[Cite as State v. Keating , 2020-Ohio-2770.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, Appellant,

- vs -

ALLISON KEATING, Appellee. :

:

:

:

:

: CASE NO. CA2019-08-064

O P I N I O N 5/4/2020

CRIMINAL APPEAL FROM CLERMONT C OUNTY COURT OF COMMON PLEAS Case No. 2018CR00576

D. Vincent Faris, Clermont County Prosecuting Attorney, Nichola s A. Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellant W. Stephen Haynes, Clermont County Public Defender, Robert F. B enintendi, 302 East Main Street, Batavia, Ohio 45103, for appellee

M. POWELL, J. {¶ 1} Appellant, the state of Ohio, appeals a decision of the Clermon t County Court of Common Pleas granting the motion to suppress of appellee, Al lison Keating. {¶ 2} On February 18, 2018, Miami Township Police Officer Todd Taylor was dispatched to a McDonald's restaurant to conduct a welfare chec k on the female passengerClermont CA2019-08-064

- 2 - of a gold Caravan. The police had received a call indicating t hat the passenger had open sores on her arms and was wearing bloody gloves. Officer Taylo r and another police officer, Sergeant Hirsch, responded to the scene in separate police crui sers. The officers located the van and approached it. Upon contacting the driver and disc overing 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. {¶ 3} Upon entering the store, Officer Taylor immediately observed a woman with multiple bleeding sores on her arms. The woman was Keating. O fficer 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 office r asked Keating for identification. Keating replied she did not have any identific ation on her and instead verbally provided her social security number. Officer Taylor and Keatin g 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 afte r she provided her social security number to Officer Taylor, he told her, "I could get ba ck 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 Cl ermont County Communication Center to run a warrant check on Keating using her social secur ity number. The officer could not remember if Keating was in the van at that point or s tanding 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 warra nt. Keating was in theClermont CA2019-08-064

- 3 - passenger seat of the van at that time. Keating asked if she c ould smoke a cigarette. Officer Taylor replied that she could if she promised not to ru n 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 subsequent ly confirmed the warrant. Officer Taylor handcuffed Keating and asked her if he could ret rieve 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 r emained outside, near or on the driver's side of the van. Testimony fu rther indicates that after Keating provided her social security number to Officer Taylor, and whil e the officer spoke with Keating on the passenger side of the van, Ser geant Hirsch was o n the other side of the van speaking with the driver. {¶ 7} Keating was indicted on one count of heroin possession. She mo ved 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." T he trial court conducted a hearing on the matter; Officer Taylor and Keating both testifie d. 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 ar guing that the officer's interaction with Keating was a consensual encounter until the o fficer 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 Keat ing 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 en counter into an investigatoryClermont CA2019-08-064

- 4 - detention without a reasonable, articulable suspicion of crimin al activity. The trial court reasoned that "Officer Taylor's words and the presence of multi ple police officers were enough to make a reasonable person in the defendant's shoes fee l 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 co urt 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 ba ck 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 sup press. Specifically, the state asserts that Officer Taylor's interacti on 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 assert s 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 a n intervening circumstance and/or independent source, namely, Officer Taylor's discovery o f 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, anClermont CA2019-08-064

- 5 - appellate court is bound to accept the trial court's findings o f 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 determ ines, without deference to the trial court's decision, whether as a matter of law, the fac ts 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 categori es of police interactions with members of the public: (1) a consensual encounter, which r equires no objective justification, (2) a brief investigatory detention, which must be supported by reasonable suspicion of criminal activity, and (3) a full arrest, which mu st 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 Off icer Taylor and Keating was anything other than a consensual encounter that did not implica te 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 an d a citizen is a seizure and thus implicates the Fourth Amendment, the questio n is whether, in light of all the circumstances surrounding the encounter, a reasonable perso n 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 wouldClermont CA2019-08-064

- 6 - feel free to decline the officer's request or terminate the enc ounter. Brown at *5-6, citing

Florida v. Bostic , 501 U.S. 429, 436-437, 111 S.Ct. 2382 (1991). As long as a r easonable 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 restric t his movement, but whether the officer's words and actions would have conveyed that to a r easonable person." Columbus v. Body , 10th Dist. Franklin No. 11AP-609, 2012-Ohio-379, ¶ 14. Circu mstances indicating that a person has been seized include the threatenin g 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 wit h 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 fron t of his bicycle near the loading area of a store . Upon inquiry, Kirk told the officer he did not have any iden tification on him and instead verbally provided his name and social securi ty 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 return ed 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 pl aced him under arrest. In searching Kirk incident to the arrest, the officer discovered d rugs on Kirk's person. {¶ 16} Kirk moved to suppress the evidence, arguing that he was unlawf ully detained once the officer told him, "I'll be back with [you] in a minute ." In opposing Kirk's motion toClermont CA2019-08-064

- 7 - 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 initia l encounter between Kirk and the officer was consensual, it evolved into an investigatory de tention without a reasonable, articulable suspicion of criminal activity when the officer tol d 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 n ot 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 of ficer'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] stateme nt to Kirk, 'I'll be back with [you] in a minute,' did not constitute a seizure of Kirk implic ating 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 minu te," did not convert the encounter from a consensual one to an investigatory detention, and thus t he 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 returnin g 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 w ould be pat down. Id. at ¶ 22-23. {¶ 19} Turning to the case at bar, we consider whether, in light of al l the circumstances surrounding Officer Taylor's interaction with Kea ting, the officer's words andClermont CA2019-08-064

- 8 - actions would have conveyed to a reasonable person that he or s he 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 w ith Keating, we find that while the initial encounter was consensual, it evolved into an invest igatory 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 activ ated when the officer pulled up to the scene or afterwards. There is no evidence Officer Taylo r drew or displayed his weapon, touched Keating, or accused her of a crime. Although h e could not recall where he had parked his cruiser, Officer Taylor did not believe it bl ocked 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 we re two officers at the scene, and both responded to the scene in separate police cruisers. D uring 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 Ce nter in her presence. Furthermore, Officer Taylor's statement to Keating that she "co uld 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 ac tions, 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 notClermont CA2019-08-064

- 9 - free to walk away or otherwise terminate the encounter. We the refore 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 en counter between Officer Taylor and Keating escalated from a consensual one into an inve stigatory detention before the officer learned about the arrest warrant, the trial court d id not err in granting Keating's motion to suppress. {¶ 23} Citing numerous cases, the dissent maintains that police office rs may constitutionally detain individuals absent suspicion of crimina l 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 d issent relies upon State v. Peagler , 76 Ohio St. 3d 496 (1996), to assert that we should reverse t he 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 caretaki ng duties. Alternatively, the

dissent relies on Peagler to assert we should order that the issue be briefed by the par ties. Peagler recognized the discretionary authority of a court of appeals "t o 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 evid entiary 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 moti ons 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 a n issue for which the state bears the burden of production and proof, that ambiguity or omi ssion must be resolved against the state.Clermont CA2019-08-064

- 10 - {¶ 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 apparent ly satisfied that Keating was not in need of further attention, Officer Taylor did not ca ll for medical assistance. 1 Officer Taylor then asked Keating for her identification; she r eplied that she had none but provided the information verbally. Keating's replies to Office r Taylor's inquiries were responsive and appropriate. Officer Taylor testified that Keat ing was free to leave at the time he asked her for identification, again indicating he had n o 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 T aylor to suggest that Keating was in some acute distress. Finally, Officer Taylor's testimon y refutes any implication that checking Keating's identification information was related to th e initial "welfare check." Upon cross-examination, Officer Taylor rejected defense counsel's su ggestion that he called in Keating's identifying information to complete his report and te stified 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 comm unity caretaking or order additional briefing of the issue. {¶ 26} We decline to address the state's argument regarding whether th e 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 s uppress or during the

1. When asked on cross-examination if he sought medical assist ance for Keating, Officer Taylor testified, "No. Once she explained what the sores were for – or, the reas oning 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 che cking for warrants."Clermont CA2019-08-064

- 11 - suppression hearing. In fact, at the beginning of the suppress ion hearing, the prosecutor plainly advised the trial court, "since [Keating's] issue is de tention 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 mo tion to suppress or from defense counsel's statement during his cross-examination of Off icer Taylor, "And then, Judge, just so we cover the po isonous fruit argument that I'm g oing to have." {¶ 27} It is well established that a par ty cannot raise new issues or legal theories for the first time on appeal because such issues or theories are de emed 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 ar guments not asserted either in a written motion to suppress or at the suppression he aring." 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. {¶ 29} Judgment affirmed.

