[Cite as State v. Hairston, 2017-Ohio-7612.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                       :

                 Plaintiff-Appellee,                 :
                                                                     No. 16AP-294
v.                                                   :            (C.P.C. No. 15CR-3377)

Jaonte D. Hairston,                                  :           (REGULAR CALENDAR)

                 Defendant-Appellant.                :


                                               D E C I S I O N

                                   Rendered on September 14, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee. Argued: Sheryl L. Prichard.

                 On brief: Yeura R. Venters, Public Defender, and John W.
                 Keeling, for appellant. Argued: John W. Keeling.

                   APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Jaonte D. Hairston appeals from the decision of the Franklin County Court
of Common Pleas overruling his motion to suppress. For the reasons set forth below, we
reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
        {¶ 2} Hairston was indicted on one fourth-degree felony count of carrying a
concealed weapon, in violation of R.C. 2923.12, for an offense alleged to have occurred on
or about March 29, 2015. (July 10, 2015 Indictment.) Hairston filed a motion to suppress
the evidence and statements that the state intended to introduce as evidence to prove its
case, alleging that they were the fruits of an unconstitutional search and seizure. (Dec. 22,
2015 Mot.)
No. 16AP-294                                                                               2

       {¶ 3} The trial court held an evidentiary hearing on the motion on February 8,
2016. At the hearing, the state called Officer Samuel Moore as its sole witness. (Feb. 6,
2016 Tr. at 3-4.) Officer Moore testified that while on patrol on March 29, 2015, he
responded to a call concerning a domestic dispute at approximately 9:00 p.m. (Tr. at 5-6.)
When he and his partner exited the patrol vehicle at the address of the dispute, Officer
Moore heard four or five gunshots coming from the west, in the direction of a nearby
elementary school. (Tr. at 7.) Drug activity, thefts, assaults, and crimes involving guns had
occurred in the neighborhood and near the elementary school and a neighboring high
school, and Officer Moore had personally made arrests for such offenses. (Tr. at 8-9.)
After hearing the gunshots, he and his partner returned to the car and drove in the
direction of the elementary school, four-tenths of a mile away, where they arrived "no
more than 30, 60 seconds" later. (Tr. at 9, 16, & 29.)
       {¶ 4} As they were approaching the school, Officer Moore saw Hairston walking
east, away from the school, across a crosswalk, talking on a cell phone. (Tr. at 9 & 24.) At
this time, it was dark out and no other people were around. (Tr. at 15.) Officer Moore and
his partner exited their vehicle with their guns drawn and ordered Hairston to stop. (Tr. at
24.) They asked Hairston if he had had heard gunshots and he replied that he had heard
gunshots coming from the west. (Tr. at 11.) Officer Moore asked Hairston whether he had
any weapons on his person, and instructed him to place his hands behind his back in
order to perform a pat-down. (Tr. at 25.) Hairston replied that he had a gun and "nodded
towards his left jacket pocket," where Officer Moore found a semiautomatic pistol. (Tr. at
9-10.) Officer Moore described Hairston's demeanor as "a little nervous," but stated that
Hairston was "compliant" and "calmly" answered the officers' questions. (Tr. at 17.)
       {¶ 5} After Officer Moore's testimony, the trial court heard the attorneys'
arguments and overruled Hairston's motion. Ruling from the bench, the trial court found
that the officers:
               [P]ersonally heard [the gun shots] and went in that direction,
               and the officer said it only took them a minute or so to get
               there. And you asked him if he had a hunch, and he said yeah.
               Well, he did have a hunch, but that doesn't necessarily mean
               that he didn't have a little more than a hunch when he only
               saw one person in the area and didn't see any other cars. All
               he has to have is a reasonable suspicion to question the
No. 16AP-294                                                                               3

               suspect, and that's what he did, and that led to the discovery
               of the firearm.

               So I think it's a close call because, you know, what's a
               reasonable suspicion probably varies from one individual to
               the next. But with all the facts that were testified to by the
               officer, I think that they had enough to do a Terry[v. Ohio,
               392 U.S. 1 (1968)] stop. So I'll deny the motion.
(Tr. at 44.)
       {¶ 6} After the trial court overruled the motion to suppress, Hairston entered a
plea of no contest. (Mar. 18, 2016 Entry.) The trial court imposed a suspended prison
term of six months. (Mar. 22, 2016 Jgmt. Entry.)
       {¶ 7} Hairston now appeals and asserts the following assignment of error:
               THE TRIAL COURT ERRED WHEN IT OVERRULED THE
               DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE
               OBTAINED FOLLOWING THE UNLAWFUL SEIZURE OF
               THE DEFENDANT, AT GUNPOINT, MADE WITHOUT ANY
               ARTICULABLE SUSPICION TO BELIEVE THAT HE HAD
               COMMITTED ANY OFFENSE.

II. STANDARD OF REVIEW
       {¶ 8} "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, ¶ 8. This 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 (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, 710 (4th Dist.1997). Thus,
" '[d]eterminations of reasonable suspicion and probable cause should be reviewed de
novo on appeal.' " Columbus v. Ellyson, 10th Dist. No. 05AP-573, 2006-Ohio-2075, ¶ 4,
quoting Ornelas v. United States, 517 U.S. 690, 699 (1996).
III. ANALYSIS
       {¶ 9} "The Fourth Amendment to the United States Constitution as applied to the
states through the Fourteenth Amendment, as well as Ohio Constitution, Article I, Section
14, prohibit the government from conducting warrantless searches and seizures,
rendering them per se unreasonable unless an exception applies." State v. Goodloe, 10th
No. 16AP-294                                                                              4

Dist. No. 13AP-141, 2013-Ohio-4934, ¶ 6, citing State v. Mendoza, 10th Dist. No. 08AP-
645, 2009-Ohio-1182, ¶ 11, citing Katz v. United States, 389 U.S. 347, 357 (1967). One
exception is an investigatory stop, commonly referred to as a Terry stop, under which "a
police officer may stop or detain an individual without probable cause when the officer
has reasonable suspicion, based on specific, articulable facts, that criminal activity is
afoot." State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854, ¶ 16 (10th Dist.), citing
Terry v. Ohio, 392 U.S. 1, 21-22 (1968).
       {¶ 10} Under Terry, "the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant" the warrantless seizure of the defendant. Terry at 21. "The propriety
of an investigative stop by a police officer must be viewed in light of the totality of the
surrounding circumstances." State v. Freeman, 64 Ohio St.2d 291, 293 (1980), paragraph
one of the syllabus. Furthermore, Terry requires that "the facts be judged against an
objective standard: would the facts available to the officer at the moment of the seizure or
the search 'warrant a man of reasonable caution in the belief" that the action taken was
appropriate?" Terry at 21-22, quoting Carroll v. United States, 267 U.S. 132, 162 (1925).
Under this standard, "the totality of the circumstances -- the whole picture" must
demonstrate "a particularized and objective basis for suspecting the particular person
stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981). "At a
hearing on a motion to suppress, the state bears the burden of proving that a warrantless
search or seizure meets Fourth Amendment standards of reasonableness." State v.
Williams, 10th Dist. No. 02AP-730, 2003-Ohio-5204, ¶ 35.
       {¶ 11} Hairston argues that his seizure was not authorized under Terry because
the officers stopped him on no more than a hunch, without any particularized suspicion of
criminal activity. (Appellant's Brief at 9-27.) Furthermore, Hairston argues that stopping
him at gunpoint constituted an elevated infringement of his liberty interests that required
a "higher degree of suspicion" than existed under the circumstances. (Appellant's Brief at
32.)
       {¶ 12} In response, the state argues that even apart from the officer's hunch that
Hairston fired the shots, the totality of the circumstances demonstrated reasonable
suspicion. The state points to "the proximity of the shots, timing and absence of anyone
No. 16AP-294                                                                                               5

else in the area," the location in an area of known crime, the time the shots were fired, and
Hairston's apparent nervousness at the scene. (Appellee's Brief at 8-9.) The state also
argues that stopping Hairston at gunpoint was a reasonable display of force, given that the
officers had just heard gunshots. (Appellee's Brief at 9-15.)
        {¶ 13} Applying that objective standard required under Terry to the totality of the
facts and circumstances in the record, we conclude that no reasonable suspicion justified
the stop.1 The only fact in the record from which the officers could infer that criminal
activity was afoot was that they heard gunshots from somewhere to the west. Based on
that fact, it was reasonable to infer that someone, somewhere, had shot a gun. But this
general fact was insufficient to provide an "objective basis for suspecting the particular
person stopped." (Emphasis added.) Cortez at 417-18. Hairston was simply the first
person the officers saw after driving nearly one-half mile from where they stood when
they heard the gunshots. See State v. Stewart, 193 Ohio App.3d 716, 2011-Ohio-2910 ¶ 15
(8th Dist.) (stating that police officers' "need to act out of concern for their own safety"
after a report of gunshots "did not legitimize the indiscriminate stop and frisk of the first
couple that they saw walking through a parking lot"). No reasonable suspicion exists
where there is an absence of any particularized connection between the only fact
suggesting criminal activity and the particular person seized for a Terry stop. See, e.g.,
United States v. Baldwin, 114 Fed.Appx. 675, 680 (6th Cir.2004) (affirming decision to
sustain a motion to suppress where, after hearing gunshots and seeing a "fleeing
individual," officers seized a defendant sitting in a parked car, as there had been "no
showing of any specific, articulable facts which gave rise to a reasonable suspicion that
[the driver] was connected to the firing of the gunshots").
        {¶ 14} Furthermore, Hairston's actions immediately before the officers stopped
him demonstrated no grounds for suspecting him of committing any criminal act. We
have previously observed that "[r]easonable suspicion that an individual was involved in a
shooting exists when he is seen in the area where the incident recently occurred, and he is


1It is not clear that the trial court applied this standard when, while ruling on the motion to suppress, it
stated: "what's a reasonable suspicion probably varies from one individual to the next." (Feb. 6, 2016 Tr.
at 44.) Because reasonable suspicion asks whether a reasonable person would conclude, based on "the
facts available to the officer at the moment," that the defendant had engaged in or was about to engage in
criminal activity, it is an objective standard that should not vary from one individual to the next. Terry at
21-22.
No. 16AP-294                                                                                6

fleeing." State v. Hodge, 10th Dist. No. 11AP-1099, 2012-Ohio-4306, ¶ 11. Such is not the
case here. Hairston was simply crossing the street and speaking to someone on a cell
phone when the officers came on him. Although the state emphasizes that Hairston
appeared somewhat nervous, this was not accompanied by the "evasive behavior" or
"furtive movements" that typically accompany nervousness when cited as a factor
contributing to reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000);
United States v. Caruthers, 458 F.3d 459, 466 (6th Cir.2006). See also State v. Anderson,
10th Dist. No. 15AP-924, 2016-Ohio-7269, ¶ 16 ("Turning and walking away upon seeing a
police officer, or other nervous and evasive behavior, can be considered by an officer in
the reasonable suspicion determination"). Given that "some degree of nervousness during
interactions with the police is not uncommon" and, in this case, the officers stopped
Hairston with their weapons drawn, this factor contributes little, if anything to the
reasonable suspicion inquiry. State v. Broughton, 10th Dist. No. 11AP-620, 2012-Ohio-
2526, ¶ 23.
       {¶ 15} The contextual factors cited by the state give no additional support to its
argument that reasonable suspicion justified the Terry stop. An individual's mere
presence in an area of high crime does not "justify an investigative stop" without
additional factors that demonstrate a particularized reason to suspect the individual of
criminal activity. State v. Carter, 69 Ohio St.3d 57, 65 (1994), citing Brown v. Texas, 443
U.S. 47, 52 (1979). See also United States v. Young, 707 F.3d 598, 603 (6th Cir.2012)
(noting that "contextual factors, such as high-crime [areas], should not be given too much
weight because they raise concerns of racial, ethnic, and socioeconomic profiling" which
in this jurist's opinion is un-American.). Furthermore, the state introduced no evidence to
explain how the timing of the stop, shortly after nine o'clock in the evening, or the mere
fact that it was dark, were indicative of criminal activity. United States v. Uribe, 709 F.3d
646, 650 (7th Cir.2013) (discounting assertion that two a.m. timing of traffic stop
contributed to reasonable suspicion where the "government did not present any evidence
of [the officer's] experience and expertise or of any officer's belief that the context of the
stop made its timing suspicious"). At any rate, without a particularized, objective basis for
suspecting that Hairston had engaged in criminal activity, such contextual factors cannot
create reasonable suspicion. See United States v. Johnson, 620 F.3d 685 (6th Cir.2010)
No. 16AP-294                                                                                7

(reversing denial of motion to suppress where the defendant exhibited no suspicious
behavior "the totality of the relevant circumstances consisted of contextual factors that
would have applied to anyone in the neighborhood"). For the foregoing reasons, the
circumstances, considered in their totality, fail to demonstrate the existence of "a
particularized and objective basis" for stopping Hairston. Cortez at 417-18.
       {¶ 16} The state argues that the facts of this case are similar to State v. Pinckney,
10th Dist. No. 14AP-709, 2015-Ohio-3899, in which we reversed a trial court's decision
overruling a defendant's motion to suppress. In that case, officers responded to a report
that multiple shots had been fired at an apartment complex. Id. at ¶ 3 & 6. The officers
parked in multiple locations within several blocks of the apartment and converged on it
on foot from different directions. Id. at ¶ 4. As they approached, they heard seven more
shots that were so close that the officers "could tell almost exactly where they were coming
from." Id. at ¶ 5. The officers circled the building with a clear view of the only way in and
out of the parking lot. When they arrived in the parking lot, one individual in a vehicle
began to start it and drive away, and no one else was around. Id. at ¶ 6. As the officers
approached the vehicle with their weapons drawn, they made multiple commands to the
driver to stop. He did not initially comply, and they had to tell him "over and over again"
to stop before he did. Id. at ¶ 7. After exiting the vehicle, he told the officers that he had
just seen the two shooters running away to the north, yet the officers had just come from
that direction. Without being asked, he stated that there was no gun in the vehicle. Id. at
¶ 8. At that time, the officers patted the driver down before searching his vehicle, where
they found a weapon in the glove compartment. Id. at ¶ 9. We held that these
circumstances amounted to reasonable suspicion to justify the stop. Id. at ¶ 24.
       {¶ 17} Pinckney does not support the state's argument. The tip in Pinckney
identified a specific location where shots had been fired—an apartment complex. As the
officers approached the apartments, they personally heard more shots from only "200
feet" away and "could tell almost exactly where they were coming from." Id. at ¶ 5. Here,
in contrast, Officer Moore heard shots that "sounded as though they were coming from
the west near the elementary" school, four-tenths of one mile away, a large area that also
encompassed a high school, fields, and parking lots. (Tr. at 7, 9, & 16.) Based on personal
observation as they approached the apartments and the parking lot from multiple
No. 16AP-294                                                                               8

directions, the officers in Pinckney knew that no one else had left the area where the shots
were fired other than the particular driver that tried was trying to leave when they arrived.
Officer Moore and his partner did not have any such assurance that Hairston was the only
possible suspect, as the area in question was much larger and not subject to surveillance.
Furthermore, the driver in Pinckney initially failed to comply with the officer's requests,
dubiously claimed that he had seen the shooters go in the direction the officers had just
come from, and, without being asked, asserted that he had no gun. Hairston displayed no
comparable behavior that was cause for concern. He was walking and talking on a cell
phone when stopped by Officer Moore and his partner. Hairston talked "calmly" and was
"compliant," and Officer Moore stated that he "didn't blame" Hairston for appearing
"somewhat nervous" when confronted by two officers with their weapons drawn. (Tr. at 17
& 32.) In short, the facts and circumstances of Pinckney that provided a particularized,
objective basis for reasonable suspicion were not present when Officer Moore and his
partner stopped Hairston.
       {¶ 18} For the foregoing reasons, we conclude that Hairston's seizure lacked the
reasonable suspicion required by Terry. The trial court therefore erred when it overruled
Hairston's motion to suppress, and his assignment of error is sustained. Accordingly, the
judgment of the Franklin County Court of Common Pleas is reversed, and this cause is
remanded to that court for further proceedings in accordance with law and consistent
with this opinion.
                                                                       Judgment reversed;
                                                                          cause remanded.

                      BROWN and LUPER SCHUSTER, JJ., concur.
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