State v. Rogers

(1968), the Task Force officers

could have effectuated an investigative stop and performed a protective search for

weapons during a brief detention. He argued, however, that the officers knew they

lacked reasonable suspicion to believe he was armed and that was why they sought

consent and brought over a canine for a search, thereby engaging in an illegal “fishing

expedition.”

{¶15} The trial court did not question the witnesses’ credibility and adopted

historical facts that mirrored Lieutenant Schofield’s and Officer Chiappone’s

testimony. Concluding that the Task Force officers had reasonable suspicion to

perform a Terry investigative stop to determine whether Rogers was illegally armed,

the “temporary nature of the detention satisfied the ultimate test of reasonableness,”

and the protective sweep of the vehicle occurring during the “brief inquiry” was lawful,

the trial court denied the motion to suppress.

{¶16} Rogers now appeals, advancing three assignments of error all

challenging the denial of his motion to suppress.

II. Analysis

{¶17} The Fourth Amendment to the United States Constitution secures the

right to be free from an unreasonable search or seizure and requires a warrant to be

particular and supported by probable cause. Accord Ohio Constitution, Article I,
6
OHIO FIRST DISTRICT COURT OF APPEALS

Section 14. Stopping a vehicle and detaining its occupants is a “seizure” under the

relevant constitutional provisions. See Delaware v. Prouse,

440 U.S. 648, 653

99 S.Ct. 1391

59 L.Ed.2d 660

 (1979). Thus, generally, police may not make random stops

of vehicles. See

id. at 663

.

       {¶18} Here, the trial court determined the police recovered the firearm during

a stop and search authorized by Terry and its progeny. Under Terry, the police may

temporarily detain an individual for an investigation without violating the Fourth

Amendment when an officer has reasonable suspicion based on specific and

articulable facts that criminal activity has occurred or is imminent. See Terry,

392 U.S. at 30

. Further, if 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.

Id. at 24

,

cited in State v. Hairston,

126 N.E.3d 1132, ¶ 9

.

Generally, searches and seizures that extend what is permitted by Terry must be

supported by probable cause. Florida v. Royer,

460 U.S. 491

103 S.Ct. 1319

75 L.Ed.2d 229

 (1983).

       {¶19} The reasonableness of a vehicle stop is measured by the same standards

set forth for investigatory stops in Terry. See, e.g.,

Prouse at 663

 (“[W]e hold that

except in those situations in which there is at least articulable and reasonable

suspicion that a motorist is unlicensed or that an automobile is not registered, or that

either the vehicle or an occupant is otherwise subject to seizure for violation of law,

stopping an automobile and detaining the driver in order to check his driver's license

and the registration of the automobile are unreasonable under the Fourth

Amendment.”); United States v. Brignoni-Ponce,

422 U.S. 873, 884

95 S.Ct. 2574

,

                                           7
                    OHIO FIRST DISTRICT COURT OF APPEALS

45 L.Ed.2d 607

 (1975) (“For the same reasons that the Fourth Amendment forbids

stopping vehicles at random to inquire if they are carrying aliens who are illegally in

the country, it also forbids stopping or detaining persons for questioning about their

citizenship on less than a reasonable suspicion that they may be aliens.”); accord State

v. Mays,

119 Ohio St.3d 406

2008-Ohio-4539

894 N.E.2d 1204, ¶ 23

.

       {¶20} Further, the United States Supreme Court has held that during a lawful

roadside Terry stop, when the officer has reasonable suspicion that the individual

whose suspicious behavior he is investigating at close range is armed and presently

dangerous to the officer and or others, he may conduct a limited protective search of

the vehicle’s passenger compartment for concealed weapons. Michigan v. Long,

463 U.S. 1032, 1049-1050

103 S.Ct. 3469

77 L.Ed.2d 1201

 (1983), citing Terry at 21 and

27. The Ohio Supreme Court has also allowed limited protective searches of vehicles

during a roadside Terry stop. State v. Bobo,

37 Ohio St.3d 177

524 N.E.2d 489

 (1988),

paragraph two of the syllabus.

       {¶21} A protective search for weapons may occur at the end of a stop because

an officer may reasonably fear that a suspect in the officer’s control during the Terry

detention may use the weapon to injure the officer if permitted to reenter his vehicle

at the conclusion of the stop. See

Long at 1051-1052

; State v. Williamson, 2d Dist.

Montgomery No. 25479,

2014-Ohio-325, ¶ 26

. (“The officers reasonably believed that,

for their safety, it was necessary to search the Bonneville to ascertain whether there

was a weapon that could be accessed by Williamson, if he were released, or by others

in the area.”).

       {¶22} Under Terry’s framework, the investigative stop must be both justified

at its inception due to reasonable suspicion of criminal activity and reasonably related

                                           8
                    OHIO FIRST DISTRICT COURT OF APPEALS




in scope to the circumstances that justified the interference in the first place. Terry,

392 U.S. at 20

446 F.3d 246, 249, 252-254

. Thus, a vehicle stop is limited in scope

and degree of intrusion by its purpose and may last no longer than reasonably

necessary to effectuate the purpose of the stop. See State v. Rodriguez,

575 U.S. 348, 354

135 S.Ct. 1609

191 L.Ed.2d 492

 (2015); United States v. Sharpe,

470 U.S. 675

105 S.Ct. 1568

84 L.Ed.2d 605

 (1985).

       {¶23} Reasonable suspicion is an objective standard that requires more than

a hunch. The officers must have a “particularized and objective basis for suspecting

the particular person stopped of criminal activity.” United States v. Cortez,

449 U.S. 411, 417-418

101 S.Ct. 690

66 L.Ed.2d 621

 (1981). But officers “need not rule out the

possibility of innocent conduct.” United States v. Arvizu,

534 U.S. 266, 277

122 S.Ct. 744

151 L.Ed.2d 740

 (2002), cited in State v. Wright, 1st Dist. Hamilton No. C-

210486,

2022-Ohio-2161, ¶ 16

.

       {¶24} Finally, reasonable suspicion must be considered under the totality of

the circumstances, considering all the information available to law enforcement

officials at the time. See

Arvizu at 273

. Officers are entitled to draw on their own

experiences and specialized training to make inferences from and deductions about

the presenting information.

Id.

 “Pertinent circumstances include the officer’s own

direct observations, dispatch information, directions from other officers, and the

nature of the area and time of day during which the suspicious activity occurred.”

United States v. Campbell,

549 F.3d 364, 371

 (6th Cir.2008).

       {¶25} Evidence derived from a search or seizure that violates the Fourth

Amendment is subject to exclusion at trial. See Mapp v. Ohio,

367 U.S. 643, 655

81 S.Ct. 1684

6 L.Ed.2d 1081

 (1961).

                                           9
                      OHIO FIRST DISTRICT COURT OF APPEALS




       {¶26} Appellate review of a motion to suppress presents a mixed question of

law and fact. See State v. Burnside,

100 Ohio St.3d 152

2003-Ohio-5372

797 N.E.2d 71, ¶ 8

, cited in Wright at ¶ 11. We must accept the trial court’s findings of fact as true

if competent, credible evidence supports them.

Id.

 Then we must independently

determine whether the historical facts satisfy the legal standard,

id.,

 mindful to “give

due weight to inferences drawn from those facts by resident judges and local law

enforcement officers.” Ornelas v. United States,

517 U.S. 690, 699

116 S.Ct. 1657

134 L.Ed.2d 911

 (1996).

       {¶27} Rogers maintains that Lieutenant Schofield’s observations were not

sufficient to establish the necessary reasonable suspicion to justify an investigative

stop of his vehicle. Additionally, Rogers argues that even if the stop was justified at its

inception, the officers impermissibly extended his detention for a canine sniff to obtain

probable cause to search his vehicle.

                        A. Reasonable Suspicion to Stop

       {¶28} In this case, considering the totality of the circumstances, we agree with

the trial court that the initial stop fell within the parameters of a lawful Terry stop

based on a suspicion of criminal activity. The cumulative observations of Lieutenant

Schofield constituted an objectively reasonable basis for the fellow Task Force officers

to temporarily detain Rogers to determine if criminal activity was afoot, i.e., whether

he had brought a concealed firearm to the street gathering. See In re M.P., 1st Dist.

Hamilton Nos. C-130663 and C-130741,

2014-Ohio-2846, ¶ 10

 (Under the “fellow

officer’s rule,” a police officer’s reasonable, articulable suspicion can be transferred to

another officer.).



                                            10
                    OHIO FIRST DISTRICT COURT OF APPEALS




       {¶29} Initially, Lieutenant Schofield explained that the area in which the

surveillance occurred was a high-crime area, relaying with detail that the area was

currently plagued by firearm crimes. He further testified that he had observed at least

two people openly carrying firearms at the gathering, and he described the time of day

as dusk, which is a time of day when weapons could easily be hidden. He also asserted

that he had about 15 years of experience as a police officer and numerous years in the

surveillance of drug and weapon activity, experience that included extensive training

in firearm use and identification as well has “hundreds” of firearm investigations,

seizures, and arrests. Relatedly, Lieutenant Schofield testified to his knowledge of how

firearms are carried and concealed by individuals.         Finally, he testified to his

observation that Rogers pivoted from his path to the gathering where others were

openly carrying firearms, reached back into his vehicle to grab something from the

passenger compartment, put something in his waistband, and then appeared with a

“suspicious bulge” in the center of his waistband.

       {¶30} At    the   suppression     hearing,    Lieutenant   Schofield   physically

demonstrated the location of the bulge and explained that the location was where one

would likely stash a firearm because it provided the necessary stability to secure a

firearm. He additionally explained that it was not a likely place to stash other items

such as a cellphone. Finally, Lieutenant Schofield testified that he continued to surveil

Rogers and that at no point before leaving did Rogers appear to discard what

Lieutenant Schofield believed was a firearm.

       {¶31} Rogers acknowledges that a bulge in a suspect’s clothing is a fact that

can lead to reasonable suspicion to support an investigative stop for weapons when an

officer observes additional facts. See Golden v. United States,

248 A.3d 925

, 942

                                           11
                   OHIO FIRST DISTRICT COURT OF APPEALS




(D.C.Cir.2021), citing United States v. Richmond,

924 F.3d 404, 411-412

 (7th

Cir.2019); United States v. Aitoro,

 (1st Cir.2006); State

v. Henson, 1st Dist. Hamilton No. C-210244,

2022-Ohio-1571, ¶ 31

 (Noting the officers

did not observe a bulge in suspect’s clothing that would have been indicative of him

concealing a weapon.); In re J.C., 1st Dist. Hamilton Nos. C-180478 and C-180479,

2019-Ohio-4815, ¶ 22

 (Noting the absence of facts such as an observed “bulge” in pants

when determining that the officer lacked reasonable suspicion to stop and investigate

for carrying a concealed weapon.); see also Pennsylvania v. Mimms,

434 U.S. 106, 112

98 S.Ct. 330

, 54 L.Ed.2d (1977), (“The bulge in the jacket permitted the officer to

conclude that Mimms was armed and thus posed a serious and present danger to the

safety of the officer. In these circumstances, any man of ‘reasonable caution’ would

likely have conducted the ‘pat-down.’ ”), cited in United States v. Roggeman,

279 F.3d 573, 580

 (8th Cir.2002).

       {¶32} Rogers argues, however, that it was not reasonable for Lieutenant

Schofield to infer the bulge was a firearm without any distinctive behavior present in

other cases. See State v. Phillips,

155 Ohio App.3d 149

2003-Ohio-5742

799 N.E.2d 653, ¶ 32

(2d Dist.). In Phillips, the court held that “[b]ulging pockets don’t connote

crime or weapons when they have no specific nexus to criminal activity.” Like in

Phillips, Rogers contends the bulge observed by Lieutenant Schofield was more likely

something innocent, as Rogers was simply observed attending a block party with

families.

{¶33} The facts in this case are distinguishable from Phillips, where the bulge

was in a pocket. Here, the bulge was observed in the front center portion of Rogers’s

waistband. Officer Schofield relayed that in his experience the front central area of

12
OHIO FIRST DISTRICT COURT OF APPEALS

the waistband, effective in keeping an unholstered firearm concealed but steady, is the

likely area to conceal an unholstered firearm but not a cellphone or radio.

{¶34} Importantly, Lieutenant Schofield linked the suspicious bulge to the

other observed facts that created the totality of circumstances upon which the

propriety of the stop must be considered. This included that he had seen two

individuals openly carrying weapons at the gathering. Further, he saw Rogers obtain

the object creating the bulge by pivoting away from the direction of the party and

reaching into the passenger side of his vehicle from the driver’s side door. And

Rogers’s actions occurred in an area notorious at that time for firearm crimes.

{¶35} Rogers also argues the court should not accord much weight to the fact

that the investigation took place in a high-crime area. The Ohio Supreme Court,

however, recently reaffirmed that “[a]n officer’s experience with criminal activity in an

area and an area’s reputation for criminal activity are factors” that are relevant to the

reasonable-suspicion analysis. See Hairston,

126 N.E.3d 1132, at ¶ 12

. The law requires consideration of these “contextual factors.”

Id. at ¶ 15. Ultimately, we conclude Rogers’s assertion that Officer Schofield needed

more information to conclude that the bulge was a firearm is not supported by the case

law.

       {¶36} Rogers additionally argues that even if the officers had reasonable

suspicion that he was armed, there was no evidence that he was illegally armed. This

argument relates to the possibility that Rogers had a concealed-carry permit at the

time of the stop that would have legalized his behavior if the firearm he was suspected

of carrying was a handgun. Rogers did not raise this argument below and instead

conceded that Terry would govern if the officers’ suspicion that he had concealed a

                                           13
                     OHIO FIRST DISTRICT COURT OF APPEALS




firearm was reasonable. Because Rogers’s current argument is contrary to Rogers’s

position in the trial court, it cannot be raised now. See State v. Curry, 1st Dist.

Hamilton No. C-210274,

2022-Ohio-627, ¶ 15

. Thus, we refrain from addressing this

argument with respect to Rogers’s challenge to the propriety of the stop.

       {¶37} In summary, we conclude that, considering the totality of the

circumstances, the Task Force officers possessed reasonable suspicion of criminal

activity related to the illegal possession of a firearm to initiate the investigative stop.

                              B. Duration of the Stop

       {¶38} Rogers argues also that the Task Force officers unlawfully prolonged the

investigative stop for the sole purpose of creating probable cause to search his vehicle

through a canine sniff. A seizure that is lawful at its inception can violate the Fourth

Amendment if its manner of execution unreasonably infringes on interests protected

by the Constitution. Rodriguez,

575 U.S. 348

135 S.Ct. 1609

191 L.Ed.2d 492

; United

States v. Jacobsen,

466 U.S. 109, 124

104 S.Ct. 1652

80 L.Ed.2d 85

 (1984); Illinois v.

Caballes,

543 U.S. 405, 407

125 S.Ct. 834

160 L.Ed.2d 842

 (2005).                Rogers’s

argument requires an inquiry that focuses on the scope of the stop, including the

duration of the detention.

       {¶39} With respect to investigative stops in general, the scope must be

reasonably related to the circumstances that justified the stop in first place, and “the

investigative methods employed should be the least intrusive means reasonably

available to dispel the officer’s suspicion in a short period of time.” Royer, 460 U.S at

500,

103 S.Ct. 1319

75 L.Ed.2d 229

.

       {¶40} In determining the reasonable duration of stop, we must examine

“whether the police diligently pursued a means of investigation that was likely to
                                            14
                     OHIO FIRST DISTRICT COURT OF APPEALS




confirm or dispel their suspicions quickly, during which time it was necessary to detain

the defendant.” Sharpe,

. However, “[t]he question is not simply whether some other alternative was

available, but whether the police acted unreasonably in failing to recognize or to

pursue it.”

Sharpe at 687

. This inquiry affords deference to methods selected by

trained officers in the field, prohibiting “unrealistic second guessing.” See

id. at 686

.

       {¶41} Rogers relies primarily on United States v. Rodriguez in support of his

argument that the duration of the stop was unreasonable, and therefore, the firearm

recovered during that illegal detention should be suppressed. The Rodriguez Court

addressed whether the police may delay the duration of an investigative stop for a

traffic violation, even for just a small amount of time, to wait for a drug sniffing canine,

absent any articulable suspicion to believe that there are drugs in the vehicle. The

Court concluded that unless police have “reasonable suspicion” to investigate for

drugs, it is an unconstitutional seizure for them to extend a legal traffic stop for the

sole purpose of conducting a canine sniff. See Rodriguez,

575 U.S. at 358

135 S.Ct. 1609

191 L.Ed.2d 492

. Accord State v. Wood, 5th Dist. Licking No. 2021CA00082,

2022-Ohio-2548

, and State v. Neyhard, 11th Dist. Ashtabula No. 2021-A-0005, 2022-

Ohio-1098.

       {¶42} This case is distinguishable from Rodriguez, Wood, and Neyhard.

Rogers’s stop was initiated for the investigation of a firearm offense, an inherently

dangerous situation, and not a traffic offense. Courts have long recognized that the

government’s interest in officer safety is “legitimate and weighty” and that interest

justifies certain “negligibly burdensome precautions in order to complete [the]

mission safely” that are not justified by “the Government’s endeavor to detect crime in

                                            15
                     OHIO FIRST DISTRICT COURT OF APPEALS




general.”

Rodriguez at 356-357

. Officer Chiappone testified to his safety concerns and

that his approach to delay ordering Rogers out of the vehicle was to “deescalate” an

unsafe situation. Rogers repeatedly indicated that he did not want to exit from the

vehicle and was extremely nervous. The steps Officer Chiappone took were designed

to “gauge” Rogers’s “nonverbal clues” to his requests, aiding the officer’s “assess[ment]

[of] the situation.” Officer Chiappone further articulated at the suppression hearing

the risk to officers during a stop “if someone was armed and had a malicious intent.”

Ultimately, Officer Chiappone wanted to make sure that “everybody went home.”

         {¶43} We have already held that the Task Force officers had reasonable

suspicion to make the stop to investigate whether Rogers unlawfully concealed a

weapon. Nothing during the stop dispelled that suspicion. Ultimately, Terry’s test for

determining whether a lawful investigative stop is converted into an arrest-like

detention is “whether the degree of intrusion into the suspect’s personal security was

reasonably related to officers’ suspicions and the surrounding circumstances.”

Hairston,

126 N.E.3d 1132, at ¶ 21

{¶44} Based on Officer Chiappone’s testimony, as well as the video recording

of the stop, we conclude that Officer Chiappone’s concern for safety during the

investigation into the weapons offense drove the method of the investigation. Unlike

in Rodriguez, the seizure was not prolonged for the sole purpose of a dog sniff, but to

ensure the safety of the officers and Rogers. We conclude the selected method was

objectively reasonable and diligent and, though, it resulted in a detention of more than

11 minutes, the Task Force officers did not extend the stop beyond what is lawful under

Terry.

16
OHIO FIRST DISTRICT COURT OF APPEALS

III. Conclusion

{¶45} In sum, the totality of the circumstances in this case leads us to conclude

that the scope and duration of the detention and search of the glove box met the

Constitution’s standard of reasonableness. Considering the foregoing analysis, we

overrule all of Rogers’s assignments of error and affirm the judgment of the trial court.

Judgment affirmed.

MYERS, P.J., concurs.
CROUSE, J., dissents.

Crouse, J., dissenting.

{¶46} Because Robert Rogers’s detention and the subsequent search of his

vehicle violated the Fourth Amendment to the United States Constitution, I

respectfully dissent.

{¶47} The only criminal activity suspected of Rogers in this case was that

Rogers may have been illegally carrying a concealed weapon. At the time that Rogers

was stopped by the police, carrying a concealed weapon was not illegal, unless he did

not have a concealed-carry permit, was a convicted felon, or was otherwise legally

prohibited from doing so. The investigating officer did not know who Rogers was and

did not have any information that suggested Rogers was not permitted to carry a

firearm. The investigating officer did not suspect that Rogers had committed any

other crime, nor were the police looking for a suspect for a crime that had been recently

committed. It was not as if the police were investigating shots fired in the vicinity and

saw Rogers suspiciously running away in the dark of night in a high-crime area. I find

this information significant in determining the reasonableness of Rogers’s detention

and in evaluating the totality of the circumstances.

17
OHIO FIRST DISTRICT COURT OF APPEALS

{¶48} The officer testified that he observed Rogers reach into the passenger

compartment of his car and, based on Rogers’s upper body movement, the officer

believed that Rogers placed an object into his waistband area. The officer testified that

in his experience, the waistband “is consistent with where people place firearms when

they do not have a holster.” However, the officer did not see Rogers’s waistband or the

suspected object. The officer testified that Rogers’s “actual waist was not in [his] view.

It was behind the door of the vehicle.” The officer further testified that he observed

“for less than a second” “a suspicious bulge in the front of his waist area.” According

to the officer, the bulge was “somewhere in the front center of his body” “at waist level.”

When specifically asked by the prosecutor, “And did you see the shape of a handle of a

firearm?” the officer responded, “I saw what I believed to be a bulge.” The officer

further testified that he had “no recollection” of a bulge when Rogers came back to his

car, even though that was the reason the officer gave to the other officers to pull Rogers

over. The observations of this very experienced officer were made in a “high crime

area,” at dusk, after the officer observed two people openly carrying firearms.1

{¶49} Thus, Rogers was detained due to the investigating officer’s view of a

nondescript bulge in Roger’s waistband and his hunch that Rogers may be illegally

carrying a concealed weapon. The law is clear that a person cannot be detained based

on “inarticulate hunches.” Terry v. Ohio,

392 U.S. 1, 22

 (1968). “And simple ‘ “good faith on the part of the arresting officer is not

enough.” * * * If subjective good faith alone were the test, the protections of the Fourth

Amendment would evaporate, and the people would be “secure in their persons,


1“Ohio is an open carry state. Thus, in basic terms, in Ohio, it is generally legal to walk down the
street and openly carry a handgun * * * .” See State v. Massingill, 8th Dist. Cuyahoga No. 109818,

2021-Ohio-2674, ¶ 15

.
                                                18
                    OHIO FIRST DISTRICT COURT OF APPEALS




houses, papers, and effects,” only in the discretion of the police.’ ” Id. at 22, quoting

Beck v. Ohio,

379 U.S. 89, 97

85 S.Ct. 223

13 L.Ed.2d 142

 (1964), quoting Henry v.

United States,

361 U.S. 98, 102

80 S.Ct. 168

4 L.Ed.2d 134

 (1959). It is also important

to remember that “[t]here is no ‘automatic firearm exception’ to the Terry rule.”

Northrup v. City of Toledo Police Dept.,

785 F.3d 1128, 1132

 (6th Cir.2015), citing

Florida v. J.L.,

529 U.S. 266, 272

120 S.Ct. 1375

146 L.Ed.2d 254

 (2000).

       {¶50} The majority opinion emphasizes that it was the totality of the

circumstances that justified the stop. According to the majority, these circumstances

were a nondescript bulge, the officer’s extensive experience, the high-crime area, the

impending darkness, and the legal open carry of firearms by two other people on the

street. But the only circumstance specific to Rogers was the bulge in his waistband.

       {¶51} The facts that it was dusk and that Rogers was in a “high crime” area

known for gun violence are “contextual factors” not specific to Rogers and, while

relevant to the reasonable-suspicion analysis, do not provide a sufficient basis to

conclude that Rogers himself was illegally carrying a concealed weapon. See State v.

Hairston,