IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

ROBERT DUANE WALKER,

Defendant.

Case No. 2:12-CR-54

Judge Peter C. Economus

OPINION AND ORDER

This matter is before the Court for consideration of Defendant’s Motion to Suppress. 

(Doc. # 14.) The government filed a response (doc. # 16), and an evidentiary hearing was held 

on May 1, 2012. Thereafter, the parties submitted post-hearing briefs, which this Court has 

reviewed. For the following reasons, Defendant’s motion is GRANTED. 

I. FACTS

On February 21, 2009, during the early morning hours, a van passed Columbus Police 

Department Sergeant Dana Norman who was travelling westbound on Interstate I-70. At that 

time, Sgt. Norman was “just driving around” to “see what[ was] going on” around the city. (Tr. 

page 67.) Although uncertain of his own speed, Sgt. Norman believed the van to be speeding, 

and he notice that the van cut sharply in front of him to make the exit at Livingston Avenue. 

(Id., page 68.) Sgt. Norman had not received any calls about the van, nor did he hear any calls 

about the van over the police radio, but he elected to follow the van on the bases of its speed and 

what appeared to him to be a hasty exit. (Id., page 70.) His “first thought was this van, whoever 

was driving this vehicle, was probably a good possibility of being a drunk driver by driving that 

erratic.” (Id., page 71.) The “erratic” driving, according to Sgt. Norman, was the undetermined 

rate of speed and its exit “off of the freeway down that ramp down to Livingston Avenue[.]”

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Well, this van is either involved in – it’s either – The first 

possibility of thought would be drunk driver, or being the fact that 

I’m involved in homicide investigations, this van could have been 

involved in some type of activity, at that time of morning, a 

shooting, fleeing from somebody. I have no idea.

(Id., page 71; see also, pages 88-89; emphasis added.) Sgt. Norman later testified that he did not 

know of any criminal activity related to the van or its driver, only that he suspected a traffic 

violation had been committed. (Tr., page 86-87.) 

Sgt. Norman continued to follow the van down Livingston Avenue and down several side 

streets. He testified that the van was “definitely speeding more than 35 miles an hour, going 

back and forth across the lanes in traffic.” (Id., page 72; see also page 91, “I don’t know how 

fast he was going down Livingston Avenue. It was more than 35 miles an hour.”) Because Sgt. 

Norman was in an unmarked car, he was not able to stop the van, so he contacted uniformed 

officers over the police radio. (Id., page 73.) As he followed the van down Heyl Avenue, he 

radioed again, noting that the van was navigating through the narrow Heyl Avenue where cars 

were parked on both sides. (Id., page 73.) He radioed two more times as he continued to follow 

onto various side streets. (Id., pages 75-79.) Eventually, he stopped on Whittier Avenue where 

the van was parked. (Id., pages 78-79.) There, Sgt. Norman saw the driver exit the van and go 

up on the porch of 815 Whittier Avenue.1

 

1 The residence at 815 Whittier Avenue belongs to Defendant’s mother and is where he frequently stays 

and where, that night, his daughter was visiting. (Tr., page 36.)

 Even though Sgt. Norman testified that he did not 

know that any criminal activity had transpired, he “tried to stop [Defendant] from eluding the 

police.” (Id., page 86.) Sgt. Norman got out of his car, followed the driver onto the porch, and 

verbally identified himself as a police officer while holding open his coat to show the police 

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badge on his belt buckle.2 The driver, later identified as Defendant Robert Walker, did not stop; 

instead, he jumped over the porch railing and ran behind the house. (Id., page 85.) Defendant 

testified that although he had noticed a white car following him soon after he exited onto 

Livingston Avenue, he did not know the driver was a police officer. (Id. at pages 40-48.) Sgt. 

Norman followed and grabbed Defendant by the back of his coat. Defendant pulled away and 

continued behind the house. At this point, uniformed officers appeared on the property, and they 

tasered, handcuffed and arrested Defendant. (Id., page 99, 115.) Defendant was searched, and a 

uniformed officer found a handgun in Defendant’s pocket. (Id., pages 115-16.) All of these 

events took place at 815 Whittier Avenue.

II. FOURTH AMENDMENT

The Fourth Amendment states,

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to be 

seized.

A. Seizure

In Terry v. Ohio, the Supreme Court noted, “It must be recognized that whenever a police 

officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that 

person.” 392 U.S. 1, 18 (1968). “Only when the officer, by means of physical force or show of 

authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has 

occurred.” Id. at 19 n. 16. “[I]n order to determine whether a particular encounter constitutes a 

 

2 In its post-hearing memorandum, the government describes Sgt. Norman as wearing a “cotton shirt and 

tie.” (Doc. # 22, page 5.) In fact, Sgt. Norman testified, “I had a coat on, a heavy coat on, and a vest. 

And I just flung my coat back like this to show that I had a badge on.” (Tr., page 84.)

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seizure, a court must consider all the circumstances surrounding the encounter to determine 

whether the police conduct would have communicated to a reasonable person that the person was 

not free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. 

Bostick, 501 U.S. 429, 438 (1991). 

There can be no dispute that Sgt. Norman never effected a traffic stop—nor intended to, 

conceding he could not have, as he was a homicide detective in plain clothes and in an unmarked 

cruiser. Therefore, no seizure occurred as the result of a traffic stop. However, once Sgt. 

Norman approached Defendant on the porch and attempted to detain him, a seizure did occur, 

from that point and throughout the subsequent tangle with the uniformed officers. Sgt. Norman 

testified that he saw Defendant exit his van and followed him up the steps to 815 Whittier

Avenue. Sgt. Norman ran up behind him, loudly identifying himself as a police officer and 

holding open his coat to show his badge. He ordered Defendant to stop several times. When 

Defendant did not stop and, instead, ran to the back of the house, Sgt. Norman “approached him, 

grabbed a hold of the back of his coat, told him to stop.” (Tr. page 86.) Therefore, this Court 

concludes that a reasonable person would believe that he was not free to “terminate the 

encounter” with the police. As a result, the encounter between Sgt. Norman and Defendant 

constituted a seizure. Certainly, when the uniformed officers appeared on the scene and tasered 

and handcuffed Defendant, he was “seized” within the meaning of the Fourth Amendment. 

Consequently, was there justification, unrelated to a traffic stop, for the officers to approach and 

detain Defendant?

B. Reasonable suspicion

“[A] police officer may stop an individual, question him, and perform a carefully limited 

pat down search for weapons where the officer reasonably concludes that criminal activity may 

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be afoot.” United States v. Harris, 192 F.3d 580, 584 (6th Cir.1999) (citing Terry, 392 U.S. at 

30). However, “[that] 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.” 

Terry, 392 U.S. at 21. The Court must give “due weight . . . not to [an officer’s] inchoate and 

unparticularized suspicion or ‘hunch’ but to the specific reasonable inferences which [an officer] 

is entitled to draw from the facts in light of [that officer’s] experience.” Id. at 27. See also

United States v. Cortez, 449 U.S. 690, 695 (1981) (holding that a police officer must justify a 

stop with “some objective manifestation that the person stopped is, or is about to be, engaged in 

criminal activity.”) (citations omitted). 

While reasonable suspicion is a less demanding standard than probable cause, the Fourth 

Amendment requires at least a minimal level of objective justification for making the stop. 

Illinois v. Wardlow, 528 U.S. 119, 123 (2000). In assessing the reasonableness of the stop, a 

court must assess the totality of the circumstances “to see whether [the officer had] a 

particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 

U.S. 266, 273 (2002).

III. WERE THERE FACTS WITHIN THE POLICE OFFICERS’

KNOWLEDGE TO SUPPORT EITHER PROBABLE CAUSE

OR A REASONABLE SUSPICION OF CRIMINAL ACTIVITY?

A. Sgt. Norman

1. The Alleged Traffic Stop

The Court finds that Sgt. Norman was unable to provide specific or articulable facts to 

warrant his attempt to detain and question Defendant. According to Sgt. Norman’s testimony, 

only two facts led him to his initial suspicion, i.e., that Defendant had violated a traffic law: (1) 

Defendant’s passing him on the interstate, and (2) Defendant’s cutting over and exiting quickly 

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at the Livingston Avenue exit. Incontestably, there are no other facts to expand Sgt. Norman’s 

primary hunch into a reasonable suspicion of criminal activity. Even if Defendant were seized 

pursuant to a traffic stop, as the government argues, this case is distinguishable from the case law 

cited by the government. In those cases, the police officers observed drivers crossing double 

yellow lines, hitting other vehicles, running onto curbs, and so on. Here, Sgt. Norman offered no 

factual basis other than Defendant’s possible speeding and his changing lanes.3 In addition, 

although Sgt. Norman later speculated that Defendant was driving under the influence of alcohol, 

he offered no factual basis to support his assumption. Again, unlike the officers in the case law 

offered by the government, Sgt. Norman did not verbalize any of the typical indicia of 

drunkenness. Therefore, Sgt. Norman did not have a reasonable suspicion of criminal activity

except vague notions of alleged traffic violations. There is no more compelling evidence than 

Sgt. Norman’s admission that he had “no idea.” (Tr., page 71.)

2. On The Porch

Similarly, Sgt. Norman had no factual basis to justify his detention of Defendant at the 

815 Whittier Avenue residence. His testimony of his reasoning for pursuing Defendant up the 

steps is telling:

Q. What was your purpose, sir, for approaching this 

individual?

A. I didn’t know what had transpired other than the obvious 

traffic violations that I had observed. And I was waiting 

for a patrol to show up. I didn’t know what he had been 

involved in whether he had been involved in some criminal 

activity or something, was fleeing from who knows what. I 

was trying to stop him from eluding the police. . . .

 

3 In fact, Sgt. Norman never testified that Defendant’s lane changes were illegal, only that Defendant 

changed lanes frequently.

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THE COURT: So you had no other reason to approach the 

defendant? You just said that?

THE WITNESS: I had no other reason because I just – his 

traffic violations he committed, I was a 

witness to that. And he proceeded to flee 

down Heyl Avenue.

(Tr., pages 86-87.) In support of the propriety of Sgt. Norman’s investigatory stop of Defendant, 

the government points to several factors: the activity occurred in the early-morning hours, 

Defendant was speeding, and the van was “weaving.” (Post-Hearing Brief, doc. # 22, page 16.) 

As this Court previously determined, Sgt. Norman’s perception is simply not enough. The 

Fourth Amendment requires at least a minimal level of objective justification for making an 

investigatory stop. Illinois v. Wardlow, 528 U.S. 119, 123 (2000); see also United States v. 

Cortez, 449 U.S. 411, 417 (1981) (“An investigatory stop must be justified by some objective 

manifestation that the person stopped is, or is about to be, engaged in criminal activity.”). The 

government also points to Defendant’s refusal to stop as confirming Sgt. Norman’s suspicions 

and “impeding” his investigation. (Post-Hearing Brief, page 17). The issue, though, is whether 

Sgt. Norman had a proper basis to stop Defendant at the time the encounter on the porch began—

not based on what happened thereafter. See United States v. Martin, 289 F.3d 392, 397 (6th Cir. 

2002) (“This Court evaluates the legitimacy of the investigative stop by making a two-part 

assessment of its reasonableness. First, the Court must determine whether there was a proper 

basis to stop the individual based upon the officer’s awareness of specific and articulable facts 

which gave rise to a reasonable suspicion.”)

B.

Because Sgt. Norman’s attempted stop and detention of Defendant was in violation of the 

Fourth Amendment, the uniformed officers’ subsequent detention and search of Defendant were 

violative of Defendant’s rights, as well. Those officers responded to Sgt. Norman’s radio calls, 

Uniformed Police Officers

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and they formed no independent belief of criminal activity, only that which they heard from Sgt. 

Norman when he radioed in. Thus, the Court finds that the officers relied on information that 

was not particularly suspicious. 

IV. CONCLUSION

Accordingly, insofar as the government has failed to articulate “a particularlized and 

objective basis for suspecting legal wrongdoing” for stopping Defendant, United States v. 

Arvizu,122 U.S. 744, 750 (2002), Defendant’s Motion to Suppress (doc. # 14) is hereby 

GRANTED, and the handgun seized from Defendant’s person must be excluded. Wong Sun v. 

United States, 371 U.S. 471, 488 (1963).

IT IS SO ORDERED.

PETER C. ECONOMUS

/s/ Peter C. Economus _____________

UNITED STATES DISTRICT JUDGE

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