[Cite as State v. Thornton,
2023-Ohio-1404.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellant : C.A. No. 29653
:
v. : Trial Court Case No. 2022 CR 01798
:
NORMAN THORNTON : (Criminal Appeal from Common Pleas
: Court)
Appellee :
:
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OPINION
Rendered on April 28, 2023
...........
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellant
JOSEPH M. RUSCH, Attorney for Appellee
.............
HUFFMAN, J.
{¶ 1} The State of Ohio appeals from the trial court’s decision granting Defendant-
Appellee Norman Thornton’s motion to suppress. The State contends that the trial court
erred by finding that there was no reasonable articulable suspicion or probable cause to
justify the stop and later seizure of Thornton. For the reasons outlined below, we agree
and reverse the judgment of the trial court.
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I. Factual and Procedural Background
{¶ 2} The Dayton Police Department’s Strategic Response Unit (“SRU”) consists
of five to seven police officers whose primary goal, in an effort to curtail crime, is to patrol
high-crime areas based upon statistics and data polling of drug and weapon complaints,
as directed by their sergeant. On June 30, 2022, the SRU was tasked with patrolling the
area of Kings Mill Court apartments located at 3522 Dorham Place, in Dayton, Ohio, from
which complaints regarding drug sales and weapons had historically come.
{¶ 3} According to body-camera videos, at approximately 9:52 p.m. on June 30,
2022, five uniformed SRU officers, including Officers Joshua Erwin and Kyle Harris,
parked their cruisers and walked toward the Kings Mill Court apartment complex parking
lot. When the officers approached the lot, they heard loud music, observed three men
standing near a parked truck, and spotted open containers of alcohol. As they moved
toward the men, the officers shined their flashlights and introduced themselves as
“Dayton Police.” None of the officers had weapons drawn. The body-camera videos
showed that the officers were some distance away from the three men when, immediately
after the officers announced themselves, one of the men, later identified as Thornton,
turned and ran. Within seconds, one officer said, “He’s got a gun. I think he’s got a gun,”
and the officers swiftly pursued Thornton. After less than a minute, Thornton was
apprehended but no firearm was found on him. The officers then retraced the path of the
pursuit and found a discarded firearm nearby.
{¶ 4} At 10:03 p.m., Thornton was placed in the police cruiser. When asked by an
officer for personal identifying information, including his name, social security number,
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and date of birth, Thornton made several unsolicited statements not in response to
anything the officer had said and asked the officer if he could have his gun back once he
was released.
{¶ 5} At 10:20 p.m., another officer opened the rear door of the cruiser and read
Thornton his Miranda rights from a card. After each right was read, Thornton verbally
acknowledged his understanding. Thornton was calm, did not appear to be under the
influence of drugs or alcohol, and did not assert his right to remain silent or request an
attorney. Thornton stated that he had not known that the individuals approaching him and
the other two men were police officers before he began running and had not heard the
officers say “Dayton Police.”
{¶ 6} On July 11, 2022, Thornton was indicted on one count of having weapons
while under disability (prior offense of violence) in violation of R.C. 2923.13(A)(2), a felony
of the third degree, and one count of carrying concealed weapons (loaded/at hand) in
violation of R.C. 2913.12(A)(2), a felony of the fourth degree.
{¶ 7} On September 12, 2022, Thornton filed a motion to suppress, arguing that
the evidence of his possession of a firearm should be suppressed. Thornton argued that
the stop and subsequent seizure of the firearm were accomplished in violation of the
Fourth Amendment, as there had been no arrest or search warrant and his seizure had
occurred without probable cause or reasonable articulable suspicion that he was
engaging in illegal activity.
{¶ 8} At a hearing on the motion to suppress held on November 14, 2022,
Officers Joshua Erwin and Kyle Harris testified for the State. Officer Harris testified that,
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as the five SRU officers approached the three individuals in the parking lot intending to
conduct an investigation and speak with them, one officer stated “stay put.”
{¶ 9} Following the hearing, the trial court granted Thornton’s motion, finding that
the officers had conducted an investigatory detention of Thornton without having
reasonable articulable suspicion of criminal activity when they approached to investigate
in a large group, shined their flashlights, identified themselves as “Dayton Police,” and
said “stay put.” The trial court found that a reasonable person would not have felt free to
walk away under the circumstances in this case and that there had needed to be
reasonable articulable suspicion that criminal activity was afoot, which was lacking, as
there had been no warrant, no suspect, no complaint of drug sales or weapons
possession, no shooting report, and no calls for service. The trial court found that there
was no evidence that city ordinances or state statutes had been violated; there had been
no complaints from neighbors or residents about loud music; and there was no evidence
that Thornton had been intoxicated or consuming alcohol. The trial court further found
that there had been a warrantless search and seizure and that no exception to the warrant
requirement applied; that Thornton had been detained without reasonable articulable
suspicion that criminal activity was afoot; that Thornton’s flight had not contributed to a
finding of reasonable articulable suspicion because he was confronted with an unlawful
order to “stay put”; that evidence was obtained after the pursuit and seizure of Thornton;
and that the evidence of the firearm and Thornton’s identity were fruit of the poisonous
tree and had to be suppressed.
{¶ 10} The State filed a timely notice of appeal on November 28, 2022.
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II. Assignment of Error
{¶ 11} The State’s sole assignment of error is as follows:
The trial court erred in granting Thornton’s motion to suppress. The
court incorrectly ruled that there was no reasonable or articulable suspicion
to justify the Terry stop of Thornton.
{¶ 12} The State contends that the trial court improperly found that the police
officers did not have reasonable articulable suspicion that criminal activity was occurring
for the purpose of an investigatory detention of Thornton. As a result, according to the
State, the motion to suppress should have been overruled by the trial court, and the trial
court’s judgment must be reversed. We agree.
{¶ 13} “Appellate review of a motion to suppress presents a mixed question of
law and fact.” State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71,
¶ 8. When ruling on a motion to suppress, “the trial court assumes the role of trier of fact
and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.”
Id., citing State v. Mills,
62 Ohio St.3d 357, 366,
582 N.E.2d 972
(1992). “Consequently, an appellate court must accept the trial court’s findings of fact if
they are supported by competent, credible evidence.”
Id., citing State v. Fanning,
1 Ohio
St.3d 19, 20,
437 N.E.2d 583 (1982). “Accepting these facts as true, the appellate court
must then independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.”
Id., citing State v. McNamara,
124 Ohio App.3d 706,
707 N.E.2d 539 (4th Dist.1997).
{¶ 14} “The Fourth Amendment to the United States Constitution, and Section 14,
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Article I of the Ohio Constitution, protect individuals from unreasonable searches and
seizures conducted by police officers.” (Citations omitted.) State v. Ferguson, 2d Dist.
Montgomery No. 28644, 2020-Ohio-4153, ¶ 12. The Fourth Amendment, however, is not
implicated every time a police officer has contact with a citizen. State v. Taylor,
106 Ohio
App.3d 741, 747,
667 N.E.2d 60 (2d Dist.1995), citing California v. Hodari D.,
499 U.S.
621,
111 S.Ct. 1547,
113 L.Ed.2d 690 (1991). “The United States Supreme Court has
identified three categories of police-citizen contact to identify situations where the Fourth
Amendment protections are implicated.” (Citation omitted.) State v. Crum, 2d Dist.
Montgomery No. 22812,
2009-Ohio-3012, ¶ 12, citing Florida v. Royer,
460 U.S. 491,
501-507,
103 S.Ct. 1319,
75 L.Ed.2d 229 (1983). These categories are: (1) consensual
encounters; (2) investigatory detentions; and (3) seizures that are the equivalent of an
arrest.
Taylor at 747-749.
{¶ 15} “Consensual encounters are not seizures, and Fourth Amendment
guarantees are not implicated in such encounters.” State v. Keister, 2d Dist. Montgomery
No. 29081, 2022-Ohio-856, ¶ 27, citing Taylor at 747-749, citing United States v.
Mendenhall,
446 U.S. 544, 554,
100 S.Ct. 1870,
64 L.Ed.2d 497 (1980). “Consensual
encounters occur when the police merely approach a person in a public place and engage
the person in conversation, and the person remains free not to answer and to walk away.”
State v. Lewis, 2d Dist. Montgomery No. 22726,
2009-Ohio-158, ¶ 21, citing Mendenhall
at 553. Therefore, “[a] consensual encounter can occur when a police officer approaches
and questions individuals in or near a parked car.” (Citations omitted.) State v. Schott, 2d
Dist. Darke No. 1415,
1997 WL 254141, *3 (May 16, 1997); State v. Jones, 188 Ohio
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App.3d 628, 2010-Ohio-2854,
936 N.E.2d 529, ¶ 20 (10th Dist.). Moreover, “[t]he request
to check a person’s identification does not make the encounter nonconsensual; nor does
the request to check one’s belongings.” (Citation omitted.) Crum at ¶ 14. “The Fourth
Amendment guarantees are not implicated in such an encounter unless the police officer
has by either physical force or show of authority restrained the person’s liberty so that a
reasonable person would not feel free to decline the officer’s requests or otherwise
terminate the encounter.”
Taylor at 747-748. “Only once a person’s liberty has been
restrained has the encounter lost its consensual nature and [it] falls into a separate
category beyond the scope of a consensual encounter.” (Citations omitted.) Crum at ¶ 14.
{¶ 16} The second type of encounter is a “Terry stop” or an investigatory detention,
which is more intrusive than a consensual encounter but less intrusive than a formal
custodial arrest. Taylor at 748. “Unlike consensual encounters, an investigatory detention
constitutes a seizure; therefore, Fourth Amendment protections are implicated in an
investigatory detention.” (Citations omitted.) State v. Shern, 2d Dist. Montgomery No.
27976,
2018-Ohio-5000, ¶ 13. “An 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 to leave
or is compelled to respond to questions.” Lewis at ¶ 22, citing Mendenhall at 553 and
Terry v. Ohio,
392 U.S. 1, 16 and 19,
88 S.Ct. 1868,
20 L.Ed.2d 889 (1968). In
Mendenhall, the Supreme Court listed several factors that might indicate a seizure,
including the display of a weapon by an officer, physical touching of the person, the use
of language or tone of voice indicating that compliance with the officer’s request might be
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compelled, and blocking the citizen’s path, among others. Mendenhall at 54. “The mere
presence of multiple officers does not necessarily establish a seizure.” State v. Thomas,
2d Dist. Montgomery No. 27588,
2017-Ohio-8606, ¶ 12.
{¶ 17} During investigatory detentions, “police officers may briefly stop and/or
temporarily detain individuals in order to investigate possible criminal activity if the officers
have a reasonable, articulable suspicion that criminal activity may be afoot[.]” (Citations
omitted.) State v. Swift, 2d Dist. Montgomery No. 27036, 2016-Ohio-8191, ¶ 10, citing
Terry. Therefore, investigatory detentions do not violate the Fourth Amendment “as long
as the police have a reasonable, articulable suspicion of criminal activity.” State v. Ramey,
2d Dist. Montgomery No. 26705,
2016-Ohio-607, ¶ 22, citing
Taylor at 748-749, citing
Terry at 21. “The determination whether an officer had reasonable suspicion to conduct
a Terry stop must 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,
156 Ohio St.3d 363,
2019-Ohio-1622,
126 N.E.3d 1132, ¶ 10,
quoting State v. Andrews,
57 Ohio St.3d 86,
565 N.E.2d 1271 (1991). “An assessment of
the totality of the circumstances ‘does not deal with hard certainties, but with
probabilities.’ ”
Id., quoting United States v. Cortez,
449 U.S. 411, 418,
101 S.Ct. 690,
66
L.Ed.2d 621 (1981).
{¶ 18} “An 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.” Illinois v. Wardlow, 528 U.S. 119, 124-25,
120 S. Ct. 673,
145
L.Ed.2d 570 (2000), citing Brown v. Texas,
443 U.S. 47,
99 S.Ct. 2637,
61 L.Ed.2d 357
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(1979). However, “officers are not required to ignore the relevant characteristics of a
location in determining whether the circumstances are sufficiently suspicious to warrant
further investigation,” and, thus, a stop occurring in a high crime area is a relevant
contextual consideration in a Terry analysis. Id., citing Adams v. Williams,
407 U.S. 143,
144, 147-148,
92 S.Ct. 1921,
32 L.Ed.2d 612 (1972). Moreover, “evasive behavior is a
pertinent factor in determining reasonable suspicion.”
Id., citing United States v. Brignoni-
Ponce,
422 U.S. 873, 885,
95 S.Ct. 2574,
45 L.Ed.2d 607 (1975); Florida v. Rodriguez,
469 U.S. 1, 6,
105 S.Ct. 308,
83 L.Ed.2d 165 (1984) (per curiam); United States v.
Sokolow,
490 U.S. 1, 8-9,
109 S.Ct. 1581,
104 L.Ed.2d 1 (1989). “Unprovoked flight upon
seeing police officers is a relevant consideration in determining whether the totality of the
facts and circumstances are sufficiently suspicious to justify a Terry stop.” State v. Jordan,
2d Dist. Clark No. 2005-CA-4,
2006-Ohio-1813, ¶ 22, citing Wardlow. “While such a factor
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.”
Id. “Flight, by its very nature, is not ‘going about one’s business’; in fact,
it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and
investigate further is quite consistent with the individual’s right to go about his business
or to stay put and remain silent in the face of police questioning.”
Wardlow at 124-125.
Thus, “the determination of reasonable suspicion must be based on commonsense
judgments and inferences about human behavior.”
Id., citing United States v. Cortez,
449
U.S. 411, 418,
101 S.Ct. 690,
66 L.Ed.2d 621 (1981).
{¶ 19} Unlike investigatory detentions, a seizure that is the equivalent of an arrest
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is constitutionally permissible “only if the police have probable cause to arrest a person
for a crime.” State v. Retherford, 93 Ohio App.3d 586, 595,
639 N.E.2d 498 (2d Dist.1994),
citing Florida v. Royer,
460 U.S. 491,
103 S.Ct. 1319,
75 L.Ed.2d 229 (1983). “A seizure
is equivalent to an arrest when (1) there is an intent to arrest; (2) the seizure is made
under real or pretended authority; (3) it is accompanied by an actual or constructive
seizure or detention; and (4) it is so understood by the person arrested.”
Taylor at 749.
“Probable cause to arrest exists when a reasonably prudent person would believe that
the person to be arrested has committed a crime.” State v. Adams, 2d Dist. Montgomery
No. 24184,
2011-Ohio-4008, ¶ 7, citing State v. Timson,
38 Ohio St.2d 122,
311 N.E.2d
16 (1974).
{¶ 20} Whether a law enforcement officer possessed probable cause or
reasonable suspicion to detain an individual must be examined in light of the totality of
the circumstances viewed from the standpoint of an objectively reasonable police officer.
State v. Andrews, 57 Ohio St.3d 86, 87,
565 N.E.2d 1271 (1991); State v. Short, 2d Dist.
Montgomery No. 27712,
2018-Ohio-3202, ¶ 19-20; State v. Cromes, 3d Dist. Shelby No.
17-06-07,
2006-Ohio-6924, ¶ 38, citing United States v. Arvizu,
534 U.S. 266, 273,
122
S.Ct. 744,
151 L.Ed.2d 740 (2002). “This ‘typically requires [a showing] that the officer
making the stop [or arrest] was [personally] aware of sufficient facts to justify it[.]’” State
v. Pickett,
2017-Ohio-5830,
94 N.E.3d 1046, ¶ 9 (2d Dist.), quoting City of Maumee v.
Weisner,
87 Ohio St.3d 295, 297,
720 N.E.2d 507 (1999).
{¶ 21} It is worth noting that, at Thornton’s motion to suppress hearing, the “stay
put” order was the subject of debate. The trial court relied upon the “stay put” order as the
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basis for its reasoning that the encounter between the police and Thornton constituted an
investigatory detention without reasonable articulable suspicion even before Thornton
fled. However, upon our review of the body-camera video, the order to “stay put” was not
audible on the video, and the trial court even acknowledged that, while Officer Harris
testified that a “stay put” order was given, the audio portion of the video from the body
camera was not as clear.
{¶ 22} The State argues that the police had reasonable and articulable suspicion
for the purpose of a Terry stop when the officers initially approached, announced
themselves, shined their flashlights, and said “stay put.” The State argues that the police
approached during dark hours, knew the area to be a high-crime area where several gun
and drug arrests had previously been made, heard loud music, and observed open
containers as they approached the three men standing near a parked truck. The State
further argues that the officers believed that there was the potential for a citation to be
issued pursuant to R.C. 4301.62(B)(3), which prohibits any person from having an opened
container of beer or intoxicating liquor in the person’s possession in any public place;
thus, the officers would have been permitted to detain Thornton to issue a citation but did
not have the opportunity because Thornton fled.
{¶ 23} In rebuttal, Thornton argues that he was seized in violation of his Fourth
Amendment rights when officers approached as group while spread out in a line, shined
their flashlights, announced themselves as “Dayton Police,” and said “stay put.” Thornton
argues that the police did not have reasonable articulable suspicion to justify a Terry stop
at that point in time. We disagree.
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{¶ 24} Thornton was not only in an area of high crime, but the officers had
reasonable articulable suspicion that criminal activity was afoot when they observed open
containers of alcohol. It was in this context that the officers decided to investigate the
three men standing near the parked truck, and both officers testified that their initial plan
was merely to speak to them. When viewed through the eyes of the officers and taking
into consideration their training and experience, we conclude that, under the totality of the
circumstances, the officers were permitted to detain Thornton briefly to resolve ambiguity
in his conduct; they were justified in suspecting that Thornton was involved in criminal
activity and, therefore, in investigating further. The high-crime nature of the area,
combined with the location and time of the encounter, the loud music, and the open
containers, gave the officers reasonable suspicion of criminal activity to justify the initial
Terry stop.
{¶ 25} The State also argues that, even if there was no reasonable articulable
suspicion that criminal activity was afoot to justify the initial Terry stop, Thornton was
never actually seized in violation of his Fourth Amendment rights because, when the
officers approached, he fled almost immediately after they identified themselves, ignored
the order to “stay put,” and was not physically seized by police until after he had fled and
discarded the firearm that he was holding. Of note, too, Thornton stated to the officers
later while in a police cruiser that he had not known who was approaching and that he
had not heard the persons identify themselves as “Dayton Police.” Additionally, the State
argues that a person’s conduct during an encounter, including fleeing, can independently
give police reasonable suspicion to engage in an investigatory detention. The State
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argues that, considering the totality of these circumstances, the police had additional
reasonable articulable suspicion to justify a Terry stop of Thornton when he fled while
holding a firearm. We agree.
