Because the police officers had reasonable suspicion to justify the initial Terry stop of Mr. Thornton, and because Mr. Thornton, after failing to submit to any show of authority, was not seized until after he fled while holding and then discarding a firearm, thereby establishing additional facts giving rise to reasonable articulable suspicion of criminal activity for a Terry stop, Mr. Thornton was not seized by the police in violation of his Fourth Amendment rights.
State v. Thornton
2023 – Ohio – 1404
Second District Appellate Court
Montgomery County, Ohio
April 28, 2023
The Dayton Police Department’s Strategic Response Unit (“SRU”) consists of five to seven police officers whose primary goal, in an effort to curtail crime, is to patrol high-crime areas based upon statistics and data polling of drug and weapon complaints, as directed by their sergeant. On Thursday June 30, 2022, the SRU was tasked with patrolling the area of Kings Mill Court apartments located at 3522 Dorham Place, in Dayton, Ohio, from which complaints regarding drug sales and weapons had historically come.
Recidivist Mr. Norman Thorton was standing next to a vehicle emitting loud music and open containers of alcohol on Thursday June 30, 2022 at 9:52 pm. The events that followed next would lead to Mr. Thornton’s arrest and appeal.
Officers Had a Gut Feeling that Developed Into Reasonable Suspicion
According to body-camera videos, at approximately 9:52 p.m. on June 30, 2022, five uniformed SRU officers, including Officers Joshua Erwin and Kyle Harris, parked their cruisers and walked toward the Kings Mill Court apartment complex parking lot. When the officers approached the lot, they heard loud music, observed three men standing near a parked truck, and spotted open containers of alcohol. As they moved toward the men, the officers shined their flashlights and introduced themselves as “Dayton Police.” None of the officers had weapons drawn. The body-camera videos showed that the officers were some distance away from the three men when, immediately after the officers announced themselves, one of the men, later identified as Mr. Norman Thornton, turned and ran. Within seconds, one officer said, “He’s got a gun. I think he’s got a gun,”and the officers swiftly pursued Mr. Thornton. After less than a minute, Mr. Thornton was apprehended but no firearm was found on him. The officers then retraced the path of the pursuit and found a discarded firearm nearby. This is exceptional police work!
At 10:03 p.m., Mr. Thornton was placed in the police cruiser. When asked by an officer for personal identifying information, including his name, social security number, and date of birth, Mr. Thornton made several unsolicited statements not in response to anything the officer had said and asked the officer if he could have his gun back once he was released.
At 10:20 p.m., another officer opened the rear door of the cruiser and read Mr. Thornton his Miranda rights from a card. After each right was read, Mr. Thornton verbally acknowledged his understanding. Mr. Thornton was calm, did not appear to be under the influence of drugs or alcohol, and did not assert his right to remain silent or request an attorney. Mr. Thornton stated that he had not known that the individuals approaching him and the other two men were police officers before he began running and had not heard the officers say “Dayton Police.”
Indicted on Two Counts
On July 11, 2022, Mr. Thornton was indicted on one count of having weapons while under disability (prior offense of violence) in violation of O.R.C. §2923.13(A)(2), a felony of the third degree, and one count of carrying concealed weapons (loaded/at hand) in violation of O.R.C. §2913.12(A)(2), a felony of the fourth degree.
First Motion to Suppress
On September 12, 2022, Mr. Thornton filed a motion to suppress, arguing that the evidence of his possession of a firearm should be suppressed. Mr. Thornton argued that the stop and subsequent seizure of the firearm were accomplished in violation of the Fourth Amendment, as there had been no arrest or search warrant and his seizure had occurred without probable cause or reasonable articulable suspicion that he was engaging in illegal activity.
‘Stay Put’ Order
At a hearing on the motion to suppress held on November 14, 2022, Officers Joshua Erwin and Kyle Harris testified for the State. Officer Harris testified that, as the five SRU officers approached the three individuals in the parking lot intending to conduct an investigation and speak with them, one officer stated “stay put.”
Trial Court Determines Officers Did Not Have Reasonable Suspicion and Suppressed the Firearm
Following the hearing, the trial court granted Mr. Thornton’s motion, finding that the officers had conducted an investigatory detention of Mr. Thornton without having reasonable articulable suspicion of criminal activity when they approached to investigate in a large group, shined their flashlights, identified themselves as “Dayton Police,” and said “stay put.” The trial court found that a reasonable person would not have felt free to walk away under the circumstances in this case and that there had needed to be reasonable articulable suspicion that criminal activity was afoot, which was lacking, as there had been no warrant, no suspect, no complaint of drug sales or weapons possession, no shooting report, and no calls for service. The trial court found that there was no evidence that city ordinances or state statutes had been violated; there had been no complaints from neighbors or residents about loud music; and there was no evidence that Mr. Thornton had been intoxicated or consuming alcohol. The trial court further found that there had been a warrantless search and seizure and that no exception to the warrant requirement applied; that Mr. Thornton had been detained without reasonable articulable suspicion that criminal activity was afoot; that Mr. Thornton’s flight had not contributed to a finding of reasonable articulable suspicion because he was confronted with an unlawful order to “stay put”; that evidence was obtained after the pursuit and seizure of Mr. Thornton; and that the evidence of the firearm and Mr. Thornton’s identity were fruit of the poisonous tree and had to be suppressed.
City of Dayton Appeals Trial Court’s Suppression of the Firearm
The State filed a timely notice of appeal on November 28, 2022.
The State’s sole assignment of error is as follows:
The trial court erred in granting Mr. Thornton’s motion to suppress. The
court incorrectly ruled that there was no reasonable or articulable suspicion
to justify the Terry stop of Mr. Thornton.
The State contends that the trial court improperly found that the police officers did not have reasonable articulable suspicion that criminal activity was occurring for the purpose of an investigatory detention of Mr. Thornton. As a result, according to the State, the motion to suppress should have been overruled by the trial court, and the trial court’s judgment must be reversed. We agree.
Analysis
Consensual Encounters Explained for the Trial Court
“Consensual encounters are not seizures, and Fourth Amendment guarantees are not implicated in such encounters.” State v. Keister, 2d Dist. Montgomery No. 29081, 2022-Ohio-856, ¶ 27, citing State v. Taylor, 106 Ohio App.3d 741, 747 (2d Dist.1995) citing United States v. Mendenhall, 446 U.S. 544, 554, (1980).
Terry Stops Explained For the Trial Court
The second type of encounter is a “Terry stop” or an investigatory detention, which is more intrusive than a consensual encounter but less intrusive than a formal custodial arrest. Taylor at 748. “Unlike consensual encounters, an investigatory detention constitutes a seizure; therefore, Fourth Amendment protections are implicated in an investigatory detention.” State v. Shern, 2018-Ohio-5000. “An individual is subject to an investigatory detention when, in view of all the circumstances surrounding the incident, by means of physical force or show of authority, a reasonable person would have believed that he was not free to leave or is compelled to respond to questions.” Lewis at ¶ 22, citing Mendenhall at 553 and Terry v. Ohio, 392 U.S. 1, 16 and 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
High Crime Area Explained for the Trial Court
“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124-25, (2000). “Unprovoked flight upon seeing police officers is a relevant consideration in determining whether the totality of the facts and circumstances are sufficiently suspicious to justify a Terry stop.” State v. Jordan, 2006-Ohio-1813, citing Wardlow. “While such a factor is not necessarily indicative of criminal behavior, and can be consistent with innocent conduct, Terry recognized that officers may briefly detain individuals to resolve ambiguity in their conduct.” Id. “Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.” Wardlow at 124-125. Thus, “the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Id., citing United States v. Cortez, 449 U.S. 411, 418, (1981).
Stay Put is Investigation Detention but was It Legally Justified?
It is worth noting that, at Mr. Thornton’s motion to suppress hearing, the “stay put” order was the subject of debate. The trial court relied upon the “stay put” order as the basis for its reasoning that the encounter between the police and Mr. Thornton constituted an investigatory detention without reasonable articulable suspicion even before Mr. Thornton fled. However, upon our review of the body-camera video, the order to “stay put” was not audible on the video, and the trial court even acknowledged that, while Officer Harris testified that a “stay put” order was given, the audio portion of the video from the body camera was not as clear.
