[Cite as State v. Zafr, 2019-Ohio-4602.]




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

 STATE OF OHIO                                  :
                                                :
          Plaintiff-Appellant                   :   Appellate Case No. 28434
                                                :
 v.                                             :   Trial Court Case No. 2018-CR-985
                                                :
 KEON PIERRE ZAFR                               :   (Criminal Appeal from
                                                :   Common Pleas Court)
          Defendant-Appellee                    :
                                                :

                                           ...........

                                           OPINION

                           Rendered on the 8th day of November, 2019.

                                           ...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellant

CATHERINE H. BREAULT, Atty. Reg. No. 0098433 and JON PAUL RION, Atty. Reg. No.
0067020, 130 West Second Street, Suite 2150, P.O. Box 10126, Dayton, Ohio 45402
     Attorneys for Defendant-Appellee

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



TUCKER, J.
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       {¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the trial court’s decision of

June 5, 2019, in which the court sustained a motion to suppress filed by Defendant-

appellee, Keon Pierre Zafr. In a single assignment of error, the State argues that the

court erred by finding that law enforcement officers improperly detained Zafr without

reasonable suspicion that he was engaged in criminal activity. We find that the court did

not err, and its decision sustaining Zafr’s motion to suppress is therefore affirmed.

                             I. Facts and Procedural History

       {¶ 2} A person identifying himself only by his first name contacted the Dayton

Police Department by telephone on the evening on March 12, 2018, to report a man with

a rifle in the parking lot of Summit Square Townhouses, near the entrance. Transcript

of Proceedings, Ex. 1, May 3, 2019. The caller indicated only that the man “appear[ed]

to have a rifle” and was wearing a hat and a light blue jacket. See id. Two officers

responded to the report, arriving seven to eight minutes after the caller contacted the

Dayton Police Department. See id. at Ex. 1.

       {¶ 3} When the officers arrived, they asked their dispatcher to confirm with the

caller that the man was still there. Id. at 10:10-11:4. The caller had since left the area

but last saw the man “leaning against [a] car.” Id.

       {¶ 4} As the officers began searching the parking lot, they “[a]lmost immediately

[noticed] a vehicle with three males inside of it.” Id. at 11:13-11:20. Because the man

“in the driver’s seat was wearing a light colored jacket,” and because the officers “didn’t

see anybody else in cars,” they “decided to approach [the] vehicle.” Id. Intending to

initiate a consensual encounter, the officers did not activate their cruiser’s lights or siren.
                                                                                         -3-


See id. at 12:3-12:19.

       {¶ 5} The man in the driver’s seat—later identified as Zafr—and one of the other

male occupants exited the vehicle as the officers stopped their cruiser behind it.1 See

id. at 12:3-12:19 and 18:11-18:21.        One of the officers told Zafr about the “gun

complaint,” but Zafr “[i]mmediately * * * start[ed] kind of backing away” and “looking

around [as if he were] going to try to run” from the officer. Id. at 12:20-13:3.

       {¶ 6} The officer then became concerned about the possibility that Zafr had a

weapon hidden “in [or near] his waistline or in [his] pocket” because Zafr was “[l]ike

reaching, like trying to hike up his pants.” See id. at 14:12-14:24. Although Zafr “didn’t

take off running” as the officer “continue[d] to approach him,” the officer “thought [his]

safety or [that of his partner] could have been at risk” and was therefore “kind of nervous”

Id. at 15:2-15:8. Believing that Zafr “was going to run,” the officer “just tried to kind of

hang onto him.” Id.

       {¶ 7} To address his concern about the possibility that Zafr was armed, the officer

asked him for permission to perform a pat-down search. In response, Zafr said nothing

but “again started kind of pulling away” from the officer, who reacted by “get[ting] both of

[Zafr’s] arms behind his back [and] away from his front pockets[,] because he kept trying

to go to front pocket [sic].” Id. at 15:2-15:16.

       {¶ 8} With Zafr handcuffed and secured, the officer looked “inside the [vehicle] and

[saw] a [hand]gun in plain view.” Id. at 16:8-16:19. A pat-down search of Zafr’s person


1 The vehicle actually held a total of four occupants: Zafr, two other males and a female
child. See Transcript of Proceedings 11:13-11:20. Of these, the child and one of the
males remained in the vehicle’s rear seat until the officers had secured Zafr and the other
male. See id. at 16:20-17:25.
                                                                                         -4-


resulted in the discovery of a cigarette box in one of the front pockets of his pants;

allegedly, the box contained illegal drugs. See id. at 55:22-59:6. The officers did not

find a rifle.2 Id. at 37:13-37:14.

       {¶ 9} On June 15, 2018, a Montgomery County grand jury issued a five-count

indictment against Zafr, and on November 2, 2018, Zafr pleaded not guilty. Zafr filed a

motion to suppress on December 4, 2018, in which he requested the suppression of all

evidence obtained as a result of his detention and subsequent arrest on March 12, 2018.

