State v. Rappley , 2013 Ohio 964 ( 2013 )

[Cite as State v. Rappley, 2013-Ohio-964.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
SEBASTIAN K. RAPPLEY
Defendant-Appellant
Appellate Case No. 25156
Trial Court Case No. 11-CR-2693
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 15th day of March, 2013.
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MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301
West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BRENT E. RAMBO, Atty. Reg. #0076969, 15 W. Fourth Street, Suite 250, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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WELBAUM, J.
{¶ 1} Defendant-Appellant, Sebastian Rappley, appeals from his conviction and
sentence for possession of cocaine in violation of R.C. 2925.11(A) and possession of drug
paraphernalia in violation of R.C. 2925.14(C)(1). He contends the trial court erred by overruling
his motion to suppress evidence that he claims was obtained as a result of an illegal seizure and
pat-down. Specifically, he argues that the trial court erroneously characterized his encounter with
a Dayton Police Officer as a consensual encounter. Rappley also argues that no reasonable
articulable suspicion existed upon which to conduct a pat-down search upon Rappley.
{¶ 2} We conclude the trial court did not err in overruling the motion to suppress.
The facts in the record do not establish an illegal seizure occurred, but instead an initial
consensual encounter occurred that subsequently became an investigatory detention. The facts
also establish the pat-down was conducted as a result of a reasonable articulable suspicion that
Rappley may have been armed and dangerous.
I. Facts
{¶ 3} On August 4, 2011, at approximately 4:45 p.m., Officer Sean Humphrey of the
City of Dayton Police Department, and his partner, Officer Bower, were on a routine patrol near a
high rise apartment building located at 2765 Wentworth Avenue in Dayton, Ohio. The area
surrounding the apartment building has numerous problems with weapons, drug activity,
drinking, loitering, and violent crime.
{¶ 4} While patrolling the area, the officers pulled their cruiser into a parking lot
located behind the apartment building. The officers began to approach the back of the apartment
building on foot when they noticed a male individual carrying what looked like a woman’s purse.
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The male carrying the purse was later identified as the Appellant, Sebastian Rappley.
{¶ 5} After observing Rappley carrying the purse, the officers began to walk in his
direction. When Rappley noticed the officers walking toward him, Rappley walked up to a
female, and then he and the female ducked behind a large bush. The officers lost sight of them
for a short period of time and could not tell what was going on behind the bush. Officer
Humphrey believed Rappley and the female went behind the bush either to obtain or to conceal
something.
{¶ 6} Shortly after the officers witnessed Rappley and the female duck behind the
bush, the officers saw them emerge from the bush and begin to walk toward a BP gas station.
They walked together at first, and then parted ways. Rappley continued to walk toward the BP
station, and the female began to walk in the direction of the apartment building. Officer
Humphrey went to make contact with Rappley and Officer Bower went to make contact with the
female.
{¶ 7} Officer Humphrey initiated the contact with Rappley by walking up to him and
saying that he needed to speak with him. Rappley stopped walking as Officer Humphrey
approached him. Officer Humphrey did not order Rappley to stand or stay with him. At this
time, Officer Humphrey noticed Rappley was no longer carrying the purse. Following the initial
contact, Humphrey requested Rappley’s name and Rappley complied. Officer Humphrey then
advised that he was going to conduct a pat-down for safety concerns. Officer Humphrey
testified that he had been in law enforcement for 14 years, and based on his experience he was
concerned about the presence of weapons due to Rappley’s earlier evasive behavior.
{¶ 8} Officer Humphrey began the pat-down process by standing behind Rappley and
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having him lift his arms. Officer Humphrey asked Rappley if he had anything sharp on him that
would poke Humphrey. Rappley responded by saying that he had a “hot stem.” Humphrey
understood a “hot stem” to be a glass or metal pipe used to smoke crack cocaine. Officer
Humphrey asked where the pipe could be found, and Rappley advised it was in his pocket.
