[Cite as State v. Williams , 2011-Ohio-763.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 10CA3162
:
vs. : Released: February 15, 2011
:
PERNELL E. WILLIAMS, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Pamela C. Childers, Chillicothe, Ohio, for Defendant-Appellant.
Michael M. Ater, Ross County Prosecutor, and Jeffrey C. Marks, Ross
County Assistant Prosecutor, Chillicothe, Ohio, for Plaintiff-Appellee.
_____________________________________________________________
McFarland, J.:
{¶1} Defendant-Appellant, Pernell E. Williams, appeals the
decision of the Ross County Court of Common Pleas finding him guilty of
aggravated possession of drugs. Williams argues the trial court erred in
denying his motion to suppress. His argument is unwarranted. During the
incident in question, the officer properly detained and patted-down Williams
under the authority of Terry v. Ohio. Further, the doctrine of “plain feel”
gave the officer the necessary probable cause to conduct the subsequent
Ross App. No. 10CA3162 2
search. Accordingly, we overrule Williams’ assignment of error and affirm
the decision of the court below.
I. Facts
{¶2} In June 2009, State Highway Patrol Trooper Nick Lewis,
conducted a traffic stop of a vehicle driven by Williams. In addition to
Williams, two other men were in the car, a Mr. Donahoe and a Mr. Murphy.1
Lewis called for backup, including a canine unit which arrived shortly
thereafter. While checking Murphy’s Michigan ID card, Lewis placed him
in his patrol car, but he allowed Williams and Donahoe to remain in their
vehicle. Once the canine unit and other officers arrived at the scene, the
canine officer conducted a drug check around the vehicle. The canine
subsequently alerted to the presence of drugs.
{¶3} After the positive drug alert, officers removed Donahoe and
Williams from their vehicle. During his pat-down of Williams, Trooper
Lewis felt the presence of a small, round object between Williams’ buttocks.
Lewis believed it was a package containing drugs, but due to safety concerns
he did not remove the object at that time. Lewis then placed Williams in
restraints and put him in his cruiser.
{¶4} Lewis then searched Murphy, and discovered a baggie
containing white powder. After finding the baggie, Lewis handcuffed
1
The record does not contain the first names of the two men.
Ross App. No. 10CA3162 3
Murphy and placed him in a cruiser. Another officer then observed Murphy
attempting to conceal something in the backseat. Officers removed Murphy
from the cruiser and searched the area. Their search revealed that Murphy
had been attempting to conceal two OxyContin pills. When Lewis
questioned Murphy about his actions, Murphy admitted the pills were his
and further stated that he had received them from Williams. After Lewis
spoke with Murphy, he questioned Donahoe. Donahoe told Lewis that
Williams and Murphy were involved in selling drugs. He further stated that
Williams and Murphy presently had drugs on their persons. Donahoe was
released at the scene and Williams and Murphy were transported to the
station. There, Williams removed the object between his buttocks that
Lewis had located. The object was a package containing illegal drugs -
OxyContin pills.
{¶5} Williams was subsequently indicted under R.C. 2925.11, for
aggravated possession of drugs - Oxycodone, in an amount equal to or
exceeding five times the bulk amount but less then fifty times the bulk
amount. Williams moved to suppress the evidence on the basis that Lewis
arrested him as soon as he was handcuffed and placed in back of the cruiser,
and that, at that time, Lewis lacked probable cause. Lewis, on the other
hand, testified that when he handcuffed Williams, he was under
Ross App. No. 10CA3162 4
“investigative detention,” not arrest. After a full hearing, the trial court
denied the motion to suppress. Pursuant to a plea agreement with the State,
Williams entered a plea of no contest and was sentenced to two years in
prison. Following that sentence, Williams timely filed the current appeal.
II. Assignment of Error
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S
MOTION TO SUPPRESS IN VIOLATION OF THE FOURTH
AMENDMENT OF UNITED STATES CONSTITUTION AND
ARTICLE ONE, SECTION FOURTEEN OF THE OHIO
CONSTITUTION.
III. Standard of Review
{¶6} Appellate review of a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, at ¶8. In a motion to suppress, the trial court assumes
the role of trier of fact and, as such, is in the best position to resolve
questions of fact and evaluate witness credibility. State v. Mills (1992), 62
Ohio St.3d 357, 366, 582 N.E.2d 972, citing State v. Fanning (1982), 1 Ohio
St.3d 19, 20, 437 N.E.2d 583. Accordingly, in our review, we are bound to
accept the trial court's findings of fact if they are supported by competent,
credible evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594, 621
N.E.2d 726. Accepting those facts as true, we must independently determine
as a matter of law, without deference to the trial court's conclusion, whether
Ross App. No. 10CA3162 5
they meet the applicable legal standard. State v. Klein (1991), 73 Ohio
App.3d 486, 488, 597 N.E.2d 1141.
IV. Legal Analysis
{¶7} We first note that the legality of the initial traffic stop is not in
dispute and is not an issue in the current matter. Rather, Williams’
assignment of error is based on two arguments 1) there were no articulable
facts to justify Lewis’ pat-down of Williams; 2) even if the pat-down was
warranted, Lewis did not have probable cause as a result of that pat-down to
arrest Williams. For the following reasons, we disagree.
{¶8} The Fourth Amendment to the United States Constitution and
Article I, Section Fourteen of the Ohio Constitution protect individuals from
unreasonable searches and seizures. The Supreme Court of the United
States recognizes three types of police-citizen interactions in this context: 1)
a consensual encounter; 2) a Terry stop; and 3) a full-scale arrest. State v.
Travis, 4th Dist. No. 06CA3098, 2008-Ohio-1042, at ¶9, citing Florida v.
Royer (1982), 460 U.S. 491, 501-507, 103 S.Ct. 1319 and United States v.
Mendenhall (1980), 446 U.S. 544, 553, 100 S.Ct. 1870. Fully addressing the
issues in the case sub judice requires an analysis of both the second and third
types of interactions, the Terry stop, and probable cause for an arrest.
{¶9} In Terry v. Ohio, (1968), 392 U.S. 1, 88 S.Ct. 1868, the
Supreme Court ruled that one exception to the Fourth Amendment warrant
Ross App. No. 10CA3162 6
requirement allows a police officer to conduct a brief investigative stop if
the officer possesses a reasonable suspicion that criminal behavior is
imminent. Id. at 21; see, also, United States v. Brignoni-Ponce (1978), 422
U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607; State v. Andrews (1991), 57 Ohio
St.3d 86, 565 N.E.2d 1271. Under Terry, a police officer may stop or detain
an individual without probable cause when the officer has a reasonable
suspicion of criminal activity, but that suspicion must be based on specific,
articulable facts. State v. Dearth, 4th Dist. No. 09CA3122, 2010-Ohio-1847,
at ¶10, citing Terry at 21-22. “Reasonable suspicion cannot be justified by
mere intuition, but instead must be based upon specific, articulable facts and
such rational inferences as may be drawn from those facts.” State v. Boggs,
4th Dist. No. 04CA2803, 04CA2804, 2005-Ohio-2758, at ¶15, citing Terry
at 21-22.
{¶10} Additionally, to pat-down an individual during a Terry stop,
the officer must have reason to believe the individual is armed. “ * * *
[T]here must be a narrowly drawn authority to permit a reasonable search
for weapons for the protection of the police officer, where he has reason to
believe that he is dealing with an armed and dangerous individual, regardless
of whether he has probable cause to arrest the individual for a crime. The
officer need not be absolutely certain that the individual is armed; the issue
Ross App. No. 10CA3162 7
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.” Terry
at 27. The purpose of a Terry search “is not to discover evidence of a crime,
but to allow the officer to pursue his investigation without fear of violence *
* * .” State v. Evans (1993), 67 Ohio St.3d 405, 414, 618 N.E.2d 162,
quoting Adams v. Williams (1972), 407 U.S. 143, 146, 92 S.Ct. 1921.
{¶11} In the instant matter, and despite Williams’ arguments to the
contrary, we find that Trooper Lewis’ pat-down constituted a valid
application of the Terry doctrine. As already noted, a canine unit was called
to the scene and alerted to the presence of drugs in the vehicle. Ohio courts
have determined that such canine checks of the exterior of a vehicle do not
constitute a search within the meaning of the U.S. and Ohio Constitutions.
See, e.g., State v. Williams, 12 Dist. No. CA2009-08-014, 2010-Ohio-1523,
at ¶22. Accordingly, before conducting a canine check, there need not be a
reasonable, articulable suspicion of criminal activity. Further, it is well
established that once a canine has positively alerted to the scent of drugs in
the vehicle, police have probable cause to search it. See, e.g., State v.
Dewitt, 2nd Dist. No. 23735, 2010-Ohio 6476, at ¶45; State v. Johnson, 12th
Dist. No. CA2009-12-307, 2010-Ohio-5808, at ¶58.
Ross App. No. 10CA3162 8
{¶12} Here, when the canine alerted to the presence of drugs,
Williams, along with Donahoe, was still sitting in the vehicle. Thus,
Trooper Lewis had a reasonable suspicion, based on articulable facts, of the
existence of criminal activity. As such, he was fully justified, under Terry,
in detaining Williams and removing him from the vehicle.
{¶13} We also find that Lewis’ subsequent pat-down of Williams
was fully justified under Terry. Ohio courts have recognized that people
involved in illegal drug activity are often armed and officers have a right to
pat-down those people for their protection. “The right to frisk is virtually
automatic when individuals are suspected of committing a crime, like drug
trafficking, for which they are likely to be armed.” Evans at 413.
Accordingly, we find that both Williams’ detention and pat-down were
properly conducted under the authority of Terry v. Ohio. We now turn to the
second part of our analysis, whether or not Lewis had probable cause for
Williams’ arrest.
{¶14} As previously stated, when Lewis patted-down Williams, he
discovered a suspicious object in the rear of his pants. “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. No. 07CA3177, 2008-Ohio-3349, at ¶30. The United
Ross App. No. 10CA3162 9
States Supreme Court adopted this “plain feel” doctrine in Minnesota v.
Dickerson (1993), 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334. There,
the court stated, “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-
376. “If the illegal nature of the suspicious object is not immediately
apparent, police are not permitted to continue touching, feeling or
manipulating the object to identify its nature.” Id.
{¶15} We have approved the application of the “plain feel” doctrine
in circumstances very similar to the case sub judice. In State v. Hansard,
supra, a police officer made a vehicle stop, removed the defendant, and
patted him down for safety reasons. During the pat down, the officer located
a tennis ball-sized object on the inside of the defendant’s thigh. The officer
removed the object which proved to be packets of crack cocaine. The
defendant moved to suppress the evidence, arguing that the officer lacked
probable cause to remove the object and arrest him. In overruling the
defendant's argument, we determined that the nature of the object as
Ross App. No. 10CA3162 10
contraband was immediately apparent. “In the context of the plain feel
exception to the warrant requirement, ‘immediately apparent’ is a term of art
- it simply means the officer has probable cause to associate the object with
criminal activity.” Id. at ¶31.
{¶16} We further stated in Hansard that determining probable cause
involves a legal conclusion and, thus, requires de novo review. Id. at ¶35.
Additionally, we stated there is probable cause for a search when an officer
has a reasonable suspicion “that is sufficiently strong to warrant a prudent
person in believing that the place to be searched contains evidence of a
crime.” Id., citing State v. Williams, 11th Dist. No. 2003-T-0071, 2004-
Ohio-6337, at ¶16. Finally, in determining probable cause, courts must
“look to the totality of the facts and circumstances, including a police
officer's specialized knowledge.” Hansard at ¶35, citing State v. Jones, 4th
Dist. No. 03CA61, 2004-Ohio-7280, at ¶40.
{¶17} In the case sub judice, though the trial court found that Lewis
unquestionably had the right to pat-down Williams, it did not think that
locating the object during the pat-down established probable cause. The
court stated, “Based solely upon the feel of the hard object, this Court
Ross App. No. 10CA3162 11
doesn't think that there was probable cause to make the arrest.” 2 We
disagree with that finding.
{¶18} It was immediately apparent to Lewis that the object was
contraband from more than just the “feel of the hard object.” The first and
most obvious indicator was that the canine had alerted to the presence of
drugs in the vehicle while Williams was still inside. As such, Lewis had a
reasonable suspicion that illegal drugs were in the vicinity. Next was the
physical characteristics and the location of the object itself. At the
suppression hearing, Lewis stated that it was a hard, golf ball-like object
located between Williams’ buttocks. When asked about his opinion as to
what the object was, Lewis testified that “I believed it was some form of
narcotic, an illegal drug. * * * Based on my experience. I've had several
stops that have went that way where I found something in the rear of
someone's pants, and it's always been an illegal drug.” Thus, Lewis’
specialized knowledge also enabled him to form a reasonable suspicion as
to the nature of the object.
{¶19} Lewis did not remove the object at the time of its discovery
due to safety concerns. “I prefer that the defendant, or the subject at the time
2
Though the trial court did not believe that probable cause was established at that point under the “plain
feel” doctrine, it still denied Williams’ motion to suppress. The court found that additional, subsequent
evidence, including statements from Murphy and Donahoe, and the discovery of the two OxyContin pills,
combined with the object found during William’s pat-down, did constitute probable cause.
Ross App. No. 10CA3162 12
would remove it themselves, basically for my safety.” However, based on
the totality of the facts and circumstances, we find that Lewis had probable
cause to do so.
{¶20} The crux of Williams’ argument is that, despite Lewis’
testimony to the contrary, Williams was placed under arrest the moment he
was handcuffed and placed in back of the cruiser. Williams argues that
because Lewis lacked probable cause at that point, the drug evidence must
be suppressed. However, we do not find it necessary to determine the exact
moment of Williams’ arrest. Even assuming that Williams is correct and he
was functionally under arrest immediately following the pat-down, our
“plain feel” analysis related above demonstrates that Lewis did, in fact, have
the necessary probable cause.
V. Conclusion
{¶21} After reviewing the record below, we find that Trooper Lewis
was justified in detaining and patting down Williams under the authority of
Terry v. Ohio. Further, under these particular facts and circumstances, it
was immediately apparent that the object Lewis discovered during the pat-
down was contraband. As such, there was probable cause for the search, and
the trial court's decision to overrule Williams’ motion to suppress was
correct. Accordingly, we overrule Williams’ sole assignment of error.
JUDGMENT AFFIRMED.
Ross App. No. 10CA3162 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.