State v. Fisk

2021 Ohio 2989

Opinion

[Cite as State v. Fisk, 2021-Ohio-2989.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-11-016

: OPINION - vs - 8/30/2021 :

STEVEN M. FISK, :

Appellant. :

CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 20CR13208

Martin P. Votel, Preble County Prosecuting Attorney, and Gractia S. Manning, Assistant Prosecuting Attorney, for appellee.

Hubler and Woolum Law Co., LPA, and Bridget N. Woolum, for appellant.

BYRNE, J.

{¶1} Steven M. Fisk appeals from a decision of the Preble County Court of

Common Pleas, which denied his motion to suppress evidence following a traffic stop and

pat down search by a police officer. For the reasons described below, we find that the stop

and search were lawful and affirm the trial court's decision.

Factual and Procedural Background Preble CA2020-11-016

{¶2} In December 2019, a Preble County sheriff's deputy detained Fisk for a traffic

violation while Fisk was operating a bicycle. During that stop, the deputy searched Fisk for

weapons and felt objects in Fisk's pocket that he believed were a syringe and a tube-shaped

container for carrying drugs. He asked Fisk to produce the objects. Fisk refused, ran away,

and was quickly captured. Law enforcement recovered a tube-shaped container containing

methamphetamine where Fisk had fled.

{¶3} In January 2020, a Preble County grand jury indicted Fisk on one count of

aggravated possession of drugs, one count of obstructing official business, and one count

of possession of drug paraphernalia.

{¶4} Fisk subsequently moved to suppress, arguing that the sheriff's deputy did not

have lawful cause to stop and detain him or search him for weapons. The trial court held a

suppression hearing at which the only witness to testify was the sheriff's deputy. The state

also introduced dash camera video, in which most of the stop was recorded visually or

audibly.1

Deputy Laycox's Testimony at the Suppression Hearing

{¶5} Preble County Sheriff's Deputy David Laycox testified to the following at the

suppression hearing.

{¶6} On December 28, 2019, Deputy Laycox was sitting in his cruiser in a parking

lot off U.S. Route 35 in West Alexandria. It was 7:35 p.m. and dark. He observed an

individual – Fisk – riding a bicycle on Route 35. He noted that the bicycle did not have rear

reflectors or a red lamp light but did have a blue light on wheel spokes. He drove behind

the bicycle, illuminated his flashing lights, and initiated a traffic stop.

1. The deputy's initial interactions with Fisk, including the pat down search, were not video-recorded, as Fisk positioned himself on the passenger side of the cruiser and out of the vantage point of the dash camera. However, audio of the complete conversation was recorded on the deputy's body microphone.

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{¶7} When Deputy Laycox was behind the bicycle and had activated his lights, he

believed, mistakenly, that Fisk was someone else who he had been looking for and who

had an active warrant.

{¶8} At the beginning of the stop, Fisk acknowledged to Deputy Laycox that he

was aware that the battery on his bicycle light was out. He explained that he hoped that

the blue light would be sufficient.

{¶9} Deputy Laycox asked Fisk for his I.D. Fisk produced an identification card.

At this time, Deputy Laycox realized he had been wrong about his assumption as to Fisk's

identity. He called Fisk's information into dispatch.

{¶10} Deputy Laycox indicated that he was familiar with the Fisk family and had

previously encountered Fisk's brother and found him to be carrying a B.B. gun, which gave

him concern that Fisk may be carrying a weapon. He also noted what appeared to be a

metal bat in a bag hanging from Fisk's bicycle handles. While waiting for dispatch to

respond, he asked Fisk whether he could search him for weapons. Fisk responded, "Sure."

{¶11} Deputy Laycox searched Fisk and felt a tube and a syringe in Fisk's right

pocket. Deputy Laycox believed, based upon his personal experience, that the tube would

contain narcotics as it was of a type generally used to carry contraband.

{¶12} Meanwhile, dispatch responded and indicated that Fisk had a warrant.

Deputy Laycox informed Fisk that he had a warrant and began to handcuff him. However,

dispatch quickly advised that there had been a mistake, and that Fisk did not have a

warrant. Deputy Laycox released Fisk and put away his handcuffs.

{¶13} Deputy Laycox then began to explain to Fisk that he believed he had felt

contraband in his pocket. He explained that the "plain feel" doctrine gave him the right to

demand to inspect those objects and indicated that Fisk could either remove the objects

from his pocket himself or that Deputy Laycox would remove the objects for him.

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{¶14} At that point, Fisk began backing away from Deputy Laycox and another

police officer who had arrived on scene. Fisk indicated that he was not going to remove

anything from his pocket, that he did not have to, and that Deputy Laycox needed a search

warrant. Deputy Laycox ordered Fisk to stop walking away, but Fisk ignored the command

and continued backing away.

{¶15} Seconds later, Fisk turned and ran into a cornfield. Deputy Laycox and the

other officer pursued and quickly caught Fisk by tackling him. The officers and Fisk briefly

wrestled until they were able to restrain him.

{¶16} The officers led Fisk back to Deputy Laycox's cruiser. Upon searching Fisk,

the items that Deputy Laycox had felt in Fisk's pockets were missing. Law enforcement

searched the area. No syringe was ever located. However, a tube-shaped container

containing a crystal-like substance was recovered in the area where Deputy Laycox tackled

Fisk. The substance was tested and was identified as methamphetamine.

The Trial Court Decision

{¶17} The trial court denied Fisk's motion to suppress. The court found the absence

of a red reflector and red light on the rear of Fisk's bike constituted a traffic infraction and a

lawful reason to stop Fisk. The court next found that Deputy Laycox did not have a sufficient

basis to believe that Fisk was armed and dangerous and therefore did not have the right to

conduct a warrantless pat down search for weapons. However, the court found that the

search was lawful because Deputy Laycox asked Fisk for consent to search, and Fisk gave

consent. Finally, the court found, based on the "plain feel" doctrine, that Deputy Laycox

had probable cause to believe that the objects found in Fisk's pants pocket were contraband

and that he could lawfully seize those objects without a warrant.

{¶18} Following the decision on the motion to suppress, Fisk pled no contest to

possession of drugs and obstructing official business and the court found Fisk guilty of those

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charges. The state dismissed the paraphernalia charge. Fisk appeals, raising one

assignment of error:

{¶19} THE TRIAL COURT ERRED IN DENYING THE APPELLANT-

DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

{¶20} Fisk argues that Deputy Laycox lacked a lawful cause to stop him because

he did not have a reasonable, articulable suspicion that Fisk was involved in any criminal

activity. Fisk further argues that the pat down search was unlawful because Deputy Laycox

lacked any reasonable basis to believe that he was armed and dangerous.

{¶21} Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. An

appellate court must defer to the trial court's factual findings if they are supported by

competent, credible evidence. State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201,

¶ 14. However, an appellate court independently determines, without deference to the trial

court's decision, whether the facts satisfy the applicable legal standard. State v. Cummins,

12th Dist. Clermont No. CA2018-07-051, 2019-Ohio-1496, ¶ 22.

{¶22} The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

{¶23} The language of Article I, Section 14 of the Ohio Constitution is virtually

identical to the language of the Fourth Amendment. Due to their virtually identical language,

the Ohio Supreme Court found that "we should harmonize our interpretation of Section 14,

Article I of the Ohio Constitution with the Fourth Amendment, unless there are persuasive

reasons to find otherwise." State v. Robinette, 80 Ohio St.3d 234, 239 (1997). On rare

occasions the protections recognized by Article I, Section 14 of the Ohio Constitution have

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been found to be greater than the protections recognized by the Fourth Amendment. See

State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, ¶ 7 (holding that "Section 14, Article I

of the Ohio Constitution provides greater protection than the Fourth Amendment to the

United States Constitution against warrantless arrests for minor misdemeanors"). While

Fisk brings his assignment of error under both the Fourth Amendment and Article I, Section

14 of the Ohio Constitution, he offers no argument as to why we should conclude that the

analysis in this case should differ under these two constitutional provisions. Because Fisk

has not offered any "persuasive reasons" to find that Article I, Section 14 of the Ohio

Constitution and the Fourth Amendment differ with respect to his claims, we will analyze

the two together.

The Traffic Stop

{¶24} "A traffic stop initiated by a law enforcement officer implicates the Fourth

Amendment and must comply with the Fourth Amendment's general reasonableness

requirement." State v. Willis, 12th Dist. Butler No. CA2012-08-155, 2013-Ohio-2391, ¶ 18,

citing Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769 (1996). One type of lawful

traffic stop is an investigatory stop, also known as a Terry stop, which requires the law

enforcement officer to possess a reasonable suspicion based on specific and articulable

facts that criminal behavior has occurred or is imminent. State v. Moeller, 12th Dist. Butler

No. CA99-07-128, 2000 WL 1577287, *2 (Oct. 23, 2000); Terry v. Ohio, 392 U.S. 1, 21, 88

S.Ct. 1868 (1968). Another type of permissible traffic stop is where a police officer has

probable cause to stop a vehicle because the officer observed a traffic violation. State v.

Bullock, 12th Dist. Clinton No. CA2016-07-018, 2017-Ohio-497, ¶ 6.

{¶25} Even a de minimis traffic violation provides probable cause for a traffic stop.

Willis at ¶ 19, citing State v. Williams, 12th Dist. Clinton No. CA2009-08-014, 2010-Ohio-

1523, ¶ 13. The Ohio Supreme Court has explained that where an officer has probable

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cause to stop a motorist for any criminal violation, including a minor traffic violation, "the

stop is not unreasonable under the Fourth Amendment to the United States Constitution

even if the officer had some ulterior motive for making the stop, such as a suspicion that

the violator was engaging in more nefarious criminal activity." Dayton v. Erickson, 76 Ohio

St.3d 3 (1996), paragraph one of the syllabus.

{¶26} Fisk's argument concentrates on whether the stop was a valid investigatory

stop under Terry. Fisk contends that Deputy Laycox unlawfully stopped him based on the

incorrect suspicion that he was another person with a warrant. 2 However, Fisk's argument

ignores that Deputy Laycox initiated the stop based upon a traffic infraction.

{¶27} R.C. 4511.56 governs the equipment required to legally operate a bicycle on

a street or highway from sunset to sunrise, among other times. All bicycles operated during

these hours must be equipped with a rear-facing red reflector and/or a lamp emitting a

flashing or steady red light visible within the foot requirement set forth in the statute. R.C.

4511.56(A)(2) and (A)(3). A violation of the statute constitutes a minor misdemeanor. R.C.

4511.56(E). The lack of a rear-facing red reflector and/or red lamp light on the bicycle

operated by Fisk on U.S. Route 35 constituted a traffic infraction and provided Deputy

Laycox with the lawful right to stop and detain him for the purpose of issuing a traffic citation.

Bullock, 2017-Ohio-497, ¶ 6.

The Pat Down Search

{¶28} In his second issue presented, Fisk argues that Deputy Laycox did not have

a lawful basis to conduct a pat down search because he did not have a reasonable belief

that Fisk was armed and dangerous. "When a search occurs without a warrant, the state

2. Based upon our review of the hearing transcript, it appears that Deputy Laycox did not suspect Fisk was this other individual until he had already pulled out of the parking lot and was behind Fisk and had turned on his flashing lights. In other words, Deputy Laycox did not think he knew who the individual was until he was closer to him.

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has the burden to show that the search comes within one of the judicially recognized

exceptions to the warrant requirement." State v. Parker, 12th Dist. Butler No. CA2001-06-

143, 2002 WL 553713, *2 (April 15, 2002), citing State v. Akron Airport Post No. 8975, 19

Ohio St.3d 49, 51 (1985). One exception allows a pat down search for weapons for the

protection of the police officer, where the officer has a reasonable, specific, and articulable

belief that he is dealing with an armed and dangerous individual, regardless of whether he

has probable cause to arrest the individual for a crime. Terry, 392 U.S. at 21, 27. Another

exception exists when searches are conducted with consent. Schneckloth v. Bustamonte,

412 U.S. 218, 219, 93 S.Ct. 2041 (1973); State v. Posey, 40 Ohio St.3d 420, 427 (1988).

The Terry requirement of reasonable suspicion is avoided entirely when a person voluntarily

consents to a search. Parker at *2, citing State v. Wilt, 2d Dist. Montgomery No. 19108,

2002 WL 272593, *3 (Feb. 22, 2002).

{¶29} When a person is lawfully detained by police and consents to a search, the

state must show that the consent was freely and voluntarily given. Florida v. Royer, 460

U.S. 491, 497, 103 S.Ct. 1319 (1983). In determining whether consent was voluntary, a

court must consider the totality of the circumstances. Schneckloth at 227; State v.

Childress, 4 Ohio St.3d 217 (1983), paragraph one of the syllabus.

{¶30} The trial court found that Fisk voluntarily consented to a pat down search by

Deputy Laycox. Competent and credible evidence in the record supports this conclusion.3

Deputy Laycox testified that he asked Fisk for permission to search for weapons and that

Fisk gave him permission. The video/audio recording of the stop confirms Deputy Laycox's

testimony. On it, Deputy Laycox is heard asking Fisk, "do you mind if I check you real

quick? I just want to check to make sure you have no weapons on you." Fisk responded,

3. Fisk does not argue on appeal that his consent was not freely and voluntarily given.

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"Sure." Fisk's voluntary consent to the search obviated the need for Deputy Laycox to have

a reasonable, articulable suspicion that Fisk was armed and dangerous prior to conducting

the pat down search. Parker at *2.

{¶31} And the subsequent attempt by Deputy Laycox to seize the contraband he felt

on Fisk after conducting the pat down search was justified by the plain feel doctrine. Under

the plain feel doctrine, if, during a pat down, the officer feels an object whose contour or

mass makes its identity immediately apparent as contraband, the officer may seize the

object. Minnesota v. Dickerson, 508 U.S. 366, 375-376, 113 S.Ct. 2130 (1993). The

"immediately apparent" requirement is satisfied if the officer has probable cause to

associate the object with criminal activity, based on the totality of the surrounding

circumstances. State v. Grant, 12th Dist. Preble No. CA2014-12-014, 2015-Ohio-2464, ¶

17. Further, under the "plain feel" doctrine, an officer may not manipulate the object to

determine its incriminating nature. Id.

{¶32} At the hearing, Deputy Laycox testified that he felt a tube and syringe while

patting down Fisk's right pocket. He did not manipulate either object. Deputy Laycox

testified that he knew from personal experience that the tube would likely contain

contraband. We agree that the totality of circumstances indicated that Deputy Laycox had

the right, under the plain feel doctrine, to seize the items he felt in Fisk's pocket. For the

foregoing reasons, we overrule Fisk's sole assignment of error.

{¶33} Judgment affirmed.

M. POWELL, P.J., and HENDRICKSON, J., concur.

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