[Cite as State v. Bolds, 2013-Ohio-2355.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2012CA00187
ORION BOLDS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2012CR0759
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 3, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, STEVEN A. REISCH
PROSECUTING ATTORNEY, Stark County Public Defenders Office
STARK COUNTY, OHIO 200 West tuscarawas St., Suite 200
Canton, Ohio 44702
By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012CA00187 2
Hoffman, P.J.
{¶1} Defendant-appellant Orion Bolds appeals the September 6, 2012
Judgment Entry entered by the Stark County Court of Common Pleas denying his
motion to suppress evidence. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 7, 2012, the Canton Police Department responded to a call of a
person brandishing a weapon. The caller stated a black male, wearing a red hooded
sweatshirt was waving a handgun and screaming at other individuals in the area.
Officer Richard Hart of the Canton Police Department was within the area, and
responded to the call. As Officer Hart approached the 1000 block of Fulton Avenue, he
witnessed a black male, wearing a red hooded sweatshirt and gray pants walking
around with his hands inside his pants. He ordered him to show him his hands and to
come to the front of his cruiser.
{¶3} Appellant was placed in handcuffs for the Officer's safety, and Officer
Hart initiated a pat-down search during which a baggie fell from Appellant's pant leg.
Prior to initiating the pat-down, Officer Hart grabbed Appellant's pants to pull them up
pursuant to his common practice.
{¶4} Appellant was indicted on one count of possession of cocaine. Appellant
filed a motion to suppress the evidence. Via Judgment Entry of September 6, 2012, the
trial court denied the motion to suppress the evidence. Appellant then entered a plea of
no contest to the charge. The trial court convicted Appellant of the charge, and entered
sentence accordingly.
{¶5} Appellant now appeals, assigning as his sole error:
Stark County, Case No. 2012CA00187 3
{¶6} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S
MOTION TO SUPPRESS THE EVIDENCE FOUND DURING A SEARCH WHICH
EXCEEDED THE SCOPE OF A PAT-DOWN SEARCH.”
{¶7} Appellate review of a trial court's decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,
713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the
role of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030
(1996). A reviewing court is bound to accept the trial court's findings of fact if they are
supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,
145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court
must independently determine as a matter of law, without deference to the trial court's
conclusion, whether the trial court's decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds.
{¶8} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
597 N.E.2d 1141 (1991). Second, an appellant may argue the trial court failed to apply
the appropriate test or correct law to the findings of fact. In that case, an appellate court
can reverse the trial court for committing an error of law. See, Williams, supra. Finally,
Stark County, Case No. 2012CA00187 4
an appellant may argue the trial court has incorrectly decided the ultimate or final issues
raised in a motion to suppress. When reviewing this type of claim, an appellate court
must independently determine, without deference to the trial court's conclusion, whether
the facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio
App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶9} In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the
United States Supreme Court held a limited pat-down search is justified when an officer
reasonably concludes the individual, whose suspicious behavior he is investigating at
close range, may be armed and, thus, dangerous to the police officer and others. Id. at
24. Officers need not forsake reasonable precautionary measures during the
performance of their duties. State v. Evans, 67 Ohio St.3d 405, 410, 618 N.E.2d 162
(1993). The court must determine whether the officer had a reasonable, objective basis
for frisking the suspect. See, State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271
(1991). In determining whether an officer's beliefs are reasonable, a court must consider
the totality of the circumstances involved in the stop. State v. Bobo, 37 Ohio St.3d 177,
180, 524 N.E.2d 489 (1988). An officer need not testify he was actually in fear of a
suspect, but he must articulate a set of particular facts which would lead a reasonable
person to conclude a suspect may be armed and dangerous. Evans, supra, at 413.
{¶10} The Second District Court of Appeals held in State v. Rutledge (Feb. 27,
1998), 2nd Dist. No. 16577,
{¶11} "In order to be reasonable, the scope of a Terry weapons search must be
minimally intrusive in relation to the particular suspicions that occasion it. However, the
Terry court declined to adopt specific limitations for those searches, preferring instead
Stark County, Case No. 2012CA00187 5
to allow those limitations 'to be developed in the concrete factual circumstances of
individual cases.' Id., at p. 29. *** A defendant who files a motion to suppress is not,
however, precluded from presenting evidence through cross-examination or otherwise
to show that those suspicions could in the particular circumstances involved have
reasonably been resolved by an examination of the exterior of a purse. In that event, the
officer's further inspection of the interior of the purse could be unreasonable, requiring
suppression of articles found within it.
{¶12} "We have no record from which to know the appearance of the purse that
the Defendant-Appellant carried when Officer Hursh approached her and asked to look
inside. Therefore, we cannot determine whether a manipulation or other examination of
the exterior of the purse would reasonably have resolved the officer's suspicions that
she had a gun inside. As in Terry, 'the record 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, we cannot find that the inspection of the interior of the purse that
Officer Hursh performed was unreasonable under the circumstances."
{¶13} "***
{¶14} "An officer is always authorized to search an area or object within a
detainee's immediate access for weapons the officer reasonably suspects the detainee
may have and use against him when the officer is otherwise authorized to detain the
person for investigation or arrest. United States v. Riggs, 474 F.2d 699 (2d Cir.), cert.
denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973); United States v. Poms, 484
F.2d 919 (4th Cir., 1973). Therefore, when an officer reasonably suspects that a
Stark County, Case No. 2012CA00187 6
weapon is inside a purse that a detainee is carrying, he may look inside the purse to
neutralize the threat to him and others that the weapon presents, unless his suspicion
can reasonably be resolved by a less intrusive form of inspection. United States v. Vigo
487 F.2d 295 (2d Cir.1973); State v. Fisher (June 9, 1992), Montgomery App. No.
12978, unreported."
{¶15} Officer Hart testified at the August 1, 2012 Suppression Hearing,
{¶16} “Q. How did you - - explain or demonstrate the pat down for the Court.
{¶17} “A. Yes. When I handcuffed him I was standing fairly close to him. I
wrapped my hands around his front and did a pat down of his waist area and then I
moved up to check his shoulders, under his arms, down the sides, around the front and
then patted down his legs as I moved down.
{¶18} “Q. And the way you are demonstrating that, your hands are open, they
are not clenched at all?
{¶19} “A. That’s correct.
{¶20} “Q. Did you do anything else with his clothing or anything like that? Did
you do anything different than what you just described?
{¶21} “A. When I first walked up behind him I did grab his pants and pull them up
to make sure that they are up properly.
{¶22} “Q. Where were his pants?
{¶23} “A. They were below his waistline, probably four to six inches.
{¶24} “Q. When you are saying below his waist, was the waist of his pants down
around his the top of his thigh?
{¶25} “A. That’s correct.
Stark County, Case No. 2012CA00187 7
{¶26} “Q. Why did you pull up his pants?
{¶27} “A. It’s common practice.
{¶28} “Q. What are you attempting to do when you pull up his pants? Why do
you do that?
{¶29} “A. To make sure his pants are up properly and to make sure that there is
nothing possibly concealed in his groin or in his waistband.
{¶30} “Q. This a pat down - - you can have a seat. This is a pat down for
weapons?
{¶31} “A. Correct.
{¶32} “Q. Is there concern that an individual might carry a weapon in his groin or
crotch area?
{¶33} “A. Yes. I’ve recovered multiple handguns from subjects over the years.
{¶34} “Q. And if an individual’s pants are sagging or drooping down, is that an
effort to conceal a handgun, would that be easier to conceal a handgun in the crotch
area or the groin area?
{¶35} “A. Possibly.
{¶36} “Q. You stated you went down his legs and you continued with the open
hand pat down; is that correct?
{¶37} “A. Correct.”
{¶38} Tr. at 11-13.
{¶39} We find the Officer's search initiated by pulling up Appellant's pants to his
waist was minimally intrusive and done to facilitate the search for weapons. The officer
testified the waist of Appellant's pants were down around the top of his thigh. Officer
Stark County, Case No. 2012CA00187 8
Hart was responding to a call of a person waiving a handgun at persons nearby, and he
had recently observed Appellant with his hands in his pants. The cocaine was found
incident to the process as it dropped down from Appellant’s pants rather than as a result
of being felt by the officer during the pat down. We find the trial court did not err in
denying Appellant's motion to suppress the evidence.
{¶40} The September 6, 2012 Judgment Entry entered by the Stark County
Court of Common Pleas denying Appellant's motion to suppress is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Craig R. Baldwin ___________________
HON. CRAIG R. BALDWIN
Stark County, Case No. 2012CA00187 9
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ORION BOLDS :
:
Defendant-Appellant : Case No. 2012CA00187
For the reasons stated in our accompanying Opinion, the September 6, 2012
Judgment Entry entered by the Stark County Court of Common Pleas is affirmed. Costs
to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Craig R. Baldwin ___________________
HON. CRAIG R. BALDWIN
State v. Bolds
Combined Opinion