Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Montgomery
County Attorney for Plaintiff-Appellee
W. WILDER, Atty. Attorney for Defendant-Appellee
1} Pursuant to R.C. 2945.67(A) and Crim.R. 12(K),
the State of Ohio appeals from a judgment of the Montgomery
County Court of Common Pleas, which granted Anthony
Celaya's motion to suppress. For the following reasons,
the trial court's judgment will be affirmed.
Facts and Procedural History
2} The evidence at the suppression hearing
established the following facts.
3} At approximately 1:30 a.m. on April 2, 2018,
Dayton Police Officer Stephen Quigney was sitting in his
cruiser in a residential area, talking to another officer
(Officer Halley), who was seated in another cruiser. At that
point, Quigney saw an individual crossing the street with a
large object. It was cold and snowy, and the object was
wrapped in plastic. Quigney was trying to figure out if the
individual (Celaya) had just stolen something. Celaya went
into an alley behind homes. Both cruisers pulled into in the
alley and both officers (Quigney and Halley) got out. They
saw Celaya digging into a trash can.
4} Quigney exited his cruiser, approached Celaya,
and asked, "What's up man? What are we doing
tonight?" Celaya responded that he was
"scrapping." When this encounter occurred, Celaya
was standing with a large trash can mostly, if not entirely,
behind him and to his left; a fence and garage were also
behind him. There were garages and fencing down the sides of
the alley, and fencing was directly opposite Celaya, on the
other side of the alley. The entrance to the alley to
Celaya's right was blocked by the two police cars, and
the left end of the alley (through which Celaya might have
exited) was open. Both officers were standing next to Celaya,
one in front, and one to his right (the side nearest the
police cruisers). Quigney and Halley were in the uniform of
the day and were armed. The trial court found that Celaya was
blocked in on all sides by the police, a trash can, and a
5} When Quigney was standing about four feet from
Celaya, he said, "Got anything on you, bud? You know, a
lot of scrappers got knives on them, you got any
knives?" Celaya responded that he had a couple of
knives. Quigney then asked, "Do you mind if I get them
while I'm talking to you?" Celaya did not
specifically give consent at this point, but pointed to his
right front pants pocket and said he was pretty sure they
were in there.
6} Officer Quigney again asked if Celaya would mind
if he got the knives out, and Celaya said, "Go
ahead." See State's Ex. 1. Quigney searched
Celaya's right front pants pocket. Quigney testified that
he "reached in and pulled out" a small Tupperware
container; he stated that the Tupperware was the first item
that he encountered and that he needed to remove the
Tupperware to search the pocket for knives. Quigney further
testified that he further searched the pocket and found a
7} However, the cruiser video reflects that Quigney
took one item out and placed it in his own pocket. Quigney
then looked through Celaya's right jacket pocket, taking
items out, looking at them, and reinserting them into the
coat pocket. While searching at this point, Quigney also
asked Celaya if he had anything in his backpack. There was no
response that is material.
8} The video showed that Officer Quigney returned to
Celaya's right front pants pocket and pulled out a small
Tupperware container. The officer asked Celaya,
"What's this?" Celaya said that he didn't
know what it was and that he had found it in the trash. At
this juncture, Quigney took off Celaya's backpack and
handcuffed him. This was less than a minute after the
encounter first began. Referring to the object he had taken
out of the pants pocket, Quigney said, "I'm going to
look at that in a minute. There's something in
there." The container was clear and was not very large;
it was about an inch and a half around, was squared at the
top, and went down at an angle.
9} Quigney continued to search Celaya and to
question him without administering Miranda warnings.
During the questioning, Quigney asked Celaya if he had
anything else on him. During this time, Celaya admitted that
he had a couple of needles in his backpack.
10} Quigney also asked about the object Celaya had
been carrying (a television, which turned out not to have
been stolen). State's Ex. 1 at 1:34:23 a.m. In addition,
Quigney asked questions about other items in Celaya's
pockets. At 1:35:40 a.m. and before looking again at the
container, Quigney said, "Just to let you know, the
reason you're in handcuffs is because that looks to be
crystal meth * * * in the tub." Id.
11} After the police finished searching Celaya,
Officer Quigney placed Celaya in his police cruiser. The
officers searched Celaya's backpack. They did not find
any additional drugs, but they did find several syringes and
some empty gel caps.
12} Celaya was then transported to jail and charged
with possession of methamphetamine and possession of drug
13} Celaya testified at the suppression hearing on
his own behalf. He stated that when the police pulled up, he
had been going through trash cans for scrap metal. He had
been arrested many times before and had experience with how
the police conduct stops. Celaya testified that, when he saw
the police, he knew what was going to happen: he was going to
be asked what he was doing and then searched. In addition,
Celaya said that he did not feel free to leave or run in the
opposite direction because of the way the officer presented
himself. He stated that the officer was asking questions,
walking straight at him, and that if he turned and left, it
would not end well for him. According to Celaya, he had tried
that before and had been grabbed immediately. Celaya
testified that he did not give the officer consent to search
his jacket pocket or backpack or to search for anything other
than one pocketknife. Celaya stated that the Tupperware was
removed from his jacket pocket.
14} In April 2018, the State filed an indictment
charging Celaya with aggravated possession of drugs
(methamphetamine), a fifth-degree felony, and possession of
drug paraphernalia, a first-degree misdemeanor. Celaya
subsequently filed a motion to suppress, alleging that he was
detained without reasonable suspicion of criminal activity,
that the police search exceeded the scope of his consent, and
that any evidence and statements should be suppressed as
fruit of the poisonous tree. Celaya further claimed that his
statements should be suppressed under Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
15} After hearing the evidence and watching the
video, the trial court orally ruled that this was not a
consensual encounter, that the police did not have a
reasonable, articulable suspicion that criminal activity was
afoot, and that the officers exceeded the scope of
Celaya's consent. The trial court found that Officer
Quigney had removed the Tupperware container of
methamphetamine from Celaya's jacket pocket. The court
filed a written judgment entry, which granted the motion to
suppress for the reasons stated during the hearing.
16} The State appeals from the trial court's
ruling, raising two assignments of error.
Lawfulness of the Stop
17} In its first assignment of error, the State
claims that the trial court "erred in finding that the
initial contact between Celaya and the police was an unlawful
investigatory detention and not a consensual encounter."
The State further contends that, even if the encounter were
an investigatory detention, the officers had a reasonable
articulable suspicion of criminal activity to justify the
18} In ruling on a motion to suppress, the trial
court "assumes the role of the trier of fact, and, as
such, is in the best position to resolve questions of fact
and evaluate the credibility of the witnesses."
State v. Retherford, 93 Ohio App.3d 586, 592, 639
N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d
Dist. Montgomery No. 22897, 2010-Ohio-116, ¶ 30.
Accordingly, when we review suppression decisions, we must
accept the trial court's findings of fact if they are
supported by competent, credible evidence.
Retherford at 592. "Accepting those facts as
true, we must independently determine as a matter of law,
without deference to the trial court's conclusion,
whether they meet the applicable legal standard."
19} The Fourth Amendment to the United States
Constitution and Article I, Section 14 of the Ohio
Constitution guarantee the right to be free from unreasonable
searches and seizures. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Orr, 91
Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001). The law
recognizes three types of police-citizen interactions: 1) a
consensual encounter, 2) a brief investigatory stop or
detention, and 3) an arrest. State v. Millerton,
2015-Ohio-34, 26 N.E.3d 317, ¶ 20 (2d Dist.).
20} Consensual encounters occur when the police
merely approach a person in a public place and engage the
person in conversation, and the person remains free not to
answer and to walk away. State v. Lewis, 2d Dist.
Montgomery No. 22726, 2009-Ohio-158, ¶ 21, citing
United States v. Mendenhall, 446 U.S. 544, 553, 100
S.Ct. 1870, 64 L.Ed.2d 497 (1980). Consensual encounters are
not seizures, and the Fourth Amendment guarantees are not
implicated in such an encounter. State v. Taylor,
106 Ohio App.3d 741, 747-749, 667 N.E.2d 60 (2d Dist.1995),
citing Mendenhall at 554.
21} Under Terry, police officers may
briefly stop and/or temporarily detain individuals in order
to investigate possible criminal activity if the officers
have a reasonable, articulable suspicion that criminal
activity may be afoot. State v. Swift, 2d Dist.
Montgomery No. 27036, 2016-Ohio-8191, ¶ 10. "An
individual is subject to an investigatory detention 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
[was] compelled to respond to questions." Lewis
at ¶ 22, citing Mendenhall at 553 and
Terry at 19. Fourth Amendment protections are
implicated in an investigatory detention, i.e., a
22} In determining whether an individual engaged in
a consensual encounter or was subject to an investigatory
detention, the focus is on the police officer's conduct,
not the subjective state of mind of the person stopped.
State v. Ramey, 2d Dist. Montgomery No. 26705,
2016-Ohio-607, ¶ 25. As we stated in State v.
Ward, 2017-Ohio-1391, 89 N.E.3d 124, ¶ 26 (2d
"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.'"
[State v.] Westover, 2014-Ohio-1959, 10 N.E.3d 211,
at ¶ 15 [(10th Dist.)], quoting [Florida v.]
Bostick, [501 U.S. 429');">501 U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d
389 (1991)]. In this regard, "the crucial test is
whether, taking into account all of the circumstances
surrounding the encounter, the police conduct would 'have
communicated to a reasonable person that he was not at
liberty to ignore the police presence and go about his
business.'" Bostick at 437, 111 S.Ct. 2382,
quoting Michigan v. Chesternut, 486 U.S. 567, 569,
108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).
23} Whether a particular police encounter with a
citizen is an investigative stop, as opposed to a consensual
encounter, is fact-sensitive. Ward at ¶ 26;
State v. Satterwhite, 2d Dist. Montgomery No. 15357,
1996 WL 156881, *3 (Apr. 5, 1996). "Factors that might
indicate a seizure include the threatening presence of
several police officers, the display of a weapon, some
physical touching of the person, the use of language or tone
of voice indicating that compliance with the officer's
request might be required, approaching the person in a
nonpublic place, and blocking the citizen's path."
State v. Cosby, 177 Ohio App.3d 670, 2008-Ohio-3862,
895 N.E.2d 868, ¶ 13 (2d Dist.), citing
24} The trial court concluded that the encounter
between Celaya and the police was not a consensual encounter.
It reasoned that the officers came upon Celaya, "had him
against this garage," and Celaya had "nowhere to
go. The garages are lined up and there are two officers right
upon him." (Tr. at 36-37.) The trial court further found
that the officers lacked a reasonable suspicion of criminal
activity to justify the stop. On appeal, the State contends
that the encounter was consensual ...