[Cite as State v. Hicks, 2023-Ohio-4126.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, :

No. 112513

v. :

WILLIE HICKS, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: November 16, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-22-672509-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Frank Romeo Zeleznikar and Andrew 

Boyko, Assistant Prosecuting Attorneys, for appellant. 

Christopher McNeal, for appellee. 

Cullen Sweeney, Cuyahoga County Public Defender, and 

Jonathan Sidney, Assistant Public Defender, amicus 

curiae.

FRANK DANIEL CELEBREZZE, III, P.J.:

Appellant, the state of Ohio (“the state”), appeals from the trial court’s 

judgment granting the motion to dismiss filed by defendant-appellee, Willie Hicks 
(“Hicks”). After careful review of the record and relevant case law, we reverse the 

trial court’s judgment and remand for further proceedings consistent with this 

opinion.

I. Procedural and Factual History

On October 3, 2021, members of the Garfield Heights Police 

Department responded to an apartment complex located in Garfield Heights, Ohio, 

at approximately 3:17 a.m. after receiving multiple reports of “shots fired.” (Tr. 14, 

70). The person that placed the 911 call stated that the “shots were continuous and 

not stopping.” (Tr. 82.) The responding officers were not provided with any 

information regarding a description of the potential suspects or whether a vehicle 

was linked to the shooting. (Tr. 113.)

Upon arrival, Patrolman Peter Stockhausen (“Ofc. Stockhausen”) 

attempted to speak with bystanders in an effort to gauge their involvement in the 

reported shooting, or, alternatively, determine whether they witnessed the shooting 

or were injured. Ultimately, Ofc. Stockhausen was unable to gather pertinent 

information from the individuals he initially approached in the parking lot. 

Thereafter, Ofc. Stockhausen observed an individual, later identified as 

Hicks, attempting to exit the parking lot of the apartment complex in a red Dodge 

Challenger. Ofc. Stockhausen used his flashlight to signal for Hicks to stop the 

vehicle. He then asked Hicks to “turn the car off.” (Tr. 20.) Hicks complied with 

Ofc. Stockhausen’s initial request to stop the vehicle. Hicks, however, refused to 
turn the car engine off and “said something to the effect that he wasn’t involved” in 

the incident that the police were investigating at the apartment complex. (Tr. 26.)

Unsatisfied with Hicks’s response, Ofc. Stockhausen “pulled” on the 

door handle of Hicks’s driver’s side door to forcibly remove Hicks from the vehicle 

“because he wasn’t immediately getting out of the car as [Ofc. Stockhausen] asked 

him to.” (Tr. 20.) Hicks immediately accelerated his vehicle and attempted to flee 

the parking lot by crashing into a police cruiser, which was blocking the exit. Before 

Hicks could exit the parking lot, however, Patrolman Ronald Dodge (“Ofc. Dodge”) 

of the Garfield Heights Police Department, fired his service weapon 12 times into 

the front driver’s side of Hicks’s vehicle. Ofc. Dodge later described the 

circumstances supporting his decision to fire his service weapon as follows:

Several commands were being given that you can’t hear on my body 

camera for him to stop, exit the car, show his hands. And then at one 

point I backed up and I yelled at him a couple times, realized that he 

can’t hear me or figured he couldn’t hear me. And then he looked up —

looked right at me and then he gunned the vehicle at me. 

* * *

When I was running over, over the radio I heard — I heard more officers 

call out that they were arriving on scene so I knew they were coming up 

from behind and they couldn’t have known what was going on at this 

point you know how it was going to unfold. So they’re in the path of 

this vehicle and the driver and then he crashed so * * * I was worried 

he was going to smash into them. He was going to hit them. They 

weren’t going to see it coming.

(Tr. 86-87.) 

Ofc. Stockhausen did not fire his service weapon, but acknowledged 

that he had warned Hicks that he would shoot
[b]ecause [Hicks] was driving his car towards [Ofc.] Dodge and I knew 

that officers were responding and that they would be there fairly shortly 

so I suspected at the time that if he was to leave from that area there’s 

a highly likely chance that he would hit another officer that was 

responding as well, not to mention possibly other pedestrians that 

might have been walking around as well.

(Tr. 29-30.)

Hicks was shot eight times in his torso and upper extremities. He lost 

control of his vehicle and crashed into a nearby building. After the vehicle crashed, 

Hicks crawled from the vehicle, wounded. Emergency medical treatment was 

administered on the scene, after which Hicks was placed under arrest and was 

transported to a hospital for further care. Officers later discovered a firearm on the 

floorboard of the Dodge Challenger and learned that the vehicle driven by Hicks had 

been stolen. Video footage of the incident was captured by the body cameras worn 

by Ofcs. Stockhausen and Dodge. 

