[Cite as State v. Hunter, 2012-Ohio-2302.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97086
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GARY HUNTER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-543293
BEFORE: Kilbane, J., Jones, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: May 24, 2012
ATTORNEY FOR APPELLANT
Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Nicole Ellis
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Gary Hunter, appeals from the order of the trial court
that denied his motion to suppress. For the reasons set forth below, we affirm.
{¶2} Defendant was arrested on October 15, 2010. Thereafter, on November
10, 2010, he was charged with possession of phencyclidine (“PCP”), in violation of R.C.
2925.11(A), a third degree felony, and possession of criminal tools ($300), in violation of
R.C. 2923.24(A), both with a specification for the forfeiture of $300. On January 11,
2011, defendant filed a motion to suppress the evidence obtained against him, arguing
that the charges were the result of an illegal stop and an unlawful search.
{¶3} The trial court held an evidentiary hearing on the motion to suppress on
March 25, 2011. At the start of the hearing, the State and the defense stipulated that the
Cleveland police laboratory analysis of the substance recovered from defendant in
connection with this matter indicated that it was PCP, weighing 13.19 grams. The State
presented the testimony of Cleveland police officer Vasile Nan (“Officer Nan”). Officer
Nan testified that at approximately 7:40 p.m. on October 15, 2010, he and his partner,
Officer Freeman, responded to a dispatch that a man wearing a burgundy hooded
sweatshirt was selling drugs at 10206 Way Avenue. The officers did not observe anyone
at that location. They then scanned the surrounding three-block area.
{¶4} At the intersection of East 104th Street and Way Avenue, they observed two
males standing on the sidewalk. One of the men, later identified as defendant, was
wearing a red jacket, so the officers notified dispatch that they were responding to the
original call and exited their cruiser to speak with the two men.
{¶5} The officers stood about 20 feet from the men and instructed them to take
their hands out of their pockets. According to Officer Nan, this request was made
simply as a safety precaution and is made of “pretty much anybody we encounter.” The
officers asked for their names and addresses. Defendant’s companion cooperated with
the officers, but the defendant appeared confused, sluggish, and made grunting noises in
response to the questions. During the encounter, Officer Nan detected the odor of PCP,
which he described as “a very strong ethanol smell, alcoholish, * * * a little sweet, kind of
possibly as radiator coolant, * * * a combination of the two.”
{¶6} Defendant reportedly told the officers that he had smoked PCP earlier.
Officer Nan told his partner to use caution because, in his experience involving
approximately 150 PCP-related arrests, persons using PCP do not feel pain, are frequently
disorderly, and are generally taken to the hospital for treatment.
{¶7} Officer Nan further testified that after many requests that defendant put his
hands on the cruiser, he eventually complied, and the officer patted him down. Officer
Nan detected a very small vial that he believed to be a “personal use vial” of PCP.
Officer Nan removed the vial from defendant’s pocket. According to this witness, the
cap was broken and the vial emitted the very strong odor of PCP.
{¶8} On cross-examination, Officer Nan admitted that the officers stopped
defendant away from the location mentioned in the original police dispatch, and that he
was not wearing a burgundy sweatshirt. He also admitted that the officers did not
observe him selling drugs, he was not combative, and did not flee when the police
confronted him.
{¶9} On May 2, 2011, the trial court denied the motion to suppress. Thereafter,
on May 11, 2011, defendant pled no contest to the indictment, and the trial court found
him guilty of the charges and specifications. On July 1, 2011, the trial court sentenced
defendant to two years of community control sanctions.
{¶10} Defendant now appeals, assigning the following interrelated errors for our
review:
ASSIGNMENT OF ERROR I
The trial court erred in denying appellant’s motion to suppress evidence and
failing to find that the police officers performed an illegal stop because they
lacked reasonable suspicion that appellant was engaged in criminal activity.
ASSIGNMENT OF ERROR II
The trial court erred in denying appellant’s motion to suppress evidence and
failing to find that the police officers performed an illegal pat down search
under Terry v. Ohio because they lacked reasonable suspicion that appellant
was armed and dangerous or a threat to their safety.
ASSIGNMENT OF ERROR III
The trial court erred in denying appellant’s motion to suppress evidence and
failing to find that the police officers exceeded the brief investigatory stop
under Terry v. Ohio as the nature of the contraband was not immediately
apparent.
{¶11} 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, ¶ 8.
The reviewing court is bound to accept the trial court’s findings of fact if they are
supported by competent, credible evidence. Id., citing State v. Fanning, 1 Ohio St.3d
19, 437 N.E.2d 583 (1982). The reviewing court applies a de novo standard of review to
the trial court’s conclusion of law, however, and determines whether the facts satisfy the
applicable legal standard. Id., citing State v. McNamara , 124 Ohio App.3d 706, 707
N.E.2d 539 (4th Dist.1987).
{¶12} The Fourth Amendment to the United States Constitution provides
protection against unreasonable searches and seizures. Searches conducted without a
warrant are per se unreasonable, subject to certain limited exceptions. State v. Smith,
124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶ 10.
{¶13} One category of permissible warrantless stops are consensual encounters
that occur when the police approach an individual, identify themselves, request
information, and the individual remains free to disregard the questions and walk away.
United States v. Mendenhall, 446 U.S. 544, 555-556, 100 S.Ct. 1870, 64 L.Ed.2d 497
(1980). Consensual encounters may become seizures, however, even where the person
did not attempt to leave, where the encounter involves the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the person of
the citizen, or the use of language or tone of voice indicating that compliance with the
officer’s request might be compelled. Id. at 556. But consensual encounters do not
become seizures, however, where the officer fails to inform the individual that he is free
to walk away, or where the officer requests the individual’s identification. Id.
{¶14} A second type of permissible warrantless stop is an investigative or “Terry
stop,” which occurs where an officer has a reasonable suspicion based upon specific and
articulable facts that an individual is or has been engaged in criminal activity. Terry v.
Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889. In that instance, where in the
course of investigating this behavior, an officer identifies himself as a policeman and
makes reasonable inquiries, and where nothing in the initial stages of the encounter serves
to dispel his reasonable fear for his own or others’ safety, for the protection of himself
and others in the area, he is entitled to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons that might be used to assault
him. Id.
{¶15} Terry patdowns are limited in scope to the search for weapons. Terry at
29. If, however, during a patdown an officer detects an item of an “immediately
apparent” incriminating nature, the officer may seize the nonthreatening contraband under
the “plain feel” exception to the warrant requirement. Minnesota v. Dickerson, 508 U.S.
366, 374-375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).
{¶16} Finally, we note that under the community-caretaking/ emergency-aid
exception to the Fourth Amendment, police officers may stop a person to render aid if
they reasonably believe that there is an immediate need for their assistance to protect life
or prevent serious injury. State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964
N.E.2d 1037, syllabus. In Dunn, the police responded to a dispatch that there was a
suicidal male driving a tow truck and that he was planning to kill himself. They stopped
the tow truck, removed the defendant from the vehicle, and handcuffed him. As the
officers brought him to the police cruiser, the defendant told them that his weapon was in
the glovebox. The defendant was later indicted for improper handling of a firearm in a
motor vehicle. In denying his motion to suppress, the trial court concluded that the
officers were responding to an emergency situation. The appellate court reversed, but
the Ohio Supreme Court determined that the trial court had properly denied the motion to
suppress. The Dunn court stated:
Given that stopping a person on the street is “considerably less intrusive
than police entry into the home itself,” Illinois v. McArthur, 531 U.S. 326,
336, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), the officers’ effecting a traffic
stop to prevent Dunn from harming himself was reasonable under the
Fourth Amendment. Thus, the community-caretaking/emergency-aid
exception to the Fourth Amendment warrant requirement allows police
officers to stop a driver based on a dispatch that the driver is armed and
plans to kill himself. Dunn at ¶ 23.
{¶17} In this matter, the record indicates that the officers responded to a dispatch
that a man wearing a burgundy hooded sweatshirt was selling drugs at 10206 Way
Avenue. The officers did not observe anyone at that location, so they drove around in
the surrounding three-block area. At the intersection of East 104th Street and Way
Avenue, they observed the defendant in a red jacket standing with another man.
{¶18} The officers exited their cruiser and spoke with the men from a distance of
about 20 feet away. As a safety precaution, they instructed the men to take their hands
out of their pockets and asked for their names and addresses. The man with defendant
cooperated with the officers, but defendant appeared confused and sluggish and did not
respond. Officer Nan moved to within eight feet of defendant, and he immediately
detected the distinct odor of PCP. According to Officer Nan, it is “a very strong ethanol
smell, alcoholish, * * *a little sweet, kind of possibly a radiator coolant, if you can
imagine that, a combination of the two.” The officers asked defendant if he had smoked
PCP that day, and the defendant told them that he had done so earlier. Officer Nan then
patted defendant down and detected a very small vial that he believed to be a “personal
use vial” of PCP with a broken cap.
{¶19} In our view, the record establishes that the officers proceeded to investigate
the area in good faith reliance upon the tip of men selling drugs. During their
conversation with the men, defendant was sluggish, appeared dazed and confused, and
repeatedly failed to answer the officers’ questions. Although the officers demanded that
defendant take his hands from his pockets, the record demonstrates that as the officer took
a few steps closer to defendant, he quickly detected the distinct odor of PCP from
defendant. Defendant then told the officers that he had smoked PCP earlier, and this
created a reasonable suspicion, based upon specific and articulable facts, that an
individual is or has been engaged in criminal activity such to justify a search of
defendant’s outer clothing under Terry. Accord State v. Wilson, 8th Dist. No. 94097,
2010-Ohio-5478 (patdown permissible where officers detected odor of PCP); State v.
Dunn, 8th Dist. No. 85435, 2005-Ohio-3477.
{¶20} Further, the evidence demonstrated that defendant appeared confused, and
smelled of PCP, and that suspects under the influence of this drug are typically disorderly
and are taken to the hospital for treatment. Therefore, the officers properly stopped him
under the community- caretaking/emergency-aid exception to the Fourth Amendment.
{¶21} Moreover, according to the testimony of record, the incriminating nature of
the vial of PCP was immediately apparent and was therefore properly seized under the
“plain feel” exception to the warrant requirement. State v. Dietry, 9th Dist. No.
03CA0052, 2004-Ohio-2661; State v. Russo, 9th Dist. No. 2966-M, 2000 WL 150767.
{¶22} The assignments of error are without merit.
{¶23} Judgment affirmed.
It is ordered that appellee recover from 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 common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR