The record thus supports the trial court’s finding that the consensual nature of the encounter (during which a citizen is free to leave) between Mr. Ivery and Officer terminated and became an investigative detention (during which a citizen is not free to leave) before Mr. Ivery began to run away from the officer. 

 

State v. Ivery

2023 – Ohio – 3495

Tenth District Appellate Court

September 28, 2023

At the suppression hearing, Officer testified that his involvement in this matter began on January 3, 2022 when Detective – a plain-clothes narcotics detective – asked him and other on-duty patrol officers during their pre-shift rollcall table meeting to “check up on” a purportedly suspicious vehicle in the Hilltop area.  Ultimately, Officer was charged with this task.

Note:  Both the officer and detective are identified by name in the case.  In this article each will be referred to only as officer and detective.

Detective Provides Information for Patrol Officers

At the meeting, Detective and other narcotics officers described seeing a Dodge Challenger parked in the Hilltop of Columbus, Ohio,  just north of Sullivant Avenue on Wrexham Avenue while surveilling a suspected drug house.  Officer acknowledged being told the narcotics detectives were “really interested in all the activity” in this area because they had observed a significant volume of foot traffic going into and around that alleged drug house.  Detective told the officers he believed the parked Dodge Challenger “was suspicious” because an individual had been sitting in it “for approximately 30 minutes” near “a known narcotics house” and would “duck down, kind of hide himself from sight” “any time a police cruiser drove by.”  (But, on cross-examination, Officer acknowledged the narcotics detectives who allegedly witnessed the Challenger’s occupant engage in this purported ducking behavior would have been driving unmarked vehicles, not cruisers, at the time such observations were made.

The officer encountered Mr. Ivery in the Hilltop which is not a high crime area … but a VERY high crime area.  What occurred next led to a felony arrest for possession of a firearm and an appeal.  What would you have done?

Officer Identifies Vehicle

After the rollcall meeting concluded, Officer activated his body-worn camera and drove his cruiser from the substation to the area where Detective described the suspicious vehicle was parked.  At the hearing, Officer conceded he went to this location for the purposes of conducting a “48A stop,” which he explained is CPD’s ten-code for a suspicious person in a vehicle.  Officer also acknowledged that Detective had given him the license plate number for the vehicle the detectives wanted him to investigate.  Although Officer did not recall running the Challenger’s license plate number in his cruiser’s computer system before he interacted with Mr. Ivery that day, he conceded that “If [he] was given the tag, [he] probably” ran it.  And, Officer agreed that if he did, in fact, run the Challenger’s license plate number in his cruiser’s system, nothing of significance resulted.

Officer arrived at the described location at 3:26 p.m. and observed the described vehicle legally parked on the residential street “right where [Detective] said, just north of Sullivant Avenue on Wrexham” in the Hilltop neighborhood. At the hearing, Officer testified he considered this to be a “high-crime area.”

Officer has a Gut Feeling

Without activating his overhead lights or siren, Officer pulled his cruiser behind the parked Challenger.  At the hearing, Officer agreed on cross-examination he did not personally witness the occupant of the Challenger engage in the “ducking” behavior the narcotics detectives described. Nor did he observe a high volume of foot traffic inside or around the home the Challenger was parked in front of, or “any drugs change hands” (i.e., sold) outside of the home.  And Officer admitted he never saw Mr. Jerry Ivery enter or exit the suspected drug house.  Indeed, he conceded that when he arrived at the scene, he had not received any information to suggest Mr. Ivery had committed, was committing, or was about to commit any crime.

After the cruiser parked, Mr. Ivery immediately exited the Challenger and began walking away from the vehicles.  At the hearing, Officer conceded he had no lawful basis to stop Mr. Ivery when he exited the Challenger and began walking away.

Jerry Did Not Want to Talk

In furtherance of his intention to investigate Mr. Ivery that day, Officer exited his cruiser and attempted to engage Mr. Ivery while Mr. Ivery was walking away. The body camera recording shows that, while attempting to catch up to Mr. Ivery, Officer yelled out to Mr. Ivery, “How ya doin’ man? My name’s Officer.”  As Officer got closer to him, Mr. Ivery turned around and began walking backwards away from the officer (described by Officer as “blading his body”) while answering the officer’s perfunctory questions—how he was doing (“alright”), what he was working on that day (“about to go home”), where he lives (“right here,” while pointing at an apartment complex), and what his address is (“[a]partment 15”).

Officer acknowledged it was obvious that Mr. Ivery did not want to talk to him and repeatedly tried to walk away.  Officer admitted he nonetheless continued to follow and attempt to engage Mr. Ivery for the purpose of investigating him.  Notably, Officer conceded he still did not have a lawful basis to detain or arrest Mr. Ivery at this point during the encounter.

After Mr. Ivery briefly stopped and pulled down his face mask, Officer asked if he had an identification card on him.  Mr. Ivery stated he did not, turned into an alley, and walked away from the officer towards the building he identified as his residence.  As depicted in his body-worn camera footage, Officer continued to follow and attempt to engage him.  He asked Mr. Ivery if he owned the vehicle parked on the street.  In response, Mr. Ivery turned slightly towards Officer—e.g., bladed his body towards the officer—stated he did not, turned completely around again, and continued walking down the alley away from the officer.  Officer agreed he still had no lawful basis to arrest or detain Mr. Ivery at this point. Nevertheless, Officer continued following and attempting to question Mr. Ivery. And although Mr. Ivery did not turn around, did not respond, and continued walking away from the officer, Officer continued pursuing Mr. Ivery anyway.

Jerry Put on his Felony Fliers

The body camera footage shows it is at this point during the encounter that Mr. Ivery  started to run, which prompted Officer to chase after him.  Although not visible in his body camera recording, Officer testified that Mr. Ivery began to run down the alley when he saw another cruiser arrive at the scene.

Body Camera and Written Report Conflict

Officer initially testified that Mr. Ivery “kept his right hand in his jacket [pocket] pretty much the entire time” during the encounter.  That account is echoed in his report.  Both are belied, however, by his body camera footage.  Indeed, Officer’s body camera recording shows—and notwithstanding the cold January temperature—both of Mr. Ivery’s hands are visible outside of his jacket pockets the entire time preceding the chase.  During most of their conversation, Mr. Ivery can be seen on the body camera footage holding his cell phone in his right hand and using his left hand to point, gesture, and adjust his face mask.  And, on cross-examination, Officer admitted his prior testimony and report statement claiming Mr. Ivery’s right hand was in his jacket pocket before Mr. Ivery began running could not be reconciled with his body-worn camera footage.  In any event, Officer agreed he did not have a lawful basis to arrest or detain Mr. Ivery prior to his flight.

Court Demands Absolute Proof from Body Camera

Officer also described Mr. Ivery keeping “his [right] hand in his pocket” while the two men were running, which appeared to the officer as though “something heavy was in there, just the way that it was pulling harder on the right side of his jacket than his left side.”  Officer recounted thinking “it was weird that [Mr. Ivery] was running with a hand in his pocket because nobody usually does that.”  Officer’s body-worn camera footage is unclear and inconclusive as to whether Mr. Ivery’s right hand was, in fact, in his jacket pocket while he was running. We note, however, the footage does not clearly show the right side of Mr. Ivery’s jacket being heavily weighed down, as compared to the left side.  Also notable is Officer’s concession that he did not see a gun—or, for that matter, any contraband—in Mr. Ivery’s possession at any point prior to or while the two men were running.

Court Concludes Because There Were Puddles of Water There Could be No Ice

After the two men ran out of the alley, Officer testified that Mr. Ivery “slowed [down] his speed and either slipped on ice [or] [the officer] slipped on ice and [the two men] ended up running into each other.”  The body-worn camera footage is again unclear and inconclusive as to whether Mr. Ivery was tackled or fell to the ground by virtue of one or both men slipping on ice, losing balance, or otherwise.  No patches of ice or snow are visible on the roadway; rather, there are several puddles suggestive instead of melting.

Mr. Ivery is Captured

In his report, Officer described “Grabb[ing] Mr. Ivery’s feet prior to hitting the ground.”  At the hearing, Officer testified that he “ended up on top of [Mr. Ivery] [while] controlling his hands” which, at that point, were not in either of Mr. Ivery’s jacket pockets.  These events are not reflected on Officer’s body-worn camera footage, however, because it “flew off” of him when he was in the process of detaining Mr. Ivery.

Why was Mr. Ivery Detained?

Officer testified he detained Mr. Ivery “for fleeing.”  More specifically, Officer opined that he had reasonable, articulable suspicion to conduct an investigatory detention because Mr. Ivery was “[o]utside [of] a known narcotics drug house,” ran away “upon the sight of more police officers,” and had “blad[ed] his body” when speaking to Officer before the flight occurred.  Officer also emphasized the “high crime” he associated with the area.

Armed and Presently Dangerous?

Moments after Officer detained Mr. Ivery, additional officers arrived and searched Mr. Ivery’s person.  On cross-examination, Officer testified he performed this search incident to Mr. Ivery’s arrest.  But, on re-direct examination, Officer testified—mostly by answering the trial prosecutor’s leading questions—that his search of Mr. Ivery’s person was actually a safety pat-down (or Terry frisk).  He explained that he conducted this type of pat-down search “[F]or weapons and especially in narcotics activity.”  Officer’s body-worn camera did not capture the search and his report does not shed any light on what justification the officer relied on for the warrantless search.  Of note, Officer did not testify or state in his report he believed Mr. Ivery was armed and presently dangerous before he conducted the warrantless search.  Compare State v. Oliver, 2023-Ohio-1550.

Mr. Ivery was Armed!

During the warrantless search of Mr. Ivery’s person, a gun containing 14 rounds of ammunition in the magazine and 1 round in the chamber was recovered from the right pocket of Mr. Ivery’s jacket.  Officer acknowledged he had not seen this firearm at any point before he detained and searched Mr. Ivery.  At the scene, Mr. Ivery was arrested for felony gun charges and outstanding traffic warrants.

Typically Felons Committing a Felony Do Not Want to Engage Law Enforcement

Following the presentation of all evidence and testimony at the suppression hearing, Mr. Ivery’s counsel argued that although Officer claimed Mr. Ivery was free to terminate the purportedly consensual encounter prior to his flight, the evidence and testimony established that was not true.  His trial counsel submitted that no reasonable person would have felt free to terminate the encounter under the facts and circumstances of this case.  And, Mr. Ivery’s counsel emphasized that, before he ran away, Mr. Ivery tried to disengage numerous times and told the officer he was going home, but Officer nonetheless continued pursuing and attempting to engage Mr. Ivery.  Mr. Ivery’s trial counsel argued that, in so doing, Officer turned “what should have been a consensual encounter into an investigatory detention” for which Officer admittedly lacked reasonable, articulable suspicion to conduct.

Prosecutor Applies Established Case for the Legal Foundation of the Investigative Detention

Through his re-direct examination of Officer, the trial prosecutor conveyed the state’s position was the investigatory Terry stop did not begin until after Mr. Ivery’s unprovoked flight.  In closing, however, the trial prosecutor presented no arguments on the issue of whether, assuming the initial encounter was consensual, it became an investigatory stop before Mr. Ivery began to run away from the officer.   Instead, the focus of the state’s closing arguments centered on the issue of whether Officer had reasonable, articulable suspicion (or probable cause) to conduct an investigatory stop of Mr. Ivery after Mr. Ivery’s unprovoked flight. In support, the trial prosecutor cited two cases from this court—State v. Banks, 2010-Ohio-5714 and State v. Moyer, 2009-Ohio-6777—and the United States Supreme Court’s holding in Illinois v. Wardlow, 528 U.S. 119 (2000) for the proposition that a person’s unprovoked flight during a consensual encounter in a high-crime area justifies the warrantless detention of that person.  Presuming the entire encounter preceding the flight to be consensual, the trial prosecutor cited several circumstances—in addition to Mr. Ivery’s unprovoked flight and “high-crime” area—as supporting Officer’s warrantless detention of Mr. Ivery in this case.

