[W]e hold that under the totality of the circumstances, the police officers did not have a reasonable and articulable suspicion that Mr. Henson was armed and dangerous, and that those circumstances would not cause a reasonable officer to conclude that his safety was in danger sufficient to justify a pat-down search.
State v. Henson
2022 – Ohio – 1571
First District Appellate Court
Hamilton County, Ohio
May 11, 2022
On Sunday October 25, 2020, at 10:13 p.m., Cincinnati police officers were dispatched to the Westwood area of Cincinnati on a report from the Shot Spotter Alert System of shots fired. Shot Spotter is a system of sensors placed throughout the city that can register the sound of gunfire and distinguish it from other sounds such as fireworks. A live dispatcher for Shot Spotter receives the alert and determines whether the sound was in fact gunfire and if there were multiple gunshots. The system then triangulates the location of the sound to provide a radius on a map as to where the shots came from, and the dispatcher relays that information to the police.
The Shot Spotter dispatch directed the police to 2528 to 2568 Hansford Place, a residential dead-end street. Within five minutes, a plain-clothes officer arrived at the scene. He said that he observed a man alone in the street.
Officer Jason Wallace, who was assigned to the Gun Crimes Task Force, was patrolling in Westwood, which was an area well known for gun activity. He received the dispatch about shots fired. The plain-clothes officer on the scene notified him that there was a man alone at the scene. Officer Wallace arrived about three minutes after the plain-clothes officer.
He saw a man later identified as Mr. Montez Henson “halfway in the back of his vehicle.” Even though the plain-clothes officer stated that Mr. Henson was alone, video from Officer Wallace’s body camera showed that he was placing three young children in the rear seat of his vehicle when he arrived. Officer Wallace and his partner approached Mr. Henson and asked if he had heard any gunfire. Mr. Henson replied that he had not.
Officer Wallace testified that it was rainy and dark. When he told Mr. Henson that he was going to pat him down for weapons, Mr. Henson became “very agitated,” and “kind of turned his body away” from the officer. In law enforcement parlance this behavior is called blading. Mr. Henson became agitated because he was committing a felony in the presence of a police officer. Officer Wallace told Mr. Henson that he was going to pat him down for weapons because there were shots fired in the area, and he wanted to make sure Mr. Henson was not armed. Officer Wallace found a loaded handgun in Mr. Henson’s waistband. He then placed Mr. Henson under arrest. Methamphetamine and cocaine were found on his person.
Mr. Henson was indicated for aggravated trafficking in drugs, aggravated possession of drugs, trafficking in cocaine, possession of cocaine, carrying concealed weapons, and having a weapon while under a disability. He filed a motion to suppress all evidence recovered from the warrantless seizure and search of his person. The trial court agreed that there was an unconstitutional seizure and granted the motion to suppress.
The State of Ohio appealed the Motion to Suppress and the First District Appellate Court upheld the suppression of the firearm, methamphetamine and cocaine.
Immediately after encountering Mr. Henson, the police officers patted him down for weapons. At that time, there was a seizure within the meaning of the Fourth Amendment. Whether a seizure has occurred is a question of fact to be determined from the totality of the circumstances. Michigan v. Chestnut, 486 U.S. 567, 573 (1988).
The First District Appellate Court quoted the Supreme Court of Ohio from a 2019 case that best describes the difficulty of law enforcement … “Reasonable suspicion is an “elusive concept,” and “[p]recisely defining reasonable suspicion is not possible.” It is not readily reduced to a “neat set of legal rules.” State v. Hawkins, 158 Ohio St.3d 94 (2019).
In this case, the stop and the pat-down search occurred simultaneously as the officers had to detain Mr. Henson to conduct the pat-down search. Viewing the totality of the circumstances, we hold that the police officers did not have a reasonable and articulable suspicion to cause a reasonable officer to conclude that Mr. Henson was armed and dangerous and that the officers’ safety was in danger.
The First District Appellate Court relied heavily on State v. Hairston, 156 Ohio St.3d 363 (2019) for contrast to the detention and pat down of Mr. Henson. For more on Hairston see Was 60 Seconds Enough Time to Establish Reasonable Suspicion?.
This case is distinguishable in some important ways. First, Officer Wallace did not personally hear the gunshots. In discussing the facts in Hairston, the Supreme Court noted, “This is not a case in which the officers relied on a radio dispatch or other secondhand information about shots being fired … but one in which they heard and immediately reacted to the sound of nearby gunfire.” The officers in Hairston said the gunfire “appeared to be close.”. Further, in Hairston, the officers knew exactly where the gunshots had come from, which was a local elementary school. In the present case, the officers did not know exactly where the gunshot had occurred but only that it occurred in a certain radius. The record contains no testimony as to the size of the radius.
That the officers were in a high-crime area is relevant. The Supreme Court of Ohio has stated that an officer’s experience with criminal activity and an area’s reputation for criminal activity are relevant factors in the reasonable-suspicion analysis … But “an individual’s presence in a high-crime or high-drug area, by itself, is insufficient to justify the stop and frisk of a person.”. In re J.C. 2019-Ohio-4815.
Immediately after encountering Mr. Henson, the police officers patted him down for weapons. At that time, there was a seizure within the meaning of the Fourth Amendment.
“In this case, the stop and the pat-down search occurred simultaneously as the officers had to detain Henson to conduct the pat-down search. Viewing the totality of the circumstances, we hold that the police officers did not have a reasonable and articulable suspicion to cause a reasonable officer to conclude that Henson was armed and dangerous and that the officers’ safety was in danger.
In sum, we hold that under the totality of the circumstances, the police officers did not have a reasonable and articulable suspicion that Mr. Henson was armed and dangerous, and that those circumstances would not cause a reasonable officer to conclude that his safety was in danger sufficient to justify a pat-down search. Consequently, the trial court did not err in granting Mr. Henson’s motion to suppress. We overrule the state’s sole assignment of error and affirm the trial court’s judgment.”.
Dissenting Judge Analysis
This case was heard by three appellate court judges. The decision resulted in a two to one split. The following excerpted analysis was provided by Judge Robert Winkler who is clearly a wise and reasonable jurist.
Because I would hold that the police officers had an objectively reasonable suspicion that Mr. Henson might have been involved in criminal activity and armed and dangerous sufficient to justify the stop and the pat-down search, I respectfully dissent from the majority opinion.
It was dark and raining when the officers arrived at the scene. When Officer Wallace told Mr. Henson that he wanted to conduct a pat-down search, Mr. Henson became agitated and turned his body away. Nervousness during interactions with the police is a factor to be weighed in determining whether reasonable suspicion exists. State v. Fisher, 2011-Ohio-2488.
Even if none of the factors relied upon by the state were sufficient in and of themselves to create a reasonable suspicion that Henson was involved in criminal activity and that he was armed and dangerous, the totality of those factors, considered through the eyes of a reasonable police officer, arose to that level.
Information for this case was obtained from State v. Henson, 2022 – Ohio – 1571.
This case was issued by the First District Appellate Court and is only binding in Hamilton County, Ohio.
- The decision to stop and frisk Mr. Henson was a close call for the officers and the courts. In this case, two of three judges determined that the stop was unreasonable. However, neither of the two judges, who found the detention to be unlawful were on Hansford Place shouting out instructions to Officer Wallace. Nonetheless, what can be learned? The Shot Spotter alert is great tool to assist law enforcement and the community to remain safe, assist victims and capture criminals. However, as I previously opined previously; “A Shot Spotter alert in and of itself cannot be used to justify an investigative detention of a suspect. There must be more than just the alert.”. See Did the Shot Spotter Alert Provide Enough Reasonable Suspicion to Detain Chris?. In this case the majority determined that the Shot Spotter Alert in a high crime area, a five-minute time gap, the suspect blading his body while agitated did not rise to the level of Reasonable Suspicion. The majority provided a legal contrast to its own analysis when it quoted a 2019 Supreme Court of Ohio case “Reasonable suspicion is an “elusive concept,” and “[p]recisely defining reasonable suspicion is not possible.” It is not readily reduced to a “neat set of legal rules.” State v. Hawkins, 158 Ohio St.3d 94 (2019). These quotes refuting any specificity describing Reasonable Suspicion is what makes law enforcement THE hardest job in America.
- To improve future responses to Shot Spotter alerts and related calls for service of shots fired, law enforcement must establish individualized Reasonable Suspicion, rather than just mere presence in the area of an alert or a dispatched call. In another case, State v. Mosby, the Sixth District Appellate Court provided language underscoring individualized Reasonable Suspicion as officers detained twenty-five people in a parking lot that was in a high crime gang-infested area and determined that law enforcement cannot detain twenty-five people all at once without identifying individualized Reasonable Suspicion. That court held “While we acknowledge that the area in which the stop in this case occurred was in a high crime area, this fact does not eclipse the need for a particularized suspicion in order to justify a Terry stop. Otherwise, officers patrolling in high crime areas would be given cart blanche to stop an individual simply because the individual is found in an area associated with crime. This would encourage the arbitrary exercise of law enforcement power, and usher in something akin to a “Fourth-Amendment-free-zones” in certain locations. We recognize that the high crime nature of an area is a factor to be considered in evaluating a stop under Terry, but we reject the state’s attempt to make high crime, standing alone, a sufficient factor to support a Terry stop.” State v. Mosby, 2021 – Ohio – 2255. See Can Law Enforcement Detain Twenty-Five People All at Once in a Very High Crime Gang-Infested Parking Lot?. In this case the responding officers could have asked Mr. Henson some questions prior to immediately patting him down. The answers, non-answers, body blading and potentially a pat of the firearm by Mr. Henson himself, could have included more factors that would have provided enough Reasonable Suspicion to push the case in a positive outcome. For more on a suspect patting himself down see What Does it Mean When a Suspect Pats Himself Down?.
- In the Paragraph 31, the court opines “Here, there were no reports of gunfire from the residents of the area, and no description of a person of interest.”. This provides insight into the daily rhythms of high crime neighborhoods. Many times, as demonstrated by the Shot Spotter Alert System, nefarious predators will fire guns and citizens have become so anesthetized to those shots that they are not reported.
- Both the unnamed Cincinnati Police plain clothes officer and Officer Wallace had a gut feeling that Mr. Henson was presently armed and dangerous … AND the officers were correct! This fact should not be missed as the legal analysis takes center stage in the days, weeks and months that have followed. For more on law enforcements response to his own gut feeling see Officer Williams’ Gut Feeling was Scientifically Accurate But Was it Legally Justified?. If this same incident in Cincinnati would take place after June 13, 2022 Mr. Henson, even with Reasonable Suspicion that he was armed, would not be unlawful. After June 13th, if a person is a qualified adult, over twenty-one years old and is not prohibited by other requirements, then he would be permitted to carry a concealed handgun. For more on the Constitutional Carry see Governor Mike DeWine and the 134 General Assembly Felon Protection Act.
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!