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Date: 06-11-2020
Case Style:
STATE OF OHIO - vs - ALLISON KEATING
Case Number: CA2019-08-064
Judge: Michael E. Powell
Court: IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLINTON COUNTY
Plaintiff's Attorney: D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton
Defendant's Attorney:
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Description: On February 18, 2018, Miami Township Police Officer Todd Taylor was
dispatched to a McDonald's restaurant to conduct a welfare check on the female passenger
of a gold Caravan. The police had received a call indicating that the passenger had open
sores on her arms and was wearing bloody gloves. Officer Taylor and another police officer,
Sergeant Hirsch, responded to the scene in separate police cruisers. The officers located
the van and approached it. Upon contacting the driver and discovering that the subject of
the welfare check was not in the van, Officer Taylor indicated his intention to go into the
store, a gas station, and look for the woman. Sergeant Hirsch remained outside.
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{¶ 3} Upon entering the store, Officer Taylor immediately observed a woman with
multiple bleeding sores on her arms. The woman was Keating. Officer Taylor approached
her and explained why he was there. Keating explained that her sores were caused by
impetigo, a skin condition, and that she was okay. Keating did not ask for assistance and
Officer Taylor did not call for medical assistance. The officer asked Keating for
identification. Keating replied she did not have any identification on her and instead verbally
provided her social security number. Officer Taylor and Keating subsequently exited the
store and returned to the van.
{¶ 4} Testimony differs as to what occurred once Keating provided her social
security number to Officer Taylor. Keating testified that after she provided her social
security number to Officer Taylor, he told her, "I could get back in the van. He'd be just a
minute or whatever. And he took my Social Security number and ran it." Officer Taylor
testified that as he "was out with [Keating]," he called the Clermont County Communication
Center to run a warrant check on Keating using her social security number. The officer
could not remember if Keating was in the van at that point or standing just outside the
vehicle. He, however, denied directing her to get into the van. Officer Taylor was never
asked whether he told Keating "he'd be just a minute."
{¶ 5} The dispatcher informed Officer Taylor that there was a warrant for Keating's
arrest. Subsequently, the officer advised Keating of the warrant. Keating was in the
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passenger seat of the van at that time. Keating asked if she could smoke a cigarette.
Officer Taylor replied that she could if she promised not to run off. The officer then asked
Keating "if she had anything illegal on her that could get her in trouble." Keating disclosed
there was a syringe in her backpack. The dispatcher subsequently confirmed the warrant.
Officer Taylor handcuffed Keating and asked her if he could retrieve the syringe from her
backpack. Keating acquiesced and further asked the officer to retrieve some money from
her backpack. While doing so, Officer Taylor observed a folded piece of paper and inquired
about its contents. Keating admitted it contained heroin.
{¶ 6} Testimony reveals that throughout the events, Sergeant Hirsch remained
outside, near or on the driver's side of the van. Testimony further indicates that after Keating
provided her social security number to Officer Taylor, and while the officer spoke with
Keating on the passenger side of the van, Sergeant Hirsch was on the other side of the van
speaking with the driver.
{¶ 7} Keating was indicted on one count of heroin possession. She moved to
suppress the evidence, arguing that she was unlawfully detained once Officer Taylor told
her she "could get back in the van. He'd be just a minute." The trial court conducted a
hearing on the matter; Officer Taylor and Keating both testified. Five weeks after the
suppression hearing, the state filed a memorandum in opposition to Keating's motion to
suppress, asserting that there was no seizure and implicitly arguing that the officer's
interaction with Keating was a consensual encounter until the officer discovered Keating's
arrest warrant.
{¶ 8} On August 5, 2019, the trial court granted Keating's motion to suppress. The
trial court found that while the initial encounter between Keating and Officer Taylor was
consensual, the officer's statement to Keating "he'd be just a minute," combined with the
presence of two police officers at the scene transformed the encounter into an investigatory
Clermont CA2019-08-064
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detention without a reasonable, articulable suspicion of criminal activity. The trial court
reasoned that "Officer Taylor's words and the presence of multiple police officers were
enough to make a reasonable person in the defendant's shoes feel that she would not be
free to leave and ignore Officer Taylor's implied request. As such, the defendant was
illegally detained at that moment." In so ruling, the trial court found Keating's "testimony
that Officer Taylor told her 'he'd be just a minute' credible," but acknowledged "that Officer
Taylor did not testify that he told [Keating] she 'could get back in the van' or that 'he'd be
just a minute.'"
{¶ 9} The state appeals the decision of the trial court, raising one assignment of
error:
{¶ 10} THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO
SUPPRESS.
{¶ 11} The state argues that the trial court erred in granting the motion to suppress.
Specifically, the state asserts that Officer Taylor's interaction with Keating was a consensual
encounter that did not implicate the Fourth Amendment until the officer told Keating there
was an active warrant for her arrest. The state further asserts that even if Keating was
illegally detained, the heroin should not have been suppressed because its discovery did
not arise from the illegal detention but rather, arose due to an intervening circumstance
and/or independent source, namely, Officer Taylor's discovery of the arrest warrant.
{¶ 12} Appellate review of a ruling on a motion to suppress presents a mixed
question of law and fact. State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-
Ohio-828, ¶ 8, citing State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. When
considering a motion to suppress, the trial court, as the trier of fact, is in the best position
to weigh the evidence in order to resolve factual questions and evaluate witness credibility.
Vaughn at ¶ 8. In turn, when reviewing a trial court's decision on a motion to suppress, an
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appellate court is bound to accept the trial court's findings of fact if they are supported by
competent, credible evidence. Id. An appellate court, however, independently reviews the
trial court's legal conclusions based on those facts and determines, without deference to
the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal
standard. Id.
{¶ 13} The Fourth Amendment to the United States Constitution protects individuals
from unreasonable searches and seizures. State v. Brown, 12th Dist. Clermont No.
CA2001-04-047, 2001 Ohio App. LEXIS 5476, *5 (Dec. 10, 2001). However, not all
interactions between police officers and citizens are seizures under the Fourth Amendment.
Id. The United States Supreme Court has recognized three categories of police interactions
with members of the public: (1) a consensual encounter, which requires no objective
justification, (2) a brief investigatory detention, which must be supported by reasonable
suspicion of criminal activity, and (3) a full arrest, which must be supported by probable
cause. State v. Wynne, 10th Dist. Franklin No. 18AP-531, 2019-Ohio-1013, ¶ 12. The state
did not argue in the trial court that the encounter between Officer Taylor and Keating was
anything other than a consensual encounter that did not implicate the Fourth Amendment.
A consensual encounter occurs "where the police merely approach a person in a public
place, engage the person in conversation, request information, and the person is free not
to answer and walk away." State v. Tabler, 10th Dist. Franklin No. 14AP-386, 2015-Ohio2651, ¶ 21.
{¶ 14} In determining whether an encounter between a police officer and a citizen is
a seizure and thus implicates the Fourth Amendment, the question is whether, in light of all
the circumstances surrounding the encounter, a reasonable person would believe he or she
was not free to leave. Wynne at ¶ 13. Stated otherwise, the question is whether, taking
into account all the circumstances surrounding the encounter, a reasonable person would
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feel free to decline the officer's request or terminate the encounter. Brown at *5-6, citing
Florida v. Bostic, 501 U.S. 429, 436-437, 111 S.Ct. 2382 (1991). As long as a reasonable
person would feel free to disregard the officer, the encounter is consensual and no
reasonable suspicion is required. Bostic at 434. "Under this objective test, we consider not
whether the individual believed he was being ordered to restrict his movement, but whether
the officer's words and actions would have conveyed that to a reasonable person."
Columbus v. Body, 10th Dist. Franklin No. 11AP-609, 2012-Ohio-379, ¶ 14. Circumstances
indicating that a person has been seized include the 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, and blocking the person's path. Brown at *6, citing United States v.
Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870 (1980); Wynne at ¶ 13.
{¶ 15} We recently addressed a similar situation to the case at bar in State v. Kirk,
12th Dist. Clermont No. CA2019-07-053, 2020-Ohio-323. While on routine patrol, a police
officer came upon Kirk who was attaching a band saw to the front of his bicycle near the
loading area of a store. Upon inquiry, Kirk told the officer he did not have any identification
on him and instead verbally provided his name and social security number. The officer told
Kirk, "I'll be back with [you] in a minute," then proceeded to his cruiser where he ran Kirk's
personal information through LEADS. Within a couple of minutes, the officer learned that
Kirk was subject to an extradition warrant. The officer returned to Kirk, advised him of the
warrant, and informed him that he was going to pat him down and secure him. Before the
officer could do so, Kirk fled. The officer caught Kirk and placed him under arrest. In
searching Kirk incident to the arrest, the officer discovered drugs on Kirk's person.
