[Cite as State v. McClain, 2013-Ohio-2436.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
CITY OF ASHLAND : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 12-COA-044 EVERETTE C. MCCLAIN : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland Municipal Court, Case No. 12-CRB-1047AB
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 6, 2013
APPEARANCES:
For Appellant: For Appellee: THOMAS L. MASON DAVID R. STIMPERT Mason, Mason & Kearns Assistant Law Director Post Office Box 345 Ashland Law Director’s Office 153 West Main Street 1213 E. Main Street Ashland, OH 44805 Ashland, OH 44805 Ashland County, Case No.12-COA-044 2
Baldwin, J.
{¶1} Appellant Everette C. McClain appeals a judgment of the Ashland
Municipal Court convicting him of possession of marijuana in violation of Ashland City
Ordinance 513.03(C)(2) upon a plea of no contest. Appellee is the City of Ashland.
STATEMENT OF FACTS AND CASE
{¶2} On August 31, 2012, appellant and his girlfriend, Penny Brown, drove
from their apartment in Shelby, Ohio, to their apartment in Ashland. They went out
drinking, and had an argument. Brown, who was intoxicated, walked home and fell
asleep.
{¶3} Patrolman John Simmons of the Ashland Police Department was
working routine patrol during the morning of September 1, 2012. He had been briefed
from the midnight shift that officers had responded to a complaint from Penny Brown
concerning appellant, and Brown did not want appellant coming back to her
apartment.
{¶4} At 7:01 a.m., Brown called the police to report that appellant was trying
to enter her apartment. Appellant called police shortly after Brown because he wanted
his property back from Brown. When police arrived, appellant wanted his clothes and
his cell phone charger from Brown’s apartment. She would not give him his things
until he gave her back her house keys, which she eventually discovered he did not
have. Ptl. Simmons told appellant that if he came back to Brown’s apartment, he
would be arrested. Appellant told police he had a friend who lived around the corner
and he would walk to his friend’s house and then return to Shelby. Ashland County, Case No.12-COA-044 3
{¶5} At 8:37 a.m., Brown called police to report that appellant was trying to
kick in a window. When police arrived, appellant was walking away from Brown’s
apartment. He told police he was not on her property and was going for a walk. Ptl.
Simmons wanted to talk to both appellant and Brown, but could not keep an eye on
both of them by himself, so he decided to place appellant in his police cruiser. Before
putting appellant in the cruiser, he patted appellant down for weapons. He removed
two packages of cigarettes and a lighter from appellant’s pocket and placed the items
in the inside door pouch of the cruiser. The cruiser had only been in service for two
days, and Simmons did not want appellant smoking inside.
{¶6} Upon arriving at Brown’s house, she showed Simmons where appellant
had opened a window and trampled the grass. She told Simmons that she would not
be able to sleep knowing appellant was outside, and asked that he be arrested.
Simmons placed appellant in handcuffs, informed him that he was under arrest for
persistent disorderly conduct, and transported appellant to the jail. On the way to the
jail, Simmons opened the cigarette packets as a part of his inventory procedure and
found marijuana in one of the packets.
{¶7} Appellant was charged with possession of marijuana in violation of
Ashland Ordinance 513.03(C)(2) and persistent disorderly conduct in violation of R.C.
2917.11(A)(5). Appellant moved to suppress the cigarette packets in which the
marijuana was found. The court overruled the motion. Appellant entered a plea of no
contest to possession of marijuana. The charge of persistent disorderly conduct was
nolled by the prosecutor. He was found guilty and sentenced to 30 days incarceration.
He assigns a single error on appeal: Ashland County, Case No.12-COA-044 4
{¶8} THE TRIAL COURT ERRED BY OVERRULING THE APPELLANT’S
MOTION TO SUPPRESS WHERE THE ARRESTING OFFICER’S SEARCH OF THE
APPELLANT EXCEEDED THE SCOPE OF THAT PERMITTED PRIOR TO AN
INVESTIGATORY DETENTION.
{¶9} In his sole assignment of error, appellant argues that the officer could not
search appellant and remove the cigarette packs during the investigatory detention
prior to his arrest.
{¶10} The Ohio Supreme Court has held that during a routine traffic stop, it is
unreasonable for an officer to search the driver for weapons before placing him or her
in a patrol car, if the sole reason for placing the driver in the patrol car during the
investigation is for the convenience of the officer. State v. Lozada, 92 Ohio St. 3d 74,
77, 748 N.E.2d 520, 524 (2001). In the instant case, while not a traffic stop, it is
apparent that the officer placed appellant in the cruiser for his own convenience while
he investigated the call from Brown. Ptl. Simmons testified at the suppression hearing
that he was the only officer on the scene at the time, and he placed appellant in the
cruiser so he could keep an eye on appellant while talking to Brown. Because
appellant was placed in the cruiser for the officer’s convenience, the officer did not
automatically have the right to pat appellant down for weapons.
