State v. Andrews

• Decision Date: 23 January 1991
• Docket Number: No. 89-2107,89-2107
• Citation: 565 N.E.2d 1271,57 Ohio St.3d 86
• Parties: The STATE of Ohio, Appellant, v. ANDREWS, Appellee.
• Court: Ohio Supreme Court

Page 86

57 Ohio St.3d 86

565 N.E.2d 1271

The STATE of Ohio, Appellant, v. ANDREWS, Appellee.

No. 89-2107.

Supreme Court of Ohio.

Submitted Nov. 28, 1990.

Decided Jan. 23, 1991.

Ohio 1991.

Police officer had reasonable objective basis for frisking defendant after Terry stop, where officer was in dark, unlighted courtyard, alone and away from his police cruiser, abruptly encountered defendant running between two buildings and apparently away from police cruiser, defendant stopped and made quick movement, throwing onto ground what he had been carrying in his hand, and officer knew that he was in high crime area. U.S.C.A. Const.Amend. 4.

On the night of October 18, 1988 at 8:35 p.m., Officer Raymond F. Martin, a twelve-and-a-half-year veteran of the Dayton Police Department, and his partner were patrolling the 3800 block of Roland Circle in Dayton, Ohio. They were in separate cruisers and not responding to a specific call. Roland Circle is an area high in drug activity, violence, and weapons-related crime. Martin was aware of the character of the area as he had been working there for a month and a half, and he was also familiar with police activity reports for the area. While his partner questioned an individual at his cruiser, Martin left his car and began patrolling on foot. Martin entered a large, grassy courtyard located between two apartment buildings. Although the street was lighted, the courtyard and buildings were not lighted and were extremely dark. As Martin entered the courtyard, he observed a police cruiser driving down Roland Circle. Martin then saw a man running between the buildings, away from the road and the police cruiser he had just seen, and towards him into the courtyard. The man stopped running when Martin shined his flashlight on him. The man threw down a can of beer he was carrying in his right hand. He was then about ten feet in front of Martin. Martin, believing that the man may have been running from the police cruiser and, fearing for his own safety, told the man to put up his hands, pulled out his gun, and grabbed the man by the chest. Martin then told the man to keep his hands up, holstered his gun, and proceeded to pat the man down. He felt a hard object in the shape of a gun in the man's right rear pocket which turned out to be a loaded .25 caliber automatic handgun. Martin arrested the man, defendant-appellee, Christopher A. Andrews, and advised him of his Miranda rights.

The Montgomery County Grand Jury indicted Andrews for carrying a concealed weapon in violation of R.C. 2923.12(A). Andrews moved to suppress the firearm contending that Martin had conducted an illegal "stop and frisk" in violation of the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.

The trial court overruled the motion to suppress holding that Martin had reasonable cause to stop and frisk Andrews. Andrews entered a plea of no contest to the charge of carrying a concealed weapon, after which the trial court found him guilty and sentenced him to one year in prison for the offense.

On appeal, the court of appeals reversed and vacated the conviction and sentence, holding that the search and seizure violated Andrews' Fourth Amendment rights.

The cause comes before us on the allowance of a motion for leave to appeal.

Lee C. Falke, Pros. Atty., and Lorine M. Reid, for appellant.

Debra L. Landon, for appellee.

Randall M. Dana, Ohio Public Defender, and John A. Bay, urging affirmance for amicus curiae, Ohio Public Defender.

HERBERT R. BROWN, Justice.

This case requires us to determine whether Officer Martin had a reasonable suspicion to justify his investigative stop and protective search of Andrews. For the reasons set forth below, we hold that Martin's "stop and frisk" of Andrews was reasonable and reverse the court of appeals.

The Fourth and Fourteenth Amendments to the United States Constitution prohibit any governmental search or seizure, including a brief investigative stop, unless supported by an objective justification. United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621; Reid v. Georgia (1980), 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890; Terry v. Ohio (1968), 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889. ¹ In determining the propriety of Martin's conduct, we must analyze: (1) the investigatory stop, and (2) the protective search. The analysis is governed by the standards enunciated in Terry v. Ohio, supra, and its progeny. We recognize that the circumstances of this case (as to both the stop and the frisk) present a close question of fact. The law does not and cannot provide bright lines or easy answers in a case such as this. Having recognized the difficulty, we will first examine the investigatory stop of Andrews by Martin.

In Terry, the United States Supreme Court held that a police officer may stop and investigate unusual behavior, even without probable cause to arrest, when he reasonably concludes that the individual is engaged in criminal activity. In assessing that conclusion, the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct. at 1880. Furthermore, the standard against which the facts are judged must be an objective one: "[W]ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Id. at 21-22, 88 S.Ct. at 1880.

Since Terry, courts have struggled with the elusive concept of what comprises a reasonable suspicion that someone is engaging in, or about to engage in, criminal activity. "Terms like 'articulable reasons' and 'founded suspicion' are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise." Cortez, supra, 449 U.S. at 417, 101 S.Ct. at 695. Fleshing these terms out, courts have concluded that an objective and particularized suspicion that criminal activity was afoot must be based on the entire picture--a totality of the surrounding circumstances. Id. at 417-418, 101 S.Ct. at 694-695; State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489; United States v. Rickus (C.A.3, 1984), 737 F.2d 360, 365. Furthermore, these circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. United States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859; State v. Freeman (1980), 64 Ohio St.2d 291, 295, 18 O.O.3d 472, 474, 414 N.E.2d 1044, 1047. A court reviewing the officer's actions must give due weight to his experience and training and view the evidence as it would be understood by those in law enforcement. Cortez, supra. ²

The state urges that Martin's investigative stop of Andrews was reasonable under the standards set in the foregoing cases. Specifically they point to five factors: (1) the investigative stop took place in a high crime area, (2) it occurred at night and in a dark area, (3) Martin had twelve and a half years' experience on the police force, (4) Martin was away from his police cruiser and alone at the time of the stop, and (5) Martin saw the defendant running away from the direction of a police cruiser and into the dark courtyard.

We believe that the facts support a reasonable suspicion by Martin that Andrews was engaged in criminal activity. Martin was an experienced police officer with twelve and a half years on the force and was familiar with the Roland Circle area. We must view the circumstances of the stop through his eyes. He was the " 'reasonable and cautious police officer on the scene' " who is guided by his own experience and training. Freeman, supra, at 295, 18 O.O.3d at 474, 414 N.E.2d at 1047; United States v. Hall, supra, at 859.

The stop took place in an area high in drug activity, violence, and weapons-related crime. An area's reputation for criminal activity is an articulable fact which is a part of the totality of circumstances surrounding a stop to investigate suspicious behavior. Bobo, supra, 37 Ohio St.3d at 179, 524 N.E.2d at 491; Freeman, supra. See, also, United States v. Magda (C.A.2, 1976), 547 F.2d 756, 758, certiorari denied (1977), 434 U.S. 878, 98 S.Ct. 230, 54 L.Ed.2d 157.

Finally, Martin observed a man running between two apartment buildings, into a dark courtyard, and (from the point of view of Martin) away from a police cruiser. When the suspect saw the officer he suddenly stopped and threw down what he was carrying in his hand.

This case cannot be resolved on the basis of any one of the factors we have enumerated. However, when taken collectively, those factors indicate that Martin did not violate constitutional rights in stopping and investigating Andrews' behavior.

"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause for arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response." Adams v. Williams (1972), 407 U.S. 143, 145, 92 S.Ct. 1921, 1922, 32 L.Ed.2d 612. In this case a brief stop of Andrews, while Officer Martin determined his identity, was reasonable.

Having determined that the stop was reasonable, we must next determine whether Martin was entitled to frisk Andrews. The frisk, or protective search, approved in Terry is limited in scope to a pat-down search for concealed weapons when the officer has a reasonable suspicion that the individual whose behavior he is investigating at close range may be armed and dangerous. Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883. While probable cause is not required, the standard to perform a protective search, like the standard for an investigatory stop, is an objective one...