{¶ 16} Kirk moved to suppress the evidence, arguing that he was unlawfully detained
once the officer told him, "I'll be back with [you] in a minute." In opposing Kirk's motion to
Clermont CA2019-08-064
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suppress, the state argued that the officer's interaction with Kirk was a consensual
encounter until the officer discovered Kirk's arrest warrant. The trial court granted Kirk's
motion to suppress. The trial court found that while the initial encounter between Kirk and
the officer was consensual, it evolved into an investigatory detention without a reasonable,
articulable suspicion of criminal activity when the officer told Kirk, "I'll be back with [you] in
a minute." The trial court reasoned that the officer's "words alone were enough to make a
reasonable person in the defendant's shoes feel that he would not be free to walk away and
ignore [the officer's] implied request. As such, the defendant was illegally detained at that
moment." Id. at ¶ 5.
{¶ 17} On appeal, we reversed the trial court's grant of the motion to suppress.
Based upon the totality of the circumstances surrounding the officer's interaction with Kirk,
we found that "the interaction was a consensual encounter until the officer told Kirk he was
going to pat him down. In other words, [the officer's] statement to Kirk, 'I'll be back with
[you] in a minute,' did not constitute a seizure of Kirk implicating the Fourth Amendment and
requiring reasonable suspicion." Kirk, 2020-Ohio-323 at ¶ 21. Hence, we found that the
officer's statement to Kirk, "I'll be back with [you] in a minute," did not convert the encounter
from a consensual one to an investigatory detention, and thus the trial court erred in granting
Kirk's motion to suppress. Id. at ¶ 24.
{¶ 18} Pertinent to our holding were the fact that the officer was the only officer at
the scene, the officer did not advise Kirk that he was returning to his police cruiser to use
Kirk's identifying information to check for warrants, and Kirk could have walked or pedaled
away from the encounter at any time before he was informed he would be pat down. Id. at
¶ 22-23.
{¶ 19} Turning to the case at bar, we consider whether, in light of all the
circumstances surrounding Officer Taylor's interaction with Keating, the officer's words and
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actions would have conveyed to a reasonable person that he or she was free to leave or
otherwise terminate the encounter. Body, 2012-Ohio-379 at ¶ 14. Based upon the totality
of the circumstances surrounding Officer Taylor's interaction with Keating, we find that while
the initial encounter was consensual, it evolved into an investigatory detention without a
reasonable, articulable suspicion of criminal activity when the officer told Keating that she
"could get back in the van. He'd be just a minute."
{¶ 20} Similar to Kirk, many of the factors evidencing a seizure were absent. The
sirens and light bar of Officer Taylor's cruiser were not activated when the officer pulled up
to the scene or afterwards. There is no evidence Officer Taylor drew or displayed his
weapon, touched Keating, or accused her of a crime. Although he could not recall where
he had parked his cruiser, Officer Taylor did not believe it blocked the van's path.
{¶ 21} However, unlike in Kirk, Keating was not a pedestrian free to walk away, but
rather was a passenger in the van dependent on the van's driver. Unlike in Kirk, Officer
Taylor was not the only officer at the scene. Rather, there were two officers at the scene,
and both responded to the scene in separate police cruisers. During the entire time Officer
Taylor interacted with Keating, Sergeant Hirsch remained on the driver's side of the van
speaking with the driver. Unlike in Kirk, Keating knew Officer Taylor was conducting a
warrant check as he called the Clermont County Communication Center in her presence.
Furthermore, Officer Taylor's statement to Keating that she "could get back in the van. He'd
be just a minute," conveyed a sense he was in charge of Keating's movements. Finally, the
warrant check occurred while Officer Taylor and Sergeant Hirsch surrounded the van.
{¶ 22} In light of all of the circumstances surrounding the encounter between Officer
Taylor and Keating, we find that the officer's statement and actions, combined with the
presence of Officer Taylor and Sergeant Hirsch on both sides of the van, thereby
surrounding it, would have communicated to a reasonable person that he or she was not
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free to walk away or otherwise terminate the encounter. We therefore find that Keating was
seized within the meaning of the Fourth Amendment when Officer Taylor advised her she
"could get back in the van. He'd be a minute." Because the encounter between Officer
Taylor and Keating escalated from a consensual one into an investigatory detention before
the officer learned about the arrest warrant, the trial court did not err in granting Keating's
motion to suppress.
{¶ 23} Citing numerous cases, the dissent maintains that police officers may
constitutionally detain individuals absent suspicion of criminal activity to ensure the
individual's well-being. Although the state did not argue that Keating's detention was
justified pursuant to this community caretaking function, the dissent relies upon State v.
Peagler, 76 Ohio St. 3d 496 (1996), to assert that we should reverse the trial court's grant
of the motion to suppress on the ground Keating's detention was a reasonable detention
incident to the exercise of Officer Taylor's community caretaking duties. Alternatively, the
dissent relies on Peagler to assert we should order that the issue be briefed by the parties.
Peagler recognized the discretionary authority of a court of appeals "to address an issue
not briefed or raised below [so long as there is a] sufficient evidentiary basis in the record *
* * upon which it can decide a particular legal issue." Peagler at 499.
{¶ 24} In reviewing the record to determine whether there is some evidentiary basis
to justify resolving this case upon a legal theory not advanced below, we must be cognizant
of the burdens of production and proof in proceedings upon motions to suppress. This case
involves a warrantless seizure of the person. In such cases, it is the state which bears the
burdens of production and proof. See State v. Denune, 82 Ohio App.3d 497, 505 (12th
Dist.1992). Thus, if the record is ambiguous or lacking upon an issue for which the state
bears the burden of production and proof, that ambiguity or omission must be resolved
against the state.
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{¶ 25} The record reflects that upon first being approached by Officer Taylor as she
stood in line in the store, Keating explained the sores on her arms and told Officer Taylor
that she was "ok." Based upon Keating's response, and apparently satisfied that Keating
was not in need of further attention, Officer Taylor did not call for medical assistance.1
Officer Taylor then asked Keating for her identification; she replied that she had none but
provided the information verbally. Keating's replies to Officer Taylor's inquiries were
responsive and appropriate. Officer Taylor testified that Keating was free to leave at the
time he asked her for identification, again indicating he had no concerns for her well-being.
Keating exited the store with Officer Taylor without assistance. There is nothing in the
record regarding this interaction between Keating and Officer Taylor to suggest that Keating
was in some acute distress. Finally, Officer Taylor's testimony refutes any implication that
checking Keating's identification information was related to the initial "welfare check." Upon
cross-examination, Officer Taylor rejected defense counsel's suggestion that he called in
Keating's identifying information to complete his report and testified that he did so to check
for warrants.2 This record discloses that Keating was detained for purposes of criminal
investigation, not for her own welfare. Under Peagler, there is no evidentiary basis for us
to consider whether Keating's detention was an exercise of community caretaking or order
additional briefing of the issue.
{¶ 26} We decline to address the state's argument regarding whether the trial court's
suppression of the heroin was the proper remedy. The state did not make this argument
either in its memorandum in opposition to Keating's motion to suppress or during the
1. When asked on cross-examination if he sought medical assistance for Keating, Officer Taylor testified,
"No. Once she explained what the sores were for – or, the reasoning for them, no. * * * Then she indicated
she was okay."
2. On cross-examination, defense counsel asked Officer Taylor if he contacted dispatch for the purpose of
completing his report. Officer Taylor replied, "No. I was checking for warrants."
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suppression hearing. In fact, at the beginning of the suppression hearing, the prosecutor
plainly advised the trial court, "since [Keating's] issue is detention without a warrant, * * *
we would proceed just to counter that." The state now suggests it could not have known
this would be an issue it needed to raise until the trial court failed to correctly apply the law.
However, contrary to the state's assertion, this issue was one that was identifiable as a
ground to deny the motion to suppress, either from Keating's motion to suppress or from
defense counsel's statement during his cross-examination of Officer Taylor, "And then,
Judge, just so we cover the poisonous fruit argument that I'm going to have."
{¶ 27} It is well established that a party cannot raise new issues or legal theories for
the first time on appeal because such issues or theories are deemed waived. Kirk, 2020-
Ohio-323 at ¶ 25; State v. Mehta, 12th Dist. Butler Nos. CA2000-11-232 and CA2000-12-
256, 2001 Ohio App. LEXIS 3896, *8 (Sept. 4, 2001); State v. Walker, 1st Dist. Hamilton
No. C-150757, 2017-Ohio-9255, ¶ 26. This waiver "applies to arguments not asserted
either in a written motion to suppress or at the suppression hearing." Walker at ¶ 26;
Vaughn, 2015-Ohio-828; State v. Clay, 8th Dist. Cuyahoga No. 91942, 2009-Ohio-2725.
{¶ 28} The state's assignment of error is overruled.
Outcome: Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: