State v. Jackson

[Cite as State v. Jackson, 

.]




                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




 STATE OF OHIO,                               :   APPEAL NO. C-230660
                                                  TRIAL NO. B-2301917-A
         Plaintiff-Appellant,                 :

                                              :
   vs.
                                              :

 TAYESHEAN JACKSON,                           :

       Defendant-Appellee.                    :




 STATE OF OHIO,                               :   APPEAL NO. C-230661
                                                  TRIAL NO. B-2301917-B
         Plaintiff-Appellant,                 :

                                              :
   vs.
                                              :
                                                       O P I N I O N.
 JOSHUA ANDREWS,                              :

       Defendant-Appellee.                    :



Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: October 2, 2024


Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
                  OHIO FIRST DISTRICT COURT OF APPEALS



Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellee Tayeshean Jackson,

Jon R. Sinclair, for Defendant-Appellee Joshua Andrews.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



BERGERON, Presiding Judge.

       {¶1}   The investigation of an anonymous tip of a suspicious vehicle in an

apartment complex parking lot concluded in a felony stop and arrest where

defendants-appellees    Tayeshean     Jackson    and    Joshua    Andrews     (together,

“Defendants”) were ordered to roll down their windows, stick their arms out of the

vehicle, drop the keys, and walk backwards towards the officers (one of whom had his

weapon drawn). Once Defendants were handcuffed and taken into police custody, the

responding officers discovered two firearms in the rear passenger compartment of the

vehicle, leading to a two-count indictment of firearm-related charges for both

Defendants. Defendants each moved to suppress the evidence, arguing that the

officers did not have probable cause (or even reasonable suspicion) to justify the

warrantless intrusion. The trial court agreed, granting Defendants’ motions, and the

State now appeals.

       {¶2}   We sua sponte consolidate the State’s two separate appeals into a single

opinion and judgment because the State raises identical arguments in both appeals,

challenging the trial court’s grant of the motions to suppress. Having carefully

reviewed the evidence and the record, we defer to the factual findings made by the trial

court and agree with Defendants. We overrule the State’s assignment of error and

affirm the trial court’s judgments.

                                           I.

       {¶3}   At officer roll call in April 2023, the Springfield Township Police

Department briefed its officers that there had been a “shots fired” incident earlier that

day and that several residents in the area had reported some growing tension among

young adults in that area.     Later that evening, two Springfield Township police



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                    OHIO FIRST DISTRICT COURT OF APPEALS



officers—Officers Davis and Meyer—responded to an anonymous and vague tip

regarding a suspicious gold-colored vehicle in an apartment complex parking lot.

According to Officer Davis, the apartment complex was “on the same street” where

shots had been fired earlier, but the incident did not take place in the immediate area

of the complex.     Officer Meyer acknowledged that the tip did not contain any

accusations of drugs or guns, and it appears from the record that the tipster only

accused the vehicle and occupants of being “suspicious.” Other officers also responded

to the report and set up shop farther down the street as backup.

       {¶4}   In separate cruisers, Officers Davis and Meyer proceeded down two of

the complex’s driveways towards the rear parking lot, using their spotlights to scan the

area. Eventually, the officers spotted a gold sedan matching the description given in

the tip, and they illuminated the vehicle with their spotlights. Officer Davis observed

“some sort of movement” in the vehicle, and Officer Meyer testified that he “noticed

the passenger seat kick back and then the driver steering wheel kind of, like—it was

almost like a leg hit it or an arm kind of shuffled it, and then headlights turned on, and

then it started pulling off.” Approximately 42 seconds after the officers arrived and

shined their spotlights on the vehicle, the driver turned on the car and slowly drove

out of the complex. Believing that the occupants of the vehicle had obstructed

official business by attempting to flee from the police, Officer Meyer followed the

vehicle and activated his siren and overhead lights to stop the car before it left the

complex. The driver promptly stopped his vehicle.

       {¶5}   Officer Meyer addressed the occupants of the vehicle via his cruiser’s

loudspeaker and ordered them to roll down their windows, instructed the driver to

drop the keys out of the window, and demanded that both occupants stick their arms



                                            4
                    OHIO FIRST DISTRICT COURT OF APPEALS



out of the windows. Officers Meyer and Davis testified that, at this point, they

observed smoke billow from the vehicle and detected the odor of burnt marijuana.

Both Mr. Jackson and Mr. Andrews complied with all of Officer Meyer’s requests.

Officer Meyer then began walking towards the vehicle with his weapon drawn, but

Officer Davis suggested that they should instead direct the occupants to approach the

cruiser. As directed by the officers, one at a time, Mr. Andrews and Mr. Jackson

stepped out of the car and shuffled backwards towards the officers with their hands

up, while Officer Meyer still had his weapon drawn. The officers ordered the men to

kneel on the ground, and then they handcuffed both men and took them into police

custody as several additional officers then arrived at the scene to assist.

       {¶6}   Once the officers had secured Defendants, they approached the

vehicle, as they explained it, to ensure that no additional passengers were hiding in

the back seat or trunk. As Officer Davis walked around the vehicle, he noticed two

firearms in plain view in the rear passenger area. The officers also discovered

marijuana in the vehicle. Defendants were each charged with one count of carrying

a concealed weapon, in violation of R.C. 2923.12(A)(2), and one count of improperly

handling firearms in a motor vehicle, in violation of R.C. 2923.16(B), but they faced

no drug charges.

       {¶7}   Defendants separately moved to suppress the evidence of firearms

uncovered during the officer’s search of the vehicle, maintaining that the officers

lacked probable cause to effectuate the arrest, and in the alternative, that no

reasonable suspicion existed to justify the stop. In response, the State insisted that

the officers had probable cause to arrest Defendants because they obstructed official

business by driving away from the officers. It also argued that the seizure of the



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                   OHIO FIRST DISTRICT COURT OF APPEALS



firearms was proper under the plain view doctrine when the officers arrested

Defendants, approached the vehicle, and saw the firearms on the rear passenger

seat.

        {¶8}   At the hearing on the suppression motions, the State again argued

that the officers appropriately stopped and arrested Defendants because they

obstructed official business by attempting to flee from the parking lot. In support

of this point, the State called both Officer Davis and Officer Meyer as witnesses.

They testified that once the officers shined their spotlight on the vehicle, it was not

free to leave and that when Defendants drove away, the officers then had grounds

for the stop and arrest. In closing, the State reiterated its obstruction argument and

offered no additional argument about the initial stop. After Defendants’ closing

argument, the State raised, for the first time, an additional argument that the time

of night, rain, movements in the car, the car’s tinted windows, the allegedly “high

crime area,” and the reported tensions in the area contributed to the officers’

reasonable suspicion of criminal activity and justified their initial stop of the

vehicle.

        {¶9}   The trial court granted Defendants’ motions to suppress and made

various factual findings, including that Defendants did not flee (and that they drove

away at a low rate of speed), Defendants did not create a “substantial stoppage” of

official business (as required for a violation of the obstruction of official business

statute, R.C. 2921.31), Defendants complied with all of the officers’ commands, and

the officers used force in executing the stop. Ultimately, the trial court concluded

that probable cause was required for the felony arrest that occurred and that the

officers did not have probable cause for an arrest nor reasonable suspicion for a



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                    OHIO FIRST DISTRICT COURT OF APPEALS



Terry stop. See Terry v. Ohio, 

 (1968). It also denied an inevitable

discovery argument from the State on those grounds, though it appears that the

State never raised that argument. The State now appeals.

                                            II.

       {¶10} In its sole assignment of error in each appeal, the State contends that

the trial court erred when it granted Defendants’ motions to suppress, arguing that the

officers had reasonable suspicion to stop Defendants, the officers’ removal of them

from the vehicle was permissible, the smell of marijuana gave officers probable cause

to search the vehicle, and the firearms were discovered in plain view during a

protective sweep of the vehicle. Notably, the State does not challenge on appeal the

trial court’s conclusion that the officers lacked probable cause to effectuate the stop

and arrest.

       {¶11} A motion to suppress “presents a mixed question of law and fact.” State

v. Banks-Harvey, 

, citing State v. Burnside, 

, ¶

8. We “must accept the trial court’s findings of fact if they are supported by competent,

credible evidence.” 

 citing State v. Fanning, 

 (1982). But this

court “‘must independently determine whether the facts satisfy the applicable legal

standard.’” State v. Thompson, 

 (1st Dist.), quoting State v.

Taylor, 

 (1st Dist.).

       {¶12} The Fourth Amendment to the U.S. Constitution protects against

unreasonable searches and seizures. Generally, “warrantless searches are per se

unreasonable.” State v. Bacher, 

 (1st Dist.). But there are “a few

well-established exceptions” to this requirement. State v. Ulmer, 

 (1st Dist.), citing State v. Ward, 

 (1st Dist.); Katz v. United



                                            7
                   OHIO FIRST DISTRICT COURT OF APPEALS



States, 

 (1967).       As established in Terry, 

, law

enforcement officers may temporarily detain a person for a brief, investigatory stop

when they have “‘reasonable, articulable suspicion that the person has been, is, or

is about to be engaged in criminal activity.’” State v. Hawkins, 

, quoting United States v. Place, 

 (1983). For their stop to be

supported by reasonable suspicion, the officers must have “‘a particularized and

objective basis for suspecting the particular person stopped of criminal activity.’”

Navarette v. California, 

 (2014), quoting United States v. Cortez,

 (1981). “The standard is objective: would the facts available

to the officers at the moment of the seizure have warranted an individual of

reasonable caution in the belief that the action taken was appropriate?” State v.

Houston, 

 (1st Dist.), citing State v. Andrews, 

 (1991); State v. Lopez, 

 (1st Dist.).

       {¶13} “[T]raffic stops constitute seizures within the meaning of the Fourth

Amendment,” and therefore “‘must comply with the Fourth Amendment’s

reasonableness requirement.’” State v. Grayson, 

 (1st Dist.),

quoting State v. Slaughter, 

 (1st Dist.), citing Whren v. United

States, 

 (1996). It is reasonable for officers to temporarily stop

a vehicle and its occupants “if there is a reasonable and articulable suspicion that

an automobile or its occupants are subject to seizure for a violation of the law.”

, citing Delaware v. Prouse, 

 (1979). Because the

State stipulated that the seizure and subsequent search were conducted without a

warrant, it carries the burden to show that the warrantless seizure was reasonable




                                          8
                    OHIO FIRST DISTRICT COURT OF APPEALS



and justified under an exception to the warrant requirement. See City of Xenia v.

Wallace, 

 (1988).

       {¶14} But not every citizen encounter with police constitutes a Terry-level

temporary detention or a felony arrest seizure. Courts have identified “three general

categories of police-citizen contacts for purposes of determining the protections

afforded by the Fourth Amendment,” including “(1) consensual encounter, (2) an

investigative detention, or ‘Terry stop,’ and, finally, (3) a seizure that constitutes an

arrest.” State v. Hall, 

 (1st Dist.), citing Florida v. Royer, 

 (1983) (plurality opinion); State v. Mitchem, 

 (1st Dist.).

These categories help frame our inquiry, delineating what Officers Meyer and Davis

could have done (a consensual encounter), what they actually did (a felony arrest), and

what the State now argues they had the authority to do (a Terry stop). We discuss

each in turn.

                                           A.

       {¶15} First, we discuss what could have happened here (without violating

the Fourth Amendment) when Officers Meyer and Davis pulled into the parking lot

and located the vehicle that matched the description of the “suspicious” vehicle tip:

a consensual interaction with Defendants. “A consensual encounter occurs when a

police officer approaches a person in a public place, engages the person in

conversation, requests information, and the person is free to refuse to answer and

walk away.” State v. Berry, 

 (5th Dist.), citing State v. Taylor,

 (2nd Dist. 1995). An officer’s attempt at such a consensual

interaction “does not constitute a seizure,” and officers “may generally ask questions

of that individual; ask to examine the individual’s identification; and request



                                            9
                    OHIO FIRST DISTRICT COURT OF APPEALS



consent to search his or her luggage,” for example. (Emphasis added.) Florida v.

Bostick, 

 (1991). “The person approached, however, need not

answer any question put to him; indeed, he may decline to listen to the questions at

all and may go on his way.” Florida v. Royer, 

 (1983), citing

Terry, 

 (Harlan, J., concurring); 

 (White, J.,

concurring).

       {¶16} But that did not happen here. Instead, the officers hung around the

vehicle for about a minute, shining their lights on it without giving any signal that

they were seeking to talk with or stop Defendants, before Defendants slowly drove

away from the parking lot. At that time, Officer Meyer activated his siren and lights

and initiated what developed into a felony arrest based on the officers’ perception

that Defendants had obstructed official business by leaving the parking spot. As we

will discuss later in this opinion, the officers had no basis to initiate that stop in part

because the tip included nothing about any alleged criminal activity. In fact, when

Defendants started to drive out of the parking lot, the entire basis of the tip—that

there was a “suspicious” vehicle and occupants, possibly “improperly parked” in the

lot—had evaporated. If the car shouldn’t have been there, it was leaving. As the

officers themselves testified, the purpose of initially investigating the vehicle was to

determine whether the occupants lived in the apartment complex or had some other

reason to be there. Once Defendants took action to leave, there was nothing left to

investigate.

       {¶17} It is of course reasonable and appropriate for the officers to

investigate a tip of suspicious activity.        But a tip without any details, or any

corroborating evidence of criminal activity afoot, offers officers little basis to do



                                            10
                   OHIO FIRST DISTRICT COURT OF APPEALS



anything other than a consensual encounter. That helps explain why the officers,

and the State below, fixated on the obstructing official business claim to help supply

the missing justification for what followed.

                                          B.

       {¶18} Next, we consider the implications of what actually happened here: a

felony-level arrest that required probable cause. “Under Ohio law, an arrest occurs

when there is (1) an intent to arrest, (2) under real or pretended authority, (3)

accompanied by actual or constructive seizure or detention of the person, and (4)

that is so understood by the person arrested.” State v. Hall, 

(1st Dist.), citing State v. Barker, 

 (1978), paragraph one of the

syllabus.

       {¶19} Unlike an investigatory, Terry-level stop, which only requires

reasonable suspicion, a warrantless felony arrest requires probable cause, which is

“‘defined in terms of facts and circumstances “sufficient to warrant a prudent man

in believing that the [suspect] had committed or was committing an offense.”’”

State v. Jordan, 

, quoting Gerstein v. Pugh, 

, 111-

112 (1975), quoting Beck v. Ohio, 

 (1964). Thus, “the court must

determine whether the facts known to the officers at the time of the arrest would

‘“warrant a man of reasonable caution in the belief”’ that an offense has been

committed.” 

 quoting 

, quoting Carroll v. United States, 

 (1925).

       {¶20} As evident from the officers’ testimony and from the State’s

arguments below, the officers intended to arrest Defendants for obstructing official

business as soon as Defendants drove away from their parking spot. And Officer



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                   OHIO FIRST DISTRICT COURT OF APPEALS



Davis agreed on cross-examination that what officers effectuated was a “felony

stop.” Further, by immediately ordering Defendants to stop the car, roll down their

windows, drop the keys out of the car, keep their hands up, back up towards the

officers, and get on the ground before being handcuffed and placed in a cruiser, all

the while with at least one officer’s gun drawn toward them, the officers seized

Defendants in a way reasonably understood by Defendants as an arrest.

       {¶21} Thus, the officers escalated their stop of Defendants far beyond what

would have been justified to investigate their reasonable suspicion (if it existed) of

criminal activity and safety concerns based on the circumstances leading up to

Defendants’ arrests. See Terry, 

 (“[E]vidence may not be introduced

if it was discovered by means of a seizure and search which were not reasonably

related in scope to the justification for their initiation.”); Jordan, 

 (explaining the probable cause requirement for officers to effectuate an

arrest); see also State v. Hairston, 

 (“Whether an investigative

stop is converted into an arrest depends on . . . whether the degree of intrusion into

the suspect’s personal security was reasonably related to the officers’ suspicions and

the surrounding circumstances.”).

       {¶22} Because the State does not challenge on appeal the trial court’s

conclusion that the officers lacked probable cause to arrest Defendants, we need not

review in-depth the reasons why the officers lacked probable cause. But we reiterate

and agree with that conclusion in part to dispel the fiction that the State asks us to

indulge on appeal—that the officers carried out a Terry-level seizure merely

requiring reasonable suspicion. Not so—from the start of their stop of Defendants’

vehicle, the officers intended to and did carry out a felony arrest of Defendants that



                                         12
                    OHIO FIRST DISTRICT COURT OF APPEALS



required probable cause, consistent with factual findings by the trial court. We

agree with the trial court that the officers’ conduct was unjustified by the

circumstances and was unsupported by probable cause.

                                           C.

       {¶23} Finally, we turn to the State’s argument on appeal: that the officers

needed only reasonable suspicion to stop the vehicle and detain Defendants.

                                           1.

       {¶24} Before addressing the State’s legal argument, we pause to review the

record to tee up our discussion on reasonable suspicion because the factual record

and the trial court’s factual findings regarding probable cause and obstruction are

relevant to the reasonable suspicion arguments advanced by the State on appeal.

       {¶25} Most importantly, the record shows that the basis for the stop and the

arrest—that Defendants obstructed official business—was an empty rabbit hole that

the State itself led the trial court down. Officer Meyer, who initiated the stop,

testified that the grounds to make the stop and arrest was obstruction of official

business based on Defendants’ attempt to leave the parking lot. Consistent with

that testimony, the State responded to Defendants’ motions to suppress below by

arguing that the officers had probable cause that a crime had been committed,

allowing them to legally stop Defendants’ vehicle and immediately effectuate the

arrests. It tied that probable cause argument to the notion that Defendants had

obstructed official business, arguing that, after officers shined their lights at the

vehicle, “[t]he vehicle then started and began to flee. This was obstruction of official

business and the officers were lawfully permitted to stop the vehicle and make an

arrest for a violation of O.R.C. 2921.31.” Therefore, the State argued, and everyone



                                          13
                    OHIO FIRST DISTRICT COURT OF APPEALS



agreed, that the issue at hand before the trial court was whether probable cause

existed to effectuate the arrest.

       {¶26} The trial court firmly rejected obstruction as the basis for the stop and

arrest, finding that “[Mr.] Andrews’ car was moving at a slow rate of speed,” that

“the car did stop when Officer[s] activated their overhead lights,” and that “the

Defendant[’s] vehicle was not fleeing.” Based on those facts and other evidence

presented at the suppression hearing, the court concluded that the State “fell far

short of establishing even reasonable suspicion” that Defendants had obstructed

official business in violation of R.C. 2921.31, which requires that a person create a

“substantial stoppage” of an officer’s lawful investigation with the intent to obstruct

the officer’s official duties. In re R.B., 

 (1st Dist.).

       {¶27} Competent, credible evidence in the record supports these factual

findings, and we accordingly defer to them. See Banks-Harvey, 

. Nothing in the record indicates that Defendants drove out of the parking spot

at an abnormal rate of speed or that they otherwise created a “substantial stoppage”

of the officers’ work. According to Officer Davis’s testimony and confirmed by video

recordings in evidence, Defendants’ vehicle waited nearly a minute after officers

initially shined their spotlights on it before slowly starting to roll out of its parking

spot in the apartment complex lot. And although Officer Davis suspected the

occupants might be trespassers, he admitted that residents of the apartment

complex “absolutely” could have made the same decision to leave the parking lot in

the same manner. Furthermore, Officer Meyer testified that prior to activating his

cruiser’s overhead lights and siren to initiate the stop, he gave no indication to




                                           14
                   OHIO FIRST DISTRICT COURT OF APPEALS



Defendants that they were not allowed to leave. And when he did activate the lights

and initiated the stop, Defendants complied within just a few seconds.

       {¶28} Without any basis to challenge these factual findings by the trial court

on appeal, the State pivots on appeal to the question of whether reasonable

suspicion existed for the initial stop. But, in essence, its reasonable suspicion and

probable cause arguments below were both premised on one fact—that Defendants

obstructed official business—as identified by the officers. The State’s efforts to

belatedly portray all of this as a stop supported by reasonable suspicion defies the

record, its arguments below, and the factual findings of the trial court.

       {¶29} Furthermore, the State on appeal fails to challenge the trial court’s

findings that there was no flight or obstruction, raising instead a new totality of the

circumstances argument factoring in the weather, time of day, Defendants’ alleged

movements, the “shots fired” incident, and Defendants’ tinted windows, all factors

that were not raised as part of its reasonable suspicion argument below (it linked

any reasonable suspicion argument to obstructing official business).            But it

advanced no argument below that these factors related to Defendants’ alleged

obstruction, and they nonetheless do not add up to probable cause of obstruction,

or of any other crime. More to the point, the only crime ever identified before the

trial court for which there might have been reasonable suspicion was the one the

State now concedes wasn’t committed—obstructing official business.

       {¶30} Absent facts sufficient to support an obstruction argument, the State

struggles on appeal to identify a different crime for which officers had probable

cause for the arrests or reasonable suspicion for the stop. Indeed, the trial court




                                          15
                     OHIO FIRST DISTRICT COURT OF APPEALS



acknowledged that the State had no backup argument based on the anonymous tip

and other facts.

                                          2.

