Yes!
[W]e find that the sergeant had reasonable articulable suspicion to perform a Terry stop of Walton.
State v. Walton
2021 – Ohio – 3958
Twelfth District Appellate Court
Butler County, Ohio
November 8, 2021
On an unknown date, Hamilton, Ohio Police received a call that an armed robbery occurred behind the U.S. Market, 100 Pershing Avenue, Hamilton, Ohio. The information obtained by police indicated that the robbery involved a firearm and was perpetrated by five teenage black males.
An armed robbery occurred behind the U.S. Market, 100 Pershing Avenue in Hamilton, Ohio. A subsequent investigative detention of Mr. Walton would lead to his arrest, conviction and appeal.
A police sergeant was patrolling the area nearby with his partner and responded to the U.S. Market location within one to two minutes after receiving the dispatch. The sergeant and his partner began to search for the suspects.
Approximately thirty seconds after arriving at the U.S. Market, and one block awayfrom the market itself, the officers observed two black males walking. One of the males, later identified as Mr. Marcquan Walton, looked like a teenager. The sergeant asked Mr. Walton to raise his hands and then approached him. The sergeant asked Mr. Walton whether he had weapons or illegal items on his person, and Mr. Walton replied that he had marijuana in his pocket. Mr. Walton then reached for his right pocket, and the sergeant reminded him to keep his hands in the air. Even then, Mr. Walton reached again toward his right pocket. Mr. Walton’s repeated behavior of reaching towards his right pocket would be critical to his appeal.
The sergeant and his partner performed a pat down of Mr. Walton and located marijuana, fentanyl, a digital scale, as well as approximately $2,300 in cash. Mr. Walton was indicted for trafficking and possession of a fentanyl-related compound, as well as possession of drug paraphernalia.
Mr. Walton filed a motion to suppress, arguing that the police lacked reasonable articulable suspicion to stop him and that police lacked legal grounds to search his person. The trial court denied the motion, and Mr. Walton pled no contest to the charges. The trial court found Mr. Walton guilty, and sentenced Walton to community control. Mr. Walton appealed the trial court’s denial of his motion to suppress.
Analysis
At the time law enforcement encountered Mr. Walton, they had just received notice that a robbery occurred at the U.S. Market location and that such robbery involved a firearm. The officers encountered Mr. Walton within thirty seconds of arriving on the scene and only one block away from the reported location of the robbery.
The officers were also told that a firearm was used in the commission of the robbery, which gave the sergeant reason to be on alert for weapons. The sergeant had been told that multiple black teenagers were the perpetrators of the crime, and Mr. Walton matched the description of the suspects. While Mr. Walton was not accompanied by exactly four others at the time the sergeant observed him, the sergeant testified that he was not necessarily looking for a group of five because the perpetrators would “spread” after commission of the crime and “they usually don’t stay together if it happens.”.
Based on the officers’ understanding of the reported crime, the short response time, Mr. Walton’s matching the description of the purported assailants, Mr. Walton’s admission of having marijuana on his person, as well as Mr. Walton’s behavior of continually reaching toward his pocket, we find that the officers had sufficient reasonable suspicion to conduct a pat down of Mr. Walton in order to complete an investigative stop pursuant to Terry.
Holding
The Twelfth District Appellate Court held “[W]e find that the sergeant had reasonable articulable suspicion to perform a Terry stop of Walton so that the trial court properly denied the motion to suppress.”.
Information for this article was obtained from State v. Walton, 2021 – Ohio – 3958.
This case was issued by the Twelfth District Appellate Court and is binding in the following Ohio Counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.
Lessons Learned:
- The unnamed Hamilton, Ohio sergeant did well to articulate that he arrived within thirty seconds of the dispatch and observed Mr. Walton walking in the vicinity of the armed robbery. Once Mr. Walton was detained, he repeatedly kept reaching for his right pocket. This is significant for two primary reasons. Suspects will often repeatedly tap or feel firearms that is concealed on their person. As a new officer when carrying off duty I did the same. Most people who carry a concealed firearm will often touch the weapon. The sergeant recognized this behavior and Mr. Walton’s repeated right pocket tapping provided the reasonableness to conduct a pat down. The second factor is that suspects will repeatedly touch an area, either on his body, in a vehicle or other location within his reach that conceals contraband. My experience is that if contraband is concealed under a driver’s seat or in the center console, suspects will keep reaching for that area. I believe it is based on a guilty mind but that is beyond my area of expertise, other than I have observed hundreds of times.
- Neither the court nor defense counsel made issue of the limited time of thirty seconds. However, is that enough time to determine reasonable suspicion? Here, the short time of thirty seconds worked in favor of the sergeant. In other cases, a limited amount of time has been challenged as too abrupt. For more information on determining reasonable suspicion in a limited amount of time see Was 60 Seconds Enough Time to Establish Reasonable Suspicion?.
- The court did not address the pat down itself, which raises more critical questions than does the detainment or rationale for the pat down. Under Terry v. Ohio, 392 U.S. 1 (1968) law enforcement can complete a pat down for weapons. Here the sergeant retrieved marijuana, fentanyl, cash and a digital scale. What during the pat down may have been a weapon that would have permitted the sergeant to reach in Mr. Walton’s pocket? My assumption is the digital scale, but it is only an assumption. However, the court did not analyze this critical part of the case. I advocate that law enforcement not rely on the Plain Feel Doctrine. For more information see What do Breast Implants and the Plain Feel Doctrine have in Common?.
- The sergeant and his unnamed partner did exceptional work in this case. They should be commended for their quick response and recognizing that the males walking in the proximity of the U.S. Market were walking reasonable suspicion.
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