{¶11} Once a lawful stop has been made, a police officer may conduct a limited
protective search for concealed weapons if the officer reasonably believes that the
suspect may be armed or a danger to the officer or to others. State v. Evans, 67 Ohio
St.3d 405, 408, 618 N.E.2d 162 (1993). To justify a patdown search, “[t]he police
officer must be able to point to specific and articulable facts which, taken together with Ashland County, Case No.12-COA-044 5
rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio,
392 U.S. 1, 21 (1968). However, “[t]he 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.” Id. at 27. Under the plain feel doctrine, an officer conducting a patdown for
weapons may lawfully seize an object if he has probable cause to believe that the item
is contraband. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124
L.Ed.2d 334 (1993).The “incriminating character” of the object must be “immediately
apparent,” meaning that the police have probable cause to associate an object with
criminal activity. State v. Buckner, 2nd Dist. No. 21892, 2007–Ohio–4329.
{¶12} The officer did not testify to any facts that would lead him to believe that
appellant was armed. Further, the officer did not testify that he believed the cigarette
packs to be a weapon or contraband. The officer testified that he removed the
cigarettes for the sole reason that he did not want appellant smoking in his new police
cruiser.
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[Cite as State v. McClain, 2013-Ohio-2436.]
COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
CITY OF ASHLAND : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 12-COA-044 EVERETTE C. MCCLAIN : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland Municipal Court, Case No. 12-CRB-1047AB
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 6, 2013
APPEARANCES:
For Appellant: For Appellee: THOMAS L. MASON DAVID R. STIMPERT Mason, Mason & Kearns Assistant Law Director Post Office Box 345 Ashland Law Director’s Office 153 West Main Street 1213 E. Main Street Ashland, OH 44805 Ashland, OH 44805 Ashland County, Case No.12-COA-044 2
Baldwin, J.
{¶1} Appellant Everette C. McClain appeals a judgment of the Ashland
Municipal Court convicting him of possession of marijuana in violation of Ashland City
Ordinance 513.03(C)(2) upon a plea of no contest. Appellee is the City of Ashland.
STATEMENT OF FACTS AND CASE
{¶2} On August 31, 2012, appellant and his girlfriend, Penny Brown, drove
from their apartment in Shelby, Ohio, to their apartment in Ashland. They went out
drinking, and had an argument. Brown, who was intoxicated, walked home and fell
asleep.
{¶3} Patrolman John Simmons of the Ashland Police Department was
working routine patrol during the morning of September 1, 2012. He had been briefed
from the midnight shift that officers had responded to a complaint from Penny Brown
concerning appellant, and Brown did not want appellant coming back to her
apartment.
{¶4} At 7:01 a.m., Brown called the police to report that appellant was trying
to enter her apartment. Appellant called police shortly after Brown because he wanted
his property back from Brown. When police arrived, appellant wanted his clothes and
his cell phone charger from Brown’s apartment. She would not give him his things
until he gave her back her house keys, which she eventually discovered he did not
have. Ptl. Simmons told appellant that if he came back to Brown’s apartment, he
would be arrested. Appellant told police he had a friend who lived around the corner
and he would walk to his friend’s house and then return to Shelby. Ashland County, Case No.12-COA-044 3
{¶5} At 8:37 a.m., Brown called police to report that appellant was trying to
kick in a window. When police arrived, appellant was walking away from Brown’s
apartment. He told police he was not on her property and was going for a walk. Ptl.
Simmons wanted to talk to both appellant and Brown, but could not keep an eye on
both of them by himself, so he decided to place appellant in his police cruiser. Before
putting appellant in the cruiser, he patted appellant down for weapons. He removed
two packages of cigarettes and a lighter from appellant’s pocket and placed the items
in the inside door pouch of the cruiser. The cruiser had only been in service for two
days, and Simmons did not want appellant smoking inside.
{¶6} Upon arriving at Brown’s house, she showed Simmons where appellant
had opened a window and trampled the grass. She told Simmons that she would not
be able to sleep knowing appellant was outside, and asked that he be arrested.
Simmons placed appellant in handcuffs, informed him that he was under arrest for
persistent disorderly conduct, and transported appellant to the jail. On the way to the
jail, Simmons opened the cigarette packets as a part of his inventory procedure and
found marijuana in one of the packets.
{¶7} Appellant was charged with possession of marijuana in violation of
Ashland Ordinance 513.03(C)(2) and persistent disorderly conduct in violation of R.C.
2917.11(A)(5). Appellant moved to suppress the cigarette packets in which the
marijuana was found. The court overruled the motion. Appellant entered a plea of no
contest to possession of marijuana. The charge of persistent disorderly conduct was
nolled by the prosecutor. He was found guilty and sentenced to 30 days incarceration.
He assigns a single error on appeal: Ashland County, Case No.12-COA-044 4
{¶8} THE TRIAL COURT ERRED BY OVERRULING THE APPELLANT’S
MOTION TO SUPPRESS WHERE THE ARRESTING OFFICER’S SEARCH OF THE
APPELLANT EXCEEDED THE SCOPE OF THAT PERMITTED PRIOR TO AN
INVESTIGATORY DETENTION.
{¶9} In his sole assignment of error, appellant argues that the officer could not
search appellant and remove the cigarette packs during the investigatory detention
prior to his arrest.
{¶10} The Ohio Supreme Court has held that during a routine traffic stop, it is
unreasonable for an officer to search the driver for weapons before placing him or her
in a patrol car, if the sole reason for placing the driver in the patrol car during the
investigation is for the convenience of the officer. State v. Lozada, 92 Ohio St. 3d 74,
77, 748 N.E.2d 520, 524 (2001). In the instant case, while not a traffic stop, it is
apparent that the officer placed appellant in the cruiser for his own convenience while
he investigated the call from Brown. Ptl. Simmons testified at the suppression hearing
that he was the only officer on the scene at the time, and he placed appellant in the
cruiser so he could keep an eye on appellant while talking to Brown. Because
appellant was placed in the cruiser for the officer’s convenience, the officer did not
automatically have the right to pat appellant down for weapons.
{¶11} Once a lawful stop has been made, a police officer may conduct a limited
protective search for concealed weapons if the officer reasonably believes that the
suspect may be armed or a danger to the officer or to others. State v. Evans, 67 Ohio
St.3d 405, 408, 618 N.E.2d 162 (1993). To justify a patdown search, “[t]he police
officer must be able to point to specific and articulable facts which, taken together with Ashland County, Case No.12-COA-044 5
rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio,
392 U.S. 1, 21 (1968). However, “[t]he 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.” Id. at 27. Under the plain feel doctrine, an officer conducting a patdown for
weapons may lawfully seize an object if he has probable cause to believe that the item
is contraband. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124
L.Ed.2d 334 (1993).The “incriminating character” of the object must be “immediately
apparent,” meaning that the police have probable cause to associate an object with
criminal activity. State v. Buckner, 2nd Dist. No. 21892, 2007–Ohio–4329.
{¶12} The officer did not testify to any facts that would lead him to believe that
appellant was armed. Further, the officer did not testify that he believed the cigarette
packs to be a weapon or contraband. The officer testified that he removed the
cigarettes for the sole reason that he did not want appellant smoking in his new police
cruiser. The officer was not constitutionally permitted to remove the cigarette packs
from appellant’s pocket at this stage of the investigation.
{¶13} Under the inevitable discovery rule, illegally obtained evidence is
properly admitted in a court proceeding once it is established that the evidence would
have been ultimately or inevitably discovered during the course of a lawful
investigation. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
{¶14} Appellant was arrested for persistent disorderly conduct before the
officer opened the cigarette package and thus before the officer was aware that the
package contained marijuana. The officer testified that he inventories an arrested Ashland County, Case No.12-COA-044 6
person’s property before taking him to the jail and giving the property to the jail
because he wants to make sure that there is nothing in the property that could be
harmful to the employees at the jail. Tr. 52. During the course of this inventory, he
discovered the marijuana in the cigarette package. According to the officer’s
testimony, had he not removed the cigarette packages from appellant prior to placing
him in the cruiser, he would have discovered the cigarette packages and the
marijuana prior to delivering appellant to the jail because he would have inventoried
his property after his arrest but before he released him to the jail. Therefore, the
marijuana would have been discovered during this inventory search and is admissible
under the inevitable discovery rule.
{¶15} Appellant argues in his brief that the arrest for persistent disorderly
conduct is “difficult to justify” because appellant had not been charged with disorderly
conduct prior to the arrest for persistent disorderly conduct. Appellant argues that
disorderly conduct is only a minor misdemeanor, for which he could not be arrested.
R.C. 2917.11(E)(3)(a) provides that disorderly conduct is a fourth degree
misdemeanor if “[t]he offender persists in disorderly conduct after reasonable warning
or request to desist.” Prior to his arrest, police had responded to several calls from
Brown concerning appellant’s attempts to gain entry into her apartment, and appellant
had been warned that he would be arrested if he came back. The officer had probable
cause to arrest appellant for persistent disorderly conduct when he received another
call about appellant attempting to kick in the window of Brown’s apartment roughly
ninety minutes after he had been warned. Ashland County, Case No.12-COA-044 7
{¶16} The assignment of error is overruled. The judgment of the Ashland
Municipal Court is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
rad/CRB