State v. Wishon , 2023 Ohio 1915 ( 2023 )

[Cite as State v. Wishon, 2023-Ohio-1915.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29664
:
v. : Trial Court Case No. 2021 CR 03252
:
JEFFERY LEE WISHON : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
...........
OPINION
Rendered on June 9, 2023
...........
MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee
MICHAEL MILLS, Attorney for Appellant
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Jeffery Lee Wishon appeals from his conviction in the
Montgomery County Common Pleas Court following his no contest plea to one count of
having weapons while under disability. The sole issue Wishon raises on appeal is the
trial court’s denial of his motion to suppress. For the following reasons, we affirm the
-2-
judgment of the trial court.
I. Facts and Procedural History
{¶ 2} On December 13, 2021, Wishon was indicted by a Montgomery County
grand jury on one count of having weapons while under disability (prior drug conviction),
in violation of R.C. 2923.13(A)(3), a felony of the third degree; and one count of carrying
concealed weapons (loaded/ready at hand), in violation of R.C. 2923.12(A)(2), a felony
of the fourth degree.
{¶ 3} On January 27, 2022, Wishon filed a motion to suppress, which alleged that
he had been unlawfully searched and seized and that any evidence found as a result of
the search should be suppressed. He further alleged that any statements he made
should be suppressed because his Miranda rights were violated and because he invoked
his right to counsel.
{¶ 4} A hearing was held on March 4, 2022, at which Sergeant Todd Stanley
testified on behalf of the State. Sergeant Stanley was a 24-year veteran of the Butler
Township Police Department and had over 27 years of law enforcement experience. On
the afternoon of September 23, 2021, Sergeant Stanley and Officer Jackson, also of the
Butler Township Police Department, were dispatched to Walmart in Butler Township,
Ohio, on a report of individuals shoplifting. Both officers were wearing police uniforms
and drove marked police cruisers. Their body cameras were activated and submitted at
the hearing as State’s Exhibit 1.
{¶ 5} At the outset, the officers were told that there were three people inside the
Walmart that loss prevention officers suspected may be shoplifting: a black male, a white
-3-
female, and a white male; these individuals were later identified as Emmanuel Gray, Jr.,
Nicole VanDyke, and Wishon, respectively. Loss prevention officers relayed to the
Butler Township police officers that Gray and VanDyke had been observed concealing
merchandise and price-swapping items at the self-checkout lane. Wishon had not been
seen taking any items but had followed VanDyke around the store. VanDyke obtained
men’s and women’s toiletries while in the store. According to the loss prevention officers,
they did not feel they had enough evidence to say Wishon was concealing merchandise;
they did not believe that he was not part of it, but he had not been observed concealing
anything.
{¶ 6} Gray was the first to exit the store; he was detained immediately after getting
outside the store and was taken back inside to the loss prevention office. Shortly
thereafter, VanDyke and Wishon walked out of the store together; VanDyke was stopped
but Wishon was told by Sergeant Stanley “you go because you’re not part of it, I know
you are, but you’re not.” Wishon continued on his way through the parking lot while
Sergeant Stanley spoke with VanDyke. VanDyke informed Sergeant Stanley that she
was staying at Sober Living, which was a drug/alcohol counseling group located at two
local motels approximately one eighth of a mile from the Walmart. According to Sergeant
Stanley’s statements later recorded on his body camera, he believed VanDyke was under
the influence of something based on their interaction.
{¶ 7} Meanwhile, Officer Jackson was informed by Gray that Wishon had Gray’s
gun on his person. Gray explained that he had had Wishon hold his gun for him before
leaving the store. Officer Jackson immediately radioed to Sergeant Stanley that Wishon
-4-
“potentially” had a firearm on him. Sergeant Stanley testified that he did not hear the
word “potentially” and that he understood the transmission to say that Wishon did have a
gun. In response, Sergeant Stanley got into his police cruiser and started driving around
the parking lot looking for Wishon. At the same time, Officer Jackson was inside the loss
prevention office watching Wishon on the security screens and providing a description of
Wishon’s clothing and the direction he was heading over the radio.
