[Cite as State v. Carter,
2022-Ohio-91.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29091
:
v. : Trial Court Case No. 2020-CR-2814
:
CHRISTOPHER CARTER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 14th day of January, 2022.
...........
MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
MATTHEW M. SUELLENTROP, Atty. Reg. No. 0089655, 6 North Main Street, Suite 400,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Christopher Carter appeals from his conviction, following a no contest plea,
to one count of aggravated possession of drugs, in violation of R.C. 2925.11(A), a felony
of the second degree. The trial court sentenced Carter to a mandatory indefinite term of
a minimum of two years and a maximum of three years. We will affirm the judgment of
the trial court.
{¶ 2} Carter was indicted on November 13, 2020, and he pled not guilty. He filed
a motion to suppress on December 9, 2020. The trial court held a hearing on the motion
on January 8, 2021.
{¶ 3} At the hearing, Dayton Police Officer Josh Erwin testified that on September
9, 2020, he was on routine patrol in a marked cruiser as part of a two-man crew with
Officer Sean Gallagher, when the officers received a “ShotSpotter alert.” Erwin
explained that ShotSpotter is a system used to detect gunfire, by means of microphones,
in the area of the North Main Street Corridor; the system provides a 25 meter (or 82-foot)
“radius” to check after shots are detected. Erwin stated that ShotSpotter alerts are
conveyed in three ways: via dispatch, an application on officers’ phones, and/or cruiser
computers. Erwin stated that less than 30 seconds elapse between the shots being
detected and the alert being issued. He stated that his knowledge of ShotSpotter was
limited to his use of the system as a patrol officer.
{¶ 4} Erwin stated that on September 9, 2020, he was alerted first on his phone
and then by dispatch when the gunfire was detected; the ShotSpotter alert provided
information about “the location, the time, and how many rounds” had been fired.
Regarding the location, Erwin stated that an alert provides the closest address to the
center of the radius. Erwin testified that, in his past experience with ShotSpotter, he had
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“recovered firearms off individuals” who were immediately in the radius area or were
leaving the area.
{¶ 5} According to Erwin, upon receiving the alert on September 9, he and
Gallagher responded to the designated address, 59 Cambridge Avenue, in less than four
minutes; while en route, the officers did not observe any vehicles leaving the area or
anything unusual. Erwin stated that they observed Carter “walking east away from the
area of 55 Cambridge Avenue,” on the north side of the road, which is the same side of
the road as 59 Cambridge, at about 12:45 a.m. He stated that 55 Cambridge is
approximately 50 feet from 59 Cambridge. Erwin stated that the officers did not observe
anyone else in the area, any motor vehicle traffic, or any activity on any adjacent property.
{¶ 6} Erwin testified that, as he and Gallagher were traveling down Cambridge,
they saw Carter walking from the immediate area of 55 Cambridge, and they stopped him
in front of 41 Cambridge. Carter told the officers that he was coming from a friend’s
home at 55 Cambridge, but he was unable to provide the friend’s name. According to
Erwin, Off. Gallagher performed a pat down of Carter at that point in time, to ensure he
had no weapons; during the pat down, Gallagher located methamphetamine on Carter’s
person. Carter was then handcuffed, placed in the rear seat of the cruiser, and read his
rights. According to Erwin, after the officers spoke with Carter, they transported him to
another cruiser, and he was taken to jail. Erwin identified as State’s Exhibit 1 the
ShotSpotter response policy of the Dayton Police Department.
{¶ 7} With regard to Carter’s demeanor during their interaction, Erwin stated that
Carter’s “right side was canted away from us,” meaning that he was turned away from the
officers and the officers “were unable to observe anything on his right side.” This was
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noteworthy to Erwin because of a concern for firearms, which people “will tuck … in their
waistband or have … in their pocket or one hip.”
{¶ 8} On cross-examination, Erwin described the area around 59 Cambridge
Avenue as a residential area. He stated that the officers had never arrived at 59
Cambridge because they stopped Carter at 41 Cambridge, which was one the same
block. He acknowledged that he had responded to ShotSpotter alerts in the past which
had not resulted in finding any firearms. Erwin stated that, when he received the
ShotSpotter dispatch, he did not receive any information about any potential suspects or
any physical descriptions of suspects. Erwin also did not hear gunfire himself, and when
he observed Carter, Carter was casually walking and did not appear to be fleeing. Erwin
testified that he did not observe any kind of weapon or contraband on Carter’s person,
although he could not see Carter’s right side. Erwin testified that he had had no prior
interaction with or knowledge of Carter and that he did not approach Carter, but remained
by his cruiser on the passenger side, 20 feet from Carter. Erwin stated that Carter had
been in the proximity of 59 Cambridge Avenue when the officers first observed him, and
because very little time had passed since the alert, the officers believed Carter could have
possibly been the shooter. In response to questions by the court, Erwin stated that
Carter was walking east and he and Gallagher were traveling west when Carter was
observed.
{¶ 9} Officer Gallagher testified that on September 9, 2020, he was driving the
cruiser, and Erwin was in the passenger seat. In describing the ShotSpotter system,
Gallagher testified that “whenever a ShotSpotter alert goes off, it pops up as a notification
on your phone” and gives the location that the shots came from with a certain radius and
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the number of shots fired. Gallagher stated that, when the officers pulled onto
Cambridge, he observed Carter “walking east toward Salem Avenue from the general
area of that Shotspotter.” Gallagher stated that he had not heard any gunshots. He
also stated that he did not observe anyone other than Carter in the area. Gallagher
testified that, when the officers started talking to Gallagher, his voice was “shaking” and
Gallaher was “obviously” nervous. After Erwin initially spoke to Carter, Gallagher
performed a pat down “[d]ue to the likelihood of him being in the area at that time of a
ShotSpotter, likelihood of him having a firearm”; “it was a safety issue.”
{¶ 10} Gallagher stated that, during the pat down, he located around 56 grams of
methamphetamine. He described the pat down procedure as follows:
So during my pat down, I started - - I always start at the waistband
because that’s typically the - - that’s the most likely place somebody is going
to conceal their firearm, and then I’ll check - - I’ll go down to pockets and
obviously go all the way down to their ankle. Once I did the left side, I
always go to the right side. Upon that, I felt the - - it was - - it was packaged
very tight. A glasslike substance. It’s very hard. And it was packaged
like a baseball. And he was wearing mesh basketball shorts, and it was
just - - it was just sticking right out.
{¶ 11} Gallagher testified that, based on his training and experience, it was readily
apparent to him that the substance was a narcotic. He testified that he believed the
substance to be methamphetamine prior to removing it from Carter’s pocket. Gallagher
stated that he placed Carter in handcuffs and removed the substance from his pocket.
On cross-examination, Gallagher testified that ShotSpotter alerts typically are received
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very quickly, like within 30 seconds, and that he did not received information from the
alert or from dispatch about a specific house or apartment; “just what the ShotSpotter
application notified [him] of.” When the officers stopped their cruiser about 40 to 50 feet
from Carter, they had a good view of him on the sidewalk but did not see any contraband
or weapons on is person. During the pat down, after feeling a lump, Gallagher
“immediately recognized” the hard, “glassy substance” as methamphetamine from how it
felt and how it was packaged. Gallagher testified that he did not suspect the object to
be a weapon and that he immediately pulled it out of Carter’s pocket. Gallagher testified
that, in responding to ShotSpotter alerts in the past, he had sometimes found a firearm
and sometimes not.
{¶ 12} Gallagher stated that at the time of the stop it “was dark, but there were
street lights”; the officers did not employ their overhead lights or siren in the course of the
stop. On redirect examination, Gallagher testified that Carter had been “very nervous”
during the encounter and his body was shaking when he was asked to raise his arms.
Gallagher also described Carter’s body “canting away” from the officers, which Gallagher
described as “a nervous tendency that he might be trying to conceal something.”
{¶ 13} At the conclusion of Gallagher’s testimony, the suppression hearing was
continued to January 19, 2021, so that the State could obtain “a digital witness … to
perhaps illuminate some of these issues” with the ShotSpotter system. However, the
State was unable to produce such a witness on that date. The ShotSpotter response
policy of the Dayton Police Department (State’s Exhibit 1) was admitted into evidence
without objection.
{¶ 14} After the hearing, Carter filed a memorandum in support of his motion to
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suppress, in which he asserted that the officer’s pat down in this situation had constituted
a Terry stop, and that the officer had not had a reasonable suspicion to stop, detain, and
search him. Carter cited Florida v. L.J., 529 U.S. 266,
120 S.Ct. 1375,
146 L.Ed.2d 254
(2000), which held that an anonymous tip that a person was carrying a gun was, without
more, insufficient to justify a police officer's stop and frisk of that person. Carter asserted
that this matter involved “significantly less reasonable suspicion than an anonymous tip,”
contending that “in this case there was no evidence … that [Carter] had committed, was
committing, or was about to commit a crime”; he “was simply walking in an area where a
gunshot may or may not have occurred.”
{¶ 15} In its decision overruling Carter’s motion to suppress, the court noted that
Carter had argued that the officers lacked a reasonable, articulable suspicion for the stop,
that a pat down is limited to a search for weapons, and that Gallagher could not have
considered the methamphetamine to be a weapon justifying its removal from his pocket.
On these issues, the court found as follows:
The court finds the officers had reasonable suspicion to conduct a
pat down of Carter based on the totality of the circumstances at the time of
the initial encounter. The specific and articulable facts which, taken
together, reasonably warranted the intrusion made on Carter [sic]. Carter
was the only person in the area of and was seen by the officers walking
away from the location that the ShotSpotter system identified as that from
which the shots had been fired; the officers arrived within four minutes of
the ShotSpotter alert in the area of 59 Cambridge. Contrary to Carter’s
assertions, the ShotSpotter alert system is not akin to an anonymous tip.
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Instead, the system represents advanced technology at the disposal of law
enforcement officers, which can detect shots fired and then triangulate to
the closest street address to the location of the fired shots. Carter’s
movements, particularly his “canting” away from the officers, the lateness
of the hour and the dark conditions also contribute to the totality of the
circumstances warranting the intrusion upon Carter. Given the totality of
the circumstances, the officers were justified in their investigatory stop of
Defendant and the officers possessed a reasonable suspicion that
Defendant was engaged in the shot that alerted them. The officers were
justified in their belief that Defendant was armed and presently dangerous
and considering the objective standard required by Terry [v. Ohio, 392 U.S.
1,
44 O.O.2d 383,
88 S.Ct. 1868,
20 L.Ed.2d 889 (1968)] and based upon
the totality of the circumstances the officers acted properly in conducting a
protective pat down of Defendant. The court further finds that a reasonably
prudent person in the circumstances encountered by the officers would
have been warranted in the belief that his safety or that [of] others was in
danger.
The court must next consider whether the officers exceeded the
scope outlined under Terry. The court notes an officer need not ignore
non-threatening items that are felt during the course of a lawful Terry pat
down. Further, the officer may seize immediately apparent contraband
that is a result of the pat down. … In the present case, Officer Gallag[h]er
felt a tightly packed, glassy substance on the right side of the Defendant
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while conducting an open-hand pat-down. Based on his training and
experience, it was immediately apparent to Officer Gallagher the substance
he felt was methamphetamine. Although Officer Gallagher did not locate
a weapon while searching Defendant, he was not required to ignore the
glassy substance because he had a reasonable suspicion to perform the
pat down and because Officer Gallagher was not required to ignore the
glassy substance that was immediately apparent to him as
methamphetamine, the item was not seized in violation of Defendant’s
Fourth Amendment rights.
{¶ 16} After the trial court overruled the motion to suppress. Carter entered his plea
of no contest, was found guilty, and was sentenced.
{¶ 17} Carter’s first assignment of error is set forth as follows in his brief:
A. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-
APPELLANT’S MOTION TO SUPPRESS.
1. THE STOP. THE TRIAL COURT ERRED IN OVERRULING THE
MOTION TO SUPPRESS AND FINDING THAT THERE WAS A
REASONABLE, ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY
FOR AN INVESTIGATORY STOP OF DEFENDANT-APPELLANT
CARTER.
2. THE PROTECTIVE FRISK. THE TRIAL COURT ERRED IN
OVERRULING THE MOTION TO SUPPRESS AND FINDING THAT
THERE WAS AN OBJECTIVELY REASONABLE, AND PARTICULARIZED
SUSPICION THAT CARTER WAS ARMED AND DANGEROUS.
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3. THE PROTECTIVE FRISK. THE TRIAL COURT ERRED IN
OVERRULING THE MOTION TO SUPPRESS BECAUSE THE
PROTECTIVE FRISK UNLAWFULLY EXCEEDED A LIMITED FRISK FOR
WEAPONS.
{¶ 18} Carter asserts that the trial court’s factual findings were not supported by
competent, credible evidence and the “testimonial ‘facts’ [were] contradicted by logic and
objective reality.” According to Carter, because the “incorrect factual findings” were
“inextricably intertwined” with the court’s analysis of the totality of the circumstances, the
legal conclusions reached by the trial court were “fatally flawed.” He contends that the
trial court also erred by applying “the incorrect and/or incomplete legal standard.”
{¶ 19} Regarding the trial court’s factual findings, Carter asserts that the trial court
“fundamentally” relied on the ShotSpotter alert received by Officers Erwin and Gallagher,
but that the court made “factual assumptions and consequential inferences” that were not
supported by the evidence. Specifically, Carter argues that the court’s determination that
ShotSpotter “represents advanced technology at the disposal of law enforcement officers”
shows that the court gave “dispositive weight” afforded to the ShotSpotter evidence and
made it the foundation for the court’s “entire legal conclusion.”
{¶ 20} Carter argues that while the officers testified regarding their experience with
ShotSpotter, there was no evidence presented concerning the reliability of this “advanced
technology.” Carter asserts that ShotSpotter is a “sophisticated system” that “also
requires routine maintenance and calibration,” and that reports generated by ShotSpotter
“include a disclaimer that ‘data provided should be corroborated with other evidentiary
sources such as witness statements.’ ” According to Carter, “[u]nequivocally, the
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testimony in this case relied upon ShotSpotter.”
{¶ 21} Carter further asserts:
The trial court failed in its threshold gatekeeping obligation. The trial
court erred in partly basing its motion to suppress decision upon technology
that lacked an adequate foundation. The testimony of Officers Erwin and
Gallagher relied upon ShotSpotter technology. Their response to the
ShotSpotter alert, their decision-making process, their perception, and their
ultimate act of stopping and frisking Mr. Carter were all based upon
ShotSpotter. The State failed to offer any evidence that ShotSpotter was
accurate or reliable. The State failed to introduce evidence of the specific
ShotSpotter alert in this case. Without this basic foundation, the trial court
could not properly make any factual determinations based upon that
technology.
The trial court could not rely upon testimony that ShotSpotter
triangulates gunshots. Without a sufficient foundation, there [was] no basis
to state that it was even a gunshot that was detected on September 9, 2020
at approximately 12:40 a.m. It could have been a car back-firing. It could
have been fireworks. It could have been a transponder explosion. It could
have been a car accident nearby.
{¶ 22} Carter argues that, without any basic foundation about the technology, the
address provided via the ShotSpotter alert was meaningless, and Carter’s presence in
the area of the reported alert was also meaningless in analyzing reasonable suspicion.
Carter asserts that Officer Erwin testified that the reason for the stop of Carter was his
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proximity to the address provided by ShotSpotter, and because this testimony is based
upon a technology that had no evidentiary foundation in the record, the trial court should
have disregarded the testimony and “assigned it zero weight or persuasive value.”
Carter also asserts that the officers’ testimony that their previous experience in
investigating ShotSpotter alerts sometimes resulted in finding weapons and sometimes
did not, ShotSpotter provided an insufficient foundation for a belief in the presence of
weapons.
{¶ 23} Carter argues that the “trial court’s specific factual errors are easier to
parse.” He asserts that the trial court’s factual determination that Carter was observed
walking away from the location identified by the ShotSpotter system was “simply
inaccurate,” because the Dayton police department policy regarding ShotSpotter (State’s
Exhibit 1) recognizes that the address provided by the system on “WITHIN AN AREA”
where gunshots were detected, not the specific address at which the shots were fired.
Thus, Carter’s presence a specific location – 59 Cambridge -- did not support a direct
connection between his presence at that location and the shots fired or reasonable
suspicion about him. Carter asserts that he could have been anywhere in the area
identified by ShotSpotter when the gunshots were fired four minutes prior to the officers’
arrival, and that the court’s factual finding about his location in relation to 59 Cambridge
Avenue “created a false foundation” on which it based its totality of the circumstances
analysis.
{¶ 24} Carter also argues that it was “factually impossible” that he had “ ‘canted’
away” from the officers, because the evidence established that the officers approached
him from the opposite direction, and “people approaching from opposite directions results
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in the right side of each individual in closer proximity.”
{¶ 25} Regarding the trial court’s legal conclusions, Carter asserts that this case
presents an issue of first impression in Ohio and that the trial court’s resolution of it was
“erroneous and inapposite to fundamental legal principles that have consistently emerged
from analogous caselaw published to date.” Carter asserts:
… First, ShotSpotter evidence, standing alone, is insufficient to
establish reasonable suspicion of criminal activity. Much like furtive
movements, mere presence in a high crime area, proximity to recent
criminal conduct, or an anonymous tip provided to law enforcement, a
ShotSpotter alert of detected gunshots at a particular location is insufficient
to support reasonable suspicion. …
… Without more, a ShotSpotter alert is nothing more than
innocuous investigative information akin to furtive movements, mere
presence, mere proximity, and other non-criminal movements or behaviors
that are simply part of our existence as living mobile human beings.
ShotSpotter information is never dispositive and should be afforded no
greater weight in analyzing the totality of the circumstances.
{¶ 26} Carter asserts that the trial court erred in concluding, “without citation to
authority or accompanying analysis, that ‘the ShotSpotter alerts system is not akin to an
anonymous tip.’ ” According to Carter, a ShotSpotter alert is analogous to a police
dispatch: the human dispatcher answering a citizen report does the same task as
ShotSpotter, i.e., notifying officers to investigate information received. Carter argues that
the reasonableness of the suspicion created thereby depends on the source of the tip,
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and when the source is unknown or unverifiable, it is “ ‘anonymous’ and requires
verification.” Carter contends that ShotSpotter should be treated the same as an
anonymous tip and should require corroboration.
{¶ 27} Carter directs our attention to In re D.W., 184 Ohio App.3d 627, 2009-Ohio-
5406,
291 N.E.2d 1114 (2d Dist. 2009), State v. Hairston,
156 Ohio St.3d 363, 2019-Ohio-
1622,
126 N.E.3d 1132,1 and State v. Nimmer,
395 Wis.2d 769,
954 N.W.2d 753 (2020).
He argues that Erwin and Gallagher “relied entirely upon the alert received from
ShotSpotter,” without independent corroboration, which was required by the ShotSpotter
policy (Exhibit 1). He contends that the ShotSpotter alert here was akin to an
anonymous tip, which requires corroboration, citing D.W. at ¶ 17. According to Carter,
“the mere report or hearing of gunshots in an area, while indicating the possibility of
criminality afoot broadly, does not raise any individualized suspicion” that a particular
person in that area is engaged in wrongdoing.
1
In Hairston, the Ohio Supreme Court stated in Hairston:
Here, the cumulative facts support the conclusion that the officers had a
reasonable suspicion to stop Hairston. First, Officer Moore personally heard the
sound of gunshots—the gunshots were not faint and sounded close-by.
This is not a case in which the officers relied on a radio dispatch or other
secondhand information about shots being fired, e.g., In re D.W., 184 Ohio App.3d
627,
2009-Ohio-5406,
921 N.E.2d 1114, ¶ 32 (2d Dist.), but one in which they heard
and immediately reacted to the sound of nearby gunfire.
Second, Officer Moore knew from personal experience that crime often
occurred at night in the area where the stop took place. Officer Moore had worked
the same beat for six years. He was familiar with drug and other criminal activity
near the school, and he had made arrests for illegal weapons and other crimes
there in the past. An officer's experience with criminal activity in an area and an
area's reputation for criminal activity are factors we have found relevant to the
reasonable-suspicion analysis. Andrews at 88, 565 N.E.2d 1271; State v. Bobo,
37
Ohio St.3d 177, 179,
524 N.E.2d 489 (1988). Further, the stop occurred after
dark—another circumstance we have found to be of some significance in the
reasonable-suspicion analysis.
Bobo at 179, 524 N.E.2d 489.
Id. at ¶ 11-12.
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{¶ 28} Carter asserts that his mere presence in the area was not enough to
establish reasonable suspicion, and that “anything could have happened” in the
intervening minutes. According to Carter, he “was merely walking casually down the
street four minutes after gunfire was purportedly detected,” but the officers did not explore
the surrounding area, and the fact that he was the only person in the area did not create
reasonable suspicion. He asserts that, as in D.W., which involved a report of shots fired,
the officers had nothing except the “tip” to permit the stop and frisk of Carter. Moreover,
the officer in D.W. responded within seconds, rather than minutes, as here.
{¶ 29} Finally, Carter cautions that ShotSpotter technology should not be allowed
to “usurp” and “displace” the warrant requirement of the Fourth Amendment by allowing
a broad exception to the warrant requirement based on an individual’s presence in a
particular area.
{¶ 30} In response, the State asserts that the trial court’s findings of fact were
supported by competent, credible evidence and that the officers had reasonable
articulable suspicion to conduct a lawful pat down, which led to the discovery of the drugs.
The State also points out that Carter did not object to evidence about ShotSpotter in the
trial court, and that if Carter intended to challenge the reliability of the ShotSpotter
evidence, he could have raised it or filed for a hearing pursuant to Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579
113 S.Ct. 2786,
125 L.Ed.2d 469 (1993) in the trial
court. The State asserts that Carter cannot argue for the first time on appeal that the
State failed to present evidence on the reliability of ShotSpotter. The State also asserts
that the rules of evidence do not apply at a motion to suppress hearing, and there was no
requirement that the State provide any foundation as to the efficacy of the ShotSpotter
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alert when that issue was not raised in the motion to suppress. The State argues that
“the officers provided a foundation that they were familiar with ShotSpotter, that they have
responded to ShotSpotter alerts in the past, and that in some of those instances they
have recovered firearms.”
{¶ 31} The State contends the ShotSpotter is similar “to an identified citizen
informant”; the ShotSpotter system records the sounds so that law enforcement can go
back and listen to the recording of the shot(s) fired, an identifiable person at the
ShotSpotter center analyzes the audio data and recording to confirm the gunfire prior to
sending an alert; and the alert is issued in direct response to an emergency situation of
shots fired. According to the State, a ShotSpotter alert “has an indicia of reliability upon
which the police can reasonable rely,” and “the categorization of the informant does not
by itself determine whether the police had reasonable suspicion to stop Carter as it is just
one element in the totality of the circumstances.” According to the State, based upon
the totality of the information known to officers at the time, it was reasonable for the
officers to respond to the alert with the belief that a shot had been fired in the area of 59
Cambridge Avenue.
{¶ 32} The State further contends that the trial court’s finding that Carter was
observed walking away from the address identified by ShotSpotter was supported by the
record: when the officers first observed Carter, he was walking on the same side of the
road as 59 Cambridge Avenue, away from that address. In other words, the State
asserts that Carter was approximately 50 feet away from 59 Cambridge Avenue and,
therefore, was within the 82-foot radius of the ShotSpotter alert.
{¶ 33} The State argues that it was reasonable for the trial court to credit the
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officers’ testimony that Carter “canted away” from them and that the officers thought it
was reasonable to conduct a pat down for weapons under the circumstances presented.
According to the State, upon observing Carter walking alone in the dark within the
ShotSpotter radius, the officers stopped their cruiser in the street but “made no show of
authority”; they did not have their lights or sirens on and did not block Carter’s path or
physically restrained him in any way. Rather, the officers “initiated a casual conversation
with Carter” while standing outside their cruiser, as he remained on the sidewalk. The
State asserts that Gallaher was on the driver’s side of the cruiser, 40-50 feet away from
Carter, while Erwin was on the passenger’s side, 20 feet from Carter. After this initial
contact began, the officers observed Carter acting nervously and moving in such a way
that they could not see the right side of his body.
{¶ 34} The State asserts that the circumstances involved in the encounter created
reasonable articulable suspicion to pat Carter down for weapons, and that decision to pat
Carter down was “not based on a single determining factor, but rather the aggregate of
all facts collectively.” The State asserts that “Terry precludes the individual divide-and-
conquer analysis” upon which Carter relies because the reasonable articulable suspicion
analysis is based upon an aggregate of factors. The State directs our attention to
Hairston.
{¶ 35} The State argues that under “the totality of the circumstances in this case,
the officers had reasonable articulable suspicion to conduct a lawful pat down of Carter
for weapons.” Finally, the State asserts that the trial court correctly determined that the
pat down did not exceed the scope of a lawful Terry pat down.
