In re J.C.

      [Cite as In re J.C., 

.]



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




IN RE: J.C.                                   :   APPEAL NOS. C-180478
                                                              C-180479
                                              :    TRIAL NOS. 16-2328
                                                             17-2850
                                              :

                                              :        O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: November 22, 2019


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.
                       OHIO FIRST DISTRICT COURT OF APPEALS




Z A Y A S , 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 he


                                          2
                     OHIO FIRST DISTRICT COURT OF APPEALS

was 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,




                                           3
                     OHIO FIRST DISTRICT COURT OF APPEALS

       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.



                                           4
                      OHIO FIRST DISTRICT COURT OF APPEALS

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, 

, 

, 

 (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, 

, citing State v. Burnside, 

, 

, 

.

The trial court, as the trier of fact, is in the best position to resolve factual questions

and to evaluate the credibility of witnesses. 

 The appellate court must accept the

trial court’s findings of fact if they are supported by competent, credible evidence.

 “The appellate court must then determine, without any deference to the trial

court, whether the facts satisfy the applicable legal standard.” 

       {¶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, 

,

, 

 (2013) (Scalia, J., dissenting).



                                            5
                     OHIO FIRST DISTRICT COURT OF APPEALS

       {¶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, 

, 

, 

 (1980), quoting United States v. Martinez-Fuerte, 

, 

, 

 (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.” 

. 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, 

, 

, 

; see Brendlin v. California, 

, 

, 

 (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. 

. 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. 

; see Adams v. Williams, 

, 

, 

 (1972).

       {¶14} Reasonable suspicion entails a minimal level of objective justification,

“that is, something more than an inchoate and unparticularized suspicion or ‘hunch,’



                                          6
                     OHIO FIRST DISTRICT COURT OF APPEALS

but less than the level of suspicion required for probable cause.” State v. Jones, 

, 

 (2d Dist.1990), citing 

; see

State v. Carter, 

, 

 (1994) (concluding that a

police officer’s inarticulate hunch will not provide a sufficient basis for an

investigative stop). “A police officer may not rely on good faith and inarticulate

hunches to meet the Terry standard of reasonable suspicion.” 

.

       {¶15} 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.” State v. Andrews, 

, 

(1991). An analysis of the totality of the circumstances “does not deal with hard

certainties, but with probabilities.” United States v. Cortez, 

, 

, 

 (1981). A court must consider the cumulative facts “not in

terms of library analysis by scholars, but as understood by those versed in the field of

law enforcement.” 

 But, “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?” Terry, 

, 

, 

.

       {¶16} In this case, we begin our analysis at the point of the stop. This is not

an instance in which police officers “merely approach[ed] an individual on the street

* * * by asking him if he [was] willing to answer some questions.” See Florida v.

Royer, 

, 

, 

 (1983) (plurality opinion);

see also United States v. Young, 

 (1st Cir.1997) (finding only a

“minimally intrusive” interaction that “d[id] not trigger the protections of the Fourth



                                           7
                     OHIO FIRST DISTRICT COURT OF APPEALS

Amendment” when the police officers had pulled alongside the appellant, identified

themselves as police officers, and asked “Got a minute?,” to which the appellant

replied, “Sure”). Here, Officer Kemper and Sergeant Downs pulled their marked

police cruisers onto a sidewalk, intentionally blocking J.C.’s path. It is at this point

that the officers, by means of a clear showing of physical force and authority,

restrained J.C.’s liberty to walk further. See 

; United States v. Camacho,

 (1st Cir.2011) (finding that appellant’s initial detention constituted

a seizure rather than a consensual encounter where a police officer saw appellant

walking on a residential sidewalk and the officer pulled his marked Crown Victoria

into a driveway ahead of him, partially blocking appellant’s path). A reasonable

person in J.C.’s circumstances would not “feel free to disregard the police and go

about his business.” (Internal quotations omitted.) 

.

       {¶17} In a recent Ohio Supreme Court case, the court analyzed Terry and

cases that flowed from that decision in considering a motion to suppress where an

individual was stopped in a crosswalk and searched for a gun. See State v. Hairston,

, 

, 

. In Hairston, concluding the

officers had a reasonable suspicion to stop Hairston—the only person found in the

vicinity of the sound of gunshots—the court stated,

       First, Officer Moore personally heard the sound of gunshots—the

       gunshots were not faint and sounded close-by. This is not a case in

       which the officers relied on a radio dispatch or other secondhand

       information about shots being fired, In re D.W., 

,

       

, 

 (2d Dist.), but one in which

       they heard and immediately reacted to the sound of nearby gunfire.

       Second, Officer Moore knew from personal experience that crime often



                                           8
                     OHIO FIRST DISTRICT COURT OF APPEALS

       occurred at night in the area where the stop took place. Officer Moore

       had worked the same beat for six years. He was familiar with drug and

       other criminal activity near the school, and he had made arrests for

       illegal weapons and other crimes there in the past.

. An officer’s experience with criminal activity in an area and an

area’s reputation for criminal activity are relevant factors to the reasonable-suspicion

analysis. 

 citing State v. Andrews, 

, 

 (1991);

State v. Bobo, 

, 

 (1988).             However, an

individual’s “presence in a high-crime or high-drug area, by itself, is insufficient to

justify the stop and frisk of a person, especially when the officer indicated that the

offender did nothing to make the officer worry that the offender would harm him.”

State v. Millerton, 

, 

, ¶ 32 (2d Dist.), citing State v.

Habel, 

, 

, 

, ¶ 24 (2d Dist.); see

State v. Carter, 

, 

 (1994). A stop that occurs after

dark is another circumstance found to be of some significance in the reasonable-

suspicion analysis. 

, citing 

.

       {¶18} Here, while Officer Kemper had six years of experience in law

enforcement and was patrolling an area he said was known for gun violence, Kemper

observed J.C. on three separate, rather uneventful occasions all during the daytime.

Unlike Hairston, the officers were not immediately reacting to personally hearing the

sound of gunfire nearby or personally observing activities that taken together rose to

the level of reasonable suspicion.

       {¶19} This case is more like a relatively recent case from this court, in which

we found that no reasonable, articulable suspicion existed at the time a stop of a

juvenile was initiated, In re M.P., 1st Dist. Hamilton No. C-130663, 

.



                                           9
                     OHIO FIRST DISTRICT COURT OF APPEALS

M.P. involved a juvenile who was stopped and arrested for carrying a concealed

weapon. The stop was based on a police detective’s hunch that M.P. had been

involved in an incident involving a gun days earlier. Id. at ¶ 1. The police detective,

Mark Longworth, had M.P. stopped as he was walking with a friend down the street.

Detective Longworth testified that M.P. was wearing baggy shorts—“clothing that,

according to Detective Longworth, was ‘such that you could conceal a firearm,’ ” and

demonstrated an unusual interest in a police cruiser by blading his body as the

cruiser passed him. Id. at ¶ 4.

       {¶20} This court stated,

       Although the soundness of Detective Longworth’s hunch of M.P. was

       borne out by the end result, there was no evidence that at the time of

       the stop M.P. was presently involved in a criminal activity. Detective

       Longworth, who had been watching M.P for only five to ten minutes,

       had no basis to believe that a crime had just occurred, was occurring,

       or would occur soon. The fact that Detective Longworth suspected

       some involvement in the past incident did not create a reasonable

       suspicion that M.P. was presently engaged in a criminal act.

Id. at ¶ 11.   This court ultimately found that because there was no reasonable

suspicion for the stop, M.P.’s motion to suppress should have been granted.

       {¶21} In the present case, like M.P., the stop was preceded by a police

officer’s observation of a juvenile making an unusual physical movement upon seeing

a police cruiser. And, like M.P., the officer suspected the juvenile of carrying a

concealed weapon.      But the circumstances here involve even less ostensibly-

suspicious behavior. Unlike M.P., Officer Kemper did not suspect J.C. of having

been involved in some past or present incident. When Officer Kemper encountered



                                          10
                      OHIO FIRST DISTRICT COURT OF APPEALS

J.C., an individual he had never seen before, Kemper was investigating a nearby

assault and was later called off to another incident—both entirely unrelated to J.C.

The only criminal act that Officer Kemper suspected J.C. of committing was carrying

a concealed weapon as a juvenile. In other words, J.C.’s status as a juvenile is what

made the act criminal, as carrying a concealed weapon as an adult (aged 21 or older,

with the requisite permit) is legal.

