An appeals court has “refused” to uphold the conviction of a former University of Akron football player who was charged with stealing a $500 water pipe from a Brunswick tobacco shop at gunpoint in 2013.
“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 than the fact that he is of the same gender as the suspect,” 9th District Court of Appeals judges wrote. “We emphatically refuse to go down that path.”
![Seth Cunningham]()
Seth Cunningham
In their 2-1 decision Monday, judges remanded the case to Medina County Common Pleas Court after they reversed the conviction of Seth Cunningham, now 24, of Montville Township. Cunningham was charged with aggravated robbery, a first-degree felony punishable by up to 11 years in prison, and the use of a gun added three years mandatory prison time to his sentence.
Cunningham pleaded no contest to the charge in March 2014 after Judge Christopher J. Collier denied a motion to suppress evidence filed by Cunningham’s attorneys. If granted, the motion would have barred prosecutors from presenting testimony about Cunningham’s arrest during his criminal trial.
Collier in April 2014 ordered Cunningham to serve the minimum possible sentence of six years in prison. Cunningham told the judge he was a heavy marijuana user, and he robbed the store because he didn’t have anything to smoke the pot with.
Cunningham has served 1ᄑ years at Richland Correctional Institution in Mansfield.
On Tuesday, Cunningham’s attorneys — Joseph Salzgeber and father-daughter team Gerald and Melissa Piszczek — filed a motion to have Cunningham released from prison on bond while the case returns to county court.
According to testimony at a suppression hearing in November 2013, Brunswick police officer Sam Gagliardi was called to the scene of a robbery at Twilight Boutique — a 24-hour “head shop” that sells tobacco products in the city’s Archway Plaza — shortly after midnight on May 13, 2013.
Gagliardi testified that the shop worker gave him a description of the robber: a 5-foot, 8-inch man wearing a camouflage jacket and a ski mask. The worker said the robber pointed a gun — which later was found to be not loaded — during the incident.
While another officer stayed to collect evidence, Gagliardi said he searched the area for the suspect. While driving his cruiser down Clemson Road, about a quarter-mile from Twilight Boutique, Gagliardi said he saw a black pickup abruptly pull into a driveway. Gagliardi said he noticed the driver slouching in the driver’s seat instead of getting out of the truck, so the officer drew his gun and approached the vehicle.
As it turned out, Cunningham was the vehicle’s driver and police found a camouflage jacket, an unloaded 9mm handgun and the stolen water pipe in the truck.
While Cunningham was handcuffed, police said, he admitted to stealing the pipe.
Cunningham’s attorneys had argued it didn’t matter what was found inside the truck because the officer violated Cunningham’s Fourth Amendment rights in the act of discovering the items. The Fourth Amendment protects citizens from unlawful search and seizure by police.
Judge Collier disagreed with Cunningham’s lawyers and overruled their motion to suppress evidence.
However, the appellate judges agreed with Cunningham’s attorneys.
“The only information concerning the robbery that Officer Gagliardi possessed at the time he approached Mr. Cunningham’s truck was that the suspect was a five-foot, eight-inch-tall male who wore a camouflage jacket and a ski mask,” they said. “The only similarity between this description of the robbery suspect and Mr. Cunningham at the moment of the seizure was the fact that Mr. Cunningham was a male.”
Appellate judges criticized the officer’s judgment.
“Stated differently,” they wrote, “Officer Gagliardi knew nothing connecting the driver of the black truck to the robbery at the time that he pointed his firearm at Mr. Cunningham and ordered him from the vehicle.”
The appellate judges said there was a “whole host of innocent explanations” as to why a vehicle might abruptly pull into a driveway.
At the suppression hearing, Gagliardi testified it could have been someone who passed out drunk or was suffering a medical issue.
County Prosecutor Dean Holman told The Gazette his office may appeal the ruling to the state’s highest court.
“We in this office respect the Court of Appeals’ decision, but we expressly disagree with the ruling,” Holman said, “and we’re strongly considering an appeal to the Ohio Supreme Court.”
He said Gagliardi acted within the law when he approached Cunningham’s vehicle because the truck was parked over a sidewalk — in violation of a Brunswick ordinance.
“He had a reasonable, articulable suspicion that a crime was afoot,” Holman said. “We believe the officer was acting properly in the case.”
The appellate opinion was penned by Judge Julie Schafer and concurred by Judge Carla Moore.
Judge Donna Carr dissented, using arguments similar to Holman’s. She said Gagliardi had reasonable suspicion when he approached the vehicle — even if the crime afoot was not robbery.
“Upon approaching the vehicle, Officer Gagliardi saw the driver shrink down in his seat as if to avoid detection, an indication that the driver may have been attempting to shield illegal activity,” Carr wrote. “Knowing that an armed robbery had very recently occurred in the vicinity, the officer acted reasonably in drawing his weapon and ordering Cunningham to exit the vehicle in the interest of officer safety.”
However, Carr said Cunningham’s confession and subsequent questioning by police should not have been included in the record because Cunningham was not properly read his Miranda rights, in which suspects are informed of their rights to an attorney and the right to remain silent.
“I would conclude that the entire line of questioning retained the taint of impropriety,” Carr wrote.
In a comment to The Gazette, Brunswick police Chief Carl DeForest defended Gagliardi’s actions.
“Given the fact that a uniformed police officer oftentimes has seconds to make a decision based on limited information, and an appeals court judge has weeks or months to postulate after reviewing volumes of information, I trust my officer did the right thing for the right reason in this case,” DeForest said. “His actions were reasonable and resulted in the arrest of an armed robbery suspect.
“It’s far more difficult these days to be a police officer than an appeals court judge.”
Cunningham’s attorneys did not return a message asking for comment Wednesday.