State v. Bradford

[Cite as State v. Bradford, 2014-Ohio-5527.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-322
v. : (C.P.C. No. 13CR-1797)
Daylon T. Bradford, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 16, 2014
Ronald O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee.
Yeura R. Venters, Public Defender, and David L. Strait, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Defendant-appellant, Daylon T. Bradford, appeals from a judgment of the
Franklin County Court of Common Pleas finding him guilty, pursuant to a plea of no
contest, of one count of carrying a concealed weapon in violation of R.C. 2923.12.
Defendant assigns the following sole assignment of error for our review:
The trial court erred in denying a defense motion to suppress
the results of a search and seizure of Defendant-Appellant
conducted in violation of his rights under the Fourth and
Fourteenth Amendments to the United States Constitution
and Section 14, Article I of the Ohio Constitution.
{¶ 2} Because the trial court did not err in denying defendant's motion to
suppress, we affirm.
No. 14AP-322 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} On April 1, 2013, the State of Ohio ("state") indicted defendant on one
count of carrying a concealed weapon, a felony of the fourth degree. Defendant filed a
motion to suppress the evidence on July 19, 2013. The state subsequently filed a
memorandum contra the motion to suppress and the court set the matter for an
evidentiary hearing.
{¶ 4} At the hearing on the motion to suppress, the following evidence was
presented regarding the events which led to the indictment. At approximately 8:48 p.m.
on January 28, 2013, Columbus Police Officers David Gitlitz and Raymond E. Hatfield
were on patrol together in a marked cruiser on the East side of Columbus, Ohio. It was a
cold, dark evening. The officers were sitting in their cruiser watching a house on East
11th Avenue as they had information that an individual staying at that house had a
warrant for his arrest due to a felony probation violation. The area "wasn't well lit," but
the officers "could see what [they were] doing." (Tr. 13.)
{¶ 5} The officers saw a green Chevrolet Tahoe sitting in front of the house they
were watching. They "knew that car was associated with that house and with that person
[they] were looking for." (Tr. 9.) The officers saw the doors of the car opening and
closing, it "appeared that the car was on and people were hanging out around and inside
the car." (Tr. 9.) The officers wanted to make contact with the individuals in the Tahoe
to determine whether the subject of the arrest warrant was in the car. The officers
parked their cruiser a car length behind the Tahoe and exited the vehicle. Officer Gitlitz
approached the driver's side of the Tahoe and Officer Hatfield approached the passenger
side of the vehicle.
{¶ 6} As Officer Hatfield approached the passenger side of the vehicle, he saw
defendant "standing there on the sidewalk right at the passenger's side of the vehicle."
(Tr. 27.) Defendant was not the subject of the arrest warrant whom the officers had been
hoping to find. As Officer Hatfield approached, defendant turned and started walking up
toward the house. Officer Hatfield stated that defendant's action of walking away as a
police officer approached threw "up a suspicious level in" Officer Hatfield. (Tr. 29.)
Officer Hatfield then noticed that defendant was carrying an open bottle of vodka "in his
hand, so [Officer Hatfield] told [defendant] to hold up." (Tr. 29.) Officer Hatfield stated
No. 14AP-322 3
that once he saw the bottle of vodka, he believed defendant was in violation of the
Columbus City Code provision which prohibits individuals from possessing an open
container of alcohol in a public place. Officer Hatfield made a comment to defendant in
"the nature of like, you can't have an open container outside on the sidewalk." (Tr. 46.)
{¶ 7} After Officer Hatfield told defendant to hold up, defendant "stopped and
spun around looking at" Officer Hatfield. (Tr. 29.) As Officer Hatfield continued to
approach defendant, defendant took "a step backwards." (Tr. 29.) Officer Hatfield
characterized defendant's movement as "a small step," explaining that "it was probably
eight inches" worth of a step backward. (Tr. 49-50.) Officer Hatfield, a patrol officer
with seven years of experience working on the East side of Columbus, stated that it had
happened to him "dozens of times where the individual bolts on [him], at that point
takes off running." (Tr. 29.) Officer Hatfield said he could "see [defendant's] hands
shaking as [he was] coming towards [defendant] and talking to him to hold up." (Tr. 51.)
Officer Hatfield said to defendant "dude, you got an open container of liquor" and then
grabbed "ahold of [defendant's] hand real quick." (Tr. 29.) Defendant was visibly
"shaking" and "nervous," such that Officer Hatfield "could tell something was up." (Tr.
29-30.)
{¶ 8} Officer Hatfield then asked defendant "you don't have anything on you?
* * * And the defendant, he just let's out a sigh and says no. And it was a visible sigh.
* * * It was, phew, like that." (Tr. 30.) Officer Hatfield explained that he "had that
happen numerous occasions, too. And [he] was pretty sure [defendant] probably had a
pistol on him." (Tr. 30.) Officer Hatfield, who already had ahold of defendant's left
hand, then grabbed defendant's right hand. Officer Hatfield then patted "the outer side
of [defendant's] right waist area" and immediately felt "a gun in [defendant's] jacket
pocket." (Tr. 30.) Another officer came over and removed the gun from defendant's
jacket pocket.
{¶ 9} Officer Hatfield explained that he has made approximately "120 to 150
felony gun arrests" during his seven years as a patrol officer. (Tr. 32.) The area where
this incident occurred "is notorious for narcotics and shootings and weapons," it is
considered a high crime area. (Tr. 32.) Officer Hatfield stated that two days prior to the
hearing, he "caught another guy with a gun and a whole bunch of narcotics" in that same
No. 14AP-322 4
area. (Tr. 33.) Officer Hatfield explained that he decided to pat defendant down based
on "his nervous demeanor, especially when [he] asked him if he had had a gun on him
and the way he acted at that point and the way he distance[d] himself from the car to
begin with." (Tr. 34.)
{¶ 10} The court issued its ruling from the bench on February 4, 2014. The court
concluded that the "temporary detention of the defendant in connection to the open
container violation was constitutionally and statutorily valid," as Officer Hatfield "did
not arrest the defendant and merely detained him to investigate the commission of a
minor misdemeanor." (Feb. 4, 2014 Tr. 4.) The court further found that the totality of
the circumstances supported the pat-down search of defendant's person. The court
noted that the incident occurred in a high crime area, that Officer Hatfield had years of
experience with these types of situations, that it was a dark evening with limited
visibility, and that the officers were vulnerable in this situation. The court noted that
defendant was in possession of the bottle of vodka, "did take that step away from the
officer," and "in responding to questioning by the officer did give the officer indication
that he had something in his possession that could be potentially harmful to the officers
in that situation." (Feb. 4, 2014 Tr. 7.) Accordingly, the court concluded that Officer
Hatfield's pat-down of defendant was supported by reasonable suspicion that defendant
was armed. As such, the court denied defendant's motion to suppress the evidence.
{¶ 11} On March 19, 2014 defendant entered a plea of no contest to the charge of
carrying a concealed weapon. The court accepted defendant's plea and found him guilty.
The court sentenced defendant to 12 months of community control supervision and
ordered that the firearm be destroyed.
II. SEARCH AND SEIZURE WERE CONSTITUTIONAL
{¶ 12} "[A]ppellate review of a trial court's decision regarding a motion to
suppress evidence involves mixed questions of law and fact." State v. Vest, 4th Dist. No.
00CA2576 (May 29, 2001). Thus, an appellate court's standard of review of the motion
to suppress is two-fold. State v. Reedy, 10th Dist. No. 05AP-501, 2006-Ohio-1212, ¶ 5,
citing State v. Lloyd, 126 Ohio App.3d 95, 100-01 (7th Dist.1998). When considering a
motion to suppress, the trial court assumes the role of trier of fact, and therefore is in
the best position to resolve factual questions and evaluate the credibility of witnesses.
No. 14AP-322 5
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. As a result, an appellate
court must accept the trial court's findings of fact if they are supported by competent,
credible evidence. Id. Then, the appellate court must independently determine whether
the facts satisfy the applicable legal standard, pursuant to a de novo review and without
giving deference to the conclusion of the trial court. Id. At a suppression hearing, the
state bears the burden of establishing that a warrantless search and seizure falls within
one of the exceptions to the warrant requirement. Xenia v. Wallace, 37 Ohio St.3d 216(1988), paragraph two of the syllabus.
{¶ 13} The Fourth Amendment to the United States Constitution as applied to the
states through the Fourteenth Amendment, as well as Ohio Constitution, Article I,
Section 14, prohibit the government from conducting warrantless searches and seizures,
rendering them per se unreasonable unless an exception applies. State v. Mendoza, 10th
Dist. No. 08AP-645, 2009-Ohio-1182, ¶ 11, citing Katz v. United States, 389 U.S. 347,
357 (1967). However, "not all personal intercourse between policemen 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 v. Ohio,
392 U.S. 1, 19 (1968), fn. 16; Brendlin v. California, 551 U.S. 249, 254 (2007). In
determining whether a particular encounter constitutes a "seizure," and thus implicates
the Fourth Amendment, the question is whether, in view of all the circumstances
surrounding the encounter, a reasonable person would believe he or she was "not free to
leave," United States v. Mendenhall, 446 U.S. 544, 554 (1980), or "not free to decline
the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S.
429, 439 (1991). See also Michigan v. Chesternut, 486 U.S. 567, 573 (1988); Florida v.
Royer, 460 U.S. 491, 502 (1983) (plurality opinion).
{¶ 14} A person "may not be detained even momentarily without reasonable,
objective grounds for doing so." Royer at 498. Whenever a person's freedom of
movement is curtailed by police using either force or a show of authority, that person is
"seized" for purposes of a Fourth Amendment analysis. State v. McFarland, 4 Ohio
App.3d 158, 159 (8th Dist.1982), citing Dunaway v. New York, 442 U.S. 200 (1979).
The Fourth Amendment requires that any seizure of a person must be reasonable. Id. If
No. 14AP-322 6
the government obtains evidence through actions which violate the constitutional
prohibition against unreasonable searches and seizures, such evidence must be excluded
at trial as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471(1963).
{¶ 15} Thus, a search conducted without a warrant issued upon probable cause
violates the Fourth Amendment, unless it comes within one of the "few specifically
established and well-delineated exceptions" to the warrant requirement. Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). One of the exceptions to the warrant requirement
is an investigative detention, commonly referred to as a Terry stop. See Terry. Under
Terry, a police officer may stop or detain an individual without probable cause when the
officer has reasonable suspicion, based on specific, articulable facts which, taken
together with the rational inferences from those facts, reasonably warrant the officer's
belief that criminal activity is afoot. Terry at 21-22. "An investigative stop does not
violate the Fourth Amendment to the United States Constitution if the police have
reasonable suspicion that 'the person stopped is, or is about to be, engaged in criminal
activity.' " State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 35, quoting United
States v. Cortez, 449 U.S. 411, 417 (1981).
{¶ 16} Reasonable suspicion entails some minimal level of objective justification,
"that is, something more than an inchoate and unparticularized suspicion or 'hunch,'
but less than the level of suspicion required for probable cause." State v. Jones, 70 Ohio
App.3d 554, 556-57 (2d Dist.1990), citing Terry at 27; State v. Carter, 69 Ohio St.3d 57,
66 (1994). An appellate court views the propriety of a police officer's investigative stop
or detention in light of the totality of the surrounding circumstances, to determine
whether the detaining officer had a particularized and objective basis for suspecting
legal wrongdoing on the part of the detainee. State v. Bobo, 37 Ohio St.3d 177 (1988),
paragraph one of the syllabus, approving and following State v. Freeman, 64 Ohio St.2d
291 (1980), paragraph one of the syllabus. The totality of the circumstances must be
viewed through the eyes of a 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 (1991).
{¶ 17} Defendant notes that, "[i]n the proceedings below, the State emphasized
that (1) the seizure happened at night, in a high crime area, (2) [defendant] walked away
No. 14AP-322 7
when the officers appeared, and (3) [defendant] was carrying a liquor bottle at the time
[Officer] Hatfield seized him." (Appellant's brief, 13.) Defendant asserts that these facts
could not provide Officer Hatfield with reasonable suspicion to seize defendant. We view
the interaction between defendant and Officer Hatfield, as the trial court did, as two
distinct parts: the initial seizure of defendant after Officer Hatfield saw the open
container of liquor in defendant's possession, and the subsequent pat-down search of
defendant.
A. SEIZURE
{¶ 18} The record evidence demonstrates that, as Officer Hatfield approached the
Tahoe and defendant turned and walked toward the house, Officer Hatfield saw an open
bottle of vodka in defendant's hand. Officer Hatfield yelled to defendant to hold up,
because defendant was committing the minor misdemeanor offense of possessing an
open container of alcohol in a public place. See Columbus City Code § 2325.62 (stating
that no person shall possess an open container of beer or intoxicating liquor in a public
place, and that "[w]hoever violates this section is guilty of having an open container, a
minor misdemeanor"); R.C. 4301.62(B)(3) (prohibiting anyone from possessing an open
container of alcohol in a public place); R.C. 4301.99 (stating that a violation of R.C.
4301.62 is a minor misdemeanor). When Officer Hatfield yelled to defendant to hold up,
and defendant stopped and spun around toward Officer Hatfield, defendant was
constitutionally seized. See United States v. Richardson, 385 F.3d 625, 630 (6th
Cir.2004) (concluding that the defendant was seized when the officer instructed him to
"just hang out right here for me, okay?"); United States v. Jones, 562 F.3d 768, 775 (6th
Cir.2009) (noting that an individual is "not seized until he submits to the officer's show
of authority" by "stop[ing], in response to [the officer's] command" to stop).
{¶ 19} Officer Hatfield's initial seizure of defendant was supported by reasonable
suspicion that criminal activity was afoot, as Officer Hatfield witnessed defendant
committing the minor misdemeanor offense of possessing an open container of alcohol.
Additionally, the right to make an investigatory stop "necessarily carries with it the right
to use some degree of physical coercion or threat thereof to effect it." Graham v.
Connor, 490 U.S. 386, 396 (1989). Accordingly, after defendant took a step backward,
which Officer Hatfield believed to be an indication that defendant was about to flee,
No. 14AP-322 8
Officer Hatfield was entitled to physically restrain defendant to maintain the status quo
and prevent defendant from fleeing. See United States v. Hensley, 469 U.S. 221, 235
(1985) (noting that officers conducting a Terry stop are "authorized to take such steps as
[are] reasonably necessary to protect their personal safety and to maintain the status
quo during the course of the stop"); Kowolonek v. Moore, 463 Fed.Appx. 531, 536 (6th
Cir.2012) (noting that a Terry detainee's "attempt to flee or demonstrated flight risk
may render handcuffing and detention in a cruiser objectively reasonable").
{¶ 20} Defendant acknowledges that he was carrying an open bottle of liquor on
the night of the incident, but asserts that "that fact did not authorize or justify the
seizure." (Appellant's brief, 15.) Defendant correctly notes that, pursuant to R.C.
2935.26, law enforcement officials may not generally arrest an individual for
committing a minor misdemeanor offense. R.C. 2935.26 provides in relevant part as
follows:
(A) Notwithstanding any other provision of the Revised
Code, when a law enforcement officer is otherwise
authorized to arrest a person for the commission of a minor
misdemeanor, the officer shall not arrest the person, but
shall issue a citation, unless one of the following applies:
(1) The offender requires medical care or is unable to provide
for his own safety.
(2) The offender cannot or will not offer satisfactory evidence
of his identity.
(3) The offender refuses to sign the citation.
(4) The offender has previously been issued a citation for the
commission of that misdemeanor and has failed to do one of
the following:
(a) Appear at the time and place stated in the citation;
(b) Comply with division (C) of this section.
{¶ 21} In State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, ¶ 18-19, the
Supreme Court of Ohio, acknowledging the holding in Atwater v. Lago Vista, 532 U.S.
318 (2001), held that Section 14, Article I of the Ohio Constitution "provides greater
protection than the Fourth Amendment to the United States Constitution against
No. 14AP-322 9
warrantless arrests for minor misdemeanors." Id. at syllabus, following in part and
modifying in part State v. Jones, 88 Ohio St.3d 430 (2000). See Atwater (holding that
an arrest for a minor misdemeanor offense does not violate the Fourth Amendment to
the United States Constitution). In Brown, the officers arrested the defendant for
jaywalking, a minor misdemeanor offense. As Brown was arrested for a minor
misdemeanor offense when none of the R.C. 2935.26 exceptions applied, the court
concluded that the arrest violated the Ohio Constitution.
{¶ 22} Defendant asserts that, pursuant to Brown, "Hatfield had no authority to
seize [defendant]." (Appellant's brief, 17.) Although R.C. 2935.26(a) specifically
prohibits a law enforcement officer from arresting a person who has committed a minor
misdemeanor offense unless one of the exceptions listed in the statute applies, it does
not preclude officers from seizing such an individual. Rather, law enforcement officers
are entitled to detain individuals who commit minor misdemeanor offenses, in order to
issue the citation contemplated by R.C. 2935.26. See State v. Riggins, 1st Dist. No. C-
030626, 2004-Ohio-4247, ¶ 10 (noting that "[a] violation of the open-container statute,
R.C. 4301.62, is punishable as a minor misdemeanor" and "officers may briefly detain,
but may not conduct a custodial arrest, or a search incident to that arrest, for a minor-
misdemeanor offense when none of the R.C. 2935.26 exceptions apply").
{¶ 23} Unlike Brown, defendant was not arrested for a minor misdemeanor
offense. Rather, defendant was arrested for the felony offense of carrying a concealed
weapon. While Officer Hatfield could not arrest defendant for the minor misdemeanor,
he was authorized to detain defendant until he could issue defendant a citation for the
open container violation. See Knowles v. Iowa, 525 U.S. 113, 117 (1998) (concluding that
the detention of a person to be issued citation does not amount to a full custodial arrest,
but is "more analogous to a so-called 'Terry stop' "). See also State v. Spikes, 11th Dist.
No. 2005-L-039, 2006-Ohio-1452, ¶ 23-24 (where the officer did not frisk the suspect as
a search incident to an arrest for a minor misdemeanor, but rather frisked the defendant
out of concern that defendant had a weapon, the pat-down "was not a search incident to
an arrest" and the defendant was "not actually arrested until after Officer Moon
discovered a bag of cocaine").
No. 14AP-322 10
{¶ 24} Accordingly, the initial seizure of defendant was supported by reasonable
suspicion that defendant had committed the minor misdemeanor offense of possessing
an open container of alcohol in a public place.
B. PAT-DOWN SEARCH
{¶ 25} Even when an investigatory stop and detention of a suspect is justified, it
does not necessarily follow that a frisk for weapons is also warranted. State v. Lynch, 2d
Dist. No. 17028 (June 6, 1988); Bennett v. City of Eastpointe, 410 F.3d 810, 822 (6th
Cir.2005). In Terry, the court held that a limited pat-down search is justified when an
officer reasonably concludes that the individual, whose suspicious behavior the officer is
investigating at close range, may be armed and dangerous to the police officer and
others. Terry at 24. See also Spikes at ¶ 19 (noting that "[i]t does not matter whether the
underlying offense is a minor misdemeanor," a search of a minor misdemeanant is
justified "as long as the officer possesses 'reasonable suspicion' the party is armed and
the officer has a legitimate belief his or her safety may be compromised"). An officer
must have a reasonable, objective, and individualized suspicion that the suspect is
armed and dangerous under the totality of the circumstances before the officer may
conduct a pat-down search for weapons. See Andrews; Bobo; Terry. "The officer need
not be absolutely certain that the individual is armed; the issue is whether a reasonably
prudent man in the circumstances would be warranted in the belief that his safety or
that of others was in danger." Terry at 27.
{¶ 26} When the "sole justification of the search * * * is the protection of the police
officer and others nearby, and it must therefore be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden instruments for the
assault of the police officer." Terry at 29. The purpose of the search is not to discover
evidence of a crime, but to allow the officer to pursue his investigation without fear of
violence. United States v. Vite-Espinoza, 342 F.3d 462, 466 (6th Cir.2003). See also
State v. Evans, 67 Ohio St.3d 405, 410 (1993) (holding that "[t]he state's obligation not
to violate the individual's Fourth Amendment rights does not command that the police
officer forsake reasonable precautionary measures during the performance of his
duties").
No. 14AP-322 11
{¶ 27} Officer Hatfield relied on the following articulable facts to support his
reasonable suspicion that defendant was armed: it was nighttime in a high crime area
rife with gun and drug violence, Officer Hatfield had seven years of experience making
gun and drug arrests in this area of Columbus, defendant began to walk toward the
house when Officer Hatfield approached, after defendant yielded to Officer Hatfield's
command to stop defendant took a step backward, defendant was nervous and visibly
shaking and, when Officer Hatfield asked defendant if he had anything on him
defendant let out an audible sigh and said no.
{¶ 28} Defendant asserts that the fact that he was in a high crime area at night,
and the fact that he walked away from the car when Officer Hatfield approached, are
both innocent factors which could not contribute to a finding of reasonable suspicion.
While these factors are 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. Illinois v. Wardlow, 528 U.S. 119, 125
(2000) (noting that, although "[t]here are innocent reasons for flight, * * * Terry
recognized that the officers could detain the individuals to resolve the ambiguity").
{¶ 29} Defendant's presence in a high crime area would be insufficient standing
alone to support a finding of reasonable suspicion that criminal activity was afoot.
However, presence in a high crime area is a valid consideration under the totality of the
circumstances. See United States v. Johnson, 620 F.3d 685, 692-93 (6th Cir.2010),
quoting United States v. See, 574 F.3d 309, 314 (6th Cir.2009) (noting that "presence in
a high-crime location and the lateness of the hour – 'may not, without more, give rise to
reasonable suspicion,' " but they "may be considered in the totality of the
circumstances"); Wardlow at 124 (noting that a suspect's presence in a high crime area
"standing alone, is not enough to support a reasonable, particularized suspicion that the
person is committing a crime," but "officers are not required to ignore the relevant
characteristics of a location" and the "fact that the stop occurred in a 'high crime area' "
is a "relevant contextual consideration in a Terry analysis").
{¶ 30} Furthermore, when an officer, "without reasonable suspicion or probable
cause, approaches an individual, the individual has a right to ignore the police and go
about his business." Wardlow at 125, citing Royer at 498. See also United States v.
No. 14AP-322 12
Patterson, 340 F.3d 368, 372 (6th Cir.2003) (noting that "Patterson walking away from
the police when they got out of their unmarked car constitutes a factor to be outrightly
dismissed," as it was "innocent and insufficient to provide the police with reasonable
suspicion"). In Wardlow, however, the court held that unprovoked "[h]eadlong flight"
upon noticing the police "is the consummate act of evasion: It is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such." 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." Id. at 125.
{¶ 31} Although defendant did not engage in headlong flight upon noticing
Officer Hatfield, he did turn away from the car and begin to walk toward the house with
an open container of alcohol in his possession. In United States v. Carter, 558
Fed.Appx. 606, 611 (6th Cir.2004), the court noted that Carter's attempt "to reverse
course when he first saw [the officer's] police cruiser" supported the officer's decision
"to search him for a weapon." Id. at 612. The court noted that even though "Carter's
reaction consisted of taking several quick steps backwards, rather than engaging in
headlong flight," the officer's reasonably concluded that "this action constituted an
attempt to flee, a conclusion that [was] not clearly erroneous." Id. at 612-13. Officer
Hatfield reasonably considered defendant's act of walking away from the car to be
questionable conduct under the totality of the circumstances.
{¶ 32} Officer Hatfield also relied on defendant's step backward as an indication
that defendant was about to flee, and noted that defendant was visibly nervous and
shaking during the encounter. While "[n]ervous behavior, standing alone" is insufficient
"to justify a Terry search," United States v. Wilson, 506 F.3d 488, 495 (6th Cir.2007),
"nervous, evasive behavior is a pertinent factor in determining reasonable suspicion."
Wardlow at 124. See also United States v. Henry, 429 F.3d 603, 614 (6th Cir.2005)
(requiring evasive behavior in conjunction with a suspect's nervousness to justify
reasonable suspicion). Defendant's attempt to flee was an act of evasion which, in
conjunction with defendant's nervousness, supplied Officer Hatfield with reasonable
suspicion that defendant was armed. See State v. Carlisle, 4th Dist. No. 07CA16, 2008-
No. 14AP-322 13
Ohio-744, ¶ 14 (totality of the circumstances supported the officer's decision to conduct
a pat-down for weapons, as defendant was in a high crime area, the officers were aware
of his criminal history which included assault on a police officer, defendant did not
initially comply with the officer's request to stop, and the defendant's anxious behavior
led the officer to believe defendant "was 'looking for an out' "); United States v. Oglesby,
597 F.3d 891, 894 (7th Cir.2010).
{¶ 33} Lastly, Officer Hatfield also stated that he relied on defendant's audible
sigh and response of "no" as an indication that defendant was armed. Officer Hatfield,
while holding defendant's left hand, asked defendant something in "the nature that you
don't have * * * a gun on you, do you?" (Tr. 30.) In response, defendant let out a sigh
and said no. Officer Hatfield noted that it was a "visible sigh. It wasn't just like a breath."
(Tr. 30.) Officer Hatfield indicated that he "had that happen numerous occasions, too,"
and took defendant's response to be an indication that defendant "had a pistol on him."
(Tr. 30.) The trial court found that defendant's response to Officer Hatfield's question
was an indication that defendant had something which could harm Officer Hatfield.
{¶ 34} If Officer Hatfield had relied solely on defendant's response of "no" to
mean "yes," we would be inclined to find Officer Hatfield's reliance on defendant's
response unreasonable. However, defendant also let a notable, audible sigh in response
to Officer Hatfield's question. Officer Hatfield's testimony provided the trial court with
competent evidence that defendant's sigh was an indication that defendant possessed
something which could harm Officer Hatfield. Accordingly, the trial court's reliance on
defendant's sigh as an indication that defendant was armed was not clearly erroneous.
See United States v. Worley, 193 F.3d 380, 384 (6th Cir.1999), quoting Anderson v. City
of Bessemer City, 470 U.S. 564, 574 (1985) (noting that " '[w]here there are two
permissible views of the evidence,' the district court's conclusions 'cannot be clearly
erroneous' "). Compare State v. McClendon, 350 N.C. 630, 638 (1999) (noting that,
under the totality of the circumstances, the officers possessed reasonable suspicion that
criminal activity was afoot, where the defendant was evasive regarding who owned the
car he was driving and "was extremely nervous, sweating, breathing rapidly, sighing
heavily, and chuckling nervously in response to questions"); United States v. Rolenc,
D.Neb. No. 8:13CR143, 2013 WL 6154398 (Oct. 18, 2013) (finding that the defendant's
No. 14AP-322 14
statements supplied probable cause for her arrest where the officer asked the defendant
if she "had any weapons, drugs, or illegal contraband on her person," and defendant
"responded to the question with a big sigh, looked at Deputy Harbaugh, then said, 'not
on me' and looked back at the red Ford Focus" and then admitted that the drugs were in
the vehicle).
{¶ 35} The trial court was in the best position to assess Officer Hatfield's
demeanor and credibility, and the trial court found Officer Hatfield to be credible.
Examining the facts of the case in total, we find that Officer Hatfield had sufficient
information before him to support a finding of reasonable suspicion that defendant was
armed. Officer Hatfield conducted a limited pat-down search of defendant's outer jacket
and immediately felt a gun in defendant's right jacket pocket. Officer Hatfield's pat-
down search of defendant was appropriately tailored to discover a weapon which could
have been used against Officer Hatfield while he completed his investigation of the
minor misdemeanor offense. See Terry at 25-27.
{¶ 36} Based on the foregoing, we find that both the initial stop of defendant and
the subsequent pat-down search of defendant were proper under Terry. Accordingly,
defendant's sole assignment of error is overruled. Having overruled defendant's
assignment of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.
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