[Cite as State v. Abner, 194, Ohio App.3d 523, 2011-Ohio-4007.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

THE STATE OF OHIO,                                      :

        Appellee,                                       :         C.A. CASE NO. 24140

v.                                                      :         T.C. NO.   09CR3335

ABNER,                                                  :         (Criminal appeal from
                                                                   Common Pleas Court)
        Appellant.                                      :


                                             ..........

                                           OPINION

                         Rendered on the        12th    day of     August     , 2011.

                                             ..........

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Laura M. Woodruff,
Assistant Prosecuting Attorney, for appellee.

Christopher A. Deal, for appellant.

                                             ..........

        DONOVAN, Judge.

        {¶ 1} On October 7, 2009, around 11:00 p.m., Officer Gustwiller and Officer

Dedrick were on duty, patrolling in an area designated by police as the Phoenix Project.

Officers were assigned to patrol the Phoenix Project to address criminal activity in the

eight-block area surrounding Good Samaritan Hospital. Gustwiller had been assigned to

this area for over a year. Dedrick had been assigned to the area for about two and one-half

years. While on patrol, the officers pulled into the Walgreen’s parking lot located at 2710
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Salem Avenue. The Walgreen’s is open 24 hours a day. Based on the officers’ previous

knowledge and experience, they were aware that the parking lot was often used for doing

and dealing drugs. Gustwiller testified that he had personally made around 250 drug-related

arrests in that general area, with approximately 30 arrests at the Walgreen’s parking lot.

       {¶ 2} When the officers entered the parking lot they noticed a large truck that was

not pulled all the way into its parking spot and was sticking out four to five feet in the

thoroughfare of the parking lot. The truck was parked in a space that fronted Salem Avenue

near an ingress area. The officers approached the vehicle to see if they could determine the

reason the truck was parked haphazardly.        The officers noticed that the truck had an

out-of-county license plate. Gustwiller testified that to his knowledge and experience,

persons from outside Montgomery County come to that area for the purpose of purchasing

drugs. Gustwiller testified that he walked around the truck to make sure no one was lying

down inside. The only thing he observed inside the cab of the truck was a blue phone.

There was no one in the vehicle.

       {¶ 3} As the officers returned to their cruiser, two males, one being

defendant-appellant, Hiram Abner, exited Walgreen’s and walked toward the truck.

Dedrick asked the men if the truck was their vehicle. At that point, the driver stopped and

spoke to Dedrick while Abner kept walking toward the truck. Dedrick had also asked

Abner to come to him; however, Abner continued walking toward the passenger side door of

the truck. Gustwiller then went around the back of the truck, where Abner already had the

passenger-side door open. Abner’s left hand had a Walgreen’s bag in it, and Gustwiller

testified that he could not see his right hand at that time. Once Abner had the door open, he
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stuck both hands inside the cab, where Gustwiller was unable to see them. Gustwiller

testified that Dedrick (who was talking to the driver) told Abner to show his hands, but he

did not immediately do so. However, on both direct and cross-examination, Dedrick did

not assert that he had directed Abner to show his hands.

       {¶ 4} Gustwiller testified that Abner’s actions concerned him because he did not

know whether Abner was trying to hide or retrieve a weapon. Gustwiller grabbed Abner

and had him step aside. After seizing Abner by the shoulders, Gustwiller saw a clear plastic

baggie sitting on the seat of the truck, next to the Walgreen’s bag. It was determined to

contain heroin. Abner was then placed under arrest.

       {¶ 5} Abner was indicted on December 2, 2009, on one count of possession of

heroin in excess of one gram but less than five grams in violation of R.C. 2925.11(A). A

motion to dismiss and/or suppress and a memorandum in support of defendant’s motion was

filed on March 17, 2010. In that motion, Abner argued that the evidence obtained by the

state should be suppressed because the search (1) was performed without a warrant, (2) was

performed without consent of appellant, (3) was not based upon probable cause, and (4) was

not within the scope of a search incident to a lawful arrest. Abner argued that his rights

under the Fourth Amendment to the Constitution of the United States as well as his

constitutional rights guaranteed by the Ohio Constitution were violated.

       {¶ 6} The trial court issued a decision overruling the motion to suppress and

finding that no stop had occurred until Gustwiller seized appellant by the shoulders. The

trial court found that while the officers may not have had reasonable articulable suspicion to

stop appellant initially, appellant’s actions when he approached the truck reached “the level
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of a furtive movement,” and so the officer was justified in seizing appellant to protect the

officers’ safety.   According to the trial court, once appellant was moved, following a

justified seizure, the contraband was then in plain view.

