[Cite as State v. Wertz, 2017-Ohio-8766.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   C.A. CASE NO. 27376
                                                  :
 v.                                               :   T.C. NO. 16-CR-894
                                                  :
 JOSHUA K. WERTZ                                  :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                           Rendered on the 1st day of December, 2017.

                                             ...........

MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

KIRIAKOS G. KORDALIS, Atty. Reg. No. 0089697, 130 W. Second Street, Suite 1818,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Joshua K. Wertz appeals his conviction and sentence

for one count of receiving stolen property (MV), in violation of R.C. 2913.51(A), a felony

of the fourth degree. Wertz filed a timely notice of appeal with this Court on December
                                                                                      -2-


12, 2016, arguing that the trial court erred in overruling his motion to suppress. We

hereby reverse the judgment of the trial court and remand the matter for further

proceedings consistent with this opinion.

      {¶ 2} The incident which forms the basis of the instant appeal occurred on April 4,

2015, when Trotwood Police Officer Robert Lingo was dispatched to 5225 Rucks Road

on an anonymous report of a “suspicious circumstance.”         The caller described the

suspect as a white male named “Josh” who was wearing glasses, a black jacket, and jean

shorts. The caller also stated that the suspect, later identified as Wertz, was pushing a

dirt bike down the street and behind the Rucks address.

      {¶ 3} Upon arriving at the residence located at 5225 Rucks Road, Officer Lingo

exited his cruiser and walked to the side of the house. From that vantage point, Officer

Lingo observed Wertz, who matched the description provided in the dispatch, attempting

to push a motorized dirt bike through a gap in the fence surrounding the backyard of the

residence. The following exchange occurred at the July 1, 2016 hearing on Wertz’s

motion to suppress:

             Q. * * *And what happens at that point?

             A. I call for him to stop and had him come over to me.

             Q. Does he?

             A. Yes.

             Q. * * * What happens next?

             A. He comes over to me. I ID him. He provides a photo ID, and I

      copied down the identification number. And I also checked the vehicle

      identification number on the bike, and I called into LEADS - - to dispatch to
                                                                                  -3-


be checked on LEADS to see if it’s stolen. It comes back as not stolen so

I went ahead and logged the information about the bike and the subject in

my dispatch log, and I also did a field interview card on it.

       ***

       Q. And why did you conduct a field interview?

       A. Well, because the nature of the call was suspicious

circumstances, and leading up to it he matched the description of the call

and, it being suspicious enough, I was concerned that the bike might be

stolen. So I wanted to record the information in case it should turn up to

be - - that should turn up to be the case.

       Q. So, sir, it’s fair to say that you were investigating at that point?

       A. Yes, sir.

       ***

       Q. * * * So, sir, after you had the field interview with Mr. Wertz, what

happened next?

       A. Once it was done, I let him go because I had no further cause to

keep him.

       ***

       Q. And when you were speaking with Mr. Wertz, where was he

located?

       A. He came over to where I was to the side of the house in the yard

with the bike.

       ***
                                                                                 -4-


       A. I spoke with him there.

{¶ 4} On cross examination, the following exchange occurred:

       Q. And you didn’t immediately see any criminal activity when you

arrived to the back yard, correct?

       A. Correct.

       ***

       Q. And you said you called out to Josh to come to you?

       A.    Yes.

       ***

       Q. * * * And he - - you said that he brought the dirt bike to you when

he - - you called out to him to come.

       A. Yes.

       Q. * * * And it was still actually in the back yard when you came and

took the vin number off it, correct?

       A. I was - - we were more around the front of the house.

       Q. You had him bring it all the way to the front of the house?

       A. To the front or the side. More towards the front.

       ***

       Q. Where did you find the VIN number on the bike?

       A. I don’t recall the exact location. I looked for it until I found it.

       Q. And you had to flip the bike around and look all over the engine

area? Is that accurate?

       A. It wasn’t hard to find it I remember.
                                                                                       -5-


              Q. * * * Did you have to like flip the bike up and - -

              A. I didn’t have to like - - you mean turn it upside down?

              Q. No, just kind of stand it up and look at it all around?

              A. Yes, with it standing I looked around until I found it.

              ***

       Lingo stated that the residence at 5225 Rucks Road belonged to Wertz.

       {¶ 5} The record reflects that approximately one year after his encounter with

Wertz, Officer Lingo was promoted to detective. Detective Lingo was then assigned to

investigate a breaking and entering at a garage located on Rucks Road. During his

investigation, Lingo discovered that a dirt bike reported as stolen matched the VIN

number that he recorded from the bike that Wertz was in possession of in April of 2015.

Thereafter, Detective Lingo arrested Wertz for receiving stolen property.

       {¶ 6} On May 23, 2016, Wertz was indicted for one count of receiving stolen

property. At his arraignment on June 1, 2016, Wertz stood mute, and the trial court

entered a plea of not guilty on his behalf. In his June 15, 2016 motion to suppress, Wertz

argued that Detective Lingo trespassed onto his property and detained him unlawfully

with no reasonable suspicion of criminal activity. Wertz also argued that the dirt bike

was unlawfully seized and the VIN number obtained without a search warrant. Thus,

Wertz concluded that any physical evidence and/or statements should be suppressed.

       {¶ 7} On October 27, 2016, the trial court issued a decision overruling Wertz’s

motion to suppress. In its decision, the trial court found as follows:

              ***

              There is absolutely no evidence even suggesting that Lingo’s
                                                                                      -6-


      earlier encounter with Defendant was anything but consensual.          While

      Lingo did not inform Defendant that he could leave at any time, Lingo neither

      displayed [n]or exerted any force or authority compelling Defendant to

      cooperate or otherwise engage with the officer. Lingo did not draw his

      weapon, place his hands on Defendant, or indicate in any fashion that

      Defendant was not free to leave. Lingo clearly revealed the purpose of his

      visit to Defendant’s home and Defendant’s interaction with Lingo was

      completely voluntary. At no time did Defendant attempt to terminate the

      exchange or to leave his property.      And because the totality of these

      circumstances could never meet any reasonable definition of “seizure” as

      described in [United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.

      1870, 64 L.Ed.2d 497 (1980)], Defendant’s Fourth Amendment rights were

      not implicated and Miranda was not triggered

      IV. Conclusion

             Off. Lingo acted appropriately toward Defendant every step of the

      way.     For the foregoing reasons, Defendant’s Motion is hereby

      OVERRULED.

      {¶ 8} On November 10, 2016, Wertz pled no contest to one count of receiving

stolen property. The trial court found him guilty and sentenced him to community control.

It is from this judgment that Wertz now appeals.

      {¶ 9} Wertz’s sole assignment of error is as follows:

             THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

      APPELLANT WHEN IT IMPROPERLY DENIED THE DEFENDANT’S
                                                                                         -7-


       MOTION TO SUPPRESS EVIDENCE OBTAINED IN VIOLATION OF THE

       RIGHTS CONFERRED BY ARTICLE I, SECTION XIV OF THE OHIO

       CONSTITUTION         AND      THE      FOURTH       AND      FOURTEENTH

       AMENDMENTS OF THE UNITED STATES CONSTITUTION.

       {¶ 10} Wertz argues that the trial court incorrectly found that the encounter

between Officer Lingo and Wertz on April 4, 2015, was consensual.

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

and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797 N.E.2d 71, ¶ 8.

At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses. Id. See also

State v. Carter, 72 Ohio St.3d 545, 552, 651 N.E.2d 965 (1995). When reviewing a ruling

on a motion to suppress, deference is given to the trial court's findings of fact so long as

they are supported by competent, credible evidence. Burnside at ¶ 8, citing State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). With respect to the trial court's

conclusions of law, however, our standard of review is de novo; therefore, we must decide

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

Ohio App.3d 706, 710, 707 N.E.2d 539 (4th Dist.1997).

       {¶ 12} “The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968).       Not all interactions between citizens and the police,

however, implicate the protections of the Fourth Amendment. State v. Garrison, 2d Dist.

Montgomery No. 24857, 2012–Ohio–3846, ¶ 15.

       {¶ 13} The law recognizes three types of police-citizen interactions: 1)
                                                                                           -8-

a consensual encounter, 2) a brief investigatory stop or detention, and 3) an arrest. State

v. Jones, 188 Ohio App.3d 628, 2010–Ohio–2854, 936 N.E.2d 529, ¶ 13 (10th Dist.).

       {¶ 14} “Encounters are consensual 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. Smith, 2d Dist. Montgomery No. 20165,

2004-Ohio-1171, ¶ 11. During a consensual encounter, the officer and citizen can engage

in conversation, and a person's voluntary statements may be used against him or her, as

long as that the person knows that he or she is free to walk away and the police have not

conveyed a message that compliance with their requests is required. State v. Barton, 2d

Dist. Montgomery No. 21815, 2007–Ohio–2348, ¶ 14–15.

       {¶ 15} A search is valid and does not violate the Fourth Amendment when it is

consensual, so long as the consent is freely and voluntarily given. Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The burden of proof is

on the State to show, under the totality of the circumstances, by clear and convincing

evidence that the consent was voluntary. State v. Connors-Camp, 2d Dist. Montgomery

No. 20850, 2006-Ohio-409, ¶ 27.

       {¶ 16} Investigatory detention, often referred to as a Terry stop, allows an officer

to briefly stop and temporarily detain individuals in order to investigate possible criminal

activity. State v. Strozier, 172 Ohio App.3d 780, 2007–Ohio–4575, 876 N.E.2d 1304 (2d

Dist.), citing Terry v. Ohio. An investigatory stop does not constitute an arrest or place

the suspect in custody. Jones at ¶ 16. It is well established that “[a]n individual is subject

to an investigatory detention when, in view of all the circumstances surrounding the

incident, by means of physical force or show of authority, a reasonable person would have
                                                                                         -9-

believed that he was not free to leave or is compelled to respond to questions.” State v.

Love, 2d Dist. Montgomery No. 23902, 2011–Ohio–1287, ¶ 18, quoting In re D.W., 184

Ohio App.3d 627, 2009–Ohio–5406, 921 N.E.2d 1114, ¶ 13–15 (2d Dist.).

       {¶ 17} Upon review, we conclude that the trial court erred when it overruled Wertz’s

motion to suppress. Specifically, we conclude that the encounter between Lingo and

Wertz was a not a consensual encounter, and that the trial court erred in concluding that

there was “absolutely no evidence even suggesting that Lingo’s earlier encounter with

Defendant was anything but consensual.” Based upon the information provided in the

dispatch, Lingo approached the residence located at 5225 Rucks Road and walked to the

side of the house where he observed Wertz, in his own backyard and not in a public place,

trying to push a dirt bike through a gap in the fence into an open field, a place where dirt

bikes are often ridden. Lingo commanded Wertz to stop pushing the bike and come over

to where Lingo stood and speak to him. Lingo testified that he may have walked into

Wertz’s backyard “a couple of steps,” and that he did not observe any criminal activity or

indicia of illegality at the time. He testified that he was concerned that the bike might be

stolen, and that he was conducting an investigation based upon Wertz’s appearance

matching the description provided by the anonymous caller, which Lingo termed

“suspicious enough.” Lingo testified that he asked Wertz several questions and checked

his identification, and he testified that Wertz was cooperative during the interview. Lingo

further recorded the VIN number of the bike in the course of his investigation, after

searching the bike “until I found it.” Lingo testified that he learned the bike had not been

reported as stolen. Based upon these facts, we cannot conclude that a reasonable

person in Wertz’s position would have believed that he was free to go; Wertz, on his own
                                                                                        -10-


property, was ordered to stop moving a dirt bike, an activity which exhibited at the time

no evidence of illegality, and to come to Lingo. Wertz was asked several questions, and

the VIN number of the bike was searched for and recorded. Lingo stated that after the

interview, he “let [Wertz] go because I had no further cause to keep him.” Since Lingo’s

encounter with Wertz was not consensual, Wertz’s assigned error is sustained. The

judgment of the trial court is reversed, and the matter is remanded for further proceedings

consistent with this opinion.

FROELICH, J., concurs.



WELBAUM, J., dissenting:

       {¶ 18} I very respectfully dissent from the majority’s holding that the encounter

between Detective Lingo and Wertz was nonconsensual.

       {¶ 19} The fact that Detective Lingo called out for Wertz to stop pushing the dirt

bike and to come over and speak with him does not render the encounter nonconsensual.

“Even when a law enforcement [officer] phrases a statement in an imperative or

declarative—rather than in an interrogative—fashion, courts have generally ruled that an

imperative or declarative statement, by itself, does not transform a consensual encounter

into a seizure.” State v. Blankenship, 4th Dist. Ross No. 13CA3417, 2014-Ohio-3600,

¶ 16, citing Columbus v. Body, 10th Dist. Franklin No. 11AP-609, 2012-Ohio-379, State

v. Duncan, 9th Dist. Summit No. 21155, 2003-Ohio-241, and United States v. Brown, 447

Fed.Appx. 706, 708-709 (6th Cir.2012).      “Instead, courts must examine the totality of

the circumstances present in each case in order to ascertain whether an imperative or

declarative statement constitutes a sufficient show of authority to ripen a consensual
                                                                                        -11-

encounter into a seizure subject to Fourth Amendment scrutiny.” (Citation omitted.) Id.

      {¶ 20} In State v. Smith, 45 Ohio St.3d 255, 544 N.E.2d 239 (1989), the Supreme

Court of Ohio held that a consensual encounter did not ripen into a seizure when an officer

stated “hey, come here a minute,” to the defendant, and none of the officers on the scene

displayed any weapons, physically touched the defendant, used a threatening tone of

voice, ordered the defendant into the police cruiser, indicated that the defendant’s

noncompliance would lead to his arrest, or block the defendant’s exit with their cruiser.

Id. at 258-259, reversed on other grounds, Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288,

108 L.Ed.2d 464 (1990).

      {¶ 21} Likewise, in Columbus v. Body, 10th Dist. Franklin No. 11AP-609, 2012-

Ohio-379, the Tenth District Court of Appeals determined that an officer’s statement

“come over here,” did not constitute a seizure under circumstances where the officer

acted without the threatening presence of several officers, did not activate his siren or

search light, did not attempt to block the defendant’s path, did not attempt to pursue the

defendant, did not display his weapon, and did not use a threatening voice. Id. at ¶ 20.

      {¶ 22} The Body court also noted that “[f]ederal courts have also recognized that

‘simply calling out to someone to come over to talk does not constitute a seizure.’ ” Id.

at ¶ 18, quoting Brown at 709, citing United States v. Matthews, 278 F.3d 560, 562 (6th

Cir.2002), abrogated on other grounds, United States v. McMurray, 653 F.3d 367 (6th

Cir.2011) (holding that an officer’s statement “hey, buddy, come here,” did not constitute

a seizure because the addressee could have “politely declined to do so, and walked

away”).

      {¶ 23} More recently, in State v. Blankenship, 4th Dist. Ross No. 13CA3417, 2014-
                                                                                         -12-


Ohio-3600, the Fourth District Court of Appeals held there was a consensual encounter

where an officer told the defendant to “step over here,” and did not otherwise engage in

conduct that could be construed as a show of authority sufficient to constitute a seizure.

Id. at ¶ 23-24.    Specifically, the officer did not pursue the defendant, continue to

interrogate the defendant against his expressed desire, call the defendant to halt, block

the defendant’s path, hold the defendant’s identification or other property, physically grab

or move the defendant, display his weapon, activate his siren or cruiser lights, or indicate

that the defendant’s noncompliance would lead to his arrest.           Id. at ¶ 24.    The

Blankenship court also noted that the officer was alone, and thus acted without the “

‘threatening presence of several officers.’ ” Id., quoting United States v. Mendenhall, 446

U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

       {¶ 24} The present case is analogous to Smith, Body, and Blankenship. There is

nothing in the record indicating that Detective Lingo’s conduct amounted to a show of

authority that would have caused a reasonable person in Wertz’s position to feel as

though he could not walk away and/or decline the officer’s request. Specifically, there is

nothing in the record indicating that Detective Lingo used a threatening or commanding

tone when he told Wertz to “come over here.” Furthermore, Detective Lingo did not

pursue Wertz in his back yard, block Wertz’s path, display a weapon, threaten Wertz, or

indicate that Wertz’s noncompliance would lead to his arrest. There is also nothing in

the record indicating that Wertz asked Detective Lingo to leave, or that Wertz expressed

any desire to end the encounter.      Moreover, Wertz was not physically searched or

arrested by Detective Lingo.     In fact, upon concluding the conversation with Wertz,

Detective Lingo simply got back in his cruiser and left the scene. The record further
                                                                                         -13-


indicates that Detective Lingo was acting alone during the encounter, without the

threatening presence of several officers.

       {¶ 25} The fact that Detective Lingo asked Wertz questions, checked Wertz’s

identification card, and recorded the VIN of Wertz’s dirt bike with his consent does not

alter the consensual nature of the encounter.        See, e.g., State v. Hardin, 2d Dist.

Montgomery No. 20305, 2005-Ohio-130, ¶ 19-20 (finding a consensual encounter where

an officer asked the defendant questions, requested information, and conducted a pat-

down search with the defendant’s consent).

       {¶ 26} The consensual nature of the encounter is also not altered by the fact that

Detective Lingo initiated the encounter on Wertz’s private property. “[T]he police may

enter private property without such conduct constituting a search, provided that the

officers restrict their movements to those areas generally made accessible to visitors,

such as driveways, walkways, or similar passages.” State v. Lewis, 2d Dist. Montgomery

No. 22726, 2009-Ohio-158, ¶ 25, citing State v. Lungs, 2d Dist. Montgomery No. 22704,

2008-Ohio-4928, ¶ 20; State v. Peterson, 173 Ohio App.3d 575, 2007-Ohio-5667, 879

N.E.2d 806, ¶ 17 (2d Dist.) (“The only areas of the curtilage where the officers may go

are those impliedly open to the public.”). In Lewis, this court held that the consensual

nature of the defendant’s encounter with a police officer was not altered by the fact that it

occurred on a grassy area between the alley and the defendant’s fence. Here, Detective

Lingo testified that the encounter occurred in an open area on the side of Wertz’s house,

and that while he may have walked “a couple of steps” into the side of Wertz’s backyard,

he did not go over Wertz’s fence. Like Lewis, Lingo remained in an area outside the

defendant’s fence, which is an area generally accessible to visitors.
                                                                                      -14-


       {¶ 27} For the foregoing reasons, I respectfully disagree with the majority’s

conclusion that Detective Lingo’s encounter with Wertz was nonconsensual, as a

reasonable person in Wertz’s position would not have felt as though he was not free to

leave or that he was compelled to answer Detective Lingo’s questions. Because I find

the encounter consensual, there was, in my opinion, no unlawful seizure that warranted

the suppression of the evidence at issue. Accordingly, I would affirm the judgment of the

trial court overruling Wertz’s motion to suppress.



                                        .............


Copies mailed to:

Michael J. Scarpelli
Kiriakos G. Kordalis
Hon. Steven K. Dankof
