[Cite as State v. Richardson, 2016-Ohio-5801.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellee,             :             No. 15AP-870
                                                            (C.P.C. No. 14CR-4526)
v.                                               :
                                                         (REGULAR CALENDAR)
Amir H. Richardson,                              :

                 Defendant-Appellant.            :




                                         D E C I S I O N

                                   Rendered on September 13, 2016


                 On brief: Ron O'Brien, Prosecuting             Attorney,    and
                 Barbara A. Farnbacher, for appellee.

                 On brief: Yeura R. Venters, Public Defender, and David L.
                 Strait, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} This is an appeal by defendant-appellant, Amir H. Richardson, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas on appellant's plea of no contest to possession of cocaine following the court's denial
of his motion to suppress.
        {¶ 2} On August 22, 2014, appellant was indicted on one count of possession of
cocaine, in violation of R.C. 2925.11. On March 24, 2015, appellant filed a motion to
suppress.
        {¶ 3} On June 17, 2015, the trial court conducted a hearing on the motion to
suppress. The first witness for the state was Columbus Police Officer Steven Dyer. On
No. 15AP-870                                                                               2

June 13, 2013, Officer Dyer, an officer with ten years experience, was working "the
community summer safety initiative," involving patrol assignments near "hot spots or
problem areas." (Tr. Vol. I at 4.) One of the areas the officers patrolled included an
apartment complex located on Walford Street, Columbus.            The complex consists of
"several buildings" and, according to Officer Dyer, constitutes a "high-crime area" based
on arrests and "complaints from the neighbors." (Tr. Vol. I at 5.)
         {¶ 4} At approximately 6:30 p.m., Officer Dyer encountered appellant in the
hallway of one of the apartment buildings. Officer Dyer and his partner, Officer Dana
Houseberg, were walking through the hallways of the building; the officers had
information that individuals "were selling drugs in the hallway." (Tr. Vol. I at 6.) The
officers entered the building through the east door; the east door lock "had been damaged
and you can go in and out of it." (Tr. Vol. I at 7.) The apartment manager "gave us a key,
too, so we can go in and out whenever we chose." (Tr. Vol. I at 7.) Officer Dyer observed
"nobody on the second floor." (Tr. Vol. I at 7.) He then looked down the lower floor and
"saw two people down there." (Tr. Vol. I at 7.) The officer observed "a female * * *
standing in front of a door," while the other individual, appellant, "was holding a pizza
box." (Tr. Vol. I at 7-8.)
         {¶ 5} The officers walked down to the lower floor and Officer Dyer "greeted the
female, she greeted us back, and she went inside the apartment." (Tr. Vol. I at 8.) Officer
Dyer observed appellant "standing at the end of the hallway." (Tr. Vol. I at 8.) The
officers "walked over towards him. He started walking towards us." (Tr. Vol. I at 8.)
Officer Dyer "greeted him," but appellant "did not answer * * * back." (Tr. Vol. I at 8.)
Officer Dyer then "asked him if he lived here, he said no." (Tr. Vol. I at 8.) Officer
Houseberg "may have asked him a question." (Tr. Vol. I at 8.)
         {¶ 6} Appellant walked past the officers. Officer Dyer asked appellant what he
was "doing here since he doesn't live here, and he says he's visiting somebody in another
building." (Tr. Vol. I at 8.) Officer Dyer testified that appellant was not under arrest at
the time. Appellant, who was walking in the opposite direction of the officers, walked past
the officers and "exited out the east door." (Tr. Vol. I at 9.) Once outside the apartment
building, appellant "sat on the air conditioner [unit] and was eating his pizza." (Tr. Vol. I
at 9.)
No. 15AP-870                                                                                3

