State v. Thornton

[Cite as State v. Thornton, 2023-Ohio-1404.]

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

STATE OF OHIO :
:
Appellant : C.A. No. 29653
:
v. : Trial Court Case No. 2022 CR 01798
:
NORMAN THORNTON : (Criminal Appeal from Common Pleas
: Court)
Appellee :
:

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OPINION

Rendered on April 28, 2023

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MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellant

JOSEPH M. RUSCH, Attorney for Appellee

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

HUFFMAN, J.

{¶ 1} The State of Ohio appeals from the trial court’s decision granting Defendant-

Appellee Norman Thornton’s motion to suppress. The State contends that the trial court

erred by finding that there was no reasonable articulable suspicion or probable cause to

justify the stop and later seizure of Thornton. For the reasons outlined below, we agree

and reverse the judgment of the trial court.
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I. Factual and Procedural Background

{¶ 2} The Dayton Police Department’s Strategic Response Unit (“SRU”) consists

of five to seven police officers whose primary goal, in an effort to curtail crime, is to patrol

high-crime areas based upon statistics and data polling of drug and weapon complaints,

as directed by their sergeant. On June 30, 2022, the SRU was tasked with patrolling the

area of Kings Mill Court apartments located at 3522 Dorham Place, in Dayton, Ohio, from

which complaints regarding drug sales and weapons had historically come.

{¶ 3} According to body-camera videos, at approximately 9:52 p.m. on June 30,

2022, five uniformed SRU officers, including Officers Joshua Erwin and Kyle Harris,

parked their cruisers and walked toward the Kings Mill Court apartment complex parking

lot. When the officers approached the lot, they heard loud music, observed three men

standing near a parked truck, and spotted open containers of alcohol. As they moved

toward the men, the officers shined their flashlights and introduced themselves as

“Dayton Police.” None of the officers had weapons drawn. The body-camera videos

showed that the officers were some distance away from the three men when, immediately

after the officers announced themselves, one of the men, later identified as Thornton,

turned and ran. Within seconds, one officer said, “He’s got a gun. I think he’s got a gun,”

and the officers swiftly pursued Thornton. After less than a minute, Thornton was

apprehended but no firearm was found on him. The officers then retraced the path of the

pursuit and found a discarded firearm nearby.

{¶ 4} At 10:03 p.m., Thornton was placed in the police cruiser. When asked by an

officer for personal identifying information, including his name, social security number,
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and date of birth, Thornton made several unsolicited statements not in response to

anything the officer had said and asked the officer if he could have his gun back once he

was released.

{¶ 5} At 10:20 p.m., another officer opened the rear door of the cruiser and read

Thornton his Miranda rights from a card. After each right was read, Thornton verbally

acknowledged his understanding. Thornton was calm, did not appear to be under the

influence of drugs or alcohol, and did not assert his right to remain silent or request an

attorney. Thornton stated that he had not known that the individuals approaching him and

the other two men were police officers before he began running and had not heard the

officers say “Dayton Police.”

{¶ 6} On July 11, 2022, Thornton was indicted on one count of having weapons

while under disability (prior offense of violence) in violation of R.C. 2923.13(A)(2), a felony

of the third degree, and one count of carrying concealed weapons (loaded/at hand) in

violation of R.C. 2913.12(A)(2), a felony of the fourth degree.

{¶ 7} On September 12, 2022, Thornton filed a motion to suppress, arguing that

the evidence of his possession of a firearm should be suppressed. Thornton argued that

the stop and subsequent seizure of the firearm were accomplished in violation of the

Fourth Amendment, as there had been no arrest or search warrant and his seizure had

occurred without probable cause or reasonable articulable suspicion that he was

engaging in illegal activity.

{¶ 8} At a hearing on the motion to suppress held on November 14, 2022,

Officers Joshua Erwin and Kyle Harris testified for the State. Officer Harris testified that,
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as the five SRU officers approached the three individuals in the parking lot intending to

conduct an investigation and speak with them, one officer stated “stay put.”

{¶ 9} Following the hearing, the trial court granted Thornton’s motion, finding that

the officers had conducted an investigatory detention of Thornton without having

reasonable articulable suspicion of criminal activity when they approached to investigate

in a large group, shined their flashlights, identified themselves as “Dayton Police,” and

said “stay put.” The trial court found that a reasonable person would not have felt free to

walk away under the circumstances in this case and that there had needed to be

reasonable articulable suspicion that criminal activity was afoot, which was lacking, as

there had been no warrant, no suspect, no complaint of drug sales or weapons

possession, no shooting report, and no calls for service. The trial court found that there

was no evidence that city ordinances or state statutes had been violated; there had been

no complaints from neighbors or residents about loud music; and there was no evidence

that Thornton had been intoxicated or consuming alcohol. The trial court further found

that there had been a warrantless search and seizure and that no exception to the warrant

requirement applied; that Thornton had been detained without reasonable articulable

suspicion that criminal activity was afoot; that Thornton’s flight had not contributed to a

finding of reasonable articulable suspicion because he was confronted with an unlawful

order to “stay put”; that evidence was obtained after the pursuit and seizure of Thornton;

and that the evidence of the firearm and Thornton’s identity were fruit of the poisonous

tree and had to be suppressed.

{¶ 10} The State filed a timely notice of appeal on November 28, 2022.
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II. Assignment of Error

{¶ 11} The State’s sole assignment of error is as follows:

The trial court erred in granting Thornton’s motion to suppress. The

court incorrectly ruled that there was no reasonable or articulable suspicion

to justify the Terry stop of Thornton.

{¶ 12} The State contends that the trial court improperly found that the police

officers did not have reasonable articulable suspicion that criminal activity was occurring

for the purpose of an investigatory detention of Thornton. As a result, according to the

State, the motion to suppress should have been overruled by the trial court, and the trial

court’s judgment must be reversed. We agree.

{¶ 13} “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. When ruling on a motion to suppress, “the trial court assumes the role of trier of fact

and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972

(1992). “Consequently, an appellate court must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio

St.3d 19, 20, 437 N.E.2d 583 (1982). “Accepting these facts as true, the appellate court

must then independently determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara,

124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

{¶ 14} “The Fourth Amendment to the United States Constitution, and Section 14,
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Article I of the Ohio Constitution, protect individuals from unreasonable searches and

seizures conducted by police officers.” (Citations omitted.) State v. Ferguson, 2d Dist.

Montgomery No. 28644, 2020-Ohio-4153, ¶ 12. The Fourth Amendment, however, is not

implicated every time a police officer has contact with a citizen. State v. Taylor, 106 Ohio

App.3d 741, 747, 667 N.E.2d 60 (2d Dist.1995), citing California v. Hodari D., 499 U.S.

621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). “The United States Supreme Court has

identified three categories of police-citizen contact to identify situations where the Fourth

Amendment protections are implicated.” (Citation omitted.) State v. Crum, 2d Dist.

Montgomery No. 22812, 2009-Ohio-3012, ¶ 12, citing Florida v. Royer, 460 U.S. 491,

501-507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). These categories are: (1) consensual

encounters; (2) investigatory detentions; and (3) seizures that are the equivalent of an

arrest. Taylor at 747-749.

{¶ 15} “Consensual encounters are not seizures, and Fourth Amendment

guarantees are not implicated in such encounters.” State v. Keister, 2d Dist. Montgomery

No. 29081, 2022-Ohio-856, ¶ 27, citing Taylor at 747-749, 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. Therefore, “[a] consensual encounter can occur when a police officer approaches

and questions individuals in or near a parked car.” (Citations omitted.) State v. Schott, 2d

Dist. Darke No. 1415, 1997 WL 254141, *3 (May 16, 1997); State v. Jones, 188 Ohio
 -7-

App.3d 628, 2010-Ohio-2854, 936 N.E.2d 529, ¶ 20 (10th Dist.). Moreover, “[t]he request

to check a person’s identification does not make the encounter nonconsensual; nor does

the request to check one’s belongings.” (Citation omitted.) Crum at ¶ 14. “The Fourth

Amendment guarantees are not implicated in such an encounter unless the police officer

has by either physical force or show of authority restrained the person’s liberty so that a

reasonable person would not feel free to decline the officer’s requests or otherwise

terminate the encounter.” Taylor at 747-748. “Only once a person’s liberty has been

restrained has the encounter lost its consensual nature and [it] falls into a separate

category beyond the scope of a consensual encounter.” (Citations omitted.) Crum at ¶ 14.

{¶ 16} The second type of encounter is a “Terry stop” or an investigatory detention,

which is more intrusive than a consensual encounter but less intrusive than a formal

custodial arrest. Taylor at 748. “Unlike consensual encounters, an investigatory detention

constitutes a seizure; therefore, Fourth Amendment protections are implicated in an

investigatory detention.” (Citations omitted.) State v. Shern, 2d Dist. Montgomery No.

27976, 2018-Ohio-5000, ¶ 13. “An individual is subject to an investigatory detention when,

in view of all the circumstances surrounding the incident, by means of physical force or

show of authority, a reasonable person would have believed that he was not free to leave

or is compelled to respond to questions.” Lewis at ¶ 22, citing Mendenhall at 553 and

Terry v. Ohio, 392 U.S. 1, 16 and 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In

Mendenhall, the Supreme Court listed several factors that might indicate a seizure,

including the display of a weapon by an officer, physical touching of the person, the use

of language or tone of voice indicating that compliance with the officer’s request might be
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compelled, and blocking the citizen’s path, among others. Mendenhall at 54. “The mere

presence of multiple officers does not necessarily establish a seizure.” State v. Thomas,

2d Dist. Montgomery No. 27588, 2017-Ohio-8606, ¶ 12.

{¶ 17} During investigatory detentions, “police officers may briefly stop and/or

temporarily detain individuals in order to investigate possible criminal activity if the officers

have a reasonable, articulable suspicion that criminal activity may be afoot[.]” (Citations

omitted.) State v. Swift, 2d Dist. Montgomery No. 27036, 2016-Ohio-8191, ¶ 10, citing

Terry. Therefore, investigatory detentions do not violate the Fourth Amendment “as long

as the police have a reasonable, articulable suspicion of criminal activity.” State v. Ramey,

2d Dist. Montgomery No. 26705, 2016-Ohio-607, ¶ 22, citing Taylor at 748-749, citing

Terry at 21. “The determination 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. Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622,126 N.E.3d 1132, ¶ 10,

quoting State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991). “An assessment of

the totality of the circumstances ‘does not deal with hard certainties, but with

probabilities.’ ” Id., quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66

L.Ed.2d 621 (1981).

{¶ 18} “An individual’s presence in an area of expected criminal activity, standing

alone, is not enough to support a reasonable, particularized suspicion that the person is

committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S. Ct. 673, 145

L.Ed.2d 570 (2000), citing Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357
 -9-

(1979). However, “officers are not required to ignore the relevant characteristics of a

location in determining whether the circumstances are sufficiently suspicious to warrant

further investigation,” and, thus, a stop occurring in a high crime area is a relevant

contextual consideration in a Terry analysis. Id., citing Adams v. Williams, 407 U.S. 143,

144, 147-148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Moreover, “evasive behavior is a

pertinent factor in determining reasonable suspicion.” Id., citing United States v. Brignoni-

Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Florida v. Rodriguez,

469 U.S. 1, 6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) (per curiam); United States v.

Sokolow, 490 U.S. 1, 8-9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). “Unprovoked flight upon

seeing police officers is a relevant consideration in determining whether the totality of the

facts and circumstances are sufficiently suspicious to justify a Terry stop.” State v. Jordan,

2d Dist. Clark No. 2005-CA-4, 2006-Ohio-1813, ¶ 22, citing Wardlow. “While such a factor

is not necessarily indicative of criminal behavior, and can be consistent with innocent

conduct, Terry recognized that officers may briefly detain individuals to resolve ambiguity

in their conduct.” Id. “Flight, by its very nature, is not ‘going about one’s business’; in fact,

it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and

investigate further is quite consistent with the individual’s right to go about his business

or to stay put and remain silent in the face of police questioning.” Wardlow at 124-125.

