[Cite as State v. O'Neal,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220541 TRIAL NO. B-2101638-B Plaintiff-Appellant, : O P I N I O N. vs. :

ADONIS O’NEAL, JR., :

Defendant-Appellee. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 15, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Judge.

{¶1} Plaintiff-appellant the state of Ohio appeals from the trial court’s

decision granting defendant-appellee Adonis O’Neal, Jr.’s, motion to suppress

evidence found after police searched a car driven by O’Neal’s codefendant, A.D., in

which O’Neal had been a passenger. Because the officers had reasonable suspicion to

detain O’Neal and probable cause to search the car he was traveling in, we hold that

the trial court erred in granting O’Neal’s motion to suppress.

Factual and Procedural Background

{¶2} Following an encounter with police in the Avondale neighborhood of

Cincinnati, O’Neal and A.D. were indicted on various felony charges. For his part,

O’Neal was charged with three offenses related to the unlawful possession of a firearm

and with two drug offenses. He then moved to suppress evidence obtained from the

search and seizure of his person and the car he was traveling in.

{¶3} A.D. filed a similar motion in his case, and the trial court heard evidence

related to A.D.’s motion to suppress. In lieu of presenting evidence with regard to

O’Neal’s suppression motion, the parties submitted the transcript from A.D.’s

suppression hearing instead.

{¶4} At A.D.’s suppression hearing, Officer Brian Follrod testified that he was

in plain clothes patrolling the Avondale neighborhood. He testified that he observed

O’Neal and A.D. pull into a parking lot and walk into a convenience store. Follrod saw

the grip of a pistol protruding from O’Neal’s front pocket when he came out of the

convenience store.

{¶5} After they came out of the store, O’Neal and A.D. got back in the car and

drove away. Follrod then alerted the rest of his team that he had observed a firearm

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in the area. Because he was in plain clothes and undercover, he could not stop the car.

But he saw the car turn left and pull over. At that point, another officer stopped the

occupants. When O’Neal and A.D. stepped out of the car, Follrod no longer saw the

pistol in O’Neal’s pocket. But he did see O’Neal throw what looked like a chicken bone

on the ground. Further, Follrod ran the license plate of the car and noted that no one

associated with the car had a concealed-carry permit.

{¶6} Officer Matthew Mauric, one of the officers that Follrod alerted, arrived

after O’Neal and A.D.’s car had parked and the two men were standing beside it.

Mauric observed that the car had excessive window tint. Based on Follrod’s

observation of O’Neal littering and the firearm in his pocket, Mauric detained, patted

down, and later arrested O’Neal and A.D. Mauric confirmed that O’Neal was

prohibited from possessing a firearm after obtaining his social security number and

running his record.

{¶7} Mauric further testified that while he was standing next to the car, he

observed a marijuana cigarette in the center console. He believed he had probable

cause to search the car based on his observation of the marijuana cigarette. He also

testified that because no firearm was recovered from O’Neal or A.D., he believed the

firearm was in the car.

{¶8} The trial court granted O’Neal’s motion to suppress, finding that the

officers did not have reasonable suspicion or probable cause to stop, detain, or search

O’Neal or the car. The state now appeals.

Standard of Review

{¶9} This court reviews a trial court’s decision as to a motion to suppress de

novo. State v. Thyot,

,

(1st Dist.). “We must

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accept the trial court’s findings of fact as true if competent, credible evidence supports

them. But we must independently determine whether the facts satisfy the applicable

legal standard.”

Terry Stop

{¶10} In its sole assignment of error, the state argues the trial court erred in

granting O’Neal’s motion to suppress. And in its first issue for review under this

assignment of error, the state asserts Follrod’s observation of a pistol grip in O’Neal’s

pocket provided the officers with reasonable suspicion to detain and investigate him.

{¶11} The Ohio Supreme Court detailed the requirements of an investigatory

or Terry stop in State v. Hariston:

The Fourth Amendment to the United States Constitution prohibits

unreasonable searches and seizures. Its protections extend to brief

investigative stops that fall short of traditional arrests. An officer may

perform such a 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 that an

individual may be armed and presently dangerous, the officer may

conduct a limited protective search of the individual for concealed

weapons.

The reasonable-suspicion standard is less demanding than the

probable-cause standard used when analyzing an arrest. The

determination [of] whether an officer had reasonable suspicion to

conduct a Terry stop must be based on the totality of circumstances

viewed through the eyes of the reasonable and prudent police officer on

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the scene who must react to events as they unfold. We consider the

cumulative facts not in terms of library analysis by scholars, but as

understood by those versed in the field of law enforcement.

(Internal quotation marks and citations omitted.) State v. Hariston,

,

,

.

{¶12} With regard to firearms, the law in place at the time police searched

O’Neal only permitted certain individuals to carry concealed weapons, namely those

with permits or subject to specific permit exemptions. See R.C. 2923.12 (amended

Apr. 4, 2023); see also State v. Taylor, 8th Dist. Cuyahoga No. 92382, 2009-Ohio-

5822, ¶ 8 (describing former concealed-carry law). Courts construing this law have

upheld investigatory stops where police directly observe a person in possession of a

firearm. See, e.g., Taylor at ¶ 8; State v. Moyer, 10th Dist. Franklin No. 09AP-434,

, ¶ 25 (“An officer’s seeing an object the officer reasonably believed to

be a firearm in a person’s hand creates reasonable, articulable suspicion that

defendant is, or is about to be, engaged in criminal activity, namely carrying a

concealed weapon.”). After all, police may have no way of knowing if the person has a

permit to possess a concealed weapon or if he or she is are instead committing an

unlawful weapons offense without stopping the person to investigate.

{¶13} Here, Follrod directly observed O’Neal possessing a firearm and had no

information that O’Neal had a permit to do so. Follrod knew, however, that the owner

of the car did not have a concealed-carry permit, because a license-plate check revealed

no such permit. These facts were sufficient to create reasonable suspicion that O’Neal

may have been committing a weapons-possession offense and to justify an

investigatory stop. See Taylor at ¶ 7. Accordingly, based on the totality of the

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circumstances, we hold that the officers had reasonable suspicion to detain and

investigate O’Neal.

Automobile Exception to the Warrant Requirement

{¶14} In its second issue presented for review, the state argues the search of

the car was permissible pursuant to the automobile exception to the warrant

requirement.1 We agree.

{¶15} In State v. Acoff, we explained the parameters of the automobile

exception:

Under the automobile exception, officers are permitted to conduct a

warrantless search of a lawfully stopped automobile if they have

probable cause to believe that the vehicle contains contraband. When

an officer has probable cause to search an automobile, the officer may

conduct a warrantless search of every part of the vehicle and its

contents, including all movable containers and packages that could

contain the object of the search.

(Internal quotation marks and citations omitted.) State v. Acoff,

,

(1st Dist.).

{¶16} The automobile exception to the warrant requirement is well-

established. State v. Moore,

,

(2000). It exists

because the inherent moveability of a car creates a real danger that contraband can be

removed before a warrant can practically be issued.

citing South Dakota v.

1 The state argues two other bases for the search of the car: (1) Mauric’s observation of a marijuana cigarette in plain view and (2) police may search a car as part of a lawful Terry stop. Given our holding that the automobile exception to the warrant requirement applies, we need not consider these alternate bases for justifying the search.

6 OHIO FIRST DISTRICT COURT OF APPEALS

Opperman,

,

,

(1976). As we noted in

Acoff, the absence of a traffic stop does not prevent the application of the automobile

exception, as cars can always be moved even if they are not subject to an officer-

initiated stop.

.

{¶17} The state argues the search of the car was supported by the officers’

belief that the firearm was in the car. This belief was reasonable given Follrod’s

observation of the pistol grip in O’Neal’s pocket moments before the car stopped and

Mauric engaged O’Neal and A.D. Though O’Neal argues any initial suspicion that he

was illegally carrying a firearm was dispelled after he was searched, this actually made

it more likely that the firearm was in the car. In explaining the basis for his probable-

cause determination, Mauric testified that after O’Neal and A.D. were searched and

were found not to be in possession of the gun, “the only logical explanation would be

that the firearm would have stayed inside of that vehicle.” Further, given the excessive

window tint Mauric observed, the officers would likely not have seen the firearm in

their plain view.

{¶18} To qualify for the automobile exception, however, the police must have

been searching for contraband in the vehicle—meaning that officers needed probable

cause to believe that O’Neal’s possession of the gun was unlawful. Importantly, before

searching the car, Mauric ran O’Neal’s social security number and confirmed that

O’Neal was disabled from possessing a firearm. The police therefore possessed

sufficient justification to believe that the gun was contraband and to search the car for

it, making the automobile exception applicable here. Acoff,

,

.

7 OHIO FIRST DISTRICT COURT OF APPEALS

Conclusion

{¶19} For the reasons set forth above, we hold that the officers had reasonable

suspicion to search and detain O’Neal. We further hold that the officers had probable

cause to search the car O’Neal was traveling in pursuant to the automobile exception

to the warrant requirement. The trial court, therefore, erred in granting O’Neal’s

motion to suppress. The state’s assignment of error is sustained, the trial court’s

judgment is reversed, and the cause is remanded for further proceedings consistent

with this opinion and the law.

Judgment reversed and cause remanded.

CROUSE, P.J., and WINKLER, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.

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