[Cite as State v. Jones, 2014-Ohio-1201.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130069
TRIAL NO. B-1101166
Plaintiff-Appellee, :
vs. : O P I N I O N.
DONTE JONES, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 26, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Gregory A. Cohen, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from a criminal conviction following the denial of a
motion to suppress. Donte Jones was stopped by the police for a license plate violation
after the police received a tip from a confidential informant that he had illegal firearms
in his car. Once Mr. Jones was removed from the car, one of the officers saw through
the open car door that the floor mat was askew and appeared to have something
concealed underneath it. The officer lifted the mat and found drugs. Mr. Jones
contends that this search violated his Fourth Amendment rights. We disagree. Out of a
concern for officer safety, a limited protective search of the automobile was permissible.
Therefore, we affirm the judgment below.
I.
{¶2} The events leading up to the search unfolded as follows. Police were
dispatched to an address on Republic Street based on information that a vehicle at that
location contained firearms. The information was supplied by a confidential police
informant, who also gave a description of the car and its license plate number. Although
Mr. Jones characterizes the gun tip as anonymous, the record indicates that at least
one of the officers recognized the tipster’s name, knew him to be an informant for
another officer, and had received reliable information from him on at least two prior
occasions.
{¶3} Just minutes after receiving the dispatch, the officers spotted a car
matching the description and license plate provided by the informant proceeding
southbound on Republic, half a block from the reported address. In separate
cruisers, the officers followed the car down Republic and onto East Liberty Street.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The officer directly behind the car noted that the rear license plate
light was out and initiated a traffic stop. Concerned that the car’s occupants might
be armed based on the tip, the officers approached the car with their guns drawn and
ordered the occupants to keep their hands in the air. The officers saw Mr. Jones
lower his right hand quickly, and ordered him to keep his hands visible. He dropped
his right hand again. At this point, the officers ordered the occupants out of the car,
patted them down, handcuffed them, and detained them in the back of the separate
police cruisers. One of the officers then returned to the driver’s side of the car. With
the car door still open, the officer could see that the floor mat was askew and
appeared to have a bulge under it. She lifted the mat and discovered a small bag of
cocaine.
{¶5} Mr. Jones filed a motion to suppress the drug evidence on the basis
that the automobile search violated his Fourth Amendment rights, and the trial court
held a hearing on the motion. Although the trial court stated at the hearing that the
occupants had not been arrested prior to the search, the court in its written opinion
analyzed the search as a “search incident to arrest” under the United States Supreme
Court’s decision in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485
(2009). In Gant, the court held that police may search a vehicle incident to arrest
“only if the arrestee is within reaching distance of the passenger compartment at the
time of search or it is reasonable to believe the vehicle contains evidence of the
offense of arrest.” Id. at 351. The trial court found that the search was permissible
under the second clause, concluding that, based on the informant’s tip, it was
reasonable to believe that firearms would be found in the car. On this basis, the
court denied the motion to suppress.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Mr. Jones filed a motion for reconsideration in the trial court, arguing
that the search-incident-to-arrest rule was inapplicable because at the time of the
search, the only crime Mr. Jones had purportedly committed was the plate-light
violation. In its entry overruling the motion for reconsideration, the trial court held
this time that the search was permissible under the automobile exception to the
warrant requirement. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72
L.Ed.2d 572 (1982). Under the automobile exception, police officers may conduct a
warrantless search of a lawfully-stopped automobile if they have probable cause to
believe that the vehicle contains contraband. Id. at 799, citing Carroll v. United
States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
{¶7} Following the denial of his motion to suppress and motion for
reconsideration, Mr. Jones pleaded no contest to and was convicted of possession of and
trafficking in cocaine. On appeal, Mr. Jones contends that the search was illegal and,
therefore, the trial court erred by overruling his motion to suppress. Appellate review of
a motion to suppress presents a mixed question of law and fact. State v. Burnside,
100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We defer to the trial court’s
factual findings if they are supported by competent and credible evidence, but we
review de novo the trial court’s application of the law to those facts. Id. Thus, the
questions of reasonable suspicion and probable cause to conduct a warrantless
search are reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 698,
116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
{¶8} We conclude that Gant does not apply because there had been no arrest
at the time of the search, and Ross does not provide a basis for the search because the
officers lacked probable cause. We find, however, that a limited protective search was
justified for reasons of officer safety.
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OHIO FIRST DISTRICT COURT OF APPEALS
II.
{¶9} The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. Accord Ohio Constitution, Article I, Section 14.
Unless one of a few well-delineated exceptions applies, warrantless searches are per
se unreasonable. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967).
A.
{¶10} Search Incident to Arrest. One such exception permits
warrantless searches conducted pursuant to a recent arrest. In Gant, 556 U.S. 332,
129 S.Ct. 1710, 173 L.Ed.2d 485, the Supreme Court explicitly prescribed rules for the
search of an automobile incident to a recent occupant’s arrest. The key to the
limitation on warrantless automobile searches imposed by Gant was that after a
suspect has been arrested and placed inside a police cruiser, the risk of the suspect
accessing his vehicle is practically eliminated, and the concerns about officer safety
and preservation of evidence usually justifying a vehicle search incident to arrest are
no longer present. Id. at 339, 343. Thus, where an arrestee has been secured in the
police cruiser and is, therefore, no longer “within reaching distance” of the car, Gant
permits a search only where it is reasonable to believe the car contains “evidence of
the offense of arrest.” Id. at 351.
{¶11} Before we analyze the search under the framework in Gant, we must
consider whether an arrest took place. “Under Ohio law, an arrest occurs when there
is (1) an intent to arrest, (2) under a real or pretended authority, (3) accompanied by
actual or constructive seizure or detention of the person, (4) that is so understood by
the person arrested.” City of Cincinnati v. Kieser, 1st Dist. Hamilton No. C-060773,
2007-Ohio-4467, ¶ 8, citing State v. Darrah, 64 Ohio St.2d 22, 26, 412 N.E.2d 1328
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OHIO FIRST DISTRICT COURT OF APPEALS
(1980). Furthermore, an arrest “signifies the * * * the restraint of a person’s freedom
in contemplation of the formal charging with a crime.” Darrah at 26. In evaluating
whether Mr. Jones was arrested, we are reminded that “[t]he touchstone of our
analysis under the Fourth Amendment is always ‘the reasonableness in all the
circumstances of the particular governmental invasion of a citizen’s personal
security.’ ” State v. Evans, 67 Ohio St.3d 405, 409, 618 N.E.2d 162 (1993), quoting
Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
{¶12} We do not think the detention of Mr. Jones prior to the automobile
search amounted to an arrest. The Fourth Amendment permits officers to perform
an investigative “Terry stop” if they have a reasonable and fact-based suspicion that
criminal activity is afoot. Terry at 21-22, 30. Here, the officers testified that they
detained Mr. Jones and his companion to investigate their suspicion that the car
contained firearms, expressly referring to the occupants as “detainees.” At the time
of his detention, the officers did not contemplate charging Mr. Jones with any crime,
other than perhaps the plate-light violation. Thus, the officers clearly did not intend
to arrest Mr. Jones.
{¶13} Nor can we say that the use of force during the brief detention
exceeded the bounds of Terry and transformed the stop into an arrest. Investigatory
situations involving suspects who may be armed are especially perilous for police
officers. Here, the officers conducted a roadside stop late at night in a high-crime
area. Suspecting there were guns in the car based on the tip and Mr. Jones’s refusal
to keep his hands visible, the officers were warranted in approaching the car with
their guns drawn, ordering the occupants out of the car, and conducting a pat-down
search for weapons.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Moreover, the use of handcuffs does not, by itself, convert a Terry stop
into an arrest. See, e.g., State v. Jones, 1st Dist. Hamilton No. C-990125, 1999 Ohio
App. LEXIS 5790, *10-11 (Dec. 3, 1999); State v. Parsley, 10th Dist. Franklin No. 09AP-
612, 2010-Ohio-1689, ¶ 62; State v. Carter, 2d Dist. Montgomery No. 21999, 2008-
Ohio-2588, ¶ 24; State v. Pickett, 8th Dist. Cuyahoga No. 76295, 2000 Ohio App. LEXIS
3484, *13-14 (Aug. 3, 2000). Although “Terry cannot be read as a license for the
police to stop and handcuff every person they may reasonably suspect of criminal
activity,” Terry does permit the use of handcuffs if such use is reasonably warranted
by concerns for officer safety. Jones at *10-11. We think the safety concerns present
in this case called for such precautionary measures. The officers had a reasonable
basis for believing that the car’s occupants were armed and dangerous. Accordingly,
the officers had good reason to use handcuffs to “maintain the status quo and
prevent flight.” State v. Payne, 2d Dist. Montgomery No. 13898, 1994 Ohio App.
LEXIS 1925, *10 (May 4, 1994). And, having a valid reason to detain the car’s
occupants, the officers had a legitimate interest in removing the detainees from the
roadway during the investigation to prevent injury or accident, as well as “in
guarding against an ambush from the rear.” Evans, 67 Ohio St.3d at 410, 618 N.E.2d
162.
{¶15} Thus, the exception in Gant permitting officers to search a vehicle for
“evidence of the offense of arrest” is irrelevant here—because no arrest had been made at
the time of the search. Gant, 556 U.S. at 351, 129 S.Ct. 1710, 173 L.Ed.2d 485. Rather,
the officers had temporarily placed Mr. Jones and his companion in separate police
cruisers to ensure the scene was secure and they were protected as they proceeded with
their investigation. At the time Mr. Jones was placed in the cruiser, the only crime he
was known to have committed was the minor license-plate violation. And had other
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence of criminal conduct not turned up, Mr. Jones would have been returned to
his vehicle following the traffic stop. Therefore, the search-incident-to-arrest
exception to the warrant requirement does not provide a basis for the search, and
Gant is not applicable.
B.
{¶16} Automobile Exception. In its decision denying Mr. Jones’s
motion for reconsideration, the trial court held that the police were justified in
searching the automobile because they had probable cause to believe that evidence of
criminal activity was contained within. See Ross, 456 U.S. at 799, 102 S.Ct. 2157, 72
L.Ed.2d 572. Probable cause to search exists where “known facts and circumstances
are sufficient to warrant a [person] of reasonable prudence in the belief that
contraband or evidence of a crime will be found.” Ornelas, 517 U.S. at 696, 116 S.Ct.
1657, 134 L.Ed.2d 911. Mr. Jones contends that the automobile search was not based
on probable cause. We agree.
{¶17} At the time they initiated the traffic stop, the only information
available to the officers was the informant’s report that the vehicle’s occupants were
armed. An informant tip may—but will not always—provide a basis for reasonable
suspicion if that tip possesses sufficient indicia of reliability. State v. Hansard, 4th
Dist. Scioto No. 07CA3177, 2008-Ohio-3349; ¶ 20-23; City of Maumee v.
Weisner, 87 Ohio St.3d 295, 299-300, 720 N.E.2d 507 (1999). In this case, the tip
from a known informant, where that informant was known to have provided reliable
information in the past, supplied a sufficient basis for the officers’ suspicion that the
car contained firearms. But we do not think the addition of Mr. Jones’s furtive hand
movements elevated that suspicion to probable cause. See, e.g., United States v.
Graham, 483 F.3d 431, 441 (6th Cir.2007) (a tip combined with the suspect’s furtive
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OHIO FIRST DISTRICT COURT OF APPEALS
movements amounted only to reasonable suspicion); State v. Gardner, 2d Dist.
Montgomery No. 25312, 2013-Ohio-2015, ¶ 9, 13-15. Therefore, we find that the
automobile exception did not provide a basis to conduct a warrantless search of Mr.
Jones’s automobile.
C.
{¶18} Protective Search. Although not the basis of the trial court’s
decision, the state argued that the search was permissible under an alternate theory
that safety concerns necessitated a limited search for weapons. In Michigan v. Long,
463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court
recognized an exception to the warrant requirement permitting a limited protective
search of an automobile during a traffic stop. Under Long, a “search of the
passenger compartment of an automobile, limited to those areas in which a weapon
may be placed or hidden, is permissible if the police officer possesses a reasonable
belief * * * that the suspect is dangerous and the suspect may gain immediate control
of weapons.” Id. at 1049.
{¶19} Following Long, we have held that, where there has been no arrest and
the suspect will be permitted to return to his vehicle once the investigation is complete,
“an officer acts reasonably when, out of a concern for his safety, the vehicle is
searched for weapons prior to allowing its occupants to reenter.” State v. Smith, 1st
Dist. Hamilton No. C-110727, 2013-Ohio-2208, ¶ 16-17; see State v. Caulton, 1st Dist.
Hamilton No. C-080034, 2008-Ohio-6090, ¶ 10 (“even where a suspect is out of his
car, a Terry search may extend to areas in the car that would be readily accessible to
a suspect upon his return to the car”); State v. Walker, 2d Dist. Montgomery No.
24542, 2012-Ohio-847, ¶ 28, 31; State v. Morlock, 3d Dist. Allen No. 1-12-21, 2013-
Ohio-641, ¶ 14; State v. Wade, 9th Dist. Summit No. 26275, 2012-Ohio-4255, ¶ 20;
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OHIO FIRST DISTRICT COURT OF APPEALS
State v. Broughton, 10th Dist. Franklin No. 11AP-620, 2012-Ohio-2526, ¶ 24.
Therefore, we must consider whether Long authorized a protective sweep of the
passenger compartment prior to permitting Mr. Jones’s return to the car.
Reasonable suspicion has been described as a “ ‘particularized and objective basis’
for suspecting the person stopped of criminal activity.” Ornelas, 517 U.S. at 696, 116
S.Ct. 1657, 134 L.Ed.2d 911. We evaluate the existence of a reasonable suspicion that
the suspect was dangerous and that a weapon was present under the totality of the
circumstances. State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph
two of the syllabus.
{¶20} Officer safety was a paramount concern in this case. The informant’s tip
seemed credible based on the officer’s knowledge that the informant had provided
reliable information in the past and the fact that the officer located the car near the
address indicated by the informant. Having received reliable information that the
vehicle may contain firearms, the officers ordered the occupants to keep their hands
visible as they approached. In defiance of their orders, Mr. Jones lowered his hand two
times, appearing to reach for or secret an item. When they returned to the car after
securing the occupants, they could see that the floor mat was askew and something
appeared to be concealed underneath it. Under these circumstances, the officers
possessed a reasonable and articulable belief that Mr. Jones was dangerous and that
weapons were present in the car. Moreover, had weapons been present in the car, Mr.
Jones would have gained immediate access to them upon the conclusion of the traffic
stop. Reasonableness being the touchstone of the Fourth Amendment, we think any
reasonable officer viewing the floor mat through the open door under these
circumstances would have lifted the mat to ensure that no weapons were hidden
underneath. Accordingly, we find that the officers possessed a reasonable basis to
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OHIO FIRST DISTRICT COURT OF APPEALS
search the passenger compartment of Mr. Jones’s car to determine whether weapons
were present.
III.
{¶21} We conclude that the officers were authorized to conduct a limited
protective search of the vehicle for their safety. Therefore, we overrule the sole
assignment of error and affirm the judgment below.
Judgment affirmed.
C UNNINGHAM , P.J., and H ILDEBRANDT , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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