“So, what the state wants us to say is it is reasonable that after a police officer hears gunshots fired,to stop basically anyone in the area?”
Justice Stewart to the Prosecutor
“Are you saying that because he responded to their command ‘stop’ that’s indicia he was not engaged in any illegal activity?”
Chief Justice O’Connor to Defense Counsel
On January 29, 2019, the Supreme Court of Ohio heard oral argument in the case State of Ohio v. Jaonte D. Hairston, 2017-1505. At issue in the case is whether the reasonable suspicion standard, set forth in Terry v. Ohio, was satisfied during the search and questioning of Jaonte Hairston.
Case Background
Officer Samuel Moore and his partner, while responding to a domestic dispute, heard gunshots coming from what they believed was the nearby elementary school, which was just a few minutes drive away. It was nighttime. Upon arrival, the only person in the area was Jaonte Hairston, who was walking and talking on his cellphone. The officers got out of the cruiser with guns drawn and ordered Hairston to stop, which he did. Officer Moore questioned Hairston about the gun shots, asked Hairston if he had any weapons, and told Hairston to put his hands behind his back. The officers performed a pat-down search. Hairston told the officers he had a weapon, a semi-automatic pistol.
Hairston was later indicted and charged with violation of R.C. 2923.12, carrying a concealed weapon. Hairston filed a motion to suppress the evidence which, according to Hairston, was obtained by an unconstitutional search of his person. The trial court overruled Hairston’s motion to suppress, finding there was reasonable suspicion for the stop and pat-down search. The evidence obtained by the search was admitted. After entering a plea of no contest, Hairston was found guilty of violating R.C. 2923.12 and received a sentence of community control. Hairston appealed the denial of the suppression motion.
On appeal, the Tenth District, in a unanimous opinion, reversed the decision of the trial court. The appeals court held that the totality of the circumstances did not justify the stop or search of Hairston. Hairston did not exhibit any typical indications that would be expected of someone engaged in wrongdoing. His nervousness was not accompanied by evasive behavior, answers, or body language. Hairston cooperated fully with the officers and answered their questions truthfully. Further, none of the surrounding contextual factors support the assertion that reasonable suspicion existed. Simply being in a high-crime area is not enough to support a stop unless additional factors can be shown to demonstrate particularized suspicion of a particular individual. Because Hairston’s behavior and the surrounding circumstances were insufficient to establish reasonable suspicion, the evidence should have been suppressed. The state appealed.
Read the oral argument preview here.
Key Statutes and 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.)
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 the mere act of questioning does not constitute a detention for purposes of the Fourth Amendment.)
State v. Bobo, 37 Ohio St.3d 177 (1988) (The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. 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.)
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.)
State’s Proposition of Law Accepted for Review
When officers are responding to very recent gunfire in an area known for criminal activity, it is reasonable for the officers to have their weapons drawn and to briefly detain the only individual seen in the area.
At Oral Argument
Arguing Counsel
Sheryl L. Prichard, Assistant Prosecuting Attorney, Franklin County, for Appellant State of Ohio
Timothy E. Pierce, Assistant Franklin County Public Defender, for Appellee Jaonte Hairston
State’s Argument
Where officers hear gunfire, and respond immediately to the vicinity where the shots came from, they act reasonably in detaining the only person they encounter. When shots are fired in a neighborhood, the public’s interest in safety far outweighs a brief detention of a person to determine if he was involved.
The officers here heard 4-5 gunshots, coming from the west, near an elementary school. They immediately went to the scene in their cruiser, and arrived within 30-60 seconds. They had a fair sense of where these gunshots came from. They were near an elementary school, and in a neighborhood, and safety was paramount. They got out of the cruiser with weapons drawn. Having their guns drawn after hearing shots fired was a proportionate response to the situation. They saw no other cars or people except Mr. Hairston. He was the only one in the area. The officers asked Mr. Hairston if he had heard shots. He said that he had. Officer Moore asked Mr. Hairston to place his hands behind his back, and indicated he needed to pat him down. When asked, Mr. Hairston admitted he had a gun in his pocket, which the officer retrieved.
The officers acted reasonably by inquiring and finding out whether or not Mr. Hairston had a weapon. They did nothing more intrusive than was necessary to fulfill their duties and their duties to the public. They were making sure no one was in danger. Hearing gunshots, hearing them from that high crime area, finding only one person in the area, certainly provides reasonable suspicion that criminal activity may be afoot and that that may be the person involved.
In evaluating the legitimacy of a Terry stop, the totality of the circumstances must be examined. Here we have proximity, timing, and Mr. Hairston as the sole person in the area. Terry only requires reasonableness, not perfection or certainty. The interests of an individual and his privacy rights must be balanced against the officers’ interest in securing their safety and the safety of the public. This was a limited and reasonable detention by officers in responding to gunshots.
Hairston’s Argument
The decision the officers made that Mr. Hairston was engaged in criminal activity was unreasonable under the circumstances. What’s found in the search cannot be the justification for the search. There was a lack of reasonable articulable suspicion for the stop. Mr. Hairston made no furtive gestures, which this Court has held to be an indicia of criminal activity. He was not fleeing. The fact that he was simply in the area of shots fired was not enough. And the location of the gunshots was not nearly as precise as the prosecution suggests. At the motion hearing, the officer testified he had a “hunch” Mr. Hairston was engaged in criminal activity. (Justice French called Mr. Pierce out on this, noting that it was defense counsel, not the officer, who used the word “hunch”). None of this was enough to satisfy Terry.
Mr. Pierce went into great and specific detail about the geography of the area, to suggest the shots weren’t as close to where Mr. Hairston was found walking as the state suggested.
The defense is not suggesting that the officers couldn’t investigate this. But based on the metrics of the vagaries of where the shots came from, and Mr. Hairston’s behavior, there were alternatives to a forcible seizure, such as a consensual encounter. The officers could have asked Mr. Hairston what he was doing out there, asked for his identification, asked for permission to search him. Or they could have surveilled him for awhile, as was done in Terry. This was a forcible detention with no particularized suspicion. There was no nexus between Mr. Hairston and the shots fired. There was nothing in the record that showed anything other than merely being present.
Although it is after-the-fact, it is interesting to note that when the state went looking for shell casings in the area, they found none, which substantiates the difficulty of pinpointing exactly where shots fired are coming from.
What Was On Their Minds
Reasonable Suspicion
Is it reasonable under the circumstances for police officers to stop anyone that they see in an area suspected of having recently heard shots fired, asked Justice Stewart? Aren’t they going to approach with their guns drawn when they hear shots fired? Would it matter if they heard shots in a nice residential area rather than in a high crime area?
You are down to 10 minutes and I still haven’t heard why you don’t think there was reasonable suspicion here, commented Justice French to defense counsel.
Mr. Hairston’s Conduct
So what about Mr. Hairston’s conduct made him a suspect, or would lead the police to reasonably suspect that he might be involved in the shooting, asked Justice Stewart? Was he stopped for the officers to investigate, or because he was considered a suspect? His simply being there at that place and that time made him a suspect? Were the officers’ guns drawn on him? Should that matter? Once he did stop, did the police then have a right to pat him down or ask him if he had any weapons on him? When he said he had a weapon on him, should the officers have asked whether he had a CCW permit? Or is that even relevant?
Mr. Hairston cooperated, he didn’t run away, noted Justice Fischer. How were the police to question him when he was walking away if they didn’t ask him to stop?
Did Mr. Hairston just happen to be the only human being the police saw, asked Chief Justice O’Connor? Just because Mr. Hairston stopped when two officers with weapons commanded him to stop, was that an indicia of the fact he had nothing to hide?
Terry/Justification for the Stop
Was the justification for the stop that this is a known area where a lot of bad things happen, asked Chief Justice O’Connor? Combined with the fact that Mr. Hairston didn’t seem agitated or freaked out about the shots fired? What else were the officers to have done? Start knocking on doors? Keep their weapons holstered? I don’t know if you would find a reasonable standard among officers when they are approaching a scene where more than one shot was fired, not to have their weapons out, she commented.
Justice Donnelly commented that the trial court indicated this was a close call, but seemed to think that the dispositive fact was that the officers themselves heard the gunshots and were responding to that. Would the officers have been allowed to approach this person if they were just responding to a dispatch call or report and went into the area?
If the sole person on the street had been an 80 year old woman, would the response have been the same, asked Justice Stewart? Would the police have jumped out of their cruisers with guns drawn, and ask if she heard shots in the area and if she had a gun on her? Surely the law says, simply being in the vicinity is not enough? I keep going back to the Terry requirement that there must be reasonable suspicion that the person has committed or is about to commit a crime. How is one person on the street reasonably suspected of being the perpetrator of a crime? Doesn’t Terry require a reasonable suspicion that the person they are about to detain has committed or is going to commit a crime? Is the problem the command to stop with weapons drawn? To go past an investigative stop to an immediate detention?
Totality of the Circumstances
The police are allowed to use their experience, their perceptions, all the other skills, attributes, whatever, when they are making a decision to justify a Terry stop, noted Chief Justice O’Connor. Based on all of that, is that how the component of reasonableness is found?
After the Fact
If shell casings had been found later, would that make this all ok, asked Justice Stewart?
After the fact it may have proven that the shots weren’t fired that close to the elementary school, or to where Mr. Hairston was standing, commented Chief Justice O’Connor. But the facts that the officers have to take into consideration have to be what they understood the facts to be at the time, based on the reasonableness of their perceptions, and obviously, we are looking at that against an objective standard.
Area Where Shots Fired
Didn’t Mr. Hairston point farther way when the police talked to him, asked Justice Fischer? Is that a factor?
What kind of area was it, asked Chief Justice O’Connor? Was it a big, open flat area that you could see, blocks and blocks away, or was this a neighborhood? It took the officers about a minute to get there? Enough time for someone to leave the area either on foot or by car?
They did respond to the school complex didn’t they, asked Justice French? Where the elementary school, the fields, and the high school are?
How it Looks From the Bleachers
To Professor Emerita Bettman
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. I thought defense counsel spent too much time waxing philosophically on the evils the Fourth Amendment is designed to protect against. Justice French chided him that after five full minutes of argument, he still hadn’t zeroed in on why he didn’t think there was reasonable suspicion here. I also thought Mr. Pierce went into way too much detail about the geography of the area.
Still, even as I write this, I remain troubled by 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. As the trial court noted, this is a very close case, and I hope the defense can pull this one out.
To Student Contributor Paul Taske
This looks like a win for Hairston. The Court was thorough in its questioning of both parties. Yet, during the State’s argument the justices appeared incredibly skeptical at nearly every point. Justice Stewart seemed highly concerned with the State’s assertion that the timing, location, and “only suspect” conditions offered by the State gave rise to reasonable suspicion under Terry. The Court also raised issues during Hairston’s argument; yet, the issues raised seemed more as if the court were trying to refine its own holding rather than challenging the fundamentals of Hairston’s argument. I think it highly likely that the Court will find the officers lacked reasonable suspicion in this case, but the underlying doctrine will remain in place.