Hicks survived his injuries, and on July 21, 2022, he was named in a 

five-count indictment. Count 1 charged Hicks with felonious assault in violation of 

R.C. 2903.11(A)(2), with a furthermore specification that the victim was a peace 

officer. As described in the indictment, Hicks was charged with attempting to harm 

Ofc. Dodge with a motor vehicle. Count 2 charged Hicks with receiving stolen 

property in violation of R.C. 2913.51(A) and pertained to the 2020 Dodge Challenger 

that Hicks was operating at the time of the incident. Count 3 charged Hicks with 

vandalism in violation of R.C. 2909.05(B)(2), with a furthermore specification that 

the value of the property or the amount of physical harm involved is $7,500 or more 
but less than $150,000. As described in the indictment, Hicks caused harm to 

property that was owned, leased, or controlled by a governmental entity: the police 

cruiser that he drove into while attempting to flee. Count 4 charged Hicks with 

criminal damaging or endangering in violation of R.C. 2909.06(A)(1), with a 

furthermore specification that the offense created a risk of physical harm to another 

and described that the damage was to a 2016 Ford Flex, located in the parking lot of 

the incident. Count 5 charged Hicks with improperly handling a firearm in a motor 

vehicle in violation of R.C. 2923.16(B), with a forfeiture specification. 

On November 7, 2022, Hicks filed a motion to suppress evidence of his 

conduct following the initial stop, arguing that Ofc. Stockhausen’s conduct 

amounted to an unlawful seizure that was made without probable cause to believe 

that Hicks had committed a crime or witnessed a crime being committed. Hicks 

further argued that Ofc. Dodge’s use of deadly force was unlawful and objectively 

unreasonable. Finally, Hicks sought to dismiss his criminal case “due to outrageous 

government misconduct.” In support of this position, Hicks stated that Ofc. Dodge’s 

conduct was so egregious that it violated principles of fairness and shocked the 

universal sense of justice such that the government should be barred from invoking 

judicial process to obtain a conviction.

The state opposed Hicks’s motion to dismiss, arguing that the 

responding officers had probable cause to stop Hicks’s vehicle for investigative 

purposes because he was observed leaving the area where shots were reportedly 

fired. The state further claimed that even if the initial stop and detention of Hicks 
was unlawful, the exclusionary rule would not apply to exclude evidence of Hicks’s 

independent criminal conduct. Lastly, the state asserted that the officer’s use of 

force was reasonable under the circumstances and that a claim of “outrageous 

government conduct” is not a legally viable way to dismiss a criminal indictment. 

On March 3, 2023, the trial court held a hearing to address Hicks’s 

motions. On March 9, 2023, the trial court issued a judgment entry granting Hicks’s 

motion to suppress and dismissing his case with prejudice. The entry pertinently 

provides:

Court finds the initial stop of the defendant’s vehicle coupled with the 

attempt to open the door of the defendant was a seizure lacking 

probable cause and violation of the [Fourth] Amendment; Motion to 

suppress is well taken and granted. Court further finds that the 

Garfield Heights Police Department created the situation that led to the 

subsequent events; Motion to dismiss is well taken and granted.

The trial court’s judgment did not assess whether Ofc. Stockhausen 

possessed a reasonable, articulable suspicion of criminal activity to conduct an 

investigatory stop, nor did the trial court’s judgment address the reasonableness of 

Ofc. Dodge’s use of force.

The state timely appealed from the trial court’s judgment, assigning 

two errors for our review. 

1. The trial court erred in granting Hicks’s motion to dismiss based on 

the defense of “outrageous government conduct.”

2. The trial court erred in granting Hicks’s motion to suppress.
II. Law and Analysis

A. Motion to Dismiss

In the first assignment of error, the state argues that the trial court 

erred in granting Hicks’s motion to dismiss based on the defense of outrageous 

government conduct. The state contends that the defense is inapplicable to this case 

because (1) the government “did not create, manufacture, or assist in the criminal 

conduct that Hicks voluntarily engaged in,” and (2) the government “did not coerce, 

force, or induce Hicks into committing any of the crimes he was charged with.” The 

state maintains that by erroneously applying the doctrine of outrageous government 

conduct, the trial court did nothing but “incentivize and sanction violence and 

criminality as an acceptable response to perceived improper police conduct.”

We review a trial court’s decision to dismiss an indictment de novo, 

without deference to the decision reached by the lower court. State v. Ford, 2021-

Ohio-4608, 182 N.E.3d. 1252, ¶ 11 (8th Dist.); State v. Cash, 8th Dist. Cuyahoga No. 

95158, 2011-Ohio-938, ¶ 4. 

It appears that the trial court dismissed the indictment based upon 

Hicks’s claim of outrageous government conduct. Such a claim is founded on the 

principle that the conduct of law enforcement officers may be “so outrageous that 

due process principles would absolutely bar the government from invoking judicial 

processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431-432, 

93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). “[A] defense to a criminal charge may be 

founded upon an intolerable degree of governmental participation in the criminal 
enterprise.” Id. at 424. The claim is a due process defense that is determined as a 

matter of law prior to trial and focuses on the government’s conduct. State v. 

Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475, 951 N.E.2d 814, ¶ 43 (12th Dist.), 

citing State v. Grunder, 9th Dist. Medina No. 04CA0071-M, 2005-Ohio-2145, ¶ 4, 

and State v. Cunningham, 156 Ohio App.3d 714, 2004-Ohio-1935, 808 N.E.2d 488, 

¶ 14 (2d Dist.). 

To obtain dismissal of an indictment based upon a claim of outrageous 

government conduct, a defendant must “show conduct that violates due process in 

such a way that it is ‘so grossly shocking and so outrageous as to violate the universal 

sense of justice.’” United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir.2011), 

quoting United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991); see also United 

States v. Nickerson, 731 F.3d 1009, 1015 (9th Cir.2013). In satisfying this “extremely 

high standard,” United States v. Garza-Juarez, 992 F.2d 896, 904 (9th Cir.1993), 

“a defendant must show a nexus between the conduct and either ‘securing the 

indictment or [ ] procuring the conviction.’” United States v. Dominguez-Caicedo, 

40 F.4th 938, 949 (9th Cir.2022), quoting Nickerson at 1015. See also United States

v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir.2011) (“[The outrageous government 

conduct] must relate to the defendant’s underlying or charged criminal acts.”).

“Two factors form the underpinnings for most cases where the 

outrageous government conduct defense has been upheld: (1) government creation 

of the crime, and (2) substantial coercion.” Gaines at ¶ 44, citing United States v. 

Mosley, 965 F.2d 906, 910 (10th Cir.1992); Cunningham at ¶ 27. “‘[T]o constitute 
outrageous conduct, revulsion to the tactics [used by the government] must be 

overwhelming and universal,’ Cunningham at ¶ 29; and ‘coercion of any type must 

be particularly egregious.’ Mosley at 912.” Id.

Because “the law frowns on the exoneration of a defendant for reasons 

unrelated to his guilt or innocence,” the “extraordinary defense” of outrageous 

government conduct “is reserved for the most appalling and egregious situations,” 

and will be invoked only in truly exceptional circumstances. United States v. 

Guzmán, 282 F.3d 56, 59 (1st Cir. 2002). “It is not to be invoked each time the 

government acts deceptively or participates in a crime that it is investigating.” 

Mosley at 910. 

By way of example, courts have recognized that constitutionally 

unacceptable conduct includes, among other things, situations “where law 

enforcement agents employed unwarranted physical or mental coercion, where 

government agents engineer and direct the criminal enterprise from start to finish, 

and where the government essentially manufactures new crimes in order to obtain 

the defendant’s conviction.” Ramirez v. Montgomery, C.D.Cal. No. 2:19-CV-8424-

SB (LAL), 2021 U.S. Dist. LEXIS 254444 (Nov. 30, 2021), citing United States v. 

Stenberg, 803 F.2d 422, 429 (9th Cir.1986), superseded by statute on other 

grounds United States v. Atkinson, 966 F.2d 1270, 1273 (9th Cir.1992). See also 

Rochin v. California, 342 U.S. 165, 172-173, 72 S.Ct. 205, 96 L.Ed. 183 (1952) 

(government conduct shocked the conscience and violated the decencies of civilized 

conduct where agents forcibly opened the defendant’s mouth and forced a doctor to 
pump his stomach); United States v. Twigg, 588 F.2d 373, 380-381 (3d Cir.1978) 

(finding outrageous government conduct because agents implanted criminal design 

in defendant’s mind and provided essential supplies and technical expertise).

Far more frequently, however, courts have found that dismissal of an

indictment was not appropriate based on alleged government misconduct. See, e.g., 

United States v. Williams, 547 F.3d 1187, 1199-1201 (9th Cir.2008) (no outrageous 

government conduct even though the government suggested, directed, and 

supervised entire criminal enterprise because defendants were previously engaged 

in similar crimes, capable of continuing their crimes, contemplating and engaged in 

criminal activity, and government agent used artifice and stratagem to infiltrate 

criminal organization); United States v. Nieman, 520 F.3d 834, 837-838 (8th 

Cir.2008) (no outrageous government conduct despite government reliance on 

“unsavory informant” who used drugs with defendant because use of “unsavory 

informants” is routine and informant’s drug use is not attributable to the 

government); United States v. Luisi, 482 F.3d 43, 59 (1st Cir.2007); United States 

v. Williams, 372 F.3d 96, 111-112 (2d Cir.2004); United States v. Hoffecker, 530 

F.3d 137, 156 (3d Cir.2008); United States v. Dyess, 478 F.3d 224, 236 (4th 

Cir.2007); United States v. Gutierrez, 343 F.3d 415, 422 (5th Cir.2003); United 

States v. Chastain, 198 F.3d 1338, 1352 (11th Cir.1999); United States v. Hinds, 329 

F.3d 184, 190 (D.C. Cir.2003). 

More relevant to the circumstances presented in this case, numerous 

defendants have attempted, and failed, to have indictments dismissed based on the 
conduct of government officials during arrests. See, e.g., United States v.

Bridgewater, 175 F.Supp.2d 141 (D.P.R. 2001) (defendant arrested in international 

waters where he was subjected to poor weather conditions and handcuffed in the 

berth of a turbulent boat was not outrageous government conduct); United States v.

Fernandez, 500 F.Supp.2d 661 (W.D.Tex. 2006) (finding no outrageous 

government conduct where defendant was tricked into going to a location where 

agents took her into custody); United States v. Colburn, 546 F.Supp.3d 22 (D.Mass. 

2021) (no outrageous government conduct where agents arriving at defendant’s 

home to arrest her exacerbated a heart condition and offered to call in medical 

treatment, and she declined); United States v. Edmonds, 103 F.3d 822 (9th 

Cir.1996) (rejecting outrageous government conduct where defendant argued that 

the government relied on affidavits to execute a search warrant, even though the 

government suspected the affidavits had been falsified.).

In this case, we cannot find the conduct of the responding officers 

created or otherwise related to the circumstances supporting the receiving stolen 

property and improperly handling a firearm in a motor vehicle charges. The 

circumstances supporting these charges rely on acts that preceded Hicks’s 

encounter with the police on October 3, 2021. Similarly, the police neither created 

these crimes nor induced Hicks to possess a stolen vehicle or handle a loaded 

firearm therein.

With respect to the remaining offenses of felonious assault, 

vandalism, and criminal damaging, we find that the only actions that can be 
characterized as creating, coercing, or relating to the crimes stemming from Hicks’s 

attempt to flee was the responding officers’ decision to block the parking lot exit with 

patrol vehicles and Ofc. Stockhausen’s attempt to open Hicks’s car door by pulling

on the door handle. Whether these actions violated Hicks’s Fourth Amendment 

rights is relevant, but not determinative of a claim of outrageous government 

conduct. This court does not endorse such conduct absent an articulable basis to do 

so under the totality of the circumstances. Nevertheless, we cannot say that the 

officers’ creation of a roadblock or Ofc. Stockhausen’s attempt to open Hicks’s car 

door amounted to unprecedented police tactics that grossly shock the universal 

sense of justice. These actions constitute ordinary conduct for officers investigating 

an active crime scene. 

After careful review of the record, and upon reviewing the application 

of the doctrine of outrageous government conduct by courts throughout this 

country, we are unable to conclude that this is “the most appalling and egregious 

situation” where the government’s conduct justifies the dismissal of a defendant’s 

indictment. 

This court recognizes that Ofc. Dodge’s use of force resulted in 

substantial injuries that would have led to the loss of life in most instances. As 

addressed further below, we take no position as to whether Ofc. Dodge’s conduct 

was excessive or unreasonable because the trial court did not render any findings of 

fact or conclusions of law on this issue for us to review. Nevertheless, as relevant to 

the legal question currently before this court, we find the evidence adduced at the 
suppression hearing demonstrates that the actions by Hicks supporting the 

felonious assault, vandalism, and criminal damaging charges were fully completed 

at the time Ofc. Dodge determined that it was necessary to discharge his service 

weapon. Thus, we cannot say that Ofc. Dodge’s conduct created, coerced, or related 

to the actions by Hicks in committing the above crimes. 

Moreover, this court is unaware of any case law suggesting that the 

alleged use of excessive force in facilitating an arrest supports the application of the 

outrageous government conduct defense. Leiterman v. Rushen, 704 F.2d 442, 444 

(9th Cir.1983) (finding no causal connection between the police violence and the 

conviction). “Misconduct by the police may give rise to a variety of claims and 

remedies.” Leiterman at id. While the reasonableness of Ofc. Dodge’s use of deadly 

force may be debated in other pending or future proceedings, his conduct did not 

effectuate or induce Hicks’s voluntary actions following the initial encounter with 

Ofc. Stockhausen. Dismissal of Hicks’s indictment pursuant to outrageous 

government conduct is not warranted based on the facts in the record before us. 

Based on the foregoing, we find the outrageous government conduct 

doctrine does not provide Hicks with a defense to prosecution. Accordingly, the trial 

court’s judgment dismissing the indictment against Hicks is reversed, and this case 

is remanded to the trial court for further proceedings consistent with this opinion.

The first assignment of error is sustained.
B. Motion to Suppress

In the second assignment of error, the state argues the trial court 

erred in granting Hicks’s motion to suppress. The state contends that (1) the trial 

court erred as a matter of law by analyzing the facts using the probable cause 

standard, and (2) Ofc. Stockhausen “had reasonable suspicion to believe the vehicle 

attempting to leave the parking lot may have either been a witness or involved in the 

crime.” Alternatively, the state suggests that if the stop was not justified, “the 

exclusionary rule will not work to exclude evidence of Hicks’[s] intervening criminal 

conduct that occurred during and/or after the initial stop.”

Appellate review of a motion to suppress presents a mixed question of 

law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 

71, ¶ 8. The trial court assumes the role of the trier of fact when presented with a 

motion to suppress. Id. Therefore, the trial court is in the best position to analyze 

the evidence and evaluate the credibility of the witnesses. Id. Accordingly, an 

appellate court must defer to the trial court’s findings of fact if they are supported 

by competent, credible evidence. Id. However, an appellate court must 

independently determine as a matter of law, without deference to the trial court’s 

conclusion, whether the facts meet the applicable legal standard. State v. Hill, 8th 

Dist. Cuyahoga Nos. 83762 and 83775, 2005-Ohio-3155, ¶ 12.

The Fourth Amendment to the United States Constitution provides:

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.

Article I, Section 14 of the Ohio Constitution contains nearly identical 

language and provides the same protections as the Fourth Amendment to the United 

States Constitution. State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, 25 

N.E.3d 993, ¶ 11, citing State v. Robinette, 80 Ohio St.3d 234, 238-239, 685 N.E.2d 

762 (1997).

“The ‘basic purpose of [the Fourth] Amendment’ * * * ‘is to safeguard 

the privacy and security of individuals against arbitrary invasions by governmental 

officials.’” Carpenter v. United States, ___U.S.___, 138 S.Ct. 2206, 2213, 201 

L.Ed.2d 507 (2018), quoting Camara v. Mun. Court of San Francisco, 387 U.S. 523, 

528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Searches and seizures conducted outside 

of the judicial process, without prior approval by a judge or magistrate, are per se 

unreasonable under the Fourth Amendment, subject only to a few specifically 

established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 

357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Therefore, evidence obtained from a 

search or seizure deemed unreasonable must be suppressed. Mapp v. Ohio, 367 

U.S. 643, 651, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

“Interactions between police and individuals can fall into three 

distinct categories: 1) a consensual encounter, 2) an investigative detention, or 3) an 

arrest.” State v. Parrish, 8th Dist. Cuyahoga No. 111990, 2023-Ohio-3356, ¶ 14,

citing State v. Thomas, 2d Dist. Montgomery No. 23979, 2011-Ohio-1292, ¶ 9.
The first category of police-citizen contact is a consensual encounter. 

The Supreme Court created this category in Florida v. Bostick, 501 U.S. 429, 111 

S.Ct. 2382, 115 L.Ed.2d 389 (1991). In a consensual encounter, police practices such 

as approaching a person in a public place, engaging the person in conversation, 

requesting information, examining one’s identification, and requesting to search a 

person’s belongings are permissible, and Fourth Amendment guarantees are not 

implicated in such encounters. State v. Jackson, 8th Dist. Cuyahoga No. 110462, 

2022-Ohio-187, ¶ 32. This category of encounters, like other categories, are judged 

according to the totality of the circumstances. United States v. Mendenhall, 446 

U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). These encounters remain 

consensual as long as the police officer, by physical force or show of authority, has 

not restrained the person’s liberty such that a reasonable person would not feel free 

to walk away. Mendenhall at 554.

In Mendenhall, the United States Supreme Court listed several factors 

that indicate when an encounter is no longer consensual and, correspondingly, when 

Fourth Amendment guarantees are implicated. These factors include “the 

threatening presence of several officers, the officers’ wearing of a uniform, the 

display of a weapon, the physical touching of the person, the use of language or tone 

of voice indicating that compliance with the officers’ requests are compelled, and the 

contact occurring in a nonpublic place.” Jackson at ¶ 33, citing Mendenhall at id. 

The second category of a police-citizen encounter is the investigatory 

stop described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), 
known as a “Terry stop.” The Terry stop is more intrusive than the consensual 

encounter, but less intrusive than a formal custodial arrest. State v. Scott, 8th Dist. 

Cuyahoga No. 74352, 1999 Ohio App. LEXIS 3598, 8 (Aug. 5, 1999). “The Fourth 

Amendment permits brief investigative stops * * * when a law enforcement officer 

has ‘a particularized and objective basis for suspecting the particular person stopped 

of criminal activity.’” Navarette v. California, 572 U.S. 393, 396, 134 S.Ct. 1683, 188 

L.Ed.2d 680 (2014), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 

690, 66 L.Ed.2d 621 (1981).

In Terry, the United States Supreme Court “implicitly acknowledged 

the authority of the police to make a forcible stop of a person when the officer has 

reasonable, articulable suspicion that the person has been, is, or is about to be 

engaged in criminal activity.” (Emphasis deleted.) United States v. Place, 462 U.S. 

696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). “Limited in both duration and 

purpose, the Terry stop may last only as long as it reasonably takes a police officer 

to confirm or dispel suspicion of criminal activity.” State v. Hall, 2016-Ohio-783, 

60 N.E.3d 675, ¶ 17 (1st Dist.), citing Terry at 30.

Precisely defining “reasonable suspicion” is not possible, and as such, 

the reasonable-suspicion standard is “‘not readily, or even usefully, reduced to a neat 

set of legal rules.’” Ornelas v. United States, 517 U.S. 690, 695-696, 116 S.Ct. 1657, 

134 L.Ed.2d 911 (1996), quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 

76 L.Ed.2d 527 (1983). Reasonable suspicion justifying “a Terry stop requires 

something more than an ‘inchoate and unparticularized suspicion or ‘hunch.’’” 
Cleveland v. Maxwell, 8th Dist. Cuyahoga No. 104964, 2017-Ohio-4442, ¶ 19, 

quoting Terry at 27. And, the propriety of a Terry stop “must be viewed in light of 

the totality of the circumstances ‘as viewed through the eyes of the reasonable and 

prudent police officer on the scene who must react to the events as they unfold.’” 

Maxwell at id., quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 

(1991). “This process allows officers 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.’”” State v. Hawkins, 

158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, ¶ 21, quoting United States v. 

Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting Cortez at 

418. 

The Ohio Supreme Court has identified certain specific and articulable 

facts that justify a Terry stop by way of reasonable suspicion that fall into four 

general categories: (1) location; (2) the officer’s experience, training, or knowledge; 

(3) the suspect’s conduct or appearance; and (4) the surrounding circumstances. 

State v. Bobo, 37 Ohio St.3d 177, 178-179, 524 N.E.2d 489 (1988); Andrews at 87-

88. No single factor is dispositive; the decision must be viewed based on the totality 

of the circumstances. Bobo at paragraph one of the syllabus. Relevant to the 

circumstances of this case, the Ohio Supreme Court has further explained as follows:

The Fourth Amendment does not require a policeman who lacks the 

precise level of information necessary for probable cause to arrest to 

simply shrug his shoulders and allow a crime to occur or a criminal to 

escape. On the contrary, Terry recognizes that it may be the essence of 

good police work to adopt an intermediate response. * * * A brief stop 
of a suspicious individual, in order to determine his identity or to 

maintain the status quo momentarily while obtaining more 

information, may be most reasonable in light of the facts known to the 

officer at the time. * * * (Citations omitted.) Adams v. Williams (1972), 

407 U.S. 143, 145-146.

Bobo at 180.

The third type of police-citizen encounter is equivalent to an arrest. 

An individual is arrested when (1) there was an intent to arrest; (2) under real or 

pretended authority; (3) accompanied by an actual or constructive seizure or 

detention; and (4) that is so understood by the person arrested. State v. Darrah, 64 

Ohio St.2d 22, 26, 412 N.E.2d 1328 (1980). A constitutionally valid arrest is one that 

is supported by the probable cause standard. State v. Tibbetts, 92 Ohio St.3d 146, 

153, 749 N.E.2d 226 (2001).

Whether probable cause exists depends upon the reasonable 

conclusions to be drawn from the facts known to the arresting officer at the time of 

the arrest. Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 

(2004). Probable cause exists where the totality of the facts and circumstances 

within the officer’s knowledge are sufficient to warrant a prudent person to believe 

that the defendant had committed or was committing an offense. Id., citing Gerstein 

v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Thus, “[a] police 

officer has probable cause only when he discovers reasonably reliable information 

that the suspect has committed a crime.” Gardenhire v. Schubert, 205 F.3d 303, 

318 (6th Cir.2000); see also Wesley v. Campbell, 779 F.3d 421, 429 (6th Cir.2015), 

quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
Applying the foregoing to the circumstances of this case, we find Ofc. 

Stockhausen’s initial interaction with Hicks amounted to a consensual encounter. 

Upon arriving at the scene, Ofc. Stockhausen observed Hicks in the parking lot of 

the apartment complex where gunshots were reported just minutes before the police 

arrived. Ofc. Stockhausen testified that he signaled for Hicks to stop his vehicle in 

an effort to gather information and determine whether Hicks may have been 

involved or witnessed the shooting. With that stated, however, we find the 

consensual nature of the encounter ended once Ofc. Stockhausen ordered Hicks to 

turn off the engine of his car and attempted to open Hicks’s driver’s side door after 

Hicks stated that he was not involved in the incident being investigated. See Mentor 

v. Walker, 11th Dist. Lake No. 12-243, 1988 Ohio App. LEXIS 5226, 5 (Dec. 30, 

1988.) (“The moment the officer took hold of the door handle, and opened the car 

door, the occupants were no longer free to go.”); State v. Barth, 11th Dist. Lake No. 

99-L-058, 2000 Ohio App. LEXIS 2351, 2 (June 2, 2000). It is clear from Ofc. 

Stockhausen’s conduct and show of authority that Hicks was not free to leave or 

terminate the encounter. At this point, the interaction evolved into a Terry stop. 

In reaching this conclusion, we note that the evidence adduced at the 

suppression hearing does not establish that a reasonable person in Hicks’s position 

would have understood the situation to constitute “a formal arrest or restraint on 

freedom of movement of the degree associated with a formal arrest.” State v. 

Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145, ¶ 22, citing California 

v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). Nevertheless, 
although Hicks was not arrested, he was seized within the meaning of the Fourth 

Amendment. Accordingly, the relevant inquiry before the court was whether the 

Terry stop was warranted under the totality of the circumstances. 

When evidence is gathered in a search and seizure that violates the 

Fourth Amendment, the exclusionary rule generally prevents its use in a criminal 

trial brought against the victim of the unlawful search. See Illinois v. Krull, 480 U.S. 

340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). The “exclusionary rule is a 

judicially created sanction designed to protect Fourth Amendment rights through 

its deterrent effect.” State v. Brown, 142 Ohio St.3d 92, 2015-Ohio-486, 28 N.E.3d 

81, ¶ 12. If the seizure was unlawful, any evidence obtained after the unlawful 

seizure must be suppressed as the “fruit of the poisonous tree.” Wong Sun v. United 

States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

However, the exclusionary rule does not operate to exclude evidence 

of “independent and distinct criminal conduct.” State v. Freeman, 2d Dist. 

Montgomery No. 18798, 2002 Ohio App. LEXIS 688, 9 (Feb. 15, 2002). Rather, the 

“[a]pplication of the exclusionary rule is generally restricted to those areas where its 

remedial objectives are most efficaciously served.” Id., citing United States v. Leon, 

468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Thus, Ohio courts have held 

that “evidence of a fresh crime committed during or after an unlawful search and 

seizure is not properly regarded as deriving from the unlawful search and seizure; 

that evidence instead derives from the defendant’s intervening voluntary criminal 

act.” State v. Hammer, 2d Dist. Darke No. 2012-CA-2, 2012-Ohio-3497, ¶ 19, citing 
State v. Ali, 154 Ohio App.3d 493, 2003-Ohio-5150, 797 N.E.2d 1019, ¶ 18 (7th 

Dist.); State v. Cammon, 8th Dist. Cuyahoga No. 91574, 2009-Ohio-4706, ¶ 27-28; 

and Freeman.

As stated, the trial court in this case granted Hicks’s motion to 

suppress finding that the initial stop of Hicks’s vehicle was a seizure, “lacking 

probable cause.” (Emphasis added.) As the United States Supreme Court has 

explained, 

[r]easonable suspicion is a less demanding standard than probable 

cause not only in the sense that reasonable suspicion can be established 

with information that is different in quantity or content than that 

required to establish probable cause, but also in the sense that 

reasonable suspicion can arise from information that is less reliable 

than that required to show probable cause. 

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). See 

also State v. Bly, 10th Dist. Franklin No. 13AP-909, 2014-Ohio-1261, ¶ 15 

(reasonable suspicion is less than the level of suspicion required for probable cause); 

State v. Iloba, 9th Dist. Wayne No. 20AP0030, 2021-Ohio-3700, ¶ 17 (“Although 

both reasonable suspicion and probable cause are evaluated based on the totality of 

the circumstances, the concepts are not interchangeable.”), citing State v. R.L., 9th 

Dist. Summit No. 29573, 2020-Ohio-2811, ¶ 15. Thus, “probable cause is a stricter 

standard than reasonable and articulable suspicion * * * [and] [t]he former 

subsumes the latter.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 

N.E.2d 1204, ¶ 23, citing State v. Evans, 67 Ohio St.3d 405, 411, 618 N.E.2d 162 
(1993). See also Hawkins, 158 Ohio St.3d 94, 2019-Ohio-4210, 140 N.E.3d 577, at 

¶ 20. 

Because the legal question before the trial court was only whether the 

police had reasonable suspicion to perform a Terry stop, we agree with the state’s 

assertion that the trial court erred as a matter of law to the extent it considered the 

more demanding standard of whether the police had probable cause to stop Hicks’s 

vehicle. The application of the incorrect standard prevented the trial court from 

engaging in the proper legal analysis. Accordingly, we must remand the matter for 

the trial court to determine, based on the evidence presented at the suppression 

hearing, whether police had reasonable suspicion to stop Hicks. See State v. 

Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 19, citing In re 

Adoption of P.L.H., 151 Ohio St.3d 554, 2017-Ohio-5824, 91 N.E.3d 698, ¶ 33 

(noting that when a lower court applies the improper legal standard, the proper 

remedy is to remand for consideration of the evidence under the correct legal 

standard). See also State v. Brown, 10th Dist. Franklin No. 17AP-351, 2018-Ohio1476, ¶ 24, citing State v. Byrd, 10th Dist. Franklin No. 15AP-1091, 2016-Ohio-7670, 

¶ 27, and State v. Muldrow, 10th Dist. Franklin No. 15AP-1119, 2016-Ohio-4774, 

¶ 26 (where trial court applies wrong legal standard in a motion to suppress, the 

appropriate remedy is to remand for the trial court to apply the correct legal 

standard with appropriate factual findings).

The second assignment of error is sustained.
III. Conclusion

The trial court abused its discretion in dismissing the indictment 

based on “outrageous government conduct,” a defense that has seldom been found 

to have merit and does not appear to apply to the facts giving rise to Hicks’s

indictment. The trial court further erred in failing to apply the correct legal standard 

to the motion to suppress. 

Based on the foregoing, the judgment of the trial court is reversed, and 

this matter is remanded for further proceedings consistent with this opinion.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

_________________________________________

FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

EMANUELLA D. GROVES, J., CONCURS;

SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION)

SEAN C. GALLAGHER, J., CONCURRING:

The polarized nature of American society means individuals perceive 

events differently. Facts and circumstances are weighed differently depending on 

the perspective of the individual.
No scenario paints these divergent perspectives more clearly than a 

police shooting. That reality forms the backdrop of this case. 

I concur fully with the judgment and analysis of the majority, but I 

write separately to offer a view that more creative options for law enforcement must 

be explored by those in authority to attempt to move the narrative away from the 

polarized extremes we see today. 

In this case, the officer shot Hicks because he believed that was the 

only way he could diffuse a rapidly escalating situation that would result in more 

harm. Whether that was the appropriate decision will be the subject of ongoing 

debate. 

We know almost nothing of the facts in play that caused Hicks to 

behave the way he did. There is no evidence he was involved in the reported 

shooting that initially brought police to the scene. We have no evidence he was 

under the influence of drugs or alcohol. The only reference in the briefs is an 

assertion by counsel that Hicks thought the police were going to kill him. Whatever 

the rationale, Hicks’s conduct certainly did not diffuse the situation. 

What we do know is that in such rapidly escalating scenarios as we see 

in this case, police officers often feel they are compelled to “go to the gun” as a 

perceived last resort. This often happens in a matter of seconds from the start to the 

end of an encounter. There are few options for officers to diffuse such situations. 

As one who has served as a judge for over a quarter of a century, with 

over forty years of direct experience in the criminal justice system, I have often 
wondered if we are doing enough as a society to create or increase options for 

officers.

And this brings me to my point. Why isn’t electronic vehicle 

immobilization an option? 

Black boxes, or event data recorders (EDRs), have been in some of the 

major American car brands since 1994. The National Highway Traffic Safety 

Administration has been using them to collect car accident data since early in the 

2000s. 

The federal government does not require an EDR for every vehicle, 

but federal regulations require that, if equipped with an EDR, the device must gather 

the following black box information: (1) vehicle speed; (2) accelerator or throttle 

position; (3) frontal, side, and curtain airbag deployment; (4) application of the 

brakes; (5) number of crash events; and (6) steering input. 49 C.F.R. 563.7. 

Additionally, these devices must also gather data about (a) the seat belt status of the 

driver and front passenger; (b) engagement of the ABS; and (c) the vehicle roll angle. 

See Steven M. Gursten, Black Boxes in Cars: What You Need to Know, available at

https://www.michiganautolaw.com/blog/2023/03/13/black-boxes-in-cars/ (last 

visited Nov. 13, 2023).

The federal safety regulations for “Event Data Recorders” apply to 

vehicles “manufactured on or after September 1, 2012” if the vehicles “are equipped 

with an event data recorder.” 49 C.F.R. 563.3.
If there was a will to act by federal legislators, a shut off code could be 

placed inside black boxes that could immobilize the vehicle in situations as we see 

in this case. Such a code could be activated by an officer from a button or device on 

the officer’s service belt. The officer would have to have a reasonable articulable 

suspicion or probable cause to activate an immobilization, but in doing so many 

dangerous high-speed chases would be avoided. While not all vehicles would have 

such an immobilization capability at the outset, we have to start somewhere. 

Seat belts have been mandatory equipment since the 1968 model year 

in the United States. Obviously, it took time for all cars on the road to eventually 

have them, but we did get to that point over time. 

If we truly desire to see an end to scenarios like the one that played 

out in this case then perhaps we should look at all possibilities that increase options 

for officers short of using their weapon.