[Cite as State v. Terry, 2024-Ohio-2723.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 24 CA 00011 CHAD TERRY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 22 CR 00529
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 18, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT STEPHEN T. WOLFE ASSISTANT PROSECUTOR WOLFE & MOTE LAW GROUP, LLC 20 South Second Street 1500 West 3rd Avenue 4th Floor Suite 325 Newark, Ohio 43055 Columbus, Ohio 43212 Licking County, Case No. 24 CA 00011 2
Wise, J.
{¶1} Defendant-Appellant Chad Terry appeals his conviction on one count of
aggravated trafficking in methamphetamine and one count of possession of
methamphetamine entered in the Licking County Court of Common Pleas following a no-
contest plea.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} For purposes of this appeal, the relevant facts and procedural history are
as follows:
{¶4} On November 3, 2022, Appellant Chad Terry was indicted on one count of
Aggravated Possession of Methamphetamine, in violation of R.C. §2925.11(A)(C)(1)(c),
and one count of Aggravated Trafficking in Methamphetamine, in violation of R.C.
§2925.03(A)(2)(C)(1)(d), both felonies of the second degree.
{¶5} On January 9, 2023, Appellant filed a motion to suppress raising three
issues: (1) there was no reasonable and articulable suspicion to detain him; (2) there was
no lawful reason to search his motor vehicle, and (3) the search was done without a
warrant; and any statements obtained were without the benefit of Miranda warnings.
{¶6} On March 24, 2023, a hearing was conducted on Appellant’s motion to
suppress. At the outset of the motion, Appellant's counsel indicated that he was only
arguing whether there was no reasonable, articulable suspicion to seize and detain
Appellant and was waiving the other two arguments raised in the motion. (Supp. T. at 4-
5). Licking County, Case No. 24 CA 00011 3
{¶7} At the suppression hearing, the trial court heard testimony and received
evidence from one witness: Det. Benjamin Martens. Det. Martens testified as to the
following events:
{¶8} On Friday, July 15, 2022, at approximately 12:30 a.m., Det. Martens was
on drug interdiction duty in Hebron, Licking County, Ohio, when he drove past the
Lighthouse Memorial Church located at 2600 Walnut Rd. NE, and noticed a red pickup
truck near a light pole, in the otherwise empty parking lot. (Supp. T. at 7, 8, 10). The truck
was not parked within the lines of the marked parking spots. (Supp. T. at 10). As he drove
past the truck, he was able to see a male in the driver’s seat with his head back and
mouth open, as if he was possibly passed out. Id. Det. Martens then turned around and
pulled into the parking lot, behind the vehicle. (Supp. T. at 11).
{¶9} The parking lot is public and does not have any signs that say "no
trespassing." (Supp. T. at 22-23). Nobody from the church requested that he speak with
the person in the truck, but, knowing that people had previously requested checks of the
parking lot due to criminal activity, he decided to perform a "welfare check." (Supp. T. at
9, 25, 27).
{¶10} Det. Martens first ran the plates of the truck, which came back as being
registered to an elderly woman, later determined to be Appellant Chad Terry's mother.
(Supp. T. at 13, 35). As Det. Martens approached the truck, he observed Appellant in the
driver's seat, asleep, with his mouth open and his hand in a Taco Bell bag. (Supp. T. at
10, 19). Det. Martens also observed a large, fixed-blade knife on the visor on the
passenger side of the vehicle. (Supp. T. at 14). When asked to produce his license,
Appellant picked up a Taco Bell food bag which was on his lap and showed the officer Licking County, Case No. 24 CA 00011 4
the packets of sauces in the bottom of the bag. (Supp. T. at 14). Det. Martens testified
that he asked Appellant to exit the vehicle and Appellant voluntarily placed his hands over
his head. (Supp. T. at 14-15). Det. Martens conducted a pat-down search and ran
Appellant’s identification through the computer which indicated that he had a suspended
driver’s license. (Supp. T. at 15, 17, 34). At that time, Det. Martens informed Appellant
that he would not be permitted to drive the vehicle away. (Supp. T. at 16). Appellant
asked that his girlfriend be permitted to come and pick him up. (Supp. T. at 17-18). Det.
Martens radioed dispatch and inquired as to whether there was a canine drug sniffing unit
in the area that could swing by. (Supp. T. at 19). Det. Martens then handed Appellant his
phone so that he could call his girlfriend to pick him up. (Supp. T. at 20). While Appellant
was waiting for his girlfriend to arrive to pick him up, Det. Martens placed no restrictions
on Appellant as to who he could call or text, nor did he place any restrictions on his
movements, as he was free to move around the parking lot. (Supp. T. at 21).
{¶11} Prior to Appellant’s girlfriend arriving to pick him up, the canine unit arrived
on the scene. (Supp. T. at 21). The canine alerted, and eight baggies of a crystal-like
substance were located, which were later tested and determined to be 23.219 grams of
methamphetamine. (Sent. T. at 13).
{¶12} During Det. Martens testimony, his body-cam video footage was played for
the trial court and was admitted into evidence. (Supp. T. at 12, 44).
{¶13} At the conclusion of the hearing, the trial court indicated that it would issue
a written decision at a later date. (Supp. T. at 46).
{¶14} On May 2, 2023, the trial court issued a decision denying Appellant's motion
to suppress. Licking County, Case No. 24 CA 00011 5
{¶15} On July 10, 2023, a capias was issued for Appellant's arrest.
{¶16} On or about November 6, 2023, Appellant was arrested on the capias and
new counsel was appointed.
{¶17} On January 4, 2024, Appellant entered pleas of no contest to the two counts
contained in the indictment. (Sent. T. at 11).
{¶18} The trial court sentenced Appellant to an indefinite prison sentence of not
less than four (4) years and not more than six (6) years in a state penitentiary. (Sent. T.
at 14).
{¶19} Appellant now appeals, raising the following assignment of error:
ASSIGNMENT OF ERROR
{¶20} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION TO SUPPRESS.”
I.
{¶21} In his sole Assignment of Error, Appellant argues the trial court erred in
denying his motion to suppress. We disagree.
Standard of Review
{¶22} Appellate review of a trial court's decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332 (4th
Dist.1998). During a suppression hearing, the trial court assumes the role of trier of fact
and, as such, is in the best position to resolve questions of fact and to evaluate witness
credibility. State v. Brooks, 75 Ohio St.3d 148, 154 (1996). A reviewing court is bound to
accept the trial court's findings of fact if they are supported by competent, credible
evidence. State v. Medcalf, 111 Ohio App.3d 142, 145 (4th Dist.1996). Accepting these Licking County, Case No. 24 CA 00011 6
facts as true, the appellate court must independently determine as a matter of law, without
deference to the trial court's conclusion, whether the trial court's decision meets the
applicable legal standard. State v. Williams, 86 Ohio App.3d 37, 42 (4th Dist.1993),
overruled on other grounds.
{¶23} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141(1991); State v.
Guysinger, 86 Ohio App.3d 592 (1993). 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. State v. Williams,
86 Ohio App.3d 37 (1993). Finally, assuming the trial court's findings of fact are not
against the manifest weight of the evidence and it has properly identified the law to be
applied, an appellant may argue the trial court has incorrectly decided the ultimate or final
issue raised in the 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 (1994); State v. Claytor, 85 Ohio App.3d 623 (1993); Guysinger, supra.
As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690 (1996), "... as
a general matter determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal." Licking County, Case No. 24 CA 00011 7
{¶24} 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, 1995-Ohio-243; State v. Fanning, 1 Ohio St.3d 19, 20
(1982).
{¶25} Appellant herein is arguing that “the trial court applied the wrong test to the
correct facts and ultimately reached the wrong conclusion when it found that the search
and seizure were pursuant to a valid Terry stop.”
Analysis
{¶26} We will first address Det. Marten's initial encounter with Appellant in the
church parking lot, which Appellant seeks to classify as a Terry stop. See, State v. Crouse,
2017-Ohio-1097, ¶ 17 (5th Dist.).
{¶27} The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution prohibit the government from conducting unreasonable
searches and seizures of persons or their property. Terry v. Ohio, 392 U.S. 1; State v.
Andrews, 57 Ohio St.3d 86, 87 (1991). “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 ‘seizure’ has occurred.” 94 CA 21 (2nd Dist. 1994), quoting Terry,
supra, at 19, fn. 16, 88.