       {¶22} Regardless of J.C.’s status as a juvenile though, Officer Kemper’s belief

that J.C. was carrying a concealed weapon was based on an inarticulate hunch.

Specifically, no additional facts supported Officer Kemper’s theory. For example,

Officer Kemper did not describe a bulge in J.C.’s pants, see State v. Evans, 

, 

 (1993), a metallic object, see State v. Roberson, 9th Dist.

Lorain No. 10CA009743, 

, or the outline of a gun, see State v. Travis,

8th Dist. Cuyahoga No. 98420, 

. He also did not report, for instance,

that he received a tip about a juvenile with a gun. See In re Long, 5th Dist. Stark No.

2004-CA-00377, 

.         Each time Officer Kemper saw J.C., he was

described as making the same innocuous movement.

       {¶23} Moreover, Officer Kemper’s testimony on his experience with carrying

a concealed weapon on his waist did not support an objective justification for the

stop. He testified to his personal experience of thinking about his concealed weapon,

and to his concern about how his weapon appeared to others when he attempted to

keep it concealed. Officer Kemper described how he is “constantly checking” his

concealed firearm, but did not describe “constantly checking” to mean that he would

cover his hip in the same manner that J.C. covered his. His testimony did not

describe any movement of his arms or how someone moves when they are carrying a

concealed weapon.



                                          11
                     OHIO FIRST DISTRICT COURT OF APPEALS

       {¶24} Additionally, Officer Kemper’s testimony as to what he believed was

concealed was insufficient.   Officer Kemper repeatedly described J.C. as hiding

something, but did not describe any objective details to validate his conclusion that

the something that J.C. was concealing was a gun. At least in the cases cited by the

dissent—for the proposition that “hand-to-waist movements are indicative of

concealing a weapon”—the officers had something more to go on. See United States

v. Smith, 

 (6th Cir.2011) (prior to hand-to-waist movement,

appellant was seen arguing with a woman, aggressively grabbing her and preventing

her from walking away on several occasions, before two police officers responded to

the scene and chased the fleeing appellant through a housing complex that was

known for homicides, shootings and drug activity); United States v. Humphries, 

 (4th Cir.2004) (concurrent with hand-to-waist movement—in a state

where the odor of marijuana emanating from a person provided probable cause to

arrest that person without a warrant in a public place—appellant was seen in a high-

crime area and emanated the distinct odor of marijuana before retreating at a quick

pace away from a police officer into a nearby house); United States v. Mattes, 

 (7th Cir.1982) (prior to hand-to-waist movement, appellant was seen

in a bar wearing a gang-affiliated hat and matched the description of a suspect

reported to have been involved in an earlier bar fight with a gang-member where

shots were fired, and stood up and looked away when police officers entered the bar).

Without more in this case, Officer Kemper’s observation that J.C. looked down upon

seeing a police cruiser and moved his hand to cover his hip on three separate

occasions was not enough to support a particularized and objective basis for the stop.

       {¶25} We are not disregarding that J.C. was a 17-year-old carrying a

concealed weapon, and we fully appreciate the threat police officers face each day,



                                         12
                     OHIO FIRST DISTRICT COURT OF APPEALS

particularly when patrolling neighborhoods prone to gun violence. However, the

Fourth Amendment does not permit officers to stop, seize, or search any person

without corroborating information that the person in question is involved in criminal

activity. Based on our review of the record, including Officer Kemper’s testimony,

the totality of the circumstances did not amount to reasonable and articulable

suspicion of criminal activity for initiating a Terry stop. As a result, the juvenile

court erred in denying J.C.’s motion to suppress. The second assignment of error is

sustained.

       {¶26} J.C.’s second assignment of error is dispositive of this appeal. His first

and third assignments of error—challenging his arrest and probation violation—are

therefore moot, and we decline to address them. The juvenile court’s denial of J.C.’s

motion to suppress is reversed, the judgments of the juvenile court adjudicating J.C.

delinquent are reversed, and J.C. is discharged from further prosecution for these

offenses.

                                                                Judgment accordingly.
CROUSE, J., concurs.
WINKLER, J., dissents.

WINKLER, J., dissenting,

       {¶27} “Part of police work is investigating criminal activity that officers

detect while out on patrol.” Hairston, 

, 

, 

. In this case, Officer Kemper was out on patrol in the Seven

Hills neighborhood—a neighborhood known for crime and gun violence—when he

encountered a juvenile, J.C., on three separate occasions, over a period of several

minutes, exhibiting behaviors that led Officer Kemper to believe that J.C. had a

concealed firearm.   Because Officer Kemper was “not required to ignore” J.C.’s

suspicious behavior, and “it was reasonable and prudent” for Officer Kemper to stop



                                          13
                     OHIO FIRST DISTRICT COURT OF APPEALS

J.C. to further investigate whether he had a concealed weapon, I would overrule

J.C.’s second assignment of error challenging the propriety of his stop. See 

                               Factual Background

       {¶28} On April 30, 2017, Officer Kemper was out on patrol in his cruiser in

the Seven Hills area of Springfield Township—an area Officer Kemper described as

an extremely violent neighborhood, with lots of gun violence.          On the day in

question, the neighborhood had recently experienced two shootings where a house

and a vehicle had been struck, as well as numerous robberies. Officer Kemper had

just received a call requesting aid for a domestic-violence incident, when he noticed

J.C., who he perceived to be a juvenile, and his companion. J.C. was walking at a

relatively fast pace, with both arms swinging. When J.C. observed Officer Kemper’s

car, J.C.’s right hand immediately went to his right hip, but his left arm kept

swinging. Officer Kemper noted that J.C.’s hand was not grasping at a belt or belt

loop on sagging pants, but that J.C. was “covering something” on his right hip. J.C.’s

behavior struck him as unnatural, and he informed Sergeant Downs that he believed

J.C. had a gun, and that he would like to find him later to investigate. The officers

had an urgent matter, however, and the two responded to the domestic-violence call.

       {¶29} Once the officers had handled the call, Officer Kemper drove past a

Rally’s restaurant where he saw J.C. leaning up against a railing with both of his

hands open, down, and relaxed by his side. When J.C. saw Officer Kemper’s car,

J.C.’s right hand again went to his right hip. Officer Kemper noted that J.C. was not

grabbing anything, but that he “seemed to be protecting something in his

waistband.” At that time, Officer Kemper once again received another call for a

priority run in the Seven Hills neighborhood.




                                          14
                     OHIO FIRST DISTRICT COURT OF APPEALS

       {¶30} After Officer Kemper and Sergeant Downs handled the priority run,

they returned to the area where they had seen J.C. last. The officers found J.C.

walking with three other juveniles in a plaza parking lot in the area of a Sunoco gas

station. Officer Kemper parked on Sevenhills Drive and waited at the end of the

plaza parking lot. Officer Kemper saw J.C. walking naturally. Once J.C. got closer to

the cruiser, J.C.’s left arm continued swinging naturally, but his right arm was

pointed close to his hip at the beltline, as though he was protecting something.

       {¶31} Officer Kemper testified that his professional experience as a six-year

veteran law-enforcement officer had taught him that when someone protects a

certain area of their waistband, more often than not, the person has a concealed

firearm. Officer Kemper also testified that when he carries his firearm off duty, he

tries to conceal his firearm with his shirt, so he had personal experience with how an

individual acts when carrying a concealed weapon.

       {¶32} After witnessing J.C. reach for his right hip for a third time, Officer

Kemper and Sergeant Downs decided to stop J.C. Officer Kemper pulled his vehicle

onto the sidewalk to block J.C.’s path, and he exited from the vehicle. Sergeant

Downs pulled behind Officer Kemper. J.C. stepped behind another juvenile, which

made it difficult for Officer Kemper to see him. Officer Kemper then saw J.C. “blade”

his body, meaning J.C. turned the right side of his body 45 degrees away from the

officers. Both of J.C.’s hands then went to his right hip around the waistline area

where Officer Kemper believed J.C. had a gun. At this point, Officer Kemper thought

J.C. was pulling a gun. Officer Kemper got behind his cruiser and started shouting

orders. Sergeant Downs approached from a different angle, with his weapon drawn,

and ordered all four juveniles to the ground.




                                          15
                       OHIO FIRST DISTRICT COURT OF APPEALS

       {¶33} Once the juveniles were safely on the ground, Officer Kemper

conducted a pat down of J.C.’s outer clothing. Officer Kemper felt a large, hard

object by J.C.’s ankle that Officer Kemper recognized as a firearm. Officer Kemper

retrieved the firearm, which was a Ruger .375 Magnum revolver. The revolver was

loaded with five rounds. J.C. also had three additional ammunition rounds in his

pocket.

       {¶34} J.C. moved to suppress the firearm and ammunition that Officer

Kemper retrieved from his person. J.C. argued that the evidence was found as part

of an unlawful stop.

                                 Law and Analysis

       {¶35} Fourth     Amendment      jurisprudence    has   long   recognized    the

government’s interest in “effective crime prevention and detection; [and] it is this

interest which underlies the recognition that a police officer may in appropriate

circumstances and in an appropriate manner approach a person for purposes of

investigating possibly criminal behavior even though there is no probable cause to

make an arrest.” Terry, 

, 

, 

. Therefore,

“police can stop and briefly detain a person for investigative purposes if the officer

has a reasonable suspicion supported by articulable facts that criminal activity ‘may

be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 

, 

, 

 (1989), quoting 

. “In allowing such

detentions, Terry accepts the risk that officers may stop innocent people. Indeed,

the Fourth Amendment accepts that risk in connection with more drastic police

action; persons arrested and detained on probable cause to believe they have

committed a crime may turn out to be innocent.” Illinois v. Wardlow, 

, 

, 

 (2000).



                                          16
                     OHIO FIRST DISTRICT COURT OF APPEALS

       {¶36} As the Ohio Supreme Court has recently reiterated, no precise

definition exists for the reasonable-suspicion standard. See State v. Hawkins, Slip

Opinion No. 

. “The reasonableness of a Terry stop ‘depends on

a balance between the public interest and the individual’s right to personal security

free from arbitrary interference by law officers.’ ” 

 quoting United States v.

Brignoni-Ponce, 

, 

, 

 (1975). “The level

of suspicion required to meet the reasonable-suspicion standard ‘is obviously less

demanding than that for probable cause,’ and ‘is considerably less than proof of

wrongdoing by a preponderance of the evidence’ but is ‘something more than an

“inchoate and unparticularized suspicion or “hunch.” ’ ” Hawkins at ¶ 20, quoting

, quoting 

.

       {¶37} Courts reviewing whether an officer had reasonable suspicion of

criminal activity must “allow[] officers to draw on their own experience and

specialized training to make inferences from and deductions about the cumulative

information available to them that ‘might well elude an untrained person.’ ” United

States v. Arvizu, 

, 

, 

 (2002), quoting

Cortez, 

, 

, 

.

       {¶38} Although the majority correctly cites to Terry in analyzing this case,

the majority misapplies it. In determining that Officer Kemper lacked reasonable

suspicion to conduct an investigative stop of J.C., the majority erroneously relies on

our decision in In re M.P. Although M.P. and this case both involve investigative

stops of juveniles carrying concealed firearms, the similarities between the facts of

the cases end there. In M.P., M.P. had been a witness to a crime in which an

unknown person fired a gun at a victim. Based on this incident, a detective began

surreptitiously watching M.P. Two days after the shooting incident, the detective



                                          17
                       OHIO FIRST DISTRICT COURT OF APPEALS

secretly monitored M.P. as he was walking along the street. The detective noted that

M.P. had on baggy shorts, and that he demonstrated an interest in a passing police

car. Based on these observations alone, the detective called for uniformed officers to

initiate a stop. The M.P. court determined that the detective’s actual impetus for

stopping M.P. was the earlier shooting incident, and that there was nothing unusual

about baggy shorts and taking an interest in a passing police car. Therefore, the M.P.

court determined that the detective had no objective reason to believe that M.P.

presently had a gun.

       {¶39} In this case, unlike M.P., Officer Kemper had no ulterior motive in

stopping J.C. Officer Kemper had not been monitoring J.C. based on an earlier

crime, and the record does not reflect that Officer Kemper had ever encountered J.C.

before this incident. Unlike M.P., this case is not just about a juvenile wearing baggy

pants and turning to look at a police car. Initially, Officer Kemper witnessed J.C.

walking in a natural manner. Officer Kemper then witnessed J.C. place his right

hand to his right hip as soon as he saw Officer Kemper’s police cruiser—and this did

not happen just once, or even twice, but three separate times. Officer Kemper was

clear that J.C.’s hand was not grasping at a belt loop in an effort to hold up his pants,

but he was “covering something.” Officer Kemper also noted that J.C. appeared to be

a juvenile. See R.C. 2923.12.

