State v. Radcliff

2014 Ohio 3221

• Court: Ohio Court of Appeals
• Decided: July 18, 2014
• Docket: 13-CA-118
• Status: Published

Opinion

[Cite as State v. Radcliff, 2014-Ohio-3221.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13-CA-118 : CHRISTOPHER W. RADCLIFF : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 13-CR-00465

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: July 18, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

KENNETH W. OSWALT WILLIAM T. CRAMER LICKING CO. PROSECUTOR 470 Olde Worthington Rd., Suite 200 CHRISTOPHER A. REAMER Westerville, OH 43082 20 S. Second St., Fourth Floor Newark, OH 43055 Licking County, Case No. 13-CA-118 2

Delaney, J.

{¶1} Appellant Christopher W. Radcliff appeals from the November 26, 2013

Judgment Entry of the Licking County Court of Common Pleas. Appellee is the state of

Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on July 3, 2013 when Sgt. Carpenter of the Granville Post

of the Ohio State Highway Patrol was sitting stationary on Everett Avenue in the city of

Newark, facing westbound. Carpenter observed a Firebird speed past him at 38 miles

per hour in a 25-mile-per-hour zone.

Traffic Stop

{¶3} Carpenter activated his lights as the Firebird passed but heard it

accelerate. The car made several turns before Carpenter eventually caught up to it,

stopping in a parking lot.

{¶4} Carpenter advised the driver, identified as Brandon Kreager, to turn off the

car and give him the keys. One additional passenger was in the front seat and another

passenger was in the back seat, on the passenger side. Carpenter asked for I.D. from

all of the occupants and brought Kreager back to his cruiser to check the information.

He discovered the front-seat passenger had given him a false social security number.

Carpenter returned to the Firebird, obtained new information from the front passenger,

and took it back to his cruiser to check it out. At that point the front-seat passenger

exited the car and took off running, “right out of his flip-flops.”

{¶5} Carpenter didn’t pursue the fleeing passenger because he was dealing

with Kreager and the back seat passenger. He noticed Kreager was wearing a court- Licking County, Case No. 13-CA-118 3

issued ankle bracelet and learned his operator’s license was suspended. Carpenter

radioed to request Trooper Wilson to come to the scene.

{¶6} Carpenter turned his attention to the backseat passenger, identified as

appellant. The car door had been left open and appellant was leaning toward it.

Carpenter told him not to go anywhere. Appellant and Kreager said they didn’t know

the name of the front-seat passenger and claimed they picked him up outside Dollar

General. Kreager referred to the man as “Low” and eventually he was determined to be

Lowell Hicks.

{¶7} Wilson arrived on the scene of the stop after circling the block several

times to look for Hicks. Carpenter told him the driver initially tried to elude him and one

passenger lied about his identity before fleeing. Appellant was still seated in the car.

Wilson spoke to appellant through the open T-top and observed marijuana debris on the

console. He told appellant to get out of the car, intending to pat him down because of

the presence of marijuana.

Patdown of Appellant

{¶8} Upon exiting, appellant “assumed the position,” according to Wilson,

meaning he turned around and placed his hands in the air. Wilson quickly patted him

down, and as he felt the inside of appellant’s right leg, he discovered a large knot which

he could tell by feel was a plastic bag with sharp edges. Wilson suspected the

substance to be “crystal meth” as soon as he felt it. He asked appellant to remove the

substance and appellant shook his shorts and the item fell out onto the ground. Licking County, Case No. 13-CA-118 4

{¶9} Wilson Mirandized appellant and placed him in handcuffs. Appellant said

the substance was “crystal” which Hicks threw to him before he fled. Appellant hid it in

his shorts because it was “free dope.”

Troopers’ Relevant Experience and Application to Stop

{¶10} Carpenter testified he has 11 years of experience with the Ohio State

Highway Patrol. He has had 50 to 100 contacts with narcotics and is familiar with the

appearance of marijuana and methamphetamine. He stated drugs usually go hand-in-

hand with weapons, so he believed a legitimate concern for officer safety existed on this

stop. He cited factors underlying his concern for officer safety, including the initial

attempts to elude him in the car, the driver’s ankle bracelet, and Hicks providing false

information and then fleeing.

{¶11} Carpenter was not aware of the marijuana debris until Wilson saw it.

Wilson has 10 years’ experience in the Ohio State Highway Patrol as a road trooper and

K-9 handler. He has specialized training in recognition and interdiction of narcotics and

has personally had hundreds of contacts with narcotics. He has felt contraband during

patdowns approximately 200 times and is familiar with both marijuana and

methamphetamine. His concern for officer safety was premised upon the marijuana in

the car and his conversation with Carpenter, who told him the driver first eluded him and

one passenger fled. Wilson’s concern for officer safety extended to all occupants of the

car and therefore he patted appellant down. Wilson testified appellant consented to the

patdown by “assuming the position,” meaning he turned around and put his hands up to

be searched. Licking County, Case No. 13-CA-118 5

Indictment, Suppression Hearing, and Plea of No Contest

{¶12} Appellant was charged by indictment with one count of aggravated

possession of drugs (methamphetamine), a felony of the third degree pursuant to R.C.

2925.11(A)(C)(1)(b). Appellant entered a plea of not guilty and filed a motion to

suppress evidence resulting from the patdown. A suppression hearing was held before

the trial court on October 30, 2013, and the trial court overruled the motion to suppress

by Judgment Entry dated November 12, 2013.

{¶13} Appellant then changed his plea to one of no contest and was found

guilty. The trial court sentenced him to a prison term of two years in addition to a two-

year suspension of his operator’s license.

{¶14} Appellant now appeals from the trial court’s decision overruling the motion

to suppress and the judgment entry of conviction and sentence.

{¶15} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶16} “THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS TO BE FREE

OF UNREASONABLE SEARCHES IN VIOLATION OF THE STATE AND FEDERAL

CONSTITUTIONS.”

ANALYSIS

{¶17} In his sole assignment of error, appellant argues the trial court should

have granted his motion to suppress. We disagree.

{¶18} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,

713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the Licking County, Case No. 13-CA-118 6

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030

(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate

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

court’s conclusion, whether the trial court’s decision meets the applicable legal

standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),

overruled on other grounds.

{¶19} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court’s findings of fact are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See, Williams,

supra.

{¶20} Finally, as here, an appellant may argue the trial court has incorrectly

decided the ultimate or final issues raised in a motion to suppress. When reviewing this

type of claim, an appellate court must independently determine, without deference to

the trial court’s conclusion, whether the facts meet the appropriate legal standard in any

given case. State v. Curry, 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994). Licking County, Case No. 13-CA-118 7

{¶21} Appellant argues the trial court erred in finding Wilson had reasonable

suspicion to pat appellant down and that appellant consented to the patdown. We

disagree and find the trial court properly overruled the motion to suppress.

{¶22} Appellant does not contest the stop of the car, but authority to conduct a

patdown search does not flow automatically from a lawful stop and a separate inquiry is

required. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The

Fourth Amendment requires an officer to have a “reasonable fear for his own or others'

safety” before frisking. Id. Specifically, “[t]he officer ... must be able to articulate

something more than an ‘inchoate and unparticularized suspicion or hunch.’” United

States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), citing Terry,

supra, 392 U.S. at 27. Whether that standard is met must be determined from the

standpoint of an objectively reasonable police officer, without reference to the actual

motivations of the individual officers involved. United States v. Hill, 131 F.3d 1056, 1059

(D.C.Cir.1997), citing Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134

L.Ed.2d 911 (1996).

{¶23} Wilson testified the patdown in this case was for weapons. The frisk, or

protective search, approved in Terry is limited in scope to a patdown search for

concealed weapons when the officer has a reasonable suspicion that the individual

whose behavior he is investigating at close range may be armed and dangerous. Terry,

supra, 392 U.S. at 27.

{¶24} The patdown arose from a traffic stop with a driver who was initially

evasive, a passenger who gave false information then fled, and marijuana observable

inside the car. The United States Supreme Court has recognized traffic stops involve Licking County, Case No. 13-CA-118 8

inherent danger and law enforcement officers may exercise authority over a driver and

passengers to maintain a sense of safety. See Arizona v. Johnson, 555 U.S. 323, 330,

129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (noting “‘[t]he risk of harm to both the police and

the occupants [of a stopped car] is minimized * * * if the officers routinely exercise

unquestioned command of the situation.’”) (internal citations omitted).

{¶25} Wilson’s patdown of appellant is supported by his reasonable belief

appellant might have been armed and dangerous. Terry, supra, 392 U.S. at 28. Ohio

courts have long recognized that persons engaged in illegal drug activity are often

armed with a weapon. State v. Evans, 67 Ohio St.3d 405, 413, 618 N.E.2d 162 (1993);

State v. Taylor, 82 Ohio App.3d 434, 612 N.E.2d 728 (1992). “[T]he 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. Warren, 129 Ohio App.3d 598,

602, 718 N.E.2d 936 (1998).

{¶26} In this case, Wilson articulated his observation of marijuana debris in the

car, combined with circumstances that objectively would lead a reasonable officer to

conclude appellant might be armed and dangerous. He knew from Carpenter the driver

of the car had attempted to elude him and another passenger had fled the scene after

lying about his identity. These factors constitute the basis of a legitimate concern for

officers’ and others’ safety.

{¶27} The question whether appellant consented to the patdown is superfluous

in light of our finding reasonable suspicion existed. Generally an appellate court would

reach the question of the voluntariness of consent only after determining appellant was

unlawfully detained. State v. Hawkins, 2nd Dist. Montgomery No. 25712, 2013-Ohio- Licking County, Case No. 13-CA-118 9

5458, at ¶ 13. Because that is not the case here, we decline to issue an advisory

opinion as to whether appellant’s raising of his hands, without more, constitutes

consent. Billeter v. State, 5th Dist. Stark No. 2013CA0083, 2013-Ohio-3698, at ¶ 31.

{¶28} We find the trooper had reasonable suspicion to pat down appellant,

thereby locating the contraband. The trial court did not err in overruling the motion to

suppress and appellant’s sole assignment of error is overruled.

CONCLUSION

{¶29} Appellant’s sole assignment of error is overruled and the judgment of the

Licking County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Farmer, J., concur.