[Cite as State v. Pattson, 2011-Ohio-3507.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24224
vs. : T.C. CASE NO. 09CR1215
JOSEPH J. PATTSON : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 15th day of July, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Timothy J. Cole, Asst. Pros.
Attorney, Atty. Reg. No.0084117, P.O. Box 972, Dayton, OH 45422
Attorney for Plaintiff-Appellee
Richard S. Skelton, 130 W. Second Street, Suite 1818, Dayton, OH
45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Joseph Pattson, appeals from his conviction
and mandatory six year prison sentence for possession of heroin,
between ten and fifty grams, R.C. 2925.11(A), which was entered
on his no contest plea after the trial court overruled Defendant’s
motion to suppress evidence. On appeal, Defendant challenges only
2
the trial court’s decision overruling his motion to suppress
evidence.
{¶ 2} The facts set forth in the State’s memorandum in
opposition to Defendant’s motion to suppress, which the trial court
adopted as its own findings of fact in this case, are as follows:
{¶ 3} “On April 14, 2009, at approximately 10:40 a.m., Officer
Danielle Miller from the Miami Township Police Department was
dispatched to the south lot of the Macy’s parking lot on a report
of a black Chevy Tahoe engaged in possible drug transactions with
at least two separate vehicles. Officer Miller has been a police
officer for approximately 10 years.
{¶ 4} “The initial call to the police department came from
Anthony Coffey who was working Dayton Mall Security. Mr. Coffee
was operating the mall surveillance cameras when he came upon a
Chevy S-10 pickup truck that pulled into a parking space next to
a black Chevy Tahoe. Mr. Coffey testified that he observed what
appeared to be a drug trafficking transaction between the passenger
of the S-10 and the sole occupant of the Chevy Tahoe. Mr. Coffey
then contacted Miami Township Police Department and reported his
observations. While Mr. Coffey was on the phone with Miami
Township Police Department, he observed what he believed to be
another drug trafficking transaction involving the Chevy Tahoe
and a maroon SUV. Mr. Coffey was still on the phone with the
3
dispatcher and relayed this information as well.
{¶ 5} “As Officer Miller responded to the call, she indicated
that she was concerned for her safety because in her experience,
weapons are usually involved with drug trafficking. Officer
Miller also testified that the Dayton Mall parking lot is a high
crime area. When Officer Miller responded to the parking lot of
Macy’s, she observed the black Chevy Tahoe and made contact with
the driver and sole occupant, which was the Defendant. At that
time, Officer Miller had not initiated her overhead lights or
sirens. Officer Miller told Defendant about the complaint and
asked him what he was doing. Defendant responded that he was
dropping someone off at the mall. Officer Miller next asked for
Defendant’s license and insurance, and he complied with her
request. Officer Miller testified that Defendant’s vehicle was
running during this encounter.
{¶ 6} “Officer Miller testified that when she initially
approached the vehicle, Defendant’s hands were down out of her
view and that she asked him to place them on the steering wheel.
Officer Miller testified that as she was talking to Defendant,
Defendant took his hands off of the steering wheel where she could
not see them. Officer Miller testified that this caused her
concern for her safety because she could not tell whether he was
attempting to reach for a weapon. Officer Miller testified that
4
she could not see what his hands were doing at all because of the
height of the Chevy Tahoe and this additionally caused her to be
concerned for her safety.
{¶ 7} “Major Dipietro of the Miami Township Police Department
arrived while Defendant was still inside of the vehicle talking
to Officer Miller. Officer Miller asked Defendant to exit the
vehicle based upon his hand movements and the fact that she could
not see down into the vehicle due to its height. Defendant complied
with the officer’s request and exited the vehicle. Officer Miller
advised Defendant that she was going to pat him down for weapons
and then completed a pat-down of this Defendant with negative
results. Officer Miller then had Major Dipietro due (sic) a more
thorough pat-down since he was a male officer.
{¶ 8} “Major Dipietro, an officer with over twenty-two years
of experience, then conducted a more thorough pat-down of
Defendant’s private region. Major Dipietro testified that when
he initially responded to the call, he was concerned for officer
safety since the initial dispatch indicated that Defendant’s
vehicle was possibly engaged in drug trafficking. Major Dipietro
testified that it has been his experience during his twenty two
years of police work that weapons are commonly involved in drug
trafficking.
{¶ 9} “As Major Dipietro patted down Defendant, he indicated
5
that Defendant appeared nervous and fidgety. Major Dipietro also
testified that while he was patting down Defendant, Defendant also
removed one of his hands from the Tahoe, which also caused Major
Dipietro concern. In addition, Major Dipietro testified that
based on his observations, it appeared Defendant did not want to
get too far away from the open driver’s door. Major Dipietro
testified that after the pat-down, he asked Defendant to move down
towards the rear of the vehicle so that he could check the lunge
area to make sure that there were no weapons. Major Dipietro
testified that based on Defendant’s actions, it appeared again
that he did not want to get too far away from the driver compartment
area. Therefore, Major Dipietro asked Defendant to move down
further to which Defendant complied.
{¶ 10} “At that time, Major Dipietro searched the lunge area
in order to make sure that Defendant could not gain access to any
weapons. At the time Major Dipietro searched the lunge area, he
testified that it was possible that Defendant was going to be placed
back inside the vehicle. Further, when Major Dipietro searched
the lunge area of the vehicle, Defendant was standing very close
to the open driver’s door unrestrained, and not in handcuffs.
{¶ 11} “During the search of the lunge area for weapons, Major
Dipietro saw two baggies of heroin capsules sticking out from
underneath the center console. Major Dipietro then finished
6
searching the lunge area for weapons before exiting the vehicle.
Once outside, Major Dipietro gave the indication to Officer Miller
to place handcuffs on Defendant. Once Officer Miller attempted
to handcuff Defendant, Defendant broke free and took off running
through the mall parking lot before being apprehended.”
ASSIGNMENT OF ERROR
“THE SEARCH OF MR. PATTSON’S AUTOMOBILE VIOLATED HIS FOURTH
AMENDMENT CONSTITUTIONAL PROTECTIONS.”
{¶ 12} Defendant argues that the trial court erred when it
overruled his motion to suppress the evidence because his Fourth
Amendment rights were violated when police conducted a protective
search of the interior of his vehicle for weapons in the absence
of a reasonable suspicion that he was armed and dangerous and might
gain immediate control of a weapon hidden inside the vehicle.
That search for weapons produced the heroin capsules that form
the basis for the possession charge in this case.
{¶ 13} When considering a motion to suppress the trial court
assumes the role of the trier of facts and is therefore in the
best position to resolve factual questions and evaluate the
credibility of the witnesses. State v. Roberts, 110 Ohio St.3d
71, 2006-Ohio-3665. Consequently, an appellate court must accept
the trial court’s findings of fact if they are supported by
competent, credible evidence. Id. Accepting those facts as true,
7
the appellate court must then independently determine, without
deference to the trial court’s conclusion, whether those facts
satisfy the applicable legal standard. Id.
{¶ 14} Defendant does not challenge the trial court’s findings
that the officers’ initial investigative stop and detention
pursuant to Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20
l.Ed.2d 889, was justified by a reasonable suspicion of illegal
drug activity, a conclusion with which we agree. Rather, Defendant
challenges only the search of the interior, driver’s area of his
vehicle for weapons during that Terry stop, claiming that police
lacked the necessary legal justification for that warrantless
weapons search; that police had a reasonable suspicion that there
was a weapon inside the car.
{¶ 15} In State v. Wilcox, 177 Ohio App.3d 609,
2008-Ohio-3856, ¶17-18, this court wrote:
{¶ 16} “The United States Supreme Court has found that during
an investigative stop, a police officer may conduct a protective
search of the interior of the vehicle for weapons. Michigan v.
Long (1983), 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201. This
search is consistent with and is an extension of the principles
set forth in Terry regarding a frisk of a person. Id.; Terry v.
Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In order
to perform a protective search, the officer must have ‘a reasonable
8
belief based on “specific and articulable facts which, taken
together with the rational inferences from those facts, reasonably
warrant” the officers in believing that the suspect is dangerous
and the suspect may gain immediate control of weapons.’ Id., quoting
Terry, 392 U.S. at 21, 88 S.Ct. 1868, 20 L.Ed.2d 889; see also
State v. Smith (1978), 56 Ohio St.2d 405, 10 O.O.3d 515, 384 N.E.2d
280. The search must be limited to those areas in which a weapon
may be placed or hidden. Id.
{¶ 17} “The standard employed in determining whether a
protective search is justified is an objective standard: ‘[W]ould
the facts available to the officer at the moment of the seizure
or the search “warrant a man of reasonable caution in the belief”
that the action taken was appropriate?’ State v. Bobo (1988), 37
Ohio St.3d 177, 178-179, 524 N.E.2d 489, quoting Terry, 392 U.S.
at 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889. In determining whether
a protective search is objectively warranted, courts look at the
totality of the circumstances, as viewed through the eyes of a
reasonable and prudent police officer on the scene who must react
to events as they unfold. State v. Andrews (1991), 57 Ohio St.3d
86, 565 N.E.2d 1271, citing United States v. Hall (C.A.D.C.1976),
525 F.2d 857. Courts generally consider factors such as the
high-crime nature of the area, the time of day, the experience
of the officers involved, whether the officer was away from his
9
cruiser, and suspicious activities by the defendant, such as
furtive gestures. State v. Bobo (1988), 37 Ohio St.3d 177, 524
N.E.2d 489; Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271. See also
Smith, 56 Ohio St.2d 405, 10 O.O.3d 515, 384 N.E.2d 280 (protective
search was justified when the police officers saw defendant push
something under his seat after car was stopped); State v. Woods
(1982), 8 Ohio App.3d 56, 8 OBR 87, 455 N.E.2d 1289 (protective
search was justified when police had information that defendant
was armed and police saw defendant make furtive gesture). But see
State v. Vineyard (Jan. 11, 2008), Montgomery App. No. 22266,
2008-Ohio-204, 2008 WL 186669 (protective search not justified
in stop for tinted windows, even though officer had knowledge that
defendant had been implicated in drug information hotline calls,
had previously been subject of a search warrant for drugs,
recognized principle that drugs and weapons normally go hand in
hand, and stop was in high-crime area; trial court was correct
in conclusion that these factors were tempered by factors that
defendant was cooperative, no weapons or drugs were found during
pat-down search, and no information indicated defendant was
involved in a drug deal at the time).”
{¶ 18} In arguing that the totality of the facts and
circumstances in this case do not give rise to a reasonable
suspicion that there was a weapon inside Defendant’s vehicle, and
10
therefore justify a limited search of the interior, driver’s area
of that vehicle for weapons, Defendant claims that other than the
fact police were investigating possible drug activity, there was
nothing else that caused the officers to be reasonably concerned
for their safety. The officers themselves observed no illegal
activity by Defendant, it was 10:40 in the morning, no contraband
or weapons were seen, Defendant made no furtive movements,
Defendant cooperated fully with police, and there were two police
officers present. Although Officer Miller testified that
Defendant’s conduct in moving his hands to a position where she
could not see them caused her to be concerned for her safety,
Defendant moved his hands once to get his driver’s license, at
Officer Miller’s request, and moved his hands a second time but
immediately placed them back on the steering wheel when requested
to do so by Officer Miller.
{¶ 19} Dayton Mall security officer, Anthony Coffey, while
monitoring video surveillance cameras, observed a white Chevy S-10
pickup truck pull into the South Macy’s parking lot and park in
a space near pole 49, right next to a black Chevy Tahoe. An
individual exited the S-10 and entered the Tahoe. Coffey observed
an exchange of items take place, something being passed back and
forth, and that the individual then exited the Tahoe, got back
into the S-10, and drove away. Believing he had just witnessed
11
a drug transaction, Coffey called Miami Township police. While
Coffey was still on the phone with police relating what he had
just seen, a maroon SUV pulled into the parking space just vacated
by the S-10. Once again, an individual exited the maroon SUV and
entered the Tahoe. Coffey again observed an exchange of items,
some kind of transaction in the front seat, followed by the
individual exiting the Tahoe, getting back into the maroon SUV,
and then driving away. Coffey described these events to the police
dispatcher in real time as they happened. Both officers who were
dispatched to the scene, Officer Miller and Major Dipietro, were
advised by their dispatcher that possible drug transactions had
just occurred in the Dayton Mall parking lot. Both officers
testified that the Dayton Mall parking lot is known for drug
activity, and drug transactions often involve weapons.
{¶ 20} The well recognized nexus between guns and drug
activity, particularly where, as here, the suspected drug activity
involves drug trafficking and not merely use or possession of drugs,
and an officers’s fear of violence when investigating that type
of activity, will justify a pat down search for weapons. See:
State v. Evans (1993), 67 Ohio St.3d 405, 413; State v. Martin,
Montgomery App. No. 20270, 2004-Ohio-2738, at ¶17; State v. Hunter,
Montgomery App. No. 20917, 2006-Ohio-2678 at ¶8-15.
{¶ 21} Officer Miller testified that she was concerned for
12
her safety because Defendant would not keep his hands on the
steering wheel where she could see them, despite her requests that
he do so. Major Dipietro became concerned because Defendant
appeared to be reluctant to comply with their requests to move
away from the driver’s compartment of the vehicle while Dipietro
searched that area of the vehicle for weapons.
{¶ 22} Based upon the totality of these facts and
circumstances, including that police were investigating possible
drug trafficking activities, the recognized nexus between guns
and drug trafficking, and Defendant’s failure to keep his hands
in plain sight and his reluctance to move away from the driver’s
area of his vehicle, police had a reasonable suspicion that
Defendant might be armed and dangerous and might gain immediate
control of a weapon inside his vehicle upon returning to it.
Accordingly, the limited protective search of the driver’s area
of Defendant’s vehicle for weapons was reasonable and did not
violate Defendant’s Fourth Amendment rights. Terry v. Ohio,
supra; Michigan v. Long, supra; Wilcox, supra.
{¶ 23} In support of his claim that the limited protective
search of the driver’s area of his vehicle for weapons violated
his Fourth Amendment rights, Defendant cites our decision in State
v. Vineyard, Montgomery App. No. 22226, 2008-Ohio-204. That case
is factually distinguishable. In Vineyard, unlike this case,
13
police did not have a reasonable suspicion that Defendant was
engaged in drug transactions at the time he was stopped by police.
The information police had in Vineyard regarding the defendant’s
involvement in drug activities concerned past, not present, events.
{¶ 24} Defendant also cites State v. Kaine, Cuyahoga App. No.
90719, 2008-Ohio-5486, wherein the Eighth District Court of Appeals
concluded that the trial court erred in denying Defendant’s motion
to suppress where officers stopped and searched Defendant’s vehicle
in a high drug activity area after conducting surveillance on
Defendant’s vehicle in a parking lot and observing what appeared
to be a drug transaction. While the facts in Kaine have several
similarities to the facts in this case, there are two important
differences. First, this case involves two suspected drug
transactions involving Defendant’s vehicle and other vehicles in
a short period of time, not just one transaction. Second, in this
case, unlike Kaine, during each of the two separate transactions
an exchange of items was observed. In short, there is a stronger
reasonable suspicion of drug trafficking present in this case.
{¶ 25} Based upon the totality of the facts and circumstances
in this case, officers possessed a reasonable, articulable
suspicion that Defendant might be armed and might gain immediate
control of a weapon inside his vehicle upon returning to that
vehicle. As the Supreme Court found in Terry, “the record
14
evidences the tempered act of a policeman who in the course of
an investigation had to make a quick decision as to how to protect
himself and others from possible danger, and took limited steps
to do so.” Id., at p. 28. Therefore, the protective search of
the driver’s area of Defendant’s vehicle for weapons did not violate
Defendant’s Fourth Amendment rights.
{¶ 26} Defendant’s assignment of error is overruled. The
judgment of the trial court will be affirmed.
DONOVAN, J. And FROELICH, J., concur.
Copies mailed to:
Timothy J. Cole, Esq.
Richard S. Skelton, Esq.
Hon. Dennis J. Adkins