[Cite as State v. Boswell, 2014-Ohio-886.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                          Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 13-COA-018
EDWARD M. BOSWELL                              :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Ashland Municipal
                                                   Court, Case No. 13CRB00279

JUDGMENT:                                          Reversed and Remanded




DATE OF JUDGMENT ENTRY:                            March 7, 2014

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

W. DAVID MONTAGUE                                  JOHN KEARNS, JR.
Assistant Law Director                             Mason, Mason & Kearns
1213 E. Main Street                                153 West Main Street
Ashland, OH 44805                                  Ashland, OH 44805
[Cite as State v. Boswell, 2014-Ohio-886.]


Gwin, P.J.

        {¶1}     Appellant Edward M. Boswell [“Boswell”] appeals a judgment of the

Ashland Municipal Court, Ashland County, Ohio overruling his motion to suppress.

                                             Facts and Procedural History

        {¶2}     On March 1, 2013, at 10:23 a.m., Boswell and a friend were walking south

bound on the sidewalk on Cottage Street. Officer Craig Kiley of the Ashland City Police

Department was on routine patrol driving a marked cruiser northbound on Cottage

Street. He saw the two individuals. Officer Kiley turned his cruiser around, drove past

the individuals and parked on the street behind them. Officer Kiley then exited the

cruiser, walked across the street approached Boswell and his friend, saying something

to the effect, "Hey. What's going on?" The two stopped in response to the officer’s

comments.

        {¶3}     Officer Kiley asked the pair where they were coming from and where they

were going. He then asked for identification. The pair cooperated and complied with the

officer’s requests. Officer Kiley then asked if either of them had anything on him that he

should not. Boswell’s friend said that he did not and gave the officer permission to

search his backpack. Boswell stated that he did not want to be searched. The officer

went through the backpack on the other person and found a battery powered scale and

some alleged marijuana flakes, or "shake." The officer stated that while he was

searching the backpack, he noticed that Boswell was wearing a bulky coat, that the

sleeves of the bulky coat extended over his hands, and that Boswell was acting fidgety

and nervous. Based upon his "Cop radar," he thought something was not right and told

Boswell that he was going to search him for weapons. Boswell stated that he did not
Ashland County, Case No. 13-COA-018                                                      3


wish to be searched, but the officer stated that he did not need his consent. The officer

found an object in his left pocket that was later determined to be a marijuana pipe,

about two inches long, 1/4 inch in diameter, with an angled piece about an inch high.

The pipe was broken.

       {¶4}   The officer placed only Boswell in handcuffs. There was no evidence that

the other individual was further detained or even charged with any offence. The officer

then retrieved a cell phone from Boswell, who told the officer initially that he did not

want him to look through it.

       {¶5}   Officer Kiley then told Boswell that he could let the officer search it right

there and get it back, or the officer could search it at the police department. After

Boswell was charged with possession of drug paraphernalia and read his Miranda

rights, Boswell allowed the officer to look through his phone. Officer Kiley observed a

conversation about marijuana. After observing this conversation, the phone was

returned to the Boswell. Officer Kiley then issued Boswell a summons and took the

handcuffs off Boswell. Boswell was then permitted to leave.

       {¶6}   Boswell filed a motion to suppress the alleged paraphernalia, as well as

statements that he made to the officer and the statements that were found on his cell

phone. After an evidentiary hearing during which Officer Kiley and Boswell testified, the

trial court overruled the motion. Boswell subsequently pled “no contest” and was found

guilty. The trial court sentenced Boswell to five days in jail and ordered him to pay the

court costs. Boswell’s driver’s license was also suspended for six months.

                                      Assignment of Error

       {¶7}   Boswell raises one assignment of error,
Ashland County, Case No. 13-COA-018                                                       4


       {¶8}   “I. THE TRAIL COURT ERRED WHEN IT RULED THAT PHYSICAL

EVIDENCE WAS PROPERLY OBTAINED BY LAW ENFORCEMENT.”

                                           ANALYSIS

       {¶9}   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. 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.
Ashland County, Case No. 13-COA-018                                                      5


       {¶10} Boswell's sole assignment of error relates to the propriety of the trial

court's overruling of his motion to suppress.

       {¶11} 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).

              Even 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,
Ashland County, Case No. 13-COA-018                                                          6


       1552, 113 L.Ed.2d 690 (1991), the encounter is consensual and no

       reasonable suspicion is required.

Bostick, 501 U.S. at 434, 111 S.Ct. 2382, 115 L.Ed.2d 389.

       {¶12} 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 v. Royer, 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 mo-

       monetarily while obtaining more information, may be most reasonable in

       light of the facts known to the officer at the time.
Ashland County, Case No. 13-COA-018                                                       7

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

612(1972).

       {¶13} 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,

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).

       {¶14} 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,
Ashland County, Case No. 13-COA-018                                                      8

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

COA-027, 2011-Ohio-2509, ¶13.

      {¶15} 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 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).

      {¶16} 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
Ashland County, Case No. 13-COA-018                                                     9


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

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. See, State v. Jones, 70 Ohio App.3d 554, 558-559, 591 N.E.2d

810 (2nd Dist. 1990).

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

Chief Justice Burger delivered the opinion for a unanimous court and stated:

             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.
Ashland County, Case No. 13-COA-018                                                   10


             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 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.

      {¶18} Under any objective view of the evidence, the conduct of Officer Kiley in

the case at bar resulted in a detention or seizure of Boswell prior to the search of his

person and telephone. Officer Kiley simply observed two young men walking down the

sidewalk at 10:30 a.m. No testimony was presented that it was unusual for citizens to be
Ashland County, Case No. 13-COA-018                                                     11


walking at this time of day in this particular location. No evidence was presented that the

area was a “high crime” of “drug activity” area. Neither individual was acting suspicious

in any manner. Officer Kiley was unable to point to any “furtive” behavior on the part of

the Boswell or his companion as they walked down the sidewalk.

       {¶19} In the case at bar, in the absence of any basis for suspecting Boswell of

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

security and privacy tilts in favor of freedom from police interference. There is not the

slightest suggestion in this case that Boswell had violated or was about to violate the

law when the officer requested that Boswell produce his 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).

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

his conclusion that the situation on the public sidewalk in broad daylight looked

suspicious. Thus this case presents us with a classic example of the “unparticularized

suspicion or hunch” warned against in Terry.
Ashland County, Case No. 13-COA-018                                              12


      {¶21} Appellant’s sole assignment of error is sustained.

      {¶22} The judgment of the Municipal Court for Ashland County, Ohio is

reversed, and this case is remanded to that Court for proceedings in accordance with

our opinion and the law.

By Gwin, P.J.

Wise, J., and

Baldwin, J., concur
