[Cite as State v. Young, 2018-Ohio-164.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105444




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                              CLINTON M. YOUNG, III
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-609189-A

        BEFORE: Stewart, P.J., Boyle, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: January 18, 2018
ATTORNEY FOR APPELLANT

Allison S. Breneman
1220 West 6th Street, Suite 303
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Kelly N. Mason
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} Defendant-appellant Clinton M. Young, III appeals the trial court’s denial

of his motion to suppress a firearm and several baggies of marijuana and pills police

discovered after placing him under arrest. Upon review, we overrule his sole assigned

error and affirm.

       {¶2} The record developed at the suppression hearing reveals that one evening, a

Parma Heights resident called 911 to report two males breaking glass in an intersection.

The caller stated that the suspects were heading south on Edgehill Drive towards the

intersection where Edgehill merges into Pearl Road, and that one of them was on a

bicycle. Two police officers, in separate patrol cars, responded to the scene.

       {¶3} The officers arrived to the vicinity within minutes of being dispatched. The

first officer came upon Young, who was riding a bicycle on the sidewalk, heading south

on Pearl Road near Edgehill Drive. He relayed this information to the second officer and

continued to search for additional suspects.     The second officer saw Young on his

bicycle, immediately turned his cruiser around, and activated his lights. Young stopped.

The other officer arrived shortly thereafter and they questioned Young about what he was

doing and if he knew about the broken glass. They asked Young if they could see his

identification and Young complied.      The officers ran Young’s information through

dispatch and were alerted to the fact that Young had an active warrant. After arresting

Young, police discovered the firearm and contraband. Young moved to suppress the
items arguing that the police did not have a right to stop him. The trial court denied his

motion.

       {¶4} “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.

Because the trial court is in the best position to resolve issues of fact, we defer to its

findings, so long as they are supported by competent, credible evidence. Id. Accepting

those facts as true, and without deference to the trial court, we independently determine

whether those facts satisfy the applicable legal standard. Id.

       {¶5} The Fourth Amendment to the United States Constitution prohibits

warrantless searches and seizures as per se unreasonable, subject to a few exceptions.

Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Any

evidence obtained in violation of the Fourth Amendment may not then be used by the

state against an accused at trial. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6

L.Ed.2d 1081 (1961). An investigatory stop is considered a “seizure” within the context

of the Fourth Amendment when a person is detained, to the extent that a reasonable

person would not feel free to leave. State v. Raine, 8th Dist. Cuyahoga No. 90681,

2008-Ohio-5993, ¶ 18, citing United States v. Montgomery, 377 F.3d 582, 587-588 (6th

Cir.2004).

       {¶6} An investigative or “Terry” stop, where an officer briefly detains a person

based on a reasonable suspicion that the person may be involved in criminal activity, is

one exception to the general prohibition to warrantless searches and seizures. See Terry
v. Ohio, 392 U.S. 1,           88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).   Such stops, when

predicated on reasonable suspicion and conducted for investigative purposes, do not run

afoul of the Constitution. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185, 124

S.Ct. 2451, 159 L.Ed.2d 292 (2004). Reasonable suspicion may be based on information

that is less reliable than what is required to establish probable cause. Alabama v. White,

496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). However, it requires “at

least a minimal level of objective justification.” Illinois v. Wardlow, 528 U.S. 119, 121,

120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

       {¶7} A Terry stop is valid where the officer’s reasonable suspicion is based on

specific and articulable facts that the individual in question is, was, or soon will be

engaged in criminal activity.          State v. Arafat, 8th Dist. Cuyahoga No. 102662,

2016-Ohio-385, ¶ 20. During the stop, police “may ask the detainee a moderate number

of questions to determine his identity * * *.” Berkemer v. McCarty, 468 U.S. 420, 439,

104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The detainee, however, is under no obligation to

respond. Id. And if the detainee’s answers do not give the officer probable cause to

arrest him, then the police must release him. Id. at 439-440.

       {¶8} Consensual encounters with the police are not subject to Fourth Amendment

protections.      State v. White, 8th Dist. Cuyahoga No. 92229, 2009-Ohio-5557, ¶ 9.