{¶ 26} A person is “seized within the meaning of the Fourth Amendment “only
when, by means of physical force or a show of authority, his freedom of movement is
restrained.” United States v. Mendenhall, 446. U.S. 544, 553, 100 S.Ct. 1870,
64 L.Ed.2d
497 (1980). “Absent the use of physical force, a seizure requires both a ‘show of authority’
from law enforcement and ‘submission to [that] assertion of authority’ by the person at
whom it is directed.” United States v. Garrette, N.D. Florida No. 3:17cr022/MCR,
2017
WL 3337258 (Aug. 4, 2017). Submission requires that the person comply with the
directives of law enforcement. The failure to submit to the instructions means there is no
seizure, merely an attempted seizure, which is beyond the scope of the Fourth
Amendment. Brendlin v. California,
551 U.S. 249, 254,
127 S.Ct. 2400,
168 L.Ed.2d 132
(2007).
{¶ 27} In sustaining Thornton’s motion to suppress, the trial court relied on the
reasoning in State v. Sumlin, 2d Dist. Montgomery No. 23144, 2009-Ohio-2185, in
concluding that Thornton’s actions were not sufficient to give rise to a reasonable
articulable suspicion that criminal activity was afoot, and, thus, the stop of Thornton was
improper. In Sumlin, a police officer came upon Sumlin in a paved parking area behind
an apartment building. Id. at ¶ 4. The officer approached Sumlin and said, “don’t move.”
Id. at ¶ 19. In response, Sumlin backed away a few feet, but did not flee, and was
subsequently seized. Id. at ¶ 22. We explained that, upon seeing the police, Sumlin
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backed up, while still facing the police, from a point where he was in physical contact with
a car to another point where he was in physical contact with the same car; that Sumlin
was never observed running from the police; and that Sumlin was not seen to have thrown
a carried object in reaction to seeing a police officer. Id. at ¶ 49. We determined that
Sumlin’s behavior did not imply an intent to evade police pursuit in the same manner that
a man seen running from the location of a police cruiser would imply. Id. Finally, we
concluded that “the action of simply backing away, slowly, over a short distance, from two
police officers exiting a police cruiser, in a high crime neighborhood, with one’s hands
behind one’s back, is not sufficient to give rise to a reasonable, articulable suspicion that
criminal activity is afoot,” as required for a Terry stop, and, thus, the stop in Sumlin was
improper. Id. at ¶ 50.
{¶ 28} The facts in Sumlin are distinguishable from the facts in this case. Unlike
the defendant in Sumlin, Thornton, upon seeing people, immediately turned, ran, and
suddenly threw a carried object shortly after running. Thornton did not face the police and
simply back away over a short distance with his hands behind his back in defiance of a
police order. Thus, we conclude that the trial court inappropriately applied the reasoning
in Sumlin to find that Thornton’s actions were not sufficient to give rise to a reasonable
articulable suspicion that he may have been engaging in criminal activity.
{¶ 29} We find the circumstances in State v. Roberts to be analogous to the facts
in this case. State v. Roberts, 2d Dist. Clark No. 2015-CA-104, 2016-Ohio-7327. In
Roberts, a police officer observed Roberts driving a green pick-up truck, recognized
Roberts, and knew that Roberts’s driver’s license had been suspended six to twelve
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months earlier. Id. at ¶ 3. The police officer pulled behind Roberts, activated his cruiser’s
overhead lights, and initiated a traffic stop. Id. In response, Roberts exited his own vehicle
and fled. Id. During an ensuing foot chase, Roberts threw a firearm to the ground. Id. The
police ultimately caught Roberts and recovered the firearm. Id. As a result of the foregoing
incident, Roberts was charged with having a weapon while under disability, among other
charges. Id. Roberts filed a motion to suppress, arguing that the traffic stop had been
unlawful because the officer lacked reason to believe that Roberts’s license remained
suspended when the officer initiated the traffic stop. Id. at ¶ 5.
{¶ 30} In Roberts, we concluded that Roberts had not been seized at the point at
which he possessed the firearm and fled from the police. Id. at ¶ 8. We explained that,
although Roberts stopped his car, he did not submit to the officer’s show of authority and,
instead, exited his vehicle and continued his flight from the officer on foot. Id. We
concluded that, even if the officer’s traffic stop of Roberts had been without justification,
Roberts was not seized until after he discarded his firearm. Id.
{¶ 31} In this case, although several officers were present and approached
Thornton and the other two men, the mere presence of multiple officers did not
necessarily establish a seizure, and, here, the officers did nothing to engage in physical
force prior to Thornton’s flight. As the officers approached, they identified themselves,
shined flashlights, and said “stay put.” The officers testified that they only intended to talk
to the three men but were unable to talk to Thornton because he fled immediately. The
events of this encounter took place over a matter of seconds. The body-camera videos
revealed that the officers approached the three men on foot but were not in the physical
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proximity of the men when Thornton turned and ran before the police could effectuate any
seizure. At that point in time, the police had done nothing more than attempt to approach
Thornton. There was no physical force by the police before Thornton fled. The officers
never brandished their weapons or otherwise threatened Thornton. The officers never
touched Thornton or blocked his path.
{¶ 32} Considering our reasoning in Roberts, even if we were to conclude that
initially the officers lacked a sufficient basis to make an investigative stop, Thornton chose
to ignore the order to “stay put,” did not submit to the officers’ show of authority, and had
not been seized when he proceeded to flee on foot and discard the firearm. Thornton’s
failure to submit to the officers’ instructions meant that there was no seizure, merely an
attempted seizure, which is beyond the scope of the Fourth Amendment. Moreover, at
the point at which Thornton engaged in headlong flight, was observed holding a firearm,
and then discarded the firearm, the police had additional facts in the totality of the
circumstances to cause additional reasonable articulable suspicion to justify a Terry stop
of Thornton, and, like Roberts, Thornton was not seized until after he fled and discarded
the firearm. As a result, Thornton was not seized by the police in violation of his Fourth
Amendment rights.
{¶ 33} In Roberts, 2d Dist. Clark No. 2015-CA-104, 2016-Ohio-7327, we also
noted that, when a defendant abandons property, the act of abandonment negates any
Fourth Amendment expectation of privacy, meaning that suppression is not required even
if the act of abandonment follows an attempted unlawful stop. Id. at ¶ 7. “Abandonment”
of property in the present context primarily involves a question of intent, which may be
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inferred. State v. Freeman, 64 Ohio St.2d 291, 297,
414 N.E.2d 1044 (1980). “ ‘The issue
is not abandonment in the strict property-right sense, but whether the person prejudiced
by the search had voluntarily discarded, left behind, or otherwise relinquished his interest
in the property in question so that he could no longer retain a reasonable expectation of
privacy with regard to it at the time of the search.’ ” (Citations omitted.)
Id. The legal effect
of abandonment is to deprive a defendant of standing to challenge the admissibility of the
evidence he abandoned.
Id. at 298. In other words, if a defendant abandoned a firearm
while being chased, the weapon would not be subject to suppression even if the police
officer lacked lawful authority to seize him. Roberts at ¶ 10. In this case, like Roberts,
Thornton “abandoned” the firearm in his possession when he threw it to the ground while
being pursued by police, thereby relinquishing any reasonable expectation of privacy in
it.
{¶ 34} Because the police officers had reasonable suspicion to justify the initial
Terry stop of Thornton, and because Thornton, after failing to submit to any show of
authority, was not seized until after he fled while holding and then discarding a firearm,
thereby establishing additional facts giving rise to reasonable articulable suspicion of
criminal activity for a Terry stop, Thornton was not seized by the police in violation of his
Fourth Amendment rights. The State’s sole assignment of error is sustained.
III. Conclusion
{¶ 35} Having sustained the State’s assignment of error, the judgment of the trial
court is reversed.
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TUCKER, J. and LEWIS, J., concur.
