State v. Purvis , 2014 Ohio 2865 ( 2014 )

[Cite as State v. Purvis, 2014-Ohio-2865.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 13CA0019
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CODY ARCHER PURVIS WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellee CASE Nos. TRC 13-03-03033
CRB 13-03-00452
DECISION AND JOURNAL ENTRY
Dated: June 30, 2014
BELFANCE, Presiding Judge.
{¶1} Plaintiff-Appellant the State of Ohio appeals from the entry granting Defendant-
Appellee Cody Purvis’ motion to suppress. For the reasons set forth below, we affirm.
I.
{¶2} After an encounter with police on March 24, 2013, Mr. Purvis was arrested for
operating a vehicle while intoxicated and underage consumption of alcohol. Ultimately, Mr.
Purvis was charged with violations of R.C. 4301.69(E)(1), R.C. 4511.19(A)(1)(a), and R.C.
4511.19(B)(3). Mr. Purvis filed a motion to suppress, asserting that police did not have
reasonable suspicion to stop him. The State opposed the motion, maintaining that the encounter
between Mr. Purvis and the police was consensual. After a hearing, the trial court granted Mr.
Purvis’ motion to suppress. The State has appealed, raising one assignment of error for our
review.
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II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING PURVIS’S MOTION TO
SUPPRESS ON THE BASIS THAT PURVIS’S CONTACT WITH OFFICER
LASKOWSKI WAS NOT A CONSENSUAL ENCOUNTER.
{¶3} The State asserts in its sole assignment of error that the trial court erred in
granting Mr. Purvis’ motion to suppress because the encounter with Officer Laskowski was
consensual. We do not agree.
{¶4} 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. Consequently, an appellate court must
accept the trial court’s findings of fact if they are supported by competent,
credible evidence. Accepting 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.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶5} The Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the
Ohio Constitution protect individuals from unreasonable searches and seizures. “Searches and
seizures conducted outside the judicial process are per se unreasonable under the Fourth
Amendment, subject to well-delineated exceptions.” State v. Robinson, 9th Dist. Summit No.
26741, 2014-Ohio-579, ¶ 13, citing Katz v. United States, 389 U.S. 347, 357 (1967).
Nonetheless, “‘not all personal intercourse between policemen and citizens involves “seizures”
of persons. Only when the officer, by means of physical force or show of authority, has in some
way restrained the liberty of a citizen may we conclude that a “seizure” has occurred’ within the
meaning of the Fourth Amendment.” State v. Goodloe, 10th Dist. Franklin No. 13AP-141, 2013-
Ohio-4934, ¶ 6, quoting Terry v. Ohio, 392 U.S. 1, 19 (1968), fn. 16.
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{¶6} Thus, “[a] consensual encounter occurs when a police officer approaches a person
in a public place, engages the person in conversation or requests information, and the person
remains free not to answer and walk away.” Goodloe at ¶ 8. “As long as the person to whom
questions are put remains free to disregard the questions and walk away, there has been no
intrusion upon that person’s liberty or privacy as would under the Constitution require some
particularized and objective justification.” United States v. Mendenhall, 446 U.S. 544, 554
(1980). “A consensual encounter can quickly turn into a seizure of the person, requiring at least
a reasonable, articulable suspicion of criminal activity.” State v. Rackow, 9th Dist. Wayne No.
06-CA-0066, 2008-Ohio-507, ¶ 10. “A person is seized within the meaning of the Fourth
Amendment when, in view of the totality of the circumstances, ‘a reasonable person would have
believed that he was not free to leave.’” Id. quoting Mendenhall at 554. “Examples of
circumstances that might indicate a seizure, even where the person did not attempt to leave,
would be the threatening presence of several officers, the display of a weapon by an officer,
some physical touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be compelled.” Mendenhall at 554.
“In the absence of some such evidence, otherwise inoffensive contact between a member of the
public and the police cannot, as a matter of law, amount to a seizure of that person.” Id. at 555.
{¶7} The sole issue placed before the trial court was whether the encounter between
Mr. Purvis and the police was consensual. There was no argument made by the State that police
possessed reasonable articulable suspicion to initially stop Mr. Purvis.
{¶8} Officer Laskowski, who, at the time, was a police officer with the City of Wooster
for two years, testified about his encounter with Mr. Purvis on March 24, 2013, during the early
morning hours. Prior to the encounter, Officer Laskowski had been part of a police response to
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complaints about a loud party at a house on Cedar Lane. Officers broke up the party and spoke
to several people about underage drinking. After that, Officer Laskowski remained in the area,
in his marked cruiser which was parked on Cedar Lane.
{¶9} Around 1:50 a.m., Officer Laskowski observed Mr. Purvis exit the house involved
in the house party, get into a vehicle and travel east on Cedar. The vehicle then pulled into the
driveway of 1566 Cedar Lane. Officer Laskowski then moved his vehicle up to the driveway of
1566. Officer Laskowski saw Mr. Purvis exit the vehicle and called out to ask him if he had just
left from the house a few doors down. Officer Laskowski denied telling Mr. Purvis to stop. Mr.
Purvis told the officer that he was and was picking up his girlfriend. Officer Laskowski then
asked if Mr. Purvis was aware of the prior police activity at that house, to which Mr. Purvis
replied that that was why he was picking up his girlfriend. At this point Officer Laskowski
noticed that Mr. Purvis’ eyes were watery and glassy, which indicated to Officer Laskowski that
Mr. Purvis had possibly been consuming alcohol. According to Officer Laskowski, he never
drew his weapon, told Mr. Purvis that he could not leave, or commanded him to do anything. On
cross examination, Officer Laskowski was asked if he called out to Mr. Purvis and pointed his
flashlight at him. Officer Laskowski did not mention the flashlight in response and instead
testified that he asked Mr. Purvis if he had come from the house a few doors down. Officer
Laskowski was 100% certain that he did not tell Mr. Purvis to stop.
{¶10} Mr. Purvis also testified at the suppression hearing and characterized the events
that evening differently. Mr. Purvis indicated that he had been at the house where the party was.
Approximately 45 minutes after the party broke up, Mr. Purvis was outside talking on the phone
to his girlfriend. His girlfriend asked him to drive her car back to her aunt’s house at 1566 Cedar
Lane. After arriving at 1566 Cedar Lane, he exited the vehicle and proceeded to go towards the
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house. Right “before [he] approached the door [he] heard [‘]hey stop,[’] turned around and s[aw
Officer Laskowski shining] a flashlight in [his] face.” Mr. Purvis testified that Officer
Laskowski “asked [Mr. Purvis] to come over to [Officer Laskowski].” Mr. Purvis stated that, if
he would not have stopped or went over to the officer, Mr. Purvis “would [have] got[ten] not
listening to a police officer[.]” Mr. Purvis believed that “that was the order of the police officer”
and that he “was required to walk over to him.” Mr. Purvis indicated that he did not feel free to
leave.
{¶11} The trial court found that the encounter was not consensual and appeared to credit
Mr. Purvis’ testimony over that of the officer. The trial court stated that it “[didn’t] think there
was any consent here [and] * * * [Mr. Purvis’] testimony [that] the flashlight was shined in his
eyes is further evidence of that. No one consents upon greeting someone or meeting someone in
a voluntary manner to have a flashlight shine in your face at night.” While the trial court’s
factual findings are limited, it is clear from the above that the trial court found Mr. Purvis more
credible than Officer Laskowski. Officer Laskowski never testified to shining a flashlight on Mr.
Purvis and, in fact, did not mention a flashlight at all.
{¶12} As noted above, the trial court, as the trier of fact, was in the best position to
resolve factual questions and evaluate the credibility of the witnesses. Burnside, 100 Ohio St.3d
152, 2003-Ohio-5372, at ¶ 8. It appears that the trial court found Mr. Purvis’ testimony credible.
Taking Mr. Purvis’ testimony as true, as it appears the trial court did, we cannot conclude the
trial court erred in granting the motion to suppress. The State’s main argument appears to be that
the trial court only considered whether Mr. Purvis felt free to leave, not whether a reasonable
person would have felt free to leave under the circumstances. See Rackow, 2008-Ohio-507, at ¶
10. However, immediately prior to rendering a decision in open court, the State reminded the
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court of the correct standard; it noted that “whether or not a consensual encounter occurred is
merely an objective review of the facts. Subjectively what the defendant believed is irrelevant.”
Thereafter, the trial court made its ruling. The language used by the court at the hearing suggests
it was considering whether a reasonable person would have felt free to leave. It framed its
conclusions in terms of people in general, not just what Mr. Purvis would have thought. While
the trial court’s journal entry is less careful with its wording, considering the entirety of the
proceedings, we cannot say that the State has demonstrated that the trial court applied the wrong
legal standard.
{¶13} Additionally, the State contends that even if the trial court did consider the correct
standard, the encounter was consensual. In doing so, the State relies on State v. Patterson, 9th
Dist. Summit No. 23135, 2006-Ohio-5424. Patterson involved a police-citizen encounter in
which police noticed a vehicle running in a parking spot at the back of a Denny’s parking lot
around 3 a.m. Id. at ¶ 5. The vehicle’s windows were fogged up, and the parking lights were on.
Id. Police turned on their red and blue flashers, pulled in front of the vehicle, and exited the
cruiser. Id. At that time, the person inside the running car, turned the car off, exited the vehicle,
and began to walk away from it. Id. The two officers then began to converse with the defendant.
Id.
{¶14} This Court concluded that that portion of the encounter was not a seizure and was
consensual. Id. at ¶ 18. In doing so, we concluded that police did not “use any language or tone
to compel [the defendant’s] responses, or otherwise indicate that [defendant’s] compliance with
[the officer’s] request for information was compelled.” Id. The facts of this matter are
distinguishable. It is clear that the trial court believed that Officer Laskowski told Mr. Purvis to
stop, shined a flashlight in his eyes, and commanded Mr. Purvis to go to Officer Laskowski’s
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location. Those facts were not present in Patterson. The facts here would evidence a
demonstration of police authority that would cause a reasonable person to feel not free to leave
or walk away. See Mendenhall, 446 U.S. at 554; see also Rackow, 2008-Ohio-507, at ¶ 10.
Ordering Mr. Purvis to stop, shining a flashlight in his eyes, and commanding him to come to
Officer Laskowski are facts that tend to indicate that this was not a consensual citizen-police
encounter. See State v. Murray, 8th Dist. Cuyahoga No. 91368, 2009-Ohio-2130, ¶ 36
(consensual encounter until defendant asked to step out of the parked car); State v. Ghiloni, 5th
Dist. Licking No. 08 CA 0091, 2009-Ohio-2330, ¶ 25-26 (non-consensual encounter where
officer called to defendant to come over and instructed defendant to put trash bags down and sit
on the side of the road); State v. Mitchell, 11th Dist. Lake No. 2004-L-071, 2005-Ohio-3896, ¶
13 (consensual when officers did not command defendant to stop); Mitchell at ¶ 14 (consensual
encounter terminated when officer demanded to see defendant’s hands); State v. Cook, 2d Dist.
Montgomery No. 20427, 2004-Ohio-4793, ¶ 15 (consensual encounter ended when officer
commanded defendant to open up her hand). Moreover, although not addressed by the trial
court, we note that Officer Laskowski’s initial questioning was focused on Mr. Purvis’ possible
association with prior police activity; the officer asked Mr. Purvis if he had come from the house
a few doors down and when he indicated he had, the officer asked if Mr. Purvis was aware that
the police had just been at the house to break-up a house party. See Goodloe, 2013-Ohio-4934,
at ¶ 14 (noting that “[t]he accusatory nature of the questioning also creates an air of authority that
could further cause a reasonable person to believe that he was not free to leave and that he had to
answer the officer’s questions.”); State v. Hurt, 2d Dist. Montgomery No. 14882, 1995 WL
259176, *5 (May 5, 1995) (noting that “the type of questions forwarded by officers may lead a
reasonable person to believe he is not free to leave[]”).
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{¶15} Thus, considering the totality of the circumstances, this Court cannot conclude
that the trial court erred in granting Mr. Purvis’ motion to suppress on the basis that the
encounter was not consensual and in light of the fact that no other arguments were placed before
the trial court. We overrule the State’s sole assignment of error.
III.
{¶16} In light of the foregoing, we affirm the judgment of the Wayne County Municipal
Court.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
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WHITMORE, J.
MOORE, J.
CONCUR.
APPEARANCES:
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellant.
DAVID C. KNOWLTON, Attorney at Law, for Appellee.