During a consensual encounter, police officers need not articulate any reasonable

suspicion.     Id.         They may engage in conversation, ask questions, and check

identification.      Id.    “‘A person is seized within the contemplation 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.’” State v. Miller,

148 Ohio App.3d 103, 2002-Ohio-2389, 772 N.E.2d 175, ¶ 18 (8th Dist.), quoting State v.

Bussey, 8th Dist. Cuyahoga No. 75301, 1999 Ohio App. LEXIS 5707, 4 (Dec. 2, 1999).

Where a person does not attempt to leave, a seizure may still be implicated by the

presence of multiple officers, drawn weapons, physical touching, or language and tone

indicating that compliance is required. See United States v. Mendenhall, 446 U.S. 544,

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

       {¶9} Young argues that the officers’ request for his identification was unnecessary

to their investigation of the broken glass and was only done as a means of checking for

warrants. He argues that he could not, and did not, voluntarily provide his identification

to the police because at the point the officers asked him for it, he was not free to leave

and had no choice but to comply with their request.

       {¶10} When the police encountered Young, one immediately turned around,

activated his lights, and approached him. That officer did not remember exactly what he

said to engage Young, but testified that his tone was not angry or loud, that he did not yell

at Young, nor did he order him to stop his bicycle. The officer testified to saying

something to the effect of “hey, can I talk to you?” The other officer arrived within a

short time, at which point the officers asked Young where he was coming from, where he

was going, what he was doing, and why he was in the area. They asked him if he knew

anything about the broken-glass incident. Neither officer drew a weapon or physically
touched Young. One officer described the manner in which he addressed Young as

being a “normal conversational tone.”

       {¶11} With regard to whether a reasonable person would have felt free to leave at

this point, both of the officers’ testimony, as well as Young’s were clear that Young was

not free to leave. But see Whren v. United States, 517 U.S. 806, 810-813, 116 S.Ct.

1769, 135 L.Ed.2d 89 (1996) (subjective motivations of police are irrelevant in probable

cause analysis). Young argues, therefore, that the encounter was an investigatory stop

and not a consensual encounter. Even assuming that to be true, the police had reasonable

suspicion to believe that Young was involved in the glass-breaking incident. The 911

call indicated that one of the suspects was a male on a bicycle heading in the same

direction as Young was heading. Admittedly this description is generic, but Young fit it.

 This, combined with testimony from one of the officers that there was nobody else

outside at that time of night, compels us to find that the stop was lawful.

       {¶12} “‘Ordinarily, an investigating officer is free to ask a person for identification

without implicating the [Fourth] Amendment.’” Hiibel, 542 U.S. at syllabus, 124 S.Ct.

2451, 159 L.Ed.2d 292, quoting INS v. Delgado, 466 U.S. 210, 216, 80 L.Ed.2d 247, 104

S.Ct. 1758 (1984).      Courts have recognized that police may ask a suspect for

identification during an investigatory stop to check for warrants. See, e.g., State v.

Millerton, 2015-Ohio-34, 26 N.E.3d 317, ¶ 23 (2d Dist.) (citing cases); State v. Smith,

10th Dist. Franklin No. 04AP-859, 2005-Ohio-2560, ¶ 38 (request for identification

immediately related to investigatory stop).
         {¶13} The officers testified that they asked Young for his identification. They

did not demand it or order that he show it. Young complied with the request. He could

have refused. And if his refusal and answers to the officers’ questions did not give them

probable cause to arrest him, he would have been free to go. See McCarty 468 U.S. at

440, 104 S.Ct. 3138, 82 L.Ed.2d 317.

         {¶14} Alternatively, Young argues that we should consider the officers’ request for

identification as a “frisk” because he did not believe he could decline the request. He

cites to no authority for us to conclude as much. Because Young was free to refuse the

request, we likewise decline to view the officers’ request as a “frisk.”

         {¶15} Moreover, even assuming that the officers’ only reason for asking to see

Young’s identification was to check for warrants, our analysis does not change. See

United States v. Young, 707 F.3d 598, 605-606 (6th Cir.2012) (reasonable to run

unrelated warrant check during stop; it may help clear person’s name or provide officer’s

important information about the person). We therefore overrule Young’s assignment of

error.

         {¶16} Judgment affirmed.

         It is ordered that appellee recover of appellant costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

MARY J. BOYLE, J., and
ANITA LASTER MAYS, J., CONCUR
