State v. Westover

[Cite as State v. Westover, 2014-Ohio-1959.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

v. : No. 13AP-555
(C.P.C. No. 12CR-4673)
Drew M. Westover, :
(REGULAR CALENDAR)
Defendant-Appellant. :

D E C I S I O N

Rendered on May 8, 2014

Ron O'Brien, Prosecuting Attorney, and Barbara A.
Farnbacher, for appellee.

Yeura R. Venters, Public Defender, and John W. Keeling, for
appellant.

APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.
{¶ 1} Defendant-appellant, Drew M. Westover, appeals from a judgment of the
Franklin County Court of Common Pleas finding him guilty, pursuant to a plea of no
contest, of one count of possession of heroin, in violation of R.C. 2925.11. Defendant
assigns the following sole assignment of error for our review:
WHEN THREE POLICE OFFICERS STOPPED,
APPROACHED, AND QUESTIONED THE DEFENDANT,
WHO WAS LEGALLY STANDING AND TALKING WITH
FRIENDS, AND INTERROGATED THE ENTIRE GROUP
ABOUT THEIR ACTIVITIES AND TOOK THEIR DRIVER'S
LICENSES TO RUN A WARRANT CHECK, THE
DEFENDANT DID NOT FEEL FREE TO LEAVE AND HE
WAS UNCONSTITUTIONALLY DETAINED IN THE
ABSENCE OF ANY REASONABLE, ARTICULABLE
SUSPICION THAT HE WAS ENGAGED IN ANY CRIMINAL
No. 13AP-555 2

ACTIVITY AND THE TRIAL COURT ERRED IN
OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS
UNDER THIS COURT'S DECISION IN STATE V. JONES, 188
OHIO APP.3d 628, 2010-OHIO-2854, 936 N.E.2d 529 (10th
DIST.)

Because the trial court erred in denying defendant's motion to suppress the evidence
against him, we reverse the judgment and remand the case to the trial court.
I. FACTS & PROCEDURAL HISTORY
{¶ 2} The State indicted defendant on September 13, 2012, on one count of
possession of heroin, a felony of the fifth degree. The events giving rise to the indictment
occurred on February 25, 2012, in Grandview Heights, Ohio.
{¶ 3} On February 25, 2012, at 8:00 p.m., Sergeant Lesley Jackson of the
Grandview Heights police department was on routine patrol in the area of Broadview
Avenue and W. 3rd Avenue. She was driving her marked police cruiser and wore her
police uniform. As Sergeant Jackson drove southbound on Broadview Avenue, she
noticed three to four people standing outside of a car which was legally parked on the
east side of the street.
{¶ 4} Sergeant Jackson stated that the group "seemed nervous" as she drove by,
and she then noticed that the trunk was open. In her rearview mirror, Sergeant Jackson
saw someone take something from the trunk of the car up to the house located at 1273
Broadview Avenue. Sergeant Jackson was familiar with that particular house, as she had
been called there "on more than one occasions" due to drug activity. (Tr. 7.) Specifically,
she stated that "[o]ne of the residents to the house overdosed a couple of times, and one
person has been known to stay there regularly who had a pending drug-trafficking
charge against him." (Tr. 7.)
{¶ 5} After driving by the group, Sergeant Jackson turned her cruiser around at
the end of the street and drove back to the group to "see what was going on." (Tr. 6.)
Sergeant Jackson parked her cruiser directly behind the car the group was standing
around. She then radioed for assistance, stating over the radio that "she had a suspicious
group of people." (Tr. 19.)
{¶ 6} The group of individuals, which included defendant, was standing on the
sidewalk near their vehicle. Sergeant Jackson exited her vehicle, approached the group,
No. 13AP-555 3

and asked what they were doing. They explained that "they were waiting for somebody
to come out of 1273 Broadview." (Tr. 6.) Sergeant Jackson then asked the group what
was in the box that the individuals had taken up to the house. They told her "it was a
tool box." (Tr. 8.) Sergeant Jackson then asked everyone for identification,1 in order to
"find out, you know, who's there." (Tr. 8.) Sergeant Jackson stated that she routinely
asks individuals for identification, noting that "[e]veryone we stop and talk to we ask for
identification to verify that's who they are." (Tr. 10.) Everyone in the group handed their
identifications over to Sergeant Jackson. As Sergeant Jackson was collecting the
identifications, two other uniformed officers, Officers Greg Gillespie and Russell Blank,
arrived in their marked police vehicle. Officers Gillespie and Blank parked directly
behind Sergeant Jackson's vehicle.
{¶ 7} Sergeant Jackson took everyone's identification back to her police cruiser
and ran a check for outstanding warrants on all the individuals present in the group. As
Sergeant Jackson was running the warrants check, the two other officers exited their
vehicle and were standing on the sidewalk "with [the] group of people to observe if
anybody did anything, you know, for [Sergeant Jackson's] safety." (Tr. 20.) Officers
Blank and Gillespie were standing on the sidewalk "right next to" defendant,
approximately "four or five feet" away from him. (Tr. 26, 35.) Officer Gillespie noted
that he was having a conversation with the defendant as they stood on the sidewalk,
noting that he knew defendant from "when he was in high school." (Tr. 28.) There is no
indication that Sergeant Jackson informed the group that she wanted their
identifications in order to run a warrants check; rather, the record demonstrates that
Sergeant Jackson simply requested everyone's identification, and then took the
identifications to her cruiser to run the warrants check.
{¶ 8} Sergeant Jackson's warrant check revealed that defendant had an
outstanding warrant for his arrest. Officers Blank and Gillespie arrested defendant
based on the warrant. In the search incident to arrest, the officers discovered heroin on
defendant's person.

1
The record indicates only that Sergeant Jackson asked for and received "identification" from defendant and the
others in the group. It is unclear whether defendant produced his driver's license or some other form of
identification.
No. 13AP-555 4

{¶ 9} Defendant filed a motion to suppress on February 4, 2013, asserting that
the evidence against him was obtained while he was unreasonably detained in violation
of the Fourth Amendment to the United States Constitution. After hearing the above
noted evidence, the trial court orally denied the motion to suppress. The trial court
noted that the State argued that "there was reasonable suspicion to run a records check
or warrant check," but the trial court did "not agree there was reasonable suspicion."
(Tr. 48-49.) Nevertheless, the trial court held that, because defendant voluntarily
provided his identification to the officers, the officers then had "a right to run a record
check, and if a record check comes back with a warrant at that point, they have a right to
make an arrest." (Tr. 49.) The trial court found that no warrantless seizure occurred in
this case.
{¶ 10} Thereafter, defendant entered a no contest plea to the charged crime. The
trial court accepted the plea and found defendant guilty of possession of heroin.
II. UNCONSTITUTIONAL SEIZURE
{¶ 11} "[A]ppellate review of a trial court's decision regarding a motion to
suppress evidence involves mixed questions of law and fact." State v. Vest, 4th Dist. No.
00CA2576, (May 29, 2001). Thus, an appellate court's standard of review of the motion
to suppress is two-fold. State v. Reedy, 10th Dist. No. 05AP-501, 2006-Ohio-1212, ¶ 5,
citing State v. Lloyd, 126 Ohio App.3d 95, 100-01 (7th Dist.1998). When considering a
motion to suppress, the trial court assumes the role of trier of fact, and therefore is in
the best position to resolve factual questions and evaluate the credibility of witnesses.
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. As a result, an appellate
court must accept the trial court's findings of fact if they are supported by competent,
credible evidence. Id. Then, the appellate court must independently determine whether
the facts satisfy the applicable legal standard, pursuant to a de novo review and without
giving deference to the conclusion of the trial court. Id.
{¶ 12} The Fourth Amendment to the United States Constitution as applied to the
states through the Fourteenth Amendment, as well as Ohio Constitution, Article I,
Section 14, prohibit the government from conducting warrantless searches and seizures,
rendering them per se unreasonable unless an exception applies. State v. Mendoza, 10th
Dist. No. 08AP-645, 2009-Ohio-1182, ¶ 11, citing Katz v. United States, 389 U.S. 347,
No. 13AP-555 5

357 (1967). However, "not all personal intercourse between policemen and citizens
involves 'seizures' of persons. 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" within the meaning of the Fourth Amendment. Terry v. Ohio,
392 U.S. 1, 19 (1968), fn. 16; Brendlin v. California, 551 U.S. 249, 254 (2007).
{¶ 13} In determining whether a particular encounter constitutes a "seizure," and
thus implicates the Fourth Amendment, the question is whether, in view of all the
circumstances surrounding the encounter, a reasonable person would believe he or she
was "not free to leave," United States v. Mendenhall, 446 U.S. 544, 554 (1980), or "not
free to decline the officers' requests or otherwise to terminate the encounter." Florida v.
Bostick, 501 U.S. 429, 439 (1991). See also Michigan v. Chesternut, 486 U.S. 567, 573
(1988); Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion). "[T]he crucial
test is whether, taking into account all of the circumstances surrounding the encounter,
the police conduct would 'have communicated to a reasonable person that he was not at
liberty to ignore the police presence and go about his business.' " Bostick at 437, quoting
Chesternut at 569. See also Bostick at 438, citing Royer at 519, fn. 4 (Blackmun, J.,
dissenting) (Emphasis sic.) (noting that the " 'reasonable person' test presupposes an
innocent person") (Emphasis added.). A person "may not be detained even momentarily
without reasonable, objective grounds for doing so." Royer at 498.
{¶ 14} The United States Supreme Court recognizes three categories of police-
citizen interactions: (1) a consensual encounter, which requires no objective
justification, see Bostick at 434; (2) a brief investigatory stop or detention, which must
be supported by reasonable suspicion of criminal activity, see Terry; and (3) a full-scale
arrest, which must be supported by probable cause. See Brown v. Illinois, 422 U.S. 590
(1975).
{¶ 15} A consensual encounter occurs when the police approach a person in a
public place, the police engage the person in conversation, and the person remains free
not to answer or to walk away. Royer at 497; Mendenhall at 553-54. A consensual
encounter remains consensual even if police officers ask questions, ask to see the
person's identification, or ask to search the person's belongings, provided "the police do
not convey a message that compliance with their requests is required." Bostick at 435;
No. 13AP-555 6

Florida v. Rodriguez, 469 U.S. 1, 4-6 (1984); Immigration & Naturalization Serv. v.
Delgado, 466 U.S. 210, 216 (1984). A police officer may lawfully initiate a consensual
encounter without probable cause or a reasonable, articulable suspicion that an
individual is currently engaged in criminal activity or is about to engage in such conduct.
Mendenhall at 556. The Fourth Amendment guarantees are not implicated in a
consensual encounter unless the officer has, by either physical force or show of
authority, restrained the person's liberty so that a reasonable person would not feel free
to decline the officer's requests or otherwise terminate the encounter. Mendenhall at
554. Once a person's liberty has been so restrained, the encounter loses its consensual
nature and falls into one of the other two Supreme Court categories. State v. Taylor, 106
Ohio App.3d 741, 748 (2d Dist.1995); State v. Guinn, 10th Dist. No. 99AP-630 (June 1,
2000) (memorandum decision).
{¶ 16} The next category of police-citizen interaction is an investigatory
detention, commonly referred to as a Terry stop. See Terry. An investigatory stop
constitutes a seizure for purposes of the Fourth Amendment. Guinn, citing Terry at 16.
Under Terry, a police officer may stop or detain an individual without probable cause
when the officer has reasonable suspicion, based on specific, articulable facts, that
criminal activity is afoot. Terry at 21-22. Accordingly, "[a]n investigative stop does not
violate the Fourth Amendment to the United States Constitution if the police have
reasonable suspicion that 'the person stopped is, or is about to be, engaged in criminal
activity.' " State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 35, quoting United
States v. Cortez, 449 U.S. 411, 417 (1981). "[A]n investigative detention must be
temporary and last no longer than is necessary to effectuate the purpose of the stop."
Royer at 500; United States v. Brignoni–Ponce, 422 U.S. 873 (1975); State v. Chatton,
11 Ohio St.3d 59, 63 (1984).
{¶ 17} Reasonable suspicion entails some minimal level of objective justification,
"that is, something more than an inchoate and unparticularized suspicion or 'hunch,'
but less than the level of suspicion required for probable cause." State v. Jones, 70 Ohio
App.3d 554, 556-57 (2d Dist.1990), citing Terry at 27; State v. Carter, 69 Ohio St.3d 57,
66 (1994). "A police officer may not rely on good faith and inarticulate hunches to meet
the Terry standard of reasonable suspicion." Jones at 557. An appellate court views the
No. 13AP-555 7

