[Cite as State v. Pinckney, 2015-Ohio-3899.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                  :

                 Plaintiff-Appellant,           :            No. 14AP-709
                                                          (C.P.C. No. 13CR-5741)
v.                                              :
                                                        (REGULAR CALENDAR)
Jason Pinckney,                                 :

                 Defendant-Appellee.            :




                                         D E C I S I O N

                                   Rendered on September 24, 2015


                 Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for
                 appellant.

                 Sydow Leis LLC, Anastasia Sydow, and Aaron Laflin, for
                 appellee.

                  APPEAL from the Franklin County Court of Common Pleas.

BROWN, P.J.
        {¶ 1} This is an appeal by plaintiff-appellant, State of Ohio, from a judgment of
the Franklin County Court of Common Pleas granting a motion to suppress filed by
defendant-appellee, Jason Pinckney.
        {¶ 2} On October 29, 2013, appellee was indicted on one count of improperly
handling firearms in a motor vehicle, in violation of R.C. 2923.16. On August 17, 2014, he
filed a motion to suppress evidence. On August 27, 2014, the state filed a memorandum
contra the motion to suppress.
        {¶ 3} On September 4, 2014, the trial court conducted a hearing on the motion to
suppress. The state presented the testimony of one witness, Columbus Police Officer
John Hawkins, who has been a member of the police force for approximately four years.
No. 14AP-709                                                                              2

On October 20, 2013, "[s]hortly after midnight," Officer Hawkins and several other
officers responded to a dispatch regarding shots fired near Carstare Court, Columbus.
(Tr. 5.) A caller had reported hearing "multiple shots." (Tr. 6.) Officer Hawkins was
"[v]ery" familiar with the location, and had previously responded to calls in that area
involving robberies, felonious assaults, and homicides; he had also previously responded
"[m]ultiple times" to reports involving weapons and shots fired. (Tr. 8.)
       {¶ 4} Officer Hawkins and his partner "parked north of the location on Carlton
[Avenue]" and approached "on foot going southbound." (Tr. 6.) Officer William Pernell
parked his cruiser near the intersection of "Elaine [Road] and Carstare and approached
westbound on foot; and Officer [Brian] Casteel parked further west also on Carlton and
approached southbound on foot." (Tr. 6.)
       {¶ 5} As Officer Hawkins and his partner approached, they "heard one additional
gunshot," and as the officers "got closer to the area [they] heard approximately six more
shots being fired." (Tr. 6.) The officers "aired for additional units to respond." (Tr. 6.)
Officer Hawkins related that the shots were approximately "200 feet, very close, to the
point where there wasn't even an echo. We could tell almost exactly where they were
coming from." (Tr. 6.) The shots "sounded as if they were coming from the rear of
Carstare Court." (Tr. 11.) Officer Hawkins testified that, upon hearing the shots, he was
concerned for "[m]y safety, the safety of those around us." (Tr. 19.)
       {¶ 6} Officer Hawkins and his partner "approached on Carstare Court to the back
parking lot" through the south entrance. (Tr. 6-7.) They "circled around the front of the
[apartment] building * * * expecting a vehicle to leave." (Tr. 11.) The officers had a clear
view of the ingress and egress points; Officer Hawkins described the area as "one-way
in/one-way out." (Tr. 7.) As the officers came around a corner, near the vicinity of the
shots, they observed a vehicle and then heard the "car start" and "saw headlights come on
in the rear parking lot." (Tr. 12.) It was difficult to see inside the vehicle because the
windows "were fogged up" and there was "dew on the windows." (Tr. 12.) The officers did
not observe any other vehicles entering or leaving that area, nor did they observe any
individuals on foot. According to Officer Hawkins, the individual in the vehicle was "the
only person in that parking lot." (Tr. 12.)
       {¶ 7} Officer Hawkins and his partner approached with "firearms pointed at the
driver of the vehicle. We were giving loud verbal commands to put the vehicle in park,
No. 14AP-709                                                                                3

