Irvin v. City of Shaker Heights - 809 F. Supp. 2d 719 (N.D. Ohio 2011)

Rule:

When a police officer witnesses a hand-to-hand exchange in an area known for drug transactions, the officer has reasonable suspicion to believe that criminal activity is afoot. 

Facts:

On July 27, 2005, at approximately 10:30 p.m., Plaintiff Rodney Irvin was walking home, pushing his two-year-old daughter in a tricycle, near E. 154th Street and Kinsman Avenue in Cleveland, Ohio. Irvin saw his former brother-in law, Bob Nance ("Nance"), in a passing vehicle and began a conversation. Nance handed Irvin his business card. Aware of the police car behind Nance, Irvin suggested that he pull off the main street and onto 154th Street; Nance did so and the two resumed their conversation. Mastnardo, a corporal at the time, was driving that police car accompanied by his canine partner. He turned as well and drove past Irvin and Nance, and then made a U-turn. He maintains that as he approached, he saw a hand-to-hand transaction between the two men. According to Mastnardo, he believed Nance and Irvin were engaged in a drug transaction. He parked on the other side of 154th, told the dispatcher he was making a traffic stop, and got out of his car. Accounts differ as to whether Mastnardo took his gun from its holster and released his dog on initially leaving the car. Irvin maintains that Mastnardo approached Nance's car initially with his gun drawn and that the dog left the police car at the same time. Nance stated right after the incident that the gun was not initially drawn, but at Irvin's criminal trial he testified that the gun was out as Mastnardo crossed 154th Street from his patrol car. Mastnardo maintained, however, that he did not draw his gun until he reached the front of Nance's car, just a few feet from Irvin, after he determined that Irvin was not complying with his instructions and might pose a threat. He states that he released the dog from his vehicle by remote control later in the interaction. Mastnardo told Nance to place his hands on the steering wheel, and Nance complied. A physical altercation ensued. Mastnardo asserted that he sharply pushed Irvin in the chest in order to secure Irvin's cooperation in removing his hand from his pocket as instructed. He says that Irvin then struck him in the shoulder and neck area. Mastnardo says he disengaged to call for faster backup, reholstered his weapon, and only then summoned his police dog for assistance. According to Mastnardo, Irvin then pushed the tricycle into him, tried to punch him, and the two men grappled as the tricycle, with Irvin's daughter strapped into it, fell to the side. Mastnardo asserts that the dog bit Irvin in accordance with its training, in order to protect the officer, and that Irvin repeatedly beat the dog's head against the ground, causing a broken tooth and other injury. Mastnardo asserts that the several efforts to subdue Irvin, using precisely aimed strikes to the body and a sleeper hold, had only marginal success. Irvin alleged that Mastnardo hit him in the chest, that the two men never "tussled," and that he never struck Mastnardo. Irvin stated that he was attacked and bitten by the police dog. Irvin described a tug-of-war with the dog as he tried to prevent the dog from biting him, and he maintained that Mastnardo struck him in the head from behind, knocking him on top of the dog. Irvin stated that he was never put in a sleeper hold.  Irvin alleged that several other officers, beginning with Defendants Emlaw and Pizon, arrived at the scene and began "hitting, kicking, and stomping him." All the backup officers describe an intense struggle to subdue Irvin. Irvin stated that after being arrested, he asked for medical help for his bite wounds and bruises on several occasions over the next few days, but received no real attention, except some aspirin, until several days later at the county jail. In contrast, Gozelanczyk avers that he asked Irvin if he needed medical assistance, but Irvin declined. The county doctor, a week later, told Irvin that since the wounds were not infected, they would heal without incident. Irvin maintained that the bite wound in his chest became a keloid and still itches on occasion. Mastnardo, meanwhile, had injuries after the struggle that led to his not being cleared to return to full duty until early February 2006. 

Irvin was charged with felonious assault on a police officer, assault on a police dog, and child endangerment. His Indictment was later amended to include two additional felonies. He was unable to post bond and was imprisoned from July 2005 until February 2006. On February 6, 2006, a jury found Irvin not guilty on all felony charges; after a nolo contendere plea, he was found guilty of a misdemeanor count of child endangerment.  One piece of evidence available for the criminal trial was a compact disc containing surveillance footage from the front of a public works building in Shaker Heights. Officers say it showed Irving, Nance, and Mastnardo approaching the scene of the incident but, because of its orientation, could not have captured any of the actual encounter. However, it suddenly disappeared, and the court dismissed its relevance. An anonymous letter making reference to the video footage was received in the Shaker Heights Law Department at some point during the pendency of this case. Purporting to be from a member of the Police Department, the letter charged that the footage contradicted some of Mastnardo's testimony and was being covered up. The Chief and Assistant Chief met with officers and asked them to review the case and report back any concern, but there was no direct investigation of the letter's charges. According to one of the officers present, Chief Ugrinic said in the meeting that he was "not going to get into the habit of investigating rumor and innuendo." As a result of the events leading up to his arrest and jury trial, Irvin filed a Complaint in this court on July 24, 2006. Irvin claimed that Defendants violated his Fourth, Fifth, Eighth, and Fourteenth Amendment rights. He bringed his claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1988, and under state law.

Issue:

Was Mastnardo’s initial seizure of Irvin and Nance for questioning a justified Terry stop?

Answer:

Yes.

Conclusion:

Mastnardo argued that several factors made him suspect that Plaintiff and Nance were engaging in a drug transaction, including the roadside conversation on a thoroughfare, the high-crime nature of the neighborhood, the fact that Irvin was wearing a jacket on a summer evening, and the lateness of the hour for walking a small child outdoors. Mastnardo's expert averred that it was reasonable for Mastnardo to take precautions, since drug dealers are often armed. Whether or not the incident occurred in a high-crime area is disputed. Defendant relied on the Director of the Statistical Analysis Center of the Ohio Department of Public Safety, Office of Criminal Justice Services, Lisa Shoaf, produced a report showing incidents that have occurred in zip code 44120 . She does not provide analysis of this report. Mastnardo also averred that where Irvin and Nance stopped was "in a known, high drug trafficking area." Further, "[s]ignificant drug activity takes place in the area where the hand-to-hand transaction occurred. In fact, it is one of the most notorious drug trafficking areas in the greater Cleveland area." Whether an area is considered to be high-crime is "relevant to the reasonable suspicion calculus." Irvin admitted that he was pushing his daughter in a tricycle that night. He also admitted that he was wearing a jacket. Plaintiff maintainsedthat his only physical contact with Nance was taking his business card from him, when the car was still on Kinsman directly in front of Mastnardo's police car. Given that Mastnardo saw Nance hand something to Irvin late at night in an area known for drug transactions, Mastnardo had reasonable suspicion to conduct a Terry stop.