In re J.C. , 2019 Ohio 4815 ( 2019 )

[Cite as In re J.C., 2019-Ohio-4815.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: J.C. : APPEAL NOS. C-180478
C-180479
: TRIAL NOS. 16-2328
17-2850
:
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: November 22, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,
Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler,
Assistant Public Defender, for Defendant-Appellant J.C.
OHIO FIRST DISTRICT COURT OF APPEALS
Z A Y A S , Presiding Judge.
{¶1} Following a bench trial before a magistrate, 17-year-old J.C. was
adjudicated delinquent for committing an act that had he been an adult would have
constituted carrying a concealed weapon. In this appeal, J.C. challenges the stop that
led to the charges against him. We conclude that the police officer did not have a
reasonable suspicion that criminal activity was afoot at the time J.C. was stopped,
and therefore, the evidence that was discovered as a result of the stop should have
been suppressed. Accordingly, we vacate the trial court’s judgment.
Facts and Procedural History
{¶2} On April 30, 2017, J.C. was walking on a sidewalk along Sevenhills
Drive with three of his friends when two Springfield Township police cruisers pulled
up and blocked their path. Two police officers exited from their cruisers and ordered
the four boys to lie on the ground. J.C. was handcuffed and searched for weapons.
The officer conducting the pat-down search, Officer Pat Kemper, found a firearm in
the leg of J.C.’s pants.
{¶3} Preceding this stop and arrest, Officer Kemper had observed J.C. on
three separate occasions that same day. On the first occasion, Officer Kemper
observed J.C. for a few seconds from about 25 feet away walking with a friend near
Hamilton Avenue. On the second occasion, he observed him for a couple of minutes
near a Rally’s restaurant, leaning up against the railing near a walk-up service
window. And, on the third occasion, just before the stop, Officer Kemper observed
J.C. for approximately five seconds walking along Sevenhills Drive. On all three
occasions, Officer Kemper said J.C. appeared casual at first, but when he saw the
police cruiser J.C. looked down and put his right hand on his right hip “as though he
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was protecting something that was concealed in his waistband.” Officer Kemper
testified that this action seemed unnatural, as J.C. was not holding onto a belt or a
belt loop, or grasping at anything with his hand. Officer Kemper stated that he
thought to himself “the kid’s got a gun in his waistband.”
{¶4} Officer Kemper described the area in which he stopped J.C. as “an
extremely violent neighborhood, [with] lots of gun violence.” Officer Kemper was
investigating an assault that took place at an apartment complex nearby. J.C. was
not involved in the assault or the investigation, and Officer Kemper answered, “No”
when asked whether J.C. matched the description of anyone reported to have been
engaged in criminal or suspicious activity.
{¶5} After seeing J.C. the first time, Officer Kemper said to an officer also
investigating the assault, Sergeant Mark Downs, that he thought J.C. had a gun and
“[i]f we get a chance later on, I’d like to maybe try and find him and see what’s going
on with him.” After seeing J.C. the second time, Officer Kemper said to Sergeant
Downs, “I’m convinced that [J.C.’s] got a gun on him. He’s hiding something.” But
Officer Kemper and Sergeant Downs were then called to investigate another incident.
Sergeant Downs indicated that he and Officer Kemper should return to the area after
investigating the incident to find J.C. After seeing J.C. for a third time, Officer
Kemper stated that “[o]nce he got closer to me, his left arm continued swinging as it
naturally would, his right arm pointed close to his hip right about the belt line, again
as though he was protecting something that was concealed in his waistband.” Officer
Kemper, a six-year veteran of law enforcement, testified that when someone is
protecting a certain area of their waistband, “it’s typically to conceal an item,” and
“more often than not, it’s going to be a firearm.” Officer Kemper continued,
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OHIO FIRST DISTRICT COURT OF APPEALS
You learn from–even from me—carrying off-duty, you’re constantly
checking it to make sure that your shirt’s over it, nobody can see it.
