State v. Shrimplin

2021 Ohio 3720

• Court: Ohio Court of Appeals
• Decided: October 18, 2021
• Docket: 2021CA0006
• Status: Published

Opinion

[Cite as State v. Shrimplin, 2021-Ohio-3720.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2021CA0006 JEFFREY C. SHRIMPLIN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. CRB 2000369(A)(B)

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 18, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT A. SKELTON JEFFREY G. KELLOGG LAW DIRECTOR 5 South Washington Street 760 Chestnut Street Millersburg, Ohio 44654 Coshocton, Ohio 43812 Coshocton County, Case No. 2021CA0006 2

Wise, J.

{¶1} Appellant appeals his sentence and conviction on one count of obstructing

official business and one count of possession of drug paraphernalia, entered on January

13, 2021, in the Coshocton Municipal Court, following a plea of no contest.

{¶2} Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and procedural history are as follows:

{¶4} On July 2, 2020, Deputy Jeremy Johnson of the Coshocton County Sheriff’s

Office was dispatched to Conesville, Ohio, in Coshocton County, on a report of a

suspicious vehicle with male passengers inside, driving slowly and looking into houses.

(T. at 3, 17). Deputy Johnson did not know the identity of the caller whose call resulted in

the dispatch. (T. at 3, 17). When Deputy Johnson arrived in Conesville, he encountered

a male and female in a truck. They stated they thought it was the Appellant, Jeffrey

Shrimplin, in the vehicle, and it was a gold Buick LeSabre. (T. at 4). Deputy Johnson did

not know the occupants of the truck, and they did not provide their names. (T. at 18). The

occupants of the truck advised Deputy Johnson as to the general direction where they

last saw the vehicle. (T. at 4). The incident in question took place in the middle of the

afternoon. (T. at 4).

{¶5} The deputy then spotted the vehicle matching the description in a back

alley. (T. at 4, 11). The deputy did not know the name of the road. (T. at 4). The road was

not wide enough for two vehicles to pass. (T. at 5). When Dep. Johnson came around a

corner in the road, he observed a gold Buick LeSabre, with three males inside, stopped

in the roadway with another vehicle facing it traveling the opposite direction. (T. at 4-5). Coshocton County, Case No. 2021CA0006 3

When Dep. Johnson pulled behind the vehicle, Appellant pulled off to the left side of the

narrow roadway and stopped. (T. at 5, 18). Dep. Johnson stopped his vehicle, exited, and

approached the driver's window of the vehicle and made contact with the three individuals

in the car. (T. at 6). Appellant was the driver of the vehicle, and the two passengers were

in the back of the vehicle. Deputy Johnson told the court that he found it unusual that

there was no one in the front passenger seat. (T. at 27). He asked if there had been

another passenger in the vehicle and was told that there had been but that they had just

dropped him off. (T. at 29).

{¶6} Dep. Johnson did not activate his overhead lights. (T. at 5).

{¶7} Upon approaching the vehicle, Dep. Johnson did not ask for Appellant's

identification because he was familiar with Appellant. (T. at 19). Dep. Johnson informed

Appellant that he had received a report of a suspicious vehicle in the area. (T. at 24).

{¶8} The men informed the officer that they were parked in the yard of a person

that the unidentified passenger previously dated, that he had approached the home and

knocked on the door, but when no one answered he left a note in the door. (T. at 14, 28).

Appellant also told the officer that the men had been out looking at a job site where they

were going to remove some trees.

{¶9} Deputy Johnson asked if there had been another passenger in the car riding

in the front seat. Appellant stated that his step-son had been with them, but that he had

dropped him off at his house.

{¶10} The right rear passenger exited the vehicle with a cigarette, and Dep.

Johnson requested identification from him and the other rear passenger. (T. at 6, 21). The Coshocton County, Case No. 2021CA0006 4

right rear passenger walked around the vehicle and provided identification to Dep.

Johnson. (T. at 20-21).

{¶11} The left rear passenger stated that he did not have any identification, did

not know his social security number, and only provided a name and date of birth, which

the deputy was unable to confirm through dispatch. (T. at 6, 21). Because he was unable

to confirm this passenger’s identity, he believed the passenger gave him false

information. (T. at 8, 13, 21, 25). He asked the passenger if he had a driver’s license and

was told that he had a State ID in the state of Ohio. The deputy stated that if that were

the case, his name and information should have been in the system. (T. at 8-9). Appellant

repeatedly told the deputy that he did not know the passenger and had just met him. (T.

at 14).

{¶12} At approximately 11 ½ minutes into the encounter while the deputy was still

trying to ascertain the identity of the backseat passenger, Appellant asked Dep. Johnson

if he could leave the scene to take his car home, explaining that he was hot and nervous

about being parked in someone’s yard. (T. at 22-23). Deputy Johnson told Appellant that

the property owner was not going to give Appellant any trouble because he was there

with law enforcement.

{¶13} Deputy Johnson then asked Appellant the location of the tree job they had

been looking at. After Appellant described the location of the job and the name of the

person who wanted him to remove the trees, at approximately 13 ½ minutes into the

conversation, Deputy Johnson viewed what he believed to be drug paraphernalia, like a

smoking device, between Appellant’s legs. (T. at 10, 23). When he asked Appellant what

he had between his legs, Appellant became nervous, started to stutter and fidget and Coshocton County, Case No. 2021CA0006 5

tried to place a beverage can over top of the instrument. (T. at 10-11). Ultimately

Appellant was arrested. (T. at 23).

{¶14} On July 6, 2020, Defendant-Appellant Jeffrey C. Shrimplin was arraigned

on one count of Obstruction of Official Business, a misdemeanor of the 2nd degree, in

violation of R.C. §2921.31(A), and one count of Possession of Drug Paraphernalia, a

misdemeanor of the 4th degree, in violation of R.C. §2925.14(C)(1).

{¶15} On December 7, 2020, Appellant filed a Motion for Leave to File a Motion

to Suppress Evidence Instanter, along with the Motion to Suppress Evidence. Appellant

also filed a motion to convert the bench trial to a suppression hearing.

{¶16} On December 9, 2020, Appellee filed a Memorandum in Opposition to

Appellant's Instanter Motion.

{¶17} The trial court granted Appellant’s motion for leave, and a hearing on the

Motion to Suppress was scheduled for December 16, 2020.

{¶18} On December 16, 2020, a hearing on the motion to suppress was held

wherein the court heard the above testimony from Deputy Johnson. The trial court took

the matter under advisement. Both parties were granted leave to file written arguments.

{¶19} By Judgment Entry filed January 11, 2021, the trial court denied Appellant's

Motion to Suppress Evidence.

{¶20} A bench trial was scheduled for January 13, 2021, at 11:00 A.M.

{¶21} On January 13, 2021, Appellant entered a no contest plea to the charge of

Obstructing Official Business, a 2nd degree misdemeanor, and Possession of Drug

Paraphernalia, a 4th degree misdemeanor. The trial court imposed a fine of $150.00 on

each charge and ordered Appellant to pay court costs. The trial court sentenced Appellant Coshocton County, Case No. 2021CA0006 6

to serve 10 days in the Coshocton County jail, with 7 days suspended, on condition that

Appellant pay his fines by April 7, 2021, commit no other criminal offenses for two (2)

years, and notify the clerk of any address change.

{¶22} Appellant now appeals, assigning the following error for review:

ASSIGNMENT OF ERROR

{¶23} “I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT/

APPELLANT'S MOTION TO SUPPRESS EVIDENCE.”

I.

{¶24} In his sole Assignment of Error, Appellant claims that the trial court erred

when it denied his motion to suppress. We disagree.

{¶25} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to

apply the appropriate test or correct law to the findings of fact. In that case, an appellate

court can reverse the trial court for committing an error of law. See Williams, supra.

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final

issues raised in a motion to suppress. When reviewing this type of claim, an appellate

court must independently determine, without deference to the trial court's conclusion,

whether the facts meet the appropriate legal standard in any given case. State v. Curry,

95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). As the United States Supreme Coshocton County, Case No. 2021CA0006 7

Court held in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911

(1996), "... as a general matter determinations of reasonable suspicion and probable

cause should be reviewed de novo on appeal."

{¶26} In this case, Appellant argues this Court should review the trial court’s

judgment to deny the motion to suppress to hold that either the trial court failed to apply

the appropriate test or correct law and/or the trial court incorrectly decided the ultimate or

final issues raised in her motion to suppress.

{¶27} When ruling on a motion to suppress, the trial court assumes the role of

trier of fact and is in the best position to resolve questions of fact and to evaluate the

credibility of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995-Ohio-243,

652 N.E.2d 988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).

{¶28} We begin our analysis by noting that Appellant admits there was no traffic

stop. (T. at 2). Appellant admits the encounter is consensual up to the time Deputy

Johnson requested identification from the passengers in the vehicle. Appellant argues

that he was detained upon insufficient facts to support reasonable suspicion of criminal

activity.

{¶29} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibit the government from conducting unreasonable

searches and seizures of persons or their property. Terry v. Ohio (1968), 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d

1271. “However, not every contact between a police officer and citizen implicates the

Fourth Amendment. ‘Only when the officer, by means of physical force or show of

authority, has in some way restricted the liberty of a citizen may we conclude that a Coshocton County, Case No. 2021CA0006 8

“seizure” has occurred.’ ” State v. Lopez (Sept. 28, 1994), Greene App. No. 94 CA 21,

1994 WL 527670, quoting Terry, supra, at 19, fn. 16, 88 S.Ct. 1868.

{¶30} Ohio law recognizes three types of police-citizen encounters: consensual

encounters, Terry stops, and arrests. State v. Taylor (1995), 106 Ohio App.3d 741, 747–

49, 667 N.E.2d 60.

{¶31} A consensual encounter occurs when a police officer approaches a person

in a public place, engages the person in conversation, requests information, and the

person is free to refuse to answer and walk away. Id. at 747, 667 N.E.2d 60. The United

State Supreme Court “[has] held repeatedly that mere police questioning does not

constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d

389 (1991); see also INS v. Delgado, 466 U.S. 210, 212, 104 S.Ct. 1758, 80 L.Ed.2d 247

(1984). “[M]erely approaching an individual on the street or in another public place [,]”

seeking to ask questions for voluntary, uncoerced responses, does not violate the Fourth

Amendment. United States v. Flowers, 909 F.2d 145, 147 (6th Cir.1990). “[E]ven when

officers have no basis for suspecting a particular individual, they may generally ask

questions of that individual; ask to examine the individual's identification; and request

consent to search his or her luggage.” Bostick, 501 U.S. at 434–435, 111 S.Ct. 2382

(citations omitted). The person approached, however, need not answer any question put

to him, and may continue on his way. Florida v. Royer (1983), 460 U.S. 491, 497–98 [103

S.Ct. 1319, 75 L.Ed.2d 229]. Moreover, he may not be detained even momentarily for his

refusal to listen or answer. Id. So long as a reasonable person would feel free “to

disregard the police and go about his business,” California v. Hodari D., 499 U.S. 621,

628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991), the encounter is consensual and no Coshocton County, Case No. 2021CA0006 9

reasonable suspicion is required. Bostick, 501 U.S. at 434, 111 S.Ct. 2382, 115 L.Ed.2d

389.

{¶32} A consensual encounter does not implicate the Fourth Amendment's

protection against unreasonable searches and seizures unless the police officer has

restrained the person's liberty by a show of authority or physical force such that a

reasonable person would not feel free to decline the officer's request or otherwise

terminate the encounter. Id. at 747–48, 667 N.E.2d 60.

{¶33} A consensual encounter remains consensual even if police officers ask

questions, ask to see the person's identification, or ask to search the person's belongings,

provided the police do not convey a message that compliance with their requests is

required. Id. at 435, 111 S.Ct. 2382; Florida v. Rodriguez, 469 U.S. 1, 4–6, 105 S.Ct. 308,

83 L.Ed.2d 165 (1984); Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216,

104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). In Mendenhall, supra, at 554, 100 S.Ct. at 1877,

64 L.Ed.2d at 509, the United States Supreme Court cited examples of circumstances

indicating a seizure occurred even where the person did not attempt to leave, including

the threatening presence of several officers, the display of a weapon by an officer, some

physical touching of the person, or the use of language or tone of voice indicating

compliance with the officer's request might be compelled.

{¶34} “The second type of encounter is a ‘Terry stop’ or an investigatory detention.

The investigatory detention is more intrusive than a consensual encounter, but less

intrusive than a formal custodial arrest. The investigatory detention is limited in duration

and purpose and can only last as long as it takes a police officer to confirm or to dispel

his suspicions.” Id. at 748, 667 N.E.2d 60. Such a stop is valid if the officer had reasonable Coshocton County, Case No. 2021CA0006 10

and articulable suspicions of criminal activity. Id. at 749, 667 N.E.2d 60. However, for the

propriety of a brief investigatory stop pursuant to Terry, the police officer involved “must

be able to point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868.

Such an investigatory stop “must be viewed in the light of the totality of the surrounding

circumstances” presented to the police officer. State v. Freeman (1980), 64 Ohio St.2d

291, 414 N.E.2d 1044, paragraph one of the syllabus. A determination of probable cause

is made from the totality of the circumstances. Factors to be considered include an

officer's observation of some criminal behavior by the defendant, furtive or suspicious

behavior, flight, events escalating reasonable suspicion into probable cause, association

with criminal and locations. Katz, Ohio Arrest, Search and Seizure (2001 Ed.), 83–88,

Sections. 3.12–3.19.

{¶35} A person is seized under this category when, in view of all the

circumstances surrounding the incident, by means of physical force or show of authority

a reasonable person would have believed that he was not free to leave or is compelled

to respond to questions. This temporary detention, although a seizure, does not violate

the Fourth Amendment.

{¶36} “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.” Id. at

747–748, 667 N.E.2d 60. (Citations omitted). (Emphasis added).

{¶37} In the instant case, the trial court found that the encounter began as a

consensual one, which then led to a brief investigatory detention. After reviewing the

transcript under the totality of the circumstances, we agree with the trial court. Coshocton County, Case No. 2021CA0006 11

{¶38} Appellee’s interaction with Appellant began as a consensual encounter

which then progressed to an investigative or Terry stop such that the Fourth Amendment

was not implicated. United States v. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870,

64 L.Ed.2d 497.

{¶39} Here, the deputy received a dispatch report of a suspicious vehicle followed

by a personal report of a suspicious vehicle being driven by Appellant. He then discovered

Appellant in the reported vehicle stopped in an alley behind a house. When he

approached the vehicle he observed that there was no passenger in the front seat but

that there were two passengers in the back seat. Appellant claimed that they had just

dropped off the front seat passenger.

{¶40} The deputy asked what the men were doing and requested identification

from the two rear passengers. The deputy did not request identification from Appellant

because he has had previous contact with law enforcement. Only one of the rear

passengers was able to provide identification. Appellant told the deputy that he did not

know the passenger who had no identification. The men also told the deputy that that

passenger had also approached the rear of the one of the houses.

{¶41} At approximately 11 ½ minutes in to the encounter, while the deputy was

still talking to the rear seat passenger trying to ascertain his identity, Appellant asked the

deputy if he could take his car back to his house because he was nervous about being

parked in a stranger’s yard. The deputy responded that because he was there with law

enforcement, the property owner would not give him any trouble.

{¶42} The deputy then asked Appellant about the tree job he had mentioned

earlier in their conversation, which was given as the reason the men were out together. Coshocton County, Case No. 2021CA0006 12

At approximately 13 ½ minutes in to the encounter, the deputy observed what he believed

to be drug paraphernalia on the seat between Appellant’s legs and began to investigate

further, which ultimately led to Appellant’s arrest.

{¶43} Upon our review of these facts, the record and the body-cam video, we find

that the deputy’s approach of the vehicle and ensuing conversation with Appellant and

his passengers began as a consensual encounter. Once the men reported to the deputy

that one of them had approached the rear of one of the houses and then was either unable

or unwilling to provide credible proof of his identity, the deputy was justified in detaining

Appellant and the passengers while he continued his investigation. We further find that

the deputy did not tell Appellant that he could not leave the scene, only that he did not

need to worry about being parked on someone else’s property at that time.

{¶44} For the above reasons, we find that Deputy Johnson possessed a

reasonable, articulable suspicion to justify a brief investigatory detention of Appellant.

{¶45} Appellant’s sole assignment of error is overruled.

{¶46} For the foregoing reasons, the judgment of the Municipal Court of

Coshocton County, Ohio, is hereby affirmed.

By: Wise, J. Baldwin, P. J., and Gwin, J., concur.

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