[Cite as State v. Letner, 2011-Ohio-3732.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24277
Plaintiff-Appellee :
: Trial Court Case No. 2010-CR-1022
v. :
:
DALE M. LETNER : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 29th day of July, 2011.
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MATHIAS H. HECK, JR., by LAURA M. WOODRUFF, Atty. Reg. #0084161, 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
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FAIN, J.
Defendant-appellant Dale M. Letner appeals from his conviction and sentence,
following a no-contest plea, for Having a Weapon While Under a Disability. Letner contends
that the trial court erred when it overruled his motion to suppress evidence he claims was
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obtained by an unlawful search and seizure.
We conclude that there is evidence in the record from which the trial court could find
that the evidence was found in plain view, after a police officer removed Letner from a motor
vehicle, following an investigatory stop supported by reasonable, articulable suspicion.
Accordingly, the judgment of the trial court is Affirmed.
I
The facts were found by the trial court, as follows:
“At approximately 7:30 p.m., on April 4, 2010, City of Dayton Police Officer Michael
Wolpert and his partner Officer Holly Bruss, both uniformed officers and riding in a marked
cruiser, were on routine patrol on the east side of Dayton. Officer Wolpert, the driver, had 12
years experience, while Officer Bruss, the passenger, had 3 years experience on the police
force.
“As the officers drove along the area of Clover and Steele Avenue near Dover, they
observed a white minivan in the alley behind a known drug house located at 538 Steele
Avenue. (Officer Bruss had, personally, made a drug arrest at that location in the recent past.)
The officers turned their vehicle around and went down the alley in the opposite direction.
The police cruiser pulled in front of the minivan and stopped. The evidence revealed the
cruiser may have made it difficult for the driver of the minivan to pass.
“As they approached the parked minivan, Officer Wolpert, the driver of the cruiser,
stated that he observed the Defendant who was the passenger in the minivan dip his shoulders
down and up, making what he called furtive movements. Based upon his observation of the
‘furtive movements,’ and seeing the vehicle parked behind a known drug house located in a
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high crime area where the police had previously made many arrests for drugs, assaults, rapes,
prostitution, and gun possession, the officers decided to approach the vehicle.
“It was later noted that drug buyers in this area often park behind the drug house and
place their orders via cell phone. The buyers then drive to the front of the house and pick up
their order.
“Officer Wolpert approached the vehicle and made contact with the passenger while
Officer Bruss made contact with the driver. As Wolpert approached the Defendant, there
were no other furtive movements. Wolpert asked Letner to provide identification; he
complied. Because of the suspected furtive movements, Wolpert asked Letner to leave the
vehicle; again the Defendant complied. As the vehicle door opened, the officer observed a
handgun in plain view; however, it appeared that Letner did not realize that the officer had
made that observation.
“Wolpert stated that he had Letner sit in his cruiser so that he could confirm the
Defendant’s identifiers and then he retrieved the gun. * * * * “
There is evidence in the record to support these findings.
To the foregoing, we would only add the following:
Officer Bruss actually testified that she had made drug arrests, in the plural, at the end
of March, “just a few weeks before this incident.”
The officers testified that there was room in the alley for the parked minivan to have
passed by the cruiser to exit the alley. Letner, himself, testified:
“Q. Wait a minute. Where was the officers [sic] parked?
“A. Oh, in front of the vehicle.
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“Q. Okay. Could you have gone around the car? Could your car have gone around
the –
“A. Yeah.
“Q. Did you think you were free to go around?
“A. I mean we could’ve.
“Q. But did you feel free to do it?
“A. No.”
Officer Wolpert gave the following testimony concerning the furtive movement he
observed and his conclusions therefrom:
“Q. So, once you saw the motion by the defendant in the passenger seat, what was
your response?
“A. I’ve been doing this for 12 years. I’ve worked the west side of Dayton for 10
years. I worked [Dayton Metropolitan Housing Authority] for almost three years. It’s very
common that when people see us and if they have something on them that they’re trying to
conceal from us, that they make movements towards the floorboard of a vehicle; for instance,
to hide their weapons or guns.”
Letner was arrested and charged with Having a Weapon While Under a Disability and
Improper Handling of a Firearm in a Motor Vehicle. He moved to suppress the evidence,
contending that it was obtained as the result of an unlawful search and seizure. Following a
hearing, his motion to suppress was overruled.
Letner then pled no contest to Having a Weapon While Under a Disability, and the
State dismissed the Improper Handling charge. Letner was convicted and sentenced
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accordingly. From his conviction and sentence, Letner appeals.
II
Letner’s sole assignment of error is as follows:
“THE TRIAL COURT ERRED WHEN IT FOUND THE EVIDENCE OBTAINED
WAS LEGALLY SEIZED UNDER THE PLAIN VIEW DOCTRINE.”
Although Letner frames his assignment under the plain-view doctrine, he does not
contest that the firearm was in plain view of Officer Wolpert once he exited the minivan. He
contends that there was no basis for the stop, so that Wolpert was not lawfully in position to
observe the firearm. Of course, if the stop was unlawful, the finding and the seizure of the
firearm would be fruit of the forbidden tree in any event. The dispositive issue is the
propriety of the stop.
A brief, investigative stop does not require as much probability of criminal activity as
the probable cause required for an arrest. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889. Because the extent of the intrusion upon a suspect’s protected liberty interests
is less in a brief, investigative stop, the amount of suspicion required to justify that intrusion is
correspondingly less. Only a reasonable, articulable suspicion of criminal activity is required.
In Terry, a veteran police officer observed two men in the middle of the afternoon, in
downtown Cleveland, not in a high-crime area, walking back and forth in front of a store.
Based upon his years of experience, the officer suspected that the men were casing the store
with a view to robbing it. He stopped them, and frisked one of them for weapons. The
United States Supreme Court held that the police officer had a reasonable, articulable
suspicion, based upon his observation and experience, that justified an investigative stop.
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In the case before us, officers Wolpert and Bruss, based upon their experience –
Wolpert’s extending over a dozen years, Bruss’s over not so long, but as recently as “just a
few weeks” ago – developed a suspicion that the men in the minivan were there in the alley to
buy drugs from the drug house they were behind. Wolpert, who was going to approach
Letner’s side of the minivan, and was therefore focusing on Letner, saw Letner make a
movement that Wolpert associated, based upon his training and experience, with placing
contraband – possibly a weapon – on the floor of a vehicle in response to an approaching
police officer.
While these observations fall short of probable cause for an arrest, they support a
reasonable and articulable suspicion of criminal activity, when evaluated by police officers
with relevant training and experience.
Under these circumstances, Wolpert was justified in asking Letner to exit the minivan.
State v. Evans (1993), 67 Ohio St.3d 405, 407, citing Pennsylvania v. Mimms (1977), 434
U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331, 337.
Once Letner opened the passenger-side door of the minivan and stepped out, the
firearm was in plain view, on the floor of the van, between the seat and the doorframe. It was
then subject to seizure. Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29
L.Ed.2d 564.
Letner’s sole assignment of error is overruled.
III
Letner’s sole assignment of error having been overruled, the judgment of the trial court
is Affirmed.
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GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Laura M. Woodruff
Adrian King
Hon. Frances E. McGee