[Cite as State v. Wehr, 2014-Ohio-4396.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellant : Hon. John W. Wise, J. : -vs- : : Case No. 14CA46 DAVID A. WEHR II : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2013- CR-0764
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: October 1, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JILL COCHRAN JOHN O'DONNELL III Assistant Prosecuting Attorney 13 Park Avenue West 38 South Park Street Mansfield, OH 44902 Mansfield, OH 44902 [Cite as State v. Wehr, 2014-Ohio-4396.]
Gwin, P.J.
{¶1} Plaintiff-appellant the State of Ohio appeals the May 14, 2014 Judgment
Entry of the Richland County Court of Common Pleas granting defendant-appellee
David A. Wehr, II’s motion to suppress.
Facts and Procedural History
{¶2} On January 13, 2014, Wehr, was indicted with one count of possession of
heroin in an amount greater than five grams but less than ten grams, in violation of R.C.
§ 2925.11(A) & (C)(6)(c), a felony of the third degree, one count of trafficking in heroin
in an amount greater than five grams but less than ten grams in violation of R.C. §
2925.03(A)(2) & (C)(6)(d), a felony of the third degree, one count of tampering with
evidence, in violation of R.C. § 2921.12(A)(1), a felony of the third degree, and one
count of possession of Oxycodone (schedule II) in an amount less than bulk, in violation
of R.C. § 2925.11(A) & (C)(1)(a), a felony of the fifth degree.
{¶3} On March 24, 2014, Wehr filed a motion to suppress the evidence seeking
to suppress evidence found on his person as a result of a Terry pat down for weapons.
The state filed a response on April 21, 2014. Wehr filed a supplemental memorandum
on April 28, 2014. An evidentiary hearing was held on April 28, 2014. During the
suppression hearing, the state called one officer, Deputy Raymond Frazier with the
Richland County Sherriff's Department.
A. Deputy Raymond Frazier.
{¶4} Deputy Frazier has worked for the Richland County Sheriff’s Department
for 14 years. Deputy Frazier is also a canine handler. On November 17, 2013, Deputy
Frazier was parked in his marked cruiser in the parking lot of the Budget Inn located at Richland County, Case No. 14CA46 3
1336 Ashland Road in Mansfield, Ohio as part of his routine patrol. The hotel
management did not like people loitering on the property. Officers generally would drive
around the parking lot to make their presence known and keep an eye out for people
drinking or loitering in the parking lot.
{¶5} At 8:54 p.m., Deputy Frazier saw a 2002 White Toyota four-door with two
people sitting inside at the Budget Inn parking lot with no lights on. As the officer pulled
behind the Toyota on his way to exit the parking lot, the passenger exited the vehicle
and ran towards the hotel office. Deputy Frazier testified that he exited his vehicle and
yelled at the man, "Hey, where are you going?" and received no response.
{¶6} At this point, Officer Frazier approached the Toyota to make contact with
the driver and registered owner, Wehr, as he was concerned that a crime might have
just occurred or that the Wehr might need some further assistance. During the
conversation, Deputy Frazier noticed that Wehr was reaching and fidgeting with
something down near the floorboards of the vehicle. Deputy Frazier asked Wehr several
times to stop reaching down near the floorboards. Wehr continued to reach near the
floorboards of the vehicle and did not show his hands, causing Deputy Frazier to be
concerned that Wehr could have a weapon.
{¶7} Deputy Frazier requested assistance, which arrived shortly thereafter.
After back up had arrived, Wehr was removed from the vehicle and questioned as to
what he was doing reaching down near the floor. Deputy Frazier briefly checked the
floor to determine if there were any visible weapons. Seeing none, he became
concerned that Wehr might have secreted a weapon on his person. Deputy Frazier then
conducted a pat down search for officer safety. During the pat down, a pill bottle was Richland County, Case No. 14CA46 4
located in Wehr's sock in his right pant leg. Deputy Frazier removed the pill bottle and
found it to be an Advil bottle. When asked by Deputy Frazier what was inside the pill
bottle, Wehr responded that he did not know. Deputy Frazier opened the pill bottle and
found individually wrapped bindles of heroin and Oxycodone pills inside.
{¶8} Wehr was questioned again about the pill bottle. He indicated that he did
not know what was inside of the bottle. Wehr explained that the passenger had thrown
the pill bottle on the floor prior to exiting the vehicle and that Wehr had picked the bottle
up and tucked it into his sock.
{¶9} A free-air canine sniff was performed of the vehicle and the canine alerted
to both sides of the vehicle. During a search of the vehicle a kitchen plate, razor blade,
a cut straw and a set of digital scales were recovered from the area of the front
passenger side floorboards. These items are known to be associated with drug activity
according to Deputy Frazier’s training and experience.
{¶10} The state did not present any other evidence. Camp did not offer any
evidence or call any witnesses.
B. The Trial Court’s Decision.
{¶11} The trial court filed a judgment entry on May 14, 2014, granting Wehr’s
motion to suppress the evidence. The trial court did not find any issue with the officer's
contact with Wehr or the subsequent pat down of Wehr for officer safety. The trial court
found that the incriminating nature of the object, in this case an Advil bottle, was not
immediately apparent to Deputy Frazier and, therefore, he was not justified in removing
the bottle from the Appellee's person and opening it. Richland County, Case No. 14CA46 5
Assignment of Error
{¶12} The state raises one assignment of error,
{¶13} “I. THE TRIAL COURT ERRED WHEN IT GRANTED THE APPELLEE'S
MOTION TO SUPPRESS.”
Analysis
{¶14} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of
fact and is in the best position to resolve questions of fact and to evaluate witness
credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d
988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a
reviewing court must defer to the trial court's factual findings if competent, credible
evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.
Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111
Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has
accepted those facts as true, it must independently determine as a matter of law
whether the trial court met the applicable legal standard. See Burnside, supra, citing
State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,
generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);
Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That
is, the application of the law to the trial court's findings of fact is subject to a de novo
standard of review Ornelas, supra. Moreover, due weight should be given “to inferences Richland County, Case No. 14CA46 6
drawn from those facts by resident judges and local law enforcement officers.” Ornelas,
supra at 698, 116 S.Ct. at 1663.
Deputy Frazier’s Initial Contact with Wehr
{¶15} Contact between police officers and the public can be characterized in
three different ways. State v. Richardson, 5th Dist. Stark No. 2004CA00205, 2005–
Ohio–554, ¶23–27. The first is contact initiated by a police officer for purposes of
investigation. “[M]erely approaching an individual on the street or in another public place
[,]” seeking to ask questions for voluntary, uncoerced responses, does not violate the
Fourth Amendment. United States v. Flowers, 909 F.2d 145, 147(6th Cir. 1990). The
United State Supreme Court “[has] held repeatedly that mere police questioning does
not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115
L.Ed.2d 389 (1991); see also INS v. Delgado, 466 U.S. 210, 212, 104 S.Ct. 1758, 80
L.Ed.2d 247 (1984). “[E]ven when officers have no basis for suspecting a particular
individual, they may generally ask questions of that individual; ask to examine the
individual's identification; and request consent to search his or her luggage.” Bostick,
501 U.S. at 434-435, 111 S.Ct. 2382 (citations omitted).
The person approached, however, need not answer any question
put to him, and may continue on his way. Florida v. Royer (1983), 460
U.S. 491, 497–98. Moreover, he may not be detained even momentarily
for his refusal to listen or answer. Id. So long as a reasonable person
would feel free “to disregard the police and go about his
business,” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, Richland County, Case No. 14CA46 7
1552, 113 L.Ed.2d 690 (1991), the encounter is consensual and no
reasonable suspicion is required.
Bostick, 501 U.S. at 434, 111 S.Ct. 2382, 115 L.Ed.2d 389.
{¶16} The second type of contact is generally referred to as “a Terry stop” and is
predicated upon reasonable suspicion. Richardson, supra; Flowers, 909 F.2d at 147;
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). This temporary
detention, although a seizure, does not violate the Fourth Amendment. Under the Terry
doctrine, “certain seizures are justifiable ... if there is articulable suspicion that a person
has committed or is about to commit a crime” Florida, 460 U.S. at 498. In holding that
the police officer's actions were reasonable under the Fourth Amendment, Justice
Rehnquist provided the following discussion of the holding in Terry,
In Terry this Court recognized that a police officer may in
appropriate circumstances and in an appropriate manner approach a
person for purposes of investigating possible criminal behavior even
though there is no probable cause to make an arrest. The Fourth
Amendment does not require a police officer who lacks the precise level of
information necessary for probable cause to arrest to simply shrug his
shoulders and allow a crime to occur or a criminal to escape. On the
contrary, Terry recognizes that it may be the essence of good police work
to adopt an intermediate response. A brief stop of a suspicious individual,
in order to determine his identity or to maintain the status quo mo-
monetarily while obtaining more information, may be most reasonable in
light of the facts known to the officer at the time. Richland County, Case No. 14CA46 8
Adams v. Williams, 407 U.S. 143, 145–47, 92 S.Ct. 1921, 1923–24, 32 L.Ed.2d
612(1972).
{¶17} The third type of contact arises when an officer has “probable cause to
believe a crime has been committed and the person stopped committed it.” Richardson,
2005-Ohio-554, ¶27; Flowers, 909 F.2d at 147. A warrantless arrest is constitutionally
valid if:
“[a]t the moment the arrest was made, the officers had probable
cause to make it-whether at that moment the facts and circumstances
within their knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man in believing that the *
* * [individual] had committed or was committing an offense.”
State v. Heston, 29 Ohio St.2d 152, 155–156, 280 N.E.2d 376(1972), quoting Beck v.
Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142(1964). “The principal components
of a determination of reasonable suspicion or probable cause will be the events which
occurred leading up to the stop or search, and then the decision whether these
historical facts, viewed from the standpoint of an objectively reasonable police officer,
amount to reasonable suspicion or to probable cause.” Ornelas v. United States, 517
U.S. 690, 696, 116 S.Ct. 1657, 1661–1162(1996). A police officer may draw inferences
based on his own experience in deciding whether probable cause exists. See, e.g.,
United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589(1975).
{¶18} The Ohio Supreme Court has held that a police officer's statement “Hey,
come here a minute,” while nominally couched in the form of a demand, is actually a
request that a citizen is free to regard or to disregard. State v. Smith, 45 Ohio St.3d 255, Richland County, Case No. 14CA46 9
258–259, 544 N.E.2d 239, 242(1989), reversed sub nom. Smith v. Ohio, 494 U.S. 541,
110 S.Ct. 1288, 108 L.Ed.2d 464(1990); State v. Crossen, 5th Dist. Ashland No. 2010-
COA-027, 2011-Ohio-2509, ¶13.
{¶19} Upon review, under the totality of the circumstances, we conclude the
events in the case sub judice constituted a consensual encounter such that the Fourth
Amendment was not implicated. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct.
1870, 64 L.Ed.2d 497(1980). In this case, the officer approached a parked vehicle and
engaged in conversation with the driver after a passenger in the driver’s vehicle ran
from the vehicle. Deputy Frazier testifed he was concerned that a crime may have taken
place or that the driver was otherwise in need of assistance.
Terry pat-down of Wehr.
{¶20} Authority to conduct a pat down 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). Richland County, Case No. 14CA46 10
{¶21} When Deputy Frazier approached the car, the passenger exited the
vehicle and ran. Wehr immediately began digging around the floorboard area of the car.
Weir ignored several requests by Deputy Frazier to stop and to show his hands. Under
the totality of the circumstances, a reasonable officer could believe that Wehr may have
been reaching for a weapon. State v. Shrewsbury, 4th Dist. Ross. No. 13CA3402, 2014-
Ohio-716, ¶26. In Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 32 L.Ed.2d 612
(1972), a case also involving a Terry stop, the officer ordered the defendant to step out
of the car so he could see the defendant’s movements more clearly. Id. The defendant
ignored the officer’s order, and this provided ample reason for the officer to fear for his
safety. Id.
{¶22} In the case at bar, we find under the totality of the circumstances the pat
down in of Wehr was lawful because a reasonably prudent person in this situation would
have been justified to believe his safety was compromised.
Removal of the pill bottle from Wehr’s sock.
{¶23} The permissible scope of a Terry search is “a narrowly drawn authority to
permit 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
v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909(1968). “The purpose
of this limited search is not to discover evidence of crime, but to allow the officer to
pursue his investigation without fear of violence.” State v. Evans, 67 Ohio St.3d 405,
408, 618 N.E.2d 162, 166(1993), citing Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct.
1921, 1923, 32 L.Ed.2d 612, 617(1972). Richland County, Case No. 14CA46 11
{¶24} Although Terry limits the scope of the search to weapons, the discovery
of other contraband during a Terry search will not necessarily preclude its admissibility.
In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334(1993), the
United States Supreme Court adopted the “plain feel” doctrine as an extension of the
“plain view” doctrine. The Supreme Court stated,
If a police officer lawfully pats down a suspect’s outer clothing and
feels an object whose contour or mass makes its identity immediately
apparent, there has been no invasion of the suspect’s privacy beyond that
already authorized by the officer’s search for weapons; if the object is
contraband, its warrantless seizure would be justified by the same
practical considerations that inhere in the plain view context.
Dickerson, 508 U.S. at 375-376, 113 S.Ct. 2130, 124 L.Ed.2d 334. Accord, State v.
Evans, 67 Ohio St.3d 405, 414, 618 N.E.2d 162(1993), paragraph two of the syllabus.
{¶25} In the case at bar, Deputy Frazier testified that it was immediately
apparent that the object concealed in Wehr’s sock was a pill bottle. It is unusual for a
person to carry a pill bottle concealed in one’s sock. Coupled with the flight of the
passenger upon the approach of the police cruiser, Wehr’s reaching and fidgeting with
something near the floorboard of his car, and Wehr’s assertion that he did not know
what was in the Advil bottle, we find the removal of the pill bottle from Wehr’s sock to
permissible.
Deputy Frazier’s opening of the pill bottle.
{¶26} The Fourth Amendment to the United States Constitution, and Article I,
Section 14 of the Ohio Constitution proscribes, except in certain well-defined Richland County, Case No. 14CA46 12
circumstances, the search of property unless accomplished pursuant to a judicial
warrant issued upon probable cause. See, e.g., Skinner v. Railway Labor Executives’
Assn., 489 U.S. 602, 619, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989); Mincey v.
Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); Katz v. United
States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). That guarantee
protects alike the "traveler who carries a tooth brush and a few articles of clothing in a
paper bag,” and "the sophisticated executive with the locked attaché' case." United
States v. Ross, 456 U.S. 798, 822, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982). Smith
v. Ohio, 494 U.S. 541, 543, 110 Sup.Ct. 1288,108 L Ed. 2d 464(1990). Many a closed
container is accessible; opening it requires justification. See United States v. Chadwick,
433 U.S. 1, 14–15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977).
{¶27} This Court has observed,
If an object is in a closed container, the object “is not in plain view
and the container may not be opened unless the packing gives away the
contents.” Katz [Ohio Arrest, Search and Seizure (1997 Ed.) 214, Section
13.01] at 221, citing United States v. Williams (1994), 41 F.3d 192,
certiorari denied (1995), 514 U.S. 1056, 115 S.Ct. 1442, 131 L.Ed.2d 321.
State v. Smith, 5th Dist. Stark No. 1998CA00322, 1999 WL 744168(June 21, 19990) at
*3. The Ohio Supreme Court has held that “[t]he ‘immediately apparent’ requirement of
the ‘plain view’ doctrine is satisfied when police have probable cause to associate an
object with criminal activity.” State v. Halczyszak, 25 Ohio St.3d 301, 496 N.E.2d 925,
paragraph three of the syllabus (1986); see Arizona v. Hicks, 480 U.S. 321, 326, 107
S.Ct. 1149, 94 L.Ed.2d 347 (1987). “In ascertaining the required probable cause to Richland County, Case No. 14CA46 13
satisfy the ‘immediately apparent’ requirement, police officers may rely on their
specialized knowledge, training and experience [.]” Halczyszak, 25 Ohio St.3d 301, 496
N.E.2d 925 at paragraph four of the syllabus. The United States Supreme Court has
also explained that, in the context of determining whether contraband is in plain view,
“probable cause is a flexible, common-sense standard. It merely requires that the facts
available to the officer would ‘warrant a man of reasonable caution in the belief,’ that
certain items may be contraband or stolen property or useful as evidence of a crime; it
does not demand any showing that such a belief be correct or more likely true than
false.” Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)
(quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)).
“A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is
required.” Id. (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93
L.Ed. 1879 (1949); State v. Smith, 5th Dist. Stark No. 1998CA00322, 1999 WL 744168;
State v. Lorenzo, 9th Dist. Summit No. 26214, 2012-Ohio-3145, ¶4. Probable cause to
associate an object with criminal activity does not demand certainty in the minds of
police, but instead merely requires that there be “a fair probability” that the object they
see is illegal contraband or evidence of a crime. State v. George, 45 Ohio St.3d 325,
544 N.E.2d 640, paragraph one of the syllabus.
{¶28} In the case at bar, Deputy Frazier had probable cause to search the
container based upon the suspicious location where Wehr was storing the container, the
flight of the passenger from the automobile, Wehr’s reaching around toward the
floorboard area of the car, his refusal to show his hands and Wehr’s assertion that he
did not know what was inside the Advil bottle. In the case at bar, the container was Richland County, Case No. 14CA46 14
within the automobile at the time Deputy Frazier initiated his conversation with Wehr
and had he not discovered it, it would have left the scene with Wehr.
{¶29} Under the totality of the circumstances and given the information known to
Deputy Frazier at the time of the search, the evidence supports a finding that Deputy
Frazier had probable cause to associate the Advil bottle with criminal activity. Therefore,
Deputy Frazier had probable cause to open the Advil bottle.
{¶30} Accordingly, Deputy Frazier’s search of the Advil bottle did not violate
Wehr’s rights under the Fourth Amendment, and the court erred in granting Wehr’s
motion to suppress.
Conclusion
{¶31} We find that the trial court incorrectly decided the ultimate or final issue
raised in Wehr's motion to suppress, and further that the trial court failed to apply the
appropriate test or correct law to the findings of fact. State v. Curry, 95 Ohio App.3d 93,
96, 641 N.E.2d 1172(8th Dist. 1994); State v. Claytor, 85 Ohio App.3d 623, 627, 620
N.E.2d 906(4th Dist. 1993); State v. Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d
726(4th Dist. 1993); State v. Bickel, 5th Dist. Ashland No. 2006-COA-034, 2007-Ohio-
3517, ¶32. Richland County, Case No. 14CA46 15
{¶32} We find that Deputy Frazier had probable cause to associate the container
with criminal activity and his seizure and search of the container was justified under the
plain-view doctrine.
{¶33} For the forgoing reasons, the judgment of the Richland County Court of
Common Pleas, Ohio is reversed and this case is remanded for further proceedings
consistent with this opinion.
By Gwin, P.J.,
Farmer, J., and
Wise, J., concur