Natural Movement Or Furtive Gesture? A Look At How Reaching For A Wallet With Both Arms Does Not Lead To Reasonable Individualized Suspicion

I have to admit, I would never think that how one reaches for his or her wallet would determine the outcome of a Terry pat-down search.  But, in this day and age, I guess anything is possible.

In State v. Reece, 2016-Ohio-7805, Dayton detectives were following leads to apprehend a shooting suspect who shot a two year old child.  The detectives were able to ping the shooting suspect’s cellular phone, which lead them to a shopping center.  Upon arrival, the detectives observed Reece sitting in the passenger side of an SUV in the parking lot.  At the time, Reece had his hood up and was looking down at his lap, possibly playing with his cellphone.

The detectives approached the vehicle with their weapons drawn and ordered Reece to put his hands up.  Reece immediately complied with the order and remained in the SUV with his hands in the air.  One of the detectives opened the passenger side door, saw Reece’s face, and concluded that they got the wrong guy.  However, a detective asked for Reece’s identification card, in which Reece once again complied with the order.  When reaching for his wallet, which was located in his left rear pocket, Reece reached with is left hand while his right arm moved toward his left side covering his waist area.  This movement led to the searching of Reece’s person by the detective.  Not surprisingly, the detective found a gun on Reece.  Because of this, Reece was indicted on one count of Carrying a Concealed Weapon, a felony of the fourth degree.  Reece soon after moved the trial court to suppress the pat-down search because the detective did not have reasonable suspicion to conduct any search.

During direct examination, the detective stated that when Reece covered his waistband area with his right hand “it just looked really strange to me.”  After observing this strange movement, the detective asked Reece if he had any weapons on his person.  Reece responded that he did not have any weapons.  The detective went on to testify he informed Reece that he would have to check him for weapons and began to reach for Reece’s waistband.  Reece, not liking that idea, shoved the detective’s hand away from his waistband.  Thereafter, Reece was searched by the detective and the gun was found on Reece.

The detective further stated that the area where they found Reece was a high crime area with a lot of violent crime, including weapon offenses.  In addition, the detective testified that the shooting had occurred approximately four hours before his interaction with Reece, at a location that was a couple miles away from the shopping center.  Lastly, the detective stated that before he conducted the pat-down he confirmed that Reece was not the shooting suspect.

Prior to letting the detective leave the witness stand, requested that the detective demonstrate the right arm movement that Reece allegedly made during the incident.

Based on the detective’s demonstration of Reece’s right arm movements, the trial court found that the movement of Reece’s right arm, while his left arm was reaching for his wallet, was a natural movement and not a furtive gesture.  Thus, said movement was not sufficient to support a reasonable belief that Reece was armed and dangerous to justify a pat-down search for weapons.  Not happy with this outcome, the state appealed.

The appellate court opens up their analysis by stating that an officer must have reasonable individualized suspicion that the suspect is armed and dangerous before he may conduct a pat-down for weapons.  Terry v. Ohio, 392 U.S. 1.  The existence of reasonable suspicion is determined by evaluating the totality of the circumstances, considering those circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to the events as they unfold.”  State v. Andrews, 57 Ohio St.3d 86.

Now before diving back into some more exciting case law, I wanted to talk about the totality of the circumstances the detective testified to during the suppression hearing.  The detective had 1) Reece was located in a high crime area, 2) Reece was approximately a couple miles from the scene of a shooting that had occurred four hours earlier, and 3)  the detective believed that Reece’s movement with his right arm was furtive in nature.

Okay, let us now jump back into that case law!

The appellate court goes on to state that “while the nature of an area as a high-crime area is a factor to be considered in determining whether a protective search is warranted, that factor alone is insufficient to justify a protective search.” State v. Wilcox, 2008-Ohio-3856.  In addition, “although furtive movements alone would not be sufficient to justify a search, they can be considered in making a totality of the circumstances determination.  State v. Abner, 2011-Ohio-4007.  A furtive gesture may be defined as a situation where police see a person in possession of a highly suspicious object or some object which is not identifiable but which because of other circumstances is reasonably suspected to be contraband and then observe that person make an apparent attempt to conceal that object from police view.  State v. Allen, 2010-Ohio-3336.

With all of that, the appellate court deferred to the trial court’s finding that Reece did not reach for anything or make any furtive movement.  With the furtive movement out, the only thing left out of the totality of the circumstance factors, as described above, is Reece being in a high crime area and Reece being approximately 2 miles away from the shooting scene.  These factors, however, did not weigh in the state’s favor.  The appellate court further found that even with the two other factors, the detective made the decision to pat-down Reece after he already knew that Reece was not the suspect in the investigation and that Reece fully cooperated with the officer’s demands and questions.

I have to be honest; this is an extremely close case that really hinged on the detective’s demonstration of Reece’s right arm movements.  Had the trial court found this movement to be furtive, I have no doubt Reece would have a felony conviction on his record right now.  Tough case, but great outcome for Reece!

http://www.daytonduilaw.com

 

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