[Cite as State v. Nolen, 2020-Ohio-118.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, : Case No. 19CA3873
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY STEVEN A. NOLEN,1 :
Defendant-Appellant. : RELEASED 01/08/2020 ______________________________________________________________________ APPEARANCES:
Samuel H. Shamansky, Donald L. Regensburger, and Colin E. Peters, Samuel H. Shamansky Co., L.P.A., Columbus, Ohio, for appellant.
Shane A. Tieman, Scioto County Prosecutor, and Jay Willis, Scioto County Assistant Prosecutor, for appellee. ______________________________________________________________________ Hess, J.
{¶1} Steven Nolan appeals from his convictions, following a no contest plea, for
possession of heroin, assault, and escape. The charges stemmed from a traffic stop
during which an Ohio State Highway Patrol trooper conducted a pat-down search that
resulted in the discovery of approximately 80 grams of heroin. Nolan contends the trial
court erred in multiple ways when it denied his motion to suppress. For the reasons that
follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶2} The Scioto County grand jury indicted Nolan on one count each of
felonious assault, possession of heroin, trafficking in heroin, assault, escape,
obstructing official business, and endangering children. He moved to suppress all
1The trial court used the spelling “NOLEN” in the caption of the judgment entry of sentence; however, it appears that “NOLAN” is the correct spelling of Appellant’s last name. Scioto App. No. 19CA3873 2
evidence obtained as a result of the traffic stop that led to the charges, and the trial
court conducted a hearing on the motion.
{¶3} Ohio State Highway Patrol Trooper Nick Lewis testified that on May 18,
2018, he was on duty in a marked cruiser traveling northbound on U.S. 23 into
Lucasville, Ohio. A gold Honda Accord passed him heading southbound on U.S. 23.
Five or six months earlier, a detective from the Scioto County Sheriff’s Office had
advised Trooper Lewis that a vehicle with the same tag number as the Accord “was
transporting drugs from Columbus to Portsmouth.” The tag number “came back to a
black female out of Columbus.” Trooper Lewis turned his cruiser around to follow the
vehicle. As he was “coming up behind” the vehicle, he observed it “make a lane change
from the left lane to the right lane without the use of a turn signal.” He “[caught] up to
the vehicle” and saw it “cross over the white fog line several times.”
{¶4} Trooper Lewis testified that he initiated a traffic stop based on these traffic
violations. He approached the vehicle and made contact with the driver, Nolan, who
had his three-year-old son in the back seat. Trooper Lewis requested Nolan’s driver’s
license and the vehicle registration. Nolan advised the trooper that his “old lady” owned
the vehicle. Trooper Lewis testified that he saw marijuana on the center console by the
gearshift. He described the marijuana as “residue” in his report but described it as “two
small pieces of marijuana” during his testimony. Trooper Lewis testified that he had
been a trooper for about 14 years, been trained to recognize illicit drugs such as
marijuana, and “made thousands of marijuana arrest[s].”
{¶5} Trooper Lewis asked Nolan to step out of the vehicle while he checked
Nolan’s driver’s license and advised him of the reasons for the stop. Once Nolan exited Scioto App. No. 19CA3873 3
the vehicle, Trooper Lewis asked whether he had any “weapons or anything” on him.
Nolan said he did not. Trooper Lewis testified that he requested permission to conduct
a pat-down search, and Nolan “just kind of threw his hands up as - -as if to say go
ahead.” Therefore, Trooper Lewis was “under the impression it was a consensual pat-
down.” During the pat-down search, Nolan asked why Trooper Lewis had pulled him
over. Trooper Lewis said: “You crossed over the white line a couple times when I come
up behind you. Widen your stance for me, please. You got something down the front of
your pants?” Nolan denied having anything.
{¶6} Trooper Lewis testified that he “felt a hard object in the middle of [Nolan’s]
pants, basically between his - -his buttocks.” Later, Trooper Lewis clarified that he
could not tell if it was “between [Nolan’s] buttocks or if it was up underneath his
genitalia.” Trooper Lewis “recognized” the object “as contraband.” He explained the
object “felt like a hard square object” that was “tied in a bag or something.” Trooper
Lewis testified that he had been in a “scenario like this, probably 3 or 400 times,” and
every time he has located an object where he located the object in this case, it has
“been drugs.” However, Trooper Lewis testified, “I’m checking for weapons,” and,
“Obviously, I don’t want to miss a weapon there.”
{¶7} After finishing the pat-down search, Trooper Lewis “went to grab [Nolan’s]
hands to handcuff him” and place him under arrest. Nolan then “pulled away” and “put
his left hand down the front of his pants” or “down towards the front of his pants.”
Trooper Lewis “tackled him into a ditch.” Trooper Lewis testified that Nolan punched
him a few times, and Trooper Lewis restrained Nolan until backup arrived. At some Scioto App. No. 19CA3873 4
point, Trooper Lewis retrieved the object in Nolan’s pants, and testing revealed it
contained about 80 grams of heroin.
{¶8} On cross-examination, Trooper Lewis acknowledged he had been trained
to prepare “complete and accurate” reports. He admitted his report did not include all of
the details about the information he had received from the detective but testified this
was because it pertained to an “ongoing investigation” he did not want to hamper.
When defense counsel asked Trooper Lewis to read the portion of his report that
referenced the signal violation, he said: “The second sentence. ‘I turned on the vehicle.
Observed it make a lane change from the left lane into the right lane.’ ” Upon further
inquiry, Trooper Lewis acknowledged the report did not actually mention the signal
violation. Trooper Lewis testified that he “thought it was in the report,” and the omission
was an oversight. Trooper Lewis agreed that the signal violation was “not visible on the
video” and that when he responded to Nolan’s inquiry about the reason for the stop, he
did not mention that violation. Trooper Lewis noted that he was “doing the pat-down
during that time.”
{¶9} The trial court denied the motion to suppress. The court found that
Trooper Lewis “observed the gold Honda Accord change lanes without signaling and
travel across the right fog line several times as the vehicle proceeded south on US Rt.
23.” The court noted that the state “offered a video of the Trooper’s in-car camera
which, while difficult to see at times, because of distance and focus, supports and
bolsters the Trooper’s testimony as to the edge line, or fog line violations.” In addition,
the court found that “within 1 ½ minutes from the time of the stop Trooper Lewis
observed a small amount of marijuana on the center console.” The court found that Scioto App. No. 19CA3873 5
Trooper Lewis asked Nolan to get out of the vehicle and “asked to pat him down.” The
court also found: “Upon patting the defendant down the Trooper testified, and the video
shows Defendant begin to pull away from the trooper. Immediately the Trooper reached
for the defendant’s arm to place him in hand-cuffs whereupon Defendant begins to fight
with the Trooper.”
{¶10} The trial court concluded that Trooper Lewis had reasonable suspicion to
stop the Accord because his testimony about the traffic violations was “credible.” The
court concluded about two minutes elapsed between the stop and physical altercation,
which was “well within the time necessary to conduct a traffic stop, and the testimony at
the hearing showed the Trooper was beginning that process when the altercation
started.” The court also determined that “the scope of the stop, and its purpose, was
expanded when the Trooper observed the marijuana upon the center console area of
Defendant’s vehicle, upon his initial approach to the vehicle.” Regarding the scope of
the pat-down search, the court concluded the search “was in areas of Defendant’s body,
and conducted by Trooper Lewis in a manner to search, where a weapon may be
found.” The court found that nothing in the video showed “any manipulation of
Defendant’s person of [sic] clothing beyond what would be necessary in determining if
he had a weapon.” The court noted that the object Trooper Lewis found was not
removed until “after Defendant pulled away from and assaulted the Trooper.” The court
also stated that Trooper Lewis “testified that he believed the item to be contraband
based on its location and feel, although the Trooper[’]s inquiry as to the nature of the
item[ ] was interrupted by Defendant’s attempted flight, and assault of the Trooper.”
Finally, the court concluded probable cause supported the arrest based on the Scioto App. No. 19CA3873 6
“observation of marijuana in Defendant’s vehicle, the feeling of a hard object in
Defendant’s buttock area, the Trooper[’]s experience of finding contraband hidden
similarly, that Defendant initially began to pull away from the Trooper, and that before
the Trooper could place Defendant under arrest, the fact that he ran and subsequently
assaulted the Trooper.”
{¶11} Nolan pleaded no contest to possession of heroin, assault, and escape.
The trial court found him guilty of those offenses and dismissed the remaining counts.
The court imposed an aggregate sentence of eight years in prison, with four years being
mandatory.
II. ASSIGNMENTS OF ERROR
{¶12} Nolan presents four assignments of error:
1. The trial court erred when it failed to grant Appellant’s Motion to Suppress, where the traffic stop of his vehicle was conducted in the absence of reasonable suspicion, in violation of Appellant’s rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution.
2. The trial court erred when it failed to grant Appellant’s Motion to Suppress, where the scope of the stop was expanded in the absence of reasonable suspicion, in violation of Appellant’s rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution.
3. The trial court erred when it failed to grant Appellant’s Motion to Suppress, where the search of Appellant’s person exceeded the scope of a Terry pat-down and was without probable cause, in violation of Appellant’s rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution.
4. The trial court erred when it failed to grant Appellant’s Motion to Suppress, where the Appellant was arrested without probable cause, in violation of his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution. Scioto App. No. 19CA3873 7
III. STANDARD OF REVIEW
{¶13} In general “appellate review of a motion to suppress presents a mixed
question of law and fact.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10
N.E.3d 691, ¶ 7, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. The Supreme Court of Ohio has explained:
When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Citations omitted.) Burnside at ¶ 8.
IV. LAW AND ANALYSIS
{¶14} “The Fourth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State
v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. The Supreme
Court of Ohio has held that these provisions provide the same protection in felony
cases. State v. Hawkins, ___ Ohio St.3d ___, 2019-Ohio-4210, ___ N.E.3d ___, ¶ 18.
“This constitutional guarantee is protected by the exclusionary rule, which mandates the
exclusion at trial of evidence obtained from an unreasonable search and seizure.” State
v. Petty, 4th Dist. Washington Nos. 18CA26 & 18CA27, 2019-Ohio-4241, ¶ 11.
{¶15} “ ‘[S]earches [and seizures] conducted outside the judicial process,
without prior approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment—subject only to a few specifically established and well-delineated
exceptions.’ ” (Footnotes omitted and alterations sic.) State v. Conley, 4th Dist. Adams Scioto App. No. 19CA3873 8
No. 19CA1091, 2019-Ohio-4172, ¶ 17, quoting Katz v. United States, 389 U.S. 347,
357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “Once a defendant demonstrates that he or
she was subjected to a warrantless search or seizure, the burden shifts to the state to
establish that the warrantless search or seizure was constitutionally permissible.” State
v. Dorsey, 4th Dist. Scioto No. 19CA3874, 2019-Ohio-3478, ¶ 13. In this case, the state
conceded that Trooper Lewis acted without a warrant.
A. The Traffic Stop
{¶16} In the first assignment of error, Nolan contends that the trial court erred
when it denied his motion to suppress because Trooper Lewis lacked reasonable
suspicion to initiate the traffic stop.
{¶17} This case involved an investigatory stop, which “must be supported by a
reasonable, articulable suspicion that the driver has, is, or is about to commit a crime,
including a minor traffic violation.” Petty, 4th Dist. Washington Nos. 18CA26 & 18CA27,
2019-Ohio-4241, at ¶ 12. In Petty, we recently explained:
“To justify a traffic stop based upon reasonable suspicion, the officer must be able to articulate specific facts that would warrant a person of reasonable caution to believe that the driver has committed, or is committing, a crime, including a minor traffic violation.” State v. Taylor, 2016-Ohio-1231, 62 N.E.3d 591, ¶ 18 (4th Dist.). The existence of reasonable suspicion depends on whether an objectively reasonable police officer would believe that the driver’s conduct constituted a traffic violation based on the totality of the circumstances known to the officer at the time of the stop.
Moreover, a police officer may stop the driver of a vehicle after observing even a de minimis violation of traffic laws. “[A] traffic stop with the proper standard of evidence is valid regardless of the officer’s underlying ulterior motives as the test is merely whether the officer ‘could’ have performed the act complained of; pretext is irrelevant if the action complained of was permissible.” See State v. Koczwara, 7th Dist. Mahoning No. 13MA149, 2014-Ohio-1946, ¶ 22 * * *. Scioto App. No. 19CA3873 9
(Citations omitted. Alteration sic.) Id. at ¶ 12-13.
{¶18} Initially, Nolan contends the trial court’s finding that Trooper Lewis
observed a signal violation is not supported by competent, credible evidence. Trooper
Lewis testified that he saw Nolan commit a traffic violation when he moved the Accord
“from the left lane to the right lane without the use of a turn signal.” See generally R.C.
4511.39(A) (“No person shall * * * move right or left upon a highway * * * without giving
an appropriate signal in the manner hereinafter provided”). Nolan asserts this testimony
lacked credibility because Trooper Lewis did not mention the violation when Nolan
asked about the reason for the stop or in his report, Trooper Lewis did not cite Nolan for
the violation, and no violation “was apparent from the video.” Thus, “the report, the
video recording, and Trooper Lewis’ own prior recorded statement demonstrated that
the sole basis for the stop was an alleged marked lanes violation.”
{¶19} The trial court was free to believe Trooper Lewis’ testimony that he
observed a signal violation and that his omission of the violation from his report was an
oversight. “The trier of fact is free to believe all, part, or none of the testimony of any
witness[.]” State v. Hammond, 4th Dist. Ross No. 18CA3662, 2019-Ohio-4253, ¶ 56.
We accord deference to the trier of fact on credibility issues because “it is in the best
position to gauge the witnesses’ demeanor, gestures, and voice inflections, and to use
these observations to weigh their credibility.” Id. Even though Trooper Lewis did not
mention the violation when Nolan inquired about the basis for the stop, Nolan made the
inquiry when Trooper Lewis was preoccupied with the pat-down search. The trial court
had no duty to discount Trooper Lewis’ testimony because he decided not to cite Nolan,
who was charged with multiple felony offenses as a result of the traffic stop, for the Scioto App. No. 19CA3873 10
minor traffic violation. Moreover, while the video footage does not support Trooper
Lewis’ testimony about the signal violation, the footage also does not contradict his
testimony. See generally State v. Shisler, 1st Dist. Hamilton Nos. C-050860, C-050861,
C-050878, C-050879, 2006-Ohio-5265, ¶ 2-3, 6 (deferring to trial court’s finding that
officer’s testimony that she observed a marked lanes violation at a particular
intersection was credible even though the video footage did not show the violation due
to the camera angle, the officer’s report did not mention the violation, the officer only
cited the driver for weaving at a different intersection, and the video footage did not
reflect that the driver had been weaving at that location).
{¶20} The trial court’s finding that Trooper Lewis observed a signal violation is
supported by competent, credible evidence. As a result, Trooper Lewis had reasonable
suspicion to initiate the traffic stop, and we overrule the first assignment of error.
Nolan’s additional contention that Trooper Lewis did not have reasonable suspicion to
initiate the stop based on marked lanes violations is moot, so we do not address it. See
App.R. 12(A)(1)(c).
B. The Scope of the Traffic Stop
{¶21} In the second assignment of error, Nolan contends that the trial court
erred when it denied his motion to suppress because after Trooper Lewis collected his
identification, Trooper Lewis expanded the scope of the stop without reasonable
suspicion. Nolan essentially challenges the trial court’s determination that “the scope of
the stop, and its purpose, was expanded when the Trooper observed the marijuana
upon the center console area of Defendant’s vehicle, upon his initial approach to the
vehicle.” Nolan contends that Trooper Lewis’ testimony about his observation of the Scioto App. No. 19CA3873 11
marijuana, which the trooper initially characterized as “residue” but later characterized
as “pieces,” is “simply not credible” because photographs show the marijuana was
“infinitesimal” and the observation was “not accompanied by a detection of the odor of
marijuana, the observation of paraphernalia, or any admissions by [Nolan.]” Nolan
asserts that Trooper Lewis’ testimony must be “viewed in the context of his other factual
misrepresentations.” Nolan does not elaborate on these alleged misrepresentations,
but notably, in the previous section, we rejected the contention that the trial court could
not credit the trooper’s testimony about the signal violation.
{¶22} “The scope and duration of a routine traffic stop ‘must be carefully tailored
to its underlying justification * * * and last no longer than is necessary to effectuate the
purpose of the stop.’ ” (Omission sic.) State v. Debrossard, 4th Dist. Ross No.
13CA3395, 2015-Ohio-1054, ¶ 16, quoting Florida v. Royer, 460 U.S. 491, 500, 103
S.Ct. 1319, 75 L.E.2d 229 (1983) (plurality opinion). “Once a driver has been lawfully
stopped, an officer may order the driver to get out of the vehicle without any additional
justification.” State v. Kilbarger, 4th Dist. Hocking No. 11CA23, 2012-Ohio-1521, ¶ 16.
See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.E.2d 331, fn. 6
(1977). “ ‘[T]he officer may detain the motorist for a period of time sufficient to issue the
motorist a citation and to perform routine procedures such as a computer check on the
motorist’s driver’s license, registration and vehicle plates.’ ” Debrossard at ¶ 17, quoting
State v. Aguirre, 4th Dist. Gallia No. 03CA5, 2003-Ohio-4909, ¶ 36. “ ‘ “In determining if
an officer completed these tasks within a reasonable length of time, the court must
evaluate the duration of the stop in light of the totality of the circumstances and consider
whether the officer diligently conducted the investigation.” ’ ” Id., quoting Aguirre at ¶ Scioto App. No. 19CA3873 12
36, quoting State v. Carlson, 102 Ohio App.3d 585, 598, 657 N.E.2d 591 (9th
Dist.1995).
{¶23} “A seizure justified only by a police-observed traffic violation * * *
‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete
th[e] mission’ of issuing a ticket for the violation.” (Alterations sic.) Rodriguez v. United
States, ___ U.S. ___, 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015), quoting Illinois v.
Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Although a police
officer “may conduct certain unrelated checks during an otherwise lawful traffic stop * * *
he may not do so in a way that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.” Id. at 1615. “An officer may
expand the scope of the stop and may continue to detain the vehicle without running
afoul of the Fourth Amendment if the officer discovers further facts which give rise to a
reasonable suspicion that additional criminal activity is afoot.” State v. Rose, 4th Dist.
Highland No. 06CA5, 2006-Ohio-5292, ¶ 17. “[I]f a law enforcement officer, during a
valid investigative stop, ascertains ‘reasonably articulable facts giving rise to a suspicion
of criminal activity, the officer may then further detain and implement a more in-depth
investigation of the individual.’ ” Id. at ¶ 17, quoting State v. Robinette, 80 Ohio St.3d
234, 241, 685 N.E.2d 762 (1997).
{¶24} The trial court’s finding that Trooper Lewis observed marijuana on the
center console is supported by competent, credible evidence. Although Nolan
challenges the credibility of the trooper’s testimony, again, we accord deference to the
trier of fact on credibility issues because “it is in the best position to gauge the
witnesses’ demeanor, gestures, and voice inflections, and to use these observations to Scioto App. No. 19CA3873 13
weigh their credibility.” Hammond, 4th Dist. Ross No. 18CA3662, 2019-Ohio-4253, at ¶
56. The court was free to believe Trooper Lewis’ testimony that based on his training
and experience, he could identify the objects on the center console as marijuana. Thus,
even if we agreed with Nolan that Trooper Lewis “abandoned” the mission of the traffic
stop after collecting Nolan’s identification, the observation of marijuana gave Trooper
Lewis reasonable suspicion of additional criminal activity that justified an expansion of
the scope of the stop. We overrule the second assignment of error.
C. The Pat-Down Search
{¶25} In the third assignment of error, Nolan contends that the trial court erred
when it denied his motion to suppress because the search of his person “exceeded the
scope of a Terry pat-down and was without probable cause.” Nolan asserts that a pat-
down search was not justified pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.E.2d 889 (1968), because the state failed to establish that Trooper Lewis had a
reasonable belief that Nolan might be armed and dangerous. Rather, Nolan asserts
that Trooper Lewis’ testimony indicates the pat-down search was predicated on the
alleged observation of a “minor misdemeanor amount of marijuana residue on the
center console.” Nolan notes that the trial court did not find that he consented to a pat-
down search and maintains that under the totality of the circumstances “raising of the
arms constitutes submission to authority, rather than affirmative consent.” In the
alternative, Nolan maintains that even if a pat-down search was justified, the scope of
the search was unlawful because Trooper Lewis “did far more than pat-down the
outside of [Nolan’s] clothes.” “Rather, he lifted, grasped and manipulated [Nolan’s]
clothing, including his pants and shirt.” Nolan claims Trooper Lewis improperly Scioto App. No. 19CA3873 14
searched between Nolan’s buttocks without a reasonable belief that he might find a
weapon there. Nolan notes Trooper Lewis did not testify that he had been trained to
conduct a pat-down search of that area, did not testify that he was aware of any officer
ever discovering a weapon in that location, and testified that he had personally only
ever found drugs there.
1. Justification for the Pat-Down Search
{¶26} In ruling on the motion to suppress, the trial court did not address whether
a pat-down search was justified. Rather, the court immediately proceeded to consider
whether Trooper Lewis exceeded the lawful scope of a pat-down search for weapons.
This may have been because the relevant headings in Nolan’s motion to suppress and
post-hearing brief, much like his third assignment of error, focus on the scope of the pat-
down search. Nonetheless, Nolan did raise the justification issue in his motion to
suppress, and he addressed it again, albeit briefly, in his post-hearing brief. The state
responded to this argument, asserting that the pat-down search was justified under
Terry, justified because there was probable cause to believe Nolan had contraband on
his person, and justified because Nolan consented to the search.
{¶27} On appeal, Nolan does not assign error to the trial court’s failure to
specifically address whether a pat-down search was justified. Crim.R. 12(F) states:
“Where factual issues are involved in determining a motion, the court shall state its
essential findings on the record.” However, “Crim.R. 12(F) is not self-executing; if a
defendant does not request findings of fact, any error is forfeited.” State v. Adams, 144
Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 112. “[E]ven though the rule’s
language indicates that findings of fact are mandatory when the resolution of factual Scioto App. No. 19CA3873 15
issues is necessary to determine the motion to suppress, such findings are not
necessary when the record is sufficient for the reviewing court to independently
determine whether the motion should have been granted.” State v. Neal, 4th Dist.
Lawrence Nos. 14CA31 & 14CA32, 2015-Ohio-5452, ¶ 30, citing State v. Waddy, 63
Ohio St.3d 424, 443, 588 N.E.2d 819 (1992). Nolan did not request Crim.R. 12(F)
findings. Moreover, the parties’ arguments imply, and we agree, that the record is
sufficient for us to independently determine whether Trooper Lewis was justified in
conducting a pat-down search.
{¶28} Once an officer initiates a lawful traffic stop, the officer “may conduct a
patdown search for weapons upon [an occupant of] the vehicle if the officer has a
‘reason to believe that [the officer] is dealing with an armed and dangerous individual,
regardless of whether [the officer] has probable cause to arrest the individual for a
crime.’ ” (First alteration added. Second and third alterations sic.) State v. Kelley, 4th
Dist. No. 10CA3182, 2011-Ohio-3545, ¶ 18, quoting Terry, 392 U.S. at 27, 88 S.Ct.
1868, 20 L.E.2d 889. “The officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent [person] in the circumstances would
be warranted in the belief that his [or her] safety or that of others was in danger.” Terry
at 27.
{¶29} Trooper Lewis did not testify that he feared for his safety; however, there
is “ ‘no legal requirement that a policeman must feel “scared” by the threat of danger.
Evidence that the officer was aware of sufficient specific facts as would suggest he was
in danger satisfies the constitutional requirement.’ ” State v. Evans, 67 Ohio St.3d 405,
413, 618 N.E.2d 162 (1993), quoting United States v. Tharpe, 536 F.2d 1098, 1101 (5th Scioto App. No. 19CA3873 16
Cir.1976), overruled on other grounds, United States v. Causey, 834 F.2d 1179, 1184
(5th Cir.1987). “Ohio courts have recognized that people involved in illegal drug activity
are often armed and officers have a right to pat-down those people for their protection.”
State v. Williams, 4th Dist. Ross No. 10CA3162, 2011-Ohio-763, ¶ 13. “ ‘The right to
frisk is virtually automatic when individuals are suspected of committing a crime, like
drug trafficking, for which they are likely to be armed.’ ” Id. at ¶ 13, quoting Evans at
413. Here, five or six months prior to the traffic stop, a detective told Trooper Lewis that
a vehicle with the same tag number as the Accord was being used to transport drugs
from Columbus to Portsmouth, and during the stop, Trooper Lewis observed a small
amount of marijuana in plain view.
{¶30} Even if a reasonably prudent person would not have been warranted in
the belief that Nolan was armed and dangerous under these circumstances, Trooper
Lewis was justified in conducting a pat-down search based on Nolan’s consent. “One of
the well-delineated exceptions to the general prohibition against a warrantless search
occurs when the person consents to the search.” State v. Bloomfield, 4th Dist.
Lawrence No. 14CA3, 2015-Ohio-1082, ¶ 29. “ ‘No Fourth Amendment violation occurs
when an individual voluntarily consents to a search.’ ” State v. Clements, 4th Dist.
Hocking No. 15CA19, 2016-Ohio-3201, ¶ 20, quoting State v. Carothers, 2015-Ohio-
4569, 47 N.E.3d 483, ¶ 25 (5th Dist.), citing United States v. Drayton, 536 U.S. 194,
207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). Consent “that is ‘coerced by threats or
force, or granted only in submission to a claim of lawful authority,’ is invalid.”
Debrossard, 4th Dist. Ross No. 13CA3395, 2015-Ohio-1054, at ¶ 37, quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 36 L.E.2d 854 (1973). Scioto App. No. 19CA3873 17
“Such ‘lawful authority’ is a law enforcement officer’s express or implied false claim that
the officer can immediately proceed to make the search regardless of consent.” Id.
{¶31} “Ordinarily, the issue of whether an individual voluntarily consented to a
search is a question of fact, not a question of law.” Id. at ¶ 40. The state must prove by
clear and positive evidence that the necessary consent was obtained and “was freely
and voluntarily given.” Id. at ¶ 39. “ ‘Clear and positive evidence’ is the substantial
equivalent of clear and convincing evidence,” id., which is
“that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123
N.E.3d 895, ¶ 12, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
{¶32} “ ‘ “[C]onsent [to search] may be implied by the circumstances surrounding
the search, by the person’s prior actions or agreements, or by the person’s failure to
object to the search.” ’ ” (First alteration sic. Second alteration and footnotes omitted in
Lane.) Debrossard at ¶ 34, quoting State v. Lane, 2d Dist. Montgomery No. 21501,
2006-Ohio-6830, ¶ 40, quoting Kuras, Levy, Burns, & Lowry, Warrantless Searches and
Seizures, 90 Geo.L.J. 1130, 1172 (2002). Therefore, “ ‘ “a search may be lawful even if
the person giving consent does not recite the talismanic phrase: ‘You have my
permission to search.’ ” ’ ” Id., quoting Lane at ¶ 40, quoting United States v. Buettner-
Janusch, 646 F.2d 759, 764 (2d Cir.1981). We have explained:
“Important factors for the trial court to consider in determining whether a consent was voluntary include: (1) the suspect’s custodial status and the Scioto App. No. 19CA3873 18
length of the initial detention; (2) whether the consent was given in public or at a police station; (3) the presence of threats, promises, or coercive police procedures; (4) the words and conduct of the suspect; (5) the extent and level of the suspect’s cooperation with the police; (6) the suspect’s awareness of his right to refuse to consent and his status as a ‘newcomer to the law’; and (7) the suspect’s education and intelligence.”
