[Cite as State v. Blankenship , 2014-Ohio-3600.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : Case No. 13CA3417

vs. : ANTHONY L. BLANKENSHIP, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANT: Lori J. Rankin, 14 South Paint Street, Second Floor, Suite 1, Chillicothe, Ohio 45601

COUNSEL FOR APPELLEE: Matthew S. Sc hmidt, Ross County Prosecuting Attorney, and Jeffrey C. Marks, Ross County Assistant Prosecuting Attorney, 72 North Paint Street, Chillicothe, Ohio 45601-3202

CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 8-14-14 ABELE, P.J. {¶ 1} This is an appeal from a Ross County Co mmon Pleas Court judgment of conviction and sentence. The court found Anthony L. Bla nkenship, defendant below and appellant herein, guilty of cocaine possession. {¶ 2} Appellant assigns the following error for review:

“THE TRIAL COURT ERRED IN VIOLATION OF MR. BLANKENSHIP’S RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTIONWHEN THE TRIAL COURT OVERRULED MR. BLANKENSHIP’S MOTION TO SUPPRESS [THE] EVIDENCE.”

{¶ 3} On November 4, 2011, a Ross County Grand Ju ry returned an indictment that charged appellant with the posse ssion of cocaine, in violation of R.C. 2925.11. Appellant entered a not guilty plea and later filed a motion to suppre ss evidence obtained as a result of his interaction with Chillicothe Police Officer Michael Short. Appellant argued, in part, that the officer lacked reasonable suspicion or probable cause to seize him. {¶ 4} On June 8, 2012, the trial court held a hear ing to consider appellant’s motion to suppress. Officer Short testif ied that on July 23, 2011, at appr oximately 3:40 p.m., he noticed appellant in a gas station parking lot leaning in to the passenger side window of a vehicle and “observed some type of hand to hand action as if [appellant and the passe nger] were passing an

item back and forth.” Officer S hort stated that “a lot of drug transaction[s]” occur “at our gas station parking lots * * * * They kind of pick a spot, and then they quickly do an exchange and they’re gone.” Officer Short pu lled his cruiser into the lot a nd approached appellant and the passenger, who had exited the vehicle. Officer Short engaged the passeng er in conversation, but appellant “would not make eye cont act with [the officer], he was very nervous, knees, hands were shaking, was just looking around trying to * * * just get away from me type of thing * * * not really wanting to look at me.” Officer Short descri bed appellant’s “nervousness” as “extreme.” He further stated that appellant “kept adjustin g his pants,” and that in his experience, “when someone is nervous they also touch what they’re nervous about.” The offi cer explained that he could see a “little bulge” in appellant’s pant pocket. He then “just told [appellant] to step over here with me and just ha ve [the passenger] stay.” He explai ned that they “took a couple of stepsROSS, 13CA3417 3 to the right, because [the passenger] was trying to do all the talking” and Officer Short wanted to hear from appellant. Officer Short asked appellant if “anything illegal” was occurring. Appellant stated that he had “powder” on h im. Officer Short stated that “powder” meant “cocaine in powder

form.” Officer Short subse quently arrested appellant. {¶ 5} On July 27, 2012, the trial court overruled a ppellant’s motion to suppress evidence.

The court found:

“Officer Short testified that on Ju ly 23, 2011 he was working in his employment as a patrol offi cer when he noticed [appellant ] at a gas station leaning into the passenger’s side of a red Chevy. He noticed [appellant] conduct ‘hand to hand action’ with another pe rson appearing to pass something between them. As soon as the individuals noticed Officer S hort they quickly exited their vehicle. Officer Short testified that in his ex perience when an individual quickly puts distance between themselves and a vehicle it suggests to him that they have something to hide in the vehicle. Officer Short was aware of complaints of drug activity occurring at local gas stations so he parked his vehicle and approached the individuals. Short made c ontact with [appellant] and Ja mes Seward outside the red Chevy at the rear of the vehicle and told th em that their behavior was ‘suspicious.’ Seward agreed with the officer, but said nothing illegal was going on. [Appellant] refused to make eye contact and was ve ry nervous, his knees and hands were shaking and trembling. Officer Short approached the two on his own, with no other officers present, he di d not activate his lights or or der either man to remain. [Appellant] kept adjusting his pants and a nd kept touching his right hand pocket. Officer Short noticed a bulge in the pocke t and asked [appellant] to step away from James Seward. Officer Short testified that [appellant] was free to leave the entire time and that nothing was blocking his path if he decided to walk away. Officer Short asked him why he was so nervous and asked him if he had anything on him. [Appellant] replied that he had ‘powder’ on his person. Officer Short said “I appreciate you being honest w ith me,’ and he then deta ined [appellant] and advised him of his Miranda rights.”

The court determined that th e initial encounter was not a seizure and explained: “Officer Short was on routine patrol when he pulled into a public gas station. There is no doubt that he had th e same right to be there as any other citizen. Officer [S]hort did not activate his overhead lights or demonstrate his authority in any manner. He did not co mmand anyone to stop or stay and speak with him. The only thing he did that mightbe construed as a show of authority isROSS, 13CA3417 4 that he asked [appellant] to move away from James Seward so they could speak alone. This simply is not enough to constitute a seizure within constitutional guidelines.” The court additionally determined that even if Officer Short had seized appellant, the officer possessed reasonable suspicion to do so. {¶ 6} Subsequently, appellant en tered a no contest plea. This appeal followed. {¶ 7} In his sole assignment of error, appellant asserts that the trial court erred by overruling his motion to suppress evidence. In par ticular, appellant contends that the trial court improperly determined that the en counter between appella nt and Officer Short was consensual and did not constitute a seizure. Appe llant argues that the encounter lost its consensual nature and became a seizure when the officer ordered appellant to “step over here.” Appellant recognizes that the trial court characterized the officer’s statement as a request to “step over here.” Appellant points out, however, that the officer testified that he “told” appellant to “step over here.” Appellant argues that the officer’s testimony thus establishes that he did not phrase his statement as a question, but instead, phrased it as a command. Appellant contends that because the officer phrased his statement as a command, the encounter lost its consensu al nature and ripened into a seizure subject to Fourth Amendment scrutiny.

I

STANDARD OF REVIEW {¶ 8} Appellate review of a tria l court’s ruling on a motion to suppress presents a mixed question of law and fact. State v. Codeluppi , — Ohio St.3d —, 2014-Ohio-1574, — N.E.2d —, 7;

State v. Wesson , 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶40; State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶8; State v. Moore , – Ohio App.3d —,ROSS, 13CA3417 5 2013-Ohio-5506, 5 N.E.3d 41 (4 th Dist.), ¶7. The Burnside court explained this standard as

follows: “When considering a motion to suppress, the trial court assu mes the role of trier of fact and is therefore in the be st position to resolve factual questions and evaluate the credibility of w itnesses. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, w ithout deference to the conc lusion of the trial court, whether the facts satisfy the applicable legal standard.”

Id. (citations omitted).

II

FOURTH AMENDMENT PRINCIPLES {¶ 9} The Fourth and Fourteenth Amendments to the United States Constitution, as well as Section 14, Article I of the Ohio Constitu tion, protect individuals against unreasonable governmental searches and se izures. Delaware v. Prouse , 440 U.S. 648, 662, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); State v. Gullett , 78 Ohio App.3d 138, 143, 604 N.E.2d 176 (1992). “Once

the defendant demonstrates that he was subjected to a warrantless search or seizure, the burden shifts to the State to establish that the warrantless search or seizure was constitutionally permissible.” State v. Hansard , 4 th Dist. Scioto No. 07CA3177, 2008–Ohio–3349, ¶14, citing

Maumee v. Weisner , 87 Ohio St.3d 295, 297, 720 N.E.2d 507 (1999), and Xenia v. Wallace , 37 Ohio St.3d 216, 524 N.E.2d 889 (1988), pa ragraph two of the syllabus. {¶ 10} Although the Fourth Amendment prohib its unreasonable seizures, not every police-citizen encounter constitutes a “seizure” s ubject to Fourth Amendment scrutiny. United

States v. Mendenhall , 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Terry v. Ohio , 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“Obviously, not all personalROSS, 13CA3417 6 intercourse between policemen a nd citizens involves ‘seizures’ of persons.”). Rather, Fourth Amendment concerns arise “[o]nly when the offi cer, by means of a physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. ; Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Thus, a “seizure” occurs when the police conduct and the totality of the circumstances surrounding the encounter “‘communicate[] to a reasonable person that he [i]s not at liberty to ignore the police presence and go about his

business.’” Bostick , 501 U.S. at 437, quoting Michigan v. Chesternut , 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); accord Kaupp v. Texas , 538 U.S. 626, 629-630, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003); Mendenhall , 446 U.S. at 554 (“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 be lieved 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 o fficer, 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 comp elled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, am ount to a seizure of that person.”

Mendenhall , 446 U.S. 544, 554-555 (citations omitted). {¶ 11} A consensual encounter is not a seizur e and does not trigger Fourth Amendment scrutiny. Bostick , 501 U.S. at 434. Accordingly, a Fourth Amendment seizure does not occur when a law enforcement officer “merely approach[es] an individual on the street or in another public place” and “ask[s] him if he is willing to answer some questions.” Florida v. Royer , 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); see, also, Bostick , 501 U.S. at 434 (stating that “a seizure does not occur simply because a po lice officer approaches an individual and asks aROSS, 13CA3417 7 few questions”). An encounter w ill not lose its consensual nature “[s]o long as a reasonable person would feel free ‘to disregard the poli ce and go about his business.’” Bostick , 501 U.S. at 434, quoting California v. Hodari D. , 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). {¶ 12} In the case at bar, appellant does not dis pute that the encounter with the officer began as a consensual encounter. The officer me rely approached appellant and his companion to engage in conversation. Appella nt contends, however, that the encounter lost its consensual nature and ripened into a seizure when the officer “told” appellant to “ste p over here.” Appellant argues that the officer’s statement constituted a show of authority sufficient to transform the

encounter from a consensual one to a seizure.

III

CONSENSUAL ENCOUNTER OR SEIZURE {¶ 13} While no “litmus-paper te st [exists] for distinguishing a consensual encounter from a seizure,” Royer , 460 U.S. at 506, certain factors may indicate that a seizure has occurred. “[A]n encounter becomes a seizure if the officer engages in conduct which a reasonable man would view as threatenin g or offensive even if performed by another private citizen. This would include such tactics as pursuing a person who has attempted to terminate the contact by departing, continuing to interrogate a person who has clearly expre ssed a desire not to coopera te, renewing an encounter with a person who earlier responded fully to police inquiries, calling to such a person to halt, holding a person’s identifica tion papers or other property, blocking the path of the suspect, physically gra bbing and moving the suspect, drawing a weapon, and encircling the suspect by many officers * * *.” 4 LaFave, Search and Seizure (3 Ed.1996) 102-04, Section 9.3(a) (footnotes omitted). Additionally, as this court held in State v. Cookson , 4 th Dist. Washington No. 00CA53 (Sept. 25,ROSS, 13CA3417 8 2001): “Encounters * * * become seizures only when the police demonstrate a sufficient show of authority such that a reasonable person w ould conclude that he must comply.” {¶ 14} “[T]he test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s

words and actions would have conveyed that to a reasonable person.” Hodari D. , 499 U.S. at 628. Additionally, “because so much of the meaning of [an officer’s] comment is carried in the tone of voice of the person making it,” a reviewing cour t should generally defer to the trial court’s

characterization of the comment. In re Nesser , 4 th Dist. Ross No. 00CA2551 (Dec. 1, 2000). {¶ 15} In United States v. Drayton , 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), the court determined that law enforcement officers engaged bus passengers in consensual encounters when the officers did not give the pa ssengers any reason to be lieve that they were required to answer their questions, did not br andish any weapons or make any intimidating movements, left the aisle clear so that the passengers could exit, and spoke to the passengers in a “polite, quiet voice.” Id. at 203-24. The court explained: “T here was no application of force, no intimidating movement, no overwhelming show of force, no bra ndishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.” Id. at 204. {¶ 16} Even when a law enforcement phrases a statement in an imperative or declarative–rather than in an interrogative–fashi on, courts have generally ruled that an imperative or declarative statement, by itsel f, does not transform a consensual encounter into a seizure. See Columbus v. Body , 10 th Dist. Franklin No. 11AP-609, 2012-Ohio-379; State v. Duncan , 9 th Dist. Summit No. 21155, 2003-Ohio-241; United States v. Brown , 447 Fed.Appx. 706, 708-709 (C.A.6, 2012). Instead, courts must examine the totality of the circumstances presen t in each case in orderROSS, 13CA3417 9 to ascertain whether an imperative or declarative statement constitutes a sufficient show of authority to ripen a consensual encounter into a seizure subject to Fourth Amendment scrutiny. See, e.g., Kaupp , supra (stating that courts must take in to account all of the circumstances surrounding the encounter). {¶ 17} Thus, in Body , for example, the court determined that a law enforcement officer had not seized the defendant by approaching the de fendant in a public place and stating “come over

here.” Id. at ¶16. The court further noted that th e officer (1) acted “w ithout the ‘threatening presence of several officers,’” (2) “did not activate hi s siren or search light,” (3) “did not attempt to block [the defendant]’s vehicle or path,” (4) did not “attempt to pursue [the defendant],” and (5) did not use a threatening voice. Id. at ¶20, quoting Mendenhall , 446 U.S. at 554. The court also

observed that the officer testified that he stated “come over here” “i n the form of a request rather

than a command.” Id. {¶ 18} In reaching its decision, the Body court relied upon State v. Smith , 45 Ohio St.3d 255, 544 N.E.2d 239 (1989), reversed on other grounds, Smith v. Ohio , 494 U.S. 541, 110 S.Ct. 1288 108 L.Ed.2d 464 (1990). In Smith , the Ohio Supreme Court held that a consensual encounter did not ripen into a seizure when an o fficer stated to the defe ndant, “hey, come here a

minute.” Id. at 258-259. The Smith court additionally observed that the officers did not display any weapons, did not physically t ouch the defendant, did not use a threatening tone of voice, did not order the defendant into the police cruiser, did not indicate that the defendant’s noncompliance would lead to his arrest, and did not bloc k the defendant’s exit with their cruiser. {¶ 19} The Body court also relied upon State v. Duncan , 9 th Dist. Summit No. 21155,

2003-Ohio-241. In Duncan , the court determined that a consen sual encounter did not ripen into aROSS, 13CA3417 10 seizure when the officer stated to the de fendant, “come over here for a second.” Id. at ¶15. The court also observed that the officer “did not disp lay any physical force or order [the defendant] to do anything.” Id. at ¶16. {¶ 20} The Body court further looked to federal courts and noted that those “courts have also recognized that ‘simply calling out to someone to come over to talk does not constitute a

seizure.’” Id. at ¶18, quoting United States v. Brown , 447 Fed.Appx. 706, 708-709 (C.A.6, 2012), citing United States v. Matthews , 278 F.3d 560, 562 (C.A.6, 2002), abrogated on other grounds, United States v. McMurray , 653 F.3d 367 (C.A.6, 2011) (holding that officer’s statement, “[h]ey, buddy, come here,” did not constitute a seizure because the addressee could have “po litely declined to do so, and walked away”). {¶ 21} In State v. Cook , 2 nd Dist. Montgomery No. 20427, 2004-Ohio-4793, the court determined that an officer’s imp erative statement, coupled with his actions, ripened a consensual

encounter into a seizure. In Cook , the officer “ordered” the defendant to “open up [her] hand so [the officer could] see what’s inside of it. Id. at ¶15. The court concluded that the officer’s language indicated that he “commanded—not reque sted–” the defendant to open her hand. The

court further observed that the offi cer’s police cruiser “imped[ed]” th e defendant’s “path of travel.”

Id. The court found that “a reasonable person woul d not have felt free to ignore the order of a police officer and to walk away.” Id. The court thus determined th at the defendant “was subject to an investigatory detention when sh e was ordered to open her hand.” Id. {¶ 22} In State v. Kelly , 2 nd Dist. Clark No. 3007 (Sept. 24, 1993), the court determined

that a seizure–and not a consensual encounter–o ccurred when the officer pursued the defendant after the defendant had ignored the offi cer’s first request to talk. In Kelly , the officer pulled hisROSS, 13CA3417 11 police van alongside the defendant and asked if the officer coul d talk to the defendant. The defendant ignored the officer a nd continued walking. The officer continued to follow the defendant and pulled the van alongsi de him again. The officer stated, “I need to talk to you.” The defendant replied that he ha d not done anything wrong and continued walking. The officer then exited the van, walked up to the defendant, a nd stated, “I am going to talk to you.” In concluding that these facts demonstrat ed a seizure, the court explained: “It is evident from these facts that [the defendant] was not, at least after Officer King had exited his van, free to di sregard the officer’s questions, and that compliance with the officer’s request might be compelled. Under the totality of these facts and circumstances a reasonabl e person would not be lieve that he was free to leave. As the actions of police in this case constitute a restraint upon [the defendant]’s liberty, a seizur e of [the defendant]’s pe rson occurred and, absent a warrant, that seizure is presumed to be unreasonable and, therefore, in violation of the Fourth Amendment.” {¶ 23} In the case at bar, we agree with the trial court’s conclusion that when the officer first approached appellant, no “sei zure” occurred within the context of the Fourth Amendment. We also agree with the trial court’s conclusion that the officer’s statement to appellant to “step

over here” did not turn the encounter into a seizur e. No evidence exists that the officer used a threatening voice when he told appellant to “step over here.” Moreover, th e trial court found that the officer phrased the statement in terms of a request. Even if the officer did not phrase the statement as a question, the court could have determine d, based upon the officer’s testimony at the suppression hearing, that the officer intended the statement to be a request instead of a command.

As we stated in Nesser , supra , the tone in which an officer phrases a statement is difficult to perceive from the written record and thus we must generally defer to the trial court’s characterization of the statement. We see nothing in the record to make us believe that the trialROSS, 13CA3417 12 court mischaracterized the office r’s statement as a request, even though it was not grammatically phrased in an interrogatory fashion. {¶ 24} Furthermore, the officer did not engage in any other conduct that could be construed as a show of authority sufficient to constitute a seizure. The officer did not (1) pursue appellant, (2) continue to interrogate appella nt against his expressed desire, (3 ) call to appellant to halt, (4) hold his identification or other pr operty, (5) block his path, (6) physically grab or move him, (7) draw his weapon, or (8) encircle him with many officers. LaFave, supra . Additionally, like the officers in Body and Smith , the officer in the case sub judice did not (1) activate his siren or cruiser lights, (2) block appellant’s pat h, (3) attempt to pursue appellant , (4) display a weapon, (5) use a threatening tone of voice, or (6) indicate that appellant’s noncomplia nce would lead to his arrest. Moreover, Officer Short acted alone during the in itial encounter and there was not a “threatening presence of several officers.” Mendenhall , 446 U.S. at 554. Additionally, unlike the situation in Kelly , appellant had not atte mpted to ignore or walk away from Officer Short, and Officer Short did not have to engage in any pursuit in order to interact with appellant . Although appellant suggests that the instant case is indistinguishable from Cook , we do not agree. In Cook , not only

did the officer order the defendant to reveal an item she had con cealed in his hand, but the officer also blocked the defendant’s path of travel. In the case sub judice , the trial court characterized Officer Short’s statement to “step over here” as a request, not an order. Even if the officer’s statement to “step over here” c ould be construed as an order, Officer Short did not block appellant’s path of travel like the officer did in Cook . More important, we believe that a distinction exists between ordering an individua l to reveal an item concealed in her hand and requesting or ordering an indivi dual to “step over here.” Norma lly, when an individual steps fromROSS, 13CA3417 13 one location to another, that individual will not reveal incriminating information by the simple act of movement. In contrast, when an individual opens his hand in re sponse to an officer’s directive to open it, that individual may reveal incriminating information by the simple act of opening his hand. Thus, an officer’s order to an individual to “open up” his hand suggests that the officer is attempting to obtain incriminating information, wh ile an order to “step over here” may be for simple convenience, as it was in the case at bar. We therefore do not believe that an officer’s statement to “step over here” is equivalent to ordering an indi vidual to “open up” his hand and necessarily ripens a consensual encounter into a seizure. {¶ 25} Therefore, in light of the foregoing, we do not believe that a reasonable person

would have construed Officer Shor t’s statement to “step over here” as an order restraining that person’s movement and as indi cating that the person was not free to leave. Bostick , 501 U.S. at 434; Hodari D. , 449 U.S. at 628. Consequently, the tr ial court properly c oncluded that the encounter between appellant and Officer Short was consensual, th at a seizure had not occurred. Thus, the court correctly overruled appe llant’s motion to suppress evidence. {¶ 26} Accordingly, based upon the foregoing reasons , we hereby overrule appellant’s sole assignment of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.[Cite as State v. Blankenship , 2014-Ohio-3600.] JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee shall r ecover of appellant the costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and releas e upon bail has been previously granted, it is continued for a period of sixty days upon the bail prev iously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme C ourt an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five da y period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Oh io Supreme Court dismisse s the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. McFarland, J. & Hoover, J.: C oncur in Judgment & Opinion

For the Court

BY: Peter B. Abele Presiding Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.