Thus, based on these facts, we conclude the officers’ search of the vehicle’s passenger compartment prior to allowing Shalash to return to the vehicle was a proper protective search under Terry and Long and did not violate the Fourth Amendment. The trial court erred in granting Shalash’s motion to suppress as the officers’ search of the passenger compartment of the vehicle was a proper protective search.

State v. Shalash

2021 – Ohio – 1034

Tenth District Appellate Court

March 30, 2021

On April 23, 2019 at 3:05 p.m. Columbus Police Officer Kurt Chapman responded to a dispatch of a “gun run,” where it was reported a male had threatened a female with a handgun. When he arrived at the residence on South Harris Avenue, which is in a high crime neighborhood, Officer Chapman said he spoke with Ms. Pamela Rock, the victim of the incident and the 911 caller. Officer Chapman testified that Ms. Rock told him that a Hispanic man “showed up to her door, pointed a firearm and left the scene in a white BMW,” and that there was a woman in the vehicle with him. Additionally, Officer Chapman testified that Ms. Rock told him the man had a black or silver handgun. Ms. Rock’s neighbor, Mr. Dillon Coal, told Officer Chapman he had a surveillance camera on his vehicle and he was able to obtain a partial license plate number from the white BMW. Officer Chapman said that Ms. Rock informed him they would be able to find the man at the Wedgewood apartment complex – an even higher crime neighborhood.

Officer Chapman testified that after speaking to Ms. Rock and her neighbors, he drove to the Wedgewood apartment complex. At the north side of the apartment complex he observed a vehicle matching the description the neighbors provided.  As he approached the vehicle, Officer Chapman said he was able to match the dealer tag on the car with the partial license plate obtained from the surveillance video. Officer Chapman approached the vehicle and had a brief conversation with a male later identified as Mr. Belal Shalash, and there was also a woman in the vehicle with Mr. Shalash. Mr. Shalash denied having been on South Harris Avenue, despite Mr. Coal’s surveillance video. Mr. Shalash was lying, and Officer Chapman knew it. Officer Chapman then asked Mr. Shalash to step out of the vehicle, and Mr. Shalash cooperated. Once he was out of the vehicle, Mr. Shalash did not try to run and did not act in a suspicious manner. By that time, there were four officers on the scene. While Officer Chapman conducted a warrant check of Mr. Shalash’s personal information, Officer Jacob Pawlowski conducted a pat-down of Mr. Shalash’s person.  The pat-down did not result in the discovery of any weapons.

After the warrant check indicated Mr. Shalash did not have any outstanding warrants, Officer Chapman testified he planned to take a report of the incident and refer Ms. Rock to the prosecutor’s office. However, before placing Mr. Shalash back in the vehicle, Officer Chapman testified his partner “conducted a protective sweep of the vehicle for any weapons,” and during that sweep Officer Chapman’s partner located a gun. After police found the gun in the vehicle, the officers placed Mr. Shalash in handcuffs. Officer Chapman testified that police officers sometimes use handcuffs for officer safety even if they do not ultimately arrest the person.

Officer Pawlowski conducted the protective sweep of the vehicle and found a handgun located underneath the front passenger seat. Officer Pawlowski found the handgun first and then Mr. Shalash was detained in handcuffs while he finished the protective sweep of the vehicle which he said could have revealed additional firearms. After Mr. Shalash was placed in handcuffs, Mr. Shalash asked whether he was under arrest and Officer Pawlowski told him he was not yet under arrest but was being “detained.” The officers then placed Mr. Shalash in the rear of a prisoner transport vehicle, and Officer Pawlowski found the magazine to the handgun.

Officer Pawlowski described Mr. Shalash as cooperative during the encounter. He further testified that had Mr. Shalash been able to get back in his vehicle, he would have been able to access the handgun. Following the hearing, the trial court granted Mr. Shalash’s motion to suppress. The trial court determined the protective sweep of the vehicle violated Mr. Shalash’s Fourth Amendment rights, concluding there was no objective or subjective evidence that any of the officers involved believed Mr. Shalash to be dangerous before or during the stop. Thus, the trial court found that suspicion of the presence of a weapon was an insufficient basis to justify the search of the vehicle.

The City of Columbus appealed the trial court’s decision to suppress Mr. Shalash’s firearm.  The basis of the appeal focused on the Protective Sweep Doctrine established on July 6, 1983 in Michigan v. Long, 463 U.S. 1032 (1983).  The U.S. Supreme Court expanded the Terry warrantless search exception to protective searches of automobiles. In Long, the U.S. Supreme Court held that officers could undertake a protective sweep or search of “[T]he passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden … if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.”.  Long at 1049, quoting Terry v. Ohio, 392 U.S. 1, 21 (1968).