       {¶40} Officer Kemper testified that he was familiar with J.C.’s unnatural

behavior because, in his experience as a six-year veteran officer, when a suspect

protects a certain area of their waistband, that suspect is more often than not

concealing a weapon. Officer Kemper also testified that when he carries his firearm

off duty, he constantly checks to make sure that his shirt covers his gun so that no

one can see it.



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                      OHIO FIRST DISTRICT COURT OF APPEALS

       {¶41} The majority in reaching its result gives little weight to Officer

Kemper’s testimony that he recognized J.C.’s unnatural hand-to-waist movements

based on his experience as a six-year veteran in law enforcement and also based on

his own experience as an off-duty police officer carrying a concealed weapon. The

majority affords no weight to this portion of Officer Kemper’s testimony because it

pertained to his “personal experience.” An officer’s personal experience is relevant to

any reasonable-suspicion inquiry. See Arvizu, 

, 

, 

. Officer Kemper testified not just to his experience as an off-duty police

officer carrying his weapon, but also as to his professional experience as a six-year

veteran officer. This court “must give due weight to [Officer Kemper’s] experience

and training and view the evidence as it would be understood by those in law

enforcement.” See Andrews, 

, 

.

       {¶42} Case law further supports Officer Kemper’s factual inference that

hand-to-waist movements are indicative of concealing a weapon, especially when

those movements are the product of police presence. See Smith, 

 (“Furtive movement toward the waistband is consistent with an attempt to

either conceal or retrieve a weapon or contraband.”); Humphries, 

(“[A]s the police officers approached in their marked patrol car, [the suspect] patted

his waist, which [the officer] interpreted as a ‘security check,’ an instinctive check by

[the suspect] to see that his weapon was in place.”); Mattes, 

(person’s action in turning away and moving hand toward waist upon seeing police is

“consistent with reaching for a gun.”).

       {¶43} Therefore, the majority’s determination that J.C.’s hand-to-waist

movements upon seeing police were “innocuous” is not supported by Officer

Kemper’s testimony or the law.



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                      OHIO FIRST DISTRICT COURT OF APPEALS

       {¶44} This is not a case of police arbitrarily interfering with a juvenile’s

personal security. The fact that the officers showed no suspicion towards J.C.’s

companions bolsters this fact.       An average citizen, without Officer Kemper’s

experience and training, may find J.C.’s hand-to-waist movements innocuous when

viewed in a vacuum. Officer Kemper’s personal experience indicated to him that

J.C.’s unnatural hand movements upon observing a police cruiser were consistent

with concealing a weapon. Officer Kemper’s interpretation of J.C.’s behavior, along

with the character of the neighborhood, and the fact that J.C. is a juvenile, amounts

to reasonable suspicion of criminal activity. Therefore, Officer Kemper was justified

in stopping J.C. to investigate further.

       {¶45} Furthermore, I would hold that the officers’ use of force was a

reasonable extension of the Terry stop in this case. An officer’s use of force during

an investigative stop does not automatically transform the stop into an arrest where

the officer’s use of force is reasonable under the circumstances for personal safety.

Hairston, 

, 

, 

. Officer

Kemper initiated J.C.’s stop by using his police cruiser to block J.C.’s egress, and

Officer Kemper stepped out of his vehicle.      J.C. then stepped behind another

juvenile, and he “bladed” his body, which Officer Kemper described as J.C. turning

his body away from Officer Kemper. Officer Kemper then saw J.C. place both of his

hands to his right hip—the same area where Officer Kemper believed that J.C. had a

concealed weapon. Fearing for his safety, Officer Kemper positioned himself behind

his cruiser, and Sergeant Downs pulled his weapon and ordered J.C. and the group of

juveniles to the ground. Ultimately, J.C. did have a concealed weapon.




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                     OHIO FIRST DISTRICT COURT OF APPEALS

       {¶46} For the foregoing reasons, I would uphold the trial court’s decision

overruling J.C.’s motion to suppress. I would overrule all of J.C.’s assignments of

error, and affirm the judgment of the trial court. Therefore, I dissent.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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