In re M.P.

[Cite as In re M.P., 2014-Ohio-2846.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: M.P. : APPEAL NOS. C-130663
C-130741
: TRIAL NOS. 13-4853X
13-4852X
:
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Reversed, Adjudications Vacated, and Appellant
Discharged
Date of Judgment Entry on Appeal: June 30, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee the State of Ohio,
Gordon C. Magella, for Defendant-Appellant M.P.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} M.P. was adjudicated delinquent for resisting arrest and carrying a
concealed weapon. In this appeal, he challenges the stop that led to the charges against
him. The stop was based on a detective’s hunch that M.P. had been involved in an
incident involving a gun days earlier, the fact that M.P. was wearing baggy shorts, and
M.P.’s “unusual interest” in a passing police car. We conclude that the detective did not
have a reasonable suspicion that criminal activity was afoot at the time when M.P. was
stopped, and therefore the juvenile court should have suppressed the evidence that was
discovered as a result of the stop. As a result, we vacate M.P.’s adjudications.
{¶2} On May 26, two days prior to the stop at issue, M.P. was present during
an incident in which an unknown suspect had fired a gun at a victim. The victim was not
harmed. M.P. and two other young males were listed on the police report as witnesses.
According to the report,
[the police officer] was flagged down by citizens saying people were
chasing someone and shooting a gun. They pointed out 3 [male blacks]
as being involved somehow. We stopped them and questioned them and
they stated a [male white] shot at them and they were running away. Gun
was recovered behind house on Rosemont. I believe there’s much more
to this but without [male white], we don’t know what [occurred]. Also
citizens gave conflicting info.
{¶3} Detective Mark Longworth investigated the May 26 incident. As he tells
it, he “was suspicious that [the] gun [that was found on May 26] may have belonged to
either [M.P.] or one of the people he was with, because it was a gun that was, according
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OHIO FIRST DISTRICT COURT OF APPEALS
to the report, near where they stopped these young men.” Based on this suspicion,
Detective Longworth began watching M.P.’s residence.
{¶4} On May 28, Detective Longworth saw M.P. and a friend walking down
the street. He testified that M.P. was wearing baggy shorts—clothing that, according to
Detective Longworth, was “such that you could conceal a firearm.” Also, Detective
Longworth noted that when a police cruiser drove by, M.P. “appeared to blade his body.”
Exactly what “blading his body” means is unclear, but based on Detective Longworth’s
testimony, it would seem that M.P. turned his body in such a way as to demonstrate “an
unusual interest” in the passing car. Detective Longworth noted that other people on the
street at that time did not display the same behavior. Based on these observations,
Detective Longworth requested that uniformed police officers stop M.P. so that
Detective Longworth could talk to him.
{¶5} Police Officer Jeff Zucker received the call to stop M.P. According to
Officer Zucker, the radio dispatch gave M.P.’s description and location. No other
information was given about why Detective Longworth wanted him stopped. Officer
Zucker and his partner exited their police cruiser, and asked M.P. and his friend to stop.
M.P. refused to stop, questioning why the police officers were stopping him. When M.P.
continued to refuse to stop, Officer Zucker’s partner put a hand on M.P., who became
“very agitated and began pulling away.” The police officers then restrained him
physically and put handcuffs on him. When the handcuffs were put on M.P., he told the
police officers that he had a gun in his pocket. As a result, M.P. was charged with
resisting arrest and carrying a concealed weapon.
{¶6} M.P. filed a motion to suppress the evidence emanating from the stop,
arguing that the police officers had neither a reasonable, articulable suspicion to stop
M.P. nor probable cause to arrest him. Following a hearing, the court denied the motion
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OHIO FIRST DISTRICT COURT OF APPEALS
to suppress. M.P. was subsequently adjudicated delinquent for committing acts that,
had they been committed by an adult, would have constituted resisting arrest and
carrying a concealed weapon.
{¶7} M.P.’s first assignment of error is that the trial court erred when it
denied his motion to suppress. M.P. argues that the uniformed police officers’ detention
of him was an arrest for which they had no probable cause. Alternatively, he contends
that even if the detention was not an arrest, the police officers did not have a reasonable,
articulable suspicion to stop him. We conclude that the motion should have been
granted because the record does not support the finding that the police officers had a
reasonable, articulable suspicion that criminal activity was afoot when they stopped
M.P.
{¶8} The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. To justify a person’s arrest under the Fourth
Amendment, the state must show that the police officer had probable cause, defined
as “sufficient information from a reasonably trustworthy source to warrant a prudent
man in believing that a felony has been committed and that it has been committed by
the accused.” State v. Fultz, 13 Ohio St.2d 79, 234 N.E.2d 593 (1968), paragraph one
of the syllabus. As he testified at the suppression hearing, Detective Longworth’s
suspicion about M.P.’s involvement in the May 26 incident was not strong enough to
justify a warrant: “Well, I would never look at a [police] report like this and then just go
sign a warrant on somebody, without at least trying to speak with him, or find out more
of what happened[.]”
{¶9} Courts have long recognized, however, that the Fourth Amendment is
not violated when an officer stops a person for a brief, investigative stop based on a
reasonable, articulable suspicion that the person “is, or is about to be, engaged in
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OHIO FIRST DISTRICT COURT OF APPEALS
criminal activity.” U.S. v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
“Based upon [the totality of the circumstances] the detaining officers must have a
particularized and objective basis for suspecting the particular person stopped of
criminal activity.” Id. at 417-418. Thus, in Terry v. Ohio, 392 U.S. 1, 21-23, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court concluded that a police
officer lawfully stopped three men based on his “on-the-spot observations” that led him
to conclude a crime was imminent.
{¶10} A police officer’s reasonable, articulable suspicion can be transferred to a
fellow officer. Under the “fellow-officers rule,” a police officer may initiate a stop based
on the “reasonable suspicion of criminal activity through sources other than his own
observations, including radio broadcasts.” State v. Lanning, 5th Dist. Licking No. 99 CA
38, 1999 Ohio App. LEXIS 4380 (Sept. 16, 1999). See U.S. v. Hensley, 469 U.S. 221, 105
S.Ct. 675, 83 L.Ed.2d 604 (1999). But if the request from the fellow officer is not based
on reasonable suspicion, then a stop based on the request violates the Fourth
Amendment. Hensley at 232. Here, Officer Zucker acknowledged that, absent the radio
dispatch, he had no reasonable suspicion upon which to stop M.P., so we look to
Detective Longworth’s observations to determine whether the stop was legal.
{¶11} We conclude that no reasonable, articulable suspicion existed at the time
the stop was initiated. The impetus for the stop was the investigation of the earlier
incident. 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
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OHIO FIRST DISTRICT COURT OF APPEALS
involvement in the past incident did not create a reasonable suspicion that M.P. was
presently engaged in a criminal act.
{¶12} Aside from Detective Longworth’s questions about the incident days
earlier, the only additional facts cited as creating reasonable suspicion were M.P.’s baggy
shorts and his particular interest in a passing police car. Detective Longworth testified
that M.P.’s concealment of a firearm in his shorts “could be a possibility, given what had
happened before.” But baggy shorts are not an uncommon apparel choice, and a
particular interest in a police car hardly indicates that someone is committing or is about
to commit a crime. M.P.’s baggy shorts and his interest in the police car fail to create the
“objective manifestation” of ongoing or imminent criminal activity necessary to justify
an investigatory stop. Cortez, 449 U.S. at 417, 101 S.Ct. 690, 66 L.Ed.2d 621.
{¶13} Further, M.P.’s actions following the uniformed police officers’ requests
to stop cannot be used to justify the stop. Absent reasonable suspicion to justify a stop, a
police officer’s interaction with a person can be only consensual. State v. Taylor, 106
Ohio App.3d 741, 747, 667 N.E.2d 60 (2d Dist.1995). M.P. was under no obligation to
stop for the officers. Id. See also U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980).
{¶14} Here, the only evidence in the record was that M.P. was a “witness” two
days prior to a suspicious shooting incident, that he wore baggy clothes, and turned to
look intensely at a passing police car. We do not think that this alone amounted to
“reasonable suspicion” that M.P. was presently engaged in criminal activity. Because the
officers did not have a reasonable suspicion that criminal activity was afoot, they could
not legally stop M.P. Any evidence emanating from the stop should have been
suppressed. And absent the evidence, M.P. could not be adjudicated delinquent for the
charges. The first assignment of error is sustained.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} The first assignment is dispositive of M.P.’s appeal. The second
assignment of error is therefore moot, and we decline to address it. The trial court’s
denial of M.P.’s motion to suppress is reversed, the judgments of the court adjudicating
M.P. delinquent are vacated, and M.P. is discharged from further prosecution for these
offenses.
Judgment accordingly.
H ILDEBRANDT , P.J., and H ENDON , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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