[Cite as State v. White, 2018-Ohio-18.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case Nos. 17CA10 : 17CA11 v. : : DECISION AND DEANDRE A. WHITE, : JUDGMENT ENTRY : Defendant-Appellant. : : RELEASED 01/02/2018
APPEARANCES:
Angela Miller, Jupiter, Florida, for defendant-appellant.
Kevin Rings, Washington County Prosecuting Attorney, and Nicole Tipton Coil, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for plaintiff-appellee.
Hoover, J. {¶1} Defendant-appellant, Deandre A. White (“White”), appeals his conviction and
sentence in the Washington County Court of Common Pleas. White was convicted of one count
of trafficking in heroin (F-2) with a forfeiture specification and, in a separate incident, one count
of trafficking in heroin (F-3). White was sentenced to eight years imprisonment for his F-2
conviction, and to 3 years imprisonment for the F-3 conviction, with the sentences to be served
concurrently to one another.
{¶2} Regarding his F-2 trafficking in heroin conviction, White contends that the trial
court erred in denying his motion to suppress evidence because law enforcement had no legal
authority to make the investigative stop at issue. We disagree. The law enforcement agency had
information from an informant that White was involved in narcotics trafficking; and independent Washington App. Nos. 17CA10, 17CA11 2
police work verified the information. Therefore, reasonable suspicion existed to justify the
investigative stop. White also contends that his trial counsel provided ineffective assistance by
failing to file a motion to suppress evidence found as a result of a pat-down search of his person;
and alternatively, that the trial court erred by refusing to allow him to present argument as to the
legality of the pat-down search at the motion to suppress hearing. However, we find no merit to
White’s arguments.
{¶3} Regarding the F-3 trafficking in heroin conviction, White contends that the trial
court erred in denying his motion to suppress evidence because the police unreasonably
prolonged a traffic stop in order to conduct a canine sniff of his vehicle. We disagree. Because
the police were still in the process of writing the traffic ticket when the canine arrived and
conducted the sniff, and thus the stop was not unlawfully extended, we conclude that White’s
fourth amendment rights were not violated.
{¶4} Accordingly, we affirm White’s conviction and sentence.
I. Facts and Procedural History
{¶5} This case originated from a narcotics investigation involving the Washington
County Major Crimes Task Force. After receiving complaints of suspicious activity at a house in
Marietta, law enforcement officers conducted surveillance of the house. The officers recognized
individuals with known criminal narcotics histories going into and out of the house. The officers
also observed a black male and a white female repeatedly go to and from the house; but they did
not know their identities.
{¶6} Law enforcement identified the main resident of the house as Emily Welch. At the
time of the surveillance, Welch was already under indictment or about to be indicted on drug
related charges. The officers decided to use a confidential informant to complete a controlled Washington App. Nos. 17CA10, 17CA11 3
purchase of drugs from Welch. After the confidential informant was successful in purchasing
heroin from Welch, the officers obtained a search warrant to search Welch’s house.
{¶7} During the execution of the search warrant, approximately an hour after the
controlled purchase, Welch admitted to selling heroin to the confidential informant; however,
Welch said that she was selling the heroin at the direction of Meriah Shay Dunn. Dunn was
known to local law enforcement, and was one of the individuals law enforcement had seen going
to and from the house. Welch told law enforcement that Dunn had been at the residence the day
of the controlled purchase with the previously mentioned, unidentified black male and white
female. Welch identified that black male as “Tony or Grizz”, and claimed that he was Dunn’s
supplier of heroin and crack cocaine. Welch also told police that after completing the controlled
purchase, she delivered money to Dunn at a car wash near the Sierra Apartments. According to
Welch, when she delivered the money, Dunn was inside of a black SUV with chrome accents
along with Tony/Grizz. Welch stated that there was crack cocaine and firearms inside the
vehicle.
{¶8} Upon receiving this information from Welch, law enforcement officers traveled to
a Lowe’s parking lot near the Sierra Apartments in Marietta. While in the parking lot, they
observed a vehicle matching the description provided by Welch driving slowly through the
Sierra Apartments. Tony/Grizz, the black male that they had seen earlier in the day at Welch’s
house, was driving the vehicle. A short time later, the vehicle left the apartments and traveled to
the Lowe’s parking lot. Three individuals, including Tony/Grizz, then exited the vehicle and
went into a China Wind and Subway restaurant. About five to ten minutes later the three
individuals returned to the black SUV and a PT Cruiser pulled in next to it. The driver of the PT
cruiser, who the officers knew to have an extensive drug history, then got into the SUV. The Washington App. Nos. 17CA10, 17CA11 4
SUV did a quick loop around the parking lot before parking again in the same exact parking
space it had been in before.
