State v. Bales

[Cite as State v. Bales, 2012-Ohio-4968.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
: Appellate Case No. 24897
Plaintiff-Appellee :
: Trial Court Case No. 2010-CR-3951
v. :
:
JUSTIN A. BALES : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........

OPINION

Rendered on the 26th day of October, 2012.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

ADRIAN KING, Atty. Reg. #0081882, Adrian King Law Office, LLC, 36 North Detroit
Street, Suite 104, Xenia, Ohio 45385
Attorney for Defendant-Appellant

.............

CELEBREZZE, JR., J. (By Assignment):

{¶1} Defendant-appellant, Justin Bales, appeals from his conviction and sentence for
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possession of heroin and drug abuse instruments following a no-contest plea. Appellant

contends that the trial court erred in denying his motion to suppress evidence because the

evidence was seized as a result of an illegal search by the police officer. After careful review

of the record and relevant case law, we affirm the judgment of the trial court.

{¶2} On June 3, 2011, appellant was indicted by the Montgomery County Grand Jury

on charges of possession of heroin, in violation of R.C. 2925.11(A), a felony of the fifth

degree; and possession of drug abuse instruments, in violation of R.C. 2925.12(A), a

misdemeanor of the second degree. On July 8, 2011, appellant filed a motion to suppress the

heroin and syringe recovered from his sock, arguing that he was stopped and searched

illegally. An evidentiary hearing was held to review appellant’s motion to suppress on

August 30, 2011.

{¶3} At the evidentiary hearing, the following facts were presented to the trial court:

On December 10, 2010, Dayton Police Officers Christopher Malson and Rod Roberts were on

patrol in the area of Salem Avenue and Cornell Drive in Dayton, Ohio. The officers were

watching an alley located off Cornell Drive that is associated with numerous drug complaints.

While on patrol, the officers observed a white vehicle pull out of the alley onto Cornell

Drive. At that time, the officers ran the vehicle’s license plate and discovered that appellant,

the registered owner of the vehicle, had recently been stopped in high drug activity areas in the

city of Dayton. The officers followed the vehicle as it approached the downtown area, and

when appellant failed to signal a lane change, the officers initiated a traffic stop.

{¶4} As Officer Malson approached appellant’s vehicle, he observed the female

passenger moving around in the vehicle. Officer Malson testified that the female passenger
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was turning her shoulders in a way that suggested she might be manipulating or trying to place

an object in the center console. This heightened Officer Malson’s concern that the passenger

might be concealing a weapon. Because of this concern, Officer Malson asked appellant to

step out of the vehicle, patted him down for weapons, and placed him into the rear of the

cruiser. Officer Malson testified that he secured appellant in the cruiser because of the

movements the passenger made and the possibility that weapons were being exchanged or

hidden inside the vehicle.

{¶5} Officer Malson then received appellant’s permission to search his vehicle. The

female passenger was asked to sit in the rear of the cruiser with appellant while the search was

conducted. The female passenger was not patted down prior to entering the cruiser because

Officer Malson was waiting for a female officer, Officer Benge, to arrive to conduct the pat

down. While searching appellant’s vehicle, Officer Malson discovered cut-up pieces of

cigarette filters. Officer Malson testified that, in his experience, cut-up cigarette filters are

used by heroin users to filter their heroin into hypodermic needles.

{¶6} Once Officer Benge arrived at the scene, she and Officer Malson went to the back

of the cruiser to remove the female passenger. As they approached the cruiser, they observed

the female passenger manipulating objects inside the front of her pants and in her crotch area.

She was quickly removed from the cruiser and asked to remove the item she had inside her

pants. The female passenger removed a hypodermic needle from her front pocket and was

placed under arrest.

{¶7} At that point, Officer Benge decided to conduct a second pat down on appellant

for safety purposes. Officer Benge testified that she was concerned that the female passenger
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may have handed appellant a weapon while they were unhandcuffed in the back of the cruiser.

Officer Benge explained that

weapons are synonymous with drugs. They go hand and hand. And since she

[the passenger] had a needle on her and he [appellant] was sitting there in the

cruiser unhandcuffed, we wanted to make sure he didn’t have any weapons or

anything on him. * * * It heightened [my concern] the fact that she [the

passenger] had a drug needle on her. We knew that, you know, obviously

they've been involved in something.

{¶8} Officer Benge had appellant exit the cruiser and sit on the curb. When appellant

sat on the curb, his pant legs raised up, revealing a bulge in the inside of his sock near his left

ankle. Because of the hypodermic needle that was just recovered from the female passenger

and the passenger’s movements while in the vehicle and in the cruiser, Officer Benge testified

that she believed the bulge was “more than likely going to be the same contraband that his

passenger had.” Officer Benge testified that she did not pat down the “bulge” because the

passenger’s hypodermic needle had been uncapped, and she “did not want to get poked.”

Officer Benge requested appellant to remove his shoes and socks and had him hand the left

sock to her. When she looked inside the sock, Officer Benge discovered a hypodermic needle

and a capsule of heroin.

{¶9} Based on the testimony provided at the suppression hearing, the trial court

overruled appellant’s motion in its entirety on September 28, 2011. On October 5, 2011,

appellant pled no contest as charged and was subsequently sentenced to community control

sanctions.
[Cite as State v. Bales, 2012-Ohio-4968.]
{¶10} Appellant now brings this timely appeal, raising one assignment of error for

review.

Law and Analysis

{¶11} In his sole assignment of error, appellant argues that the trial court erred in

overruling his motion to suppress.

{¶12} In regard to a motion to suppress, “the trial court assumes the role of trier of

facts and is in the best position to resolve questions of fact and evaluate the credibility of

witnesses.” State v. Hopfer, 112 Ohio App.3d 521, 679 N.E.2d 321 (2d Dist.1996), quoting

State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of

appeals must accept the trial court's findings of fact if they are supported by competent,

credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662,

2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d

Dist.1994). Accepting those facts as true, the appellate court must then determine, as a matter

of law and without deference to the trial court’s legal conclusion, whether the applicable legal

standard is satisfied. Id.

{¶13} We find that the trial court’s findings of fact were supported by competent and

credible evidence. Accordingly, we turn to the constitutionality of the search and seizure.

{¶14} The Fourth Amendment to the United States Constitution and Article I, Section

14 of the Ohio Constitution protect individuals from unreasonable searches and seizures.

Although Ohio citizens are afforded protection by both the U.S. Constitution and the Ohio

Constitution, the Ohio Supreme Court has largely interpreted the protections afforded by

Article I, Section 14 of the Ohio Constitution as “coextensive with those provided by the
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United States Constitution.” State v. Robinette, 80 Ohio St.3d 234, 238, 1997-Ohio-343, 685

N.E.2d 762. Thus, we will analyze appellant’s Ohio Constitutional rights under the U.S.

Constitution’s Fourth Amendment jurisprudence.

{¶15} If an individual’s right against unreasonable searches and seizures is violated,

the evidence obtained as a result of the violation is subject to exclusion. United States v.

Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). While the Fourth

Amendment does not contain an express mandate that evidence seized as a result of an illegal

search be suppressed, suppression is inherent in the amendment’s language. Id., citing United

States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). “The

[exclusionary] rule thus operates as ‘a judicially created remedy designed to safeguard Fourth

Amendment rights generally through its deterrent effect, rather than a personal constitutional

right of the party aggrieved.’” Id., quoting Calandra at 348.

{¶16} In general, in order for a police officer to search a person, the officer must

possess a warrant. Arnold v. Cleveland, 67 Ohio St.3d 35, 45, 616 N.E.2d 163 (1993).

However, there are a number of specifically established exceptions to this general rule. A

police officer may briefly stop and detain an individual without an arrest warrant or probable

cause for an arrest in order to investigate the officer’s reasonable suspicion of criminal

activity. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In doing so,

the officer “must be able to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that intrusion.” State v. Andrews, 57

Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991), citing Terry at 21-22.

{¶17} “The propriety of an investigative stop by a police officer must be viewed in
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light of the totality of the surrounding circumstances.” Terry at 27. The circumstances

surrounding the stop must “be viewed through the eyes of a reasonable and cautious police

officer on the scene, guided by his experience and training.” State v. Bobo, 37 Ohio St.3d

177, 179, 524 N.E.2d 489 (1988), quoting United States v. Hall, 525 F.2d 857, 859

(D.C.Cir.1976).

{¶18} We find that, based on the totality of the circumstances, Officer Malson had

reasonable suspicion to conduct an investigatory stop of appellant. Here, the evidence

presented at the suppression hearing established that the officers observed appellant commit a

turn signal violation, in violation of R.C. 4511.39(A). Generally, a traffic offense meets the

requirements under Terry constituting reasonable grounds for an investigative stop. State v.

Davenport, 8th Dist. Cuyahoga No. 83487, 2004-Ohio-5020, ¶ 16, citing State v. Carlson, 102

Ohio App.3d 585, 596, 657 N.E.2d 591 (9th Dist.1995). Further, the Ohio Supreme Court

has recognized that

where an officer has an articulable reasonable suspicion or probable cause to

stop a motorist for any criminal violation, including a minor traffic violation,

the stop is constitutionally valid regardless of the officer’s underlying

subjective intent or motivation for stopping the vehicle in question.

City of Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 1996-Ohio-431, 665 N.E.2d 1091.

Accordingly, regardless of the officers’ motivation, the initial stop was lawful, based on the

undisputed traffic violation.

{¶19} Next, we address appellant’s broad contention that his vehicle was illegally

searched. On review of the record, we find that appellant’s argument is negated by the
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testimony of Officer Malson, which establishes that appellant gave the officers permission to

search his vehicle. One well-established exception to the warrant requirement is the consent

search. Thus, no Fourth Amendment violation occurs when an individual voluntarily

consents to a search. See United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 153

L.Ed.2d 242 (2002) (stating that “[p]olice officers act in full accord with the law when they

ask citizens for consent”); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36

L.Ed.2d 854 (1973) (“[A] search conducted pursuant to a valid consent is constitutionally

permissible”); State v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 (1990).

{¶20} As stated by this court in State v. Wilburn, “ ‘A police officer’s request for

consent to search a vehicle stopped for a traffic violation is valid if it is made, and voluntary

consent is obtained, during the period of time reasonably necessary to process the traffic

citation; in other words, while the driver is lawfully detained for the traffic violation.’ ” 188

Ohio App.3d 384, 2010-Ohio-3536, 935 N.E.2d 509, ¶ 12 (2d Dist.), quoting State v. Watts,

2d Dist. Montgomery No. 21982, 2007-Ohio-2411, ¶ 12.

{¶21} In the case sub judice, appellant does not challenge the validity of his consent to

search or the duration of his detention. Accordingly, we find that the search of appellant’s

vehicle was valid.

{¶22} We next turn to whether Officer Benge’s pat down of appellant was proper.

“Once a lawful stop has been made, the police may conduct a limited protective search for

concealed weapons if the officers reasonably believe that the suspect may be armed or a

danger to the officers or to others.” State v. Rodriguez, 12th Dist. Preble No.

CA2009-09-024, 2010-Ohio-1944, ¶ 28, quoting State v. Lawson, 180 Ohio App.3d 516,
 9

2009-Ohio-62, 906 N.E.2d 443, ¶ 21 (2d Dist.). “The purpose of this limited search is not to

discover evidence of crime, but to allow the officer to pursue his investigation without fear of

violence.” State v. Evans, 67 Ohio St.3d 405, 422, 1993-Ohio-186, 618 N.E.2d 162, citing

Terry, 392 U.S. at 24. To justify a pat down, “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.” Terry at 27. “The officer need not be absolutely certain

that the individual is armed; the issue is whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or that of others was in danger.”

Id. See also State v. Smith, 56 Ohio St.2d 405, 407, 384 N.E.2d 280 (1978). In determining

whether a police officer reasonably believed the suspect was armed sufficient to justify a pat

down, we look to the totality of the circumstances. Evans at 408.

{¶23} Additionally, it is well recognized that the need for a protective pat down

becomes more urgent where drugs are involved. “The very nexus between drugs and guns

can create a reasonable suspicion of danger to the officer.” State v. Thompson, 1st Dist.

Hamilton No. C-050400, 2006-Ohio-4285, ¶11. Further, “[r]ecognizing the prevalence of

weapons in places where illegal drugs are sold and used * * * an officer’s fear of violence

when investigating drug activity is a legitimate concern that will justify a pat-down search for

weapons.” State v. Oatis, 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-6038, ¶ 23,

citing State v. Taylor, 82 Ohio App.3d 434, 612 N.E.2d 728 (2d Dist.1992).

{¶24} We find that, based on the totality of the circumstances, Officer Benge

articulated a reasonable basis to believe that appellant may be armed and dangerous. The area

in which the officers stopped appellant was known for its high rate of crime and specifically
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its high rate of drug crimes. Officer Benge testified that, based on her knowledge and

experience as an officer, “weapons are synonymous with drugs. They go hand and hand.”

Moreover, Officer Benge testified that she was concerned appellant may have obtained a

weapon from the female passenger while they were in the back of the cruiser unhandcuffed.

These factors, taken together and viewed objectively through the eyes of the officer on the

scene, warrant a reasonable belief that appellant could be armed. Thus, the totality of the

circumstances supports the trial court’s finding that Officer Benge’s pat down of appellant was

proper.

{¶25} Finally, we address whether Officer Benge properly seized the drugs in

appellant’s sock. Although Terry limits the scope of the search to weapons, the discovery of

other contraband during a Terry search will not necessarily preclude its admissibility. State v.

Hansard, 4th Dist. Scioto No. 07CA3177, 2008-Ohio-3349, ¶ 30. The “plain feel” and “plain

view” doctrines allow a police officer to seize contraband even if the officer does not have a

search warrant for that item, so long as its nature as contraband is immediately apparent.

State v. Cobb, 12th Dist. Butler No. CA2007-06-153, 2008-Ohio-5210, ¶ 30, citing State v.

Halczyszak, 25 Ohio St.3d 301, 303, 496 N.E.2d 925 (1986). An object’s incriminating

nature is immediately apparent when a police officer has probable cause to believe the item is

associated with criminal activity. Halczyszak at 304, citing Texas v. Brown, 460 U.S. 730,

741-742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). “Regardless of whether the officer detects

the contraband by sight or by touch, however, the Fourth Amendment’s requirement that the

officer have probable cause to believe that the item is contraband before seizing it ensures

against successfully speculative seizures.” State v. Groves, 156 Ohio App.3d 205,
 11

2004-Ohio-662, 805 N.E.2d 146, ¶ 42 (2d Dist.), citing Minnesota v. Dickerson, 508 U.S. 366,

113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

{¶26} “Probable cause to associate an object with criminal activity does not demand

certainty in the minds of police, but instead merely requires that there be a ‘fair probability’

that the object they see [or feel] is illegal contraband or evidence of a crime.” State v. Jones,

2d Dist. Montgomery No. 19248, 2002-Ohio-4681, ¶ 10, citing State v. Thompson, 134 Ohio

App.3d 1, 4, 729 N.E.2d 1268 (2d Dist.1999).

{¶27} After a thorough review of the record, we find that Officer Benge had probable

cause to seize the contraband located in appellant’s sock. As discussed above, Officer Benge

was in a position to view the drugs lawfully because she had reasonable suspicion to pat down

appellant. Moreover, the discovery of the drugs was inadvertent as Officer Benge was

conducting the pat down to look for weapons. Lastly, the incriminating nature of the bulge in

appellant’s sock was immediately apparent based on the totality of the surrounding

circumstances.

{¶28} At the suppression hearing, Officer Benge explained that during the pat down,

she observed a large bulge in appellant’s sock. She testified that, based on her knowledge

and experience as a police officer, she believed that the bulge was “more than likely going to

be the same contraband that his passenger had.” The totality of the facts and circumstances

under which the property was discovered supports Officer Benge’s conclusion. Appellant’s

passenger was first observed moving inside the vehicle in a manner consistent with an attempt

to conceal something. Subsequently, while appellant and the passenger were alone and

unhandcuffed in the back of the cruiser, the passenger was caught manipulating a hypodermic
 12

needle in the front of her pants. Moreover, during the search of appellant’s vehicle, the

officers discovered cut-up pieces of cigarette filters, which, in their experience, is used by

heroin users to filter heroin into hypodermic needles. All these factors considered

collectively led Officer Benge to reasonably believe that it was immediately apparent that the

bulge discovered in appellant’s sock was illegal contraband. See State v. Jimenez, 12th Dist.

Warren No. CA2011-09-103, 2012-Ohio-3318; State v. Jordan, 8th Dist. Cuyahoga No.

80851, 2002-Ohio-5086, ¶ 24 (where it was immediately apparent that the L-shaped bulge

under the floor mat of appellant’s car was a gun).

{¶29} Based on the foregoing, we find that Officer Benge had probable cause to

associate the bulge in appellant’s sock with criminal activity. Vested with probable cause to

believe that appellant was in possession of illegal contraband, Officer Benge was entitled to

seize the contraband from appellant’s sock. Accordingly, the trial court did not err in

overruling appellant’s motion to suppress. Appellant’s sole assignment of error is overruled.

{¶30} Judgment affirmed.

.............

FROELICH and HALL, JJ., concur.

(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Mathias H. Heck
Andrew T. French
Adrian King
Hon. Dennis J. Adkins
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