turn off the vehicle." (Tr. 13.) The car "was slowly inching forward, going pretty much
straight westbound, starting to turn." (Tr. 13.) The driver "was not complying with any of
the verbal commands. The window was rolled down four to six inches." (Tr. 13.) The
officers told the driver "over and over again [to] turn off the car, put it in park, put your
hands out the window." (Tr. 14.) The driver "eventually put the car in park and turned it
off." (Tr. 14.)
       {¶ 8} Appellee exited the vehicle "[v]ery quickly. He jumped out of the car." (Tr.
16.) Appellee appeared to be "[v]ery nervous" and "was shaking." (Tr. 17.) He "looked
back at the vehicle multiple times as he exited it." (Tr. 17.) Appellee told the officers that
"he saw two male blacks running northbound and they were the ones that did the
shooting."    (Tr. 15.)   The direction from which appellee said he observed the two
individuals running was the same area the officers had just traveled on foot. Appellee also
told the officers: "There is no gun in the car." (Tr. 17.) Officer Hawkins testified that the
officers had not asked appellee about a weapon at that time.
       {¶ 9} Appellee "was not handcuffed at that point." (Tr. 16.) The officers "patted
him down for weapons" in order to "make sure there wasn't a firearm on his person." (Tr.
16.) The officers found no weapons on appellee. Officer Hawkins then "maintained
physical control" of appellee at the rear of his vehicle while Officer Nick Clark "conducted
a sweep of the vehicle." (Tr. 17-18.) Officer Clark found a loaded "Jennings J-22 firearm"
in the glove box of the vehicle. (Tr. 18.) Upon discovering the weapon, the officers placed
appellee under arrest.
       {¶ 10} On cross-examination, Officer Hawkins testified that appellee, upon exiting
the vehicle, was "under our physical control." (Tr. 25.) During re-direct examination, the
officer stated that appellee "was not in reach of the vehicle" during the time Officer Clark
conducted the search of the vehicle. (Tr. 28.) According to Officer Hawkins, in order for
appellee to reach the glove compartment, he "would have had to have gotten away from
me and gone through my partner." (Tr. 31.) When questioned by the trial court as to why
the officers searched the vehicle, Officer Hawkins responded: "To make sure there was no
firearm in the vehicle. He was about to be released, if there wasn't. We were going to be
putting him back inside that vehicle. We wanted to make sure there was nothing in that
vehicle that was going to hurt us when we did so." (Tr. 32.)
No. 14AP-709                                                                              4

       {¶ 11} At the close of the testimony, the trial court indicated on the record that it
would grant the motion to suppress, stating in part as follows:
               So there was testimony that [appellee's] car was the only one
               in the parking lot where it appeared that the gunshots were
               being fired from and that an officer came from the direction
               where [appellee] said the two people ran. So I do think that
               the stop was reasonable.

               ***

               In this case, * * * even under the cop's testimony [appellee]
               was not under arrest; and when asked specifically by the
               court, Officer Hawkins testified that [appellee] would have
               had to get away from him and then go through another police
               officer to get to the glove box where the gun was ultimately
               found. So the plain view doctrine does not apply. It doesn't
               appear that there were exigent circumstances, if [appellee]
               had to go through two people to get to the glove box. There is
               no testimony about hot pursuit or stop and fris[k]. There is
               no testimony about any type of consent, the waiving of
               constitutional rights; and since [appellee] was not under
               arrest, there was no search incident to a lawful arrest.

(Tr. 41-42.)

       {¶ 12} The trial court also discussed the holding in Michigan v. Long, 463 U.S.
1032 (1983), stating in part:
               * * * Michigan v. Long * * * says the police may search those
               areas of the passenger compartment under the immediate
               control of the occupants of a car where the occupants could
               presumably reach for a weapon.

               And again, Officer Hawkins testified that in order for
               [appellee] to get to the glove box, he would have had to get
               away from Officer Hawkins and pass another cop in order to
               get to the glove box. So for those reasons, I'm going to grant
               the motion to suppress.

(Tr. 43.)

       {¶ 13} By decision and entry filed September 5, 2014, the trial court granted
appellee's motion to suppress "for the reasons stated on the record."
       {¶ 14} On appeal, the state sets forth the following two assignments of error for
this court's review:
No. 14AP-709                                                                               5

              [I.] THE TRIAL COURT ERRED AND ABUSED ITS
              DISCRETION WHEN IT INVALIDATED A SEARCH
              PROPERLY CONDUCTED UNDER THE PROTECTIVE-
              SEARCH DOCTRINE OF MICHIGAN V. LONG.

              [II.] THE TRIAL COURT ERRED AND ABUSED ITS
              DISCRETION WHEN IT FAILED TO ADDRESS OR APPLY
              THE GOOD-FAITH EXCEPTION TO THE FEDERAL
              EXCLUSIONARY RULE.

       {¶ 15} Under the first assignment of error, the state argues that the trial court
erred in granting appellee's motion to suppress, asserting the court failed to properly
apply the United States Supreme Court's holding in Long to the facts of this case. The
state cites findings by the trial court that the search of the passenger compartment could
not be justified because appellee was under the officers' control and did not have
immediate access to the passenger compartment of the vehicle at the time of the search.
The state argues that the trial court erroneously relied on the search incident to arrest
exception under Arizona v. Gant, 556 U.S. 332 (2009), rather than the protective search
exception under Long.
       {¶ 16} This court's 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, ¶ 8. In considering 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. An appellate court must therefore "accept the trial court's
findings of fact if they are supported by competent, credible evidence."            Further,
"[a]ccepting those 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.
       {¶ 17} In general, "[t]he 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 Dist. No. 13AP-141, 2013-Ohio-4934, ¶ 6.
       {¶ 18} One such exception, recognized by the United States Supreme Court in
Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to "stop or detain an individual
No. 14AP-709                                                                                 6

without probable cause when the officer has a 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.). See also State v. Cordell, 10th Dist. No. 12AP-42,
2013-Ohio-3009, ¶ 13, quoting Terry at 24 (under Terry, "a police officer may conduct a
brief warrantless search of an individual's person for weapons if the officer has a
reasonable and articulable suspicion that the 'individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the officer or to
others' "). The purpose of such a limited search "is not intended to discover evidence of a
crime, but to allow the officer to pursue his duties 'without fear of violence.' " Id. at ¶ 13,
quoting Adams v. Williams, 407 U.S. 143 (1972).
       {¶ 19} The warrantless search exception in Terry was "expanded to protective
searches of automobiles in Michigan v. Long." Cordell at ¶ 14. In Long, the Supreme
Court held that the warrantless search of the passenger compartment of an automobile is
permissible "if the police officer possesses a reasonable belief based on 'specific and
articulable facts which, taken together with the rational inferences from those facts,
reasonably warrant' the officers in believing that the suspect is dangerous and the suspect
may gain immediate control of weapons." Id. at 1049, quoting Terry at 21.
       {¶ 20} As noted above, the trial court in the instant case determined that the
officers made a valid investigative stop based on "testimony that [appellee's] car was the
only one in the parking lot where it appeared that the gunshots were being fired from and
that an officer came from the direction where [appellee] said the two people ran." (Tr.
41.) The trial court further found, however, that once appellee was under the control of
the officers, he had no opportunity to reach the glove compartment and, therefore, the
search and seizure of the weapon was not permissible under any exception to the warrant
requirement.
       {¶ 21} Before considering the state's first assignment of error, challenging the trial
court's ruling as to the officers' search of the vehicle, we briefly address appellee's claim
that the officers lacked reasonable suspicion to justify the investigative stop of the vehicle
in the first instance. We disagree, and find no error with the trial court's determination
that it was reasonable to make a brief investigatory stop.
       {¶ 22} In general, "an investigative stop of a motorist does not violate the Fourth
Amendment if the officer has a reasonable and articulable suspicion that the individual is
No. 14AP-709                                                                              7

engaged in criminal activity." State v. Richardson, 9th Dist. No. 21144, 2003-Ohio-246,
¶ 9.
       {¶ 23} In support of his argument that the stop was invalid, appellee relies on this
court's decision in State v. Parrish, 10th Dist. No. 01AP-832, 2002-Ohio-3275, ¶ 22, in
which we held that a defendant's "mere presence in the general vicinity where * * * shots
allegedly had been fired" did "not provide a reasonable, articulable suspicion that
defendant had engaged in criminal activity to justify an investigative stop." We find,
however, the facts of Parrish to be distinguishable from those in the present case, as the
officers making the stop in Parrish relied solely upon the dispatch reporting shots fired.
In Parrish, this court noted that the transcript of the suppression hearing contained no
information concerning the dispatch other than a statement that shots had been fired "in
the area of East Fifth and Brentnell Avenues," nor did the state establish any specific
details regarding the dispatch, including the precise time the shots had been fired, or
whether the defendant's vehicle had been observed in the area. Id. at ¶ 20.
       {¶ 24} By contrast, in the instant case, the officers not only received a dispatch
regarding shots being fired in the area of Carstare Court, but the officers themselves, upon
arriving at the location and proceeding on foot, heard multiple shots fired approximately
200 feet away. The officers, based on their own observations, believed the shots were
coming from the rear of Carstare Court. After arriving at the parking lot, they observed
appellee in the only occupied vehicle in the lot, and the officers did not observe any other
vehicles entering or leaving the area nor any other individuals on foot. Under these
circumstances, the officers had a reasonable suspicion that criminal activity "was afoot" at
the time they ordered appellee to exit the vehicle. See also State v. Fisher, 10th Dist. No.
10AP-746, 2011-Ohio-2488, ¶ 38 (distinguishing Parrish where, "unlike" the facts of
Parrish, "the officers independently observed circumstances reasonably indicating
criminal behavior at the scene of the detention").
       {¶ 25} The facts of the instant case are somewhat analogous to those in State v.
Clayton, 9th Dist. No. 27290, 2015-Ohio-663, in which officers, on patrol at 2:40 a.m.,
heard several gunshots a few blocks away and started driving toward the direction of the
shots. After traveling approximately one block, the officers spotted a GMC Yukon coming
from that direction. The vehicle was traveling very slowly and the officers noted that it
was the only vehicle on the road and no pedestrians were in the area. The officers stopped
No. 14AP-709                                                                                8

the vehicle and patted down the driver and passenger, at which time the officers observed
a handgun. The defendant filed a motion to suppress, which the trial court denied.
       {¶ 26} On appeal, the defendant argued that the police lacked reasonable suspicion
to stop the vehicle because there was no evidence it was involved in the shooting,
asserting that "the stop amounted to nothing more than a 'stab in the dark.' " Id. at ¶ 16.
The reviewing court found no error by the trial court. In its decision, the court noted that
the officers spotted the vehicle "directly after having heard gun shots," citing one officer's
testimony that the shots "sounded as if they came from only a few blocks away," and that
they did not observe "any other cars or pedestrians in the area." Id. The court concluded
that "[t]he close proximity of the SUV to the area the police were investigating, combined
with the recency of the gun shots, the SUV's solitary appearance on the road at that late
hour, and its noticeably slow pace amounted to 'specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant[ed] [the]
intrusion.' " Id. at ¶ 17, quoting State v. Shorts, 9th Dist. No. 11CA009965, 2011-Ohio-
6202, ¶ 9.
       {¶ 27} We note that federal courts have also upheld investigative stops under
similar circumstances.       See, e.g., United States v. Raino, 980 F.2d 1148, 1150 (8th
Cir.1992) (Terry investigative stop justified where "officers were responding to a late-
night call that shots had been fired in precisely the area appellant's car was parked");
United States v. Brown, 334 F.3d 1161, 1166 (D.C.Cir.2003) (upholding Terry stop by
police officers responding to a call of shots being fired in nearby parking lot where facts
indicated it was late at night, the area was a high crime area, and there were only two
occupied cars in the lot).
       {¶ 28} Having determined that the record supports the trial court's finding that the
officers had a reasonable suspicion to justify an investigative stop, we next consider
whether the trial court erred in its determination that the subsequent search of the
passenger compartment was invalid. As noted, the state contends the trial court applied
the wrong doctrine in this case, i.e., that it analyzed the case under the search incident to
arrest exception, as recently clarified in the Supreme Court's holding in Gant, instead of
utilizing the protective-sweep exception as set forth in Long.
       {¶ 29} By way of background, prior to the Supreme Court's decision in Gant,
"officers could conduct a warrantless search of 'the passenger compartment of [the
No. 14AP-709                                                                               9

