State v. Campolo

2015 Ohio 3624

• Court: Ohio Court of Appeals
• Decided: September 2, 2015
• Docket: 14-CA-104
• Status: Published

Opinion

[Cite as State v. Campolo, 2015-Ohio-3624.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : AARON J. CAMPOLO : Case No. 14-CA-104 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 2014 CR 00152

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 2, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT MICHAEL R. DALSANTO Licking County Prosecutor 3 South Park Place, Suite 220 Newark, OH 43055 By: BRYAN R. MOORE Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, OH 43055 Licking County, Case No.14-CA-104 2

Baldwin, J.

{¶1} Defendant-appellant Aaron Campolo appeals from the denial by the

Licking County Court of Common Pleas of his Motion to Suppress. Plaintiff-appellee is

the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On February 28, 2014, the Licking County Grand Jury indicted appellant

on one count of aggravated possession of drugs (methamphetamine) in violation of R.C.

2925.11(A)(C)(1)(a), a felony of the fifth degree, one count of possession of drug abuse

instruments in violation of R.C. 2925.12(A), a misdemeanor of the second degree, and

one count of possession of marijuana in violation of R.C. 2925.11(A)(C)(3)(a), a minor

misdemeanor. At his arraignment on April 15, 2014 and entered a plea of not guilty to

the charges.

{¶3} On May 27, 2014, appellant filed a Motion to Suppress the evidence

seized from his person and his vehicle and statements made by appellant during a

traffic stop. Appellant argued that the officers did not have a permissible basis to stop

him and that even if they did, the pat-down of appellant’s person was illegal. A hearing

on such motion was held on June 25, 2014.

{¶4} At the hearing, Officer Ryan Peterson of the Heath Police Department

testified he was working on Friday, November 15, 2013 and responded to a complaint

about damage to a Cadillac on Creekview Drive. Creekview Drive is a cul-de-sac with

no outlet. According to the complaint, the driver’s side window had been broken. Officer

Peterson went to the address and spoke with David Freas and Kelsey Hess. Freas told

him that he had heard noises the night before and that he had seen appellant’s Jeep in

the area. Freas and appellant knew each other. Officer Peterson testified that a window Licking County, Case No.14-CA-104 3

in the Cadillac had been shot out. Kelsey Hess showed the officer her cell phone which

contained text messages that Hess said were from appellant. The following testimony

was adduced when Officer Peterson was asked about the messages:

{¶5} Q: If you could start, I think, at the bottom left (indiscernible due to officer

moving in chair making noise).

{¶6} A: I’m going to have to get out here a little bit. Bottom left says from

Camp [appellant]: “Bang bang the car is dead. Lol. Funny shit.” Sent from

textnow.com.

{¶7} Q: And the one above it?

{¶8} A: And the one above it, top line there is kind of cut off. Looks like it

might say, “wtf uy2” not real sure, but then it goes on, “with you I’m done but for the fun

of it, I’m fuckin dudes all the way up since I’m leaving – fuckin dude’s car all the way up

since I’m leaving.” Sorry.

{¶9} Q: And they indicated to you that was from Mr. Campolo’s cell phone?

{¶10} A: From Mr. Campolo somehow, because she [Hess] was saying that

the - - the textnow.com, she was explaining it’s like a free app, so that it came from

some type of smart device that Mr. Campolo would have had access to.

{¶11} Transcript of suppression hearing at 11-12.

{¶12} Officer Peterson testified that he believed that the crime of criminal

damaging, which is a misdemeanor of the second degree, had been committed. He

testified that he obtained a written statement from Freas and that Freas, in the

statement, described appellant’s Jeep as a green Jeep Wrangler. According to him,

Freas “told me that [appellant] started kind of driving toward the residence. He said he

saw [appellant] point a gun out the – would be the passenger side window of his Jeep.” Licking County, Case No.14-CA-104 4

Transcript of suppression hearing at 13-14. Freas indicated that he had heard shots

that he recognized as coming from a CO2 BB gun or pellet gun. Officer Peterson

testified that he did not seek an arrest warrant at that time because it was Friday. He

testified that he was going to try to find appellant over the weekend to hear his side of

the story and that if he did not, he was going to complete his report and send it to the

Law Director’s Office.

{¶13} On Sunday, November 17, 2013, Officer Peterson, who was working, had

an encounter with appellant. He was dispatched again to the same residence on

Creekview Drive after Hess’s mother called and said that she was the property owner or

renter, that appellant and another male were there, and that she did not want them

there. Upon arriving at the Creekview Drive address, the officer spoke with Hess who

said that appellant had already left the residence. Shortly thereafter, Officer Peterson

and Officer Fischer, who was in a separate cruiser, saw appellant on Creekview Drive in

his green Jeep Wrangler. Officer Fischer, who was familiar with appellant, initiated a

traffic stop. When asked, Officer Peterson testified that he did not observe any traffic

violations, but that the stop was based on “the criminal damaging complaint and the fact

that we’ve been asked to remove him from a home. He’s been known to be in

possession of some type of firearm, and he’s now going back to that home where we

were supposed to escort him from the home, and he had that firearm possibly with him.”

Transcript of suppression hearing at 24.

{¶14} After appellant was stopped, he was asked about the BB gun. Officer

Peterson testified that he asked for consent to search appellant’s vehicle for the gun

and that appellant would not consent to a search of the front of his vehicle. Appellant

then said that the officers could look in the back. Appellant and the two officers opened Licking County, Case No.14-CA-104 5

the back and looked. According to Officer Peterson, appellant ultimately stated that he

thought that the BB gun was at his parents’ house on Franklin Avenue. As a result, the

officer called appellant’s mother and asked her to look for the BB gun. She did not

know where the gun was.

{¶15} Officer Peterson asked appellant if he would be willing to go to his

mother’s house and show the officer where the gun was. Appellant agreed to go.

Because he believed that there might be a gun in appellant’s vehicle, the officer did not

feel that it was safe to allow appellant back into his own vehicle. The following is an

excerpt from Officer Peterson’s testimony:

{¶16} Q: So what’s the safest thing you can do at that point?

{¶17} A: Safest point is at that time was, you know, because I’m not going to

transport him up there unless he was willing to, but he sounded more willing to go if he

could drive his own Jeep up there to the residence, so I though well, I’ll let him drive his

Jeep back up there, and I’ll follow him up to his mother’s residence, but I was at least

going to check to make sure that it wasn’t on his persons, because I figured at least if

I’m following him, I could see if he was making any exaggerated movements, reaching

for something. I would know something’s wrong, but if at least I checked his persons, I

would know he didn’t have it right there before I let him into the Jeep before we go - -

{¶18} Transcript of suppression hearing at 28-29.

{¶19} Officer Peterson testified that he did not know that the gun was a pellet or

BB gun and that it could have been a low caliber firearm.

{¶20} The officers decided to pat appellant down first for weapons before letting

him drive his Jeep. Officer Peterson then began a pat down search of appellant for

weapons. He asked appellant if he had anything on him and appellant indicated that he Licking County, Case No.14-CA-104 6

had a needle in his pocket. Officer Peterson then removed the needle, which contained

a brown liquid, from appellant’s pocket. Appellant was then arrested for possession of

drug abuse instruments. A search of appellant’s car, which had been impounded,

yielded the gun, drug paraphernalia and drugs.

{¶21} At the conclusion of the suppression hearing, the trial court denied the

Motion to Suppress. The trial court’s decision was memorialized in a Judgment Entry

filed on June 25, 2014.

{¶22} On July 24, 2014, appellee added an unrelated felony four theft charge to

the indictment.

{¶23} On November 4, 2014, appellant withdrew his pleas of not guilty and

pleaded no contest to the original three counts and guilty to the theft offense. Pursuant

to a Judgment of Conviction and Sentence filed on the same day, appellant was placed

on community control for a period of five years. Appellant was sentenced to 209 days in

jail with credit for time served and his driver’s license was suspended for a period of

twelve months.

{¶24} Appellant now raises the following assignments of error on appeal:

{¶25} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

WHEN IT ADMITTED EVIDENCE FOUND IN APPELLANT’S CAR, EVIDENCE FOUND

ON APPELLANT’S PERSON, AND STATEMENTS MADE BY APPELLANT BECAUSE

THE OFFICERS’ INITIAL TRAFFIC STOP OF THE APPELLANT WAS ILLEGAL.

{¶26} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

WHEN IT ADMITTED EVIDENCE FOUND IN APPELLANT’S CAR, EVIDENCE

SEIZED BY (SIC) THE APPELLANT’S PERSON, AND STATEMENTS MADE BY THE Licking County, Case No.14-CA-104 7

APPELLANT BECAUSE THE EVIDENCE WAS THE FRUIT OF THE OFFICERS’

ILLEGAL PATDOWN.

I, II

{¶27} Appellant, in his two assignments of error, argues that the trial court erred

in denying his Motion to Suppress.

{¶28} Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,

713 N.E.2d 1 (4th Dist .1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030

(1996). A reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court

must independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State

v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other

grounds.

{¶29} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed Licking County, Case No.14-CA-104 8

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See, Williams,

supra. Finally, an appellant may argue the trial court has incorrectly decided the ultimate

or final issues raised in a motion to suppress. When reviewing this type of claim, an

appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given case.

State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).

{¶30} Appellant initially argues that the traffic stop in this case was illegal. The

Fourth Amendment to the United States Constitution prohibits warrantless searches and

seizures, rendering them per se unreasonable unless an exception applies. Katz v.

United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). An investigative

stop, or Terry stop, is a common exception to the Fourth Amendment warrant

requirement. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 889 (1968). Because

the “balance between the public interest and the individual's right to personal security”

tilts in favor of a standard less than probable cause in such cases, the Fourth

Amendment is satisfied if the officer's action is supported by reasonable suspicion to

believe that criminal activity “may be afoot.” United States v. BrignoniPonce, 422 U.S.

873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Sokolow, 490 U.S. 1,

7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In Terry, the Supreme Court held that a police

officer may stop an individual if the officer has a reasonable suspicion based upon

specific and articulable facts that criminal behavior has occurred or is imminent. See,

State v. Chatton, 11 Ohio St.3d 59, 61, 463 N.E.2d 1237 (1984).

{¶31} As noted by the court in State v. Grainreed, 1st Dist. No. C-000173, 2001

WL 903457, “[u]nder the investigative-stop exception to the warrant requirement, a Licking County, Case No.14-CA-104 9

police officer may, consistent with the state and federal constitutions, stop and briefly

detain a person without a warrant, if the officer has a reasonable suspicion, based upon

specific and articulable facts, that the suspect is wanted for past criminal conduct or is

currently engaged in, or will in the future be engaged in, criminal conduct. See United

States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 695, fn. 2; Terry v. Ohio

(1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880; accord State v.. Andrews (1991), 57 Ohio

St.3d 86, 87-88, 565 N.E.2d 1271, 1273, certiorari denied (1991), 501 U.S. 1220, 111

S.Ct. 2833.” Id at 2.

{¶32} The propriety of an investigative stop must be viewed in light of the totality

of the circumstances surrounding the stop “as viewed 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, 565 N.E.2d 1271 (1991); State v.

Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988).

{¶33} We find, based on the facts of this case, that the officers had reasonable,

articuable suspicion of a criminal violation to justify a Terry stop of appellant. As is

stated above, on November 15, 2013, Officer Peterson responded to a complaint that

the window of a vehicle on Creekview Drive had been broken. He found that the

window had been shot out. David Freas told the officer that he had seen appellant’s

green Jeep the night before in the area and that he had seen appellant point a “CO2 BB

gun or pellet gun” out the window and heard shots going off.” Transcript of suppression

hearing at 14. In text messages to Hess, appellant, as noted by the trial court, appeared

to be “threatening and menacing.” Transcript of suppression hearing at 84.

{¶34} On Sunday, November 17, 2013, the two officers were dispatched to the

same residence on Creekview Drive in response to a complaint that appellant and Licking County, Case No.14-CA-104 10

another man were on the property and Hess’ mother did not want them there. When

the officers arrived on the scene, appellant was not at the house. However, they

observed appellant’s Jeep on Creekview Drive, which is a cul-de-sac, and stopped

appellant in the vicinity of Hess’ residence.

{¶35} We concur with the trial court that “it is entirely appropriate based on what

they knew from both the 15th and the dispatch report from earlier on the 17th that

[appellant’s] not welcome there. They [the officers] have reasonable articuable

suspicion to stop him, to do an investigatory detention to find out why he’s there.”

Transcript of suppression hearing at 85. The officers were not certain at the time that

the gun used to shoot out the car windows was, in fact, a BB or pellet gun. As noted by

appellee, they found appellant, who had made threats in text messages, “in the exact

location he was the lone suspect in a crime that occurred two days earlier in the exact

same car.”

{¶36} Appellant also argues that the trial court erred in denying his Motion to

Suppress because the pat down search of appellant was illegal.

{¶37} Authority to conduct a pat down search does not flow automatically from a

lawful stop and a separate inquiry is required. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). The Fourth Amendment requires an officer to have a

“reasonable fear for his own or others' safety” before frisking. Id. Specifically, “[t]he

officer ... must be able to articulate something more than an ‘inchoate and

unparticularized suspicion or hunch.’ ” United States v. Sokolow, 490 U.S. 1, 7, 109

S.Ct. 1581, 104 L.Ed.2d 1 (1989), citing Terry, supra, 392 U.S. at 27, 88 S.Ct. 1868.

Whether that standard is met must be determined from the standpoint of an objectively

reasonable police officer, without reference to the actual motivations of the individual Licking County, Case No.14-CA-104 11

officers involved. United States v. Hill, 131 F.3d 1056, 1059 (D.C.Cir.1997), citing

Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

{¶38} The frisk, or protective search, approved in Terry is limited in scope to a

pat-down search for concealed weapons when the officer has a reasonable suspicion

that the individual whose behavior he is investigating at close range may be armed and

dangerous. Terry, supra, 392 U.S. at 27..

{¶39} In the case sub judice, the officers were concerned that appellant, who

was alleged to have shot out windows in a vehicle two days before, may be armed and

posed a threat to their safety. Appellant refused to give the officers consent to search

the front of his vehicle and told the officers that “if the gun was anywhere, it would be in

the back, and he said that we could look in the back,…” Transcript of suppression

hearing at 26. Officer Peterson testified that he was concerned that there was a gun in

the car because appellant “doesn’t want us up there for a reason, because that gun’s

within his reach.” Transcript of suppression hearing at 26. Appellant later changed his

story and said that he thought that the gun was at his parent’s house. Based on the

foregoing, the officer believed that the gun was in appellant’s vehicle and that it was not

safe to allow appellant back into his vehicle without patting him down. Based on the

foregoing, we find that the pat down search of appellant was not illegal.

{¶40} Accordingly, we find that the trial court did not err in denying appellant’s

Motion to Suppress. Appellant’s two assignments of error are, therefore, overruled. Licking County, Case No.14-CA-104 12

{¶41} Accordingly, the judgment of the Licking County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.