The trial court held a hearing on May 3, 2019, and in its decision of June 5, 2019, the

court sustained the motion. On June 11, 2019, the State timely filed a notice of appeal

pursuant to R.C. 2945.67.

                                       II. Analysis

       {¶ 10} For its single assignment of error, the State contends that:

              THE TRIAL COURT ERRED IN GRANTING ZAFR’S MOTION TO

       SUPPRESS. THE COURT INCORRECTLY RULED THAT THERE WAS

       NO REASONABLE AND ARTICULABLE SUSPICION OF CRIMINAL

       ACTIVITY THAT ALLOWED POLICE TO DETAIN ZAFR.

       {¶ 11} The Fourth Amendment to the United States Constitution and Article 1,

Section 14, Ohio Constitution prohibit unreasonable searches and seizures. Terry v.

Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Taylor, 138

Ohio App.3d 139, 145, 740 N.E.2d 704 (2d Dist.2000).           Warrantless searches and

seizures violate this prohibition unless conducted pursuant to one of the “few specifically


2 The officers apparently did not find a hat, either, though the record is not definitive in
this respect.
                                                                                        -5-


established and well-delineated exceptions.” (Citations omitted.) Katz v. United States,

389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One of these exceptions “is

commonly known as an investigative or Terry stop.” (Citation omitted.) State v. Dorsey,

10th Dist. Franklin No. 04AP-737, 2005-Ohio-2334, ¶ 17.

       {¶ 12} In “Terry [v. Ohio], the United States Supreme Court held that a police

officer may detain” a person “for brief questioning where the officer has a reasonable

suspicion that the [person] is engaged in criminal activity.” (Citation omitted.) State v.

Shepherd, 122 Ohio App.3d 358, 364, 701 N.E.2d 778 (2d Dist.1997). Reasonable

suspicion “is ‘vaguely defined as something more than an inchoate or unparticularized

suspicion or “hunch,” but less than the level of suspicion required for probable cause.’ ”

Id., quoting State v. Osborne, 2d Dist. Montgomery No. 15151, 1995 WL 737913, *4 (Dec.

13, 1995). The “usual requirements of a warrant and probable cause are not implicated

by [a Terry stop] because an investigatory detention is less intrusive than a formal

custodial arrest.” Id.

       {¶ 13} Appellate review of a trial court’s ruling on “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. Because the trial court is “in the best position” to weigh

evidence in general, and to evaluate the credibility of witnesses’ testimony in particular,

an “appellate court must accept the trial court’s findings of fact if they are supported by

competent, credible evidence.” (Citation omitted.) See id. Accepting the trial court’s

findings of fact as true, “the appellate court must then independently determine,” without

deference to the trial court’s ultimate holding, “whether the “facts satisfy the applicable

* * * standard.” (Citation omitted.) See id. The applicable standard in this case is
                                                                                           -6-


reasonable suspicion, which entails an evaluation of the totality of the circumstances from

the perspective of a “reasonable and prudent police officer on the scene who must react

to events as they unfold.” State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271

(1991); State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14.

         {¶ 14} According to the State, the police officers who responded to Summit Square

Townhouses on March 12, 2018, had “a reasonable and articulable suspicion that Zafr

had [been engaging] or was about to engage in criminal activity” because “Zafr * * *

look[ed] nervous, backed away from [the police officer who was approaching him] and

kept ‘hiking up’ his pants.” Appellant’s Brief 5-6. Claiming that “[t]hese factors alone”

sufficed to justify the officers’ Terry stop of Zafr, the State adds that “when [the officers]

arrived * * *, there was only one car in the parking lot that had any people in it or around

it”; that Zafr exited his vehicle as the officers stopped their cruiser behind it; that “Zafr

[was] wearing a light blue jacket”; that “the incident took place in a high crime area”; and

that “the call involved a firearm.” Id. at 6. The State likens the instant matter to the case

underlying our opinion in State v. Johnson, 2d Dist. Miami No. 2012 CA 22, 2013-Ohio-

4729.3

         {¶ 15} In Johnson, however, we noted that a Terry stop is not justified “merely

[because a person] change[s] [his] mind about talking to an officer, walk[s] away, or act[s]

in an ‘unusual’ fashion.” Johnson at ¶ 20; see also, e.g., State v. Abner, 194 Ohio App.3d

523, 2011-Ohio-4007, 957 N.E.2d 72, ¶ 12 (2d Dist.). Thus, Zafr’s nervousness and

reluctance to speak to the officer who approached him were not independently sufficient


3The State inaccurately indicates that the Johnson case originated in Montgomery
County and incorrectly lists the citation as “2013-Ohio-4739.” Appellant’s Brief 6.
                                                                                          -7-


to justify a Terry stop. Additionally, though the call involved a firearm at a location in

“kind of a rough area,” a rifle would nevertheless have been difficult to conceal.

Transcript of Proceedings 7:7-7:13.

       {¶ 16} Moreover, the facts in Johnson are dissimilar to the facts in the present

case. An officer with the Troy Police Department initiated a consensual encounter with

Johnson as part of an investigation into an automobile accident and assault that Johnson

might have witnessed, as well as an allegation that Johnson himself had committed

domestic violence. Johnson at ¶ 4-8. The officer was personally familiar with Johnson

from previous interactions. Id.

       {¶ 17} Johnson momentarily consented to speak to the officer, but “he almost

immediately began to back away [and] then claimed [that] he had to go to his apartment”

before continuing the conversation. Id. at ¶ 8. The officer found Johnson to be “ ‘more

hesitant’ ” than he had seemed on past occasions, and because he was “ ‘doing

something in his waistband area’ ” or in the pocket of his sweatshirt, the officer “ ‘knew

things were going bad at that point.’ ” Id. After requesting assistance, the officer forcibly

detained Johnson, leading to the discovery of a stolen gun on Johnson’s person. Id. at

¶ 9. Johnson was eventually convicted of several offenses. Id. at ¶ 12.

       {¶ 18} Having unsuccessfully moved for the suppression of the evidence “obtained

as a result of his detention and ‘subsequent pat[-]down,’ ” Johnson argued on appeal that

the trial court should have ordered that the evidence be suppressed because the officer

did not detain him based on reasonable suspicion. See id. at ¶ 14. We found, “under

the circumstances presented, * * * that the officer was justified in detaining Johnson for

further investigation.” Id. at 20.
                                                                                          -8-


        {¶ 19} Presumably, the State draws a comparison between Johnson and the

instant case because we remarked in Johnson that the “trial court reasonably concluded

that Johnson’s manner of backing away from the officer, which included trying to remove

something from his waistband and * * * fail[ing] to comply with the officer’s request that

he stop [and] show his hands, justified the officer’s concern that Johnson [might] pose a

danger.” Id. at ¶ 19. The foregoing remark must, however, be construed “under the

circumstances presented.” (Emphasis added.) Id. at ¶ 20.

        {¶ 20} We agreed with the trial court’s conclusion largely on the basis of the

officer’s familiarity with Johnson.    See id. at ¶ 5-8 and 17-20.        Generally, a law

enforcement officer would not have sufficient reason to escalate a consensual encounter

with a person into a Terry stop merely because the person appears nervous or walks

away, but the officer’s “ ‘pretty good rapport’ ” with Johnson in the past provided reference

points for a comparative assessment.       See id. at ¶ 7.     That is, in light of his past

interactions with Johnson, the officer had sufficient experience with Johnson’s demeanor

to support a reasonable suspicion that Johnson’s hesitancy to speak with him was

indicative of a possible threat.

        {¶ 21} Here, by contrast, the Dayton Police Department officers had no previous

experience with Zafr, who could have been nervous or uncomfortable for a variety of

reasons, but whatever his reasons, he had no obligation to speak with them.             The

officers, furthermore, did not respond to Summit Square Townhouses to investigate

criminal conduct—even assuming for sake of analysis that Zafr had been walking in the

parking lot with a rifle, he would not have been violating the law.4 At the time the officers


4   Consequently, the State’s argument about the reliability of the telephone tip to which
                                                                                         -9-


restrained Zafr, they therefore had no reason to believe that he was engaged in criminal

activity or was about to engage in criminal activity.

       {¶ 22} The State also argues that irrespective of whether the officers’ detention of

Zafr was initially justified, “[o]nce [he] began to flee, the officers had probable cause to

arrest [him]” for obstructing official business. See Appellant’s Brief 10. In support of

this assertion, the State cites to our opinion in State v. Lewis, 2d Dist. Montgomery No.

27152, 2017-Ohio-1195.       As the State notes, we found that Lewis, the defendant-

appellant, “was not entitled to respond [to an unlawful pat-down search] by fleeing on foot

and forcing the officer to chase him.” Lewis at ¶ 12. The officer in that case, however,

had already executed a lawful traffic stop “based on [his] observation of apparent traffic

violations” committed by Lewis. See id. In the instant case, the officers had not already

executed a lawful Terry stop, meaning that Zafr had the right to walk away.

                                      III. Conclusion

       {¶ 23} We find that Zafr was unlawfully detained in the absence of a reasonable

suspicion that he was engaged or about to engage in criminal activity. The State’s

assignment of error is overruled, and the trial court’s decision of June 5, 2019, sustaining

Zafr’s motion to suppress is therefore affirmed.



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



WELBAUM, P.J. and DONOVAN, J., concur.

the officers were responding is irrelevant. Appellant’s Brief 7-9. Even if the caller had
identified himself by his full name, and even if the information he provided was entirely
accurate, the information did not provide a basis for a lawful Terry stop.
                       -10-




Copies sent to:

Mathias H. Heck, Jr.
Michael P. Allen
Catherine H. Breault
Jon Paul Rion
Hon. Richard Skelton
