[Cite as In re D.S., 2013-Ohio-5740.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 99600




                                         IN RE: D.S.
                                        A Minor Child




                                        JUDGMENT:
                                         REVERSED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                         Juvenile Division
                                      Case No. DL 12120552

        BEFORE: Stewart, A.J., Boyle, J., and McCormack, J.

        RELEASED AND JOURNALIZED:                  December 26, 2013
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Stephanie N. Hall
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender

BY: Brant N. Dichiera
Assistant Public Defender
1849 Prospect Avenue, Suite 222
Cleveland, OH 44115
MELODY J. STEWART, A.J.:

       {¶1} The state of Ohio appeals from a ruling that suppressed a gun seized from

appellee D.S. Police officers investigating a shooting stopped and frisked two males,

one of whom matched the description given by witnesses of someone connected to the

shooting. This suspect was not armed, but the second male, D.S., was carrying a .22

caliber long rifle.   The state charged D.S. with carrying a concealed weapon and

discharging a firearm into a habitation. D.S. filed a motion to suppress evidence of the

rifle, arguing that the police had no basis for stopping or frisking him. The trial court

agreed, holding that D.S.’s proximity to the targeted suspect did not give rise to “probable

cause” to search him and that the police had no indication that D.S. was engaging in any

criminal activity as a predicate for the stop. The state appeals on grounds that the court

applied an incorrect standard when ruling on the motion to suppress and that the police

were justified in stopping and searching D.S. on grounds of officer safety. For the

reasons that follow, we reverse the decision of the trial court.

       {¶2} An appellate court’s review of a trial court’s ruling on a motion to suppress

presents mixed questions of law and fact.         State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

       [T]he trial court assumes the role of trier of fact and is in the best position
       to resolve questions of fact and evaluate witness credibility. A reviewing
       court is bound to accept those findings of fact if supported by competent,
       credible evidence. However, without deference to the trial court’s
       conclusion, it must be determined independently whether, as a matter of
       law, the facts meet the appropriate legal standard.
State v. Hall, 8th Dist. Cuyahoga No. 97722, 2012-Ohio-4155,  6, quoting State v.

Curry, 95 Ohio App.3d 93,96,641 N.E.2d 1172 (8th Dist.1994). We review the trial

court’s application of the law de novo.   Burnside at ¶ 8.

       {¶3} The     Fourth Amendment to the United States Constitution prohibits

warrantless searches and seizures as, per se, unreasonable. State v. Crawford, 8th Dist.

Cuyahoga No. 98605, 2013-Ohio-1659,  42, citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.

1684, 6 L.Ed.2d 1081 (1961). An exception to the warrant requirement exists for brief

investigatory stops where the officer reasonably suspects that the individual is or has been

involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968). Reasonable suspicion exists where there is an objective and particularized

suspicion that criminal activity was afoot and must be based on the totality of the

surrounding circumstances.       State v. Sweeney, 8th Dist. Cuyahoga No. 97414,

2012-Ohio-3152, ¶ 12, citing State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271

(1991).

       {¶4} The touchstone of any Fourth Amendment analysis is “reasonableness.”

Terry understood the reasonable suspicion standard to be one that balanced “‘the need to

search [or seize] against the invasion which the search [or seizure] entails.’” Id. at 21,

quoting Camara v. Mun. Court, 387 U.S. 523, 534, 87 S.Ct. 1727, 18 L.Ed.2d 930

(1967); see also United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 83 L.Ed.2d

604 (1985) (courts determine the constitutionality of an investigatory stop by balancing

“the nature and quality of the intrusion on personal security against the importance of the
governmental interests alleged to justify the intrusion.”) When important governmental

interests exist — most notably solving a crime — those interests can justify brief

investigative stops based on less than probable cause as long as the intrusion is minimal.

United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002);

Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (noting

investigatory stop of automobile “is limited [in purpose] and the resulting detention quite

brief”).

       {¶5} Apart from the intrusion involved in the investigatory stop itself, the very

reasonable governmental interest in protecting the safety of a police officer making an

investigatory stop permits another intrusion into a person’s Fourth Amendment rights —

the weapons pat-down or frisk of the person stopped. Terry held that an officer may

frisk a detained individual for weapons when the officer reasonably believes that the

suspect may be armed and poses danger to the officer or others nearby. Terry at 27.

The rationale for this exception is that “the [officer] making a reasonable investigatory

stop should not be denied the opportunity to protect himself from attack by a hostile

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

In fact, the governmental interest in officer safety so outweighs an individual’s rights that

courts do not require the officer to state with certainty the need for protection: “The

officer conducting the frisk need not be absolutely certain that the individual is armed; the

issue is whether a reasonably prudent [person] in the circumstances would be warranted

in the belief that [his or her] safety or that of others is in danger.” Terry at 27.
       {¶6} The facts presented at the suppression hearing showed that two Cleveland

police officers received a radio broadcast about shots being fired near West 43d Street.

They arrived on the scene to investigate just minutes later and witnesses told them that

they saw a male tucking a gun in his waistband and running toward West 44th Street.

The suspect was described as a black male wearing a gray jacket or hoodie, a black hat,

and blue jeans.

       {¶7} The officers immediately drove toward West 44th where they saw a male

wearing clothing that matched the description given to them by the witnesses. The male

was in the company of D.S. The officers called both males over to their vehicle. The

males hesitated as if they were considering running, but eventually approached the

vehicle. The officers demanded that the males show their hands, but they did not comply

at first. It was only after a second demand that the males showed their hands. The

officers, concerned for their personal safety, patted down both males but, prior to doing

so, inquired whether either male was carrying any item that could poke or otherwise harm

the officers. The frisk of D.S. revealed that he was carrying a .22 caliber rifle.

       {¶8} The trial court held that based on the totality of the evidence presented, the

mere propinquity of D.S. to the individual who matched the description given to the

police officers did not give rise to probable cause to search D.S. The court found that the

stop was invalid because there was no indication that D.S. was engaged in any criminal

activity before he was stopped by police. And since the stop was not justified, the

subsequent search of D.S. was also unlawful.
       {¶9} We conclude, however, that it was reasonable for the officers to conduct a

brief stop and frisk of the two males under the circumstances of this case. The suspect and

D.S. were found walking together shortly after the shooting in the direction noted by the

witnesses. In addition, one of the males wore clothing that matched that of the person

described by the witnesses as running from the scene of the shooting and tucking a gun in

his waistband. When approached by the police, both males appeared as though they

might flee. This was suspicious behavior, and while their nervousness alone could not

support a reasonable suspicion of criminal activity, it is “a pertinent factor in determining

reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145

L.Ed.2d 570 (2000). Given the totality of these circumstances, the police were justified

in conducting an investigatory stop.

       {¶10} The facts of this case are different from those in our decision in State v.

Stewart, 193 Ohio App.3d 716, 2011-Ohio-2910, 953 N.E.2d 886 (8th Dist.). In Stewart,

we found that the court erred by refusing to suppress evidence discovered in an

investigatory stop because the police failed to offer an articulable suspicion that Stewart

had been involved in criminal activity. Officers responding to the scene of the shooting

received a fairly specific description of a black male suspect in a shooting: he was nearly

six feet tall, in his late twenties or early thirties, he had braids under a hat, a number

tattooed on his face, wore a black shirt and black pants, and was seen leaving the scene on

foot in the company of a black female. That description was not broadcast to other

police officers. Instead, officers were told to look for a black male and a black female on
foot. By all accounts, Stewart did not match the description given to the police at the

scene of the shooting: he was only 20 years old, just 5’8” tall, did not have braids or a

tattoo on his face, and testimony showed that he was wearing a white hoodie. The

officers who conducted the stop conceded that they simply stopped the first black male

and female couple they encountered. Id. at ¶ 14. Unlike the present case, Stewart

involved an admittedly indiscriminate stop that proved the officers lacked a reasonable

suspicion that Stewart had been involved in criminal activity. Id.

       {¶11} Our decision in State v. Shoulders, 196 Ohio App.3d 178, 2011-Ohio-2659,

962 N.E.2d 847 (8th Dist.), is even less compelling as a basis for overturning the

investigatory stop. In Shoulders, police officers assembled in a car wash parking lot

after seeing a person of interest there. They ordered everyone present to remain still, but

Shoulders, an employee of the car wash with no connection to the person of interest,

yelled that he had done nothing and took off running. The police apprehended him and

discovered that he was carrying drugs, a gun, and cash. Conceding that flight from the

police is one factor that might give rise to a reasonable suspicion of criminal activity, we

noted that Shoulders’s flight was not, standing alone, enough to give the police a

reasonable, articulable suspicion that he engaged in criminal activity sufficient to justify

an investigatory stop.    Id. at ¶ 14.     Shoulders was not the object of the police

investigation — he was simply present at the car wash as the police moved in to question

their person of interest. The only thing giving rise to a suspicion that he engaged in

criminal activity was his flight.    The present case is thus factually distinguishable
because D.S. was more than a mere bystander with no connection to a person of interest.

Rather, he was in the close company of a person who matched the description of a

shooting suspect and was found in the direction noted by eyewitnesses, approximately one

block away from, and a short time after, the shooting.

       {¶12} This case does not involve an indiscriminate stop and frisk of random

individuals or of someone in mere propinquity to another. D.S.’s companion matched

the description given by witnesses at the scene of the shooting.          Additionally, the

investigatory stop was conducted proximate in time and location to the shooting. Based

on this set of circumstances, the officers were justified in making an investigatory stop.

       {¶13} D.S. asserts that even if the police had a reasonable suspicion that his

companion was engaged in criminal activity under the totality of the circumstances as a

predicate for an investigatory stop, they had no reason to suspect him of the same. He

maintains that he was stopped for no other reason than his being in the company of

another.

       {¶14} The so-called “automatic companion” rule is a rule that allows the police to

pat-down any companion of an arrestee to give assurance that they are unarmed. See,

e.g., State v. Barlow, 8th Dist. Cuyahoga No. 53378, 1988 Ohio App. LEXIS 124 (Jan.

21, 1988); see also United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971) (“all

companions of the arrestee within the immediate vicinity * * * are constitutionally

subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are

unarmed”).
       {¶15} Although D.S.’s companion was a suspect and not someone who was being

arrested, the application of the rule stands on solid constitutional ground.          In the

analogous context of a traffic stop, the United States Supreme Court has had no difficulty

finding that the police could validly pat-down the occupants of a vehicle on the

reasonable suspicion that the occupants of the vehicle were armed and dangerous.

Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694. The Supreme

Court views a traffic stop to “resemble, in duration and atmosphere, the kind of brief

detention authorized in Terry,” Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138,

82 L.Ed.2d 317 (1984), fn. 29, so the same principles apply here to investigative stops on

the street. The police could validly detain D.S. when stopping him in the company of a

suspect who was thought to be armed.

       {¶16} Having justification to make an investigatory stop, the police articulated

sufficient reasons to conduct a weapons pat-down on both males. The police were aware

that their suspect fled the scene of a shooting while tucking a weapon in his waistband, so

they could reasonably consider the suspect to be armed and dangerous. That fact alone

entitled them to frisk the suspect for weapons. See State v. Bobo, 37 Ohio St.3d 177, 524

N.E.2d 489 (1988), paragraph two of the syllabus (“Where a police officer, during an

investigative stop, has a reasonable suspicion that an individual is armed based on the

totality of the circumstances, the officer may initiate a protective search for the safety of

himself and others.”). In addition, the police testified that when they approached the

males, both individuals hesitated for a moment, causing the police to think that they were
about to flee. This was wary behavior and a factor in determining reasonable suspicion.

Wardlow, 528 U.S. at 124. Finally, the males failed to comply with the police directive

that they show their hands. The officers, having reason to believe that one of the males

may have been armed, could have viewed the failure to show hands as an immediate

threat to their safety. See State v. Prude, 8th Dist. Cuyahoga No. 71577, 1997 Ohio App.

LEXIS 3681 (Aug. 14, 1997).

       {¶17} The police offered articulable reasons to support both an investigative stop

and a frisk for their safety and protection.           By granting D.S.’s motion to suppress

evidence, the court failed to give proper consideration to those reasons, particularly with

respect to the officers’ safety in stopping a suspect that they reasonably believed to be

armed and dangerous. Although D.S. was not described as having been on the scene of

the shooting, his being in the company of a potentially armed suspect more than justified

his being stopped and frisked, particularly when he, like the suspect, appeared to be a

flight risk and failed to comply with an order to show his hands to the police. This

assignment of error is sustained.1


         The state also assigned as error that the court erroneously ruled that the arresting officers
       1


lacked “probable cause” to stop D.S. There is no dispute between the parties that the police were
conducting an investigatory stop. That being the case, the applicable standard to be employed in
deciding D.S.’s motion to suppress was the reasonable suspicion standard set forth in Terry. This
error is of no consequence, however, because the court’s analysis was, apart from using the words
“probable cause,” consistent with case law applying the correct standard of review to investigatory
stops. So the court’s use of the phrase “probable cause” was a harmless misnomer. See, e.g., State
v. Fountain, 10th Dist. Franklin No. 94APC01-113, 1994 Ohio App. LEXIS 3815 (Aug. 30, 1994), ¶
5 (affirming ruling on motion to suppress evidence when court appeared to have used and understood
the proper legal analysis despite substituting the terminology “probable cause” for “reasonable
suspicion”).
       {¶18} This cause is reversed to the trial court for further proceedings consistent

with this opinion.

       It is ordered that appellant recover of appellee its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas — Juvenile Division to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, ADMINISTRATIVE JUDGE

TIM McCORMACK, J., CONCURS;
MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY
