State v. Bobo

• Decision Date: 15 June 1988
• Docket Number: No. 87-664,87-664
• Citation: 524 N.E.2d 489,37 Ohio St.3d 177
• Parties: The STATE of Ohio, Appellant, v. BOBO, Appellee.
• Court: Ohio Supreme Court

Page 177

37 Ohio St.3d 177

524 N.E.2d 489

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

No. 87-664.

Supreme Court of Ohio.

Submitted Feb. 3, 1988.

Decided June 15, 1988.

Syllabus by the Court

1. The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. (State v. Freeman [1980], 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044, paragraph one of the syllabus, approved and followed.)

2. 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.

On the night of October 11, 1985, Sergeant Paul Mandzak and two other members of the Cleveland Police Department Narcotics Unit, in an unmarked police car, were investigating an area of the city known for very heavy drug activity. As the officers were patrolling the area, they noticed a car with two occupants legally parked on the street near an open field. After the officers circled the block and returned to the parked car, only one person was in sight within the vehicle. Upon closer observation, the appellee herein, Marvin T. Bobo, was seen popping up in the passenger's side of the front seat of the vehicle, looking at the police officers, and then bending down as if to hide something under the front seat.

The officers approached Bobo's vehicle, asked him to step out, and then looked under the passenger's side of the front seat. There Sergeant Mandzak discovered a gun. Officer Mandzak testified that Bobo admitted owning the gun and the car. As a result, Bobo was arrested and charged with carrying a concealed weapon with a violence specification and, based on a prior conviction for second degree murder, having a weapon while under disability with gun and violence specifications. Prior to trial, Bobo's counsel raised a motion to suppress the weapon which was denied by the trial court. Proceeding with a trial without a jury, the trial court found Bobo guilty of both counts and the specifications.

On appeal, the court of appeals reversed on the ground that "there were not articulable facts to justify the officers' reasonable suspicion that * * * [Bobo] was engaged in criminal activity." Therefore, the court of appeals ruled that since the initial investigative stop was improper, the subsequent search of the vehicle was likewise improper.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Prosecuting Atty., and Jerome E. Dowling, Cleveland, for appellant.

Wesley A. Dumas, Sr., Cleveland, for appellee.

MOYER, Chief Justice.

In this case, the court is presented with the issue of what degree of conduct must a police officer observe to give rise to a "reasonable suspicion" justifying an investigative stop and a protective search of an automobile for the safety of himself and others. For the reasons stated below, we reverse the decision of the court of appeals.

In State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044, paragraph one of the syllabus, this court held the following:

"The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances."

In Freeman, the appellant was stopped after he was observed sitting alone in an automobile in a motel parking lot with the engine turned off. As the appellant was stopped, the police officer explained to him that he had been stopped because there had then been much theft and criminal damage in the parking lot. During the investigative stop, another officer noticed a gun on the front seat of appellant's automobile. Appellant filed a motion to suppress which was overruled by the trial court. On appeal to this court, appellant asserted that "the officer did not have specific and articulable facts which would reasonably lead him to believe that appellant was involved in specific criminal activity," permitting the officer to seize the gun. This court held that the following facts permitted the officer to stop the appellant and, as a result, seize the gun: "(1) the location of the investigation being a high crime area; (2) the officer being quite aware of recent criminal activity in the motel parking lot in which appellant was parked; (3) the time of night being 3:00 a.m.; and (4) the appellant sitting alone in the car at the rear of the building for approximately 20 minutes with the engine turned off." Id. at 295, 18 O.O.3d at 474, 414 N.E.2d at 1047.

The appellant, state of Ohio, contends that the officers had a reasonable suspicion to stop Bobo under the guidelines found in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, 44 O.O.2d 383. The court in Terry stated at 19-20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905, 44 O.O.2d at 392:

" * * * [I]n determining whether the seizure and search were 'unreasonable' our inquiry is a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place."

The court further stated at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906, 44 O.O.2d at 393:

" * * * And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. * * * And in making that assessment it is imperative that the facts be judged against an objective standard: would 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?"

Appellant points to seven separate facts to justify the officers' investigative stop of Bobo: (1) the area in which the actions occurred was an area of very heavy drug activity in which weapons were prevalent; (2) it was nighttime, when weapons could easily be hidden; (3) Sergeant Mandzak, one of the officers who approached the vehicle in which Bobo was sitting, had about twenty years of experience as a police officer and numerous years in the surveillance of drug and weapon activity--included in this experience were about five hundred arrests each for guns or drugs city-wide and over one hundred arrests in the area in which Bobo was parked; (4) Mandzak's knowledge of how drug transactions occurred in that area; (5) Mandzak's observations of Bobo's disappearing from view then reappearing when the police car was close, looking directly at the officers and then bending down as if to hide something under the front seat; (6) Mandzak's experience of recovering weapons or drugs when an individual would make the type of gesture made by Bobo in ducking under his seat; and (7) the police officers' being out of their vehicle and away from any protection if defendant had been armed.

Our evaluation of these factors leads us to conclude that the stop in this case was reasonable. First, the area in which Bobo was parked was an area noted for the number of drug transactions which occurred there. "The reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely" in determining whether an investigative stop is warranted. 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; United States v. Brignoni-Ponce (1975), 422 U.S. 873, 884-885, 95 S.Ct. 2574, 2581-2582, 45 L.Ed.2d 607; United States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859. Cf. United States v. White (C.A.D.C.1981), 655 F.2d 1302, 1304: "Past incidents of numerous law violations of a particular character definitely constitute a fact that officers may consider in the totality of circumstances they rely upon in arriving at a conclusion that they have probable cause to make an arrest." " * * * [T]he 'high-crime' character of an area is a relevant factor, in determining probable cause." Id. See, also, United States v. Thomas (C.A.D.C.1976), 551 F.2d 347, 348; United States v. Brown (C.A.D.C.1972), 463 F.2d 949, 950; and United States v. Davis (C.A.D.C.1972), 458 F.2d 819.

Second, the stop was made at approximately 11:20 p.m. State v. Freeman, supra. Third, the circumstances surrounding the stop must "be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." United States v. Hall, supra, at 859. Here, the lead officer, Sergeant Mandzak, was a veteran of about twenty years on the force with hundreds of drug arrests. Fourth, he (and presumably the other officers) were familiar with the area and how drug transactions occurred there.

The fifth factor cited by the state was the officers' observation of Bobo popping up and then ducking down or leaning forward. A mere furtive gesture, standing alone, does not create probable cause to stop and search a vehicle without a warrant. State v. Kessler (1978), 53 Ohio St.2d 204, 208, 7 O.O.3d 375, 377, 373 N.E.2d 1252, 1256. However, given the previous factors, such a movement may indicate an attempt to conceal a gun or drugs. Also, as noted above, Mandzak had a great deal of experience in making drug arrests, and the gesture made by Bobo was one often made by those engaged in a drug transaction when confronted by the police. The last factor noted by the state, that the officers were out of their vehicle, goes to the reasonableness of the search and will be discussed below.

Under the totality of these circumstances, we find the officers reasonably stopped Bobo for investigative purposes. " * * * The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes...