Mr. Rogers acknowledges that a bulge in a suspect’s clothing is a fact that can lead to reasonable suspicion to support an investigative stop for weapons when an officer observes additional facts.
State v. Rogers
2022 – Ohio – 4535
First District Appellate Court
December 16, 2022
Mr. Robert Rogers’s weapons charges arose from his encounter with several law enforcement officers on October 9, 2020. The record demonstrates that members of the Cincinnati Police Department’s Gun Crime Task Force (“Task Force”), comprised of plain-clothed and uniformed officers, along with special agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), were focused on a gathering of approximately 40 people on Irving Street in what appeared to be a block party in the area around the Colonial Village Apartments. As explained by Lieutenant David Schofield and Officer C, the only witnesses at the suppression hearing, the area was considered a “high crime area” and targeted by the Task Force due to “unusually high numbers of violent crim[inal] activities, shootings, gun runs, [and] shots fired.” Additionally, the Task Force had received “multiple requests from the community [in general], and from the neighborhood liaison unit that works closely with the community in [the police district], to give that specific location attention.”
This incident occurred in the Colonial Village Apartments, that is located in Cincinatti, Ohio just off of Vine Street, north of Downtown.
Beginning at dusk, Lieutenant Schofield in plainclothes conducted surveillance of the gathering using binoculars from a covert vehicle parked on the east side of the street. Within minutes of his arrival on Irving Street, Lieutenant Schofield observed “at least two people who were openly carrying firearms” at the gathering. Thereafter, he saw Mr. Rogers “arrive in a dark-colored Lincoln MKZ,” eventually parking on the opposite side of the street “approximately 60 yards away” with the Lincoln “facing” towards the plainclothes officer.
Next, Lieutenant Schofield saw Mr. Rogers exit from the driver’s side of the vehicle and “step towards where the group was gathered,” “hesitate for a second,” and “step back.” After Mr. Rogers pivoted back to the vehicle, Lieutenant Schofield saw Mr. Rogers “[R]each into the passenger’s compartment of the vehicle, and then move his right hand toward his abdominal area, and appear … to be placing an item in his waistband area.”
The driver’s side door obscured Lieutenant Schofield’s view of Mr. Rogers’s waist area during those movements, but when Mr. Rogers closed the door and headed to the gathering, Lieutenant Schofield saw a “suspicious bulge” in the front center location of Mr. Rogers’s waist area.
Suspecting that Mr. Rogers had unlawfully concealed an “unholstered” firearm in his waistband, Lieutenant Schofield relayed this concern through the covert radio channel to the other Task Force officers in the area. He also relayed his observations with respect to the individuals he had seen openly carrying firearms.
While Mr. Rogers was at the gathering, Lieutenant Schofield continued surveillance on him and did not see any action indicating that Mr. Rogers had discarded the object in his waistband. After a few minutes, Mr. Rogers returned to his vehicle and drove away. At least one individual seen openly carrying firearms left as well in a white Chevy Impala. A Task Force officer in an unmarked police car followed the vehicles until uniformed Task Force officers using stop sticks effectuated an investigative stop of the vehicles based on the information from Lieutenant Schofield.
Once Mr. Rogers stopped, Officer C, wearing a body camera, approached Mr. Rogers’s vehicle with his gun drawn and instructed Mr. Rogers to show the officers his hands. Mr. Rogers, who was surrounded by an ATF agent and several police officers, complied with that request, and identified himself. When asked, Mr. Rogers denied having a weapon and did not mention anything about a concealed-carry permit. A search of Mr. Rogers’s information into a police data base revealed no warrants or a concealed-carry permit.
