State v. Carson

2015 Ohio 4110

Opinion

[Cite as State v. Carson, 2015-Ohio-4110.]

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

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 26505 : v. : T.C. NO. 14CR369 : JEFFREY L. CARSON : (Criminal appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the ___2nd___ day of ____October____, 2015.

CHRISTINA E. MAHY, Atty, Reg. No. 0092671, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

CANDI RAMBO, Atty. Reg. No. 0076627, P. O. Box 66, Springboro, Ohio 45066 Attorney for Defendant-Appellant

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DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Jeffrey Lynn

Carson, filed December 8, 2014. On December 3, 2014, Carson was convicted, following

his no contest plea, of one count of carrying a concealed weapon (loaded/ready at hand),

in violation of R.C. 2923.12(A)(2), a felony of the fourth degree. He was sentenced to -2-

community control sanctions for a period not to exceed five years. Carson appeals from

the November 5, 2014 Decision of the trial court overruling his motion to suppress

evidence. We hereby affirm the judgment of the trial court.

{¶ 2} The record reflects that Carson was initially charged on January 29, 2014

by way of Complaint in Dayton Municipal Court, and he was subsequently indicted, on

February 25, 2014. After pleading not guilty, Carson filed his motion to suppress.

{¶ 3} At the September 3, 2014 hearing on Carson’s motion, Officer Gary Roesser

testified that he has been employed by the Dayton Police Department for nine months.

According to Roesser, on January 28, 2014, at approximately 7:52 p.m., he was in uniform

and on routine patrol with his partner, Officer Nathan Speelman, when he observed “a

black and red SUV with excessive window tint” turn right onto Cornell Drive from

Gettysburg Avenue. Roesser stated that Ohio law “requires 50 percent or less light to

travel through the window, and also the law states that you must be able to observe

occupants inside the vehicle.” Roesser stated that he was unable to see inside the SUV

and ascertain the number of occupants.

{¶ 4} Roesser stated that he “made a traffic stop as [the vehicle] turned left onto

East Cornell Woods” for a window tint violation. Roesser testified that it “was extremely

cold and the parking lot where I made the traffic stop was completely full of ice because

most of the apartment complexes are vacant,” and the parking areas are not shoveled.

Roesser stated that when he “caught back up to the vehicle, it was backing into a parking

spot,” and he activated the lights of the cruiser. Roesser stated that when the vehicle

was “backing in, we pulled straight in towards the side on the passenger’s side.”

According to Roesser, the “driver, later identified as Jeffrey Carson, exited the driver’s -3-

seat and began to walk away from the car.” Roesser testified that he “made contact with

the passenger, who was opening her door and she was trying to exit. Officer Speelman,

I heard him several times order Carson to stop and I could see Carson was looking around

and acting very suspicious.” Roesser stated that Carson did not initially comply with

Speelman’s order to stop, “and then he finally did comply.” According to Roesser,

Speelman grabbed Carson’s waistband about 15 to 20 feet from the SUV and brought

him back to the cruiser. Roesser testified that Speelman ordered Carson to put his

hands on the cruiser.

{¶ 5} Roesser stated that he obtained identification from the passenger, and

“based on the suspicious circumstances that I saw, I went over to assist Officer

Speelman.” At that time, “Carson had his hands on the car and Officer Speelman just

started his pat down. He started on the right side of his body,” according to Roesser.

Roesser stated that upon feeling “a large wad,” Speelman asked Carson about the

contents of his pocket, and “Carson stated that it was six to $700” for his rent. As

Speelman continued the pat down, Roesser stated that he observed Speelman lift

Carson’s coat and “immediately observed a firearm with no holster tucked into his

waistband, the right side, on [Carson’s] hip.” Roesser stated that Speelman retrieved the

weapon, and “I immediately grabbed a hold of Carson and Speelman secured the gun in

his pocket.” Roesser testified that the gun was loaded, and that “Carson started to tense

up when we told him to put his hands behind his back.” Carson then “locked his arms

out and I told him that if he didn’t put his hands behind his back that he would be tased,

and then he complied and put his hands behind his back,” according to Roesser.

Roesser testified that Carson was placed in the cruiser in handcuffs, and that Speelman -4-

advised him of his rights, after asking him if he had a permit for the weapon. Carson

asked for a lawyer, according to Roesser. Roesser stated that he did not ask Carson

any questions. Roesser testified that the SUV was towed from the scene. He stated that

after opening the door of the vehicle, he observed that there was a third passenger in the

backseat “as well. I couldn’t see him because of the excessive window tint.”

{¶ 6} On cross-examination, Roesser clarified his testimony that the law regarding

window tint requires more than 50 percent light penetration on the side windows of a

vehicle. Roesser drew a map of the area where Carson was initially observed, and he

testified that at the time, Carson was heading north on Gettysburg and the officers were

heading south. Roesser stated that he observed the SUV for five or six seconds before

the vehicle turned right onto Cornell Drive. Roesser testified that Cornell Woods East is

a street with parking spaces that are perpendicular to the curb. He stated that he pulled

up “like a T” to Carson’s vehicle on the passenger side. Roesser stated that he “initiated

my lights as [Carson] was still backing up” into a parking space. Roesser stated that

when he exited the SUV, Carson headed east away from it. Aside from the window tint

violation, Roesser testified that Carson “didn’t make any other traffic violations” or commit

any criminal activity. Roesser stated that Carson was wearing a long coat. According

to Roesser, Speelman grabbed hold of Carson’s coat, along with the waistband of his

pants. Roesser stated that he did not observe anything in Carson’s hands. Roesser

stated that there were street lights at the intersection of Cornell Drive and North

Gettysburg Avenue, and in the area where Carson parked his vehicle.

{¶ 7} On re-direct examination, Roesser testified that Carson was acting in an

unusual manner in that he “immediately exited the vehicle once we initiated our overhead -5-

lights and after he did that, I heard Officer Speelman ask him to stop and he did and I

looked over and * * * Carson was looking around as in looking maybe for somewhere to

flee to.” Roesser stated that he has made arrests in the apartment complex before, and

that “90 percent of [the apartments] are vacant.” He stated that some of them are

“boarded up; some have boards that are down.” When asked if the specific apartments

in the area where Carson was stopped were boarded up, Roesser replied, “I believe those

were boarded up.” On recross-examination, Roesser stated that the SUV was towed

because the driver was arrested, and that there was no contraband in the vehicle.

{¶ 8} At the conclusion of Roesser’s testimony, the hearing was continued until

October 31, 2014. On that date, Officer Nathan Speelman testified that he has been

employed with the Dayton Police Department for almost nine years. Speelman stated

that he observed Carson’s SUV when “it was going to make a left-hand turn to travel east

on Cornell off of North Gettysburg.” According to Speelman, “as Mr. Carson made his left

turn, both Officer Roesser and I noticed excessive window tint on the vehicle.” Speelman

stated that the “law requires that the officers can identify the occupants inside the motor

vehicle,” and that he could not see inside the SUV. Speelman stated that the area was

well-lit by streetlights. Speelman’s testimony was consistent with Roesser’s regarding

the character of the apartment complex, and he testified, “We’ve had shootings and drug

transactions there in the past. * * * 95 percent of the apartments in the complete

apartment buildings are actually boarded up, so we have very little traffic that goes

through there these days.”

{¶ 9} According to Speelman, Roesser parked the cruiser in “a north and south

direction,” and the SUV was parked in “an east and west direction.” Speelman stated -6-

that after backing into a parking space, Carson and a female passenger exited the vehicle,

and that he approached the driver while Roesser ordered the female back into the vehicle.

Speelman stated that Carson began walking towards Gettysburg Avenue, and that

Speelman “asked him to come towards me or to stop or to come here.” Carson at “some

point * * * stated that he had done nothing wrong and he had parked his * * * vehicle - -

so he was somewhat argumentative.” Speelman testified as follows when asked about

Carson’s conduct:

To me, it appeared that he was just kind of scanning or looking

around. My interpretation was it looked like he wanted to run. The

weather conditions were extremely deplorable that day. I think the whole

apartment complex was covered in ice. It was one of the days that it was

very frigid, close to zero degrees or it might have even been negative

degrees at that point.

{¶ 10} Speelman stated that Carson repeatedly “declared his innocence, saying

he did nothing wrong. At that point, we were closer and I asked him if he had any

weapons on him that would hurt or kill me, and at that point he just asked whether or not

he could just get back in his vehicle.” Speelman stated that he again asked Carson about

weapons, and Carson again asked to get back into the SUV. Speelman stated that at

“that point, I grabbed onto him and I asked him to place his hands on top of the car.

Again, I asked him if he had anything on him that would hurt or kill me and at which point

he said he wanted to call his lawyer.” Speelman stated that he had Carson “lace (sic)

his hands on top of the hood, which would have been on the left front driver’s side of the

hood and began my pat down. I started on the right side. Upon touching his right front -7-

pocket, he immediately dropped his right hand. I felt a large amount of what turned out

to be U.S. currency.” Speelman stated that he asked Carson about the contents of his

pocket and that Carson told him he had “between 700 and $800 and that it was rent

money.” While continuing the pat down, Speelman testified that he “felt a hard metal

object on the right side of [Carson’s] hip. Again the temperatures were very frigid. I felt

a hard object on the outside of his clothing so ultimately, I went underneath his jacket to

remove the firearm from his person.” Speelman stated that he immediately recognized

the object as a firearm, based on his training and experience, and that he has made

multiple arrests for firearms in the past. Speelman stated that Carson was wearing a

heavy Carhartt-style jacket, and that they were standing on a sheet of ice.

{¶ 11} Speelman testified as follows regarding Carson’s conduct in the course of

the pat down:

I mean he was kind of tensing up. Again, I was just trying to control

him and the firearm at the same time. I didn’t want to lose my balance; I

didn’t want him to lose his balance. More importantly, I didn’t want the gun

to come into play, so again, I had him held behind his back - - or, you know,

the belt - - I don’t know if he had a belt, but the center of his back where his

jeans or his pants would have been, and then I had the firearm in my right

hand and I was holding it back like this, and ultimately, officer Roesser was

there and came around and was eventually able to secure it.

{¶ 12} Speelman stated that the officers then placed Carson in the back of their

cruiser, and that Speelman advised him of his rights by means of a card provided by the

Montgomery County Prosecutor’s Office. He testified that after doing so, Carson “did not -8-

indicate that he wanted a lawyer, and then the only pertinent question that I asked him

referenced (sic) this incident was whether or not he had a CCW permit. Mr. Carson

responded by saying no.” Speelman stated that the other passengers were removed

and the vehicle, which was registered to Carson’s “sister or his girlfriend,” was towed due

to Carson’s arrest.

{¶ 13} Speelman identified State’s Exhibit 21 as “a DVR, it’s marked cruiser video

and it has the case number reference this case and it also has my initials dated 8/11 of

2014.” He stated that the activation of the cruiser’s lights initiates the video camera

recording. Speelman stated that the cruiser camera constantly operates, but it does not

record footage until, in this case, the lights of the cruiser are activated. He stated that

the device then captures a visual recording of the previous 60 seconds prior to the

activation of the lights. He stated that once the lights are activated, audio is also

recorded.

{¶ 14} Speelman stated that he has watched the video, and that it is a fair and

accurate representation of the officers’ encounter with Carson. When asked how the

video is downloaded from the cruiser camera, Speelman stated that the video “is stored

internally inside the cruiser until we return to one of the districts and then at that point,

then it’s downloaded off the car to the district headquarters, and then eventually it goes

to the main central server, which * * * is housed at the Safety Building.” He stated that the

videos are recorded in the ordinary course of business.

{¶ 15} On cross-examination, Speelman testified that he and Roesser were parked

behind the SUV at a light before it turned left, and that he “couldn’t see through the rear

window.” He acknowledged that the window tint statute does not apply to rear windows. -9-

Speelman testified that Roesser parked the cruiser perpendicular to the passenger door

of the SUV. Speelman stated that he conducted the pat down of Carson at the SUV.

Speelman stated that Carson had a valid driver’s license, and that there was nothing

irregular about the SUV beyond the excessive window tint. Speelman stated that he

tested the window tint on the SUV, and that Carson thereafter received a ticket for the

violation. Regarding the weapon, Speelman testified that it was not holstered when he

discovered it but was tucked into the waistband of Carson’s pants.

