Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Also see Informants;
Search and Seizure; Arrest;
Admissions and Confessions.
Terry weapons frisks
Terry weapons frisks - vehicle stops
Justification - people
Justification - vehicles
Justification - vehicles - knowledge of officer
Justification - vehicles - erratic driving
Justification - vehicles - occupants
Justification - other property
Secondhand and broadcast information
State v. Dickerson,
179 Ohio App. 3d 754,
2008-Ohio-6544 – Stop of vehicle to write a loose license plate citation was
justified. So was a weapons frisk after the driver fled and jettisoned
marijuana. But seizure of a pill bottle was not. Having satisfied himself the
object was not a weapon, a Terry frisk may not be used as a pretext for a search
Florida v. J.L.
(2000), 529 U.S. 513, 120 S.Ct. 1375 -- An anonymous tip that a person is
carrying a gun is, without more, is not sufficient to left a police officer's
stop and frisk of that person. There is no "firearm exception" to the general
rule barring investigatory stops based on bare-bones anonymous tips. Mere
physical description of the suspect does not provide sufficient corroboration.
Applied: State v. Morrison (2000), 138 Ohio App. 3d 168; State v.
Riley (2001), 141 Ohio App. 3d 409.
State v. Skaggs (1999), 134 Ohio App. 3d
162 -- Officers had a basis to make a Terry
stop, but did not have a basis for additionally believing the suspect might be
armed, warranting a weapons frisk for their protection.
State v. Kolb, Montgomery App. No.
2005-Ohio-1209 -- Defendant ran into location of a police stop and seemed
surprised to see the officers. He jammed his hands into his pockets and asked
what was going on. When he removed his hands as directed, one pocket "was full
of stuff." Officers hunch there might be a gun was unparticularized. Suppression
motion should have been sustained.
State v. Scasny, Ross App. No.
2004-Ohio-4918 -- Terry permits searches for weapons, not
contraband. Officer gave no adequate basis for his search of the defendant,
including his wallet where LSD was found. But since the officer had sufficient
grounds to arrest the defendant for another offense, search is upheld as a
search incident to arrest.
State v. Clark (2000), 139 Ohio App. 3d
183 -- Tip to housing authority police did not left investigative detention, but
even if it had, Terry frisk well into period of detention was
unwarranted. Defendant had been cooperative and no additional information
surfaced warranting frisk officers had foregone at time of initial contact.
State v. Mackey (2001), 141 Ohio App. 3d
604 -- Thick overalls prevented an adequate weapons frisk, so it was permissible
to unhook the bib to frisk inner clothing. Helps that officer began with frisk
of outer clothing instead of just reaching into pockets. Concurring judge
questions how often weapons are found between the buttocks, which was where
drugs were found in this case.
State v. Jackson, 165 Ohio App. 3d 271,
2006-Ohio-262 -- Officers executing a search warrant at a boot joint frisked the
defendant for weapons, but found cocaine.
Ybarra v. Illinois, (1979), 444 U.S. 85 distinguished as officers
articulated a sufficient basis for a weapons frisk encompassing mention of
weapons as subject of the search and personal experience of the officer that
patrons might be armed.
Terry v. Ohio (1968), 392 U.S. 1 -- (1)
The Fourth Amendment right against unreasonable searches and seizures applies to
people on the street and not just while they are in their homes. (2) When a
police officer has stopped a person on the street and restrains his freedom to
walk away, there has been a seizure for purposes of the Fourth Amendment. (3) A
pat down of the external portion of that person's clothing is a search for
purposes of the Fourth Amendment. (4) Where a reasonably prudent officer is
justified, based on the surrounding circumstances, in believing that a pat down
for weapons is justified for the safety of himself or others he may do so even
in the absence of probable cause for the arrest of the individual who has been
detained. At page 27: "(I)n determining whether the officer acted reasonably in
such circumstances, due weight must be given, not to his inchoate and
unparticularized suspicion or "hunch," but to the specific reasonable inferences
which he is entitled to draw from the facts in light of his experience." (5) The
exclusionary rule is a remedy when the stop and frisk was not legally justified.
Ybarra v. Illinois (1979), 444 U.S. 85
-- Warrant to search tavern and the person of the bartender did not
automatically permit search or weapons frisk of patrons. Also see State v.
Croft (April 1, 1982), Franklin Co. App. No. 81AP-803, unreported (1982
Opinions 886) -- Police were not authorized to conduct weapons frisk of all
patrons of unlicensed bar during a raid.
State v. Farmer (1984), 21 Ohio App. 3d 77
-- Terry frisk was justified where subject was found on the steps of a
building about to be searched at night and had no ready explanation for his
presence. Also see State v. McGlown
(1982), 3 Ohio App. 3d 344.
State v. Moody (1985), 30 Ohio App. 3d 44
-- Weapons frisk was justified where the defendant, during a routine liquor law
inspection at a bar, upon being asked for identification became belligerent and
kept his hand in the pocket of his field jacket.
State v. Freeman (1980), 64 Ohio St. 2d
291 -- Paragraph one of the syllabus: "The propriety of an investigative stop by
a police officer must be viewed in light of the totality of the surrounding
State v. Warren (1998), 129 Ohio App. 3d
598 -- (1) A Terry stop requires a reasonable articulable suspicion
criminal activity is afoot, but a Terry
frisk further requires a reasonable suspicion the suspect is armed. Mere
presence in a high crime area does not left routine frisks of all detainees. (2)
Contraband was discovered only after officer felt a lump and asked what it was.
Suppression required under the fruit of the poisonous tree doctrine.
Hayes v. Florida (1985), 470 U.S. 811 --
Absent probable cause for arrest, judicial authorization or consent, taking a
suspect to the police station for purposes of fingerprinting is beyond the scope
of a Terry stop and frisk, and the results are to be suppressed. Also see
Davis v. Mississippi
(1969), 394 U.S. 721.
State v. Daniel (1992), 81 Ohio App. 3d
325 -- Court construes initial approach to defendant as not being a seizure for
Fourth Amendment purposes, but then concludes that reaching into pocket after
being asked to produce identification justified frisk for weapons.
State v. Marni (1992), 78 Ohio App. 3d 279
-- Stop and frisk was not warranted where officer had followed car to owner's
apartment building, observed broken rear window and mirror on floor of passenger
compartment, but indicated no specific reasons indicating fear for his own
safety after approaching the defendant who had identified himself as the owner
of the car.
State v. Jenkins (1982), 24 Ohio Ops. 3d
106 -- There was no basis for a Terry
frisk when defendant was simply seen talking to others in a high crime area,
without doing anything illegal or which would raise a suspicion of illegal
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Terry weapons frisks - vehicle stops
Arizona v. Johnson
(2009), 129 S.Ct. 781 – Car was lawfully stopped by officers assigned to the
Tucson police department gang unit. Passenger was asked to step out so an
officer could question him regarding gang activity out of the hearing of the
driver. In the view of the Arizona Court of Appeal, this converted an
investigative detention to a consensual encounter. Thus the officer was not
permitted to conduct a weapons frisk absent reasonable suspicion the passenger
was engaged in criminal activity. Reversed. Frisk was valid provided the
detention was not measurably prolonged by questioning on matters not related to
the initial stop. Opinion is a primer on what is permitted during vehicle stops.
State v. Lozada 92 Ohio St. 3d 74,
2001-Ohio-149 -- Syllabus: "During a routine traffic stop, it is reasonable for
the officer to search the driver for weapons before placing the driver in a
patrol car, if placing the driver in the patrol car during the investigation
prevents officers of the driver from being subjected to a dangerous condition
and placing the driver in the patrol car is the least intrusive means to avoid
the dangerous condition. (2) During a routine traffic stop, it is unreasonable
for an officer to search the driver for weapons before placing him or her in a
patrol car, if the sole reason for placing the driver in a patrol car during the
investigation is for the convenience of the officer." Also see State v.
Dabney, Belmont App. No. 92 BE 31,
2003-Ohio-5141. (Unreasonable to place
passenger in rear of cruiser after already frisking him for weapons and cuffing
him behind the back.)
State v. Phillips, 155 Ohio App. 3d 149,
2003-Ohio-5742 -- (1) Stop based on lack of front plate was justified. Plate
must be on the front of the vehicle, not lying on the dashboard. (2) Officers
failed to articulate further justification for a weapons frisk. At ¶ 32:
"Bulging pockets do not connote crimes or weapons when they have no specific
nexus to criminal activity, and there was none here. Defendant's response that
'Nothing' was inside was so patently untrue as to be more an annoyed rejoinder
than a false report. The fact that this was a 'high crime area' does not cast
these otherwise unremarkable events in a criminal light."
State v. Perkins (2001), 145 Ohio App. 3d
583 -- Officers searched car for weapons while defendant was in cruiser, before
any decision had been made whether he would be permitted to return to his car.
Only justification advanced by prosecutor was that the search was justified as a
protective weapons search allowed by Terry. Suppression was ordered by
the trial court and affirmed by the court of appeals, which declined holding a
warrant was not required. Concurring opinion suggest search might have been
justified on other grounds.
State v. Daniels, Stark App. No.
2003-Ohio-2492 -- Flight into a motel room in an area known for
drug use justified knocking on the room door.
State v. Evans (1993), 67 Ohio St. 3d 405
-- Syllabus: "(1) The driver of a motor vehicle may be subjected to a brief
pat-down search for weapons where the detaining officer has a lawful reason to
detain said driver in a patrol car. (2) When an officer is conducting a lawful
pat-down search for weapons and discovers an object on the suspect's person
which the officer, through his or her sense of touch, reasonably believes could
be a weapon, the officer may seize the object so long as the search stays within
the bounds of Terry v. Ohio (1968), 392 U.S. 1..." See discussion at pp.
414-416 as to further search where object felt is not clearly a weapon. Officer
may not remove objects simply on the grounds that they might contain a small
weapon such as a razor blade. Compare State v. Armstrong (1995), 103 Ohio
App. 3d 416, which should turn on the trial court's mistaken reference to
probable cause rather that reasonable articulable suspicion, but instead
circumvents the syllabus rule of Evans.
Michigan v. Long (1983), 463 U.S. 1032,
1049-1050 -- "...(T)he 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 based on 'specific and
articulable facts which, taken together with the rational inferences from those
facts, reasonably warrant' the officer in believing that the suspect may gain
immediate control of weapons."
State v. Bobo (1988), 37 Ohio St. 3d 177
-- Paragraph two of the syllabus: "Where 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." Also see State v. Chapman
(1992), 73 Ohio App. 3d 132, 134-135; State v. Smith (1978), 56 Ohio St.
2d 405 (abnormal or furtive behavior by subject stopped for traffic violation
may left Terry
frisk); State v. Kessler (1978), 53 Ohio St. 2d 204; State v. Bohler
(1977), 59 Ohio App. 2d 327; State v. Moncrief (1980), 69 Ohio App. 2d 51
(high crime area after dark, police outnumbered by occupants); State v.
Harris (1987), 36 Ohio App. 3d 106.
State v. Townsend (1991), 77 Ohio App. 3d
651 -- Police lacked authority to conduct Terry frisk of passenger in car
whose driver was apparently being taken into custody. Frisk could not be
justified as a safety precaution before placing defendant in a cruiser to drive
him to a phone in order to make arrangements for car to be driven away since car
had a cellular phone, nor was there any reason why the defendant could not have
walked to a phone. Failure to identify himself to the officers' satisfaction did
not left frisk.
State v. Mason (1996), 115 Ohio App. 187
-- Though speeding usually leads to a summons and not arrest, failure to produce
license would have justified arrest. Thus weapons frisk before being placed in
cruiser was proper.
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Justification - people
State v. Hodges, 183 Ohio App. 3d 160,
2009-Ohio-3378 – Officers ordered defendant out of a parked van after seeing
a passenger wave to women in another vehicle, then return to the van as the
women drove off after spotting the cruiser. Trial court properly ordered
suppression of gun found in the van. Mere presence in a high drug area does not
suspend the protections of the Fourth and Fourteenth Amendments.
State v. Cosby, 177 Ohio App. 3d
2008-Ohio-3862 - - Activating cruiser beacon and aiming
spotlight at the defendant amounted to a seizure, not a
consensual encounter. Further ordering the defendant to stop as
he approached the cruiser further supports this conclusion.
Simply being in a high crime area at 4:00 a.m. and waiting
through two walk/don‘t walk cycles did not provide reasonable
suspicion warranting investigative detention. After the
defendant was in the spotlight he dropped a bag of crack and
stood on it. This did not constitute abandonment since it was
precipitated by police action.
State v. Gulley, 181 Ohio App. 3d
2009-Ohio-692 – Police saw two pedestrians walking in the
roadway on a snowy night. One appeared impaired, the other did
not. Defendant, who was not impaired, walked away from officer,
was ordered to stop, grabbed, and jettisoned a baggie of crack
during a struggle that took him to the ground. While the
officers did not have reasonable suspicion that he was involved
in criminal activity, they were justified in detaining the
defendant while inquiring into the condition of his companion
who appeared to need assistance.
State v. Jordan, 104 Ohio St. 3d 21,
2004-Ohio-6085, ¶30-62 -- Partially corroborated anonymous tip did not left
investigative detention, but upon arrival of an officer in a marked vehicle the
defendant's calling out, followed by flight of an associate, did.
State v. Davis (2000), 140 Ohio App. 3d
659 -- Apartment was under surveillance in preparation for execution of search
and arrest warrants. Defendant was seen leaving the apartment and stopped, even
though he did not match the description of the suspect. Nor was there any other
basis for reasonably believing him to be engaged in unlawful activity. Evidence
was properly suppressed.
State v. Washington (2001), 144 Ohio
App. 3d 482, 490 -- The actions of a DEA agent who stopped the defendant at an
Amtrack station as a suspected drug courier contributed to a reasonable belief
that he was not free to go. Thus there was a seizure. Nervousness was only
slightly probative of wrongdoing. Travelling under an assumed name raised only a
generalized suspicion, and might have been indicative of other behavior, such as
marital infidelity. Thus investigative detention was unjustified, and consent to
search luggage was not voluntary. Compare State v. Alexander, 151 Ohio
App. 3d 590,
Illinois v. Wardlow (2000), 528 U.S. 119,
120 S.Ct. 673 -- Flight at the approach of a police officer, in an area of known
drug trafficking, justifies a Terry
detention. Court adheres to its holding in Florida v. Royer (1983), 460
U.S. 491 that an individual approached by an officer without reasonable
suspicion may ignore the police and go about his business.
Brown v. Texas (1979), 443 U.S. 47 --
Police were not entitled to stop the defendant, who was seen walking in an area
with high incidence of drug trafficking, and demand ID, relying on a Texas
statute making it a crime for a person to refuse to identify himself to a police
officer, but without any particularized suspicion of wrongdoing.
Michigan v. Summers (1981), 452 U.S. 692
-- Permissible for officers executing a search warrant to detain person
descending front steps. For Fourth Amendment purposes, a warrant to search for
contraband, founded on probable cause, implicitly carries with it the limited
authority to detain the occupants of the premises while a proper search is
conducted. The reasonableness of the temporary detention is determined by
balancing the character of the official intrusion and its justification.
State v. Gonsior (1996), 117 Ohio App. 3d
481, 486 -- "In order to create a basis in law to effect a search...the basis of
an officer's suspicions requires some nexus between the individual he detains
and some specific criminal conduct. Further, that basis must be articulated by
the officer or hypothesized from the totality of facts and circumstances before
him." Officer tried to left detention of a group of young men citing his belief
they did not belong in the area and acted suspiciously as he approached. Motion
to suppress should have been sustained. Also see Akron v. Little (1998),
94 Ohio Misc. 2d - Motorist paused before getting out of car and going into
United States v. Bautista (9th Cir. 1982),
684 F. 2d 1286, 1289 -- "Race or color alone is not a sufficient basis for
making an investigatory stop... However, race can be a relevant factor." Also
see United States v. Brignoni-Ponce (1975), 422 U.S. 873, 886-887;
United States v. Malides
(9th Cir. 1973), 473 F. 2d 859, 862.
State v. Berry (1995), 104 Ohio App. 3d
301 -- While under observation, defendant left the porch where he was seated to
hold a conversation with the driver of a car which stopped briefly. Stop and
frisk was not warranted. Dissenting judge would give great weight to the police
officer's intuition, seemingly the sort of "inchoate hunch" held not to be an
adequate basis in other cases.
State v. Walker (1993), 90 Ohio App. 3d
132 -- Mere fact that the defendant ran when approached by officers in an area
of high drug activity did not left investigative stop. Compare State v. Curry
(1994), 95 Ohio App. 3d 93 where the additional facts include display of
something held in a hand to another pedestrian, refusal to identify self when
tackled, refusal to remove hand from pocket where a weapon might have been
concealed, and the drugs were discarded before being seized. But see dissent.
Also compare State v. Alexander (1997), 120 Ohio App. 3d 164.
State v. Freeman (1980), 64 Ohio St. 2d
291 -- Detention justified by subject being seen sitting alone in a parked car
for twenty minutes in the middle of the night in a high crime area where the
officer was aware of recent criminal activity.
State v. Chandler (1989), 54 Ohio App. 3d
92 -- Headnote 2: "A person's mere presence in an area of high crime activity
does not suspend the protections of the Fourth and Fourteenth Amendments to the
United States Constitution."
State v. Brown (1992), 83 Ohio App. 3d 673
-- Defendant was walking down the street with a person seen to be carrying an
open container. Mere proximity to another person committing an illegal act did
not left detention and frisk, nor were police justified in further investigating
opaque brown paper bag found during the pat down (which contained marijuana).
For a case involving the same facts, see State v. Lockett (1994), 99 Ohio
App. 3d 81, 82: "The drug problem facing this country notwithstanding, the
United States of America remains a free country, and its citizens are not under
any legal obligation to give reasons why they live or walk in their
neighborhoods, even if their neighborhoods are not so affluent and bubbling with
wealth and prestige."
State v. Nealen (1992), 84 Ohio App. 3d
235 -- White defendant was approached by officers by officers in a black
neighborhood with a known incidence of drug trafficking. He dropped two rocks of
crack after being asked what was concealed in his fist. Held to be an unlawful
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Justification - vehicles
State v. Brown,
183 Ohio App. 3d 337,
2009-Ohio-3804 – Stop by Highway Patrol officer was pretextual, but was
valid as there was probable cause based on following a semi too closely. However
the detention was improperly extended beyond the time needed to resolve the
basis for the stop. Essentially the opinion faults drug interdiction tactics the
patrol evidently trains, including separation of the driver and vehicle,
separate questioning of driver and passenger as to details of their travel, and
requesting permission for consent to search the vehicle. ¶19: "This court has
identified '[v]arious activities, including following a script, prolonging a
traffic stop in order to "fish" for evidence, separating an individual from his
car and engaging in "casual conversation" in order to observe "body language"
and "nervousness" [that it has] deemed (depending on the overall facts of the
case) to be manipulative practices which are beyond the scope of, " * * * the
fulfillment of the purpose for which the stop was made."'" Quoting
State v. Bevan (1992), 80 Ohio App. 3d 126, 130 and
State v. Correa (1995), 108 Ohio App. 3d 362, 368.
Starkey, 183 Ohio App. 3d 215,
2009-Ohio-3276 – Highway Patrol officer was looking for a
possible drunk walking in the roadway spotted a Camaro stopped
beyond a stop sign at a T-intersection. No infraction was
claimed. Turning on his beacon before approaching made the stop
an investigative detention, not a consensual encounter. Under
the totality of the circumstances the officer did not have
reasonable suspicion of criminal behavior.
Patrick, 153 Ohio Misc. 2d 20,
2008-Ohio-7142 – Deputy passed bicyclist lawfully riding two
abreast, but followed by other vehicles. He stopped and told the
defendant to stop. The defendant rode on. Back in the cruiser,
now with lights on, he drove ahead, then blocked the road. Again
the defendant rode on. The officer stopped a third time just
before the bridge to West Virginia at Chesapeake and tasered the
defendant. Motion to suppress granted. There was no
justification for a Terry stop or arrest as there was no
violation of the law observed. The defendant had a fundamental
right under the Fourth Amendment to be left alone.
Hageman, 180 Ohio App. 3d 640,
2009-Ohio-169 – Officer claimed defendant make an improper
left turn because he entered the curb lane rather than the lane
closest to the center line.
4511.36 and an equivalent municipal ordinance seemingly do
not bar turning into the curb lane, but, in any event, apply
only to "intersections." Officer was not sure whether defendant
made the turn from a cross street or a bowling alley. The exit
from a parking lot is not an intersection within the definition
R.C. 4511.01(KK). Thus the officer did not have a reasonable
basis for the stop.
Carr, 173 Ohio App. 3d 436,
2007-Ohio-5466 – DNR officer on routine patrol at Buckeye
Lake stopped a pontoon boat for a safety inspection. This led to
an OVI conviction.
R.C. 1547.521(A)(4), which broadly authorizes such
inspections, does not trump the constitutional requirement of
reasonable suspicion. Circumstances are different than in other
cases involving lights or passage through a no wake zone, since
the defendant did nothing unlawful. Absent reasonable suspicion,
safety inspections may only be performed through a checkpoint
procedure designed to limit the discretion of officers.
Lewis, 179 Ohio App. 3d 159,
2008-Ohio-5805 – License plate check on a car came back
clean, but a deputy in another county asked the city officer who
had run the check to look for the car because he had "paperwork"
for the registered owner. City officer parked behind car when
she spotted the car backing out a driveway. This amounted to
detention with the required suspicious circumstances suggesting
criminal activity. Fruits of the stop must be suppressed,
presumably being the officer‘s observations leading to field
sobriety testing and an OMVI charge.
State v. Bacher,
170 Ohio App. 3d 457,
2007-Ohio-727 -- Driving 42 or 43 mph in a 65 zone does not justify pulling
the motorist over, unless it is below a posted minimum speed limit or other
traffic is impeded, notwithstanding that the motorist acted like a drunken
buffoon after he was stopped.
State v. Farris, 109 Ohio St. 3d 519,
2006-Ohio-3255 -- Continued detention of speeder was justified based on slight
odor of burnt marijuana. Questioning in the front seat of a cruiser was
custodial. Pre-Miranda admissions were not rendered admissible by repetition
following advisement. Under the Ohio Constitution, evidence found in trunk is
suppressible. Without admissions, probable cause for search of the car reached
the interior but not the trunk. Also see State v. Coston,
168 Ohio App. 3d 278,
Paschal, 169 Ohio App. 3d 200,
2006-Ohio-5331 -- Officer pulled up alongside a car parked
by a boarded up house where there had been a recent drug raid.
He spoke with both occupants, then turned around in a nearby
driveway. Passenger then ran off and driver drove away. This did
not constitute unprovoked flight because it was not immediate
and may have been the subjects going about their legitimate
business. There was competent credible evidence supporting the
trial court having granted a motion to suppress.
State v. Owens, Franklin App. No.
2004-Ohio-5159 -- Defendant stopped in the middle of the street to
move a child to safety. Officer stopped, ordered car moved, then prepared to
issue a parking ticket after demanding the drivers license. LEADS check showed
suspension. Resisting charge arose out of effort to handcuff the defendant.
Conviction reversed as the officer had no right to demand a license in issuing a
parking ticket, which is a civil matter. Use of license violated the Fourth
Amendment, as it was illegally obtained. Defendant was entitled to use force to
resist the illegal arrest. When officer sprayed mace in the defendant's face she
inflicted serious physical harm.
State v. Latham, Montgomery App. No.
2004-Ohio-2314 -- A windshield crack that does not obscure vision or
otherwise render the vehicle unsafe does not warrant a traffic stop by city
officers. Based on a provision in the Administrative Code, it might left a
safety inspection by a Highway Patrol officer.
State v. Watson, 157 Ohio App. 3d 217,
2004-Ohio-2628 -- Search of vehicle for a gun was warranted even though driver
had been removed. There was a reasonable basis for the search, and the necessity
to search continued as if not arrested the driver would have been allowed to get
back behind the wheel.
State v. Huth, 163 Ohio App. 3d 102,
2005-Ohio-4303 -- Driver stopped for speeding appeared nervous to the extent the
court is of the view that a weapons search of the car would have been justified.
Instead, the officer waited until the ticket had been issued, then asked for
consent to search, stating: "I ask every driver. If I have consent it's easier."
This language is problematic under State v. Robinette (1997), 80 Ohio St.
3d 234, but given that the circumstances otherwise justified a search, the
validity of the consent need not be determined.
State v. Wallace (2001), 145 Ohio App. 3d
116 -- Cruiser blocked car in a crowded lot shared by a bar and an insurance
office. Officer insisted on speaking with occupants who did not want to talk to
him. Car had been placed in gear so as to back up. Blocking was a seizure. There
was no reasonable basis for the officer to believe illegal conduct was underway,
and the approach was not a consensual encounter. Suppression affirmed.
State v. Delemos (2000), 140 Ohio App. 3d
512 -- Trial court could properly conclude video from cruiser was more credible
than Highway Patrol trooper's testimony. Tape showed only slight drifting within
the lane, with no other traffic nearby. Cracked taillight did not appear
blinding and a single intact red taillight was all the law required. Trooper had
also been deceptive about the actual basis for the stop.
State v. Downs, Wood App. No.
2004-Ohio-3003 -- Officer claimed defendant briefly crossed the
broken line dividing two south bound lanes. (1) This was insufficient to left
investigative detention based on erratic driving. (2) There was no probable
cause for stopping the defendant for a traffic infraction: she did not cross the
center line, there was no danger to traffic since the other lane was unoccupied,
and she did not have to signal since a lane change was not completed.
City of Indianapolis v. Edmond (2000),
121 S.Ct. 447 -- Indianapolis drug interdiction checkpoints found to violate the
State v. Bryson (2001), 142 Ohio App. 3d
397, 403-404 -- "We find that a driver's action in making a legal turn within
sight of a roadblock does not give a police officer a reasonable basis to
suspect that the driver is involved in criminal wrongdoing. This conclusion
reflects 'the realization that citizens will avoid contact with police for
reasons other than fear of being caught for a crime they have committed. A
completely innocent person may wish to avoid the delay which a discussion with
police may entail; others have a fear of police authority; still others resent
and seek to avoid the '"hassle"' of a stop which lacks any basis.' State v.
[(Utah 1990), 792 P.2d 489,494, fn. 11]."
State v. Landrum (2000), 137 Ohio App.
3d 718 -- Random stop of truck leading to discovery it was overweight held to be
a constitutional violation. There was no probable cause, no reasonable suspicion
of criminal activity, and no regulatory authorization for purely random stops.
Compare Perrysburg v. Miller, 153 Ohio App. 3d 665,
random stops were authorized and sorting principle was arrived at before officer
began counting passing trucks.
State v. Howard 146 Ohio App. 3d 335,
2001-Ohio-1379 -- Driver of car loaded with marijuana and cocaine left it
running at a gas pump while he went to McDonalds for food. (1) Upon learning
that the registered owner of car had an open warrant, highway patrol officer had
a reasonable basis to stop the car after it drove off. Would have been a
different outcome had the officer received additional information that the owner
was white and the driver was black. (2) Leaving the car running and vacant was
an offense, by itself warranting the stop. (3) Pockets bulging with cash
justified Terry weapons frisk.
State v. Orr, 91 Ohio St. 3d 389,
2001-Ohio-50 -- Syllabus: "In determining the constitutionality of a driver's
license checkpoint, a court must evaluate, on a case by case basis, the
checkpoint's intrusion on privacy, the state's interest in maintaining the
checkpoint, and the extent to which the checkpoint advances the state's
interest." Factors cited in favor of Dayton checkpoints included advance warning
to approaching drivers, display of authority, brevity of stops, even for
violators, and the success rate in issuing citations.
State v. Berry, Wood App. No. WD-02-043,
2003-Ohio-1860 -- Stop for violation of a "do not exit sign" led to OMVI charge.
Motion to suppress was properly granted as such signs are not recognized in the
Ohio Manual of Uniform Traffic Control Devices and the sign was posted below the
six to seven feet required by the OMUTCD. Compare State v. Dunfee, Athens
App. No. 02CA37,
2003-Ohio-5970 where a no U-turn sign was legible, but about a
foot too low.
Bowling Green v. Godwin, 110 Ohio St.
2006-Ohio-3563 -- Syllabus: "A law enforcement officer who personally
observes a driver disregard a traffic-control device that complies with the Ohio
Manual of Uniform Traffic Control Devices may have probable cause under the
totality of the circumstances to stop the driver, even though the device was not
installed in compliance with a local ordinance requiring approval of city
council for the installation of traffic-control devices."
Bowling Green v. Lynn, 165 Ohio App. 3d
2006-Ohio-1401 -- Violation of a no turn on red sign was the basis for a
traffic stop and other charges. Since the sign wasn't authorized by the local
traffic commission, a claimed violation charge would have failed. However, the
sign was authorized by OMUTCD, and properly provided a basis for the stop.
State v. Berry, Wood App. No. WD-02-043,
2003-Ohio-1860, and State v.
Godwin, Wood App. No. WD-04-094,
2005-Ohio-3204 explained and distinguished.
State v. Grant, 120 Ohio Misc. 2d 21,
2002-Ohio-5419 -- Reading a map while driving a few miles below the speed limit
without inconvenience to other drivers did not left stop for operating a vehicle
in wilful or wanton disregard of the safety of others.
Delaware v. Prouse (1979), 440 U.S. 648,
653 -- However brief, the stop of a vehicle and the detention of its occupants
is a "seizure" within the meaning of the Fourth and Fourteenth Amendments.
Compare State v. Goines (1984), 16 Ohio App. 3d 168 -- Impermissible stop
in Prouse was without any particular justification while stop here was a
part of a routine safety inspection at a checkpoint.
Pennsylvania v. Mimms (1977), 434 U.S. 106
-- (1) Motorist stopped for traffic violation may be ordered out of the car. (2)
Bulge in jacket justified frisk for weapons.}
State v. Brown (1996), 116 Ohio App. 3d
477 -- Defendant's truck was parked by auto dealership in the middle of the
night. Defendant drove away as officer pulled in behind. Investigative stop was
not warranted. Even if viewed as a stop to aid a disabled motorist, stop was not
warranted as defendant had begun to drive off.
State v. Klein (1991), 73 Ohio App. 3d 486
-- Stop not justified where officer, concerned about vandalism and thefts, first
saw car parked on a car sales lot at 1:35 a.m. but observed no traffic
violations or other evidence of criminal conduct when he followed the car when
it pulled onto the street.
Wickliffe v. Gutauckas (1992), 79 Ohio
App. 3d 224 -- Officer had helped defendant locate her car an hour and ten
minutes before he pulled her over, and based upon her condition at that time
advised her not to drive. This observation warranted a subsequent stop of the
vehicle. However, there was no probable cause for arrest where all the officer
observed before placing her under arrest was the odor of alcohol.
State v. Medlar (1994), 93 Ohio App. 3d
483 -- Fourth Amendment violation found where officer waited for the driver of
an illegally parked vehicle to return and drive off, then stopped him under the
pretext of issuing a parking ticket, and without other specific articulable
facts lefting the stop.
State v. Rhude (1993), 91 Ohio App. 3d
623, 626 -- "The fact that a person pulls out of one driveway and into another a
short distance down the road, in an area where several burglaries had been
reported, is not sufficient to constitute reasonable suspicion, particularly
where one of the driveways leads to the person's own residence."
Kirtland Hills v. McGrath (1993), 89 Ohio
App. 3d 282 -- Stop of vehicle was not justified where officer mistakenly
believed speed limit was 35 mph and defendant was below the 50 mph prima facie
limit which actually applied. Evidence resulting from the illegal stop, which
led to an OMVI prosecution, suppressed as fruit of the poisonous tree.
Maumee v. Johnson (1993), 90 Ohio App. 3d
169 -- Officers did not have reasonable basis to believe car was speeding where
they thought the degree of lean while rounding a corner was consistent with
speeding, but had no measurement, never saw brake lights and found the car to be
operating within the speed limit when they caught up with it.
State v. Gardner (1993), 88 Ohio App. 3d
354 -- Highway Patrol officer followed a car seen running a red light and
approached the driver after he parked at a carryout. Defendant was not allowed
to put a witness on at the motion hearing who would have testified that no
traffic violation was committed, thus stop was unjustified. While the court
agrees that a defendant would ordinarily be allowed to present such testimony,
there was no stop and no investigation until the driver had left his car and
exhibited signs of intoxication.
State v. Guysinger (1993), 86 Ohio App. 3d
592 -- Stop of vehicle based on broken brake light lens (which showed white
light) was not justified. Other light displayed red and
R.C. 4513.071 only
requires one stop light emitting red light.
State v. Goodlow (1992), 84 Ohio App. 3d
529, 533 -- Furtive or fumbling movement, without more, does not left the
stopping or search of a vehicle. Also see In re Agosto (1993), 85 Ohio
App. 3d 188. Compare State v. Crosby
(1991), 72 Ohio App. 3d 148.
State v. Johnston (1993), 85 Ohio App. 3d
475 -- While activation of the beacon on a cruiser may generally constitute a
seizure, it did not where the defendant parked next to a highway patrol cruiser
and the officer activated his beacon before asking the driver "what do you
State v. Vanscoder (1994), 92 Ohio App. 3d
853 -- Flickering taillight and loud muffler justified stop of car. Odor of
burning marijuana and the readily visible "roach in the ashtray" justified
warrantless search under the automobile exception to the warrants requirement.
United States v. Brignoni-Ponce (1975),
422 U.S. 873 -- Except at the border or its functional equivalent, officers on
roving patrol may stop vehicles only if they are aware of specific articulable
facts, together with rational inferences drawn from those facts, that reasonably
warrant suspicion that the vehicle contains illegal aliens. Also see United
States v. Cortez (1981), 449 U.S. 411.
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Justification - vehicles - knowledge of officer
Also see Informants
State v. Delagraza (2001), 144 Ohio App.
3d 474 -- Officers saw suspect flag down three cars but never saw drugs or money
change hands. Defendant was in a fourth vehicle that stopped. Suppression was
proper as officers acted on no more than a hunch drug activity was taking place.
Wilmington v. Connor (2001), 144 Ohio App.
3d 735 -- Though a temporary tag doesn't not have to be illuminated if placed in
the back window, it does if placed in plate holder. Thus officer had a
legitimate reason to stop the car. Even if the tag didn't have to be
illuminated, as another court of appeals has held, mistake of law would not have
invalidated the stop.
State v. Held (2001), 146 Ohio App. 3d
365 -- Even though license plates are now reflective, they must be illuminated.
Rear plate light may have been operative, but rear bumper was missing and plate
in a different location was not illuminated. Thus office had probable cause to
stop the motorist.
State v. Heinrichs (1988), 46 Ohio App. 3d
63 -- Investigative stop not justified by generalized concern about crime in the
Fairlawn v. Skoblar (1997), 122 Ohio App.
3d 464 -- Officer had no basis for stopping car exiting cemetery late at night
where only justification was concern about "Devil Worship," though there had
been no reports of related criminal activity.
State v. Carter (1994), 69 Ohio St. 3d 57,
65 -- Investigative stop of vehicle was not justified based on presence in a
high crime area, and suspicion occupants had been involved in a breaking and
entering, articulated as: "There was no evidence, counselor, of that happening.
That just happened to be a procedural type of thing," together with a
description of ordinary activity. Compare State v. Morales (1993), 92
Ohio App. 3d 580 where actions made it appear a drug transaction had occurred
and one of the subjects was known to the officer and State v. Patterson
(1994), 95 Ohio App. 3d 255 where officer positioned himself along the likely
escape route of a burglar and saw same car pass both ways on a dead end road in
the middle of the night.
Tallmadge v. McCoy (1994), 96 Ohio App. 3d
604, 608 -- Stop of truck was justified where officer knew owner's license had
been suspended following arrest two weeks previously, since it is reasonable to
infer that the owner is the driver. Though this proved not to be the case, the
odor of alcohol and bloodshot eyes justified continued detention of person
behind the wheel.
State v. Epling (1995), 105 Ohio App. 3d
663 -- Stop was justified where officer called in license number, was told
registered owner was under suspension, and description of operator matched that
of registered owner. Also see State v. Marker (1998), 130 Ohio App. 3d
State v. Lauch (1997), 122 Ohio App. 3d
522 -- Stop was justified where officer had recent knowledge defendant was under
suspension, and though he knew of occupational driving privileges and nearby
location of employment, he did not know work hours.
State v. Anthill (1993), 91 Ohio App. 3d
589 -- Information from a domestic violence complainant that the defendant was
highly intoxicated and driving around the area looking for her and their son was
sufficient justification for stopping his car.
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Justification - vehicles - erratic driving
State v. Hodge, 147 Ohio App. 3d 550,
2002-Ohio-3053 -- Minor weaving over the line dividing traffic lanes warranted
stop. State v. Drogi (1994), 96 Ohio App. 3d 466 overruled.
Pepper Pike v. Parker (2001), 145 Ohio
App. 3d 17 -- Low speed, riding the brake, weaving and wide turn justified stop.
Dissenting judge believes this does not rise above the officer's first
impression that motorist was uncertain of his surroundings.
State v. Santmire, Franklin App. No.
2002-Ohio-6758 -- Safely backing up two car lengths to move from a
left turn lane to a lane for through traffic that did not violate
did left stop based on claimed erratic driving.
State v. Woods (1993), 86 Ohio App. 3d 423
-- Momentary use of high beams did not left investigatory stop. Compare
Westlake v. Kaplysh (1997), 118 Ohio App. 3d 18 -- Prolonged use of high
beams behind another car at an intersection and facing oncoming traffic. But see
dissent on definition of "oncoming traffic."
State v. Harding (1992), 81 Ohio App. 3d
619 -- Weaving in lane and snow covered rear window justified investigative stop
of vehicle. Also see State v. Lloyd
(1998), 126 Ohio App. 3d 95, 101-104.
State v. Smith (1996), 117 Ohio App. 3d
278 -- Anonymous report of erratic driving was not confirmed by officer's
observation of minor, lawful, weaving within marked lane. Stop not justified.
Hamilton v. Lawson (1994), 94 Ohio App. 3d
462 -- Crossing dotted line dividing lanes of traffic headed in the same
direction on one road and an imaginary center line on another did not left
investigative stop. Also see State v. Glasscock
(1996), 111 Ohio App. 3d 37.
State v. Williams (1993), 86 Ohio App. 3d
37 -- Stop of vehicle was not justified by facts: (1) defendant was driving a
new pickup, which according to the officer are frequently stolen; (2) it was
11:16 p.m.; and (3) he twice went out of his lane of travel by the width of one
tire. Compare State v. Wireman (1993), 86 Ohio App. 3d 451 (defendant went left
of center three times, at least once by a distance of three feet); State v.
Hiler (1994), 96 Ohio App. 3d 271 (erratic driving continued for about a
mile and plate was registered to a different vehicle); State v. Pringle
(1998), 128 Ohio App. 3d 740 (work truck with plates assigned to a passenger
vehicle); State . Webb (1997), 120 Ohio App. 3d 56; State v. Stamper
(1995), 102 Ohio App. 3d 431 (repeated fishtailing and deviation from lane
indicated improper allowance for road being snow-covered).
State v. Gullett (1992), 78 Ohio App. 3d
138 -- Stop of vehicle not justified based on brief excursions over edge line,
by vehicle otherwise operated lawfully. Also see State v. Brite (1997),
120 Ohio App. 3d 517; State v. Johnson (1995), 105 Ohio App. 3d 37;
Mason v. Loveless (1993), 87 Ohio App. 3d 264; State v. Drogi (1994),
96 Ohio App. 3d 466.
Village of New Lebanon v. Blankenship
(1993), 65 Ohio Misc. 2d 1 -- Weaving on a residential street without a marked
center line and in the absence of other traffic did not left investigative stop.
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Justification - vehicles - occupants
State v. Mays, 119
Ohio St. 3d 406,
2008-Ohio-4539 – Syllabus: "A traffic stop is constitutionally valid when a
law-enforcement officer witnesses a motorist drift over the lane markings in
violation of R.C.
4511.33, even without further evidence of erratic or unsafe driving."
Motorist twice went a tire width over the fog line. Issue here is reasonable
suspicion justifying a stop, not probable cause for a citation.
State v. McCaulley, 161 Ohio App. 3d
2005-Ohio-2864, ¶11 -- "...(O)rdering a driver out of his or her car during
a traffic stop is permissible because such a procedure promotes officer safety
while inflicting a minimal intrusion into the driver's personal
liberty...However, taking the additional step of placing a driver in a patrol
car during a routine traffic stop, and the pat-down search that would normally
precede such a step - increases the intrusive nature of the detention and must
be justified by reasons beyond those that necessitated the traffic stop...Such a
step may be justified if it protects the officers or driver from a dangerous
condition during the traffic stop, and is the least intrusive means to avoid the
dangerous condition...; to avoid escalation of a dangerous situation...; or if
the officer has a reasonable, articulable belief that an individual is armed
and/or dangerous or is engaged in criminal activity...An officer's convenience
will not left placing a driver in the rear of a cruiser...Although the failure
to produce a license during a traffic stop is a lawful reason for detaining a
driver in a patrol car, an officer clearly may not place a driver in his cruiser
as a matter of course while he runs the license information through the
State v. Taylor (2000), 138 Ohio App. 3d
139 -- Suppression required where Highway Patrol officers illegally expanded the
scope and duration of a traffic stop to investigate the passengers. Court
rejects condition of car and actions of occupants as providing justification for
continued detention, nor does finding a basis to arrest the driver left
continued detention of passengers in so-called "protective custody."
State v. Isbele (2001), 144 Ohio App. 3d
780 -- Motorist was stopped by an apartment building, arrested for OMVI, and
found in possession of cocaine. Passenger told officers she had done nothing
wrong and asked if she could go into apartment building where she apparently
lived. Prosecutor claimed this conduct justified detention. Passenger was told
she was probably headed for the jail and warned she could be charged with
conveying drugs into a detention facility. She handed over a packet of cocaine.
Evidence properly suppressed. Fact driver had drugs did not create reasonable
basis to believe passenger did as well. Nor does request to terminate an
encounter with police left detention.
v. California (2007), 127 S.Ct. 2400 -- Both the driver
and a passenger have standing to contest the legality of a
vehicle stop because both have been seized for purposes of the
Fourth Amendment. Traffic stops involve an officer's
unquestioned command of the situation. A passenger by remaining
inside the vehicle demonstrates submission. Accord:
State v. Carter (1994), 69 Ohio St.
3d 57, 63.
Maryland v. Wilson (1997), 519 U.S. 408 --
A police officer may, as a matter of course, order passengers in a lawfully
stopped car to step out of the vehicle. Court does not decide whether officer
may further detain passenger, once out of vehicle.
United States v. White (C.A.D.C. 1981),
648 F. 2d 29 -- Fact suspects were ordered to step from car at gunpoint did not
convert detention to an arrest.
State v. Randleman (1995), 108 Ohio App.
3d 468, 473 -- "Allowing officers to ask a passenger to leave the vehicle so
that his conduct can be better monitored is a modest infringement on a
passenger's liberty interest."
State v. Cullers (1997), 119 Ohio App. 3d
355 -- Gun and drugs were found under driver's seat after driver was removed
from car, but before he was arrested. Defendant's nervousness after being
stopped for a minor traffic offense, the need to prevent him from reaching under
the seat, and the need to repeatedly order him out of the car warranted search
for the safety of the officers.
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Justification - other property
United States v. Place (1983), 462 U.S.
696 -- Applying the standard of Terry v. Ohio, the investigative
detention of a traveller's luggage is permissible on less that probable cause,
however a ninety minute detention, including transfer to another airport for
inspection by a narcotics detection dog was unreasonable.
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State v. Batchilli,
113 Ohio St. 3d 403,
2007-Ohio-2204 -- Syllabus: "(1) A traffic stop is not unconstitutionally
prolonged when permissible background checks have been diligently undertaken and
not yet completed at the time a drug dog alerts on the vehicle. (2) The
'reasonable and articulable' standard applied to a prolonged traffic stop
encompasses the totality of the circumstances, and a court may not evaluate in
isolation each articulated reason for the stop. United
States v. Arvizu (2002), 534 U.S....applied." See the dissent for a
commentary on the arresting officer's conduct.
Chillicothe v. Frey, 156 Ohio App. 3d
2004-Ohio-927 -- Motion to suppress properly granted where duration of
traffic stop exceeded the time needed to issue headlight ticket. Officer stopped
defendant for burned out headlight based on observation earlier that night. This
was a pretext for looking into the officer's observation of defendant carrying a
heavy object down an alley before he got into his car. Officer left the scene to
conduct further investigation before making an arrest for RSP. City's claim of
consensual encounter rejected - analogy was drawn to a "medieval rascal finding
sanctuary by beating the King's knaves to the Church."
State v. Frady (2001), 142 Ohio App. 3d
776 -- Erratic driving warranting a citation justified the initial stop.
Subject's actions upon complying with request to step out of car justified
continued detention for administration of field sobriety tests. Officer was not
obligated to give Miranda warnings because the defendant was not in
custody prior to arrest.
Hackett, 171 Ohio App. 3d 235,
2007-Ohio-1868 -- Initial investigative detention was
justified by information from an informant corroborated by the
officer. But repeated "protective searches" finally resulting in
the seizure of drugs were unwarranted.
State v. DeCaminada, 148 Ohio App. 3d
2002-Ohio-2917 -- Officer's initial approach and questions directed to a
woman sitting in a car parked at an apartment complex may not have amounted to
detention, but subsequent requests for identification and a pill bottle he
observed, coupled with the late hour and the ten to fifteen minutes that passed,
amounted to detention. Circumstances coupled with repeated requests for the pill
bottle meant the seizure was not consensual.
United States v. Sharpe (1985), 470 U.S.
675 -- In determining whether the duration of an investigative detention is
reasonable, it is appropriate to consider whether the police diligently and
quickly pursued any follow up investigation. DEA agent following suspect
vehicles had radioed for help. After first vehicle was stopped, there was a
fifteen minute delay before he arrived at location where second vehicle stopped.
Court found this delay acceptable.
State v. McFarland (1982), 4 Ohio App. 3d
158 -- Detention in a locked police car for ten minutes while officer ran a
radio check for outstanding warrants was reasonable where: (1) officer suspected
involvement in illegal drug activity based on frequency of drug sales in area
where defendant was detained; (2) there was the association of someone with name
given by detainee being involved in drug sales; and (3) defendant's actions were
furtive. At p. 161: "The exigencies of reasonable investigatory efforts
sufficiently justified the limitations on defendant's freedom for a reasonable
investigatory purpose that was not unduly prolonged."
State v. Pugh (April 20, 1982), Franklin
Co. Case No. 81AP-779 (1982 Opinions 1120) -- Investigatory detention for
purposes of show up held proper. Implied overruled by Hayes v. Florida
(1985), 470 U.S. 811.
United States v. Onyema (E.D.N.Y. 1991),
766 F. Supp. 76 -- Extended detention, without judicial authorization, of
incoming airline passenger suspected of carrying drugs in his alimentary tract
was contrary to the Fourth Amendment. Compare United States v. Montoya de
Hernandez (1985), 473 U.S. 531.
State v. Newsome (1990), 71 Ohio App. 3d
73 -- Analysis of justification for detention and search follows the progress of
the incident from articulable reasons for initial investigative stop through
justification to frisk subject for weapons through probable cause for
warrantless search of auto after contraband had been discarded.
State v. Chatton (1984), 11 Ohio St. 3d
59, 463 N.E. 2d 1237 -- Even though the initial detention is justified,
detention may not continue once that basis has been eliminated. Here, officer
had stopped car which did not display front or rear license plate, but had no
justification for continuing detention after saw temporary tag on the rear deck.
Also see State v. Riddle (1995), 104 Ohio App. 3d 679. Compare State
v. Allen (1985), 21 Ohio App. 3d 199 where failure to produce operator's
license justified further investigation.
State v. Frye (1985), 21 Ohio App. 3d 133
-- Since Ohio law requires only one taillight, officer who stopped car to advise
driver one taillight was burned out had no authority to detain the driver in
order to check status of license and registration.
Ohio v. Robinette (1996), 519 U.S. 33 --
The Fourth Amendment does not require that a lawfully seized defendant be
advised that he is free to go before his consent to search will be recognized as
voluntary. For the possible continued viability of the previous decision by the
Ohio Supreme Court, see the concurring and dissenting opinions. As to the
legality of prolonging the detention, the majority only states that the
subjective intentions of the officer do not matter, so long as the detention was
State v. Robinette (1997), 80 Ohio St. 3d
234 -- Syllabus: "When a police officer's objective justification to continue
detention of a person stopped for a traffic violation for the purpose of
searching the person's vehicle is not related to the purpose of the original
stop, and when that continued detention is not based on any articulable facts
giving rise to a suspicion of some illegal activity lefting an extension of the
detention, the continued detention to conduct a search constitutes an illegal
seizure. (State v. Robinette
, 73 Ohio St. 3d 650, 635 N.E. 2d 695, paragraph one of the syllabus,
modified.) (2) Under Section 14, Article I of the Ohio Constitution, the
totality-of-the-circumstances test is controlling in an unlawful detention to
determine whether permission to search a vehicle is voluntary. (State v.
Robinette , 73 Ohio St. 3d 650, 635 N.E. 2d 695, paragraph two of the
syllabus, vacated.) Footnote 6 suggests that the "you are free to go" advice
called for in Robinette I would still be sound police practice.
State v. Retherford (1994), 93 Ohio App.
3d 586 -- After ticket was issued the motorist was told she could go but then
was immediately asked for consent to search her car and its contents. Seizure
concluded to have continued and it was required that there be articulable
reasons for suspecting criminal activity. Evidence should have been suppressed.
At p. 602: "When consent is obtained after illegal police activity...the
unlawful police action presumptively taints and renders involuntary any consent
to search." Also see State v. Anderson (1995), 100 Ohio App. 3d 688;
State v. Eastham (December 19, 1995), Franklin Co. App. No. 95APA05-566,
unreported (1995 Opinions 5452). Compare State v. Carlson (1995), 102
Ohio App. 3d 585 [impliedly overruled by State v. Robinette (1995), 73
Ohio St. 3d 650].
State v. Correa (1995), 108 Ohio App. 3d
362 -- Evidence should have been suppressed where drug interdiction strategies
taught troopers were used to prolong detention beyond the scope of the initial
justification for stopping motorist. Also see State v. Gonyou (1995), 108
Ohio App. 3d 369.
State v. Vanderhoff (1995), 106 Ohio App.
3d 21 -- Police investigated suspicious parked car, arrested one occupant on
outstanding warrants and ascertained that there were no warrants for the
defendant. Since there was no basis for continued detention, results of alleged
consent search should have been suppressed.
State v. Rusnak (1997), 120 Ohio App. 3d
24 -- Detention was not unlawfully prolonged where dog sniff procedure was
completed while officer was waiting for license information.
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State v. Hoppert,
181 Ohio App. 3d 787,
2009-Ohio-1785 – Officer patrolling a park observed two people in a parked
pickup. Registered owner had a suspended license. Driver indicated there was a
spoon with heroin residue in the cab. Dope dog was summoned and a second spoon
was seized from the passenger‘s car, parked nearby. Majority finds no
constitutional violation as the passenger had no expectation of privacy as her
car was parked in a public place. Dissent notes that while the driver was under
arrest, the passenger was merely detained. Unjustified continued detention while
the dope dog was brought to the scene invalidated the search.
Yslas, 173 Ohio App. 3d 396,
2007-Ohio-5646, ¶23-37 – Officer used lane violation as a
pretense for stopping a pickup he had spotted earlier. Dope dog
arrived fifteen minutes later and alerted on cocaine in the cab.
Defendant then directed officer to 760 pounds of marijuana in
the bed. While detention may last only as long as necessary to
make out a ticket, here the actions of the occupants, and their
"metaphysical" responses to questions, created escalating
reasonable suspicion of criminal activity.
Illinois v. Caballes (2005), 125 S.Ct.
834 -- Dog sniff conducted while officer competed issuance of a warning ticket
for speeding did not violate the Fourth Amendment.
State v. Ramos, 155 Ohio App. 3d 396,
2003-Ohio-6535 -- When a canine drug search is involved, the police must have a
reasonable suspicion that a vehicle contains drugs in order to detain the
vehicle for the arrival of a drug sniffing dog beyond the time needed to resolve
the basis for the initial stop. Detention here went beyond even the highway
patrol officer's dubious claim it took up to 30 minutes to complete a citation.
Also see State v. Koueviakoe, Gallia App. No. 03CA18,
Compare State v. Hudson, Miami App. No. 2003-CA-39,
dog arrived while the citation was being written); State v. Kazazi, Wood
App. No. WD-03-035,
2004-Ohio-4147 (air freshener in a rental car and other
factors); State v. Jones, Washington App. No. 03CA61,
arrived within two minutes while awaiting warrants checks).
State v. Nguyen, 157 Ohio App. 3d 482,
2004-Ohio-2879 -- Records pertaining to a drug detection dog's training are
material and subject to discovery. "Real world" records pertaining to the dog's
performance in the field are not material, largely because dogs may alert to
residues of drugs no longer present. Opinion extensively discusses cases on the
subject from federal courts and courts in other states. Also see State v.
Lopez, 166 Ohio App. 3d 337,
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State v. Wilcox,
177 Ohio App. 3d 609,
2008-Ohio-3856 – Officers involved in a recent case before the Second
District conducted an internal search of the "lunge area" of a vehicle suspected
of having excessively tinted windows. Doing so as a matter of routine is
unconstitutional. In the other case it was justified because the driver was
known to have a history of fighting with the police and fleeing traffic stops.
Here it was unjustified as all the officers could cite was earlier seeing
someone walking diagonally away from the vehicle, reports of a similar vehicle
fleeing on another day, and the nature of the neighborhood. All the officers had
was a hunch. Initial stop for a license plate light was OK, even though the
motive of the officers may not have been the equipment code violation. Weapon
found in the vehicle led to a more thorough frisk of the occupants and discovery
of crack, which fell from the leg of the defendant‘s pants as an officer
performed a "dolphin" sweep of his buttocks.
Forest, 146 Ohio Misc. 2d 1,
2008-Ohio-1547 – During a supposed frisk for weapons, crack
cocaine was found in the area between the defendant‘s buttocks.
Though that may be an area commonly used to conceal crack, it is
not an area reasonably patted down in a weapons frisk.
Lawson, 180 Ohio App. 3d 516,
2009-Ohio-62 – Weapons frisk was warranted but "plain touch"
exception did not apply as the object of interest was not
immediately identifiable as a weapon or contraband. Officer
admitted manipulating the object in an effort to ascertain what
it might be.
State v. Crusoe, 150 Ohio App. 3d 208,
2002-Ohio-6389 -- Police officer involved in the execution of a search warrant
testified that he frisked the defendant for both weapons and drugs. Warrant did
not provide for search of the defendant's person. A proper protective frisk is
limited to weapons. "Plain feel" exception does not apply because stated purpose
included search for drugs as well as weapons, and from the officer's testimony,
what he felt was not immediately identifiable as crack. Since there was no
warrant for the defendant's arrest, inevitable discovery does not apply.
State v. Groves, 156 Ohio App. 3d 205,
2004-Ohio-662 -- During frisk officer felt an object in the suspect's sock
too small to be a weapon, but which he "suspected" to be crack. "Suspected" is
not enough to establish the probable cause required for seizure under the plain
feel exception. Also see State v. Lander (January 21, 2000), Montgomery
App. No. 17896.
Minnesota v. Dickerson (1993), 508 U.S.
366 -- Court almost endorses the so called "plain touch" exception to the
warrants requirement. If an object that is plainly contraband is detected during
a properly limited Terry frisk, it may be seized. However, the officer
may not manipulate the object to ascertain its identity. For a misapplication of
the "plain touch" rule to the discovery of a bag seen placed in the suspect's
pocket, see State v. Hunter (1994), 98 Ohio App. 3d 632.
State v. Cloud (1993), 91 Ohio App. 3d 366
-- Applying Minnesota v. Dickerson, while stop of subject was warranted,
frisk for weapons did not left seizure of object not thought to be a weapon and
where identity as contraband was not immediately evident to the officer. Object
was a plastic bag containing forty-four rocks of crack. Also see State v.
White (1996), 110 Ohio App. 3d 347 (fourteen rocks of crack in left sock).
State v. Brandon (1997), 119 Ohio App. 3d
594 -- Officer's claim lump in pocket was readily identifiable as rock cocaine
was not credible.
State v. Osborne (1994), 99 Ohio App. 3d
577, 582 -- Drugs found in film canister turned up during frisk for weapons
should have been suppressed: "Once the officer has visually examined the object
and concludes that it is not a weapon, that it does not contain a weapon, and
that it is not obviously contraband, then the officer's justification for
conducting a limited frisk for weapons is dissipated, and the officer may not
then search for evidence or contraband, generally, without probable cause and
State v. Franklin (1993), 86 Ohio App. 101
-- (1) Scope of permissible Terry
frisk exceeded where officer told suspects to go to a cruiser and empty out
their pockets. Also see State v. Smith (1996), 116 Ohio App. 3d 842.
(Detainee told to remove his sock for search by officer.) (2) Requirement that
officer fear for his safety was rebutted by fact officer had known suspect since
high school and said he did not usually engage in criminal activity.
State v. Edwards (1992), 80 Ohio App. 3d
319 -- Though the initial stop and frisk for weapons was valid, further search
surpassed justifiable limits. Apparently only basis for further search was
officer had seen defendant reach into a jacket pocket.
State v. Lamar (1993), 86 Ohio App. 3d 731
-- Though stop of vehicle for speeding was justified, search of glove
compartment, which the defendant hesitated opening, and the officer saw did not
contain a weapon, was not.
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Secondhand and broadcast information
Also see Informants
State v. Chadwell,
182 Ohio App. 3d 256,
2009-Ohio-1630 – Dayton detective became involved in surveillance of an
individual suspected of drug activity, coordinating his efforts with those of
Greene County drug task force. Much of the activity described could well be
innocent. The defendant came to his attention and was later seen about to make
contact with the initial target. The initial target fled but was captured.
Defendant sped off. Detective radioed for him to be stopped. Activity observed
found sufficient to warrant investigative stop. Drugs were found during a Terry
sweep of the "lunge area" of the car. Officers who made the stop were entitled
to rely upon broadcast information.
Newcomerstown v. Ungurean, 146 Ohio
App. 3d 409,
2001-Ohio-1754 -- Truckstop waitress reported seeing a beer bottle
and a shot glass on the trunk lid of a Honda, and that the car's four occupants
appeared intoxicated when they were in the restaurant. Information was broadcast
to an officer who stopped the car without observing any offense. The tip was not
anonymous since a name was given to dispatcher, though not passed on to officer.
A greater degree of reliability is typically afforded informants who provide a
name. Information from the waitress gave rise to a reasonable suspicion the
driver was intoxicated.
State v. Bryant (2000), 138 Ohio App. 3d
343 -- Kentucky officers radioed they were pursuing a fleeing motorist across an
Ohio River bridge, but did not state the reason why they wished to make a stop.
Ohio officer responded at the site where the out of state officers finally
stopped the car. Majority finds the broadcast justified the stop. Dissent finds
failure to convey underling reason for making a stop makes that conclusion
contrary to Maumee v. Weisner
(1999), 87 Ohio St. 3d 295.
State v. Worthman (2001), 145 Ohio App. 3d
126 -- Terry stop was justified. Officer who broadcast request suspect be
detained had an adequate basis to believe he was involved in drug activity.
Detaining officer was justified in following routine in asking for name and SSN
in order to run a warrants check. Handcuffing suspect and placing him in the
back of the cruiser while the officer responded to another situation was proper
as suspect had jerked away preventing completion of frisk.
United States v. Hensley (1985), 469 U.S.
604 -- Evidence uncovered in the course of an investigative stop based on a
flyer received from another police department is admissible if the issuing
department had sufficient information to left the stop and whether, based on an
objective reading of the flyer, the officers actually making the stop could
defensibly act in reliance on the flyer.
Maumee v. Weisner (1999), 87 Ohio St. 3d
295 -- Syllabus: (1) Where an officer making an investigative stop relies solely
upon a dispatch, the state must demonstrate at a suppression hearing that the
facts precipitating the dispatch justified a reasonable suspicion of criminal
activity. (2) A telephone tip can, by itself, create a reasonable suspicion
lefting an investigatory stop where the tip has sufficient indicia of
reliability." See dissent, calling for corroboration or observation by officer
making the stop when information is received in the form of an unverified report
of erratic driving.
State v. Hill (1981), 3 Ohio App. 3d 10 --
Headnote: "While the police are entitled to rely upon and obey directives issued
by means of a radio broadcast, the broadcast itself does not provide reasonable
cause for an investigative stop. Where a defendant in a criminal proceeding
challenges the legality of an investigative stop made in response to a police
broadcast, it is incumbent upon the prosecution to present evidence showing the
factual basis for the broadcast." Also see State v. Holmes (1985), 28
Ohio App. 3d 12 -- Though officer effecting arrest lacked probable cause for
arrest, officer who aired broadcast did have probable cause.
State v. Lackey (1981), 3 Ohio App. 3d 239
-- Where police officers relying on broadcast would have been entitled to
conduct Terry frisk for weapons, asking the subject first where the gun
was did not violate privilege against self-incrimination.
State v. Goodrich (1996), 114 Ohio App. 3d
645 -- When a radio dispatch provides the sole basis for the investigatory stop
of a vehicle, the state must establish that there was a sufficient factual basis
for the issuance of the dispatch. United States v. Hensley (1985), 469
U.S. 604, Whitley v. Warden (1971), 401 U.S. 560 and State v. Hill
(1981), 3 Ohio App. 3d 10 applied. Also see State v. Evans (1998), 127
Ohio App. 3d 56.
State v. Ramey (1998), 129 Ohio App. 3d
409 -- Citizen-informant flagged down a cruiser and related suspicion driver of
a particular car was DUI. Information was relayed by radio, and a car matching
the description was stopped for investigation. Since the citizen made no effort
to conceal identity, information was presumptively reliable.
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United States v. Drayton (2002), 122
S.Ct. 2105 -- Officers entered bus, approached passengers moving from back to
front, and without individualized suspicion asked some for permission to search
their luggage or person. Held not to be a seizure, despite confining conditions
on the bus and an officer who remained in position at the front of the bus. It
was not necessary to inform subjects that they did not have to consent. Also see
Florida v. Bostick (1991), 501 U.S. 429; Florida v. Royer (1983), 460
U.S. 491; California v. Hodari D. (1991), 499 U.S. 621.
State v. Campbell, 157 Ohio App. 3d
2004-Ohio-2604 -- Officer pulled up behind police car, immediately
approached the driver and within 20-30 seconds asked for license which he took
to the cruiser. Trial court properly concluded this was not a consensual
encounter. ¶21: "Although George (the officer) testified that Campbell could
have left at that point, leaving Campbell's license in George's possession, so
that George 'probably would have had to mail it to him,' we will charitably
construe this testimony as having been facetious."
State v. Ford, 149 Ohio App. 3d 676,
2002-Ohio-5529 -- Trial court did not lose its way in accepting bystander's
account over that of an officer and concluding that aggressive approach was not
a consensual encounter. Though the defendant proved to have an outstanding
warrant, the evidence seized must be suppressed because the initial approach was
State v. Wheat, Licking App. No. 02CA97,
2003-Ohio-1147 -- Defendant gave police his name and address, but when asked to
come closer he refused, turned, and walked away. Consensual encounter ended at
that point. Police did not have reasonable suspicion of criminal activity
permitting detention and discovery of drugs on defendant's person.
State v. Cook, Montgomery App. No.
2004-Ohio-4793 -- Initial questioning of pedestrian remained a consensual
encounter, but demand she open her hand closed into a fist converted the
situation to an investigative detention, here unsupported by reasonable
suspicion criminal activity was afoot.
Warensville Heights v. Mollick (1992), 79
Ohio App. 3d 494 -- In the middle of the night, officer approached driver
standing by his car in an area known for drug activity and requested
identification. License turned out to be suspended. Court finds production was
consensual and no Fourth Amendment interests were implicated. See concurring
opinion for why result should have been otherwise. Compare State v. Venham
(1994), 96 Ohio App. 3d 649, where initial detention of vehicle and occupants in
search of a fugitive was legitimate, but continued detention and request to see
license was not, after it had been ascertained fugitive was no longer in the
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State v. Murphy, 159 Ohio App. 3d 74,
2004-Ohio-5817 -- Objective facts justified stop of semi though stated suspicion
based on trucking company's safety record may have been dubious.
Whren v. United States (1996), 517 U.S.
806 -- A traffic stop must be supported by probable cause, but its
constitutional reasonableness does not otherwise hinge on the subjective
intentions of the officer.
Dayton v. Erickson (1996), 76 Ohio St. 3d
3 -- Syllabus: "Where a police officer stops a vehicle based on probable cause
that a traffic violation has occurred or was occurring, the stop is not
unreasonable under the Fourth Amendment to the United States Constitution even
if the officer had some ulterior motive for making the stop, such as a suspicion
that the violator was engaging in more nefarious criminal activity. (United
States v. Ferguson
(C.A. 6 1993], 8 F. 3d 385, applied and followed." See dissent.
State v. Cowans (1999), 87 Ohio St. 3d 68,
74-77 -- The pretext doctrine may still apply to searches not requiring probable
cause, such as searches by parole officers. A parole officer may not be used as
a stalking horse by other investigators.
State v. Roaden (1994), 98 Ohio App. 3d
500, 503 -- Officer saw marijuana in defendant's car parked near his trailer.
Search held pretextual, as the officer, "did not have probable cause or even a
reasonable suspicion sufficient to left intruding on private property and
looking into appellant's car. (The officer) simply had no reason to be in a
position to be in a position to look into appellant's vehicle. We do not believe
that spending two hours looking for a speeder and going out of the way to give a
warning about speeding are actions a reasonable officer would take without an
invalid purpose. Instead, we think it clear that (the officer) manipulated
events to conduct a search that could not otherwise be made and therefore his
reasons for being on the property and looking into appellant's vehicle was
pretextual." Also see State v. French (1995), 104 Ohio App. 3d 740.
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State v. Washington (2001), 144 Ohio App.
3d 482, 494 -- Profile characteristics may be so general that they can be
modified to left arbitrary or discriminatory targeting of suspects. "...(O)ne
can fit the profile by debarking too early or too late, by carrying too much
luggage or not enough, by looking around the terminal or looking straight ahead,
and by coming from or arriving at virtually any urban location."
Reid v. Georgia (1980), 448 U.S. 438 --
Precursor to drug courier profile cases. Actions at airport which were common
among a large group of presumably innocent travellers did not left detention.
Also see United States v. Berry
(5th Cir. 1982), 670 F. 2d 583. Compare United States v. Bowles (5th Cir.
1980), 625 F. 2d 526: United States v. Mendenhall (1980), 446 U.S. 544;
Florida v. Rodriguez (1984), 469 U.S. 1, Florida v. Royer (983), 460
U.S. 491; State v. Hassey (1983), 9 Ohio App. 3d 231.
State v. Foster (1993), 87 Ohio App. 3d 32
-- Highway Patrol officer properly stopped vehicle for equipment violation, but
continued detention and questioning was improper. At p. 40: "What (we) have
here, obviously, is a so-called 'profile case' where an investigating officer
notes some facts which are among a number of indicia often found in the profile
of a typical drug courier or dealer. If the facts cited by the officer in this
case are sufficient grounds to left search of the vehicle, then any late-model
car being driven from Detroit by one or two young men, with a radar detector,
some fast food wrappers, and a hanging toggle switch in it, together with a
little bit of missing trim, is subject to a stop and search action."
State v. Taylor (1995), 106 Ohio App. 3d
741 -- Discreet approach to deplaning passenger matching drug courier profile
did not exceed bounds of a consensual encounter. Eventual consent to search
luggage was voluntary.
State v. Miller (1997), 117 Ohio App. 3d
750 -- Reasonable suspicion found to exist where the driver's actions were
consistent with the profile created by analysis of drug deals commonly
transacted in the area.
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State v. Walker-Stokes, 180 Ohio App. 3d 36,
2008-Ohio-6552 – State appealed suppression based on insufficient basis for
investigative detention leading to arrest on an outstanding warrant. Court finds
it was a close question whether the stop was justified, but finds it need not
decide the issue. Instead, ¶40 holds, "because, as a matter of law, an
outstanding arrest warrant operates to deprive its subject of the reasonable
expectation of privacy the Fourth Amendment protects, the exclusionary rule does
not apply to a search and seizure of the subject that would otherwise be illegal
because of a Terry violation." Concurring opinion notes the court has been back
and forth on this issue and finds it vexing.
State v. Harding, 180 Ohio App. 3d
2009-Ohio-59 – Subject was stopped as a possible trespasser
in a public housing development. Frisking him for weapons
converted a consensual encounter to a seizure. Absent
articulable suspicion justifying investigative detention this
was improper. But the exclusionary rule does not apply because
the defendant had outstanding warrants, even though this was
unknown to the officers at the time.
State v. Certain, 180 Ohio App. 3d
2009-Ohio-148 – Fleeing from an officer attempting to make
an apparently valid Terry stop may be the basis for an
obstructing official business charge. Flight is an affirmative
act, distinguishable from a mere refusal to do as directed.
Court abrogates its contrary holding in
State v. Gillenwater (April 2, 1998) Highland App. No
Hiibel v. Sixth Judicial District Court of
(2004), 124 S.Ct. 2451 -- Nevada statute requiring the subject of a Terry
stop to furnish a name survives Fourth and Fifth Amendment challenges. Unlike
the Texas statute in Brown v. Texas (1979), 443 U.S. 47 there has to be
reasonable suspicion the subject was involved in criminal activity. Unlike the
statute in Kolender v. Lawson (1983), 461 U.S. 352 requiring "credible
and reliable" identification, the subject only had to provide a name. The Fifth
Amendment claim is fielded by reserving for another time how to address
situations where "furnishing identity at the time of a stop would have given the
police a link in the chain of evidence needed to convict the individual of a
United States v. Arvizu (2002), 122 S.Ct.
744 -- When determining whether an officer had a reasonable suspicion warranting
an investigative detention, a court is to consider the totality of the
circumstances and the inferences that might be drawn. Lower court faulted for
looking too critically at the individual
circumstances cited by a Border Patrol officer who stopped a minivan carrying
drugs. While each might have been susceptible to an innocent explanation, and
some were more probative than others, taken together there was a particularized
and objective basis for stopping the vehicle.
Illinois v. McArthur (2001), 121 S.Ct. 946
-- No Fourth Amendment violation found where police prevented defendant from
entering his residence unattended while search warrant was being obtained.
State v. Norman (1999), 136 Ohio App.
3d 46 -- Officer approached a car observed parked for two minutes at a rural
intersection in the middle of the night. She said it was to see if it had broken
down or if the driver needed assistance. Approach said to be proper as a part of
the officer's community caretaking functions. Case does not address events
following initial approach. Also see State v. Cunningham, Montgomery App.
2004-Ohio-3088 (Parked, locked car with keys in the ignition and cash
on the seat.)
Rocky River v. Saleh (2000), 139 Ohio App.
3d 313, 327 -- A police officer does not have to possess specific facts
warranting suspicion of criminal behavior to run a license plate check on a
vehicle travelling the public roadway. It is reasonable to infer the registered
owner is actually driving the vehicle at the time of the license plate check.
State v. Yeatts, Clark App. No. 02CA45,
2002-Ohio-7285 -- While activating a cruiser's beacon may generally constitute a
show of force amounting to a seizure, it does not when the occupant of the
vehicle is unconscious.
Ornelas v. United States (1996), 517 U.S.
690 -- The determination or reasonable suspicion or probable cause for purposes
of passing on the validity of a warrantless search is a mixed question of fact
and law, to be reviewed de novo by an appellate court, without deference
to the findings of the trial court called for when pure questions of fact are
State v. Long (1998), 127 Ohio App. 3d 328
-- Trooper grabbed keys belonging to motorist found asleep behind the wheel.
This facilitated investigative detention (which the court goes on to find was
unjustified), but did not convert detention to arrest.
Pemberville v. Hale (1998), 125 Ohio App.
3d 629 -- Driver was arrested, the car impounded and passenger was given no
alternative but to empty his pockets before riding back to town in the cruiser.
Search was unlawful.
State v. Sharp (October 2, 1986),
Montgomery County App. No. 8703, unreported -- The fact that an investigative
stop leads to an arrest does not vindicate the initial stop.
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