[W]e hold that the officers had reasonable suspicion to search and detain Mr. O’Neal.

 

State v.O’Neal

2023 – Ohio – 3268

First District Appellate Court

Hamilton County, Ohio

September 15, 2023

Co-Conspirators Mr. O’Neal and the A.D. Indicted on Various Felony Charges

Following an encounter with police in the Avondale neighborhood of Cincinnati, Mr. Adonis O’Neal and A.D. were indicted on various felony charges. For his part, Mr. O’Neal was charged with three offenses related to the unlawful possession of a firearm and with two drug offenses. He then moved to suppress evidence obtained from the search and seizure of his person and the car he was traveling in.

A.D. filed a similar motion in his case, and the trial court heard evidence related to A.D.’s motion to suppress. In lieu of presenting evidence with regard to Mr. O’Neal ’s suppression motion, the parties submitted the transcript from A.D.’s suppression hearing instead.

At A.D.’s suppression hearing, Cincinnati Police Officer Brian Follrod testified that he was in plain clothes patrolling the Avondale neighborhood. He testified that he observed Mr. O’Neal and A.D. pull into a parking lot and walk into a convenience store. Officer Follrod saw the grip of a pistol protruding from Mr. O’Neal ’s front pocket when he came out of the convenience store.

 

Can a Chicken Bone be Littered?

After they came out of the store, Mr. O’Neal and A.D. got back in the car and in the area. Because he was in plain clothes and undercover, he could not stop the car. But he saw the car turn left and pull over. At that point, another officer stopped the occupants. When Mr. O’Neal and A.D. stepped out of the car, Officer Follrod no longer saw the pistol in Mr. O’Neal ’s pocket. But he did see Mr. O’Neal throw what looked like a chicken bone on the ground. Further, Officer Follrod ran the license plate of the car and noted that no one associated with the car had a concealed-carry permit.

Officer Mauric Patted Down Mr. O’Neal and Did Not Discover the Firearm

Officer Matthew Mauric, one of the officers that Officer Follrod alerted, arrived after Mr. O’Neal and A.D.’s car had parked and the two men were standing beside it. Officer Mauric observed that the car had excessive window tint. Based on Officer Follrod’s observation of Mr. O’Neal littering and the firearm in his pocket, Officer Mauric detained, patted down, and later arrested Mr. O’Neal and A.D. Officer Mauric confirmed that Mr. O’Neal was prohibited from possessing a firearm after obtaining his social security number and running his record.

A Marijuana Cigarette Provides Probable Cause to Search the Vehicle

Officer Mauric further testified that while he was standing next to the car, he observed a marijuana cigarette in the center console. He believed he had probable cause to search the car based on his observation of the marijuana cigarette. He also testified that because no firearm was recovered from Mr. O’Neal or A.D., he believed the firearm was in the car.

Trial Court Determined that Littering, Excessive Window Tint and Possession of Marijuana Did Not Rise to Probable Cause

The trial court granted Mr. O’Neal ’s motion to suppress, finding that the officers did not have reasonable suspicion or probable cause to stop, detain, or search Mr. O’Neal or the car. The state now appeals.

This court reviews a trial court’s decision as to a motion to suppress de novo. State v. Thyot, 2018-Ohio-644.  “We must accept the trial court’s findings of fact as true if competent, credible evidence supports them. But we must independently determine whether the facts satisfy the applicable legal standard.”

Hamilton County Prosecutor’s Office Appeals

In its sole assignment of error, the state argues the trial court erred in granting Mr. O’Neal’s motion to suppress. And in its first issue for review under this assignment of error, the state asserts Officer Follrod’s observation of a pistol grip in Mr. O’Neal ’s pocket provided the officers with reasonable suspicion to detain and investigate him.

Established Case Law that Supports Probable Cause Provides Enough Legal Authority to Detain a Suspect

The Supreme Court of Ohio detailed the requirements of an investigatory or Terry stop in State v. Hairston:

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Its protections extend to brief investigative stops that fall short of traditional arrests. An officer may perform such a stop when the officer has a reasonable suspicion based on specific and articulable facts that criminal behavior has occurred or is imminent. And when the officer is justified in believing that an individual may be armed and presently dangerous, the officer may conduct a limited protective search of the individual for concealed weapons.

The reasonable-suspicion standard is less demanding than the probable-cause standard used when analyzing an arrest. The determination [of] whether an officer had reasonable suspicion to conduct a Terry stop must be based on the totality of circumstances viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. We consider the cumulative facts not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

State v. Hairston, 2019-Ohio-1622

Note: The First District Appellate Court misspelled Hairston as Hariston.  I made the correction in this article.

 

If an Officer Observes a Person with a Firearm that is Enough to Further Investigate the Person

With regard to firearms, the law in place at the time police searched Mr. O’Neal only permitted certain individuals to carry concealed weapons, namely those with permits or subject to specific permit exemptions. See O.R.C. §2923.12 see also State v. Taylor, 2009-Ohio- 5822, (describing former concealed-carry law). Courts construing this law have upheld investigatory stops where police directly observe a person in possession of a firearm. See, e.g., Taylor at ¶ 8; State v. Moyer, 2009-Ohio-6777, (“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.”). After all, police may have no way of knowing if the person has a permit to possess a concealed weapon or if he or she is are instead committing an unlawful weapons offense without stopping the person to investigate.

The Gun-Toting Mr. O’Neal Provided Reasonable Suspicion for Officer Follrod to Stop and Detain Him

Here, Officer Follrod directly observed Mr. O’Neal possessing a firearm and had no information that Mr. O’Neal had a permit to do so. Officer Follrod knew, however, that the owner of the car did not have a concealed-carry permit, because a license-plate check revealed no such permit. These facts were sufficient to create reasonable suspicion that Mr. O’Neal may have been committing a weapons-possession offense and to justify an investigatory stop. See Taylor at ¶ 7. Accordingly, based on the totality of the circumstances, we hold that the officers had reasonable suspicion to detain and investigate Mr. O’Neal.

Note:  Though the exact date of this incident is not provided by the court, my assumption is that it occurred prior to June 13, 2022 that began O.R.C. §2923.111 – Permitless Carry.  If an officer observes a handgun protruding from a person’s pocket today and that person reasonably appears to be twenty-one years or older, the court may not come to the same conclusion.

‘Well Established’ Case Law that Supported the Search of Mr. O’Neal’s Vehicle

In its second issue presented for review, the state argues the search of the car was permissible pursuant to the automobile exception to the warrant requirement. We agree.

In State v. Acoff, we explained the parameters of the automobile exception:

Under the automobile exception, officers are permitted to conduct a warrantless search of a lawfully stopped automobile if they have probable cause to believe that the vehicle contains contraband. When an officer has probable cause to search an automobile, the officer may conduct a warrantless search of every part of the vehicle and its contents, including all movable containers and packages that could contain the object of the search. State v. Acoff, 2017-Ohio-8182.

The automobile exception to the warrant requirement is well- established. State v. Moore, 90 Ohio St.3d 47 (2000). It exists because the inherent moveability of a car creates a real danger that contraband can be removed before a warrant can practically be issued. Id., citing South Dakota v. Opperman, 428 U.S. 364, 367, (1976). As we noted in Acoff, the absence of a traffic stop does not prevent the application of the automobile exception, as cars can always be moved even if they are not subject to an officer- initiated stop. Acoff at ¶ 24.

The Only Logical Explanation …

The state argues the search of the car was supported by the officers’ belief that the firearm was in the car. This belief was reasonable given Officer Follrod’s observation of the pistol grip in Mr. O’Neal ’s pocket moments before the car stopped and Officer Mauric engaged Mr. O’Neal and A.D. Though Mr. O’Neal argues any initial suspicion that he was illegally carrying a firearm was dispelled after he was searched, this actually made it more likely that the firearm was in the car. In explaining the basis for his probable – cause determination, Officer Mauric testified that after Mr. O’Neal and A.D. were searched and were found not to be in possession of the gun, “the only logical explanation would be that the firearm would have stayed inside of that vehicle.”Further, given the excessive window tint Officer Mauric observed, the officers would likely not have seen the firearm in their plain view.

Mr. O’Neal Qualified Himself for the Search of his Automobile

To qualify for the automobile exception, however, the police must have been searching for contraband in the vehicle—meaning that officers needed probable cause to believe that Mr. O’Neal ’s possession of the gun was unlawful. Importantly, before searching the car, Officer Mauric ran Mr. O’Neal ’s social security number and confirmed that Mr. O’Neal was disabled from possessing a firearm. The police therefore possessed sufficient justification to believe that the gun was contraband and to search the car for it, making the automobile exception applicable here. Acoff, 2017-Ohio-8182.

Conclusion and Holding

For the reasons set forth above, we hold that the officers had reasonable suspicion to search and detain Mr. O’Neal. We further hold that the officers had probable cause to search the car Mr. O’Neal was traveling in pursuant to the automobile exception to the warrant requirement. The trial court, therefore, erred in granting Mr. O’Neal ’s motion to suppress. The state’s assignment of error is sustained, the trial court’s judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion and the law.

Judgment reversed and cause remanded.

Information for this article was obtained from State v. O’Neal, 2023 – Ohio – 3268.

State v. O’Neal, 2023 – Ohio – 3268 was issued by the First District Appellate Court and is binding in Hamilton County, Ohio.

Lessons Learned:

  1. Can a Chicken Bone be Littered?   O.R.C. §3767.32(A) “No person, regardless of intent, shall deposit litter …. On any public property.”.  Here, the following occurred “Officer Follrod no longer saw the pistol in Mr. O’Neal ’s pocket. But he did see Mr. O’Neal throw what looked like a chicken bone on the ground.”.  Most criminal statutes include a definitive mens rea that defines the intent of the bad actor.  In Ohio, law enforcement or the prosecution do not have to prove the person’s intent when he litters … even a chicken bone.
  2. Personal Experience – Early in my career, I had a gut feeling a person was a thief but did not have enough to detain him. When I observed him he was on the other side of a parked car in the Short North, in Columbus, Ohio, so I could only see his shoulders and head.  I heard something metal hit the ground next to him.  As I stepped out of the cruiser, I immediately drew my firearm as I thought he dropped a gun.  He did not have a firearm but had a set of bolt cutters and dropped them as I approached.  I asked if the bolt cutters were his and he said yes.  I then asked if he still wanted the bolt cutters and he said no.  Aha!  I charged him with littering the bolt cutters that led to several other charges as the investigation grew, but it began with littering bolt cutters!
  3. Did observation of the Handgun Protruding from Mr. O’Neal’s Pocket Establish Reasonable Suspicion? The First District Appellate Court quoted the Supreme Court of Ohio “We consider the cumulative facts not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”  State v. Hairston, 2019-Ohio-1622 As the First District Appellate Court recognized in this case held “[B]ased on the totality of the circumstances, we hold that the officers had reasonable suspicion to detain and investigate Mr. O’Neal .” For more on State v. Hairston see Was Sixty Seconds Enough Time to Establish Reasonable Suspicion?.
  4. Did the Marijuana Joint Establish Probable Cause? Yes! The U.S. Supreme Court established the Automobile Exception “On reason and authority, the true rule is that, if the search and seizure without a warrant are made upon probable cause that an automobile or other vehicle contains [contraband] … the search and seizure are valid.” Carroll v. United States, 267 U.S. 132 (1925).  Also, the Supreme Court of Ohio held “[T]he smell of marijuana alone, by a person qualified to recoginize the odor, is sufficient to establish probable cause to search a motor vehicle pursuant to the automobile exception to the warrant requirement.”  State v. Moore, 90 Ohio St.3d 47, 48 (2000). In this case Officer Mauric observed the Marijuana cigarette/joint so there was plenty of probable cause to search the vehicle that led to the firearm that led to the firearms charge [Note: The First District Appellate Court does not identify which specific firearm charge Mr. O’Neal was charged and convicted.]
  5. Pre-Sent Arms! Cincinnati Police Officer Brian Follrod and Officer Matthew Mauric should both be highly commended for their professionalism and legal acumen for investigating, charging and with the help of the Hamilton County Prosecutors Office, upholding the conviction of Mr. O’Neal. I am saddened that the trial court judge was unable to recognize the initial Reasonable Suspicion to stop Mr. O’Neal and his co-conspirator A.D. or the Probable Cause to search the vehicle. Both of these legal actions are ‘well established’ except for one courtroom in Cincinnati.

Does your agency train on Investigative Detention?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.