Can you see it through the shirt? Is it sitting right, or if you don’t want
anybody to see it, you’ll conceal it. So just from my personal
knowledge of carrying a concealed weapon, I know how an individual
acts when they’re carrying a concealed weapon.
{¶6} Officer Kemper had never seen J.C. prior to that day. He testified that
J.C. appeared to be a juvenile and looked well under the age of 21. Officer Kemper
testified that the impetus for the stop was his suspicion that a juvenile was carrying a
firearm—a crime in Ohio under R.C. 2923.12, which restricts carrying concealed
weapons to adults aged 21 and older.
{¶7} When Officer Kemper and Sergeant Downs pulled their marked police
cruisers onto the sidewalk in front of the boys’ path, J.C. stepped behind a friend,
bladed his body, and moved both of his hands to his right hip. Officer Kemper
testified that “bladed his body” meant that J.C. turned his body about 45 degrees, so
that the weapon Officer Kemper believed J.C. to be carrying on his hip would be
farther away from the officers. Officer Kemper, believing this movement to be even
more indicative of someone carrying a firearm, stood behind his cruiser and gave
verbal commands, while Sergeant Downs drew his weapon and ordered the boys to
the ground. The boys complied with the officers’ commands. Officer Kemper then
conducted the search.
{¶8} J.C. was charged with carrying a concealed weapon, in violation of R.C.
2923.12, and violating his probation for failing to abide by the conditions of his
house arrest. J.C. filed a motion to suppress the evidence gathered from the stop.
The motion was denied and the matter proceeded to a trial before a magistrate. J.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
was adjudicated delinquent for carrying a concealed weapon and violating probation.
Over objections, the juvenile court adopted the magistrate’s decision. J.C. now
appeals, asserting three assignments of error.
Legal Analysis
{¶9} We address J.C.’s assignments of error out of order. In his second
assignment of error, J.C. argues that the juvenile court erred in denying his motion
to suppress because the police officers did not have a reasonable and articulable
suspicion to stop him. The state argues to the contrary—that the officers’ stop of J.C.
was valid under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
{¶10} Appellate review of a motion to suppress involves a mixed question of
law and fact. State v. Arrazzaq, 1st Dist. Hamilton No. C-110831, 2012-Ohio-4365,
¶ 7, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71.
The trial court, as the trier of fact, is in the best position to resolve factual questions
and to evaluate the credibility of witnesses. Id. The appellate court must accept the
trial court’s findings of fact if they are supported by competent, credible evidence.
Id. “The appellate court must then determine, without any deference to the trial
court, whether the facts satisfy the applicable legal standard.” Id.{¶11} The Fourth Amendment to the United States Constitution provides
that “the right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated * * *.” “The Fourth
Amendment forbids searching a person for evidence of a crime when there is no
basis for believing the person is guilty of the crime or is in possession of
incriminating evidence. That prohibition is categorical and without exception; it lies
at the very heart of the Fourth Amendment.” Maryland v. King, 569 U.S. 435, 466,
133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (Scalia, J., dissenting).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} “The purpose of the Fourth Amendment is not to eliminate all contact
between the police and the citizenry, but ‘to prevent arbitrary and oppressive
interference by enforcement officials with the privacy and personal security of
individuals.’ ” United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980), quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96
S.Ct. 3074, 49 L.Ed.2d 1116 (1976). As long as the person questioned “remains free
to disregard the questions and walk away, there has been no intrusion upon that
person’s liberty or privacy as would under the Constitution require some
particularized and objective justification.” Mendenhall at 553-554. Accordingly, not
all personal interaction between police officers and citizens involves seizures of
persons. “Only when the officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has
occurred” within the meaning of the Fourth Amendment. Terry, 392 U.S. at 19, 88
S.Ct. 1868, 20 L.Ed.2d 889, fn. 16; see Brendlin v. California, 551 U.S. 249, 127 S.Ct.
2400, 168 L.Ed.2d 132 (2007).
{¶13} In order for a police officer to initiate the seizure of a person for an
investigatory stop without violating the person’s Fourth Amendment rights, the
officer must have an articulable and reasonable suspicion of the person’s
involvement in criminal activity. Terry at 21. Such a suspicion may be based on an
officer’s justified belief that an individual may be “armed and presently dangerous,”
permitting the officer to conduct a limited protective search of the individual for
concealed weapons—the so-called Terry stop. Id. at 24; see Adams v. Williams, 407
U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
{¶14} Reasonable suspicion entails a minimal level of objective justification,
“that is, something more than an inchoate and unparticularized suspicion or ‘hunch,’
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OHIO FIRST DISTRICT COURT OF APPEALS
but less than the level of suspicion required for probable cause.” State v. Jones, 70
Ohio App.3d 554, 556-557, 591 N.E.2d 810 (2d Dist.1990), citing Terry at 27; see
State v. Carter, 69 Ohio St.3d 57, 66, 630 N.E.2d 355 (1994) (concluding that a
police officer’s inarticulate hunch will not provide a sufficient basis for an
investigative stop). “A police officer may not rely on good faith and inarticulate
hunches to meet the Terry standard of reasonable suspicion.” Jones at 557.
{¶15} The determination of 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. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271(1991). An analysis of the totality of the circumstances “does not deal with hard
certainties, but with probabilities.” United States v. Cortez, 449 U.S. 411, 418, 101
S.Ct. 690, 66 L.Ed.2d 621 (1981). A court must consider the cumulative facts “not in
terms of library analysis by scholars, but as understood by those versed in the field of
law enforcement.” Id. But, “it is imperative that the facts be judged against an
objective standard: would the facts available to the officer at the moment of the
seizure or the search ‘warrant a man of reasonable caution in the belief’ that the
action taken was appropriate?” Terry, 392 U.S. at 21-22, 88 S.Ct. 1868, 20 L.Ed.2d
889.
{¶16} In this case, we begin our analysis at the point of the stop. This is not
an instance in which police officers “merely approach[ed] an individual on the street
* * * by asking him if he [was] willing to answer some questions.” See Florida v.
Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion);
see also United States v. Young, 105 F.3d 1, 5-6 (1st Cir.1997) (finding only a
“minimally intrusive” interaction that “d[id] not trigger the protections of the Fourth
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Amendment” when the police officers had pulled alongside the appellant, identified
themselves as police officers, and asked “Got a minute?,” to which the appellant
replied, “Sure”). Here, Officer Kemper and Sergeant Downs pulled their marked
police cruisers onto a sidewalk, intentionally blocking J.C.’s path. It is at this point
that the officers, by means of a clear showing of physical force and authority,
restrained J.C.’s liberty to walk further. See Terry at 19; United States v. Camacho,
661 F.3d 718, 725 (1st Cir.2011) (finding that appellant’s initial detention constituted
a seizure rather than a consensual encounter where a police officer saw appellant
walking on a residential sidewalk and the officer pulled his marked Crown Victoria
into a driveway ahead of him, partially blocking appellant’s path). A reasonable
person in J.C.’s circumstances would not “feel free to disregard the police and go
about his business.” (Internal quotations omitted.) Camacho at 725.
{¶17} In a recent Ohio Supreme Court case, the court analyzed Terry and
cases that flowed from that decision in considering a motion to suppress where an
individual was stopped in a crosswalk and searched for a gun. See State v. Hairston,
156 Ohio St.3d 363, 2019-Ohio-1622, 126 N.E.3d 1132. In Hairston, concluding the
officers had a reasonable suspicion to stop Hairston—the only person found in the
vicinity of the sound of gunshots—the court stated,
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, 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
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OHIO FIRST DISTRICT COURT OF APPEALS
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.
Hairston at ¶ 11-12. An officer’s experience with criminal activity in an area and an
area’s reputation for criminal activity are relevant factors to the reasonable-suspicion
analysis. Id., citing State v. Andrews, 57 Ohio St.3d 86, 88, 565 N.E.2d 1271 (1991);
State v. Bobo, 37 Ohio St.3d 177, 179, 524 N.E.2d 489 (1988). However, an
individual’s “presence in a high-crime or high-drug area, by itself, is insufficient to
justify the stop and frisk of a person, especially when the officer indicated that the
offender did nothing to make the officer worry that the offender would harm him.”
State v. Millerton, 2015-Ohio-34, 26 N.E.3d 317, ¶ 32 (2d Dist.), citing State v.
Habel, 190 Ohio App.3d 393, 2010-Ohio-3907, 942 N.E.2d 389, ¶ 24 (2d Dist.); see
State v. Carter, 69 Ohio St.3d 57, 65, 630 N.E.2d 355 (1994). A stop that occurs after
dark is another circumstance found to be of some significance in the reasonable-
suspicion analysis. Hairston at ¶ 12, citing Bobo at 179.
{¶18} Here, while Officer Kemper had six years of experience in law
enforcement and was patrolling an area he said was known for gun violence, Kemper
observed J.C. on three separate, rather uneventful occasions all during the daytime.
Unlike Hairston, the officers were not immediately reacting to personally hearing the
sound of gunfire nearby or personally observing activities that taken together rose to
the level of reasonable suspicion.
{¶19} This case is more like a relatively recent case from this court, in which
we found that no reasonable, articulable suspicion existed at the time a stop of a
juvenile was initiated, In re M.P., 1st Dist. Hamilton No. C-130663, 2014-Ohio-2846.
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M.P. involved a juvenile who was stopped and arrested for carrying a concealed
weapon. The stop was based on a police detective’s hunch that M.P. had been
involved in an incident involving a gun days earlier. Id. at ¶ 1. The police detective,
Mark Longworth, had M.P. stopped as he was walking with a friend down the street.
Detective Longworth testified that M.P. was wearing baggy shorts—“clothing that,
according to Detective Longworth, was ‘such that you could conceal a firearm,’ ” and
demonstrated an unusual interest in a police cruiser by blading his body as the
cruiser passed him. Id. at ¶ 4.
{¶20} This court stated,
Although the soundness of Detective Longworth’s hunch of M.P. was
borne out by the end result, there was no evidence that at the time of
the stop M.P. was presently involved in a criminal activity. Detective
Longworth, who had been watching M.P for only five to ten minutes,
had no basis to believe that a crime had just occurred, was occurring,
or would occur soon. The fact that Detective Longworth suspected
some involvement in the past incident did not create a reasonable
suspicion that M.P. was presently engaged in a criminal act.
Id. at ¶ 11. This court ultimately found that because there was no reasonable
suspicion for the stop, M.P.’s motion to suppress should have been granted.
{¶21} In the present case, like M.P., the stop was preceded by a police
officer’s observation of a juvenile making an unusual physical movement upon seeing
a police cruiser. And, like M.P., the officer suspected the juvenile of carrying a
concealed weapon. But the circumstances here involve even less ostensibly-
suspicious behavior. Unlike M.P., Officer Kemper did not suspect J.C. of having
been involved in some past or present incident. When Officer Kemper encountered
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OHIO FIRST DISTRICT COURT OF APPEALS
J.C., an individual he had never seen before, Kemper was investigating a nearby
assault and was later called off to another incident—both entirely unrelated to J.C.
The only criminal act that Officer Kemper suspected J.C. of committing was carrying
a concealed weapon as a juvenile. In other words, J.C.’s status as a juvenile is what
made the act criminal, as carrying a concealed weapon as an adult (aged 21 or older,
with the requisite permit) is legal.
{¶22} Regardless of J.C.’s status as a juvenile though, Officer Kemper’s belief
that J.C. was carrying a concealed weapon was based on an inarticulate hunch.
Specifically, no additional facts supported Officer Kemper’s theory. For example,
Officer Kemper did not describe a bulge in J.C.’s pants, see State v. Evans, 67 Ohio
St.3d 405, 618 N.E.2d 162 (1993), a metallic object, see State v. Roberson, 9th Dist.
Lorain No. 10CA009743, 2011-Ohio-988, or the outline of a gun, see State v. Travis,
8th Dist. Cuyahoga No. 98420, 2013-Ohio-581. He also did not report, for instance,
that he received a tip about a juvenile with a gun. See In re Long, 5th Dist. Stark No.
2004-CA-00377, 2005-Ohio-3825. Each time Officer Kemper saw J.C., he was
described as making the same innocuous movement.
{¶23} Moreover, Officer Kemper’s testimony on his experience with carrying
a concealed weapon on his waist did not support an objective justification for the
stop. He testified to his personal experience of thinking about his concealed weapon,
and to his concern about how his weapon appeared to others when he attempted to
keep it concealed. Officer Kemper described how he is “constantly checking” his
concealed firearm, but did not describe “constantly checking” to mean that he would
cover his hip in the same manner that J.C. covered his. His testimony did not
describe any movement of his arms or how someone moves when they are carrying a
concealed weapon.
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{¶24} Additionally, Officer Kemper’s testimony as to what he believed was
concealed was insufficient. Officer Kemper repeatedly described J.C. as hiding
something, but did not describe any objective details to validate his conclusion that
the something that J.C. was concealing was a gun. At least in the cases cited by the
dissent—for the proposition that “hand-to-waist movements are indicative of
concealing a weapon”—the officers had something more to go on. See United States
v. Smith, 427 Fed.Appx. 413, 420 (6th Cir.2011) (prior to hand-to-waist movement,
appellant was seen arguing with a woman, aggressively grabbing her and preventing
her from walking away on several occasions, before two police officers responded to
the scene and chased the fleeing appellant through a housing complex that was
known for homicides, shootings and drug activity); United States v. Humphries, 372
F.3d 653, 660 (4th Cir.2004) (concurrent with hand-to-waist movement—in a state
where the odor of marijuana emanating from a person provided probable cause to
arrest that person without a warrant in a public place—appellant was seen in a high-
crime area and emanated the distinct odor of marijuana before retreating at a quick
pace away from a police officer into a nearby house); United States v. Mattes, 687
F.2d 1039, 1041 (7th Cir.1982) (prior to hand-to-waist movement, appellant was seen
in a bar wearing a gang-affiliated hat and matched the description of a suspect
reported to have been involved in an earlier bar fight with a gang-member where
shots were fired, and stood up and looked away when police officers entered the bar).
Without more in this case, Officer Kemper’s observation that J.C. looked down upon
seeing a police cruiser and moved his hand to cover his hip on three separate
occasions was not enough to support a particularized and objective basis for the stop.
{¶25} We are not disregarding that J.C. was a 17-year-old carrying a
concealed weapon, and we fully appreciate the threat police officers face each day,
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particularly when patrolling neighborhoods prone to gun violence. However, the
Fourth Amendment does not permit officers to stop, seize, or search any person
without corroborating information that the person in question is involved in criminal
activity. Based on our review of the record, including Officer Kemper’s testimony,
the totality of the circumstances did not amount to reasonable and articulable
suspicion of criminal activity for initiating a Terry stop. As a result, the juvenile
court erred in denying J.C.’s motion to suppress. The second assignment of error is
sustained.
{¶26} J.C.’s second assignment of error is dispositive of this appeal. His first
and third assignments of error—challenging his arrest and probation violation—are
therefore moot, and we decline to address them. The juvenile court’s denial of J.C.’s
motion to suppress is reversed, the judgments of the juvenile court adjudicating J.C.
delinquent are reversed, and J.C. is discharged from further prosecution for these
offenses.
Judgment accordingly.
CROUSE, J., concurs.
WINKLER, J., dissents.
WINKLER, J., dissenting,
{¶27} “Part of police work is investigating criminal activity that officers
detect while out on patrol.” Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622, 126
N.E.3d 1132, at ¶ 18. In this case, Officer Kemper was out on patrol in the Seven
Hills neighborhood—a neighborhood known for crime and gun violence—when he
encountered a juvenile, J.C., on three separate occasions, over a period of several
minutes, exhibiting behaviors that led Officer Kemper to believe that J.C. had a
concealed firearm. Because Officer Kemper was “not required to ignore” J.C.’s
suspicious behavior, and “it was reasonable and prudent” for Officer Kemper to stop
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J.C. to further investigate whether he had a concealed weapon, I would overrule
J.C.’s second assignment of error challenging the propriety of his stop. See id.Factual Background
{¶28} On April 30, 2017, Officer Kemper was out on patrol in his cruiser in
the Seven Hills area of Springfield Township—an area Officer Kemper described as
an extremely violent neighborhood, with lots of gun violence. On the day in
question, the neighborhood had recently experienced two shootings where a house
and a vehicle had been struck, as well as numerous robberies. Officer Kemper had
just received a call requesting aid for a domestic-violence incident, when he noticed
J.C., who he perceived to be a juvenile, and his companion. J.C. was walking at a
relatively fast pace, with both arms swinging. When J.C. observed Officer Kemper’s
car, J.C.’s right hand immediately went to his right hip, but his left arm kept
swinging. Officer Kemper noted that J.C.’s hand was not grasping at a belt or belt
loop on sagging pants, but that J.C. was “covering something” on his right hip. J.C.’s
behavior struck him as unnatural, and he informed Sergeant Downs that he believed
J.C. had a gun, and that he would like to find him later to investigate. The officers
had an urgent matter, however, and the two responded to the domestic-violence call.
{¶29} Once the officers had handled the call, Officer Kemper drove past a
Rally’s restaurant where he saw J.C. leaning up against a railing with both of his
hands open, down, and relaxed by his side. When J.C. saw Officer Kemper’s car,
J.C.’s right hand again went to his right hip. Officer Kemper noted that J.C. was not
grabbing anything, but that he “seemed to be protecting something in his
waistband.” At that time, Officer Kemper once again received another call for a
priority run in the Seven Hills neighborhood.
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{¶30} After Officer Kemper and Sergeant Downs handled the priority run,
they returned to the area where they had seen J.C. last. The officers found J.C.
walking with three other juveniles in a plaza parking lot in the area of a Sunoco gas
station. Officer Kemper parked on Sevenhills Drive and waited at the end of the
plaza parking lot. Officer Kemper saw J.C. walking naturally. Once J.C. got closer to
the cruiser, J.C.’s left arm continued swinging naturally, but his right arm was
pointed close to his hip at the beltline, as though he was protecting something.
{¶31} Officer Kemper testified that his professional experience as a six-year
veteran law-enforcement officer had taught him that when someone protects a
certain area of their waistband, more often than not, the person has a concealed
firearm. Officer Kemper also testified that when he carries his firearm off duty, he
tries to conceal his firearm with his shirt, so he had personal experience with how an
individual acts when carrying a concealed weapon.
{¶32} After witnessing J.C. reach for his right hip for a third time, Officer
Kemper and Sergeant Downs decided to stop J.C. Officer Kemper pulled his vehicle
onto the sidewalk to block J.C.’s path, and he exited from the vehicle. Sergeant
Downs pulled behind Officer Kemper. J.C. stepped behind another juvenile, which
made it difficult for Officer Kemper to see him. Officer Kemper then saw J.C. “blade”
his body, meaning J.C. turned the right side of his body 45 degrees away from the
officers. Both of J.C.’s hands then went to his right hip around the waistline area
where Officer Kemper believed J.C. had a gun. At this point, Officer Kemper thought
J.C. was pulling a gun. Officer Kemper got behind his cruiser and started shouting
orders. Sergeant Downs approached from a different angle, with his weapon drawn,
and ordered all four juveniles to the ground.
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{¶33} Once the juveniles were safely on the ground, Officer Kemper
conducted a pat down of J.C.’s outer clothing. Officer Kemper felt a large, hard
object by J.C.’s ankle that Officer Kemper recognized as a firearm. Officer Kemper
retrieved the firearm, which was a Ruger .375 Magnum revolver. The revolver was
loaded with five rounds. J.C. also had three additional ammunition rounds in his
pocket.
{¶34} J.C. moved to suppress the firearm and ammunition that Officer
Kemper retrieved from his person. J.C. argued that the evidence was found as part
of an unlawful stop.
Law and Analysis
{¶35} Fourth Amendment jurisprudence has long recognized the
government’s interest in “effective crime prevention and detection; [and] it is this
interest which underlies the recognition that a police officer may in appropriate
circumstances and in an appropriate manner approach a person for purposes of
investigating possibly criminal behavior even though there is no probable cause to
make an arrest.” Terry, 392 U.S. at 22, 88 S.Ct. 1868, 20 L.Ed.2d 889. Therefore,
“police can stop and briefly detain a person for investigative purposes if the officer
has a reasonable suspicion supported by articulable facts that criminal activity ‘may
be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490
U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), quoting Terry at 30. “In allowing such
detentions, Terry accepts the risk that officers may stop innocent people. Indeed,
the Fourth Amendment accepts that risk in connection with more drastic police
action; persons arrested and detained on probable cause to believe they have
committed a crime may turn out to be innocent.” Illinois v. Wardlow, 528 U.S. 119,
126, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).
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{¶36} As the Ohio Supreme Court has recently reiterated, no precise
definition exists for the reasonable-suspicion standard. See State v. Hawkins, Slip
Opinion No. 2019-Ohio-4210, ¶ 20. “The reasonableness of a Terry stop ‘depends on
a balance between the public interest and the individual’s right to personal security
free from arbitrary interference by law officers.’ ” Id., quoting United States v.
Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). “The level
of suspicion required to meet the reasonable-suspicion standard ‘is obviously less
demanding than that for probable cause,’ and ‘is considerably less than proof of
wrongdoing by a preponderance of the evidence’ but is ‘something more than an
“inchoate and unparticularized suspicion or “hunch.” ’ ” Hawkins at ¶ 20, quoting
Sokolow at 7, quoting Terry at 27.
{¶37} Courts reviewing whether an officer had reasonable suspicion of
criminal activity must “allow[] officers to draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that ‘might well elude an untrained person.’ ” United
States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting
Cortez, 449 U.S. at 418, 101 S.Ct. 690, 66 L.Ed.2d 621.
{¶38} Although the majority correctly cites to Terry in analyzing this case,
the majority misapplies it. In determining that Officer Kemper lacked reasonable
suspicion to conduct an investigative stop of J.C., the majority erroneously relies on
our decision in In re M.P. Although M.P. and this case both involve investigative
stops of juveniles carrying concealed firearms, the similarities between the facts of
the cases end there. In M.P., M.P. had been a witness to a crime in which an
unknown person fired a gun at a victim. Based on this incident, a detective began
surreptitiously watching M.P. Two days after the shooting incident, the detective
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OHIO FIRST DISTRICT COURT OF APPEALS
secretly monitored M.P. as he was walking along the street. The detective noted that
M.P. had on baggy shorts, and that he demonstrated an interest in a passing police
car. Based on these observations alone, the detective called for uniformed officers to
initiate a stop. The M.P. court determined that the detective’s actual impetus for
stopping M.P. was the earlier shooting incident, and that there was nothing unusual
about baggy shorts and taking an interest in a passing police car. Therefore, the M.P.
court determined that the detective had no objective reason to believe that M.P.
presently had a gun.
{¶39} In this case, unlike M.P., Officer Kemper had no ulterior motive in
stopping J.C. Officer Kemper had not been monitoring J.C. based on an earlier
crime, and the record does not reflect that Officer Kemper had ever encountered J.C.
before this incident. Unlike M.P., this case is not just about a juvenile wearing baggy
pants and turning to look at a police car. Initially, Officer Kemper witnessed J.C.
walking in a natural manner. Officer Kemper then witnessed J.C. place his right
hand to his right hip as soon as he saw Officer Kemper’s police cruiser—and this did
not happen just once, or even twice, but three separate times. Officer Kemper was
clear that J.C.’s hand was not grasping at a belt loop in an effort to hold up his pants,
but he was “covering something.” Officer Kemper also noted that J.C. appeared to be
a juvenile. See R.C. 2923.12.
{¶40} Officer Kemper testified that he was familiar with J.C.’s unnatural
behavior because, in his experience as a six-year veteran officer, when a suspect
protects a certain area of their waistband, that suspect is more often than not
concealing a weapon. Officer Kemper also testified that when he carries his firearm
off duty, he constantly checks to make sure that his shirt covers his gun so that no
one can see it.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶41} The majority in reaching its result gives little weight to Officer
Kemper’s testimony that he recognized J.C.’s unnatural hand-to-waist movements
based on his experience as a six-year veteran in law enforcement and also based on
his own experience as an off-duty police officer carrying a concealed weapon. The
majority affords no weight to this portion of Officer Kemper’s testimony because it
pertained to his “personal experience.” An officer’s personal experience is relevant to
any reasonable-suspicion inquiry. See Arvizu, 534 U.S. at 273, 122 S.Ct. 744, 151
L.Ed.2d 740. Officer Kemper testified not just to his experience as an off-duty police
officer carrying his weapon, but also as to his professional experience as a six-year
veteran officer. This court “must give due weight to [Officer Kemper’s] experience
and training and view the evidence as it would be understood by those in law
enforcement.” See Andrews, 57 Ohio St.3d at 88, 565 N.E.2d 1271.
{¶42} Case law further supports Officer Kemper’s factual inference that
hand-to-waist movements are indicative of concealing a weapon, especially when
those movements are the product of police presence. See Smith, 427 Fed.Appx. at
420 (“Furtive movement toward the waistband is consistent with an attempt to
either conceal or retrieve a weapon or contraband.”); Humphries, 372 F.3d at 660(“[A]s the police officers approached in their marked patrol car, [the suspect] patted
his waist, which [the officer] interpreted as a ‘security check,’ an instinctive check by
[the suspect] to see that his weapon was in place.”); Mattes, 687 F.2d at 1041
(person’s action in turning away and moving hand toward waist upon seeing police is
“consistent with reaching for a gun.”).
{¶43} Therefore, the majority’s determination that J.C.’s hand-to-waist
movements upon seeing police were “innocuous” is not supported by Officer
Kemper’s testimony or the law.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶44} This is not a case of police arbitrarily interfering with a juvenile’s
personal security. The fact that the officers showed no suspicion towards J.C.’s
companions bolsters this fact. An average citizen, without Officer Kemper’s
experience and training, may find J.C.’s hand-to-waist movements innocuous when
viewed in a vacuum. Officer Kemper’s personal experience indicated to him that
J.C.’s unnatural hand movements upon observing a police cruiser were consistent
with concealing a weapon. Officer Kemper’s interpretation of J.C.’s behavior, along
with the character of the neighborhood, and the fact that J.C. is a juvenile, amounts
to reasonable suspicion of criminal activity. Therefore, Officer Kemper was justified
in stopping J.C. to investigate further.
{¶45} Furthermore, I would hold that the officers’ use of force was a
reasonable extension of the Terry stop in this case. An officer’s use of force during
an investigative stop does not automatically transform the stop into an arrest where
the officer’s use of force is reasonable under the circumstances for personal safety.
Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622, 126 N.E.3d 1132, at ¶ 21. Officer
Kemper initiated J.C.’s stop by using his police cruiser to block J.C.’s egress, and
Officer Kemper stepped out of his vehicle. J.C. then stepped behind another
juvenile, and he “bladed” his body, which Officer Kemper described as J.C. turning
his body away from Officer Kemper. Officer Kemper then saw J.C. place both of his
hands to his right hip—the same area where Officer Kemper believed that J.C. had a
concealed weapon. Fearing for his safety, Officer Kemper positioned himself behind
his cruiser, and Sergeant Downs pulled his weapon and ordered J.C. and the group of
juveniles to the ground. Ultimately, J.C. did have a concealed weapon.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶46} For the foregoing reasons, I would uphold the trial court’s decision
overruling J.C.’s motion to suppress. I would overrule all of J.C.’s assignments of
error, and affirm the judgment of the trial court. Therefore, I dissent.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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