The State argues that the police had reasonable and articulable suspicion for the purpose of a Terry stop when the officers initially approached, announced themselves, shined their flashlights, and said “stay put.” The State argues that the police approached during dark hours, knew the area to be a high-crime area where several gun and drug arrests had previously been made, heard loud music, and observed open containers as they approached the three men standing near a parked truck. The State further argues that the officers believed that there was the potential for a citation to be issued pursuant to O.R.C. §4301.62(B)(3), which prohibits any person from having an opened container of beer or intoxicating liquor in the person’s possession in any public place; thus, the officers would have been permitted to detain Mr. Thornton to issue a citation but did not have the opportunity because Mr. Thornton fled.
Reasonable Suspicion or Unreasonable Detention?
In rebuttal, Mr. Thornton argues that he was seized in violation of his Fourth Amendment rights when officers approached as group while spread out in a line, shined their flashlights, announced themselves as “Dayton Police,” and said “stay put.” Mr. Thornton argues that the police did not have reasonable articulable suspicion to justify a Terry stop at that point in time. We disagree.
Second District Court Determines Dayton Police had Reasonable Suspicion
Mr. Thornton was not only in an area of high crime, but the officers had reasonable articulable suspicion that criminal activity was afoot when they observed open containers of alcohol. It was in this context that the officers decided to investigate the three men standing near the parked truck, and both officers testified that their initial plan was merely to speak to them. When viewed through the eyes of the officers and taking into consideration their training and experience, we conclude that, under the totality of the circumstances, the officers were permitted to detain Mr. Thornton briefly to resolve ambiguity in his conduct; they were justified in suspecting that Mr. Thornton was involved in criminal activity and, therefore, in investigating further. The high-crime nature of the area, combined with the location and time of the encounter, the loud music, and the open containers, gave the officers reasonable suspicion of criminal activity to justify the initial Terry stop.
The State also argues that, even if there was no reasonable articulable suspicion that criminal activity was afoot to justify the initial Terry stop, Mr. Thornton was never actually seized in violation of his Fourth Amendment rights because, when the officers approached, he fled almost immediately after they identified themselves, ignored the order to “stay put,” and was not physically seized by police until after he had fled and discarded the firearm that he was holding. Of note, too, Mr. Thornton stated to the officers later while in a police cruiser that he had not known who was approaching and that he had not heard the persons identify themselves as “Dayton Police.” Additionally, the State argues that a person’s conduct during an encounter, including fleeing, can independently give police reasonable suspicion to engage in an investigatory detention. The State argues that, considering the totality of these circumstances, the police had additional reasonable articulable suspicion to justify a Terry stop of Mr. Thornton when he fled while holding a firearm. We agree.
Seizure Explained for the Trial Court
A person is “seized within the meaning of the Fourth Amendment “only when, by means of physical force or a show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446. U.S. 544, 553, (1980). Submission requires that the person comply with the directives of law enforcement. The failure to submit to the instructions means there is no seizure, merely an attempted seizure, which is beyond the scope of the Fourth Amendment. Brendlin v. California, 551 U.S. 249, 254 (2007).
Application of Facts and Law for the Trial Court
In this case, although several officers were present and approached Mr. Thornton and the other two men, the mere presence of multiple officers did not necessarily establish a seizure, and, here, the officers did nothing to engage in physical force prior to Mr. Thornton’s flight. As the officers approached, they identified themselves, shined flashlights, and said “stay put.” The officers testified that they only intended to talk to the three men but were unable to talk to Mr. Thornton because he fled immediately. The events of this encounter took place over a matter of seconds. The body-camera videos revealed that the officers approached the three men on foot but were not in the physical
proximity of the men when Mr. Thornton turned and ran before the police could effectuate any seizure. At that point in time, the police had done nothing more than attempt to approach Mr. Thornton. There was no physical force by the police before Mr. Thornton fled. The officers never brandished their weapons or otherwise threatened Mr. Thornton. The officers never touched Mr. Thornton or blocked his path.
Considering our reasoning in Roberts, even if we were to conclude that initially the officers lacked a sufficient basis to make an investigative stop, Mr. Thornton chose to ignore the order to “stay put,” did not submit to the officers’ show of authority, and had not been seized when he proceeded to flee on foot and discard the firearm. Mr. Thornton’s failure to submit to the officers’ instructions meant that there was no seizure, merely an attempted seizure, which is beyond the scope of the Fourth Amendment. Moreover, at the point at which Mr. Thornton engaged in headlong flight, was observed holding a firearm, and then discarded the firearm, the police had additional facts in the totality of the circumstances to cause additional reasonable articulable suspicion to justify a Terry stop of Mr. Thornton, and, like Roberts, Mr. Thornton was not seized until after he fled and discarded the firearm. As a result, Mr. Thornton was not seized by the police in violation of his Fourth Amendment rights.
Mr. Thornton Abandoned the Firearm
In State v. Roberts, 2016-Ohio-7327, we also noted that, when a defendant abandons property, the act of abandonment negates any Fourth Amendment expectation of privacy, meaning that suppression is not required even if the act of abandonment follows an attempted unlawful stop. Id. at ¶ 7. “Abandonment” of property in the present context primarily involves a question of intent, which may be inferred. State v. Freeman, 64 Ohio St.2d 291, 297, (1980). “‘The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.’ ” (The legal effect of abandonment is to deprive a defendant of standing to challenge the admissibility of the evidence he abandoned. Id. at 298.) In other words, if a defendant abandoned a firearm while being chased, the weapon would not be subject to suppression even if the police officer lacked lawful authority to seize him. Roberts at ¶ 10. In this case, like Roberts, Mr. Thornton “abandoned” the firearm in his possession when he threw it to the ground while being pursued by police, thereby relinquishing any reasonable expectation of privacy in it.
Holding
Because the police officers had reasonable suspicion to justify the initial Terry stop of Mr. Thornton, and because Mr. Thornton, after failing to submit to any show of authority, was not seized until after he fled while holding and then discarding a firearm, thereby establishing additional facts giving rise to reasonable articulable suspicion of criminal activity for a Terry stop, Mr. Thornton was not seized by the police in violation of his Fourth Amendment rights. The State’s sole assignment of error is sustained.
State v. Mr. Thornton, 2023 – Ohio – 1404 case was issued by the Second District Appellate Court on April 28, 2023, and is binding in the following Ohio Counties: Champaign, Clark, Darke, Greene, Miami and Montgomery.
Information for this case was obtained from State v. Thornton, 2023 – Ohio – 1404.
Lessons Learned:
- The Second District Appellate Court segregated the analysis of this case into two parts. The first is whether the officers had reasonable suspicion to order Mr. Thornton to stay put at the initial contact and the second analysis was whether Mr. Thornton was seized when he ran.
- As the officers approached Mr. Thornton, he was in a high crime area where there were recent reports of on-going drug sales and gunfire, Mr. Thornton was standing with others next a vehicle emitting loud music and there were open containers of alcohol nearby. As the officers approached, one stated “Stay put.”, which would be a lawful order that those to whom the words were directed were under investigative detention. The trial court judge determined these factors were not enough to rise to the belief that criminal activity was afoot and held that the initial detention or attempted detention was unlawful. Fortunately, the Second District Appellate Court applied these facts to long established case law and overturned the trial court judge.
- The second analysis is whether the firearm that Mr. Thornton pitched when he ran was lawfully seized. When a suspect abandons property then that he has no dominion and control of the property and should be admissible. Only if law enforcement was not lawfully on the premises where the initial encounter occurred should this be questioned. In this case the officers initial encounter was on Dorham Place, which is a public street, consequently the officers were lawfully in the spot for observation. For more on the seizure of a suspect when he flees see Were Hodari’s Felony Flyers TOO Fast to be Seized?.
- For more investigative detention see: https://www.objectivelyreasonable.com/category/investigative-detention/
- Dayton Police Officer Joshua Erwin and Officer Kyle Harris should be highly commended for their proactive work that may have saved a life by removing a gun-toting recidivist from a high crime area. Well done Officer Erwin and Officer Harris!
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