       {¶31} Even indulging the State’s new reasonable suspicion arguments on

appeal, the square peg of reasonable suspicion simply doesn’t fit in the round hole

of what happened here. To temporarily seize Defendants and their vehicle by

activating the cruiser’s overhead lights, the officers needed reasonable suspicion,

meaning “‘a particularized and objective basis for suspecting the particular person

stopped of criminal activity.’” Navarette, 

, quoting Cortez, 

. Considering the relevant facts and law described above, they lacked such

a basis for the initial stop.

       {¶32} First and foremost, Defendants were not reasonably suspected of

obstructing official business or fleeing from police because they slowly drove out of

the parking spot, as the trial court found as a factual matter. After officers shined

their lights on Defendants’ vehicle, the driver waited nearly a minute, turned on the

car, and began to slowly drive away. At no point did officers command them to stop,

ask them any questions, or even approach them in a way that suggested that they

sought an interaction, consensual or otherwise. As soon as one of the officers

activated his overhead lights to initiate a stop, the driver immediately complied. At

this point, but at no point before then, the officers initiated a felony arrest, as we

explained above.

       {¶33} On appeal, the State identifies no basis in law for its argument that

Defendants were seized and not free to leave when officers shined their spotlights

on them (with no other signal or command). The State’s reliance on the premise



                                         16
                   OHIO FIRST DISTRICT COURT OF APPEALS



that “unprovoked flight” is relevant to the reasonable suspicion inquiry here misses

the point, because there was no “unprovoked flight”—Defendants waited nearly a

minute, then slowly drove away after the officers did not approach them for an

interaction. Their actions were nothing like the “[h]eadlong flight” of the defendant

in Illinois v. Wardlow, 

 (2000), which the State relies on

here, who was holding an opaque bag and ran away from police in an area of heavy

narcotics trafficking immediately upon looking towards the officers who were

observing him from their vehicle, triggering a chase.       Indeed, the trial court’s

findings (discussed above) refute the State’s argument, and the State fails to directly

challenge them.

       {¶34} Thus, when Defendants slowly drove away from the parking lot after

nearly a minute of the officers hanging around them for no expressed reason, the

officers had no legal basis to stop the vehicle, because, simply put, there was no

reasonable suspicion that the occupants or the vehicle were involved in any criminal

activity.

       {¶35} This is also not a situation where officers had any reason to believe

that the “suspicious” vehicle was involved in a completed crime, i.e., possibly the

“shots fired” incident from earlier that day somewhere vaguely near the parking lot.

Although “reasonable suspicion that a vehicle may have been involved in a past

felony” may justify a Terry-level stop of that vehicle, State v. Stanford, 2023-Ohio-

1011, ¶ 9 (1st Dist.), here the State established no facts—not the tip nor anything

officers observed before initiating the stop—suggesting that Defendants’ vehicle or

Defendants themselves had anything to do with the “shots fired” incident. Officers

observed no firearms, no drugs, and no illegal activity in, near, or in any way



                                          17
                    OHIO FIRST DISTRICT COURT OF APPEALS



connected to the Defendants’ vehicle prior to arresting them. They only observed

Mr. Jackson, the passenger, recline his seat, and described observing some vague

movement involving the steering wheel from one of the Defendants. At best, these

sorts of movements might raise a nonparticular “hunch” of illegal activity, but Terry

explicitly rejects warrantless searches and seizures “based on nothing more

substantial than inarticulate hunches.” Terry, 

.

       {¶36} Having concluded that there was no reasonable suspicion to stop and

seize the vehicle, we hold that no exception to the warrant requirement applies, and

the officers violated Mr. Jackson’s and Mr. Andrews’s Fourth Amendment rights by

seizing them. Lacking any justification to legally stop and seize the vehicle and its

occupants, the officers’ discovery of the firearms in the vehicle after they escalated

the stop to a felony arrest is fruit of the poisonous tree and is subject to suppression

under the exclusionary rule. See State v. Bembry, 

, citing

Mapp v. Ohio, 

 (1961); see also State v. Smith, 

 (1st Dist.).

       {¶37} Furthermore, our conclusion that the stop violated the Fourth

Amendment forecloses the State’s argument that the marijuana smell and smoke

emanating from Defendants’ vehicle after the stop was initiated, but before

Defendants were ordered out of the vehicle, gave officers probable cause to search

the car and thus discovery of the firearms was inevitable. It also precludes the

argument that the firearms were in plain view after the stop was initiated. We

accordingly agree with Defendants that exclusion of the firearms evidence is the

proper remedy. The State’s sole assignment of error is overruled.

                                    …



                                          18
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶38} Because the officers who stopped and seized Mr. Andrews and Mr.

Jackson did so without probable cause and without reasonable suspicion that they

were involved in criminal activity, we conclude that the officers violated their Fourth

Amendment protections against unreasonable searches and seizures. We therefore

overrule the State’s assignment of error and affirm the judgments of the trial court

granting Defendants’ motions to suppress evidence of firearms recovered from a

subsequent search of Defendants’ vehicle.

                                                                  Judgments affirmed.

KINSLEY, J., concurs separately.
WINKLER, J., dissents.

KINSLEY, J., concurring separately.

       {¶39} I concur that, on the arguments presented by the State in this case, the

decision of the trial court should be affirmed. Nonetheless, I write separately to

express my belief that the inevitable discovery doctrine may have authorized the

search in this case if the State had preserved that argument before the trial court and

presented it to us.

       {¶40} Pursuant to the inevitable discovery doctrine, evidence that is illegally

obtained can be properly admitted in a criminal trial once it is established that the

evidence “would have been ultimately or inevitably discovered during the course of a

lawful investigation.” (Emphasis added.) State v. Huffman, 

, ¶ 18

(8th Dist.), citing State v. Perkins, 

 (1985). This inquiry is not

without possible limitations. For example, in State v. Keith, 

(2d Dist.), the Second District held that the inevitable discovery doctrine does not

apply to evidence seized without a warrant.



                                          19
                    OHIO FIRST DISTRICT COURT OF APPEALS


       {¶41} To the extent the inevitable discovery doctrine applies in a case, it

examines not what actually took place during the course of a search, but instead what

hypothetically could have occurred. It thus asks us to envision lawful action by the

police and to question whether the evidence would have been uncovered in that

scenario without a constitutional violation. See, e.g., State v. Hapney, 2002-Ohio-

3250, ¶ 45-47 (4th Dist.).

       {¶42} Looking at what could have taken place here, Defendants do not dispute

that the officers in this case could have lawfully initiated a consensual encounter with

them by engaging in a routine traffic stop. See State v. Berry, 

(5th Dist.) (describing a consensual encounter as one in which an officer initiates a

conversation for the purpose of requesting information and the subject of the request

is free to refuse and to walk away). Doing so would have involved the officers

illuminating the flashing lights on their cruiser, approaching Defendants’ vehicle, and

asking to speak with Defendants. At that point, the guns in plain view on the back seat

of the car would have been visible to the officers. See, e.g., State v. Wilson, 2011-Ohio-

707, ¶ 16 (8th Dist.) (upholding search and seizure of guns from car during lawful

traffic stop on the basis that they were in the officers’ plain view).

       {¶43} Given these facts, it is therefore possible, perhaps even likely, that we

would have concluded the guns would be subject to inevitable discovery without any

violations of the Fourth Amendment were we asked to consider the question. The

State, however, did not advance this argument. Not to the trial court. Not on appeal.

       {¶44} Appellate courts only resolve issues brought to them by the parties

before them. See Kalish v. Trans World Airlines, Inc., 

 (1977).

This important principle ensures that courts function as neutral arbiters of disputes,

rather than as advocates for one side or the other. I am therefore unable to resolve

                                            20
                    OHIO FIRST DISTRICT COURT OF APPEALS


this case on the basis of an argument that the State did not make. For this reason, I

concur in the court’s resolution of the issues actually presented in this appeal.

WINKLER, J., dissenting.

       {¶45} I am firmly convinced that the stop and seizure of the defendants was

reasonable under the Fourth Amendment, and I would hold that the trial court erred

in granting Jackson’s and Andrew’s motions to suppress the seized firearms. I

respectfully dissent from the majority’s opinion.

       {¶46} In its brief, the State argues that the police officers had a reasonable

suspicion of criminal activity, justifying an investigative stop. The majority points out

the distinction between that argument and the State’s argument in the trial court, that

the officers had probable cause to arrest the defendants for obstructing official

business. While it is true that at the hearing on the motions to suppress, the State

primarily relied on its argument that the officers had probable cause to arrest the

defendants for obstructing official business, the propriety of the investigative stop was

clearly at issue.

       {¶47} In their written motions to suppress and in oral argument in the trial

court, both defendants argued that the police officers did not have a reasonable and

articulable suspicion of criminal activity to justify an investigative stop under Terry v.

Ohio, 

 (1968). In its memorandum in response to the motions to suppress,

the State maintained the officers had a reasonable, articulable suspicion that the

individuals in the car were obstructing the investigation when they attempted to flee

the scene.

       {¶48} At the hearing on the motions to suppress, following the defense

counsel’s opening statement, the court asked, “Are you arguing this is an arrest?”

Defense counsel replied, “Your honor we would be arguing both that this was an arrest

                                           21
                    OHIO FIRST DISTRICT COURT OF APPEALS


because of the amount of force used made it an arrest, but we would also be arguing

that the police did not have a good enough reason, did not have a reasonable,

articulable suspicion to turn this even into a Terry stop, an investigative stop . . . .”

The State, in its closing argument, continued to argue that the police were conducting

a Terry stop when the defendants attempted to flee the scene.           During closing

argument, defense counsel again argued that regardless of whether the standard was

probable cause or reasonable suspicion, “this fails both.”

       {¶49} An investigative stop is a seizure within the meaning of the Fourth

Amendment that must be supported by objective justification. State v. Andrews, 

 (1991); State v. Houston, 

. In Terry, the

United States Supreme Court held that a police officer may perform an investigative

stop when the officer has a reasonable, articulable suspicion that the person has been,

is, or is about to be engaged in criminal activity. State v. Hawkins, 

; 

. The police officers must point to specific and articulable facts

that, taken together with the rational inferences from those facts, reasonably warrant

that intrusion. 

; 

. The standard is objective: would the

facts available to the officers at the moment of the seizure have warranted an

individual of reasonable caution in the belief that the action taken was

appropriate? 

; 

.

       {¶50} Specifically, in relation to automobiles, if there is a reasonable and

articulable suspicion that an automobile or its occupants are subject to seizure for a

violation of the law, stopping that automobile and detaining its occupants are

reasonable under the Fourth Amendment. Delaware v. Prouse, 

(1979); 

. A court determines the validity of an investigative stop by



                                           22
                    OHIO FIRST DISTRICT COURT OF APPEALS


looking at the totality of the circumstances. State v. Freeman, 

(1980), paragraph one of the syllabus; 

.

       {¶51} Reasonable suspicion is an “elusive concept,” and “[p]recisely defining

reasonable suspicion is not possible.” It is not readily reduced to a “neat set of legal

rules.” 

. It is a less demanding standard than probable cause. Id.; In

re J.C., 

 (1st Dist.), quoting United States v. Sokolow, 

 (1989). But it is something more than an “inchoate and unparticularized suspicion

or ‘hunch.’” 

; In re J.C. at ¶ 14. The evaluation of the constitutionality

of a stop should be based on the totality of circumstances “viewed through the eyes of

the reasonable and prudent police officer on the scene who must react to events as

they unfold.” State v. Hairston, 

, quoting Andrews, 

.

       {¶52} While a police officer needs a reasonable and articulable suspicion that

an individual was engaged in criminal activity, that officer does not have to articulate

that that individual had committed a specific offense. “The officer need not have

suspected the appellant of the specific offense for which he was ultimately arrested at

the time of the stop so long as the officer had reasonable suspicion to effect the

investigatory stop.” State v. Arnold, 

, *10-11 (5th Dist. Jan.

6, 1995).

       {¶53} Further, reasonable suspicion is an objective standard. State v. Rogers,

 (1st Dist.). A police officer’s subjective belief or motive for

conducting the stop is irrelevant. State v. Newman, 

 (5th Dist.);

State v. Stover, 

 (12th Dist.); State v. McCandlish, 2012-Ohio-

3765, ¶ 9 (10th Dist.). The totality of the circumstances must be considered through

the “eyes of the reasonable and prudent police officer who must react to events as they

                                           23
                      OHIO FIRST DISTRICT COURT OF APPEALS


unfold.” Hawkins, 

, quoting Andrews, 

-

88; State v. Wright, 

 (1st Dist.). Thus, the officers’ testimony that

they believed a stop was justified because the defendants were obstructing official

business is not dispositive.

          {¶54} Earlier in the day, the officers were informed at roll call that gunshots

had recently been fired on the same street where the apartment complex was located.

They were also informed that tensions were rising among juvenile groups and that

there was the potential for retaliation. They received a dispatch to investigate a

suspicious vehicle in the parking lot of the apartment complex. Officer Meyer testified

that it was a high-crime area. Further, when he was asked if there had been “previous

gun calls” to the apartment complex, he replied, “not at that exact complex, but in the

vicinity of it.” A police officer’s experience with criminal activity and an area’s

reputation for criminal activities are relevant factors in the reasonable-suspicion

analysis. Hairston, 

; In re J.C., 

 (1st

Dist.).

          {¶55} It was dark and rainy when the officers received the dispatch. Upon

arrival at the apartment complex, they shone a spotlight on various cars in the lot. An

officer’s use of a light to better illuminate a vehicle’s interior does not convert the

officer’s actions into a search withing the meaning of the Fourth Amendment. In re

J.F., 

 (1st Dist.). When the officers located the gold sedan

described as suspicious, they observed that it had tinted windows, making it difficult

to see inside.

          {¶56} Immediately after the police shined their spotlight on the car, the

officers saw Jackson, who was in the passenger seat of the car, quickly recline his seat,



                                            24
                    OHIO FIRST DISTRICT COURT OF APPEALS


as if he was trying to hide. The steering wheel moved, as if a leg or an arm hit it. Then

the driver, Andrews, turned on the headlights, and attempted to drive away.

       {¶57} A defendant’s movements, such as furtive gestures, can be considered

in analyzing whether a police officer had reasonable suspicion. State v. Bobo, 

 (1988); State v. Simmons, 

 (12th Dist.). While

a furtive gesture, standing alone, does not create probable cause for a search, reliance

on a clandestine gesture when other facts indicating a reasonable suspicion of criminal

activity are also present is sufficient for a Terry stop. 

; 

.

       {¶58} Unprovoked flight upon seeing police officers is a relevant consideration

in determining whether the totality of the facts and circumstances are sufficient to

justify a Terry stop. Illinois v. Wardlow, 

 (2000); State v.

Jordan, 

 (2d Dist.). While such behavior is not “necessarily

indicative of criminal behavior, and can be consistent with innocent conduct, Terry

recognized that officers may briefly detain individuals to resolve ambiguity in their

conduct.” Jordan at ¶ 22.

       {¶59} The defendants argue that the evidence did not show that the vehicle

fled the scene. Instead, they contend that it merely drove away at a low rate of speed.

Flight means some escape or alternative attempt to avoid prosecution. State v.

Robinson, 

 (1st Dist.); State v. Brundage, 

(1st Dist.). It requires the accused to appreciate that he or she has been identified as a

person of interest in a criminal offense and is taking active measures to avoid being

found. State v. Scott, 

 (11th Dist.).

       {¶60} The speed that the defendants used in fleeing is not determinative. They

were aware of a police presence, and even if they had no knowledge about the previous

                                           25
                    OHIO FIRST DISTRICT COURT OF APPEALS


shooting, the smell of burnt marijuana in the car supports the inference that they were

fleeing the scene. The Fourth Amendment does not require a police officer who lacks

the precise level of information necessary for probable cause to arrest “to simply shrug

his shoulders and allow a crime to occur or a criminal to escape.” State v. Tidwell,

, quoting Adams v. Williams, 

 (1972).

       {¶61} Given the totality of the circumstances known to the officers as they

evolved at the time of the search, the officers had a reasonable and articulable

suspicion that the car and its occupants were subject to a seizure for a violation of the

law. As the prosecutor pointed out at the hearing on the motions to suppress, “It’s

reasonable that they stopped the vehicle. It would not be reasonable for them to say

oh, he left, that’s all we can do.” The officers would have been derelict in their duties

had they not pursued the investigation under the circumstances.

       {¶62} The State also argues that the trial court erred in finding that the

officers’ actions of activating lights and sirens, broadcasting instructions by

loudspeaker, and directing defendants to exit from the vehicle converted the stop into

an arrest. In State v. Evans, 

 (1993), the Ohio Supreme Court

followed Pennsylvania v. Mimms, 

 (1977), and held that a police officer

may order a motorist to get out of a car that has been properly stopped for a traffic

violation, even without a suspicion of criminal activity. The court referred to this type

of order as a Mimms order. 

.

       {¶63} “[T]he order to step out of the vehicle is not a stop separate and distinct

from the original traffic stop.” State v. Jackson, 

, quoting 

. The state’s “‘legitimate and weighty’ interest in officer safety outweighs the ‘de

minimus’ additional intrusion of requiring the driver . . . to exit the vehicle.” State v.

Isles, 

 (5th Dist.), quoting 

. “It is so minimal

                                           26
                     OHIO FIRST DISTRICT COURT OF APPEALS


and insignificant an intrusion that the Mimms court refused to apply the requirements

of an investigatory stop.” 

. An officer needs no justification beyond that

necessary for the initial stop to order a driver from the car. State v. Jackson, 2022-

Ohio-4365, ¶ 13. Later, in Maryland v. Wilson, 

 (1997), the United States

Supreme Court expanded that rule to include the passengers in the car. In re J.F.,

 (1st Dist.).

       {¶64} Further, this court has held that where a police officer has lawfully

stopped a driver for a window-tint violation, the officer could properly order the driver

to get out of his van.    See State v. Leonard, 

 (1st Dist.).

Consequently, the defendants’ Fourth Amendment rights were not violated when the

officers ordered them to get out of the car. See Houston, 

 (1st

Dist.); State v. Emmons, 

 (1st Dist.).

       {¶65} Courts have recognized the practical necessity that the police “exercise

unquestioned command of the situation.” Brendlin v. California, 

(2007), quoting 

. It is reasonable “to expect that a police officer at the

scene of a crime, arrest, or investigation will not let people move around in ways that

jeopardize his safety.”    

   Moreover, police officers may take steps that are

“reasonably necessary to protect their personal safety and to maintain the status quo

during the course of [a] stop.” Hairston, 

, quoting United

States v. Hensley, 

 (1985). The mere use or display of force during a

stop will not necessarily convert a stop into an arrest. 

 Whether an investigative

stop turns into an arrest depends on whether the officers had a reasonable suspicion

to make the stop and whether the degree of intrusion into the suspects personal

security was reasonably related to the officers’ suspicions and the surrounding

circumstances. 

                                           27
                      OHIO FIRST DISTRICT COURT OF APPEALS


          {¶66} Both police officers testified that the officers’ decision to approach the

car with weapons drawn and the orders to drop the keys and exit from the vehicle were

motivated by safety concerns. Given the officers’ knowledge of a report of shots fired

on the same street, concerns about escalating tensions between groups of juveniles,

previous violent crimes in the area, the area’s reputation as a high-crime area, the

defendants’ movements within the vehicle, and the fact that it was rainy and dark, the

precautions taken by the officers were reasonable and did not convert the stop into an

arrest.

          {¶67} Next, the State argues that when the officers smelled burnt marijuana

and observed smoke emanating from the car, they had probable cause to search the

car. Under the automobile exception to the warrant requirement, police officers may

conduct a warrantless search of an entire vehicle if the officers have probable cause to

believe that they will discover evidence of a crime. State v. Moore, 

 (2000); State v. Payne, 

 (1st Dist.). Officers who have

probable cause to search an automobile may search all packages and containers inside

the car if they have probable cause to believe that the package or container contains

contraband. Wyoming v. Houghton, 

, (1999); 

.

          {¶68} Probable cause to search exists where “known facts and circumstances

are sufficient to warrant a [person] of reasonable prudence in the belief that

contraband or evidence of a crime will be found.” State v. Jones, 

(1st Dist.), quoting Ornelas v. United States, 

 (1996). Whether

probable cause exists depends on the objective factors articulated by the officer. If the

search is objectively reasonable, the officer’s stated reason for the search is irrelevant.

; In re L.S., 

 (1st Dist.).



                                             28
                   OHIO FIRST DISTRICT COURT OF APPEALS


       {¶69} The Ohio Supreme Court has held that the smell of marijuana, alone, by

a person qualified to recognize the odor, is sufficient to establish probable cause to

search a motor vehicle, pursuant to the automobile exception to the warrant

requirement. State v. Vega, 

, quoting Moore, 

. Once the officers saw smoke and smelled burnt marijuana, they had probable

cause to believe that the car contained contraband. Therefore, they were justified in

conducting a warrantless search of the vehicle and any containers it had inside under

the automobile exception to the warrant requirement. See 

; In re L.S. at

¶ 17-20.

       {¶70} Consequently, I would hold that the trial court erred in granting the

defendants’ motions to suppress. I would sustain the State’s assignment of error,

reverse the trial court’s judgment, and remand the matter for further proceedings.




Please note:

       The court has recorded its entry on the date of the release of this opinion.




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