[Cite as State v. Keating,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, : CASE NO. CA2019-08-064

Appellant, : OPINION 5/4/2020 : - vs - :

ALLISON KEATING, :

Appellee. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2018CR00576

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellant

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for appellee

M. POWELL, J.

{¶ 1} Appellant, the state of Ohio, appeals a decision of the Clermont County Court

of Common Pleas granting the motion to suppress of appellee, Allison Keating.

{¶ 2} On February 18, 2018, Miami Township Police Officer Todd Taylor was

dispatched to a McDonald's restaurant to conduct a welfare check on the female passenger Clermont CA2019-08-064

of a gold Caravan. The police had received a call indicating that the passenger had open

sores on her arms and was wearing bloody gloves. Officer Taylor and another police officer,

Sergeant Hirsch, responded to the scene in separate police cruisers. The officers located

the van and approached it. Upon contacting the driver and discovering that the subject of

the welfare check was not in the van, Officer Taylor indicated his intention to go into the

store, a gas station, and look for the woman. Sergeant Hirsch remained outside.

{¶ 3} Upon entering the store, Officer Taylor immediately observed a woman with

multiple bleeding sores on her arms. The woman was Keating. Officer Taylor approached

her and explained why he was there. Keating explained that her sores were caused by

impetigo, a skin condition, and that she was okay. Keating did not ask for assistance and

Officer Taylor did not call for medical assistance. The officer asked Keating for

identification. Keating replied she did not have any identification on her and instead verbally

provided her social security number. Officer Taylor and Keating subsequently exited the

store and returned to the van.

{¶ 4} Testimony differs as to what occurred once Keating provided her social

security number to Officer Taylor. Keating testified that after she provided her social

security number to Officer Taylor, he told her, "I could get back in the van. He'd be just a

minute or whatever. And he took my Social Security number and ran it." Officer Taylor

testified that as he "was out with [Keating]," he called the Clermont County Communication

Center to run a warrant check on Keating using her social security number. The officer

could not remember if Keating was in the van at that point or standing just outside the

vehicle. He, however, denied directing her to get into the van. Officer Taylor was never

asked whether he told Keating "he'd be just a minute."

{¶ 5} The dispatcher informed Officer Taylor that there was a warrant for Keating's

arrest. Subsequently, the officer advised Keating of the warrant. Keating was in the

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passenger seat of the van at that time. Keating asked if she could smoke a cigarette.

Officer Taylor replied that she could if she promised not to run off. The officer then asked

Keating "if she had anything illegal on her that could get her in trouble." Keating disclosed

there was a syringe in her backpack. The dispatcher subsequently confirmed the warrant.

Officer Taylor handcuffed Keating and asked her if he could retrieve the syringe from her

backpack. Keating acquiesced and further asked the officer to retrieve some money from

her backpack. While doing so, Officer Taylor observed a folded piece of paper and inquired

about its contents. Keating admitted it contained heroin.

{¶ 6} Testimony reveals that throughout the events, Sergeant Hirsch remained

outside, near or on the driver's side of the van. Testimony further indicates that after Keating

provided her social security number to Officer Taylor, and while the officer spoke with

Keating on the passenger side of the van, Sergeant Hirsch was on the other side of the van

speaking with the driver.

{¶ 7} Keating was indicted on one count of heroin possession. She moved to

suppress the evidence, arguing that she was unlawfully detained once Officer Taylor told

her she "could get back in the van. He'd be just a minute." The trial court conducted a

hearing on the matter; Officer Taylor and Keating both testified. Five weeks after the

suppression hearing, the state filed a memorandum in opposition to Keating's motion to

suppress, asserting that there was no seizure and implicitly arguing that the officer's

interaction with Keating was a consensual encounter until the officer discovered Keating's

arrest warrant.

{¶ 8} On August 5, 2019, the trial court granted Keating's motion to suppress. The

trial court found that while the initial encounter between Keating and Officer Taylor was

consensual, the officer's statement to Keating "he'd be just a minute," combined with the

presence of two police officers at the scene transformed the encounter into an investigatory

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detention without a reasonable, articulable suspicion of criminal activity. The trial court

reasoned that "Officer Taylor's words and the presence of multiple police officers were

enough to make a reasonable person in the defendant's shoes feel that she would not be

free to leave and ignore Officer Taylor's implied request. As such, the defendant was

illegally detained at that moment." In so ruling, the trial court found Keating's "testimony

that Officer Taylor told her 'he'd be just a minute' credible," but acknowledged "that Officer

Taylor did not testify that he told [Keating] she 'could get back in the van' or that 'he'd be

just a minute.'"

{¶ 9} The state appeals the decision of the trial court, raising one assignment of

error:

{¶ 10} THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO

SUPPRESS.

{¶ 11} The state argues that the trial court erred in granting the motion to suppress.

Specifically, the state asserts that Officer Taylor's interaction with Keating was a consensual

encounter that did not implicate the Fourth Amendment until the officer told Keating there

was an active warrant for her arrest. The state further asserts that even if Keating was

illegally detained, the heroin should not have been suppressed because its discovery did

not arise from the illegal detention but rather, arose due to an intervening circumstance

and/or independent source, namely, Officer Taylor's discovery of the arrest warrant.

{¶ 12} Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-

Ohio-828, ¶ 8, citing State v. Burnside,

,

, ¶ 8. When

considering a motion to suppress, the trial court, as the trier of fact, is in the best position

to weigh the evidence in order to resolve factual questions and evaluate witness credibility.

Vaughn at ¶ 8. In turn, when reviewing a trial court's decision on a motion to suppress, an

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appellate court is bound to accept the trial court's findings of fact if they are supported by

competent, credible evidence.

An appellate court, however, independently reviews the

trial court's legal conclusions based on those facts and determines, without deference to

the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal

standard.

{¶ 13} The Fourth Amendment to the United States Constitution protects individuals

from unreasonable searches and seizures. State v. Brown, 12th Dist. Clermont No.

CA2001-04-047,

, *5 (Dec. 10, 2001). However, not all

interactions between police officers and citizens are seizures under the Fourth Amendment.

The United States Supreme Court has recognized three categories of police interactions

with members of the public: (1) a consensual encounter, which requires no objective

justification, (2) a brief investigatory detention, which must be supported by reasonable

suspicion of criminal activity, and (3) a full arrest, which must be supported by probable

cause. State v. Wynne, 10th Dist. Franklin No. 18AP-531,

, ¶ 12. The state

did not argue in the trial court that the encounter between Officer Taylor and Keating was

anything other than a consensual encounter that did not implicate the Fourth Amendment.

A consensual encounter occurs "where 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. Tabler, 10th Dist. Franklin No. 14AP-386, 2015-Ohio-

2651, ¶ 21.

{¶ 14} In determining whether an encounter between a police officer and a citizen is

a seizure and thus implicates the Fourth Amendment, the question is whether, in light of all

the circumstances surrounding the encounter, a reasonable person would believe he or she

was not free to leave. Wynne at ¶ 13. Stated otherwise, the question is whether, taking

into account all the circumstances surrounding the encounter, a reasonable person would

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feel free to decline the officer's request or terminate the encounter. Brown at *5-6, citing

Florida v. Bostic,

,

(1991). As long as a reasonable

person would feel free to disregard the officer, the encounter is consensual and no

reasonable suspicion is required.

. "Under this objective test, we consider not

whether the individual believed he was being ordered to restrict his movement, but whether

the officer's words and actions would have conveyed that to a reasonable person."

Columbus v. Body, 10th Dist. Franklin No. 11AP-609,

, ¶ 14. Circumstances

indicating that a person has been seized include the threatening presence of several

officers, the display of a weapon by an officer, some physical touching of the person, the

use of language or tone of voice indicating that compliance with the officer's request might

be compelled, and blocking the person's path. Brown at *6, citing United States v.

Mendenhall,

,

(1980); Wynne at ¶ 13.

{¶ 15} We recently addressed a similar situation to the case at bar in State v. Kirk,

12th Dist. Clermont No. CA2019-07-053,

. While on routine patrol, a police

officer came upon Kirk who was attaching a band saw to the front of his bicycle near the

loading area of a store. Upon inquiry, Kirk told the officer he did not have any identification

on him and instead verbally provided his name and social security number. The officer told

Kirk, "I'll be back with [you] in a minute," then proceeded to his cruiser where he ran Kirk's

personal information through LEADS. Within a couple of minutes, the officer learned that

Kirk was subject to an extradition warrant. The officer returned to Kirk, advised him of the

warrant, and informed him that he was going to pat him down and secure him. Before the

officer could do so, Kirk fled. The officer caught Kirk and placed him under arrest. In

searching Kirk incident to the arrest, the officer discovered drugs on Kirk's person.

{¶ 16} Kirk moved to suppress the evidence, arguing that he was unlawfully detained

once the officer told him, "I'll be back with [you] in a minute." In opposing Kirk's motion to

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suppress, the state argued that the officer's interaction with Kirk was a consensual

encounter until the officer discovered Kirk's arrest warrant. The trial court granted Kirk's

motion to suppress. The trial court found that while the initial encounter between Kirk and

the officer was consensual, it evolved into an investigatory detention without a reasonable,

articulable suspicion of criminal activity when the officer told Kirk, "I'll be back with [you] in

a minute." The trial court reasoned that the officer's "words alone were enough to make a

reasonable person in the defendant's shoes feel that he would not be free to walk away and

ignore [the officer's] implied request. As such, the defendant was illegally detained at that

moment." Id. at ¶ 5.

{¶ 17} On appeal, we reversed the trial court's grant of the motion to suppress.

Based upon the totality of the circumstances surrounding the officer's interaction with Kirk,

we found that "the interaction was a consensual encounter until the officer told Kirk he was

going to pat him down. In other words, [the officer's] statement to Kirk, 'I'll be back with

[you] in a minute,' did not constitute a seizure of Kirk implicating the Fourth Amendment and

requiring reasonable suspicion." Kirk,

. Hence, we found that the

officer's statement to Kirk, "I'll be back with [you] in a minute," did not convert the encounter

from a consensual one to an investigatory detention, and thus the trial court erred in granting

Kirk's motion to suppress. Id. at ¶ 24.

{¶ 18} Pertinent to our holding were the fact that the officer was the only officer at

the scene, the officer did not advise Kirk that he was returning to his police cruiser to use

Kirk's identifying information to check for warrants, and Kirk could have walked or pedaled

away from the encounter at any time before he was informed he would be pat down. Id. at

¶ 22-23.

{¶ 19} Turning to the case at bar, we consider whether, in light of all the

circumstances surrounding Officer Taylor's interaction with Keating, the officer's words and

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actions would have conveyed to a reasonable person that he or she was free to leave or

otherwise terminate the encounter. Body,

at ¶ 14. Based upon the totality

of the circumstances surrounding Officer Taylor's interaction with Keating, we find that while

the initial encounter was consensual, it evolved into an investigatory detention without a

reasonable, articulable suspicion of criminal activity when the officer told Keating that she

"could get back in the van. He'd be just a minute."

{¶ 20} Similar to Kirk, many of the factors evidencing a seizure were absent. The

sirens and light bar of Officer Taylor's cruiser were not activated when the officer pulled up

to the scene or afterwards. There is no evidence Officer Taylor drew or displayed his

weapon, touched Keating, or accused her of a crime. Although he could not recall where

he had parked his cruiser, Officer Taylor did not believe it blocked the van's path.

{¶ 21} However, unlike in Kirk, Keating was not a pedestrian free to walk away, but

rather was a passenger in the van dependent on the van's driver. Unlike in Kirk, Officer

Taylor was not the only officer at the scene. Rather, there were two officers at the scene,

and both responded to the scene in separate police cruisers. During the entire time Officer

Taylor interacted with Keating, Sergeant Hirsch remained on the driver's side of the van

speaking with the driver. Unlike in Kirk, Keating knew Officer Taylor was conducting a

warrant check as he called the Clermont County Communication Center in her presence.

Furthermore, Officer Taylor's statement to Keating that she "could get back in the van. He'd

be just a minute," conveyed a sense he was in charge of Keating's movements. Finally, the

warrant check occurred while Officer Taylor and Sergeant Hirsch surrounded the van.

{¶ 22} In light of all of the circumstances surrounding the encounter between Officer

Taylor and Keating, we find that the officer's statement and actions, combined with the

presence of Officer Taylor and Sergeant Hirsch on both sides of the van, thereby

surrounding it, would have communicated to a reasonable person that he or she was not

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free to walk away or otherwise terminate the encounter. We therefore find that Keating was

seized within the meaning of the Fourth Amendment when Officer Taylor advised her she

"could get back in the van. He'd be a minute." Because the encounter between Officer

Taylor and Keating escalated from a consensual one into an investigatory detention before

the officer learned about the arrest warrant, the trial court did not err in granting Keating's

motion to suppress.

{¶ 23} Citing numerous cases, the dissent maintains that police officers may

constitutionally detain individuals absent suspicion of criminal activity to ensure the

individual's well-being. Although the state did not argue that Keating's detention was

justified pursuant to this community caretaking function, the dissent relies upon State v.

Peagler,

(1996), to assert that we should reverse the trial court's grant

of the motion to suppress on the ground Keating's detention was a reasonable detention

incident to the exercise of Officer Taylor's community caretaking duties. Alternatively, the

dissent relies on Peagler to assert we should order that the issue be briefed by the parties.

Peagler recognized the discretionary authority of a court of appeals "to address an issue

not briefed or raised below [so long as there is a] sufficient evidentiary basis in the record *

* * upon which it can decide a particular legal issue."

.

{¶ 24} In reviewing the record to determine whether there is some evidentiary basis

to justify resolving this case upon a legal theory not advanced below, we must be cognizant

of the burdens of production and proof in proceedings upon motions to suppress. This case

involves a warrantless seizure of the person. In such cases, it is the state which bears the

burdens of production and proof. See State v. Denune,

(12th

Dist. 1992). Thus, if the record is ambiguous or lacking upon an issue for which the state

bears the burden of production and proof, that ambiguity or omission must be resolved

against the state.

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{¶ 25} The record reflects that upon first being approached by Officer Taylor as she

stood in line in the store, Keating explained the sores on her arms and told Officer Taylor

that she was "ok." Based upon Keating's response, and apparently satisfied that Keating

was not in need of further attention, Officer Taylor did not call for medical assistance.1

Officer Taylor then asked Keating for her identification; she replied that she had none but

provided the information verbally. Keating's replies to Officer Taylor's inquiries were

responsive and appropriate. Officer Taylor testified that Keating was free to leave at the

time he asked her for identification, again indicating he had no concerns for her well-being.

Keating exited the store with Officer Taylor without assistance. There is nothing in the

record regarding this interaction between Keating and Officer Taylor to suggest that Keating

was in some acute distress. Finally, Officer Taylor's testimony refutes any implication that

checking Keating's identification information was related to the initial "welfare check." Upon

cross-examination, Officer Taylor rejected defense counsel's suggestion that he called in

Keating's identifying information to complete his report and testified that he did so to check

for warrants.2 This record discloses that Keating was detained for purposes of criminal

investigation, not for her own welfare. Under Peagler, there is no evidentiary basis for us

to consider whether Keating's detention was an exercise of community caretaking or order

additional briefing of the issue.

{¶ 26} We decline to address the state's argument regarding whether the trial court's

suppression of the heroin was the proper remedy. The state did not make this argument

either in its memorandum in opposition to Keating's motion to suppress or during the

1. When asked on cross-examination if he sought medical assistance for Keating, Officer Taylor testified, "No. Once she explained what the sores were for – or, the reasoning for them, no. * * * Then she indicated she was okay."

2. On cross-examination, defense counsel asked Officer Taylor if he contacted dispatch for the purpose of completing his report. Officer Taylor replied, "No. I was checking for warrants." - 10 - Clermont CA2019-08-064

suppression hearing. In fact, at the beginning of the suppression hearing, the prosecutor

plainly advised the trial court, "since [Keating's] issue is detention without a warrant, * * *

we would proceed just to counter that." The state now suggests it could not have known

this would be an issue it needed to raise until the trial court failed to correctly apply the law.

However, contrary to the state's assertion, this issue was one that was identifiable as a

ground to deny the motion to suppress, either from Keating's motion to suppress or from

defense counsel's statement during his cross-examination of Officer Taylor, "And then,

Judge, just so we cover the poisonous fruit argument that I'm going to have."

{¶ 27} It is well established that a party cannot raise new issues or legal theories for

the first time on appeal because such issues or theories are deemed waived. Kirk, 2020-

Ohio-323 at ¶ 25; State v. Mehta, 12th Dist. Butler Nos. CA2000-11-232 and CA2000-12-

256,

, *8 (Sept. 4, 2001); State v. Walker, 1st Dist. Hamilton

No. C-150757,

. This waiver "applies to arguments not asserted

either in a written motion to suppress or at the suppression hearing." Walker at ¶ 26;

Vaughn,

; State v. Clay, 8th Dist. Cuyahoga No. 91942,

.

{¶ 28} The state's assignment of error is overruled.

{¶ 29} Judgment affirmed.

HENDRICKSON, P.J., concurs separately.

PIPER, J., dissents.

HENDRICKSON, P.J., concurring separately.

{¶ 30} I concur in the majority opinion but write separately to address the

distinguishing circumstances between the case sub judice and this court's prior decision in

State v. Kirk, 12th Dist. Clermont No. CA2019-07-053,

. In my view, the

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main distinction between the cases is that Kirk involved a legitimate Terry stop, whereas

the circumstances in the present case did not. In Kirk, the police officer personally observed

the defendant attaching a power tool to the front of his bicycle, which was extremely

unusual. The defendant was in the parking lot of a retail store, near the store's dumpster.

The defendant provided a suspicious explanation as to how he acquired the power tool.

Given these facts, the police officer had reasonable and articulable suspicion for a Terry

stop in order to determine whether the tool was stolen. As the officer in Kirk had authority

to continue his investigation based upon a reasonable and articulable suspicion of criminal

activity, the case turned on whether there was a valid Terry stop and not whether the

encounter was consensual. To that extent, I agree with the concurring opinion in Kirk.

{¶ 31} However, circumstances like those in Kirk are not present in the case before

us. Unlike in Kirk, whether the encounter was consensual is relevant in this case as there

are not facts giving rise to a valid Terry stop. Officer Taylor did not have reasonable

articulable suspicion that Keating was involved in any criminal activity. Although Officer

Taylor testified at the hearing on the motion to suppress that the bloody sores observed on

Keating's arms were "an indicator for drug use, meth" and Keating appeared to have "bags

under her eyes or dark circles under her eyes," these facts were not what led him to ask for

Keating's personal information or into running an outstanding warrants check. Rather than

associating any suspected drug usage to the likelihood that users typically have outstanding

warrants, Officer Taylor indicated he ran Keating's information for an investigatory reason

– "to check for warrants." As Officer Taylor explained, he is not required to check for

outstanding warrants on all individuals that he comes into contact with on his police calls.

Rather, the Miami Township Police Department only requires officers "take a report on

every call for service. So to do that, we have to detail the individual's name and the reason

for the contact."

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{¶ 32} When Officer Taylor made contact with Keating, Keating gave a reasonable

explanation for why she had blood sores on her arms – she had impetigo. Officer Taylor

admitted he was not familiar with impetigo, stating, "I didn't know what it was but apparently

it was the reason for the sores she had." Nonetheless, Officer Taylor determined Keating

did not need medical aid, and at this point in time, the welfare check was over.3 Thereafter,

Keating briefly engaged in a consensual encounter with Officer Taylor, providing him with

her name and social security number. However, the consensual encounter ended when

Officer Taylor told Keating to "get back in the van. He'd just be a minute[.]" When this

occurred, the encounter became nonconsensual, as fully laid out in the majority opinion.

Officer Taylor's ongoing investigation of Keating was improper without the officer having

reasonable and articulable suspicion of criminal activity. As none existed, Keating was

illegally detained in violation of her Fourth Amendment rights. I therefore concur in the

majority's determination that the motion to suppress was properly granted. I further concur

with the majority's findings that (1) the state's second issue under its assigned error is not

properly before this court as it was not raised below and (2) there is no evidentiary basis in

the record below for us to consider the application of State v. Peagler,

(1996).

3. I recognize that "[t]he community caretaking/emergency-aid exception to the Fourth Amendment warrant requirement allows police officers to stop a person to render aid if they reasonably believe that there is an immediate need for their assistance to protect life or prevent serious injury." State v. Dunn,

,

, syllabus. While this exception allowed Officer Taylor to approach Keating to ensure she was fine medically and did not need assistance, the exception did not permit him to detain Keating after he ensured her health and safety. The caretaking/emergency-aid exception only permits "police to respond to situations where life or limb [are] in jeopardy." Id. at ¶ 21. As discussed in the majority opinion, Keating assured Officer Taylor she was "ok" and that the blood sores were caused by impetigo. At this point, there was no threat to Keating's life or limbs, as evidenced by the fact that Officer Taylor did not call for medical assistance. The nature of Officer Taylor's interaction with Keating changed, and, as discussed above, he lacked reasonable and articulable suspicion and did not have cause to detain Keating. - 13 - Clermont CA2019-08-064

PIPER, J., dissenting.

{¶ 33} Respectfully, I dissent from the lead and separately concurring opinions in

affirming the trial court's determination that the welfare check resulted in an "illegal

detention." The trial court's analysis failed to consider the law regarding welfare checks, as

do my colleagues. A detention is only illegal if it is found to be unreasonable. It is not

unreasonable if the factual circumstances support application of an exception to the

requirement of a warrant. The idea that we cannot apply law that clearly governs the

circumstances ultimately works injustice upon a system designed to do the opposite.

{¶ 34} The motion to suppress raises the issue of the reasonableness of Keating's

welfare check. In conflating the law applicable to a welfare check, Keating argues "even a

momentary detention" must be supported by a suspicion of criminal activity. Keating argues

that as a matter of law once a person who is the subject of a welfare check explains his or

her condition, law enforcement must immediately terminate any concern for the individual.

Accepting this proposition of law means law enforcement cannot take the time necessary

to ascertain the totality of the circumstances. Such a proposition of law would also mean

law enforcement could never conclude a contact by verifying the person's identity who was

the subject of their welfare check. Neither my colleagues, the trial court, nor Keating's

motion cite caselaw that a limited detention cannot occur in the process of a welfare check.

None exists.

{¶ 35} As raised in Keating's motion to suppress, once she became subject to a brief

and limited detention, it must then be determined whether Keating's Fourth Amendment

rights were violated. The question becomes: was Keating unreasonably detained under a

totality of the circumstances, and therefore illegally detained as a matter of law, by an officer

who was confirming her identity in order to conclude his welfare contact? Stated differently,

as a matter of law is a brief detention to confirm a person's identity who is the subject of a

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welfare check beyond the scope of the community caretaking function? Since the

community caretaking function does not afront the Fourth Amendment, these questions

must be answered in the negative.

{¶ 36} The fact that the state was overly optimistic and responded to the issues

raised in Keating's motion in a limited way does not alter the need to fully apply widely

accepted case law. Evidence cannot be suppressed unless it can be said that Keating's

Fourth Amendment rights were violated. Determining whether an initial engagement is

consensual is the beginning of the legal analysis, it is not the end of the legal analysis.

A. The Circumstances Specific to Keating

{¶ 37} During the suppression hearing, the officer testified to receiving a dispatch

that requested a welfare check on a female passenger who was bloodied in a van with

another person. The officer was given specific information, including the location of the van

in a McDonald's parking lot along with its license plate number. The dispatch described the

female passenger as having "open wounds" on her arms and wearing bloody gloves. After

arriving at the location, one of the officers located the female inside a nearby store. The

officer testified that upon approaching the female, he immediately inquired if she was "okay"

and explained that they had received a request to perform a welfare check on her. The

female then gave the officer an explanation, which he considered uncertain considering his

experience and her appearance. Despite Keating's explanation, the officer testified he still

had concerns for her safety and welfare.4

{¶ 38} The officer testified that from his experience, the bleeding appeared to be drug

related. He further indicated the female appeared to be "not well, bags under her eyes or

4. My colleagues find the officer did not have continuing concerns for Keating's welfare, yet, this was not a finding made by the trial court. To find such, despite the officer's testimony to the contrary, requires a credibility determination best left to the trial court. Similarly, the trial court never made a finding that Keating's explanation was "reasonable" despite the weight attributed to her explanation by the concurring opinion.

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dark circles under her eyes, appeared to be not feeling well." In concluding his inquiry into

her well-being, the officer asked the female for identification and she replied that she had

none. The female then volunteered a social security number, presumably to confirm the

name she gave. Then the officer called it in to dispatch. By this time, they had walked out

of the store to the van.5

{¶ 39} It was determined by the trial court that the officer contacted dispatch to

confirm her identity to complete his contact and conduct a check for warrants. Using the

social security number, dispatch confirmed Keating's identity but also reported an

outstanding warrant for Keating's arrest. In giving Keating the benefit of the doubt, the

officer asked dispatch to verify that the warrant was still active. The officer testified with

certainty it was only at this point, waiting for the reported warrant to be verified as active,

that Keating was instructed not to leave. Although Keating testified, she never testified she

felt she could not leave prior to this time.

{¶ 40} Despite the officer never being cross-examined on the subject, the trial court

found Keating's self-serving statement as reliable. The trial court found that the officer told

Keating he would be back in a minute because when Keating was asked to provide as much

detail as possible, she testified that either she asked him, or he told her, she could get into

the van and "he'd be just a minute or whatever." Even using the trial court's factual finding

that the officer told Keating it would take a minute, any detention was brief, limited in scope,

and does not alter the legal application of the community caretaking function. Unlike my

colleagues, the trial court never found the momentary detention was unrelated to the welfare

5. Testimony revealed that it was standard procedure for an officer to "take a report on every call for service" and "detail the individual's name and the reasoning for the contact." Despite the trial court's finding, the lead opinion finds the sole reason for asking Keating to wait a minute while he confirmed the social security number she gave was for a warrant check constituting a "criminal investigation." Yet, the trial court specifically found a person's identity is "information in every incident report."

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check, nor did the trial court find that confirming Keating's identity was unreasonable in

following through on the social security number Keating volunteered.6

B. Community Caretaking

{¶ 41} The United States and Ohio Supreme Courts have long held that an officer

performing community caretaking functions reasonably engages a person when necessary

to offer assistance. When discussing law enforcement duties and safety issues pertaining

to the public, the community caretaking function has been referenced by different names,

including welfare check, public welfare, emergency-aid, and exigent circumstance. "In their

community caretaking roles, officers may intrude on a person's privacy to carry out

community-caretaking functions to enhance public safety." State v. Street, 5th Dist. Stark

Nos. 2019CA00096 and 2019CA00097,

(where the court also noted,

"the key to such permissible police action is the reasonableness required by the Fourth

Amendment"). This is because, at such a time, the officer may be "totally divorced from the

detection, investigation, or acquisition of evidence relating to the violation of criminal

statutes." Cady v. Dombrowski,

,

(1973). See also State

v. Morris,

(1975).

{¶ 42} When officers focus on providing care and possible aid to persons, officers

are not required to possess reasonable suspicion of criminal activity. State v. Norman,

(3d Dist. 1999). Given their community caretaking duties, officers frequently

investigate a myriad of instances where individuals may need help or care absent any

indication of criminal activity. State v. Weese, 10th Dist. Franklin No. 12AP-949, 2013-

Ohio-4056. These instances include responding to vehicle accidents, helping stranded

motorists, or providing aid to incapacitated individuals. See State v. Chrzanowski,

. The trial court made a specific finding of fact Keating volunteered her social security number for the officer. - 17 - Clermont CA2019-08-064

App.3d 324,

(11th Dist.); and Street,

. Thus, police officers

may, "intrude on a person's privacy to carry out community caretaking functions to enhance

public safety." State v. Telshaw,

,

(7th Dist.).

{¶ 43} Despite the narrow interpretation in both the foregoing opinions regarding

when the community caretaking function is applicable, any serious accident, injury, jeopardy

to persons, or public safety may initiate law enforcement's duty to serve and protect. Merely

because "acute distress" was not immediately observed by the officer does not mean the

law requires a welfare check to terminate. To require such would vitiate the very purpose

of the community caretaking function. State v. Moiduddin, 3d Dist. Union No. 14-18-15,

(explaining that situations that might not fit under the emergency aid

or exigent circumstances may nevertheless fit under another facet of the community

caretaking function); and Street,

(even where there was no actual injury

observed, the dispatch relayed a citizen report that an individual may have been in need of

assistance).

{¶ 44} In Moiduddin, the trial court suppressed evidence where an officer pulled over

a car because it was driving too slowly, finding that the stop was not within the officer's

community caretaking function because a slow-moving vehicle did "not require immediate

need for assistance to prevent death or serious injury." However, the Third District found

that the officer was within his community caretaking function to stop and inquire of the driver

as part of his "legitimate role as a public servant designed to assist those in distress and to

maintain and foster public safety." ¶ 40.

{¶ 45} Even so, the bounds of an officer's ability to respond pursuant to the

community caretaking function are not limitless and the officer must possess "objectively

reasonable grounds to believe" that there is a need for aid. State v. Dunn,

,

. In Dunn, it was noted that law enforcement has a duty to

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protect those in danger. Dunn, who reportedly was suicidal, had his truck stopped by police.

He exited his vehicle and was detained, but subsequently charged with improper handling

of a firearm in a motor vehicle because a gun was located in the truck.

{¶ 46} So long as the officer is acting with reasonable grounds to believe his or her

aid is necessary, the Fourth Amendment is neither implicated nor violated by an officer

investigating safety concerns. State v. Clapper, 9th Dist. Medina No. 11CA0031-M, 2012-

Ohio-1382. See State v. Saunders, 5th Dist. Muskingum No. CT2017-0052, 2018-Ohio-

2624, ¶ 25 (finding an encounter reasonable where the officer was "clearly in the scope of

his duties in making a 'welfare check' on someone walking in a staggering fashion on a

public street at 1:15 AM"). It is not speculation, but empirical knowledge that informs us if

an intoxicated person who disavows his or her condition and then walks out into traffic and

is killed because the officer failed to take a moment to access the person's condition, a civil

suit against the officer will almost certainly follow.

{¶ 47} In State v Johnson, 12th Dist. Clermont No. CA99-06-01, 2000 Ohio App

LEXIS 1870, *10 (May 1, 2000), we noted an individual may be temporarily restrained for

his own safety. We explained that this is especially proper where the apparent detention is

either made clear, or simply obvious, that the detention is to be brief and in public. Johnson

was not illegally seized when briefly detained, first, to provide for Johnson's safety and to

secondly ascertain why he was dressed inappropriately for mid-winter freezing

temperatures, walking dangerously close to traffic and in the vicinity of a burning car. Even

before Dunn, we recognized an officer's responsibility to aid a member of the public may

require a brief detention.

{¶ 48} In the present case, the record clearly indicates that the officers were

dispatched in response to a request for a welfare check based on a reported observation

of a bloodied woman in a van in the McDonald's parking lot. The officers responded to

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perform a community caretaking function and not because an actual crime had been

reported.7 The officer's unrefuted testimony established that the woman, subsequently

identified as Keating, needed a welfare check. If nothing else, her being bloodied and acting

ill required a brief detention in an attempt to comprehend the circumstances and determine

what, if any, assistance should be rendered. At the very least, concluding a welfare check

by confirming the subject's identity is reasonable and not "illegal" as a matter of law. It is

only prudent to spend a few minutes with an apparently ill individual, and in that process,

find out who they are. Such is certainly within the purpose and scope of a welfare check.8

C. Not Always Bright Line Between Caretaking and Investigation

{¶ 49} In fact, officers may encounter many different situations where a momentary

detention is necessary to survey the circumstances. See Johnson, 12th Dist. Clermont No.

CA99-06-061 at *10, State v. Valenzuela-Pena, 12th Dist. Madison No. CA2018-07-023,

(where a package was not seized but rather detained and we

emphasized the need to consider the purposes to be served by the encounter as well as

the time reasonably needed to effectuate those purposes).

{¶ 50} Courts have noted investigating criminal activity can overlap an officer's role

in providing a community care taking function. State v Young, 10th Dist. Franklin No. 14AP-

721,

, ¶ 34. An officer cannot always ascertain which hat the officer will be

wearing – his law enforcement hat (involving investigation) or his community caretaker hat

(involving assistance or aid). Moiduddin, 2019-Ohio 3544 at ¶ 40. Facts supporting a

7. Objectively, it cannot be denied that a reasonable probability existed that a person reported to be wearing bloody gloves and bleeding with "wounds" is either a victim or a perpetrator of some sort of serious violence or accident. The potential seriousness of what was to be discovered supported two cars being dispatched to the scene.

8. Besides being a natural conclusion to an incident they were sent to respond to, law enforcement's confirmation of a person's identity potentially aids in the need for further protection; an individual bleeding and appearing ill could be, among many other things, a walkaway Alzheimer's patient, one with mental health care concerns, a reported missing person, or a reported victim of various crimes – in other words individuals who do not always report accurately to police, yet need assistance. - 20 - Clermont CA2019-08-064

welfare check may also form a reasonable, articulable suspicion providing a basis for a

Terry stop. State v. Saunders, 5th Dist. Muskingum No. CT2017-0052,

.

{¶ 51} There is nothing per se unconstitutional in the brief detention of an individual

for purposes of limited inquiry during routine police response, even when the circumstances

are not such as to justify an arrest. State v. Kolb, 12th Dist. Warren No. 11,

, *4 (Jan. 20, 1982). Officers do not need ironclad proof as to the seriousness

of injury before responding to a potential need. State v Lindner, 9th Dist. Summit No. 27788,

. Instead, officers need only to possess a "reasonable basis." State v.

Wade, 5th Dist. Muskingum Nos. CT2019-0007 and CT2019-0008,

.

It appears the officers were well within the caretaking function when they responded to the

McDonald's parking lot and assessed the situation, which included identifying the subject

involved. Unfortunately, sub judice, the trial court granted suppression merely upon a

factual determination a momentary detention had occurred and then automatically held as

a matter of law it was an "illegal detention" without further analysis.

{¶ 52} The officer briefly engaged the subject to ensure she was alright, and in doing

so, was proceeding to conclude matters by confirming her identity. The focus should be

upon the reasonableness of the detention and the limit to its scope. See Valenzuela-Pena,

. The trial court did not make a factual finding that confirming the

subject's identity was unreasonable. Instead, it drew a legal conclusion it was "illegal." Yet,

the detention was very limited in scope and duration. The momentary detainment even

allowed Keating the opportunity to smoke a cigarette when she agreed not to leave. Even

with the trial court's finding, she was told it would take a minute, confirming the social

security number she provided was clearly within the purpose and scope of the initial welfare

inquiry.

- 21 - Clermont CA2019-08-064

{¶ 53} While the officer's wellness check was intended to conclude by verifying her

identity, the brief detention for purposes of completing the officer's contact was entirely

reasonable and does not render the momentary detention violative of Keating's rights

pursuant to protections otherwise provided by the Fourth Amendment.

D. Issues Raised Below by the Evidence

{¶ 54} Our lead opinion claims the evidence does not support the notion that

Keating's momentary detention was associated with her welfare check. Then, it claims

"waiver" to support its decision that a party's written argument submitted to the trial court

controls whether the officers were acting pursuant to their community caretaking function.9

However, the prosecutor's choice to focus on the encounter as entirely consensual cannot

ignore the fact that, in her motion, Keating submitted that the basis of suppression was the

momentary detention associated with her welfare check.

{¶ 55} The preference would have been that this court ask the parties to brief issues

related to the application of the community caretaking function before entering our

judgment. State v. Peagler,

(1996). In Peagler, the Ohio Supreme Court

referenced this specific preference by noting, "this court has often held that if a reviewing

court chooses to consider an issue not suggested by the parties on appeal but implicated

by evidence in the record, the court of appeals should give the parties notice of its intention

and an opportunity to brief the issue." Id. at fn. 2.

{¶ 56} The Peagler court was presented with a situation where the appellate court

addressed issues regarding an appellant's motion to suppress that were different from that

argued to the trial court. The Ohio Supreme Court determined that an appellate court has

9. Our appellate review is obligated to accept the trial court's determination of facts, resolving all factual questions. State v. Lynn, 12th Dist. Butler Nos. CA2017-08-129 and CA2017-08-132,

. Appellate review is limited to applying the law to the facts as determined by the trial court. - 22 - Clermont CA2019-08-064

discretion "in deciding to address an issue not briefed or raised below" so long as the

appellate court bases any factual conclusions or legal issues on evidence that exists in the

record at the time the trial court made its decision. The court went on to state,

fairness, which is required for the proper operation of the adversary system of justice, requires at least that the parties be allowed in the trial court the opportunity to present evidence that would support or refute the legal theory addressed by the court of appeals. We therefore hold that while an appellate court may decide an issue on grounds different from those determined by the trial court, the evidentiary basis upon which the court of appeals decides a legal issue must have been adduced before the trial court and have been made a part of the record thereof.

Id. at 501. While I respect the opinions of my colleagues, they give weight to only portions

of the testimony in order to draw the conclusion the momentary detention was unassociated

with the community caretaking function.

{¶ 57} My conclusions are entirely based upon the trial court's findings of fact and

undisputed testimony. I draw an opposite legal conclusion and determine we would be

better to implement the preference for fairness and request the parties brief the law

applicable to the totality of the circumstances. It is only an alternative to their view of the

legal conclusion to be reached from the evidence that my colleagues' opinions argue

"waiver."

{¶ 58} Even so, the facts and circumstances attendant to the momentary detention

associated with the welfare check were not newly raised as my colleagues determine. In

order to determine whether Fourth Amendment protections were violated, it was the trial

court's obligation, and ours as well, to analyze the nature of the encounter, including

whether the detention was unreasonable. The basic constitutional principles raised in

Keating's pleadings must be fully considered to ensure the integrity of sound criminal

proceedings.

{¶ 59} It behooves us to remember that a party's waiver requires the "intentional

- 23 - Clermont CA2019-08-064

relinquishment or abandonment of a known right." United States v. Olano,

,

(1993) (explaining that reviewing courts have discretion to correct error

affecting the fairness and integrity of judicial proceedings). Rather than being applicable to

arguments made by the parties, waiver is generally applied to personal, individual rights

accorded an accused. Schneckloth v. Bustamonte,

,

(1973).

The application of waiver to the evidence before us is the anthesis of applying Peagler.

{¶ 60} Perhaps the state's limitation of its argument is better characterized as a

"forfeiture." Yet, forfeiture does not extinguish an error. Olano. Where a party has forfeited

an objection by failing to raise it, the appellate court may still review the issue using a plain

error standard. State v. Payne,

,

. In contrast to waiver,

forfeiture is the failure to object or make an assertion where the party complaining of the

trial court's error did not call the error to the trial court's attention at a time when such error

could have been avoided. State v. Rogers,

,

¶ 21 (no

argument was made to seek merger of allied offenses of similar import and was thus

forfeited before the trial court, yet such was plain error on appellate review).

E. Conclusion

{¶ 61} Regardless of the prosecutor's decision to limit the state's argument to

consensual contact, the community caretaking function permits officers to initiate a brief

detention without running afoul of the Fourth Amendment. Both parties and the trial court

were aware of the facts elicited during the suppression hearing, which enabled the trial court

to properly perform the necessary Fourth Amendment analysis in its entirety.

{¶ 62} The opinions of my colleagues extrapolate from isolated portions of testimony

to envision a factual construct permitting them to dismiss the significance of State v.

Peagler. Simultaneously, this disallows the possibility for a reasonable conclusion to a

welfare check, which was merely confirming the reported subject's identity to complete the

- 24 - Clermont CA2019-08-064

contact report. There is no doubt both Keating's motion and the testimony submitted raise

the issue of the reasonableness of the community welfare function.

{¶ 63} Suppression of evidence by virtue of the Exclusionary Rule is a judicially

created remedy designed to safeguard Fourth Amendment rights through its deterrent effect

upon government officials and law enforcement. State v. Mobley, 12th Dist. Warren No.

CA88-08-063,

(May 22, 1989). Attempting to deter officers

from verifying or confirming a person's identity while conducting a welfare check should not

be the subject of judicial fiat when considering the exercise of reasonable discretion needed

by police officers protecting individuals on a daily basis.

{¶ 64} The record is clear; the officers were dispatched to investigate a bloodied

woman, encountered that woman, and then reasonably detained her for a very short time

while concluding her welfare check. I therefore find Keating's Fourth Amendment rights

were not violated when applying the community caretaking function to the facts as

determined by the trial court. As such, I respectfully dissent from the lead and separately

concurring opinions, which affirm the trial court's suppression of evidence. I would reverse

the trial court's suppression of evidence and remand for further proceedings.

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