State v. Arrasmith , 2014 Ohio 4173 ( 2014 )

[Cite as State v. Arrasmith, 2014-Ohio-4173.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-09-031
: OPINION
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:
ERIC N. ARRASMITH, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CRI20130033
Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main
Street, London, Ohio 43140, for plaintiff-appellee
Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, for
defendant-appellant
PIPER, J.
{¶ 1} Appellant, Eric N. Arrasmith, appeals a decision of the Madison County Court of
Common Pleas denying his motion to suppress. For the reasons stated below, we affirm the
decision of the trial court.
{¶ 2} The Madison County Sheriff's Office Drug Task Force (Drug Task Force) was
conducting GPS surveillance of a vehicle owned and believed to be driven by a suspected
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heroin trafficker, Danny Lee Sargent. Pursuant to a warrant, the Drug Task Force had been
monitoring the vehicle by a GPS tracking device for a month. The information gathered by
the GPS unit indicated that the vehicle would travel to Dayton, Ohio, where the occupants
would allegedly steal items from stores. Additionally, the information indicated the
participants then sold the stolen items, used the proceeds to purchase heroin, and sold the
heroin in London, Ohio.
{¶ 3} On February 14, 2013, the Drug Task Force was conducting active surveillance
of Sargent's vehicle. On that day, the vehicle had been in Dayton for approximately six hours
but the Drug Task Force members were unaware if Sargent or any of the vehicle's occupants
had been successful in purchasing drugs. As the vehicle was returning to Madison County,
the Drug Task Force arranged with Madison County Sheriff Deputy Roger Heflin to stop the
vehicle if he observed any traffic violations.
{¶ 4} There were three occupants in the vehicle, Sargent, who was driving the
vehicle, Jarrod Mickle, who was seated in the front passenger seat, and Arrasmith, who sat in
the backseat of the car. Deputy Heflin was aware that the vehicle as well as Sargent and
Mickle were frequently involved in heroin transactions.
{¶ 5} Deputy Heflin began watching the vehicle for any traffic violations and observed
it failing to signal a turn. Deputy Heflin then attempted to initiate a traffic stop by activating
his cruiser lights and using his siren with intermittent burst of sound. Despite the cruiser
lights and audible signals, the vehicle continued to drive for approximately a mile during
which time Deputy Heflin observed considerable movement by Sargent, Mickle, and
Arrasmith. Specifically, Deputy Heflin saw Arrasmith bend over in his seat toward the floor,
appearing as though maybe he was trying to hide something in the area of his feet.
Eventually, with the assistance of another law enforcement vehicle, Sargent's vehicle was
stopped.
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{¶ 6} Once the vehicle came to a stop, law enforcement officers ordered Sargent,
Mickle, and Arrasmith to exit the car. There were three officers at the scene and Deputy
Heflin was assigned to Arrasmith. Deputy Heflin was concerned for his safety due to the
lengthy amount of time the vehicle took to stop and the furtive movements the occupants
made while in the car. Therefore, Deputy Heflin instructed Arrasmith to place his hands on
Sargent's vehicle so that he could perform a pat-down. During the pat-down, Arrasmith
became agitated and began to tense, flex his arms, and push off the car with his hands.
Deputy Heflin became concerned that Arrasmith would engage in a physical altercation with
him and advised Arrasmith to remain still. Failing to comply, Arrasmith continued his unusual
body posturing and Deputy Heflin decided it best to handcuff Arrasmith for officer safety.
{¶ 7} Deputy Heflin then resumed with the pat-down and felt a bulge in Arrasmith's
right sock. Deputy Heflin didn't believe that the bulge was a weapon and spontaneously
asked Arrasmith what the bulge was. Arrasmith replied that the bulge "was not his, but [that]
he was asked to hold it" by Sargent. Deputy Heflin removed the bulge and found that it was
a clear plastic bag that contained a number of clear capsules. The capsules were later
discovered to contain heroin.
{¶ 8} On March 13, 2013, Arrasmith was indicted for possession of heroin, in
violation of R.C. 2925.11(A). Arrasmith moved to suppress the evidence and the trial court
held a hearing regarding the motion. The court overruled Arrasmith's motion reasoning that
the initial traffic stop and the pat-down of Arrasmith were constitutionally valid and Deputy
Heflin properly removed the drugs from Arrasmith's sock as the totality of the circumstances
demonstrated probable cause for Deputy Heflin to believe the bulge was heroin. Thereafter,
Arrasmith entered a "no contest" plea, was found guilty of possessing heroin and sentenced
to a one-year term of imprisonment. Arrasmith now appeals, asserting a single assignment
of error:
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{¶ 9} THE COURT ERRED BY OVERRULING THE DEFENDANT'S MOTION TO
SUPPESS [sic].
{¶ 10} Arrasmith challenges the trial court's decision to deny his motion to suppress
the heroin found in his sock. Arrasmith argues that the drugs should have been suppressed
because Deputy Heflin did not have the authority to remove the drugs. Specifically,
Arrasmith maintains that the drugs could not be removed pursuant to the "plain feel" doctrine
during a Terry pat-down because the incriminating nature of the bulge was not immediately
apparent. Arrasmith also argues that the drugs should be suppressed because he was "in
custody" for purposes of Miranda but not given Miranda warnings.
{¶ 11} Appellate review of a ruling on a motion to suppress presents a mixed question
of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶
12. Acting as the trier of fact, the trial court is in the best position to resolve factual questions
and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to
suppress, a reviewing court is bound to accept the trial court's findings of fact if they are
supported by competent, credible evidence. Id. An appellate court, however, independently
reviews the trial court's legal conclusions based on those facts and determines, without
deference to the trial court's decision, whether as a matter of law, the facts satisfy the
appropriate legal standard. Id.
{¶ 12} Arrasmith initially challenges the admission of the heroin based on his
argument that the seizure of the drugs exceeded the scope of a Terry search. Both the
Fourth Amendment to the United States Constitution and Section 14, Article 1 of the Ohio
Constitution prohibits unreasonable searches and seizures. "For a search or seizure to be
reasonable under the Fourth Amendment, it must be based upon probable cause and
executed pursuant to a warrant." State v. Moore, 90 Ohio St. 3d 47, 49 (2000). However, a
police officer may briefly stop and detain an individual without an arrest warrant or probable
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cause for an arrest in order to investigate the officer's reasonable suspicion of criminal
activity. Terry v. Ohio, 392 U.S. 1, 19-21, 188 S. Ct. 1868 (1967); State v. Bobo, 37 Ohio
St.3d 177 (1988).
{¶ 13} During a lawful traffic stop, police may order passengers out of the vehicle.
Maryland v. Wilson, 519 U.S. 408, 414, 117 S. Ct. 882 (1997). Police may conduct a limited
protective search for concealed weapons if police reasonably believe that a suspect may be
armed or a danger to the officers or to others. State v. Reiley, 12th Dist. Clinton Nos.
CA2004-12-028, CA2004-12-029, 2005-Ohio-3224, ¶ 4, citing Terry at 27 and Bobo at
paragraph two of the syllabus. "The right to frisk is virtually automatic when individuals are
suspected of committing a crime, like drug trafficking, for which they are likely to be armed."
Id., quoting State v. Jordan, 104 Ohio St. 3d 21, 2004-Ohio-6085, ¶ 61.
{¶ 14} The facts and circumstances apparent to Deputy Heflin at the time of the stop
and detention led him to believe that Arrasmith may have been involved in drug trafficking.
Thus, Deputy Heflin's right to frisk Arrasmith for weapons was "virtually automatic." The next
question is whether Deputy Heflin exceeded the scope of the Terry search when he removed
the bulge from Arrasmith's sock.
{¶ 15} A Terry search is limited in scope to a pat-down search of an individual's outer
clothing for weapons. Terry at 29. The purpose of a Terry search is to protect the officer.
State v. Evans, 67 Ohio St. 3d 405, 414 (1993). "The protective pat down under Terry is
limited to this purpose and cannot be employed by the searching officer to search for
evidence of a crime." Id.
{¶ 16} While Terry limits the scope of a search to weapons, contraband discovered
during such a search is not automatically inadmissible at trial. Under the "plain feel" doctrine,
if, during a pat-down, the officer feels an object whose contour or mass makes its identity
immediately apparent as contraband, the officer may seize the object. State v. Davis, 12th
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Dist. Preble No. CA2006-10-024, 2007-Ohio-4360, ¶ 26, citing Minnesota v. Dickerson, 508
U.S. 366, 375-376, 113 S. Ct. 2130 (1993). If the illegal nature of the suspicious object is not
immediately apparent, the officer is not permitted to further manipulate the item to identify its
nature. Dickerson at 375-376. Police must have probable cause to associate the object with
criminal activity based on the totality of the surrounding circumstances to satisfy the
"immediately apparent" requirement. Id.
{¶ 17} Arrasmith argues that Deputy Heflin exceeded the scope of the Terry search
and could not remove the drugs under the "plain feel" doctrine because the incriminating
nature of the bulge was not immediately apparent. Under all of the circumstances, even
excluding Arrasmith's response to Deputy Heflin, it was immediately apparent Arrasmith was
concealing contraband. Furthermore, we find that the seizure of the drugs was proper
because Deputy Heflin had probable cause to believe Arrasmith had drugs and exigent
circumstances existed.
{¶ 18} As stated above, a search or seizure is reasonable under the Fourth
Amendment if it is based upon probable cause and executed pursuant to a warrant. Katz v.
United States, 389 U.S. 347, 357, 88 S. Ct. 507 (1967). "Probable cause exists if the facts
and circumstances known to the officer warrant a prudent man in believing that [an] offense
has been committed." State v. Baker, 12th Dist. Warren No. CA2009-06-079, 2010-Ohio-
1289, ¶ 51, quoting Henry v. United States, 361 U.S. 98, 102, 80 S. Ct. 168 (1959). A court
must review the totality of the circumstances known to the officer at the time of the search to
determine if the officer had probable cause to conduct the search. State v. Aslinger, 12th
Dist. Preble No. CA2011-11-014, 2012-Ohio-5436, ¶ 13, citing Beck v. Ohio, 379 U.S. 89, 91,
85 S. Ct. 223 (1964). If an officer has probable cause, the officer may conduct a search
without a warrant if an exception to the warrant requirement exists. State v. Young, 12th
Dist. Warren No. CA2011-06-066, 2012-Ohio-3131, ¶ 17.
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{¶ 19} In this case, while the initial stop, detention, and pat-down were in the nature of
a Terry stop, the encounter quickly transformed and Deputy Heflin had probable cause to
believe that Arrasmith was involved in drug activity and that the bulge contained drugs.
Deputy Heflin was aware that the vehicle Arrasmith was riding in was used to traffic heroin
from Dayton to London, two of the occupants of the vehicle were known drug traffickers, and
on that day, the vehicle had traveled between London and Dayton and been in the Dayton
area for six hours. Further, upon activating his cruiser lights and sirens, the vehicle did not
immediately pull over and during this time Arrasmith and the other occupants in the car made
furtive movements. During the pat-down, Arrasmith tensed up, flexed his arms, and was
fidgeting. Lastly, the location of the bulge, in Arrasmith's sock, also suggested the bulge was
contraband.
{¶ 20} Once Deputy Heflin acquired the requisite probable cause, he was authorized
to remove the bulge based under the exigent circumstances exception to the warrant
requirement. "[C]ertain situations present exigent circumstances that justify a warrantless
search. Generally, there must be 'compelling reasons' or 'exceptional circumstances' to justify
an intrusion without a warrant." Moore, 90 Ohio St. 3d at 52, citing McDonald v. United
States, 335 U.S. 451, 454, 69 S. Ct. 191 (1948). For example, "[a] warrantless search is * * *
justified if there is imminent danger that evidence will be lost or destroyed if a search is not
immediately conducted." Id. "Because marijuana and other narcotics are easily and quickly
hidden or destroyed, a warrantless search may be justified to preserve evidence." Id. In this
case, because Deputy Heflin had probable cause to believe that the bulge in Arrasmith's
sock contained drugs, a warrantless search was justified to remove the drugs because
Arrasmith could have quickly hidden or destroyed them. Therefore, Deputy Heflin had the
requisite probable cause and exigent circumstances to remove the drugs from Arrasmith's
sock.
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{¶ 21} Arrasmith's next argument is that he was "in custody" for purposes of Miranda
and therefore he should have been administered his Miranda warnings prior to Deputy Heflin
asking him what was in his sock. "When a suspect is questioned in a custodial setting, the
Fifth Amendment requires that he receive Miranda warnings to protect against compelled
self-incrimination." State v. Johnson, 12th Dist. Fayette No. CA2013-04-012, 2014-Ohio-
1694, ¶ 10, quoting State v. Wesson, 137 Ohio St. 3d 309, 2013-Ohio-4575, ¶ 34. "[T]he duty
to advise a suspect of constitutional rights pursuant to Miranda * * * arises only when
questioning by law enforcement rises to the level of a custodial interrogation." State v.
Vansickle, 12th Dist. Fayette No. CA2013-03-005, 2014-Ohio-1324, ¶ 53.
{¶ 22} Under Section 10, Article I of the Ohio Constitution, physical evidence seized as
a result of unwarned statements is inadmissible. State v. Farris, 109 Ohio St. 3d 519, 2006-
Ohio-3255, ¶ 49. See United States v. Patane, 542 U.S. 630, 124 S. Ct. 2620 (2004)
(nontestimonial physical evidence will not be suppressed under the U.S. constitution for a
Miranda violation). However, "[o]nly evidence obtained as the direct result of statements
made in custody without the benefit of Miranda warnings should be excluded." Farris at ¶ 49.
In Farris, the Ohio Supreme Court suppressed drug paraphernalia found in the truck of the
driver's vehicle when the driver, who was in custody for purposes of Miranda, informed the
police that there was contraband in the trunk of his car, and was not administered his
Miranda rights. Id. Importantly, in Farris, absent the driver's unwarned statement informing
the police of the contraband in the trunk, the officers would not have had probable cause to
search the trunk of the vehicle. Id. at ¶ 50. While the officer smelled an odor of marijuana
coming from the inside of the car, this authorized police to conduct a warrantless search
limited to the passenger compartment of the vehicle. Id. at ¶ 51-52, citing State v. Murrell, 94
Ohio St. 3d 489 (2002), syllabus; United States v. Nielsen, 9 F.3d 1487 (10th Cir.1993).
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{¶ 23} In this case, Arrasmith argues that he was subject to a custodial interrogation
when Deputy Heflin asked him about the bulge in his sock. However, the heroin was not
seized in violation of Miranda because the discovery of the heroin was not obtained as a
direct result of Arrasmith's unwarned statement. Instead, the heroin was found because prior
to the unwarned statement the totality of the circumstances had already established probable
cause suggesting that Arrasmith was involved in drug activity and the bulge contained
contraband.
{¶ 24} While Deputy Heflin could have removed the drugs at the moment he felt the
bulge in Arrasmith's sock, he inquired as to the nature of the bulge and Arrasmith responded.
Simply because Deputy Heflin had spontaneously asked Arrasmith about the bulge at the
same time it was immediately apparent he had probable cause does not mean the drugs
should be suppressed. Unlike, Farris where police only had cause to search the vehicle's
trunk upon the defendant's statement, in this case Deputy Heflin had sufficient probable
cause prior to Arrasmith's statement to justify the removal of the bulge. The drugs were not
obtained as a direct result of Arrasmith's unwarned statement and accordingly should not be
suppressed on the basis that Miranda warnings were not given to Arrasmith. See State v.
Rupp, 11th Dist. Portage No. 2007-P-0095, 2008-Ohio-4052, ¶ 43-44; State v. Hernandez,
12th Dist. Preble No. CA2006-10-022, 2007-Ohio-5190, ¶ 19.
{¶ 25} The trial court did not err in denying Arrasmith's motion to suppress the
evidence. Arrasmith's sole assignment of error is overruled.
{¶ 26} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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