State v. White

[Cite as State v. White, 2018-Ohio-18.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case Nos. 17CA10
: 17CA11
v. :
: DECISION AND
DEANDRE A. WHITE, : JUDGMENT ENTRY
:
Defendant-Appellant. :
: RELEASED 01/02/2018

APPEARANCES:

Angela Miller, Jupiter, Florida, for defendant-appellant.

Kevin Rings, Washington County Prosecuting Attorney, and Nicole Tipton Coil, Washington
County Assistant Prosecuting Attorney, Marietta, Ohio, for plaintiff-appellee.

Hoover, J.
{¶1} Defendant-appellant, Deandre A. White (“White”), appeals his conviction and

sentence in the Washington County Court of Common Pleas. White was convicted of one count

of trafficking in heroin (F-2) with a forfeiture specification and, in a separate incident, one count

of trafficking in heroin (F-3). White was sentenced to eight years imprisonment for his F-2

conviction, and to 3 years imprisonment for the F-3 conviction, with the sentences to be served

concurrently to one another.

{¶2} Regarding his F-2 trafficking in heroin conviction, White contends that the trial

court erred in denying his motion to suppress evidence because law enforcement had no legal

authority to make the investigative stop at issue. We disagree. The law enforcement agency had

information from an informant that White was involved in narcotics trafficking; and independent
Washington App. Nos. 17CA10, 17CA11 2

police work verified the information. Therefore, reasonable suspicion existed to justify the

investigative stop. White also contends that his trial counsel provided ineffective assistance by

failing to file a motion to suppress evidence found as a result of a pat-down search of his person;

and alternatively, that the trial court erred by refusing to allow him to present argument as to the

legality of the pat-down search at the motion to suppress hearing. However, we find no merit to

White’s arguments.

{¶3} Regarding the F-3 trafficking in heroin conviction, White contends that the trial

court erred in denying his motion to suppress evidence because the police unreasonably

prolonged a traffic stop in order to conduct a canine sniff of his vehicle. We disagree. Because

the police were still in the process of writing the traffic ticket when the canine arrived and

conducted the sniff, and thus the stop was not unlawfully extended, we conclude that White’s

fourth amendment rights were not violated.

{¶4} Accordingly, we affirm White’s conviction and sentence.

I. Facts and Procedural History

{¶5} This case originated from a narcotics investigation involving the Washington

County Major Crimes Task Force. After receiving complaints of suspicious activity at a house in

Marietta, law enforcement officers conducted surveillance of the house. The officers recognized

individuals with known criminal narcotics histories going into and out of the house. The officers

also observed a black male and a white female repeatedly go to and from the house; but they did

not know their identities.

{¶6} Law enforcement identified the main resident of the house as Emily Welch. At the

time of the surveillance, Welch was already under indictment or about to be indicted on drug

related charges. The officers decided to use a confidential informant to complete a controlled
Washington App. Nos. 17CA10, 17CA11 3

purchase of drugs from Welch. After the confidential informant was successful in purchasing

heroin from Welch, the officers obtained a search warrant to search Welch’s house.

{¶7} During the execution of the search warrant, approximately an hour after the

controlled purchase, Welch admitted to selling heroin to the confidential informant; however,

Welch said that she was selling the heroin at the direction of Meriah Shay Dunn. Dunn was

known to local law enforcement, and was one of the individuals law enforcement had seen going

to and from the house. Welch told law enforcement that Dunn had been at the residence the day

of the controlled purchase with the previously mentioned, unidentified black male and white

female. Welch identified that black male as “Tony or Grizz”, and claimed that he was Dunn’s

supplier of heroin and crack cocaine. Welch also told police that after completing the controlled

purchase, she delivered money to Dunn at a car wash near the Sierra Apartments. According to

Welch, when she delivered the money, Dunn was inside of a black SUV with chrome accents

along with Tony/Grizz. Welch stated that there was crack cocaine and firearms inside the

vehicle.

{¶8} Upon receiving this information from Welch, law enforcement officers traveled to

a Lowe’s parking lot near the Sierra Apartments in Marietta. While in the parking lot, they

observed a vehicle matching the description provided by Welch driving slowly through the

Sierra Apartments. Tony/Grizz, the black male that they had seen earlier in the day at Welch’s

house, was driving the vehicle. A short time later, the vehicle left the apartments and traveled to

the Lowe’s parking lot. Three individuals, including Tony/Grizz, then exited the vehicle and

went into a China Wind and Subway restaurant. About five to ten minutes later the three

individuals returned to the black SUV and a PT Cruiser pulled in next to it. The driver of the PT

cruiser, who the officers knew to have an extensive drug history, then got into the SUV. The
Washington App. Nos. 17CA10, 17CA11 4

SUV did a quick loop around the parking lot before parking again in the same exact parking

space it had been in before.

{¶9} Once the black SUV returned to the parking space, law enforcement officers

decided to stop the vehicle by surrounding it with their own vehicles. The individual known as

Tony/Grizz was identified as White. A search of the vehicle revealed the presence of narcotics

and money. As a result, White was indicted in Case No. 16CR67 on the following offenses: one

count of trafficking in heroin, a second-degree felony, in violation of R.C. 2925.03(A)(2) &

(C)(6)(e), with a forfeiture specification; one count of possession of heroin, a second-degree

felony, in violation of R.C. 2925.11(A) & (C)(6)(d); one count of aggravated trafficking in

drugs, a third-degree felony, in violation of R.C. 2925.03(A)(2) & (C)(1)(c), with a forfeiture

specification; one count of aggravated possession of drugs, a third-degree felony, in violation of

R.C. 2925.11(A) & (C)(1)(b); and one count of trafficking in heroin, a third-degree felony, in

violation of R.C. 2925.03(A)(1) & (C)(6)(d).

{¶10} White pleaded not guilty to all counts of the indictment in Case No. 16CR67.

{¶11} White, while out on bond and awaiting trial was involved in another traffic stop in

Washington County. On this occasion, White was stopped for speeding and for following

another vehicle too closely. Before stopping the vehicle for the traffic infractions, police

confirmed that White had no active warrants and that his license was valid.

{¶12} Police records indicate that the traffic stop was initiated at 10:41 a.m. An officer

contacted dispatch at 10:42 a.m., stating that White’s vehicle was on Putnam Street. At 10:44

a.m., another call was made for assistance because the stop was blocking traffic. When law

enforcement officers approached the vehicle White stated he was in Marietta to visit his lawyer,

and actually made a phone call to his lawyer. White appeared nervous, but was cooperative with
Washington App. Nos. 17CA10, 17CA11 5

police. Within the time it took officers to briefly question White, and to obtain his driver’s

license, White’s attorney, Ray Smith, arrived at the scene. Smith inquired about the reason for

the stop and asked if White was free to leave. Smith was told that White was not free to go, and

that a canine unit was on its way to the scene. Upon Smith’s arrival, Sergeant Matt Anderson

returned to a police vehicle and began to write a traffic ticket.

{¶13} A canine conducted a sniff of the vehicle and indicated on the vehicle for the

presence of narcotics at approximately 10:55 a.m. White was then removed from the vehicle and

a search of the vehicle resulted in the confiscation of heroin and methamphetamine. White was

then placed under arrest and Sergeant Anderson ceased writing the traffic ticket. As a result of

the search, White was indicted in Case No. 16CR135 on the following offenses: one count of

trafficking in heroin, a third-degree felony, in violation of R.C. 2925.03(A)(2) & (C)(6)(d), with

a forfeiture specification; one count of possession of heroin, a third-degree felony, in violation of

R.C. 2925.11(A) & (C)(6)(c); one count of aggravated trafficking in drugs, a third-degree felony,

in violation of R.C. 2925.03(A)(2) & (C)(1)(c), with a forfeiture specification; and one count of

aggravated possession of drugs, a third-degree felony, in violation of R.C. 2925.11(A) &

(C)(1)(b).

{¶14} White pleaded not guilty to all counts of the indictment in Case No. 16CR135.

{¶15} White filed a motion to suppress evidence in each case, challenging the validity of

the stops. The trial court held a hearing on both motions to suppress; and ultimately, the motions

were overruled. Thereafter, under a plea agreement, White agreed to plead no contest to the F-2

trafficking in heroin charge and specification in Case No. 16CA67, and to the F-3 trafficking in

heroin charge in Case No. 16CR135. In exchange, the remaining charges in both cases were

dismissed. The trial court found White guilty of the offenses and sentenced him to eight years
Washington App. Nos. 17CA10, 17CA11 6

imprisonment for the F-2 charge, and to three years imprisonment for the F-3 charge, and

ordered that the sentences run concurrently to each other. The trial court also ordered that

$2,652.00 and several cell phones be forfeited pursuant to the forfeiture specification in Case No.

16CR67. After sentencing, White appealed his convictions in both Case No. 16CR67 and Case

No. 16CR135. We consolidated the appeals sua sponte and now address them together.

II. Assignments of Error

{¶16} White assigns the following errors for our review:

First Assignment of Error:

The trial court erred in denying Appellant White’s Motions to Suppress Evidence.
Fourth and Fourteenth Amendments to the United States Constitution and Article
I, Section 14 of the Ohio Constitution.
Second Assignment of Error:

Appellant White was denied the effective assistance of counsel in violation of the
Sixth and Fourteenth Amendments to the United States Constitution and Article I,
Section 10 of the Ohio Constitution when his counsel failed to challenge the Terry
pat-down.
Third Assignment of Error:

The trial court erred in refusing to allow White to argue that evidence obtained
from the pat-down on July 14, 2015 should be suppressed. Fourth, Fifth and
Fourteenth Amendments to the United States Constitution, Article I, Section 14 of
the Ohio Constitution.

III. Law and Analysis

A. Motions to Suppress

{¶17} In his first assignment of error, White contends that the trial court erred by

overruling his motions to suppress evidence.
Washington App. Nos. 17CA10, 17CA11 7

1. Standard of Review

{¶18} Appellate review of a motion to suppress presents a mixed question of law and

fact. State v. Gurley, 2015-Ohio-5361, 54 N.E.3d 768, ¶ 16 (4th Dist.), citing State v. Roberts,

110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. At a suppression hearing, the trial

court acts as the trier of fact and is in the best position to resolve factual questions and evaluate

witness credibility. Id.; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8. Thus, when reviewing a ruling on a motion to suppress, we defer to the trial court’s findings

of fact if they are supported by competent, credible evidence. Gurley at ¶ 16, citing State v.

Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist.2000). However, “[a]ccepting

those facts as true, we must independently determine whether the trial court reached the correct

legal conclusion in analyzing the facts of the case.” Id., citing Roberts at ¶ 100.

2. Fourth Amendment Protections

{¶19} “ ‘The Fourth Amendment to the United States Constitution and the Ohio

Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.’ ” State v.

Shrewsberry, 4th Dist. Ross No. 13CA3402, 2014-Ohio-716, ¶ 14, quoting State v. Emerson, 134

Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. “This constitutional guarantee is

protected by the exclusionary rule, which mandates the exclusion of the evidence obtained from

the unreasonable search and seizure at trial.” Id., citing Emerson at ¶ 15; see also State v.

Lemaster, 4th Dist. Ross No. 11CA3236, 2012-Ohio-971, ¶ 8 (“If the government obtains

evidence through actions that violate an accused’s Fourth Amendment rights, that evidence must

be excluded at trial.”).

3. The Investigative Stop in Case No. 16CR67 Was Lawful
Washington App. Nos. 17CA10, 17CA11 8

{¶20} White argues that because he did not commit any traffic violations, and because

officers did not observe him selling drugs, the stop of his vehicle in the Lowe’s parking lot near

the China Wind restaurant was unlawful. We disagree.

{¶21} An investigative stop under the Fourth Amendment, often referred to as

a Terry stop, allows an officer to briefly stop and temporarily detain individuals in order to

investigate possible criminal activity. State v. Staten, 4th Dist. Athens No. 03CA1, 2003–Ohio–

4592, ¶ 22, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “ ‘To

conduct an investigatory stop, the officer must be able to point to specific and articulable facts

which, taken together with rational inferences derived from those facts, give rise to a reasonable

suspicion that the individual is engaged or about to be engaged in criminal activity.’ ” State v.

Eatmon, 4th Dist. Scioto No. 12CA3498, 2013–Ohio–4812, ¶ 13, quoting State v. Kilbarger, 4th

Dist. Hocking No. 11CA23, 2012–Ohio–1521, ¶ 15. “ ‘The propriety of an investigative stop by

a police officer must be viewed in light of the totality of the surrounding circumstances.’

” Id., quoting State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of

the syllabus.

{¶22} Furthermore, the totality of the circumstances approach “allows officers to draw

on their own experience and specialized training to make inferences from and deductions about

the cumulative information available to them that ‘might well elude an untrained person.’

” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002),

quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Thus,

when a court reviews an officer’s reasonable suspicion determination, a court must give “due

weight” to factual inferences drawn by resident judges and local law enforcement officers. Id. at

273–274.
Washington App. Nos. 17CA10, 17CA11 9

{¶23} Here, with the above principles in mind, we conclude that the investigative stop of

White’s vehicle in the parking lot was justified because of the existence of various factors giving

rise to a reasonable suspicion that criminal activity was afoot. Notably, White had been spotted

earlier in the day at a residence known to have ties to drug trafficking; the vehicle he was driving

was purported to contain drugs and weapons; he was purported to be a supplier of heroin and

crack cocaine to local drug traffickers; and police observed White engage in activity regularly

associated with drug trafficking – i.e., picking up an individual and making a quick loop with the

individual and then dropping the individual off at the place of origin.

{¶24} While some of the information relied upon by the officers came from Welch, a

known drug user and trafficker, it should be noted that the police corroborated much of the

information through independent police work. Compare State v. Shepherd, 122 Ohio App.3d

358, 366, 701 N.E.2d 778 (2d Dist.1997) (in assessing an informant’s reliability a presumption

of reliability is not extended to an informant who is privy to information solely because he is

himself implicated in criminal activity), with State v. Campbell, 68 Ohio App.3d 688, 691, 589

N.E.2d 452 (1st Dist.1990) (a tip which by itself lacks sufficient indicia of reliability, may still

provide reasonable suspicion justifying an investigative detention if it is sufficiently corroborated

through independent police work). For instance, the evidence presented at the motion to suppress

hearing established that the police observed White at Welch’s residence, that the police verified

that White was driving a vehicle matching the description provided by Welch, and that they

observed White engage in activity that in law enforcement experience is typically associated

with drug activity, i.e. the circling of the parking lot.

{¶25} Thus, based upon the totality of the circumstances, law enforcement had

reasonable suspicion necessary to conduct the investigative stop.
Washington App. Nos. 17CA10, 17CA11 10

4. The Canine Sniff and Duration of Stop in Case No. 16CR135 Was Lawful

{¶26} With regards to Case No. 16CR135, White does not allege that the initial traffic

stop of his vehicle was unlawful. Rather, he contends that the canine sniff of his vehicle

unlawfully extended the traffic stop. Again, we disagree. Rather, after reviewing the record, we

conclude that the purpose of the initial stop had not been concluded at the time the canine

indicated on the vehicle; and the stop was not unlawfully extended.

{¶27} Typically, “[w]hen a law enforcement officer stops a vehicle for a traffic

violation, the officer may detain the motorist for a period of time sufficient to issue the motorist a

citation and to perform routine procedures such as a computer check on the motorist’s driver’s

license, registration and vehicle plates.” State v. Aguirre, 4th Dist. Gallia No. 03CA5, 2003-

Ohio-4909, ¶ 36, citing State v. Carlson, 102 Ohio App.3d 585, 598, 657 N.E.2d 591 (9th

Dist.1995); see also Rodriguez v. United States, -- U.S. --, 135 S.Ct. 1609, 1615, 191 L.Ed.2d

492 (2015) (ordinary inquiries incident to a traffic stop include “checking the driver’s license,

determining whether there are outstanding warrants against the driver, and inspecting the

automobile’s registration and proof of insurance”). “ ‘In determining if an officer completed

these tasks within a reasonable length of time, the court must evaluate the duration of the stop in

light of the totality of the circumstances and consider whether the officer diligently conducted

the investigation.’ ” Id., citing State v. Cook, 65 Ohio St.3d 516, 521-522, 605 N.E.2d 70 (1992)

(fifteen-minute detention was reasonable); United States v. Sharp, 470 U.S. 675, 105 S.Ct. 1568

(1985) (twenty-minute detention was reasonable).

{¶28} A lawfully detained vehicle may be subjected to a canine check of the vehicle’s

exterior even without the presence of a reasonable suspicion of drug-related activity. State v.

Rusnak, 120 Ohio App.3d 24, 28, 696 N.E.2d 633 (6th Dist.1997). Both Ohio courts and the
Washington App. Nos. 17CA10, 17CA11 11

United States Supreme Court have determined that “the exterior sniff by a trained narcotics dog

to detect the odor of drugs is not a search within the meaning of the Fourth Amendment to the

Constitution.” State v. Jones, 4th Dist. Washington No. 03CA61, 2004–Ohio–7280, ¶ 24; United

States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). “Thus, a canine check of a

vehicle may be conducted during the time period necessary to effectuate the original purpose of

the stop.” Jones at ¶ 24.

{¶29} The Supreme Court’s recent decision in Rodriguez v. United States, supra, further

outlines the limits the Fourth Amendment places on the duration and scope of a traffic stop. In

Rodriguez, a police officer issued a written warning to the defendant Rodriguez during a traffic

stop. Id. at 1613. After the officer returned Rodriguez’s information and “ ‘ * * * got all the

reason[s] for the stop out of the way[,] * * *’ ” the officer asked for permission to walk his dog

around Rodriguez’s vehicle. Id. After Rodriguez refused to consent to the request, the officer

instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the patrol car

to wait for a second officer to arrive. Id. The dog later conducted a sniff and alerted to the

presence of drugs in the vehicle. Id. A search of the vehicle revealed a large bag of

methamphetamine. Id.

{¶30} The Supreme Court held that while a police officer “may conduct certain

unrelated checks during an otherwise lawful traffic stop * * * he may not do so in a way that

prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an

individual.” Id. at 1615. Accordingly, the Court concluded that police officers may not extend an

otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. Id.

at 1614-1617.
Washington App. Nos. 17CA10, 17CA11 12

{¶31} As indicated above, we conclude that the purpose of the initial stop had not

concluded at the time the canine indicated on the vehicle. White’s vehicle was stopped at

approximately 10:41 a.m. An officer contacted dispatch at 10:42 a.m., stating that White’s

vehicle was on Putnam Street. At 10:44 a.m., another call was made for assistance because the

stop was blocking traffic. When law enforcement officers approached the vehicle White stated he

was in Marietta to visit his lawyer, and actually made a phone call to his lawyer. White appeared

nervous, but was cooperative with police. Within the time it took officers to briefly question

White, and to obtain his driver’s license, White’s attorney, Ray Smith, arrived at the scene.

Smith inquired about the reason for the stop and asked if White was free to leave. Smith was told

that White was not free to go, and that a canine unit was on its way to the scene. Upon Smith’s

arrival, Sergeant Matt Anderson returned to a police vehicle and began to write a traffic ticket.

{¶32} Sergeant Anderson had not even concluded writing a citation or written warning

to White when the canine conducted a sniff of the vehicle and indicated on the vehicle for the

presence of narcotics at approximately 10:55 a.m. Thus, the canine sniff was conducted

approximately 14 minutes after White was initially stopped, and before White had been given a

citation or warning.

{¶33} The testimony during the suppression hearing indicated that traffic citations are

usually completed within 20 minutes. A partially completed traffic citation was admitted as

evidence. After narcotics were found, White was arrested; and police ceased writing the ticket.

The officers indicated that they acted urgently in an effort to complete the stop because White’s

vehicle was blocking traffic in downtown Marietta.

{¶34} Based on this record, it appears that the stop was conducted and investigated in a

diligent manner. The law enforcement officers present checked White’s information, contacted
Washington App. Nos. 17CA10, 17CA11 13

dispatch, requested a canine, dealt with Attorney Smith, and walked the dog around the vehicle

all within 14 minutes of the initial stop, and within the time period necessary to effectuate the

original purpose of the traffic stop and prior to completion of a written citation. This is not a case

where conducting the sniff prolonged, or added time to, the stop. Thus, we conclude that the

actions of law enforcement did not run afoul of the Fourth Amendment or Rodriguez, supra.

{¶35} Based on the foregoing, we conclude that the trial court did not err in denying

White’s motions to suppress evidence. Accordingly, his first assignment of error is overruled.

B. Ineffective Assistance of Counsel

{¶36} In his second assignment of error, White contends that he received ineffective

assistance of counsel when his trial attorney failed to file a motion to suppress evidence seized

by the officer during his pat-down search of White that occurred subsequent to the investigative

stop in Case No. 16CR67. It should be noted that at the motion to suppress hearing conducted in

Case No. 16CR67, defense counsel attempted to elicit testimony regarding the legality of the pat-

down search. The State objected. The trial court ruled that because the written motion only

challenged the validity of the stop, defense counsel could not expand the scope of the motion by

contesting the validity of the pat-down search.

{¶37} To prevail on a claim of ineffective assistance of counsel, a criminal defendant

must establish (1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but

for counsel’s errors, the result of the proceeding would have been different. State v. Short, 129

Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either part of the test is fatal

to the claim. Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).
Washington App. Nos. 17CA10, 17CA11 14

“Because this issue cannot be presented at trial, we conduct the initial review.” State v. Plymale,

4th Dist. Gallia No. 15CA1, 2016–Ohio–3340, ¶ 34.

{¶38} The defendant has the burden of proof because in Ohio, a properly licensed

attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860

N.E.2d 77, ¶ 62. In reviewing the claim of ineffective assistance of counsel, we must indulge in

“a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.” (Quotations

omitted.) Strickland at 689.

{¶39} “ ‘Failing to file a motion to suppress does not constitute ineffective assistance of

counsel per se. To establish ineffective assistance of counsel for failure to file a motion to

suppress, a defendant must prove that there was a basis to suppress the evidence in question.’ ”

State v. Williams, 4th Dist. Scioto No. 10CA3381, 2012-Ohio-6083, ¶ 15, quoting State v.

Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65. Claims of ineffective

assistance are rejected when counsel’s failure to file a suppression motion was a tactical

decision, there was no reasonable probability of success, or there was no prejudice. State v.

Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859 (2001). We must presume that trial counsel was

effective if counsel “could have reasonably decided that filing a suppression motion would be a

futile act, even if there is some evidence to support a motion.” State v. Walters, 4th Dist. Adams

No. 12CA949, 2013-Ohio-772, ¶ 20.

{¶40} Following examination of the record, it is unclear what evidence was seized

during the alleged pat-down search of White’s person1, and whether the pat-down search

1
In his appellate brief, White contends that money and a cell phone were confiscated as a result of a pat-down
search. However, this assertion cannot be verified upon review of the record.
Washington App. Nos. 17CA10, 17CA11 15

occurred as incident to arrest, as a frisk for weapons prior to arrest, or if White was even arrested

at all on the date of the incident. In other words, the record lacks sufficient information for us to

determine whether a motion to suppress would have been granted. “ ‘Where the record is not

clear or lacks sufficient evidence to determine whether a suppression motion would have been

successful, a claim for ineffective assistance of counsel cannot be established.’ ” State v. James,

4th Dist. Ross No. 13CA3370, 2013-Ohio-5475, ¶ 22, quoting State v. Parkinson, 5th Dist. Stark

No. 1995CA00208, 1996 WL 363435, *3 (May 20, 1996).

{¶41} Therefore, we find that White has failed to show that a motion to suppress would

have had a reasonable probability of success. Accordingly, White has failed to show that his

counsel’s performance was ineffective, and his second assignment of error is overruled.

C. Scope of Motion to Suppress in Case No. 16CR67

{¶42} In his third assignment of error, White contends that the trial court erred by

refusing to allow him to argue that evidence obtained from the alleged pat-down in Case No.

16CR67 should be suppressed.

{¶43} As previously noted, defense counsel argued at the motion to suppress hearing

conducted in Case No. 16CR67, that White should be able to challenge the legality of the alleged

pat-down search. The State objected; and the trial court ruled that because the written motion

only challenged the validity of the stop, defense counsel could not expand the scope of the

motion by contesting the validity of the pat-down search.

{¶44} The actual written motion to suppress filed in Case No. 16CR67 stated as follows:

Now comes Defendant, by and through Counsel, and respectfully requests this

Court for an order suppressing all evidence obtained from a traffic stop which

occurred on July 14, 2015, at Marietta, Washington County, Ohio. The stop of the
Washington App. Nos. 17CA10, 17CA11 16

Defendant lacked reasonable suspicion based on articulable facts and violated his

Constitutional Rights under the Fourth Amendment to the United States

Constitution and Article I, Section 14, of the Ohio Constitution. The Defendant

would ask for a hearing on this motion at the Court’s earliest convenience.

{¶45} “[A] motion to suppress must ‘state with particularity the legal and factual issues

to be resolved,’ thereby placing the prosecutor and court ‘on notice of those issues to be heard

and decided by the court and, by omission, those issues which are otherwise being waived.’

” Columbus v. Ridley, 2015–Ohio–4968, 50 N.E.3d 934, ¶ 23 (10th Dist.), quoting State v.

Shindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994); see also Crim.R. 47 (noting that a pre-

trial motion, including a motion to suppress under Crim.R. 12(C)(3), must “state with

particularity the grounds upon which it is made * * *.”). Thus, White’s failure to raise this

particular issue in his written motion to suppress constituted a waiver, or forfeiture of the

argument. State v. Taylor, 10th Dist. Franklin No. 12AP-283, 2012-Ohio-6200, ¶¶ 10, 12

(“defendant did not preserve in his motion to suppress the issue of whether the initial stop was

illegal; he argued only that the subsequent search of the vehicle was inappropriate * * *”).

Accordingly, the trial court did not err by refusing to allow White to present argument on the

legality of the pat-down search at the suppression hearing. His third assignment of error is

overruled.

IV. Conclusion

{¶46} Having overruled all of White’s assignments of error, we affirm the judgment of

the trial court.

JUDGMENT AFFIRMED.
Washington App. Nos. 17CA10, 17CA11 17

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

The Court finds that reasonable grounds existed for this appeal.

It is ordered that a special mandate issue out of this Court directing the Washington
County Court of Common Pleas 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.

Harsha, J., and Abele, J.: Concur in Judgment and Opinion.

For the Court

By: ____________________________
Marie Hoover, 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.