Under the totality of circumstances, the officers were justified in the search and subsequent arrest of Defendant.
State v. Bunn
2021 – Ohio – 3636
Seventh District Appellate Court
Mahoning County, Ohio
September 28, 2021
On Saturday July 11, 2020, at approximately 1:00 a.m. Mill Creek Metro Parks Police Department Officer Ashley Kitchen observed a male later identified as Mr. Jermain Bunn. Mr. Bunn was driving a yellow motorcycle in Youngstown, Ohio on Glenwood Avenue … but not for long.
Mr. Bunn completed two U-turns. After the second U-turn Officer Kitchen began following Mr. Bunn, but she did not activate her overhead lights. Officer Kitchen described Mr. Bunn’s driving as reckless because he was traveling at a high rate of speed and “circling.” Officer Kitchen lost sight of Mr. Bunn. When she finally reached him, he was picking up his motorcycle on the southbound side of the road near the entrance to Volney Rogers Park. Officer Kitchen noticed one tire skid mark in the grass; there was damage to the motorcycle and the officer did not know if it was drivable. It was at this point Officer Kitchen activated her lights. Officer Kitchen stated Mr. Bunn was nervous, fidgety, and sweating profusely. Upon questioning, he told her someone threw something at him. This mysterious unknown object thrower was never identified. Officer Kitchen testified that she believed, given the road conditions, his rate of speed, and what she observed when she reached Mr. Bunn on his bum, that he wrecked the motorcycle.
Officer Kitchen observed Mr. Bunn on his bum on Glennwood Avenue in Youngstown, Ohio. What occurred in the next few minutes would lead to Mr. Bunn being charged with felonies and this appeal.
Officer William Aaron, also an officer from Mill Creek Metro Police Department, assisted when he heard on his radio there was a man in distress. Officer Aaron exited his vehicle to talk to Mr. Bunn. He described Mr. Bunn as pacing and reaching into his pockets despite Officer Aaron’s instructions to Mr. Bunn to not reach into his pockets. What the officers did not know in that moment is that Mr. Bunn’s 9 mm Glock fell off his person when he wrecked, and he was trying to find his firearm during his repeated self-search.
Mr. Bunn lost his Glock 43X when he wrecked his yellow motorcycle and ended up on his bum on Glennwood Avenue. This picture is not the actual firearm Mr. Bunn possessed but a photograph of the same type of handgun.
When Mr. Bunn failed to abide by the instructions, Officer Aaron informed Mr. Bunn that he would be patted down; Officer Aaron testified this was done for officer safety. Officer Aaron placed Mr. Bunn against the vehicle to pat him down. In Mr. Bunn’s right-hand pocket, Officer Aaron felt a long object that could be a weapon. Mr. Bunn resisted the pat down by physically trying to pull Officer Aaron’s hands out of his pocket. This resulted in Officer Aaron taking Mr. Bunn to the ground, placing him under arrest, and performing a search incident to an arrest.
The search yielded a gun magazine, marijuana, and cocaine. In Mr. Bunn’s right-hand pocket a gun magazine containing nineteen rounds was discovered. In his left-hand pocket cocaine and marijuana were recovered. The area surrounding Mr. Bunn was searched and a Glock 43X with one round in the chamber and ten rounds in the magazine was found. Evidently when Mr. Bunn dumped his yellow motorcycle, he did not have the Glock in a holster. The Glock magazine found on Mr. Bunn person matched the Glock 43X firearm found near Mr. Bunn and his motorcycle.
Mr. Bunn was cited for possession, obstructing official business, turning in a roadway, resisting arrest, operating a motorcycle without a valid license, and expired stickers. At the preliminary hearing, following the testimony of Officer Kitchen, Mr. Bunn waived the remainder of the hearing; evidently both the facts and the law inhibited the furtherance of the hearing and he was bummed.
For the events that occurred on July 11, 2020, the Mahoning County Grand Jury indicted Mr. Bunn for having weapons while under disability in violation of R.C. 2923.13(A)(1)(3)(B), a third-degree felony; possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(b), a fourth-degree felony; and obstructing official business in violation of R.C. 2921.31(A)(B), a fifth-degree felony. 8/13/20 Indictment.
Mr. Bunn filed a motion to suppress arguing there was no reasonable articulable suspicion for the pat down. Mr. Bunn referred to the preliminary hearing transcript where Officer Kitchen indicated the U-turns were illegal but could not cite in accordance with a statute or ordinance supporting that contention. He argued the entire basis for Officer
Kitchen following Mr. Bunn and detaining him was predicated on her incorrect belief he committed an “illegal U-turn.” The state responded asserting there were multiple traffic violations and an apparent accident which was evidenced by Mr. Bunn picking up his motorcycle when Officer Kitchen caught up to Mr. Bunn. It contended Officer Kitchen did not initiate a traffic stop for the multiple violations, but rather was conducting an accident investigation. It also asserted the search was incident to a lawful arrest.
The trial court denied the motion following the suppression hearing. Thereafter, Mr. Bunn entered a no contest plea to having weapons while under disability in violation of R.C. 2923.12(A)(1)(3)(B) and possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(b). 1/7/21 Plea. The state dismissed the obstructing official business charge. The trial court accepted the plea and sentenced Mr. Bunn to eighteen months on each charge and ordered the sentences to be served concurrent to each other, but consecutive to unrelated sentence of twelve months for a separate having weapon while under disability charge. Evidently Mr. Bunn cannot keep his own bum out of trouble as he has failed repeatedly at carrying a concealed weapon without law enforcement discovering the firearm.
Mr. Bunn appealed to the Seventh District Appellate Court and it held “Under the totality of circumstances, the officers were justified in the search and subsequent arrest of Defendant.”. Consequently, Mr. Bunn was bummed.
Information for this article was obtained from State v. Bunn, 2021 – Ohio – 3636.
Mr. Bunn’s Ohio Department of Correction and Rehabilitation weblink:
https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A701745
This case was issued by the Seventh District Appellate Court and is binding in Ohio’s Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble Counties.
Lessons Learned:
- Officer Aaron testified that he patted down Mr. Bunn for officer safety. Keep in mind that Officer Aaron had specific, articulable, indicators to believe that Mr. Bunn was presently armed and dangerous. The basis of the officer’s pat down was not singularly officer safety. Bunn kept reaching in his pocket, did not comply with orders to stop pacing and repeatedly did a self-search. Only later would Officer Aaron and Officer Kitchen realize that Mr. Bunn had lost his Glock when he ended up on his bun. For more information on this important nuance see Is There a Pat Down for Officer Safety?.
- Officer Aaron placed Mr. Bunn against the cruiser for a pat down. When patting down suspects officers should not place suspects against the cruiser, push bumpers, walls or other stationary objects. Rather the suspects hands should be placed behind their torso, feet spread apart, and the suspect leaned back to place him off balance before beginning a systematic two-thirds pat down. There is no guarantee that this type of pat down would have prevented a violent encounter as occurred here with Mr. Bunn. However, this latter type of pat down places the officer in a superior tactical position.
- Both Officer Aaron and Officer Kitchen should be commended for recognizing that Mr. Bunn exhibited behaviors of someone who was making a feeble effort to conceal felonies. Bunn had a Glock with a total of twenty-nine rounds ready at hand but could not find it as it went flying when he wrecked on his bum. Fortunately the officers found the gun and the Seventh District Appellate Court held that the officers’ actions were objectively reasonable. Thanks to the actions of Officer Aaron and Officer Kitchen they made their community safer on July 11, 2020.
Does your agency train on Pat Downs?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!