Motion to Suppress is Granted by the Trial Court

On February 6, 2023, the trial court entered a judgment granting Mr. Ivery’s motion to suppress.  In so holding, the trial court found that “even though Officer’s interaction with [Mr. Ivery] may have begun as a consensual encounter, it is clear from Officer’s body cam video and testimony that the consensual nature of the encounter ended when [Mr. Ivery] began to walk away and clearly did not want to answer Officer’s questions or interact with him.”  The trial court determined that when Mr. Ivery began to walk away, the officer “should have terminated the encounter” such that “any further pursuit or chase of [Mr. Ivery] by Officer constituted an unlawful detention and seizure within the meaning of the Fourth Amendment.”  And, the trial court noted there was no dispute that, at least before the flight, Officer did not have a lawful basis to detain or stop Mr. Ivery.  Accordingly, it ordered all evidence obtained from the warrantless search of his person—namely, the loaded firearm—to “be suppressed and excluded as ‘fruit of the poisonous tree.’ ”  quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963).

Appeal

The Stop

At the outset, we note that Officer conceded he did not have probable cause to arrest or reasonable suspicion to stop Mr. Ivery when he first parked his cruiser behind Mr. Ivery’s idle car or at any point before Mr. Ivery ran away.  And, the parties agreed that Officer’s initial contact with Mr. Ivery began as a consensual encounter. At issue is whether the challenged seizure was reasonable under the circumstances.  Two distinct periods during the encounter are relevant to our analysis:

(1) after Mr. Ivery began walking away from Officer but before he began to run; and

(2) after Mr. Ivery began running away from Officer.

The state argues the trial court erred in determining that the continued approach by Officer after Mr. Ivery “began to walk away and clearly did not want to answer Officer’s questions or interact with him”—but before Mr. Ivery’s flight—represented a warrantless seizure in violation of the Fourth Amendment to the United States Constitution.  Thus, the state contends that no seizure occurred before Mr. Ivery began running away from the officer.  Accordingly, we must determine whether the facts in this case support the trial court’s finding that Officer’s continued pursuit and questioning of Mr. Ivery before he ran away from the officer constituted an unlawful investigative seizure.

Legal Standard

Consent is a long-recognized exception to the Fourth Amendment’s warrant requirement.  Katz v. United States, 389 U.S. 347, 357.  It is well-established that “law enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.”  United States v. Drayton, 536 U.S. 194, 200 (2002).

Analysis

Upon our review of the record and assuming the encounter began as consensual, we conclude the trial court’s finding that the consensual nature ended before Mr. Ivery began to run away from Officer is supported by competent, credible evidence.

Court Reviews Significant Facts

While it is true that Mr. Ivery’s vehicle was not blocked by the cruiser, it is clear from the conduct of the officer that Mr. Ivery was not free to leave the area.  After Officer parked his cruiser behind Mr. Ivery’s lawfully parked car, Mr. Ivery immediately exited his vehicle and began walking away from the officer.  At the suppression hearing, Officer acknowledged that, during this encounter and before Mr. Ivery began to run, he understood Mr. Ivery “obviously [did not] want to talk to [the officer]” even though Mr. Ivery was answering Officer’s questions while he was in the process of walking away. More pointedly, Officer testified that “[I]t didn’t appear like [Mr. Ivery] wanted to talk to me because he was walking away from me.”

Nonetheless, despite Mr. Ivery clearly conveying he did not want to engage with the officer and continuing to walk away from him, Officer followed Mr. Ivery and repeatedly attempted to investigate him anyway.

At the hearing, Officer admitted he did not have a lawful basis to conduct an investigatory seizure of Mr. Ivery at any point before Mr. Ivery began to run. And, Officer conceded that, by continuing to follow and ask Mr. Ivery questions while Mr. Ivery was walking away, he was investigating Mr. Ivery.

