State v. Holmes , 2012 Ohio 1589 ( 2012 )

[Cite as State v. Holmes, 2012-Ohio-1589.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00101
:
:
JOSEPH HOLMES : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2010-CR-1725
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 26, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BARRY T. WAKSER
Prosecuting Attorney Stark County Public Defender’s Office
Stark County, Ohio 200 West Tuscarawas Street
Suite #200
BY: RONALD MARK CALDWELL Canton, Ohio 44702
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South, Suite #510
Canton, Ohio 44702-1413
[Cite as State v. Holmes, 2012-Ohio-1589.]
Edwards, J.
{¶1} Defendant-appellant, Joseph Holmes, appeals his conviction and
sentence from the Stark County Court of Common Pleas on one count of possession of
cocaine. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CAS
{¶2} On December 20, 2010, the Stark County Grand Jury indicted appellant
on one count of possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(b), a felony
of the fourth degree. At his arraignment on January 14, 2011, appellant entered a plea
of not guilty to the charge.
{¶3} Appellant, on January 31, 2011, filed a Motion to Suppress all evidence.
Appellant, in his motion, alleged that the police had no right to stop him, that they had
no right to conduct a pat down search of his person, and that the evidence obtained
from the search was not immediately apparent as contraband. A hearing on the Motion
to Suppress was held on January 31, 2011. The following testimony was adduced at the
hearing.
{¶4} On November 9, 2010, Canton Police Sergeant Lester Marino was
working an extra job providing security at Skyline Terrace Apartments. The officer was
with a partner in uniform in a marked cruiser. Sergeant Marino testified that the
apartment complex had a high volume of drug and violent activity. The following
testimony was adduced when he was questioned about the problems at the apartment
complex:
{¶5} “A. There are problems at the apartment having to do with criminal
trespass, high volume of criminal trespass. Unsavory individuals coming onto the
Stark County App. Case No. 2011CA00101 3
property and selling narcotics. We have problems with people coming from out of
county to buy narcotics from New Philadelphia area, Carroll County frequent the
property to purchase crack cocaine and marijuana.
{¶6} “Q. So people actually who don’t live there, have no reason to be there,
actually frequently come to buy and/or sell drugs?
{¶7} “A. That is correct.
{¶8} “Q. Are there also instances of violence there at those apartments?
{¶9} “A. Yes. Just recently we had a homicide within the complex and several
gun arrests have been made there recently.” Transcript of Suppression hearing at 9.
{¶10} Sergeant Marino had been told by the apartment management that
buildings 901 and 921 had experienced a high volume of criminal activity, including drug
activity and vandalism. At approximately 1:00 a.m. on November 9, 2010, Sergeant
Marino and his partner, Officer Gillilan, observed appellant walking out of building 901
and heading south through the parking lot. According to Officer Marino, when appellant
observed the officers, he changed his course and “made a beeline across the parking
lot walking hastily towards Cherry Avenue.” Transcript of Suppression hearing at 15.
Sergeant Marino then told his partner that they needed to stop and talk to appellant to
determine if he was a visitor to the apartment complex and, if so, if appellant had a
visitor’s pass to be on the property. Sergeant Marino testified that they often stopped
people walking around the complex to see if they had such a pass and told them that
they needed to obtain a pass from the office.
{¶11} The officers then proceeded out of the apartment parking lot and caught
up with appellant at the corner of Cherry and Alan Page. When Sergeant Marino asked
Stark County App. Case No. 2011CA00101 4
appellant his name, appellant replied “Jo-Jo Holmes.” Transcript of Suppression hearing
at 18. When Officer Gillilan asked appellant who he had been visiting, appellant
indicated that he was visiting some friends, but did not know what apartment number or
building and was not able to provide the name of any person(s) who he had been
visiting. Sergeant Marino testified that this made him suspicious and that if appellant
had indicated who he was visiting and in what building, he would probably have
checked appellant for warrants and then left.
{¶12} The officers then exited the cruiser and asked appellant to come over.