Thus, “the determination of reasonable suspicion must be based on commonsense

judgments and inferences about human behavior.” Id., citing United States v. Cortez, 449

U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

{¶ 19} Unlike investigatory detentions, a seizure that is the equivalent of an arrest
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is constitutionally permissible “only if the police have probable cause to arrest a person

for a crime.” State v. Retherford, 93 Ohio App.3d 586, 595, 639 N.E.2d 498 (2d Dist.1994),

citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). “A seizure

is equivalent to an arrest when (1) there is an intent to arrest; (2) the seizure is made

under real or pretended authority; (3) it is accompanied by an actual or constructive

seizure or detention; and (4) it is so understood by the person arrested.” Taylor at 749.

“Probable cause to arrest exists when a reasonably prudent person would believe that

the person to be arrested has committed a crime.” State v. Adams, 2d Dist. Montgomery

No. 24184, 2011-Ohio-4008, ¶ 7, citing State v. Timson, 38 Ohio St.2d 122, 311 N.E.2d

16 (1974).

{¶ 20} Whether a law enforcement officer possessed probable cause or

reasonable suspicion to detain an individual must be examined in light of the totality of

the circumstances viewed from the standpoint of an objectively reasonable police officer.

State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991); State v. Short, 2d Dist.

Montgomery No. 27712, 2018-Ohio-3202, ¶ 19-20; State v. Cromes, 3d Dist. Shelby No.

17-06-07, 2006-Ohio-6924, ¶ 38, citing United States v. Arvizu, 534 U.S. 266, 273, 122

S.Ct. 744, 151 L.Ed.2d 740 (2002). “This ‘typically requires [a showing] that the officer

making the stop [or arrest] was [personally] aware of sufficient facts to justify it[.]’” State

v. Pickett, 2017-Ohio-5830, 94 N.E.3d 1046, ¶ 9 (2d Dist.), quoting City of Maumee v.

Weisner, 87 Ohio St.3d 295, 297, 720 N.E.2d 507 (1999).

{¶ 21} It is worth noting that, at Thornton’s motion to suppress hearing, the “stay

put” order was the subject of debate. The trial court relied upon the “stay put” order as the
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basis for its reasoning that the encounter between the police and Thornton constituted an

investigatory detention without reasonable articulable suspicion even before Thornton

fled. However, upon our review of the body-camera video, the order to “stay put” was not

audible on the video, and the trial court even acknowledged that, while Officer Harris

testified that a “stay put” order was given, the audio portion of the video from the body

camera was not as clear.

{¶ 22} The State argues that the police had reasonable and articulable suspicion

for the purpose of a Terry stop when the officers initially approached, announced

themselves, shined their flashlights, and said “stay put.” The State argues that the police

approached during dark hours, knew the area to be a high-crime area where several gun

and drug arrests had previously been made, heard loud music, and observed open

containers as they approached the three men standing near a parked truck. The State

further argues that the officers believed that there was the potential for a citation to be

issued pursuant to R.C. 4301.62(B)(3), which prohibits any person from having an opened

container of beer or intoxicating liquor in the person’s possession in any public place;

thus, the officers would have been permitted to detain Thornton to issue a citation but did

not have the opportunity because Thornton fled.

{¶ 23} In rebuttal, Thornton argues that he was seized in violation of his Fourth

Amendment rights when officers approached as group while spread out in a line, shined

their flashlights, announced themselves as “Dayton Police,” and said “stay put.” Thornton

argues that the police did not have reasonable articulable suspicion to justify a Terry stop

at that point in time. We disagree.
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{¶ 24} Thornton was not only in an area of high crime, but the officers had

reasonable articulable suspicion that criminal activity was afoot when they observed open

containers of alcohol. It was in this context that the officers decided to investigate the

three men standing near the parked truck, and both officers testified that their initial plan

was merely to speak to them. When viewed through the eyes of the officers and taking

into consideration their training and experience, we conclude that, under the totality of the

circumstances, the officers were permitted to detain Thornton briefly to resolve ambiguity

in his conduct; they were justified in suspecting that Thornton was involved in criminal

activity and, therefore, in investigating further. The high-crime nature of the area,

combined with the location and time of the encounter, the loud music, and the open

containers, gave the officers reasonable suspicion of criminal activity to justify the initial

Terry stop.