        {¶ 7} In cases involving a motion to suppress, the trial court is the fact-finder in the

case and, therefore, is in the best position to determine the facts of the case and the

credibility of the witness. State v. Retherford (1994), 93 Ohio App.3d 586. Thus, the

appellate court is required to accept the trial court’s findings of fact when they are supported

by competent and credible evidence. Id. The appellate court must then, without deference

to the trial court’s decision, decide whether those facts meet the requisite legal standard. Id.

                                 FIRST ASSIGNMENT OF ERROR

        {¶ 8} “The trial court erred when it denied appellant’s motion to suppress.”

        {¶ 9} In his first and only assignment of error, appellant claims that the trial court

erroneously denied his motion to suppress for two reasons: (1) the officer’s observations did

not amount to reasonable suspicion that appellant had engaged in criminal activity and so the

stop and seizure of appellant was unlawful and (2) there were no furtive movements by

appellant to justify his seizure. Specifically, Abner claims that the officers did not witness

any activity either by him or his companion that could be considered suspicious behavior.

Therefore, he claims, the officers did not have reasonable suspicion to stop and seize him.

In addition, Abner argues that putting his hands into the passenger side of the truck was an

innocent act, not a “furtive movement,” and therefore, seizing him out of concern for the

officer’s safety was not justified.

        {¶ 10} The Fourth Amendment guarantees “[t]he right of the people to be secure in
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their persons, houses, papers, and effects, against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the persons or things to

be seized.” Fourth Amendment, United States Constitution. One exception to the warrant

requirement is that an officer can conduct a reasonable search for weapons “for the

protection of the police officer, where he has reason to believe that he is dealing with an

armed and dangerous individual, regardless of whether he has probable cause to arrest the

individual for a crime.” Terry v. Ohio (1968), 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d

889. However, the officer must have “specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21.

       {¶ 11} In analyzing what conduct a police officer must observe to justify an

investigative stop and search under Terry, the Ohio Supreme Court takes a

totality-of-the-circumstances approach. State v. Bobo (1988), 37 Ohio St.3d 177, 180.

“[W]here 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.” Id.     In Bobo, the court took into

account seven facts in determining that the police officer was justified in his actions: “(1)

the area in which the actions occurred was an area of very heavy drug activity in which

weapons were prevalent, (2) it was nighttime, when weapons could easily be hidden, (3)

Sergeant Mandzak, one of the officers who approached the vehicle in which Bobo was

sitting, had about twenty years of experience as a police officer and numerous years in the

surveillance of drug and weapon activity—included in this experience were about five
                                                                                            6

hundred arrests each for guns or drugs city-wide and over one hundred arrests in the area in

which Bobo was parked, (4) Mandzak’s knowledge of how drug transactions occurred in

that area, (5) Mandzak’s observations of Bobo’s disappearing from view then reappearing

when the police car was close, looking directly at the officers and then bending down as if to

hide something under the front seat, (6) Mandzak's experience of recovering weapons or

drugs when an individual would make the type of gesture made by Bobo in ducking under

his seat, and (7) the police officers’ being out of their vehicle and away from any protection

if defendant had been armed.” Id. at 179. These facts, analyzed together, amounted to a

justification that the search of the vehicle for weapons was necessary in order to secure the

officer’s safety.

        {¶ 12} In addition to the factors above, a defendant’s movements, such as furtive

gestures, can be considered in analyzing whether police officers had enough to amount to a

reasonable suspicion of danger. “A furtive gesture may be defined as a situation where

‘police see a person in possession of a highly suspicious object or some object which is not

identifiable but which because of other circumstances is reasonably suspected to be

contraband and then observe that person make an apparent attempt to conceal that object

from police view.’ ” State v. Allen, Montgomery App. No. 23738, 2010-Ohio-3336.

Although furtive movements alone would not be sufficient to justify a search, they can be

considered in making a totality-of-the-circumstances determination. Id.

        {¶ 13} In State v. Jarnigan, this court found that the trial court properly denied a

motion to suppress because the police officers in the case had a reasonable and articulable

suspicion of criminal activity.      State v. Jarnigan, Montgomery App. No. 22682,
                                                                                             7

2009-Ohio-1640.     Officers were “checking known drug areas” when they observed a

vehicle parked in the back corner of a parking lot, away from the business’s entrance. Id. at

*1. The vehicle had an out-of-county sticker, and the driver was observed doing something

in her lap. Id. Officers pulled up to the car after a few minutes of observation and yelled at

the occupants to show their hands. Id. The driver then made a “grinding motion into her

seat with her right hand between her legs.” Id. Because the driver did not obey the

officer’s orders to show her hands, she was ordered out of the car. Id. As the driver exited

the vehicle, the officer noticed a white powder on the seat and a crack pipe on the

floorboard. Id.

