State v. Abner
194 Ohio App. 3d 523
| Ohio Ct. App. | 2011Background
- Officers patrolling the Phoenix Project in the Walgreen’s lot observed a vehicle parked awkwardly with an out-of-county plate used to buy drugs in the drug‑infested area.
- The truck fronted Salem Avenue and was partly in a throughway; officers approached to determine why it was parked in that manner.
- Abner and another man approached; Abner moved toward the passenger side door as a bag of Walgreen’s items remained, and the officer could not see his right hand at first.
- Abner opened the passenger door; he and his companion carried Walgreen’s bag, and Abner placed both hands inside the truck cab, prompting safety concerns.
- Gustwiller seized Abner’s shoulders; a clear plastic bag containing heroin was found on the truck seat, leading to his arrest for heroin possession.
- The trial court denied the suppression motion, ruling that Abner’s furtive movement justified a stop; the defense appealed, challenging the stop as unlawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stop/seizure was supported by reasonable suspicion | Abner argues no reasonable suspicion existed to stop him. | Abner contends the stop was justified by furtive movement and safety concerns under Terry | No reasonable suspicion; seizure unlawful |
| Whether Abner’s hands entering the cab constituted a furtive gesture | Furtive gesture existed due to hand movements toward the cab. | Gesture did not rise to furtive or suspicious conduct under the circumstances. | Gesture not enough for furtive movement; unlawful seizure |
| Whether the plain view heroin was admissible as the fruit of an unlawful seizure | Plain view discovery after a legal seizure is admissible. | Plain view evidence is tainted by an unlawful seizure and should be suppressed. | Plain view evidence excluded; reversal of suppression denial |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (authority for reasonable suspicion and stop for weapons safety)
- State v. Bobo, 37 Ohio St.3d 177 (1988) (totality-of-the-circumstances for stop and frisk)
- State v. Retherford, 93 Ohio App.3d 586 (1994) (trial court findings on suppression reviewed for sufficiency)
- State v. Schooler, 2004-Ohio-3578 (Montgomery App. 2004) (furtive gestures alone insufficient for stop)
- State v. Jarnigan, 2009-Ohio-1640 (Montgomery App. 2009) (furtive gesture analysis within a high-crime area)