[Cite as State v. Stewart, 193 Ohio App.3d 716, 2011-Ohio-2910.] 

 Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 95130 

THE STATE OF OHIO, 

APPELLEE,

v. 

STEWART,

APPELLANT.

JUDGMENT: 

REVERSED AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 
Case No. CR-530373 

BEFORE: Stewart, J., Kilbane, A.J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: June 16, 2011 

 

William D. Mason, Cuyahoga County Prosecuting Attorney, and John P. Colan, 

Assistant Prosecuting Attorney, for appellee. 

 

 

Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney, Assistant Public 

Defender, for appellant. 

MELODY J. STEWART, Judge. 

{¶ 1} Defendant-appellant, Kevin Stewart, was convicted of a single 

count of carrying a concealed weapon on a no-contest plea entered after the 

court denied his motion to suppress evidence of a gun seized during a police 

Terry stop. His sole assignment of error is that the court erred by denying 

the motion to suppress. 

{¶ 2} A shooting occurred at about 1:30 a.m. in a residential 

neighborhood. Police officers responded almost immediately to the scene and 

spoke with witnesses. A defense witness who testified at the suppression 

hearing told the police on the scene that the shooter was “something like” six 

feet tall and “looked like” he had braids under a hat, although the witness 
conceded, “I didn’t really pay any attention to him* * *.” She also said that 

the shooter had a number tattooed on his face and wore a black shirt and 

black pants. 

{¶ 3} Two more officers arrived on the scene just two to three minutes 

after receiving the call about the shooting. They were assigned the task of 

seeing whether the shooter might still be on foot in the neighborhood. These 

officers were told that there were two suspects: a male described as around 

5’10” to six feet tall in his late 20s or early 30s and in dark clothing, and a 

female. The suspects were last seen walking east. The police entered their 

car and headed east on Bellaire. About five minutes later, some three blocks 

from the shooting, they saw Stewart and a female walking through a parking 

lot. They exited the car and asked Stewart whether he carried any weapons. 

 Stewart “looked both ways” but did not reply. Fearing that he might be 

armed, the officers patted him down and found a .44 Magnum in Stewart’s 

waistband. 

{¶ 4} Stewart is actually 5’8” tall and 20 years old and was not involved 

in the shooting. One of the arresting officers testified that he and his 

partner did not see the initial report prepared by officers on the scene of the 

shooting (that report was likely prepared several hours after the shooting), so 

they went only by the description of an African American male in black 

clothing with an African American female. The officers focused on looking 
for a male and female in the area east of the shooting, and they saw Stewart 

and the female from 500 feet away as they were driving. 

{¶ 5} Stewart and his girlfriend testified that they had just exited their 

car after parking in the parking lot of Stewart’s building. A police car 

appeared. The officers exited the police car and put Stewart up against his 

car, frisking him and finding a gun. Stewart conceded that he was asked 

whether he had a weapon and did not respond. The girlfriend said that 

Stewart was wearing blue jeans, a white hoodie, and a blue and white cap. 

Stewart did not wear his hair in braids and had no tattoo on his face. 

{¶ 6} In oral findings of fact and conclusions of law, the court found 

that the totality of the circumstances supported a finding that the police had 

a reasonable and articulable suspicion that Stewart was engaged in criminal 

activity, given the initial description of a male and female leaving the scene of 

the shooting. The court found that the stop occurred so quickly after the 

officers left the scene of the shooting that the officers were justified in making 

the stop. 

{¶ 7} The standard for justifying the stop in this case is whether the 

officers had a reasonable suspicion that Stewart had been engaged in 

criminal activity. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 

889. In a case like this where the police officers who make the stop receive 

information from other police officers, the collective-knowledge doctrine 
applies. That doctrine states that law-enforcement officers cooperating in an 

investigation are entitled to rely upon each other’s knowledge of facts when 

forming the conclusion that a suspect has committed or is committing a 

crime. United States v. Hensley (1985), 469 U.S. 221, 231, 105 S.Ct. 675, 83 

L.Ed.2d 604. The doctrine is grounded upon the realization that “ ‘effective 

law enforcement cannot be conducted unless police officers can act on 

directions and information transmitted by one officer to another and that 

officers, who must often act swiftly, cannot be expected to cross-examine their 

fellow officers about the foundation for the transmitted information.’ ” Id. at 

231, quoting United States v. Robinson (1976), 536 F.2d 1298, 1299. The 

admissibility of the evidence uncovered during a stop based on information 

derived from other officers does not rest upon whether the officers relying 

upon a dispatch or flyer “were themselves aware of the specific facts which 

led their colleagues to seek their assistance,” but instead on whether the 

officers who issued the dispatch possessed reasonable suspicion to make the 

stop. Id. at 231. 

{¶ 8} Factors relevant in assessing reasonable suspicion in this case 

include the specificity of the description of the suspect, the number of people 

in the area, where the person was stopped, and how long ago the crime 

occurred. See United States v. Goodrich (C.A.3, 2006), 450 F.3d 552, 561. 

Even though a description is less than specific, other factors supporting the 
stop can exist so long as the facts known yield a limited pool of suspects. 

United States v. Broomfield (C.A.7, 2005), 417 F.3d 654, 655. 

{¶ 9} The description given to the officers on the scene and relayed to 

the arresting officers was not specific enough to justify the investigative stop. 

 One of the arresting officers conceded that “[t]he description was vague to 

start with.” Given the character of the neighborhood and the late hour, the 

description of the male would have matched just about any other male who 

might have been out at that time of night. Even so, Stewart did not match 

the description, as he was significantly younger and shorter than the 

described shooter. Indeed, the description of the shooter relayed by the 

police at the scene was highly incomplete, as the testimony showed that the 

suspect might have been wearing braids and had a facial tattoo — two very 

specific identifying characteristics that could have easily narrowed the range 

of possible suspects. 

{¶ 10} We are aware that in State v. Morgan, 8th Dist. No. 94371, 

2010-Ohio-5013, we upheld the propriety of an investigatory stop based on 

information from an identified citizen that the perpetrator of a crime was 

driving a black Cadillac. Morgan is not factually on point because the 

description given to the officers in that case was much more specific than that 

given in this case. Information providing the make and color of a car 

significantly narrows the choices from all other cars on the road — not every 
car is a Cadillac and not every Cadillac is black. But in a predominantly 

African American neighborhood, an admittedly “vague” description of 

someone as an African American male near 30 years of age and between 5’10” 

and 6 feet tall does little to narrow the scope of possible suspects and provide 

a constitutional basis for an investigatory stop. 

{¶ 11} Additionally, although one of the arresting officers testified that 

Stewart met the description they were given, including wearing dark 

clothing, both Stewart and his girlfriend testified that Stewart was wearing a 

white hoodie. Although this major discrepancy in Stewart’s clothing is one 

the trial court could have resolved in favor of the arresting officer, instead of 

doing so on the record, the court failed to address it at all. 

{¶ 12} Before issuing its decision, the trial court summarized the 

testimony presented at the suppression hearing. When recounting Stewart’s 

and his girlfriend’s testimony, the court stated, “[The girlfriend] and the 

defendant testified, and their stories were consistently similar. Went to the 

defendant’s apartment complex, both got out, walking to defendant’s 

apartment. They were stopped by police. The defendant was searched and 

weapons were found. That was the basis of [the girlfriend’s] testimony and 

the defendant Kevin Stewart’s testimony.” Nowhere does the court 

acknowledge the testimony about the clothing discrepancy. One can only 

conclude that the testimony was not considered. 
{¶ 13} Arguably, any discussion concerning the specificity of the 

description may ultimately be beside the point because the testimony of one of 

the arresting officers indicates that the information given to them, other than 

ethnicity and gender, did not have much bearing on their decision to stop 

Stewart and his companion. When asked whether Stewart matched the 

description he had been given at the scene, one of the officers testified, “To be 

honest with you, when we first saw him, we saw a black male and a black 

female. We started heading that way and he was – he matched an 

approximate height and weight, yes. He wasn’t overly tall or extremely 

short. So, yeah, he was going to be a person of interest.” The officer later 

conceded that Stewart had been doing nothing suspicious. “We were going to 

check out anybody that was out at that hour.” In response to the statement, 

“I think your testimony before was basically you saw an African American 

male and female, that’s why you stopped them,” the officer replied, “Correct.” 

{¶ 14} This testimony suggests that the officers were committed to 

stopping any young African American couple they encountered. They thus 

admittedly lacked a reasonable suspicion that Stewart had been engaged in 

criminal behavior, so the stop was invalid. 

{¶ 15} We are sensitive to the fact that a shooting had been reported a 

short time prior to the officers’ seeing Stewart and that the proximity of the 

shooting to the time of their stop gave the officers a justifiable concern for 
their safety. When a gun is fired at the scene of the crime, officers can be 

justified in acting quickly to frisk a suspect for weapons if the suspect meets 

the general description given to them. United States v. Drake (C.A.7, 2006), 

456 F.3d 771, 775. But the need to act out of concern for their own safety did 

not legitimize the indiscriminate stop and frisk of the first couple that they 

saw walking through a parking lot. Until they actually stopped the couple, 

the officers had no reasonable concern for their personal safety, as they 

admitted that Stewart had been doing nothing more suspicious than walking 

through a parking lot in the company of a female. 

{¶ 16} Finally, Stewart’s actions at the time of the stop did not give the 

police a basis for frisking him for weapons. Stewart did not respond when 

asked whether he had any weapons. One of the officers testified, “[I]f you 

ask a question with a yes or no answer, anything but a no is a yes. When I 

asked him if he had any weapons on him and he didn’t respond, there was a 

high probability he had a weapon on him.” Assuming that the encounter had 

been consensual to that point, Stewart was free not to answer any questions 

by the police. United States v. Mendenhall (1980), 446 U.S. 544, 554, 100 

S.Ct. 1870, 64 L.Ed.2d 497. His constitutionally protected right not to speak 

with the officer in a consensual encounter could not provide a basis, in the 

absence of other factors, to justify a pat-down. 
{¶ 17} The only other factor that arguably came into play was Stewart’s 

act of looking both ways after being asked whether he had any weapons. 

Even assuming that an act in plain view of the police could be considered 

furtive, furtive movements alone are insufficient to render an officer’s 

suspicions about criminal activity or the possession of weapons reasonable. 

State v. Kessler (1978), 53 Ohio St.2d 204, 208, 373 N.E.2d 1252. In any 

event, one of the police officers dispelled any notion that Stewart’s act of 

looking both ways had something to do with his being patted down. He said, 

“I simply asked this male if he had any weapons on him. And when I got the 

answer that I did, then it was time for a stop.” 

{¶ 18} The law is clear that the police cannot conduct an investigatory 

stop unless they have a reasonable, articulable suspicion that criminal 

activity has occurred. The police in this case were given such a “vague” 

description of the shooter that they were determined to stop any young 

African American couple whom they saw walking in the area. Although 

there were legitimate concerns for officer safety in light of a report that a 

firearm had been discharged, those concerns standing alone did not warrant 

the indiscriminate stopping of any person without regard to a more specific 

description. We thus find that the court erred by denying the motion to 

suppress evidence of the gun seized during the pat-down. 
{¶ 19} This cause is reversed and remanded for proceedings consistent with this 

opinion. 

Judgment reversed 

and cause remanded. 

GALLAGHER, J., concurs. 

KILBANE, A.J., dissents. 

MARY EILEEN KILBANE, A.J., dissenting. 

{¶ 20} I respectfully dissent from the majority’s decision and would 

uphold the search. 

{¶ 21} The majority acknowledges that when a gun is fired at the scene 

of the crime, officers can be justified in acting quickly. This principle is 

rooted in the notion that “ ‘effective law enforcement cannot be conducted 

unless police officers can act on directions and information transmitted by one 

officer to another and that officers, who must often act swiftly, cannot be 

expected to cross-examine their fellow officers about the foundation for the 

transmitted information.’ ” United States v. Hensley (1985), 469 U.S. 221, 

231, 105 S.Ct. 675, 83 L.Ed.2d 604, quoting United States v. Robinson (C.A.9, 

1976), 536 F.2d 1298, 1299. 
{¶ 22} The majority also acknowledges this court’s decision in State v.

Morgan, 8th Dist., No. 94371, 2010-Ohio-5013, but finds it factually 

distinguishable because the description in Morgan was much more specific 

than the description in the instant case. I disagree. 

{¶ 23} In Morgan, this court upheld the denial of a motion to suppress 

evidence when a police officer, who had responded to a call of shots fired, 

received information from an identified citizen and stopped a black Cadillac 

moments later. The officer was asked at the suppression hearing “if there 

was anything specific ‘that would set this black Cadillac apart from all the 

scores of other black Cadillacs that you would perhaps see on your route.’ 

[He] responded, ‘It was the first one we came across. Other than that, there 

was nothing special.’ ” Id. at ¶ 14. 

{¶ 24} Just like in Morgan, in the instant case, the officers stopped the 

first African American male and female they observed, and they did not point 

to anything specific that set Stewart apart from other individuals on their 

route. One of the officers testified that Stewart was a person of interest 

because he was the first African American male with an African American 

female they observed and that Stewart “matched an approximate height and 

weight.” The officer further testified they “were going to check out anybody 

that was out at that hour.” 
{¶ 25} When the officers approached Stewart and asked him whether he 

had any weapons on him, Stewart looked left, then looked right. This furtive 

movement prompted the officer to pat down Stewart for safety. The officers 

were concerned when Stewart did not immediately respond to the question 

“Do you have a weapon?” because they had just left the shooting scene only 

minutes earlier, which was approximately three blocks away, and Stewart 

matched the description of the possible suspect. 

{¶ 26} This court has found that “a report of recent gunshots must be 

taken into consideration under the totality of the circumstances test.” State 

v. Johnson (Oct. 23, 1997), Cuyahoga App. Nos. 71249 and 71250. In 

Johnson, this court reversed the trial court’s grant of a motion to suppress 

evidence when the police stopped a car within ten minutes of receiving the tip 

that gunshots were fired from a yellow car. We emphasized the fact that 

“the report was for more than just guns, it was for gunshots recently fired.” 

(Emphasis sic.) On the other hand, with a tip concerning only drugs, “mere 

corroboration of neutral details is insufficient to satisfy the Fourth 

Amendment for an investigatory stop.” Id. 

{¶ 27} Thus, I would find that Stewart’s actions, together with the close 

proximity in time and space of the recent shooting, was sufficient to justify 

the officers’ investigative stop and subsequent pat-down. 
{¶ 28} Accordingly, I would find that the trial court properly denied 

Stewart’s motion to suppress.