[Cite as State v. Rappley, 2013-Ohio-964.]

 

 

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

SEBASTIAN K. RAPPLEY 

Defendant-Appellant 

Appellate Case No. 25156 

Trial Court Case No. 11-CR-2693 

(Criminal Appeal from 

(Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 15th day of March, 2013. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County 

Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 

West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

BRENT E. RAMBO, Atty. Reg. #0076969, 15 W. Fourth Street, Suite 250, Dayton, Ohio 45402 

Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 
2

WELBAUM, J.

{¶ 1} Defendant-Appellant, Sebastian Rappley, appeals from his conviction and 

sentence for possession of cocaine in violation of R.C. 2925.11(A) and possession of drug 

paraphernalia in violation of R.C. 2925.14(C)(1). He contends the trial court erred by overruling 

his motion to suppress evidence that he claims was obtained as a result of an illegal seizure and 

pat-down. Specifically, he argues that the trial court erroneously characterized his encounter with 

a Dayton Police Officer as a consensual encounter. Rappley also argues that no reasonable 

articulable suspicion existed upon which to conduct a pat-down search upon Rappley. 

{¶ 2} We conclude the trial court did not err in overruling the motion to suppress. 

The facts in the record do not establish an illegal seizure occurred, but instead an initial 

consensual encounter occurred that subsequently became an investigatory detention. The facts 

also establish the pat-down was conducted as a result of a reasonable articulable suspicion that 

Rappley may have been armed and dangerous. 

I. Facts

{¶ 3} On August 4, 2011, at approximately 4:45 p.m., Officer Sean Humphrey of the 

City of Dayton Police Department, and his partner, Officer Bower, were on a routine patrol near a 

high rise apartment building located at 2765 Wentworth Avenue in Dayton, Ohio. The area 

surrounding the apartment building has numerous problems with weapons, drug activity, 

drinking, loitering, and violent crime. 

{¶ 4} While patrolling the area, the officers pulled their cruiser into a parking lot 

located behind the apartment building. The officers began to approach the back of the apartment 

building on foot when they noticed a male individual carrying what looked like a woman’s purse. 
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 The male carrying the purse was later identified as the Appellant, Sebastian Rappley. 

{¶ 5} After observing Rappley carrying the purse, the officers began to walk in his 

direction. When Rappley noticed the officers walking toward him, Rappley walked up to a 

female, and then he and the female ducked behind a large bush. The officers lost sight of them 

for a short period of time and could not tell what was going on behind the bush. Officer 

Humphrey believed Rappley and the female went behind the bush either to obtain or to conceal 

something. 

{¶ 6} Shortly after the officers witnessed Rappley and the female duck behind the 

bush, the officers saw them emerge from the bush and begin to walk toward a BP gas station. 

They walked together at first, and then parted ways. Rappley continued to walk toward the BP 

station, and the female began to walk in the direction of the apartment building. Officer 

Humphrey went to make contact with Rappley and Officer Bower went to make contact with the 

female. 

{¶ 7} Officer Humphrey initiated the contact with Rappley by walking up to him and 

saying that he needed to speak with him. Rappley stopped walking as Officer Humphrey 

approached him. Officer Humphrey did not order Rappley to stand or stay with him. At this 

time, Officer Humphrey noticed Rappley was no longer carrying the purse. Following the initial 

contact, Humphrey requested Rappley’s name and Rappley complied. Officer Humphrey then 

advised that he was going to conduct a pat-down for safety concerns. Officer Humphrey 

testified that he had been in law enforcement for 14 years, and based on his experience he was 

concerned about the presence of weapons due to Rappley’s earlier evasive behavior. 

{¶ 8} Officer Humphrey began the pat-down process by standing behind Rappley and 
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having him lift his arms. Officer Humphrey asked Rappley if he had anything sharp on him that 

would poke Humphrey. Rappley responded by saying that he had a “hot stem.” Humphrey 

understood a “hot stem” to be a glass or metal pipe used to smoke crack cocaine. Officer 

Humphrey asked where the pipe could be found, and Rappley advised it was in his pocket. 

Officer Humphrey patted down the outside of the pocket where Rappley said the pipe was 

located. Humphrey testified that he had felt crack pipes in the past, and was familiar with how 

they feel. When he patted down Rappley’s pocket, he realized it contained a crack pipe, and 

removed the pipe from Rappley’s pocket. Humphrey noticed the end of the pipe was warm, like 

it had just been used. He also observed a “chunk” of crack cocaine inside the pipe. 

{¶ 9} Following the pat-down, Officer Humphrey handcuffed Rappley and escorted 

him to the cruiser. During this time, Rappley made a statement to the officer that he had “just hit 

it.” Officer Humphrey testified that he believed this meant Rappley had smoked the crack 

cocaine. Officer Humphrey did not ask any questions prior to Rappley’s statement and 

proceeded to read him his Miranda Rights. After the Miranda rights were read to Rappley, he 

acknowledged that he understood his rights and was willing to answer questions without a lawyer 

being present. Rappley then made statements in the cruiser on the way to jail. Rappley never 

asked for an attorney and never asked to remain silent. Rappley answered questions appropriately 

and was coherent. 

II. Course of Proceedings

{¶ 10} On October 24, 2011, Rappley was indicted for possession of cocaine in 

violation of R.C. 2925.11(A) and possession of drug paraphernalia in violation of R.C. 
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2925.14(C)(1). On December 12, 2011, Rappley filed a motion to suppress all evidence and 

statements obtained during his encounter with Officer Humphrey. On February 7, 2012, the trial 

court conducted an evidentiary hearing on Rappley’s motion to suppress, and subsequently 

overruled the motion. The trial court held the encounter between Rappley and Officer 

Humphrey was consensual and the subsequent pat-down was lawful. On February 9, 2012, the 

Appellant entered a no contest plea and was sentenced to eight months in prison for the 

possession of cocaine and a concurrent 30-day prison sentence for the possession of drug 

paraphernalia. Rappley then filed this appeal, arguing that the trial court erroneously overruled 

his motion to suppress. 

III. The Trial Court did not Err in Overruling Rappley’s Motion to Suppress

{¶ 11} Appellant’s sole Assignment of Error states: 

The trial court erred in overruling Appellant’s Motion to Suppress. 

{¶ 12} In support of his Assignment of Error, Rappley argues his encounter with 

Officer Humphrey was an illegal seizure that the trial court erroneously characterized as a 

consensual encounter. Rappley also argues that no reasonable articulable suspicion existed upon 

which to conduct a pat-down. Rappley claims all contraband and incriminating statements 

obtained by Officer Humphrey derived from the unlawful seizure and pat-down and are therefore 

subject to suppression pursuant to the fruit of the poisonous tree doctrine. We disagree. 

A. Standard of Review

{¶ 13} Generally, when reviewing a decision regarding a motion to suppress “an 

appellate court must accept the trial court’s findings of fact if they are supported by competent, 
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credible evidence.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, 

citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “Accepting these facts as 

true, it must then independently determine, without deference to the conclusion of the trial court, 

whether the facts satisfy the applicable legal standard.” Id. citing State v. McNamara, 124 Ohio 

App.3d 706, 707 N.E.2d 539 (4th Dist. 1997). 

{¶ 14} Rappley makes note of United States Supreme Court opinion Ornelas v. United 

States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), for the proposition that 

determinations of reasonable suspicion should be reviewed de novo on appeal. Id. at 699. 

However, in Ornelas, the Supreme Court also states, “we hasten to point out that a reviewing 

court should take care both to review findings of historical fact only for clear error and to give 

due weight to inferences drawn from those facts by resident judges and local law enforcement 

officers.” Id. Based on this language, this district previously held that the standard of review 

set forth in Ornelas is “substantially the same as the one this court and other appellate courts in 

Ohio have traditionally used.” State v. Gipp, 2d Dist. Montgomery No. 17369, 1998 WL 906462, 

 *3 (Dec. 31, 1998). 

{¶ 15} Accordingly, we find the trial court’s finding of facts is supported by competent, 

credible evidence, and hereby approve it and adopt it as our own. Using these facts we therefore 

must determine: (1) the nature of the encounter between Officer Humphrey and Rappley; and (2) 

whether a reasonable suspicion existed upon which to effectuate a pat-down. 

B. The Three Types of Police-Citizen Encounters

{¶ 16} The Fourth Amendment to the United States Constitution protects individuals 

from unreasonable searches and seizures. State v. Taylor, 106 Ohio App.3d 741, 747, 667 
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N.E.2d 60 (2d Dist. 1995). This protection is not implicated in every situation where police 

officers have contact with an individual. Id., citing California v. Hodari D., 499 U.S. 621, 111 

S.Ct. 1547, 113 L.Ed.2d 690 (1991). The United States Supreme Court has created three 

categories of police-citizen contact to identify situations where the Fourth Amendment 

protections apply: (1) consensual encounters; (2) investigative detentions, also known as Terry

stops; or (3) seizures that are equivalent to arrests. Taylor at 747-749, citing Florida v. Royer, 

460 U.S. 491, 501-507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1982). 

{¶ 17} Consensual encounters take place when “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.” Taylor at 747, citing United States v. Mendenhall, 446 U.S. 544, 

553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The Fourth Amendment protections are not 

implicated in consensual encounters unless “the police officer has by either physical force or 

show of authority restrained the person’s liberty so that a reasonable person would not feel free to 

decline the officer’s requests or otherwise terminate the encounter.” Taylor at 748, citing 

Mendenhall at 554; Terry v. Ohio, 392 U.S. 1, 16 and 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 

 Encounters that involve “the threatening presence of several officers, the display of a weapon by 

an officer, some physical touching of the person of the citizen, or the use of language or tone of 

voice indicating that compliance with the officer’s request might be compelled” are all examples 

of circumstances where consensual encounters may become seizures. Mendenhall at 554-555. 

However, an officer’s request to examine a person’s identification or search a person’s 

belongings does not make an encounter nonconsensual. Taylor at 747, citing Florida v. 

Rodriguez, 469 U.S. 1, 4-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984); Florida v. Bostik, 501 U.S. 
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429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The request to conduct a pat-down also does not 

render an encounter nonconsensual. See State v. Hardin, 2d Dist. Montgomery No. 20305, 

2005-Ohio-130, ¶ 19-20. 

{¶ 18} The second type of encounter, known as a Terry stop, is an investigatory 

detention that “is more intrusive than a consensual encounter, but less intrusive than a formal 

custodial arrest." Taylor at 748. During a Terry stop, "[l]aw enforcement officers may briefly 

stop and/or detain an individual for investigation if the officers have a reasonable, articulable 

suspicion that criminal activity may be afoot.” State v. Martin, 2d Dist. Montgomery No. 20270, 

2004-Ohio-2738, ¶ 10, citing Terry at 30. Officers may also "perform limited protective 

searches for concealed weapons when the surrounding circumstances created a suspicion that an 

individual may be armed and dangerous." State v. Jordan, 2d Dist. Montgomery No. 22271, 

2008-Ohio-199, ¶ 9, citing Terry. 

{¶ 19} “The third type of encounter involves a seizure that is the equivalent of an arrest. 

To perform such a seizure the police officer must have probable cause.” Taylor, 106 Ohio 

App.3d at 749, 667 N.E.2d 60, citing State v. Barker, 53 Ohio St.2d 135, 372 N.E.2d 1324 

(1978). “A seizure is equivalent to an arrest when: (1) there is an intent to arrest; (2) the seizure 

is made under real or pretended authority; (3) it is accompanied by an actual or constructive 

seizure or detention; and (4) it is so understood by the person arrested.” Id.

C. The Encounter Was Initially Consensual

{¶ 20} The trial court found that Rappley’s encounter with Officer Humphrey was 

consensual. An example of a consensual encounter can be found in State v. Springer, 2d Dist. 
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Montgomery No. 24353, 2011-Ohio-4724. In Springer, an officer noticed that an individual 

walking on a roadway put his head down and turned in a different direction as the officer’s 

cruiser was approaching the individual’s general vicinity. Id. at ¶ 8. The officer got out of the 

vehicle and walked on foot to approach the individual. Id. at ¶ 9. The officer did not order the 

individual to stop and he did not draw his service revolver. Id. at ¶ 11. The officer asked for 

the individual’s name and whether he lived in the apartment complex. Id. at ¶ 12 -13. The 

individual responded to the officer’s questions in a cooperative manner and consented to a 

pat-down search. Id. at ¶ 13-15. This court held the transaction preceding the consent to search 

was a consensual encounter because the officer did nothing that would cause a reasonable person 

to believe the individual was not free to leave. Id. at ¶ 64. 

{¶ 21} The initial encounter between Rappley and Officer Humphrey is similar to the 

encounter in Springer. In this case, Officer Humphrey was alone and in a public place when he 

approached Rappely. He approached Rappley on foot and Rappley voluntarily stopped walking 

so that Officer Humphrey could speak with him. The record indicates that Officer Humphrey 

did not order Rappley to stand or stay with him. Using a normal tone of voice, Officer 

Humphrey asked Rappley to identify himself, and Rappley cooperated. Officer Humphrey did 

not display his weapon, and did not physically touch Rappley. Up to this point, there is nothing 

in the record establishing that Rappley was restrained by Officer Humphrey and was not free to 

walk away and leave. 

{¶ 22} Accordingly, we hold the initial encounter between Officer Humphrey and 

Rappley was consensual. 

D. The Encounter Became an Investigatory Detention Upon Conducting a Pat-down 
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{¶ 23} When Officer Humphrey informed Rappley that he was going to conduct a 

pat-down, the encounter with Rappley became nonconsensual. We base this finding on the fact 

that Officer Humphrey did not request Rappley’s permission to pat him down, but told him he 

was going to pat him down. In State v. Montgomery, 2d Dist. Montgomery No. 15232, 1996 

WL 283943 (May 31, 1996), we found that an initially consensual encounter was no longer 

consensual once an officer ordered an individual to take his hand out of his pocket. Id. at *3, 

citing State v. Daniel, 81 Ohio App.3d 325, 328, 610 N.E.2d 1099 (1992). The underlying 

reasoning for this decision was that “a reasonable person would not have felt restricted by 

questions, but would have felt restrained by orders.” Id. Accordingly, we find it would be 

reasonable for Rappley to have felt restricted and unable to leave when Officer Humphrey told 

him he was conducting a pat-down as opposed to asking him. Therefore, we find that at the time 

Officer Humphrey informed Rappley of the pat-down, the encounter was no longer consensual. 

{¶ 24} A nonconsensual investigatory detention, however, does not qualify as an illegal 

seizure if the detaining officer has a “reasonable, articulable suspicion that criminal activity may 

be afoot.” Martin, 2004-Ohio-2738, at ¶ 10, citing Terry, 392 U.S. at 30. Whether the detention is 

reasonable is determined by reviewing the totality of the surrounding circumstances. State v. 

Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489, (1988). The totality of the circumstances must " 

‘be viewed from the eyes of the reasonable and prudent police officer on the scene guided by his 

experience and training.’ " Bobo at 179, quoting United States v. Hall, 525 F.2d 857, 859 (D.C. 

Cir. 1976). 

{¶ 25} In State v. Allen, 2d Dist. Montgomery No. 24587, 2012-Ohio-3709, this district 

determined that a reasonable articulable suspicion justified the investigative detention of an 
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individual who was crouched behind a pillar in front of a closed business and doing something 

with his hands that the officer could not see. Id. at ¶ 23. The pillar was located in an area where 

a lot of drug trafficking and arrests occurred. Id. Furthermore, in Bobo, the Ohio Supreme 

Court found that an individual’s furtive movements of popping up and ducking down from inside 

a car indicated he may have been hiding something, and it was one of many factors used to 

establish reasonable suspicion. Bobo at 179. While an officer’s presence in a high crime area, or 

a furtive movement, does not by itself justify an investigatory detention, these factors are 

considered under the totality of the circumstances test. State v. Roberts, 2d Dist. Montgomery No. 

23219, 2010-Ohio-300, ¶ 18; Bobo at 179. 

{¶ 26} In this case, Officer Humphrey testified that he observed Rappley carrying what 

appeared to be a woman’s purse in a high crime area. When the officer started walking toward 

Rappley, and Rappley saw him, Rappley approached a female and the two of them ducked behind 

a large bush. Officer Humphrey could not see what Rappley and the female were doing behind 

the bush. When they emerged from the bush, Rappley was no longer carrying the purse. 

Officer Humphrey, who has been employed in the field of law enforcement for 14 years, 

considered Rappley’s behavior evasive and it caused him concern. Based upon the totality of the 

circumstances, it was reasonable to detain Rappley because a reasonable, prudent police officer 

would be suspicious of criminal activity upon seeing a man carrying a purse and ducking behind 

a bush after noticing a police officer approaching. 

{¶ 27} For the foregoing reasons, we hold there was no illegal seizure of Rappley’s 

person because the encounter between Officer Humphrey and Rappley was initially a consensual 

one that turned into an appropriate investigatory detention due to a reasonable suspicion of 
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criminal activity. 

E. Reasonable Articulable Facts Existed Upon Which to Perform a Pat-Down 

{¶ 28} “Under Terry, a limited protective search of the detainee's person for concealed 

weapons is justified only when the officer has reasonably concluded that ‘the individual whose 

suspicious behavior he is investigating at close range is armed and presently dangerous to the 

officer or to others * * *.’ ” State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993); 

State v. Molette, 2d Dist. Montgomery No. 19694, 2003–Ohio–5965, ¶ 13. However, according 

to State v. Smith, 56 Ohio St.2d 405, 384 N.E.2d 280 (1978), an officer need not be certain an 

individual is armed to effectuate a pat-down. 

{¶ 29} In Terry, the court was concerned with striking a balance between 

the safeguarding of a person's right to be free from unreasonable searches and 

seizures and protecting a police officer from bodily harm and preventing and 

deterring crime where there is less than probable cause to make an arrest and conduct 

a full incidental search of a suspect. The court found*** that the proper balance must 

“permit a reasonable search for weapons for the protection of the police officer, 

where he has reason to believe that he is dealing with an armed and dangerous 

individual, regardless of whether he has probable cause to arrest the individual for a 

crime. The officer need not be absolutely certain that the individual is armed; the 

issue is whether a reasonably prudent man in the circumstances would be warranted 

in the belief that his safety or that of others was in danger.” An officer may 

therefore initiate a protective search when his suspicions are reasonably aroused. Id. 

at 407. 
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{¶ 30} In this case, Officer Humphrey testified that the pat-down was for his safety 

because he was unsure of what illegal activity Rappley was involved in. Officer Humphrey was 

concerned Rappley may have had a weapon because of the earlier evasive behavior of ducking 

behind the bush after he noticed the officer was aware of him. Furthermore, Officer Humphrey 

could not see what Rappley was doing behind the bush, as he could have been concealing a 

weapon. These facts combined with the fact that they were in a high crime area, made Officer 

Humphrey concerned for his safety. Although Humphrey was not absolutely certain that 

Rappley was carrying a weapon, it was reasonable and prudent for him to be concerned for his 

safety given that he was unable to see what Rappley was doing behind the bush. We therefore 

find that the limited, protective pat-down search conducted by Officer Humphrey was lawful. 

{¶ 31} We hold there was no illegal pat-down of Rappley because the pat-down 

conducted by Officer Humphrey was based on reasonable articulable facts suggesting that 

Rappley may have been armed and dangerous. 

{¶ 32} Because there was no illegal seizure or pat-down in this case, Rappley’s Fourth 

Amendment rights were not violated. Therefore, all the contraband and incriminating statements 

obtained during the encounter and pat-down are admissible and not subject to suppression under 

the fruit of the poisonous tree doctrine. 

{¶ 33} Rappley’s sole Assignment of Error is overruled. 

IV. Conclusion

{¶ 34} Having overruled Rappley’s sole Assignment of Error, the judgment of the trial 

court overruling Rappley’s motion to suppress is affirmed. 

 . . . . . . . . . . . . . 
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FAIN, P.J. and FROELICH, J., concur. 

Copies mailed to: 

Michele D. Phipps 

Brent E. Rambo 

Hon. Dennis J. Adkins