[Cite as State v. Smith, 2012-Ohio-4292.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98111
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
THOMAS SMITH, SR.
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-548487
BEFORE: Sweeney, P.J., S. Gallagher, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: September 20, 2012
ATTORNEYS FOR APPELLANT
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: James Hofelich, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Mary Jo Tipping, Esq.
Mark B. Marein, Esq.
Marein & Bradley
222 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114
JAMES J. SWEENEY, P.J.:
{¶1} The State of Ohio (“the State”) appeals the court’s granting
defendant-appellee Thomas Smith, Sr.’s (“defendant”) motion to suppress evidence in
this case involving drug-related offenses. After reviewing the facts of the case and
pertinent law, we affirm.
{¶2} On March 18, 2011, defendant was arrested for his involvement in
trafficking heroin and other associated offenses. On March 7, 2012, the court held a
suppression hearing, and on March 16, 2012, the court granted defendant’s motion to
suppress the evidence against him.
{¶3} The State appeals and raises one assignment of error for our review.
I.
The trial court erred in granting appellee’s motion because the contraband
was detected during a lawful pat-down and was immediately apparent to the
officer to be heroin bundles.
Appellate review of a trial court’s ruling on a motion to
suppress presents mixed questions of law and fact.
An appellate court is to accept the trial court’s factual
findings unless they are clearly erroneous. We are
therefore required to accept the factual determinations
of a trial court if they are supported by competent and
credible evidence. The application of the law to those
facts, however, is subject to de novo review.
State v. Polk, 8th Dist. No. 84361, 2005-Ohio-774, ¶ 2.
{¶4} Warrantless searches are presumptively unconstitutional subject to a limited
number of exceptions, one of which is the stop and frisk investigatory search under Terry
v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, a police officer
may pat down a detained suspect to reasonably search for weapons. Id. A Terry frisk is
limited in scope and designed to protect law enforcement agents. State v. Evans, 67 Ohio
St.3d 405, 618 N.E.2d 162 (1993).
{¶5} The United States Supreme Court expanded Terry to include discovery of
contraband other than weapons under the “plain feel” doctrine, “[i]f a police officer
lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass
makes its identity immediately apparent * * *.” Minnesota v. Dickerson, 508 U.S. 366,
375, 113 S.Ct. 2130, 124 L.Ed. 2d 334 (1993).
{¶6} In the instant case, Cuyahoga Metropolitan Housing Authority (“CMHA”)
Detective Clinton T. Ovalle testified that he had over 20 years experience as a police
officer and has been a narcotics investigator for the past seven years. He estimated that
he has made between 1,500 and 2,000 drug arrests in his career. Det. Ovalle testified
that one particular way heroin can be packaged for sale is in small packets of blue wax
paper called “bindles,” which are rubberbanded together in groups of ten and referred to
as “bundles.”
{¶7} Det. Ovalle received information from a confidential informant (“the CI”)
that defendant was trafficking heroin at 10955 Shaker Blvd. in Cleveland. Det. Ovalle
and three other CMHA officers met with the CI on March 18, 2011, at approximately
8:00 p.m., which, according to the CI, was when the tenant of the property typically
arrived home from work and waited for defendant. By 9:00 p.m., surveillance was set
up, and the tenant and defendant were inside the residence. At approximately 11:30
p.m., defendant left the building drinking from a red cup, threw the cup to the ground, and
got into his car. Det. Ovalle approached defendant and “could smell alcohol coming
from him.” The officers asked defendant to exit the vehicle so they could speak with
him. According to Det. Ovalle, defendant was nervous, and he “continued to feel the
left side of his coat pocket.” Det. Ovalle conducted a pat-down search of defendant, and
“[i]n the left coat pocket I could feel from my experience to be three bindles” of heroin.
{¶8} Det. Ovalle explained that from his experience in narcotics and drug arrests,
the objects “were squared and rectangular.” Asked what it was, defendant replied that it
was money. Det. Ovalle believed that defendant was lying, so he “reached inside the
pocket and recovered three bindles of heroin.” The officer explained that “[t]here were
three packs with ten bindles, ten envelopes of wax paper rubberband[ed] together making
approximating three bundles.”
{¶9} Ultimately, 303 packets, or bindles, of heroin were recovered on the night
in question. After the initial drugs were found in defendant’s coat pocket, Det. Ovalle
conducted what he thought was a thorough pat-down of defendant to search for weapons,
arrested and handcuffed defendant, and placed him in the rear of the police vehicle. A
short time later, defendant was observed sitting in the back of the police car kicking the
remaining 273 bindles of heroin under the front passenger seat.
{¶10} On April 5, 2011, defendant was indicted for drug trafficking, drug
possession, tampering with evidence, and possessing criminal tools. On March 16,
2012, after a hearing, the court granted defendant’s motion to suppress. The court found
that Det. Ovalle’s pat-down of defendant was justified given the totality of the
circumstances, including the high drug activity location and the information provided by
the CI. The court stated in its journal entry and opinion, “[t]he question then, is upon
determining that the Defendant had no weapon did the search have to cease.”
{¶11} The court found Det. Ovalle’s testimony to be “the difficult issue” in the
case at hand, ultimately concluding that he lacked credibility. “At a suppression hearing,
the evaluation of evidence and the credibility of witnesses are issues for the trier of fact.”
State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1991). The court made the
following findings:
The officer did not recall the kind of coat being worn by the Defendant and
the date of the incident, March 18, 2011, could require anything from a light
spring jacket with little or noinsulation in the pocket to a winter parka with
a great deal of padding. It is further confounding that the officer did not
appreciate a much larger package or amount of heroin bindles that were
later discovered on the floor of the police cruiser. The exhibit presented
contained 303 bindles and even if they had been packaged at the time of the
stop, would have comprised 30 bundles of heroin.
{¶12} The court concluded that, once it became clear that defendant had no
weapon, the search should have stopped under Terry. See State v. Clay, 8th Dist. No.
91942, 2009-Ohio-2725 (“although the trial court could have concluded that it was
immediately apparent to Det. Mitchell that Clay had marijuana in his jacket pocket, it did
not * * * and we will not reverse its decision on the facts before us”).
{¶13} Upon review, the trial court did not err in granting defendant’s motion to
suppress the evidence, and the State’s sole assignment of error is overruled.
{¶14} Judgment affirmed.
It is ordered that appellee recover of appellant his 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 Common
Pleas Court to carry this judgment into execution. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
JAMES J. SWEENEY, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY