State v. Shepherd

701 N.E.2d 778, 122 Ohio App. 3d 358
CourtOhio Court of Appeals
DecidedAugust 15, 1997
DocketNo. 16186.
StatusPublished
Cited by67 cases

This text of 701 N.E.2d 778 (State v. Shepherd) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Shepherd, 701 N.E.2d 778, 122 Ohio App. 3d 358 (Ohio Ct. App. 1997).

Opinion

Frederick N. Young, Presiding Judge.

This case comes to us from the Montgomery County Court of Common Pleas, Criminal Division. Defendant-appellant, Patricia Ann Shepherd, appeals from the trial court’s denial of her motion to suppress and her subsequent conviction of drug abuse, a violation of R.C. 2925.11(A). We reverse.

I

On March 23, 1996, Dayton Police Officer Kevin Brame was on routine patrol in a marked police cruiser in the area of Howell Street and Mathison Avenue, a high crime area within the city of Dayton. At Howell and South Mathison, Officer Brame observed a white Pontiac Trans Am with the passenger door fully open parked facing north in the intersection in such a way that it was blocking the route of eastbound traffic. On first seeing the car, Officer Brame noted that *362 it contained as individual in the driver’s seat, but the front passenger seat was unoccupied. Officer Brame further observed that five or six individuals were standing around the front doors and front end of the vehicle. Officer Brame suspected that the individuals were engaged in “narcotic activity.”

As Officer Brame approached the scene in the northbound alley running between South Mathison Avenue and Grosvenor Avenue, the driver closed the passenger door and began driving north rapidly. Officer Brame pulled behind the Trans Am as the driver droye away and noticed that “the vehicle also had a loud and defective muffler.” Officer Brame testified under oath that he then initiated a traffic stop because of. the muffler. The driver pulled the car over after traveling for several blocks. Officer Kurt Schwarz also arrived at the scene in a separate patrol car.

Officer Brame approached the Trans Am, and upon noticing that there were two individuals in the back seat but no one in the front passenger seat, asked the driver why they were in the area and whether there had been a passenger in the front seat. The driver disclosed that the three individuals were in the area for the purpose of purchasing narcotics, and that the front seat had been occupied by a woman who got into the car to sell them crack cocaine. He further disclosed, however, that the transaction was foiled by the arrival of Officer Brame and that the woman had left the car without completing the sale. The driver described the would-be seller as a black female of medium to medium-dark complexion, whose height was 5'5" to 5'6", and who wore a long, black leather coat and blue jeans. The driver gave his name as Melvin Weigandt.

Officer Brame patted down all of the individuals and searched the car, and having failed to discover any crack cocaine, issued the driver a citation for the muffler. The stop had consumed approximately thirty minutes. Both officers then proceeded to the area of Howell and South Mathison to seek out the woman described by the driver. When the officers returned to the alley from which Officer Brame had first emerged to see the Trans Am half an hour earlier, they discovered two men and a woman in the rear of the alley. The woman matched the description given by Weigandt.

The officers informed the woman that they “needed to ask her some questions” and that they were going to check her for weapons and then place her in the back seat of one of the patrol cars. Because no female officer was present to conduct the search, Officer Brame conducted a “visual inspection” by ordering her to open her pockets and looking inside of them. While peering into the left breast pocket of the woman’s coat, he observed a small piece of rolled brown paper. Officer Brame testified that he recognized the paper as a common container for crack cocaine. On Officer Brame’s request, the woman removed the paper and handed it to him. Officer Brame unrolled the paper and discovered that it contained a *363 substance resembling crack cocaine. Officer Brame placed the woman under arrest, handcuffing her and placing her in the back of his cruiser. He then searched her coat and purse, discovering more of the substance.

The woman, defendant-appellant Patricia Ann Shepherd, was indicted on one count of drug abuse, on April 2, 1996. On April 26, 1996, Shepherd entered a plea of not guilty. Shepherd’s court-appointed attorney filed a motion to suppress all the evidence seized from Shepherd by the law enforcement officers on the night of March 28, 1996, on the grounds that the officers violated Shepherd’s rights under the Fourth and Fourteenth Amendments to the United States Constitution and the Ohio Constitution. A hearing was held on July 11, 1996. After the hearing, at which Officer Brame was the only witness, the court ruled that the search and seizure was not illegal, stating:

“[Cjonsidering the totality of the circumstances, the Court finds that the officers did have sufficient probable cause. Although the officers cannot vouch for the credibility of informant Weigandt, nevertheless, he gave them specific information about a potential drug trafficker containing height, complexion and garments worn. Furthermore, the alleged drug transaction was to have occurred in a ‘high drug area.’ Furthermore, upon returning to the scene within a short period of time, the officers observed the same individual who fit the description from the informant.
“Considering the totality of the circumstances, the Court finds that the officers had reasonable cause with which to stop the Defendant and inquire about possible drug activity. Furthermore, the officers had a right to pat -down the individual for weapons for their protection. The Court finds the procedure of the officers reasonable to request the Defendant to open her pockets versus a patdown since she was a female suspect and there was no female officer on duty. Thereafter, the officers had within plain view suspected contraband and thereafter conducted the arrest and subsequent search.”

After the court’s denial of her motion to suppress, Shepherd changed her plea to “no contest.” On October 4, 1996, the court, filed a termination entry sentencing Shepherd to the Ohio Reformatory for Women for an eighteen-month term, but suspending the sentence and placing her on probation for no more than five years. Shepherd filed a timely notice of appeal on October 21, 1996, and asserts two assignments of error.

II

First Assignment of Error

“The trial court denied Patricia Shepherd her constitutional right to be free from unreasonable searches and seizures when it denied her motion to suppress *364 illegally seized evidence because the police officer lacked reasonable suspicion to stop and search defendant.”

Under this assignment of error, Shepherd argues that the information provided by Melvin Weigandt was both inadequate to form the basis for reasonable suspicion and unsupported by sufficient indicia of reliability. According to Shepherd, Officer Brame did not have the requisite cause to detain her and did so in contravention of her state and federal constitutional rights against unreasonable searches and seizures. Because the search and seizure protections protected by the Fourth Amendment as incorporated into the Due Process Clause of the United States Constitution, and Section 14, Article I of the Ohio Constitution are co-extensive, the same analysis governs both claims.

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Bluebook (online)
701 N.E.2d 778, 122 Ohio App. 3d 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shepherd-ohioctapp-1997.