Observing a firearm on a suspect’s person provides more than enough reasonable suspicion that the individual is armed in order to conduct a protective search for weapons.
State v. Wishon
2023 – Ohio – 1915
Second District Appellate Court
Montgomery County, Ohio
June 9, 2023
Report of Shoplifting at Walmart
A hearing was held on March 4, 2022, at which Sergeant Todd Stanley testified on behalf of the State. Sergeant Stanley was a 24-year veteran of the Butler Township Police Department and had over 27 years of law enforcement experience. On the afternoon of September 23, 2021, Sergeant Stanley and Officer Jackson, also of the Butler Township Police Department, were dispatched to Walmart in Butler Township, Ohio, on a report of individuals shoplifting. Both officers were wearing police uniforms and drove marked police cruisers. Their body cameras were activated and submitted at the hearing as State’s Exhibit 1.
Do Not Let a Friend Become a Co-Conspirator
At the outset, the officers were told that there were three people inside the Walmart that loss prevention officers suspected may be shoplifting: a black male, a white female, and a white male; these individuals were later identified as Emmanuel Gray, Jr., Nicole VanDyke, and Mr. Jeffrey Lee Wishon, respectively. Loss prevention officers relayed to the Butler Township police officers that Mr. Gray and Ms. VanDyke had been observed concealing merchandise and price-swapping items at the self-checkout lane. Mr. Wishon had not been seen taking any items but had followed Ms. VanDyke around the store. Ms. VanDyke obtained men’s and women’s toiletries while in the store. According to the loss prevention officers, they did not feel they had enough evidence to say Mr. Wishon was concealing merchandise; they did not believe that he was not part of it, but he had not been observed concealing anything.
Sergeant had a Gut Feeling but Not Enough Reasonable Suspicion to Initially Detain Mr. Wishon
Mr. Gray was the first to exit the store; he was detained immediately after getting outside the store and was taken back inside to the loss prevention office. Shortly thereafter, Ms. VanDyke and Mr. Wishon walked out of the store together; Ms. VanDyke was stopped but Mr. Wishon was told by Sergeant Stanley “you go because you’re not part of it, I know you are, but you’re not.” Mr. Wishon continued on his way through the parking lot while Sergeant Stanley spoke with Ms. VanDyke. Ms. VanDyke informed Sergeant Stanley that she was staying at Sober Living, which was a drug/alcohol counseling group located at two local motels approximately one eighth of a mile from the Walmart. According to Sergeant Stanley’s statements later recorded on his body camera, he believed Ms. VanDyke was under the influence of something based on their interaction.
Who Better to Hold a Firearm but a Convicted Felon?
Meanwhile, Officer Jackson was informed by Mr. Gray that Mr. Wishon had Mr. Gray’s gun on his person. Mr. Gray explained that he had had Mr. Wishon hold his gun for him before leaving the store. Officer Jackson immediately radioed to Sergeant Stanley that Mr. Wishon “potentially” had a firearm on him. Sergeant Stanley testified that he did not hear the word “potentially” and that he understood the transmission to say that Mr. Wishon did have a gun. In response, Sergeant Stanley got into his police cruiser and started driving around the parking lot looking for Mr. Wishon. At the same time, Officer Jackson was inside the loss prevention office watching Mr. Wishon on the security screens and providing a description of Mr. Wishon’s clothing and the direction he was heading over the radio.
Sergeant Now had Enough Reasonable Suspicion to Detain Mr. Wishon
Sergeant Stanley located Mr. Wishon near the back of the parking lot near Hooters. As Sergeant Stanley pulled up, he called out of his window to Mr. Wishon, “hey, I do want to speak to you for a minute, ok?” Sergeant Stanley then asked Mr. Wishon to “do me a favor and put your hands on top of the car.” As Sergeant Stanley was getting out of the cruiser, he saw a weight in Mr. Wishon’s pocket and saw the butt of the handle of a gun. At that point, Sergeant Stanley pulled his gun out, putting it in a low ready position, and told Mr. Wishon not to move. Sergeant Stanley held Mr. Wishon at gun point until Lieutenant Chris Guthrie arrived less than a minute later. Mr. Wishon was then handcuffed, and the weapon was removed from his pocket. Mr. Wishon was asked if he had a CCW (meaning, a license to carry a concealed weapon), which he denied. Mr. Wishon was also asked why he had a gun on him, and he indicated that he was holding it for his friend. Mr. Wishon was placed in the back of the cruiser and the gun was found to be loaded. Officers also learned that Mr. Wishon had a prior felony drug conviction and was, therefore, under a weapons disability.
Sgt. Stanley had his initial encounter with Mr. Wishon at the Walmart located at 3465 York Commons Boulevard in Butler Township, Ohio. Later he would establish enough Reasonable Suspicion to pat Mr. Wishon down near the Hooters. Was Sgt. Stanley’s pat down lawful?
