[Cite as State v. Brown, 2019-Ohio-3160.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio,                                    :

                Plaintiff-Appellee,               :
                                                                     No. 18AP-754
v.                                                :               (C.P.C. No. 17CR-2909)

William T. Brown,                                 :           (REGULAR CALENDAR)

                Defendant-Appellant.              :



                                            D E C I S I O N

                                     Rendered on August 6, 2019


                On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B.
                Swanson for appellee. Argued: Valerie B. Swanson.

                On brief: Yeura R. Venters, Public Defender, and Ian J.
                Jones for appellee. Argued: Ian J. Jones.

                  APPEAL from the Franklin County Court of Common Pleas

KLATT, P.J.

        {¶ 1} Defendant-appellant, William T. Brown, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to his no contest plea to possession of heroin following the trial court's denial of his motions
to suppress. Because the trial court did not err in denying appellant's motions to suppress,
we affirm.
        {¶ 2} On May 26, 2017, a Franklin County Grand Jury indicted appellant on one
count of possession of heroin, in violation of R.C. 2925.11, a felony of the fifth degree.
Appellant initially entered a plea of not guilty.
        {¶ 3} On April 17, 2018, appellant filed motions to suppress evidence and
statements. The trial court conducted an evidentiary hearing on the motions on August 29,
2018.
No. 18AP-754                                                                               2


       {¶ 4} Columbus Police Officer Kyle Beatty was the only witness who testified at the
suppression hearing. Beatty averred that on June 2, 2016, he and his fellow officer, Erik
Bateman, were on patrol in a marked police cruiser in the area of Fifth and Benfield at
approximately 4:48 p.m. The officers were in the area based upon complaints of narcotics
being sold out of a "suspected drug house" on Fifth. (Aug. 29, 2018 Tr. at 13.) To that end,
he and Bateman were "looking for a consistency of narcotics sales, people in and out quick,
people hanging around, prostitutes in the area, things like that." Id. at 12.
       {¶ 5} The officers stopped in front of the house and observed appellant and another
man standing outside near the driveway. When the men saw the officers, both immediately
turned their backs and started looking up at a tree. When the officers pulled their cruiser
next to the men, neither of them turned around or acknowledged the officers in any way.
Because the men were standing in front of a suspected drug house and "their actions
happened the second we pulled down the street," the officers believed the men "were
engaged in drug activity from that house." Id. at 15. The officers exited their cruiser
simultaneously; neither drew a weapon.
       {¶ 6} The officers approached the men and engaged them in conversation.
Specifically, the officers asked if either of them lived in the house; both men denied living
there. Appellant then "started walking away very slowly with his back towards us." Id. at
17. Appellant did not say anything to the officers as he walked away. Because he was
walking so slowly, Beatty thought appellant was "contemplating running." Id. at 17. Beatty
stayed with appellant's companion while Bateman followed appellant down the street for
approximately 10 to 12 feet. According to Beatty, Bateman did not tell appellant to stop
walking, did not impede his travel, did not display his firearm, did not act aggressively
toward appellant, and did not otherwise do anything to make appellant think he was not
free to leave the area.
       {¶ 7} As Bateman was following appellant, he noticed that appellant "had his hand
clenched" and that there was a piece of plastic protruding from his hand. Id. at 18, 21.
Because he was aware that narcotics are often transported in plastic bags, Bateman asked
appellant what was in his hand. Appellant opened his hand slightly and Bateman saw more
of the plastic bag. Bateman asked appellant, "Well, what is it?" Id. at 21. Appellant opened
his hand and Bateman observed what he suspected was heroin inside the bag. Bateman
No. 18AP-754                                                                                 3


confiscated the bag and gave it to Beatty, who also suspected that the bag contained heroin.
Bateman then placed appellant under arrest.
       {¶ 8} Beatty acknowledged that his testimony about Bateman's observations
regarding the plastic bag in appellant's hand and his questioning of appellant as to the
contents of the bag was based upon his review of the U-10 police report which was
generated collaboratively by both officers following the incident. Beatty testified that at the
time of the incident at issue, he had worked with Bateman for seven years and had no
reason to believe that Bateman was untruthful in preparing the U-10. The U-10 was
admitted into evidence over appellant's objection.
       {¶ 9} On cross-examination, Beatty acknowledged that when he initially
approached appellant and the other man, he did not see them exchange anything between
them, did not see either of them holding what could be considered a weapon, did not hear
their conversation and did not see them commit a crime. Beatty further acknowledged that
he did not hear the conversation between Bateman and appellant.
       {¶ 10} At the conclusion of the suppression hearing, the trial court denied the
motions to suppress. In particular, the court concluded that the encounter between the
officers and appellant was consensual until the point where appellant opened his hand and
the officers observed what they believed to be heroin in plain view, at which time there was
probable cause to detain and arrest appellant.
       {¶ 11} Immediately following the trial court's decision on the motions to suppress,
appellant withdrew his not guilty plea and entered a plea of no contest to the charge of
heroin possession. By judgment entry filed August 30, 2018, the court sentenced appellant
to three years of community control.
       {¶ 12} On appeal, appellant sets forth the following assignment of error for this
court's review:
               THE TRIAL COURT ERRED IN DENYING APPELLANT'S
               MOTION TO SUPPRESS EVIDENCE, AS POLICE
               ILLEGALLY    DETAINED      APPELLANT     BEFORE
               REASONABLE SUSPICION OF CRIMINAL ACTIVITY
               EXISTED AND THE STATE DID NOT MEET ITS BURDEN BY
               A PREPONDERANCE OF THE EVIDENCE THAT AN
               ILLEGAL SEIZURE HAD NOT OCCURRED.
No. 18AP-754                                                                                  4


       {¶ 13} Under his single assignment of error, appellant contends that the trial court
erred in denying his motions to suppress. Appellant argues that a reasonable person in his
position would not believe he was free to leave and, therefore, the trial court erred in finding
the encounter with the police to be consensual. In addition to his contention that the
encounter was not consensual, appellant further argues that the state failed to present facts
to support reasonable suspicion justifying an investigatory stop pursuant to Terry v. Ohio,
392 U.S. 1 (1968).
       {¶ 14} Appellate review of a trial court's disposition of a motion to suppress presents
a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
¶ 8. When considering a motion to suppress, the trial court assumes the role of trier of fact
and is thus in the best position to resolve factual questions and evaluate the credibility of
witnesses. Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, an appellate court
must accept the trial court's findings of fact if they are supported by competent, credible
evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982). Further, "[a]ccepting these
facts as true, the appellate court must then independently determine, without deference to
the conclusion of the trial court, whether the facts satisfy the applicable legal standard."
Burnside at ¶ 8, citing State v. McNamara, 124 Ohio App.3d 706, 707 (4th Dist.1997).
       {¶ 15} "In general, '[t]he Fourth Amendment to the United States Constitution,
applied to the states through the Fourteenth Amendment, protects persons against
unreasonable searches and seizures.' " State v. Richardson, 10th Dist. No. 15AP-870, 2016-
Ohio-5801, ¶ 18, quoting State v. Jones, 9th Dist. No. 12CA010270, 2013-Ohio-2375, ¶ 8.
For a search or seizure to be reasonable, it must be based upon probable cause and executed
pursuant to a warrant, unless an exception to the warrant requirement applies. State v.
Battle, 10th Dist. No. 10AP-1132, 2011-Ohio-6661, ¶ 26. Common exceptions to the warrant
requirement include consensual encounters between the police and the public and
investigatory or Terry stops. Richardson at ¶ 18, citing State v. Massingill, 8th Dist. No.
92813, 2009-Ohio-6221, ¶ 13.
       {¶ 16} In this regard, the United States Supreme Court recognizes three categories
of police-citizen interactions: (1) "a consensual encounter, which requires no objective
justification"; (2) "a brief investigatory stop or detention, which must be supported by
reasonable suspicion of criminal activity"; and (3) "a full-scale arrest, which must be
No. 18AP-754                                                                                5


supported by probable cause." State v. Young, 10th Dist. No. 14AP-721, 2015-Ohio-2006,
¶ 16.
        {¶ 17} The Fourth Amendment is not implicated in all personal encounters between
police officers and citizens. Richardson at ¶ 20, citing State v. Lenard, 8th Dist. No. 96975,
2012-Ohio-1636, ¶ 37. A police officer "may lawfully initiate a consensual encounter
without probable cause or a reasonable, articulable suspicion of criminal activity." Id.,
citing Lenard at ¶ 38. A consensual encounter occurs when the police approach an
individual in a public place, engage the individual in conversation and the individual
remains free to walk away. Young at ¶ 16. A consensual encounter remains as such even
when the police ask questions, ask to see identification, or ask to search the individual's
belongings, as long as the police do not convey a message that compliance with their
requests is required. Id.
        {¶ 18} In contrast, a "seizure" which implicates the Fourth Amendment occurs only
when, in view of all the circumstances surrounding the incident, the police, either by
physical force or by show of authority, restrain the person's liberty so that a reasonable
person would not feel free to decline the police requests and walk away. Richardson at ¶ 20.
Whether a reasonable person would feel free to leave depends upon the totality of
circumstances in the case. Id., citing State v. Saunders, 2d Dist. No. 22621, 2009-Ohio-
1273, ¶ 16. Factors indicating that an encounter is not consensual and the person has been
seized include: " 'the threatening presence of several officers, the officer's wearing of a
uniform, the display of a weapon, the touching of the person, the use of language or a tone
of voice conveying that compliance is compelled, and approaching the person in a non-
public place.' " Id., quoting Saunders at ¶ 16.
        {¶ 19} The present appeal involves the distinction between a consensual encounter
and an investigatory stop. As this court noted in Richardson, Ohio courts have found
police/citizen encounters to be consensual where the "encounter occurs in a public place,
the officer asks a few questions and requests some information, and the record is devoid of
evidence indicating a display of force or authority that would make a reasonable person
believe he or she was not free to decline the officer's requests or otherwise terminate the
encounter." Id. at ¶ 22, citing State v. Taylor, 106 Ohio App.3d 741, 752 (2d Dist.1995);
State v. McDaniel, 91 Ohio App.3d 189, 192 (8th Dist.1993).
No. 18AP-754                                                                               6


       {¶ 20} Indeed, this case factually is very similar to State v. Simmons, 12th Dist. No.
CA2012-11-229, 2013-Ohio-5088, and State v. Kidd, 2d Dist. No. 17899 (Apr. 7, 2000). In
Simmons, while on patrol in an area known for illegal drug activity, the police observed
Simmons sitting on the stairs outside an apartment building, looking down at something in
his left hand. When Simmons noticed the patrol car, he acted nervous, clenched his hands,
and brought his left hand down to his left side. He then stood up and began walking toward
the patrol car with his left fist clenched by his side. The police exited the patrol car,
approached Simmons, and asked him what he had in his hand. Simmons responded that
he had nothing in his hand and started to walk away with his left hand remaining clenched.
The police then observed a clear plastic baggie protruding from the back of Simmons' closed
hand. Noting that plastic baggies are a typical means of transporting drugs, the police again
asked Simmons if he had anything in his hand. Simmons again responded in the negative
while continuing to walk away. The police then grabbed Simmons' left hand. Simmons
pulled away and put the plastic baggie in his jacket pocket. Following a scuffle with
Simmons, the police retrieved the baggie, which contained what appeared to be crack
cocaine, and placed him under arrest. Simmons was subsequently indicted for possession
of cocaine and resisting arrest.
       {¶ 21} Simmons filed a motion to suppress, which the trial court denied on grounds
that the police interaction with Simmons was consensual until the point where they
grabbed his left hand. The appellate court agreed, specifically finding that "the initial
encounter between [Simmons] and [the police] was consensual." Id. at ¶ 15. The court
noted that during their initial interaction with Simmons, the police did not use any force,
did not exercise their authority as police officers, did not indicate that Simmons could not
leave, and did nothing to impede Simmons' travel. The court further noted that until the
point the police grabbed Simmons' left hand after spotting the baggie clenched in his fist,
the police "did no more than approach [Simmons] in a public area and ask two reasonable
questions: 'what's in your hand' and 'do you have anything in your hand.' " Id. The court
reasoned that the police did not need reasonable suspicion merely to approach Simmons in
order to make reasonable inquiries of him. Id. The court found that once the police grabbed
Simmons' hand, the encounter evolved into a Terry stop.
No. 18AP-754                                                                               7


       {¶ 22} In Kidd, a police officer, while in a marked police cruiser, observed Kidd
walking down the street in the opposite direction. Kidd was swinging his left arm in a
normal walking fashion, but kept his right arm rigid and his right fist clenched. Without
turning on the overhead cruiser light or sounding his siren or horn, the officer drove up to
Kidd and asked him through the passenger side window what he had in his hand. Kidd
opened his clenched fist and dropped several pieces of what was later identified as crack
cocaine. Kidd was arrested and indicted; he thereafter filed a motion to suppress. The
appellate court concurred in the trial court's conclusion that Fourth Amendment
guarantees were not implicated by the encounter because there was neither an exertion of
physical force nor show of authority by the police such that Kidd would not have felt free to
decline to respond to questions or otherwise terminate the encounter.
       {¶ 23} In the present case, Officers Beatty and Bateman observed appellant and his
companion outside a suspected drug house, exited their police cruiser, and engaged the two
men in conversation. Although both officers were dressed in official police uniforms, were
in a marked police cruiser, and were presumably armed, there is no evidence that they
activated their cruiser lights or sirens, displayed their weapons or blocked appellant's
travel. At that point, appellant was free to walk away from the encounter; indeed, he did
so. Although Bateman followed appellant for 10 to 12 feet and asked him what was in the
plastic bag appellant had clenched in his hand, there is no evidence that he commanded
appellant to stop, ordered him to open his hand, or blocked his path during the encounter.
The testimony presented by Beatty both from his own observations and his review of the
information provided by Bateman in the U-10 report established that appellant chose to
show Bateman what was in his hand. The record does not suggest that Bateman displayed
his weapon, physically touched appellant, or used language or a tone of voice conveying
that compliance with his request for information about what was in his hand was
compelled. Thus, the interaction was a consensual encounter until the point where
appellant was seized after opening his hand and showing Bateman he was in possession of
illegal drugs. If, in the course of a consensual encounter, the police observe contraband in
"plain view," the police develop probable cause with respect to that item and may act
accordingly. State v. Adams, 10th Dist. No. 18AP-330, 2019-Ohio-1323, ¶ 13.
No. 18AP-754                                                                              8


        {¶ 24} Based upon the totality of the circumstances in this case, we conclude that a
reasonable person would not have believed that he or she was not free to leave or otherwise
terminate the encounter with the police. Accordingly, the trial court did not err in finding
the encounter consensual and denying the motions to suppress. Having determined that
the trial court did not err when it found that appellant's encounter with the police was
consensual and the appellant freely and voluntarily showed the police the contraband, we
need not address the parties' alternative arguments based on the investigatory stop
exception under Terry. See State v. Hannah, 10th Dist. No. 15AP-212, 2015-Ohio-4964,
¶ 24.
        {¶ 25} Based on the foregoing, appellant's single assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                       Judgment affirmed.

                           SADLER and DORRIAN, JJ., concur.