{¶9} Once the black SUV returned to the parking space, law enforcement officers
decided to stop the vehicle by surrounding it with their own vehicles. The individual known as
Tony/Grizz was identified as White. A search of the vehicle revealed the presence of narcotics
and money. As a result, White was indicted in Case No. 16CR67 on the following offenses: one
count of trafficking in heroin, a second-degree felony, in violation of R.C. 2925.03(A)(2) &
(C)(6)(e), with a forfeiture specification; one count of possession of heroin, a second-degree
felony, in violation of R.C. 2925.11(A) & (C)(6)(d); one count of aggravated trafficking in
drugs, a third-degree felony, in violation of R.C. 2925.03(A)(2) & (C)(1)(c), with a forfeiture
specification; one count of aggravated possession of drugs, a third-degree felony, in violation of
R.C. 2925.11(A) & (C)(1)(b); and one count of trafficking in heroin, a third-degree felony, in
violation of R.C. 2925.03(A)(1) & (C)(6)(d).
{¶10} White pleaded not guilty to all counts of the indictment in Case No. 16CR67.
{¶11} White, while out on bond and awaiting trial was involved in another traffic stop in
Washington County. On this occasion, White was stopped for speeding and for following
another vehicle too closely. Before stopping the vehicle for the traffic infractions, police
confirmed that White had no active warrants and that his license was valid.
{¶12} Police records indicate that the traffic stop was initiated at 10:41 a.m. An officer
contacted dispatch at 10:42 a.m., stating that White’s vehicle was on Putnam Street. At 10:44
a.m., another call was made for assistance because the stop was blocking traffic. When law
enforcement officers approached the vehicle White stated he was in Marietta to visit his lawyer,
and actually made a phone call to his lawyer. White appeared nervous, but was cooperative with Washington App. Nos. 17CA10, 17CA11 5
police. Within the time it took officers to briefly question White, and to obtain his driver’s
license, White’s attorney, Ray Smith, arrived at the scene. Smith inquired about the reason for
the stop and asked if White was free to leave. Smith was told that White was not free to go, and
that a canine unit was on its way to the scene. Upon Smith’s arrival, Sergeant Matt Anderson
returned to a police vehicle and began to write a traffic ticket.
{¶13} A canine conducted a sniff of the vehicle and indicated on the vehicle for the
presence of narcotics at approximately 10:55 a.m. White was then removed from the vehicle and
a search of the vehicle resulted in the confiscation of heroin and methamphetamine. White was
then placed under arrest and Sergeant Anderson ceased writing the traffic ticket. As a result of
the search, White was indicted in Case No. 16CR135 on the following offenses: one count of
trafficking in heroin, a third-degree felony, in violation of R.C. 2925.03(A)(2) & (C)(6)(d), with
a forfeiture specification; one count of possession of heroin, a third-degree felony, in violation of
R.C. 2925.11(A) & (C)(6)(c); one count of aggravated trafficking in drugs, a third-degree felony,
in violation of R.C. 2925.03(A)(2) & (C)(1)(c), with a forfeiture specification; and one count of
aggravated possession of drugs, a third-degree felony, in violation of R.C. 2925.11(A) &
(C)(1)(b).
{¶14} White pleaded not guilty to all counts of the indictment in Case No. 16CR135.
{¶15} White filed a motion to suppress evidence in each case, challenging the validity of
the stops. The trial court held a hearing on both motions to suppress; and ultimately, the motions
were overruled. Thereafter, under a plea agreement, White agreed to plead no contest to the F-2
trafficking in heroin charge and specification in Case No. 16CA67, and to the F-3 trafficking in
heroin charge in Case No. 16CR135. In exchange, the remaining charges in both cases were
dismissed. The trial court found White guilty of the offenses and sentenced him to eight years Washington App. Nos. 17CA10, 17CA11 6
imprisonment for the F-2 charge, and to three years imprisonment for the F-3 charge, and
ordered that the sentences run concurrently to each other. The trial court also ordered that
$2,652.00 and several cell phones be forfeited pursuant to the forfeiture specification in Case No.
16CR67. After sentencing, White appealed his convictions in both Case No. 16CR67 and Case
No. 16CR135. We consolidated the appeals sua sponte and now address them together.
II. Assignments of Error
{¶16} White assigns the following errors for our review:
First Assignment of Error:
The trial court erred in denying Appellant White’s Motions to Suppress Evidence. Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 14 of the Ohio Constitution. Second Assignment of Error:
Appellant White was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when his counsel failed to challenge the Terry pat-down. Third Assignment of Error:
The trial court erred in refusing to allow White to argue that evidence obtained from the pat-down on July 14, 2015 should be suppressed. Fourth, Fifth and Fourteenth Amendments to the United States Constitution, Article I, Section 14 of the Ohio Constitution.
III. Law and Analysis
A. Motions to Suppress
{¶17} In his first assignment of error, White contends that the trial court erred by
overruling his motions to suppress evidence. Washington App. Nos. 17CA10, 17CA11 7
1. Standard of Review
{¶18} Appellate review of a motion to suppress presents a mixed question of law and
fact. State v. Gurley, 2015-Ohio-5361, 54 N.E.3d 768, ¶ 16 (4th Dist.), citing State v. Roberts,
110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. At a suppression hearing, the trial
court acts as the trier of fact and is in the best position to resolve factual questions and evaluate
witness credibility. Id.; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. Thus, when reviewing a ruling on a motion to suppress, we defer to the trial court’s findings
of fact if they are supported by competent, credible evidence. Gurley at ¶ 16, citing State v.
Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist.2000). However, “[a]ccepting
those facts as true, we must independently determine whether the trial court reached the correct
legal conclusion in analyzing the facts of the case.” Id., citing Roberts at ¶ 100.
2. Fourth Amendment Protections
{¶19} “ ‘The Fourth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.’ ” State v.
Shrewsberry, 4th Dist. Ross No. 13CA3402, 2014-Ohio-716, ¶ 14, quoting State v. Emerson, 134
Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15. “This constitutional guarantee is
protected by the exclusionary rule, which mandates the exclusion of the evidence obtained from
the unreasonable search and seizure at trial.” Id., citing Emerson at ¶ 15; see also State v.
Lemaster, 4th Dist. Ross No. 11CA3236, 2012-Ohio-971, ¶ 8 (“If the government obtains
evidence through actions that violate an accused’s Fourth Amendment rights, that evidence must
be excluded at trial.”).
3. The Investigative Stop in Case No. 16CR67 Was Lawful Washington App. Nos. 17CA10, 17CA11 8
{¶20} White argues that because he did not commit any traffic violations, and because
officers did not observe him selling drugs, the stop of his vehicle in the Lowe’s parking lot near
the China Wind restaurant was unlawful. We disagree.
{¶21} An investigative stop under the Fourth Amendment, often referred to as
a Terry stop, allows an officer to briefly stop and temporarily detain individuals in order to
investigate possible criminal activity. State v. Staten, 4th Dist. Athens No. 03CA1, 2003–Ohio–
4592, ¶ 22, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “ ‘To
conduct an investigatory stop, the officer must be able to point to specific and articulable facts
which, taken together with rational inferences derived from those facts, give rise to a reasonable
suspicion that the individual is engaged or about to be engaged in criminal activity.’ ” State v.
Eatmon, 4th Dist. Scioto No. 12CA3498, 2013–Ohio–4812, ¶ 13, quoting State v. Kilbarger, 4th
Dist. Hocking No. 11CA23, 2012–Ohio–1521, ¶ 15. “ ‘The propriety of an investigative stop by
a police officer must be viewed in light of the totality of the surrounding circumstances.’
” Id., quoting State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of
the syllabus.
{¶22} Furthermore, the totality of the circumstances approach “allows officers to draw
on their own experience and specialized training to make inferences from and deductions about
the cumulative information available to them that ‘might well elude an untrained person.’
” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002),
quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Thus,
when a court reviews an officer’s reasonable suspicion determination, a court must give “due
weight” to factual inferences drawn by resident judges and local law enforcement officers. Id. at
273–274. Washington App. Nos. 17CA10, 17CA11 9
{¶23} Here, with the above principles in mind, we conclude that the investigative stop of
White’s vehicle in the parking lot was justified because of the existence of various factors giving
rise to a reasonable suspicion that criminal activity was afoot. Notably, White had been spotted
earlier in the day at a residence known to have ties to drug trafficking; the vehicle he was driving
was purported to contain drugs and weapons; he was purported to be a supplier of heroin and
crack cocaine to local drug traffickers; and police observed White engage in activity regularly
associated with drug trafficking – i.e., picking up an individual and making a quick loop with the
individual and then dropping the individual off at the place of origin.
{¶24} While some of the information relied upon by the officers came from Welch, a
known drug user and trafficker, it should be noted that the police corroborated much of the
information through independent police work. Compare State v. Shepherd, 122 Ohio App.3d
358, 366, 701 N.E.2d 778 (2d Dist.1997) (in assessing an informant’s reliability a presumption
of reliability is not extended to an informant who is privy to information solely because he is
himself implicated in criminal activity), with State v. Campbell, 68 Ohio App.3d 688, 691, 589
N.E.2d 452 (1st Dist.1990) (a tip which by itself lacks sufficient indicia of reliability, may still
provide reasonable suspicion justifying an investigative detention if it is sufficiently corroborated
through independent police work). For instance, the evidence presented at the motion to suppress
hearing established that the police observed White at Welch’s residence, that the police verified
that White was driving a vehicle matching the description provided by Welch, and that they
observed White engage in activity that in law enforcement experience is typically associated
with drug activity, i.e. the circling of the parking lot.
{¶25} Thus, based upon the totality of the circumstances, law enforcement had
reasonable suspicion necessary to conduct the investigative stop. Washington App. Nos. 17CA10, 17CA11 10
4. The Canine Sniff and Duration of Stop in Case No. 16CR135 Was Lawful
{¶26} With regards to Case No. 16CR135, White does not allege that the initial traffic
stop of his vehicle was unlawful. Rather, he contends that the canine sniff of his vehicle
unlawfully extended the traffic stop. Again, we disagree. Rather, after reviewing the record, we
conclude that the purpose of the initial stop had not been concluded at the time the canine
indicated on the vehicle; and the stop was not unlawfully extended.
{¶27} Typically, “[w]hen a law enforcement officer stops a vehicle for a traffic
violation, the officer may detain the motorist for a period of time sufficient to issue the motorist a
citation and to perform routine procedures such as a computer check on the motorist’s driver’s
license, registration and vehicle plates.” State v. Aguirre, 4th Dist. Gallia No. 03CA5, 2003-
Ohio-4909, ¶ 36, citing State v. Carlson, 102 Ohio App.3d 585, 598, 657 N.E.2d 591 (9th
Dist.1995); see also Rodriguez v. United States, -- U.S. --, 135 S.Ct. 1609, 1615, 191 L.Ed.2d
492 (2015) (ordinary inquiries incident to a traffic stop include “checking the driver’s license,
determining whether there are outstanding warrants against the driver, and inspecting the
automobile’s registration and proof of insurance”). “ ‘In determining if an officer completed
these tasks within a reasonable length of time, the court must evaluate the duration of the stop in
light of the totality of the circumstances and consider whether the officer diligently conducted
the investigation.’ ” Id., citing State v. Cook, 65 Ohio St.3d 516, 521-522, 605 N.E.2d 70 (1992)
(fifteen-minute detention was reasonable); United States v. Sharp, 470 U.S. 675, 105 S.Ct. 1568
(1985) (twenty-minute detention was reasonable).
{¶28} A lawfully detained vehicle may be subjected to a canine check of the vehicle’s
exterior even without the presence of a reasonable suspicion of drug-related activity. State v.
Rusnak, 120 Ohio App.3d 24, 28, 696 N.E.2d 633 (6th Dist.1997). Both Ohio courts and the Washington App. Nos. 17CA10, 17CA11 11
United States Supreme Court have determined that “the exterior sniff by a trained narcotics dog
to detect the odor of drugs is not a search within the meaning of the Fourth Amendment to the
Constitution.” State v. Jones, 4th Dist. Washington No. 03CA61, 2004–Ohio–7280, ¶ 24; United
States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). “Thus, a canine check of a
vehicle may be conducted during the time period necessary to effectuate the original purpose of
the stop.” Jones at ¶ 24.
{¶29} The Supreme Court’s recent decision in Rodriguez v. United States, supra, further
outlines the limits the Fourth Amendment places on the duration and scope of a traffic stop. In
Rodriguez, a police officer issued a written warning to the defendant Rodriguez during a traffic
stop. Id. at 1613. After the officer returned Rodriguez’s information and “ ‘ * * * got all the
reason[s] for the stop out of the way[,] * * *’ ” the officer asked for permission to walk his dog
around Rodriguez’s vehicle. Id. After Rodriguez refused to consent to the request, the officer
instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the patrol car
to wait for a second officer to arrive. Id. The dog later conducted a sniff and alerted to the
presence of drugs in the vehicle. Id. A search of the vehicle revealed a large bag of
methamphetamine. Id.
{¶30} The Supreme Court held that while a police officer “may conduct certain
unrelated checks during an otherwise lawful traffic stop * * * he may not do so in a way that
prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an
individual.” Id. at 1615. Accordingly, the Court concluded that police officers may not extend an
otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. Id.
at 1614-1617. Washington App. Nos. 17CA10, 17CA11 12
{¶31} As indicated above, we conclude that the purpose of the initial stop had not
concluded at the time the canine indicated on the vehicle. White’s vehicle was stopped at
approximately 10:41 a.m. An officer contacted dispatch at 10:42 a.m., stating that White’s
vehicle was on Putnam Street. At 10:44 a.m., another call was made for assistance because the
stop was blocking traffic. When law enforcement officers approached the vehicle White stated he
was in Marietta to visit his lawyer, and actually made a phone call to his lawyer. White appeared
nervous, but was cooperative with police. Within the time it took officers to briefly question
White, and to obtain his driver’s license, White’s attorney, Ray Smith, arrived at the scene.
Smith inquired about the reason for the stop and asked if White was free to leave. Smith was told
that White was not free to go, and that a canine unit was on its way to the scene. Upon Smith’s
arrival, Sergeant Matt Anderson returned to a police vehicle and began to write a traffic ticket.
{¶32} Sergeant Anderson had not even concluded writing a citation or written warning
to White when the canine conducted a sniff of the vehicle and indicated on the vehicle for the
presence of narcotics at approximately 10:55 a.m. Thus, the canine sniff was conducted
approximately 14 minutes after White was initially stopped, and before White had been given a
citation or warning.
{¶33} The testimony during the suppression hearing indicated that traffic citations are
usually completed within 20 minutes. A partially completed traffic citation was admitted as
evidence. After narcotics were found, White was arrested; and police ceased writing the ticket.
The officers indicated that they acted urgently in an effort to complete the stop because White’s
vehicle was blocking traffic in downtown Marietta.
{¶34} Based on this record, it appears that the stop was conducted and investigated in a
diligent manner. The law enforcement officers present checked White’s information, contacted Washington App. Nos. 17CA10, 17CA11 13
dispatch, requested a canine, dealt with Attorney Smith, and walked the dog around the vehicle
all within 14 minutes of the initial stop, and within the time period necessary to effectuate the
original purpose of the traffic stop and prior to completion of a written citation. This is not a case
where conducting the sniff prolonged, or added time to, the stop. Thus, we conclude that the
actions of law enforcement did not run afoul of the Fourth Amendment or Rodriguez, supra.
{¶35} Based on the foregoing, we conclude that the trial court did not err in denying
White’s motions to suppress evidence. Accordingly, his first assignment of error is overruled.
B. Ineffective Assistance of Counsel
{¶36} In his second assignment of error, White contends that he received ineffective
assistance of counsel when his trial attorney failed to file a motion to suppress evidence seized
by the officer during his pat-down search of White that occurred subsequent to the investigative
stop in Case No. 16CR67. It should be noted that at the motion to suppress hearing conducted in
Case No. 16CR67, defense counsel attempted to elicit testimony regarding the legality of the pat-
down search. The State objected. The trial court ruled that because the written motion only
challenged the validity of the stop, defense counsel could not expand the scope of the motion by
contesting the validity of the pat-down search.
{¶37} To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) deficient performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but
for counsel’s errors, the result of the proceeding would have been different. State v. Short, 129
Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either part of the test is fatal
to the claim. Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). Washington App. Nos. 17CA10, 17CA11 14
“Because this issue cannot be presented at trial, we conduct the initial review.” State v. Plymale,
4th Dist. Gallia No. 15CA1, 2016–Ohio–3340, ¶ 34.
{¶38} The defendant has the burden of proof because in Ohio, a properly licensed
attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860
N.E.2d 77, ¶ 62. In reviewing the claim of ineffective assistance of counsel, we must indulge in
“a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” (Quotations
omitted.) Strickland at 689.
{¶39} “ ‘Failing to file a motion to suppress does not constitute ineffective assistance of
counsel per se. To establish ineffective assistance of counsel for failure to file a motion to
suppress, a defendant must prove that there was a basis to suppress the evidence in question.’ ”
State v. Williams, 4th Dist. Scioto No. 10CA3381, 2012-Ohio-6083, ¶ 15, quoting State v.
Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65. Claims of ineffective
assistance are rejected when counsel’s failure to file a suppression motion was a tactical
decision, there was no reasonable probability of success, or there was no prejudice. State v.
Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859 (2001). We must presume that trial counsel was
effective if counsel “could have reasonably decided that filing a suppression motion would be a
futile act, even if there is some evidence to support a motion.” State v. Walters, 4th Dist. Adams
No. 12CA949, 2013-Ohio-772, ¶ 20.
{¶40} Following examination of the record, it is unclear what evidence was seized
during the alleged pat-down search of White’s person1, and whether the pat-down search
1 In his appellate brief, White contends that money and a cell phone were confiscated as a result of a pat-down search. However, this assertion cannot be verified upon review of the record. Washington App. Nos. 17CA10, 17CA11 15
occurred as incident to arrest, as a frisk for weapons prior to arrest, or if White was even arrested
at all on the date of the incident. In other words, the record lacks sufficient information for us to
determine whether a motion to suppress would have been granted. “ ‘Where the record is not
clear or lacks sufficient evidence to determine whether a suppression motion would have been
successful, a claim for ineffective assistance of counsel cannot be established.’ ” State v. James,
4th Dist. Ross No. 13CA3370, 2013-Ohio-5475, ¶ 22, quoting State v. Parkinson, 5th Dist. Stark
No. 1995CA00208, 1996 WL 363435, *3 (May 20, 1996).
{¶41} Therefore, we find that White has failed to show that a motion to suppress would
have had a reasonable probability of success. Accordingly, White has failed to show that his
counsel’s performance was ineffective, and his second assignment of error is overruled.
C. Scope of Motion to Suppress in Case No. 16CR67
{¶42} In his third assignment of error, White contends that the trial court erred by
refusing to allow him to argue that evidence obtained from the alleged pat-down in Case No.
16CR67 should be suppressed.
{¶43} As previously noted, defense counsel argued at the motion to suppress hearing
conducted in Case No. 16CR67, that White should be able to challenge the legality of the alleged
pat-down search. The State objected; and the trial court ruled that because the written motion
only challenged the validity of the stop, defense counsel could not expand the scope of the
motion by contesting the validity of the pat-down search.
{¶44} The actual written motion to suppress filed in Case No. 16CR67 stated as follows:
Now comes Defendant, by and through Counsel, and respectfully requests this
Court for an order suppressing all evidence obtained from a traffic stop which
occurred on July 14, 2015, at Marietta, Washington County, Ohio. The stop of the Washington App. Nos. 17CA10, 17CA11 16
Defendant lacked reasonable suspicion based on articulable facts and violated his
Constitutional Rights under the Fourth Amendment to the United States
Constitution and Article I, Section 14, of the Ohio Constitution. The Defendant
would ask for a hearing on this motion at the Court’s earliest convenience.
{¶45} “[A] motion to suppress must ‘state with particularity the legal and factual issues
to be resolved,’ thereby placing the prosecutor and court ‘on notice of those issues to be heard
and decided by the court and, by omission, those issues which are otherwise being waived.’
” Columbus v. Ridley, 2015–Ohio–4968, 50 N.E.3d 934, ¶ 23 (10th Dist.), quoting State v.
Shindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994); see also Crim.R. 47 (noting that a pre-
trial motion, including a motion to suppress under Crim.R. 12(C)(3), must “state with
particularity the grounds upon which it is made * * *.”). Thus, White’s failure to raise this
particular issue in his written motion to suppress constituted a waiver, or forfeiture of the
argument. State v. Taylor, 10th Dist. Franklin No. 12AP-283, 2012-Ohio-6200, ¶¶ 10, 12
(“defendant did not preserve in his motion to suppress the issue of whether the initial stop was
illegal; he argued only that the subsequent search of the vehicle was inappropriate * * *”).
Accordingly, the trial court did not err by refusing to allow White to present argument on the
legality of the pat-down search at the suppression hearing. His third assignment of error is
overruled.
IV. Conclusion
{¶46} Having overruled all of White’s assignments of error, we affirm the judgment of
the trial court.
JUDGMENT AFFIRMED. Washington App. Nos. 17CA10, 17CA11 17
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J., and Abele, J.: Concur in Judgment and Opinion.
For the Court
By: ____________________________ Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.