Officer Humphrey patted down the outside of the pocket where Rappley said the pipe was
located. Humphrey testified that he had felt crack pipes in the past, and was familiar with how
they feel. When he patted down Rappley’s pocket, he realized it contained a crack pipe, and
removed the pipe from Rappley’s pocket. Humphrey noticed the end of the pipe was warm, like
it had just been used. He also observed a “chunk” of crack cocaine inside the pipe.
{¶ 9} Following the pat-down, Officer Humphrey handcuffed Rappley and escorted
him to the cruiser. During this time, Rappley made a statement to the officer that he had “just hit
it.” Officer Humphrey testified that he believed this meant Rappley had smoked the crack
cocaine. Officer Humphrey did not ask any questions prior to Rappley’s statement and
proceeded to read him his Miranda Rights. After the Miranda rights were read to Rappley, he
acknowledged that he understood his rights and was willing to answer questions without a lawyer
being present. Rappley then made statements in the cruiser on the way to jail. Rappley never
asked for an attorney and never asked to remain silent. Rappley answered questions appropriately
and was coherent.
II. Course of Proceedings
{¶ 10} On October 24, 2011, Rappley was indicted for possession of cocaine in
violation of R.C. 2925.11(A) and possession of drug paraphernalia in violation of R.C.
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2925.14(C)(1). On December 12, 2011, Rappley filed a motion to suppress all evidence and
statements obtained during his encounter with Officer Humphrey. On February 7, 2012, the trial
court conducted an evidentiary hearing on Rappley’s motion to suppress, and subsequently
overruled the motion. The trial court held the encounter between Rappley and Officer
Humphrey was consensual and the subsequent pat-down was lawful. On February 9, 2012, the
Appellant entered a no contest plea and was sentenced to eight months in prison for the
possession of cocaine and a concurrent 30-day prison sentence for the possession of drug
paraphernalia. Rappley then filed this appeal, arguing that the trial court erroneously overruled
his motion to suppress.
III. The Trial Court did not Err in Overruling Rappley’s Motion to Suppress
{¶ 11} Appellant’s sole Assignment of Error states:
The trial court erred in overruling Appellant’s Motion to Suppress.
{¶ 12} In support of his Assignment of Error, Rappley argues his encounter with
Officer Humphrey was an illegal seizure that the trial court erroneously characterized as a
consensual encounter. Rappley also argues that no reasonable articulable suspicion existed upon
which to conduct a pat-down. Rappley claims all contraband and incriminating statements
obtained by Officer Humphrey derived from the unlawful seizure and pat-down and are therefore
subject to suppression pursuant to the fruit of the poisonous tree doctrine. We disagree.
A. Standard of Review
{¶ 13} Generally, when reviewing a decision regarding a motion to suppress “an
appellate court must accept the trial court’s findings of fact if they are supported by competent,
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credible evidence.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8,
citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “Accepting these facts as
true, it 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 N.E.2d 539 (4th Dist. 1997).
{¶ 14} Rappley makes note of United States Supreme Court opinion Ornelas v. United
States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), for the proposition that
determinations of reasonable suspicion should be reviewed de novo on appeal. Id. at 699.
However, in Ornelas, the Supreme Court also states, “we hasten to point out that a reviewing
court should take care both to review findings of historical fact only for clear error and to give
due weight to inferences drawn from those facts by resident judges and local law enforcement
officers.” Id. Based on this language, this district previously held that the standard of review
set forth in Ornelas is “substantially the same as the one this court and other appellate courts in
Ohio have traditionally used.” State v. Gipp, 2d Dist. Montgomery No. 17369, 1998 WL 906462,
*3 (Dec. 31, 1998).
{¶ 15} Accordingly, we find the trial court’s finding of facts is supported by competent,
credible evidence, and hereby approve it and adopt it as our own. Using these facts we therefore
must determine: (1) the nature of the encounter between Officer Humphrey and Rappley; and (2)
whether a reasonable suspicion existed upon which to effectuate a pat-down.