{¶ 8} Sergeant Stanley located Wishon near the back of the parking lot near
Hooters. As Sergeant Stanley pulled up, he called out of his window to Wishon, “hey, I
do want to speak to you for a minute, ok?” Sergeant Stanley then asked Wishon to “do
me a favor and put your hands on top of the car.” As Sergeant Stanley was getting out
of the cruiser, he saw a weight in Wishon’s pocket and saw the butt of the handle of a
gun. At that point, Sergeant Stanley pulled his gun out, putting it in a low ready position,
and told Wishon not to move. Sergeant Stanley held Wishon at gun point until Lieutenant
Chris Guthrie arrived less than a minute later. Wishon was then handcuffed, and the
weapon was removed from his pocket. Wishon was asked if he had a CCW (meaning,
a license to carry a concealed weapon), which he denied. Wishon was also asked why
he had a gun on him, and he indicated that he was holding it for his friend. Wishon was
placed in the back of the cruiser and the gun was found to be loaded. Officers also
learned that Wishon had a prior felony drug conviction and was, therefore, under a
weapons disability.
{¶ 9} Sergeant Stanley testified that any time a gun is involved, there is an issue
of officer safety. Stanley himself had previously been involved in two officer-involved
-5-
shootings, in one of which the suspect was killed. Prior to stopping Wishon, Stanley did
not know who Wishon was or anything about his past; Stanley also did not know if Wishon
had a CCW permit prior to their interaction.
{¶ 10} On June 8, 2022, the trial court overruled Wishon’s motion to suppress in
its entirety. Wishon subsequently entered a negotiated plea wherein he agreed to plead
no contest to the charge of having a weapon while under disability, and the State agreed
to dismiss the remaining charge. On December 1, 2022, Wishon was sentenced to
community control sanctions.
II. Assignment of Error
{¶ 11} Wishon timely appealed and raises the following single assignment of error:
THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S
MOTION TO SUPPRESS THE APPELLANT’S STOP AND ARREST.
{¶ 12} Wishon contends that he was unlawfully stopped and detained under
circumstances tantamount to an arrest without probable cause. Although Wishon
challenged the admissibility of his statements in the trial court, he does not challenge that
portion of his motion to suppress on appeal. Therefore, we will contain our analysis to
the lawfulness of Wishon’s detention.
a. Standard of Review
{¶ 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.
“The reviewing court must accept the trial court's findings of fact if they are supported by
competent, credible evidence, and the court reviews the trial court's legal conclusions de
-6-
novo.” State v. LaRosa, 165 Ohio St.3d 346, 2021-Ohio-4060, 179 N.E.3d 89, ¶ 17,
citing Burnside at ¶ 8.
b. Applicable Fourth Amendment Law
{¶ 14} “The Fourth Amendment to the United States Constitution, and Section 14,
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 ultimate standard set forth in the
Fourth Amendment is reasonableness.” Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.
Ct. 2523, 37 L.Ed.2d 706 (1973). “Thus, the Fourth Amendment protects citizens from
only unreasonable government searches and seizures.” (Emphasis sic.) State v.
Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 17, citing United States
v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).
{¶ 15} 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 law recognizes three types of police-citizen interactions: 1) a
consensual encounter, 2) a brief investigatory stop or detention, and 3) an arrest.” State
v. Millerton, 2015-Ohio-34, 26 N.E.3d 317, ¶ 20 (2d Dist.), citing State v. Jones, 188 Ohio
App.3d 628, 2010-Ohio-2854, 936 N.E.2d 529, ¶ 13 (10th Dist.).
{¶ 16} “Consensual encounters are not seizures, and Fourth Amendment
guarantees are not implicated in such encounters.” (Citations omitted.) State v. Keister,
2d Dist. Montgomery No. 29081, 2022-Ohio-856, ¶ 27. “Consensual encounters occur
-7-
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 United States v.
Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
{¶ 17} The second type of encounter is an investigatory detention, often referred
to as a “Terry stop,” 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, 2018-
Ohio-5000, 126 N.E.3d 322, ¶ 13 (2d Dist.). “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, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). 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.
Therefore, an investigatory detention “does 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.
