[Cite as State v. Romacko, 2016-Ohio-1512.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
-vs- :
:
JONI L. ROMACKO : Case No. 2015 AP 0063
:
Defendant-Appellee :
: OPINION
CHARACTER OF PROCEEDING: Criminal appeal from Tuscarawas County
Court of Common Pleas, Case No.
2015CR020037
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 11, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MICHAEL ERNEST MARK A. PERLAKY
Assistant Prosecuting Attorney Tuscarawas County Public Defender
125 E. High Ave. 153 N. Broadway St.
New Philadelphia, OH 44663 New Philadelphia, OH 44663
[Cite as State v. Romacko, 2016-Ohio-1512.]
Gwin, P.J.
{¶1} Appellant, the State of Ohio appeals the November 16, 2015 judgment entry
of the Tuscarawas County Court of Common Pleas granting appellee, Joni L. Romacko’s
[“Romacko”] motion to suppress.
Facts and Procedural History
{¶2} Romacko was indicted by the Tuscarawas County Grand Jury for one count
of Possession of Cocaine, a felony of the fifth degree and one count Possession of Heroin,
a felony of the fifth degree.
{¶3} Romacko filed a motion to suppress evidence on August 14, 2015. An oral
hearing was conducted on October 14, 2015. The state called one witness, Officer James
Miller. Romacko did not present any evidence at the hearing.
Officer James Miller.
{¶4} Officer Miller testified that on September 3, 2014 at about 12:13 P.M., he
was on patrol in the 1000 block of Union Avenue NW when he passed a female walking
from an unnamed alley onto the 1000 block of Logan Ave NW. Officer Miller stated that
he traveled back to the area and remained stationary in his police cruiser.
{¶5} Officer Miller observed the female walking south on Logan Avenue toward
him. Officer Miller watched as the female knocked on the door of a house. No one
answered the door. Miller also watched the female appear to place an unidentified
object into a trashcan, but he could not tell what, if anything, was placed in the can.
{¶6} Officer Miller exited his vehicle, began walking towards the female. Officer
Miller was wearing a body camera that recorded the interaction with Romacko. Officer
Tuscarawas County, Case No. 2015 AP 0063 3
Miller could not recall how he began the conversation with Romacko. However, Officer
Miller began asking her what she was doing and if she had any identification.
{¶7} Romacko produced identification for the officer, including her CPR license.
Officer Miller testified that Romacko stated that she was a home health aide and that she
worked for Ember Home Healthcare. Romacko told the officer that she was looking for
a client's house. Officer Miller testified that she did not appear dressed for this type of
work and she did not have any type of identification indicating that she worked for Ember
Home Healthcare. Romacko replied that she had worked there two and one-half years
and has never had an I.D. badge.
{¶8} Officer Miller testified that he then asked Romacko if she had anything in
her pockets. Romacko responded that she did not have anything. Romacko stated that
she was in a hurry and called someone, “Donna,” on her cell phone to inform the party
that she would be late. Romacko explained to Officer Miller that she had to be in
Dennison to take someone to pain management at 1:30 p.m. Officer Miller then asked
Romacko, “Would you have a problem pulling your pockets out for me?” Romacko began
to comply. Officer Miller than tells Romacko, “Can you pull them all the way out, kinda
keeping it tucked in half way there.” According to Officer Miller, Romacko began to
manipulate the pocket and he observed what appeared to be a blue balloon within the
pocket. Officer Miller testified that balloons are commonly used for transporting heroin.
Officer Miller ordered Romacko to “Hand me the balloon of drugs. You have heroin in
your pocket hand it to me now.”
{¶9} Officer Miller testified that Romacko then appeared to try to rip the glove
apart in an effort to try to destroy something within the glove. Officer Miller had the
Tuscarawas County, Case No. 2015 AP 0063 4
Romacko put the glove on his car so that it could not be destroyed. When asked where
the glove came from, Romacko stated that the glove was for work as a home health care
aid; she later stated that she found the glove in the street. (T. at 9).
{¶10} A search of the glove revealed crack cocaine. Miller then arrested
Romacko.
The trial court’s decision.
{¶11} In a Judgment Entry dated November 16, 2015, the trial court granted
Romacko's Motion to Suppress. The trial court found that Romacko could not have
felt free to leave the situation under the facts and circumstances, and was effectively
seized unlawfully by Officer Miller. The trial court found this not a consensual encounter
but was, instead, an investigatory police detention. The trial court further found that
Officer Miller did not have a reasonable suspicion that Romacko was engaged in criminal
activity. The trial court stated,
The suggestion that Ms. Romacko, in this case, or any person in
similar factual circumstances would realistically believe that they could, in
essence, ignore a police officer's affirmative contact with them and
questions of them, and simply walk away, denies the realities of police-
citizen contact in the 21st Century. Had Ms. Romacko done exactly that
in this case, it is certainly not far-fetched for her to expect that criminal
charges of Obstructing Official Business and, at the extreme, Resisting
Arrest, would have followed her refusal to answer Officer Miller's questions
or her simply ignoring his inquiries.
Tuscarawas County, Case No. 2015 AP 0063 5
Assignment of Error
{¶12} The state raises one assignment of error,
{¶13} “I. THE TRIAL COURT DID NOT ERR IN GRANTING THE MOTION TO
SUPPRESS EVIDENCE FILED BY DEFENDANT-APPELLEE, AS A SEIZURE OF HER
PERSON OCCURRED THAT WAS NOT CONSENSUAL AND NOT AUTHORIZED BY
THE FOURTH AMENDMENT.”
Analysis
{¶14} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;
State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing
court must defer to the trial court's factual findings if competent, credible evidence exists
to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio
App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as
true, it must independently determine as a matter of law whether the trial court met the
applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio
App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534
U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,
116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial
court's findings of fact is subject to a de novo standard of review Ornelas, supra.
Tuscarawas County, Case No. 2015 AP 0063 6
Moreover, due weight should be given “to inferences drawn from those facts by resident
judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.
Officer Miller’s contact with Romacko.
{¶15} Contact between police officers and the public can be characterized in three
different ways. State v. Richardson, 5th Dist. Stark No. 2004CA00205, 2005–Ohio–554,
¶23–27. The first is contact initiated by a police officer for purposes of investigation.
“[M]erely approaching an individual on the street or in another public place [,]” seeking to
ask questions for voluntary, uncoerced responses, does not violate the Fourth
Amendment. United States v. Flowers, 909 F.2d 145, 147(6th Cir. 1990). The United
State Supreme Court “[has] held repeatedly that mere police questioning does not
constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d
389 (1991); see also INS v. Delgado, 466 U.S. 210, 212, 104 S.Ct. 1758, 80 L.Ed.2d 247
(1984). “[E]ven when officers have no basis for suspecting a particular individual, they
may generally ask questions of that individual; ask to examine the individual's
identification; and request consent to search his or her luggage.” Bostick, 501 U.S. at
434-435, 111 S.Ct. 2382 (citations omitted).
The person approached, however, need not answer any question put
to him, and may continue on his way. Florida v. Royer (1983), 460 U.S.
491, 497–98. Moreover, he may not be detained even momentarily for his
refusal to listen or answer. Id. So long as a reasonable person would feel
free “to disregard the police and go about his business,” California v. Hodari
D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991), the
encounter is consensual and no reasonable suspicion is required.
Tuscarawas County, Case No. 2015 AP 0063 7
{¶16} The second type of contact is generally referred to as “a Terry stop” and is
predicated upon reasonable suspicion. Richardson, supra; Flowers, 909 F.2d at 147;
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). This temporary
detention, although a seizure, does not violate the Fourth Amendment. Under the Terry
doctrine, “certain seizures are justifiable ... if there is articulable suspicion that a person
has committed or is about to commit a crime” Florida, 460 U.S. at 498. In holding that the
police officer's actions were reasonable under the Fourth Amendment, Justice Rehnquist
provided the following discussion of the holding in Terry,
In Terry this Court recognized that a police officer may in appropriate
circumstances and in an appropriate manner approach a person for
purposes of investigating possible criminal behavior even though there is
no probable cause to make an arrest. The Fourth Amendment does not
require a police officer 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.
Adams v. Williams, 407 U.S. 143, 145–47, 92 S.Ct. 1921, 1923–24, 32 L.Ed.2d
612(1972).
{¶17} The third type of contact arises when an officer has “probable cause to
believe a crime has been committed and the person stopped committed it.” Richardson,
Tuscarawas County, Case No. 2015 AP 0063 8
2005-Ohio-554, ¶27; Flowers, 909 F.2d at 147. A warrantless arrest is constitutionally
valid if:
“[a]t the moment the arrest was made, the officers had probable cause to
make it-whether at that moment the facts and circumstances within their
knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the * * * [individual] had
committed or was committing an offense.”
State v. Heston, 29 Ohio St.2d 152, 155–156, 280 N.E.2d 376(1972), quoting Beck v.
Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142(1964). “The principal components
of a determination of reasonable suspicion or probable cause will be the events which
occurred leading up to the stop or search, and then the decision whether these historical
facts, viewed from the standpoint of an objectively reasonable police officer, amount to
reasonable suspicion or to probable cause.” Ornelas v. United States, 517 U.S. 690, 696,
116 S.Ct. 1657, 1661–1162(1996). A police officer may draw inferences based on his
own experience in deciding whether probable cause exists. See, e.g., United States v.
Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589(1975).
{¶18} The Ohio Supreme Court has held that a police officer's statement “Hey,
come here a minute,” while nominally couched in the form of a demand, is actually a
request that a citizen is free to regard or to disregard. State v. Smith, 45 Ohio St.3d 255,
258–259, 544 N.E.2d 239, 242(1989), reversed sub nom. Smith v. Ohio, 494 U.S. 541,
110 S.Ct. 1288, 108 L.Ed.2d 464(1990); State v. Crossen, 5th Dist. Ashland No. 2010-
COA-027, 2011-Ohio-2509, ¶13.
Tuscarawas County, Case No. 2015 AP 0063 9
{¶19} In United States v. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, the
United States Supreme Court made the following observation: “[w]e conclude that a
person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of
all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave. Examples of circumstances that might indicate a
seizure, even where the person did not attempt to leave, would be the threatening
presence of several officers, the display of a weapon by an officer, some physical touching
of the person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer's request might be compelled. See Terry v. Ohio, supra, 392
U.S., at 19, n. 16, 88 S.Ct. at 1879, n. 16; Dunaway v. New York, 442 U.S. 200, 207, and
n. 6, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824; 3 W. LaFave, Search and Seizure 53-55
(1978)”. Id. at 544, 100 S.Ct. at 1877. (Emphasis added).
{¶20} In the case at bar, Officer Miller's body camera recorded the encounter.
Officer Miller testified, “If she would’ve walked away there was no reason for me to stop
her. I had no reason to continue to detain her, or to detain her I guess.” (T. at 19). Officer
Miller characterized the encounter as “consensual.” (T. at 17-18).
{¶21} In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357(1979), the
United States Supreme Court held that the application of a Texas statute to detain
appellant and require him to identify himself violated the Fourth Amendment because the
officers lacked any reasonable suspicion to believe the appellant was engaged or had
engaged in criminal conduct. The court further held that detaining appellant to require
him to identify himself constituted a seizure of his person subject to the requirement of
the Fourth Amendment that the seizure be “reasonable.” Cf. Terry v. Ohio, supra. The
Tuscarawas County, Case No. 2015 AP 0063 10
Fourth Amendment requires that such a seizure be based on specific, objective facts
indicating that society's legitimate interests require such action, or that the seizure be
carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of
individual officers. Brown, supra, at 51, 99 S.Ct. at 2640, 61 L.Ed.2d at 362, citing
Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660(1979).
{¶22} In Brown, two police officers, while cruising near noon in a patrol car,
observed appellant and another man walking away from one another in an alley in an
area with a high incidence of drug traffic. They stopped and asked appellant to identify
himself and explain what he was doing. One officer testified that he stopped appellant
because the situation “looked suspicious and we had never seen that subject in that area
before.” The officers did not claim to suspect appellant of any specific misconduct, nor
did they have any reason to believe that he was armed. When appellant refused to
identify himself, he was arrested for violation of a Texas statute which makes it a criminal
act for a person to refuse to give his name and address to an officer “who had lawfully
stopped him and requested the information.” Appellant's motion to set aside an
information charging him with violation of the statute on the ground that the statute
violated the First, Fourth, Fifth, and Fourteenth Amendments was denied, and he was
convicted and fined. The El Paso County Court's rejection of his claim was affirmed by
the highest state court. State v. Jones, 70 Ohio App.3d 554, 558-559, 591 N.E.2d
810(2nd Dist. 1990)
{¶23} On further appeal, the United States Supreme Court entered a reversal.
Chief Justice Burger delivered the opinion for a unanimous court and stated:
Tuscarawas County, Case No. 2015 AP 0063 11
The flaw in the State's case is that none of the circumstances
preceding the officers' detention of appellant justified a reasonable
suspicion that he was involved in criminal conduct. Officer Venegas
testified at appellant's trial that the situation in the alley ‘looked suspicious,’
but he was unable to point to any facts supporting that conclusion. There
is no indication in the record that it was unusual for people to be in the alley.
The fact that appellant was in a neighborhood frequented by drug users,
standing alone, is not a basis for concluding that appellant himself was
engaged in criminal conduct. In short, the appellant's activity was no
different from the activity of other pedestrians in that neighborhood. When
pressed, Officer Venegas acknowledged that the only reason he stopped
appellant was to ascertain his identity. The record suggests an
understandable desire to assert a police presence; however, that purpose
does not negate Fourth Amendment guarantees.
In the absence of any basis for suspecting appellant of misconduct,
the balance between the public interest and appellant's right to personal
security and privacy tilts in favor of freedom from police interference. The
Texas statute under which appellant was stopped and required to identify
himself is designed to advance a weighty social objective in large
metropolitan centers: prevention of crime. But even assuming that purpose
is served to some degree by stopping and demanding identification from an
individual without any specific basis for believing he is involved in criminal
activity, the guarantees of the Fourth Amendment do not allow it. When
Tuscarawas County, Case No. 2015 AP 0063 12
such a stop is not based on objective criteria, the risk of arbitrary and
abusive police practices exceeds tolerable limits. See Delaware v. Prouse,
supra, at 661, 99 S.Ct. at 1400 [59 L.Ed.2d, at 672].
The application of Tex.Penal Code Ann., Tit. 8, § 38.02 (1974), to
detain appellant and require him to identify himself violated the Fourth
Amendment because the officers lacked any reasonable suspicion to
believe appellant was engaged or had engaged in criminal conduct.
Accordingly, appellant may not be punished for refusing to identify himself,
and the conviction is Reversed.”
443 U.S. at 51–53, 99 S.Ct. at 2641, 61 L.Ed.2d at 362–363.
{¶24} Under any objective view of the evidence, the conduct of Officer Miller
resulted in a detention or seizure of Romacko. Officer Miller simply observed Romacko
leave a home where two drug overdoses had occurred two weeks prior in time, and walk
down the street in the early afternoon. No testimony was presented that it was unusual
for citizens to be walking at this time of day in this particular location. Officer Miller was
unable to point to any “furtive” behavior on the part of the Romacko. A search of the
trashcan Officer Miller had testified to did not reveal any evidence. Officer Miller’s use of
language and tone of voice as revealed from the body camera footage indicated that
compliance with his requests might be compelled.
{¶25} In the case at bar, the absence of any basis for suspecting Romacko of
misconduct, the balance between the public interest and Romacko’s right to personal
security and privacy tilts in favor of freedom from police interference. There is nothing
more than an inchoate hunch that Romacko had violated or was about to violate the law
Tuscarawas County, Case No. 2015 AP 0063 13
when the officer requested that she speak to him and to produce her identification. If
police officers may approach citizens under circumstances shown in this case, it means
that the police may at any time and any place for any reason or no reason whatsoever
stop citizens and asked what they are doing and whom they are. Allowing police officer's
to require people to show their identification absent a reasonable basis to do so serves
no legitimate police function; allowing police officers to require people to show their
identification when the officers have shown a reasonable basis for the request does. By
requiring officers to show a reasonable basis to support the conduct, the constitutional
rights of individuals are preserved and legitimate police function is not impeded. State v.
Daniel, 12 S.W.2d 420, 431 (Tenn. 2000)(Byer, Special Justice, concurring in part,
dissenting in part).
{¶26} In the case at bar, Officer Miller was unable to point to any facts supporting
his conclusion that the situation on the public street in broad daylight looked suspicious.
Thus this case presents us with a classic example of the “unparticularized suspicion or
hunch” warned against in Terry.
{¶27} Appellant’s sole assignment of error is overruled.
Tuscarawas County, Case No. 2015 AP 0063 14
{¶28} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed.
By: Gwin, P.J.,
Wise, J., and
Delaney, J., concur