{¶ 36} In reply, Carter asserts that “waiver is not applicable” and the State’s
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argument regarding Daubert is “irrelevant” because “extending Daubert to a criminal
Motion to Suppress does not comport with typical criminal discovery under Ohio Criminal
Rule 16. … Motions to suppress are categorically different and lack the formalities of
trial testimony under Daubert.”
{¶ 37} Carter further argues that he did not waive his argument regarding the
reliability of ShotSpotter by failing to object, because there “was never a practical
opportunity” to object. According to Carter, “ShotSpotter technology is still new to the
courts” and must be found to be reliable, but the trial court “implicitly and improperly took
judicial notice of ShotSpotter’s reliability,” which was unsupported by the record. Carter
argues that the issue of ShotSpotter’s reliability was “a fundamental and overarching
issue,” that the trial court was obligated to make factual findings and conclusions of law
based only upon proper and reliable evidence, and that the evidence here was
“unreliable, suspect, or questionable.”
{¶ 38} Carter asserts that the trial court weighed Carter’s alleged canting “heavily
against Carter and necessarily relied upon the corroborating testimony of Officer
Gallagher. But, according to Carter, Gallagher’s testimony did not corroborate Erwin’s
testimony about the canting and “reveals what really happened” in the case. Carter
explains:
… Ofc. Gallagher does not immediately testify to any “canting”
behavior. This is important. If Carter were “canting” his body with such
painstaking effort that a reasonable officer would suspect active
concealment of contraband, then this unnatural physical movement by Mr.
Carter would certainly raise alarm bells. A reasonable officer would focus
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their immediate attention on the “canting.” A reasonable officer would
immediately recognize such conduct in the performance of their duties
because, impliedly, “canting” is not a common or natural movement.
Persons “cant” when they are actively concealing something. A
reasonable officer would, therefore, attribute great significance to such
evasive behavior. … Ofc. Gallagher’s testimony leaves serious questions
about whether Carter was canting his body. If Carter was not canting his
body, reasonable suspicion is unsupported by the remaining facts and
circumstances.
{¶ 39} Carter notes that, on direct examination, Gallagher made no reference to
canting or having an obstructed view of Carter’s body. However, upon re-direct
examination, “the State extracted the well-rehearsed script of law enforcement” in which
Gallagher “conveniently recalled additional and critical facts” related to the canting and
Carter’s nervous behavior. Carter asserts that, without Gallagher’s timely recollection
of “canting,” the facts, factors, and circumstances relied upon to establish reasonable
suspicion were doubtful. Carter asserts that because his “purported canting” was a
critical and weighty factor to the trial court’s factual findings and legal analysis, which
should not have been credited, the remaining facts and the totality of the circumstances
did not objectively support the existence of a reasonable suspicion.
{¶ 40} Finally, Carter asserts that the “facts of this case are broadly analogous to
Nimmer, 395 Wis.2d 769,
954 N.W.2d 753, but “are less substantial” than those in
Nimmer, so this Court should find that no reasonable suspicion existed at the time Carter
was placed in investigatory detention.
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{¶ 41} This Court has noted:
When reviewing a motion to suppress, we must accept the trial
court's findings of fact, if they are supported by competent, credible
evidence. State v. Love, 2d Dist. Montgomery No. 23902, 2011-Ohio-
1287. In ruling on a motion to suppress, “the trial court assumes the role
of the trier of fact, and, as such, is in the best position to resolve questions
of fact and evaluate the credibility of the witnesses.” State v. Retherford,
93 Ohio App.3d 586, 592,
639 N.E.2d 498 (2d Dist.1994), citing State v.
Clay, 34 Ohio St.2d 250,
298 N.E.2d 137 (1973). The credibility of the
evidence was for the trial court to determine, because it heard the evidence
directly. State v. Olson, 2d Dist. Montgomery No. 25452, 2013-Ohio-4403,
¶ 11, citing State v. Myles, 2d Dist. Montgomery No. 25297, 2013-Ohio-
2227, ¶ 21.
“Accepting the findings of fact of the trial court as true, we must
independently determine as a matter of law, whether the facts meet the
appropriate legal standard.” State v. Love at ¶ 19; see also, State v. Mobley,
2d Dist. Montgomery No. 26044, 2014-Ohio-4410, ¶ 11; State v. Shipp, 2d
Dist. Montgomery No. 24933, 2012-Ohio-6189, ¶ 11; State v. Morgan, 2d
Dist. Montgomery No. 18985, 2002-Ohio-268.
State v. Millerton,
2015-Ohio-34,
26 N.E.3d 317, ¶ 11-12 (2d Dist.).
{¶ 42} In Millerton, we further noted:
The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures.” Terry v. Ohio, 392
-21-
U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968). Not all interactions between
citizens and the police, however, implicate the protections of the Fourth
Amendment. State v. Garrison, 2d Dist. Montgomery No. 24857, 2012-
Ohio-3846, ¶ 15.
The law recognizes three types of police-citizen interactions: 1) a
consensual encounter, 2) a brief investigatory stop or detention, and 3) an
arrest. State v. Jones, 188 Ohio App.3d 628,
2010-Ohio-2854,
936 N.E.2d
529, ¶ 13 (10th Dist.).
During a consensual encounter, the officer and citizen can engage
in conversation, and a person's voluntary statements may be used against
him or her, as long as that the person knows that he or she is free to walk
away and the police have not conveyed a message that compliance with
their requests is required. State v. Barton, 2d Dist. Montgomery No.
21815, 2007-Ohio-2348, ¶ 14-15.
Investigatory detention, often referred to as a Terry stop, allows an
officer to briefly stop and temporarily detain individuals in order to
investigate possible criminal activity. State v. Strozier, 172 Ohio App.3d
780,
2007-Ohio-4575,
876 N.E.2d 1304 (2d Dist.), citing Terry v. Ohio. An
investigatory stop does not constitute an arrest or place the suspect in
custody. State v. Jones at ¶ 16. It is well established that “[a]n individual
is subject to an investigatory detention when, in view of all the
circumstances surrounding the incident, by means of physical force or show
of authority, a reasonable person would have believed that he was not free
-22-
to leave or is compelled to respond to questions.” State v. Love, 2d Dist.
Montgomery No. 23902, 2011-Ohio-1287, ¶ 18, quoting In re D.W.,
184
Ohio App.3d 627,
2009-Ohio-5406,
921 N.E.2d 1114, ¶ 13-15 (2d Dist.).
During a brief investigatory stop, without placing the suspect in
custody or under arrest, an officer is entitled to ask questions to confirm his
suspicions that criminal activity occurred. During a Terry stop, an officer
can ask for identification or sufficient information to write a citation or to run
a background check for outstanding warrants, often called a “field
investigation”. State v. Wortham, 145 Ohio App.3d 126,
761 N.E.2d 1151
(2d Dist.2001). See also, State v. Harrison, 2d Dist. Montgomery No.
25128,
2013-Ohio-1235.
Also, during a Terry stop, it is sometimes considered reasonable for
the investigating officer to conduct a “protective search” by patting down the
suspect to discover and remove weapons. State v. Robinette, 80 Ohio
St.3d 234,
685 N.E.2d 762 (1997); State v. Andrews,
57 Ohio St.3d 86, 89,
565 N.E.2d 1271, 1274 (1991). The primary purpose of a protective search
and seizure is to assure public and officer safety. “Pursuant to Terry, police
officers are allowed to perform limited protective searches for concealed
weapons when the surrounding circumstances create a suspicion that an
individual may be armed and dangerous.” State v. Harding,
180 Ohio
App.3d 497,
2009-Ohio-59,
905 N.E.2d 1289 (2d Dist.), overruled on other
grounds, State v. Gardner, 2d Dist. Montgomery No. 24308, 2011-Ohio-
5692.
-23-
“The authority to stop an individual does not necessarily equate to
authority to search the individual.” (Citations omitted.) State v. Lovins, 2d
Dist. Montgomery No. 23530, 2010-Ohio-3916, ¶ 12. See also, State v.
Stewart, 2d Dist. Montgomery No. 19961,
2004-Ohio-1319, ¶ 16; State v.
Byrd, 2d Dist. Montgomery No. 24583,
2012-Ohio-2659. Once a lawful
stop has been made, the police may conduct a limited protective search for
concealed weapons if the officer reasonably believes that the suspect may
be armed or a danger to the officer or to others. State v. Evans,
67 Ohio
St.3d 405,
618 N.E.2d 162 (1993); State v. Molette, 2d Dist. Montgomery
No. 19694,
2003-Ohio-5965, ¶ 13.
“The purpose of this limited search is not to discover evidence of
crime, but to allow the officer to pursue his investigation without fear of
violence ….” Evans, 67 Ohio St.3d at 408,
618 N.E.2d 162, quoting Adams
v. Williams,
407 U.S. 143, 146,
92 S.Ct. 1921,
32 L.Ed.2d 612 (1972); see
also, State v. Olden, 2d Dist. Montgomery No. 23137,
2010-Ohio-215, ¶ 25.
In other words, “the protective pat down under Terry is limited in scope to
its protective purpose and cannot be employed by the searching officer to
search for evidence of crime.” State v. Holley, 2d Dist. Montgomery No.
20371,
2004-Ohio-4264, ¶ 10.
“The frisk, or protective search, approved in Terry is limited in scope
to a pat-down search for concealed weapons when the officer has a
reasonable suspicion that the individual whose behavior he is investigating
at close range may be armed and dangerous. While probable cause is not
-24-
required, the standard to perform a protective search, like the standard for
an investigatory stop, is an objective one based on the totality of the
circumstances. The rationale behind the protective search is to allow the
officer to take reasonable precautions for his own safety in order to pursue
his investigation without fear of violence.” State v. Andrews, 57 Ohio St.3d
86, 89,
565 N.E.2d 1271, 1274 (1991).
Millerton at ¶ 19-27.
{¶ 43} As this Court further noted in Millerton:
A police officer may stop and detain a suspect when the officer has
a reasonable and articulable suspicion that the suspect has committed a
criminal offense. State v. Regulus, 2013-Ohio-507,
986 N.E.2d 1105, ¶ 10
(2d Dist.), citing Terry v. Ohio, 392 U.S. 1,
88 S.Ct. 1868,
20 L.Ed.2d 889
(1968). A court determines the existence of reasonable suspicion by
evaluating the “totality of the circumstances.” State v. Love at ¶ 18.
To evaluate the totality of the circumstances, the court must consider
the individualized facts through the eyes of the reasonable and prudent
police officer on the scene who must react to events as they unfold.” State
v. Vineyard, 2d Dist. Montgomery No. 25854, 2014-Ohio-3846, ¶ 21. …
When examining an officer's actions at the time of the stop, the court
must make an objective assessment of the officer's actions, and not focus
subjectively on the officer's actual state of mind. Dayton v. Erickson, 76 Ohio
St.3d 3, 6,
665 N.E.2d 1091, 1097 (1996). …
Id. at ¶ 14 -16.
-25-
{¶ 44} This Court has also noted:
Because a frisk under Terry is justified “solely by ‘the protection of
the police officer or others nearby, … it must therefore be confined in
scope to an intrusion reasonably designed to discover guns, knives, clubs,
or other hidden instruments for the assault of the police officer.’ ” State v.
Woodward (Feb. 22, 2002), Montgomery App. No. 18869, 2002 WL 272602,
quoting Terry, 392 U.S. at 29,
88 S.Ct. 1868,
20 L.Ed.2d 889. “ ‘The
purpose of this limited search is not to discover evidence of crime, but to
allow the officer to pursue his investigation without fear of violence.’ ” State
v. Dickerson, Montgomery App. No. 22452, 2008-Ohio-6544, ¶ 19, quoting
Adams v. Williams (1972), 407 U.S. 143, 145-146,
92 S.Ct. 1921,
32
L.Ed.2d 612.
… Under the plain-feel doctrine, an officer conducting a pat-down
for weapons may lawfully seize an object if he has probable cause to believe
that the item is contraband. Minnesota v. Dickerson (1993), 508 U.S. 366,
375,
113 S.Ct. 2130,
124 L.Ed.2d 334; State v. Phillips,
155 Ohio App.3d
149,
2003-Ohio-5742,
799 N.E.2d 653, ¶ 41-42. The “incriminating
character” of the object must be “immediately apparent.” [Id.] The officers
may not manipulate the object to determine its incriminating nature. [Id.]
State v. Lawson, 180 Ohio App.3d 516,
2009-Ohio-62,
906 N.E.2d 443, ¶ 24-25 (2d Dist.).
{¶ 45} “Whether there is a constitutional basis to conduct a pat down during a Terry
stop is a question of law which we review on a de novo basis; however, our review is
based on the trial court's findings of fact.” Millerton at ¶ 17.
-26-
{¶ 46} In Nimmer, which Carter cites, the defendant pled guilty after the trial court
denied his motion to suppress evidence of a handgun found in his possession when he
was stopped and frisked by police investigating a ShotSpotter alert. Id. at ¶ 1. Officers
in Nimmer received a ShotSpotter alert of four gun shots at 10:06 p.m. in the city of
Milwaukee. Id. at ¶ 2. After a short drive, officers “observed Nimmer about 100 feet
from the location of the ShotSpotter alert, with his hand in his right pocket. The officers
stated that when Nimmer saw the squad car, he looked away and began walking faster.”
Id. at ¶ 3. “The officers exited their squad and approached Nimmer, who then reached for
his left side and ‘bladed’ his left side away from the officers.” Id. at ¶ 4. One of the
officers then patted down Nimmer, who told the officer “the gun's on my waistline bro.”
A Smith & Wesson .40 caliber handgun was found concealed in the waistband of
Nimmer's pants, under his t-shirt. Id.
{¶ 47} The Wisconsin Court of Appeals reversed the trial court based on the denial
of the motion to suppress. The Court of Appeals noted that the articulable facts, as
explained by one of the officers and considered by the trial court, were that (1) there had
been a ShotSpotter alert; (2) the officers saw Nimmer in the area of that alert immediately
following the alert; and (3) when Nimmer saw the squad car, he “bladed” and accelerated
his walking pace. Id. at ¶ 15. In determining that reasonable articulable suspicion was
lacking, the appellate court undertook the following analysis
First, we note that the facts of this case are very similar to a relatively
recent unpublished decision of this court, State v. Lewis, No. 2017AP234-
CR, unpublished slip op. (WI App July 25, 2017). In Lewis, the defendant
was stopped by police officers investigating a report of shots fired. Id., ¶2.
-27-
The basis for the stop was that the defendant was walking in the general
area of the shots fired report with his hand on the waistband of his pants.
Id. When the officers stopped him, he admitted that he was carrying a
concealed weapon without a permit. Id.
The State in Lewis conceded that these were not sufficient articulable
facts to establish reasonable suspicion for the stop, and the trial court's
denial of Lewis's motion to suppress was reversed. Id., ¶¶ 6, 8. The
State's concession was based in part on the similarity of those facts to the
facts in State v. Gordon, 2014 WI App 44,
353 Wis. 2d 468,
846 N.W.2d
483. See Lewis, 2017AP234-CR, ¶4. In Gordon, this court reversed the
trial court's denial of a motion to suppress evidence that was seized from
the defendant. See
id.,
353 Wis. 2d 468, ¶1. The officers had stopped
Gordon because he was walking in “one of the more dangerous areas of
the district” that they patrolled, and because he had done a “security
adjustment”—a “conscious or unconscious movement,” such as touching a
pants pocket, which is sometimes done by an individual who is carrying a
weapon when approached by law enforcement. Id., ¶¶3-4.
We noted that “sadly, many, many folks, innocent of any crime, are
by circumstances forced to live in areas that are not safe,” and further, that
“many folks, most innocent of any nefarious purpose, may occasionally pat
the outside of their clothing to ensure that they have not lost their
possessions.” Id., ¶¶15, 17. We therefore concluded that “[p]ermitting
Terry stops of persons momentarily patting the outside of their clothing
-28-
when the only additional facts are that those persons are in a high crime
area and have seen a cruising police car would expand the individualized
reasonable suspicion requirement so far so as to negate it.” Id., ¶18 (internal
quotation marks omitted).
This court reached a comparable conclusion on similar facts in State
v. Pugh, 2013 WI App 12,
345 Wis. 2d 832,
826 N.W.2d 418, a case cited
by Nimmer in support of his argument. In Pugh, officers were patrolling an
area where there was a vacant building known to be a drug house. Id., ¶4.
They observed the defendant when he was “five-to-ten feet from two cars
that were parked below a no-parking sign” at the back of that vacant
building. Id., ¶3. The defendant admitted that one of the cars parked
under the no-parking sign was his. Id., ¶4. However, the officers did not
give the defendant a citation related to the parking matter; instead, they
asked him “if he had anything illegal on his person,” based on the fact that
the defendant had “bladed” his right side away from the officers. Id., ¶6.
The defendant admitted that he had a gun in his possession, and he was
charged with being a felon in possession of a firearm. Id., ¶¶1, 6. His
motion to suppress the gun evidence was denied, and he pled guilty to the
charge. Id., ¶1.
This court reversed that decision. Id., ¶13. In doing so, we noted
that “[a]n individual's presence in an area of expected criminal activity,
standing alone, is not enough to support a reasonable, particularized
suspicion that the person is committing a crime.” Id., ¶12 (citation omitted;
-29-
brackets in Pugh). Furthermore, the officers who arrested Pugh had stated
that he had bladed away from them when he took a couple steps back away
from them. Id. We asked how a person walks away from another—as
Pugh had the right to do at that point—without “turning his or her body to
some degree,” and stated that “[c]alling a movement that would accompany
any walking away ‘blading’ adds nothing to the calculus except a false
patina of objectivity.” Id.
There is, however, a distinguishing factor between Pugh, as well as
Gordon, and this case, along with Lewis: in this case and in Lewis, the
officers were investigating a report of shots fired, where in Pugh and
Gordon, the officers were simply on routine patrol in a “dangerous” area.
In fact, the officers responding to a shots fired report was the key factor in
the trial court's decision here: “anyone that they encountered within a
minute or two of receiving the alert should have been investigated if they
were within a couple of blocks of the alleged shots being fired.” Further
discussion of this distinguishing factor, therefore, is prudent for this analysis.
That leads us to State v. Washington, 2005 WI App 123,
284 Wis. 2d
456,
700 N.W.2d 305, also cited by Nimmer. In Washington, officers were
“investigat[ing] a complaint of loitering and drug sales at an allegedly vacant
house.” Id., ¶2. The officers saw the defendant in front of that house, and
recognized him from previous encounters relating to narcotics sales. Id.,
¶¶2, 3. The officers ordered the defendant to stop; he did, but then backed
up a few steps at which time a towel flew out of his hand which contained
-30-
cocaine. Id., ¶2. He was charged with possession of cocaine with intent
to deliver. Id.
The officers claimed that they had initially stopped the defendant with
the intent to charge him with loitering. Id., ¶3. At a suppression motion
hearing on the issue, however, the trial court stated that no proof had been
submitted that the loitering ordinance had been violated. Id., ¶7.
Nevertheless, the court ultimately found that although the officers did not
have reasonable suspicion for the initial stop of the defendant, after he had
“thrown the drugs away,” the officers had probable cause to arrest him. Id.
This court reversed that decision, concluding that the drugs had been
recovered as the result of an unreasonable stop and illegal seizure. Id.,
¶19. We stated that the officers did not have reasonable suspicion to
initially stop the defendant, noting that there was nothing in the record to
support the officer's statement that they were going to cite him for loitering.
Id., ¶17. We further concluded that even the defendant's known prior
convictions for selling drugs and his location in front of a known drug house
“[did] not supply the requisite reasonable suspicion for a valid investigatory
stop.” Id. Additionally, we noted that the defendant had not attempted to
flee, even though he had taken a couple of steps backwards after being
ordered by the officers to stop. Id., ¶18.
From Washington, we take away the principle that when officers are
investigating a specific crime, the mere presence of an individual in the area
where that crime is suspected of having been committed—even if the
-31-
individual is known to have previously committed a related crime—is still not
sufficient to meet the reasonable suspicion standard. See id., ¶17. In
fact, we observed that “[p]eople, even convicted felons, have a right to walk
down the street without being subjected to unjustified police stops.” Id.
The common thread in all of these cases is that the facts articulated
by the police officers involved were deemed to be insufficient to support a
finding of reasonable suspicion. With that being said, we cannot help but
wonder—even while recognizing that police officers must make split-second
decisions under circumstances where all factors may not be known—
whether in response to these decisions, officers have sought to find “magic”
language for their articulated facts to describe a person's behavior to
overcome the problems identified in these decisions.
For example, we know from the cases discussed above that
Nimmer's mere presence in an area where criminal activity is suspected is
not sufficient to meet the standard for reasonable suspicion. See id.;see
also Pugh, 345 Wis. 2d 832, ¶12. However, Officer Milone further testified
that Nimmer also accelerated his walking pace upon seeing the squad.
The officer explained that this may have been “an attempt to maybe run
from police.”
We are not swayed by this additional factor. Although we have
previously recognized that “flight or attempted flight,” together with other
factors, may be sufficient to support a finding of reasonable suspicion, see
Gordon, 353 Wis. 2d 468, ¶17, increasing one's walking pace is not the
-32-
equivalent of fleeing the scene. See Young, 294 Wis. 2d 1, ¶73 (where our
supreme court acknowledged that “people may have the right to disregard
the police and walk away without giving rise to reasonable suspicion”).
Furthermore, the indeterminate nature of the officer's testimony here is
comparable to a “mere hunch,” which is insufficient for finding reasonable
suspicion. See id., ¶21.
Additionally, we know that Nimmer's purported blading away from
Officer Milone as he walked is likewise insufficient to support reasonable
suspicion. See Pugh, 345 Wis. 2d 832, ¶12. However, Officer Milone
testified that Nimmer was also “digging around” in his pockets as he walked.
We know from Gordon that a “security adjustment”—in that case, touching
the outside of a pants pocket—is insufficient to demonstrate reasonable
suspicion. See
id.,
353 Wis. 2d 468, ¶¶4, 17. Similarly, we know from
Lewis that “holding the waistband” of one's pants is also insufficient. See
id., 2017AP234-CR, ¶¶2, 8. Even knowing that weapons are often found
in both pockets and in the waistband of pants—Nimmer's weapon was
discovered in his waistband—we refused in both of those cases to presume
that observing an individual's hand in either of those places is necessarily
indicative of a “nefarious purpose[.]” See id.; Gordon,
353 Wis. 2d 468, ¶17.
We decline to do it here as well, despite the added descriptor of “digging
around” in his pocket.
Therefore, we conclude that, even taken together, these facts do not
support a finding that the officers had reasonable suspicion to stop and frisk
-33-
Nimmer. Furthermore, the standard employed by the trial court here—that
anyone the officers encountered “within a minute or two of receiving the
alert should have been investigated if they were within a couple of blocks of
the alleged shots being fired”—is simply too broad to fit within the confines
of Fourth Amendment law regarding stop and frisk procedures.
Accordingly, we reverse the trial court's order denying Nimmer's motion to
suppress, and remand this matter with instructions to enter an order
granting his motion.
(Footnote omitted.) Id. at ¶ 16-30.
{¶ 48} In State v. Rickmon, 952 F.3d 876 (7th Cir. 2020), the Seventh Circuit Court
of Appeals, as a matter of first impression, considered “whether law enforcement may
constitutionally stop a vehicle because, among other articulable facts, it was emerging
from the source of a ShotSpotter alert. The district court held that the totality of the
circumstances provided the officer responding to the scene with reasonable suspicion of
criminal activity to justify the stop,” and the Seventh Circuit affirmed.
Id. at 878.
{¶ 49} In considering reasonable suspicion, the court noted as follows:
“While ‘inarticulate hunches’ are not enough, ‘reasonable suspicion
is a lower threshold than probable cause’ and ‘considerably less than
preponderance of the evidence.’ ” United States v. Adair, 925 F.3d 931, 935
(7th Cir. 2019) (citations omitted). Our task is to objectively examine the
“totality of the circumstances known to the officer at the time of the stop,
including the experience of the officer and the behavior and characteristics
of the suspect.” Id. (citation omitted). We are mindful that “[r]easonable
-34-
suspicion is a ‘commonsense, non-technical’ concept that deals with ‘the
factual and practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.’ ” United States v. Wanjiku, 919
F.3d 472, 488 (7th Cir. 2019) (citation omitted).
Id. at 881.
{¶ 50} At the suppression hearing in Rickmon, Officer Ellefritz stated “that he had
no reason to suspect that any weapons used in the shooting were in this car. He
explained that the occupants were not attempting to flee, they complied with his
commands, and they neither moved suspiciously nor gestured threateningly.” Id. at 880.
“In sum, there was nothing particularly unusual about this car, except for the fact that it
was leaving the area of the gunfire.” Id.
{¶ 51} The Seventh Circuit determined that “the totality of the circumstances
establishes the officer stopped the car for more reasons than just its location in
ShotSpotter’s coverage zone.” Id. at 881. In so concluding, the Seventh Circuit applied
the following factors: “(1) the reliability of any reports to police; (2) the dangerousness
of the crime; (3) the temporal and physical proximity of the stop to the crime; (4) any
description of the vehicle and relevant traffic; and (5) the officer’s (or potentially even the
department’s) experience with criminal activity in that area. ….” Id. at 881-882.”
{¶ 52} First, the court concluded (unlike the trial court herein) that a ShotSpotter
alert “is analogous to an anonymous tipster. So, what Officer Ellefritz ends up with is an
anonymous tip from ShotSpotter that the 911 calls then independently confirmed.” Id. at
882. Second, it was significant to the court that Ellefritz “was responding to an
emergency report of shots fired, not one of general criminality. We have repeatedly
-35-
emphasized in our decisions that the inherent danger of gun violence sets shootings apart
from other criminal activity.” Id. at 883. Third, “Ellefritz encountered Rickmon’s vehicle
on the same block of the shooting five-and-a-half minutes after he received reports of
shots fired.” Id. The court noted that “it was rational for Officer Ellefritz to infer that
Rickmon’s car participated in the gunfight because it was the only vehicle on the street of
the shooting.” Id. at 884. Fourth, “Ellefritz did not have the description of any vehicle;
however, it was 4:45 a.m. and there was no other traffic. Again, in such a scenario, “[t]he
hour reinforce[s] the suspicion” because we realistically expect few people on the road at
that time.” Id. at 884. According to the Seventh District, “it was reasonable—not
random—to pull Rickmon over.” Id. Finally, the court noted that Ellefritz had previously
responded to the area on reports of shots fired. Id.
{¶ 53} The Seventh District concluded as follows:
Altogether, the circumstances here—the reliability of the police
reports, the dangerousness of the crime, the stop’s temporal and physical
proximity to the shots, the light traffic late at night, and the officer’s
experience with gun violence in that area—provided reasonable suspicion
to stop Rickmon’s vehicle. As in similar past challenges to automobile
seizures, “there is ‘far more in this case ... than ... mere physical proximity’
to the criminal activity.” Richards, 719 F.3d at 758 (quoting United States
v. Burrell, 963 F.2d 976, 987 (7th Cir. 1992)); see also Burgess, 759 F.3d
at 710. Multiple circumstances separate Rickmon’s case from others. In
isolation, any one of those circumstances might not be sufficient. But
viewed collectively, they start to seem suspicious. “In such a situation, it is
-36-
reasonable for police to act quickly lest they lose the only opportunity they
may have to solve a recent violent crime or to interrupt an advancing one.”
Burgess, 759 F.3d at 711.
(Footnote omitted.) Id. at 884-885.
{¶ 54} In light of these discussions, we initially conclude that the issue herein is
whether Erwin and Gallagher had reasonable suspicion to stop Carter and conduct the
pat down, and we need not reach the scientific reliability of the ShotSpotter system. In
this case, the ShotSpotter was primarily relevant to the officers’ calculus in making the
stop. We so conclude because Carter did not challenge the scientific reliability of the
ShotSpotter system with particularity in his motion to suppress, request a Daubert/expert
testimony hearing to do so, or object to the officers testimony regarding ShotSpotter.
Moreover, as the parties agree, the Rules of Evidence do not apply to suppression
hearings. State v. Kinn, 2d Dist. Montgomery No. 28336, 2020-Ohio-512, ¶ 11. We
further conclude that the officers herein had reasonable articulable suspicion to execute
a Terry stop and pat Carter down for weapons. Under the totality of the circumstance,
we disagree with Carter’s assertion that the trial court afforded the ShotSpotter alert
dispositive weight. Furthermore, there is no evidence in this record that this was a non-
consensual encounter.
{¶ 55} While there were no separate 911 calls reporting gunfire or any additional
information in terms of a suspect, Erwin and Gallagher were responding to an alert of
shots fired, an inherently dangerous circumstance beyond general criminality. In their
experience, they had recovered weapons in response to ShotSpotter alerts. Carter was
observed within four minutes of the officers receiving the alert within the specific area of
-37-
the alert. In other words, as in Rickmon, the stop had temporal and physical proximity
to the gunfire. It was almost 1:00 a.m., dark out, and Carter was the only person
observed within the range of the alert. While Nimmer was observed at 10:06 p.m., when
people may more commonly be up and about, in this case, as in Rickmon, the early
morning hour supported the officers’ reasonable suspicion. We further conclude that it
was not random to initiate the Terry stop, and it was reasonable for the officers to act
quickly. Erwin testified that the officers “believed [Carter] could have possibly been the
shooter, or shot someone, shot at a house or something, so that’s what … made us stop
and talk to him.” Gallagher stated that due “to the likelihood of him being in the area at
that time of a Shotspotter, likelihood of him having a firearm, I thought it was a safety
issue, so I wanted to perform a pat down.” We do not agree, as Carter suggests, that
the officers used “magic” words or language in testifying to establish reasonable
suspicion. The court clearly found the officers’ testimony to be credible, and we defer to
the court’s credibility assessment. Based upon the officers’ testimony, we agree with the
trial court’s determination that they were justified in their belief that Carter was “armed
and presently dangerous” and “in the belief that [officer] safety or that [of] others was in
danger.”
{¶ 56} Carter’s demeanor at the time further supported the officers’ suspicion.
While he was merely walking down the sidewalk, both officers clearly testified that he
canted his body in such a manner that they were unable to observe his right side. This
canting behavior is distinct from the blading behavior discussed in Nimmer, as Carter was
not walking away from the officers at the time but was walking toward them, and we
conclude that Carter’s canting supported reasonable suspicion. Erwin stated that the
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canting was notable because people often tuck firearms in their waistband or pockets,
and Gallagher stated that canting is “a nervous tendency that he might be trying to
conceal something, which is another reason for the pat down.” Gallagher described
Carter as nervous and shaky, and while Carter advised that he had been to the home of
a friend, he was unable to provide the friend’s name. We note that Gallagher’s detailed
description of the pat down reflects that he was searching for weapons and not drugs.
He stated that the methamphetamine was “sticking right out” of Carter’s mesh shorts, and
we conclude that Gallagher did not exceed the scope of Terry. Based upon the totality
of the circumstances, we conclude that the officers’ reasonable articulable suspicion
justified the Terry stop and ensuing pat down, and that Gallagher lawfully seized the
methamphetamine. Accordingly, Carter’s first assignment of error is overruled.
{¶ 57} Carter’s second assignment of error states:
THE APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL PURSUANT TO ARTICLE I, SECTION 10
OF THE OHIO CONSTITUTION AND THE SIXTH AMENDMENT OF THE
UNITED STATES CONSTITUTION.
{¶ 58} Carter asserts that he was not advised or aware that a plea and subsequent
conviction in this case carried a mandatory term of imprisonment of at least two years.
Carter makes this claim despite the Crim.R. 11 plea colloquy with the trial court;
however, counsel herein asserts that Carter’s claim that he was not adequately advised
of the penalties involved discussions prior to his no contest plea. Accordingly, his plea
was not made knowingly, intelligently, or voluntarily as a result of ineffective assistance
of trial counsel.
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{¶ 59} The State responds that Carter failed to comply with App.R. 16(A)(7) in
supporting his claims and, furthermore, that the record does not support Carter’s
contentions. According to the State, “even assuming that counsel’s performance was
professionally unreasonable, an error by counsel does not warrant setting aside a criminal
conviction if the error had no effect on the judgment.” The State argues that at no time
during the plea colloquy did Carter indicate that he had never been informed of the
mandatory nature of the sentence or that it carried a mandatory minimum sentence of two
years. The State also points out that the trial court advised Carter of the mandatory
nature of his sentence, and the information was contained in the plea form. Thus, the
State argues that the record affirmatively indicates that Carter understood the entirety of
the plea when he entered it on the record in open court.
{¶ 60} This Court has noted that:
In order to succeed on an ineffective assistance claim, a defendant
must establish: (1) his trial counsel's performance was deficient; and (2) the
deficient performance prejudiced him. Strickland v. Washington, 466 U.S.
668,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), paragraph two of the syllabus;
State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraph two
of the syllabus. To establish deficient performance, a defendant must
show that his trial counsel's performance fell below an objective standard of
reasonable representation. Strickland at 688;
Bradley at 142. To
establish prejudice, a defendant must show that there is “a reasonable
probability that, but for counsel's errors, the proceeding's result would have
been different.” State v. Hale, 119 Ohio St.3d 118,
2008-Ohio-3426, 892
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N.E.2d 864, ¶ 204, citing Strickland at 687-688 and Bradley at paragraph
two of the syllabus. The failure to make a showing of either deficient
performance or prejudice defeats a claim of ineffective assistance of
counsel. Strickland at 697.
State v. Whaley, 2d Dist. Montgomery 2020-CA-15,
2021-Ohio-1434, ¶ 14.
{¶ 61} App.R. 16(A)(7) provides that an appellant’s brief shall include the following:
“An argument containing the contentions of the appellant with respect to each assignment
of error presented for review and the reasons in support of the contentions, with citations
to the authorities, statutes, and parts of the record on which appellant relies.” Carter
cites to no authority in his second assignment of error.
{¶ 62} We conclude that ineffective assistance is not demonstrated. At Carter’s
plea hearing, after defense counsel indicated that Carter would enter a no contest plea,
the court indicated, “It’s my understanding there’s no agreement as to sentence … And
it is a mandatory sentence, though.” The parties acknowledged their understanding of
the nature of the sentence.
{¶ 63} The court ascertained that Carter was 36 years old, had a college degree,
and was able to read and comprehend the plea form. Carter indicated that he was not
under the influence of any drugs or alcohol. The following exchange occurred:
THE COURT: Sir, in this case, you’re entering a no-contest plea to
one count of aggravated possession of drugs, a felony of the second
degree. Do you understand that as a result of that plea, the Court could
sentence you to financial sanctions, including a fine of up to $15,000, and
a mandatory fine of between $7,500 and $15,000, and a prison term of a
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minimum sentence of 2 years and a maximum sentence of 8 years plus an
additional one-half of the minimum sentence, for a total possible prison
sentence of 12 years.2
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: In addition, sir, the prison term for aggravated
possession of drugs, a felony of the second degree, is mandatory and
cannot be reduced by earned credit, judicial release, or furlough.
Do you understand that?
THE DEFENDANT: Yes, Your Honor.
…
THE COURT: So do you understand, sir, the minimum prison
sentence is two years, but the minimum is anywhere between two years
and eight years, and the maximum sentence will be one-half of the minimum
sentence. So if, for instance - - I’m purely doing this by way of example - -
2
R.C. 2929.14 governs prison terms, and R.C. 2929.14(A)(2)(a) provides: “For a felony
of the second degree committed on or after the effective date of this amendment, the
prison term shall be an indefinite prison term with a stated minimum term selected by the
court of two, three, four, five, six, seven, or eight years and a maximum term that is
determined pursuant to section 2929.144 of the Revised Code, except that if the section
that criminalizes the conduct constituting the felony specifies a different minimum term or
penalty for the offense, the specific language of that section shall control in determining
the minimum term or otherwise sentencing the offender but the minimum term or
sentence imposed under that specific language shall be considered for purposes of the
Revised Code as if it had been imposed under this division.” R.C. 2929.144(B)(1)
provides: “If the offender is being sentenced for one felony and the felony is a qualifying
felony of the first or second degree, the maximum prison term shall be equal to the
minimum term imposed on the offender under division (A)(1)(a) or (2)(a) of section
2929.14 of the Revised Code plus fifty per cent of that term.”
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if you were sentenced to four years, then the minimum sentence is four
years and the maximum is six years. … And your release from prison
would be determined by the parole board anywhere between four years and
six years. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
{¶ 64} The court advised Carter of the constitutional rights his plea would waive.
Carter acknowledged that he had had the opportunity to discuss his plea with counsel,
that he was satisfied with counsel’s representation, and that he entered his plea
voluntarily. When asked if he had any questions prior to entering his plea, Carter
responded, “No, Your Honor.” Carter’s plea form provided that “the prison term(s) for
Aggravated Possession of drugs is/are mandatory and cannot be reduced by judicial
release, earned credit, or furlough.”
{¶ 65} We conclude that ineffective assistance is not demonstrated. Not only
does Carter fail to direct our attention to any authority in support of his argument, the
record before us belies his assertion that “he was not advised or aware that a plea and
subsequent conviction in this case carried a mandatory term of imprisonment of at least
two years.” The trial court advised Carter of the mandatory nature of his sentence, and
the minimum two-year term, and Carter does not delineate defense counsel’s alleged
ineffectiveness or demonstrate prejudice. Accordingly, Carter’s second assignment of
error is overruled.
{¶ 66} Having overruled Carter/s assigned errors, the judgment of the trial court is
affirmed.
.............
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EPLEY, J., concurs.
TUCKER, P.J., concurs:
{¶ 67} The State does not argue that the ShotSpotter alert, standing alone,
provided a reasonable, articulable suspicion that Carter was connected to the reported
gunshot(s). Instead, the State argues that the initial encounter between Officers Erwin
and Gallagher was consensual, and that, based upon the officers’ observations following
the initial encounter, the incident was converted into a constitutionally permissible
investigative stop. The State then argues that there was a reasonable suspicion that
Carter was armed and dangerous, which made the pat down search and then the plain
feel discovery of the drugs at issue constitutionally appropriate. I agree with the State’s
arguments, and, on this basis, I concur in the majority opinion.
{¶ 68} I do not think, and, as just noted, the State does not assert, that a
ShotSpotter alert, without more, provides a reasonable, articulable suspicion that a
person found in or near the provided gunshot radius and otherwise acting innocuously is
connected to the reported gunshot. See Rickmon, 952 F.3d at 881 (questioning whether
a single ShotSpotter alert would amount to reasonable suspicion.).3
{¶ 69} This being said, good police work required Erwin and Gallagher to make
contact with Carter in an attempt to initiate a consensual encounter. When an officer
makes contact with a person in a public place, the officer engages that person in a
conversation during which the officer solicits investigative information, but the person
3
I do not rule out the possibility that, upon a better record regarding the reliability of
ShotSpotter, a ShotSpotter report, without much more, could provide a reasonable
suspicion to stop a person found in or near the gunshot radius.
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remains free to ignore the officer and terminate the encounter; the contact is consensual
and does not implicate the Fourth Amendment. State v. Taylor, 106 Ohio App.3d 741,
747,
667 N.E.2d 60 (2d Dist.1995), citing United States v. Mendenhall,
446 U.S. 544, 553,
100 S.Ct. 1870,
64 L.Ed.2d 497. It is the State’s burden to establish that at its inception
an encounter is consensual. State v. Crum, 2d Dist. Montgomery No. 22812, 2009-Ohio-
3012, ¶ 17. In contrast, a seizure occurs, and Fourth Amendment protections are
triggered, when, under the totality of the circumstances, a “reasonable person would have
believed that he was not free to leave or [was] compelled to respond to questions.” State
v. Celaya, 2d Dist. Montgomery No. 28177,
2019-Ohio-2747, ¶ 21, citing State v. Lewis,
2d Dist. Montgomery No. 22726,
2009-Ohio-158, ¶ 22. Determining whether an
encounter is consensual or is an investigative seizure is, obviously, “fact sensitive.” Id.
at ¶ 23.
{¶ 70} In this case, the State’s suppression hearing argument was not that the
initial encounter was consensual. And the trial court’s decision was silent on this issue.
Nonetheless, Erwin and Gallagher’s testimony established that the officers stopped the
cruiser and simply engaged Carter in conversation, and that Carter, without being
compelled to do so, responded to the officers’ inquiries. Thus, in my opinion, the
encounter was consensual at its inception.
{¶ 71} The suppression hearing testimony further established that Carter was
extremely nervous upon contact with the officers, was unable to identify the friend
supposedly living at 55 Cambridge Avenue, and attempted to shield his right side from
the officers’ view. These factors, in conjunction with the ShotSpotter alert, were sufficient
to convert the encounter into an investigative stop. Moreover, the ShotSpotter report
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and Carter’s efforts to shield his right side from the officers’ observation provided a
reasonable suspicion that Carter was armed and dangerous, making the pat down search
appropriate. Finally, I agree with the majority opinion’s plain feel analysis. In short,
though my reasoning is different, I concur in the majority opinion’s conclusion that the trial
court’s judgment should be affirmed.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
Matthew M. Suellentrop
Hon. Mary Katherine Huffman
