The Akron Legal News

Man in parking lot drug deal has appeal denied

ANNIE YAMSON
Special to the Legal News
Published: June 30, 2015

In the 9th District Court of Appeals, a panel of three judges recently affirmed the convictions of Robert Starr, who pleaded no contest to four drug offenses.

Starr was sentenced to two years in prison by the Lorain County Court of Common Pleas after his motion to suppress evidence gathered during a police stop was denied.

At a hearing on Starr’s motion to suppress, Officer Matthew Sedivy of the Lorain Police Department testified that multiple complaints had been made regarding drug activity in the parking lot of the local Wal-Mart.

Consequently, the police department assigned teams to conduct drug surveillance at that location.

Sedivy specifically stated that particular parking lot had come to be known as a “high drug activity area.”

“Through training and plus what my commanding officer has told me, commonly they use the parking lot to conduct drug transactions as well as other officers of our police department had made felony drug arrests out of the parking lot before,” Starr testified.

Sedivy explained that, during a typical drug surveillance in the Wal-Mart parking lot, he focuses his attention on vehicles that have occupants who are not conducting business in the store.

On the day of Starr’s stop, Sedivy noticed a vehicle that was parked far away from the store’s entrance.

The occupant of the car did not get out of the vehicle but simply sat there for 10 minutes.

By running the license plate number, Sedivy determined that the occupant of the car was Gregg Sislowski, an individual known to the Lorain Police for his previous drug offenses.

Case summary states that, after Sislowski sat in his car for a while, a blue Chevrolet Tahoe entered the parking lot, circled Sislowski’s car twice, and then parked nearby.

Sislowski then got out of his car and into the passenger seat of the Tahoe, which was stopped as it was exiting the parking lot.

Starr was the driver of the vehicle and court documents state only that “drugs and paraphernalia” were found inside.

After listening to Sedivy’s description of events, the trial court denied Starr’s motion to suppress the drugs found in his car after it was stopped.

The trial court concluded that the totality of the circumstances provided Sedivy with reasonable suspicion that a drug transaction was happening which justified the stop of Starr’s Tahoe.

In his appeal to the 9th District court, Starr included only one assignment of error in which he challenged the trial court’s denial of the motion to suppress.

According to Starr, the circumstances did not support the finding that Sedivy had the requisite reasonable suspicion to effectuate a stop.

“We disagree,” Judge Julie Schafer wrote in the opinion she authored on behalf of the court of appeals. “As a result of his training and the knowledge he had regarding the Wal-Mart parking lot, Officer Sedivy was able to identify that a drug transaction was afoot when he directly observed the actions of Starr and Sislowski, a known actor in the Lorain drug scene.”

Starr contended that there was no evidence introduced to support the fact that the Wal-Mart parking lot was a high drug area.

He described Sedivy’s description of the area as “disingenuous at best.”

“Starr’s criticisms are contradicted in the record,” Schafer wrote, noting that there had been complaints of drug activity in the lot and arrests had been made.

Starr alternatively contended that, even if the Wal-Mart parking lot was a high drug area, his presence in it did not create reasonable suspicion.

Specifically, he claimed Sedivy could have come to other reasonable conclusions after observing Sislowski, for instance, that he was having car troubles or that Sislowski was waiting for a someone who was in the store.

The court of appeals held that those scenarios were unlikely since, if Sislowski was waiting for a person who was shopping, he would have parked closer to the entrance and then stayed instead of getting into Starr’s vehicle.

Schafer also pointed out that there was no evidence of car trouble such as an open hood or a flat tire.

“Our decision here does not rely simply on Starr’s presence in the Wal-Mart parking lot,” Schafer wrote. “Rather ... we rely on the totality of the circumstances of which Starr’s presence in the parking lot is but one factor.”

After reviewing the record, the court of appeals concluded that Sedivy was performing his duties in a “conscientious manner” when he conducted surveillance and the stop of Starr’s Tahoe.

“Officers are legally able to make an investigatory stop when faced with suspicious behavior and circumstances that suggest criminal activity is afoot,” Schafer wrote. “That is exactly what Officer Sedivy did here and we can find no error in the trial court’s denial of Starr’s motion to suppress.”

The judgment of the Lorain County court was affirmed with Presiding Judge Jennifer Hensal and Judge Donna Carr joining Schafer to form the majority.

The case is cited State v. Starr, 2015-Ohio-2193.

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