[Cite as State v. Alcorn, 2011-Ohio-2058.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 23993 Plaintiff-Appellee : : Trial Court Case No. 09-CR-2790 v. : : PHILLIP J. ALCORN : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 29th day of April, 2011.
...........
MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
CHRISTOPHER L. WESNER, Atty. Reg. #0082699, Chris Wesner Law office, LLC, 430 North Wayne Street, Piqua, Ohio 45356 Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Phillip J. Alcorn appeals from his conviction and
sentence, following a no-contest plea, upon one count of Possession of Heroin, and one count
of Possession of Drug Paraphernalia. He contends that the trial court erred in overruling his 2
motion to suppress, because the pat-down search leading to the discovery and seizure of the
heroin and marijuana pipe was not based upon a reasonable belief that he was armed and
dangerous.
{¶ 2} We conclude that the pat-down search was justified, based upon the totality of
the circumstances. Accordingly, the judgment of the trial court is Affirmed.
I
{¶ 3} One August evening in 2009, at about 6:30 p.m., Dayton Police Narcotics
Detective Patrick Bell was on patrol, conducting surveillance at a Shell gas station, based
upon complaints of people loitering there for the purpose of buying and selling drugs. Bell
noticed a white Geo Tracker parked neither at the gas pumps, nor in the parking spaces in
front of the associated store. The three occupants remained sitting in the car for five minutes,
looking around.
{¶ 4} Then, one of the occupants (not Alcorn) left the car, went to a pay phone, either
made several phone calls, or attempted several times to make a call, and then returned to the
car. After a few minutes, the car drove over to a parking spot in front of the store and parked.
The same occupant who had used the pay phone then went into the store for less than 30
seconds, and returned to the car, without entering it. After a consultation lasting less than
fifteen seconds, this individual again went to the pay phone and used it, to make calls, or at
least to attempt to make calls.
{¶ 5} The individual then got back in the car, which remained parked for a couple of
minutes, then left the gas station and headed eastbound on Germantown. 3
{¶ 6} Bell followed the car, noticing that it had an out-of-county license plate. Bell
explained that it was common for people from other counties to come to Dayton to buy drugs,
because there are more drugs available, and they are cheaper, than are available in the suburbs.
The Tracker drove into the City of Dayton, into areas with even higher rates of illegal drug
transactions.
{¶ 7} Bell lost track of the car for three to four minutes, but then found it again, and
resumed following it. The car proceeded very slowly down Germantown; the occupants
looked around, as if they were unsure where they were going. The car then made a right turn
on Danner, and into the Desoto Bass housing project, which Bell testified has a reputation as
the highest drug-related and crime-related area in the City of Dayton. The car parked in the
project, and nothing happened for fifteen minutes.
{¶ 8} A man then approached the driver’s side of the Tracker, within three to four
feet, and communicated with the occupants. The man then walked away. After a few
minutes, the Tracker left the project. As soon as the Tracker pulled onto Danner, a gold
Oldsmobile pulled into Danner and followed right behind it, “almost on its bumper.”
{¶ 9} As the two cars, the Tracker and the Oldsmobile, proceeded westbound on
Germantown, a marked Dayton police cruiser pulled onto Germantown from a side street and
got right behind the two cars. The two cars immediately split up, going in opposite
directions. Bell followed the Tracker, which returned to the Shell station where Bell had first
noticed it, and parked in the space in which it had previously parked.
{¶ 10} The Oldsmobile then arrived, from a different direction, and parked right next
to the Tracker. A total of five people, one of whom was Alcorn, got out of the two cars; four 4
went to the pay phone, and one of them used the pay phone several times. They all then
returned to their cars. At this point, based upon his experience, Bell formed a conclusion that
the occupants were attempting to purchase illegal drugs. Bell requested assistance.
{¶ 11} Alcorn got into the Oldsmobile, and the Oldsmobile drove off before other
police detectives arrived on the scene. Bell remained at the scene with the Tracker.
{¶ 12} About five minutes later, the Oldsmobile returned. Alcorn talked to the
occupants of the Tracker. Alcorn then got into the driver’s seat of the Tracker, and both cars
left the Shell station and got back on Germantown. By this time, other detectives in other
unmarked cruisers had arrived on the scene, and a decision was made to stop the cars.
{¶ 13} Police Detective Joey Myers made contact with Alcorn, who was now the
driver of the Tracker. He ordered Alcorn out of the car, and conducted a pat-down search for
weapons. During the pat-down, Myers immediately recognized a hard, metal marijuana pipe
in Alcorn’s left front shorts pocket, which Myers retrieved. Myers also immediately
recognized a gelatin capsule in the same pocket, which, based on his experience recovering
similar capsules during “thousands of time[s] in doing drug investigations,” he recognized as a
common packaging for heroin and cocaine. He retrieved this capsule, which was ultimately
determined to contain heroin.
{¶ 14} Alcorn was arrested, and later charged by indictment, with one count of
Possession of Heroin, and one count of Possession of Drug Paraphernalia. He moved to
suppress the evidence. Following a hearing, his motion to suppress was overruled. He then
pled no contest to the charges, was convicted, and was sentenced to community control
sanctions for a period of time not to exceed five years. 5
{¶ 15} From his conviction and sentence, Alcorn appeals.
II
{¶ 16} Alcorn’s sole assignment of error is as follows:
{¶ 17} “THE TRIAL COURT ERRED IN DENYING THE MOTION FOR THE
SUPPRESSION OF EVIDENCE OF THE DEFENDANT-APPELLANT PHILLIP J.
ALCORN.”
{¶ 18} In his argument in support of his assignment of error, Alcorn does not
challenge the propriety of the stop. Nor does he challenge the seizure of the evidence, once
Myers felt the evidence, recognizing the marijuana pipe and the drug capsule for what they
were. He argues that “the State did not meet its burden of showing that its agents possessed a
reasonable, articulable suspicion that [he] was armed and dangerous prior to their pat-down
search.”
{¶ 19} Alcorn recognizes that the Supreme Court of Ohio has opined, in State v.
Evans, 67 Ohio St.3d 405, 413, 1993-Ohio-186, that: “The right to frisk is virtually automatic
when individuals are suspected of committing a crime, like drug trafficking, for which they are
likely to be armed.” He argues that State v. Evans was based upon State v.
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[Cite as State v. Alcorn, 2011-Ohio-2058.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 23993 Plaintiff-Appellee : : Trial Court Case No. 09-CR-2790 v. : : PHILLIP J. ALCORN : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 29th day of April, 2011.
...........
MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
CHRISTOPHER L. WESNER, Atty. Reg. #0082699, Chris Wesner Law office, LLC, 430 North Wayne Street, Piqua, Ohio 45356 Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Phillip J. Alcorn appeals from his conviction and
sentence, following a no-contest plea, upon one count of Possession of Heroin, and one count
of Possession of Drug Paraphernalia. He contends that the trial court erred in overruling his 2
motion to suppress, because the pat-down search leading to the discovery and seizure of the
heroin and marijuana pipe was not based upon a reasonable belief that he was armed and
dangerous.
{¶ 2} We conclude that the pat-down search was justified, based upon the totality of
the circumstances. Accordingly, the judgment of the trial court is Affirmed.
I
{¶ 3} One August evening in 2009, at about 6:30 p.m., Dayton Police Narcotics
Detective Patrick Bell was on patrol, conducting surveillance at a Shell gas station, based
upon complaints of people loitering there for the purpose of buying and selling drugs. Bell
noticed a white Geo Tracker parked neither at the gas pumps, nor in the parking spaces in
front of the associated store. The three occupants remained sitting in the car for five minutes,
looking around.
{¶ 4} Then, one of the occupants (not Alcorn) left the car, went to a pay phone, either
made several phone calls, or attempted several times to make a call, and then returned to the
car. After a few minutes, the car drove over to a parking spot in front of the store and parked.
The same occupant who had used the pay phone then went into the store for less than 30
seconds, and returned to the car, without entering it. After a consultation lasting less than
fifteen seconds, this individual again went to the pay phone and used it, to make calls, or at
least to attempt to make calls.
{¶ 5} The individual then got back in the car, which remained parked for a couple of
minutes, then left the gas station and headed eastbound on Germantown. 3
{¶ 6} Bell followed the car, noticing that it had an out-of-county license plate. Bell
explained that it was common for people from other counties to come to Dayton to buy drugs,
because there are more drugs available, and they are cheaper, than are available in the suburbs.
The Tracker drove into the City of Dayton, into areas with even higher rates of illegal drug
transactions.
{¶ 7} Bell lost track of the car for three to four minutes, but then found it again, and
resumed following it. The car proceeded very slowly down Germantown; the occupants
looked around, as if they were unsure where they were going. The car then made a right turn
on Danner, and into the Desoto Bass housing project, which Bell testified has a reputation as
the highest drug-related and crime-related area in the City of Dayton. The car parked in the
project, and nothing happened for fifteen minutes.
{¶ 8} A man then approached the driver’s side of the Tracker, within three to four
feet, and communicated with the occupants. The man then walked away. After a few
minutes, the Tracker left the project. As soon as the Tracker pulled onto Danner, a gold
Oldsmobile pulled into Danner and followed right behind it, “almost on its bumper.”
{¶ 9} As the two cars, the Tracker and the Oldsmobile, proceeded westbound on
Germantown, a marked Dayton police cruiser pulled onto Germantown from a side street and
got right behind the two cars. The two cars immediately split up, going in opposite
directions. Bell followed the Tracker, which returned to the Shell station where Bell had first
noticed it, and parked in the space in which it had previously parked.
{¶ 10} The Oldsmobile then arrived, from a different direction, and parked right next
to the Tracker. A total of five people, one of whom was Alcorn, got out of the two cars; four 4
went to the pay phone, and one of them used the pay phone several times. They all then
returned to their cars. At this point, based upon his experience, Bell formed a conclusion that
the occupants were attempting to purchase illegal drugs. Bell requested assistance.
{¶ 11} Alcorn got into the Oldsmobile, and the Oldsmobile drove off before other
police detectives arrived on the scene. Bell remained at the scene with the Tracker.
{¶ 12} About five minutes later, the Oldsmobile returned. Alcorn talked to the
occupants of the Tracker. Alcorn then got into the driver’s seat of the Tracker, and both cars
left the Shell station and got back on Germantown. By this time, other detectives in other
unmarked cruisers had arrived on the scene, and a decision was made to stop the cars.
{¶ 13} Police Detective Joey Myers made contact with Alcorn, who was now the
driver of the Tracker. He ordered Alcorn out of the car, and conducted a pat-down search for
weapons. During the pat-down, Myers immediately recognized a hard, metal marijuana pipe
in Alcorn’s left front shorts pocket, which Myers retrieved. Myers also immediately
recognized a gelatin capsule in the same pocket, which, based on his experience recovering
similar capsules during “thousands of time[s] in doing drug investigations,” he recognized as a
common packaging for heroin and cocaine. He retrieved this capsule, which was ultimately
determined to contain heroin.
{¶ 14} Alcorn was arrested, and later charged by indictment, with one count of
Possession of Heroin, and one count of Possession of Drug Paraphernalia. He moved to
suppress the evidence. Following a hearing, his motion to suppress was overruled. He then
pled no contest to the charges, was convicted, and was sentenced to community control
sanctions for a period of time not to exceed five years. 5
{¶ 15} From his conviction and sentence, Alcorn appeals.
II
{¶ 16} Alcorn’s sole assignment of error is as follows:
{¶ 17} “THE TRIAL COURT ERRED IN DENYING THE MOTION FOR THE
SUPPRESSION OF EVIDENCE OF THE DEFENDANT-APPELLANT PHILLIP J.
ALCORN.”
{¶ 18} In his argument in support of his assignment of error, Alcorn does not
challenge the propriety of the stop. Nor does he challenge the seizure of the evidence, once
Myers felt the evidence, recognizing the marijuana pipe and the drug capsule for what they
were. He argues that “the State did not meet its burden of showing that its agents possessed a
reasonable, articulable suspicion that [he] was armed and dangerous prior to their pat-down
search.”
{¶ 19} Alcorn recognizes that the Supreme Court of Ohio has opined, in State v.
Evans, 67 Ohio St.3d 405, 413, 1993-Ohio-186, that: “The right to frisk is virtually automatic
when individuals are suspected of committing a crime, like drug trafficking, for which they are
likely to be armed.” He argues that State v. Evans was based upon State v. Williams (1990),
51 Ohio St.3d 58, which it cites, and that State v. Williams involved a large quantity of drugs –
growing marijuana plants in that case. Alcorn argues that his case is distinguishable, because
there was no reason for the officers to believe that a large quantity of drugs was involved.
{¶ 20} But State v. Evans, supra, involved a situation where a car was stopped for a
burned out headlight, and during the stop, there was a dispatch that a man matching the driver 6
of the car they had stopped “had just made a drug transaction.” Id., at 406. The amount of
drugs involved in the suspected drug transaction was never specified. In Evans, as in the case
before us, only a small quantity of drugs was seized. Thus, even if State v. Williams, supra,
might be distinguishable based upon the quantity of the drugs involved, there does not appear
to be a similar basis for distinguishing State v. Evans.
{¶ 21} Alcorn relies upon State v. Warren (1998), 129 Ohio App.3d 598, a decision of
the First District Court of Appeals. The majority opinion in that case (there was a dissenting
opinion) distinguished State v. Williams, supra, based upon the quantity of the drugs involved,
but did not cite or discuss State v. Evans, supra (neither did the dissenting opinion).
{¶ 22} We conclude that State v. Warren, supra, is distinguishable. In reaching this
conclusion, we need not decide, nor do we decide, whether we would follow State v. Warren –
i.e., whether we would decide that case similarly on its facts. The stop in State v. Warren was
based solely upon two uniformed police officers having observed two men, in a high-crime
area of Cincinnati, one of whom dropped a tissue upon noticing the officers, with one of the
officers rubbing his foot against the tissue and concluding that it held a small amount of
cocaine. Only after these observations did the officers stop the men.
{¶ 23} In the case before us, Bell’s observations led him to have a reasonable,
articulable suspicion that a drug transaction was being arranged, in an area notorious for
illegal drug transactions. This was not a mere possession of a small quantity of cocaine, as in
State v. Warren; this was an arranged purchase of illegal drugs, presumably from a dealer in
illegal drugs. We conclude, therefore, that the police officers in the case before us had a
reasonable belief that the persons involved in the suspected drug transaction would be armed 7
and dangerous. Accord, see State v. Martin, Montgomery App. No. 20270, 2004-Ohio-2738.
{¶ 24} Alcorn’s sole assignment of error is overruled.
III
{¶ 25} Alcorn’s sole assignment of error having been overruled, the judgment of the
trial court is Affirmed.
DONOVAN and FROELICH, JJ., concur
Copies mailed to:
Mathias H. Heck Johnna M. Shia Christopher L. Wesner Hon. Timothy N. O’Connell