State v. Allen

[Cite as State v. Allen, 2021-Ohio-3047.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28874
:
v. : Trial Court Case Nos. 2018-CR-3653
: & 2019-CR-229
MICHAEL RAYSHAWN ALLEN :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:

...........

OPINION

Rendered on the 3rd day of September, 2021.

...........

MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, 101 Southmoor Circle NW, Dayton, Ohio
45429
Attorney for Defendant-Appellant

.............
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EPLEY, J.

{¶ 1} Michael Rayshawn Allen was convicted after separate jury trials of carrying

a concealed weapon in Montgomery C.P. No. 2018-CR-3653 and improper handling of a

firearm in a motor vehicle in Montgomery C.P. No. 2019-CR-229. In each case, the trial

court had overruled Allen’s pretrial motion to suppress evidence, which claimed that

police officers lacked a reasonable articulable suspicion to stop him. Allen appeals from

his convictions, challenging the trial court’s denials of his motions to suppress. For the

following reasons, the trial court’s judgments will be affirmed.

I. Facts and Procedural History

{¶ 2} At the suppression hearing, the State presented the testimony of three

Dayton police officers who were involved in the incidents: Scott Myers and Brian Rolfes

in Case No. 2018-CR-3653 and Vincent Carter in Case No. 2019-CR-229. The State

also offered the cruiser camera videos of both events. Allen testified on his own behalf.

The evidence at the suppression hearing revealed the following facts.

A. Case No. 2018-CR-3653: Carrying a Concealed Weapon

{¶ 3} At approximately 11:15 p.m. on September 18, 2018, Officers Myers and

Rolfes were patrolling the area around the Shell gas station at the southwest corner of

Free Pike and North Gettysburg Avenue in Dayton. The police had received complaints

from and requests for increased patrols of the gas station due to loitering, trespassing,

and drug activity at the gas station. Officer Rolfes described the gas station as a high

drug and crime area, and Allen agreed.

{¶ 4} After driving around the area, the officers paused in the Veterans of Foreign

Wars (VFW) lot to the west of the Shell station. While the officers watched from their
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cruiser, they observed Allen walk from the gas station across Free Pike, not using a

crosswalk located nearby. Officer Myers did not see anything suspicious about Allen,

except the jaywalking. Allen admitted at the suppression hearing that he had jaywalked.

He stated that he lived across the street from the gas station and that walking straight

across Free Pike was a more direct route.

{¶ 5} Officer Rolfes, who was driving, activated the cruiser’s overhead lights and

pulled up beside Allen, who was then walking on the sidewalk on the north side of Free

Pike. Both officers exited the cruiser and approached Allen. Allen had already taken

out his identification. Officer Myers obtained Allen’s identification and returned to the

cruiser to run the information through the on-board computer while Officer Rolfes

remained with Allen. Rolfes admonished Allen to use the crosswalk, saying he did not

want Allen to be hit by traffic. Allen and Officer Rolfes chatted while they waited.

{¶ 6} According to Myers, the computer search revealed that Allen had been

arrested for carrying a concealed weapon. Officer Myers exited the cruiser and walked

up to Allen. The cruiser video reflects that Myers asked Allen, “Hey, you don’t mind if I

pat you down for weapons, do you?” (State’s Ex. 1, 23:14:07.) Allen responded, “Aw,

no.” Myers testified that he felt a “large solid object” in Allen’s right short’s pocket. He

did not know what it was, but suspected that it possibly could be a weapon. Allen stated

to the officers that he had a license to concealed carry. (Id., 23:14:09-15.)

{¶ 7} Myers reached into Allen’s pocket and removed a black SCCY 9mm

handgun. Officer Rolfes explained to Allen that he had needed to inform the officers

immediately that he was carrying a firearm. Allen and the officers then discussed the

need for Allen to obtain a license before he could carry a concealed weapon, as opposed
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to openly carrying a weapon. Allen stated that he had taken a concealed carry class but

had not applied for a license because the class did not inform him that he needed to apply

for a permit. Allen acknowledged at the suppression hearing that he did not have a

concealed carry license.

{¶ 8} Officer Myers checked to see if the gun was loaded, and found that it was.

He then asked the dispatcher to check for prior weapons convictions. Soon after, the

dispatcher informed Officer Myers that Allen “didn’t really have anything.” (State’s Ex. 1,

23:19:30.) She indicated that he had been arrested for a few felonies but did not have

any convictions. (State’s Ex. 1, 23:19:29.) Officer Myers asked the dispatcher to check

on the SCCY firearm that he had recovered from Allen.

{¶ 9} At the suppression hearing, Myers testified that he performed the pat down

due to Allen’s arrest record and the facts that the area was known for drugs and people

who carry drugs are known to carry weapons. Myers identified the high-crime area as

“the entire west side.” In contrast, Officer Rolfes testified that Allen consented to the

search of his person.

{¶ 10} Allen provided a different version as to how the weapon was found. He

testified that he did not realize when the stop began that he was carrying his gun. While

speaking with Officer Rolfes, he repeatedly heard the dispatcher say, “Let him go.” Allen

asked to leave and requested the return of his identification. Allen testified that, instead

of letting him leave, the officer said, “F*ck that. What you got in your pockets?” and then

“smacked” his pocket. The cruiser video belies Allen’s version of events.

{¶ 11} At the hearing, Allen denied that he consented to the search. He testified

that he had a gun for his family’s protection.
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{¶ 12} In November 2018, Allen was indicted for carrying a concealed weapon,

and a warrant was issued for his arrest. The warrant was not immediately served.

B. Case No. 2019-CR-229: Improper Handling of a Firearm

{¶ 13} At approximately 12:30 a.m. on January 19, 2019, Dayton Police Officers

Vincent Carter and Cody Hartings were patrolling North Gettysburg Avenue, an area

known for high drug activity and gun violence. Their cruiser and a second cruiser were

stopped in the parking lot of a Dollar General store at the intersection with Queens

Avenue, where they could easily watch northbound and southbound traffic. According

to Officer Carter, the officers saw a Mercedes approach Gettysburg eastbound on

Queens, “pull out onto Gettysburg to head northbound,” and then quickly put the car in

reverse and drive in reverse back down Queens Avenue. Officer Carter testified that

improperly backing in a street is a traffic violation.

{¶ 14} Officer Hartings, who was driving, pulled the cruiser onto Gettysburg and

headed toward Queens. Carter testified that the officers could see the Mercedes on

Queens do a three-point turn to face westbound and then park along the curb. The

officers believed that the vehicle’s driver had seen the cruisers and changed direction to

avoid detection by the police, a practice that Carter stated was common, “especially on

Gettysburg.” Officer Carter referred to the maneuver as the “Gettysburg Flip.” The

officers pulled up behind the parked Mercedes. The cruiser video showed that the

cruiser’s overhead lights were not activated.

{¶ 15} The officers approached the Mercedes and found two occupants: Allen, the

driver, and a female passenger. As Officer Hartings spoke with Allen, Officer Carter

looked in the vehicle’s windows using his flashlight and saw a black handgun, a Taurus
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9mm, on the rear floorboard. Carter advised Hartings to get Allen out of the car. Allen

complied and, after a few moments, was taken to the cruiser. Officer Carter then had

the passenger exit the car. At this juncture, another cruiser arrived and parked a short

distance in front of Allen’s vehicle.

{¶ 16} The officers requested an evidence technician to retrieve the gun. Upon

searching the vehicle, no drugs or other unlawful items were found.

{¶ 17} The officers learned that Allen had a warrant for his arrest on a carrying a

concealed weapon charge. Officer Hartings informed Allen of his Miranda rights, and

Allen said that he wanted to talk. Allen admitted the gun was his and stated that he had

purchased it from a pawn shop. He expressed that he was lawfully carrying the weapon

because it was out in the open and not concealed.

{¶ 18} Testifying on his own behalf, Allen stated that he and his companion were

“just sitting” in his parked car when the police cruiser “rolled past” his car. Allen stated

that the officers looked in the front windshield, looked at Allen and his friend, and then

turned on the cruiser’s overhead lights. When asked if his car “ever back[ed] up in any

way,” Allen responded, “No, I wasn’t doing anything. I was just sitting there.” Allen

acknowledged that he had a gun on the rear floorboard that was readily visible.

{¶ 19} In March 2019, Allen was indicted for improper handling of a firearm in a

motor vehicle (loaded/no license). Allen acknowledged that he had received a traffic

citation and appeared in municipal court related to this incident, although it is not clear

whether the citation was for improper backing.

C. Procedural History

{¶ 20} Allen sought to suppress the evidence against him, including all physical
 -7-

evidence and any statements that he made in both cases. Allen claimed that the officers

lacked a reasonable, articulable suspicion to stop and detain him, and that his statements

were made involuntarily and contrary to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

15 L.Ed.2d 694 (1966).

{¶ 21} The trial court held a joint hearing on the motions on June 28, 2019. A

week later, the trial court denied the motions. Allen proceeded to separate jury trials in

his two cases, following which he was found guilty of the charged offenses. In each

case, the court sentenced him to up to five years of community control.

{¶ 22} Allen appeals from his convictions. In his first assignment of error, Allen

claims that the pat down in Case No. 2018-CR-3653 was unlawful and, therefore, the trial

court erred in denying his motion to suppress. In his second assignment of error, Allen

claims that the trial court erred in denying his motion to suppress in Case No. 2019-CR-

229, because the officers did not have probable cause to conduct a traffic stop of his

vehicle.

II. Standard for Review for a Motion to Suppress

{¶ 23} In ruling on a motion to suppress, the trial court “assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639

N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-

116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial

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

at 592. “Accepting those facts as true, we must independently determine as a matter of

law, without deference to the trial court's conclusion, whether they meet the applicable
 -8-

legal standard.” Id.

{¶ 24} In this case, the trial court’s rulings denying the motions to suppress did not

make any specific factual findings. Rather, the trial court stated: “Upon review of the

testimony presented, including that of the Defendant, and State’s Exhibit [1 and 2]

(Cruiser Camera), this Court DENIES Defendant’s Motion to Suppress.”

{¶ 25} Crim.R. 12(F) provides, in part, that “[w]here factual issues are involved in

determining a motion, the court shall state its essential findings on the record.” “Crim.R.

12(F) mandates that a trial court state its essential findings on the record when factual

issues are involved in determining a motion to suppress.” State v. Brown, 2d Dist.

Montgomery No. 24297, 2012-Ohio-195, ¶ 10.

{¶ 26} Crim.R. 12(F) is not self-executing, however – a defendant must specifically

request findings of fact. State v. Adams, 146 Ohio St.3d 232, 2016-Ohio-3043, 54

N.E.3d 1227, ¶ 16. See, e.g., Brown at ¶ 10, citing State v. Benner, 40 Ohio St.3d 301,

317, 533 N.E.2d 701 (1988). “While it is error for the trial court to fail in providing

requested findings of fact, [it] is not prejudicial where the record provides an appellate

court with a sufficient basis to review the assignments of error.” Brown at ¶ 10. If,

however, the record, standing alone, is insufficient to allow a full review of a defendant’s

claims on appeal regarding his motion to suppress, we must reverse and remand to the

trial court to make findings of fact and conclusions of law based on the evidence adduced

at the suppression hearing. Id. at ¶ 12.

{¶ 27} It is unclear why the trial court did not provide findings of fact, particularly

given that Myers’s and Rolfes’s testimonies were not entirely consistent and Allen’s

testimony differed from the testimonies of the officers. Moreover, although the State
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submitted the cruiser camera videos for the trial court’s review, the pat down during the

2018 stop occurred off-camera, and the video of the January 2019 stop began after the

officers approached the vehicle.

{¶ 28} Despite these deficiencies, the videos portray most of what occurred, and

the parties’ interpretation of the relevant events, as stated in their appellate briefs, is

generally consistent. Upon review of the suppression hearing evidence, and considering

the specific issues raised in this appeal, we conclude that the record provides a sufficient

basis to review the trial court’s suppression rulings.

III. Relevant Legal Standards

{¶ 29} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The touchstone of the Fourth Amendment is

reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d

297 (1991). Whether a stop and/or search is reasonable under the Fourth Amendment

depends upon the particular facts and circumstances, viewed objectively by examining

the totality of the circumstances. See State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-

154, 47 N.E.3d 821, ¶ 14.

{¶ 30} The law recognizes three types of police-citizen interactions: 1) a

consensual encounter, 2) a brief investigatory stop or detention, and 3) an arrest. State

v. Weisgarber, 2017-Ohio-8764, 88 N.E.3d 1037, ¶ 15 (2d Dist.), citing State v. Millerton,

2015-Ohio-34, 26 N.E.3d 317, ¶ 20 (2d Dist.). In determining whether an individual

engaged in a consensual encounter or was subject to an investigatory detention, the

focus is on the police officer’s conduct, not the subjective state of mind of the person
 -10-

stopped. Weisgarber at ¶ 18; State v. Ramey, 2d Dist. Montgomery No. 26705, 2016-

Ohio-607, ¶ 25.

{¶ 31} Consensual encounters are not seizures, and the Fourth Amendment

guarantees are not implicated in such an encounter. State v. Taylor, 106 Ohio App.3d

741, 747-749, 667 N.E.2d 60 (2d Dist.1995), citing United States v. Mendenhall, 446 U.S.

544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Consensual encounters occur when

the police merely approach a person in a public place and engage the person in

conversation, and the person remains free not to answer and to walk away. State v.

Lewis, 2d Dist. Montgomery No. 22726, 2009-Ohio-158, ¶ 21, citing Mendenhall at 553.

“ ‘Generally, when a police officer merely approaches and questions persons seated

within parked vehicles, a consensual encounter occurs that does not constitute a seizure

so as to require reasonable suspicion supported by specific and articulable facts.’ ” State

v. Mayberry, 2d Dist. Montgomery No. 23736, 2010-Ohio-4150, ¶ 25, quoting State v.

Jones, 188 Ohio App.3d 628, 2010-Ohio-2854, 936 N.E.2d 529, ¶ 20.

{¶ 32} As to investigatory detentions, police officers may briefly stop and/or

temporarily detain individuals to investigate possible criminal activity if the officers have

a reasonable, articulable suspicion that criminal activity may be afoot, including a minor

traffic violation. Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Mays, 119

Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8. Probable cause is not

required. Id.; State v. Tidwell, Ohio Slip Opinion No. 2021-Ohio-2072, __ N.E.3d. __;

Kansas v. Glover, __ U.S. __, 140 S.Ct. 1183, 1187, 206 L.Ed.2d 412 (2020). As stated

in Mays:

Probable cause is certainly a complete justification for a traffic stop, but we
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have not held that probable cause is required. Probable cause is a stricter

standard than reasonable and articulable suspicion. The former subsumes

the latter. Just as a fact proven beyond a reasonable doubt has by

necessity been proven by a preponderance, an officer who has probable

cause necessarily has a reasonable and articulable suspicion, which is all

the officer needs to justify a stop.

(Citation omitted.) Mays at ¶ 23.

{¶ 33} We determine the existence of reasonable suspicion by evaluating the

totality of the circumstances, considering those circumstances “through the eyes of the

reasonable and prudent police officer on the scene who must react to events as they

unfold.” State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting

State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991). “Although a mere

‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires

is considerably less than proof of wrongdoing by a preponderance of the evidence, and

obviously less than is necessary for probable cause.” (Citation omitted.) Glover at 1187.

{¶ 34} “The authority to stop an individual does not necessarily equate to authority

to search the individual.” (Citations omitted.) State v. Lovins, 2d Dist. Montgomery No.

23530, 2010-Ohio-3916, ¶ 12. Once a lawful investigatory or traffic stop has been made,

a police officer may conduct a limited protective search for concealed weapons only if the

officer reasonably believes that the suspect may be armed or a danger to the officer or to

others. State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993); State v. Klase,

2019-Ohio-3392, 131 N.E.3d 1054, ¶ 24, (2d Dist.) quoting State v. Todd, 2d Dist.

Montgomery No. 23921, 2011-Ohio-1740, ¶ 29.
 -12-

{¶ 35} “The purpose of this limited search is not to discover evidence of crime, but

to allow the officer to pursue his investigation without fear of violence * * *.” Evans at

408, quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

“In other words, ‘the protective pat down under Terry is limited in scope to its protective

purpose and cannot be employed by the searching officer to search for evidence of

crime.’ ” State v. Millerton, 2015-Ohio-34, 26 N.E.3d 317, ¶ 26 (2d Dist.), quoting State v.

Holley, 2d Dist. Montgomery No. 20371, 2004-Ohio-4264, ¶ 10.

{¶ 36} To justify a pat-down search, “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.” Terry, 392 U.S. at 21, 88 S.Ct. 1868, 20

L.Ed.2d 889. “The officer need not be absolutely certain that the individual is armed;

rather, the issue is whether a reasonably prudent man in those circumstances would be

warranted in the belief that his safety or the safety of others was in danger.” State v.

Grefer, 2d Dist. Montgomery No. 25501, 2014-Ohio-51, ¶ 24, citing State v. Andrews, 57

Ohio St.3d 86, 89, 565 N.E.2d 1271 (1991). The totality of the circumstances must “be

viewed through the eyes of the reasonable and prudent police officer on the scene who

must react to events as they unfold.” Id. at 87-88.

{¶ 37} We have repeatedly held that mere 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. E.g., State v. Taylor, 2d Dist. Montgomery No. 25169, 2013-Ohio-814,

¶ 22 (“[a] suspect’s location in a high crime area alone will not justify a weapons frisk”);

Millerton at ¶ 32; State v. Habel, 190 Ohio App.3d 393, 2010-Ohio-3907, 942 N.E.2d 389,
 -13-

¶ 24 (2d Dist.), citing State v. Roberts, 2d Dist. Montgomery No. 23219, 2010-Ohio-300,

¶ 18. Rather, the officer must have an individualized suspicion that the suspect is armed

and dangerous. Taylor at ¶ 22.

IV. Review of the Motion to Suppress Rulings

A. Case No. 2018-CR-3653

{¶ 38} Allen was stopped by Officers Myers and Rolfes after the officers observed

his crossing Free Pike from the Shell gas station without using the nearby crosswalk.

Allen admitted at the suppression hearing that he had jaywalked. The officers’

observation of the jaywalking provided reasonable and articulable suspicion that Allen

had engaged in criminal activity, albeit a minor misdemeanor. Accordingly, the officers’

stop of Allen was lawful.

{¶ 39} Allen argues that there was no evidence to justify a pat down. He

emphasizes that there was nothing suspicious about his appearance or actions; he was

compliant, had no bulging pockets, made no assertive movements, was not belligerent or

verbally abusive, and had not discarded anything. Allen noted that he produced his

identification and provided it to the officers before they requested it.

{¶ 40} Officer Myers testified that he ran Allen’s identification through the cruiser’s

on-board computer and learned that Allen had a prior arrest for carrying a concealed

weapon. The officers and Allen all agreed that the area where the stop occurred was a

high-crime and high-drug activity area, and the officers indicated that the owner of the

Shell gas station had requested patrols due to loitering, trespassing, and drug activity in

the lot.

{¶ 41} The officers’ testimony and the cruiser video supported Allen’s assertion
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that he did not engage in suspicious behavior. Allen was cooperative with the officers,

and he and Officer Rolfes engaged in friendly conversation while Officer Myers ran Allen’s

identification. Nevertheless, while Allen’s presence in a high-crime and high-drug activity

area did not, alone, provide a sufficient basis for Officer Myers to perform a pat down for

weapons, the information that Allen had previously been arrested for carrying a concealed

weapon created a reasonable individualized suspicion that Allen may be armed and

dangerous. Contrast, e.g., State v. Ewing, 2017-Ohio-7194, 95 N.E.3d 1112 (after lawful

stop for jaywalking, officers lacked a reasonable articulable suspicion that defendant may

have been armed, based solely on area being a high drug and prostitution area). Officer

Myers conceded on cross-examination that the weapons arrest was several years old.

Nevertheless, we cannot conclude that the officer acted unreasonably when he patted

down Allen for his and Officer Rolfes’s safety.

{¶ 42} Allen’s first assignment of error is overruled.

B. Case No. 2019-CR-229

{¶ 43} In this case, Officer Carter and his partner were seated in their cruiser in the

parking lot of a store located at the intersection of North Gettysburg Avenue and Queens

Avenue. According to Officer Carter, he observed a Mercedes approach the intersection

on Queens, begin to enter the intersection, and then drive back down Queens in reverse.

Allen was found to be driving the Mercedes. As the officers drove toward Allen’s vehicle,

Allen did a three-point turn and parked at the curb. The parties agree that the Mercedes

was parked along the curb when the officers arrived. After approaching the vehicle,

Officer Carter saw a weapon in the vehicle in plain view.

{¶ 44} On appeal, Allen claims that Officer Carter’s testimony “did not provide
 -15-

sufficient evidence that [Allen] committed the traffic offense of improper backing, in

violation of R.C. 4511.38. In addition, Officer Carter’s testimony was inconclusive that

[Allen] was the person who committed the alleged offense.” Allen noted that the cruiser

video of the incident did not show the traffic offense or the stop, as the video began while

the officers were standing outside Allen’s vehicle. Allen does not challenge Officer

Carter’s testimony that he (the officer) saw the firearm in plain view while looking through

the window of Allen’s stopped vehicle.

{¶ 45} R.C. 4511.38, entitled “Care to be exercised in starting or backing vehicles,”

provides, in relevant part:

(A) No person shall start a vehicle * * * which is stopped, standing, or parked

until such movement can be made with reasonable safety.

Before backing, operators of vehicles * * * shall give ample warning, and

while backing they shall exercise vigilance not to injure person or property

on the street or highway.

No person shall back a motor vehicle on a freeway, except: in a rest area;

in the performance of public works or official duties; as a result of an

emergency caused by an accident or breakdown of a motor vehicle.

R.C. 4511.38(A); see also Dayton Municipal Code 71.01, which is nearly identical. A

“freeway” is a “divided multi-lane highway for through traffic with all crossroads separated

in grade and with full control of access.” R.C. 4511.01(YY).

{¶ 46} Based on the trial court’s ruling, the court implicitly credited Officer Carter’s

testimony that he observed the driver of the Mercedes approach Gettysburg Avenue and

begin to enter the intersection, “thr[o]w the vehicle in reverse” and reverse back down
 -16-

Queens Avenue. Officer Carter further testified that the driver’s conduct constituted a

traffic violation, but we need not credit that legal conclusion.

{¶ 47} We agree with Allen that driving quickly in reverse down a residential street,

without more, does not violate R.C. 4511.38(A), and the State did not provide any

additional information to support Officer Carter’s belief that Allen, the driver of the vehicle,

had violated that statute. The cruiser video did not capture the alleged traffic violation;

the video began with the officers’ approaching the parked Mercedes. The video showed

Allen’s vehicle parked on a residential street with virtually no vehicular traffic. During the

encounter, only one additional vehicle drove by, other than police cruisers and a tow truck

for Allen’s automobile. There was no evidence that Allen provided inadequate warning

to other drivers or that his backing caused damage or injury to any person or property.

With the evidence before us, the officers lacked a reasonable and articulable suspicion

that Allen violated R.C. 4511.38(A) or the analogous Dayton Municipal Code ordinance.

{¶ 48} Officer Carter further testified that the officers believed that the driver of the

Mercedes had seen the cruisers and changed direction to evade the police. While

Allen’s driving may have caused the officers to have an “inchoate and unparticularized

suspicion or ‘hunch’ ” that he was avoiding the police, see Terry, 392 U.S. at 27, 88 S.Ct.

1868, 20 L.Ed.2d 889, his actions were insufficient to create a particularized suspicion

that he was engaged in criminal activity. Accord State v. Stocks, 2d Dist. Montgomery

No. 28191, 2019-Ohio-2944.

{¶ 49} Nevertheless, based on the video, we conclude that the officers’ initial

approach constituted a consensual encounter, not an investigatory detention. The

officers’ cruiser stopped to the rear of Allen’s vehicle, and the video reflects that the
 -17-

cruiser’s overhead lights were not activated. No other vehicles were in front of the

Mercedes, and Allen could have driven away without difficulty or obstruction. Although

the cruiser video did not include audio until after Allen was taken to the cruiser, the video

substantiated Officer Carter’s testimony that he looked through the Mercedes’s windows

with his flashlight while Officer Hartings spoke with Allen, who was then seated in the

driver’s seat. At that time, Carter saw the gun in plain view, a fact that Allen does not

dispute.

{¶ 50} Accordingly, we conclude that the officers lawfully approached Allen’s

parked vehicle and saw through the car window, in plain view, a firearm on the rear

floorboard. The trial court thus properly denied Allen’s motion to suppress.

{¶ 51} Allen’s second assignment of error is overruled.

V. Conclusion

{¶ 52} The trial court’s judgments will be affirmed.

.............

WELBAUM, J., concurs.

DONOVAN, J. concurs with the majority in Case No. 2019-CR-229 and concurs

separately in Case No. 2018-CR-3653:

{¶ 53} I agree with the majority’s analysis in Case No. 2019-CR-229. I write

separately only to address my rationale for concurring in Case No. 2018-CR-3653, a

different reason than adopted by the majority. Since the trial court did not make written or

oral findings of fact and conclusions of law, it is not clear if the trial court overruled the
 -18-

motion to suppress after a jaywalking infraction was established because Allen consented

to the pat down for weapons and/or because the court was satisfied that a prior carrying

a concealed weapon arrest (not conviction) took the case outside our prior holdings in

Taylor and Ewing. Unquestionably, Allen was cooperative, provided identification, did not

engage in any suspicious behavior, and did not exhibit any furtive gestures. A minor

misdemeanor jaywalking citation under Title 45, the traffic code, not Title 29, the criminal

code, could have readily been issued for jaywalking. Jaywalking is not a crime but rather

an infraction carrying no jail time and, in fact, the record herein demonstrates that Allen

was not subject to arrest for jaywalking. State’s Exhibit 1, the cruiser cam video reviewed

by the trial court before rendering its decision, supported this analysis of the stop.

{¶ 54} Allen’s conduct that evening, albeit in a high crime area, did not provide the

officers with the requisite concern for officer safety that the Fourth Amendment requires.

It was Allen’s conduct that night which should be the linchpin of the Fourth Amendment

analysis, not his singular arrest several years earlier. I recognize the legitimacy of

concerns for officers’ safety, yet we should not overlook the fact that a patdown “is a

serious intrusion upon the sanctity of the person, which may inflict great indignity and

arouse strong resentment, and is not to be undertaken lightly.” Terry v. Ohio, 302 U.S. 1,

88 S.Ct. 1868, 20 L.Ed.2d 889.

{¶ 55} Nevertheless I concur in the judgment affirming a denial of the motion to

suppress, because the cruiser cam video indisputably established that Allen consented

to the pat down as testified to by Officer Myers.
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Copies sent to:

Mathias H. Heck, Jr.
Elizabeth A. Ellis
J. David Turner
Hon. Gerald Parker