{¶28} Upon review, we find Det. Marten’s conversation with Appellant to have
been a consensual encounter. Ohio law recognizes three types of police-citizen
encounters: consensual encounters, Terry stops, and arrests. State v. Taylor, 106 Ohio
App.3d 741, 747-49 (2nd Dist.1995). Licking County, Case No. 24 CA 00011 8
{¶29} 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. 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 (1991); see also INS v. Delgado, 466 U.S. 210, 212,
(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 (citations omitted).
The person approached, however, need not answer any question put to him, and may
continue on his way. Florida v. Royer, 460 U.S. 491, 497–98 (1983). 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 (1991), the encounter is consensual and no
reasonable suspicion is required. Bostick, 501 U.S. at 434.
{¶30} 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. Licking County, Case No. 24 CA 00011 9
{¶31} “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. Such a stop is valid if the officer had reasonable and articulable
suspicions of criminal activity. Id. at 749. 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. 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, 64 Ohio St.2d 291 (1980), 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.
{¶32} 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.
{¶33} The third type of police-citizen encounter is an arrest. For an arrest to be
valid the officer must have “probable cause to believe a crime has been committed and Licking County, Case No. 24 CA 00011 10
the person stopped committed it.” State v. Richardson, 2005-Ohio-554, ¶ 27 (5th Dist.);
Flowers, supra, 909 F.2d at 147.
{¶34} The first issue we must address is whether in fact the stop in this case was
a Terry stop or a consensual police encounter. We review the issue of the existence of a
consensual encounter by examining the totality of the circumstances. See Florida v.
Royer, 460 U.S. 491, 506–507 (1983).
{¶35} This Court has previously recognized a distinction between a Terry stop and
a consensual encounter. State v. Daniels, 2003-Ohio-2492 (5th Dist.), quoting Taylor,
supra, 106 Ohio App.3d 741, 747 (2nd Dist.1995). A consensual encounter occurs “ * * *
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.”
State v. Daniels, 2003-Ohio-2492, ¶ 12 (5th Dist.)., quoting State v. Taylor, 106 Ohio
App.3d 741, 747 (1995). Thus, police officers are permitted to engage in “consensual
encounters” with citizens without running afoul of Fourth Amendment prohibitions on
searches and seizures. See United States v. Hinojosa, 534 Fed.Appx. 468, 470 (6th Cir.
2013), citing Florida v. Bostick, 501 U.S. 429, 434 (1991); United States v. Waldon, 206
F.3d 597, 602–03 (6th Cir. 2000). Furthermore, a police officer's request to examine a
person's identification does not render an encounter nonconsensual. See Florida v.
Bostick, supra, citing Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216
(1984). Accord State v. Miller, 2002-Ohio-2465 (5th Dist.). The relevant inquiry is whether
a reasonable person would feel free to disregard the officer's request and leave the scene.
See State v. Miller, 2002-Ohio-2389. Licking County, Case No. 24 CA 00011 11
{¶36} Upon review, under the totality of the circumstances, we find that the events
in the case sub judice constituted a consensual encounter such that the Fourth
Amendment was not implicated. United States v. Mendenhall, 446 U.S. 544 (1980). As
set forth above, Det. Martens approached Appellant, asleep in his vehicle, which was not
even parked in a parking spot, in an empty church parking lot, after midnight.
“[A]pproaching the occupants of a parked car to ask questions does not constitute a
seizure.” State v. Jack, 2004-Ohio-775(2nd Dist.), citing State v. Carter, 2004-Ohio-454,
(2nd Dist.). Det. Martens did not block the vehicle, did not have his lights activated, and
did not have his weapon drawn, nor did he direct any orders at Appellant. State v. Imani,
2017-Ohio-8113 ¶ 26 (5th Dist.).
{¶37} While Appellant argues Marten's approach and the ensuing conversation
resulted in an unlawful police detention under the Fourth Amendment, we find the
encounter between Appellant and Martens to be consensual for purposes of the Fourth
Amendment because Martens had no reason or intent to detain Appellant at that point.
Det. Marten’s approach of Appellant in the parking lot and their ensuing conversation was
entirely voluntary and Appellant was free to leave.
{¶38} Martens did not activate his lights or siren, he did not block Appellant’s
vehicle with his cruiser, he did not place Appellant in the back of the cruiser or place him
in handcuffs. Crouse, supra, 2017-Ohio-1097, ¶ 21 (5th Dist.), citing Brendlin v. California,
551 U.S. 249, 255 (2007), (indicating that a seizure occurs “[w]hen the actions of the
police *** show an unambiguous intent to restrain”). See, also, United States v. Hinojosa,
supra, at 470 (finding that officers had left the defendant with “a reasonable means of Licking County, Case No. 24 CA 00011 12
egress such that [he] was physically capable of terminating the encounter and leaving the
area at any time.”)
{¶39} Appellant also argues even if the Court finds the initial “detention” was
proper and/or that it was a consensual encounter, the subsequent actions of the officer
exceeded the scope of the possible trespassing violation and resulted in the incident
turning into an improper detainment or custodial arrest prior to the K-9 drug sniff of the
vehicle.
{¶40} Det. Marten’s request for Appellant to exit his vehicle did not change the
consensual nature of the encounter. An officer may ask a person to exit a vehicle during
a lawful traffic stop without having reasonable suspicion of any further criminal activity.
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977); State v. Kirby, 2024-Ohio-2543, ¶ 25
(5th Dist.).
{¶41} Likewise, Det. Marten’s request for identification did not cause the
encounter to become nonconsensual. State v. Isles, 2020-Ohio-3061 (5th Dist.) (“a
request for identification, in and of itself, is not unconstitutional, and is ordinarily
characterized as a consensual encounter, not a custodial search) and State v. Matheny,
2022-Ohio-3447 (5th Dist).
{¶42} Although Appellant did not challenge what occurred past this point, we find
the use of a drug-detection dog does not constitute a “search” and an officer is not
required, prior to a dog sniff, to establish either probable cause or a reasonable suspicion
that drugs are concealed in a vehicle. State v. Camp, 2014-Ohio-329 ¶30 (5th Dist.), citing
Illinois v. Caballes, 543 U.S. 405, 409 (2005); United States v. Place, 462 U.S. 696 (1983);
State v. Carlson, 102 Ohio App.3d 585, 594 (9th Dist.1995); United States v. Seals, 987 Licking County, Case No. 24 CA 00011 13
F.2d 1102, 1106 (5th Cir. 1993). Further, if a trained narcotics dog alerts to the odor of
drugs from a lawfully detained vehicle, an officer has probable cause to search the vehicle
for contraband. United States v. Reed, 141 F.3d 644 (6th Cir. 1998) (quoting United
States v. Berry, 90 F.3d 148, 153 (6th Cir. 1996), cert. denied 519 U.S. 999 (1996));
accord, United States v. Hill, 195 F.3d 258, 273 (6th Cir. 1999); United States v. Diaz, 25
F.3d 392, 394 (6th Cir. 1994); State v. French, 104 Ohio App.3d 740 (12th Dist.1995),
abrogated on different grounds, City of Dayton v. Erickson, 76 Ohio St.3d 3 (1996).
{¶43} Once the drug-sniffing canine alerted to Appellant's car, the officers had
probable cause to search that vehicle for contraband. Id. No violation of Appellant's Fourth
Amendment rights has been demonstrated. Id.
Lack of Causal Connection
{¶44} While Appellant is not challenging anything that happened after the canine
unit arrived or that Det. Martens called for a canine unit, Appellant seems to be making
an argument that any evidence seized should have been suppressed under the doctrine
of derivative evidence. The derivative evidence rule “holds that evidence is illegally
seized, and must be suppressed, when its discovery was the product of a constitutional
violation.” State v. Adams, 2011-Ohio-4008, ¶ 20 (2nd Dist.). “ ‘There must be a causal
connection between the constitutional violation and the derivative evidence for the latter
to be suppressed. This stands to reason because the latter is excluded solely because of
its connection to the constitutional violation.’ Katz, ‘Ohio Arrest, Search and Seizure,’
2008 Ed., § 28:3.” Id.; See State v. Addison, 5th Dist. 2022-Ohio-2440, ¶¶ 10-11(5th Dist.). Licking County, Case No. 24 CA 00011 14
{¶45} As set forth above, we do not find a constitutional violation in this case.
{¶46} Appellant’s assignment of error is overruled.
{¶47} The judgment of the Court of Common Pleas of Licking County, Ohio, is
affirmed
By: Wise, J.
Delaney, P. J., and
Gwin, J., concur.
JWW/kw (0717)