During the stop, Mr. Rogers told the officers he was “scared” and that he just wanted to go home. Officer C told Mr. Rogers that they were concerned about firearms in the area and that if Mr. Rogers did not have a firearm he could leave. When an ATF agent asked Mr. Rogers if he had a firearm, Mr. Rogers replied that he had been in an “[A]rea where a lot of stuff was going on” and it “gets crazy” so he left. In response to Mr. Rogers’s request to go home, Officer C told Mr. Rogers three times that he could go home if he would agree to voluntarily exit from the vehicle and consent to a check for weapons on his person and the “immediate area” inside the vehicle. Mr. Rogers repeatedly refused, again indicating that he was “scared” and “didn’t know what was going on,” and pointing out to the officers that there were no firearms visible in his vehicle. Officer C told Mr. Rogers that, if he did not give consent, then they would “get into the car with a canine sniff,” and which way they proceeded “was up to Mr. Rogers.” Mr. Rogers maintained his position.
About eight-and-one-half minutes into the stop, when a canine officer arrived, Officer C ordered Mr. Rogers out of the vehicle for the canine sniff. After Mr. Rogers exited, Officer C placed him in handcuffs and patted him down as a canine officer spoke to Mr. Rogers about the canine’s ability to alert on certain drugs. Officer C found no weapon but continued his conversation with Mr. Rogers about the firearm investigation. Around 11-and-one-half minutes into the stop, when Officer C was called away to another investigation, the canine alerted on the outside of the vehicle and an officer other than Officer C then searched the glove box and found the firearm that resulted in the charges against Mr. Rogers. The officers did not find any drugs inside the vehicle.
Officer C testified that the circumstances warranted an investigative stop and a protective search for weapons, and that his investigative approach was tailored to “deescalate” the situation which involved a “very nervous” individual suspected of having a firearm. Officer C’s body-worn camera recording of the stop was admitted into evidence at the suppression hearing and confirms that Mr. Rogers was “very nervous” during the stop.
Mr. Rogers sought exclusion of the firearm on the ground that the stop of his vehicle and the search of his glove box were conducted in violation of his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 10 of the Ohio Constitution. The state at the suppression hearing did not offer probable cause from the canine alert as the justification for the warrantless search.
Instead, the state asserted that the stop and search were lawful because the Task Force had reasonable suspicion to stop Mr. Rogers for illegally carrying a firearm and to perform a protective search during that investigative stop.
At the conclusion of the hearing, Mr. Rogers conceded that if the Task Force officers had reasonable suspicion that he had concealed a firearm then, consistent with Terry v. Ohio, 392 U.S. 1, (1968), the Task Force officers could have effectuated an investigative stop and performed a protective search for weapons during a brief detention. He argued, however, that the officers knew they lacked reasonable suspicion to believe he was armed and that was why they sought consent and brought over a canine for a search, thereby engaging in an illegal “fishing expedition.”
The trial court did not question the witnesses’ credibility and adopted historical facts that mirrored Lieutenant Schofield’s and Officer C’s testimony. Concluding that the Task Force officers had reasonable suspicion to perform a Terry investigative stop to determine whether Mr. Rogers was illegally armed, the “temporary nature of the detention satisfied the ultimate test of reasonableness,” and the protective sweep of the vehicle occurring during the “brief inquiry” was lawful, the trial court denied the motion to suppress.
Mr. Rogers now appeals, advancing three assignments of error all challenging the denial of his motion to suppress.
Reasonable Suspicion to Stop
In this case, considering the totality of the circumstances, we agree with the trial court that the initial stop fell within the parameters of a lawful Terry stop based on a suspicion of criminal activity. The cumulative observations of Lieutenant Schofield constituted an objectively reasonable basis for the fellow Task Force officers to temporarily detain Mr. Rogers to determine if criminal activity was afoot, i.e., whether he had brought a concealed firearm to the street gathering. See In re M.P., 1st Dist. Hamilton Nos. C-130663 and C-130741, 2014-Ohio-2846, ¶ 10 (Under the “fellow officer’s rule,” a police officer’s reasonable, articulable suspicion can be transferred to another officer.).
Initially, Lieutenant Schofield explained that the area in which the surveillance occurred was a high-crime area, relaying with detail that the area was currently plagued by firearm crimes. He further testified that he had observed at least two people openly carrying firearms at the gathering, and he described the time of day as dusk, which is a time of day when weapons could easily be hidden. He also asserted that he had about 15 years of experience as a police officer and numerous years in the surveillance of drug and weapon activity, experience that included extensive training in firearm use and identification as well has “hundreds” of firearm investigations, seizures, and arrests.
Relatedly, Lieutenant Schofield testified to his knowledge of how firearms are carried and concealed by individuals. Finally, he testified to his observation that Mr. Rogers pivoted from his path to the gathering where others were openly carrying firearms, reached back into his vehicle to grab something from the passenger compartment, put something in his waistband, and then appeared with a “suspicious bulge” in the center of his waistband.
At the suppression hearing, Lieutenant Schofield physically demonstrated the location of the bulge and explained that the location was where one would likely stash a firearm because it provided the necessary stability to secure a firearm. He additionally explained that it was not a likely place to stash other items such as a cellphone. Finally, Lieutenant Schofield testified that he continued to surveil Mr. Rogers and that at no point before leaving did Mr. Rogers appear to discard what Lieutenant Schofield believed was a firearm.
Mr. Rogers acknowledges that a bulge in a suspect’s clothing is a fact that can lead to reasonable suspicion to support an investigative stop for weapons when an officer observes additional facts.
Mr. Rogers argues, however, that it was not reasonable for Lieutenant Schofield to infer the bulge was a firearm without any distinctive behavior present in other cases. See State v. Phillips, 155 Ohio App.3d 149, 2003-Ohio-5742, 799 N.E.2d 653, ¶ 32 (2d Dist.). In Phillips, the court held that “[b]ulging pockets don’t connote crime or weapons when they have no specific nexus to criminal activity.” Like in Phillips, Mr. Rogers contends the bulge observed by Lieutenant Schofield was more likely something innocent, as Mr. Rogers was simply observed attending a block party with families. The facts in this case are distinguishable from Phillips, where the bulge was in a pocket.
Here, the bulge was observed in the front center portion of Mr. Rogers’s waistband. Lt. Schofield relayed that in his experience the front central area of the waistband, effective in keeping an unholstered firearm concealed but steady, is the likely area to conceal an unholstered firearm but not a cellphone or radio.
Importantly, Lieutenant Schofield linked the suspicious bulge to the other observed facts that created the totality of circumstances upon which the propriety of the stop must be considered. This included that he had seen two individuals openly carrying weapons at the gathering. Further, he saw Mr. Rogers obtain the object creating the bulge by pivoting away from the direction of the party and reaching into the passenger side of his vehicle from the driver’s side door. And Mr. Rogers’s actions occurred in an area notorious at that time for firearm crimes.
Mr. Rogers also argues the court should not accord much weight to the fact that the investigation took place in a high-crime area. The Ohio Supreme Court, however, recently reaffirmed that “[A]n officer’s experience with criminal activity in an area and an area’s reputation for criminal activity are factors” that are relevant to the reasonable-suspicion analysis. See Hairston, 2019-Ohio-1622. The law requires consideration of these “contextual factors.” Ultimately, we conclude Mr. Rogers’s assertion that Lt. Schofield needed more information to conclude that the bulge was a firearm is not supported by the case law.
Mr. Rogers additionally argues that even if the officers had reasonable suspicion that he was armed, there was no evidence that he was illegally armed. This argument relates to the possibility that Mr. Rogers had a concealed-carry permit at the time of the stop that would have legalized his behavior if the firearm he was suspected of carrying was a handgun. Mr. Rogers did not raise this argument below and instead conceded that Terry would govern if the officers’ suspicion that he had concealed a firearm was reasonable. Because Mr. Rogers’s current argument is contrary to Mr. Rogers’s position in the trial court, it cannot be raised now.
In summary, we conclude that, considering the totality of the circumstances, the Task Force officers possessed reasonable suspicion of criminal activity related to the illegal possession of a firearm to initiate the investigative stop.
Duration of the Stop
Mr. Rogers argues also that the Task Force officers unlawfully prolonged the investigative stop for the sole purpose of creating probable cause to search his vehicle through a canine sniff. A seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes on interests protected by the Constitution. Rodriguez, 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492; United States v. Jacobsen, 466 U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Mr. Rogers’s argument requires an inquiry that focuses on the scope of the stop, including the duration of the detention.
With respect to investigative stops in general, the scope must be reasonably related to the circumstances that justified the stop in first place, and “the investigative methods employed should be the least intrusive means reasonably available to dispel the officer’s suspicion in a short period of time.” Royer, 460 U.S at 500, 103 S.Ct. 1319, 75 L.Ed.2d 229.
In determining the reasonable duration of stop, we must examine “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” Sharpe, 470 U.S. at 686, 105 S.Ct. 1568, 84 L.Ed.2d 605; Rodriguez at 354. However, “[T]he question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.” Sharpe at 687. This inquiry affords deference to methods selected by trained officers in the field, prohibiting “unrealistic second guessing.” See id. at 686.
Mr. Rogers relies primarily on United States v. Rodriguez 575 U.S. 348 (2015) in support of his argument that the duration of the stop was unreasonable, and therefore, the firearm recovered during that illegal detention should be suppressed. The Rodriguez Court addressed whether the police may delay the duration of an investigative stop for a traffic violation, even for just a small amount of time, to wait for a drug sniffing canine, absent any articulable suspicion to believe that there are drugs in the vehicle. The Court concluded that unless police have “reasonable suspicion” to investigate for drugs, it is an unconstitutional seizure for them to extend a legal traffic stop for the sole purpose of conducting a canine sniff.
This case is distinguishable from Rodriguez, Wood, and Neyhard. Mr. Rogers’s stop was initiated for the investigation of a firearm offense, an inherently dangerous situation, and not a traffic offense. Courts have long recognized that the government’s interest in officer safety is “legitimate and weighty” and that interest justifies certain “negligibly burdensome precautions in order to complete [the] mission safely” that are not justified by “the Government’s endeavor to detect crime in general.” Rodriguez at 356-357.
Officer C testified to his safety concerns and that his approach to delay ordering Mr. Rogers out of the vehicle was to “deescalate” an unsafe situation. Mr. Rogers repeatedly indicated that he did not want to exit from the vehicle and was extremely nervous. The steps Officer C took were designed to “gauge” Mr. Rogers’s “nonverbal clues” to his requests, aiding the officer’s “assess[ment] [of] the situation.” Officer C further articulated at the suppression hearing the risk to officers during a stop “if someone was armed and had a malicious intent.” Ultimately, Officer C wanted to make sure that “everybody went home.”
We have already held that the Task Force officers had reasonable suspicion to make the stop to investigate whether Mr. Rogers unlawfully concealed a weapon. Nothing during the stop dispelled that suspicion. Ultimately, Terry’s test for determining whether a lawful investigative stop is converted into an arrest-like detention is “whether the degree of intrusion into the suspect’s personal security was reasonably related to officers’ suspicions and the surrounding circumstances.” Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622.
Based on Officer C’s testimony, as well as the video recording of the stop, we conclude that Officer C’s concern for safety during the investigation into the weapons offense drove the method of the investigation. Unlike in Rodriguez, the seizure was not prolonged for the sole purpose of a dog sniff, but to ensure the safety of the officers and Mr. Rogers. We conclude the selected method was objectively reasonable and diligent and, though, it resulted in a detention of more than 11 minutes, the Task Force officers did not extend the stop beyond what is lawful under Terry.
In sum, the totality of the circumstances in this case leads us to conclude that the scope and duration of the detention and search of the glove box met the Constitution’s standard of reasonableness. Considering the foregoing analysis, we overrule all of Mr. Rogers’s assignments of error and affirm the judgment of the trial court.
Judge Candance Crouse, Dissenting
Because Robert Mr. Rogers’s detention and the subsequent search of his vehicle violated the Fourth Amendment to the United States Constitution, I respectfully dissent.
The only criminal activity suspected of Mr. Rogers in this case was that Mr. Rogers may have been illegally carrying a concealed weapon. At the time that Mr. Rogers was stopped by the police, carrying a concealed weapon was not illegal, unless he did not have a concealed-carry permit, was a convicted felon, or was otherwise legally prohibited from doing so. The investigating officer did not know who Mr. Rogers was and did not have any information that suggested Mr. Rogers was not permitted to carry a firearm. The investigating officer did not suspect that Mr. Rogers had committed any other crime, nor were the police looking for a suspect for a crime that had been recently committed. It was not as if the police were investigating shots fired in the vicinity and saw Mr. Rogers suspiciously running away in the dark of night in a high-crime area. I find this information significant in determining the reasonableness of Mr. Rogers’s detention and in evaluating the totality of the circumstances.
The officer testified that he observed Mr. Rogers reach into the passenger compartment of his car and, based on Mr. Rogers’s upper body movement, the officer believed that Mr. Rogers placed an object into his waistband area. The officer testified that in his experience, the waistband “is consistent with where people place firearms when they do not have a holster.” However, the officer did not see Mr. Rogers’s waistband or the suspected object. The officer testified that Mr. Rogers’s “actual waist was not in [his] view. It was behind the door of the vehicle.” The officer further testified that he observed “for less than a second” “a suspicious bulge in the front of his waist area.” According to the officer, the bulge was “somewhere in the front center of his body” “at waist level.” When specifically asked by the prosecutor, “And did you see the shape of a handle of a firearm?” the officer responded, “I saw what I believed to be a bulge.” The officer further testified that he had “no recollection” of a bulge when Mr. Rogers came back to his car, even though that was the reason the officer gave to the other officers to pull Mr. Rogers over. The observations of this very experienced officer were made in a “high crime area,” at dusk, after the officer observed two people openly carrying firearms.
Thus, Mr. Rogers was detained due to the investigating officer’s view of a nondescript bulge in Roger’s waistband and his hunch that Mr. Rogers may be illegally carrying a concealed weapon. The law is clear that a person cannot be detained based on “inarticulate hunches.” Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “And simple ‘ “good faith on the part of the arresting officer is not enough.” … If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.’ ” Id. at 22, quoting Beck v. Ohio,
It is also important to remember that “[T]here is no ‘automatic firearm exception’ to the Terry rule.” Northrup v. City of Toledo Police Dept., 785 F.3d 1128, 1132 (6th Cir.2015), citing Florida v. J.L., 529 U.S. 266, 272, (2000).
The majority opinion emphasizes that it was the totality of the circumstances that justified the stop. According to the majority, these circumstances were a nondescript bulge, the officer’s extensive experience, the high-crime area, the impending darkness, and the legal open carry of firearms by two other people on the street. But the only circumstance specific to Mr. Rogers was the bulge in his waistband.
The facts that it was dusk and that Mr. Rogers was in a “high crime” area known for gun violence are “contextual factors” not specific to Mr. Rogers and, while relevant to the reasonable-suspicion analysis, do not provide a sufficient basis to conclude that Mr. Rogers himself was illegally carrying a concealed weapon. See (“In the absence of any objective, articulable facts reasonably linking Hairston in particular to the gunshots, contextual factors such as the time of day and the area’s reputation are of scant analytical value.”), citing Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (“The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct.”); United States v. Young, 707 F.3d 598, 603 (6th Cir.2012) (“We have warned that contextual factors, such as high-crime, should not be given too much weight because they raise concerns of racial, ethnic, and socioeconomic profiling.”); Bennett v. City of Eastpointe, 410 F.3d 810, 830 (6th Cir.2005) (“While officers can surely and appropriately take into account the fact that an area is a high crime area, that alone, does not justify effectuating a seizure.”).
Regarding the one fact specific to Mr. Rogers–the bulge—I am not aware of any case that has held that simply observing a nondescript bulge in a person’s waistband, absent any other suspicious behavior, amounts to a reasonable articulable suspicion to support a Terry stop for illegally carrying a concealed weapon.
In State v. Taylor, 8th Dist. Cuyahoga 2009-Ohio-5822, the officer testified that “she observed the handle of a gun protruding from Taylor’s waistband.” She observed this handle “on a clear night with good visibility,” in a “high crime area” after observing the defendant ‘for five minutes’.” Id. at ¶ 4. The fact that the officer observed a part of the gun was the key to the court holding that the officer had a reasonable and articulable suspicion that Taylor might be carrying a concealed weapon. Id. at ¶ 7-8 (“After observing the gun handle, Murphy formed a reasonable and articulable suspicion that Taylor might be engaged in criminal activity.”). This was emphasized by then-Judge, now Justice Stewart, in her concurrence when she noted:
Unlike cases in which an officer sees a misshapen bulge in clothing or one pocket of a coat riding lower than another, the description of a gun handle provides a degree of specificity which led to a reasonable suspicion that Taylor was carrying a concealed weapon.
She further explained:
In this case, the suspicion that Taylor might be concealing a gun was more than conjecture—the undercover officer saw the shape of a gun handle, not just an amorphous bulge, sticking out from beneath Taylor’s shirt. Id. at ¶ 19; see State v. Moyer, 10th Dist. Franklin No. 09AP-434, 2009-Ohio-6777, ¶ 25 (“Indeed, in what may be the most glaring factor, Officer Alli testified that when she saw defendant running, she also saw defendant holding what she believed to be a firearm. An officer’s seeing an object the officer reasonably believed to be a firearm in a person’s hand creates reasonable, articulable suspicion that defendant is, or is about to be, engaged in criminal activity, namely carrying a concealed weapon.”); United States v. Capozzoli, E.D.Mich. No. 22-20005, 2022 U.S. Dist. LEXIS 137103, *11 (Aug. 2, 2022) (“Having seen a concealed weapon, the officers had reasonable suspicion to investigate whether Defendant in fact had a firearm on his person, including by approaching him and asking Defendant questions.” (Emphasis sic.))
Cases that have found a bulge in a person’s pocket or clothing to be enough to justify a stop for suspicion of illegally carrying a concealed weapon have required that the bulge be described as having the obvious shape of a gun. See, e.g., United States v. Bell, 572 Fed.Appx. 417, 419 (6th Cir.2014) (“The officer’s belief, based on his eyewitness observations, that the defendant had a bulge in his pocket that was in the shape of a gun provides ‘reasonable suspicion’ under the Terry doctrine that the defendant was carrying a concealed pistol. Defense counsel does not argue that carrying such a concealed weapon in Michigan is legal, but rather that simply having his hand on a ‘bulge’ in his pocket is not sufficient to trigger a valid Terry stop. Here, however, the testimony was that the ‘bulge’ was in the shape of a gun.” (Emphasis
added.)); United States v. Pope, 212 Fed.Appx. 214, 217 (4th Cir.2007) (“Both [officers] personally observed what they knew to be the outline of a gun concealed beneath defendant’s clothing.” (Emphasis added.)); United States v. Bontemps, 977 F.3d 909, 917 (9th Cir.2020) (Noting that the officer’s bodycam footage “shows a gun- shaped bulge” and stating that “[t]he dissent is * * * incorrect in implying that our holding allows any bulge of any kind to justify a Terry stop. Our holding is instead that a bulge suggestive of a firearm can be sufficient to create reasonable suspicion, and that in this case there was ample evidence from which to conclude that Bontemps’s ‘obvious’ bulge was likely a concealed firearm.”); Golden v. United States, 248 A.3d 925, 942 (D.C.2021), quoting Singleton v. United States, 998 A.2d 295 (D.C.Cir.2010) (“[T]he bulge [the officer] saw on Mr. Golden’s right hip was not in the shape of a gun and was not distinctive in any way. A generic bulge in the location the officer saw it ‘can be explained by too many innocent causes to constitute reasonable suspicion’ by itself. When we and other courts have held it reasonable to infer that a bulge in a suspect’s clothing was a firearm, there were additional observed facts about the bulge, the suspect’s actions linked to it, and/or other circumstances that supported the inference.”); In re Jeremy P., 197 Md.App. 1, 19, 11 A.3d 830 (2011) (“Here, there was no proof of a describable object that reasonably could have been suspected of being a gun. [The officer] neither saw the outline of a gun, nor any part of what appeared to be a gun. Significantly, he was completely unable to describe the bulge.”); holding that the stop of the defendant was legal because the officer “did not simply observe a bulge,” rather he testified that “he saw in defendant’s pocket a bulge that looked like a handgun.”).
In this case, the officer saw a nondescript bulge in Mr. Rogers’s waistband for “less than a second.” When asked by the prosecutor if he saw the shape of a handle of a firearm, the officer merely replied, “I saw what I believed to be a bulge.” The fact that the officer was experienced and made this observation at dusk, in a “high crime” area, does not turn his belief that Mr. Rogers was carrying a concealed firearm into anything more than an inarticulate hunch.
It is important to emphasize that Mr. Rogers was stopped solely because the police suspected he was illegally carrying a concealed firearm. Mr. Rogers was not suspected of any other crime. Under the law in effect at the time Mr. Rogers was stopped, there was a presumption that carrying a concealed firearm was illegal. This is because a concealed-carry permit was an affirmative defense to a charge of carrying a concealed weapon. Therefore, some Ohio courts have held that the police may briefly detain someone whom they reasonably believe is possessing a concealed weapon to determine whether they are legally carrying it. See, e.g., Taylor, 8th Dist. Cuyahoga No. 92382, 2009-Ohio-5822, at ¶ 8 (“Because Murphy did not know whether Taylor had a permit, she had a reasonable suspicion that he might be carrying a weapon illegally”); see also Moyer, 10th Dist. Franklin No. 09AP-434, 2009-Ohio-6777, at ¶ 25 (“An officer’s seeing an object the officer reasonably believed to be a firearm in a person’s hand creates reasonable, articulable suspicion that defendant is, or is about to be, engaged in criminal activity, namely carrying a concealed weapon.”). But see Taylor at ¶ 12, (Stewart, J., concurring) (“This resolution means that an officer’s knowledge, or lack thereof, regarding the legal status of a person carrying a concealed weapon–without more–will always be sufficient to articulate a reasonable suspicion that the person’s concealed carry is illegal. It is difficult to reconcile this analysis in light of the concealed-carry laws.”); State v. Price-Williams, 973 N.W.2d 556, 576 (Iowa 2022) (Appel, J., dissenting) (“An argument can now be made that with so many persons lawfully possessing handguns, authorization of law enforcement to search a person for possession of a weapon amounts to a type of general warrant that the Fourth Amendment was designed to prevent.”)
The majority opinion holds that a police officer may conduct an investigative stop of any person present in a high-crime area when it is dark if that officer observed some sort of nondescript bulge in the person’s waistband that, based on his experience, he believed to be a gun. No further information about the bulge, that person, suspicious behavior, or investigation of a crime in the area is necessary. Pursuant to all relevant caselaw, such a determination exceeds the bounds of Terry and eviscerates our Fourth Amendment protections. That the officer’s hunch ultimately proved to be correct in this case cannot justify the fact that Mr. Rogers’s Fourth Amendment rights were violated. See, e.g., In re M.P., 1st Dist. Hamilton Nos. C-130663 and C-130741, 2014-Ohio-2846, ¶ 11 (holding that “[a]lthough the soundness of Detective Longworth’s hunch of M.P. was borne out by the end result,” the stop of the defendant nevertheless violated the Fourth Amendment).
For these reasons, I respectfully dissent.
Judge Candace Crouse: https://firstdistrictcoa.org/judge-candace-crouse/
Information for this article was obtained from State v. Rogers, 2022 – Ohio – 4535.
The First District Appellate Court used Officer C’s full name; I have chosen not to use his full name.
This case was issued by the First District Appellate Court and is binding in Hamilton County, Ohio.
The First District Appellate Court made several statements that are instructive and require further analysis:
- Paragraph 10: “In response to Mr. Rogers’s request to go home, Officer C told Mr. Rogers three times that he could go home if he would agree to voluntarily exit from the vehicle and consent to a check for weapons on his person and the “immediate area” inside the vehicle.” Here, Officer C could have improved by not requesting for consent. At the moment the officer requested consent, it clearly indicated to the court that he did not enough information or evidence to conduct a Terry Pat Down. This indicated that the officer was not legally confident that provided Mr. Roger’s legal ammunition to appeal his conviction. If an officer establishes a suspect had committed or is about to commit a crime and is presently armed, the officer should NEVER ask for consent. Rather the officer must immediately pat the suspect down.
- Paragraph 10: “Officer C told Mr. Rogers that, if he did not give consent, then they would “get into the car with a canine sniff,” and which way they proceeded “was up to Mr. Rogers.” Mr. Rogers maintained his position.”. The U.S. Supreme Court issued Bumper v. North Carolina, 391 U.S. 543 (1968) on June 3, 1968 and held in pertinent part “Where there is coercion there cannot be consent.”[emphasis added]. More recently on September 20, 2022, the Sixth District Appellate Court issued State v. Seems, 2022 – Ohio – 3507 and held in pertinent part “ Seems was coerced into consenting to the “dump” of his phone after the detective asserted a claim of lawful authority to seize the phone.” [emphasis added]. Here, Officer C made a strong attempt at coercing Mr. Rogers to consent by threatening to obtain a canine. This consent coercion was being conducted simultaneous to having enough reasonable suspicion to pat down Mr. Rogers and his vehicle without consent. Law enforcement must be cautious on threatening suspects to get a warrant, obtain a canine sniff or some other action that could reasonably be determined to be coercion in an attempt to obtain consent.
This case, like all State of Ohio District Court cases is heard by three judges. This case was decided two to one. The dissenting Judge Candance Crouse established her legal position that requires a contrast that is objectively reasonable. Her excerpts are identified in quotations and my response follows each in sequence.
- Judge Crouse Paragraph 47: “The only criminal activity suspected of Mr. Rogers in this case was that Mr. Rogers may have been illegally carrying a concealed weapon.”. However, in Terry v. Ohio, 392 U.S. 1 (1968) the U.S. Supreme Court held in pertinent part “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others is in danger.”. Id at 31. The U.S. Supreme Court clearly identified that the officer does not have to be right, he only needs to be reasonable. In this case Lieutenant David Schofield was both reasonable and RIGHT!
- Judge Crouse Paragraph 57: “The majority opinion holds that a police officer may conduct an investigative stop of any person present in a high-crime area when it is dark if that officer observed some sort of nondescript bulge in the person’s waistband that, based on his experience, he believed to be a gun.”. However, the majority in this case contrasted J. Crouse’s position by stating “The Ohio Supreme Court, however, recently reaffirmed that “[A]n officer’s experience with criminal activity in an area and an area’s reputation for criminal activity are factors” that are relevant to the reasonable-suspicion analysis. See Hairston, 2019-Ohio-1622.”. For more State v. Hairston 2019 – Ohio – 1622 see Was 60 Seconds Enough Time to Establish Reasonable Suspicion?.
- Judge Crouse Paragraph 49: “The law is clear that a person cannot be detained based on “inarticulate hunches.””. However, the majority clearly eviscerated Judge Crouse’s conclusion that Lt. Schofield had an ‘inarticulate hunch’ as it opined “Importantly, Lieutenant Schofield linked the suspicious bulge to the other observed facts that created the totality of circumstances upon which the propriety of the stop must be considered. This included that he had seen two individuals openly carrying weapons at the gathering. Further, he saw Mr. Rogers obtain the object creating the bulge by pivoting away from the direction of the party and reaching into the passenger side of his vehicle from the driver’s side door. And Mr. Rogers’s actions occurred in an area notorious at that time for firearm crimes.” Lt. Schofield clearly identified that criminal activity was afoot and his belief that Mr. Rogers was presently armed was correct. Therefore, the lieutenant did not have an ‘in’articulate hunch but rather a very articulate hunch. Well done Lt. Schofield!
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