State v. Minyoung

2012 Ohio 411

• Court: Ohio Court of Appeals
• Decided: February 6, 2012
• Docket: 15-11-11
• Status: Published

Opinion

[Cite as State v. Minyoung, 2012-Ohio-411.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 15-11-11

v.

JOSH MINYOUNG, OPINION

DEFENDANT-APPELLANT.

Appeal from Van Wert County Common Pleas Court Trial Court No. CR-10-12-191

Judgment Affirmed

Date of Decision: February 6, 2012

APPEARANCES:

John E. Hatcher for Appellant

Martin D. Burchfield for Appellee Case No. 15-11-11

PRESTON, J.

{¶1} Defendant-appellant, Josh Minyoung (hereinafter “Minyoung”),

appeals the Van Wert County Court of Common Pleas’ judgment of conviction

and sentence following Minyoung’s plea of no contest to one count of possession

of drugs. Minyoung contends the trial court erred when it denied his motion to

suppress. For the reasons that follow, we affirm.

{¶2} On December 7, 2010, Sergeant Black received a Crime Stoppers tip

that Minyoung would be returning to Van Wert, Ohio later that evening from Fort

Wayne, Indiana, where he had purchased prescription narcotics to sell in Van

Wert. (March 10, 2011 Tr. at 22). The tip provided Minyoung’s name, a

description of the vehicle, the license plate number, the approximate time when

Minyoung would return to Van Wert, and that Minyoung would be driving on U.S.

Route 30. (Id. at 22-23). A reliable confidential informant confirmed the Crime

Stoppers tip. (Id. at 23).

{¶3} At approximately 10:00 p.m. that evening, Trooper Coil observed an

extremely loud, dark colored vehicle driving on U.S. Route 30. (Id. at 5-6).

Trooper Coil followed the vehicle, intending to stop the driver because of the loud

exhaust. (Id. at 6). When Trooper Coil ran the vehicle’s license plate information,

he discovered it was the vehicle from the Crime Stoppers tip. (Id. at 7). Trooper

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Coil contacted Sergeant Black to request that he bring the K-9 unit to the scene.

(Id.). Trooper Watson also joined Trooper Coil for the stop. (Id. at 7-8).

{¶4} Sergeant Black walked his K-9 around the vehicle while Trooper Coil

spoke with Minyoung, the driver, who was still seated in his vehicle. (Id. at 11).

Minyoung admitted there was a problem with the exhaust. (Id.). During their

conversation, the K-9 alerted to the vehicle, indicating there were drugs inside. (Id.

at 12). Trooper Coil removed Minyoung from the vehicle while Sergeant Black

removed the passenger. (Id. at 12-13). Officer Coil patted down Minyoung for

weapons and Sergeant Black patted down the passenger. (Id.). During the pat-

down, Trooper Coil asked Minyoung to remove his shoes. (Id.). Minyoung took a

small baggy of marijuana out of his right shoe and gave it to Trooper Coil. (Id.).

Trooper Coil again asked Minyoung to remove his shoes. (Id. at 14). Minyoung

complied, revealing a bag of pills in his left shoe. (Id. at 14-15). Sergeant Black

then searched the passenger’s shoes and the vehicle, but did not find any other

contraband. (Id. at 15, 38). Sergeant Black and Trooper Coil determined the pills

were Dilaudid, a Schedule II substance, and arrested Minyoung. (Id. at 16-17).

{¶5} On July 13, 2011, Minyoung was indicted for possession of drugs in

violation of R.C. 2925.11(C)(1)(b), a felony of the third degree. (Doc. No. 2).

Minyoung filed a motion to suppress any evidence obtained from the stop on the

grounds that it was an illegal search and seizure. (Doc. No. 17). The Van Wert

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County Court of Common Pleas held a hearing on the motion to suppress on

March 10, 2011. (March 10, 2011 Tr. at 1). The court denied Minyoung’s motion

to suppress on May 3, 2011. (Doc. No. 22).

{¶6} On May 13, 2011, Minyoung entered a plea of no contest to

possession of drugs in violation of R.C. 2925.11(C)(1)(b), a felony of the third

degree. (Doc. No. 25). The trial court sentenced Minyoung to one year

imprisonment on June 29, 2011. (Doc. No. 28).

{¶7} On July 28, 2011, Minyoung filed a notice of appeal and now raises

one assignment of error.

ASSIGNMENT OF ERROR NO. I

WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT-APPELLANT’S MOTION TO SUPPRESS

{¶8} In his single assignment of error, Minyoung argues the trial court

erred when it denied his motion to suppress for two reasons. First, Minyoung

contends Trooper Coil and Sergeant Black did not have lawful grounds to detain

him beyond the initial traffic stop. Minyoung argues the continued detention was

a “fishing expedition” to find evidence of a drug crime. Secondly, Minyoung

contends Trooper Coil did not have legal grounds to search his shoe. Minyoung

argues the request to remove his shoe went beyond the scope of a pat-down,

constituting an illegal search. In response, the State contends Trooper Coil

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lawfully detained Minyoung and performed a pat-down for weapons. The State

also argues Officer Coil’s actions were lawful because he had probable cause to

search Minyoung. We will address each argument in turn.

{¶9} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71, ¶

8, citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). At a

suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses. Id.

{¶10} When reviewing a ruling on a motion to suppress, deference is given

to the trial court’s findings of fact so long as they are supported by competent,

credible evidence. Burnside at ¶ 8. With respect to the trial court’s conclusions of

law, however, our standard of review is de novo and we must decide whether the

facts satisfy the applicable legal standard. State v. McNamara, 124 Ohio App.3d

706, 710, 707 N.E.2d 539 (4th Dist. 1997).

1. Detention

{¶11} We will first address the issue of Minyoung’s continued detention.

Minyoung argues Officer Coil did not have any lawful grounds to continue to

detain him after the initial stop for a traffic violation.

{¶12} The Fourth Amendment of the United States Constitution protects

citizens from unreasonable governmental searches and seizures. United States v.

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Jacobsen, 466 U.S. 109, 112, 104 S.Ct. 1652, 80 L.E.2d 85 (1984). Generally,

warrantless searches and seizures are per se unreasonable. Katz v. United States,

389 U.S. 347, 357, 88 S.Ct. 507, 19 L.E.2d 576 (1967). Once the defendant has

established that he was subjected to a warrantless search or seizure, the burden

shifts to the state to prove the search or seizure met one of the exceptions to the

warrant requirement. Maumee v. Weisner, 87 Ohio St.3d 295, 297, 720 N.E.2d 507

(1999).

{¶13} “It is axiomatic that where there is a reasonable and articulable

suspicion to believe that a motor vehicle or its occupants are in violation of the

law, stopping the vehicle and detaining its occupants will not violate the

Constitution.” State v. Rusnak, 120 Ohio App.3d 24, 27, 696 N.E.2d 633 (6th Dist.

1997), citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.E.2d

660 (1979). An officer may detain an individual during an investigative stop for

the length of time required to run a computer check on the individual’s license,

registration, and vehicle plates, and to issue a citation or warning. Prouse at 659.

{¶14} If the officer has lawfully detained the vehicle, using a trained

narcotics dog to sniff the vehicle’s exterior does not constitute a search in

violation of the individual’s Fourth Amendment rights. Rusnak at 28, citing State

v. Carlson, 102 Ohio App.3d 585, 594, 657 N.E.2d 591 (9th Dist. 1995). An

officer does not need reasonable suspicion of drug related activity before

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subjecting the lawfully detained vehicle to a canine sniff. Id. The officer may

lengthen the time of the stop if the officer discovers additional facts leading to a

reasonable inference of criminal activity. State v. Williams, 9th Dist. No.

09CA009679, 2010-Ohio-3667, ¶ 15. “[O]nce a trained drug dog alerts to the

odor of drugs from a lawfully detained vehicle, an officer has probable cause to

search the vehicle for contraband.” Carlson at 600.

{¶15} In the present case, Trooper Coil had lawful grounds to detain

Minyoung after the initial traffic stop. The trial court found that Trooper Coil

“decided to pull the vehicle over for a traffic violation regarding the loud exhaust.”

(Doc. No. 22). Trooper Coil then ran the plates and discovered the vehicle

matched the information for a potential drug offense. (Id.). Thus, Trooper Coil

lawfully detained Minyoung for an investigative stop regarding his traffic

violation and potential drug activity. Sergeant Black walked his K-9 unit around

the vehicle while Trooper Coil discussed the loud exhaust with Minyoung. (March

11, 2011 Tr. at 11). At that time, the K-9 unit alerted to drugs in the vehicle. (Doc.

No. 22). Trooper Coil did not extend the initial investigatory stop beyond the time

required to run the computer check and discuss the violation with the driver

because the K-9 sniff and alert occurred before Trooper Coil had completed the

initial investigation. Furthermore, the K-9 alert provided additional facts leading

to the reasonable inference that Minyoung was engaged in criminal activity.

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Consequently, Trooper Coil had lawful grounds to continue to detain Minyoung

for the purpose of investigating a possible drug crime. We cannot find that the

trial court erred in denying Minyoung’s motion to suppress based on the length of

his detention.

2. Pat-Down

{¶16} Minyoung also argues Officer Coil’s request that Minyoung remove

his shoes was outside the scope of a pat-down, constituting an illegal search in

violation of Minyoung’s Fourth Amendment rights.

{¶17} An officer may pat-down an individual for weapons during a traffic

stop if the officer has reason to believe the individual may be armed and

dangerous. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.E.2d 889 (1968).

The officer does not need probable cause to arrest the individual for a crime before

the officer can pat-down the person for weapons. Id. The purpose of the pat-down

is to search for weapons that could harm the officer during the stop, not to search

for evidence of a crime. State v. Kelley, 4th Dist. No. 10CA3182, 2011-Ohio-

3545, ¶ 18, citing State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993).

As a result, the pat-down is limited in scope “to an intrusion reasonably designed

to discover guns, knives, clubs, or other hidden instruments for the assault of the

police officer.” Terry at 29. The officer’s right to frisk an individual is virtually

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automatic when the person is suspected of a crime, such as drug trafficking, where

the individual is likely to be armed. Kelly at ¶ 19, citing Evans at 413.

{¶18} The trial court found that Trooper Coil took Minyoung to the back of

his vehicle to pat him down for officer safety. (Doc. No. 22). Trooper Coil

testified, “I went ahead and started the search* * *it is pretty much the same way

that I use all the time. I go from the top down. I got on to his two shoes, I asked

him to take off his shoes.” (March 11, 2011 Tr. at 13). Trooper Coil also testified

that he often has individuals take their shoes off when he does a search for officer

safety, stating, “I generally, I mean depending on the level of threat, I will. I have

many times have made them take their shoes off.” (Id. at 39). Trooper Coil further

testified that after he asked Minyoung to remove his shoes, “he kind of shrugged

and grabbed the small baggy of marijuana out of his right shoe and he gave it to

me.” (Id. at 13). According to Trooper Coil, he then had Minyoung remove both

of his shoes and discovered a bag of Dilaudid pills in the left shoe. (Id. at 14-16).

In response to a question regarding the purpose of the search, Trooper Coil stated,

“Basically I was looking for weapons and contraband.” Id. at 39. Trooper Coil

further testified, “I thought that with as much as I had as per the informant and the

probable cause with the search of the dog to go ahead and do a more detailed

search.” (Id.).

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{¶19} The trial court found that Trooper Coil had Minyoung remove his

shoes “as he normally does in this type of search.” (Doc. No. 22). The trial court

also found that Minyoung removed the marijuana from his right shoe prior to

removing the shoe and that Trooper Coil discovered the Dilaudid pills when

Minyoung removed his left shoe. (Id.). The trial court held, “Those circumstances

taken into account, as a whole, justified the search that the officers made which led

to the discovery of the illegal substance on the Defendant’s person.” (Id.).

{¶20} We agree with the State that Trooper Coil had the right to pat-down

Minyoung for weapons, but, in this case, we cannot find that requiring Minyoung

to remove his shoes was part of the pat-down. Based on the Crime Stoppers tip,

the information from the confidential informant, and the K-9 unit’s alert, Trooper

Coil had reason to suspect Minyoung possessed drugs. Since the right to frisk an

individual suspected of drug trafficking is “virtually automatic,” Trooper Coil had

the right to pat-down Minyoung for purposes of officer safety. See Kelly at ¶ 19.

Trooper Coil’s pat-down could include places reasonably expected to contain

guns, knives, or other weapons that may harm an officer. See Terry at 29. Thus,

the pat-down of Minyoung was appropriate because weapons could have easily

been concealed beneath his clothing. However, we cannot find any evidence in

the record providing Trooper Coil with a reason to suspect Minyoung had

weapons hidden in his shoes. Trooper Coil did not testify that Minyoung had

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difficulty walking, standing, or exhibited other clues to make Trooper Coil believe

it was necessary to check Minyoung’s shoes for purposes of officer safety.

{¶21} Furthermore, “an officer’s statement regarding his intent in

conducting a search carries great weight in determining whether a search was a

weapons patdown search or a full scale search.” Kelley, 4th Dist. No. 10CA3182,

2011-Ohio-3545, at ¶ 20. Trooper Coil testified that he was looking for weapons

and contraband while searching Minyoung. (March 11, 2011 Tr. at 39). Trooper

Coil also testified that he believed he had probable cause to do a more “detailed

search.” (Id.). A search for evidence is outside the scope of a pat-down for

purposes of officer safety. Kelley at ¶ 18. Because Officer Coil testified that he

believed he had probable cause to perform a more thorough search and was

looking for contraband in addition to weapons, we cannot find that Officer Coil

discovered the Dilaudid pills pursuant to a lawful pat-down.

3. Probable Cause

{¶22} The State argues that even if the search of Minyoung’s shoes was

inappropriate as part of the pat-down, Officer Coil still had probable cause to

search Minyoung based on the totality of the circumstances. We agree.

{¶23} A search or seizure is reasonable under the Fourth Amendment if it is

based upon probable cause and executed pursuant to a warrant. Katz, 389 U.S. 347

at 357. If an officer has probable cause, he must then obtain a warrant prior to the

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search or seizure unless an exception to the warrant requirement applies. State v.

Moore, 90 Ohio St.3d 47, 49, 734 N.E.2d 804 (2000). “‘Probable cause exists if

the facts and circumstances known to the officer warrant a prudent man in

believing that [an] offense has been committed.’” Kelley at ¶ 22, quoting Henry v.

United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.E.2d 134 (1959). A court must

review the totality of the circumstances known to the officer at the time of the

search to determine if the officer had probable cause to conduct the search. Kelly

at ¶ 23, citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.E.2d 142 (1964).

The officer must have sufficient objective facts to justify a magistrate to issue a

warrant. Id. “Thus, the officer must possess sufficient facts from a reasonably

trustworthy source that a search will uncover evidence of a crime.” Id. An officer

may gain this information from an informant’s tip. Id. at ¶ 25.

***Police have probable cause to conduct a search for contraband when detailed information provided to them by a confidential but reliable informant is subsequently corroborated, in some significant combination, with respect to the name or physical description of a suspect, the location of the illegal sale, the time of the sale, the description of the automobile driven by the suspect or the car’s license plate numbers.

Id., quoting State v. Walker, 10th Dist. No. 97APA09-1219 (July 28, 1998). If an

officer has probable cause, the officer may conduct a search without a warrant if

an exception to the warrant requirement exists. Moore at 52. The danger that

evidence will be lost or destroyed if the officer does not immediately conduct a

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search is one such exception. Id. “Because marijuana and other narcotics are

easily and quickly hidden or destroyed, a warrantless search may be justified to

preserve evidence.” Id.

{¶24} Officer Coil had probable cause and an exception to the warrant

requirement justifying a warrantless search of Minyoung. Officer Coil had

probable cause based on the Crime Stoppers tip, the corroboration of the tip by the

confidential informant, and the K-9 unit’s alert. The Crime Stoppers tip provided

detailed information regarding Minyoung’s drug activity including his name,

where he was driving from, his intended destination, the route he would be using,

the approximate time he would be arriving in Van Wert, a description of the

vehicle, and the vehicle’s license plate number. (March 11, 2011 Tr. at 22-23). A

reliable confidential informant then confirmed this information. (Id. at 23).

Finally, the K-9 unit alerted to drugs in the vehicle while Minyoung was inside the

car. (Id. at 12). Based on the totality of the circumstances, Officer Coil had

detailed information from two sources that Minyoung was engaged in drug

activity at the time of the stop. The K-9 unit’s alert then provided an additional

reason for Officer Coil to suspect Minyoung was currently in possession of illegal

drugs. Since Officer Coil had sufficient objective facts to believe Minyoung was

presently engaged in criminal activity, he had probable cause to conduct a search.

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{¶25} Officer Coil also had an exception to the warrant requirement

justifying a warrantless search. Officer Coil reasonably suspected Minyoung was

transporting narcotics to sell in Van Wert. “Once a law enforcement officer has

probable cause to believe that a vehicle contains contraband, he or she may search

a validly stopped motor vehicle based upon the well-established automobile

exception to the warrant requirement.” Moore at 51. Thus, the search of

Minyoung’s vehicle did not violate his Fourth Amendment rights. However,

Officer Coil searched Minyoung’s person prior to the search of the vehicle and the

search was not justified as incident to his arrest. Consequently, the search must

meet an exception to the warrant requirement justifying the intrusion or any

resulting evidence should be suppressed. Id. at 52. The Supreme Court of Ohio

has recognized that narcotics can be easily hidden and destroyed. Id.

Consequently, an officer may be justified in conducting a warrantless search of an

individual suspected of possessing drugs prior to searching the vehicle to prevent

the potential destruction of evidence. Id. In this case, Officer Coil was justified in

conducting a warrantless search of Minyoung’s shoes because Officer Coil had

sufficient facts supporting his belief that Minyoung was presently transporting

drugs, and Minyoung could have hidden or destroyed the drugs if not immediately

searched. We hold that Officer Coil was justified in conducting a warrantless

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search of Minyoung because he had probable cause and the search met an

exception to the warrant requirement.

{¶26} Minyoung’s assignment of error is, therefore, overruled.

{¶27} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr

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