Court Concludes There are Levels of Consent

It is true that Mr. Ivery stopped and answered many of Officer’s questions while he was in the midst of walking away.  But that fact alone does not mean the entire pre-flight encounter was consensual.  On appeal, the state challenges the trial court’s factual findings by contending that Mr. Ivery’s “actions, up until the point he took off running, in no way show that he does not wish to interact with Officer.” But, that claim is belied by Officer’s hearing testimony that, prior to Mr. Ivery’s flight, it was obvious to the officer that Mr. Ivery did not want to talk to him.  As explained above, we defer to the trial court’s findings of fact if they are supported by competent, credible evidence.

Mr. Ivery was Non-Consensual

Although not required to establish Mr. Ivery’s consent to the encounter, we note that Officer did not ask Mr. Ivery if he would be willing to answer some questions—the assent to which would be clear evidence of choice—upon the officer’s initial approach.  Nor did he inform Mr. Ivery at any point during the questioning that he was free to leave.  Instead, Officer—after parking his cruiser behind the vehicle in which Mr. Ivery was lawfully seated and immediately exiting his cruiser—began following and shouting out questions to Mr. Ivery.  Officer admitted he did this because he was trying to investigate Mr. Ivery despite having no reasonable, articulable basis to suspect Mr. Ivery had committed, was in the process of committing, or was about to commit any crime.  Thus, at this point, Mr. Ivery was well-within his rights to ignore the officer’s questions and walk away. And, that is precisely what Mr. Ivery attempted to do.

Officer’s Tone was a Key Factor in the Court’s Analysis

In the absence of any context for such questioning, and based on the testimony and evidence presented at the suppression hearing, we conclude that Officer’s tone and compulsory language reasonably suggested the officer expected Mr. Ivery to stop and answer his questions. This is particularly true when combined with the officer’s continued pursuit and repeated attempts to question Mr. Ivery even after Mr. Ivery disengaged and walked away at least three times before his flight. And, we agree with the trial court’s assessment of the body camera footage as “clearly [showing Mr. Ivery] did not want to answer Officer’s questions or interact with him.”  In the face of Mr. Ivery’s repeated efforts to terminate the encounter, then, the intention behind Officer’s continued pursuit and questioning of Mr. Ivery is transparent.  His repeated engagement efforts and continued pursuit of Mr. Ivery even after Mr. Ivery had clearly and repeatedly conveyed his intention to terminate the encounter were a means to effectuate an investigatory seizure not supported by reasonable, articulable suspicion.  To be sure, Officer testified that had Mr. Ivery continued walking—rather than running—away, he would have continued to follow and ask Mr. Ivery questions but would not “have pursued him all the way into his apartment.” 

Officer’s Physical Actions Were Also Determinative

The actions of Officer thus strongly communicated the message that Mr. Ivery would not be free to leave until Officer’s curiosity was satisfied.  Any act of agreement or consent by Mr. Ivery upon Officer’s successive engagements was not voluntarily and freely given, but rather, constituted an acquiescence to a showing of police authority.  Mr. Ivery was repeatedly prevented from exercising his right to walk away because, each time he did, Officer followed and attempted to reengage him.  The cumulative, coercive effect of Officer’s conduct vitiated any consent to the encounter that Mr. Ivery could have given, meaning that Mr. Ivery’s pre-flight interactions with Officer’s merely served as “‘an expression of futility in resistance to [such] authority.’ ”  United States v. Beauchamp, 659 F.3d 560, 572 (6th Cir.2011), quoting United States v. Worley, 193 F.3d 380, 386 (6th Cir.1999).

The Consensual Encounter Metastasized to an Investigative Detention

The record thus supports the trial court’s finding that the consensual nature of the encounter (during which a citizen is free to leave) between Mr. Ivery and Officer terminated and became an investigative detention (during which a citizen is not free to leave) before Mr. Ivery began to run away from the officer.  The record also supports the trial court’s determination that Officer did not have reasonable, articulable suspicion for an investigatory Terry stop before Mr. Ivery began running away from the officer.  Indeed, Officer admitted as much at the suppression hearing and his body-worn camera supported that concession.

Holding

For these reasons, we find the trial court did not err in concluding that “an unlawful detention and seizure within the meaning of the Fourth Amendment.” occurred before Mr. Ivery ran away.

Accordingly, we overrule the state’s sole assignment of error.

Information for this article was obtained from State v. Ivery, 2023 – Ohio – 3495.

State v. Ivery, 2023 – Ohio – 3495 was issued by the Tenth District Appellate Court on September 28, 2023 and is binding in Franklin County, Ohio.

Lessons Learned:

  1. Legal Block – Law enforcement must always know what legal block they are in and if that legal block changes, what factors led to the change. Here the encounter began as a consensual encounter and when the suspect fled the officer determined it was an investigative detention.  The officer had a gut feeling and his gut feeling was spot-on, since Mr. Ivery was presently armed in a high crime neighborhood. I know the Hilltop is a high crime neighborhood not only because the court stated it, but I worked there and served as the sergeant of that precinct on third shift.
  2. Court Could Not See the Jacket Was Weighted on BWC – In paragraph 19 of the decision the court states “We note, however, the footage does not clearly show the right side of Mr. Ivery’s jacket being heavily weighed down, as compared to the left side.”. Here the court demands absolute proof.  What a linear body camera video shows and what an officer … or any other human sees in real time can be distinguishable.  But the court demands that since they could not see the jacket being weighted down on the right side WHERE THERE WAS A GUN inside, the officer did not see it in real time. This is another time that an appellate court has implicitly held that any factors an officer observes MUST be verified by video.  On June 18, 2020, the Sixth Circuit Appellate Court held “The officers maintain that at both turns, Wright failed to use his turn signal, but there is no dash-cam footage or other evidence to confirm the officers’ word.  Wright insists that he did use his turn signal in both instances.”. Wright v. Euclid, 19 – 3452.  For more on Wright v. Euclid see The Sixth Circuit Holds Mr. Wright was Wronged.
  3. Inevitable Discovery Doctrine – In paragraph 24 the court stated, “At the scene, Mr. Ivery was arrested for felony gun charges and outstanding traffic warrants.”. So why wasn’t the Inevitable Discovery Doctrine argued or evaluated? The issue was the initial detention of Mr. Ivery.  Since the court concluded the initial encounter was unreasonable, then the firearm was a fruit of the poisonous tree even though the presently armed Mr. Ivery had an active warrant.
  4. Free to Leave – In paragraph 48 the court stated, “Nor did he inform Mr. Ivery at any point during the questioning that he was free to leave.”. Law enforcement officers do not have to explicitly tell a person that they are free to leave a consensual encounter.  The court references State v. Scarberry, 2016 – Ohio – 7065.  However, that was a dissenter’s opinion and out of context for this case.  In 1991 the U.S. Supreme Court held “[T]he test ‘is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” California v. Hodari  ,  499 U.S. 621, 628 (1991).  For more on Hodari see Were Hodari’s Felony Flyers Too Fast to be Seized?  The test is objective and though the words of the officer will be a significant factor, the officer does not have to tell a suspect he is free to leave.
  5. Flight Invites Pursuit – On January 12, 2000 the U.S. Supreme Court issued Illinois v. Wardlow, 528 U.S. 119 (2000) and held that four factors led to a reasonable investigative detention of Mr. Sam Wardlow in Chicago on September 9, 1995: 1) The area was a high crime area, 2) During the narcotics raid the officers expected to find lookouts and drug salesmen, 3) Sam Wardlow ran at the very sight of the police officers; and 4) Sam Wardlow had headlong flight – flight that was immediate, intentional and purposively evasive. These four factors are eerily similar to this case and what Mr. Ivery did in Columbus on January 3, 2022, to include both Mr. Wardlow and Mr. Ivery were presently unlawfully armed.  However, the Tenth District did not see the same factors the same way and upheld the Motion to Suppress Mr. Ivery’s firearm.  For more on Wardlow see Why did Sam Run Like a Felon in Possession of a Firearm? This is yet another example as to why law enforcement is THE hardest job in America.

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Robert H. Meader Esq.