[Cite as State v. Romacko, 2016-Ohio-1512.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellant 

-vsJONI L. ROMACKO 

 Defendant-Appellee 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. John W. Wise, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. 2015 AP 0063 

: 

: 

: O P I N I O N 

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 policecitizen 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