
seen hanging out from underneath the “hoodie” Pritchett was wearing, and Pritchett
pulled the shirt out even a little more and indicated it was his work shirt. Dorroh
gave the officers a sheet of paper, which he told them was his “check out sheet” from
Taco Bell, and showed his PNC bank card.
The police told them that someone called 911 stating that two men
had been using tools to try to break into the ATM. The defendants denied that it was
them; they maintained that they were simply withdrawing money, and Dorroh said
something to the effect of the tipster just “seeing two black men with hoodies” and
equating it with suspicion. The police told the defendants that if “everything checks
out, y’all [will] be on your way,” and it was probably just a “misunderstanding.”
A communication came over the police radio that there were three
ATMs in the area and the police out in the field indicated that they would check all
three. Shortly thereafter, one of the field officers radioed to the officers on the scene,
asking, “Do you have any indicators with those males that you have detained?”
Officer Nasser responded, “Negative.” Pritchett and Dorroh reiterated to the police
that they had just finished their shift at Taco Bell, and had been withdrawing money
from the ATM. The police asked if they had a receipt for the transaction, and Dorroh
said no, they did not get one. Officer Nasser testified that the lack of a receipt did
not raise suspicion with him; he admitted that he does not always get a receipt when
he withdraws money from ATMs. Further, although Dorroh told the police that he
had withdrawn $140, the police did not ask him to verify it by showing the money.
One of the officers asked the defendants if they had their uniforms on.
Pritchett responded, “Really?” The officers confirmed that they wanted him to show
his uniform; Pritchett complied, taking off his hoodie to show his uniform with the
words “Taco Bell” on it. In order to fully show his uniform shirt, Pritchett had to
remove his backpack; Officer Nasser testified that he was not “alarmed” and “did
not feel threatened” when Pritchett took his backpack off.3
Meanwhile, other police officers were checking area ATMs; as
mentioned, there were three in the area, including the one that was the subject of
the call. During this time, communication can be heard on the police radio, some of
it dealing with other police business, and some of it ostensibly dealing with the
matter at hand. At times, it is difficult to hear exactly what is being said over the
police radio because the defendants were talking at the same time as the
communications; they were compliant with the police, but nonetheless were
complaining about the stop and the tipster’s call of their alleged “suspicious” activity
of withdrawing money.
3Officer Nasser testified that it was not uncommon for him to do “protective area
searches” when dealing with suspects; for example, he testified that he does them
sometimes when he pulls people over and has reasonable suspicion they may be armed.
But he did not feel the need to do one in this case.
However, despite the difficulty in hearing all that was being said over
the police radio, Officer Nasser testified that a communication came over the radio
that there was no damage to any of the three ATMs. Specifically, the officer testified
that, “Yes, I did hear that there was no damage to the ATMs because I’m the one who
asked to see if there was any damage done to the ATMs.” (Tr. 48.) In response to
that communication, the police again told the defendants that they would soon “cut
you guys loose.”
One of the officers in the group with Pritchett and Dorroh then
radioed a sergeant who had apparently been checking the ATMs and asked, “Sarge,
any damage to them ATMs?” The response was, “Given this updated information,
we’ll do a double-check. Just verify that they don’t have any tools in their
possession.” Officer Nasser testified that Pritchett and Dorroh visibly reacted to the
statement. Dorroh began to look through his bag; the officer asked him to hand it
over and he complied; nothing of significance was found in Dorroh’s bag.
Pritchett questioned the police: “Are we magicians though? Do you
gotta see the bag now?” Pritchett started to protest, saying “I’m not gonna * * *,” but
then turned the bag over. The police then searched Pritchett’s bag and found a gun.
When asked, Pritchett told them he did not have a carrying concealed weapon
permit.
Pritchett and Dorroh were detained and searched, during which a gun
was found in Dorroh’s waistband. The defendants maintained that they carried the
weapons for their safety. No tools were found in either backpack or on the
defendants’ persons, a fact which one of the officers found “strange,” but
nonetheless confirmed that they (the police) had done the right thing. One of the
officers on the scene said, “I know this is not a cut and dry case, but this is ─ this is
like a Terry stop. You know, we were just investigating.” However, Officer Nasser
testified at the hearing that the whole encounter was consensual, and the defendants
were free to leave at any time up until their bags were searched.
The Trial Court’s Findings
The trial court denied Pritchett and Dorroh’s motions from the bench,
stating the following:
Okay. I have played the video in my chambers twice to determine what
was said, when it was said, and I don’t think it’s as clear as the defense
would like to believe.
I did hear somebody not on scene, over the radio, saying double-check
them. I did not hear that all machines were clear and none were
damaged. I heard that one was not damaged.
I heard that there were three in that area that they were going to be
checking. I never heard that all three were checked in that first eight
minutes when they turned over their bags.
I did see Mr. Dorroh ─ he started to go through his bag on his own.
That’s when the police officer said, for officers’ safety, let me do that.
Okay? I hope you all saw that. * * *. So I can ─ I will rule that searching
Mr. Dorroh’s bag was definitely allowable.
Mr. Pritchett handed his bag over. Nobody asked him for it. When the
officers said to Mr. Dorroh, you understand for officers’ safety, let me
do that ─ I think it’s for officer’s safety, let me do that, you understand,
something like that ─ Mr. Pritchett handed his bag over. He wasn’t
asked for it.
Whether or not [Pritchett and Dorroh] heard the radio, we don’t know.
There’s been no testimony to that fact that they heard what was on the
radio. What I heard on the radio was, double-check them. One
machine was cleared that wasn’t damaged to their eye visibly.
That, to me, does not mean the investigation is over because I’m well
aware of tampering with ATMs does not always provide visible damage
on the outside to the onlooker. But they cleared one machine before
the bags were turned over. I did not hear them clear three. So it was
still an ongoing investigation.
It was a reasonable suspicion for the stop and once Mr. Dorroh started
going through his bag, opening his bag and going through it, there was
reasonable suspicion and [for] officer safety, both, to take that bag then
and [the officer] do it himself as opposed to letting Mr. Dorroh do it.
If Mr. Dorroh had not opened his bag and started going through it, my
opinion may be different; but once he opened his bag and started going
through it, there is no way that officer knew what was in that bag and
he had to take it from him to do officer safety.
So from that moment on, had that not happened, I would have a
different ending to this story, but I have to rule that the search of the
bags was permissible under the Fourth Amendment as it occurred in
this case.
So your motion to suppress is denied.
Law and Analysis
Standard of Review
A motion to suppress presents a mixed question of law and fact. State
v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When
considering a motion to suppress, the trial court assumes the role of trier of fact and
is, therefore, in the best position to resolve factual questions and evaluate the
credibility of witnesses. Id. Consequently, an appellate court must defer to the trial
court’s findings of fact if they are supported by competent, credible evidence. Id. An
appellate court, however, must independently determine as a matter of law, without
deference to the trial court’s conclusion, whether the facts meet the applicable
standard. State v. Hill, 8th Dist. Cuyahoga Nos. 83762 and 83775, 2005-Ohio-3155,
¶ 12.
The Fourth Amendment
In his first assignment of error, Dorroh contends that the search of
his person was unconstitutional.
The Fourth Amendment to the United States Constitution and Article
I, Section 14, of the Ohio State Constitution protect against unreasonable
governmental searches and seizures. State v. Callan, 8th Dist. Cuyahoga No. 95310,
2011-Ohio-2279, ¶ 15. Warrantless searches and seizures are considered per se
unreasonable, unless an exception to the warrant requirement applies. Katz v.
United States, 389 U.S. 347, 357, 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. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). A Terry stop is a temporary detention of a person for
the limited purpose of either conducting a pat-down of the outer clothing of a person
suspected of being armed and dangerous, or investigating suspected criminal
behavior. Id. at ¶ 24. While a Terry stop constitutes a seizure, it does not violate
the Fourth Amendment as long as the officer has reasonable suspicion based on
articulable facts that a person has committed or is about to commit a crime. State
v. Aufrance, 2d Dist. Montgomery No. 21870, 2007-Ohio-2415, ¶ 14, citing Florida
v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
If an officer temporarily detains a person without reasonable
suspicion, then a Fourth Amendment violation has occurred. Aufrance at id. If
evidence is obtained as a result of an illegal Fourth Amendment search or seizure,
the exclusionary rule bars that evidence from being used against a defendant at trial.
Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).
The United States Supreme Court has held, however, that “not all
personal intercourse between policemen and citizens involves ‘seizures’ of persons.”
Terry at fn. 16. A person is not seized within the meaning of the Fourth Amendment
if the police merely engage a person in a consensual encounter.
A consensual encounter is a manner of contact initiated by a police
officer for purposes of inquiry only. Consensual encounters do not require that a
police officer have a reasonable suspicion of criminal activity before making the
approach. State v. Patterson, 9th Dist. Summit No. 23135, 2006-Ohio-5424, ¶ 18,
citing Cuyahoga Falls v. Sandstrom, 9th Dist. Summit No. 17000, 1995 Ohio App.
LEXIS 2624 (June 21, 1995). “[M]erely approaching an individual on the street or
in another public place[,]” for the purpose of asking questions that elicit voluntary,
uncoerced responses, does not violate the Fourth Amendment. State v. Boswell, 5th
Dist. Ashland No. 13-COA-018, 2014-Ohio-886, ¶ 14, citing United States v.
Flowers, 909 F.2d 145 (6th Cir.1990). A person approached in this manner is not
required to answer any question, and may choose to end the interaction at any point
or decline to engage in the interaction altogether. Boswell at ¶ 11.
In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980), the United States Supreme Court listed factors to consider when
determining whether an individual is engaged in a consensual encounter as opposed
to an investigatory detention by police. The factors include, “the threatening
presence of several officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.” Id. at
554. The relevant inquiry is whether, when looking at the totality of the
circumstances, a reasonable person under the same circumstances would feel free
to leave and end the encounter with the police. Id.
If, however, the police initiate a lawful Terry stop, they must be
careful not to exceed the scope of the stop’s “underlying justification.” Florida v.
Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Additionally, the
length of the stop cannot last “longer than is necessary to effectuate the purpose of
the stop.” Id.
As mentioned, Dorroh did not challenge the initial stop at the trialcourt level; in his suppression motion, he conceded that the police “initially made a
reasonable stop.” However, in his appeal before this court, Dorroh makes seemingly
fleeting challenges to the initial stop in his first assignment of error and outright
challenges it in his second assignment of error. For example, in his argument in his
first assignment of error he states that at the time police stopped him he “was
walking peacefully with his friend,” as a “mere citizen * * * where the police
happened to come by.” Because Dorroh did not challenge the initial stop at the trialcourt level (but actually admitted it was permissible), we summarily overrule any
challenge to it here.
In regard to the state’s contention that the encounter with the
defendants was consensual, the trial court did not acquiesce to that contention;
rather, the court found that there “was a reasonable suspicion for the stop,” a finding
that would not be made unless there was a Terry stop. The trial court’s finding that
a seizure had occurred was supported by competent, credible evidence in the record.
Specifically, the police approached Pritchett and Dorroh saying, “Yo,
come over here. Let me see some hands.” The police told the two that ‘if everything
checked out” they would be released ─ a clear implication that they were not free to
leave. The police repeated that their release was conditioned on the defendants
showing them their backpacks. These facts were competent, credible evidence that
the defendants had been seized.
But, upon review, other findings made by the trial court were not
supported by competent, credible evidence. First, the trial court found that the
continued detention of the defendants was permissible because the information the
police had on the scene was that only one ATM had been cleared. As there were two
other ATMs in the area, the court reasoned that the investigation was ongoing. As
mentioned, it was hard at times to hear what was being communicated over the
police radio. But Officer Nasser testified that the police on the scene were told that
all three ATMs had been cleared. After that clearance was given, the police were
instructed to “double-check” the defendants for “tools.”
In light of the above, the trial court’s finding that only one machine
had been cleared and the investigation was ongoing was not supported by
competent, credible evidence in the record.
Second, the trial court found that the search of Dorroh’s bag was
permissible because Dorroh opened it and started going through it himself. On that
point, the court stated that if Dorroh “had not opened his bag and started going
through it, my opinion may be different.” What the trial court’s analysis missed
though is that Dorroh only started looking through his bag in response to hearing
the command over the police radio to search the defendants’ bags to see if they had
any tools in their possession. We find that at that time, the purpose of the stop was
over ─ that is, all three ATMs had been cleared and there was no other suspicious
circumstance on which the defendants could be further detained. Despite that, the
police conditioned the defendants’ ability to leave was on their bags being searched.
Thus, the trial court’s finding that the defendants “turned over their bags” and
insinuation that Dorroh just randomly started going through his bag is not
supported by competent, credible evidence.
Third, the trial court found that there was “no way to know” whether
the defendants heard the sergeant’s directive to the police on the scene to “Just verify
that they don’t have any tools in their possession.” Officer Nasser testified “I’m very
certain that they heard the sergeant because as soon as the sergeant said it, you could
tell by their expression * * *.” As such, the trial court’s finding in this regard was not
supported by competent, credible evidence.
Because we find that the trial court made findings not supported by
competent, credible evidence, we likewise find its conclusions were not
constitutionally sound. The trial court’s finding that there was an ongoing
investigation is erroneous; we find that the detention of Dorroh exceeded its lawful
duration and scope. The record demonstrates that the purpose of the stop was to
investigate two men who allegedly were seen using tools to break into an ATM
machine. That ATM, along with two others in the area was cleared ─ there were no
indicators that any of the three had been tampered with. Further, there were no onthe-scene “indicators” with either Pritchett or Dorroh that gave rise to suspicion. On
this record, the stop was impermissibly extended so that the scope of the
investigation could be expanded without any reasonable basis.
Thus, at the point in the detention when the police requested the
defendants’ backpacks, the investigation prompted by the 911 call was over; that is,
there was no evidence that any of the ATMs had been tampered with. There was no
reasonable suspicion that either defendant was armed and dangerous. But for the
police’s unconstitutional search of Pritchett’s backpack, the police would not have
searched Dorroh’s person.
On the record before us, the search of the defendants’ bags ─ as
evidenced by the sergeant’s command to “double-check” and “verify” that the
defendants did not have any tools in their possession ─ was a fishing expedition.
Indeed, “double-check” implies that “everything is okay,” but “let’s make sure.” In
the realm of Fourth Amendment analysis, and on this record (i.e., aside from fitting
the description of the suspects, there was nothing suspicious about the defendants,
they were compliant, and it was not a consensual encounter) “double- check” and
“let’s make sure” equate to an impermissibly prolonged stop.
Based on the above, the gun found on Dorroh’s person, and his
admission that he did not have a license, was unconstitutionally obtained. We
therefore sustain the first assignment of error.
The Stop: Anonymous Tip
In Dorroh’s second assignment of error, he contends that the
anonymous tip given to the police that led to him and Pritchett being stopped was
hearsay and, therefore, unreliable.
However, as mentioned, Dorroh conceded at the trial-court level that
the stop was permissible and, thus, did not challenge it. It is well-established that
arguments raised for the first time on appeal are generally barred and a reviewing
court will not consider issues that the appellant failed to raise in the trial court.
Cawley JV, L.L.C. v. Wall St. Recycling L.L.C., 2015-Ohio-1846, 35 N.E.3d 30, ¶ 17
(8th Dist.); Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629
(1975). As this court stated in Orefice v. Orefice, 8th Dist. Cuyahoga No. 70602 1996
Ohio App. LEXIS 5752 (Dec. 19, 1996):
It is fundamental to appellate review that issues not presented to the
trial court may not be initially reviewed on appeal, such that a party
may not assert new legal theories for the first time before the appellate
court. Kleinfeld v. Link (1983), 9 Ohio App.3d 29, 9 Ohio B. 30, 457
N.E.2d 1187; AMF, Inc. v. Mravec (1981), 2 Ohio App.3d 29, 2 Ohio B.
32, 440 N.E.2d 600.
Orefice at 12.
Indeed, “‘[s]uch arguments are barred by the doctrine of waiver for
failure to raise these arguments before the trial court.’” Cawley JV at id., quoting
Hollish v. Maners, 5th Dist. Knox No. 2011CA000005, 2011-Ohio-4823, ¶ 44,
quoting Carrico v. Drake Constr., 5th Dist. Stark No. 2005CA00201, 2006-Ohio3138, ¶ 37.
Therefore, in light of the above, Dorroh waived his argument about
the stop. He cannot now argue, for the first time on appeal, that the anonymous tip
was unreliable. The second assignment of error is overruled.
Outcome: Although Dorroh waived the right to challenge the initial stop, as set
forth in his second assignment of error, we find merit to his challenge regarding the
search of his person and, therefore, sustain the first assignment of error and reverse the judgment denying his motion to suppress.
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