[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 policecitizen 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-Ohio680, ¶ 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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