State v. Tamas

2023 Ohio 1710

• Court: Ohio Court of Appeals
• Decided: May 22, 2023
• Docket: 2022-A-0070
• Status: Published

Opinion

[Cite as State v. Tamas, 2023-Ohio-1710.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2022-A-0070

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

BRANDON JOE TAMAS, Trial Court No. 2021 CR 00331 Defendant-Appellant.

OPINION

Decided: May 22, 2023 Judgment: Affirmed

Colleen M. O’Toole, Ashtabula County Prosecutor, and Christopher R. Fortunato, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff- Appellee).

Lucas M. Blower, Brouse McDowell, LPA, 388 South Main Street, Suite 500, Akron, OH 44311 (For Defendant-Appellant).

JOHN J. EKLUND, P.J.

{¶1} Appellant, Brandon Tamas, appeals the judgment of the Ashtabula County

Court of Common Pleas following his conviction for Aggravated Trafficking in Drugs, a

first-degree felony in violation of R.C. 2925.03(A)(2). Appellant argues that trial counsel

was ineffective by failing to file a motion to suppress evidence of his arrest on the basis

that he was unlawfully detained as a passenger during a traffic stop in violation of his

Fourth Amendment rights. {¶2} Having reviewed the record and the applicable caselaw, we find appellant’s

assignment of error to be without merit. Appellant cannot demonstrate from the record

that had his trial counsel filed a motion to suppress evidence, the court would have

granted it. Appellant was appropriately detained during the traffic stop for officer safety

on the basis that he had admitted at the scene to having a knife on his person. Further,

the arresting officer noted that appellant was not wearing a seatbelt, which would

constitute a sufficient basis to detain him. Finally, had appellant been permitted to leave

the traffic stop, it is likely the officer would have discovered the evidence either in plain

view or during a pat down for officer safety.

{¶3} Therefore, we affirm the judgment of the Ashtabula County Court of

Common Pleas.

Substantive and Procedural History

{¶4} Appellant was charged with Aggravated Trafficking in Drugs, a first-degree

felony in violation of R.C. 2925.03(A)(2). Appellant was arraigned on August 16, 2021,

and pled not guilty. Appellant’s trial counsel did not file a motion to suppress evidence

and the matter proceeded to trial on August 1, 2022.

{¶5} On November 25, 2020, appellant was a passenger in a vehicle subject to

a traffic stop. Sergeant Johns of the Ashtabula County Sheriff’s Office testified that he

observed a vehicle with suspected illegal window tint and initiated a traffic stop. The

vehicle pulled into a Pilot gas station on Route 45. Sergeant Johns identified the driver

as Joshua Kemmer. He also identified the passenger of the vehicle as appellant.

Sergeant Johns stated that during his initial encounter, he asked if there were any

weapons in the vehicle and appellant admitted to having a knife on his person.

Case No. 2022-A-0070 {¶6} Sergeant Johns requested a K9 unit to respond to the traffic stop and he

verified that the window tint allowed only 16 percent light transfer rather than the minimum

50 percent opacity. Appellant then asked if he could get out of the vehicle and go into the

Pilot gas station. Sergeant Johns testified that appellant was not free to leave the traffic

stop until it was over and that he denied his request to get out of the car and walk away.

Sergeant John’s body camera footage was admitted into evidence. In that footage,

Sergeant Johns told appellant that he could not step out of the vehicle because the

Supreme Court had authorized the seizure of the driver and passenger of a vehicle upon

a traffic stop; he also said that appellant was not wearing a seatbelt and was not free to

leave for that reason.

{¶7} Once the K9 unit arrived, Sergeant Johns asked appellant to step out of the

vehicle. As appellant stepped out of the vehicle, Sergeant Johns noticed that appellant

picked up and put on a backpack when he got out of the car. Based on appellant’s

admission to having a knife, Sergeant Johns asked where it was located. Upon asking

where the knife was located, appellant reached his hand down to his pants pocket.

Sergeant Johns then noticed a bag containing a crystal substance which appellant was

attempting to shove back into his pocket. Sergeant Johns’ body camera captured the

footage and showed the bag in appellant’s pocket.

{¶8} Sergeant Johns believed the bag contained crystal methamphetamine and

placed appellant under arrest. He handcuffed appellant, located the knife, and located a

bag of crystal methamphetamine in appellant’s pocket along with four thousand dollars in

cash.

Case No. 2022-A-0070 {¶9} Sergeant Johns Mirandized appellant at the scene and appellant admitted

that there were two black magnetic boxes in Kemmer’s car that belonged to appellant. He

admitted that those boxes contained crystal methamphetamine. According to Bureau of

Criminal Investigations analyst Erin Miller, the total weight of methamphetamine

recovered was 175.17 grams.

{¶10} The jury found appellant guilty. He was sentenced on September 1, 2022,

to an indefinite prison term of 8 to 12 years.

{¶11} Appellant timely appealed raising one assignment of error.

Assignment of Error and Analysis

{¶12} Appellant’s sole assignment of error states:

{¶13} “Brandon Tamas was denied his constitutional right to effective assistance

of counsel because his attorney failed to make a motion to suppress evidence obtained

after an unlawful detention.”

{¶14} In reviewing an ineffective assistance of counsel claim, the standard we

apply is “‘whether counsel's conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.’”

State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An

appellant must demonstrate (1) his counsel was deficient in some aspect of his

representation, and (2) there is a reasonable probability, were it not for counsel's errors,

the result of the proceedings would have been different. Strickland at 669. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. A failure

to “satisfy one prong of the Strickland test negates a court’s need to consider the other.”

Case No. 2022-A-0070 State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing

Strickland at 697.

{¶15} An appellant “must be able to demonstrate that the attorney made errors so

serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth

Amendment, and that he was prejudiced by the deficient performance.” Story, supra,

quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶ 42.

Ohio courts presume that every properly licensed attorney is competent, and therefore a

defendant bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d

1128 (1985). “Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance.” State v.

Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). “Debatable trial tactics generally

do not constitute a deprivation of effective counsel.” State v. Phillips, 74 Ohio St.3d 72,

85, 656 N.E.2d 643 (1995). “Failure to do a futile act cannot be the basis for claims of

ineffective assistance of counsel, nor could such a failure be prejudicial.” State v.

Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at ¶ 42.

{¶16} When a defendant files a motion to suppress evidence obtained during a

warrantless search, “the state has the burden of showing that the search fits within one

of the defined exceptions to the Fourth Amendment's warrant requirement. Athens v.

Wolf, 38 Ohio St.2d 237, 241, 313 N.E.2d 405 (1974).” State v. Banks-Harvey, 152 Ohio

St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 17-18. In context of ineffective assistance

of counsel claims, the record must demonstrate that the motion would have been

successful if the issues had been raised. State v. Howard, 11th Dist. Lake No. 2019-L-

Case No. 2022-A-0070 153, 2020-Ohio-5057, ¶ 39, citing State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-

Ohio-1550, ¶ 28 (collecting cases).

{¶17} The threshold question to determine is whether the motion to suppress

would have been successful if raised. If yes, then a reviewing court must also determine

that there is a reasonable probability that if trial counsel had filed a motion to suppress,

the outcome of the proceedings would have been different. Such a two-tiered inquiry is

necessary because an appellant must demonstrate both that a motion to suppress would

be successful, indicating that trial counsel’s representation was deficient, and that the

failure to file the motion affected the outcome of the case, resulting in prejudice to the

appellant. See Strickland, supra, at 669.

{¶18} The Fourth Amendment to the United States Constitution guarantees “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures * * *.” Fourth Amendment, United States

Constitution. The Ohio Constitution likewise protects against arbitrary government

invasions. State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11,

citing State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762 (1997). “The touchstone of

both is reasonableness.” State v. Brown, 11th Dist. Lake No. 2020-L-002, 2020-Ohio-

5140, ¶ 8, citing State v. Michael, 2013-Ohio-3889, 995 N.E.2d 286, ¶ 10 (10th Dist.).

{¶19} “‘[S]earches 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 L.Ed.2d 576 (1967).

“Courts must exclude evidence obtained by searches and seizures that violate the Fourth

Case No. 2022-A-0070 Amendment.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶

181, citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (extending

the exclusionary rule to the states). “‘The primary purpose of the exclusionary rule is to

remove incentive from the police to violate the Fourth Amendment.’” State v. Eggleston,

11th Dist. Trumbull, 2015-Ohio-958, 29 N.E.3d 23, ¶ 17, quoting State v. Casey, 12th

Dist. Warren No. CA2013-10-090, 2014-Ohio-2586, ¶ 29.

{¶20} “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, 54 L.Ed.2d 331,

98 S.Ct. 330 (1977), quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20

L.Ed.2d 889 (1968). In general, an officer may order a passenger out of a vehicle pending

completion of a stop. Maryland v. Wilson, 519 U.S. 408, 137 L.Ed.2d 41, 117 S.Ct. 882

(1997), syllabus. Further, the danger to an officer from a traffic stop is likely to be greater

where passengers are present. Id. Under Mimms, an officer may request a driver and

passenger to step out of a vehicle as a safety precaution. Mimms, at 108; State v.

Scimemi, 2nd Dist. Clark No. 94-CA-58, 1995 WL 329031, *4 (June 2, 1995). (Collecting

cases holding that a Mimms order applies to passengers.) The order to step out of the

vehicle requires no quantum of constitutional suspicion. State v. Evans, 67 Ohio St.3d

405, 408, 618 N.E.2d 162 (1993). As an officer may lawfully request that a driver and

passenger step out of the vehicle for officer safety, “the underlying rationale * * * supports

a holding that an officer may also lawfully request that the driver and passengers remain

in the vehicle during the stop if the officer determines that remaining in the vehicle is

necessary for safety reasons.” Scimemi, at *4.

Case No. 2022-A-0070 {¶21} Additionally, an officer may request passengers to provide their identity

although there is no legal requirement for a passenger to carry identification. State v. Fry,

9th Dist. Summit No. 23211, 2007-Ohio-3240, ¶ 16.

{¶22} Appellant asserts that his trial counsel was ineffective because Sergeant

Johns did not have a reasonable articulable basis to detain him as a passenger of the

vehicle during the traffic stop. He argues that his request to leave the vehicle and walk to

the Pilot gas station should have been granted and that Sergeant Johns’ unlawful

detention resulted in the evidence used to charge appellant.1 Appellant states that had

his trial counsel filed a motion to suppress, all of the evidence used to convict him would

have been excluded.

{¶23} In support of his argument, appellant cites State v. Wilcox, 2nd Dist. Clark

No. 2011 CA 99, 2012-Ohio-3400. In Wilcox, the State appealed the trial court’s judgment

granting the defendant’s motion to suppress. Id. at ¶ 1. Wilcox was a passenger in a

vehicle stopped for having a continuously blowing horn. The officer stopped the vehicle

to determine if the vehicle had an emergency or a malfunction.

{¶24} The driver of the vehicle had a suspended license and the officer asked

Wilcox if he had a valid license to drive. Id. at ¶ 4. He was unresponsive, did not provide

his name, and appeared intoxicated. Id. Wilcox stepped out of the vehicle, was patted

down, and then provided his name. He stated that he needed to urinate and made

requests to use a restroom and then attempted to urinate on the curb. Id. at ¶ 5. The

officer warned Wilcox that he would be arrested for public indecency if he did so. Id.