       {¶ 7} Officer Dyer asked appellant for identification and appellant provided his
name and date of birth. Officer Dyer ran a warrant check over the radio, and the check
disclosed that appellant had an outstanding warrant. At that time, appellant "had moved
from the air conditioner, he had walked over to the Dumpster, threw his pizza box away
* * * or he was walking in that direction." (Tr. Vol. I at 10.) Officer Dyer then informed
Officer Houseberg, as well as another officer who arrived in a cruiser, that "he has a
warrant, he's a code three, which means he's under arrest." (Tr. Vol. I at 10.)
       {¶ 8} After appellant was placed under arrest, Officer Dyer "immediately walked
into the building" where the officer first observed appellant; in the area where appellant
had been standing, Officer Dyer "saw a plastic Baggie containing crack cocaine." (Tr. Vol.
I at 10-11.) Officer Dyer subsequently advised appellant of his Miranda rights, and
appellant signed a waiver of rights form. The officers then spoke with appellant, and "[h]e
said that the crack was his." (Tr. Vol. I at 12.) Officer Dyer testified that the officers did
not place appellant in custody until it was determined he had an outstanding warrant.
       {¶ 9} On cross-examination, Officer Dyer stated appellant verbally provided the
officer his name and date of birth. On re-direct examination, Officer Dyer stated that the
police cruiser parked near the air conditioning unit was not blocking appellant's ability to
walk away, nor did the officers impede appellant's actions as he walked to the dumpster to
throw away the pizza box.
       {¶ 10} Officer Houseberg, who has been with the department approximately ten
years, testified that Walford Street is a "high-crime area" with "a lot of narcotics activity,
vice complaints, prostitution." (Tr. Vol. I at 28.) On June 13, 2013, Officers Houseberg
and Dyer encountered appellant on the bottom floor of the apartment building. Officer
Dyer "said * * * hi to him." (Tr. Vol. I at 29.) Appellant "didn't really say anything back."
(Tr. Vol. I at 30.) Officer Dyer then "asked him if he lived in the building, [and] he said
no." (Tr. Vol. I at 30.) Officer Houseberg asked appellant "if he was visiting somebody,"
but "[h]e didn't respond." (Tr. Vol. I at 30.)
       {¶ 11} Appellant then "started to walk towards the east door to walk out of the
building." (Tr. Vol. I at 30.) The two officers then followed him, and Officer Dyer "asked
him again * * * what was he doing here, and that's when he said he was visiting someone
else in another building." (Tr. Vol. I at 30.) Officer Houseberg testified that appellant was
No. 15AP-870                                                                               4

free to leave at this time, noting that "he walked past us." (Tr. Vol. I at 30.) The officers
did not tell him to stop; rather, they "simply just walked behind him." (Tr. Vol. I at 30.)
During the encounter, appellant answered some of their questions and declined to answer
some of their questions.
       {¶ 12} Appellant went outside and "was sitting on the air conditioning unit outside
the building." (Tr. Vol. I at 31.) The officers also went outside, and Officer Dyer asked
appellant his name and date of birth. The officers then ran a warrant check. Appellant
"sat there and ate his pizza, and then he ended up walking toward the * * * garbage can,
and threw his * * * pizza box away." (Tr. Vol. I at 43.)
       {¶ 13} After receiving information that appellant had an outstanding warrant, the
officers detained him and placed him in the back of a cruiser. Officer Houseberg testified
that appellant was not placed in custody until the warrant check was completed. Upon
receiving the warrant information, Officer Dyer went back inside the building and found
"suspected crack cocaine in a Baggie next to where we had seen him last." (Tr. Vol. I at
32.) The officers advised appellant of his Miranda rights, and appellant signed a waiver
of rights form. The officers then questioned appellant about the crack cocaine.
       {¶ 14} At the conclusion of the suppression hearing, the trial court announced it
was denying appellant's motion to suppress. On August 17, 2015, appellant appeared
before the trial court and entered a plea of no contest to the charge of possession of
cocaine. By judgment entry filed August 18, 2015, the court sentenced appellant to one-
year of community control.
       {¶ 15} On appeal, appellant sets forth the following assignment of error for this
court's review:
              The trial court erred in overruling a defense motion to
              suppress evidence seized in the unconstitutional search of
              Appellant.

       {¶ 16} Under his single assignment of error, appellant contends the trial court
erred in denying his motion to suppress. Appellant argues that the search in this case did
not fit within any of the recognized exceptions to the warrant requirement. According to
appellant, a reasonable person in his position would not believe he was free to leave and,
therefore, the trial court erred in finding the encounter to be consensual. In addition to
No. 15AP-870                                                                              5

his contention that the encounter was not consensual, appellant further argues the state
failed to present facts to support reasonable suspicion for a "Terry stop."
        {¶ 17} The Supreme Court of Ohio has held that "[a]ppellate review of a motion to
suppress presents a mixed question of law and fact. When considering a motion to
suppress, the trial court assumes the role of trier of fact and is therefore in the best
position to resolve factual questions and evaluate the credibility of witnesses." State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8, 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." Id., citing State v. McNamara, 124 Ohio
App.3d 706, 707 (4th Dist.1997).
        {¶ 18} In general, "[t]he Fourth Amendment of the United States Constitution,
applied to the states through the Fourteenth Amendment, protects persons against
unreasonable searches and seizures." State v. Jones, 9th Dist. No. 12CA010270, 2013-
Ohio-2375, ¶ 8. In order 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 is applicable." State v. Battle, 10th Dist. No. 10AP-1132, 2011-Ohio-6661,
¶ 26. Common exceptions to the warrant requirement include consensual encounters
between citizens and police officers and investigatory or Terry stops. State v. Massingill,
8th Dist. No. 92813, 2009-Ohio-6221, ¶ 13.
        {¶ 19} In this respect, 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
supported by probable cause." State v. Young, 10th Dist. No. 14AP-721, 2015-Ohio-2006,
¶ 16.
        {¶ 20} Not every encounter between a citizen and a law enforcement officer
implicates the state and federal prohibition against unreasonable searches and seizures.
State v. Lenard, 8th Dist. No. 96975, 2012-Ohio-1636, ¶ 37. A police officer "may lawfully
No. 15AP-870                                                                                6

initiate a consensual encounter without probable cause or a reasonable, articulable
suspicion of criminal activity." Id. at ¶ 38. Encounters between police officers and the
public are "consensual when the police approach an individual in a public place, engage
the person in conversation, and request information, as long as the person is free to walk
away." Id. By contrast, "[a] 'seizure' giving rise to Fourth Amendment concerns occurs
only when, in view of all the circumstances surrounding the incident, the police officer,
either by physical force or by show of authority, restrains the person's liberty so that a
reasonable person would not feel free to decline the officer's request and walk away." Id.
The issue of whether a reasonable person would feel free to leave "is dependent on the
totality of the circumstances of the case." State v. Saunders, 2d Dist. No. 22621, 2009-
Ohio-1273, ¶ 16. Factors that may indicate an encounter is not consensual 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.
       {¶ 21} In the present case, Officer Dyer observed appellant in the hallway of an
apartment building and greeted him. Appellant did not initially respond to the officer, but
then responded "no" to the officer's inquiry whether he lived in the building. At that
point, appellant was free to ignore the officer's inquiries and walk away; appellant in fact
walked past the officers and exited the building holding a pizza box. Appellant sat down
on an outdoor air conditioning unit and began to eat his food. Officer Dyer asked
appellant for identification and appellant verbally provided the officer with his name and
date of birth.   During a consensual encounter, "an officer is permitted to request
information, such as identifying information, from the person the officer is talking to."
State v. Starcher, 7th Dist. No. 13 JE 1, 2013-Ohio-5533, ¶ 23. After appellant verbally
provided the officer his name and date of birth, the officers ran a warrant check; shortly
thereafter, appellant moved from the air conditioning unit to a nearby dumpster to throw
away the pizza box. The warrant check disclosed that appellant had an outstanding
warrant, and the officers then placed him under arrest.
       {¶ 22} Ohio courts have deemed an encounter between a police officer and a
civilian to be consensual where such encounter occurs in a public place, the officer asks a
few questions and requests some information, and the record is devoid of evidence
No. 15AP-870                                                                             7

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.
State v. Taylor, 106 Ohio App.3d 741, 752 (2d Dist.1995). See also State v. McDaniel, 91
Ohio App.3d 189, 192 (8th Dist.1993), quoting Florida v. Bostick, 501 U.S. 429, 436
(1991) (conduct of police officers assigned to investigate drug activity inside apartment
building in approaching defendant, who was loitering in hallway, and asking if he had
drugs or weapons did not constitute a seizure as defendant "was 'free to decline the
officers' requests or otherwise terminate the encounter' ").
       {¶ 23} Here, the evidence does not indicate that the officers commanded appellant
to stop or that they blocked his path during the encounter. Based on the testimony
presented, appellant chose to answer certain questions posed by the officers and declined
to answer others.    As noted under the facts, when first approached by the officers,
appellant walked past them and exited the hallway of the building; once outside, he sat on
an outdoor air conditioning unit and ate his food. The record does not suggest that the
officers displayed weapons, physically touched appellant or used language or a tone of
voice conveying that compliance was compelled. Saunders at ¶ 16. Further, the record
indicates the officers did not place appellant in custody until after receiving information
concerning the outstanding warrant.
       {¶ 24} In considering the totality of the circumstances, we find unpersuasive
appellant's contention that a seizure occurred for purposes of the Fourth Amendment.
Accordingly, the trial court did not err in finding the encounter consensual and denying
the motion to suppress.
       {¶ 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 hereby affirmed.
                                                                      Judgment affirmed.

                            TYACK and HORTON, JJ., concur.

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