HENDRICKSON, P.J., concurs separately. PIPER, J., dissents.

HENDRICKSON, P.J., concurring separately. {¶ 30} I concur in the majority opinion but write separately to addres s the distinguishing circumstances between the case sub judice and th is court's prior decision in State v. Kirk , 12th Dist. Clermont No. CA2019-07-053, 2020-Ohio-323. In my view, theClermont CA2019-08-064

- 12 - main distinction between the cases is that Kirk involved a legitimate Terry stop, whereas the circumstances in the present case did not. In Kirk , the police officer personally observed the defendant attaching a power tool to the front of his bicycl e, which was extremely unusual. The defendant was in the parking lot of a retail stor e, near the store's dumpster. The defendant provided a suspicious explanation as to how he ac quired the power tool. Given these facts, the police officer had reasonable and articu lable suspicion for a Terry stop in order to determine whether the tool was stolen. As the officer in Kirk had authority to continue his investigation based upon a reasonable and artic ulable suspicion of criminal activity, the case turned on whether there was a valid Terry stop and not whether the encounter was consensual. To that extent, I agree with the con curring opinion in Kirk

. {¶ 31} However, circumstances like those in Kirk are not present in the case before

us. Unlike in Kirk , whether the encounter was consensual is relevant in this case as there are not facts giving rise to a valid Terry stop. Officer Taylor did not have reasonable articulable suspicion that Keating was involved in any criminal activity. Although Officer Taylor testified at the hearing on the motion to suppress that the bloody sores observed on Keating's arms were "an indicator for drug use, meth" and Keati ng appeared to have "bags under her eyes or dark circles under her eyes," these facts wer e not what led him to ask for Keating's personal information or into running an outstanding w arrants check. Rather than associating any suspected drug usage to the likelihood that use rs typically have outstanding warrants, Officer Taylor indicated he ran Keating's information for an investigatory reason – "to check for warrants." As Officer Taylor explained, he is not required to check for outstanding warrants on all individuals that he comes into cont act with on his police calls. Rather, the Miami Township Police Department only requires offi cers "take a report on every call for service. So to do that, we have to detail the i ndividual's name and the reason

for the contact."Clermont CA2019-08-064

- 13 - {¶ 32} When Officer Taylor made contact with Keating, Keating gave a r easonable explanation for why she had blood sores on her arms – she had i mpetigo. Officer Taylor admitted he was not familiar with impetigo, stating, "I didn't know what it was but apparently it was the reason for the sores she had." Nonetheless, Officer Taylor determined Keating did not need medical aid, and at this point in time, the welfar e check was over. 3 Thereafter, Keating briefly engaged in a consensual encounter with Officer Taylor, providing him with her name and social security number. However, the consensual e ncounter ended when Officer Taylor told Keating to "get back in the van. He'd just be a minute[.]" When this occurred, the encounter became nonconsensual, as fully laid out in the majority opinion. Officer Taylor's ongoing investigation of Keating was improper without the officer having reasonable and articulable suspicion of criminal activity. As none existed, Keating was illegally detained in violation of her Fourth Amendment rights. I therefore concur in the majority's determination that the motion to suppress was proper ly granted. I further concur with the majority's findings that (1) the state's second issue under its assigned error is not properly before this court as it was not raised below and (2) t here is no evidentiary basis in the record below for us to consider the application of State v. Peagler , 76 Ohio St.3d 496 (1996).

3. I recognize that "[t]he community caretaking/emergency-aid e xception to the Fourth Amendment warrant requirement allows police officers to stop a person to render a id if they reasonably believe that there is an immediate need for their assistance to protect life or prevent serious injury." State v. Dunn , 131 Ohio St.3d 325, 2012-Ohio-1008, syllabus. While this exception allowed Of ficer Taylor to approach Keating to ensure she was fine medically and did not need assistance, the excepti on did not permit him to detain Keating after he ensured her health and safety. The caretaking/emergency-aid exception only permits "police to respond to situations where life or limb [are] in jeopardy." Id. at ¶ 21. As discussed in the majority opinion, Keating assured Officer Taylor she was "ok" and that the blood sores we re caused by impetigo. At this point, there was no threat to Keating's life or limbs, as evidenced by the f act that Officer Taylor did not call for medical assistance. The nature of Officer Taylor's interaction with Ke ating changed, and, as discussed above, he lacked reasonable and articulable suspicion and did not have ca use to detain Keating.Clermont CA2019-08-064

- 14 - PIPER, J., dissenting. {¶ 33} Respectfully, I dissent from the lead and separately concurri ng opinions in affirming the trial court's determination that the welfare chec k resulted in an "illegal detention." The trial court's analysis failed to consider the law regarding welfare checks, as do my colleagues. A detention is only illegal if it is found t o be unreasonable. It is not unreasonable if the factual circumstances support application o f an exception to the requirement of a warrant. The idea that we cannot apply law that clearly governs the circumstances ultimately works injustice upon a system designed to do the opposite. {¶ 34} The motion to suppress raises the issue of the reasonableness o f Keating's welfare check. In conflating the law applicable to a welfare c heck, Keating argues "even a momentary detention" must be supported by a suspicion of crimin al activity. Keating argues that as a matter of law once a person who is the subject of a w elfare check explains his or her condition, law enforcement must immediately terminate any c oncern for the individual. Accepting this proposition of law means law enforcement cannot take the time necessary to ascertain the totality of the circumstances. Such a proposi tion of law would also mean law enforcement could never conclude a contact by verifying the person's identity who was the subject of their welfare check. Neither my colleagues, the trial court, nor Keating's

motion cite caselaw that a limited detention cannot occur in th e process of a welfare check.

None exists. {¶ 35} As raised in Keating's motion to suppress, once she became subj ect to a brief and limited detention, it must then be determined whether Keati ng's Fourth Amendment rights were violated. The question becomes: was Keating unreasonably detained under a totality of the circumstances, and therefore illegally detained as a matter of law, by an officer who was confirming her identity in order to conclude his welfar e contact? Stated differently,

as a matter of law is a brief detention to confirm a person's identity who is the sub ject of aClermont CA2019-08-064

- 15 - welfare check beyond the scope of the community caretaking func tion? Since the community caretaking function does not afront the Fourth Amendm ent, these questions must be answered in the negative. {¶ 36} The fact that the state was overly optimistic and responded to the issues raised in Keating's motion in a limited way does not alter the need to fully apply widely accepted case law. Evidence cannot be suppressed unless it can be said that Keating's Fourth Amendment rights were violated. Determining whether an initial engagement is consensual is the beg inning of the legal analysis, it is not th e end of the legal analysis.

A. The Circumstances Specific to Keating {¶ 37} During the suppression hearing, the officer testified to receiv ing a dispatch that requested a welfare check on a female passenger who was bl oodied in a van with another person. The officer was given specific information, in cluding the location of the van in a McDonald's parking lot along with its license plate number . The dispatch described the female passenger as having "open wounds" on her arms and wearin g bloody gloves. After arriving at the location, one of the officers located the femal e inside a nearby store. The officer testified that upon approaching the female, he immediat ely inquired if she was "okay" and explained that they had received a request to perform a wel fare check on her. The female then gave the officer an explanation, which he considere d uncertain considering his experience and her appearance. Despite Keating's explanation, the officer testified he still had concerns for her safety and welfare. 4 {¶ 38} The officer testified that from his experience, the bleeding ap peared to be drug related. He further indicated the female appeared to be "not w ell, bags under her eyes or

4. My colleagues find the officer did not have continuing conc erns for Keating's welfare, yet, this was not a finding made by the trial court. To find such, despite the off icer's testimony to the contrary, requires a credibility determination best left to the trial court. Simila rly, the trial court never made a finding that Keating's explanation was "reasonable" despite the weight attributed to her explanation by the concurring opinion.Clermont CA2019-08-064

- 16 - dark circles under her eyes, appeared to be not feeling well." In concluding his inquiry into her well-being, the officer asked the female for identification and she replied that she had none. The female then volunteered a social security number, pr esumably to confirm the name she gave. Then the officer called it in to dispatch. By this time, they had walked out

of the store to the van. 5 {¶ 39} It was determined by the trial court that the officer contacted dispatch to confirm her identity to complete his contact and conduct a check for warrants. Using the social security number, dispatch confirmed Keating's identity b ut also reported an outstanding warrant for Keating's arrest. In giving Keating th e benefit of the doubt, the officer asked dispatch to verify that the warrant was still act ive. The officer testified with certainty it was only at this point, waiting for the reported w arrant to be verified as active, that Keating was instructed not to leave. Although Keating tes tified, she never testified she felt she could not leave prior to this time. {¶ 40} Despite the officer never being cross-examined on the subject, the trial court found Keating's self-serving statement as reliable. The trial c ourt found that the officer told Keating he would be back in a minute because when Keating was a sked to provide as much detail as possible, she testified that either she asked him, or he told her, she could get into the van and "he'd be just a minute or whatever ." Even using the trial court's factual finding that the officer told Keating it would take a minute, any deten tion was brief, limited in scope, and does not alter the legal application of the community caret aking function. Unlike my colleagues, the trial court never found the momentary detention was unrelated to the welfare

5. Testimony revealed that it was standard procedure for an of ficer to "take a report on every call for service" and "detail the individual's name and the reasoning for the con tact." Despite the trial court's finding, the lead opinion finds the sole reason for asking Keating to wait a minu te while he confirmed the social security number she gave was for a warrant check constituting a "criminal inves tigation." Yet, the trial court specifically found a person's identity is "information in every incident report."Clermont CA2019-08-064

- 17 - check, nor did the trial court find that confirming Keating's i dentity was unreasonable in following through on the social security number Keating volunte ered. 6 B. Community Caretaking {¶ 41} The United States and Ohio Supreme Courts have long held that a n officer performing community caretaking functions reasonably engages a person when necessary to offer assistance. When discussing law enforcement duties an d safety issues pertaining to the public, the community caretaking function has been refer enced by different names, including welfare check, public welfare, emergency-aid, and exi gent circumstance. "In their community caretaking roles, officers may intrude on a person's privacy to carry out community-caretaking functions to enhance public safety." State v. Street , 5th Dist. Stark Nos. 2019CA00096 and 2019CA00097, 2020-Ohio-173, ¶ 22 (where th e court also noted, "the key to such permissible police action is the reasonablenes s required by the Fourth Amendment"). This is because, at such a time, the officer may be "totally divorced from the detection, investigation, or acquisition of evidence relating t o the violation of criminal

statutes." Cady v. Dombrowski , 413 U.S. 433, 441, 93 S.Ct. 2523 (1973). See also State

v. Morris , 42 Ohio St.2d 307 (1975). {¶ 42} When officers focus on providing care and possible aid to perso ns, officers are not required to possess reasonable suspicion of criminal ac tivity. State v. Norman , 136 Ohio App.3d 46 (3d Dist.1999). Given their community caretakin g duties, officers frequently investigate a myriad of instances where individuals may need he lp or care absent any indication of criminal activity. State v. Weese , 10th Dist. Franklin No. 12AP-949, 2013- Ohio-4056. These instances include responding to vehicle accid ents, helping stranded motorists, or providing aid to incapacitated individuals. See State v. Chrzanowski , 180 Ohio

6. The trial court made a specific finding of fact Keating vol unteered her social security number for the officer.Clermont CA2019-08-064

- 18 - App.3d 324, 2008-Ohio-6993 (11th Dist.); and Street , 2020-Ohio-173. Thus, police officers may, "intrude on a person's privacy to carry out community care taking functions to enhance public safety." State v. Telshaw , 195 Ohio App.3d 596, 2011-Ohio-3373, ¶ 30 (7th Dist.). {¶ 43} Despite the narrow interpretation in both the foregoing opinion s regarding when the community caretaking function is applicable, any serious accident, injury, jeopardy to persons, or public safety may initiate law enforcement's dut y to serve and protect. Merely because "acute distress" was not immediately observed by the of ficer does not mean the law requires a welfare check to terminate. To require such wou ld vitiate the very purpose of the community caretaking function. State v. Moiduddin , 3d Dist. Union No. 14-18-15, 2019-Ohio-3544, ¶ 34 (explaining that situations that might no t fit under the emergency aid or exigent circumstances may nevertheless fit under another fac et of the community caretaking function); and Street , 2020-Ohio-173 (even where there was no actual injury observed, the dispatch relayed a citizen report that an individ ual may have been in need of assistance). {¶ 44} In Moiduddin , the trial court suppressed evidence where an officer pulled o ver a car because it was driving too slowly, finding that the stop was not within the officer's community caretaking function because a slow-moving vehicle did "not require immediate need for assistance to prevent death or serious injury." Howev er, the Third District found that the officer was within his community caretaking function t o stop and inquire of the driver as part of his "legitimate role as a public servant designed to assist those in distress and to maintain and foster public safety." ¶ 40. {¶ 45} Even so, the bounds of an officer's ability to respond pursuant to the community caretaking function are not limitless and the officer must possess "objectively reasonable grounds to believe" that there is a need for aid. State v. Dunn , 131 Ohio St.3d 325, 2012-Ohio-1008, ¶ 21. In Dunn , it was noted that law enforcement has a duty toClermont CA2019-08-064

- 19 - protect those in danger. Dunn, who reportedly was suicidal, ha d his truck stopped by police. He exited his vehicle and was detained, but subsequently charge d with improper handling of a firearm in a motor vehicle because a gun was located in th e truck. {¶ 46} So long as the officer is acting with reasonable grounds to bel ieve his or her aid is necessary, the Fourth Amendment is neither implicated no r violated by an officer investigating safety concerns. State v. Clapper , 9th Dist. Medina No. 11CA0031-M, 2012-

Ohio-1382. See State v. Saunders , 5th Dist. Muskingum No. CT2017-0052, 2018-Ohio2624, ¶ 25 (finding an encounter reasonable where the officer w as "clearly in the scope of his duties in making a 'welfare check' on someone walking in a staggering fashion on a public street at 1:15 AM"). It is not speculation, but empiric al knowledge that informs us if an intoxicated person who disavows his or her condition and then walks out into traffic and

is killed because the officer failed to take a moment to access the person's condition, a civil suit against the officer will almost certainly follow. {¶ 47} In State v Johnson , 12th Dist. Clermont No. CA99-06-01, 2000 Ohio App LEXIS 1870, *10 (May 1, 2000), we noted an individual may be te mporarily restrained for his own safety. We explained that this is especially proper wh ere the apparent detention is either made clear, or simply obvious, that the detention is to be brief and in public. Johnson was not illegally seized when briefly detained, first, to provi de for Johnson's safety and to secondly ascertain why he was dressed inappropriately for mid-w inter freezing temperatures, walking dangerously close to traffic and in the v icinity of a burning car. Even

before Dunn, w e recognized an officer's responsibility to aid a member of the public may require a brief detention. {¶ 48} In the present case, the record clearly indicates that the off icers were dispatched in response to a request for a welfare check based o n a reported observation of a bloodied woman in a van in the McDonald's parking lot. Th e officers responded toClermont CA2019-08-064

- 20 - perform a community caretaking function and not because an actu al crime had been reported. 7 The officer's unrefuted testimony established that the woman, subsequently identified as Keating, needed a welfare check. If nothing else , her being bloodied and acting ill required a brief detention in an attempt to comprehend the circumstances and determine what, if any, assistance should be rendered. At the very least , concluding a welfare check by confirming the subject's identity is reasonable and not "ill egal" as a matter of law. It is only prudent to spend a few minut es with an apparently ill indi vidual, and in that process, find out who they are. Such is certainly within the purpose an d scope of a welfare check. 8 C. Not Always Bright Line Between Caretaking and Investigation {¶ 49} In fact, officers may encounter many different situations where a momentary detention is necessary to survey the circumstances. See Johnson , 12th Dist. Clermont No. CA99-06-061 at *10, State v. Valenzuela-Pena , 12th Dist. Madison No. CA2018-07-023, 2019-Ohio-1701 ¶19 (where a package was not seized but rather d etained and we emphasized the need to consider the purposes to be served by th e encounter as well as the time reasonably needed to effectuate those purposes). {¶ 50} Courts have noted investigating criminal activity can overlap a n officer's role in providing a community care taking function. State v Young , 10th Dist. Franklin No. 14AP721, 2015-Ohio-2006, ¶ 34. An officer cannot always ascertain which hat the officer will be wearing – his law enforcement hat (involving investigation) or his community caretaker hat (involving assistance or aid). Moiduddin , 2019-Ohio 3544 at ¶ 40. Facts supporting a

7. Objectively, it cannot be denied that a reasonable probabil ity existed that a person reported to be wearing bloody gloves and bleeding with "wounds" is either a victim or a perpetrator of some sort of serious violence or accident. The potential seriousness of what was to be disco vered supported two cars being dispatched to the scene. 8. Besides being a natural conclusion to an incident they were sent to respond to, law enforcement's confirmation of a person's identity potentially aids in the nee d for further protection; an individual bleeding and appearing ill could be, among many other things, a walkaway Alz heimer's patient, one with mental health care concerns, a reported missing person, or a reported victim of va rious crimes – in other words individuals who do not always report accurately to police, yet need assistance.Clermont CA2019-08-064

- 21 - welfare check may also form a reasonable, articulable suspicion providing a basis for a Terry stop. State v. Saunders , 5th Dist. Muskingum No. CT2017-0052, 2018-Ohio-2624 ¶

28. {¶ 51} There is nothing per se unconstitutional in the brief detention of an individual for purposes of limited inquiry during routine police response, even when the circumstances are not such as to justify an arrest. State v. Kolb , 12th Dist. Warren No. 11, 1982 Ohio App. LEXIS 14365, *4 (Jan. 20, 1982). Officers do not need ironclad proof as to the seriousness of injury before responding to a potential need. State v Lindner , 9th Dist. Summit No. 27788, 2016-Ohio-3435. Instead, officers need only to possess a "reas onable basis." State v.

Wade , 5th Dist. Muskingum Nos. CT2019-0007 and CT2019-0008, 2019-Oh io-4565, ¶ 22. It appears the officers were well within the caretaking functio n when they responded to the McDonald's parking lot and assessed the situation, which includ ed identifying the subject involved. Unfortunately, sub judice, the trial court granted s uppression merely upon a factual determination a momentary detention had occurred and th en automatically held as a matter of law it was an "illegal detention" without further a nalysis. {¶ 52} The officer briefly engaged the subject to ensure she was alrig ht, and in doing so, was proceeding to conclude matters by confirming her identi ty. The focus should be upon the reasonableness of the detention and the limit to its s cope. See Valenzuela-Pena , 2019-Ohio-1701 at ¶ 19. The trial court did not make a factual finding that confirming the subject's identity was unreasonable. Instead, it drew a legal conclusion it was "illegal." Yet, the detention was very limited in scope and duration. The mome ntary detainment even allowed Keating the opportunity to smoke a cigarette when she a greed not to leave. Even with the trial court's finding, she was told it would take a mi nute, confirming the social security number she provided was clearly within the purpose and scope of the initial welfare inquiry.Clermont CA2019-08-064

- 22 - {¶ 53} While the officer's wellness check was intended to conclude by verifying her identity, the brief detention for purposes of completing the of ficer's contact was entirely reasonable and does not render the momentary detention violativ e of Keating's rights pursuant to protections otherwise provided by the Fourth Amendm ent. D. Issues Raised Below by the Evidence {¶ 54} Our lead opinion claims the evidence does not support the notio n that Keating's momentary detention was associated with her welfare c heck. Then, it claims "waiver" to support its decision that a party's written argumen t submitted to the trial court controls whether the officers were acting pursuant to their com munity caretaking function. 9 However, the prosecutor's choice to focus on the encounter as e ntirely consensual cannot ignore the fact that, in her motion, Keating submitted that the basis of suppression was the momentary detention associated with her welfare check. {¶ 55} The preference would have been that this court ask the parties to brief issues related to the application of the community caretaking function before entering our judgment. State v. Peagler , 76 Ohio St.3d 496 (1996). In Peagler , the Ohio Supreme Court referenced this specific preference by noting, "this court has often held that if a reviewing court chooses to consider an issue not suggested by the parties on appeal but implicated by evidence in the record, the court of appeals should give the parties notice of its intention and an opportunity to brief the issue." Id . at fn. 2. {¶ 56} The Peagler court was presented with a situation where the appellate court addressed issues regarding an appellant's motion to suppress th at were different from that argued to the trial court. The Ohio Supreme Court determined t hat an appellate court has

9. Our appellate review is obligated to accept the trial court 's determination of facts, resolving all factual questions. State v. Lynn , 12th Dist. Butler Nos. CA2017-08-129 and CA2017-08-132, 2018- Ohio-3335. Appellate review is limited to applying the law to the facts as determined by the trial court.Clermont CA2019-08-064

- 23 - discretion "in deciding to address an issue not briefed or rais ed below" so long as the appellate court bases any factual conclusions or legal issues o n evidence that exists in the

record at the time the trial court made its decision. The cour t went on to state, fairness, which is required for the proper operation of the adversary system of justice, requires at least that the parties be allowed in the trial court the opportunity to present evidence that would support or refute the legal theory addressed by the court of appeals. We therefore hold that while an appellate court ma y decide an issue on grounds different from those determined by the trial court, the evidentiary basis upon which the court of appeals decides a legal issue must have been adduced before the trial court and have been made a part of the record thereof

. Id. at 501. While I respect the opinions of my colleagues, they g ive weight to only portions of the testimony in order to draw the conclusion the momentary detention was unassociated with the community caretaking function. {¶ 57} My conclusions are entirely based upon the trial court's findin gs of fact and undisputed testimony. I draw an opposite legal conclusion and determine we would be better to implement the preference for fairness and request the parties brief the law applicable to the totality of the circumstances. It is only an alternative to their view of the legal conclusion to be reached from the evidence that my collea gues' opinions argue

"waiver." {¶ 58} Even so, the facts and circumstances attendant to the momentary detention associated with the welfare check were not newly raised as my c olleagues determine. In order to determine whether Fourth Amendment protections were vi olated, it was the trial court's obligation, and ours as well, to analyze the nature of the encounter, including

whether the detention was unreasonable. The basic constitution al principles raised in Keating's pleadings must be fully considered to ensure the integrity of sound criminal proceedings. {¶ 59} It behooves us to remember that a party's waiver requires the " intentionalClermont CA2019-08-064

- 24 - relinquishment or abandonment of a known right." United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770 (1993) (explaining that reviewing courts ha ve discretion to correct error affecting the fairness and integrity of judicial proceedings). Rather than being applicable to arguments made by the parties, waiver is generally applied to p ersonal, individual rights

accorded an accused. Schneckloth v. Bustamonte

, 412 U.S. 218, 93 S.Ct. 2041 (1973). The application of waiver to the evidence before us is the anth esis of applying Peagler

. {¶ 60} Perhaps the state's limitation of its argument is better charac terized as a "forfeiture." Yet, forfeiture does not extinguish an error. Olano. Where a party has forfeited an objection by failing to raise it, the appellate court may st ill review the issu e using a plain

error standard. State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642. In contrast to waiver, forfeiture is the failure to object or make an assertion where the party complaining of the

trial court's error did not call the error to the trial court's attention at a time when such error

could have been avoided. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459 ¶ 21 (no argument was made to seek merger of allied offenses of similar import and was thus forfeited before the trial court, yet such was plain error on a ppellate review).

E. Conclusion {¶ 61} Regardless of the prosecutor's decision to limit the state's ar gument to consensual contact, the community caretaking function permits o fficers to initiate a brief detention without running afoul of the Fourth Amendment. Both parties and the trial court were aware of the facts elicited during the suppression hearing , which enabled the trial court to properly perform the necessary Fourth Amendment analysis in its entirety. {¶ 62} The opinions of my colleagues extrapolate from isolated portion s of testimony to envision a factual construct permitting them to dismiss the significance of State v. Peagler . Simultaneously, this disallows the possibility for a reasona ble conclusion to a welfare check, which was merely confirming the reported subject 's identity to complete theClermont CA2019-08-064

- 25 - contact report. There is no doubt both Keating's motion and th e testimony submitted raise the issue of the reasonableness of the community welfare functi on. {¶ 63} Suppression of evidence by virtue of the Exclusionary Rule is a judicially created remedy designed to safeguard Fourth Amendment rights th rough its deterrent effect upon government officials and law enforcement. State v. Mobley , 12th Dist. Warren No. CA88-08-063, 1989 Ohio App. LEXIS 1878 (May 22, 1989). Attempt ing to deter officers from verifying or confirming a person's identity while conducti ng a welfare check should not be the subject of judicial fiat when considering the exercise o f reasonable discretion needed by police officers protecting individuals on a daily basis. {¶ 64} The record is clear; the officers were dispatched to investigat e a bloodied woman, encountered that woman, and then reasonably detained her for a very short time while concluding her welfare check. I therefore find Keating's Fourth Amendment rights were not violated when applying the community caretaking functi on to the facts as determined by the trial court. As such, I respectfully dissent from the lead and separately concurring opinions, which affirm the trial court's suppression of evidence. I would reverse the trial court's suppression of evidence and remand for furthe r proceedings.