propriety of a police officer's investigative stop or detention in light of the totality of the
surrounding circumstances. State v. Bobo, 37 Ohio St.3d 177 (1988), paragraph one of
the syllabus, approving and following State v. Freeman, 64 Ohio St.2d 291 (1980),
paragraph one of the syllabus. Factors suggesting that a person has been seized include:
a threatening presence of several officers; the display of a weapon by an officer; some
physical touching of the person; the use of language or tone of voice indicating that
compliance with the officer's request might be compelled; approaching the person in a
nonpublic place; and blocking the person's path. Mendenhall at 554.
{¶ 18} The third and final category of police-citizen interaction is a seizure that is
the equivalent of an arrest. "A seizure is equivalent to an arrest when: (1) there is an
intent to arrest; (2) under real or pretended authority; (3) accompanied by an actual or
constructive seizure or detention; and (4) which is so understood by the person
arrested." Taylor at 749, citing State v. Barker, 53 Ohio St.2d 135 (1978), syllabus. "A
warrantless arrest that is based upon probable cause and occurs in a public place does
not violate the Fourth Amendment." State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837
at ¶ 66, citing United States v. Watson, 423 U.S. 411 (1976).
{¶ 19} Sergeant Jackson's initial interaction with defendant was unquestionably
consensual. The entire encounter occurred outside, on a public sidewalk. Sergeant
Jackson did not activate her overhead lights when she approached the group. She then
exited her vehicle, asked the group some general questions, and asked to see everyone's
identification. Sergeant Jackson noted that, in her experience, it is "rare that people will
refuse to provide identification," and indeed, everyone in the group provided Sergeant
Jackson with their identifications. (Tr. 15.) Simply asking for and receiving the group's
identifications did not alter the consensual nature of the encounter. Royer; Mendenhall;
Bostick.
{¶ 20} However, what begins as a consensual encounter may escalate into an
investigatory detention and seizure of a person that triggers Fourth Amendment
scrutiny if, in view of all the circumstances surrounding the incident, a reasonable
person would not feel free to leave or otherwise terminate the encounter. Delgado at
215, citing Mendenhall at 554; Guinn. If the seizure is unlawful, any evidence obtained
after the unlawful seizure must be suppressed as the "fruit of the poisonous tree." Wong
No. 13AP-555 8

Sun v. United States, 371 U.S. 471 (1963); Mapp v. Ohio, 367 U.S. 643 (1961); State v.
Pierce, 125 Ohio App.3d 592, 597 (10th Dist.1998).
{¶ 21} We hold that, when Sergeant Jackson retained defendant's identification
and took it to her cruiser to run a warrants check, defendant was unconstitutionally
seized under the Fourth Amendment. In so holding, we rely on this court's decision in
State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854, ¶ 24 (10th Dist.)
{¶ 22} In Jones, the defendant was sitting in the driver's seat of his parked vehicle
with the car running but the headlights off, at 1:00 a.m., in the Hilltop area of
Columbus, a purportedly high-crime area. Two uniformed officers on routine bicycle
patrol approached defendant's vehicle and asked him several questions. The defendant
was "[v]isibly nervous, shaking, and breathing heavily," and told officers that
"everything was fine; he explained that he was waiting to go to work and had pulled over
to text his girlfriend." Id. at ¶ 4. Although there was no indication that Jones was about
to commit a crime, the officers, "asked for defendant's driver's license to verify his
identity and to run a records check for warrants." Id. at ¶ 5. Defendant handed his
license to the officers and remained in his vehicle. Thereafter, the officers discovered a
large knife in defendant's vehicle, and the defendant was ultimately convicted of
carrying a concealed weapon.
{¶ 23} This court held that defendant was seized for Fourth Amendment
purposes when the officers retained his driver's license to run a warrants check. We
observed that, "no reasonable person would believe that he or she is free to terminate
the encounter and simply drive away when an officer retains his or her driver's license
for the purpose of running a computer check for outstanding warrants." Id. at ¶ 25. By
retaining the license to check for outstanding warrants, the officers had "implicitly
commanded defendant to remain on the scene since," abandoning one's "driver's license
and driv[ing] away is not a realistic option for a reasonable person in today's society."
Id. at ¶ 26.
{¶ 24} The State contends that Jones is "critically distinguishable" because here
"defendant was not the sole occupant or even the driver of the parked car." (Appellee's
brief, 13.) We note that the only indication in the record regarding defendant's status as
either a driver or a passenger of the vehicle is Sergeant Jackson's statement that
No. 13AP-555 9

defendant "wasn't driving as far as [she knew]." (Tr. 10.) For purposes of this decision,
however, we will assume that defendant was merely a passenger in the car.
{¶ 25} The State contends that "[w]hen an officer retains a driver's license to run
a warrant check, a driver cannot legally drive away, * * * but the same cannot be said for
a pedestrian," who may legally walk on a sidewalk without a driver's license. (Appellee's
brief, 13.) The issue before this court, however, is not whether defendant could have
physically walked away while Sergeant Jackson retained his identification and was
running the warrants check; rather, the issue is whether a reasonable person in that
situation would have believed they were free to leave or free to decline the officers'
requests and terminate the encounter. See United States v. Lambert, 46 F.3d 1064,
1068 (10th Cir.1995) (noting that "[t]he question of whether an individual has been
detained turns on whether a person under the circumstances would reasonably feel at
liberty to refuse the agents' questions or otherwise terminate the encounter," and not
"whether it is conceivable that a person could leave the location of that encounter").
{¶ 26} We conclude that no reasonable person would have felt free to terminate
the encounter and go about their business, where an officer is holding that individual's
identification and is using it to run a warrants check. See Jones; Commonwealth v.
Lyles, 453 Mass. 811, 816 (2009) (finding that Lyles was unconstitutionally seized when
two officers approached him as he was walking on a public sidewalk, asked for his
identification, and then used Lyles identification to do a radio check for warrants; by
retaining the identification to check for outstanding warrants, the officers implicitly
commanded Lyles to remain on the scene as "a reasonable person would not believe that
he could terminate the encounter and leave, given the importance of having
identification, such as a driver's license, to daily transactions in today's society"); State
v. Daniel, 12 S.W.3d 420, 423, 427 (2000) (where an officer approached "[f]our men
[who] were standing around the outside of the vehicle," and asked for and received their
identifications, and then "retained the identification to run a computer check for
outstanding warrants," the court found that the officer's retention of the identification to
run a warrants check reflected "a distinct departure from the typical consensual
encounter" and amounted to an unconstitutional seizure); State v. Thomas, 91
Wash.App. 195, 955 P.2d 420, 423 (1998) (stating that "[o]nce an officer retains the
No. 13AP-555 10

suspect's identification or driver's license and takes it with him to conduct a warrants
check, a seizure within the meaning of the Fourth Amendment has occurred"). See also
Lambert at 1068 (noting that "when law enforcement officials retain an individual's
driver's license in the course of questioning him, that individual, as a general rule, will
not reasonably feel free to terminate the encounter"); Royer (holding that when the
officers took Royer to a small room in the airport, while retaining his airline ticket and
identification, this show of authority was sufficient to transform the initial consensual
encounter into a Fourth Amendment seizure); Mendenhall (finding that no seizure
occurred when officers took Mendenhall to the airport office, where the officers had
returned Mendenhall's ticket and identification before they asked her to accompany
them to the office); Lyles at 816, fn.7, quoting Neda Matar, Are You Ready For a
National ID Card? Perhaps We Don’t Have to Choose Between Fear of Terrorism and
Need for Privacy, 17 Emory Int'l L.Rev. 287, 321 (2003) (noting that a driver's license is
" 'the most commonly requested form of verification in industries ranging from banks,
to nightclubs and liquor stores, to trains, planes, and rental cars,' " and that it would be
" 'difficult to cash checks, enter secured areas, or even purchase alcohol without a
driver's license,' " or other legitimate form of identification).
{¶ 27} Our holding today does not conflict with this court's holding in State v.
McDowell, 10th Dist. No. 13AP-229, 2013-Ohio-5300. There, McDowell was walking in
an alley in the Hilltop area of Columbus when a police officer approached him, asked
him some questions, and asked for his identification. McDowell handed his
identification to the officer; the officer stepped back to his cruiser, wrote down
McDowell's general information, and handed the identification back to McDowell. We
concluded that the officer's brief retention of McDowell's identification in order to jot
down McDowell's information did not constitute an unreasonable seizure under the
Fourth Amendment. In McDowell, we distinguished Jones by noting not only that
McDowell was "on foot and not in the driver's seat of a car," but also that the officer in
McDowell "did not take the time to run a warrant check on appellant while he was in
possession of appellant's ID." Id. at ¶ 29.
{¶ 28} We find the running of a warrants check to be the critical distinction
between Jones and McDowell. As noted above, the Fourth Amendment is not implicated
No. 13AP-555 11

when an officer approaches an individual, asks them general questions, and asks to see
their identification. An officer in receipt of an individual's identification may accordingly
jot down the information presented on the identification without implicating the Fourth
Amendment. However, when an officer takes the further action of retaining an
individual's identification to run a warrants check, the officer has implicitly commanded
the individual to remain on the scene, as no reasonable person would abandon their
identification, and has demonstrated that they suspect that criminal activity is afoot. An
officer must have some reasonable, articulable suspicion that criminal activity is afoot
before they may detain someone in this manner to run a warrants check. Compare State
v. Owens, 10th Dist. No. 03AP-423, 2004-Ohio-5159, ¶ 23 (noting that, because the
officer lacked reasonable, articulable suspicion of criminal activity, the officer "was
without legal authority to demand appellant's driver's license in order to run the LEADS
check").
{¶ 29} Furthermore, in McDowell, there was only one officer, and we noted that
the officer did not engage in any overt show of force or authority. In contrast, here,
although the encounter began with only Sergeant Jackson and her police cruiser, one
minute or two after her arrival, another marked cruiser with two other uniformed
officers arrived on the scene. The two other officers got out of their cruiser and stood
four or five feet away from defendant on the sidewalk while Sergeant Jackson ran the
warrants check. In such a situation, no reasonable person would believe that they were
at liberty to terminate the encounter. See Daniels at 427; State v. Goodloe, 10th Dist.
No. 13AP-141, 2013-Ohio-4934, ¶ 13 (where one officer stood to the side of Goodloe, and
the other stood in front of him, on a public sidewalk, this court concluded that "[t]he
presence of two uniformed officers positioned as found by the trial court would
communicate to a reasonable person that he was not at liberty to ignore the police and
walk away").
{¶ 30} The State asserts that no seizure occurred in this case, because defendant
was waiting for his friend to return from the Broadview Avenue residence when
Sergeant Jackson ran the warrants check. The State thus argues that Sergeant Jackson's
warrants check did not detain defendant, as defendant was detained by his own decision
to wait for his friend. In Bostick, the court held that, where an individual's freedom of
No. 13AP-555 12

movement is restricted by their own choices, as opposed to police conduct, the "free to
leave" analysis is inapplicable, and the "appropriate inquiry is whether a reasonable
person would feel free to decline the officers' requests or otherwise terminate the
encounter." Id. at 430. We have already determined above that no reasonable person
would have felt free to terminate the encounter herein, where one officer had possession
of defendant's identification and was using it to run a warrants check, and two other
uniformed officers were standing within five feet of defendant. Compare State v.
Bennett, 4th Dist. No. 99 CA 2509 (June 21, 2000) (although the defendant could not
have driven away from the officers, due to his intoxication and lack of a driver's license,
the court found no unlawful detention as the record revealed that (1) the officers did not
seize any items of appellant's personal property; (2) the officers returned appellant's
identification to him; and (3) the officers advised appellant that he could decline to
consent to the search).
{¶ 31} The State asserts that, even if defendant was seized when Sergeant
Jackson retained his identification to run the warrants check, Sergeant Jackson had
reasonable, articulable suspicion to "investigate the visibly nervous group of people
waiting outside the known drug house on a cold winter night." (Appellee's brief, 15.) We
disagree. Sergeant Jackson stated that she asked for everyone's identification herein,
noting that it was "routine," whenever "there is a possibility that there is some sort of
indication * * *, because of the regular complaints that we get about [that] house * * * to
check to see if that might be why they were there." (Tr. 10.) This testimony indicates that
Sergeant Jackson believed she had a reasonable, articulable suspicion of criminal
activity because defendant and his friends were waiting outside of a house where one
resident had previously overdosed and one resident had a pending drug trafficking
charge. A person's mere presence in a high crime area does not suspend the protections
of the Fourth Amendment, nor is it a sufficient basis to justify an investigative stop.
Brown v. Texas, 443 U.S. 47, 51-52 (1979); Carter at 65; State v. Chandler, 54 Ohio
App.3d 92, 97 (8th Dist.1989). "[A]n investigatory stop is not justified solely because the
detention occurred in an area where there is a significant amount of drug activity,"
rather, the "situs of a stop is simply one factor which may be considered in determining
whether reasonable suspicion existed." Guinn. The mere fact that defendant and his
No. 13AP-555 13

friends were waiting outside a house where residents were known to use drugs was
insufficient to support a reasonable, articulable suspicion that defendant was, or was
about to be, engaged in criminal activity.
{¶ 32} Additionally, although Sergeant Jackson stated that the group "seemed
nervous" when she drove by, she did not reiterate that sentiment after she actually made
contact with the group, and neither Officers Gillespie nor Blank testified that the group
appeared nervous to them. (Tr. 6.) "Although some degree of nervousness during
interactions with police officers is not uncommon, * * * nervousness can be a factor to
weigh in determining reasonable suspicion." State v. Atchley, 10th Dist. No. 07AP-412,
2007-Ohio-7009, ¶ 14, citing State v. Grant, 9th Dist. No. 06CA0019-M, 2007-Ohio-
680, ¶ 11. On the facts of this case, we do not find that Sergeant Jackson's initial
observation that the group "seemed nervous" when she drove by would support
reasonable, articulable suspicion of criminal activity. (Tr. 6.)
{¶ 33} Reviewing the totality of the circumstances surrounding the encounter
between defendant and the officers that evening, we do not agree with the State's
contention that Sergeant Jackson had a reasonable, articulable suspicion that criminal
activity was afoot. Rather, Sergeant Jackson was acting on a mere hunch that defendant
and his friends were engaged in criminal activity when she decided to retain their
identifications and run a check for outstanding warrants.
{¶ 34} What initially began as a consensual encounter in this case escalated into
an investigative detention when Sergeant Jackson, unsatisfied with defendant's and his
friends' explanation as to why they were waiting outside the Broadview Avenue
residence, sought to confirm her intuition that something might be wrong by retaining
everyone's identification in order to run a warrants check. At that moment, any
consensual aspect of the encounter ended, and defendant was seized within the meaning
of the Fourth Amendment. The officers' knowledge of the outstanding warrant was the
fruit of defendant's unlawful seizure, and accordingly, the evidence recovered from
defendant following his arrest must be suppressed.
{¶ 35} Based on the foregoing, defendant's sole assignment of error is sustained.
III. DISPOSITION
No. 13AP-555 14

{¶ 36} Having sustained defendant's sole assignment of error, we reverse the
judgment of the Franklin County Court of Common Pleas, and remand the case to the
trial court for proceedings consistent with this decision.
Judgment reversed; case remanded.

KLATT, J., concurs.
O'GRADY, J., concurs in judgment only.
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