The Akron Legal News

Man accused of stealing bong from smoke shop wins appeal

ANNIE YAMSON
Special to the Legal News
Published: November 12, 2015

A divided 9th District Court of Appeals this week ruled that a Brunswick police officer did not have reasonable suspicion to arrest a man who was suspected of robbing a smoke shop at gunpoint, despite the fact that the man later confessed to the crime.

The majority opinion, authored by Judge Julie Schafer, reversed the judgment of the Medina County Court of Common Pleas where defendant Seth Cunningham pleaded no contest to aggravated robbery and a firearm specification and was sentenced to six years in prison.

The facts of the case state that, shortly after midnight on May 13, 2013, Officer Samuel Gagliardi learned that a male subject brandished a handgun at the Twilight Boutique in Brunswick and fled on foot with a glass water pipe valued at nearly $500.

The suspect was described as almost six feet tall, wearing a camouflage jacket and ski mask.

Responding to the call, Gagliardi was unable to find a suspect in the vicinity of the smoke shop but, within five minutes, observed a black truck turn sharply into the driveway of a home about one-quarter mile from the scene of the robbery.

Court documents state that the truck was parked at the end of the driveway with half of the vehicle extending over the sidewalk.

Gagliardi, who stated that he was familiar with the neighborhood and the house where the truck was parked, proceeded to drive past the driveway and observe the truck.

After waiting for a period of time and not seeing anyone exit the vehicle, Gagliardi parked his cruiser behind the truck and approached the driver’s side door.

Cunningham was slouched down in the driver’s seat, so Gagliardi pulled his service firearm and ordered Cunningham to show his hands.

The officer then opened the door and saw a camouflage jacket, a large glass water pipe and a handgun inside the truck.

Cunningham was ordered out of the truck and placed in handcuffs. During that process, Gagliardi asked Cunningham several questions, including if the pipe in the truck was stolen from the Twilight Boutique.

When Cunningham confessed that the pipe was stolen, Gagliardi read him his Miranda rights and then read them again once Cunningham was in a police cruiser.

While in the cruiser, Cunningham confessed to entering the smoke shop, brandishing a firearm, grabbing a pipe and fleeing on foot to his truck which was parked across the street.

At the police station, Cunningham was again read his Miranda rights and he proceeded to confess again and provide additional information about the crime.

Before he entered pleas of no contest in the trial court, Cunningham maintained that he was innocent and moved the court to suppress the evidence seized from the stop of his truck.

He also argued that his statements to police should have been suppressed because he was not initially properly informed of his rights.

It was only after those motions were denied that Cunningham agreed to plead no contest in exchange for a minimum sentence.

On direct appeal to the 9th District court, Cunningham argued that the trial court erred by denying his motion to suppress the evidence.

“Specifically, Mr. Cunningham contends that the police lacked both a reasonable suspicion, articulable suspicion and probable cause to seize or arrest him at gunpoint or to search his truck,” Schafer wrote. “We agree.”

The majority held that, since Gagliardi detained Cunningham at gunpoint, he was not free to leave and therefore, the stop constituted an investigative seizure under the Fourth Amendment.

“A valid investigative stop must be based upon more than a mere hunch that criminal activity is afoot,” Schafer wrote. “Viewing the circumstances of this case through the eyes of Officer Gagliardi, an officer with eight years of law enforcement experience, we cannot conclude that articulable facts existed to support seizing Mr. Cunningham.”

The court of appeals noted that the basis for the stop was merely that Gagliardi saw a truck turn abruptly into a driveway and that the driver was male.

It held that there was nothing connecting the driver of the truck to the robbery at the time that Gagliardi pointed his firearm at Cunningham.

“To adopt the state’s position in this case would, in essence, permit law enforcement officers to seize any individual located within close proximity to a recent crime scene for no other reason that the fact that he is of the same gender as the suspect,” Schafer wrote. “We emphatically refuse to go down that path.”

The appellate panel’s majority ruled that Gagliardi’s testimony indicated that he acted on a hunch, or a gut instinct, but that there was no reasonable suspicion that the driver of the black truck committed the recent robbery.

“In sum, the state has failed to provide us with on-point case law that could allow us to give our imprimatur to the seizure in this matter,” Schafer wrote.

Given the majority’s reversal of the trial court’s judgment upon consideration of Cunningham’s first assignment of error, Schafer declined to address Cunningham’s second claim that his post-Miranda statements to police should have been suppressed.

But in her dissent, Presiding Judge Donna Carr took the opposite stance from the majority.

In a separate opinion, she wrote that she would have overruled Cunningham’s first argument that the evidence gathered from the stop of the truck should have been suppressed, but she would uphold his second assignment of error regarding his statements to police.

Judge Carla Moore joined Schafer to form the majority and reverse the judgment of the Medina County court.

The case is cited State v. Cunningham, 2015-Ohio-4306.

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