COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71259 CITY OF RICHMOND HEIGHTS : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ERIC M. DAWSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Lyndhurst Municipal Court Case No. 96 CRB 00059 JUDGMENT: Reversed and Remanded DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: KATHARINE LANG BETTASSO, ESQ. JAMES G. DAWSON, ESQ. Richmond Heights Prosecutor 4881 Foxlair Trial First Floor Richmond Hts., Ohio 44143 Walsh Professional Court 466 Northfield Road Bedford, Ohio 44146 - 2 - DYKE, J.: Defendant Eric M. Dawson appeals from his conviction for violating Richmond Heights Codified Ordinances Section 529.021(A), which proscribes the purchase of intoxicating liquor by an underage person. For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion. On January 24, 1996, the City of Richmond Heights filed a complaint against defendant charging him with the unlawful purchase of intoxicating liquor. On March 12, 1996, defendant filed a motion to suppress the evidence obtained against him, asserting that he was unreasonably stopped and searched. The trial court held an evidentiary hearing on the motion to suppress on May 15, 1996. The city presented the testimony of Richmond Heights Police Officers James Nagy and Denise DeBiase. Officer Nagy testified that on January 22, 1996 at approximately 11:00 p.m., an unidentified man approached him in the parking lot of the police station as he was preparing to go off duty. According to this man, a male had ducked down to try to conceal himself in some bushes near the Fox Medical Building at the intersection of Richmond and Highland Roads moments earlier as Nagy negotiated his police car through this intersection. Nagy radioed the man's report to his base dispatcher then proceeded to the area. Nagy began to check a car which was parked behind the Fox Medical Building and same man who had approached him previously stopped Nagy a second time and indicated that the person he had - 3 - seen earlier was now walking out of Dairy Mart. Nagy attempted to obtain the license plate number of the informant. He later determined that he had jotted it down incorrectly as a computer check of that plate number indicated that it was for a rental car and had expired in 1993. Officer Nagy then approached defendant in the parking lot of a nearby gas station, and told him to take his hands out of his pockets. Defendant complied and Officer Nagy then asked him if he had any weapons. Defendant stated that he did not. Officer Nagy then asked whether he could pat defendant's pockets to check for weapons, and defendant allowed him to do so. During the pat down, Nagy felt a hard object which defendant stated was a bottle. Officer Nagy asked defendant if he could look at the bottle and defendant raised the flap of his pocket. Using his flashlight, Nagy then determined that there was a clear liquid in it, which gave Nagy reason to believe was an alcoholic beverage. Officer Nagy then explained that he had received a report of a suspicious person in the area and questioned defendant about what he was doing out. Defendant then reportedly stated that he was a high school student and was on his way home to study. Officer Nagy then asked to see the bottle. Defendant made no movement, and Nagy then reached into his pocket and confiscated the bottle. He then asked defendant where he had gotten the bottle and defendant stated that he had just purchased it from Dairy Mart. Nagy informed defendant that it was illegal for him to purchase alcohol if he is - 4 - under twenty-one years old, and asked for identification. Defendant had no identification. Thereafter, other officers who had responded to the scene took defendant to his home. Defendant was not arrested, but was instead served with a summons the following day. On cross-examination, Officer Nagy stated that it is not a crime to jump behind bushes, and the man who had approached him at the police station had not made an official police report of criminal activity. In addition, Nagy acknowledged that he did not know if the informant was honest or reliable. As to this defendant in particular, Officer Nagy stated that he did not observe defendant carrying anything when he spotted him leaving the Dairy Mart. Officer Nagy did not ask for permission to speak with defendant and did not tell defendant that he was free to disregard the officer's questions. Defendant was not read his Miranda rights at any time. Officer Nagy's purposes for questioning defendant included determining if defendant knew anything regarding the allegation of someone behaving suspiciously in the area, and determining what defendant was doing in the area. He assumed, however, that defendant was potentially armed, in accordance with his training. In addition, Nagy stated that he questioned the clerk in Dairy Mart regarding her sale of the bottle of liquor after other officers had arrived on the scene. Officer Denise DeBiase testified that she was working with - 5 - Officer Bryan Rinas on January 22, 1996. At approximately 11:00 p.m., they received Officer Nagy's call concerning the allegation of a suspicious person and reported to the area to provide backup assistance. When Officer DeBiase arrived, defendant's arms were out approximately one foot, with his palms facing Nagy. Nagy asked if he could pat him down and defendant's arms remained in the same position. After conducting the pat down, Nagy asked him what was in his pocket and defendant said that it was a bottle. DeBiase and Rinas subsequently took defendant to his home and did not arrest him. The trial court denied the motion to suppress, and defendant entered a plea of no contest. The trial court found defendant guilty and imposed a fine of $100.00. Defendant now appeals and assigns three errors for our review. Defendant's first assignment of error states: THE TRIAL COURT FAILED TO APPLY THE CORRECT LAW TO THE FINDINGS OF FACT AND THEREFORE ERRED TO THE PREJUDICE OF THE APPELLANT BY DENYING HIS MOTION FOR SUPPRESSION OF ALL EVIDENCE OBTAINED BY THE CITY OF RICHMOND HEIGHTS. Within this assignment of error, defendant asserts that the trial court erred in denying his motion to suppress since the evi- dence obtained against him was the product of an illegal seizure and search. The Fourth Amendment to the Constitution of the United States provides: The right of the people to be secure in their per- - 6 - sons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. In State v. Retherford (1994), 93 Ohio App.3d 586, 594-595, the court noted that the Supreme Court of the United States has identified three categories of police contact: The first is referred to as 'consensual encounter,' in which there is no restraint on the person's liberty. There need be no objective justification for such an encounter. The second type, called 'detention,' involves a seizure of the individual for a limited duration and for a limited purpose. A constitutionally acceptable detention can occur 'if there is an articulable suspicion that a person has committed or is about to commit a crime.' The third type involves seizures in the nature of an arrest, which may occur only if the police have probable cause to arrest a person for a crime. Florida v. Royer (1983), 460 U.S 391, 103 S.Ct. 1319, 75 L.Ed.2d 229. See, also, State v. Morris (1988), 48 Ohio App.3d 137, 138, 548 N.E.2d 969, 970, citing United States v. Pointier (C.A.8, 1987), 818 F.2d 679. Pursuant to the first category of police contact, consensual encounters, it is clear that the police may approach someone in a public place, identify themselves, ask whether the individual is willing to answer questions, and use any voluntary responses they receive in a criminal prosecution, without implicating any Fourth Amendment protections. Id.; Florida v. Royer, supra, 460 U.S. at 497. In such encounters, the police may ask questions of an individual even when they have no basis for suspecting that individual. INS v. Delgado (1984), 466 U.S. 210, 219-220. They may likewise ask to examine the individual's identification, United States v. Mendenhall, supra, at 557-558, and may request consent to - 7 - search the individual's luggage. Florida v. Royer, supra, at 502. In these instances, the individual need not be told that he or she is free to go before the encounter may proceed. Ohio v. Robinette (1996), __ U.S. __, 117 S.Ct 417, 421; United States v. Mendenhall, supra, at 555. The second category of police contact, detentions, constitute "seizures" within the meaning of the Fourth Amendment. State v. Retherford, supra, at 595. For this category of encounters, police must possess "reasonable, objective grounds" to detain "even momen- tarily." Id. Where the detention is of the magnitude of an investigative stop, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id., citing Terry v. Ohio (1968), 392 U.S. 1, 21. An investigatory stop based on reasonable suspicion may be justified by information received from an anonymous tip, when such information is corroborated by independent police investigation. Alabama v. White (1990), 496 U.S. 325, 331-332. Where the circumstances do not justify a reasonable suspicion that the individual is involved in criminal conduct, however, and the police can only say that the individual "looked suspicious," the investigative stop is not justified. Brown v. Texas (1979), 443 U.S. 47, 51-52. In determining whether the police contact should be viewed as a consensual encounter, which does not implicate the individual's - 8 - Fourth Amendment rights, or a detention, which does implicate Fourth Amendment protections, the paramount question is whether "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, supra, at 554; California v. Hodari D. (1991), 499 U.S. 621, 627-628; Florida v. Bostick (1991), 501 U.S. 429, 434. The Mendenhall Court also enunciated the following factors to consider in determining whether a seizure has occurred: the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language tone of voice indicating that compliance with the officer's request might be compelled. Id. Further, courts evaluating an officer's order that an individual remove his hands from his pockets have determined that a reasonable person would feel restrained by the order and would not feel free to leave, thereby resulting in a "seizure" within the language of the Fourth Amendment. See State v. Daniel (1992), 81 Ohio App.3d 325, 328; State v. Montgomery (May 31, 1996), Montgomery App. No. 15232, unreported. The Daniels Court stated: A reasonable person would have interpreted [Officer] Williams' questions as requests, not orders. *** A seizure did occur when [defendant] Daniel reached into his jacket pocket and Williams ordered him to stop and remove his hand from his jacket. The third type of police contact, the full search, may be justified if undertaken pursuant to a warrant, or one of the well- - 9 - delineated exceptions to the warrant requirement. Retherford, supra, at 596; Mincey v. Arizona (1978), 437 U.S. 385, 390. The search may also be justified if the individual voluntarily consents to the search. Schneckloth v. Bustamante (1973), 412 U.S. 218, 227. Nonetheless, The government bears the burden of proving that the defendant's consent was 'freely and voluntarily given.' Royer, 460 U.S. at 497, 103 S.Ct. at 1324, 75 L.Ed.2d at 236. The government has not met its burden when all it has proven is 'mere submission to a claim of lawful authority.' Id. If the defendant 'consents' while being illegally detained, that consent is vitiated unless the government proves that it was not 'the product of the illegal detention,' but the 'result of an independent act of free will.' (Citations omitted.) Id. at 501, 103 S.Ct. at 1326, 75 L.Ed.2d at 238. Retherford, supra, at 596. Finally, it is beyond dispute that evidence obtained in viola- tion of the Fourth Amendment to the United States Constitution is inadmissible in state courts. Mapp v. Ohio (1961), 367 U.S. 643, 656-658. In this instance, there was an anonymous tip that defendant had behaved suspiciously, but upon Officer Nagy's approach, defendant simply left the store and walked across the adjacent parking lot. The tip and the officer's action upon it are therefore insufficient to justify the investigatory stop. Evaluating the encounter with regard to the issue of consent, it was undisputed that Officer Nagy's first statement to defendant was an order that defendant remove his hands from his pockets. Thereafter, the officer asked whether he could pat down defendant - 10 - for weapons, and later asked to see inside defendant's jacket pocket. In evaluating the significance of each of these facts, we cannot conclude that a consensual encounter occurred herein and cannot conclude that the subsequent search was reasonable or the product of voluntary consent. Rather, we conclude that Officer Nagy's initial approach and order that defendant remove his hands from his pockets restrained his liberty in such a way that a reasonable person would not have felt free to walk away. A seizure therefore occurred. Accord State v. Daniel, supra; State v. Montgomery, supra. Moreover, considering whether there were reasonable objective grounds for the seizure, the facts fail to demonstrate a reasonable suspicion that defendant had committed or was about to commit a crime. Finally, as to whether defendant consented to the subsequent search of his pockets during the seizure, it is clear that defendant was illegally detained at the time the officer requested permission to search. Further, there was no evidence of an independent act of free will establishing consent to search as defendant "made no movement" when Officer Nagy asked to see the bottle. (Tr. 18) Accord Florida v. Royer, supra, at 501. We therefore hold that the trial court erred in denying defendant's motion to suppress the evidence, as it was obtained as the result of the illegal detention and is therefore tainted as "the fruit of the poisonous tree." Accord Mapp v. Ohio, supra. The first assignment of error is well-taken. Further, since - 11 - this assignment of error is dispositive herein, the remaining assignments of error are moot and will not be addressed. App.R. 12(A)(1)(c). Reversed and remanded for further proceedings consistent with this opinion. - 12 - 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 his 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. SWEENEY, C.J., AND DAVID T. MATIA, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .