1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 

 v. 

JOSHUA KERSEY, 

 Defendant. 

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Case No. 1:17-cr-00116 

Judge Susan J. Dlott 

ORDER GRANTING 

DEFENDANT’S MOTION TO 

RECONSIDER 

This criminal proceeding is before the Court on Defendant’s Motion for Reconsideration 

(Doc. 29), which the United States has opposed (Doc. 34). Defendant previously moved to 

suppress evidence in this case (Doc. 19), which the United States opposed (Doc. 21). At 

Defendant’s request and to further develop the record, the Court conducted an evidentiary 

hearing on December 18, 2017. The parties filed post-hearing briefs (Docs. 25–27), and the 

Court denied Defendant’s Motion to Suppress (Doc. 28). 

After the Court denied Defendant’s Motion to Suppress, the Defendant filed the instant 

Motion for Reconsideration (Doc. 28). In it, Defendant contends that the Court correctly 

determined the lawful traffic stop concluded at 13:46, but incorrectly relied on information 

obtained after that time to justify the extension of the traffic stop. The Government responds that 

the Deputy in this case had independent reasonable suspicion to extend the traffic stop prior to 

13:46. For the reasons that follow, Defendant’s Motion for Reconsideration (Doc. 34) is hereby 

GRANTED, and any evidence seized, or statements made, after the lawful traffic stop concluded 

must be suppressed. 
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I. BACKGROUND1

On May 14, 2017, Hamilton County Deputy Sheriff Joshua Hawthorne was working a 

routine patrol in District 3, which covers Sycamore Township and includes the Kenwood Towne 

Centre shopping mall. (Doc. 24 at PageID 65–66.) He was inside his marked patrol vehicle, 

which was parked in the fire lane outside Entry No. 6 (between Macy’s department store and 

Red Robin restaurant) completing an unrelated theft report, when he noticed Defendant walk in 

front of his vehicle. (Id. at PageID 66, 85–86.) Defendant “caught [his] eye because he was just 

walking aimlessly looking around. . . . kind of like he was either intoxicated or . . . didn’t have a 

clear head of some sorts.” (Id. at PageID 67, 71, 85.) Hawthorne noticed “numerous old track 

marks on [Defendant’s] arm by use of possible needles,” which he thought “was kind of odd.” 

(Id. at PageID 67.) He radioed mall security to “put [Defendant] on camera” as he entered the 

building. (Id. at PageID 68–69.) Hawthorne observed Defendant enter the mall, remain inside 

for only 20 seconds or so, and leave. Defendant then got into the passenger seat of a vehicle—a 

Toyota Camry—that, according to mall security, backed out of a dedicated parking spot—and 

drove through the parking lot—at a “higher” rate of speed. (Id. at PageID 69–70.) 

Once the vehicle had exited the mall parking lot onto Kenwood Road, Deputy Hawthorne 

resolved to “find a reason to pull the car over and see what’s going on.” (Id. at PageID 70.) That 

reason came when the driver of the vehicle signaled to change lanes and “instantaneously” did 

so, in violation of an Ohio traffic law that requires a driver to signal for at least 100 feet before 

 

1

 The Court made factual findings following the December 18, 2017 hearing. (Doc. 28). For clarity, those same 

factual findings will be repeated here. 
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changing lanes. (Id. at PageID 72–73, 103.)2

 Hawthorne activated his lights and stopped the 

vehicle in a strip mall parking lot a block away. (Id. at PageID 73.) 

Deputy Hawthorne approached the vehicle and asked the driver for his license and 

registration, which were provided. (Id. at PageID 73, 104.) He then asked Defendant “if he 

knew his name.” (Id. at PageID 73, 108.) Defendant gave him the name “Joshua Thompson” 

and apparently also provided a date of birth. (Id. at PageID 73–74.) Hawthorne then returned to 

his cruiser. (Id. at PageID 74.) He determined that the driver’s license was valid but “nothing 

was coming back” vis-à-vis Defendant. (Id.) By this point Hawthorne’s partner, Deputy 

Rechtin, had arrived on scene, and, at Hawthorne’s request, Rechtin approached the vehicle and 

asked Defendant for his social security number. (Id. at PageID 74, 114, 117.) The number 

Defendant gave came back to a female. (Id. at PageID 79.) At this point, Hawthorne “decided to 

pull” Defendant from the car and place him in his cruiser. (Id. at PageID 80.) Once inside, 

Hawthorne told Defendant, “You’re just digging yourself a hole. Why don’t you give me your 

correct information[?]” (Id.) Explaining that he lied because he thought he “had a warrant out of 

Kentucky,” Defendant then provided Hawthorne with his actual social security number. (Id.) 

