[Cite as State v. Kirk , 2020-Ohio-323.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, Appellant,

- vs -

JEFFREY A. KIRK, Appellee. :

:

:

:

:

: CASE NO. CA2019-07-053

O P I N I O N 2/3/2020

CRIMINAL APPEAL FROM CLERMONT C OUNTY COURT OF COMMON PLEAS Case No. CV2018CR00895

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, 301 East Main Street, Batavia, Ohio 45103, for appellee

M. POWELL, P.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, Je ffrey Kirk. {¶ 2} On July 26, 2018, between 6:00 p.m. and 7:00 p.m., Sergeant Ran dall

Ruehrwein was on rout ine patrol in the v illage of Williamsburg in Clermont County, Ohio.Clermont CA2019-07-053

- 2 - As he was driving on State Route 133, he observed Kirk in the p arking lot of a Dollar General store, by the dumpsters and loading area of the store. Kirk wa s attaching a large object to the front of his bicycle. Sergeant Ruehrwein parked his police cruiser approximately ten feet from Kirk, exited the cruiser, and approached Kirk. The o fficer did not activate the light bar or the sirens of his cruiser and did not approach Kirk with his weapon drawn. {¶ 3} Kirk advised Sergeant Ruehrwein that he was attaching a band sa w he had found on the side of the street by a residence on Hudson Street . The officer asked Kirk for identification. Kirk replied he did not have any identificatio n on him and instead verbally provided his name and social security number. Sergeant Ruehrwe in 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 off icer learned that Kirk was subject to an extradition warrant from the commonwealth of Kent ucky. Sergeant Ruehrwein returned to Kirk, advised him of the warrant, and informed him that he was going to pat him down and secure him. Before the officer could do so, Kirk fled . After a brief foot pursuit, Sergeant Ruehrwein caught Kirk and placed him under arrest. In searching Kirk incident to the arrest, the officer discovered a small vial of methamphetam ine on Kirk's person. {¶ 4} Kirk was indicted on one count of aggravated possession of drug s. He moved to suppress the evidence, arguing that he was unlawfully detain ed once Sergeant Ruehrwein told him, "I'll be back with [you] in a minute." The trial court conducted a hearing on the matter; Sergeant Ruehrwein was the sole witness. Four w eeks after the suppression hearing, the state filed a memorandum in opposition to Kirk's m otion to suppress, arguing that the officer's interaction with Kirk was a consensual encou nter until the officer discovered Kirk's arrest warrant. At that point, the state arg ued, the officer had probable

cause to arrest Kirk. {¶ 5} On July 1, 2019, the trial court granted Kirk's motion to suppr ess. The trialClermont CA2019-07-053

- 3 - court found that while the initial encounter between Kirk and S ergeant Ruehrwein was consensual, it evolved into an investigatory detention without a reasonable, articulable suspicion of criminal activity when the officer told Kirk, "I'l l be back with [you] in a minute." The trial court reasoned that the officer's "words alone were e nough to make a reasonable person in the defendant's shoes feel that he would not be free to walk away and ignore [the officer's] implied re ques t. As such, the defe ndant was illegal ly detained at that moment." {¶ 6} The state appeals the decision of the trial court, raising one assignment of

error: {¶ 7} THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO

SUPPRESS. {¶ 8} The state argues that the trial court erred in granting the mot ion to suppress. Specifically, the state asserts that Sergeant Ruehrwein's inter action with Kirk was a consensual encounter that did not implicate the Fourth Amendmen t until the officer told Kirk he was going to pat him down. The state further asserts that e ven if Kirk was illegally detained, the methamphetamine should not have been suppressed b ecause its discovery did not arise from the illegal detention but rather, arose due to an intervening circumstance and/or independent source, namely, Sergeant Ruehrwein's discove ry of the extradition

warrant for Kirk's arrest. 1 {¶ 9} 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-

1. Despite the Terry -stop aspects of the encounter between Sergeant Ruehewein and K irk, we decline to resolve this case on that basis as the state did not defend the motion to suppress as a Terry stop in the trial court, instead solely arguing that the encounter was consensual . On appeal, the state conceded during oral argument that it had waived Terry as a constitutional basis for justifying any detention to whic h Kirk was subject. We agree, as a party cannot raise new issues or legal theories for the first time on appeal because such issues or theories are deemed waived. 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. C150757, 2017-Ohio-9255, ¶ 26. Waiver is especially applicable in this case where the issue was not only not raised in the trial court but neither briefed nor otherwise arg ued on appeal.Clermont CA2019-07-053

- 4 - Ohio-828, ¶ 8, citing State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. Vaughn at ¶ 8. In turn, when reviewing a trial court's decision on a motion to suppress, an 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. {¶ 10} The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures. State v. Brown , 12th Dist. Clermont No. CA2001-04-047, 2001 Ohio App. LEXIS 5476, *5 (Dec. 10, 2001). However, not all interactions between police officers and citizens are seizures under the Fourth Amendment.

Id. The United States Supreme Court has recognized three categories of police interactions with members of the public: (1) a consensual encounter, which 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. 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. {¶ 11} In determining whether a particular encounter between a police officer and a citizen is a seizure and thus implicates the Fourth Amendment, the question is whether, taking into account all the circumstances surrounding the encou nter, a reasonable personClermont CA2019-07-053

- 5 - would feel free to decline the officer's request or terminate t he encounter. Brown at *5-6, citing Florida v. Bostic , 501 U.S. 429, 436-437, 111 S.Ct. 2382 (1991). As long as a reasonable person would feel free to disregard the officer, the encounter is consensual and no reasonable suspicion is required. Bostic at 434. "Under this objective test, we consider not whether the individual believed he was being ordered to res trict his movement, but whether the officer's words and actions would have conveyed tha t to a reasonable person." Columbus v. Body , 10th Dist. Franklin No. 11AP-609, 2012-Ohio-379, ¶ 14. "Only when the officer, by means of physical force or show of authority, h as in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occur red." Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct. 1868 (1968). Circumstances indicating that a p erson has been seized include the threatening presence of several officers, the displ ay of a weapon by an officer, some physical touching of the person, the use of language or to ne of voice indicating that compliance with the officer's request might be compelled, and b locking 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. {¶ 12} In finding that Sergeant Ruehrwein's statement to Kirk, "I'll be back with [you] in a minute," escalated the initial consensual encounter into a seizure, the trial court relied

upon United States v. Richardson , 385 F.3d 625 (6th Cir.2004); Wynne , 2019-Ohio-1013;

and State v. McDowell , 10th Dist. Franklin No. 13AP-229, 2013-Ohio-5300. 2 {¶ 13} Richardson involved the traffic stop of a vehicle occupied by four indivi duals;

2. The trial court also cited State v. Tabler , 10th Dist. Franklin No. 14AP-386, 2015-Ohio-2651, as being "[ o]n the other end of the spectrum." Tabler involved a police officer's encounter with three individuals s eated in a running vehicle parked on the street. Two of the three produce d their driver's license and/or identification card and Tabler verbally provided his name and social security number. The officer then took the identification materials to his cruiser where he ran a warrant check on all th ree individuals. Both the trial court and appellate court ruled that the initial consensual encounter between the o fficer and the three individuals escalated into an investigative detention when the officer retained the identi fication materials to run a warrant check. The appellate court reasoned that "no reasonable person in that sit uation would have believed they were free to leave or decline the officer's requests." Id. at ¶ 37. Tabler is inapplicable here as Kirk was not in a vehicle and Sergeant Ruehrwein did not take identification materials to his cruiser.Clermont CA2019-07-053

- 6 - Richardson was a passenger. The police officer asked the drive r to exit the vehicle and stand at the rear of the vehicle while the officer completed th e traffic stop. After the traffic stop was completed, the officer shook the driver's hand. As th e driver turned around to return to his vehicle, the officer asked a few more questions a nd then told the driver to either "wait where he was" or "just hang out right here for me, okay." Ultimately, Richardson was found in possession of a firearm and subsequently indicted for possession of a firearm by a convicted felon. He successfully moved to suppress the evide nce and the prosecution appealed. {¶ 14} The Sixth Circuit Court of Appeals found that the traffic stop ended when the officer gave the citation to the driver and shook his hand. At that time, the driver was free

to leave but the officer then told him to remain behind the veh icle. In determining whether a particular encounter between an officer and a citizen constit utes a seizure, the Sixth Circuit observed that "words alone may be enough to make a reas onable person feel that

he would not be free to leave." Richardson , 385 F.3d at 629. The court then held that "[the officer's] words alone were enough to make a reasonable person in [the driver's] shoes feel that he would not be free to walk away and ignore [the officer' s] request. When the driver is not free, neither are his passengers[.]" Id. at 630. {¶ 15} We find that Richardson is factually distinguishable and not controlling

because the initial encounter between the officer and the indiv iduals was a traffic stop, which is not a consensual encounter, and the officer did not al low the driver to return to the vehicle once the traffic stop was completed, but instead specif ically directed him to wait behind the vehicle. Furthermore, we note that while the Sixth Circuit found that "words alone may be enough" for an encounter to constitute a seizure i n Richardson , it subsequently recognized that "words alone may not be enough in every instance" in United States v. Rodriguez , 485 F.Appx. 16, 19 (6th Cir.2012). "The test is not whether policeClermont CA2019-07-053

- 7 - expressly instruct a person not to leave, but whether the total ity of the circumstances would convey to a reasonable person that she is not free to leave." Id. In Rodriguez , the Sixth Circuit identified several factors as evidence of a seizure, in cluding the use of language, before examining whether they were present in the case. Thus, the import of Richardson

and Rodriguez is that words must be examined in the context of the totality of the circumstances surrounding an encounter with a police officer to determine whether such

encounter is consensual. {¶ 16} Wynne involved two police officers in a paddy wagon who engaged in a conversation with Wynne. Upon inquiry, Wynne verbally provided his name, birthdate, and social security number. While Wynne continued to engage in gen eral conversation with one officer, the other officer performed a warrant check. Upon inquiry, Wynne admitted to possessing drugs. Subsequently, he was found in possession of drugs and charged accordingly. The trial court denied his motion to suppress, fi nding that the interaction with police was a consensual encounter and that Wynne was not detain ed until after he voluntarily admitted to possessing drugs. {¶ 17} The Tenth Appellate District upheld the denial of the motion to suppress, finding that the use of Wynne's identifying information, which he provided verbally to the officers, to conduct a warrant check did not constitute an implicit command to remain on the scene, and that a reasonable person in Wynne's position would not believe he was not free to leave or otherwise terminate the encounter. There was no evidence Wynne knew that Officer Bogard was conducting the warrant check. Officer Bogard did not testify h e advised Wynne that he was checking for warrants or requested Wynne wait while the warrant check was underway. Instead, the warrant check was performed while Officer Beatty continued the conversation with Wynne. Wynne , 2019-Ohio-1013 at ¶ 17. Upon determining that there were no other factors indicating seizure, the appellate court held, "we cannot conclu de the officers' request forClermont CA2019-07-053

- 8 - identifying information and possible use of that information to perform a warrant check would have communicated to a reasonable person that he was not free to refuse the request or to terminate the encounter after giving the information." Id. {¶ 18} McDowell involved another encounter between a police officer and a pedestrian. While patrolling for a burglar, the officer encoun tered McDowell in an alley during the early morning. The officer exited his cruiser, appr oached McDowell, and engaged in general conversation with him. Upon request, McDowe ll provided his identification card. The officer retained the identification c ard for about 30 seconds while he copied the information in a notepad and then returned the ca rd to McDowell. Thereafter, the officer continued talking to McDowell and asked if he was c arrying a weapon. After McDowell admitted possessing a firearm, the officer confiscated the weapon and arrested McDowell. The trial court denied McDowell's motion to suppress

. {¶ 19} The Tenth Appellate District upheld the denial of the motion to suppress, finding that the entire interaction between the officer and McD owell did not involve an overt show of force or authority and was a consensual encounter. McDowell , 2013-Ohio-5300 at ¶ 27. The appellate court observed that the officer "denied us ing the words 'before I let you go' or otherwise indicating to [McDowell] that he was not free to leave," and found that there were no other factors indicating a seizure. Id. at ¶ 23. The court further reasoned that because McDowell was on foot, the officer's brief retention of his identification card to copy down certain information did not have the same immobilizing eff ect as retaining the identification of a driver while running a warrant check. Id. at ¶ 29. {¶ 20} In relying upon Wynne and McDowell , the trial court emphasized the Tenth Appellate District's observation that the police denied using t he words "before I let you go" or otherwise indicating to McDowell that he was not free to lea ve, and did not request Wynne to wait while the warrant check was underway. In finding that Kirk was seized whenClermont CA2019-07-053

- 9 - Sergeant Ruehrwein told him, "I'll be back with [you] in a minu te," the trial court likened the statement to an officer asking a person "to wait a minute," or "to hang out right here for me, okay?" as in the Richardson case. {¶ 21} As stated above, we consider whether, in light of all the circu mstances surrounding an encounter between a police officer and a citizen , the officer's words and actions would have conveyed to a reasonable person that he was not free to leave. Body , 2012-Ohio-379 at ¶ 14. Based upon the totality of the circumst ances surrounding Sergeant Ruehrwein's interaction with Kirk, we find that the interaction was a consensual encounter until the officer told Kirk he was going to pat him down. In o ther words, Sergeant Ruehrwein's statement to Kirk, "I'll be back with [you] in a mi nute," did not constitute a seizure of Kirk implicating the Fourth Amendment and requiring reasonable suspicion. {¶ 22} Notwithstanding the fact that Sergeant Ruehrwein was in uniform and in a cruiser, as police officers commonly are in consensual encounte r cases, the interaction between the officer and Kirk did not involve a show of force or authority until the officer advised Kirk he would pat him down. Sergeant Ruehrwein was the only officer at the scene. He did not activate the sirens or the light bar of his cruiser when he pulled up to Kirk and parked his cruiser ten feet from Kirk. There is no evidence th e officer blocked Kirk's path with his cruiser. The officer never displayed his weapon, touc hed Kirk, or accused him of a crime. The officer merely requested identification from Kirk a nd inquired as to his purpose for being near the dumpsters and loading area of the store. Th e officer did not advise Kirk that he was returning to his police cruiser to use Kirk's ident ifying information to check for warrants, and did not advise Kirk to remain pending the complet ion of that process. {¶ 23} While the officer told Kirk he would be back with him in a minu te, such was not an overt command that Kirk remain at the scene while the of ficer completed a records check. Although the officer's statement implicitly conveyed hi s expectation or assumptionClermont CA2019-07-053

- 10 - that Kirk would wait for him, it did not explicitly command tha t Kirk wait, unlike the statement

at issue in Richardson . Kirk could have refused to provide his identifying informati on or otherwise walked or pedaled away from the encounter at any time before he was informed he would be pat down. Admittedly, while doing so might have cr eated an awkward situation between Kirk and the officer, "awkwardness alone does not invok e the protections of the Fourth Amendment, particularly so when the test employed is an objective one." United States v. Weaver , 282 F.3d 302, 311-312 (4th Cir.2002). {¶ 24} Under the circumstances leading up to Sergeant Ruehrwein's stat ement, without other factors indicating seizure, we cannot conclude th at the officer's statement would have communicated to a reasonable person that he was not free to terminate the encounter and walk away after providing his identifying informa tion. Sergeant Ruehrwein's statement was not enough of a show of force or authority to con vert the encounter into a seizure. We therefore find that Kirk was not seized within the meaning of the Fourth

Amendment when the officer told him he would be back with him i n a minute. Because Sergeant Ruehrwein's statement did not convert the encounter fr om a consensual one to an investigative detention, the trial court erred in granting K irk's motion to suppress. {¶ 25} We decline to address the state's argument regarding whether th e trial court's suppression of the methamphetamine was the proper remedy as it is rendered moot given this court's decision to reverse the trial court's grant of Kir k's motion to suppress. Furthermore, the state did not make this argument either in its memorandum in opposition to Kirk's motion to suppress or during the suppression hearing. It is well established that a party cannot raise new issues or legal theories for the first t ime on appeal because such

issues or theories are deemed waived. 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 wa iver "applies to argumentsClermont CA2019-07-053

- 11 - not asserted either in a written motion to suppress or at the s uppression hearing." Walker at ¶ 26; Vaughn , 2015-Ohio-828; State v. Clay, 8th Dist. Cuyahoga No. 91942, 2009-Ohio2725. {¶ 26} The state's assignment of error is sustained. {¶ 27} Judgment reversed and remanded to the trial court for further p roceedings according to law and consistent with this opinion. S. POWELL, J., concurs. PIPER, J., concurs in judgment only.

PIPER, J., concurring in judgment only. {¶ 28} I agree with the majority that the trial court's decision suppr essing the evidence to be used against Kirk should be reversed. However, my conclusion is based upon significantly different rationale and thus, I concur in ju dgment only. The trial court was correct to the extent of the analysis given, but the analysis n eeded to continue before reaching a conclusion. {¶ 29} The trial court properly identified the three types of police-c itizen encounters: those that are consensual, those that are Terry stops resulting in non-intrusive detentions, and those that are arrests based upon probable cause. Brown v. Illinois , 422 U.S. 590, 95 S.Ct. 2254 (1975). While my colleagues find that the encounter between Kirk and the sergeant was wholly consensual, I must respectfully disagree be cause the trial court was correct in finding Kirk was not free to disregard the sergeant and leave the scene after the sergeant's comment. {¶ 30} The majority correctly recites the law on consensual encounters . However, I disagree with its conclusion that a reasonable person in these circumstances would haveClermont CA2019-07-053

- 12 - felt that he or she was free to leave the scene in the middle o f the sergeant's investigation. The facts speak for themselves. {¶ 31} Upon observing Kirk engaging in suspicious activity near a Doll ar General store, it is evident the sergeant approached Kirk for the purpo se of investigating. He did not approach Kirk because he saw a friend or someone he knew; h e saw Kirk in an unusual place doing an unusual thing. Kirk gave the sergeant a suspici ous explanation as to where and how he obtained the band saw. This was compounded by Kirk telling the sergeant he could not produce any form of identification. After verbally o btaining Kirk's information in what was a continuing, minor investigation, the sergeant expres sly told Kirk, "I'll be back with you in a minute." Kirk was aware the sergeant was continu ing his inquiry as part of the interaction between them and therefore waited by the bicycle to which he had been trying to tie the large saw. {¶ 32} Instructing Kirk, "I'll be back with you in a minute," was tant amount to saying, "wait here, this will not take long." With the accumulated fac ts present, there is no rationale interpretation of "I'll be back with you in a minute" that mean s "ignore me, I'm done looking into this." No reasonable person in Kirk's situation would thi nk the sergeant did not expect him or her to be there when he got back. The sergeant's words do not convey that he had accepted Kirk's implausible explanation. {¶ 33} When a law enforcement officer is questioning a person in the c ourse of an investigation, and is in the process of verifying information r eceived, the phrase "I'll be back with you in a minute" means "we're not done talking." In order to continue talking, the other person must be there. While the state argues that police offic ers are free to ask questions, the sergeant was not asking a question, he was letting Kirk kno w: "we're not done." No reasonable person under these circumstances would believe he or she was free toClermont CA2019-07-053

- 13 - disregard the officer and walk away, or in this case, ride away , in the middle of the officer's investigation. {¶ 34} The state advances an overly-broad version of consensual encoun ter beyond its reasonable application. The state suggests for one to be d etained, they must be told they are being detained. In the alternative, the state suggest s that an officer's statement cannot create a detention if it is subject to multiple interpre tations. Believing the interaction between the two to be wholly consensual, the assistant prosecut or initially misperceived the significance of the sergeant's actions. This led the assistant prosecutor to incorrectly frame the issue as only a consensual encounter. Courts should not be asked to misapply legal concepts to correct an assistant prosecutor's myopic focus on t he facts. Even so, once a trial court determines that an encounter was not consensual, as the trial court correctly did here, the remaining question was whether the detention was vali d pursuant to applicable law. When the circumstances indicate a person's freedom of mov ement has been restrained, "the encounter loses its consensual nature and fall s into one of the other two categories;" a detention pursuit to Terry or an arrest. State v. Westover , 10th Dist. Franklin No. 13AP-555, 2014-Ohio-1959, ¶ 15. {¶ 35} A police officer who has a reasonable, articulable suspicion th at an individual is currently engaged in, or is about to engage in, criminal act ivity may briefly stop and detain that individual in order to investigate the officer's reasonabl e suspicion that criminal activity could be afoot. Terry v. Ohio , 392 U.S. 1, 21-22, 27, 88 S.Ct. 1868 (1968). The level of suspicion required to meet this standard is less demanding than probable cause but more than "an inchoate and unparticularized suspicion or hunch." State v. Hawkins , Slip Opinion No. 2019-Ohio-4210, ¶ 20. The police officer must be able to c ite specific, articulable facts, which, taken together with the rational inferences that can be drawn from those facts, reasonably warrant the intrusion. State v. Andrews , 57 Ohio St.3d 86, 87(1991).Clermont CA2019-07-053

- 14 - {¶ 36} The propriety of an investigative detention by a police officer must be viewed in the totality of the surrounding circumstances as seen throug h the eyes of a reasonable and cautious police officer on the scene, guided by his experie nce and training. State v.

Bobo , 37 Ohio St.3d 177, 179-180 (1988). Thus, the consideration o f the relevant facts must be measured "not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." State v. Hairston , 156 Ohio St.3d 363, 2019-Ohio1622, ¶ 10. {¶ 37} Reasonable suspicion is not negated by the possibility of innoc ent conduct. "Behavior and circumstances that are noncriminal by nature may 'be unremarkable in one instance * * * while quite unusual in another.'" Hawkins at ¶ 23, quoting United States v.

Arvizu , 534 U.S. 266, 276, 122 S.Ct. 744 (2002). In other words, mer ely because an officer may be aware there could be an innocent explanation for the officer's reasonable suspicion does not mean the officer is relieved of the duty to investigat e. {¶ 38} The circumstances of what occurred in the case sub judice demon strate that the sergeant had reasonable suspicion that criminal activity co uld be afoot. Beginning with the initial conduct, and ending with the discovery that Kirk po ssessed drugs, the sergeant's actions were nothing less than what would be expected of a duty -bound, professional police officer. The sergeant knew that there was a loading area and a storage unit used by Dollar General to store products it could not fit into its stock room. The sergeant observed a person located near the storage unit attempting to attach a lar ge object to a bicycle. Clearly, the person did not appear to be a store employee. Upon simple inquiry, Kirk offered a vague and implausible explanation, that he found the bandsaw on the side of the road close to a nearby residence. The circumstances certainly support a b rief detention in order to further investigate.Clermont CA2019-07-053

- 15 - {¶ 39} Receiving an explanation that made little sense, the sergeant r equested identification, which Kirk could not produce. This only served to heighten reasonable suspicion to investigate. Detaining Kirk a brief time to inves tigate was entirely reasonable under the totality of the circumstances when viewed through the eyes of a reasonable and prudent police officer, especially one with 25 years of experie nce. Thus, the encounter between the sergeant and Kirk, while not consensual, was noneth eless a valid momentary, non-intrusive, detention that did not violate Kirk's Fourth Ame ndment rights. {¶ 40} In reading the transcript of the hearing, as well as the state' s written closing argument, it is understandable that the trial court focused on the issue of whether the encounter was consensual without going further to determine whe ther the detention was permissible under the law. The assistant prosecutor focused up on questions such as whether the sergeant ever expressly told Kirk he was under arre st or expressly told Kirk he was being detained. The state then cited case law specific to consensual encounters in its written closing arguments and suggested that the encounter was entirely consensual rather than suggesting that any detention that took place was permissi ble under the facts. Thus,

the trial court focused on whether the encounter was consensual in its written decision. {¶ 41} However, Kirk's written motion to suppress, as well as the test imony elicited at the hearing, implicate Terry . Each of the cases Kirk relied upon in his motion to prove that suppression of the evidence was necessary were cases apply ing Terry to a detention. Neither party could feign surprise had the court continued its analysis by applying Terry to the testimony and facts presented. 3 Kirk's motion to suppress expressly articulated that his Fourth Amendment rights were violated when the sergeant detaine d him because the

3. The majority in a footnote misplaces significance upon the s tate's representation at our oral argument that the state "waives" Terry as binding constitutional law applicable to the facts. Once K irk's motion raised the application of Terry , the state can neither waive, nor forfeit, the trial court's a bility to consider iron-clad Fourth Amendment law.Clermont CA2019-07-053

- 16 - sergeant lacked reasonable articulable suspicion of criminal ac tivity to do so. Kirk specifically anticipated the trial court's application of Terry , and the trial court was on notice to analyze whether the existing detention was permissible. Onc e Kirk raised the issue that suppression was required because a detention took place with no reasonable, articulable facts supporting the suspicion of criminal activity, the trial court was obligated to address the issue and the state could not negate Kirk's motion nor reli eve the trial court from considering the law on the issue. {¶ 42} Upon determining a detention had occurred the trial court had e vidence before it to answer the further question as to whether Kirk's Fourth A mendment rights were violated requiring the evidence to be suppressed. The trial court addre ssed the first aspect of the question by determining that the encounter was not consensual. However, the trial court did not address the next part of the analysis; was the detentio n that resulted constitutionally permissible? As discussed above, the record demonstrated that the sergeant had reasonable articulable suspicion of criminal activity so that t he detention to further investigate was reasonable. The encounter between Kirk and the sergeant, therefore, falls properly within the second category of citizen-police encounter s – a valid Terry detention. Thus, Kirk's Fourth Amendment rights were not violated, and he was not entitled to suppression of the evidence the state intended to use. {¶ 43} When a uniformed law enforcement officer has reasonable suspici on to investigate, I believe our precedent should not encourage the n otion that the person being investigated is free to disregard the officer and walk away whi le the investigation is ongoing particularly when the officer has indicated the need for furthe r engagement. Walking away from an investigating officer adds an element of heightened int ensity creating danger for all involved. In these circumstances, Kirk was made to believe the sergeant was not finishedClermont CA2019-07-053

- 17 - with his inquiry and that the sergeant expected him to remain o n scene. Yet, there simply was no Fourth Amendment violation of Kirk's rights. {¶ 44} While I agree with the majority that the trial court's decision must be reversed, I disagree with its rationale that Kirk's encounter with the se rgeant was wholly consensual. Despite Kirk's motion suggesting the absence of reasonable, art iculable suspicion of criminal activity, I find just the opposite and determine the d etention was reasonable under Terry . Kirk's motion to suppress should have been denied for the re asons expressed above, therefore, I respectfully concur in judgment only.