{¶ 16} On redirect examination, Speelman stated that as the SUV turned left, he

was able to see window tint on the side windows of the vehicle, and that he could not see

the occupants inside. When asked about holding onto Carson at the SUV, Speelman

testified as follows:

I mean, that’s ultimately where I decided to do the pat down. I

mean, his - - demeanor, his actions just, the totality of the circumstances

just - - I just wanted to control his behavior. From past experiences, the

best place to control a subject is to hold on by their belt or the back of their

pants because I’ve had people slip out of coats and sweat shirts and just

any type of upper garment by holding onto their back, so it’s a lot easier to

control their movements by holding onto them in the lower back of their

jeans or whatever type of pants or shorts they might be wearing.

{¶ 17} Speelman further testified that Carson “just kind of kept looking around like

he wanted to run. You know, when I asked him a question, it was I didn’t do anything

wrong. When I asked him about all the weapons, I want to get back in my car. When I

asked him about weapons again, I want to get back in my car. Then, it’s I want to talk to -10-

my lawyer. Those are just uncharacteristic responses to those questions.” Speelman

stated that he was concerned for his safety based upon Carson’s demeanor, “the way

that he answered the questions, the way that he at first wanted to separate himself from

the vehicle and * * * then he wanted to get back into the vehicle, so I felt that there was

something more than what he was leading on to be (sic).”

{¶ 18} At the conclusion of Speelman’s testimony, the court indicated that it

intended to review the video and set the matter for a hearing on November 4, 2014. On

that date, the court indicated that it viewed the video and then heard brief arguments from

counsel for the State and for Carson. The court overruled the motion to suppress from

the bench as follows:

* * * It’s important to point out that the Defendant, while you can see

him at the beginning of the video walk to the front of the car, he’s on the

opposite side of * * * this SUV from where the officers are and where the

camera is pointing and so the encounter between him and Officer

Speelman, you can’t really see. I have no reason to disbelieve Officer

Speelman’s account of what occurred on that side of the vehicle.

I’m going to make the following findings of fact and conclusions of

law.

On January 28th, 2014 at approximately 7:52 p.m., officers Gary

Roesser and Nathan Speelman of the Dayton Police Department were on

patrol in a marked cruiser. They were together, both wearing the uniform

of the day. You can see that in the video.

It was clearly, both officers testified, very cold. You can see in the -11-

video, it’s very icy, very snow covered. They observed a vehicle in the area

of North Gettysburg near Cornell, a black and red Suburban SUV with what

the officers believed to be excessive window tint, more than 50 percent tint.

They both understood that you must be able to see the occupants of

the vehicle. They couldn’t tell the number of occupants of the vehicle. They

saw the vehicle off Gettysburg as it turned onto Cornell and both officers

indicated that they could not see into the passenger compartment from the,

I guess I’ll call them the passenger windows, the front and the passenger

windows.

They observed the vehicle pull into a parking lot in an apartment

complex that is largely abandoned and boarded over, according to the

officers’ testimony. That vehicle, and it can be seen from the video, it

actually pulls forward in the parking space and then backs up a bit. Which

is about the same time that the officers turn their lights on and the Defendant

can be seen, the person later identified as the Defendant gets out of the

vehicle, he walks away from the vehicle towards - - from the front of the

vehicle and the officers approach, ask he and a female passenger to get

back into the vehicle.

First of all, Officer Roesser’s been with the police department for nine

months; he was with his partner Officer Speelman. Officer Speelman

approached the Defendant on the driver’s side. Officer Roesser appointed

(sic) the female passenger on the passenger side.

Officer Speelman testified that that apartment complex is 95 percent -12-

vacant and boarded up. He has made arrests in that area and in that large

apartment complex known as Cornell Woods for shootings and drug activity.

Again, his encounter with the Defendant cannot be seen, most of it,

on the driver’s side of the vehicle, and quite frankly, not much of it can be

heard. You can hear Officer Roesser much better.

Officer Speelman testified that he asked the Defendant to come

toward him. You can hear the Defendant say, “I want to talk to my lawyer,”

and being argumentative. Officer Speelman testified that the Defendant’s

actions, he was scanning the area, he appeared to Officer Speelman to be

preparing to run.

Officer Speelman then made that decision based on his concern for

the area he was in, the activity the Defendant was engaged in, that is, he

had walked away, he was argumentative, he wouldn’t come back and he

appeared to be scanning the area, attempting to run. Officer Speelman did

ask him if he had any weapons on him and the Defendant kept saying, “Can

I just get back in the car?”

This caused Officer Speelman to be very concerned. Again, he had

to tell the Defendant several times to stop and to come back towards him.

The Defendant did not comply. Officer Speelman then made the decision

to pat the Defendant down, as is his practice. He holds each person he’s

patting down by the waistband.

He did have to bring the Defendant back to the vehicle in order to pat

him down because the Defendant was walking away. The Defendant put -13-

his hands on the vehicle. Officer Speelman began patting him down. He

felt a large wad of money in the Defendant’s pocket. You could hear

Officer Speelman ask him about the money and the Defendant says it’s for

his rent.

He continued his pat down and Officer Speelman felt, and I’m going

to use his words, which is, “It was a hard metal object,” that he immediately

recognized as a firearm. He particularly felt that - - he said it was very cold

and given the weather and based upon his training and experience, he

immediately recognized it as a firearm.

The Defendant was placed in a cruiser. He was Mirandized. It’s

my understanding, Mr. Hodge, there was no question, because the

Defendant really made no statements.

MR HODGE: Correct.

***

THE COURT: * * * And while the Defendant was questioned, the Court’s

going to find, first of all, * * * and there was no Miranda before he was patted

down, that he didn’t make any statements, that the officer patted down and

that’s when he found the contraband.

The Defendant also, at that point in time, then tensed up. He locked

his arms. You could hear him being told that he would be tased. He

challenged the officers in attempting to place him into handcuffs. The

vehicle was eventually towed.

They discovered a third occupant in the vehicle after the Defendant -14-

was arrested that they couldn’t even see because of the window tint.

The officers eventually did give the Defendant a ticket for the window

tint. * * *

Again, I want to make this clear. It’s part of my findings of fact that

the Defendant was walking away from the vehicle and the lights of the

cruiser, the overhead lights were already on, they were activated because

you could hear the officers talking. The officers both testified that before

the overhead lights are on, you will not hear audio on the recording and you

could clearly hear it.

No additional contraband was found in the vehicle.

Officer Speelman testified that he was concerned for his safety

because of the Defendant’s behavior in walking away. He continued to

look around and he was evasive and it appeared to the officer that - - he

kept saying that he wanted to get back in the vehicle.

First of all, the Court is going to find that the stop of the Defendant’s

vehicle was authorized. The officers had observed the Defendant commit

a violation of the law, that was a tint violation, and he was later given a ticket

for that.

In addition the U.S. Supreme Court has indicated that unprovoked

flight can arouse reasonable suspicion. While the Defendant didn’t engage

in flight, his walking away from the vehicle and officer Speelman’s officer

observation (sic) of what he believed was the Defendant scanning the area

to flee is a factor for the court to consider in determining whether the officer -15-

was authorized to pat the Defendant down.

{¶ 19} After citing Terry v. Ohio, the court continued at follows:

The Court is going to find, first of all, that based upon the totality of

the circumstances, that a reasonably prudent person in the position of

Officer Speelman would be warranted in his belief that his safety or that of

others was in danger, specifically, the officers had simply attempted to stop

the vehicle for a ticket.

After the lights of the cruiser were on, the Defendant walked away

from that vehicle. The Officer asked him to step back into the vehicle. He

behaved in a manner that led the officer to believe that he was going to flee.

In addition, the officers had made arrests there for violent offenses,

gun offenses, drug offenses, that that (sic) apartment complex is, according

to the officer, 95 percent abandoned and boarded up and it appeared to be

a high-crime area. Based upon those factors, the Court finds that the

officer had - - that a reasonably prudent person in those circumstances was

warranted in the belief that his safety or that of others was in danger.

Further, the Court will find that the officer’s pat down was lawful. A

lawful pat down for weapons pursuant to Terry. The officer advised that

the nature of the weapon was immediately apparent to him through his

touch. There’s no evidence that he manipulated the weapon in any

manner.

And as a result, the Court will find there’s no violation of the

Defendant’s Fourth Amendment rights and his motion to suppress will be -16-

overruled.

{¶ 20} Carson asserts one assignment of error herein as follows:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

MOTION TO SUPPRESS.

{¶ 21} Carson asserts as follows:

* * * Appellant could argue that the Officers did not have [a] valid

reason to initiate a traffic stop in the first place. The Suppression Hearing

transcript exposed inconsistencies in the two Officers’ stories of who and

when the excessive tint was discovered. (sic) In the end, evidence was

presented to the Trial Court of an actual violation for excessive tint on [the]

driver’s side window that resulted in a citation. Therefore, the Officers’

inconsistent testimony to the facts goes to their credibility more so than

evidence of an unlawful stop. Now, we must look at the frisk “pat down” of

Appellant. The State’s burden of reasonable suspicion that the Appellant

was armed to justify a frisk of the Appellant was not proven at the

suppression hearing.

In the case at bar, as justification for conducting a frisk of the

Appellant, Officer Speelman mentioned four reasons: 1) the fact that

Appellant began to walk away from police when there has not been any

evidence presented that proved Appellant was aware that the officers had

initiated their overhead lights, 2) Appellant was looking around and being

argumentative, 3) Arrest[s] had been made in the area in the past, and 4) -17-

Appellant’s overall demeanor. These facts do not give rise to [the] State’s

burden of proof of reasonable articulable suspicion.

The Appellant in the case at bar informed the Officer that he was

visiting his sister that lived in the apartment complex. The Officer did not

witness any possible drug transaction, or signs of drug activity by the

Appellant. The Appellant did not flee, or try to avoid the Officer in anyway.

A test should’ve been administered on the vehicle’s window and a citation

for traffic violation should’ve been issued. No evidence was presented

before the Trial Court to warrant the fishing expedition that the Officer

conducted on his observation “I felt that there was something more than

what he was leading on to be.”

In other words, it was the state’s burden to show that [the] Officer

had a reasonable articulable suspicion that his safety was in danger to

warrant a Terry stop frisk of Appellant. The state failed to meet its burden

in that respect. Appellant’s seizure by Officer Speelman was conducted

without a reasonable articulable suspicion of any criminal activity.

Carson directs our attention to State v. Hawkins, 2d Dist. Montgomery No. 25712, 2013-

Ohio-5458.

{¶ 22} The State responds as follows:

Where Carson was stopped in a high crime area, walked away

despite the police cruiser’s lights being activated, ignored numerous orders

to return to the vehicle, became argumentative and refused to answer the -18-

officer’s question as to whether or not he was armed, the police had

reasonable suspicion to conduct a Terry frisk of Carson.

{¶ 23} As this Court has previously noted:

In regard to a motion to suppress, “ ‘the trial court assumes the role

of trier of facts and is in the best position to resolve questions of fact and

evaluate the credibility of witnesses.’ ” State v. Hopfer (1996), 112 Ohio

App.3d 521, 548, 679 N.E.2d 321, quoting State v. Venham (1994), 96 Ohio

App.3d 649, 653, 645 N.E.2d 831. The court of appeals must accept the

trial court's findings of fact if they are supported by competent, credible

evidence in the record. State v. Isaac, Montgomery App. No. 20662, 2005-

Ohio-3733, citing State v. Retherford (1994), 93 Ohio App.3d 586, 639

N.E.2d 498. Accepting those facts as true, the appellate court must then

determine, as a matter of law and without deference to the trial court's legal

conclusion, whether the applicable legal standard is satisfied. Id.

State v. Wilburn, 188 Ohio App. 3d 384, 2010-Ohio-3536, 935 N.E.2d 509, ¶ 11 (2d Dist.).

{¶ 24} The Fourth Amendment to the United States Constitution guarantees “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures[.]” As this Court has previously noted:

A seizure “implicates the Fourth Amendment protections and

requires legal justification.” State v. Belcher, 2d Dist. Montgomery No.

24385, 2011–Ohio–5015, ¶ 21, citing [United States v. Mendenhall, 446

U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)]; State v. Gonsior, 117

Ohio App.3d 481, 690 N.E.2d 1293 (2d Dist.1996). Under the Fourth -19-

Amendment, a warrant based on probable cause is required to effectuate a

lawful search and seizure unless one of the recognized exceptions applies.

State v. Holloway, 2d Dist. Clark No. 04CA0070, 2006–Ohio–4797, ¶ 15–

16, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967). “One of those exceptions is the rule regarding investigative stops,

announced in Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d

889, which provides that a police officer may stop an individual to

investigate unusual behavior, even absent a prior judicial warrant or

probable cause to arrest, where the officer has a reasonable, articulable

suspicion that specific criminal activity may be afoot.” Gonsior at 486.

State v. Engle, 2d Dist. Montgomery No. 25226, 2013-Ohio-1818, ¶ 16.

{¶ 25} As this Court has further noted:

“Authority to conduct a patdown search for weapons does not

automatically flow from a lawful stop[.]” State v. Stewart, 2d Dist.

Montgomery No. 19961, 2004–Ohio–1319, ¶ 16. When a lawful stop is

made, an officer may conduct a limited search for weapons if the officer

reasonably believes the suspect may be armed. State v. Evans, 67 Ohio

St.3d 405, 408, 618 N.E.2d 162 (1993). To justify a pat-down search, an

officer must point to specific, articulable facts that create a “reasonable

individualized suspicion that the suspect is armed and dangerous[.]” State

v. Roberts, 2d Dist. Montgomery No. 23219, 2010–Ohio–300, ¶ 18. A

suspect's location in a high crime area alone will not justify a weapons frisk.

Id. -20-

“The officer need not be absolutely certain that the individual is

armed; the issue is whether a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of others was in

danger.” Terry at 27. The totality of the circumstances must “be 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) (Citations omitted.)

State v. Montague, 2d Dist. Montgomery No. 25168, 2013-Ohio-811, ¶13-14.

{¶ 26} We note that the trial court found Speelman’s testimony to be credible, and

we defer to the trial court’s credibility assessment. As this Court has previously noted, a

“police officer who, based upon his observations and experience, has a reasonable,

articulable suspicion that the windows on a motor vehicle are excessively tinted, may stop

the vehicle for purposes of issuing a citation for excessive window tinting. * * *.” State v.

Mackey, 2d Dist. Montgomery No. 22244, 2008-Ohio-3621, ¶11. Both officers observed

excessive window tint on the SUV, Carson was initially stopped and ultimately ticketed

for a window tint violation, and we agree with the trial court that the stop was lawful.

{¶ 27} We have viewed the cruiser camera video, which the trial court accurately

described. The video depicts Carson emerging from his vehicle and walking away after

the officers activated the lights of their cruiser. This Court has concluded that “the

activation of overhead flashing lights by police officers in a marked cruiser is a universally

recognized signal that a motorist being followed by a police cruiser must pull over and

stop, because the officer wants to talk to the motorist, or that a motorist in a stationary

vehicle in the immediate vicinity of the cruiser should not leave the area, but wait, because -21-

the police officer wants to talk to the motorist.” State v. Little, 2d Dist. Clark No. 09-CA-

122, 2010-Ohio-2923, ¶9. This Court has further held that “it is permissible for a police

officer to ask someone stopped for a traffic violation if he is armed, even absent a

reasonable suspicion that the person is armed and presents a danger to the officer or

others. * * *.” State v. Brown, 2d Dist. Montgomery No. 25204, 2012-Ohio-5532, ¶ 11.

“Although any search for weapons must be based on reasonable, articulable suspicion

that a weapon is present, ‘a simple inquiry as to whether the person stopped has a

weapon is not a search or a seizure.’ * * *.” Id.

{¶ 28} Speelman testified that he repeatedly asked Carson if he was armed and

that Carson did not answer his questions. Further, Carson was argumentative, and his

conduct in scanning the area suggested to Speelman, an experienced officer, that Carson

was about to flee. The area of the stop is largely abandoned, and Speelman was aware

of past arrests there for drug activity and violent offenses involving weapons. Speelman

specifically testified that he was concerned for his safety and that of Roesser, and we

conclude that, based upon the totality of the circumstances described above, a

reasonably prudent officer would be warranted in the belief that his safety or that of others

was in danger. Finally, we find that Carson’s reliance upon Hawkins is misplaced.

Therein, this Court reversed the judgment of the trial court overruling Hawkins’ motion to

suppress, finding that the detention of Hawkins, who was merely walking with another

man in an area experiencing high drug activity, but doing nothing otherwise suspicious,

was unlawful, and that the subsequent pat down of Hawkins was not supported by

reasonable suspicion that he was armed. Unlike Hawkins, Carson was lawfully stopped

for a window tint violation, and his subsequent conduct supported a reasonable suspicion -22-

that he was armed. There being no merit to Carson’s assigned error, it is overruled.

The judgment of the trial court is affirmed.

..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Christina E. Mahy Candi Rambo Hon. Mary Katherine Huffman