A police search of a man walking and talking on his cell phone in an area where gunshots were fired no more than 60 seconds earlier was lawful, and the handgun obtained during the search can be used as evidence, the Ohio Supreme Court ruled today.

The Supreme Court upheld a Franklin County Common Pleas Court’s decision denying Jaonte Hairston’s claim that the March 2015 search by Columbus police near Liberty Elementary School violated his Fourth Amendment rights against unlawful searches and seizures.

Writing for the Court majority, Justice R. Patrick DeWine wrote that the “cumulative facts” of the situation provided the required reasonable suspicion to stop and search Hairston.

Justices Sharon L. Kennedy, Judith L. French, and Patrick F. Fischer joined Justice DeWine’s opinion. Justice Michael P. Donnelly concurred in judgment only with a separate written opinion. Chief Justice Maureen O’Connor dissented with a written opinion. Justice Melody J. Stewart also dissented with a written opinion that the chief justice joined.

Shots Led to Search
Columbus police officer Samuel Moore and his partner were called to investigate a domestic dispute. As they were getting out of their cruiser around 9:20 p.m., they heard the sound of four to five gunshots. The officers drove about 30 to 60 seconds, covering about four-tenths of a mile, to an area where Liberty Elementary School and Independence High School are located.

At the intersection outside of the elementary school, they spotted Hairston crossing the street while talking on his cell phone. The officers got out of their car with weapons drawn and ordered Hairston to stop. They asked if he had heard gunshots. Hairston said yes, he had. Moore asked Hairston if he was carrying any weapons. Hairston said he had a gun and nodded to his jacket pocket. Moore patted down Hairston and retrieved the gun.

Hairston was charged with carrying a concealed weapon. He filed a motion to suppress the evidence, arguing the police lacked the required reasonable suspicion to detain him. Moore was the only witness to testify at the suppression hearing, and he testified that he had patrolled that zone of the city for his entire six-year career. He said drug activity, assaults, robberies, and domestic violence frequently occurred in the area around the schools during the evening hours.

Applying the U.S. Supreme Court’s 1968 Terry v. Ohio decision regarding the standards for police to conduct an investigatory stop of a person suspected of criminal activity, the trial court concluded the officers had reasonable suspicion to stop Hairston. Hairston appealed to the Tenth District Court of Appeals, which reversed the lower court decision, noting the sound of gunfire only implied “someone, somewhere, had shot a gun.” The Tenth District ruled the police lacked “a particularized and objective basis” for stopping Hairston.

The Franklin County prosecuting attorney appealed the Tenth District’s decision, and the Ohio Supreme Court agreed to hear the case.

Officer Had Grounds to Make Stop
The Court majority explained that Terry allows an officer to make a brief investigative stop “when the officer has a reasonable suspicion based on specific and articulable facts that criminal behavior has occurred or is imminent.” And when the officer is “justified in believing” the individual is armed and dangerous, the officer may conduct a limited search for concealed weapons.

Justice DeWine wrote that the determination of reasonable suspicion must be based on the totality of circumstances as “viewed through the eyes of the reasonable and prudent police officer on the scene,” and that decision does not deal with “hard certainties, but with probabilities.”

The opinion stated that Moore personally heard the shots and they sounded close-by. The officer had personal experience that crime often occurred at night in the area where he stopped Hairston. The officer had made arrests in the school area at night for illegal weapons and other crimes.

“But the most important considerations here are that the stop occurred very close in time to the gunshots and Hairston was the only person in the area from which the shots emanated,” the opinion stated. “We conclude that these facts, taken together and viewed in relation to each other, rise to the level of reasonable suspicion.”

“Here, the officers did exactly what one would expect reasonable and prudent police officers to do in their situation,” the majority said. “Upon hearing gunshots, they proceeded immediately to the location they believed the shots to be coming from to investigate. Finding only Hairston in the area and knowing that criminal activity frequently occurred there, the officers were not required to ignore Hairston’s presence, nor was it necessary for them to attempt to speak to him without taking precautions for their own safety.”

Decision Erodes Constitutional Protection, Dissent Stated
In her dissenting opinion, Chief Justice O’Connor wrote the majority “erodes the constitutional standard established in Terry” and allows police to stop any person in a high crime area “without any specific and articulable facts pointing more directly to that particular person’s being engaged in criminal activity.”

The chief justice noted that Moore’s testimony differed from the arrest form he completed, which underscores his lack of specific information about where the shots came from. The dissent explained Terry requires that a search must be based on something more than an officer’s “hunches” about supposed criminal activity. The opinion also noted that Moore began the pat-down of Hairston before asking him whether he had a gun.

The opinion stated that a stop based, in part, on the recent sound of gunshots requires that an officer believed the shots were fired in the immediate vicinity of the person hearing the shots such that the shooter would not have had time to flee. The opinion noted that in other cases where searches based on the sound of gunshots were upheld, the shots were fired within a few blocks from where they were heard. In this case, the shots were nearly a half mile away and the officer believed they were coming from near the high school and not the elementary school where Hairston was walking.

“Officer Moore did not have a specific idea of where the shots came from, and he merely stopped the first person he encountered while driving in that direction,” the chief justice wrote.

The dissent added that even in cases where gunshots occurred very close by and a search was upheld, the arresting officers had additional evidence to implicate the persons they searched. While Hairston was the only person the officers saw, he was walking in a dense residential area where hundreds of people live. Nothing Hairston was doing distinguished him from anyone else present in the area at the time, the opinion stated.

The dissent stated that the shooter could have simply walked inside a house or hidden behind a house or some other obstruction, and the fact that Hairston was the only person walking down the street “does not meet the reasonable-suspicion standard.”

Majority, Trial Court Ignore Key Factor, Dissent Maintained
In her separate dissent, Justice Stewart wrote the majority and the trial court failed to determine the key factor of whether the police had a “particularized, not generalized,” suspicion that Hairston was engaged in criminal activity before he could be stopped.

Police officers stopped Hairston while he was walking across the street in an area “they guessed gunshots had been fired less than a minute earlier,” the dissent noted. The majority’s finding that the those facts gave police enough reasonable suspicion that Hairston fired the shots or was involved in some criminal activity to stop him “cannot plausibly be squared with decades of United States Supreme Court precedent explaining the particularity requirement,” the opinion stated.

The dissent noted that Moore did not testify that Hairston was the only person he saw, but that he did not “recall” seeing any other people in the area. Justice Stewart wrote it was an important distinction because the failure to find Hairston was the only person in the area “greatly erodes a reasonable basis for particularized suspicion in this case.”

The dissent noted that courts allow officers to draw on their own experiences and personalized training to suspect someone of criminal activity, but Moore “offered no insights into how his training or experience aided him in determining the origin of a sound from a distance of nearly a half mile away,” nor did it explain why “Hairston’s walking across the street talking on his phone should have been seen as particularly suspicious.

Concurrence Finds Proximity to Gunshot Important
In his concurring opinion, Justice Donnelly disagreed with the majority’s position that the time of night and the fact that it was a high-crime area were relevant, but agreed that a suspect’s proximity to the crime area at the time of the incident was relevant.

“Given how close Hairston was to the crime, in both time and place, I would hold that the trial court’s determination of reasonable suspicion was legally justified,” the concurrence stated.

Justice Donnelly wrote that this particular case was a “close call” and that a “perfectly reasonable finder of fact could have come to a different conclusion.” Although the Tenth District’s conclusion about the facts seemed reasonable, he noted that “an appellate court cannot usurp the fact-finding role of the trial court.”

The concurrence noted that the standards for Terry and the fact-finding role of the trial court are already well-established, and stated that “there is no new standard of law to be determined here.”  Although Justice Donnelly agreed that the Tenth District decision was incorrect in this case, he concluded that the Ohio Supreme Court’s ruling today was “quintessential error correction,” and that the better resolution would have been to dismiss the appeal as having been improvidently allowed.

2017-1505. State v. Hairston, Slip Opinion No. 2019-Ohio-1622.

View oral argument video of this case.

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