In view of all the circumstances, a reasonable person in Jones’ position would have believed that he was not free to leave the scene.
State v. Jones
2021 – Ohio – 149
Second District Appellate Court
Montgomery County, Ohio
January 21, 2022
On Sunday February 21, 2021 Dayton Police officers were on patrol when they pulled into the Whitney Young Apartments off of Germantown Pike, Dayton, Ohio.
Mr. Jones was parked in the Whitney Young Apartment Complex on Germantown Pike, when officers approached his car they smelled freshly burnt marijuana.
Upon entering the parking lot, Officer #1 observed a vehicle parked, engine running. The vehicle had backed into the parking space. Officer #1 decided to investigate. Officer #1 and Officer #2 observed two persons in the running vehicle. Neither officer observed any criminal or suspicious conduct from the vehicle or its occupants. The driver of the vehicle was a male later identified as Mr. Aaron Jones.
As the officers approached the vehicle in their cruiser, they shined a spotlight onto the vehicle. Officer #1 parked his vehicle directly in front of the vehicle, albeit possible for Mr. Jones to drive by the marked DPD cruiser. The positioning of the cruiser in relation to Mr. Jones’ vehicle is at the center of this appeal.
Both officers approached the vehicle on foot with flashlights. Officer #1 smelled burnt marijuana and a search of the vehicle followed. Though the case is silent on the search, there must have been some additional contraband discovered. The court reviewed the cruiser video, State’s Exhibit One, which revealed that the cruiser was parked to block the forward path of the Mr. Jones’ vehicle; the cruiser headlights were on and, a spotlight was used initially to focus on Mr. Jones’ vehicle.
Mr. Jones was criminally charged and filed a Motion to Suppress in the trial court which granted his motion and suppressed the evidence.
The trial court recognized that the issue before it was “whether a seizure of the Defendant occurred upon the initial encounter between the police and the Defendant.” Noting that a “show of authority” by law enforcement constitutes a seizure, the trial court reasoned: In the case at bar, when the police pulled into the parking lot, shined a spotlight on the vehicle containing the Defendant and then pulled directly in front of the Defendant’s vehicle, a seizure occurred as a reasonable person would not have felt free to leave. As stated in [State v. Inabnitt, 76 Ohio App.3d 586, 602 N.E.2d 740 (2d Dist.)], a show of authority, even if extremely slight, constitutes a seizure within the meaning of the Fourth Amendment. The police in this case had no basis to seize, [or] stop the vehicle in which the Defendant was the driver. Accordingly, the Defendant’s Motion to Suppress is granted and any and all evidence attained after the illegal initial seizure is SUPPRESSED.
Thereafter the prosecutors filed an appeal in the Second District Appellate Court which upheld the suppression of evidence. Here are the prosecutor’s key arguments for admitting the evidence.
The State argued that the trial court ignored other factors typically indicative of a seizure that were non-existent here:
(1) Officer Lane spoke to Jones in a calm, conversational tone and said nothing about being required to produce identification until after observing illegal window tint;
(2) Only two officers were involved and neither displayed weapons or made physical contact with Jones or his passenger until after developing probable cause for citable offenses; and
(3) The encounter occurred in a public place, a parking lot outside of Jones’ residence.
For the foregoing reasons, the State contends the encounter between the officers and Jones was consensual and that the trial court erred in finding a show of authority establishing a Fourth-Amendment seizure.
The Second District Court analyzed the prosecution’s arguments in the following manner:
The trial court here recognized that it was “possible for Defendant to drive by the marked DPD cruiser.” The trial court also noted, however, that “Officer [#1] parked his vehicle directly in front of the Defendant’s vehicle,” which was backed into a parking space. Based on our review of the cruiser-cam video, we agree with the trial court’s determination that the positioning of the cruiser at an angle in front of Jones’ vehicle would have caused a reasonable person in Jones’ position to believe that he was not free to leave. The location of the cruiser would have made it difficult for him exit the parking lot, even if he may have been able to navigate around the cruiser by turning sharply. In our view, a person in Jones’ position reasonably would have perceived the positioning of the cruiser as an indication that Jones was not free to drive away. This is particularly true given that the two officers immediately exited the cruiser and started to approach both sides of Jones’ car on foot.
The Second District Appellate Court held “In view of all the circumstances, a reasonable person in Jones’ position would have believed that he was not free to leave the scene. Accordingly, we agree with the trial court’s finding of an unlawful seizure and its decision to suppress the evidence subsequently obtained. The assignment of error is overruled.”.
- At the moment a law enforcement officer encounters a person the officer must determine from the outset if it is a consensual encounter or an investigative detention. If the encounter is consensual the person is always free to leave without talking to the officer. When an officer simply approaches a person seated in a parked vehicle the encounter will be consensual. The encounter can be an investigative detention and hence a seizure under the Fourth Amendment if the person is objectively determined not free to leave.
- In this incident, Officer #1 blocked Mr. Jones with his cruiser. The court did recognize that the officer did leave enough room for Mr. Jones to maneuver around the cruiser but based on the totality of the circumstances Mr. Jones was seized at the moment the officer placed his car into park.
- The smell of burnt or raw ‘marijuana’ may not establish probable cause to search. In July 2019 the state legislature legalized hemp – Senate Bill 57. Hemp and marijuana both burnt and raw have the same or similar smell. Law enforcement must establish that the smell is marijuana and not hemp. The new hemp law does not completely eviscerate the still valid marijuana laws but does provide yet another challenge for law enforcement to establish probable cause.
- I have classes on both investigative detention and marijuana laws if your team could benefit. Please contact me at firstname.lastname@example.org to schedule a class.
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