[Cite as State v. Clelland, 2016-Ohio-4827.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.       27740

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
CASEY J. CLELLAND                                    COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2014 06 1804

                                  DECISION AND JOURNAL ENTRY

Dated: July 6, 2016



        WHITMORE, Judge.

        {¶1}     Appellant, Casey Clelland, appeals the trial court’s decision that overruled his

motion to suppress. This Court affirms.

                                                 I

        {¶2}     On a summer day, Officer Jeff Smith drove past a school parking lot and noticed a

man sitting in the hot sun on a metal guardrail. Forty-five minutes later, he drove past again and

noticed that the man had not moved from the spot. Officer Smith pulled into the lot within a few

feet of him and started a conversation without exiting his cruiser. The man identified himself as

Casey Clelland, but when Officer Smith asked him to spell his name, he hesitated, then

misspelled it. Officer Smith asked for his social security number, and Clelland provided a seven-

digit number.       When Officer Smith asked if he had any outstanding warrants, Clelland

responded, “Yeah, I think I do.” Officer Smith’s partner opened the door to exit the cruiser, and

Clelland fled on foot.
                                                2


       {¶3}   When the officers apprehended Clelland, he told them that he had drugs on his

person. The officers located a baggie of crack cocaine hidden on his body, and Clelland was

charged with possession of cocaine in violation of R.C. 2925.11(A)/(C)(4) and obstructing

official business in violation of R.C. 2921.31(A). Clelland moved to suppress, arguing that the

encounter between Clelland and the police was a stop rather than a consensual encounter and,

consequently, that the evidence should be suppressed because Officer Smith did not have a

reasonable, articulable suspicion of criminal activity. The trial court denied the motion to

suppress, and Clelland pleaded no contest to the charges against him. The trial court sentenced

him to concurrent prison terms of one year and ninety days, respectively, and suspended the

sentence on the condition that Clelland complete two years of community control. This appeal

followed.

                                               II

                                     Assignment of Error

       POLICE OFFICERS HAD NO RIGHT TO STOP [CLELLAND], SEIZE HIS
       PERSON, AND START QUESTIONING HIM IN A FIELD INVESTIGATION,
       TO ASCERTAIN WHETHER HE HAD A WARRANT OUTSTANDING. THE
       TRIAL COURT ERRED TO THE PREJUDICE OF [CLELLAND], BECAUSE
       OFFICER SMITH CONDUCTED AN INVESTIGATORY STOP – NOT A
       CONSENSUAL ENCOUNTER. THE TRIAL COURT ERRED WHEN IT DID
       NOT SUPPRESS THE UNLAWFUL SEIZURE, BECAUSE OFFICER [SMITH]
       DID NOT HAVE SUFFICIENT REASONABLE SUSPICION TO STOP
       [CLELLAND].

       {¶4}   Clelland’s assignment of error is that the trial court erred by denying his motion to

suppress because, in his view, the interaction between him and the police was an investigatory

stop rather than a consensual encounter. We disagree.

       {¶5}   An appellate court’s review of a trial court’s ruling on a motion to suppress

presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
                                                3


5372, ¶ 8. The trial court acts as the trier of fact during a suppression hearing and is best

equipped to evaluate the credibility of witnesses and resolve questions of fact. Id.; State v.

Hopfer, 112 Ohio App.3d 521, 548 (2nd Dist.1996), quoting State v. Venham, 96 Ohio App.3d

649, 653 (4th Dist.1994).     “Accepting these facts as true, the appellate court must then

independently determine, without deference to the conclusion of the trial court, whether the facts

satisfy the applicable legal standard.” Burnside at ¶ 8, citing State v. McNamara, 124 Ohio

App.3d 706, 710 (4th Dist.1997). In this case, the trial court’s findings of fact are not disputed,

so we are presented with a question of law.

       {¶6}    An investigatory stop is a seizure for purposes of the Fourth Amendment and,

consequently, must be based on a law enforcement officer’s reasonable suspicion “that a motorist

has committed, is committing, or is about to commit a crime.” State v. Mays, 119 Ohio St.3d

406, 2008-Ohio-4539, ¶ 7. In justifying the stop, the officer “must be able to point to specific

and articulable facts which, taken together with rational inferences from those facts, reasonably

warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968). But “not every encounter between

a police officer and a citizen is an intrusion requiring an objective justification.”      U.S. v.

Mendenhall, 446 U.S. 544, 553 (1980). Instead, there must be a “seizure” of the person, or a

physical restraint of the freedom of movement by physical force or show of authority. Id. “As

long as the person to whom questions are put remains free to disregard the questions and walk

away, there has been no intrusion upon that person’s liberty or privacy as would under the

Constitution require some particularized and objective justification.” Id. at 554. The measure of

whether a person has been seized for purposes of the Fourth Amendment is an objective one:

whether, in light of all of the surrounding circumstances, the officer’s words or actions would
                                                4


have conveyed to a reasonable person that he was not free to leave. California v. Hodari D., 499

U.S. 621, 628 (1991).

       {¶7}    In this case, Officer Smith testified that he drove into the parking lot where

Clelland was located and pulled his cruiser within four or five feet of Clelland. Officer Smith

did not activate his lights or sirens. He testified that he would only characterize his decision to

approach Clelland as an “investigation” only to the extent that he wanted to ask, “hey, you all

right, you’ve been sitting here for at least 45 minutes.” He testified that he asked for Clelland’s

name so that he could determine whether there were any department records of field contact with

him, but he had no indication that Clelland had committed or was going to commit a crime.

Officer Smith was in uniform and carried a weapon in the holster at his hip, but remained seated

inside the vehicle during his interaction with Clelland with the weapon holstered.              He

acknowledged that Clelland was not required to provide his social security number at that time.

       {¶8}    Officer Smith testified that Clelland was free to go during the conversation up

until the point at which he told the officers that he had outstanding warrants. At that point,

Officer Smith told his partner to get out of the car and, “[a]s soon as he cracked the door,”

Clelland ran away. According to Officer Smith, he and his partner pursued Clelland at that time

because of his admission that he had outstanding warrants, and that was the sole reason for his

subsequent detention.

       {¶9}    Clelland has argued that the determining factor in analyzing this case for

purposes of the Fourth Amendment is the subjective intentions of the police officers. Stated

differently, it is his position that the same conversation under the same circumstances could be a

consensual encounter in one case but not another based solely on what the police officers were

thinking at the time. The test for determining whether an encounter is consensual, however, is
                                                 5


objective and is focused on the reasonable belief of the accused. Hodari D., 499 U.S. at 628.

The officers’ thought process is “irrelevant for Fourth Amendment purposes.” State v. Cuffman,

3rd Dist. Crawford Nos. 3-11-01, 3-11-02, 2011-Ohio-4324, ¶ 22, citing Whren v. United States,

517 U.S. 806, 813-14 (1996) and Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001).

       {¶10} Given the surrounding circumstances of the encounter, we conclude that a

reasonable person in Clelland’s position would not have felt from the officers’ words and actions

that he was compelled to remain. The totality of the circumstances demonstrates that the

officers’ interaction with Clelland was not a stop for purposes of the Fourth Amendment. His

assignment of error is overruled.

                                                III

       {¶11} Clelland’s assignment of error is overruled, and the judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                6


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    BETH WHITMORE
                                                    FOR THE COURT



HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
