State v. Hunter

2012 Ohio 2302

Opinion

[Cite as State v. Hunter, 2012-Ohio-2302.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97086

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

GARY HUNTER DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-543293

BEFORE: Kilbane, J., Jones, P.J., and Cooney, J.

RELEASED AND JOURNALIZED: May 24, 2012 ATTORNEY FOR APPELLANT

Mark R. Marshall P.O. Box 451146 Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor Nicole Ellis Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:

{¶1} Defendant-appellant, Gary Hunter, appeals from the order of the trial court

that denied his motion to suppress. For the reasons set forth below, we affirm.

{¶2} Defendant was arrested on October 15, 2010. Thereafter, on November

10, 2010, he was charged with possession of phencyclidine (“PCP”), in violation of R.C.

2925.11(A), a third degree felony, and possession of criminal tools ($300), in violation of

R.C. 2923.24(A), both with a specification for the forfeiture of $300. On January 11,

2011, defendant filed a motion to suppress the evidence obtained against him, arguing

that the charges were the result of an illegal stop and an unlawful search.

{¶3} The trial court held an evidentiary hearing on the motion to suppress on

March 25, 2011. At the start of the hearing, the State and the defense stipulated that the

Cleveland police laboratory analysis of the substance recovered from defendant in

connection with this matter indicated that it was PCP, weighing 13.19 grams. The State

presented the testimony of Cleveland police officer Vasile Nan (“Officer Nan”). Officer

Nan testified that at approximately 7:40 p.m. on October 15, 2010, he and his partner,

Officer Freeman, responded to a dispatch that a man wearing a burgundy hooded

sweatshirt was selling drugs at 10206 Way Avenue. The officers did not observe anyone

at that location. They then scanned the surrounding three-block area. {¶4} At the intersection of East 104th Street and Way Avenue, they observed two

males standing on the sidewalk. One of the men, later identified as defendant, was

wearing a red jacket, so the officers notified dispatch that they were responding to the

original call and exited their cruiser to speak with the two men.

{¶5} The officers stood about 20 feet from the men and instructed them to take

their hands out of their pockets. According to Officer Nan, this request was made

simply as a safety precaution and is made of “pretty much anybody we encounter.” The

officers asked for their names and addresses. Defendant’s companion cooperated with

the officers, but the defendant appeared confused, sluggish, and made grunting noises in

response to the questions. During the encounter, Officer Nan detected the odor of PCP,

which he described as “a very strong ethanol smell, alcoholish, * * * a little sweet, kind of

possibly as radiator coolant, * * * a combination of the two.”

{¶6} Defendant reportedly told the officers that he had smoked PCP earlier.

Officer Nan told his partner to use caution because, in his experience involving

approximately 150 PCP-related arrests, persons using PCP do not feel pain, are frequently

disorderly, and are generally taken to the hospital for treatment.

{¶7} Officer Nan further testified that after many requests that defendant put his

hands on the cruiser, he eventually complied, and the officer patted him down. Officer

Nan detected a very small vial that he believed to be a “personal use vial” of PCP.

Officer Nan removed the vial from defendant’s pocket. According to this witness, the

cap was broken and the vial emitted the very strong odor of PCP. {¶8} On cross-examination, Officer Nan admitted that the officers stopped

defendant away from the location mentioned in the original police dispatch, and that he

was not wearing a burgundy sweatshirt. He also admitted that the officers did not

observe him selling drugs, he was not combative, and did not flee when the police

confronted him.

{¶9} On May 2, 2011, the trial court denied the motion to suppress. Thereafter,

on May 11, 2011, defendant pled no contest to the indictment, and the trial court found

him guilty of the charges and specifications. On July 1, 2011, the trial court sentenced

defendant to two years of community control sanctions.

{¶10} Defendant now appeals, assigning the following interrelated errors for our

review:

ASSIGNMENT OF ERROR I

The trial court erred in denying appellant’s motion to suppress evidence and failing to find that the police officers performed an illegal stop because they lacked reasonable suspicion that appellant was engaged in criminal activity.

ASSIGNMENT OF ERROR II

The trial court erred in denying appellant’s motion to suppress evidence and failing to find that the police officers performed an illegal pat down search under Terry v. Ohio because they lacked reasonable suspicion that appellant was armed and dangerous or a threat to their safety.

ASSIGNMENT OF ERROR III

The trial court erred in denying appellant’s motion to suppress evidence and

failing to find that the police officers exceeded the brief investigatory stop under Terry v. Ohio as the nature of the contraband was not immediately

apparent.

{¶11} 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.

The reviewing court is bound to 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). The reviewing court applies a de novo standard of review to

the trial court’s conclusion of law, however, and determines 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.1987).

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

protection against unreasonable searches and seizures. Searches conducted without a

warrant are per se unreasonable, subject to certain limited exceptions. State v. Smith,

124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, ¶ 10.

{¶13} One category of permissible warrantless stops are consensual encounters

that occur when the police approach an individual, identify themselves, request

information, and the individual remains free to disregard the questions and walk away.

United States v. Mendenhall, 446 U.S. 544, 555-556, 100 S.Ct. 1870, 64 L.Ed.2d 497

(1980). Consensual encounters may become seizures, however, even where the person

did not attempt to leave, where the encounter involves the threatening presence of several

officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the

officer’s request might be compelled. Id. at 556. But consensual encounters do not

become seizures, however, where the officer fails to inform the individual that he is free

to walk away, or where the officer requests the individual’s identification. Id.

{¶14} A second type of permissible warrantless stop is an investigative or “Terry

stop,” which occurs where an officer has a reasonable suspicion based upon specific and

articulable facts that an individual is or has been engaged in criminal activity. Terry v.

Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889. In that instance, where in the

course of investigating this behavior, an officer identifies himself as a policeman and

makes reasonable inquiries, and where nothing in the initial stages of the encounter serves

to dispel his reasonable fear for his own or others’ safety, for the protection of himself

and others in the area, he is entitled to conduct a carefully limited search of the outer

clothing of such persons in an attempt to discover weapons that might be used to assault

him. Id.

{¶15} Terry patdowns are limited in scope to the search for weapons. Terry at

29. If, however, during a patdown an officer detects an item of an “immediately

apparent” incriminating nature, the officer may seize the nonthreatening contraband under

the “plain feel” exception to the warrant requirement. Minnesota v. Dickerson, 508 U.S.

366, 374-375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

{¶16} Finally, we note that under the community-caretaking/ emergency-aid

exception to the Fourth Amendment, police officers may stop a person to render aid if they reasonably believe that there is an immediate need for their assistance to protect life

or prevent serious injury. State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964

N.E.2d 1037, syllabus. In Dunn, the police responded to a dispatch that there was a

suicidal male driving a tow truck and that he was planning to kill himself. They stopped

the tow truck, removed the defendant from the vehicle, and handcuffed him. As the

officers brought him to the police cruiser, the defendant told them that his weapon was in

the glovebox. The defendant was later indicted for improper handling of a firearm in a

motor vehicle. In denying his motion to suppress, the trial court concluded that the

officers were responding to an emergency situation. The appellate court reversed, but

the Ohio Supreme Court determined that the trial court had properly denied the motion to

suppress. The Dunn court stated:

Given that stopping a person on the street is “considerably less intrusive

than police entry into the home itself,” Illinois v. McArthur, 531 U.S. 326,

336, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), the officers’ effecting a traffic

stop to prevent Dunn from harming himself was reasonable under the

Fourth Amendment. Thus, the community-caretaking/emergency-aid

exception to the Fourth Amendment warrant requirement allows police

officers to stop a driver based on a dispatch that the driver is armed and

plans to kill himself. Dunn at ¶ 23.

{¶17} In this matter, the record indicates that the officers responded to a dispatch

that a man wearing a burgundy hooded sweatshirt was selling drugs at 10206 Way Avenue. The officers did not observe anyone at that location, so they drove around in

the surrounding three-block area. At the intersection of East 104th Street and Way

Avenue, they observed the defendant in a red jacket standing with another man.

{¶18} The officers exited their cruiser and spoke with the men from a distance of

about 20 feet away. As a safety precaution, they instructed the men to take their hands

out of their pockets and asked for their names and addresses. The man with defendant

cooperated with the officers, but defendant appeared confused and sluggish and did not

respond. Officer Nan moved to within eight feet of defendant, and he immediately

detected the distinct odor of PCP. According to Officer Nan, it is “a very strong ethanol

smell, alcoholish, * * *a little sweet, kind of possibly a radiator coolant, if you can

imagine that, a combination of the two.” The officers asked defendant if he had smoked

PCP that day, and the defendant told them that he had done so earlier. Officer Nan then

patted defendant down and detected a very small vial that he believed to be a “personal

use vial” of PCP with a broken cap.

{¶19} In our view, the record establishes that the officers proceeded to investigate

the area in good faith reliance upon the tip of men selling drugs. During their

conversation with the men, defendant was sluggish, appeared dazed and confused, and

repeatedly failed to answer the officers’ questions. Although the officers demanded that

defendant take his hands from his pockets, the record demonstrates that as the officer took

a few steps closer to defendant, he quickly detected the distinct odor of PCP from

defendant. Defendant then told the officers that he had smoked PCP earlier, and this created a reasonable suspicion, based upon specific and articulable facts, that an

individual is or has been engaged in criminal activity such to justify a search of

defendant’s outer clothing under Terry. Accord State v. Wilson, 8th Dist. No. 94097,

2010-Ohio-5478 (patdown permissible where officers detected odor of PCP); State v.

Dunn, 8th Dist. No. 85435, 2005-Ohio-3477.

{¶20} Further, the evidence demonstrated that defendant appeared confused, and

smelled of PCP, and that suspects under the influence of this drug are typically disorderly

and are taken to the hospital for treatment. Therefore, the officers properly stopped him

under the community- caretaking/emergency-aid exception to the Fourth Amendment.

{¶21} Moreover, according to the testimony of record, the incriminating nature of

the vial of PCP was immediately apparent and was therefore properly seized under the

“plain feel” exception to the warrant requirement. State v. Dietry, 9th Dist. No.

03CA0052, 2004-Ohio-2661; State v. Russo, 9th Dist. No. 2966-M, 2000 WL 150767.

{¶22} The assignments of error are without merit.

{¶23} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and COLLEEN CONWAY COONEY, J., CONCUR