B. The Three Types of Police-Citizen Encounters
{¶ 16} The Fourth Amendment to the United States Constitution protects individuals
from unreasonable searches and seizures. State v. Taylor, 106 Ohio App.3d 741, 747, 667
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N.E.2d 60 (2d Dist. 1995). This protection is not implicated in every situation where police
officers have contact with an individual. Id., citing California v. Hodari D., 499 U.S. 621, 111
S.Ct. 1547, 113 L.Ed.2d 690 (1991). The United States Supreme Court has created three
categories of police-citizen contact to identify situations where the Fourth Amendment
protections apply: (1) consensual encounters; (2) investigative detentions, also known as Terry
stops; or (3) seizures that are equivalent to arrests. Taylor at 747-749, citing Florida v. Royer,
460 U.S. 491, 501-507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1982).
{¶ 17} Consensual encounters take place when “the police merely approach a person in
a public place, engage the person in conversation, request information, and the person is free not
to answer and walk away.” Taylor at 747, citing United States v. Mendenhall, 446 U.S. 544,
553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The Fourth Amendment protections are not
implicated in consensual encounters unless “the police officer has by either physical force or
show of authority restrained the person’s liberty so that a reasonable person would not feel free to
decline the officer’s requests or otherwise terminate the encounter.” Taylor at 748, citing
Mendenhall at 554; Terry v. Ohio, 392 U.S. 1, 16 and 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Encounters that involve “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” are all examples
of circumstances where consensual encounters may become seizures. Mendenhall at 554-555.
However, an officer’s request to examine a person’s identification or search a person’s
belongings does not make an encounter nonconsensual. Taylor at 747, citing Florida v.
Rodriguez, 469 U.S. 1, 4-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984); Florida v. Bostik, 501 U.S.
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429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The request to conduct a pat-down also does not
render an encounter nonconsensual. See State v. Hardin, 2d Dist. Montgomery No. 20305,
2005-Ohio-130, ¶ 19-20.
{¶ 18} The second type of encounter, known as a Terry stop, is an investigatory
detention that “is more intrusive than a consensual encounter, but less intrusive than a formal
custodial arrest." Taylor at 748. During a Terry stop, "[l]aw enforcement officers may briefly
stop and/or detain an individual for investigation if the officers have a reasonable, articulable
suspicion that criminal activity may be afoot.” State v. Martin, 2d Dist. Montgomery No. 20270,
2004-Ohio-2738, ¶ 10, citing Terry at 30. Officers may also "perform limited protective
searches for concealed weapons when the surrounding circumstances created a suspicion that an
individual may be armed and dangerous." State v. Jordan, 2d Dist. Montgomery No. 22271,
2008-Ohio-199, ¶ 9, citing Terry.
{¶ 19} “The third type of encounter involves a seizure that is the equivalent of an arrest.
To perform such a seizure the police officer must have probable cause.” Taylor, 106 Ohio
App.3d at 749, 667 N.E.2d 60, citing State v. Barker, 53 Ohio St.2d 135, 372 N.E.2d 1324(1978). “A seizure is equivalent to an arrest when: (1) there is an intent to arrest; (2) the seizure
is made under real or pretended authority; (3) it is accompanied by an actual or constructive
seizure or detention; and (4) it is so understood by the person arrested.” Id.C. The Encounter Was Initially Consensual
{¶ 20} The trial court found that Rappley’s encounter with Officer Humphrey was
consensual. An example of a consensual encounter can be found in State v. Springer, 2d Dist.
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Montgomery No. 24353, 2011-Ohio-4724. In Springer, an officer noticed that an individual
walking on a roadway put his head down and turned in a different direction as the officer’s
cruiser was approaching the individual’s general vicinity. Id. at ¶ 8. The officer got out of the
vehicle and walked on foot to approach the individual. Id. at ¶ 9. The officer did not order the
individual to stop and he did not draw his service revolver. Id. at ¶ 11. The officer asked for
the individual’s name and whether he lived in the apartment complex. Id. at ¶ 12 -13. The
individual responded to the officer’s questions in a cooperative manner and consented to a
pat-down search. Id. at ¶ 13-15. This court held the transaction preceding the consent to search
was a consensual encounter because the officer did nothing that would cause a reasonable person
to believe the individual was not free to leave. Id. at ¶ 64.
{¶ 21} The initial encounter between Rappley and Officer Humphrey is similar to the
encounter in Springer. In this case, Officer Humphrey was alone and in a public place when he
approached Rappely. He approached Rappley on foot and Rappley voluntarily stopped walking
so that Officer Humphrey could speak with him. The record indicates that Officer Humphrey
did not order Rappley to stand or stay with him. Using a normal tone of voice, Officer
Humphrey asked Rappley to identify himself, and Rappley cooperated. Officer Humphrey did
not display his weapon, and did not physically touch Rappley. Up to this point, there is nothing
in the record establishing that Rappley was restrained by Officer Humphrey and was not free to
walk away and leave.
{¶ 22} Accordingly, we hold the initial encounter between Officer Humphrey and
Rappley was consensual.
D. The Encounter Became an Investigatory Detention Upon Conducting a Pat-down
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{¶ 23} When Officer Humphrey informed Rappley that he was going to conduct a
pat-down, the encounter with Rappley became nonconsensual. We base this finding on the fact
that Officer Humphrey did not request Rappley’s permission to pat him down, but told him he
was going to pat him down. In State v. Montgomery, 2d Dist. Montgomery No. 15232, 1996
WL 283943 (May 31, 1996), we found that an initially consensual encounter was no longer
consensual once an officer ordered an individual to take his hand out of his pocket. Id. at *3,
citing State v. Daniel, 81 Ohio App.3d 325, 328, 610 N.E.2d 1099 (1992). The underlying
reasoning for this decision was that “a reasonable person would not have felt restricted by
questions, but would have felt restrained by orders.” Id. Accordingly, we find it would be
reasonable for Rappley to have felt restricted and unable to leave when Officer Humphrey told
him he was conducting a pat-down as opposed to asking him. Therefore, we find that at the time
Officer Humphrey informed Rappley of the pat-down, the encounter was no longer consensual.
{¶ 24} A nonconsensual investigatory detention, however, does not qualify as an illegal
seizure if the detaining officer has a “reasonable, articulable suspicion that criminal activity may
be afoot.” Martin, 2004-Ohio-2738, at ¶ 10, citing Terry, 392 U.S. at 30. Whether the detention is
reasonable is determined by reviewing the totality of the surrounding circumstances. State v.
Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489, (1988). The totality of the circumstances must "
‘be viewed from the eyes of the reasonable and prudent police officer on the scene guided by his
experience and training.’ " Bobo at 179, quoting United States v. Hall, 525 F.2d 857, 859 (D.C.
Cir. 1976).
{¶ 25} In State v. Allen, 2d Dist. Montgomery No. 24587, 2012-Ohio-3709, this district
determined that a reasonable articulable suspicion justified the investigative detention of an
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individual who was crouched behind a pillar in front of a closed business and doing something
with his hands that the officer could not see. Id. at ¶ 23. The pillar was located in an area where
a lot of drug trafficking and arrests occurred. Id. Furthermore, in Bobo, the Ohio Supreme
Court found that an individual’s furtive movements of popping up and ducking down from inside
a car indicated he may have been hiding something, and it was one of many factors used to
establish reasonable suspicion. Bobo at 179. While an officer’s presence in a high crime area, or
a furtive movement, does not by itself justify an investigatory detention, these factors are
considered under the totality of the circumstances test. State v. Roberts, 2d Dist. Montgomery No.
23219, 2010-Ohio-300, ¶ 18; Bobo at 179.
{¶ 26} In this case, Officer Humphrey testified that he observed Rappley carrying what
appeared to be a woman’s purse in a high crime area. When the officer started walking toward
Rappley, and Rappley saw him, Rappley approached a female and the two of them ducked behind
a large bush. Officer Humphrey could not see what Rappley and the female were doing behind
the bush. When they emerged from the bush, Rappley was no longer carrying the purse.
Officer Humphrey, who has been employed in the field of law enforcement for 14 years,
considered Rappley’s behavior evasive and it caused him concern. Based upon the totality of the
circumstances, it was reasonable to detain Rappley because a reasonable, prudent police officer
would be suspicious of criminal activity upon seeing a man carrying a purse and ducking behind
a bush after noticing a police officer approaching.
{¶ 27} For the foregoing reasons, we hold there was no illegal seizure of Rappley’s
person because the encounter between Officer Humphrey and Rappley was initially a consensual
one that turned into an appropriate investigatory detention due to a reasonable suspicion of
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criminal activity.
E. Reasonable Articulable Facts Existed Upon Which to Perform a Pat-Down
{¶ 28} “Under Terry, a limited protective search of the detainee's person for concealed
weapons is justified only when the officer has reasonably concluded that ‘the individual whose
suspicious behavior he is investigating at close range is armed and presently dangerous to the
officer or to others * * *.’ ” State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993);
State v. Molette, 2d Dist. Montgomery No. 19694, 2003–Ohio–5965, ¶ 13. However, according
to State v. Smith, 56 Ohio St.2d 405, 384 N.E.2d 280 (1978), an officer need not be certain an
individual is armed to effectuate a pat-down.
{¶ 29} In Terry, the court was concerned with striking a balance between
the safeguarding of a person's right to be free from unreasonable searches and
seizures and protecting a police officer from bodily harm and preventing and
deterring crime where there is less than probable cause to make an arrest and conduct
a full incidental search of a suspect. The court found*** that the proper balance must
“permit a reasonable search for weapons for the protection of the police officer,
where he has reason to believe that he is dealing with an armed and dangerous
individual, regardless of whether he has probable cause to arrest the individual for a
crime. The officer need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the circumstances would be warranted
in the belief that his safety or that of others was in danger.” An officer may
therefore initiate a protective search when his suspicions are reasonably aroused. Id.
at 407.
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{¶ 30} In this case, Officer Humphrey testified that the pat-down was for his safety
because he was unsure of what illegal activity Rappley was involved in. Officer Humphrey was
concerned Rappley may have had a weapon because of the earlier evasive behavior of ducking
behind the bush after he noticed the officer was aware of him. Furthermore, Officer Humphrey
could not see what Rappley was doing behind the bush, as he could have been concealing a
weapon. These facts combined with the fact that they were in a high crime area, made Officer
Humphrey concerned for his safety. Although Humphrey was not absolutely certain that
Rappley was carrying a weapon, it was reasonable and prudent for him to be concerned for his
safety given that he was unable to see what Rappley was doing behind the bush. We therefore
find that the limited, protective pat-down search conducted by Officer Humphrey was lawful.
{¶ 31} We hold there was no illegal pat-down of Rappley because the pat-down
conducted by Officer Humphrey was based on reasonable articulable facts suggesting that
Rappley may have been armed and dangerous.
{¶ 32} Because there was no illegal seizure or pat-down in this case, Rappley’s Fourth
Amendment rights were not violated. Therefore, all the contraband and incriminating statements
obtained during the encounter and pat-down are admissible and not subject to suppression under
the fruit of the poisonous tree doctrine.
{¶ 33} Rappley’s sole Assignment of Error is overruled.
IV. Conclusion
{¶ 34} Having overruled Rappley’s sole Assignment of Error, the judgment of the trial
court overruling Rappley’s motion to suppress is affirmed.
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FAIN, P.J. and FROELICH, J., concur.
Copies mailed to:
Michele D. Phipps
Brent E. Rambo
Hon. Dennis J. Adkins