arrestee's] automobile' under [the search incident to arrest] doctrine." United States v.
Polanco, 634 F.3d 39, 42 (1st Cir.2011), quoting New York v. Belton, 453 U.S. 454, 460
(1981). In Gant, the Supreme Court "clarified that an automobile search may fall within
the search-incident-to-arrest doctrine only in two very specific situations: 'when the
arrestee is unsecured and within reaching distance of the passenger compartment at the
time of the search' (the officer-safety justification), or 'when it is "reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle" ' (the evidence-
preservation justification)." Polanco at 42, quoting Gant at 343, 333, quoting Thornton v.
United States, 541 U.S. 615, 632 (2004). Under the facts of Gant, the defendant was
already under arrest and seated in the back of the police cruiser at the time officers
searched the passenger compartment for drugs, and the Supreme Court held that the
search incident to arrest exception "does not authorize a vehicle search incident to a
recent occupant's arrest after the arrestee has been secured and cannot access the interior
of the vehicle." Id. at 335.
       {¶ 30} The decision in Gant "is a limitation on the scope of the 'search incident to
arrest' exception to the Fourth Amendment, rather than a limitation on the protective
search exception in Long." United States v. Torres, (S.D.N.Y. No. 10 CR 1159(JGK))
(June 7, 2011).     Thus, "[b]ecause Gant dealt specifically with a protective search
conducted incident to a custodial arrest, it does not address a protective search conducted
during a traffic stop, in which the occupant of the vehicle may return to the car and have
access to any weapons inside the vehicle once the stop is over." Id. Rather, "Gant
specifically identified Long as an exception to the warrant requirement that would be
unaffected by its holding." Id.
       {¶ 31} In the present case, the trial court specifically noted appellee was not under
arrest prior to the search, and Officer Hawkins testified that appellee was going to be
released back to his vehicle if no weapon was found. Here, the search of the vehicle was
not a search incident to an arrest, and we agree with the state that Gant is inapplicable.
See State v. Broughton, 10th Dist. No. 11AP-620, 2012-Ohio-2526, ¶ 36 (finding Gant
inapplicable where appellant "was neither under arrest nor in handcuffs while seated in
the police cruiser, and would have been returned to his car had the search not revealed
the handgun"); State v. Carr, 2d Dist. No. 24004, 2011-Ohio-2061, ¶ 35 (where officer
testified he would have sent defendant on his way if weapons check of interior of vehicle
No. 14AP-709                                                                                10

had been negative, "[t]his case is therefore within the ambit of Michigan v. Long * * * not
Arizona v. Gant").
       {¶ 32} As noted under the facts, the trial court focused on the fact that appellee was
under the control of the officers at the time the glove compartment was searched.
However, "[t]he Long court rejected an argument that it was not reasonable for the
officers to fear that Long could injure them because he was effectively under their control
during the investigative stop and could not gain access to any weapons that might have
been located in the car." Broughton at ¶ 24. Rather, the court in Long "noted that when
the suspect is not placed under arrest and instead will be permitted to return to his or her
vehicle, an officer 'remains particularly vulnerable in part because a full custodial arrest
has not been effected, and the officer must make a "quick decision as to how to protect
himself and others from possible danger." ' " (Emphasis sic.) Broughton at ¶ 24, quoting
Long at 1052, quoting Terry at 28.
       {¶ 33} In light of the foregoing, we agree with the state that the trial court "erred in
applying Gant rather than Long in determining the reasonableness of the search," and we
therefore will "review the facts of the case and apply the correct standard to determine
whether suppression of evidence was warranted." Cordell at ¶ 15.
       {¶ 34} The state argues that a number of factors support the officers' protective
search of the vehicle for weapons, including the time of night, the experience of the
officers, the fact multiple gunshots had been fired, and appellee's conduct. In response,
appellee argues that the state failed to show a reasonably prudent officer, under the
circumstances, would have believed his or her safety was in danger.
       {¶ 35} In considering the totality of the circumstances, "courts generally consider
factors such as the time of day, the experience of the officers involved, and suspicious
activities by the defendant both before and during the stop." Broughton at ¶ 19.
       {¶ 36} In the present case, Officer Hawkins testified that he had four years
experience on the police force. As indicated above, "the totality of the circumstances may
include the officer's experience on the police force." State v. Morris, 10th Dist. No. 09AP-
751, 2010-Ohio-1383, ¶ 19. Here, the officers were investigating a dispatch reporting
shots fired "shortly after midnight," in an area where Officer Hawkins had previously
responded "[m]ultiple times" to reports involving shots fired and weapons. In Long, the
Supreme Court cited the fact that "[t]he hour was late" as one of the circumstances that
No. 14AP-709                                                                                11

