         [Cite as State v. Jones, 2014-Ohio-1201.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-130069
                                                          TRIAL NO. B-1101166
        Plaintiff-Appellee,                          :

  vs.                                                :       O P I N I O N.

DONTE JONES,                                         :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 26, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Gregory A. Cohen, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}    This is an appeal from a criminal conviction following the denial of a

motion to suppress. Donte Jones was stopped by the police for a license plate violation

after the police received a tip from a confidential informant that he had illegal firearms

in his car. Once Mr. Jones was removed from the car, one of the officers saw through

the open car door that the floor mat was askew and appeared to have something

concealed underneath it.    The officer lifted the mat and found drugs.        Mr. Jones

contends that this search violated his Fourth Amendment rights. We disagree. Out of a

concern for officer safety, a limited protective search of the automobile was permissible.

Therefore, we affirm the judgment below.

                                            I.

       {¶2}    The events leading up to the search unfolded as follows. Police were

dispatched to an address on Republic Street based on information that a vehicle at that

location contained firearms. The information was supplied by a confidential police

informant, who also gave a description of the car and its license plate number. Although

Mr. Jones characterizes the gun tip as anonymous, the record indicates that at least

one of the officers recognized the tipster’s name, knew him to be an informant for

another officer, and had received reliable information from him on at least two prior

occasions.

       {¶3}    Just minutes after receiving the dispatch, the officers spotted a car

matching the description and license plate provided by the informant proceeding

southbound on Republic, half a block from the reported address.              In separate

cruisers, the officers followed the car down Republic and onto East Liberty Street.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}    The officer directly behind the car noted that the rear license plate

light was out and initiated a traffic stop. Concerned that the car’s occupants might

be armed based on the tip, the officers approached the car with their guns drawn and

ordered the occupants to keep their hands in the air. The officers saw Mr. Jones

lower his right hand quickly, and ordered him to keep his hands visible. He dropped

his right hand again. At this point, the officers ordered the occupants out of the car,

patted them down, handcuffed them, and detained them in the back of the separate

police cruisers. One of the officers then returned to the driver’s side of the car. With

the car door still open, the officer could see that the floor mat was askew and

appeared to have a bulge under it. She lifted the mat and discovered a small bag of

cocaine.

       {¶5}    Mr. Jones filed a motion to suppress the drug evidence on the basis

that the automobile search violated his Fourth Amendment rights, and the trial court

held a hearing on the motion. Although the trial court stated at the hearing that the

occupants had not been arrested prior to the search, the court in its written opinion

analyzed the search as a “search incident to arrest” under the United States Supreme

Court’s decision in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485

(2009). In Gant, the court held that police may search a vehicle incident to arrest

“only if the arrestee is within reaching distance of the passenger compartment at the

time of search or it is reasonable to believe the vehicle contains evidence of the

offense of arrest.” Id. at 351. The trial court found that the search was permissible

under the second clause, concluding that, based on the informant’s tip, it was

reasonable to believe that firearms would be found in the car. On this basis, the

court denied the motion to suppress.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶6}     Mr. Jones filed a motion for reconsideration in the trial court, arguing

that the search-incident-to-arrest rule was inapplicable because at the time of the

search, the only crime Mr. Jones had purportedly committed was the plate-light

violation. In its entry overruling the motion for reconsideration, the trial court held

this time that the search was permissible under the automobile exception to the

warrant requirement. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72

L.Ed.2d 572 (1982). Under the automobile exception, police officers may conduct a

warrantless search of a lawfully-stopped automobile if they have probable cause to

believe that the vehicle contains contraband. Id. at 799, citing Carroll v. United

States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

        {¶7}     Following the denial of his motion to suppress and motion for

reconsideration, Mr. Jones pleaded no contest to and was convicted of possession of and

trafficking in cocaine. On appeal, Mr. Jones contends that the search was illegal and,

therefore, the trial court erred by overruling his motion to suppress. 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. We defer to the trial court’s

factual findings if they are supported by competent and credible evidence, but we

review de novo the trial court’s application of the law to those facts. Id. Thus, the

questions of reasonable suspicion and probable cause to conduct a warrantless

search are reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 698,

116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

        {¶8}     We conclude that Gant does not apply because there had been no arrest

at the time of the search, and Ross does not provide a basis for the search because the

officers lacked probable cause. We find, however, that a limited protective search was

justified for reasons of officer safety.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



                                          II.

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

unreasonable searches and seizures. Accord Ohio Constitution, Article I, Section 14.

Unless one of a few well-delineated exceptions applies, warrantless searches are per

se unreasonable. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967).

                                          A.

       {¶10}    Search Incident to Arrest.            One such exception permits

warrantless searches conducted pursuant to a recent arrest. In Gant, 556 U.S. 332,

129 S.Ct. 1710, 173 L.Ed.2d 485, the Supreme Court explicitly prescribed rules for the

search of an automobile incident to a recent occupant’s arrest. The key to the

limitation on warrantless automobile searches imposed by Gant was that after a

suspect has been arrested and placed inside a police cruiser, the risk of the suspect

accessing his vehicle is practically eliminated, and the concerns about officer safety

and preservation of evidence usually justifying a vehicle search incident to arrest are

no longer present. Id. at 339, 343. Thus, where an arrestee has been secured in the

police cruiser and is, therefore, no longer “within reaching distance” of the car, Gant

permits a search only where it is reasonable to believe the car contains “evidence of

the offense of arrest.” Id. at 351.

       {¶11}    Before we analyze the search under the framework in Gant, we must

consider whether an arrest took place. “Under Ohio law, an arrest occurs when there

is (1) an intent to arrest, (2) under a real or pretended authority, (3) accompanied by

actual or constructive seizure or detention of the person, (4) that is so understood by

the person arrested.” City of Cincinnati v. Kieser, 1st Dist. Hamilton No. C-060773,

2007-Ohio-4467, ¶ 8, citing State v. Darrah, 64 Ohio St.2d 22, 26, 412 N.E.2d 1328



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                       OHIO FIRST DISTRICT COURT OF APPEALS



(1980). Furthermore, an arrest “signifies the * * * the restraint of a person’s freedom

in contemplation of the formal charging with a crime.” Darrah at 26. In evaluating

whether Mr. Jones was arrested, we are reminded that “[t]he touchstone of our

analysis under the Fourth Amendment is always ‘the reasonableness in all the

circumstances of the particular governmental invasion of a citizen’s personal

security.’ ” State v. Evans, 67 Ohio St.3d 405, 409, 618 N.E.2d 162 (1993), quoting

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

       {¶12}   We do not think the detention of Mr. Jones prior to the automobile

search amounted to an arrest. The Fourth Amendment permits officers to perform

an investigative “Terry stop” if they have a reasonable and fact-based suspicion that

criminal activity is afoot. Terry at 21-22, 30. Here, the officers testified that they

detained Mr. Jones and his companion to investigate their suspicion that the car

contained firearms, expressly referring to the occupants as “detainees.” At the time

of his detention, the officers did not contemplate charging Mr. Jones with any crime,

other than perhaps the plate-light violation. Thus, the officers clearly did not intend

to arrest Mr. Jones.

       {¶13}   Nor can we say that the use of force during the brief detention

exceeded the bounds of Terry and transformed the stop into an arrest. Investigatory

situations involving suspects who may be armed are especially perilous for police

officers. Here, the officers conducted a roadside stop late at night in a high-crime

area. Suspecting there were guns in the car based on the tip and Mr. Jones’s refusal

to keep his hands visible, the officers were warranted in approaching the car with

their guns drawn, ordering the occupants out of the car, and conducting a pat-down

search for weapons.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14}   Moreover, the use of handcuffs does not, by itself, convert a Terry stop

into an arrest. See, e.g., State v. Jones, 1st Dist. Hamilton No. C-990125, 1999 Ohio