       {¶ 14} The officer testified that the area was known as a high-crime area, and that in

his experience those areas of the parking lot were used for purchasing and consuming illegal

drugs. Id. at *2. The officer also testified that persons in vehicles with out-of-county

stickers were often on the lot for the purpose of partaking in illegal drug use.            Id.

Furthermore, the officer testified that the actions of the driver were consistent with the

movements one makes when preparing drugs for use.             Id.   The trial court found that

because of the experience of the officers, the fact that they patrol that area on a daily basis

and know what activities occur at that location, meant that the officers had a sufficient,

reasonable and articulable suspicion to justify a Terry stop in this case. Id. at *2-3.

       {¶ 15} This court has also found, however, that a furtive gesture alone does not arise

to reasonable suspicion and does not justify an investigative stop.          State v. Schooler,

Montgomery App. No. 20142, 2004-Ohio-3578.               In Schooler, a police officer was

responding to a complaint of a suspicious car parked on a street. Id. at *1. As the officer
                                                                                              8

approached the car, he noticed that the vehicle had out-of-county plates but did not notice

anything else out of the ordinary. Id. After the officer asked the driver to step out of the

vehicle, he noticed the passenger “reach down below where his feet are,” and he

subsequently asked the passenger to step out because he believed the passenger’s actions to

be “furtive and suspicious.” Id. After the passenger was placed in the police cruiser, the

officer went back to the car and discovered a gun and some papers in a bag in the floorboard

of the car. Id. at *2.

       {¶ 16} This court analyzed the Bobo factors in connection with the testimony that the

officer observed furtive gestures and found the search and seizure to not have been

warranted. Id. First, although the officer stated that he had made arrests in the area before,

he could not identify the reasons for the arrests. Id. Second, there was no testimony that it

was dark or that it would have been difficult for the officer to see any weapons. Id. at *3.

Third, although the officer had many years of experience on the police force, he did not

testify as to his experience with guns or drugs. Id. Fourth, the defendant’s action of

reaching down to the floorboard of the car was consistent with the observations noticed by

the police officer in Bobo, where the defendant bent down in the front seat. Id. However,

unlike in Bobo, the officer did not relate the defendant’s actions with the officer’s experience

in recovering weapons or drugs, just that the movement was suspicious. Id. Fifth, the

officer was out of his vehicle and away from protection. Id. Even though several of the

Bobo factors were evident in Schooler, the court found that the furtive gesture was not

enough to justify the investigative stop, because the defendant’s gestures did not arise to any

particular suspicion of criminal activity. Id.
                                                                                              9

       {¶ 17} Some of the Bobo factors are present in this case. First, like in Bobo, the

area that the officers were patrolling, the Phoenix Project, was known for its high level of

criminal activity. Second, the officers pulled into the Walgreen’s parking lot around 11:00

at night. Third, both officers had experience patrolling this particular area.          Officer

Gustwiller had been assigned to the area for over a year, and Officer Dedrick had been

patrolling the area for over two and one-half years. Fourth, the officers were familiar with

how the drug transactions in the area occurred; however, the facts available to them at the

time of Abner’s seizure did not support a conclusion that drug activity or any criminal

activity for that matter was afoot. In addition, both police officers were out of their vehicles

and speaking with the driver, and were not afforded the protection of the cruiser.

       {¶ 18} Although several Bobo factors are present, those factors are underwhelming

and there is not enough evidence in the record to support the trial court’s decision to overrule

the defendant’s motion to suppress. First, the police officers did not have a reasonable basis

to conclude that Abner was armed and dangerous. Second, Abner’s actions did not amount

to a furtive movement. Third, Abner’s hands were initially visible to the officers as he

walked to the vehicle and the only thing he was carrying was a Walgreen’s bag. Nothing

was observed that was suspicious or indiscernible.

       {¶ 19} In this case, the officers, by their own testimony, were simply investigating a

parking violation when they asked the men to talk to them. Both officers testified that the

parking lot was known as a high-crime area, and the manner in which the truck was parked

aroused their suspicions. Gustwiller testified that it was the location of the truck within the

parking lot that caused him to be concerned:
                                                                                            10

        {¶ 20} “Q: Okay. Officer I want to go back just for a second, too -- this specific

parking spot --

        {¶ 21} “A: Yes, sir.

