[W]e agree with the trial court’s determination that Sergeant Lee’s encounter with Ms. Booker was a consensual encounter such that the Fourth Amendment was not implicated.

 

State v. Booker

2023 – Ohio – 4231

Fifth District Appellate Court

Delaware County, Ohio

November 21, 2023

Sergeant Lee had a Gut Feeling

On Monday January 25, 2021, Delaware County Sergeant Andrew Lee was working a 10:00 a.m. to 6:00 p.m. shift serving civil legal papers. He was driving a marked police cruiser and wearing his uniform. He parked his cruiser in the fire lane of the Home Depot store and served the civil paper to someone inside the store. When he got back into his cruiser after leaving the store, he noticed a woman exiting the Home Depot from the store’s entrance. He did not hear any alarms coming from the Home Depot store. While working second shift for ten years, Sergeant Lee had prior experience investigating shoplifting complaints. The woman was carrying a large purse, which appeared to be overflowing. The woman’s head was down, and she appeared to be protecting the bag tightly. Based on her mannerisms and his prior experience, he suspected the woman was possibly committing a shoplifting offense or some other criminal activity. At the hearing, Sergeant Lee identified the woman he saw as Ms. Katrina Booker.

Where was Ms. Booker Going?

Sergeant Lee observed Ms. Booker walk through the parking lot towards the Steak n’ Shake in the next parking lot. He drove his cruiser across the parking lot and stopped the cruiser, angling his cruiser into the rear entrance of the Eclipse Car Wash. Sergeant Lee did not activate his lights or siren. Sergeant Lee’s encounter with Ms. Booker took place by the rear entrance to the parking lot of a car wash between the Home Depot and the Steak n’ Shake. Sergeant Lee exited his cruiser where Ms. Booker stood at the edge of the car wash parking lot towards Home Depot.

Sgt. Andrew Lee observed Ms. Booker walk southbound in the Home Depot Parking lot, located at 8704 Owenfield Drive, Delaware, Ohio toward the Eclipse Car Wash and Steak and Shake Restaurant.  Sgt. Lee had a gut feeling that was right but were his actions lawful?

Ms. Booker Admits She is a Thief

After Sergeant Lee exited his vehicle, he engaged in the following dialogue with Ms. Booker as recorded by Sergeant Lee’s body cam:

Sergeant Lee: How’s it going?

Ms. Booker: Fine.
Sergeant Lee: What’s going on?

Ms. Booker: Nothing.

Sergeant Lee: You lost?
Ms. Booker: Yeah. I was looking for my husband. I thought he was going to Steak Escape.
Sergeant Lee: You thought he was going to Steak Escape?
Ms. Booker: Yeah.
Sergeant Lee: Did you buy anything over here?
Ms. Booker: No because he was. I thought he was going to get some wall things (unintelligible) but they wasn’t in there.
Sergeant Lee: You got a pretty big bag there?
Ms. Booker: Huh. Yeah, that’s just some towels in it.
Sergeant Lee: Some towels in it?
Ms. Booker: Yeah, that’s just some towels in it.
Sergeant Lee: Do you mind showing me that you didn’t steal anything from Home Depot?
Ms. Booker: Yes.
Sergeant Lee: You do mind?
Ms. Booker: Yes.
Sergeant Lee: Cause it doesn’t look like you have towels in there?
Ms. Booker: No, it’s the (unintelligible) right here. (showing a pink fabric item in top of purse)
Sergeant Lee: Yeah, what are the boxes that are hidden under it?
Ms. Booker: Some stuff that I took.
Sergeant Lee: You walked out, yeah, some stuff that you took from there?

Ms. Booker: You want them back?
Sergeant Lee: Can you put your bag up here?

Were those Towels or Three Caseta Smart Bridge Dimmer Switches?

 Sergeant Lee testified that when Ms. Booker told him she had towels in the bag, he did not accept her explanation because he could see that she had merchandise in her purse, not towels. Ms. Booker’s purse was searched on the hood of the cruiser. In the purse, there were three Caseta Smart Bridge Dimmer Switches, each valued at $99.95. Sergeant Lee requested a patrol unit for assistance. They contacted Home Depot, which confirmed the items found in Ms. Booker’s purse were stolen from the Home Depot store. Home Depot wanted to pursue charges and Ms. Booker was placed under arrest.

Motion to Suppress

On June 1, 2022, the trial court denied Ms. Booker’s motion to suppress. It found that Ms. Booker’s interaction with Sergeant Lee was a consensual encounter. Ms. Booker was not subject to a custodial interrogation and did not require Miranda warnings.

Change of Plea and Sentencing

On February 7, 2023, Ms. Booker appeared for a bond hearing after a bench warrant was issued when she failed to appear at the December final pretrial. Her counsel notified the trial court that Ms. Booker wanted to change her plea to no contest. The trial court engaged in the plea colloquy and accepted Ms. Booker’s change of plea to no contest on the charge of theft, a first-degree misdemeanor in violation of O.R.C. §2913.02. The trial court found Ms. Booker guilty.

No Jail Sentence – Four Days Time Served

The trial court sentenced Ms. Booker to 180 days in jail with 176 days suspended, jail time credit for four days served, one year community control, and a fine of $150.00. The sentencing entry was filed on February 7, 2023. It is from this judgment that Ms. Booker now appeals.

Appeal

In her sole Assignment of Error, Ms. Booker argues the trial court erred when it denied her motion to suppress the evidence resulting from her stop by Sergeant Lee. We disagree.

Three Types of Citizen – Law Enforcement Encounters

This Court has observed the law within the State of Ohio recognizes three types of police-citizen encounters: (1) consensual encounters, (2) Terry stops, and (3) arrests. In this case, the trial court found the encounter between Ms. Booker and Sergeant Lee was consensual.

Consensual Encounter Established Case Law

A consensual encounter occurs when a police officer approaches a person in a public place, engages the person in conversation, requests information, and the person is free to refuse to answer and walk away. State v. Taylor, supra. The United States Supreme Court “[has] held repeatedly that mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, (1991). “[M]erely approaching an individual on the street or in another public place[,]” seeking to ask questions for voluntary, uncoerced responses, does not violate the Fourth Amendment. United States v. Flowers, 909 F.2d 145 (6th Cir. 1990). “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” Florida v. Bostick, 501 U.S. 429, (1991). The person approached, however, need not answer any question put to him, and may continue on his way. Florida v. Royer, 460 U.S. 491, (1983). Moreover, he may not be detained even momentarily for his refusal to listen or answer. So long as a reasonable person would feel free “to disregard the police and go about his business,” California v. Hodari D, 499 U.S. 621 (1991), the encounter is consensual, and no reasonable suspicion is required. The Ohio Supreme Court has held that a police officer’s statement, “Hey, come here a minute,” while nominally couched in the form of a demand, is actually a request that a citizen is free to regard or disregard. State v. Yacobucci, 2019-Ohio-36.

What Distinguishes a Consensual Encounter with Investigative Detention?

A consensual encounter does not implicate the Fourth Amendment’s protection against unreasonable searches and seizures unless the police officer has restrained the person’s liberty by a show of authority or physical force such that a reasonable person would not feel free to decline the officer’s request or otherwise terminate the encounter.

Ms. Booker Refutes her Encounter was Consensual

Ms. Booker argues that under the totality of the circumstances, her encounter with Sergeant Lee was not consensual. Sergeant Lee stopped Ms. Booker while he was in full uniform and driving a marked cruiser. He drove up to Ms. Booker while she was walking in a parking lot, stopped the cruiser, and got out of the cruiser to speak with Ms. Booker. Sergeant Lee asked Ms. Booker about the size of her purse. When she responded that she had towels in the bag, Sergeant Lee asked her if she minded showing him that she did not steal anything from Home Depot. Ms. Booker contends that this accusatory question, considering the other circumstances, elevated the encounter from consensual to a seizure. Ms. Booker cites this Court to State v. Goodloe, 2013-Ohio-4934.

Ms. Booker Cites State v. Goodloe Where the Suspects Path was Blocked

In Goodloe, two officers approached the defendant while on patrol and noticed bulges on each side of the defendant’s pants. The officers could identify one bulge as a cell phone but could not identify the other. The officers parked their cruiser and approached the defendant on the sidewalk. One officer walked up beside the defendant and the other stood on the sidewalk in front of him. One officer asked the defendant if he knew of anyone looking into cars in the parking lot he had just walked through. When the defendant responded that he did not, the officer asked whether he had any firearms. The defendant did not respond verbally, but sighed, slumped his shoulders, and dropped his head. The officer perceived this to be an admission and reached for the bulge in the defendant’s pocket. The bulge was a gun, which the officer took from the defendant. The trial court granted the defendant’s motion to suppress, finding the officers’ actions were a sufficiently strong showing of police authority to convert a consensual encounter into a seizure. The judgment was affirmed on appeal because the court found under the totality of the circumstances, the officers’ show of authority would have caused a reasonable person to believe he was not free to leave. As part of their determination, the court found the police officer’s questions about criminal activity and whether an individual had any firearms were of such an “accusatory nature” that they “create[d] an air of authority” that could further cause a reasonable person to believe that he was not free to leave and that he had to answer the officer’s questions.

Fifth District Identifies the Flaws in Ms. Booker’s Appeal

Under the totality of the circumstances in the present case, we do not find that Sergeant Lee’s question about the contents of Ms. Booker’s bag converted the consensual encounter into a seizure. Sergeant Lee, the only officer on the scene, drove to Ms. Booker’s location in the parking lot without lights or sirens. In Goodloe, the trial court found it was significant for its determination that two officers blocked the defendant’s path on the sidewalk, in addition to asking the defendant an accusatory question. By contrast, Sergeant Lee parked his cruiser but did not block Ms. Booker’s route of travel. Sergeant Lee did not brandish his weapon or otherwise show any force when he encountered Ms. Booker. He engaged Ms. Booker in casual conversation, asking her what was going on and if she was lost. He said to Ms. Booker that she had “a pretty big bag there.” Ms. Booker volunteered that she had towels in the bag. Sergeant Lee testified at the suppression hearing that he could see the merchandise in the bag. After Ms. Booker’s response about the towels, Sergeant Lee asked, “Do you mind showing me that you didn’t steal anything from Home Depot?” Ms. Booker responded to Sergeant Lee that she did mind showing him. Sergeant Lee did not respond that Ms. Booker’s non-compliance would lead to her arrest. Ms. Booker showed him the pink towel on top of the purse. Because he could see them, Sergeant Lee asked her about the boxes hidden under the towel. Ms. Booker then admitted she took the merchandise from Home Depot.

Holding

Under the totality of the circumstances, we agree with the trial court’s determination that Sergeant Lee’s encounter with Ms. Booker was a consensual encounter such that the Fourth Amendment was not implicated.

Ms. Booker’s sole Assignment of Error is overruled.

Information for this article was obtained from State v. Booker, 2023 – Ohio – 4231.

State v. Booker, 2023 – Ohio – 4231 was issued by the Fifth District Appellate Court on November 21, 2024 and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lessons Learned:

  1. Consensual Encounter – There are many factors that can modify a consensual encounter into an investigative detention stop. In this case Sgt. Andrew Lee did none of the critical steps to make his encounter with Ms. Booker into an investigative detention stop.  Lee did not block Ms. Booker’s path with his cruiser or person.  Sgt. Lee did not use a command voice or raise his voice in an authoritative manner.  Lastly, Sgt. Lee was not physically aggressive or intimidating to Ms. Booker.
  2. Gut Feeling – At the inception of the stop Sgt. Lee had a gut feeling that Ms. Booker was a thief and his gut feeling was correct. However, Sgt. Lee did not permit his gut feeling to influence his actions.  Most often law enforcement’s gut feelings are spot-on, but these gut feelings cannot negatively affect the behaviors of the deputy/officer to advance the encounter too soon.  For more on Gut Feeling see: https://www.objectivelyreasonable.com/category/gut-feeling/.  For more on the Consent Doctrine see: https://www.objectivelyreasonable.com/category/consent/.  For more on Investigative Detention see: https://www.objectivelyreasonable.com/category/investigative-detention/
  3. Pre-Sent Arms! Delaware County Sgt. Andrew Lee should be highly commended for his actions on Monday January 25, 2021. Well done!

Does your agency train on Consensual Encounters and Investigative Detention?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.