"justified" the officers' "reasonable belief that Long posed a danger if he were permitted to
reenter his vehicle." Id. at 1050. See also State v. Peterson, 2d Dist. No. 14733 (July 7,
1995) ("time of night" a factor in considering whether officer had reasonable belief
defendant "might be armed and dangerous"); State v. Manning, 6th Dist. No. L-08-1278,
2009-Ohio-2605 ¶ 14 ("surrounding circumstances, such as the time of day or night * * *
may increase the danger to the officer").
       {¶ 37} Upon arriving near the area, the officers themselves heard the sound of a
gunshot, followed by a series of approximately six more gunshots. According to Officer
Hawkins, the shots were "200 feet, very close," and "sounded as if they were coming from
the rear of Carstare Court." This court has previously cited a defendant's "temporal
proximity" to a gunshot as a factor that may provide officers reason to believe a vehicle's
occupants were involved in a shooting and that there was a weapon in the vehicle. See
Fisher at ¶ 35-37. Officer Hawkins further testified that, upon hearing the shots, he was
concerned for his safety and the safety of others. As the officers approached that location
on foot, they observed a vehicle and heard the engine start. There were no other vehicles
entering or leaving the area, nor did the officers observe any other individuals on foot.
       {¶ 38} Officer Hawkins and his partner approached the vehicle with their "firearms
pointed at the driver" and "giving loud verbal commands to put the vehicle in park, turn
off the vehicle." Appellee initially ignored the officers' verbal commands to stop the
vehicle; rather, the vehicle was inching forward and "starting to turn." Appellee's failure
to "immediately heed" the officers' orders "could have reasonably raised the officers'
suspicion that [he] might pose a danger to their safety." Broughton at ¶ 20. After
stopping the vehicle, appellee then "jumped out of the car," and "looked back at the
vehicle multiple times as he exited." He appeared to be "[v]ery nervous," and "was
shaking." While "some degree of nervousness during interactions with police officers is
not uncommon, * * * nervousness can be a factor to weigh in determining reasonable
suspicion." State v. Atchley, 10th Dist. No. 07AP-412, 2007-Ohio-7009, ¶ 14. Upon
exiting the vehicle, appellee told the officers that he had observed two black males
running northbound, and that "they were the ones that did the shooting." Appellee also
offered, without any questioning from the officers, a statement that "[t]here is no gun in
the car."
No. 14AP-709                                                                              12

       {¶ 39} We have previously found, in considering the issue of whether the
investigatory stop was proper, that the evidence supported a determination that the
officers had a reasonable suspicion criminal activity was afoot at the time they ordered
appellee to exit his vehicle. Upon consideration of the totality of the circumstances, we
further conclude that it was reasonable for the officers to conduct a search of the
passenger compartment of the vehicle for their safety based upon a "reasonable belief that
the suspect [was] potentially dangerous." Long at 1051. Accordingly, we find that the
search was "constitutionally valid."    Broughton at ¶ 37. Thus, "applying the correct
standard based upon Long and Terry to the facts described at the suppression hearing,"
the protective search by the officers "was not illegal and suppression of the evidence
obtained thereby was not warranted." Cordell at ¶ 23.
       {¶ 40} We therefore sustain the state's first assignment of error.
       {¶ 41} Based upon this court's disposition of the first assignment of error, the issue
raised by the state under its second assignment of error (i.e., whether the trial court erred
in failing to address or apply the good-faith exception to the exclusionary rule) is hereby
rendered moot.
       {¶ 42} Based upon the foregoing, the first assignment of error is sustained, the
second assignment of error is rendered moot, the judgment of the Franklin County Court
of Common Pleas is reversed, and this matter is remanded to that court for further
proceedings in accordance with law and consistent with this decision.
                                                 Judgment reversed and cause remanded.

                                   SADLER, J., concurs.
                                    TYACK, J., dissents.

TYACK, J., dissenting.

       {¶ 43} Since I agree with the trial court's resolution of the pertinent issues, I
respectfully dissent.
       {¶ 44} The analysis of the legal issues starts with the observation that the police
officers had no warrants. For many, many years, the law of the land has been that
warrantless searches and seizures are per se unreasonable. See Katz v. United States, 389
U.S. 347 (1967). As a result, the burden is on the prosecution to come forward with an
No. 14AP-709                                                                                13

argument for the existence of one of the well-delineated exceptions and follow that with
proof of the existence of that exception. The state failed to meet that burden in this case.
       {¶ 45} The state had to prove an exception that applied to the stopping of Mr.
Pinckney's vehicle; an exception that applied to removing him from the vehicle; an
exception that applied to the detaining of Pinckney in the way he was detained; and
finally, an exception that applied to search of the vehicle at a time when Pinckney was out
of the vehicle and totally under the control of the police.
       {¶ 46} Arizona v. Gant, 556 U.S. 332 (2009), was decided 26 years after Michigan
v. Long, 463 U.S. 1032 (1983). When Gant was decided, it significantly narrowed the
scope of Michigan v. Long, supra. Despite the efforts of the majority of the panel to find a
way to distinguish the facts of the Gant case from the facts of this case, Gant governs this
situation. Pinckney had been ordered out of his vehicle. He had been frisked. He had
been placed and "maintained" under the "physical control" of police outside of his motor
vehicle. Police then searched the vehicle without a warrant.
       {¶ 47} The majority of the panel does not want to call what happened to Mr.
Pinckney an arrest. For all pertinent purposes, an arrest occurred. Again, Pinckney was
stopped. He was removed from his vehicle. He was frisked. He was placed behind his
vehicle. He was held there under police physical control. Pinckney clearly was not free to
leave. Simply put, the police control of Pinckney was no different than the police control
exercised over Gant in Arizona v. Gant, supra. It was far more than an investigative stop.
       {¶ 48} The state's attempt to argue that the search of Pinckney's vehicle was
necessary for the protection of the officers borders on the absurd. Pinckney would have
had to get out of the physical control of Officer Hawkins and overpower Hawkins' partner
in order to get to the interior of the vehicle. We are not told all of the particulars, but was
Pinckney on his stomach on the ground as a part of the physical control?
       {¶ 49} In today's environment, with several high-profile police shootings of
civilians in recent history, is it any wonder Pinckney appeared to be nervous and shaking
when he was removed from his vehicle? His nervousness is not an indication of any
criminal activity.
       {¶ 50} I also note that the police officers had no basis for believing that criminal
activity was still afoot.   The shooting had stopped.         No one else was visible in the
neighborhood. Pinckney was merely leaving an area where one or more guns had recently
No. 14AP-709                                                                             14

been fired. Leaving an area where guns have been fired is not a crime. The assertion in
the majority decision at ¶ 39 that the officer had "a reasonable suspicion criminal activity
was afoot," is just plain wrong if it means such activity was still going on or was about to
continue.
       {¶ 51} Again, I believe that the trial court judge got it right when she suppressed
the fruits of this warrantless search. I would affirm her decision.
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