Officer Fornash’s statement was not threatening or intimidating. He used a conversational tone of voice and did not threaten any consequences if Richardson did not comply. Richardson never expressed any desire to stop the encounter. The officers did not chase Richardson or block his path. They did not brandish weapons or otherwise indicate that he was not free to leave. Consequently, the trial court’s finding that the initial encounter was consensual was supported by competent, credible evidence.

State v. Richardson

2021 – Ohio – 2751

First District Appellate Court

Hamilton County, Ohio

August 11, 2021

Norwood, Ohio Police Officers Ryan Harrison and Nathan Fornash were dispatched to 2744 Norwood Avenue, Norwood, Ohio on a domestic dispute. Officer Fornash stated that the cause of the disturbance was Mr. Theodore Steinle. Mr. Steinle’s mother had called police asking them to talk to him and get him off the property.

Norwood, Ohio Police Officers Ryan Harrison and Nathan Fornash were dispatached 2744 Norwood Avenue, Norwood, Ohio at the request of Ted’s mom.  She wanted him removed from her property.  Fortunately for the officers he had an active warrant and was arrested.  His drug carrying comrade at the scene would be the subject of this appeal.

When the officers arrived, Mr. Steinle’s mother directed them to the back of the house where they saw two men standing next to a car in the driveway and talking. Officer Fornash approached one of the men, who identified himself as Mr. Steinle. Mr. Steinle provided Officer Fornash with his identification, which revealed that Mr. Steinle had active warrants. Officer Fornash arrested him. While searching Mr. Steinle, the Officer Fornash discovered what appeared to be methamphetamine in Steinle’s possession.

While Officer Fornash was searching Mr. Steinle, Officer Harrison noticed Mr. Richardson “moving to the opposite side of the car” and “making some strange movements.” Officer Harrison stated, “He kind of went to an angle that we couldn’t see him very well. He dipped down and started reaching down towards the ground.” At that point, Officer Harrison, who had been an officer for nine years and had made approximately 100 drug arrests per year, was “very suspicious” that Mr. Richardson possessed drugs.

When Mr. Richardson came back around the car to approach Officer Harrison, he asked Mr. Richardson if he had anything illegal on his person. He stated that although he did not remember Mr. Richardson’s exact words, he said something along the lines of “I don’t have anything on me, you can search.” Mr. Richardson opened his coat pockets and took out “a couple of things.” According to Officer Harrison, Mr. Richardson put his hands on the trunk of the car and “kind of stepped back and took a side stance with his feet. It’s kind of what’s depicted in the movies, as you would see a police officer search somebody.” When the officer searched Mr. Richardson, he found a baggie of methamphetamine and drug paraphernalia. Evidently, the ONLY person who did not have methamphetamine at 2744 Norwood Avenue was Ted’s mom, Mrs. Steinle!

While dealing with Mr. Steinle, Officer Fornash heard Officer Harrison ask Mr. Richardson if he had “anything on him” and Mr. Richardson said that he did not. Although Officer Fornash could not “remember verbatim the actual words that were used,” he stated that Mr. Richardson “gave consent” for the search.

The entire encounter was captured on Officer Harrison’s body camera, and the trial court reviewed the recording. The video portion was clear, but noise from the wind and traffic from a nearby highway drowned out most of the audio recording, except for Officer Harrison’s voice.

The video showed that as the officers approached the two men, Richardson started to walk away until Officer Fornash said, “Where are you going big man? Come on over here.”. It would be this statement and the physical response of Mr. Richardson that immediately followed that would be at the center of this appeal.  In response, Mr. Richardson walked back toward the officers. He stood next to Officer Harrison while Officer Fornash spoke with Mr. Steinle. Officer Fornash then handed Officer Harrison something that “looked like meth.”.

The encounter between the officers, Mr. Steinle and Mr. Richardson occurred at the rear of 2744 Norwood Avenue.

A short time later, Officer Harrison asked Mr. Richardson, “Buddy you got anything on you?” Mr. Richardson shook his head and said “No, sir.” He then put his hands in his pockets and took out two objects. At this moment officer safety should be top of mind and the officers involved quickly make a series of good decisions.  Officer Harrison told him to “keep your hands out of your pockets, put your hands on the hood.” Officer Harrison began searching his coat pockets and asked, “Do you got anything?” Richardson said, “No sir.”

Subsequently, Mr. Richardson attempted to turn around, hunched over, and put his hands above his head. Officer Harrison said, “What in the world? What are you—just put your hands on the car, what are you doing?” Officer Harrison then asked him, “When’s the last time you did meth?” Richardson’s response was not entirely audible, but he could be heard saying, “I don’t have anything.” Officer Harrison replied, “That’s what he said, too,” referring to Mr. Steinle.

The officer continued to search Mr. Richardson, and Mr. Richardson again removed his hands from the hood of the car. Officer Harrison said, “If the hands come off again, you’re going in handcuffs.”. Eventually, the officer reached in Mr. Richardson’s pants pocket and found a baggie. He asked Mr. Richardson, “What’s in here?” He then placed Mr. Richardson under arrest.

Mr. Richardson filed a Motion to Suppress the methamphetamine claiming he was unlawfully detained and the subsequent search was not based on consent.  The First District Appellate Court denied the motion as it held “Although Officer Fornash told Richardson to come over to him rather than asking him to do so, none of the other facts and circumstances demonstrate a show of authority sufficient to turn a consensual encounter into a seizure. Richardson was not attempting to flee the scene. He did not walk toward the driveway, but instead was walking to the back of the enclosed backyard. Officer Fornash’s statement was not threatening or intimidating. He used a conversational tone of voice and did not threaten any consequences if Richardson did not comply. Richardson never expressed any desire to stop the encounter. The officers did not chase Richardson or block his path. They did not brandish weapons or otherwise indicate that he was not free to leave. Consequently, the trial court’s finding that the initial encounter was consensual was supported by competent, credible evidence.”.

Lessons Learned:

  1. The interactions between law enforcement and citizens can be categorized as consensual encounters and non-consensual encounters. If the interaction is non-consensual then law enforcement must, at minimum, have reasonable suspicion to believe that this person has or is involved in criminal activity.  When Officer Fornash said, “Where are you going big man? Come on over her”.  This statement depending on tone, inflection, physical stance and body language would all be analyzed to determine if the officer had commanded or requested Mr. Richardson to respond.  The interaction between Officer Harrison and Mr. Richardson would ultimately be determined to be consensual.
  2. When an interaction begins as a consensual encounter law enforcement must be cautious of tone, inflection, physical stance, body language and any other behaviors that would lead a reasonable person to believe that he did not have a choice to not do what the officer had requested. Because suspects are consistently non-compliant some officers fail to distinguish between consensual and non-consensual encounters.   If an officer uses too strong of a tone, inflection, physical stance, body language or other related behavior during a consensual encounter, then the interaction could be determined to be non-consensual.  Obviously, if an encounter is determined to be non-consensual without reasonable suspicion, any evidence obtained will be suppressed.
  3. At one-point Officer Harrison said ““If the hands come off again, you’re going in handcuffs.”. For more information on when law enforcement can handcuff during an investigative detention see Can Law Enforcement Handcuff during an Investigative Detention?.  For clarification, the encounter with Officer Harrison was not an investigative detention.
  4. Officer Fornash and Officer Harrison should be commended for making two arrests during this domestic dispute call for service! One of the best ways to quash a domestic dispute [not domestic violence] call for service is to make an arrest at scene for a valid warrant.  If one of the disputants is removed from the scene then there is much less chance for domestic violence or return calls for service.
  5. The officers did well to communicate while encountering two suspects in the same small geographical area. Officer Harrison did well to begin his interaction as a consensual encounter with Mr. Richardson while his partner Officer Fornash was concurrently engaged in an arrest.  On paper this is easily completed.  But in practical application is much more challenging.  Well done Officer Harrison!

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.