[Cite as State v. Ryan, 2011-Ohio-1616.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 24026 Plaintiff-Appellee : : Trial Court Case No. 09-CR-4251 v. : : (Criminal Appeal from BRYAN K. RYAN : (Common Pleas Court) : Defendant-Appellant : : ...........
OPINION
Rendered on the 1st day of April, 2011.
...........
MATHIAS H. HECK, JR., by LAURA M. WOODRUFF, Atty. Reg. #0084161, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
TINA M. McFALL, Atty. Reg. #0082586, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Bryan Ryan appeals from his conviction and sentence on a
charge of Carrying Concealed Weapons in violation of R.C. 2923.12(A)(2). Ryan contends 2
that the trial court erred in overruling his motion to suppress, because the police did not have a
reasonable articulable suspicion that Ryan was armed and presently dangerous when an officer
decided to conduct a warrantless search of Ryan’s person.
{¶ 2} We conclude that the trial court did not err in overruling the motion to
suppress. The trial court’s decision is supported by competent, credible evidence, which
indicates that the police officer had reasonable articulable suspicion for the warrantless search.
Accordingly, the judgment of the trial court is Affirmed.
I
{¶ 3} The applicable facts in the case before us are undisputed, because the police
officer who conducted the warrantless search was the only witness at the suppression hearing.
The search occurred at Children’s Medical Center in Dayton, Ohio, in December 2009, and
was conducted by Officer Michael Wherry, who was a certified police officer. Wherry had
all the rights and privileges of a City of Dayton Police Officer, except that his jurisdiction was
limited to the hospital premises.
{¶ 4} On the evening in question, Ryan made the first contact with Wherry, while
both men were in the triage waiting room. As Wherry walked by, Ryan asked him if officers
carried pistols in the hospital. Wherry did not carry a firearm, because CMC does not allow
firearms in the hospital. Wherry was wearing a duty belt, and was equipped with pepper
spray, handcuffs, and a radio. Wherry told Ryan that they [the firearms] could not be seen.
Ryan then asked, “So do you guys carry?” Wherry did not answer the question, and walked
away. Wherry decided to watch Ryan, because he was acting suspicious. During their
conversation, Ryan had been looking Wherry up and down to see what kind of equipment 3
Wherry was carrying, and this made Wherry uncomfortable.
{¶ 5} Ryan stayed in the waiting area for a little while, and then left the property.
About thirty or forty minutes later, Ryan came back into the hospital, carrying a fairly large
wooden box in his hands. The box was a foot and a half or two feet long, and was about a
foot deep. Although people do carry things into the hospital, it is unusual for people to carry
old wooden boxes inside. This drew Wherry’s attention.
{¶ 6} After Ryan passed through, Wherry asked the nursing staff for the room
number where Ryan had been headed. The nursing staff was also concerned about what Ryan
was carrying, and asked Wherry if he knew what was in the box. Wherry told the staff that he
was about to find out.
{¶ 7} When Wherry arrived at the location where Ryan had headed, he was greeted
by other members of the nursing staff, who said that a male had just come in, carrying a box,
and that he was acting strangely. The door of the room where Ryan had gone was shut.
When Wherry knocked on the door, he was told to enter.
{¶ 8} Ryan was in the middle of the room, by the bed. The wooden box was on the
floor, by the front counter. Wherry asked Ryan what was in the box, and was told that it
contained silverware. Ryan attempted to come up to the front of the room, but Wherry told
him to stay put. Wherry then opened the box, and found that it did, indeed, contain
silverware. After Wherry inquired why Ryan brought the silverware to the hospital, Ryan
stated that he had gotten the silverware for a Christmas dinner and was leaving it with his wife
or significant other. Wherry was not concerned about the silverware, but it was odd.
{¶ 9} During the time that Wherry was speaking to Ryan about the box, Ryan went to 4
the back of the room. Ryan would not look Wherry in the eyes, and at one point, was up
against a wall with his chest facing the wall, looking over his shoulder to talk with Wherry.
Ryan kept messing with the left side of his jacket, and grabbed the left side of the jacket at
least three times. At one point, Ryan bent down and messed with the left side of the jacket,
as if he were pushing something back up. Ryan’s behavior raised flags in Wherry’s mind,
based on his nine-year experience as a police officer. Ryan’s behavior made Wherry believe
that he was hiding something or perhaps carrying a weapon. Wherry was uncomfortable and
was worried about the safety of the sixty to a hundred people who were in the emergency
room at that point.
{¶ 10} When Wherry said he would like to talk to Ryan, Ryan said that he was leaving
the hospital. Wherry told Ryan that he would escort him out. As the two men walked out,
Ryan again reached into his jacket pocket, and Wherry asked him to keep his hands in plain
view. Ryan stated that he was reaching for his gloves. Ryan already had on gloves,
however, so that was a key indicator to Wherry. Ryan reached into his jacket a second time,
and Wherry again asked Ryan not to put his hands in his jacket and to keep them where
Wherry could see them. Ryan again stated that he just wanted to get his gloves, and felt his
jacket once more.
{¶ 11} At this point, Wherry separated Ryan from the emergency room and triage area,
and went into a separate room. Wherry told Ryan that he was going to conduct a pat-down
for the safety of himself and others, because he was getting very nervous about Ryan. After
being instructed to put his hands on the small table, Ryan complied. However, when Wherry
went to pat Ryan down, Ryan pulled away and reached for his left side. Wherry then felt the 5
butt of a weapon in Ryan’s jacket. At that point, Wherry’s backup officer had come in.
Wherry yelled out, and the officers took Ryan to the ground, securing the weapon. When the
weapon was removed, the officers found that it was loaded.
{¶ 12} Ryan was subsequently indicted on charges of Carrying Concealed Weapons
and Using Weapons While Intoxicated. After Ryan’s motion to suppress was overruled,
Ryan pled no contest to Carrying Concealed Weapons, and was sentenced to eight months in
prison. Ryan appeals from his conviction and sentence.
II
{¶ 13} Ryan’s sole assignment of error is as follows:
{¶ 14} “THE TRIAL COURT ERRED WHEN IT OVERRULED THE
DEFENDANT’S MOTION TO SUPPRESS BY FINDING THE OFFICER HAD
REASONABLE ARTICULABLE SUSPICION THAT MR. RYAN WAS ARMED AND
DANGEROUS TO PERMIT A TERRY PAT DOWN.”
{¶ 15} Under this assignment of error, Ryan contends that the trial court erred in
overruling his motion to suppress. Ryan argues that under the totality of the circumstances,
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Ryan, 2011-Ohio-1616.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 24026 Plaintiff-Appellee : : Trial Court Case No. 09-CR-4251 v. : : (Criminal Appeal from BRYAN K. RYAN : (Common Pleas Court) : Defendant-Appellant : : ...........
OPINION
Rendered on the 1st day of April, 2011.
...........
MATHIAS H. HECK, JR., by LAURA M. WOODRUFF, Atty. Reg. #0084161, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
TINA M. McFALL, Atty. Reg. #0082586, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Bryan Ryan appeals from his conviction and sentence on a
charge of Carrying Concealed Weapons in violation of R.C. 2923.12(A)(2). Ryan contends 2
that the trial court erred in overruling his motion to suppress, because the police did not have a
reasonable articulable suspicion that Ryan was armed and presently dangerous when an officer
decided to conduct a warrantless search of Ryan’s person.
{¶ 2} We conclude that the trial court did not err in overruling the motion to
suppress. The trial court’s decision is supported by competent, credible evidence, which
indicates that the police officer had reasonable articulable suspicion for the warrantless search.
Accordingly, the judgment of the trial court is Affirmed.
I
{¶ 3} The applicable facts in the case before us are undisputed, because the police
officer who conducted the warrantless search was the only witness at the suppression hearing.
The search occurred at Children’s Medical Center in Dayton, Ohio, in December 2009, and
was conducted by Officer Michael Wherry, who was a certified police officer. Wherry had
all the rights and privileges of a City of Dayton Police Officer, except that his jurisdiction was
limited to the hospital premises.
{¶ 4} On the evening in question, Ryan made the first contact with Wherry, while
both men were in the triage waiting room. As Wherry walked by, Ryan asked him if officers
carried pistols in the hospital. Wherry did not carry a firearm, because CMC does not allow
firearms in the hospital. Wherry was wearing a duty belt, and was equipped with pepper
spray, handcuffs, and a radio. Wherry told Ryan that they [the firearms] could not be seen.
Ryan then asked, “So do you guys carry?” Wherry did not answer the question, and walked
away. Wherry decided to watch Ryan, because he was acting suspicious. During their
conversation, Ryan had been looking Wherry up and down to see what kind of equipment 3
Wherry was carrying, and this made Wherry uncomfortable.
{¶ 5} Ryan stayed in the waiting area for a little while, and then left the property.
About thirty or forty minutes later, Ryan came back into the hospital, carrying a fairly large
wooden box in his hands. The box was a foot and a half or two feet long, and was about a
foot deep. Although people do carry things into the hospital, it is unusual for people to carry
old wooden boxes inside. This drew Wherry’s attention.
{¶ 6} After Ryan passed through, Wherry asked the nursing staff for the room
number where Ryan had been headed. The nursing staff was also concerned about what Ryan
was carrying, and asked Wherry if he knew what was in the box. Wherry told the staff that he
was about to find out.
{¶ 7} When Wherry arrived at the location where Ryan had headed, he was greeted
by other members of the nursing staff, who said that a male had just come in, carrying a box,
and that he was acting strangely. The door of the room where Ryan had gone was shut.
When Wherry knocked on the door, he was told to enter.
{¶ 8} Ryan was in the middle of the room, by the bed. The wooden box was on the
floor, by the front counter. Wherry asked Ryan what was in the box, and was told that it
contained silverware. Ryan attempted to come up to the front of the room, but Wherry told
him to stay put. Wherry then opened the box, and found that it did, indeed, contain
silverware. After Wherry inquired why Ryan brought the silverware to the hospital, Ryan
stated that he had gotten the silverware for a Christmas dinner and was leaving it with his wife
or significant other. Wherry was not concerned about the silverware, but it was odd.
{¶ 9} During the time that Wherry was speaking to Ryan about the box, Ryan went to 4
the back of the room. Ryan would not look Wherry in the eyes, and at one point, was up
against a wall with his chest facing the wall, looking over his shoulder to talk with Wherry.
Ryan kept messing with the left side of his jacket, and grabbed the left side of the jacket at
least three times. At one point, Ryan bent down and messed with the left side of the jacket,
as if he were pushing something back up. Ryan’s behavior raised flags in Wherry’s mind,
based on his nine-year experience as a police officer. Ryan’s behavior made Wherry believe
that he was hiding something or perhaps carrying a weapon. Wherry was uncomfortable and
was worried about the safety of the sixty to a hundred people who were in the emergency
room at that point.
{¶ 10} When Wherry said he would like to talk to Ryan, Ryan said that he was leaving
the hospital. Wherry told Ryan that he would escort him out. As the two men walked out,
Ryan again reached into his jacket pocket, and Wherry asked him to keep his hands in plain
view. Ryan stated that he was reaching for his gloves. Ryan already had on gloves,
however, so that was a key indicator to Wherry. Ryan reached into his jacket a second time,
and Wherry again asked Ryan not to put his hands in his jacket and to keep them where
Wherry could see them. Ryan again stated that he just wanted to get his gloves, and felt his
jacket once more.
{¶ 11} At this point, Wherry separated Ryan from the emergency room and triage area,
and went into a separate room. Wherry told Ryan that he was going to conduct a pat-down
for the safety of himself and others, because he was getting very nervous about Ryan. After
being instructed to put his hands on the small table, Ryan complied. However, when Wherry
went to pat Ryan down, Ryan pulled away and reached for his left side. Wherry then felt the 5
butt of a weapon in Ryan’s jacket. At that point, Wherry’s backup officer had come in.
Wherry yelled out, and the officers took Ryan to the ground, securing the weapon. When the
weapon was removed, the officers found that it was loaded.
{¶ 12} Ryan was subsequently indicted on charges of Carrying Concealed Weapons
and Using Weapons While Intoxicated. After Ryan’s motion to suppress was overruled,
Ryan pled no contest to Carrying Concealed Weapons, and was sentenced to eight months in
prison. Ryan appeals from his conviction and sentence.
II
{¶ 13} Ryan’s sole assignment of error is as follows:
{¶ 14} “THE TRIAL COURT ERRED WHEN IT OVERRULED THE
DEFENDANT’S MOTION TO SUPPRESS BY FINDING THE OFFICER HAD
REASONABLE ARTICULABLE SUSPICION THAT MR. RYAN WAS ARMED AND
DANGEROUS TO PERMIT A TERRY PAT DOWN.”
{¶ 15} Under this assignment of error, Ryan contends that the trial court erred in
overruling his motion to suppress. Ryan argues that under the totality of the circumstances,
Officer Wherry did not have a reasonable articulable suspicion that Ryan was armed and
dangerous. Ryan maintains that at the time of the pat-down, Wherry had a hunch that Ryan
was hiding something, but had no facts or accumulation of facts to suggest that Ryan was
armed and presently dangerous.
{¶ 16} The standards for reviewing decisions on motions to suppress are well
established. In ruling on a motion to suppress, the trial court “assumes the role of the trier of
fact, and, as such, is in the best position to resolve questions of fact and evaluate the 6
credibility of the witnesses.” State v. Retherford (1994), 93 Ohio App.3d 586, 592 (citation
omitted). Accordingly, when we review suppression decisions, “we are bound to accept the
trial court's findings of fact if they are supported by competent, credible evidence. Accepting
those facts as true, we must independently determine as a matter of law, without deference to
the trial court's conclusion, whether they meet the applicable legal standard.” Id.
{¶ 17} Under the applicable law:
{¶ 18} “The Fourth and Fourteenth Amendments to the United States Constitution
prohibit warrantless searches and seizures. Unless an exception applies, warrantless searches
are per se unreasonable. Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19
L.Ed.2d 576. One exception was announced by the United States Supreme Court in Terry v.
Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, in which the court held that a brief
investigative stop of a person does not violate the Fourth Amendment if the police have
reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity.
Additionally, the court balanced the right to be free from unreasonable searches against the
need to protect the police and the public, and held that a police officer may frisk a detainee's
outer clothing for concealed weapons when the officer has a reasonable suspicion that the
suspect is armed and dangerous. Id., 392 U.S. at 27. Analyzing whether the police had
reasonable suspicion in any given situation requires us to review the ‘totality of the
circumstances.’ Maumee v. Weisner (1999), 87 Ohio St.3d 295, 1999-Ohio-68, 720 N.E.2d
507, citing United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621.”
State v. Cisternino, Cuyahoga App. No. 94674, 2010-Ohio-6027, ¶ 12.
{¶ 19} “The burden of initially establishing whether a search or seizure was authorized 7
by a warrant is on the party challenging the legality of the search or seizure. * * * Once a
warrantless search is established, the burden of persuasion is on the state to show the validity
of the search. * * * This flows from the presumption that 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.’ ” City of Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218.
{¶ 20} In the case before us, the State met the burden of establishing that the search
was valid. As the trial court noted, Officer Wherry found several key indicators that Ryan
was involved in criminal activity. Ryan’s initial inquiry about whether Wherry was armed
was unusual; in fact, Wherry had never been asked that question during his employment as
an officer at the hospital. Ryan also kept his left side hidden from Wherry during their initial
encounter, and appeared to be surveying what type of equipment Wherry carried. When
Wherry was in the hospital room investigating the box that Ryan had been carrying, Ryan
reached into or touched the left side of his jacket several times, which made Wherry believe
that Ryan was hiding something or carrying a weapon.
{¶ 21} Wherry testified that people under stress in the hospital do sometimes behave
oddly, but not in the way that Ryan did. Ryan did not display the concerned or frazzled
demeanor that normal people do when a child is hurt. Instead, Ryan acted as if he were
hiding something.
{¶ 22} Furthermore, when Wherry and Ryan left the hospital room, Ryan continued to
reach into the left side of his jacket, even when instructed not to do so on more than one
occasion. Ryan’s explanation that he was getting his gloves was not credible, because Ryan 8
was already wearing work gloves. Even though the tips of the work gloves were open,
putting another pair of gloves on over the first pair seemed impractical. Ryan’s continued
action of reaching into his jacket is also suspicious, because Wherry had twice told Ryan to
keep his hands in plain view.
{¶ 23} Under the totality of the circumstances, Officer Wherry had a reasonable
suspicion to believe that Ryan was armed and dangerous. Accordingly, the trial court did not
err in overruling Ryan’s motion to suppress.
{¶ 24} Ryan’s sole assignment of error is overruled.
III
{¶ 25} Ryan’s sole assignment of error having been overruled, the judgment of the
trial court is Affirmed.
DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck Laura M. Woodruff Tina M. McFall Hon. Barbara P. Gorman, Administrative Judge