Because Sergeant Ruehrwein’s statement did not convert the encounter from a consensual one to an investigative detention, the trial court erred in granting Kirk’s motion to suppress.
State v. Kirk
2020 – Ohio – 323
Twelfth District Appellate Court
Clermont County, Ohio
On July 26, 2018, between 6:00 p.m. and 7:00 p.m., Williamsburg Police Sergeant Randall Ruehrwein was on routine patrol when he observed Mr. Jeffrey Kirk in the parking lot of a Dollar General store at 4180 State Route 133, Williamsburg, Ohio.
Sgt. Ruehrwein observed Mr. Kirk on the back corner of the Dollar General attaching a band saw to a bicycle so he stopped to investigative further.
Mr. Kirk was attaching a large object to the front of his bicycle. Sgt. Ruehrwein parked his police cruiser approximately ten feet from Mr. Kirk, exited the cruiser, and approached him. The officer did not activate the light bar or the sirens of his cruiser and did not approach Mr. Kirk with his weapon drawn or in a threatening manner.
Sgt. Ruehrwein told Mr. Kirk “I’ll be back with [you] in a minute.” while they interacted near the dumpsters in Williamsburg, Ohio. This statement was at the center of Mr. Kirk’s appeal for Possession of Methamphetamine.
Mr. Kirk advised Sgt. Ruehrwein that he was attaching a band saw he had found on the side of the street by a residence on Hudson Street. The Sgt. Ruehrwein asked Kirk for identification. Mr. Kirk replied he did not have any identification on him and instead verbally provided his name and social security number. Sgt. Ruehrwein told Mr. Kirk, “I’ll be back with [you] in a minute,” then proceeded to his cruiser where he ran Mr. Kirk’s personal information through LEADS. Within a couple of minutes, the Sgt. Ruehrwein learned that Mr. Kirk was subject to an extradition warrant from the Commonwealth of Kentucky [for what?]. Sgt. Ruehrwein returned to Mr. Kirk, advised him of the warrant, and informed him that he was going to pat him down and secure him. Before he could do so, Mr. Kirk fled. After a brief foot pursuit, Sgt. Ruehrwein caught Mr. Kirk and placed him under arrest. In searching Mr. Kirk incident to the arrest, the officer discovered a small vial of methamphetamine on Mr. Kirk’s person.
Mr. Kirk was indicted on one count of aggravated possession of drugs. He moved to suppress the evidence, arguing that he was unlawfully detained once Sgt. Ruehrwein told him, “I’ll be back with [you] in a minute.” The trial court conducted a hearing on the matter; Sgt. Ruehrwein was the sole witness. Four weeks after the suppression hearing, the state filed a memorandum in opposition to Mr. Kirk’s motion to suppress, arguing that the officer’s interaction with Mr. Kirk was a consensual encounter until the sergeant discovered Mr. Kirk’s arrest warrant. At that point, the state argued, the officer had probable cause to arrest Kirk.
On July 1, 2019, the trial court granted Mr. Kirk’s motion to suppress. The trial court found that while the initial encounter between Mr. Kirk and Sgt. Ruehrwein was consensual, it evolved into an investigatory detention without a reasonable, articulable suspicion of criminal activity when the officer told Mr. Kirk, “I’ll be back with [you] in a minute.” The trial court reasoned that the sergeant’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.”.
The state appealed the decision and on February 3, 2020 the Twelfth District Appellate Court held “Sergeant Ruehrwein’s statement was not enough of a show of force or authority to convert the encounter into a seizure. We therefore find that Kirk was not seized within the meaning of the Fourth Amendment when the officer told him he would be back with him in a minute. Because Sergeant Ruehrwein’s statement did not convert the encounter from a consensual one to an investigative detention, the trial court erred in granting Kirk’s motion to suppress.”.
This case was issued on February 3, 2020 by the Twelfth District Court of Appeals which is binding on the following counties: Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren. For the rest of the State of Ohio this case is considered persuasive. Though law enforcement agencies in other counties do not have to follow the decision, it is considered instructive.
Lessons Learned:
- The question in this case is whether the encounter was an investigative detention at the moment Sgt. Ruehrwein said “I’ll be back with [you] in a minute,”. The court began its’ evaluation based on 2012 6th Circuit decision, State v. Rodriguez 485 F.Appx. 16 (6th 2012), when the court held “”The test is not whether police expressly instruct a person not to leave, but whether the totality of the circumstances would convey to a reasonable person that she is not free to leave.” Id at 19. In this case the Twelfth District Appellate Court determined that the sergeant’s statement did not rise to an investigative detention. Though the three appellate judges agreed that the Motion to Suppress should be overturned, Judge Robin Piper agreed in the decision only and not the analysis. Two of the judges believed that the interaction was consensual until the warrant was verified. Judge Piper disagreed that the encounter was consensual, but rather, based on the totality of the circumstances believed the stop was a lawful investigative detention. I strongly agree with Judge Piper. Mr. Kirk’s ‘story’ of finding a bandsaw in a residential alley and decided to attach it to his bicycle in the parking lot of a Dollar General Store would lead a reasonable officer to believe that criminal activity was afoot. So, it would not matter that if the statement “I’ll be back with [you] in a minute,” was intended to assure Mr. Kirk did not leave. Whether you agree or disagree with Judge Piper and I is not relevant at this time. What is relevant is what a very close call this was for the trial court and appellate court.
- Often there is a fine line between a consensual encounter and investigation detention and this case is a prime example. For an encounter to remain consensual the person must be free to leave. Consent has three legal elements, Knowingly, Voluntarily and Intelligently. If one of the elements is removed, then the encounter will not be consensual. Most often, it is the Voluntary element that is in question. If Sgt. Ruehrwein had given stern commands, drew his firearm, placed Mr. Kirk in handcuffs or placed him in the cruiser then the encounter would have not been consensual. This is not an all-inclusive list but some of the most common actions that elevate a consensual encounter to investigative detention. The Tenth District Appellate Court, which is Franklin County, Ohio only has twice determined that if a law enforcement officer retains an identification card/driver’s license during a consensual encounter that ripens the stop from consent to investigative detention. See State v. Jones, 188 Ohio App.3d 628 (2010) and State v. Westover, 2014 Ohio 1959 (2014). In this case Sgt. Ruehrwein only had Mr. Kirk’s information not an identification card.
- When Sgt. Ruehrwein initially observed Mr. Kirk, he knew that something was different. He had a gut feeling that Mr. Kirk was up to no good. For more on an officer’s gut feeling see Officer Williams’ Gut Feeling was Scientifically Accurate But Was It Legally Justified? Lessons Learned #2. All officers develop a sense of what is normal and abnormal in their jurisdiction. Some are better than others and on this day Sgt. Ruehrwein was spot-on.
- What should be highlighted is that the arrest occurred on July 26, 2018 and the trial court granted the Motion to Suppress on July 1, 2019, twenty-five days short of one year. Then the appellate court issued its’ decision on February 2, 2020. The courts, full of lawyers and judges, had months to decide the finite difference between a consensual encounter and an investigative detention. Even one of the appellate judges determined the stop WAS an investigative detention. Yet, Sgt. Ruehrwein made his decision within a few seconds. This incident highlights that law enforcement is the hardest job in America! Well done Ruehrwein!
Information for this article was obtained from State v. Kirk, 2020 – Ohio – 323.
Does your agency train on Consensual Encounters?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!
Robert H. Meader Esq.