        {¶ 22} “Q: -- where is it in relation to the front door of this Walgreen’s?

        {¶ 23} “A: This specific one is closer to the back of the Walgreen’s.

        {¶ 24} “Q: Based on your experience, did that cause you any concern?

        {¶ 25} “A: Yes, sir. Just due to the fact that it’s parked away from the general

entrance which most folks park up close to the entrance way -- yes, sir.”

        {¶ 26} Dedrick testified as to his experience with drugs in that parking lot: “We

found that the outer portions of the parking spaces around behind the Walgreen’s is most

often where we see the individuals that come to purchase the drugs park. They park there

and wait for phone calls to be directed out into the neighborhood where they further meet the

dealers.” However, Dedrick had previously testified that the truck was not parked behind

the Walgreen’s, but was “just a couple of parking spaces in from the entrance and exit.”

Furthermore, on cross-examination Dedrick was asked to mark the spot on defendant’s

Exhibit B where the truck was parked, and the spot he marked clearly shows that the vehicle

was parked in a parking space that fronted Salem Avenue and not in the parking spaces

located behind the Walgreen’s, which would have been a greater distance away. We note

that the trial court did not find that the truck was parked behind the store, but instead found

that the truck was not parked in one of the spots that would have been “handier” for entering

the store.

        {¶ 27} Additionally, given the circumstances, there is no evidence that the officers
                                                                                          11

should have been concerned for their safety.              Gustwiller initially testified on

cross-examination that appellant had been required to respond to him because of the

officer’s safety concerns in investigating a parking violation.           However, he later

contradicted himself and acknowledged that Abner was free to walk away.

        {¶ 28} “Q: And at that point, they’re under no obligation to come over to you; are

they?

        {¶ 29} “A: Yes, sir, because we are investigating a parking violation.

        {¶ 30} “Q: You were investigating a parking violation so you got to talk to

everybody?

        {¶ 31} “A: Yes, sir, for our safety -- yes sir.

        {¶ 32} “Q: It was plain that he wanted nothing to do with you.

        {¶ 33} “A: That is correct, sir.

        {¶ 34} “Q: Okay. Nevertheless, you decide you’re going to approach him.

        {¶ 35} “A: Yes, sir, for my safety.”

        {¶ 36} However, Gustwiller later admitted that appellant was really under no

obligation to speak to either officer, and had the right to walk away from the officers if he

chose to:

        {¶ 37} “Q: Well, you told him -- you said he had an obligation to come over when he

was summoned.

        {¶ 38} “A: Yes, sir, so we could continue our investigation and talk why they were

parked that way.

        {¶ 39} “Q: He doesn’t have any obligation to answer any questions; correct?
                                                                                           12

        {¶ 40} “A: We wanted to talk to him -- yes, sir.

        {¶ 41} “Q: I understand you wanted to but he’s under no obligation to comply with

your desire; is he?

        {¶ 42} “A: No, sir.

        {¶ 43} “Q: All right. Thank you. And he’s not, at that point, even obligated to say

anything to you; correct?

        {¶ 44} “A: Yes, sir.”

        {¶ 45} This court cannot conclude that Abner’s failure to comply with a request that

the officer acknowledged Abner was not obligated to comply with can justify the officers’

leap to the conclusion that their safety was in jeopardy. Gustwiller repeatedly testified that

he was investigating only a parking violation, which is not an inherently threatening

situation.

        {¶ 46} Gustwiller further testified that it was the failure of Abner to show his hands

upon request that was cause for concern:

        {¶ 47} “Q: Okay. And what, if anything, did you see him do with those hands?

        {¶ 48} “A: Both his hands, as soon as he had the door open, he stuck both his hands

inside the cab where I was unable to see them.

        {¶ 49} “Q: And when he did that, did you say anything to him?

        {¶ 50} “A: Officer Dedrick told him to show his hands.

        {¶ 51} “Q: Okay. And did he show his hands?

        {¶ 52} “A: No, sir, he did not.

        {¶ 53} “Q: Did that cause you concern?
                                                                                           13

       {¶ 54} “A: Yes, sir.”

       {¶ 55} However, on the direct examination of Officer Dedrick, no testimony was

offered regarding Abner’s failure to show his hands upon request:

       {¶ 56} “Q: Okay. So after the person that was going to the passenger side did not

comply, what did you do?

       {¶ 57} “A: I just took note of him.          As the driver walked toward me, Officer

Gustwiller noticed also that he wasn’t listening when I was asking him to come over to my

direction. Officer Gustwiller walked around the truck to meet him at the passenger door.

       {¶ 58} “Q: Okay. Once Officer Gustwiller met that person at the door what, if

anything, did you do with the person, the driver?

       {¶ 59} “A: After seeing what Officer Gustwiller -- it was a short time he had begun

placing the defendant in handcuffs after he had met him at the passenger door. Seeing that,

I had Joshua Mullis sit down on the curb just somewhere outside our cruiser there where we

were standing, just had him sit down on the sidewalk.”

       {¶ 60} There is no indication in the testimony by Dedrick that he had ever told

Abner to show his hands, even though Gustwiller stated that it was Abner’s failure to

comply with Dedrick’s request that justified his safety concerns. We note that this fact is

absent from the trial court’s analysis in overruling the motion to suppress. Also absent from

the court’s analysis is Gustwiller’s testimony that establishes that any attempt by Abner to

set the Walgreen’s bag down in the cab of the truck or to enter the truck would have

rendered the front portion of Abner’s body not visible to Gustwiller, who approached Abner

from behind and grabbed him.
                                                                                            14

        {¶ 61} This case is distinguishable from State v. Jarnigan, 2009-Ohio-1640, in

which we concluded that the defendant had in fact made a furtive gesture. In Jarnigan, the

defendant was seen making a grinding motion with her right hand between her legs after

failing to show officers her hands, a movement recognized as an attempt to conceal drugs.

In this case, however, Abner merely opened the car door and placed his hands inside the cab

of the truck. This movement alone does not amount to a furtive gesture. Abner was free to

simply put the Walgreen’s bag he was carrying onto the passenger seat. Abner was also free

to climb into the passenger seat of the truck, since, as previously stated, he was under no

obligation to speak to the police officers. On these facts, Abner’s act of putting his hands

into the truck cannot be construed as a furtive gesture, nor can his conduct lead to a

reasonable conclusion that he was armed and dangerous.

        {¶ 62} Furthermore, as we held in Schooler, 2004-Ohio-3578, even if Abner’s

actions could be considered a furtive gesture, this alone does not create a reasonable

suspicion of danger or criminal activity and cannot justify the seizure of Abner. Even

though the Phoenix Project is known as a high-crime area, a person’s action must still create

a reasonable suspicion of criminal or dangerous activity in order to justify a search, and such

activity, simply does not exist in this case. Like in Schooler, without any more factors to

consider, the alleged furtive gesture in this case does not warrant the officer’s seizure of

Abner. The so called “plain view” of the drugs in the front seat after Abner’s unlawful

seizure cannot be sanctioned, as it clearly is the fruit of the unlawful seizure of Abner’s

person in the first instance.

        {¶ 63} For the foregoing reasons, this court finds that Abner was improperly seized
                                                                                              15

at the side of the truck, rendering any subsequent discovery of the drugs the fruit of an

unlawful seizure. According to the officer’s testimony, Abner was free to walk away and

get in the truck while the officers investigated a parking matter, not a drug deal. Therefore,

we hold that the trial court erred in denying the motion to suppress. The judgment is

reversed, and this matter is remanded for further proceedings consistent with this opinion.



                                                                          Judgment reversed,

                                                                         and cause remanded.

                                            ..........

       FAIN, J., concurs.

       HALL, J., dissents.

       HALL, Judge, dissenting.

       {¶ 64} I agree that appellant, when walking to the passenger side of a vehicle parked

awkwardly in the lot at a Walgreen’s store, had no obligation to stop because there was an

absence of any reasonable and articulable suspicion that he was engaged in criminal activity.

 His failure to stop does not, and cannot, be interpreted as additional suspicion in and of

itself. Nevertheless, there is nothing improper about the officer’s continuing to follow him.

 Then, the officer saw appellant place both hands inside the cab of the truck, not just the

hand in which he was carrying a Walgreen’s bag.             Given the location, time, and

circumstances, the officer’s act of grabbing appellant by the shoulders and having him step

aside, revealing heroin in plain view on the seat, was reasonable. I would agree with the

trial court’s conclusion that “the movement of reaching into the pickup under all these
                                                                                           16

circumstances rises to the level of a furtive movement, which * * * justified the immediate

seizure of [appellant] for reasons of officer safety.” Therefore, I would affirm the denial of

the motion to suppress.

                                         ..........