{¶ 25} The State also argues that, even if there was no reasonable articulable

suspicion that criminal activity was afoot to justify the initial Terry stop, Thornton was

never actually seized in violation of his Fourth Amendment rights because, when the

officers approached, he fled almost immediately after they identified themselves, ignored

the order to “stay put,” and was not physically seized by police until after he had fled and

discarded the firearm that he was holding. Of note, too, Thornton stated to the officers

later while in a police cruiser that he had not known who was approaching and that he

had not heard the persons identify themselves as “Dayton Police.” Additionally, the State

argues that a person’s conduct during an encounter, including fleeing, can independently

give police reasonable suspicion to engage in an investigatory detention. The State
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argues that, considering the totality of these circumstances, the police had additional

reasonable articulable suspicion to justify a Terry stop of Thornton when he fled while

holding a firearm. We agree.

{¶ 26} A person is “seized within the meaning of the Fourth Amendment “only

when, by means of physical force or a show of authority, his freedom of movement is

restrained.” United States v. Mendenhall, 446. U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d

497 (1980). “Absent the use of physical force, a seizure requires both a ‘show of authority’

from law enforcement and ‘submission to [that] assertion of authority’ by the person at

whom it is directed.” United States v. Garrette, N.D. Florida No. 3:17cr022/MCR, 2017

WL 3337258 (Aug. 4, 2017). Submission requires that the person comply with the

directives of law enforcement. The failure to submit to the instructions means there is no

seizure, merely an attempted seizure, which is beyond the scope of the Fourth

Amendment. Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132

(2007).

{¶ 27} In sustaining Thornton’s motion to suppress, the trial court relied on the

reasoning in State v. Sumlin, 2d Dist. Montgomery No. 23144, 2009-Ohio-2185, in

concluding that Thornton’s actions were not sufficient to give rise to a reasonable

articulable suspicion that criminal activity was afoot, and, thus, the stop of Thornton was

improper. In Sumlin, a police officer came upon Sumlin in a paved parking area behind

an apartment building. Id. at ¶ 4. The officer approached Sumlin and said, “don’t move.”

Id. at ¶ 19. In response, Sumlin backed away a few feet, but did not flee, and was

subsequently seized. Id. at ¶ 22. We explained that, upon seeing the police, Sumlin
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backed up, while still facing the police, from a point where he was in physical contact with

a car to another point where he was in physical contact with the same car; that Sumlin

was never observed running from the police; and that Sumlin was not seen to have thrown

a carried object in reaction to seeing a police officer. Id. at ¶ 49. We determined that

Sumlin’s behavior did not imply an intent to evade police pursuit in the same manner that

a man seen running from the location of a police cruiser would imply. Id. Finally, we

concluded that “the action of simply backing away, slowly, over a short distance, from two

police officers exiting a police cruiser, in a high crime neighborhood, with one’s hands

behind one’s back, is not sufficient to give rise to a reasonable, articulable suspicion that

criminal activity is afoot,” as required for a Terry stop, and, thus, the stop in Sumlin was

improper. Id. at ¶ 50.

{¶ 28} The facts in Sumlin are distinguishable from the facts in this case. Unlike

the defendant in Sumlin, Thornton, upon seeing people, immediately turned, ran, and

suddenly threw a carried object shortly after running. Thornton did not face the police and

simply back away over a short distance with his hands behind his back in defiance of a

police order. Thus, we conclude that the trial court inappropriately applied the reasoning

in Sumlin to find that Thornton’s actions were not sufficient to give rise to a reasonable

articulable suspicion that he may have been engaging in criminal activity.

{¶ 29} We find the circumstances in State v. Roberts to be analogous to the facts

in this case. State v. Roberts, 2d Dist. Clark No. 2015-CA-104, 2016-Ohio-7327. In

Roberts, a police officer observed Roberts driving a green pick-up truck, recognized

Roberts, and knew that Roberts’s driver’s license had been suspended six to twelve
 -15-

months earlier. Id. at ¶ 3. The police officer pulled behind Roberts, activated his cruiser’s

overhead lights, and initiated a traffic stop. Id. In response, Roberts exited his own vehicle

and fled. Id. During an ensuing foot chase, Roberts threw a firearm to the ground. Id. The

police ultimately caught Roberts and recovered the firearm. Id. As a result of the foregoing

incident, Roberts was charged with having a weapon while under disability, among other

charges. Id. Roberts filed a motion to suppress, arguing that the traffic stop had been

unlawful because the officer lacked reason to believe that Roberts’s license remained

suspended when the officer initiated the traffic stop. Id. at ¶ 5.

{¶ 30} In Roberts, we concluded that Roberts had not been seized at the point at

which he possessed the firearm and fled from the police. Id. at ¶ 8. We explained that,

although Roberts stopped his car, he did not submit to the officer’s show of authority and,

instead, exited his vehicle and continued his flight from the officer on foot. Id. We

concluded that, even if the officer’s traffic stop of Roberts had been without justification,

Roberts was not seized until after he discarded his firearm. Id.

{¶ 31} In this case, although several officers were present and approached

Thornton and the other two men, the mere presence of multiple officers did not

necessarily establish a seizure, and, here, the officers did nothing to engage in physical

force prior to Thornton’s flight. As the officers approached, they identified themselves,

shined flashlights, and said “stay put.” The officers testified that they only intended to talk

to the three men but were unable to talk to Thornton because he fled immediately. The

events of this encounter took place over a matter of seconds. The body-camera videos

revealed that the officers approached the three men on foot but were not in the physical
 -16-

proximity of the men when Thornton turned and ran before the police could effectuate any

seizure. At that point in time, the police had done nothing more than attempt to approach

Thornton. There was no physical force by the police before Thornton fled. The officers

never brandished their weapons or otherwise threatened Thornton. The officers never

touched Thornton or blocked his path.

{¶ 32} Considering our reasoning in Roberts, even if we were to conclude that

initially the officers lacked a sufficient basis to make an investigative stop, Thornton chose

to ignore the order to “stay put,” did not submit to the officers’ show of authority, and had

not been seized when he proceeded to flee on foot and discard the firearm. Thornton’s

failure to submit to the officers’ instructions meant that there was no seizure, merely an

attempted seizure, which is beyond the scope of the Fourth Amendment. Moreover, at

the point at which Thornton engaged in headlong flight, was observed holding a firearm,

and then discarded the firearm, the police had additional facts in the totality of the

circumstances to cause additional reasonable articulable suspicion to justify a Terry stop

of Thornton, and, like Roberts, Thornton was not seized until after he fled and discarded

the firearm. As a result, Thornton was not seized by the police in violation of his Fourth

Amendment rights.

{¶ 33} In Roberts, 2d Dist. Clark No. 2015-CA-104, 2016-Ohio-7327, we also

noted that, when a defendant abandons property, the act of abandonment negates any

Fourth Amendment expectation of privacy, meaning that suppression is not required even

if the act of abandonment follows an attempted unlawful stop. Id. at ¶ 7. “Abandonment”

of property in the present context primarily involves a question of intent, which may be
 -17-

inferred. State v. Freeman, 64 Ohio St.2d 291, 297, 414 N.E.2d 1044 (1980). “ ‘The issue

is not abandonment in the strict property-right sense, but whether the person prejudiced

by the search had voluntarily discarded, left behind, or otherwise relinquished his interest

in the property in question so that he could no longer retain a reasonable expectation of

privacy with regard to it at the time of the search.’ ” (Citations omitted.) Id. The legal effect

of abandonment is to deprive a defendant of standing to challenge the admissibility of the

evidence he abandoned. Id. at 298. In other words, if a defendant abandoned a firearm

while being chased, the weapon would not be subject to suppression even if the police

officer lacked lawful authority to seize him. Roberts at ¶ 10. In this case, like Roberts,

Thornton “abandoned” the firearm in his possession when he threw it to the ground while

being pursued by police, thereby relinquishing any reasonable expectation of privacy in

it.

{¶ 34} Because the police officers had reasonable suspicion to justify the initial

Terry stop of Thornton, and because Thornton, after failing to submit to any show of

authority, was not seized until after he fled while holding and then discarding a firearm,

thereby establishing additional facts giving rise to reasonable articulable suspicion of

criminal activity for a Terry stop, Thornton was not seized by the police in violation of his

Fourth Amendment rights. The State’s sole assignment of error is sustained.

III. Conclusion

{¶ 35} Having sustained the State’s assignment of error, the judgment of the trial

court is reversed.

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TUCKER, J. and LEWIS, J., concur.