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Date: 05-05-2020
Case Style:
STATE OF OHIO v.
DORIAN JOHNSON
Case Number: 28426
Judge: MARY E. DONOVAN
Court: IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
Plaintiff's Attorney: JAMIE J. RIZZO
Defendant's Attorney:
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Johnson was indicted on December 28, 2018, for possession of fentanyl,
possession of heroin, and obstructing official business. Johnson pled not guilty on
January 24, 2019, and he filed his motion to suppress on February 11, 2019. After a
hearing, the trial court overruled the motion to suppress. Johnson then entered a plea
agreement wherein he pled no contest to possession of heroin, and the other counts were
dismissed. Johnson was found guilty and sentenced to community control sanctions for
a period not to exceed five years.
{¶ 3} At the hearing on the suppression motion, Officer Zachary O’Diam testified
for the State. He had been a patrol officer for the City of Dayton Police Department for
six and a half years. O’Diam testified that, on October 29, 2018, just after 5:00 p.m., he
was operating his cruiser, in uniform, with Officer Joshua Bowling as his partner, when
they encountered a black Chrysler 300 while their cruiser was stopped at the light at South
Gettysburg Avenue and Third Street. O’Diam testified that “[e]xactly a week prior,” the
same vehicle had fled from him and another officer near South Broadway during an
attempted traffic stop. On October 29, 2018, O’Diam recognized the vehicle by its
license plate, make, model, and color; the vehicle also had excessively tinted windows,
which had been the basis for the attempted traffic stop the previous week. O’Diam
further testified that, on October 29, 2018, Bowling advised him that “a heavyset black
male” was in the passenger seat of the Chrysler “with short dreads,” and a “tall skinny
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black male” was in the driver’s seat of the vehicle.
{¶ 4} O’Diam testified that, due “to the vehicle’s propensity to flee” and their
position, it was not safe for the officers to turn their cruiser around at the time, so they
“relocated to the area” where the vehicle had been observed the previous week. They
did not observe the vehicle there, so they proceeded west on Watson Street toward
Danner Avenue. O’Diam testified that they observed the Chrysler “parked against the
east curb” on Danner Avenue; 15 to 20 minutes had elapsed between their initial
observation of the vehicle and encountering it on Danner Avenue. O’Diam testified that,
as he pulled up, he activated his overhead lights to initiate a traffic stop “[b]ecause of the
illegal dark window tint, and also, we still hadn’t solved the failure to comply [from the
prior week] as well.”
{¶ 5} O’Diam testified that, when he observed the vehicle on Danner, a passenger
was “moving in the front passenger seat,” and there was no driver in the vehicle. Bowling
directed his attention to Johnson on the porch of a home on Danner Avenue, which was
on the opposite side of the street from the Chrysler. O’Diam exited his cruiser and began
to approach Johnson to “detain him for investigation of the vehicle.” As he did so,
O’Diam observed that Johnson was fumbling with his keys, looking around the northeast
corner of the house, looking at O’Diam, and looking at his keys, seemingly “indecisive.”
Johnson made eye contact with O’Diam, and O’Diam stated, “hey, how’s it going.”
Johnson continued to look around and “seemed to be not sure what he was going to do.”
O’Diam testified that Johnson was 15-20 feet from him at that point. O’Diam testified that
Johnson’s conduct concerned him, “especially with the vehicle’s propensity to flee” and
Johnson’s actions, which O’Diam “correlated with somebody that [he had] typically dealt
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with that would run.”
{¶ 6} O’Diam testified that there was “a good gap” between Johnson and him at
this point, such that O’Diam was worried that Johnson would either enter the house or
run, thus preventing the issuance of a citation. O’Diam testified that Johnson “started to
put the keys in the door” while there was still “a pretty good distance” between them, so
O’Diam tried to get Johnson “off subject” or distract him by asked him if he had seen a
kid in the area. O’Diam testified that he “wanted to grab ahold of him so he couldn’t flee,
and explained to him the reason for the stop.” According to O’Diam, Johnson matched
Officer Bowling’s description of the driver, and “with the positioning of the car and where
he was, it was obvious that * * * he was the driver of the vehicle.” O’Diam testified that
he was concerned that Johnson “was going to be able to make that corner” of the house
before O’Diam “was able to get a view of him” and that Johnson “was going to get out of
sight and out of range of being able to detain him.”
{¶ 7} The following exchange occurred:
[Prosecutor] Q. * * * Why * * * did you want to grab ahold of him and
detain him from the traffic stop?
A. It wasn’t a typical traffic stop where somebody’s going to comply,
with the vehicle already failing to comply - - if they’re going to flee in a car,
they’re going to flee on foot typically.
Q. * * * And then did you ultimately, as you put it, grab ahold of him?
A. Yes.
Q. * * * And what did you grab ahold of?
A. The back of his waistband.
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* * *
Q. * * * [W]hat happened at that point in time?
A. When I grabbed ahold of him - - from the moment we had eye
contact and I think I originally asked him - - after I said how’s it going, I asked
him if he had any identification on him, it was apparent he knew I was trying
to speak with him. But when I grabbed ahold of him, he just started flailing
his arms. Said, what are you doing; I said, stop. I continued to try to say,
stop, so I could explain to him. But he kept - - continued to flail. Eventually
actually broke my grasp and was able to make it towards the east end of
this porch here, and almost got down the porch before I was able to grab
ahold - - back ahold of his jacket; continued to tell him to stop. He
continued screaming, what are you doing, what are you doing. I continued
to try to just grab ahold of him before I could explain to him and everything.
Eventually got a better hold of him. Was able to force him to the left side
of this doorway here up against the wall. I was able to control his
movements better, and at that point I explained to him this is just a traffic
stop, you know, I’m stopping you for driving this vehicle. I need you to put
your hands behind your back. And, at that point he began to comply.
{¶ 8} O’Diam testified that Johnson initially stated that he did not have any
identification. He testified that, when Johnson broke away, Johnson took “three steps,
all the way to the [north] edge of the porch there. * * *. It wasn’t just normal three steps;
he was struggling to get all steps away from me before I was able to grab back ahold of
him.” When O’Diam grabbed Johnson the second time, O’Diam “was able to pull his
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jacket back and then grab ahold of his whole waistband and * * * basically pick up his
body weight and detain him then.” O’Diam continued to tell Johnson to stop.
{¶ 9} O’Diam testified that he placed Johnson in handcuffs after the struggle and
that Johnson was under arrest for obstruction, because when told to stop, Johnson “was
able to actually push his arm back off of me to gain distance between he and I, and
continued to try to run away.” O’Diam testified that Johnson’s actions impeded O’Diam’s
ability to investigate the window tint violation and the previous failure to comply.
{¶ 10} O’Diam stated that as Officer Bowling began to approach, Johnson,
“continued to act disorderly,” notwithstanding that he was in handcuffs; Johnson “was
able to get his keys from behind his back and throw them to * * * a teenage kid,” saying
“here, take my keys.” O’Diam testified that Johnson was also “screaming,” and two kids
from down the street ran toward the scene because of the disturbance Johnson was
causing, which put the kids in danger; Bowling ordered the kids to get back. As the
responding crews were arriving, they saw the kids running away and thought they were
part of the disturbance, and they were detained again by some of the responding officers.
Johnson was placed in the cruiser, at which point he settled down.
{¶ 11} O’Diam testified that he conducted a search incident to arrest next to the
cruiser:
I began to pat him down for weapons, and as I’m patting him down,
I asked him if it was okay if I could check to see if he had any guns, knives,
or drugs on him. He stated, yeah, and said, you already are, meaning my
pat down. He thought that was a search. So at that point I was still going
to search him incident to arrest, and checked his left front pocket and
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recovered a small clear plastic baggie of what appeared to be crack
cocaine.
{¶ 12} When asked why he requested Johnson’s consent to conduct the pat down
he intended to perform, O’Diam responded, “I just always do. It’s just kind of - - you get
more compliance * * * if they kind of think that they’re in charge.” Once in the cruiser
with Johnson, O’Diam “eventually” got Johnson’s identification; he then read Johnson his
Miranda warnings from a card provided by the prosecutor’s office and began to question
him about this incident and the previous failure to comply. O’Diam testified that Johnson
indicated his understanding of his rights.
{¶ 13} On cross-examination, O’Diam testified that when he first observed the
Chrysler on the prior occasion on October 22, 2018, he ran the plates and learned that it
was registered to Rachel Heard; although he also obtained Heard’s address, he never
contacted her. O’Diam stated that he did not know if Heard was driving the vehicle when
it was initially observed. On October 29, 2018, when O’Diam activated his lights next to
the parked Chrysler, his cruiser camera automatically started. O’Diam acknowledged
that his police report stated that the driver of the car was rushing to unlock the front door
of the Danner Avenue address.
{¶ 14} The video from the cruiser was played for the jury. The following exchange
occurred after the video depicted O’Diam’s cruiser turning onto Danner:
[Defense Counsel] Q. * * * Now at this point is when you’ve stopped
your cruiser, correct?
A. Yes, ma’am.
Q. And you parked alongside the Chrysler?
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A. Yes.
Q. * * * This is when you say, what’s up man, what’s up man, got any
ID on you - - that’s your first interaction with him, correct?
A. Yes, ma’am.
Q. * * * Did you hear him say yes?
A. I couldn’t hear him.
Q. * * * Well, if you listen very closely, on the video he actually says
yes. And then you say okay.
So at this point, Mr. Johnson’s asking you what’s the problem. * * *
Correct?
A. Yes, ma’am.
Q. * * * Let me play just a little more of this. So after you asked him
whether he had ID - - which you indicated he said he didn’t but we hear on
the video he says he does - - you then use the pretext of a missing child to
get close enough to grab him, correct?
A. I cannot say that you hear him say yes; I can’t hear him.
{¶ 15} O’Diam acknowledged that Johnson was not rude or hostile before O’Diam
grabbed him, and that he (O’Diam) did not identify himself. The following exchange
occurred:
[Defense Counsel] Q. And you grab his arm?
A. His waistband.
Q. * * * And he’s trying to pull away. That’s what that’s all about. You’re
grabbing him, he’s pulling away, saying, what’s the problem, what’s the problem,
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what’s the problem. And you’re grabbing him as he’s trying to pull away?
A. Yes.
Q. * * * Ultimately, you then force his body against the wall of the house?
A. Correct.
* * *
A. He put his hands behind his back after I - -
Q. Okay.
A. - - requested him to.
Q. * * * And it’s not until then that you explain the reason for the stop?
A. Yes, ma’am.
{¶ 16} O’Diam testified that he did not find any weapons on Johnson in the course
of the pat down.
{¶ 17} O’Diam acknowledged that, while at the intersection of Gettysburg Avenue
and Third Street, he observed the Chrysler “as a pass” as it was going in the opposite
direction, and that he did not observe the license plate, although Bowling did. O’Diam
testified that the traffic at Gettysburg and Third Street was busy, and he did not attempt
a traffic stop at that time for the safety of other motorists. He acknowledged that when
he first observed the vehicle the week before, he did not obtain any descriptors for the
occupants of the vehicle such as facial features, clothing, or age.
{¶ 18} On re-direct examination, O’Diam testified that he first observed Johnson
as Johnson was “making his way up the steps of the front porch” of the Danner Avenue
address. O’Diam described Johnson’s behavior as “very suspicious” at the time. O’Diam
stated that Johnson “obviously observed our overhead lights * * * and seemed to be
-10-
indecisive if he was going to go in the house or go around the corner.” O’Diam stated
that when he asked Johnson if he had identification, he did not hear his response. When
asked why he said “okay” as reflected on the video, O’Diam responded that it was to
“ease the confrontation” so Johnson would not go into the house, which would have been
“a more dangerous situation.” O’Diam testified that, although Johnson never left the
porch, he was “continually trying to get away,” and O’Diam felt it was necessary to grab
Johnson because, based upon O’Diam’s past experience, Johnson “was giving every
indication of somebody [he’d] had run before[,] * * * just kept looking around, back and
forth, kind of sizing me up, sizing the distance of which way he was going to go.” When
asked, “is that reflected on the video or the body mic at all,” O’Diam responded, “No.”
When asked why he did not immediately inform Johnson of the reason for the stop,
O’Diam testified that he “wanted to get hands on him first.” O’Diam stated that,
“typically,” when a vehicle has fled, “more than likely they’re armed. When we do recover
these cars from fleeing, typically they’re either armed or have drugs with them, and that
was my biggest worry.”
{¶ 19} When asked how Bowling indicated his observation of Johnson at the house
on Danner Avenue, O’Diam responded that Bowling had said, “there he is,” which O’Diam
understood to mean the driver. O’Diam estimated that the intersection where the car
was first observed on October 29 was about three to four miles from the Danner Avenue
residence. On recross-examination, O’Diam acknowledged that he had no “direct
evidence” placing Johnson in the vehicle.
{¶ 20} Officer Bowling, who had also been employed as a City of Dayton police
officer for six and half years, testified that on October 29, 2018, he was on routine patrol
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with O’Diam when he observed the black Chrysler while facing northbound on Gettysburg
at West Third Street. The Chrysler turned from Third Street to head south on Gettysburg
and passed the officers’ cruiser. Bowling observed “dark window tint” on the front driver
window, which appeared to be in violation of the law. He testified that he “got a general
description of the driver and the passenger in the vehicle” when it passed the cruiser,
because the windshield of the vehicle was not tinted and the two vehicles were “head on”
at one point. Bowling testified that he observed through the windshield a heavy-set black
male with “small dreads” as the passenger, and the driver “was skinnier, seemed to be
taller, just a thinner, athletic build.” Bowling testified that he ran the license plate through
the cruiser computer and found that there was a recent field interview card from prior
contact with this particular vehicle that indicated the vehicle was “known to flee from police
officers.”
{¶ 21} Bowling testified that he next observed the vehicle on the east curb on
Danner Avenue; from the rear of the vehicle, he could not tell if anyone was actually in
the car. As O’Diam initiated the stop by means of the overhead lights, Bowling observed
an individual on the front porch of a residence on Danner; the individual “looked the same
as the person [Bowling] saw driving the car” when they had passed it earlier, with the
same physical features. Bowling testified that he pointed and said to O’Diam, “there’s
the driver up there.” Bowling testified that the male he observed “was standing on the
front porch, and as he saw me, he started looking back and then * * * he was * * * frantically
trying to * * * get into the door, put a key in the door, or he was just moving his hands a
lot towards the doorknob.” Bowling stated that the suspect’s behavior was “suspicious”
and worried him, given that the car was known to flee from the police, and the man was
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in the vicinity of that car. Bowling testified that he was concerned that “he possibly could
have weapons or something he was trying to get rid of, trying to get into the house, run
from us * * *.”
{¶ 22} Bowling was on the passenger side of the cruiser, so he approached the
Chrysler and determined that there was still someone in the passenger side of the vehicle.
Bowling “deal[t] with” the passenger while O’Diam approached the other man on the
porch. When asked if he observed O’Diam’s interaction with Johnson, Bowling
responded, “I could hear it more than see it, because I was trying not to take my eyes off
of the passenger,” but Bowling did observe that O’Diam was “trying to * * * control the
suspect’s arms at this point.” Bowling radioed for backup. Bowling testified that a
juvenile in the area “ran up to the residence where the suspect was standing on the porch,
and the suspect threw the keys to the juvenile.”
{¶ 23} On cross-examination, Bowling confirmed that he did not observe the
Chrysler on October 22, 2019, the date of the alleged failure to comply, and he did not
recognize Johnson from any prior interactions. Bowling stated that he did not share with
O’Diam the specific identifying characteristics of the vehicle’s occupants that he observed
as the vehicle passed the cruiser.
{¶ 24} Johnson testified that he was 33 years old, married, and a father of four
children; he worked for his “family body shop” and for Express Employment. Johnson
testified that on October 29, 2018, he was at his home on Latham Street, doing yard work.
His brother-in-law, who lived in Jefferson Township, called and asked Johnson for a ride,
because Johnson had access to his mom’s car. Johnson testified that his mother’s car
was parked at his grandmother’s house, and that his father had put brakes on it, which is
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why the keys and car were there. When asked who had control of the vehicle at that
time, Johnson responded, “it was a spare car, so no one really was driving it.” Johnson
testified that his wife normally drove him around or he would catch a city bus if he had to.
{¶ 25} Johnson testified that he received a second phone call from his other
brother-in-law, who asked to “ride along” with him that day. Johnson stated that the
second brother-in-law resided three blocks west of him; Johnson picked him up on
Weaver Street. Johnson testified that his wife and children lived at the intersection of
Miami Chapel Road and Danner Avenue, and that while en route to Jefferson Township,
he saw his kids outside in the area; he “pulled over to the curb.” According to Johnson,
his children were “a distance away from the house,” which caught his attention, because
he did not remember the children asking him for permission to leave; he wanted to see
why they were out. Johnson testified that he exited his vehicle, walked to the door,
grabbed the doorknob, and found that the door was locked, which was unusual. He
stated that he observed his youngest son “down by the store”; his son approached him,
entered the yard, and asked if Johnson had seen his basketball. Johnson stated that he
had observed the basketball “down by the gate,” grabbed the basketball, and asked his
son to get the keys out the car for him so he could get into the house. He testified that
his son retrieved the keys and handed them to Johnson in exchange for the basketball;
his son then walked out the gate.
{¶ 26} According to Johnson, he unlocked the door to the home and, as he was
about to open the door, he heard a car door shut behind him; he turned around and
observed “police with overhead lights on.” Johnson stated that, when he saw O’Diam
approaching, his “first instinct” was to walk in the house, but then he thought that doing
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so would make it seem like he had “something to hide.” Johnson testified that, since he
could produce identification, he could “see what’s going on,” and there was no reason for
him to run or go into the house. Johnson testified that, at the time, there was enough
distance between him and O’Diam that he could have entered the home or fled. Johnson
testified that O’Diam began speaking as soon as he (O’Diam) came through the gate, and
O’Diam asked for Johnson’s identification when he was five to seven feet away..
Johnson testified that he “produced [his] whole entire wallet,” which included his
identification, but when he attempted to hand the wallet to O’Diam, O’Diam reached for
Johnson’s arm, so Johnson reached for his waistband. Johnson testified that he
repeatedly asked, “what’s the problem,” and that when the two men were about three feet
apart, O’Diam hit him “with the little jib (phonetic) about the kid” and “attempted to grab”
him.
{¶ 27} Johnson testified, “if you can hear me in the video - - I told him you’re not
going to slam me. Because he would not tell me what was going on.” Johnson stated
that O’Diam did not identify himself or advise him why he was being detained. Johnson
denied hitting or pushing O’Diam. Johnson stated that he yelled to his youngest son to
come get his keys, and that when his oldest son and a friend, who had been “down there
by the store” approached the scene, Johnson yelled to them to get their mom “[b]ecause
of the aggressiveness of the Dayton Police.” He testified that his concern was that the
police “might actually hurt the kids because the kids were running out of fear * * * not out
of being a suspect for a crime.” Johnson testified that he “fully cooperated” after he was
restrained.
{¶ 28} On cross-examination, Johnson testified that he lived with his
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grandmother, Rachel Heard. He stated that, on Danner Avenue, he proceeded to the
residence before approaching his children, who were a block away from the home,
because he believed there was “at least one more kid in the house.” Johnson testified
that, while O’Diam was telling him to stop in the course of the struggle, Johnson was
“[j]ust keeping him from throwing me on the ground.” Johnson testified that, after he
broke free of O’Diam’s grasp, he “[s]tood right there with him. We walked off the porch
together. And I was not in handcuffs. * * * I complied with him.”
{¶ 29} On redirect examination, Johnson testified that he never fled from the police
in the vehicle. Johnson testified that, in the course of the struggle, he believed O’Diam
was “trying to get [him] on the ground,” and Johnson struggled with him to avoid getting
“slammed on the concrete.”
{¶ 30} In its decision overruling Johnson’s motion to suppress, the trial court made
the following findings of fact regarding the officers’ observation of the vehicle and
subsequent actions:
* * * The officers noticed that the vehicle contained what they
believed to be illegal window tint on the side windows. The officers noted
the license plate number and the make and model of the car.
Officers O’Diam and Bowling saw a heavy set black male with dread
locks and a skinny black male as occupants of the black Chrysler 300.
* * *
By use of the license plate number and law enforcement information,
the O’Diam-Bowling crew were able to obtain the owner’s name and the
registration information. Based on this information, the O’Diam-Bowling
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crew received a report by virtue of a “field investigation card” that a black
Chrysler had failed to comply with an order or signal of an officer, on or
about October 22, 2018, possibly in the area of Weaver Street.
* * * At approximately 5:45 p.m., they came upon the black Chrysler
300 on the east curb of Danner Avenue. * * *
* * * The officers were able to observe the license plate and it was
the same as they had noted at Third and South Gettysburg. The officers
talked to one another and noticed that the person they felt was the driver
from Third and Gettysburg was now going to, or was at the residence
located * * * [on] Danner Avenue.
Officer O’Diam saw the driver on the porch of that house. Officer
O’Diam noted the driver was fumbling with some keys in his hands. Shortly
thereafter, the officers saw the driver place a key in the door.
Officer O’Diam opened the gate and went up the walkway at [the
house on] Danner Avenue. His intent was to question the “driver,” who
was later identified as Defendant, Dorian Johnson. Officer O’Diam
intended to investigate the window tint violation and the failure to comply
issue with Defendant.
Officer O’Diam noted that the Defendant was on the porch and was
looking to the north and the south. * * * When located on the porch, a person
would be looking to the east as [the house in question] is on the west side
of the street. There is another small house immediately adjacent * * * on
the north side and a similar house located immediately to the south * * *.
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Officer O’Diam was concerned that Defendant would flee. In order
to reduce the chance of flight and to facilitate getting closer, Officer O’Diam
began to speak to Defendant. Officer O’Diam did not initially say to
Defendant that he was there to talk to him about the window tint violation
and the failure to comply matter. However, Officer O’Diam was in uniform
and the cruiser was in close proximity with overhead lights activated.
Officer Bowling had left the cruiser and was engaged in an encounter with
the passenger of the black Chrysler 300.
Officer O’Diam said, “What’s up?” “Do you have an ID?” The
Defendant initially said, “No,” but almost immediately changed his answer
to “yes.” In order to engage with Defendant and continue to get closer,
Officer O’Diam asked Defendant if he had seen a young man. Officer
O’Diam said, “Have you seen a kid around here?” Defendant, in fact,
continued to look around. Defendant did eventually produce his wallet with
an I.D.
Officer O’Diam grabbed the Defendant at the waist area. He asked
again for the ID. The Defendant continued to move and said in rapid
fashion a number of times, “What’s the problem? What’s the problem?
What’s the problem?”
Officer O’Diam gained a second hold of Defendant and put him
against the wall of the house. At that time, the Defendant began to comply
with Officer O’Diam’s orders. Defendant was placed in handcuffs and
apparently produced an ID.
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Defendant threw the keys he had to the young man that had been
running down Danner Avenue from north to south to the house. * * *
Officer O’Diam felt that Defendant had obstructed official business.
He felt Defendant had impeded his ability to investigate the window tint
issue and the failure to comply matter. So he announced an arrest of
Defendant and engaged in a pat-down for weapons. He found no
weapons. He did then indicate the search was incident to a lawful arrest
and an ID was produced. At that point, Officer O’Diam advised Defendant
of the reason for the stop. This reason was not only the arrest basis for
obstruction, but also the issues of window tint and failure to comply.
* * *
After Defendant had been handcuffed, he was not rude. He was not
hostile. Generally, he was not particularly belligerent with the officer during
the entire encounter, except he moved his body and arms after Officer
O’Diam’s initial grab and stated, “What’s the problem?”
(Emphasis added.)
{¶ 31} The court further discussed Officer Bowling’s involvement, noting that when
Bowling observed the Chrysler at Third Street and Gettysburg Avenue, he noticed that
the window tint appeared excessive on the side windows, but the front windshield was
not tinted, so Bowling was able to see the occupants of the Chrysler “as they made the
turn in front of the police cruiser.” The court observed that when Bowling observed the
Chrysler on Danner Avenue, he “saw the apparent driver on the front porch of a residence
trying to get into the house.” The court noted that Bowling had not been personally
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involved in the encounter with the black Chrysler 300 the previous week; what he knew
about that incident came only from his investigation of police databases, which revealed
the field interview card. Bowling did not know the age, weight, or facial features of the
person(s) involved in the October 22 incident. The court found that Bowling was able to
“generally identify” the occupants of the car at Third and Gettysburg and recognize that
one of them “appeared to be the same gentlemen on Danner Avenue.”
{¶ 32} Regarding Johnson, the court found that he was at the house on Danner
Avenue on October 29, 2018, had possession of some keys, and was attempting to enter
the house when police came upon the scene. The court found that Johnson “did drive
the black Chrysler” on that date just prior to his encounter with Officer O’Diam on the
porch, and Johnson recognized that there was a police officer there driving a marked
cruiser. The court found that Johnson “believed the officers were effectuating a traffic
stop when they activated the overhead lights when the cruiser was adjacent to the black
Chrysler 300 parked on the east curb.”
{¶ 33} The trial court issued the following conclusions of law:
* * *
In the case at bar, Officers O’Diam and Bowling had witnessed what
they suspected to be a traffic violation or a motor vehicle equipment
violation, the window tint issue. Accordingly, they had reasonable,
articulable suspicion to justify a traffic stop of the black Chrysler 300. The
officers came upon the black Chrysler 300 on Danner Avenue. When the
officers saw the vehicle with its window tint at Third and Gettysburg, they
noted the license plate number on the car. They also noted general
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descriptors of the occupants. Ten to fifteen minutes later they saw the car
with the license plate previously identified on the east curb of Danner
Avenue. They also saw in the car, or near the car, two individuals who
matched the descriptions in a broad sense of the occupants they had
previously seen in the car. So there was reasonable and articulable
suspicion justifying the traffic stop of the black Chrysler 300 on the east curb
or Danner Avenue on October 29, 2018 at approximately 5:30 p.m.
The officers also, in their investigation with respect to the black
Chrysler 300, received information that the operator of that vehicle had
previously failed to comply with an order or signal of a police officer. The
officers had two matters to investigate when they came upon the black
Chrysler 300 at * * * Danner Avenue on October 29, 2018.
* * *
* * * So Officer O’Diam could briefly stop and temporarily detain
Defendant, the apparent driver of the black Chrysler, in order to investigate
the window tint violation and the failure to comply. Officer O’Diam had
observed a violation of the tint rules. So he could stop Defendant to
investigate the failure to comply violation that may have occurred in relation
to this black Chrysler 300 on October 22, 2018.
{¶ 34} Regarding O’Diam’s use of force, the trial court concluded as follows:
In this case, Officer O’Diam’s act of taking hold of the waist of
Defendant was reasonable under the attendant circumstances. Officer
O’Diam was attempting to investigate the tint and failure to comply issues.
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Defendant had gone on to the porch of the house and was looking all around
as if to flee. Officer O’Diam has experience and based on Defendant’s
actions he felt Defendant was considering fleeing. Defendant had left the
black Chrysler that the officers had seen shortly before and was attempting
to enter a house. He had keys available to him and he was in the process
of utilizing the keys to get in the front door.
Defendant could certainly observe Officer O’Diam’s uniform and
could see the marked cruiser in the street. The overhead lights of the
cruiser had been activated. Officer O’Diam saw Defendant looking about.
The officers had information which led them to suspect flight because the
black Chrysler had apparently fled from police just one week before.
Admittedly, the evidence did not establish that Defendant was the driver of
the black Chrysler on October 22, 2018, but it is his mother’s car and he
appears to have access to it.
At that point, Defendant did resist. He moved his hands and arms
and twisted his body so as to break free from Officer’s O’Diam’s grip. He
was asserting rather loudly, “What’s the problem?” Then the officer
grabbed him again and placed him in handcuffs. Officer O’Diam felt that
the Defendant was impeding his ability to investigate the two issues.
It is indicated that handcuffing is permitted and Defendant’s physical
resistance indicates that the individual may be dangerous. Further, the
handcuffing did appear to be necessary to effectuate the purpose of the
stop. It is, under these circumstances, the least intrusive means available
-22-
to verify the officer’s suspicions in a short period of time. There was no
indication at that time that it would be other than temporary.
This case is somewhat similar to [State v. Thompson, 2d Dist.
Montgomery No. 26139, 2014-Ohio-4244]. In Thompson, the defendant,
after being approached by the officer, loudly and excitedly exclaimed that
he had done nothing wrong. The defendant moved his arms about and
was totally uncooperative. The officer tried to escort the defendant from a
store by the elbow, at which point the defendant said, “I’m not going
anywhere.” When the officer tried a second time to escort the defendant
out of the store by his elbow, the defendant pulled away from him. The
officer in Thompson drew a TASER in order to gain compliance. The Court
of Appeals found this detention lawful.
In the case at bar, the Defendant moved his arms and his body so
as to break the officer’s grasp. He shouts three times, “What’s the
problem?” He clearly at all times is indicating that he feels he has done
nothing wrong and is not going to cooperate.
(Footnotes omitted.)
{¶ 35} Regarding obstructing official business, the court determined as follows:
* * * In this case, Defendant, without privilege to do so, broke away
from Officer O’Diam by moving his arms and body. He continued to move
his arms and body until Officer O’Diam could grab him again. Officer
O’Diam was in the process of detaining Defendant so he could be asked
about two legal violations. Officer O’Diam felt the need to physically secure
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or seize Defendant because Defendant gave indicators that flight was
possible. Further, the circumstance of a prior failure to comply was in the
knowledge of Officer O’Diam. Defendant engaged in an act which
hampered Officer O’Diam in being able to talk with Defendant about the
possible violations.
* * * Defendant acted so as to break the hold of Officer O’Diam.
Defendant did not want to be detained so he flailed his arms, moved his
body, and yelled out.
Because no one can know the mind of another, Defendant’s intent is
not discernible through objective proof. Rather Defendant’s intent in acting
must be determined from the manner in which the act is done, the means
used, and all other facts and circumstances in evidence. Examination of
Defendant’s behavior and all facts and circumstances here indicate that
Defendant wanted to be free from interaction with Officer O’Diam. That
result, and Defendant’s action to accomplish it, hampered Officer O’Diam.
Accordingly, it is reasonable to find that Defendant was obstructing official
business.
{¶ 36} Regarding Johnson’s suggestion that O’Diam and Bowling created an
exigency in approaching him, the trial court determined as follows, citing State v. Sims,
127 Ohio App.3d 603, 713 N.E.2d 513 (2d Dist.1998):
* * * The court is of the view that the case at bar is distinguishable
from Sims. The officers [in Johnson’s case] did have reasonable, articulable
suspicion to believe that criminal activity was afoot, that is the window tint
-24-
matter. The officers [had] viewed the window tint situation only ten to
fifteen minutes before. They verified it was the same vehicle because it
had the license plate number that they previously saw and also “ran”
through police databases. They verified that the men they saw on Danner
were very probably the same men they saw in the car at Third and
Gettysburg.
The suspicion for the failure to comply is not quite as strong.
However, it is such that the officers should be able to investigate and detain,
if necessary. An [field interview] card had identified this black Chrysler 300
as being involved in the prior incident, only a week before on Weaver Street.
Weaver Street is in the same general area of west Dayton as Third and
Gettysburg. The information was obtained by the officers when utilizing
the descriptions of the car and license plate. Thus, unlike in Sims * * *, the
black Chrysler 300 is connected to some criminal activity.
In Sims, the defendants were occupants and did nothing of a
suspicious or improper nature. They are detained after the warrantless
entry. In this case, Defendant vacates the Chrysler and goes to the porch
of the residence. The Defendant appears to be considering flight. The
Defendant moves his body and arms when Officer O’Diam grabs him. The
Defendant fails to comply with the officer’s commands for a short period of
time. The officer is in uniform and is in immediate proximity to a marked
cruiser with activated overhead lights. Under these circumstances, it is
reasonable to conclude that the officers did not create an exigency that
-25-
Defendant appropriately reacted to, such that he had no purpose to
obstruct. The circumstances do not support that conclusion.
The circumstances support a conclusion that officers were
investigating with reasonable and articulable suspicion two violations of law.
They witnessed the tint violation and had, through investigation, grounds to
suspect failure to comply. They were going to discuss these matters with
Defendant. The Defendant did not cooperate. Obstructing official
business occurred.
* * * Officer O’Diam engaged in a search of the Defendant incident
to the lawful arrest for obstructing official business. During that search, the
officer found the baggie in the Defendant’s left, front pocket. The baggie
appeared to contain crack cocaine.
{¶ 37} Based on these conclusions, the trial court denied Johnson’s motion to
suppress.
{¶ 38} On April 13, 2019, Johnson filed a request for intervention in lieu of
conviction (“ILC”). On May 6, 2019, the court orally overruled this request, and Johnson
entered his plea of no contest. The trial court found him guilty and sentenced him to
community control sanctions for a period not to exceed five years.
{¶ 39} Johnson asserts the following assignment of error on appeal:
THE LOWER COURT ERRED WHEN IT DENIED MR. JOHNSON’S
MOTION TO SUPPRESS AND FOUND THAT THE USE OF FORCE IN
THE FORM OF GRABBING AND HANDCUFFING WAS PERMISSIBLE
UNDER THE CIRCUMSTANCES AND THAT MR. JOHNSON
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OBSTRUCTED OFFICIAL BUSINESS.
{¶ 40} Johnson argues that he went to his family’s residence in broad daylight to
check on his kids and that there was no evidence that this was a dangerous neighborhood
or that the officers faced any threat that day. According to Johnson, the officers
observed the Chrysler and “believed that the man standing at the door of the residence
across the street was likely the driver, based on a very limited set of descriptors and by
lack of other individuals visible in the surrounding area.” Johnson asserts that, when
O’Diam approached him, it was “most akin to a casual encounter,” with the purpose of
determining whether he had been the driver of the vehicle, because O’Diam “had a hunch”
that Johnson had been the driver of the vehicle with the window tint violation. Johnson
argues that the trial court incorrectly found that the search of Johnson was conducted
incident to lawful arrest.
{¶ 41} Johnson asserts that there was no testimony that he “presented as * * *
armed or dangerous in any way.” He was already at the door of his residence when the
cruiser pulled up, with some distance between him and the officer, and Johnson remained
at the door and waited for the approaching officer. Regarding O’Diam’s testimony that
he was concerned that Johnson might flee, Johnson characterizes this testimony as
“merely the officer’s subjective impression and speculation of what he believed was in
Johnson’s mind” and points out that, if he had truly wanted to evade the police, he “could
have done so by simply entering his family’s home or by running” as soon as he saw the
officer. Johnson asserts that O’Diam’s testimony “exemplifies the officer’s own skewed
perception” of the situation on the porch.
{¶ 42} Johnson further asserts that, under the circumstances, even a pat-down
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for weapons was not justified, so a “full seizure,” i.e., “the act of physically grabbing [him]
and restricting [his] freedom of movement entirely” also should not “pass constitutional
muster.” Johnson argues that the evidence showed that he remained at the front door,
provided identification when asked, and was neither rude nor aggressive; thus, there was
no justification for O’Diam to grab him. Johnson argues that his “natural response” of
trying to pull away, to avoid being slammed onto the concrete, did not constitute
obstructing official business. He also argues that “his action did not constitute an overt
act” for purposes of obstructing, but rather a response to being grabbed without notice or
explanation. He asserts that he did not “push or use any force towards law enforcement.”
{¶ 43} Johnson also argues that he did not act with an intent to obstruct the
officers; he acted with the intent to be free from an “unlawful interference.” According to
Johnson, he “did not even realize that there was a business to obstruct, since he was
unaware of what the business was in the first place.” He repeatedly requested
information about what O’Diam wanted and was not told the nature of the business until
after he had been pressed against the wall with his hands behind his back, at which point
he fully cooperated fully.
{¶ 44} According to Johnson, the trial court erred in relying on Thompson, 2d Dist.
Montgomery No. 26139, 2014-Ohio-4244, and Thompson “highlights some of the precise
shortcomings of this case” in that it reasoned that there should be “a reasonable
progression of how a suspect is approached.” According to Johnson, because the officer
never identified himself or the purpose for the stop to Johnson until after Johnson had
been seized and pressed against the wall, there was no “reasonable progression” like in
Thompson; O’Diam went from investigating the possible driver of a car with a tint violation
-28-
to a “full-blown seizure.” Johnson also asserts that, unlike in Thompson, the restraint
used in his case was not necessary and was not the least intrusive means reasonably
available.
{¶ 45} Johnson directs our attention to State v. Ewing, 2d Dist. Montgomery No.
27456, 2017-Ohio-7194, and he asserts that that decision “makes clear that an unlawful
stop at its inception cannot be cured” under circumstances such as those presented in
this case. He argues that police should not be allowed to “create their own exigent
circumstances or entrap people” by mishandling a situation to justify an arrest.
According to Johnson, O’Diam had “every opportunity” to speak to Johnson, address the
window tint violation, and inquire about Johnson’s knowledge regarding the incident the
previous week.” Johnson asserts that the stop should have been a “conversation” that
led to a possible citation for the window tint violation. According to Johnson, even if
deference were given to O’Diam’s concerns that Johnson might run, there was “still no
need and no justification for turning this stop into a full-blown physical seizure,” because
Johnson had not run or tried to escape up to that point. He argues that there was no
justification for O’Diam to pat him down at the outset of the encounter, and such action
did not “become justified” when O’Diam “became physical” with Johnson “without cause.”
{¶ 46} Finally, Johnson asserts that the State seemed to suggest that Johnson
consented to a pat-down, but such a claim is undercut “by the lack of voluntariness
underlying the entire interaction” and the officer’s acknowledgement of Johnson’s
statement, in response to the question about the pat-down, that the officer already was
conducting a pat-down.
{¶ 47} The State responds that O’Diam searched Johnson incident to a lawful
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arrest, and that O’Diam had probable cause to believe that Johnson committed
obstructing official business. According to the State, Johnson’s purpose in trying to run
from Officer O’Diam could “be inferred from the act and circumstances surrounding it.”
When O’Diam grabbed Johnson’s waistband, Johnson flailed his arms, broke the officer’s
grip, and started to run away; Johnson almost made it to the end of the porch before
O’Diam regained his hold of him. The State asserts that Johnson knew or should have
known that O’Diam was a police officer -- and therefore a public official – under these
circumstances.
{¶ 48} The State asserts that O’Diam had to catch Johnson before he escaped
and that Johnson impeded the investigation of the tint violation. The State points out
that R.C. 4513.241(C) prohibits operation of a vehicle that violates window tint regulations
regardless of who owns the vehicle; because it was reasonable to suspect that Johnson
was the driver of the vehicle in question, it was reasonable to detain him to investigate an
R.C. 4513.241(C) violation.
{¶ 49} According to the State, it was also reasonable for the officers to suspect
that Johnson was the driver when the Chrysler fled from the police a week earlier. The
State acknowledges that Johnson may not have been the driver who fled from police on
the prior occasion, but Officer O’Diam could nonetheless lawfully detain Johnson “long
enough to dispel his suspicion.” The State argues that O’Diam acted reasonably in
seizing Johnson, because grabbing Johnson’s waistband “was the least intrusive method
available” to effect the stop and keep Johnson from fleeing. Furthermore, in O’Diam’s
experience, Johnson’s behavior as O’Diam approached him was consistent with
someone about to flee; according to the State, this, coupled with the fact that the vehicle
-30-
Johnson was driving had recently fled from police, established a need for O’Diam to
physically restrain Johnson. The State asserts that “a traffic stop is a seizure,” that the
“limited amount of physical force here was necessary, and it was the least intrusive means
available to accomplish the goal of the stop.” According to the State, O’Diam “sought to
prevent flight instead of allowing the situation to escalate.”
{¶ 50} The State argues that Johnson “confuses the distinction between a search
and a seizure,” and that, while a search of Johnson’s person would likely have been
unlawful before O’Diam had probable cause to arrest Johnson for obstructing official
business, Johnson had “no privilege to impede a lawful investigatory detention.” The
State notes that Johnson admitted he knew O’Diam was a police officer from his uniform
and the overhead lights of his patrol car. The State also notes that the law “does not
require communication before seizure,” and Johnson cites no authority for his assertion
to the contrary.
{¶ 51} Finally, the State asserts that Johnson’s reliance upon Ewing, 2d Dist.
Montgomery No. 27456, 2017-Ohio-7194, is misplaced, since “this is not a pat-down
case,” it is a case about whether O’Diam had reasonable suspicion that Johnson might
flee. The State asserts that O’Diam did have a reasonable suspicion and that Johnson
“confuses his subjective state of mind with an officer’s objective reasonable suspicion.”
According to the State, in O’Diam’s experience, people exhibiting behaviors like
Johnson’s had fled, and this “competent, credible evidence” supported a finding that
O’Diam reasonably suspected that Johnson might flee. Finally, the State asserts that
when O’Diam began patting Johnson down, Johnson was already under arrest for
obstructing official business, so O’Diam did not need Johnson’s consent to search him.
-31-
{¶ 52} As this Court has recently noted:
* * * Appellate “review of a motion to suppress presents a mixed
question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court “is in the best
position to weigh * * * evidence * * * and evaluate [the credibility of]
witness[es],” so an “appellate court must accept the trial court's findings of
fact if they are supported by competent, credible evidence.” Id., citing State
v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Graves, 12th
Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing State v.
Cruz, 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12.
Accepting the trial court's findings of fact as true, “the appellate court must
then independently determine, without deference to the [trial court's legal]
conclusion[s],” whether the “facts satisfy the applicable * * * standard.”
Burnside * * * [at] ¶ 8, citing Fanning * * * and State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539 (4th Dist.1997).
State v. Ivkovich, 2018-Ohio-609, 106 N.E.3d 305, ¶ 7 (2d Dist.).
{¶ 53} As this Court has further indicated:
The Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Ohio Constitution guarantee the right to be free from
unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968); State v. Orr, 91 Ohio St.3d 389, 391, 745
N.E.2d 1036 (2001). The law recognizes three types of police-citizen
interactions: 1) a consensual encounter, 2) a brief investigatory stop or
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detention, and 3) an arrest. State v. Millerton, 2015-Ohio-34, 26 N.E.3d
317, ¶ 20 (2d Dist.).
Consensual encounters occur when the police merely approach a
person in a public place and engage the person in conversation, and the
person remains free not to answer and to walk away. State v. Lewis, 2d
Dist. Montgomery No. 22726, 2009-Ohio-158, ¶ 21, citing United States v.
Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
Consensual encounters are not seizures, and the Fourth Amendment
guarantees are not implicated in such an encounter. State v. Taylor, 106
Ohio App.3d 741, 747-749, 667 N.E.2d 60 (2d Dist.1995), citing Mendenhall
at 554 * * *.
Under Terry, police officers may briefly stop and/or temporarily detain
individuals in order to investigate possible criminal activity if the officers
have a reasonable, articulable suspicion that criminal activity may be afoot.
State v. Swift, 2d Dist. Montgomery No. 27036, 2016-Ohio-8191, ¶ 10. “An
individual is subject to an investigatory detention when, in view of all the
circumstances surrounding the incident, by means of physical force or show
of authority, a reasonable person would have believed that he was not free
to leave or [was] compelled to respond to questions.” Lewis at ¶ 22, citing
Mendenhall at 553 * * *, and Terry at 19 * * *. Fourth Amendment
protections are implicated in an investigatory detention, i.e., a Terry stop.
In determining whether an individual engaged in a consensual
encounter or was subject to an investigatory detention, the focus is on the
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police officer's conduct, not the subjective state of mind of the person
stopped. State v. Ramey, 2d Dist. Montgomery No. 26705, 2016-Ohio607, ¶ 25. As we stated in State v. Ward, 2017-Ohio-1391, 89 N.E.3d 124,
¶ 26 (2d Dist.):
“A consensual encounter remains consensual even if
police officers ask questions, ask to see the person's
identification, or ask to search the person's belongings, provided
‘the police do not convey a message that compliance with their
requests is required.’ ” [State v.] Westover, 2014-Ohio-1959, 10
N.E.3d 211, at ¶ 15 [(10th Dist.)], quoting [Florida v.] Bostick, [501
U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)]. In this
regard, “the crucial test is whether, taking into account all of the
circumstances surrounding the encounter, the police conduct
would ‘have communicated to a reasonable person that he was
not at liberty to ignore the police presence and go about his
business.’ ” Bostick at 437 * * *, quoting Michigan v. Chesternut,
486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).
Whether a particular police encounter with a citizen is an
investigative stop, as opposed to a consensual encounter, is fact-sensitive.
Id. at ¶ 26; State v. Satterwhite, 2d Dist. Montgomery No. 15357, 1996 WL
156881, *3 (Apr. 5, 1996). “Factors that might indicate a seizure include
the threatening presence of several police officers, the display of a weapon,
some physical touching of the person, the use of language or tone of voice
-34-
indicating that compliance with the officer's request might be required,
approaching the person in a nonpublic place, and blocking the citizen's
path.” State v. Cosby, 177 Ohio App.3d 670, 2008-Ohio-3862, 895 N.E.2d
868, ¶ 13 (2d Dist.), citing Mendenhall.
State v. Weisgarber, 2017-Ohio-8764, 88 N.E.3d 1037, ¶ 15-19 (2d Dist.).
{¶ 54} As this Court previously noted in State v. Payne, 2d Dist. Montgomery No.
13898, 1994 WL 171215, *4:
* * * It has been held that handcuffing in the course of an investigative
detention does not necessarily make that detention an arrest so long as
handcuffing is reasonable under the circumstances. * * * Whether
handcuffing or other methods of detention are reasonable “depends on
whether the restraint was temporary and lasted no longer than was
necessary to effectuate the purpose of the stop, and whether the methods
employed were the least intrusive means reasonably available to verify the
officers’ suspicions in a short period of time.” * * * Such force may be used
to maintain the status quo and prevent flight. * * *
{¶ 55} As noted above, the trial court determined that the officers had a
reasonable articulable suspicion that the window tint on the vehicle was in violation of
R.C. 4513.241, a minor misdemeanor. The trial court also found that the officers could
detain Johnson to investigate the previous failure to comply involving the vehicle, in
violation of R.C. 2921.331(B), a misdemeanor of the first degree.
{¶ 56} R.C. 2921.31(A) proscribes obstructing official business and provides: “No
person, without privilege to do so and with purpose to prevent, obstruct, or delay the
-35-
performance by a public official of any authorized act within the public official’s official
capacity, shall do any act that hampers or impedes a public official in the performance of
the public official’s lawful duties.” “In order to commit obstructing official business, an
individual must commit ‘an overt act done with an intent to obstruct the officers’ and the
act must succeed in actually hampering or impeding the officers.” State v. Davis, 2017-
Ohio-5613, 94 N.E.3d 194, ¶ 37 (2d Dist.), citing State v. Crawford, 2d Dist. Montgomery
No. 26722, 2016-Ohio-3484, ¶ 22.
{¶ 57} We have reviewed the video/audio of Johnson’s arrest. The interaction
between Johnson and O’Diam is not visible because the cruiser camera was pointing
down the street in the course of the encounter. O’Diam can be heard twice at the start
saying, “What’s up man?” O’Diam then asked Johnson if he had identification. The
parties disagree over Johnson’s response, but the trial court found that Johnson “initially
said, ‘No,’ but almost immediately changed his answer to ‘yes. ’ ” O’Diam then asked
Johnson, “Did you see a little kid come through here?” Johnson responded, “No.”
Johnson asked, “What is the problem?” O’Diam then said, “Come back to me.”
Johnson continued to repeatedly yell, “What is the problem?,” O’Diam told Johnson to
stop, and a scuffle is audible. Johnson then twice yelled “Jarelle!,” then stated, “I’m
calling my son, bro.” After asking O’Diam seven times what the problem was, Johnson
asked, “Then tell me what are we doing wrong?” Thereafter, O’Diam responded, “The
car ran from me, and I’m trying to talk to you, okay? You calm down and we’ll get it under
control, okay? Put your hands behind your back for me, all right?”
{¶ 58} Although the trial court determined that the matter herein was “somewhat
similar” to Thompson, 2d Dist. Montgomery No. 26139, 2014-Ohio-4244, we conclude
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that Johnson’s arrest was distinguishable. In Thompson, Officer Hieber observed
Thompson commit “several traffic violations” before parking his vehicle and entering a
cell phone store. Id. at ¶ 5. Hieber approached Thompson inside the store, identified
himself as a police officer, and explained “that he needed to speak with him a second
about his window tint of his vehicle.” Id. at ¶ 6. Thompson “became very defensive,”
stood up and loudly exclaimed that he had done nothing wrong. Thompson also denied
that he arrived in the vehicle parked outside, claiming instead that he had arrived on foot.
Id. Hieber testified that he advised Thompson that he had observed him park his vehicle
and again explained that he wanted to speak to Thompson about the vehicle. Id. at ¶ 7.
In response, Hieber testified that Thompson loudly denied wrongdoing and “continued to
escalate the situation.” Id. “Hieber described Thompson’s behavior as ‘spastic,’
claiming he was ‘moving his arms about,’ and that he was ‘totally uncooperative.’ ” Id.
{¶ 59} When Hieber attempted to escort Thompson from the store by his elbow,
Thompson refused, stating, “ ‘I’m not going anywhere.’ ” Id. at ¶ 8. In the course of a
second attempt to escort Thompson out, Thompson pulled away from Hieber; Hieber
“drew his taser in an effort to gain compliance and told Thompson that he was going to
conduct a pat down of his person.” Id. Hieber testified that he decided to conduct a pat
down for his safety and for the safety of the patrons in the store, as he thought Thompson
may have a weapon based on his actions and lack of cooperation. Hieber also testified
that it was cold outside and that Thompson was wearing layers of clothes in which a
weapon could have been concealed. Id. In the course of an attempted pat down, after
Thompson was ordered to place his hands on a wall, Thompson twice reached for his
right pants pocket; Hieber then placed Thompson in handcuffs and escorted him out of
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the store. Id. at ¶ 9.
{¶ 60} This Court determined that Thompson was lawfully detained and that heroin
found on his person was seized pursuant to a lawful pat down. This Court noted:
“Once a lawful stop has been made, the police may conduct a limited
protective search for concealed weapons if the officers reasonably believe
that the suspect may be armed or a danger to the officers or to others.”
(Citation omitted.) State v. Lawson, 180 Ohio App.3d 516, 2009-Ohio-62,
906 N.E.2d 443, ¶ 21 (2d Dist.). “ ‘The purpose of this limited search is not
to discover evidence of crime, but to allow the [officer to pursue his
investigation without fear of] violence[.]’ ” State v. Evans, 67 Ohio St.3d
405, 408, 618 N.E.2d 162 (1993), quoting Adams v. Williams, 407 U.S. 143,
146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
In order to justify a pat down, “the police officer must be able to point
to specific and articulable facts, which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” (Footnote
omitted.) “The officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others was in
danger.” (Citations [o]mitted.) Id. at 27. Accord State v. Grefer, 2d Dist.
Montgomery No. 25501, 2014-Ohiio-51, ¶ 24.
Thompson, 2d Dist. Montgomery No. 26130, 2014-Ohio-4244, ¶ 25-26.
{¶ 61} It was significant to this Court that Thompson’s actions led Hieber to believe
that his safety as well as the safety of the other patrons in the store may have been in
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danger. It was also significant that Thompson had lied to Hieber about driving to the
store; stood up and yelled excitedly at Hieber multiple times while flailing his arms; was
defensive and refused to calm down after Hieber merely asked to talk to him about his
window tint; and was uncooperative when Hieber asked him to come outside the store.
Id. at ¶ 27.
{¶ 62} In Ewing, 2d Dist. Montgomery No. 27456, 2017-Ohio-7194, to which
Johnson directs our attention, Officers Reeb and Conrads, who were on bike patrol,
observed Ewing enter and then depart five minutes later from a residence that was the
subject of a complaint of drug activity. Id. at ¶ 4. Ewing was then observed jaywalking.
Id. This Court noted the following facts:
Reeb stated that he and Conrads approached Ewing on their
bicycles, and that Ewing “made a right hand turn to travel west on 3rd
Street,” and that they caught up with him there. Reeb stated that they
intended “to make a stop on him for jaywalking across More Avenue.”
Reeb testified that he “was able to get directly behind [Ewing] before he
even recognized us. I asked him to stop. I got off my bicycle and I told him
the reason I stopped him was for jaywalking and then from that point I then
asked him for identification. Then I told him prior to getting your wallet out
* * * do you mind if I pat you down for weapons?” Reeb further testified, “I
said, prior to you getting your wallet out, I said, I'm going to pat you down
for weapons, so please don't reach for anything.” When asked why he
wanted to pat Ewing down, Reeb responded, “This is the highest drug and
prostitution area on the east side of Dayton,” and “with drugs, we tend to
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find weapons.”
Reeb stated that “when I expressed my concerns for patting him
down for weapons, he immediately took a step away from me, which made
me nervous. I don't know why he was trying to make separation between
the two of us.” At that time, Reeb stated that he “took another step towards
[Ewing] and asked him again if he had any weapons on him.” Reeb
testified that Ewing then took another step away from him and then “he tried
to turn away from me and * * * lunge like he was about to run across the
street.” Reeb stated that he “was then able to gain control of him. I
grabbed ahold of him and took him to the ground and then Mr. Ewing was
kind of refusing to put his hands behind his back.” Reeb stated that he and
Conrads “had to gain control of his arms and put them behind his back to
place him in cuffs.”
Id. at ¶ 5-6.
{¶ 63} This Court noted that Reeb “stated that he wanted to pat Ewing down for
weapons due to ‘where [Ewing] was coming from.’ He acknowledged that Ewing did not
make furtive movements as he approached him from behind, and that he did not observe
any bulges about Ewing’s person.” Id. at ¶ 8. This Court noted that Reeb
“acknowledged that he was in the area on a ‘drugs complaint,’ not a weapons complaint.
Reeb stated that Ewing told him that he did not want him to touch him. Reeb stated that
Ewing did not have the opportunity to run from him after he grabbed him and took him to
the ground.” Id. Ewing was arrested due to items found on his person. Id.
{¶ 64} This Court concluded that the officers’ stop of Ewing was “valid’ for
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jaywalking, a minor misdemeanor, noting that R.C. 2935.26 provides that a citation for a
minor misdemeanor must be used rather than an arrest, under appropriate
circumstances. Id. at ¶ 42, 44. This Court noted that, although Reeb initially asked for
Ewing’s identification, the trial court determined that Ewing “was not given an opportunity
to identify himself,” since Reeb then indicated his intention to pat Ewing down before
allowing him to reach into his pocket for identification. Id. at ¶ 44. This Court further
noted that, in State v. Sumlin, 2d Dist. Montgomery No. 23144, 2009-Ohio-2185, ¶ 50,
we “found ‘that the action of simply backing away, slowly, over a short distance, from two
police officers exiting a police cruiser, in a high crime neighborhood, with ones hands
behind ones back, is not sufficient to give rise to a reasonable, articulable suspicion that
criminal activity is afoot, as required for a stop under Terry v. Ohio * * *.’ ” Ewing at ¶ 45,
citing Sumlin. We further noted that Ewing’s conduct “presented no appreciable
prospect of danger to the officers.” Id. We held that, under the totality of the
circumstances, Reeb “lacked an individualized suspicion, specific to Ewing, which
suggested a threat to the officers’ safety,” and that the trial court “did not err in grating
Ewing’s motion to suppress.” Id. at ¶ 45-46.
{¶ 65} Taking into account all of the circumstances, we initially conclude that
O’Diam’s encounter with Johnson was in the nature of a Terry stop, and not a consensual
encounter. Terry held that “ ‘where a police officer observes unusual conduct which
leads him reasonably to conclude that criminal activity may be afoot’ the officer may briefly
stop the suspicious person and make ‘reasonable inquiries’ aimed at confirming or
dispelling his suspicions.” State v. Evans, 67 Ohio St.3d 405, 422, 1993-Ohio-186, 618
N.E.2d 162, quoting Terry at 30. The officer’s mission during a traffic stop includes
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determining whether to issue a traffic ticket, checking the driver’s license, determining
whether there are outstanding warrants against the driver, and inspecting the
automobile’s registration and proof of insurance. “* * * [A]ddressing the infraction is the
purpose of the stop * * *.” Rodriquez v. United States, 575 U.S. 348, 135 S.Ct. 1609,
191 L.Ed. 492 (2015). Here, the only traffic violation associated with Johnson for which
there was direct evidence was the window tint violation. Accordingly, the first thing to be
done was to advise Johnson of the basis for the encounter.
{¶ 66} Although O’Diam was in uniform and activated his overhead lights in the
course of the stop, he did not identify himself by name to Johnson or immediately state
the basis for the stop. Based upon O’Diam’s testimony, we conclude that asking
Johnson if he had observed a small child passing by was not a “reasonable inquiry” aimed
at confirming O’Diam’s suspicions regarding the vehicle, but rather a ruse to close the
gap between him and Johnson to allow for the unjustified, physical seizure of Johnson’s
person. O’Diam did not advise Johnson of the purpose of his investigation until after
Johnson was forcibly seized. We cannot conclude that Johnson’s looking around and
fumbling with keys at the door of a home for which he possessed his own key was
conclusive indicia of flight, and Johnson did not resist or obstruct in any fashion until he
was unlawfully, forcibly seized by O’Diam.
{¶ 67} The trial court referred to Johnson as the “apparent driver” of the Chrysler
on the day of the stop, but there was no evidence that Johnson had been driving the
vehicle the week before, and O’Diam knew that the vehicle was registered to Rachel
Heard. In other words, while the Chrysler was previously observed fleeing from the
police, there was no direct evidence connecting the previous flight to Johnson. O’Diam’s
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repeated characterization of the vehicle’s “propensity to flee” and his testimony that “if
they’re going to flee in a car, they’re going to flee on foot typically,” in relation to Johnson,
were therefore attenuated, and Johnson’s affirmative acts on the porch did not reveal any
attempt to flee.
{¶ 68} In Thompson, Officer Hieber identified himself to Thompson at the start of
their encounter and clearly explained that he was investigating the window tint of the
vehicle, whereas O’Diam did not advise Johnson of the reason for the stop until after he
attempted to effect a ruse about a child, after he physically restrained Johnson, and after
Johnson repeatedly asked, “What is the problem?” In Thompson, in spite of Hieber’s
reasonable conduct, Thompson lied to Hieber, an overt act, and remained defiant,
refusing to comply and escalating the situation. Officer Hieber was concerned about his
safety and the safety of the store patrons. By contrast, O’Diam expressed concern that
Johnson might flee. We conclude that the record herein is devoid of the requisite “overt
act with an intent to obstruct the officers” to establish obstruction of business prior to
Johnson’s unlawful, forcible seizure. O’Diam’s concern about Johnson’s potential flight
was insufficient, and Johnson did not attempt to leave the porch in the course of the
encounter.1
{¶ 69} The trial court’s finding that Johnson “believed the officers were effectuating
a traffic stop” when they activated the overhead lights as the cruiser pulled next to the
Chrysler along the curb is not supported by competent, credible evidence. Fifteen to
twenty minutes had elapsed since the officers observed the Chrysler, and Johnson had
1
We have viewed State’s Exhibit 4, a photograph of the Danner Avenue residence, and
the porch is small, covering the front door and one window at the front of the house.
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not been pursued or been given any indication that he had violated a traffic law before he
parked and exited the vehicle.
{¶ 70} We agree with Johnson that O’Diam was not permitted to create an
exigency by seizing Johnson before explaining the basis for the stop. As in Ewing, there
was no evidence that Johnson made furtive movements such as reaching into his
pockets, there was no evidence that the residence was in a high crime area, or that any
bulges were visible on Johnson’s person suggesting the presence of weapons, and
Johnson’s conduct presented no appreciable danger to O’Diam and Bowling. There was
no evidence that the officers recognized Johnson from prior criminal interaction.
Johnson had not even stepped away or backed up from O’Diam prior to his physical
restraint.
{¶ 71} Also as in Ewing, Johnson did not take the opportunity to run before O’Diam
placed him against the wall of the residence. O’Diam testified only that Johnson moved
three steps from him on the porch before O’Diam grabbed him a second time. See State
v. Lohaus, 1st Dist. Hamilton No. C-020444, 2003-Ohio-777, ¶ 12 (defendant’s actions in
fleeing across several lawns after being told to stop and in forcing the investigating officer
to physically restrain him fell squarely within R.C 2921.31(A)); State v. Lewis, 2d Dist.
Montgomery No. 27152, 2017-Ohio-1195, ¶ 12 (by fleeing on foot from the scene of a
lawful traffic stop and requiring the officer to pursue him into the street, defendant was
subject to a valid arrest for obstructing official business).
{¶ 72} We conclude that O’Diam did not engage in the least intrusive means
reasonably available to verify his suspicions and that his use of force in seizing Johnson
was greater than necessary to carry out his duties; therefore, his actions were unlawful
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and unreasonable. To the extent the State asserts that Johnson did not cooperate, we
conclude that Johnson was not given an opportunity to cooperate. Significantly, O’Diam
testified that he was able to “pick up [Johnson’s] body weight,” acknowledged that he
forced Johnson’s body against the wall of the house before explaining the reason for the
stop, and testified that he “wanted to get his hands on him first” before explaining the
reason for the stop. It is evident that Johnson carried identification, since it was
ultimately provided, and O’Diam should have given him the opportunity to produce it
before forcefully seizing him. O’Diam testified that Johnson was not rude nor hostile.
{¶ 73} We conclude that excessive force was used in the context of this
investigatory stop of a free citizen, invoking the protections of the Fourth Amendment,
which guarantees citizens the right to be secure in their persons against unreasonable
seizures of the person. This requires that the use of force be objectively reasonable,
balancing the cost to the individual against the government’s interest in effecting a
seizure. There is a built-in measure of deference to the officer’s on-the-spot judgment
about the level of force necessary in light of the circumstances of the particular case. This
includes the severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officer or others, and whether the suspect is actively resisting arrest
or attempting to evade arrest by flight. A window tint violation is a minor misdemeanor;
there was no direct evidence that Johnson was the driver at the time of the previous failure
to comply, there was no evidence that Johnson posed a threat to the officers or others,
and Johnson did not resist until he was forcefully seized without explanation. While the
goal of an officer’s safety and investigatory duties may be in tension with an individual’s
right to be free from unwarranted/unlawful physical seizure of one’s person, they can coexist; indeed the Ohio and U.S. Constitutions mandate it. It is not obstructive, nor is it
attempted flight, to simply look around.
Outcome: We conclude that, in light of all the surrounding circumstances, the trial
court erred in overruling Johnson’s motion to suppress, because no overt act of
obstruction or attempted flight preceded O’Diam’s use of unreasonable force. Johnson’s arrest was unlawful.
Johnson’s assignment of error is sustained. The judgment of the trial court
is reversed, and the matter will be remanded for further proceedings.
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