State v. Hawkins

[Cite as State v. Hawkins, 2023-Ohio-3728.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Appellee : C.A. No. 29761
:
v. : Trial Court Case No. 2020 CR 03039
:
STEVEN MICHAEL HAWKINS JR. : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:

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OPINION

Rendered on October 13, 2023

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MICHAEL MILLS, Attorney for Appellant

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

.............

LEWIS, J.

{¶ 1} Defendant-Appellant Steven Michael Hawkins, Jr. appeals from a judgment

of the Montgomery County Common Pleas Court convicting him of one count of

aggravated possession of drugs following his no contest plea. Hawkins contends that

the trial court erred in overruling his motion to suppress evidence obtained during a traffic
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stop of a vehicle in which he was a passenger. For the reasons that follow, we will affirm

the judgment of the trial court.

I. Facts and Course of Proceedings

{¶ 2} On the evening of August 23, 2020, Hawkins was a passenger in a vehicle

driven by Philip Whiteted that was traveling on State Route 4 near Eby Road in German

Township. Shortly before midnight, German Township Police Officer Wolfe initiated a

traffic stop of Whiteted’s vehicle due to one of the headlights not being illuminated. A

second police cruiser driven by German Township Police Officer Dylan Jones assisted in

the traffic stop. Officer Jones’ unit was a canine unit. While Officer Wolfe was writing

the traffic citation, he requested a canine open-air sniff from Officer Jones.

{¶ 3} When Whiteted and Hawkins were removed from the vehicle to prepare for

the canine sniff, Officer Jones noticed Hawkins was very nervous and made furtive

movements involving his right hand and the right side of his shirt. Officer Jones asked

Hawkins if he had drugs, knives, or guns, and Hawkins responded “No.” Officer Jones

then asked Hawkins, “You don’t mind if I check you real quick?” Hawkins did not

respond, so Officer Jones asked him again “You don’t mind?” Hawkins responded “No.”

Officer Jones began a pat-down of Hawkins and removed a wallet from Hawkins’ pocket.

After searching through the wallet, Officer Jones touched Hawkins’ waistband near where

Hawkins earlier had tugged on the right side of his shirt. Officer Jones felt an object he

immediately recognized as a baggie of drugs. Hawkins pushed Officer Jones’ hand

away. After further discussion between the two, Officer Jones removed the baggie,
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which contained methamphetamine. Hawkins was arrested.

{¶ 4} A Montgomery County grand jury indicted Hawkins on one count of

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

Hawkins filed a motion to suppress the evidence obtained from the traffic stop. A hearing

on the motion to suppress was held on August 22, 2022.

{¶ 5} Officer Jones testified first at the suppression hearing. Tr. 7-34. He had

been a police officer for eight years and had training as an evidence technician and a

canine handler. On the night of August 23, 2020, he and Officer Wolfe were in separate

cruisers stationed by each other on State Route 4 near Eby Road, when they witnessed

a vehicle being driven by Philip Whiteted operating with only one working headlight.

Officer Wolfe followed Whiteted’s vehicle to initiate a traffic stop, and Officer Jones

followed Officer Wolfe to assist in the traffic stop. The State introduced videos of the

traffic stop obtained from the body and dashboard cameras.

{¶ 6} Whiteted was the driver of the vehicle, and Hawkins was a passenger.

Officer Jones noticed that Hawkins was extremely nervous, and it was obvious that his

heart was beating very fast. However, Officer Jones did not notice any suspicious

activity from Hawkins while he was in the car. As Officer Wolfe began writing the traffic

citation, he requested that Officer Jones conduct a free-air canine sniff based on some

prior field interviews involving Jones and drug activity, which were reflected in a report

the officers reviewed in Officer Wolfe’s police cruiser. Officer Jones instructed Whiteted

and Hawkins to exit the vehicle. As Hawkins exited the vehicle from the passenger side,

Officer Jones became concerned. Officer Jones explained:
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When I had Mr. Hawkins step out of the vehicle, I noticed that as he

was stepping out he was manipulating his shirt on his right side, and he also

appeared to adjust something on his right side as he was stepping out. As

he walked back away from his vehicle to the front of our cruisers he also

tucked his shirt tail down as if he may have been trying to conceal

something. I noticed he also had a large black object in his cargo pocket

of his shorts.

Tr. 16.

{¶ 7} When Officer Jones asked Hawkins if he possessed any weapons or drugs,

Hawkins replied that he did not. Officer Jones then asked Hawkins if he could check

him. There was no response. So, Officer Jones asked Hawkins again if he minded if

Officer Jones checked him. Hawkins responded no. Officer Jones then proceeded to

pat him down. Officer Jones immediately discovered a wallet in Hawkins’ pocket.

Officer Jones took out the wallet and looked through it. He then continued his pat-down

of Hawkins. Officer Jones felt a bulge in Hawkins’ waistband. Hawkins then pushed

Officer Jones’ hand away and told him that he did not want Officer Jones to go through

his pockets. Officer Jones, based on his experience and his feel of the bulge, believed

the bulge was a baggie of drugs. In response to further questioning, Hawkins told Officer

Jones it was a baggie of sand. Officer Jones proceeded to retrieve the baggie, which

contained methamphetamine. Officer Jones arrested Hawkins.

{¶ 8} Philip Whiteted testified next at the suppression hearing. Tr. 35-47. He

had been driving his grandfather’s vehicle at the time of the incident. He believed the
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headlights were working properly at the time he was pulled over by the police. However,

the police officers would not allow him to check the headlights during the traffic stop.

When he arrived at home shortly after the traffic stop, Whiteted took a picture of his

headlights, which were illuminated and working. During the traffic stop, Whiteted stated

that the headlight might be “shorted” and asked the officers if he could “beat” on the

headlight. Whiteted was detained and not free to leave during the traffic stop. Whiteted

subsequently paid a fine to resolve the citation he received involving the headlight.

{¶ 9} Hawkins testified last at the suppression hearing. Id. at 47-56. He

explained that although he had consented to Officer Jones checking him for weapons, he

had believed that the search would be limited to looking for weapons, not drugs. At the

time Officer Jones removed his wallet, Hawkins knew this was a violation of his rights, but

he did not feel comfortable objecting to the removal. He pushed Officer Jones’ hand

away because he did not consent to Officer Jones searching for anything other than

weapons. During the traffic stop, Hawkins did not believe he was free to leave.

{¶ 10} Hawkins filed a post-hearing brief in support of his motion to suppress. On

September 12, 2022, the trial court overruled the motion to suppress. After making its

findings of fact and summarizing the pertinent caselaw, the trial court concluded:

This situation is not entirely straight forward. The officer did not

immediately engage in a Terry frisk. Rather, he went to the wallet and

checked it out. Then he proceeded to feel around the waistband. One

would think that if he was fearful the Defendant was armed, he would have

immediately checked in the waistband area since that is where the weapon
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would have been. The testimony appears to indicate he knew the wallet

was not the weapon. Therefore, one might conclude that he was looking

for evidence, which is not the appropriate goal of a Terry frisk. The Terry

frisk is for officer safety and to find weapons.

Despite the ambiguity of this situation, the court does not conclude

there was an improper search. The Defendant had reluctantly consented

to a search. In addition, Defendant’s nervousness and furtive movement

provided grounds for concern about officer safety. The plain feel doctrine

applies. The court finds the officer, based on training and experience,

immediately recognized the contraband nature of what he was touching.

Defendant’s Motion to Suppress is not well taken and is hereby

OVERRULED.

Decision Overruling Motion to Suppress, p. 9.

{¶ 11} Hawkins subsequently pled no contest to one count of aggravated

possession of drugs. The trial court found him guilty and sentenced him to an indefinite

prison sentence of two to three years. The court also notified Hawkins that he would be

supervised by the Parole Board for a period of between 18 months and three years of

post-release control. Hawkins filed a timely notice of appeal from the judgment of

conviction.

II. The Trial Court Did Not Err in Overruling the Motion to Suppress

{¶ 12} Hawkins’ first assignment of error states:
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THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S

MOTION TO SUPPRESS.

{¶ 13} “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.

“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 347, 366, 582 N.E.2d 972

(1992). “Consequently, an appellate court must 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). “Accepting these facts as true, the appellate court

must then independently determine, without deference to the conclusion of the trial court,

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.1997).

{¶ 14} This appeal involves evidence obtained from a search of Hawkins during a

traffic stop. The Fourth Amendment to the United States Constitution protects citizens

“against unreasonable searches and seizures * * *.” “The language of Article I, Section

14 of the Ohio Constitution is virtually identical to the language in the Fourth Amendment,”

and the Ohio Supreme Court has “interpreted Article I, Section 14 as affording the same

protection as the Fourth Amendment.” State v. Hoffman, 141 Ohio St.3d 428, 2014-

Ohio-4795, 25 N.E.3d 993, ¶ 11, citing State v. Robinette, 80 Ohio St.3d 234, 238-239,

685 N.E.2d 762 (1997).

{¶ 15} “The Fourth Amendment does not proscribe all state-initiated searches and
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seizures; it merely proscribes those which are unreasonable.” Florida v. Jimeno, 500

U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), citing Illinois v. Rodriguez, 497

U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Thus, “[t]he touchstone of the Fourth

Amendment is reasonableness.” Id. at 250. “[A] police stop of a motor vehicle and the

resulting detention of its occupants has been held to be a seizure under the Fourth

Amendment.” State v. Kerr, 3d Dist. Allen No. 1-17-01, 2017-Ohio-8516, ¶ 13, citing

Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). A traffic

“stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under

the circumstances.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135

L.Ed.2d 89 (1996).

{¶ 16} Although Hawkins argued in the trial court that the initial stop of the vehicle

was not lawful, he has not made that argument on appeal. Rather, Hawkins contends

that the traffic stop was improperly extended to facilitate a canine drug sniff. Appellant’s

Brief, p. 6. According to Hawkins, “the officer testified that they had completed their

computer record checks, the driver had a valid license, found no warrants or other

evidence of legal [sic] activity, and decided to extend the stop for the express purpose of

imposing a canine sniff. No citation was prepared or issued at that point.” Id. Since

Hawkins does not challenge on appeal the legality of the traffic stop itself, we will assume,

as the trial court found, that the officers had a reasonable belief that the vehicle driven by

Whiteted had one headlight not working, which was a violation of Ohio law. Instead, we

will address Hawkins’ argument that the lawful traffic stop became unlawful due to an

improper extension of the stop.
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{¶ 17} ”A seizure that is justified solely by the interest in issuing a * * * ticket to the

driver can become unlawful if it is prolonged beyond the time reasonably required to

complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160

L.Ed.2d 842 (2005). “Beyond determining whether to issue a traffic ticket, an officer’s

mission includes ‘ordinary inquiries incident to [the traffic] stop.’ ” Rodriguez v. United

States, 575 U.S. 348, 355, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), quoting Caballes at

408. “Typically such inquiries involve checking the driver’s license, determining whether

there are outstanding warrants against the driver, and inspecting the automobile’s

registration and proof of insurance.” Id. A canine sniff is not an ordinary inquiry incident

to a traffic stop. Rather, a canine sniff is more about detecting evidence of criminal

wrongdoing than roadway safety. State v. Haley, 3d Dist. Marion No. 9-22-04, 2022-

Ohio-2188, ¶ 8.

{¶ 18} However, “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.”

(Citations omitted.) State v. Blatchford, 2016-Ohio-8456, 79 N.E.3d 97, ¶ 28 (12th Dist.).

Consequently, a law enforcement officer may conduct a canine sniff of a vehicle without

reasonable suspicion of additional illegal activity, provided that the officer conducts the

canine sniff of the vehicle before the reasonable completion of the traffic stop procedures.

State v. Casey, 12th Dist. Warren No. CA2013-10-090, 2014-Ohio-2586, ¶ 22, citing State

v. Elliott, 7th Dist. Mahoning No. 11 MA 182, 2012-Ohio-3350, ¶ 23.

{¶ 19} Unlike many cases in which motions to suppress are granted due to the

extended delay resulting from the arresting officer waiting for a canine unit to arrive, in
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Hawkins’ situation, the canine unit was already on the scene at the beginning of the traffic

stop. Therefore, the normal delay that results in an extension of a traffic stop when a

canine unit is called was not present in this case. Indeed, the video evidence from the

traffic stop showed that the stop was initiated at 11:12 p.m. and the search of Hawkins

occurred at 11:17 p.m. Officer Wolfe was in the cruiser beginning to draft the citation

when Officer Jones felt the contraband. The testimony of Officer Jones and the video

evidence showed that very little time passed between the initiation of the traffic stop and

when Hawkins was searched. Based on the record before us, we cannot conclude that

Hawkins was detained beyond the time to reasonably complete the traffic stop

procedures.1

{¶ 20} Hawkins next takes issue with the search Officer Jones conducted.

Hawkins contends the pat-down search should have ended once the officer confirmed

Hawkins’ wallet was not a weapon. The State responds that Hawkins voluntarily

consented to the search, and the removal of his wallet “did not alleviate Officer Jones’

concerns that Hawkins may have a weapon concealed elsewhere on his person.”

Appellee’s Brief, p. 7.

{¶ 21} “Authority to conduct a pat-down search does not flow automatically from a

lawful stop; a separate inquiry is required.” State v. Phillips, 155 Ohio App.3d 149, 2003-

Ohio-5742, 799 N.E.3d 653, ¶ 22 (2d Dist.), citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1 The State contends that an open-air canine sniff never occurred, and “[t]he canine was

never taken out of the cruiser.” Appellee’s Brief, p. 4-5. However, the video from the
police cruiser’s dashboard camera that was introduced at the suppression hearing
showed that a canine sniff occurred at 11:24 p.m. This fact, however, does not affect
the resolution of this appeal.
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1868, 20 L.Ed.2d 889 (1968). The point of that inquiry is whether the officer was “justified

in believing that the individual whose suspicious behavior he is investigating at close

range is armed and presently dangerous to the officer or to others.” Terry at 24. If that

justification exists, the officer may reasonably conduct a pat-down search for weapons.

“And in determining whether the officer acted reasonably in such circumstances, due

weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but

to the specific reasonable inferences which he is entitled to draw from the facts in light of

his experience.” Id. at 27.

{¶ 22} “The protective pat down under Terry is limited in scope to its protective

purpose and cannot be employed by the searching officer to search for evidence of crime.

* * * Obviously, once the officer determines from his sense of touch that an object is not

a weapon, the pat down frisk must stop. The officer, having satisfied himself or herself

that the suspect has no weapon, is not justified in employing Terry as a pretext for a

search for contraband.” State v. Evans, 67 Ohio St.3d 405, 414, 618 N.E.2d 162 (1993).

{¶ 23} It is “well settled that one of the specifically established exceptions to the

requirements of both a warrant and probable cause is a search that is conducted pursuant

to consent.” (Citations omitted.) Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93

S.Ct. 2041, 36 L.Ed.2d 854 (1973). “In order to rely on the consent exception of the

warrant requirement, the State must demonstrate that the consent was ‘freely and

voluntarily given.’ ” State v. Starks, 9th Dist. Summit No. 27347, 2015-Ohio-2137, ¶ 8,

quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797

(1968). “[T]he government bears the burden of showing that consent was ‘freely and
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voluntarily’ given by ‘clear and positive’ evidence.” Id., quoting State v. Feeney, 9th Dist.

Summit No. 25727, 2011-Ohio-5474, ¶ 12.

{¶ 24} “Whether a consent to search was voluntary or was the product of duress

or coercion, express or implied, is a question of fact to be determined from the totality of

all of the facts and circumstances.” State v. George, 2d Dist. Montgomery No. 25945,

2014-Ohio-4853, ¶ 28, citing Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136

L.Ed.2d 347 (1996). The following six factors are generally considered to determine this

question: 1) whether the defendant's custodial status was voluntary; 2) whether coercive

police procedures were used; 3) the extent and level of the defendant's cooperation; 4)

the defendant's awareness of his or her right to refuse consent; 5) the defendant's

education and intelligence; and 6) the defendant's belief that no incriminating evidence

would be found. Id.

{¶ 25} The record before us establishes that Officer Jones was justified in believing

that Hawkins may have been armed and presently dangerous. Officer Jones testified

that Hawkins had been extremely nervous as he exited the vehicle and immediately

began reaching to his one side and pulling down his shirt to cover something on his right

side. Officer Jones also noticed a bulge in Hawkins’ pocket around that area. This

testimony was supported by the video evidence of record. These facts supported a

concern that Hawkins was concealing something that may have been a danger to Officer

Jones. Therefore, Officer Jones was warranted in conducting a pat-down of Hawkins.

Further, the record supports the trial court’s finding that Hawkins voluntarily consented to

a search of his person. Based on his conversation with Officer Jones, Hawkins made it
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clear that he was aware of his rights. The trial court found that Hawkins was intelligent

and mature. No coercive police procedures were used. Notably, Hawkins concedes in

his brief that he voluntarily consented to the search, but instead takes issue with whether

the search should have stopped when the wallet was found.

{¶ 26} The trial court’s factual findings were supported by competent, credible

evidence in the record. These facts established that Officer Jones had authority to

conduct a pat-down search and that Hawkins had voluntarily consented to that search.

Although we do not approve of Officer Jones’ search of the contents of Hawkins’ wallet,

we conclude that he had the authority to continue his pat-down of Hawkins to ensure that

Hawkins was not armed. During this pat-down, Officer Jones felt a bulge in Hawkins’

waistband that, based on his experience and his plain feel, alerted him to the presence

of drugs. Therefore, Officer Jones had probable cause to believe the item was

contraband sufficient to authorize the warrantless search of Hawkins’ pocket and seizure

of the object within it. Phillips, 155 Ohio App.3d 149, 2003-Ohio-5742, 799 N.E.2d 653,

at ¶ 41-45, citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334

(1993).

{¶ 27} The trial court did not err in overruling the motion to suppress. The first

assignment of error is overruled.

III. Hawkins Has Not Demonstrated that He Was Denied Effective Assistance of

Trial Counsel

{¶ 28} Hawkins’ second assignment of error states:
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APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL AS GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO

CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS.

{¶ 29} In this assignment of error, Hawkins contends that his trial counsel’s failure

to expressly raise the issue of improper detention with the trial court constituted ineffective

assistance of counsel. According to Hawkins, his trial counsel’s failure to raise this issue

altered the outcome of his case.

{¶ 30} To establish ineffective assistance of counsel, a defendant must

demonstrate both that (1) trial counsel’s conduct was deficient, and (2) trial counsel’s

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel’s performance is deficient if

it falls below an objective standard of reasonableness. Id. at 687. The first prong

“requires showing that counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Trial counsel

is entitled to a strong presumption that his or her conduct falls within the wide range of

reasonable assistance. Id. at 689. The second prong requires a showing that the errors

were serious enough to create a reasonable probability that, but for the errors, the

outcome of the case would have been different. Id. at 694. “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Id.

{¶ 31} The failure to raise a particular argument in support of a motion to suppress

may constitute ineffective assistance of counsel when the record demonstrates the

motion would have been granted had that argument been asserted. State v. Lewis, 5th
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Dist. Knox No. 20CA13, 2021-Ohio-1360, ¶ 20, citing State v. Neil, 10th Dist. Franklin No.

14AP-981, 2016-Ohio-4762. However, counsel is not deficient for failing to raise a

meritless issue. State v. Taylor, 78 Ohio St.3d 15, 31, 676 N.E.2d 82 (1997).

{¶ 32} Hawkins has failed to demonstrate a reasonable probability the motion to

suppress would have been granted based on the argument that the traffic stop was

improperly extended to conduct a canine sniff. As explained above, the police officers

did not extend the traffic stop to conduct a canine open-air sniff. Rather, the canine sniff

was ordered and was going to take place within the time confines of the original traffic

stop. Therefore, Hawkins’ ineffective assistance of counsel claim must fail. Id. at ¶ 23.

The second assignment of error is overruled.

IV. Conclusion

{¶ 33} Having overruled both of Hawkins’ assignments of error, the judgment of

the trial court will be affirmed.

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TUCKER, J. and HUFFMAN, J., concur.