State v. Orosz

2017 Ohio 707

• Court: Ohio Court of Appeals
• Decided: February 27, 2017
• Docket: 2016-L-057
• Status: Published

Opinion

[Cite as State v. Orosz, 2017-Ohio-707.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2016-L-057 - vs - :

JOSHUA OROSZ, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR 000643.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, Teri R. Daniel, Assistant Prosecutor, and Jacqueline M. O’Donnell, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, Joshua Orosz, appeals the denial of his Motion to

Suppress in the Lake County Court of Common Pleas. The issue before this court is

whether a police officer has probable cause and/or reasonable suspicion to remove and

search a passenger in a vehicle driven by a known drug dealer after observing the

passenger hiding something in his pants. For the following reasons, we affirm the

decision of the court below. {¶2} On November 25, 2015, the Lake County Grand Jury returned an

Indictment against Orosz, charging him with Possession of Heroin (Count 1), a felony of

the fifth degree in violation of R.C. 2925.11, and Possession of Cocaine (Count 2), a

felony of the fifth degree in violation of R.C. 2925.11. Both Counts contained Forfeiture

Specifications (Contraband) as provided for in R.C. 2941.1417 and R.C. 2981.04.

{¶3} On December 18, 2015, Orosz waived the right to be present at

arraignment and entered a plea of “Not Guilty” to all charges.

{¶4} On January 22, 2016, Orosz filed a Motion to Suppress.

{¶5} On February 12, 2016, the State filed its Response to Defendant’s Motion

to Suppress.

{¶6} On February 18, 2016, a suppression hearing was held. The State

presented the testimony of the following witnesses:

{¶7} Officer Ryan Butler of the Mentor Police Department testified that, on the

evening of August 2, 2015, he observed a southbound vehicle on State Route 306

operated by Carlos Pino, “known by [the] department for dealing drugs” and “arrested

quite a few times by [the Mentor police] in the past.” Within the preceding week, the

department received “information from one of our narcotics detectives that Carlos was

recently released from prison and they had reason to believe that he was again dealing

heroin within the area.”

{¶8} At about 10:04 p.m., Officer Butler stopped Pino’s vehicle at a Shell gas

station at the corner of Mentor Avenue for “fail[ing] to signal at least one hundred feet

prior to making a turn into the gas station.” Before Officer Butler could approach the

2 vehicle, Orosz emerged from the passenger’s side. Officer Butler ordered Orosz back

in the vehicle.

{¶9} Officer Butler approached the vehicle from the passenger’s side1 and

advised Pino of the reason for the stop. He described his interaction with Orosz thus:

“He spoke to me a little bit about where they were coming from, but I could tell he was

breathing really heavily from his chest, you know, rapidly rising and lowering. I can tell

he was avoiding eye contact with me. He wasn’t very comfortable with me being there,

with being stopped.”

{¶10} Officer Butler determined to issue Pino a warning for the turn signal

violation and to request a K-9 unit. During this time, other police officers arrived on the

scene.

{¶11} Officer Richard Smith of the Mentor Police Department testified that during

his three-and-a-half years with the police department he had engaged in “several

hundred” drug-related arrests. On August 2, 2015, he responded to the Shell station

where Officer Butler has stopped Pino’s vehicle.

{¶12} Upon arriving, Officer Smith observed an Officer Wayne speaking with the

occupants of the vehicle from the driver’s side. Officer Smith took a stand about ten

feet from “the right rear quarter panel of the vehicle” where he “had a good view of both

occupants inside the vehicle.” Officer Smith overheard Orosz ask Officer Wayne

several times if he could leave the scene. Officer Smith noted that Orosz’ “entire body

was shaking” and, based on his “motions inside the vehicle” and “wanting to get out of

the vehicle,” that “he was nervous to be around police officers.”

1. Officer Butler testified: “[Approaching from the passenger’s side] is just something that I normally do with any traffic stop, but especially since [Orosz] was trying to get out of the vehicle. Obviously he turned his head to look at me. He knew I was behind him. So I don’t know why he was trying to get out.”

3 {¶13} Officer Smith noted that both Pino and Orosz watched Officer Wayne as

he turned and walked away from their vehicle. They were unaware of his presence. As

soon as Officer Wayne reached Officer Butler’s patrol car, Orosz began moving around,

making “heavy left to right movements * * * indicating that he was obviously at that point

manipulating something.” Officer Smith moved closer to the vehicle and positioned

himself “at the B-pillar of the vehicle,” i.e., “between the passenger side door and the

passenger side rear door.” In addition to noting “the movements big time from left to

right,” Officer Smith observed Orosz “moving * * * his waist up and down in the seats; in

almost like a thrusting motion * * * lifting his butt off the ground [seat].” Orosz was

wearing athletic shorts and had his right hand inside his shorts up to the mid-forearm.

Officer Smith had no doubt that Orosz “was hiding some sort of contraband * * * either

weapons or drugs.”

{¶14} Officer Smith ordered Orosz out of the vehicle. He placed Orosz in

handcuffs, removed him a few feet from the vehicle, and had him spread his legs at

which point a bindle of heroin fell out of the right pants leg. Officer Smith testified: “I

want to make sure that there’s no weapons, immediate weapons. And then most of the

time what we’ll do is we’ll just kind of shake their shorts out which will hopefully knock

loose * * * whatever’s in there and that’s what happened in this case.”

{¶15} Officer Smith placed Orosz under arrest and a bindle of cocaine was

found in his sock.

{¶16} At the conclusion of the hearing, the trial court denied the Motion to

Suppress. In concluding that there was probable cause to remove Orosz from the

vehicle and search him, the court remarked on his several attempts to leave the scene

4 and nervousness. The court observed that Orosz’ nervousness was not the typical

nervousness “that perhaps the driver would display for getting pulled over.” “Most

important” was Orosz’s conduct when he believed that he was not being watched. The

court stated that it “went beyond furtive gestures when you see the Defendant with his

hand actually down his pants, deep down his pants, attempting to manipulate, conceal

or retrieve something.”

{¶17} On February 19, 2016, the trial court issued a Judgment Entry

memorializing the denial of Orosz’ Motion to Suppress.

{¶18} On May 2, 2016, Orosz entered a plea of “no contest” to both Counts of

the Indictment.

{¶19} On May 6, 2016, the trial court issued a Judgment Entry of Sentence,

sentencing him to two years of community control.

{¶20} On June 3, 2016, Orosz filed a Notice of Appeal. On appeal, Orosz raises

the following assignment of error:

{¶21} “[1.] The trial court erred when it denied the defendant-appellant’s motion

to suppress in violation of his due process rights and rights against unreasonable

search and seizure as guaranteed by Sections 10 and 14, Article I of the Ohio

Constitution and the Fourth and Fourteenth Amendments to the United States

Constitution.”

{¶22} “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. At a suppression hearing, “the trial court is best able to decide facts and evaluate

the credibility of witnesses.” State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833

5 N.E.2d 1216, ¶ 41. “Its findings of fact are to be accepted if they are supported by

competent, credible evidence, and we are to independently determine whether they

satisfy the applicable legal standard.” Id. The reviewing court must then “independently

determine as a matter of law, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard.” (Citation omitted.) State v.

Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12; Kirtland Hills v.

Jenisek, 11th Dist. Lake No. 2015-L-1117, 2016-Ohio-3401, ¶ 11 (“[o]nce the appellate

court accepts the trial court’s factual determinations, the appellate court conducts a de

novo review of the trial court’s application of the law to these facts”) (citation omitted).

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

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.”2

{¶24} “The touchstone of our analysis under the Fourth Amendment is always

‘the reasonableness in all the circumstances of the particular governmental invasion of

a citizen’s personal security.’” Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct.

330, 54 L.Ed.2d 331 (1977), quoting Terry v. Ohio, 391 U.S. 1, 19, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968); Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d

297 (1991) (“[t]he Fourth Amendment does not proscribe all state-initiated searches and

seizures; it merely proscribes those which are unreasonable.”). “[T]he reasonableness

of such seizures depends on a balance between the public interest and the individual’s

2. Article I, Section 14 of the Ohio Constitution provides as follows: “The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.” Except in certain circumstances not relevant here, the Ohio Supreme Court “has interpreted Section 14, Article I of the Ohio Constitution as affording the same protection as the Fourth Amendment.” State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d 762 (1997).

6 right to personal security free from arbitrary interference by law officers.” United States

v. Brignoni-Price, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.E.2d 607 (1975).

{¶25} It is well-established that warrantless searches, i.e., “searches 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.” (Footnote omitted.) Katz v. United States,

389 U.S. 347, 357, 88 S.Ct. 507, 19 N.E.2d 576 (1967).

{¶26} One such exception is known variously as a protective search or

“patdown” or “stop and frisk”: “a reasonable search for weapons for the protection of the

police officer, where he has reason to believe that he is dealing with an armed and

dangerous individual, regardless of whether he has probable cause to arrest the

individual for a crime.” Terry at 27. “The 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.

“And in determining whether the officer acted reasonably in such circumstances, due

weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but

to the specific reasonable inferences which he is entitled to draw from the facts in light

of his experience.” Id.

{¶27} In considering the reasonableness of protective searches in the context of

automobile stops, the United States Supreme Court has “recognized the inordinate risk

confronting an officer as he approaches a person seated in an automobile.” Mimms,

434 U.S. at 110, 98 S.Ct. 330, 54 L.Ed.2d 331. Further recognizing that the “danger to

an officer from a traffic stop is likely to be greater when there are passengers in addition

7 to the driver in the stopped car,” the Supreme Court has held “that an officer making a

traffic stop may order passengers to get out of the car pending completion of the stop.”

Maryland v. Wilson, 519 U.S. 408, 414-415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

{¶28} “To justify a patdown of the driver or a passenger during a traffic stop * * *,

the police must harbor reasonable suspicion that the person subjected to the frisk is

armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 172

L.Ed.2d 694 (2009); State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988),

paragraph two of the syllabus (“[w]here a police officer, during an investigative stop, has

a reasonable suspicion that an individual is armed based on the totality of the

circumstances, the officer may initiate a protective search for the safety of himself and

others”).

{¶29} In the present case, Orosz “does not challenge the stop of the car in which

he was a passenger,” but “he [does] challenge the officer’s search of his person,

asserting that the officers possessed neither reasonable suspicion or specific and

articulable facts upon which to base the warrantless search.” Appellant’s brief at 4-5.

Orosz emphasizes that association with a suspected drug dealer, nervous behavior,

and furtive movements do not necessarily support a reasonable suspicion sufficient to

justify the warrantless search. We disagree. Considering the totality of the

circumstances, Officer Smith reasonably suspected Orosz of being armed and properly

conducted a protective search for weapons.

{¶30} The fact that Orosz was in a vehicle being driven by a known and/or

suspected drug dealer is significant. As the United States Supreme Court has

recognized the enhanced risks encountered by police officers during automobile stops,

8 the Ohio Supreme Court has recognized the enhanced risk of persons engaged in

narcotics trafficking being armed. “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.” State v. Evans, 67 Ohio St.3d 405, 413, 618 N.E.2d 162 (1993).3

{¶31} Orosz’ association with Pino was not the only circumstance justifying the

search.

{¶32} The trial court was careful to note that Orosz’ nervousness was extreme

(“breathing really heavily”; “avoiding eye contact”; “entire body was shaking”; and

“wanting to get out of the vehicle”). Although it is recognized that any encounter with

law enforcement may cause a person to become nervous, Orosz’ level of distraction

was atypical. It was Pino who was the focus of the traffic stop. As Orosz was only a

passenger in the vehicle, his discomfort was not normal given the circumstances and

reasonably contributed to the officers’ suspicions.

{¶33} Finally, Orosz was observed in the act of deliberately concealing, or

possibly retrieving, something Officer Smith justifiably under the circumstances believed

to be contraband or a weapon. We emphasize that Orosz’ actions were not equivocal

furtive gestures, but a recognizable attempt to conceal something.

{¶34} Considering the totality of the circumstances, Officer Smith reasonably

suspected that Orosz might have been armed and dangerous. This conclusion is

readily confirmed by a consideration of the circumstances in which other courts have

upheld the constitutionality of protective searches.

3. In Evans, the Ohio Supreme Court upheld a protective search based on a radio report that a person matching the defendant’s description had participated in a drug transaction. Id. at 412.

9 {¶35} In Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d

694, a passenger in a vehicle stopped for having its registration suspended was

properly patted down for officer safety, despite the fact that “the officers had no reason

to suspect anyone in the vehicle of criminal activity,” where: “as the police approached,

Johnson looked back and kept his eyes on the officers”; “Johnson was wearing clothing,

including a blue bandana, that [the officer] considered consistent with Crips

membership”; Johnson had a scanner in his jacket pocket which “‘struck [the officer] as

highly unusual and cause [for] concern,’ because ‘most people’ would not carry around

a scanner that way ‘unless they're going to be involved in some kind of criminal activity

or [are] going to try to evade the police by listening to the scanner’”; and Johnson

“volunteered that he was from Eloy, Arizona, a place [the officer] knew was home to a

Crips gang” and “that he had served time in prison for burglary and had been out for

about a year.” Id. at 327-328.

{¶36} In State v. Hall, 8th Dist. Cuyahoga No. 97722, 2012-Ohio-4155, a

passenger in a vehicle stopped for driving at night without headlights was properly

patted down where: “during his initial approach of the vehicle, [the officer] observed Hall

shove an unidentified object into his right boot” and “testified that he has, in previous

instances, recovered small guns that were concealed in the type and style of boot that

Hall was wearing.” Id. at ¶ 10.

{¶37} In State v. Covert, 3d Dist. Seneca Nos. 13-11-02 and 13-11-03, 2011-

Ohio-4713, a passenger in a vehicle stopped for driving without headlights at night was

properly patted down, “[a]lthough [the officer] did not have an individualized suspicion

that Covert or any of the other backseat passengers were armed and dangerous,”

10 because “the situation, in and of itself, called for precaution”: “Officer Aller was

preparing to search a motor vehicle occupied by a number of people with only one other

officer for back-up”; “the driver had previously been involved with drugs, having albeit

claimed that he no longer lived that kind of life”; a “female passenger had a

misdemeanor warrant for her arrest on an unknown charge”; “and the other three

occupants of the vehicles were males who were each approximately 5’ 8” tall and

weighed between 160–180 pounds.” Id. at ¶ 17.

{¶38} In State v. Sears, 2d Montgomery No. 20849, 2005-Ohio-3880, a

passenger in a vehicle stopped because it was registered to a person with a suspended

license was properly patted down where: the “[d]efendant reached down toward the

floor of the vehicle while Officer Neubauer was preoccupied with the driver, examining

his license”; “Officer Neubauer could not see what was in Defendant’s hand, and when

Officer Neubauer ordered Defendant to show his hands Defendant did not immediately

comply but rather had to be told repeated times to show his hands.” Id. at ¶ 28.

{¶39} In State v. Smith, 11th Dist. Portage No. 2013-P-0054, 2015-Ohio-1204,

this court affirmed a protective search during a consensual encounter where: “Smith

became loud and wanted to leave the scene, variously explaining that he needed to

catch a bus to go to Ravenna and/or the Akron Children’s Hospital”; “Smith was also

‘moving around and waving his arms around,’ behavior that Officer Poe described as

not ‘normal’”; “Smith was wearing ‘baggy’ clothes and had several bulges in the pockets

of his pants”; and “Officer Poe had to order Smith to keep his hands out of his pockets.”

Id. at ¶ 19.

{¶40} The sole assignment of error is without merit.

11 {¶41} For the foregoing reasons, the denial of Orosz’ Motion to Suppress by the

Lake County Court of Common Pleas is affirmed. Costs to be taxed against appellant.

CYNTHIA WESTCOTT RICE, P.J.,

TIMOTHY P. CANNON, J.,

concur.