Here, the facts presented at the hearing established that when the officers initially approached Mr. Shalash and detained him, they had a reasonable suspicion based on specific, articulable facts that Mr. Shalash was engaged in criminal activity. The officers were responding to a dispatch of a “gun run,” where a woman reported a man had threatened her with a gun. The officers had a physical description of the man with the gun, a description of his vehicle, a partial license plate number, and a report of a location in which he could be found, all of which matched Mr. Shalash and his white BMW when the officers approached him in the Wedgewood apartment complex. Based on the information from the 911 call and the people at the scene when they responded, the officers’ reasonable suspicion was that Mr. Shalash was dangerous and had a gun. That reasonable suspicion would not have disappeared once Mr. Shalash was out of the vehicle. And the fact that Mr. Shalash was cooperative during the length of his detention does not vitiate [reduce] the reasonable suspicion the officers already had, and continued to have, both when they initially approached him and as long as they held him there.

Thus, the facts available to the officers at the moment they approached Mr. Shalash’s vehicle, asked him to exit the vehicle, and conducted a pat-down of his person were sufficient to warrant a person of reasonable caution in the belief that it was necessary to conduct a Terry stop. Once the officers had Mr. Shalash out of the vehicle and the pat-down revealed he did not have a gun on his person, it was reasonable for them to believe the gun was in the vehicle, and they were therefore justified in doing a protective sweep of the vehicle before allowing Mr. Shalash to get back in the vehicle.

Should this case … or any be evaluated on the Singularity of Circumstances?

In reaching the opposite conclusion, the trial court focused its analysis entirely on Mr. Shalash’s conduct during the stop.  The trial court noted that Mr. Shalash did not act suspiciously, that he was cooperative, and that he never attempted to flee. However, Mr. Shalash’s generally compliant behavior once he was out of his vehicle does not render the officers unable to rely on the information, they had received regarding Mr. Shalash’s pre-stop conduct in determining whether it was necessary for them to conduct a protective sweep of the vehicle. Here, the officers had credible information that Mr. Shalash had a gun inside the vehicle and that he had just threatened

Moreover, to the extent the trial court concluded that the officers could no longer have had a reasonable belief that they were in danger once they decided to issue Mr. Shalash a citation and return him to his vehicle, neither the facts of this case nor the case law support such a conclusion. Had police returned Mr. Shalash to his vehicle without conducting the protective sweep, he would have had immediate access to the weapon at the conclusion of the stop.

Ultimately, the Tenth District Appellate Court held “Thus, based on these facts, we conclude the officers’ search of the vehicle’s passenger compartment prior to allowing Shalash to return to the vehicle was a proper protective search under Terry and Long and did not violate the Fourth Amendment. The trial court erred in granting Shalash’s motion to suppress as the officers’ search of the passenger compartment of the vehicle was a proper protective search.”.

Lessons Learned:

  1. What occurred on April 23, 2019 at the Wedgewood Apartments is a textbook example of the vehicle Protective Sweep Doctrine. This was recognized by both Officer Chapman and Officer Pawlowski; it was only a legal mystery to the trial judge.  The officers responded to a predator threatening a resident with handgun, obtained a detailed physical description of the suspect and a detailed description of his vehicle.  The vehicle description included a partial vehicle tag.  A short time later Officer Chapman discovered Mr. Shalash and his vehicle a short distance away in a HIGH crime Section Eight neighborhood – the Wedgewood Apartments.   Both the location of the incident and arrest are high crime areas and the trial court did not add these pertinent facts to the analysis prior to suppressing the firearm.  A patdown of Mr. Shalash and his vehicle comports with Terry and Long because Mr. Shalash was going to be returned to his vehicle with direct access to the passenger compartment, where the firearm was secreted.
  2. What is both interesting and confusing is the basis of the trial court judge suppressing the firearm. The judge focused the decision based on Mr. Shalash’s cooperation and lack of nervousness during the encounter with Officer Chapman and Officer Pawlowski.  The behavior of the suspect should always be a factor but not singularly the only factor to be evaluated.  That is why many law enforcement decisions are based on the Totality of Circumstances and not the Singularity of Circumstances.  Because if it was the only factor the opposite would be true – if every person law enforcement encounter who is nervous would render every pat down or search of the nervous ones lawful.  However, it is not lawful to pat down or search every person who is nervous during a law enforcement encounter, if that is the singular factor.
  3. Officer Chapman and Officer Pawlowski should be commended for recognizing the textbook application of the Protective Sweep Doctrine.
  4. For more information on the Terry Pat Down see Objectively Reasonable Launches. For more information on the vehicle pat down see A Barry Long Knife Creates a New Legal Doctrine.

Does your agency train on Reasonable Suspicion and the Vehicle Protective Sweep Doctrine?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.