Sergeant has been Involved in Two Officer-Involved Shootings
Sergeant Stanley testified that any time a gun is involved, there is an issue of officer safety. Sergeant Stanley himself had previously been involved in two officer-involved shootings, in one of which the suspect was killed. Prior to stopping Mr. Wishon, Stanley did not know who Mr. Wishon was or anything about his past; Sergeant Stanley also did not know if Mr. Wishon had a CCW permit prior to their interaction.
Indicted
On December 13, 2021, Mr. Wishon was indicted by a Montgomery County grand jury on one count of having weapons while under disability (prior drug conviction), in violation of O.R.C. §2923.13(A)(3), a felony of the third degree; and one count of carrying concealed weapons (loaded/ready at hand), in violation of O.R.C. §2923.12(A)(2), a felony of the fourth degree.
Motion to Suppress
On January 27, 2022, Mr. Wishon filed a motion to suppress, which alleged that he had been unlawfully searched and seized and that any evidence found as a result of the search should be suppressed. He further alleged that any statements he made should be suppressed because his Miranda rights were violated and because he invoked his right to counsel.
Denied
On June 8, 2022, the trial court overruled Mr. Wishon’s motion to suppress in its entirety. Mr. Wishon subsequently entered a negotiated plea wherein he agreed to plead no contest to the charge of having a weapon while under disability, and the State agreed to dismiss the remaining charge. On December 1, 2022, Mr. Wishon was sentenced to community control sanctions.
Appeal
Mr. Wishon contends that he was unlawfully stopped and detained under circumstances tantamount to an arrest without probable cause. Although Mr. Wishon challenged the admissibility of his statements in the trial court, he does not challenge that portion of his motion to suppress on appeal. Therefore, we will contain our analysis to the lawfulness of Mr. Wishon’s detention.
Analysis
“Whether a law enforcement officer possessed probable cause or reasonable suspicion to detain an individual must be examined in light of the totality of the circumstances viewed from the standpoint of an objectively reasonable police officer.” State v. Thornton, 2023-Ohio-1404.
Collective Knowledge Doctrine
The collective knowledge doctrine, however, “[P]ermits police officers to rely on information provided to them by other officers in helping to establish probable cause or reasonable suspicion.” State v. Jones, 2011-Ohio-1984,
“‘Reasonable suspicion [or probable cause] may exist based upon the collective knowledge of the police when there is reliable communication between the officer supplying the information and the officer acting on that information.’” State v. Freeman, 2015-Ohio-2501, quoting State v. Mook, 1998 WL 417461, *3 (July 15, 1998).
Application of Law to Mr. Wishon’s Encounter
There is no dispute that the contact between Mr. Wishon and Sergeant Stanley was not a consensual encounter. The question then is whether the initial contact constituted a Terry stop, which requires only reasonable articulable suspicion, or an arrest, which requires probable cause. Mr. Wishon contends that the level of force used at the time of his detention was the equivalent of an arrest requiring the officers to have probable cause to arrest him. He further contends that there was no evidence prior to the stop that he was doing anything unlawful for the officers to have either reasonable grounds to detain him or probable cause to arrest him.
Totality of the Circumstances
The State responds that Sergeant Stanley had reasonable articulable suspicion to detain Mr. Wishon based on the totality of the circumstances. The State suggests that the level of force used by Sergeant Stanley did not transform the detention into an arrest as Mr. Wishon was not arrested until after Sergeant Stanley verified that Mr. Wishon did not have a CCW permit.
Considering the totality of the circumstances in this case, we conclude that Sergeant Stanley had reasonable articulable suspicion to detain Mr. Wishon and that the show of force used by Sergeant Stanley was reasonable under the circumstances so as not to convert the initial stop into an arrest.
At the time Mr. Wishon was detained, Sergeant Stanley was aware that Mr. Wishon had been with two companions who were found shoplifting in Walmart. Although Mr. Wishon was not personally observed stealing items, his association with the shoplifters was a relevant consideration. It was also known that Ms. VanDyke was obtaining drug and/or alcohol treatment nearby and appeared to be under the influence during her interactions with Sergeant Stanley. More importantly, Mr. Gray advised Officer Jackson that he had provided his gun to Mr. Wishon and indicated that Mr. Wishon still physically possessed the gun while walking away in the parking lot. Mr. Gray’s identity was known to the officers, and he had just been with Mr. Wishon, an individual with whom he was familiar, such that Mr. Gray’s information was sufficiently reliable for the officers to have reasonably relied upon it.
Upon Sergeant Stanley’s initial observance of Mr. Wishon, he did not see a gun on Mr. Wishon’s person, meaning that it was concealed. Mr. Wishon did not advise Sergeant Stanley that he had a permit to carry a concealed weapon, which the law required him to do if he indeed had a valid permit. O.R.C. §2923.12(B)(1). As the trial court noted, at the time this offense occurred, under Ohio law, only certain individuals could carry concealed weapons. O.R.C. §2923.12. Although that limitation changed as of June 13, 2022, with the enactment of Senate Bill 215, generally, the determination of reasonable articulable suspicion is governed by the applicable law at the time the offense occurred. Therefore, unless Mr. Wishon had a valid CCW permit, he was not permitted to carry a concealed firearm on his person. Additionally, the fact that Mr. Wishon was with individuals who had been committing thefts, at least one of whom was under the influence, and that he was alleged to be holding Mr. Gray’s gun would lead a reasonable officer to temporarily detain Mr. Wishon to investigate further.
When he initially stopped Mr. Wishon, Sergeant Stanley informed Mr. Wishon that he wanted to talk to him and asked Mr. Wishon to put his hands on the car. Believing that Mr. Wishon had a gun on his person, ordering Mr. Wishon to put his hands on the car was not unreasonable for officer safety and was minimally intrusive. Then, when Stanley saw that the gun was hanging out of Mr. Wishon’s pocket, it confirmed that Mr. Wishon did indeed have a gun and that it had been concealed on Mr. Wishon’s person. Although Stanley did not yet know whether Mr. Wishon had a valid CCW permit, based on the circumstances, he had a reasonable suspicion that Mr. Wishon might be carrying a concealed weapon illegally. See State v. Taylor, 2009-Ohio-5822, (after observing a gun handle, the officer had a reasonable suspicion to believe that the defendant might be carrying a concealed weapon illegally).
Officer Safety
The fact that Sergeant Stanley, who was by himself, pulled his gun out and kept it at the “low ready” until another officer could arrive also was not unreasonable. “Police officers may take steps that are ‘reasonably necessary to protect their personal safety and to maintain the status quo during the course of [a] stop.’ ” State v. Hairston, 2019-Ohio-1622, quoting United States v. Hensley, 469 U.S. 221, 235, (1985). “The ‘mere use or display of force in making a stop will not necessarily convert a stop into an arrest.’ ” Id., quoting United States v. Hardnett, 804 F.2d 353, 357 (6th Cir.1986).
Case Law Supports Sergeant Stanley’s Detention and Pat Down
Sergeant Stanley had over 27 years of law enforcement experience and had previously been involved in two officer-involved shootings, including one in which the suspect died. Stanley was aware of the dangers of suspects with firearms, and he had personally observed a firearm sticking out of Mr. Wishon’s pocket. The assisting officer, Lieutenant Guthrie, arrived less than a minute later, at which time Mr. Wishon was quickly placed in handcuffs and his gun was safely removed from his pocket. “Where a police officer, during an investigative stop, has a reasonable suspicion that an individual is armed based on the totality of the circumstances, the officer may initiate a protective search for the safety of himself and others.” State v. Bobo, 37 Ohio St.3d 177 (1988), paragraph two of the syllabus. This is permitted in order for a police officer to take “steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” Terry at 23. Observing a firearm on a suspect’s person provides more than enough reasonable suspicion that the individual is armed in order to conduct a protective search for weapons.
Conclusion
Upon the removal of the firearm, Sergeant Stanley immediately verified his suspicion that Mr. Wishon did not have a CCW permit and placed him under arrest. Sergeant Stanley took no longer than was necessary to safely remove the firearm and verify his suspicions. Under these circumstances, we cannot say that Stanley’s actions were unreasonable.
Mr. Wishon’s sole assignment of error is overruled.
Holding
Having overruled the assignment of error, we affirm the judgment of the trial
court.
Information for this article was obtained from State v. Wishon, 2023 – Ohio – 1915.
State v. Wishon, 2023 – Ohio – 1915 was issued by the Second District Appellate Court on June 9, 2023 and is binding in the following Ohio Counties: Champaign, Clark, Darke, Greene, Miami and Montgomery.
Lessons Learned:
- Investigative Detention – Sgt. Todd Stanley initially did not have reasonable suspicion to detain Mr. Jeffrey Wishon. However, after Officer Jackson obtained additional information that Mr. Wishon was presently armed, there was enough reasonable suspicion to stop and detain Mr. Wishon. This type of fact pattern is common that during the initial encounter, there is not enough information or evidence to detain a suspect, but later, more information is obtained to detain. Following the Permitless Carry legislation that took effect on June 13, 2022 may impact an officer’s ability to pat down a suspect. In this case Mr. Wishon was a convicted felon but in other cases, a law abiding citizen who has a gun protruding from his pocket, may lawfully be carrying the firearm. For more information on Permitless Carry see Governor Mike DeWine and the 134 General Assembly Felon Protection Act.
- Collective Knowledge Doctrine – Sgt.Stanley utilized the Collective Knowledge Doctrine to obtain the additional information from Officer Jackson. This doctrine provides law enforcement the ability to rely on information collected by more than one officer to establish reasonable suspicion or probable cause. Law enforcement does not need to identify this doctrine when documenting an incident. Simply documenting how the information was obtained will be sufficient. The Collective Knowledge Doctrine may also work against law enforcement if on officer is aware of exculpatory information that will likely imputed to all officers in the investigation. For more on the Collective Knowledge Doctrine see Dayton Police Utilizes the Collective Knowledge Doctrine to Charge and Uphold RSP and RICO Convictions.
- Pre-Sent Arms! Both Sgt. Stanley and Officer Jackson should be highly commended for getting a felon in possession of a firearm off the street. Well done!
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