No warrant came up, but a computer check revealed Defendant’s identity as Joshua Kersey. (Id.) 

Meanwhile Officer Andrea Alt, from the neighboring jurisdiction of Amberley Village, 

arrived on scene with her K-9 partner, Creed,3

 who alerted to the driver’s side (passenger door 

seam) of the vehicle. (Id. at PageID 154–55, 158.) Deputy Hawthorne had messaged Alt shortly 

 

2 See Government Exhibit 7, Ohio Rev. Code § 4511.39 (“Use of signals for stopping, turning, decreasing speed, 

moving left or right; limitations”). While “not the easiest thing in the world” to gauge, Deputy Hawthorne estimates 

that 100 feet would amount to “at least three signal blinks if you’re traveling on the road.” (Doc. 24 at PageID 103.) 

3

 K-9 Creed is state certified as both a narcotics detection dog (to include marijuana, cocaine, heroin, 

methamphetamines, and their derivatives) and a patrol dog (meaning he can track suspects by detecting human 

odor). (Id. at PageID 146–49, 162; Government Exh. 3.) 
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after he “called” the traffic stop4

 “[d]ue to the recent not contact but observations of Mr. Kersey, 

being that possibly he was drug dependent, possibly [ ] intoxicated.” (Id. at PageID 77–80, 

146.) Alt assisted Hawthorne in searching the vehicle and “almost got stuck with a needle that 

was pointing straight up.” (Id. at PageID 155.) She also discovered a revolver under the 

passenger seat, “and some rounds on the floor.” (Id. at PageID 156.) Hawthorne took these 

items “into his custody and placed them into evidence.” (Id.) 

After the vehicle was “cleared,” Deputy Hawthorne returned to his cruiser and orally 

advised Defendant of his Miranda rights.5 (Id. at PageID 81, 130.) According to Hawthorne, 

Defendant admitted the weapon, syringe, and rounds were his. (Id.) Hawthorne then said, “I 

looked at your history. You shouldn’t even have a firearm due to being a convicted felon.” (Id.) 

In reply, Defendant told Hawthorne “it’s the life he lives.” (Id. at PageID 81–82, 130.) 

Hawthorne placed Defendant under arrest, charging him with obstructing official business, 

possession of a drug abuse instrument, and having a weapon under disability. (Id. at PageID 82–

83.) 

Defendant is charged in the Southern District of Ohio with being a felon in possession of 

a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2. 

II. ANALYSIS 

A. The Initial Traffic Stop 

 “An ordinary traffic stop by a police officer is a ‘seizure’ within the meaning of the 

Fourth Amendment.” United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008) (citing Del. v. 

Prouse, 440 U.S. 648, 653 (1979)). Thus, evidence seized during an illegal traffic stop “must be 

 

4

 Deputy Hawthorne explained that his practice is to “call out” his stop before he actually stops a vehicle, “That way 

I have all the information in case the vehicle does not stop. It’s out there over the air. And if we stop somewhere 

else, I can just give an update on the location.” (Id. at PageID 78.) 5 Miranda v. Arizona, 384 U.S. 436 (1966). 
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suppressed as ‘fruits of the poisonous tree.’” Id. (citing United States v. Hill, 195 F.3d 259, 264 

(6th Cir. 1999) (quoting Wong Sun v. United States, 371 U.S. 471, 484 (1963))). It is wellestablished, however, that a police officer “lawfully may stop a car when he has probable cause 

to believe that a civil traffic violation has occurred.” United States v. Jackson, 682 F.3d 448, 453 

(6th Cir. 2012). 

A traffic stop, though, is limited by its purpose and may “last no longer than is necessary 

to effectuate th[at] purpose.” Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015) (quoting 

Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)). “Authority for the seizure thus 

ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” 

Id. (citation omitted). 

As the Court explained in its previous order, Deputy Hawthorne’s traffic stop was lawful, 

but the traffic stop concluded at 13:46—the time at which the driver’s information came back 

valid and Hawthorne determined that he would not issue a citation for the lane change violation. 

(Doc. 24 at PageID 112–13.) After he made this determination, Hawthorne then ran the name 

“Joshua Thompson”—the name “volunteered” by Defendant—beginning at 13:47. After 

spending “a couple of minutes” slogging through information, (Id. at PgaeID 117), and coming 

up with “nothing,” at 13:50 Hawthorne ran the social security number Defendant gave to his 

partner (who had arrived on scene at 13:48), which returned to a female. (Government Exh. 1 

(KERSEY_0148).) It was at this point, Hawthorne testified, that he removed Defendant from the 

Camry and placed him in his cruiser. (Doc. 24 at PageID 80.) The MDC log indicates that 

Officer Alt posted a comment at 13:51 that she was en route for a car search, with a response 

from Hawthorne at 13:52 giving the particulars of his location. (Government Exh. 1 

(KERSEY_0148).) These entries correspond with Hawthorne’s testimony that Alt arrived on 
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scene while he was cautioning Defendant that he needed to provide truthful information to him 

concerning his identity. (Doc. 24 at PageID 80-81.) 

The issue currently before the Court, then, is whether the additional time period spent 

investigating Defendant’s true identity—during which the positive sniff by K-9 Creed 

occurred—impermissibly prolonged the stop. If so, the evidence consequently recovered and the 

statements subsequently made must be suppressed. 

B. Reasonable Suspicion of Criminal Activity to Extend the Stop 

In its prior Order denying Defendant’s Motion to Suppress (Doc. 28), the Court found 

that “reasonable suspicion of criminal activity” justified detaining Defendant “beyond 

completion of the traffic infraction investigation.” (Id. at PageID 207 (quoting Rodriguez, 135 S. 

Ct. at 1616–17).) However, the Court’s conclusion was based, in part, on the false name 

Defendant gave Hawthorne and the false social security Defendant gave Deputy Rechtin. (Id. at 

PageID 207–08.) As Defendant notes in his Motion to Reconsider, this information was not 

known until after the stop was concluded at 13:46. 

The question the Court must now revisit, then, is whether “reasonable suspicion of 

criminal activity” existed at the conclusion of the traffic stop to justify detaining Defendant 

“beyond completion of the traffic infraction investigation.” See Rodriguez, 135 S. Ct. at 1616–

17; see also United States v. Urrieta, 520 F.3d 569, 574 (6th Cir. 2008) (“[O]nce the purpose of 

a traffic stop is completed, a motorist cannot be further detained unless something that occurred 

during the stop caused the officer to have a reasonable suspicion that criminal activity was 

afoot.”)). Once the “Terry clock”6

 reset, further detention of Defendant must be supported “by 

an independent reasonable and articulable suspicion that criminal activity was afoot.” United 

 

6 Terry v. Ohio, 392 U.S. 1 (1968). 
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States v. Winters, 782 F.3d 289, 298 (6th Cir. 2015) (citing United States v. Johnson, 482 F. 

App’x 137, 143–44 (6th Cir. 2012) (citing Hill, 195 F.3d at 264)). 

“Whether an officer has reasonable, articulable suspicion of criminal activity ‘is based on 

the totality of the circumstances presented to the officer.’” Id. (quoting United States v. Jones, 

673 F.3d 497, 502 (6th Cir. 2012)). “[W]e do not employ a ‘divide-and-conquer analysis’ for 

each thing an officer witnesses.” United States v. Coker, 648 F. App’x 541, 545 (6th Cir. 2016) 

(quoting United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744 (2002)). “The officer ‘must 

be able to articulate something more than an inchoate and unparticularized suspicion or hunch.’” 

Jones, 673 F.3d at 502 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal 

quotation and citation omitted)). Police officers are, however, “permitted ‘to draw on their own 

experience and specialized training to make inferences from and deductions about the cumulative 

information available to them that might well elude an untrained person.’” United States v. 

Shank, 543 F.3d 309, 315 (quoting United States v. Martin, 289 F.3d 392, 398 (6th Cir. 2002)). 

In the case at bar, the facts proffered by the Government in an attempt to articulate 

“reasonable” suspicion at the time the traffic stop concluded consist of: (1) Defendant’s 20-

second “odd” behavior entering and exiting the shopping mall during which, based on his 

training and experience, Hawthorne thought Defendant might be “high on drugs and there may 

be drugs present around him”; (2) Deputy Hawthorne’s observation that he saw “older track 

marks” on Defendant’s arms; (3) Deputy Hawthorne’s training and experience that drug users 

tend to steal from retail establishments; and (4) the Camry, in which Defendant was riding, drove 

through the mall parking lot at a “higher” rate of speed. (Doc. 34 at PageID 221–22.) 

Considered alone, Deputy Hawthorne conceded that Defendant’s “disorientation”—

whether because he was “intoxicated” or suffering from “a head injury” or “possibly high on 
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drugs”—“wouldn’t have fit a law - - any violation of law.” (Doc. 24 at PageID 110–11.) And it 

was only on this basis that he asked Defendant for his name once the Camry was stopped. (Id. at 

PageID 110.) At the traffic stop, Hawthorne had no reason to suspect that Defendant had stolen 

anything from the mall as Defendant was observed on camera entering and exiting the mall 20 

seconds later. (Id. at PageID 89.) By the time the traffic stop concluded at 13:46, any concerns 

relating to traffic infractions for the car in which Defendant was a passenger had been resolved. 

(Id. at PageID 110.) Thus, without more, the totality of circumstances at 13:46 do not support a 

reasonable, articulable suspicion of criminal activity. 

The traffic stop occurred in the early afternoon, and, as Deputy Hawthorne 

acknowledged, not in a high-crime area. (Doc. 24 at PageID 132.) Rather, the area around 

Kenwood Towne Centre is affluent, described by Hawthorne as “one of the [ ] better areas to 

shop.” (Id. at PageID 88.) While mall security relayed that the vehicle drove through the 

parking lot at an unspecified “higher” rate of speed, the vehicle did not speed to attempt any sort 

of “get away” once on Kenwood Road. (See id. at PageID 69–70, 99.) That Hawthorne stops 

vehicles for lane change violations “quite often” but does not “normally” ticket the offending 

drivers suggests that this infraction poses little—if any—ostensible danger to law enforcement or 

the public. (See id. at PageID 112.) Significantly, the identification provided by the driver was 

“valid.” The vehicle did not have tinted windows designed to conceal the occupants from plain 

view. And Hawthorne did not testify that either the driver or Defendant appeared nervous or 

agitated during any portion of the stop. 

This was no mere traffic stop. It was Deputy Hawthorne’s admirable effort to “finally 

[get] a good pop” and to make the area he patrols safer for its citizens. (See Government Exh. 1 
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(KERSEY_0151); Doc. 24 at PageID 131–33.)7

 Getting a gun off the street, especially one in 

the hands of a felon, is “good work” indeed, “and we rightly applaud, respect, and deeply 

appreciate the brave law enforcement officers who put their lives on the line every day to keep us 

safe.” United States v. Hill, 852 F.3d 377, 385 (4th Cir. 2017) (Davis, S.J., dissenting). That 

good work, though, cannot come at the expense of the Fourth Amendment. Taken as a whole, 

the circumstances surrounding the extension of the traffic stop did not give rise to the 

constitutionally-mandated “reasonable suspicion.” Deputy Hawthorne detained Defendant on 

what the law regards as an “ill-defined hunch,” Winters, 782 F.3d at 298, and hence any evidence 

seized, or statements made, after the lawful traffic stop concluded must be suppressed. 

III. CONCLUSION 

For the reasons set forth above, Defendant’s Motion for Reconsideration (Doc. 29) is 

hereby GRANTED. 

IT IS SO ORDERED. 

 

 Dated: March 23, 2018 S/Susan J. Dlott_______________ 

 Judge Susan J. Dlott 

 United States District Court 

 

7

 Hawthorne’s testimony suggests he suspected a narcotics, rather than firearm, violation. Having failed to note 

them in any written report, the Court does not credit that portion of his testimony where he recalls seeing “older 

track marks” on Defendant’s arm at the mall, especially since seven months elapsed between the incident and the 

hearing at which he testified and first mentioned them. (Doc. 24 at PageID 91–92, 128.)