1. Appellant has not asserted trial counsel should have filed a motion to suppress Sergeant Johns’ search and arrest of appellant. 8

Case No. 2022-A-0070 Wilcox was told to sit in the vehicle while the officer wrote the driver a ticket. Id. A short

time later, Wilcox was seen urinating on the curb and was then arrested for public

indecency. Id. at ¶ 6. Upon his arrest, the officer found drugs on Wilcox’s person. Id. at ¶

7.

{¶25} The trial court suppressed the evidence because the arrest for public

indecency was improper under the circumstances as Wilcox was not committing a

criminal act but was responding to a biological function and the situation was “acerbated

by the refusal of the officers to allow him to leave to find a more appropriate facility, even

though there were no facts justifying the defendant’s further detention.” Id. at ¶ 9.

{¶26} The court of appeals affirmed the decision, finding that the officer violated

Wilcox’s constitutional rights by “insisting that he remain in the car or at the scene of the

traffic stop while the driver’s citation was issued.” Id. at ¶ 21. However, the court noted

that an officer may be justified in “detaining a passenger at the scene of a traffic stop,

where there is some reasonable, articulable basis for doing so. In this case, however, the

trial court did not find any such circumstances existed.” Id. at ¶ 22.

{¶27} We find Wilcox to be distinguishable from the present case and that

appellant cannot demonstrate a reasonable probability of prejudice from trial counsel not

filing a suppression motion. First, appellant stated he had a knife, Sergeant Johns verified

that the window tint was indeed too dark, and Sergeant Johns observed that appellant

was not wearing a seatbelt. This sequence of events indicates that a suppression motion

would not have been successful.

{¶28} Sergeant Johns’ observation that appellant was not wearing a seatbelt

would constitute a sufficient independent basis to detain him. Wilcox, supra, at ¶ 22; see

Case No. 2022-A-0070 Cleveland v. Hasan, 8th Dist. Cuyahoga No. 98490, 2013-Ohio-820, ¶ 5 (a seatbelt

violation is a traffic offense).; see State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-

Ohio-968, ¶ 21 (once arresting officer decided to issue Jones a citation for the seat belt

violation, it was reasonable for her to detain him to ascertain his identity).

{¶29} Sergeant Johns’ knowledge that appellant was armed and his observation

that he had committed a traffic offense by failing to wear a seatbelt could justify his

decision to detain appellant where he could observe him during the traffic stop for his own

safety, and the safety of people in the Pilot facility, rather than letting appellant leave

unattended. See Maryland v. Wilson, 519 U.S. 408, 137 L.Ed.2d 41, 117 S.Ct. 882 and

Scimemi, 2nd Dist. Clark No. 94-CA-58, 1995 WL 329031, *4 (officer may request a

passenger to step out or remain in vehicle for safety).

{¶30} Unlike in Wilcox, where the passenger asked to leave the traffic stop after

being identified and patted down for weapons, here appellant asked to leave the vehicle

after he had admitted to having a weapon but before he had been patted down for officer

safety. Indeed, if Sergeant Johns had permitted appellant to leave the vehicle, he likely

would have patted him down and discovered the bag of drugs in his pocket at that time.

See Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993),

quoting Terry, 392 U.S. 1, 20, 26, L.Ed.2d 889, 88 S.Ct. 1868.

{¶31} We are mindful that, unlike Wilcox, we are not reviewing a trial court’s

decision to grant or deny a suppression motion. Rather, we determine whether appellant

has demonstrated a reasonable probability that he was prejudiced by trial counsel’s

deficient performance such that filing a motion to suppress would have altered the

Case No. 2022-A-0070 outcome of the proceedings. Strickland, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); Howard, 2020-Ohio-5057, ¶ 39.

{¶32} In light of the above discussion, appellant has not demonstrated that he was

prejudiced by his trial counsel’s failure to file a motion to suppress in this case.

{¶33} Accordingly, appellant’s sole assignment of error is without merit.

{¶34} For the forgoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.

MATT LYNCH, J.,

EUGENE A. LUCCI, J.,

concur.

Case No. 2022-A-0070