Sergeant Marino then patted appellant down. When asked why he did so, the officer
testified as follows:
{¶13} “A. I did that because of the area and the circumstances leading up to that
point. His actions as far as walking across the parking lot, he observed us trying - - it
appeared to me that he was trying to evade us or at least get out of the apartment
complex before we contacted him. And I conducted a Terry patdown for officer safety
purposes.
{¶14} “Q. When you say officer safety purposes, is there I guess particular
officer safety concerns at those apartments?
{¶15} “A. Yes. Due to the amount of weapons related calls and arrests down
there, yes.” Transcript of Suppression hearing at 19-20.
{¶16} Sergeant Marino testified that while patting appellant down, as soon as he
touched the outside of appellant’s right pocket, he “felt what appeared to be a plastic
baggie which is suspected crack cocaine.” Transcript of Suppression hearing at 20.
Appellant then “lurched on the car” and was arrested. Transcript of suppression hearing
Stark County App. Case No. 2011CA00101 5
at 20. When Officer Marino went into appellant’s pocket, he found two plastic baggies
with crack cocaine.
{¶17} On cross-examination, Sergeant Marino testified that he had observed
appellant 10 or 15 seconds before appellant actually saw Marino and his partner. When
asked, he indicated that he had not observed any criminal activity by appellant prior to
stopping him and had no basis for believing that appellant was engaging in criminal
activity or was armed. Office Marino further testified that after appellant was unable to
state who he had been visiting and the officers exited their cruiser, appellant was not
free to leave. Officer Marino admitted that appellant did not make any attempt to flee or
run away and gave his name when asked. On cross-examination, the officer further
testified that the lump in appellant’s pocket could have been an innocent item as well.
{¶18} On redirect, Sergeant Marino testified that appellant did not have a pass to
be at Skyline Terrace and that the lump in appellant’s pocket felt like narcotics.
{¶19} At the conclusion of the suppression hearing, the trial court denied the
Motion to Suppress, stating, in relevant part, as follows:
{¶20} “It is the Court’s findings that based upon the testimony which I have in
front of me that there was a consensual encounter, there was evasive type of answer.
Up until that point Mr. Holmes was free to go. After he gave the evasive answer he was
not.
{¶21} “And the Court does find from the totality of the circumstances that the
officer at that point in time did have the reason - - did have reason, as he has stated, to
go forward with the patdown for the reasons that the officer testified to.” Transcript of
Stark County App. Case No. 2011CA00101 6
Suppression hearing at 42-43. A Judgment Entry denying the motion was filed on
February 1, 2011.
{¶22} On February 4, 2011, appellant filed a Motion to Reconsider based on this
Court’s Janaury 31, 2011, decision in State v. Jones, 5th Dist. No. 2010CA00039, 2011-
Ohio-535. On February 7, 2011, appellant withdrew his former not guilty plea, entered
a plea of no contest and was found guilty by the trial court. As memorialized in a
Judgment Entry filed on February 8, 2011, the trial court denied appellant’s Motion to
Reconsider.
{¶23} Pursuant to a Judgment Entry filed on March 29, 2011, appellant was
placed on community control for a period of three (3) years under specified terms and
conditions.
{¶24} Appellant now raises the following assignment of error on appeal:
{¶25} “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION
TO SUPPRESS.”
I
{¶26} Appellant, in his sole assignment of error, argues that the trial court erred
in denying his Motion to Suppress. We agree.
{¶27} Appellate review of a trial court's decision to grant a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 713
N.E.2d 1 (4th Dist. 1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972 (1992).
A reviewing court is bound to accept the trial court's findings of fact if they are supported
Stark County App. Case No. 2011CA00101 7
by competent, credible evidence. State v. Metcalf, 111 Ohio App.3d 142, 675 N.E.2d
1268 (4th Dist. 1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court's
conclusion, whether the trial court's decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (4th Dist. 1993).
{¶28} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact are against the manifest weight of the evidence. See State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); and State v. Klein, 73 Ohio App.3d
486, 597 N.E.2d 1141 (4th Dist. 1991). Second, an appellant may argue that the trial
court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. See
State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (4th Dist. 1983). Finally, an
appellant may argue the trial court has incorrectly decided the ultimate or final issues
raised in a motion to suppress. When reviewing this type of claim, an appellate court
must independently determine, without deference to the trial court's conclusion, whether
the facts meet the appropriate legal standard in any given case. State v. Claytor, 85
Ohio App.3d 623, 620 N.E.2d 906 (4th Dist. 1993), and State v. Curry, 95 Ohio App.3d
93, 641 N.E.2d 1172 (8th Dist. 1994).
{¶29} In the case sub judice, appellant argues that the trial court erred in
denying appellant’s Motion to Suppress because the police lacked reasonable suspicion
Stark County App. Case No. 2011CA00101 8
to stop appellant, because the pat-down search of appellant was unconstitutional, and
because the item found during the search was not immediately apparent as contraband.
{¶30} Because we believe that the issue concerning the pat-down of appellant is
dispositive, we shall address such issue first. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that a limited pat-
down search is justified when an officer reasonably concludes the individual, whose
suspicious behavior he is investigating at close range, may be armed and, thus,
dangerous to the police officer and others. Id. at 24. Officers need not forsake
reasonable precautionary measures during the performance of their duties. State v.
Evans, 67 Ohio St.3d 405, 410, 618 N.E.2d 162 (1993). The court must determine
whether the officer had a reasonable, objective basis for frisking the suspect. See, State
v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991). In determining whether an
officer's beliefs are reasonable, a court must consider the totality of the circumstances
involved in the stop. State v. Bobo, 37 Ohio St.3d 177, 180, 524 N.E.2d 489 (1988). An
officer need not testify he was actually in fear of a suspect, but he must articulate a set
of particular facts which would lead a reasonable person to conclude a suspect may be
armed and dangerous. Evans, supra, at 413. Rather, “[e]vidence that the officer was
aware of sufficient specific facts as would suggest he was in danger” satisfies the test
set forth in Terry, supra. Id.{¶31} An officer must have a reasonable individualized suspicion that the
suspect is armed and dangerous before he may conduct a pat-down for weapons. See
Terry, supra; Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). See
also Maryland v. Buie, 494 U.S. 325, 334, 108 L.Ed2d 276, 110 S.Ct. 1093, (1990), fn.2
Stark County App. Case No. 2011CA00101 9
(“Even in high crime areas, where the possibility that any given individual is armed is
significant, Terry requires reasonable, individualized suspicion before a frisk for
weapons can be conducted.”)
{¶32} In Ybarra, police officers had a search warrant to search a public tavern
and a bartender for narcotics. When the officer entered the bar, they announced that
they were also going to search the patrons for weapons. One of the officers frisked
Ybarra, who was one of the patrons, twice, and removed a cigarette pack containing
several packets of heroin from his pocket. The United States Supreme Court held that
the pat-down search of Ybarra was unconstitutional under Terry, supra, because the
warrant did not authorize a search of the patrons and officers did not have reasonable
suspicion to frisk Ybarra. Ybarra, at 90–93.
{¶33} The United States Supreme Court held: “The initial frisk of Ybarra was
simply not supported by a reasonable belief that he was armed and presently
dangerous, a belief which this Court has invariably held must form the predicate to a
pat-down of a person for weapons. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct.
1921, 1923, 32 L.Ed.2d 612; Terry v. Ohio, supra, 392 U.S., at 21–24, 27, 88 S.Ct., at1879–1881, 1883. When the police entered the Aurora Tap Tavern on March 1, 1976,
the lighting was sufficient for them to observe the customers. Upon seeing Ybarra, they
neither recognized him as a person with a criminal history nor had any particular reason
to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson
later testified, Ybarra, whose hands were empty, gave no indication of possessing a
weapon, made no gestures or other actions indicative of an intent to commit an assault,
and acted generally in a manner that was not threatening. At the suppression hearing,
Stark County App. Case No. 2011CA00101 10
the most Agent Johnson could point to was that Ybarra was wearing a 3/4–length
lumber jacket, clothing which the State admits could be expected on almost any tavern
patron in Illinois in early March. In short, the State is unable to articulate any specific
fact that would have justified a police officer at the scene in even suspecting that Ybarra
was armed and dangerous.” Id. at 92–93 (footnote omitted).
