[Cite as State v. Wade, 2012-Ohio-4255.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26275
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RYAN P. WADE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CR 2011 10 2745
DECISION AND JOURNAL ENTRY
Dated: September 19, 2012
CARR, Judge.
{¶1} Appellant, State of Ohio, appeals the judgment of the Summit County Court of
Common Pleas granting the motion to suppress filed by appellee, Ryan Wade. This Court
reverses.
I.
{¶2} Wade was a passenger in a Ford Expedition that was stopped by the Akron police
on October 4, 2011. Police subsequently discovered a gun lodged under the back seat where
Wade had been sitting. On October 17, 2011, the Summit County Grand Jury indicted Wade on
one count of carrying a concealed weapon, one count of receiving stolen property, and one count
of improperly handling firearms in a motor vehicle. On November 4, 2011, Wade filed a motion
to suppress all evidence obtained as a result of the traffic stop. After a hearing, the trial court
issued an order granting the motion on January 17, 2012.
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{¶3} The State filed a timely notice of appeal. On appeal, the State raises one
assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING THE MOTION TO SUPPRESS.
{¶4} In its assignment of error, the State contends that the trial court erred in granting
Wade’s motion to suppress. This Court agrees.
{¶5} In support of its assignment of error, the State contends that the trial court’s
factual findings were not supported by competent, credible evidence. The State further contends
that the officers were lawfully permitted to retrieve the gun and conduct a subsequent search for
officer safety in the area of the vehicle where Wade had been observed making furtive
movements.
{¶6} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,
the trial court assumes the role of trier of fact and is therefore in the best position to resolve
factual questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio
St.3d 357, 366 (1992). Generally, a reviewing court “must accept the trial court’s findings of
fact if they are supported by competent, credible evidence.” Burnside at ¶ 8. The reviewing
court must then “independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.” Id.
{¶7} The Fourth Amendment to the United States Constitution, as applied to the states
through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Accord Ohio
Constitution, Article I, Section 14. “[A] search conducted without a warrant issued upon
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probable cause is ‘per se unreasonable * * * subject only to a few specifically established and
well-delineated exceptions.’” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973), quoting
Katz v. United States, 389 U.S. 347, 357 (1967).
{¶8} In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court recognized
one general exception to the warrant requirement. The high court held that a police officer may
conduct a brief, warrantless search of an individual’s person for weapons if the officer has a
reasonable and articulable suspicion that the “individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the officer or to others.” Id. at
24. “The purpose of this limited search is not to discover evidence of crime, but to allow the
officer to pursue his investigation without fear of violence.” State v. Evans, 67 Ohio St.3d 405,
408 (1993), quoting Adams v. Williams, 407 U.S. 143, 146 (1972).
{¶9} The court extended its precedent in Terry to protective searches of automobiles in
Michigan v. Long, 463 U.S. 1032 (1983), holding that “the search of the passenger compartment
of an automobile, limited to those areas in which a weapon may be placed or hidden, is
permissible if the police officer possesses a reasonable belief based on ‘specific and articulable
facts which, taken together with the rational inferences from those facts, reasonably warrant’ the
officers in believing that the suspect is dangerous and the suspect may gain immediate control of
weapons.” Id. at 1049, citing Terry at 21. The Long court further stated that “protection of
police and others can justify protective searches when police have a reasonable belief that the
suspect poses a danger, that roadside encounters between police and suspects are especially
hazardous, and that danger may arise from the possible presence of weapons in the area
surrounding a suspect.” Id. at 1049.
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{¶10} In determining whether a protective search is justified, courts apply an objective
standard to determine if the “facts available to the officer at the moment of the seizure or the
search ‘warrant a man of reasonable caution in the belief that the action taken was
appropriate[.]’” State v. Bobo, 37 Ohio St.3d 177, 178-179 (1988). Applying this objective
standard, courts review the totality of the circumstances “through the eyes of the reasonable and
prudent police officer on the scene who must react to events as they unfold.” State v. Andrews,
57 Ohio St.3d 86, 87-88 (1991), citing United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976).
{¶11} Turning to the evidence presented at the suppression hearing, Officers Michael
Stanar and Drew Reed of the Akron Police Department were working together in a marked
cruiser on October 4, 2011. Both officers testified at the suppression hearing.
{¶12} Officer Stanar testified that he was riding as a passenger with Officer Reed in a
marked cruiser when they noticed a white Ford Expedition with no front license plate. The
officers initiated a traffic stop and noticed three individuals inside the SUV. Officer Stanar
testified that as he approached the vehicle, he noticed the backseat passenger bending over and
reaching down. Officer Stanar continued, “It appeared he was stuffing or making movements
like he was stuffing something by his legs or maybe underneath his seat as I was approaching the
vehicle on the right-hand side.” Officer Reed approached the driver’s side while Officer Stanar
approached and made contact with both passengers. Officer Stanar testified that the officers
obtained the identifications of the SUV’s occupants and ran their identifications through the
LEADS system. The officers discovered that the front seat passenger had an outstanding warrant,
and Officer Stanar handcuffed her and placed her in the back of the cruiser.
{¶13} Officer Stanar then asked the back seat passenger, whom he identified in court as
Wade, to step out of the vehicle. When Officer Stanar told Wade to put his hands on top of his
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head, Wade was “hesitant” to do so. Officer Stanar testified that, “When [Wade] got his hands
on his head, he kept wanting to go, kind of reach down towards his feet, so a couple times I had
to kind of put his hands on his head and told him to interlock his fingers, and he was hesitant to
do that. After two or three times he finally did.” Officer Stanar did not discover anything on
Wade when he patted him down for weapons. Officer Stanar then brought Wade to the area
behind the SUV and in front of the cruiser and Officer Reed did the same with the driver.
Officer Stanar then watched Wade and the driver while Officer Reed “looked in the area where
Mr. Wade was seated.” Officer Stanar testified that Officer Reed searched that area because that
was where it appeared Wade had attempted to hide something “underneath the seat or
somewhere on the floor area.” When asked if the movements were the only reason for searching
the back seat, Officer Stanar testified that, “Mr. Wade appeared he was trying to hide something.
Working in law enforcement, when somebody makes those sorts of movements, they could be
hiding a weapon; they could be hiding drugs, something illegal they don’t want the police to
find.” After a weapon was found in the backseat, the officers read Wade his rights and placed
him under arrest. The driver was permitted to return to the SUV because he had a valid license.
{¶14} On cross-examination, Officer Stanar testified that there was nobody in the SUV
when Officer Reed searched the backseat, and that the backseat was the only portion of the
vehicle that was searched. Officer Stanar also clarified that the officers had not received
permission from the driver to search the SUV but they felt it was reasonable to look in the
backseat of the vehicle based on the furtive movements they had observed upon initiating the
stop. Officer Stanar further testified that he could not see Wade’s hands as he made the
movements when the officers were approaching the SUV.
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{¶15} Officer Reed also testified on behalf of the State at the suppression hearing.
Officer Reed testified that after initiating a traffic stop of the SUV because it did not have a front
license plate, he noticed the vehicle’s rear passenger “looking back” and he appeared to be
“shoving something down.” To Officer Reed, it appeared as though Wade was “trying to
conceal something.” When he approached the driver’s side of the SUV, he noticed that the rear
passenger looked “very nervous” and appeared to be “breathing heav[ily].” Officer Reed
testified that Officer Stanar indicated that the front passenger had a warrant and proceeded to
place her in the back of the cruiser. Officer Reed testified that Officer Stanar also had the
backseat passenger, Wade, step out of the SUV. Officer Reed testified that, “[Officer Stanar had
him step out of the vehicle to pat him down for weapons, and when we started to pat him down
he looked, started reaching down, reaching down which obviously made us more on edge. And
so he -- ended up patting him down and I looked -- whenever he opened the door and came out, I
looked underneath like where he was shoving, and you could see [] the butt of a gun.”
{¶16} Officer Reed clarified that he saw the gun when Wade was being patted down for
weapons. Officer Reed observed the gun from outside the vehicle, explaining that he simply
looked at the area where it had appeared Wade had shoved something. When he saw the gun,
Officer Reed then told Officer Stanar to take Wade into custody. While both the front seat
passenger and Wade were taken into custody, Officer Reed testified that the driver was allowed
to drive away after receiving citations for not having a front license plate and not wearing a seat
belt.
{¶17} On cross-examination, Officer Reed testified that the driver was still in the
vehicle at the time that he observed the gun. When asked why the investigation report did not
indicate that he observed the gun prior to the time that the search was initiated, Officer Reed
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testified that he did note write the report. When presented with a copy of the report, Officer
Reed testified, “It just says that I searched the area where he was seated.” Like Officer Stanar,
Officer Reed testified that he had not received consent to search the vehicle and that there was no
need to tow the SUV.
{¶18} On re-direct examination, Officer Reed reiterated that he did not write the report
discussed during cross-examination. When asked if the report accurately reflected his
recollection of the events, Officer Reed testified that it had omitted the fact that he observed the
gun before the vehicle was actually searched. Officer Reed further clarified that he found the
gun underneath the rear passenger seat. On re-cross examination, Officer Reed again indicated
that he saw the gun underneath the seat while Wade was being patted down.
{¶19} In granting the motion to suppress, the trial court highlighted that while Officer
Reed testified that the butt of the gun was in plain view while Wade was being patted down and
the driver remained in the vehicle, Officer Stanar testified Officer Reed discovered the gun
during a search after Wade and the driver had been taken to the rear of the vehicle. After
concluding that the State failed to meet its burden of proof that the gun was in plain view due to
the fact that the police report seemed to substantiate Officer Stanar’s testimony, the trial court
relied on Arizona v. Gant, 556 U.S. 332 (2009), for the proposition that because neither Wade
nor the driver had access to the vehicle at the time of the search, the concerns relating to safety
and destruction of evidence were not applicable. The trial court further found that because there
was no indication that any occupant of the vehicle was dangerous, a protective search as
contemplated in Long was unnecessary.
{¶20} After a review of the record, we conclude that the trial court erred in granting
Wade’s motion to suppress. The parties do not dispute that the officers had authority to initiate
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the initial traffic stop because the SUV was missing a front license plate. See Dayton v.
Erickson, 76 Ohio St.3d 3, 11 (1996). As the officers approached the SUV, they observed Wade
making movements consistent with someone attempting to conceal a weapon. Officer Reed
testified that Wade was breathing heavily and appeared to be “very nervous” as the officer
obtained the identifications of the SUV’s occupants. Although some degree of nervousness
during encounters with police is not uncommon, nervousness can be a factor to weigh in
determining reasonable suspicion. State v. Broughton, 10th Dist. No. 11AP-620, 2012-Ohio-
2526, ¶ 23. When the officers obtained the identifications of the passengers, they learned that
the passenger in the front seat had an outstanding warrant. After arresting the front seat
passenger and placing her in the back of the cruiser, Wade was asked to step out of the SUV.
When Officer Stanar removed Wade removed from the vehicle, Wade was hesitant to comply
with the request to place his hands on top of his head so Officer Stanar could pat him down for
weapons. Under these circumstances where a passenger made movements consistent with
concealing a weapon, exhibited excessive nervousness and hesitated to comply with police
requests, and a fellow passenger had already been placed under arrest, it was reasonable for the
officers to conduct a protective search for officer safety. Long at 1049; see also Broughton at ¶
24, ¶ 37 (holding that a protective search was reasonable as a preventive measure when the
occupants were temporarily removed from the vehicle and would ultimately be permitted to
return). While the trial court’s analysis focused on purported inconsistencies in the officers’
testimony, there is no question that the circumstances in this matter differ from the facts the
Supreme Court confronted in Gant in that there was no testimony here that Wade and the driver
were arrested, handcuffed, and placed in the back of a cruiser at the time the search occurred.
Gant, 556 U.S. at 335. In light of the facts available to the officers in this case, a limited search
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of the area underneath Wade’s seat was a reasonable protective measure given that Wade would
have otherwise been permitted to return to the SUV at the conclusion of the traffic stop where he
could have regained immediate control of a weapon. Long at 1049; Broughton at ¶ 37.
{¶21} It follows that the State’s sole assignment of error is sustained.
III.
{¶22} The State’s assignment of error is sustained. The judgment of the Summit County
Court of Common Pleas is reversed and the cause remanded for further proceedings consistent
with this decision.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR.
APPEARANCES:
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellant.
SCOTT A. RILLEY, Attorney at Law, for Appellee.