In re J.C., APPEAL NO. C-180478

• Decision Date: 22 November 2019
• Docket Number: APPEAL NO. C-180478,APPEAL NO. C-180479
• Citation: 2019 Ohio 4815
• Parties: IN RE: J.C.
• Court: Ohio Court of Appeals

2019 Ohio 4815

IN RE: J.C.

APPEAL NO. C-180478

APPEAL NO. C-180479

COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

November 22, 2019

TRIAL NOS. 16-2328 17-2850

OPINION.

Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Reversed and Appellant Discharged

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,

Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler, Assistant Public Defender, for Defendant-Appellant J.C. ZAYAS, Presiding Judge.

{¶1} Following a bench trial before a magistrate, 17-year-old J.C. was adjudicated delinquent for committing an act that had he been an adult would have constituted carrying a concealed weapon. In this appeal, J.C. challenges the stop that led to the charges against him. We conclude that the police officer did not have a reasonable suspicion that criminal activity was afoot at the time J.C. was stopped, and therefore, the evidence that was discovered as a result of the stop should have been suppressed. Accordingly, we vacate the trial court's judgment.

Facts and Procedural History

{¶2} On April 30, 2017, J.C. was walking on a sidewalk along Sevenhills Drive with three of his friends when two Springfield Township police cruisers pulled up and blocked their path. Two police officers exited from their cruisers and ordered the four boys to lie on the ground. J.C. was handcuffed and searched for weapons. The officer conducting the pat-down search, Officer Pat Kemper, found a firearm in the leg of J.C.'s pants.

{¶3} Preceding this stop and arrest, Officer Kemper had observed J.C. on three separate occasions that same day. On the first occasion, Officer Kemper observed J.C. for a few seconds from about 25 feet away walking with a friend near Hamilton Avenue. On the second occasion, he observed him for a couple of minutes near a Rally's restaurant, leaning up against the railing near a walk-up service window. And, on the third occasion, just before the stop, Officer Kemper observed J.C. for approximately five seconds walking along Sevenhills Drive. On all three occasions, Officer Kemper said J.C. appeared casual at first, but when he saw the police cruiser J.C. looked down and put his right hand on his right hip "as though hewas protecting something that was concealed in his waistband." Officer Kemper testified that this action seemed unnatural, as J.C. was not holding onto a belt or a belt loop, or grasping at anything with his hand. Officer Kemper stated that he thought to himself "the kid's got a gun in his waistband."

{¶4} Officer Kemper described the area in which he stopped J.C. as "an extremely violent neighborhood, [with] lots of gun violence." Officer Kemper was investigating an assault that took place at an apartment complex nearby. J.C. was not involved in the assault or the investigation, and Officer Kemper answered, "No" when asked whether J.C. matched the description of anyone reported to have been engaged in criminal or suspicious activity.

{¶5} After seeing J.C. the first time, Officer Kemper said to an officer also investigating the assault, Sergeant Mark Downs, that he thought J.C. had a gun and "[i]f we get a chance later on, I'd like to maybe try and find him and see what's going on with him." After seeing J.C. the second time, Officer Kemper said to Sergeant Downs, "I'm convinced that [J.C.'s] got a gun on him. He's hiding something." But Officer Kemper and Sergeant Downs were then called to investigate another incident. Sergeant Downs indicated that he and Officer Kemper should return to the area after investigating the incident to find J.C. After seeing J.C. for a third time, Officer Kemper stated that "[o]nce he got closer to me, his left arm continued swinging as it naturally would, his right arm pointed close to his hip right about the belt line, again as though he was protecting something that was concealed in his waistband." Officer Kemper, a six-year veteran of law enforcement, testified that when someone is protecting a certain area of their waistband, "it's typically to conceal an item," and "more often than not, it's going to be a firearm." Officer Kemper continued,

You learn from-even from me—carrying off-duty, you're constantly checking it to make sure that your shirt's over it, nobody can see it. Can you see it through the shirt? Is it sitting right, or if you don't want anybody to see it, you'll conceal it. So just from my personal knowledge of carrying a concealed weapon, I know how an individual acts when they're carrying a concealed weapon.

{¶6} Officer Kemper had never seen J.C. prior to that day. He testified that J.C. appeared to be a juvenile and looked well under the age of 21. Officer Kemper testified that the impetus for the stop was his suspicion that a juvenile was carrying a firearm—a crime in Ohio under R.C. 2923.12, which restricts carrying concealed weapons to adults aged 21 and older.

{¶7} When Officer Kemper and Sergeant Downs pulled their marked police cruisers onto the sidewalk in front of the boys' path, J.C. stepped behind a friend, bladed his body, and moved both of his hands to his right hip. Officer Kemper testified that "bladed his body" meant that J.C. turned his body about 45 degrees, so that the weapon Officer Kemper believed J.C. to be carrying on his hip would be farther away from the officers. Officer Kemper, believing this movement to be even more indicative of someone carrying a firearm, stood behind his cruiser and gave verbal commands, while Sergeant Downs drew his weapon and ordered the boys to the ground. The boys complied with the officers' commands. Officer Kemper then conducted the search.

{¶8} J.C. was charged with carrying a concealed weapon, in violation of R.C. 2923.12, and violating his probation for failing to abide by the conditions of his house arrest. J.C. filed a motion to suppress the evidence gathered from the stop. The motion was denied and the matter proceeded to a trial before a magistrate. J.C.was adjudicated delinquent for carrying a concealed weapon and violating probation. Over objections, the juvenile court adopted the magistrate's decision. J.C. now appeals, asserting three assignments of error.

Legal Analysis

{¶9} We address J.C.'s assignments of error out of order. In his second assignment of error, J.C. argues that the juvenile court erred in denying his motion to suppress because the police officers did not have a reasonable and articulable suspicion to stop him. The state argues to the contrary—that the officers' stop of J.C. was valid under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{¶10} Appellate review of a motion to suppress involves a mixed question of law and fact. State v. Arrazzaq, 1st Dist. Hamilton No. C-110831, 2012-Ohio-4365, ¶ 7, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71. The trial court, as the trier of fact, is in the best position to resolve factual questions and to evaluate the credibility of witnesses. Id. The appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Id. "The appellate court must then determine, without any deference to the trial court, whether the facts satisfy the applicable legal standard." Id.

{¶11} The Fourth Amendment to the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *." "The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment." Maryland v. King, 569 U.S. 435, 466, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (Scalia, J., dissenting).

{¶12} "The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but 'to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.' " United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). As long as the person questioned "remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." Mendenhall at 553-554. Accordingly, not all personal interaction between police officers and citizens involves seizures of persons. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred" within the meaning of the Fourth Amendment. Terry, 392 U.S. at 19, 88 S.Ct. 1868, 20 L.Ed.2d 889, fn. 16; see Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

{¶13} In order for a police officer to initiate the seizure of a person for an investigatory stop without violating the person's Fourth Amendment rights, the officer must have an articulable and reasonable suspicion of the person's involvement in criminal activity. Terry at 21. Such a suspicion may be based on an officer's justified belief that an individual may be "armed and presently dangerous," permitting the officer to conduct a limited protective search of the individual for concealed weapons—the so-called Terry stop. Id. at 24; see Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

{¶14} Reasonable suspicion entails a minimal level of objective justification, "that is, something more than an inchoate and unparticularized suspicion or 'hunch,'but less than the level of suspicion...