[Cite as State v. Romacko, 2016-Ohio-1512.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. John W. Wise, J.
                        Plaintiff-Appellant   :       Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
JONI L. ROMACKO                               :       Case No. 2015 AP 0063
                                              :
                     Defendant-Appellee       :
                                              :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from Tuscarawas County
                                                  Court of Common Pleas, Case No.
                                                  2015CR020037


JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           April 11, 2016

APPEARANCES:

For Plaintiff-Appellant                           For Defendant-Appellee

MICHAEL ERNEST                                    MARK A. PERLAKY
Assistant Prosecuting Attorney                    Tuscarawas County Public Defender
125 E. High Ave.                                  153 N. Broadway St.
New Philadelphia, OH 44663                        New Philadelphia, OH 44663
[Cite as State v. Romacko, 2016-Ohio-1512.]


Gwin, P.J.

        {¶1}    Appellant, the State of Ohio appeals the November 16, 2015 judgment entry

of the Tuscarawas County Court of Common Pleas granting appellee, Joni L. Romacko’s

[“Romacko”] motion to suppress.

                                        Facts and Procedural History

        {¶2}    Romacko was indicted by the Tuscarawas County Grand Jury for one count

of Possession of Cocaine, a felony of the fifth degree and one count Possession of Heroin,

a felony of the fifth degree.

        {¶3}    Romacko filed a motion to suppress evidence on August 14, 2015. An oral

hearing was conducted on October 14, 2015. The state called one witness, Officer James

Miller. Romacko did not present any evidence at the hearing.

        Officer James Miller.

        {¶4}    Officer Miller testified that on September 3, 2014 at about 12:13 P.M., he

was on patrol in the 1000 block of Union Avenue NW when he passed a female walking

from an unnamed alley onto the 1000 block of Logan Ave NW. Officer Miller stated that

he traveled back to the area and remained stationary in his police cruiser.

        {¶5}    Officer Miller observed the female walking south on Logan Avenue toward

him. Officer Miller watched as the female knocked on the door of a house. No one

answered the door. Miller also watched the female appear to place an unidentified

object into a trashcan, but he could not tell what, if anything, was placed in the can.

        {¶6}    Officer Miller exited his vehicle, began walking towards the female. Officer

Miller was wearing a body camera that recorded the interaction with Romacko. Officer
Tuscarawas County, Case No. 2015 AP 0063                                                 3


Miller could not recall how he began the conversation with Romacko. However, Officer

Miller began asking her what she was doing and if she had any identification.

      {¶7}   Romacko produced identification for the officer, including her CPR license.

Officer Miller testified that Romacko stated that she was a home health aide and that she

worked for Ember Home Healthcare. Romacko told the officer that she was looking for

a client's house. Officer Miller testified that she did not appear dressed for this type of

work and she did not have any type of identification indicating that she worked for Ember

Home Healthcare. Romacko replied that she had worked there two and one-half years

and has never had an I.D. badge.

      {¶8}   Officer Miller testified that he then asked Romacko if she had anything in

her pockets. Romacko responded that she did not have anything. Romacko stated that

she was in a hurry and called someone, “Donna,” on her cell phone to inform the party

that she would be late. Romacko explained to Officer Miller that she had to be in

Dennison to take someone to pain management at 1:30 p.m. Officer Miller then asked

Romacko, “Would you have a problem pulling your pockets out for me?” Romacko began

to comply. Officer Miller than tells Romacko, “Can you pull them all the way out, kinda

keeping it tucked in half way there.” According to Officer Miller, Romacko began to

manipulate the pocket and he observed what appeared to be a blue balloon within the

pocket. Officer Miller testified that balloons are commonly used for transporting heroin.

Officer Miller ordered Romacko to “Hand me the balloon of drugs. You have heroin in

your pocket hand it to me now.”

      {¶9}   Officer Miller testified that Romacko then appeared to try to rip the glove

apart in an effort to try to destroy something within the glove. Officer Miller had the
Tuscarawas County, Case No. 2015 AP 0063                                                 4


Romacko put the glove on his car so that it could not be destroyed. When asked where

the glove came from, Romacko stated that the glove was for work as a home health care

aid; she later stated that she found the glove in the street. (T. at 9).

       {¶10} A search of the glove revealed crack cocaine.             Miller then arrested

Romacko.

       The trial court’s decision.

       {¶11} In a Judgment Entry dated November 16, 2015, the trial court granted

Romacko's Motion to Suppress. The trial court found that Romacko could not have

felt free to leave the situation under the facts and circumstances, and was effectively

seized unlawfully by Officer Miller. The trial court found this not a consensual encounter

but was, instead, an investigatory police detention. The trial court further found that

Officer Miller did not have a reasonable suspicion that Romacko was engaged in criminal

activity. The trial court stated,

              The suggestion that Ms. Romacko, in this case, or any person in

       similar factual circumstances would realistically believe that they could, in

       essence, ignore a police officer's affirmative contact with them and

       questions of them, and simply walk away, denies the realities of police-

       citizen contact in the 21st Century. Had Ms. Romacko done exactly that

       in this case, it is certainly not far-fetched for her to expect that criminal

       charges of Obstructing Official Business and, at the extreme, Resisting

       Arrest, would have followed her refusal to answer Officer Miller's questions

       or her simply ignoring his inquiries.
Tuscarawas County, Case No. 2015 AP 0063                                                   5

                                       Assignment of Error

       {¶12} The state raises one assignment of error,

       {¶13} “I. THE TRIAL COURT DID NOT ERR IN GRANTING THE MOTION TO

SUPPRESS EVIDENCE FILED BY DEFENDANT-APPELLEE, AS A SEIZURE OF HER

PERSON OCCURRED THAT WAS NOT CONSENSUAL AND NOT AUTHORIZED BY

THE FOURTH AMENDMENT.”

                                             Analysis

       {¶14} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988;

State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing

court must defer to the trial court's factual findings if competent, credible evidence exists

to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio

App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111 Ohio App.3d 142,

675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has accepted those facts as

true, it must independently determine as a matter of law whether the trial court met the

applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio

App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu, 534

U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690,

116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial

court's findings of fact is subject to a de novo standard of review Ornelas, supra.
Tuscarawas County, Case No. 2015 AP 0063                                                  6


Moreover, due weight should be given “to inferences drawn from those facts by resident

judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

       Officer Miller’s contact with Romacko.

       {¶15} Contact between police officers and the public can be characterized in three

different ways. State v. Richardson, 5th Dist. Stark No. 2004CA00205, 2005–Ohio–554,

¶23–27. The first is contact initiated by a police officer for purposes of investigation.

“[M]erely approaching an individual on the street or in another public place [,]” seeking to

ask questions for voluntary, uncoerced responses, does not violate the Fourth

Amendment. United States v. Flowers, 909 F.2d 145, 147(6th Cir. 1990). The United

State Supreme Court “[has] held repeatedly that mere police questioning does not

constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d

389 (1991); see also INS v. Delgado, 466 U.S. 210, 212, 104 S.Ct. 1758, 80 L.Ed.2d 247

(1984). “[E]ven when officers have no basis for suspecting a particular individual, they

may generally ask questions of that individual; ask to examine the individual's

identification; and request consent to search his or her luggage.” Bostick, 501 U.S. at

434-435, 111 S.Ct. 2382 (citations omitted).

              The person approached, however, need not answer any question put

       to him, and may continue on his way. Florida v. Royer (1983), 460 U.S.

       491, 497–98. Moreover, he may not be detained even momentarily for his

       refusal to listen or answer. Id. So long as a reasonable person would feel

       free “to disregard the police and go about his business,” California v. Hodari

       D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991), the

       encounter is consensual and no reasonable suspicion is required.
Tuscarawas County, Case No. 2015 AP 0063                                                     7

       {¶16} The second type of contact is generally referred to as “a Terry stop” and is

predicated upon reasonable suspicion. Richardson, supra; Flowers, 909 F.2d at 147;

See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). This temporary

detention, although a seizure, does not violate the Fourth Amendment. Under the Terry

doctrine, “certain seizures are justifiable ... if there is articulable suspicion that a person

has committed or is about to commit a crime” Florida, 460 U.S. at 498. In holding that the

police officer's actions were reasonable under the Fourth Amendment, Justice Rehnquist

provided the following discussion of the holding in Terry,

              In Terry this Court recognized that a police officer may in appropriate

       circumstances and in an appropriate manner approach a person for

       purposes of investigating possible criminal behavior even though there is

       no probable cause to make an arrest. The Fourth Amendment does not

       require a police officer who lacks the precise level of information necessary

       for probable cause to arrest to simply shrug his shoulders and allow a crime

       to occur or a criminal to escape. On the contrary, Terry recognizes that it

       may be the essence of good police work to adopt an intermediate response.

       A brief stop of a suspicious individual, in order to determine his identity or

       to maintain the status quo momentarily while obtaining more information,

       may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 145–47, 92 S.Ct. 1921, 1923–24, 32 L.Ed.2d

612(1972).

       {¶17} The third type of contact arises when an officer has “probable cause to

believe a crime has been committed and the person stopped committed it.” Richardson,
Tuscarawas County, Case No. 2015 AP 0063                                                   8

2005-Ohio-554, ¶27; Flowers, 909 F.2d at 147. A warrantless arrest is constitutionally

valid if:

        “[a]t the moment the arrest was made, the officers had probable cause to

        make it-whether at that moment the facts and circumstances within their

        knowledge and of which they had reasonably trustworthy information were

        sufficient to warrant a prudent man in believing that the * * * [individual] had

        committed or was committing an offense.”

State v. Heston, 29 Ohio St.2d 152, 155–156, 280 N.E.2d 376(1972), quoting Beck v.

Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142(1964). “The principal components

of a determination of reasonable suspicion or probable cause will be the events which

occurred leading up to the stop or search, and then the decision whether these historical

facts, viewed from the standpoint of an objectively reasonable police officer, amount to

reasonable suspicion or to probable cause.” Ornelas v. United States, 517 U.S. 690, 696,

116 S.Ct. 1657, 1661–1162(1996). A police officer may draw inferences based on his

own experience in deciding whether probable cause exists. See, e.g., United States v.

Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589(1975).

        {¶18} The Ohio Supreme Court has held that a police officer's statement “Hey,

come here a minute,” while nominally couched in the form of a demand, is actually a

request that a citizen is free to regard or to disregard. State v. Smith, 45 Ohio St.3d 255,

258–259, 544 N.E.2d 239, 242(1989), reversed sub nom. Smith v. Ohio, 494 U.S. 541,

110 S.Ct. 1288, 108 L.Ed.2d 464(1990); State v. Crossen, 5th Dist. Ashland No. 2010-

COA-027, 2011-Ohio-2509, ¶13.
Tuscarawas County, Case No. 2015 AP 0063                                                    9

       {¶19} In United States v. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, the

United States Supreme Court made the following observation: “[w]e conclude that 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

believed that 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 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. See Terry v. Ohio, supra, 392

U.S., at 19, n. 16, 88 S.Ct. at 1879, n. 16; Dunaway v. New York, 442 U.S. 200, 207, and

n. 6, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824; 3 W. LaFave, Search and Seizure 53-55

(1978)”. Id. at 544, 100 S.Ct. at 1877. (Emphasis added).

       {¶20} In the case at bar, Officer Miller's body camera recorded the encounter.

Officer Miller testified, “If she would’ve walked away there was no reason for me to stop

her. I had no reason to continue to detain her, or to detain her I guess.” (T. at 19). Officer

Miller characterized the encounter as “consensual.” (T. at 17-18).

       {¶21} In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357(1979), the

United States Supreme Court held that the application of a Texas statute to detain

appellant and require him to identify himself violated the Fourth Amendment because the

officers lacked any reasonable suspicion to believe the appellant was engaged or had

engaged in criminal conduct. The court further held that detaining appellant to require

him to identify himself constituted a seizure of his person subject to the requirement of

the Fourth Amendment that the seizure be “reasonable.” Cf. Terry v. Ohio, supra. The
Tuscarawas County, Case No. 2015 AP 0063                                                 10


Fourth Amendment requires that such a seizure be based on specific, objective facts

indicating that society's legitimate interests require such action, or that the seizure be

carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of

individual officers. Brown, supra, at 51, 99 S.Ct. at 2640, 61 L.Ed.2d at 362, citing

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660(1979).

       {¶22} In Brown, two police officers, while cruising near noon in a patrol car,

observed appellant and another man walking away from one another in an alley in an

area with a high incidence of drug traffic. They stopped and asked appellant to identify

himself and explain what he was doing. One officer testified that he stopped appellant

because the situation “looked suspicious and we had never seen that subject in that area

before.” The officers did not claim to suspect appellant of any specific misconduct, nor

did they have any reason to believe that he was armed. When appellant refused to

identify himself, he was arrested for violation of a Texas statute which makes it a criminal

act for a person to refuse to give his name and address to an officer “who had lawfully

stopped him and requested the information.”         Appellant's motion to set aside an

information charging him with violation of the statute on the ground that the statute

violated the First, Fourth, Fifth, and Fourteenth Amendments was denied, and he was

convicted and fined. The El Paso County Court's rejection of his claim was affirmed by

the highest state court. State v. Jones, 70 Ohio App.3d 554, 558-559, 591 N.E.2d

810(2nd Dist. 1990)

       {¶23} On further appeal, the United States Supreme Court entered a reversal.

Chief Justice Burger delivered the opinion for a unanimous court and stated:
Tuscarawas County, Case No. 2015 AP 0063                                                   11


            The flaw in the State's case is that none of the circumstances

     preceding the officers' detention of appellant justified a reasonable

     suspicion that he was involved in criminal conduct.             Officer Venegas

     testified at appellant's trial that the situation in the alley ‘looked suspicious,’

     but he was unable to point to any facts supporting that conclusion. There

     is no indication in the record that it was unusual for people to be in the alley.

     The fact that appellant was in a neighborhood frequented by drug users,

     standing alone, is not a basis for concluding that appellant himself was

     engaged in criminal conduct.        In short, the appellant's activity was no

     different from the activity of other pedestrians in that neighborhood. When

     pressed, Officer Venegas acknowledged that the only reason he stopped

     appellant was to ascertain his identity.            The record suggests an

     understandable desire to assert a police presence; however, that purpose

     does not negate Fourth Amendment guarantees.

            In the absence of any basis for suspecting appellant of misconduct,

     the balance between the public interest and appellant's right to personal

     security and privacy tilts in favor of freedom from police interference. The

     Texas statute under which appellant was stopped and required to identify

     himself is designed to advance a weighty social objective in large

     metropolitan centers: prevention of crime. But even assuming that purpose

     is served to some degree by stopping and demanding identification from an

     individual without any specific basis for believing he is involved in criminal

     activity, the guarantees of the Fourth Amendment do not allow it. When
Tuscarawas County, Case No. 2015 AP 0063                                                   12


       such a stop is not based on objective criteria, the risk of arbitrary and

       abusive police practices exceeds tolerable limits. See Delaware v. Prouse,

       supra, at 661, 99 S.Ct. at 1400 [59 L.Ed.2d, at 672].

              The application of Tex.Penal Code Ann., Tit. 8, § 38.02 (1974), to

       detain appellant and require him to identify himself violated the Fourth

       Amendment because the officers lacked any reasonable suspicion to

       believe appellant was engaged or had engaged in criminal conduct.

       Accordingly, appellant may not be punished for refusing to identify himself,

       and the conviction is Reversed.”

443 U.S. at 51–53, 99 S.Ct. at 2641, 61 L.Ed.2d at 362–363.

       {¶24} Under any objective view of the evidence, the conduct of Officer Miller

resulted in a detention or seizure of Romacko. Officer Miller simply observed Romacko

leave a home where two drug overdoses had occurred two weeks prior in time, and walk

down the street in the early afternoon. No testimony was presented that it was unusual

for citizens to be walking at this time of day in this particular location. Officer Miller was

unable to point to any “furtive” behavior on the part of the Romacko. A search of the

trashcan Officer Miller had testified to did not reveal any evidence. Officer Miller’s use of

language and tone of voice as revealed from the body camera footage indicated that

compliance with his requests might be compelled.

       {¶25} In the case at bar, the absence of any basis for suspecting Romacko of

misconduct, the balance between the public interest and Romacko’s right to personal

security and privacy tilts in favor of freedom from police interference. There is nothing

more than an inchoate hunch that Romacko had violated or was about to violate the law
Tuscarawas County, Case No. 2015 AP 0063                                                13


when the officer requested that she speak to him and to produce her identification. If

police officers may approach citizens under circumstances shown in this case, it means

that the police may at any time and any place for any reason or no reason whatsoever

stop citizens and asked what they are doing and whom they are. Allowing police officer's

to require people to show their identification absent a reasonable basis to do so serves

no legitimate police function; allowing police officers to require people to show their

identification when the officers have shown a reasonable basis for the request does. By

requiring officers to show a reasonable basis to support the conduct, the constitutional

rights of individuals are preserved and legitimate police function is not impeded. State v.

Daniel, 12 S.W.2d 420, 431 (Tenn. 2000)(Byer, Special Justice, concurring in part,

dissenting in part).

       {¶26} In the case at bar, Officer Miller was unable to point to any facts supporting

his conclusion that the situation on the public street in broad daylight looked suspicious.

Thus this case presents us with a classic example of the “unparticularized suspicion or

hunch” warned against in Terry.

       {¶27} Appellant’s sole assignment of error is overruled.
Tuscarawas County, Case No. 2015 AP 0063                               14


      {¶28} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By: Gwin, P.J.,

Wise, J., and

Delaney, J., concur