Clements at ¶ 21, quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747,
¶ 23.
{¶33} In this case, Nolan had been temporarily detained during a traffic stop and
had exited his vehicle at the trooper’s request when he consented to the search. The
detention, standing alone, does not “demonstrate a coerced consent to search, given
that even being in formal police custody at the time of consent is insufficient to
demonstrate coercion.” State v. Lattimore, 10th Dist. Franklin No. 03AP-467, 2003-
Ohio-6829, ¶ 17, citing United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46
L.Ed.2d 598 (1976) (“the fact of custody alone has never been enough in itself to
demonstrate a coerced * * * consent to search”). Nolan had been detained for less than
two minutes when he consented to the pat-down search. He consented in public, and
Trooper Lewis’ testimony and the video footage demonstrate the absence of any
threats, promises, or coercive police procedures. When Trooper Lewis asked Nolan for
consent to a pat-down search, Nolan indicated his consent by immediately putting his
arms up in the air. Nolan did not object at any point during the pat-down search. The
video footage indicates Nolan was cooperative until Trooper Lewis began to arrest him.
The state did not introduce any evidence that Nolan was aware of his right to refuse to
consent or had a criminal history. However, “[v]oluntariness is a question of fact to be
determined from all the circumstances, and while the subject’s knowledge of a right to
refuse is a factor to be taken into account, the prosecution is not required to Scioto App. No. 19CA3873 19
demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”
Schneckloth, 412 U.S. at 248-249, 93 S.Ct. 2041, 36 L.Ed.2d 854. Finally, while the
record contains no evidence detailing Nolan’s education or intelligence, it appears from
the video footage that Nolan possessed adequate intelligence to understand the events
as they occurred.
{¶34} Based on the foregoing, the state proved by clear and positive evidence
that Nolan voluntarily consented to a pat-down search.
2. Scope of the Pat-Down Search
{¶35} The parties appear to agree that in this case, the permissible scope of any
consensual pat-down search was the same as a Terry search. Terry permits an officer
“to conduct a carefully limited search of the outer clothing” of an individual “in an attempt
to discover weapons which might be used to assault him.” Terry, 392 U.S. at 30, 88
S.Ct. 1868, 20 L.E.2d 889. “ ‘The purpose of this limited search is not to discover
evidence of crime, but to allow the officer to pursue [the officer’s] investigation without
fear of violence * * *.’ ” (Omission sic.) Minnesota v. Dickerson, 508 U.S. 366, 373, 113
S.Ct. 2130, 124 L.Ed.2d 334 (1993), quoting Adams v. Williams, 407 U.S. 143, 146, 92
S.Ct. 1921, 32 L.Ed.2d 612 (1972). Thus, a Terry search must “be confined 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. “If the protective search
goes beyond what is necessary to determine if the suspect is armed, it is no longer valid
under Terry and its fruits will be suppressed.” Dickerson at 373.
{¶36} Trooper Lewis did not exceed the scope of a Terry search when he
discovered the hard object in Nolan’s pants. Trooper Lewis initially testified he felt a Scioto App. No. 19CA3873 20
hard object “basically between” Nolan’s buttocks but later clarified that he could not tell
if the object was “between his buttocks or if it was up underneath his genitalia.”
Although Trooper Lewis acknowledged that he personally had only ever found drugs in
that area, he testified, “I’m checking for weapons,” and “Obviously, I don’t want to miss
a weapon there,” implying it was physically possible to conceal a weapon in the area
searched. Given this testimony and the video footage of the pat-down search, the trial
court’s finding that the search was conducted in areas of Nolan’s body “where a weapon
may be found” is supported by competent, credible evidence. Moreover, the video
footage reveals that the pat-down search was limited to Nolan’s outer clothing and does
not reveal that Trooper Lewis’ discovery of the hard object involved any manipulation of
clothing beyond what would be necessary to determine if Nolan had a weapon. Trooper
Lewis did admit that he held onto Nolan’s shirt during the pat-down search for “officer
safety purposes,” and in the video footage, it appears that at one point after Trooper
Lewis discovered the hard object, he grasped and lifted part of the front of Nolan’s pants
near his waist. However, those actions did not result in the discovery of any
contraband.
{¶37} For the foregoing reasons, we overrule the third assignment of error.
