Opinion

State v. Gulley

  • 181 Ohio App. 3d 117
  • 2009 Ohio 692
  • 907 N.E.2d 1262
Court
Ohio Court of Appeals
Filed
Feb 13, 2009
Status
Published
Author
Donovan
On the bench
Fain, Brogan, Donovan
Cited by
0 cases
Authority
More cited than 43.5%

The opinion

*123

Donovan, Presiding Judge,

dissenting.

{¶ 31} I disagree. In

State v. Topps,

Montgomery App. No. 22281, 2008-Ohio-4021 , 2008 WL 3199500 , we concluded “that under

limited circumstances,

a police officer may briefly detain a potential witness to a criminal act for investigative purposes, even though the officer has no reasonable basis for concluding that the potential witness is, or may have been, involved in the criminal activity that the police officer is investigating, consistently with the Fourth Amendment.” (Emphasis added.) Id. at ¶ 15. This is not one of those

limited circumstances. Topps

is distinguishable.

Topps

involved a dispatch for domestic violence and a pedestrian who may have been run over and dragged by a vehicle. In

Topps,

as noted by the majority, the police encountered a screaming individual and a potential witness nearby. Clearly, there was a public interest in seizing the potential witness to a violent crime.

{¶ 32} I fail to see the comparison when the concern here is for an individual walking in the roadway, a minor offense under the traffic code, and/or a minor misdemeanor, public intoxication. The relative public concern is certainly not as great.

{¶ 33} I cannot conclude that the officer had a specific articulable suspicion that Gulley was involved in a crime or a witness thereto. Assuming arguendo that a brief stop of Gulley was necessary to acquire information about an intoxicated female, the facts on this record do not justify grabbing hold of him and forcing him to the ground. These officers lacked a reasonable suspicion that Gulley was engaged in criminal activity when they ordered him not to place his hands in his pocket on a cold night. In fact, the record does not affirmatively establish that he was given an opportunity to comply before he was physically seized by the arm. Nor does the mere fact of walking away initially indicate that the officers were dealing with an armed and dangerous individual.

{¶ 34} Finally, absent any basis for suspicion of misconduct, the balance between the public interest in crime prevention and Gulley’s right to personal security and privacy tilts in favor of freedom from police interference. See

Brown v. Texas

(1979), 443 U.S. 47, 50-51 , 99 S.Ct. 2637 , 61 L.Ed.2d 357 . I would affirm the decision of the trial court granting the motion to suppress.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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