“But the most important considerations here are that the stop occurred very close in time to the gunshots and Hairston was the only person in the area from which the shots emanated… these facts, taken together and viewed in relation to each other, rise to the level of reasonable suspicion.”
Justice DeWine, Majority Opinion
“Although the majority correctly observes that the Fourth Amendment’s reasonable-suspicion requirement does not deal in certainties, it forgets that the requirement also does not deal in unsupported guesses and hunches… And yet today, the majority announces that in the seventh most populous state in the nation, a guess and a hunch are sufficient for a Terry stop.”
Justice Stewart, Dissenting Opinion
On May 2, 2019, the Supreme Court of Ohio handed down a merit decision in State v. Hairston, Slip Opinion No. 2019-Ohio-1622. In a 5-2 opinion written by Justice DeWine, the Court upheld a Terry stop of the lone individual in an area near recent shots fired. Justices French, Kennedy and Fischer joined the majority opinion. Justice Donnelly concurred in judgment only. Chief Justice O’Connor wrote a solo dissent. Justice Stewart also dissented, in an opinion joined by the Chief. The case was argued January 29, 2019.
Case Background
Two Columbus police officers heard the sound of gunshots while they were responding to a radio call about a domestic dispute. It was about 9:20 p.m. The shots seemed to be coming from a nearby elementary school, so the officers immediately jumped into the cruiser and rushed to the area, which was less than a minute away. There, they encountered only one person, later identified as Jaonte Hairston, who was walking away from the school, into a crosswalk, while talking on his cell phone. The officers got out of the car with guns drawn and ordered Hairston to stop, which he did. When questioned about the gunshots, Hairston said he had heard them. Officer Moore then asked Hairston if he was carrying any weapons. Hairston said he had a gun. Officer Moore patted him down, retrieved a handgun from Hairston’s jacket, and arrested him.
Hairston was charged with carrying a concealed weapon. He filed a motion to suppress on the grounds that the officers did not have reasonable, articulable suspicion to detain him. The trial court denied the motion. Hairston was found guilty and sentenced to community control.
On appeal, the Tenth District, in a unanimous opinion, reversed the decision of the trial court, finding there was no particularized connection between Hairston and the gunshots, and that Hairston’s actions did not amount to reasonable suspicion.
Read the oral argument preview here and an analysis of the argument here.
Key Precedent
United States Constitution, Amendment IV (The right of the people to be secure in 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.)
R.C. 2923.12 (No person shall knowingly carry or have a concealed deadly weapon other than a handgun.)
Terry v. Ohio, 392 U.S. 1 (1968) (When police officers have a reasonable suspicion that a crime has just occurred or is about to occur they may engage in a limited search of a person to check for weapons. Any such search must be reasonable given the totality of the circumstances and need not meet the higher standard of probable cause.)
Adams v. Williams, 407 U.S. 143 (1972) (When police make a reasonable investigatory stop they should not be denied the opportunity to protect themselves from attack from a hostile object or weapon.)
United States v. Cortez, 499 U.S. 411 (1981) (Reasonable suspicion means a suspicion particularized for a given person or persons. To satisfy the particularity requirement, two elements must be met before a stop is permitted. First, the assessment must be made on the totality of the circumstances. Second, the assessment must raise a suspicion that a particular individual is engaged in wrongdoing.)
INS v. Delgado, 466 U.S. 210 (1984) (A reasonable person is aware that he or she may refuse to leave when questioned by police and is aware that the mere act of questioning does not constitute a detention for purposes of the Fourth Amendment.)
United States v. Hensley, 469 U.S. 221 (1985) (Police officers may take reasonable steps necessary to protect their safety and maintain the status quo.)
United States v. Hardnett, 804 F.2d 353, 357 (6th Cir.1986) (A show of force during a reasonable suspicion stop does not convert the stop into an arrest.)
State v. Bobo, 37 Ohio St.3d 177 (1988) (When considering the totality of the circumstances, the officer must rely on specific and articulable facts which would lead a reasonable officer to conclude a temporary stop is necessary.)
United States v. Sokolow, 490 U.S. 1 (1989) (Although the reasonable suspicion standard requires an officer to articulate a basis for the stop, the reasonable suspicion standard is considerably less burdensome on the officer than probable cause.)
State v. Batchili, 2007-Ohio-2204 (The reasonableness of a detention is based on the circumstances as a whole and may not be examined individually for unreasonableness. The circumstances will not be deemed unreasonable even if they are deemed to have innocent explanations after the fact.)
Merit Decision
Executive Summary
The majority finds that when taken together, the facts provide reasonable, articulable suspicion for the stop.
The dissenters do not think so, finding no particularized suspicion centering on Mr. Hairston in the case.
Majority Analysis
Reasonable Suspicion Existed to Stop Hairston
Reasonable suspicion must be based on the totality of the circumstances. (All the justices agree on this point). These are the cumulative facts that support reasonable suspicion in this case: the officers did not rely on a dispatcher about the shots, but heard them personally; Officer Moore had worked that beat for six years and personally knew it was a high crime area, especially at night; the stop took place after dark; and Hairston was the only person around the area where the shots came from.
Where the Court of Appeals Went Wrong
The appeals court wrongly focused on individual factors in isolation instead of on the totality of the circumstances. While individual factors in isolation may not have been sufficient for reasonable suspicion, taken together, they were.
Stop Did Not Become An Arrest
Finally, the majority rejected Hairston’s argument that by approaching him with guns drawn, the officers placed him under arrest, and they lacked probable cause to do so. The officers’ suspicions and all the surrounding circumstances, plus the right of police officers to protect their own personal safety, justified approaching Hairston with guns drawn, and did not convert the stop into an arrest.
Justice Donnelly’s Concurrence in Judgment Only
Donnelly’s first point was that the Court should dismiss the appeal as improvidently accepted, as it did nothing more than review a typical Terry stop, and thus engage in nothing more than error-correction.
Addressing the merits, for Donnelly the key facts were that Officer Moore had personally heard the shots, immediately went to the location where the sound had come from and found Hairston in the street in that area. Because Hairston was close to the crime in both time and place, Donnelly would uphold the trial court’s finding of reasonable suspicion. While he agreed with the trial court that this was a close call, and he understood why the appeals court found as it did, in his view the appeals court improperly usurped the fact-finding role of the trial court in the case.
Chief Justice O’Connor’s Dissent
The Chief would find that the facts known to the officers at the time lacked particularized suspicion that Hairston was engaged in criminal activity.
The points the Chief emphasized were that Officer Moore noted slightly different facts on the arrest form than he testified to at the suppression hearing, particularly the location of the gunshots. “West, near the elementary” was as close as Officer Moore could really come to pinpoint the gunshot location, which he later testified to as a “guestimate.” On that report Officer Moore also verified that he did not ask Hairston if he had any weapons on him until after his hands were behind his back—after, not before, a forcible stop had occurred.
So, to the Chief, while some individual factors—the stop occurred close in time to shots, and Hairston was the only person in the area- supported reasonable suspicion here, the totality of the circumstances did not. She points out that the shots were not particularly close in location and Officer Moore simply stopped the first person he saw while driving in the general direction he thought the shots had come from.
“In this case, the gunshots were not particularly close, the officer’s only definite suggestion as to the location of the shots was ‘west,’ and there was no direct evidence implicating Hairston,” she wrote.
The Chief also challenged the assertion that Hairston was the only person in the area when he was stopped, noting that while he might have been the only person seen, this was a dense, residential neighborhood, with many people and many places to hide.
“The majority is lowering the Terry standard well below what the Constitution allows,” she wrote.
Justice Stewart’s Dissent
Justice Stewart defines the issue in the case as “whether a person’s presence near a location police thought gunshots had recently been fired from amounts to particularized suspicion sufficient to conduct an investigatory stop.” The answer to her is a clear no. The focus of her dissent is on the lack of particularized suspicion in this case. She also chides the majority for adopting a “gunfire” exception to the Fourth Amendment’s particularity requirement in the case.
The Trial Judge Was Wrong
Justice Stewart criticized the trial judge for applying an incorrect subjective standard in denying Hairston’s suppression motion, particularly the court’s finding that “what’s a reasonable suspicion probably varies from one individual to the next.” The standard is supposed to be objective, not subjective, and she calls out the majority for not discussing this. She believes the trial court likely improperly deferred to Officer Moore’s personal view of the situation instead of using independent judgment about what a reasonable prudent officer would do under like circumstances.
Lack of Particularized Suspicion
Justice Stewart’s dissent keys in on the lack of particularized suspicion. All there is here was Hairston walking across a street in the area where Officer Moore “guestimated” the shots might have come from. To Stewart, neither the trial court’s finding that Hairston was the only person in the area nor Officer Moore’s guess about the location of the shots was supported by competent credible evidence. Officer Moore’s testimony was he didn’t recall seeing anyone else nearby. That’s not the same as being sure of this. It was a densely populated neighborhood. Nor was there anything in Officer Moore’s testimony that suggests his “guestimate” about the location of the gunfire was anything more than a guess, which lacks objective indicia of reliability.
By Officer Moore’s own testimony, Hairston was doing nothing suspicious when the officer saw him. He was just walking along, talking on his cell phone. He only appeared nervous after two officers got out of their police cruiser with guns drawn, and ordered him to stop.
The Appeals Court Was Correct
It was just this lack of factual specificity connecting Hairston to suspected criminal activity that led the appeals court to uphold the motion to suppress. Contrary to the majority’s criticism, the appeals court did not look at individual factors in isolation. Rather, it properly examined the totality of the circumstances. In doing so, that court properly concluded that what was missing in all the factors was any reason why Hairston in particular was being stopped. Absent that, the other factors have little importance.
No Such Thing As Gunfire Exception
The state argued the police must be able to respond “differently” when reacting to gunfire. They must be in complete command of the scene and be able to protect themselves and others by having their guns drawn and to get information for those at the scene. But the U.S. Supreme Court has expressly rejected just such a firearm exception in Florida v. J.L.
Bottom line: there is no special exception to the particularity requirement of the Fourth Amendment for gun cases, even though the majority seems to think there is or should be.
Chief Justice O’Connor joined this dissent.
Case Syllabus
None
Concluding Observations
After argument, I expressed my concerns about the lack of any particularized suspicion centering on Mr. Hairston, other than his simply being present in a what was characterized as a high crime area. I wrote:
“I went in thinking this should be a walk away win for Hairston. He was simply the only person in an area in which the police thought shots had been fired, walking down the street, talking on his cell phone, doing nothing overtly suspicious. He exhibited none of the indicia of what the Court has in the past held to be suspicious behavior. Just being there, as Justice Stewart put it. But after argument, I wasn’t so sure, in part because I thought the prosecutor made a more effective argument than defense counsel.
“Despite rigorous questioning, especially from Justice Stewart on the particularized suspicion requirement of Terry, Ms. Pritchard effectively contextualized the proximity, timing, and urgency here, and the fact that the police are allowed to use their experience, observations, and other skills in deciding to make a Terry stop.”
So, as I suspected, the state did pull this one out. I would have voted with Justice Stewart. And I agree with Justice Donnelly that accepting this case was curious in that it was just a straightforward review of a Terry stop, essentially nothing more than error correction. I heard a lot of these kinds of appeals when I was on the First District, and was always fascinated about how differently judges see and evaluate reasonable suspicion. This decision does have value in showing how the present compliment of justices evaluate the state’s justifications for such a stop.