COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68316 CITY OF STRONGSVILLE : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS G. RUSSELL : : Defendant-appellee : PER CURIAM : DATE OF ANNOUNCEMENT : NOVEMBER 30, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Berea Municipal Court : Case No. 94-TRC-3124 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: JOSEPH A. GAMBINO, ESQ. PAUL B. DAIKER, ESQ. Prosecuting Attorney LARRY W. ZUKERMAN, ESQ. City of Strongsville Fromson & Zukerman 11221 Pearl Road 160 Signature Square I Strongsville, OH 44136 25201 Chagrin Blvd. Cleveland, OH 44122 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25. The city of Strongsville appeals from an order granting defendant Thomas Russell's motion to suppress evidence obtained during an investigatory stop of defendant's automobile. The sole issue raised is whether the trial court erred by finding the arresting officer lacked any articulable reason to approach defendant's automobile and inquire whether defendant needed assistance. The arresting officer was the sole witness at the suppression hearing and his testimony is undisputed. During the early morning hours of September 20, 1994, the officer testified he had been patrolling on Pearl Road, periodically checking storefronts and businesses. At 1:42 a.m., the officer turned into a shopping center. A fast food restaurant fronted the street. A driveway intersected the restaurant parking lot and the shopping center parking lot. A concrete divider separated the back of the restaurant parking lot from the shopping center, although the divider contained an opening that would allow traffic to pass from the restaurant parking lot to the shopping center parking lot. The officer noticed defendant's vehicle parked in the shopping center lot, its parking lights on but the engine off. Because of the late hour and the absence of other vehicles in the immediate area of the shopping center, the officer determined the driver of the vehicle might need assistance. As he approached the vehicle, - 3 - he noticed the car keys in the ignition. Although the vehicle was not running, the keys had been turned so as to activate the electrical system and illuminate various systems lights on the dashboard. The officer cited defendant with operating a motor vehicle while under the influence of alcohol, driving under a twelve point suspension, failed consent, and failure to pay a 1 reinstatement fee. The court found the facts showed defendant had been awake in his car with no indication he had been engaged in criminal activity. In addition, there were no reports of criminal activity to justify the officer's approach. The court granted the motion to suppress, ruling the city presented no evidence demonstrating the officer possessed "any articulable reason to investigate" defendant's parked vehicle. Not every warrantless contact between a police officer and a citizen is subject to the Fourth Amendment. In Terry v. Ohio (1968), 392 U.S. 1, 19, at fn. 16, the court stated, "[o]bviously, not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." In United States v. Mendenhall (1980), 446 U.S. 544, 1 The record indicates defendant's driver's license had been suspended three times previously for driving while under the influence of alcohol: in June 1991, September 1992, and December 1993. - 4 - 554 (plurality opinion), the court noted, "[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but `to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.'" Id. at 191, citing 446 U.S. 544, 554- 555 (internal citation omitted); see, also, State v. Smith (1989), 45 Ohio St.3d 255, 257-260, reversed on other grounds, sub nom. Smith v. Ohio (1990), 494 U.S. 541; State v. Johnson (1986), 34 Ohio App.3d 94, 96. Hence, the distinction between an intrusion amounting to a seizure of the person and an encounter that intrudes upon no constitutionally protected interest centers on the nature of contact. "A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenhall, supra, at 554; see, also, Florida v. Royer (1983), 460 U.S. 491, 497; I.N.S. v. Delgado (1984), 466 U.S. 210. This concept of restraint requires consideration of all the surrounding circumstances. In Mendenhall, the plurality noted circumstances carrying an indicia of authority sufficient to comprise a seizure might include, "[the] threatening presence of several police officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the - 5 - officer's request might be compelled." Id. at 554. The court has further refined the concept of seizure to incorporate an element of physical restraint. In California v. Hodari D. (1991), 111 S.Ct. 1547, the court focused on the presence of physical force to determine that no seizure occurs when, without more, an officer makes a "show of authority" to an individual but the individual fails to yield to the officer's authority. Id. at 1552; accord Florida v. Bostick (1991), 501 U.S. 429, 439; State v. Williams (1990), 51 Ohio St.3d 58, 61 (police officer's initial question to defendant, "I asked him what he was doing there" cannot be construed as a restraint upon liberty); State v. Mosely (Oct. 13, 1994), Cuyahoga App. No. 67214, unreported (asking defendant to come over to police car for questioning has no element of physical force). Defendant purposefully choose not to raise any issues relating to a seizure. Defense counsel stated: "MR. DAIKER: *** In terms of the motion that we have filed, it is based solely on the stop and it does not concern the field sobriety test." "THE COURT: All right." "MR. GAMBINO: That helped me, Judge, and I appreciate it. I wasn't sure how far the record wanted to go." "THE COURT: Okay. So once he gets up to the window of the car to talk to the Defendant, that is the time frame in which--that is at issue?" "MR. DAIKER: That's correct, your Honor, That's how narrow it is." - 6 - By narrowing the ground for his motion, defendant waived all other issues that might have been raised in the motion to suppress, including any issues relating to a seizure. "In order to require a hearing on a motion to suppress evidence, the accused must state the motion's legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided." State v. Shindler (1994), 70 Ohio St.3d 54, syllabus (emphasis added); Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph one of the syllabus. A defendant's failure to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal. Xenia v. Wallace, supra, at 218; Bryan v. Fox (1991), 76 Ohio App.3d 607, 610. There is simply no evidence suggesting the arresting officer seized defendant. The officer merely approached defendant because the circumstances suggested defendant might require some assistance. The officer testified: "Well, I thought it was suspicious. So I approached the vehicle to see if there was something wrong with the driver, you know, or what he was doing, first of all, make sure that he was okay, that he wasn't sick, that he was not unconscious or hurt or injured or if he was performing any criminal activity." (emphasis added). Because the arresting officer's testimony ends before he approached defendant's car, we have no evidence upon which we could conclude a seizure occurred. Accordingly, we find the trial court - 7 - should not have granted the motion to suppress. We sustain the assigned error and remand for further proceedings. Judgment reversed and remanded. - 8 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, CHIEF JUSTICE JAMES M. PORTER, JUDGE SARA J. HARPER, JUDGE, DISSENTS SEE DISSENTING OPINION ATTACHED N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68316 CITY OF STRONGSVILLE : : DISSENTING Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS G. RUSSELL : : Defendant-appellee : : DATE: NOVEMBER 30, 1995 SARA J. HARPER, J., DISSENTING: I respectfully dissent from the majority's decision. The trial court, in my opinion, correctly determined in the case sub judice that the police officer lacked an articulable reason to approach appellee's vehicle and investigate. For the reasons stated herein, the trial court's decision to grant defendant- appellee's motion to suppress evidence should have been affirmed. In reviewing a motion to suppress, we accept the trial court's findings of fact and rely on its ability to evaluate the credibility of the witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366 citing State v. Fanning (1982), 1 Ohio St.3d 29. To determine whether the police's intrusion into the constitutionally protected interests of a private citizen is valid, the Terry standard requires that a police officer must be able to point to specific and articulable facts, which taken together with rational inferences from these facts, would reasonably warrant that - 2 - intrusion. Terry v. Ohio (1968), 393 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906. A police officer may stop and investigate unusual behavior, even without probable cause to arrest, when he possesses reasonable suspicion, based on specific and articulable facts, that a suspect is engaging in, or is about to engage in criminal activity. State v. Evans (1993), 67 Ohio St.3d 405; State v. Andrews (1991), 57 Ohio St.3d 86, 87. At the motion to suppress hearing, the arresting officer testified that he saw appellee seated upright and awake, in a parked vehicle in the parking lot adjacent to the Taco Bell restaurant, during the early morning hours of September 24, 1994. As appellee sat in his parked vehicle, the arresting officer observed appellee's vehicle with its parking lights on and engine off. The arresting officer did not testify that he observed appellee engaging in any unusual behavior as he sat in the parked vehicle. Nor was appellee observed engaged in conduct that would indicate criminal activity. Moreover, the arresting officer testified he had not received any reports from the businesses surrounding the parking lot, concerning criminal activity, for which appellee could be a suspect. Furthermore, the arresting officer could not identify any ordinance appellee may have violated by his conduct, before the officer reached the vehicle. Here, the trial court evaluated the arresting officer's undisputed testimony, and failed to discern circumstances which supported the appellant's contention the - 3 - officer had an articulable reason to approach appellee's vehicle to investigate. Based on these facts, the trial court rendered a proper determination when it ruled the arresting officer lacked any articulable reason to approach and investigate appellee. .