State v. Jones

[Cite as State v. Jones, 2011-Ohio-4181.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 5-11-01

v.

RAMON JONES, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court
Trial Court No. 2010 CR 00057

Judgment Affirmed

Date of Decision: August 22, 2011

APPEARANCES:

Andrew R. Schuman for Appellant

Mark C. Miller and Alex K. Treece for Appellee
Case No. 5-11-01

WILLAMOWSKI, J.

{¶1} Defendant-appellant Ramon Jones (“Jones”) brings this appeal from

the judgment of the Court of Common Pleas of Hancock County overruling his

motion to suppress. For the reasons set forth below, the judgment is affirmed.

{¶2} On March 10, 2010, Ohio State Trooper Kurt Beidelschies

(“Beidelschies”) observed a vehicle exit the interstate without using a turn signal.

Beidelschies then initiated a traffic stop. Beidelschies obtained the identification

of the driver, but the passenger claimed to have lost his state issued identification

and told the officer his name was Melvin Moore. Beidelschies was unable to find

any record of Melvin Moore in the Law Enforcement Automated Database, which

led him to believe that the passenger had given him a false name. The driver of

the vehicle was driving under a suspended license, the vehicle did not belong to

her, and the registration was for a Subaru Impreza rather than the Pontiac Grand

Prix which was being driven. Due to these irregularities, Beidelschies requested a

canine unit to assist with the stop. The dog arrived within ten to fifteen minutes

and alerted to the odor of narcotics in the vehicle.

{¶3} Once the dog had identified narcotics, Beidelschies asked the

passenger, who was subsequently identified as Jones, to step out of the vehicle.

Beidelschies then performed a pat down search of Jones. Beidelschies felt a large

bulge about the size of a tennis ball in Jones’ pants. Beidelschies testified that

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based upon his training and experience, he believed the object to be illegal

contraband. Aug. 2, 2010, hearing, 16. The object was removed and found to

contain a large quantity of oxycodone. Jones was arrested and subsequently

indicted on March 10, 2010, for drug abuse in violation of R.C. 3719.41, a felony

of the second degree.

{¶4} On May 25, 2010, Jones filed a motion to suppress the results of the

search. The trial court held a hearing on the motion on August 2, 2010. The trial

court entered its findings and ruling overruling the motion on September 15, 2010.

The ruling was journalized on September 20, 2010. On November 29, 2010, Jones

entered into a plea agreement where he agreed to enter a plea of no contest to an

amended charge of one count of aggravated possession of drugs, in violation of

R.C. 2925.11(A), a felony of the third degree. The State in return agreed to amend

the indictment and to make a sentencing recommendation of four years in prison.

The trial court held a hearing on November 29, 2010, and accepted the no contest

plea. The trial court then found Jones guilty of the amended charge and sentenced

him to the recommended sentence of four years in prison. Jones appeals from this

judgment and raises the following assignment of error.

The trial court erred in overruling [Jones’] motion to suppress
the evidence discovered as a result of the illegal search and
seizure of appellant.

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{¶5} In the sole assignment of error, Jones argues that the trial court erred

in denying his motion to suppress. Jones claims that the initial search was

improper and that any information found during the search should have been

suppressed. In this case, Jones was removed from the vehicle and searched after

the drug dog indicated that drugs were in the vehicle. A canine sniff of a vehicle

is not a search under the Fourth Amendment. United States v. Place (1983), 462

U.S. 696, 13 S.Ct. 2637, 77 L.Ed.2d 110. An officer need only have a reasonable

suspicion that criminal activity is occurring in order to detain one beyond the time

necessary to complete the traffic stop while a drug-trained canine is brought to the

scene. State v. Wilkins, 2d Dist. No. 20152, 2004-Ohio-3917, ¶12. Here, the

driver of the vehicle was driving with a suspended license, the passenger had no

proof of identification, the vehicle was registered to a third party, and the tags on

the vehicle did not match the vehicle being driven. Under the totality of the

circumstances, Beidelschies had reasonable suspicion to believe that criminal

activity was occurring and to investigate further, including having the canine be

brought to the scene. Id.

{¶6} Once the dog was brought to the scene and indicated that the vehicle

contained drugs, the officer had probable cause to search the vehicle for drugs.

State v. Palicki (1994), 97 Ohio App.3d 175, 646 N.E.2d 494. Jones could then be

asked to exit the vehicle for the search to be conducted. State v. Flowers, 11th

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Dist. No. 2009-L-103, 2010-Ohio-2952. After a passenger has exited the vehicle,

the officers may conduct a pat-down search of a passenger if there is reason to

believe that it is necessary for officer safety based upon the totality of the

circumstances. Id. If during the frisk an officer detects contraband, the items may

be lawfully seized. Minnesota v. Dickerson (1993), 508 U.S. 366, 113 S.Ct. 2130,

124 L.Ed.2d 334.

The rationale of the plain-view doctrine is that if contraband is
left in open view and is observed by a police officer from a lawful
vantage point, there has been no invasion of a legitimate
expectation of privacy and thus no “search” within the meaning
of the Fourth Amendment-or at least no search independent of
the initial intrusion that gave the officers their vantage point. * *
* The warrantless seizure of contraband that presents itself in
this manner is deemed justified by the realization that resort to a
neutral magistrate under such circumstances would often be
impracticable and would do little to promote the objectives of
the Fourth Amendment. * * * The same can be said of tactile
discoveries of contraband. If a police officer lawfully pats down
a suspect's outer clothing and feels an object whose contour or
mass makes its identity immediately apparent, there has been no
invasion of the suspect's privacy beyond that already authorized
by the officer's search for weapons; if the object is contraband,
its warrantless seizure would be justified by the same practical
considerations that inhere in the plain-view context.

Id. at 375-76.

{¶7} As discussed above, there were numerous reasons for believing that

criminal activity was occurring. Additionally, Jones had been asked for

identification and said he did not have any with him. He then gave a name and

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birth date. When Beidelschies ran it through the computer, no such identity was

found. Given the lack of the confirmation of identity, the suspicion of drugs in the

vehicle, and all the other factors, Beidelschies acted reasonably when he

conducted a pat down search of Jones when he removed him from the vehicle. It

was during this initial pat down search that Beidelschies found the package of

oxycodone. Beidelschies testified that given his training, he recognized the object

as contraband when he felt it. This is permissible under the plain feel doctrine. Id.

Therefore, the trial court did not err in denying the motion to suppress. The

assignment of error is overruled.

{¶8} The judgment of the Court of Common Pleas of Hancock County is

affirmed.

Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur in Judgment Only.

/jlr

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