D. The Arrest
{¶38} In the fourth assignment of error, Nolan contends that the trial court erred
when it denied the motion to suppress because Trooper Lewis arrested him without
probable cause. Nolan argues that even if Trooper Lewis’ testimony about the
marijuana was credible, the amount observed would support only a minor misdemeanor
possession charge, which is not an arrestable offense. Nolan also asserts that Trooper Scioto App. No. 19CA3873 21
Lewis did not have probable cause to arrest him based on the discovery of the hard
object. Nolan again claims that Trooper Lewis discovered the object as a result of an
unlawful search, but we rejected this argument in Section IV.C. In addition, he argues
that Trooper Lewis could not seize the object and arrest him pursuant to the plain feel
doctrine because the contour and mass of the object did not make its identity
immediately apparent. Finally, Nolan asserts that the trial court improperly found that
additional facts supported a finding of probable cause, i.e., that he pulled away from the
trooper, ran, and assaulted the trooper. Nolan asserts that these events are immaterial
because they occurred after Trooper Lewis initiated the arrest, and even if they were
relevant, the court’s findings “are contradicted by the competent, credible evidence.”
{¶39} “ ‘A seizure is equivalent to an arrest when (1) there is an intent to arrest;
(2) the seizure is made under real or pretended authority; (3) it is accompanied by an
actual or constructive seizure or detention; and (4) it is so understood by the person
arrested.’ ” State v. Jones, 4th Dist. Washington No. 11CA13, 2012-Ohio-1523, ¶ 11,
quoting State v. Taylor, 106 Ohio App.3d 741, 749, 667 N.E.2d 60 (2d Dist.1995), citing
State v. Barker, 53 Ohio St.2d 135, 372 N.E.2d 1324 (1978), syllabus. “A warrantless
arrest is constitutionally valid when an arresting officer has probable cause to believe
that an individual has committed a crime.” State v. Richards, 4th Dist. Athens No.
14CA1, 2015-Ohio-669, ¶ 26. The existence of probable cause is a legal question
subject to de novo review. Williams, 4th Dist. Ross No. 10CA3162, 2011-Ohio-763, at ¶
16. “Probable cause for a warrantless arrest requires that the arresting officer, at the
time of the arrest, possess sufficient information that would cause a reasonable and
prudent person to believe that a criminal offense has been or is being committed.” Scioto App. No. 19CA3873 22
State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 39. In
determining whether probable cause existed, courts must consider “ ‘the totality of the
facts and circumstances, including a police officer’s specialized knowledge.’ ” Williams
at ¶ 16, quoting State v. Hansard, 4th Dist. Scioto No. 07CA3177, 2008-Ohio-3349, ¶
35.
{¶40} Pursuant to “ ‘the “plain feel” doctrine, if in the process of conducting a
limited pat down search for weapons an officer detects an object whose criminal
character is immediately apparent to him, he is justified in seizing the object from the * *
* person being searched.’ ” (Omission sic.) State v. Fowler, 4th Dist. Ross. No
17CA3599, 2018-Ohio-241, ¶ 17, quoting State v. Crayton, 2017-Ohio-705, 86 N.E.3d
77, ¶ 29 (11th Dist.). “ ‘In the context of the plain feel exception to the warrant
requirement, “immediately apparent” is a term of art-it simply means the officer has
probable cause to associate the object with criminal activity.’ ” Williams at ¶ 15, quoting
Hansard at ¶ 31.
{¶41} In this case, the criminal character of the object in Nolan’s pants was
“immediately apparent.” Trooper Lewis had information that a vehicle with the same tag
number as the Accord was transporting drugs from Columbus to Portsmouth. Although
the information was five or six months old, Trooper Lewis observed marijuana in plain
view in the vehicle. In addition, Trooper Lewis testified that every time he has located
an object in the location where he found the hard object in Nolan’s pants, it has been
drugs.
{¶42} Even though Trooper Lewis did not remove the object immediately after its
discovery, once Trooper Lewis felt the object, he had probable cause to remove it and Scioto App. No. 19CA3873 23
arrest Nolan. See Williams at ¶ 3-4, 17-20 (trooper had probable cause to remove
package of OxyContin pills from defendant’s person and arrest him pursuant to plain
feel doctrine where during a traffic stop, a canine alerted the trooper to presence of
drugs in a vehicle while the defendant was inside it, the trooper felt a hard, golf ball-like
object between the defendant’s buttocks during a pat-down search, and the trooper
testified that he believed the object was “some form of narcotic, an illegal drug” because
he “had several stops” where he “found something in the rear of someone’s pants, and
it’s always been an illegal drug”); State v. Brown, 4th Dist. Ross No. 18CA3644, 2019-
Ohio-1112, ¶ 23 (officer could seize object pursuant to plain feel doctrine where during
pat-down search, he felt “a large bulge between [the defendant’s] legs, which he
immediately knew was contraband, based on his experience in drug investigations”).
Therefore, it is not necessary for us to determine the exact moment of Nolan’s arrest
and whether other facts relied on by the trial court also support a finding of probable
cause to arrest. We overrule the fourth assignment of error.
V. CONCLUSION
{¶43} Having overruled the assignments of error, we affirm the trial court’s
judgment.
JUDGMENT AFFIRMED. Scioto App. No. 19CA3873 24
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________ Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.