[Cite as State v. Fox, 2013-Ohio-4786.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellant   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 13CA41
MICHAEL A. FOX                                 :
                                               :
                      Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No. 2012-
                                                   CR-877H

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            October 30, 2013



APPEARANCES:fo

For Plaintiff-Appellant                            For Defendant-Appellee

JOHN J. MAYER, JR.                                 GEORGE KEYSER
Prosecuting Attorney                               44 Park Avenue West, Ste. 202
By: JOHN NIEFT                                     Mansfield, OH 44902
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Fox, 2013-Ohio-4786.]


Gwin, P.J.

        {¶1}     Appellant the State of Ohio appeals the May 13, 2013 Judgment Entry of

the Richland County Court of Common Pleas granting appellee Michael A. Fox’s motion

to suppress evidence.

                                 Factual and Procedural Background

        {¶2}     On November 16, 2012 at approximately 5:30 p.m., Officer David Johnson

of the Mansfield Police Department observed a vehicle parked in the front parking lot of

the Family Video on Park Avenue West, Mansfield, Ohio. The business was open as well

as several other businesses in downtown Mansfield. Officer Johnson circled the block

and observed that the vehicle containing two occupants had not moved. Officer Johnson

recognized the driver by appearance but not by name. He recognized her as a person

who was known to the police as having used heroin. He noticed the passenger sort of

bent over. Officer Johnson made contact with the female seated in the driver’s seat and

Fox who was seated in the passenger seat. Officer Johnson gathered their information.

The female did not have a driver's license on her. Officer Johnson returned to his cruiser

to run a check of them. Officer Johnson called in the information and his whereabouts. A

backup unit was sent as protocol because there were two suspects.

        {¶3}     Officer Johnson ran a check of the driver's license of the female driver of

the vehicle. The LEADS computer indicated that she did not have a valid driver's license

Officer Johnson issued a citation to the driver for not having a valid operator's license.

        {¶4}      Officer Sarah Mosier-Napier arrived within two minutes as backup. She

had a canine partner with her. It was decided that she would do a free air sniff of the

vehicle. Fox and the female were removed from the vehicle and patted down for
Richland County, Case No. 13CA41                                                        3


weapons. Officer Johnson put Fox in one of the cruiser’s. The driver was not placed in a

cruiser.

           {¶5}   As the canine unit began walking around the vehicle, Officer Johnson

observed Fox bent over in the back of his cruiser. Officer Johnson believed either Fox

was hiding something in the back of his cruiser or readying a weapon. Officer Johnson

opened the cruiser door and observed that Fox had his shoe half-off. Officer Johnson

requested Fox remove his shoe entirely to see what was inside. Inside was a syringe

with what appeared to be heroin. Fox admitted that it was heroin.

           {¶6}   Officer Mosier-Napier's canine partner alerted on the passenger side of

the vehicle where Fox had been sitting. The front passenger compartment of the vehicle

was searched. A soda can with the bottom cut off was found. There were scorch marks

and a cotton ball inside the can.

           {¶7}   Fox was subsequently indicted by the Richland County Grand Jury for

Possession of Heroin in violation of R.C. 2925.11(A) and (C)(6)(a), a felony of the fifth

degree.

           {¶8}   Fox’s motion to suppress was heard on February 21, 2013. The trial court

sustained the motion to suppress on May 13, 2013. In that same judgment entry, the trial

court also dismissed the indictment sua sponte.

                                      Assignment of Error

    {¶9}          The State raises one assignment of error,

    {¶10}         “I. THE TRIAL COURT ERRED WHEN IT SUSTAINED THE APPELLEE'S

MOTION TO SUPPRESS EVIDENCE.”
Richland County, Case No. 13CA41                                                           4


                                                I.

       {¶11} 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. Ross 1998); State v. Medcalf, 111 Ohio App.3d

142, 675 N.E.2d 1268 (4th Dist. Washington 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 Athens 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.

       {¶12} In its sole assignment of error, the state maintains that the trial court erred

in granting Fox’s motion to suppress. The state argues that Officer Johnson conducted a

Terry stop upon observing the vehicle because Officer Johnson knew the area to be a
 Richland County, Case No. 13CA41                                                           5


high crime area, recognized the occupants as known drug users and observed Fox bend

down in his seat.

        {¶13} 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, supra, at 434-

435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (citations omitted). The person approached,

however, need not answer any question put to him, and may continue on his way.

Florida v. Royer, 460 U .S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229(1983).

Moreover, he may not be detained even momentarily for his refusal to listen or answer.

Id.

        {¶14} 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
Richland County, Case No. 13CA41                                                             6


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 policeman 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).

        {¶15} The Fourth Amendment requires that officers have had a “reasonable fear

for his own or others' safety” before frisking. Terry 392 U.S. at 30, 88 S.Ct. 1868, 20

L.Ed.2d 889. Specifically, “[t]he officer ... must be able to articulate something more than

an ‘inchoate and unparticularized suspicion or hunch.’” United States v. Sokolow, 490

U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1(1989) (quoting Terry, 392 U.S. at 27, 88 S.Ct.
Richland County, Case No. 13CA41                                                            7


1868, 20 L.Ed.2d 889). Whether that standard is met must be determined “‘from the

standpoint of an objectively reasonable police officer,” ’ without reference to “the actual

motivations of the individual officers involved.” United States v. Hill, 131 F.3d 1056,

1059(D.C. Cir. 1997) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct.

1657, 134 L.Ed.2d 911(1996)).

       {¶16} 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,

supra; 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, 134 L.Ed.2d 911(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, 45 L.Ed.2d 623(1975).

       {¶17} In Florida v. Bostick (1991), 501 U.S. 429, 111 S .Ct. 2382, 115 L.Ed.2d

389, the United States Supreme Court reiterated,
Richland County, Case No. 13CA41                                                    8


      A consensual encounter does not trigger Fourth Amendment scrutiny. See

   Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L. Ed. 2d

   889. Even when officers have no basis for suspecting a particular individual,

   they may generally ask the individual questions, Florida v. Rodriguez, 469

   U.S. 1, 5-6, 105 S.Ct. 308, 310-311, 83 L.Ed.2d 165, ask to examine

   identification, INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762-1763,

   80 L.Ed.2d 247, and request consent to search luggage, Florida v. Royer, 460

   U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229, provided they do not

   convey a message that compliance with their requests is required.”

501 U.S. at 434-35, 111 S.Ct. at 2386. The courts in Ohio have taken a similar

approach,

       “[b]ecause the vehicle was parked, appellant was not subjected to a

   seizure per se as happens when a motorist is stopped in transit by a police

   officer. Numerous Ohio courts ... have held that a police approach and

   encounter with a stationary vehicle is consensual in nature, thereby making

   the Fourth Amendment inapplicable. See, e.g., State v. Welz (Dec. 9, 1994),

   Lake App. No. 93-L-137, unreported; Cuyahoga Falls v. Sandstrom (June 21,

   1995), Summit App. No. 17000, unreported; State v. Kiggans (Nov. 20, 1995),

   Stark App. No.1995CA00157, unreported; State v. Osborne (Dec. 13, 1995),

   Montgomery App. No. CA 15151, unreported.”

State v. Lott, 11th Dist. Ashtabula No. 96-A-0011, 1997 WL 799426(Dec. 26, 1997).

      {¶18} The vehicle in which Fox was seated was parked in the parking lot of a

business that was open to the public. It was 5:30 p.m., a time when citizens could be
Richland County, Case No. 13CA41                                                            9


expected to patronage the video store. Officer Johnson noticed no other unusual

activity. He recognized the female seated in the driver seat as a known heroin user.

Officer Johnson left both individuals in the car as he returned to his cruiser to issue the

citation.

       {¶19} A person's reputation or past record does not, standing alone, provide an

officer with a reasonable suspicion to support a Terry-type investigative stop or search.

United States v. Sandoval, 29 F.3d 537, 542(10th Cir. 1994); State v. Whitman, 184

Ohio App.3d 733, 2009-Ohio-5647, 922 N.E.2d 293 (5th Dist. Holmes County 2009). A

person’s presence in a high crime area, standing alone, is not enough to support

reasonable, particularized suspicion that person is committing a crime, but officers are

not required to ignore relevant characteristics of location in determining whether

circumstances are sufficiently suspicious to warrant further investigation. Illinois v.

Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).

       {¶20} In the case at bar, the state did not present any evidence that Fox or the

unidentified female had been in a drug house or anywhere where drug or other criminal

activity was taking place. Additionally, the Officer did not see anything in plain sight that

would lead him to believe that criminal activity was afoot.

       {¶21} “‘[W]hen detaining a motorist for a traffic violation, an officer may delay a

motorist for a time period sufficient to issue a ticket or a warning.’” State v. Batchili, 113

Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶12, quoting State v. Keathley, 55

Ohio App.3d 130, 131, 562 N.E.2d 932(2nd Dist. Miami 1988). “This measure includes

the period of time sufficient to run a computer check on the driver's license, registration,

and vehicle plates.” Id., citing State v. Bolden, 12th Dist. Preble No. CA2003–03–007,
Richland County, Case No. 13CA41                                                       10

2004-Ohio-184, ¶17, citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 59

L.Ed.2d 660(1979). Further, “‘[i]n determining if an officer completed these tasks within

a reasonable length of time, the court must evaluate the duration of the stop in light of

the totality of the circumstances and consider whether the officer diligently conducted

the investigation.’ ” Id., quoting State v. Carlson, 102 Ohio App.3d 585, 598–599, 657

N.E.2d 591(9th Dist. Medina 1995), citing State v. Cook, 65 Ohio St.3d 516, 521–522,

605 N.E.2d 70(1992), and United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84

L.Ed.2d 605(1985). See also State v. Whitman, 184 Ohio App.3d 740, 2009-Ohio-5647,

922 N.E.2d 293(5th Dist. Holmes); State v. Woodson, 5th Dist. Stark No. 2007-CA-

00151, 2008-Ohio-670, ¶ 21.

      {¶22} However, “[a]n officer may not expand the investigative scope of the

detention beyond that which is reasonably necessary to effectuate the purposes of the

initial stop unless any new or expanded investigation is supported by a reasonable,

articulable suspicion that some further criminal activity is afoot.” Whitman, ¶12;

Woodson, ¶22, citing State v. Retherford, 93 Ohio App.3d 586, 600, 639 N.E.2d

498(2nd Dist. Montgomery 1994), citing United States v. Brignoni–Ponce, 422 U.S. 873,

881–882, 95 S.Ct. 2574, 45 L.Ed.2d 607(1975). “In determining whether a detention is

reasonable, the court must look at the totality of the circumstances.” State v. Matteucci,

11th Dist. Lake No. 2001–L–205, 2003-Ohio-702, ¶ 30, citing State v. Bobo, 37 Ohio

St.3d 177, 178, 524 N.E.2d 489(1988). See also Woodson, 2008-Ohio-670, ¶ 22.

      {¶23} As an appellate court, we neither weigh the evidence nor judge the

credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972(1992). Our

role is to determine whether there is relevant, competent and credible evidence, upon
Richland County, Case No. 13CA41                                                        11

which the fact finder could base its judgment. Cross Truck Equipment Co. v. The

Joseph A. Jeffries Co., 5th Dist. Stark No. CA5758, 1982 WL 2911 (Feb. 10, 1982).

Reviewing courts should accord deference to the trial court's decision because the trial

court has had the opportunity to observe the witnesses' demeanor, gestures, and voice

inflections that cannot be conveyed to us through the written record, Miller v. Miller, 37

Ohio St.3d 71, 523 N.E.2d 846(1988).

       {¶24} In Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 81, 461 N.E.2d

1273(1984), the Ohio Supreme Court explained: “[a] reviewing court should not reverse

a decision simply because it holds a different opinion concerning the credibility of the

witnesses and evidence submitted before the trial court. A finding of an error in law is a

legitimate ground for reversal, but a difference of opinion on credibility of witnesses and

evidence is not.” See also State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),

syllabus 1.

       {¶25} We conclude that the trial court's factual findings do not constitute clear

error. Due weight has been given to the inferences drawn by the trial court and the

testifying law enforcement officer. After careful review of the record, there is no

indication that the trial court has made a mistake. The trial court has the authority to

decide in whose favor the weight of the evidence will lie. Here, the trial court decided in

favor of the appellee. Such a choice is not clearly erroneous.

       {¶26} We find the trial judge's findings to be supported by competent, credible

evidence. The mere fact that the vehicle was parked at the edge of the parking lot

during business hours and that Fox bent down or was slumped down in his seat were

not a sufficient basis for detaining the occupants of the car.
Richland County, Case No. 13CA41                                                          12


       {¶27} Therefore, we cannot say that the officer had reasonable suspicion to

detain Fox after issuing the citation to the driver because no specific or articulable facts

existed to support the officer's contention that criminal activity was afoot. The trial court

correctly granted the motion to suppress.

       {¶28} Appellant’s sole assignment of error is overruled and the judgment of the

Court of Common Pleas, Richland County, Ohio is affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur



                                               _________________________________
                                               HON. W. SCOTT GWIN


                                               _________________________________
                                               HON. JOHN W. WISE


                                               _________________________________
                                               HON. CRAIG R. BALDWIN




WSG:clw 1015
[Cite as State v. Fox, 2013-Ohio-4786.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                            Plaintiff-Appellant   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
MICHAEL A. FOX                                    :
                                                  :
                                                  :
                         Defendant-Appellee       :       CASE NO. 13CA41




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Richland County, Ohio is affirmed. Costs to

appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. JOHN W. WISE


                                                      _________________________________
                                                      HON. CRAIG R. BALDWIN