App. LEXIS 5790, *10-11 (Dec. 3, 1999); State v. Parsley, 10th Dist. Franklin No. 09AP-

612, 2010-Ohio-1689, ¶ 62; State v. Carter, 2d Dist. Montgomery No. 21999, 2008-

Ohio-2588, ¶ 24; State v. Pickett, 8th Dist. Cuyahoga No. 76295, 2000 Ohio App. LEXIS

3484, *13-14 (Aug. 3, 2000). Although “Terry cannot be read as a license for the

police to stop and handcuff every person they may reasonably suspect of criminal

activity,” Terry does permit the use of handcuffs if such use is reasonably warranted

by concerns for officer safety. Jones at *10-11. We think the safety concerns present

in this case called for such precautionary measures. The officers had a reasonable

basis for believing that the car’s occupants were armed and dangerous. Accordingly,

the officers had good reason to use handcuffs to “maintain the status quo and

prevent flight.” State v. Payne, 2d Dist. Montgomery No. 13898, 1994 Ohio App.

LEXIS 1925, *10 (May 4, 1994). And, having a valid reason to detain the car’s

occupants, the officers had a legitimate interest in removing the detainees from the

roadway during the investigation to prevent injury or accident, as well as “in

guarding against an ambush from the rear.” Evans, 67 Ohio St.3d at 410, 618 N.E.2d

162.

       {¶15}   Thus, the exception in Gant permitting officers to search a vehicle for

“evidence of the offense of arrest” is irrelevant here—because no arrest had been made at

the time of the search. Gant, 556 U.S. at 351, 129 S.Ct. 1710, 173 L.Ed.2d 485. Rather,

the officers had temporarily placed Mr. Jones and his companion in separate police

cruisers to ensure the scene was secure and they were protected as they proceeded with

their investigation. At the time Mr. Jones was placed in the cruiser, the only crime he

was known to have committed was the minor license-plate violation. And had other



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                     OHIO FIRST DISTRICT COURT OF APPEALS



evidence of criminal conduct not turned up, Mr. Jones would have been returned to

his vehicle following the traffic stop.        Therefore, the search-incident-to-arrest

exception to the warrant requirement does not provide a basis for the search, and

Gant is not applicable.

                                           B.

       {¶16}   Automobile Exception.             In its decision denying Mr. Jones’s

motion for reconsideration, the trial court held that the police were justified in

searching the automobile because they had probable cause to believe that evidence of

criminal activity was contained within. See Ross, 456 U.S. at 799, 102 S.Ct. 2157, 72

L.Ed.2d 572. Probable cause to search exists where “known facts and circumstances

are sufficient to warrant a [person] of reasonable prudence in the belief that

contraband or evidence of a crime will be found.” Ornelas, 517 U.S. at 696, 116 S.Ct.

1657, 134 L.Ed.2d 911. Mr. Jones contends that the automobile search was not based

on probable cause. We agree.

       {¶17}   At the time they initiated the traffic stop, the only information

available to the officers was the informant’s report that the vehicle’s occupants were

armed. An informant tip may—but will not always—provide a basis for reasonable

suspicion if that tip possesses sufficient indicia of reliability. State v. Hansard, 4th

Dist. Scioto No. 07CA3177, 2008-Ohio-3349; ¶ 20-23; City of Maumee v.

Weisner, 87 Ohio St.3d 295, 299-300, 720 N.E.2d 507 (1999). In this case, the tip

from a known informant, where that informant was known to have provided reliable

information in the past, supplied a sufficient basis for the officers’ suspicion that the

car contained firearms. But we do not think the addition of Mr. Jones’s furtive hand

movements elevated that suspicion to probable cause. See, e.g., United States v.

Graham, 483 F.3d 431, 441 (6th Cir.2007) (a tip combined with the suspect’s furtive



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                      OHIO FIRST DISTRICT COURT OF APPEALS



movements amounted only to reasonable suspicion); State v. Gardner, 2d Dist.

Montgomery No. 25312, 2013-Ohio-2015, ¶ 9, 13-15. Therefore, we find that the

automobile exception did not provide a basis to conduct a warrantless search of Mr.

Jones’s automobile.

                                           C.

       {¶18}   Protective Search.         Although not the basis of the trial court’s

decision, the state argued that the search was permissible under an alternate theory

that safety concerns necessitated a limited search for weapons. In Michigan v. Long,

463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court

recognized an exception to the warrant requirement permitting a limited protective

search of an automobile during a traffic stop.         Under Long, a “search of the

passenger compartment of an automobile, limited to those areas in which a weapon

may be placed or hidden, is permissible if the police officer possesses a reasonable

belief * * * that the suspect is dangerous and the suspect may gain immediate control

of weapons.” Id. at 1049.

       {¶19}   Following Long, we have held that, where there has been no arrest and

the suspect will be permitted to return to his vehicle once the investigation is complete,

“an officer acts reasonably when, out of a concern for his safety, the vehicle is

searched for weapons prior to allowing its occupants to reenter.” State v. Smith, 1st

Dist. Hamilton No. C-110727, 2013-Ohio-2208, ¶ 16-17; see State v. Caulton, 1st Dist.

Hamilton No. C-080034, 2008-Ohio-6090, ¶ 10 (“even where a suspect is out of his

car, a Terry search may extend to areas in the car that would be readily accessible to

a suspect upon his return to the car”); State v. Walker, 2d Dist. Montgomery No.

24542, 2012-Ohio-847, ¶ 28, 31; State v. Morlock, 3d Dist. Allen No. 1-12-21, 2013-

Ohio-641, ¶ 14; State v. Wade, 9th Dist. Summit No. 26275, 2012-Ohio-4255, ¶ 20;



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                       OHIO FIRST DISTRICT COURT OF APPEALS



State v. Broughton, 10th Dist. Franklin No. 11AP-620, 2012-Ohio-2526, ¶ 24.

Therefore, we must consider whether Long authorized a protective sweep of the

passenger compartment prior to permitting Mr. Jones’s return to the car.

Reasonable suspicion has been described as a “ ‘particularized and objective basis’

for suspecting the person stopped of criminal activity.” Ornelas, 517 U.S. at 696, 116

S.Ct. 1657, 134 L.Ed.2d 911. We evaluate the existence of a reasonable suspicion that

the suspect was dangerous and that a weapon was present under the totality of the

circumstances. State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph

two of the syllabus.

       {¶20}   Officer safety was a paramount concern in this case. The informant’s tip

seemed credible based on the officer’s knowledge that the informant had provided

reliable information in the past and the fact that the officer located the car near the

address indicated by the informant. Having received reliable information that the

vehicle may contain firearms, the officers ordered the occupants to keep their hands

visible as they approached. In defiance of their orders, Mr. Jones lowered his hand two

times, appearing to reach for or secret an item. When they returned to the car after

securing the occupants, they could see that the floor mat was askew and something

appeared to be concealed underneath it.        Under these circumstances, the officers

possessed a reasonable and articulable belief that Mr. Jones was dangerous and that

weapons were present in the car. Moreover, had weapons been present in the car, Mr.

Jones would have gained immediate access to them upon the conclusion of the traffic

stop. Reasonableness being the touchstone of the Fourth Amendment, we think any

reasonable officer viewing the floor mat through the open door under these

circumstances would have lifted the mat to ensure that no weapons were hidden

underneath. Accordingly, we find that the officers possessed a reasonable basis to



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search the passenger compartment of Mr. Jones’s car to determine whether weapons

were present.

                                         III.

       {¶21}    We conclude that the officers were authorized to conduct a limited

protective search of the vehicle for their safety.   Therefore, we overrule the sole

assignment of error and affirm the judgment below.

                                                                   Judgment affirmed.


C UNNINGHAM , P.J., and H ILDEBRANDT , J., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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