-8-
{¶ 18} “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, 87-88, 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). “Although a mere ‘hunch’ does not create reasonable
suspicion, the level of suspicion the standard requires is considerably less than proof of
wrongdoing by a preponderance of the evidence, and obviously less than is necessary
for probable cause.” (Citations omitted.) Kansas v. Glover, __ U.S. __, 140 S.Ct. 1183,
1187, 206 L.Ed.2d 412 (2020). Furthermore, “[a] determination that reasonable
suspicion exists * * * need not rule out the possibility of innocent conduct.” United States
v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). “In permitting
detentions based on reasonable suspicion, ‘Terry accepts the risk that officers may stop
innocent people.’ ” State v. Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d
577, ¶ 22, quoting Illinois v. Wardlow, 528 U.S. 119, 126, 120 S.Ct. 673, 145 L.Ed.2d 570(2000).
{¶ 19} The final category of police encounters is a seizure that is the equivalent of
an arrest, which 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 229-9-
(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). “A warrantless arrest that is based upon probable cause and
occurs in a public place does not violate the Fourth Amendment.” State v. Brown, 115
Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 66.
{¶ 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.”
(Citations omitted.) State v. Thornton, 2d Dist. Montgomery No. 29653, 2023-Ohio-1404,
¶ 20. “Under this analysis, ‘both the content of information possessed by police and its
degree of reliability’ are relevant to the court's determination.” City of Maumee v.
Weisner, 87 Ohio St.3d 295, 299, 720 N.E.2d 507 (1999), quoting Alabama v. White, 496
U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Generally, this 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
Weisner at 297.
{¶ 21} The collective knowledge doctrine, however, “permits police officers to rely
on information provided to them by other officers in helping to establish probable cause
-10-
or reasonable suspicion.” (Citations omitted.) State v. Jones, 2d Dist. Montgomery No.
23926, 2011-Ohio-1984, ¶ 20. “ ‘Reasonable suspicion [or probable cause] may exist
based upon the collective knowledge of the police when there is reliable communication
between the officer supplying the information and the officer acting on that information.’ ”
State v. Freeman, 9th Dist. Summit No. 27617, 2015-Ohio-2501, ¶ 16, quoting State v.
Mook, 9th Dist. Wayne No. 97CA0069, 1998 WL 417461, *3 (July 15, 1998).
c. Analysis
{¶ 22} There is no dispute that the contact between Wishon and Sergeant Stanley
was not a consensual encounter. The question then is whether the initial contact
constituted a Terry stop, which requires only reasonable articulable suspicion, or an
arrest, which requires probable cause. Wishon contends that the level of force used at
the time of his detention was the equivalent of an arrest requiring the officers to have
probable cause to arrest him. He further contends that there was no evidence prior to
the stop that he was doing anything unlawful for the officers to have either reasonable
grounds to detain him or probable cause to arrest him.
{¶ 23} The State responds that Sergeant Stanley had reasonable articulable
suspicion to detain Wishon based on the totality of the circumstances. The State
suggests that the level of force used by Sergeant Stanley did not transform the detention
into an arrest as Wishon was not arrested until after Sergeant Stanley verified that Wishon
did not have a CCW permit.
{¶ 24} Considering the totality of the circumstances in this case, we conclude that
Sergeant Stanley had reasonable articulable suspicion to detain Wishon and that the
-11-
show of force used by Sergeant Stanley was reasonable under the circumstances so as
not to convert the initial stop into an arrest.
{¶ 25} At the time Wishon was detained, Sergeant Stanley was aware that Wishon
had been with two companions who were found shoplifting in Walmart. Although Wishon
was not personally observed stealing items, his association with the shoplifters was a
relevant consideration. It was also known that VanDyke was obtaining drug and/or
alcohol treatment nearby and appeared to be under the influence during her interactions
with Sergeant Stanley. More importantly, Gray advised Officer Jackson that he had
provided his gun to Wishon and indicated that Wishon still physically possessed the gun
while walking away in the parking lot. Gray’s identity was known to the officers, and he
had just been with Wishon, an individual with whom he was familiar, such that Gray’s
information was sufficiently reliable for the officers to have reasonably relied upon it.
{¶ 26} Upon Sergeant Stanley’s initial observance of Wishon, he did not see a gun
on Wishon’s person, meaning that it was concealed. Wishon did not advise Sergeant
Stanley that he had a permit to carry a concealed weapon, which the law required him to
do if he indeed had a valid permit. R.C. 2923.12(B)(1). As the trial court noted, at the
time this offense occurred, under Ohio law, only certain individuals could carry concealed
weapons. R.C. 2923.12. Although that limitation changed as of June 13, 2022, with the
enactment of Senate Bill 215, generally, the determination of reasonable articulable
suspicion is governed by the applicable law at the time the offense occurred. Therefore,
unless Wishon had a valid CCW permit, he was not permitted to carry a concealed firearm
on his person. Additionally, the fact that Wishon was with individuals who had been
-12-
committing thefts, at least one of whom was under the influence, and that he was alleged
to be holding Gray’s gun would lead a reasonable officer to temporarily detain Wishon to
investigate further.
{¶ 27} When he initially stopped Wishon, Sergeant Stanley informed Wishon that
he wanted to talk to him and asked Wishon to put his hands on the car. Believing that
Wishon had a gun on his person, ordering Wishon to put his hands on the car was not
unreasonable for officer safety and was minimally intrusive. Then, when Stanley saw
that the gun was hanging out of Wishon’s pocket, it confirmed that Wishon did indeed
have a gun and that it had been concealed on Wishon’s person. Although Stanley did
not yet know whether Wishon had a valid CCW permit, based on the circumstances, he
had a reasonable suspicion that Wishon might be carrying a concealed weapon illegally.
See State v. Taylor, 8th Dist. Cuyahoga No. 92382, 2009-Ohio-5822, ¶ 8 (after observing
a gun handle, the officer had a reasonable suspicion to believe that the defendant might
be carrying a concealed weapon illegally); State v. Vance, 10th Dist. Franklin No. 92AP-
1388, 1993 WL 85355, *1-2 (Mar. 18, 1993) (officers had reasonable articulable suspicion
to stop suspect for carrying a concealed firearm who matched description of individual
seen with a gun hidden in his waistband). The fact that Sergeant Stanley, who was by
himself, pulled his gun out and kept it at the “low ready” until another officer could arrive
also was not unreasonable. “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, 156 Ohio St.3d 363, 2019-Ohio-1622, 126 N.E.3d 1132, at ¶ 21,
quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604-13-
(1985). “The ‘mere use or display of force in making a stop will not necessarily convert
a stop into an arrest.’ ” Id., quoting United States v. Hardnett, 804 F.2d 353, 357 (6th
Cir.1986). “In fact, even a police officer's display of his weapon during an investigatory
stop does not convert the stop into an arrest.” State v. Pickett, 8th Dist. Cuyahoga No.
76295, 2000 WL 1060653, *5 (Aug. 3, 2000). “Whether an investigative stop is
converted into an arrest depends on, first, whether the officers had reasonable suspicion
to make the stop, and second, whether the degree of intrusion into the suspect's personal
security was reasonably related to the officers' suspicions and the surrounding
circumstances.” Hairston at ¶ 21, citing Hardnett at 356, citing Terry, 392 U.S. at 19-20,
88 S.Ct. 1868, 20 L.Ed.2d 889.
{¶ 28} Sergeant Stanley had over 27 years of law enforcement experience and
had previously been involved in two officer-involved shootings, including one in which the
suspect died. Stanley was aware of the dangers of suspects with firearms, and he had
personally observed a firearm sticking out of Wishon’s pocket. The assisting officer,
Lieutenant Guthrie, arrived less than a minute later, at which time Wishon was quickly
placed in handcuffs and his gun was safely removed from his pocket. “Where a police
officer, during an investigative stop, has a reasonable suspicion that an individual is
armed based on the totality of the circumstances, the officer may initiate a protective
search for the safety of himself and others.” State v. Bobo, 37 Ohio St.3d 177, 524
N.E.2d 489 (1988), paragraph two of the syllabus. This is permitted in order for a police
officer to take “steps to assure himself that the person with whom he is dealing is not
armed with a weapon that could unexpectedly and fatally be used against him.” Terry at
-14-
23. Observing a firearm on a suspect’s person provides more than enough reasonable
suspicion that the individual is armed in order to conduct a protective search for weapons.
{¶ 29} Upon the removal of the firearm, Sergeant Stanley immediately verified his
suspicion that Wishon did not have a CCW permit and placed him under arrest. Stanley
took no longer than was necessary to safely remove the firearm and verify his suspicions.
Under these circumstances, we cannot say that Stanley’s actions were unreasonable.
Wishon’s sole assignment of error is overruled.
III. Conclusion
{¶ 30} Having overruled the assignment of error, we affirm the judgment of the trial
court.
.............
WELBAUM, P.J. and HUFFMAN, J., concur.