{¶34} In State v. Gilmer, 5th Dist. No.2009 CA 00283, 2010–Ohio–4631, this
Court found that police did not have a reasonable, articulable suspicion to justify a pat-
down of a bar patron. Officers had entered the bar to check the validity of the liquor
license of the establishment. While in the bar, officers asked the patrons to produce
identification. Appellant appeared nervous and attempted to quickly finish the two drinks
in front of him so he could leave the bar. We concluded that the officer did not have an
individualized suspicion that appellant was armed and dangerous because the officer
testified that he did not go to the bar to find appellant, he had no reports that appellant
was involved in any criminal activity and he never saw appellant with a gun. Id. at ¶ 41.
The officer further testified that he did not see a bulge or any metal object on appellant
that looked like a weapon and when appellant stood up, he did not see any suspicious
objects on appellant. Id. The officer testified that the only reason he believed that
appellant might have a weapon on him was because appellant was nervous while
everyone else at the bar “seemed to ... be okay with the fact that the police are in there
checking the liquor license, asking for people's identification.” Id. See also State v.
Jones, 5th Dist. No. 2010CA00039, 2011-Ohio-535.
{¶35} In the case sub judice, Sergeant Marino testified that he patted appellant
down “because of the area and the circumstances leading up to that point. His actions
Stark County App. Case No. 2011CA00101 11
as far as walking across the parking lot, he observed us trying-it appeared to me that he
was trying to evade us or at least get out of the apartment complex before we contacted
him. And I conducted a Terry patdown for officer safety purposes.” Transcript of
Suppression hearing at 19-20.
{¶36} However, on cross-examination, Sergeant Marino testified that he had no
specific information that appellant was engaged in criminal activity and had not
observed appellant engaging in any criminal activity prior to patting him down. He
further testified that he had no information causing him to believe that appellant was
armed and that there had been no reports of a man with a gun.
{¶37} Based on the foregoing, we find that the officers did not have a reasonable
individualized suspicion that appellant was armed and, therefore, did not have reason to
conduct a pat-down search of appellant’s person for weapons. We find, therefore, that
the trial court erred in denying appellant’s Motion to Suppress.
Stark County App. Case No. 2011CA00101 12
{¶38} Appellant’s sole assignment of error is sustained.
{¶39} Accordingly, the judgment of the Stark County Court of Common Pleas is
reversed and this matter is remanded for further proceedings.
By: Edwards, J.
Hoffman, P.J. concurs and
Farmer, J. dissents
______________________________
______________________________
______________________________
JUDGES
JAE/d1212
Stark County App. Case No. 2011CA00101 13
Farmer, J., dissents
{¶40} I respectfully dissent from the majority's view that the officers did not have
reasonable articulable cause to stop and pat-down appellant for weapons.
{¶41} The United States Supreme Court has recognized that a stop and pat-
down search is appropriate when there is unprovoked flight from police along with the
totality of the circumstance. Illinois v. Wardlow (2000), 528 U.S. 119. The Supreme
Court of Ohio has recognized the Wardlow case. State v. Jordan, 104 Ohio St.3d 21,
2004-Ohio-6085, reversed on other grounds. In State v.Bobo (1988), 37 Ohio St.3d
177, the Supreme Court of Ohio found several factors justifying the stop in Bobo similar
to the case sub judice:
{¶42} "(1) The area in which the action occurred was an area of very heavy drug
activity in which weapons were prevalent;
{¶43} "(2) It was nighttime, when weapons could easily be hidden;
{¶44} "(3) One of the officers who approached the vehicle in which Bobo was
sitting had about twenty years of experience as a police officer and numerous years in
the surveillance of drug and weapon activity; included in this experience were about 500
arrests each for guns or drugs city-wide and over 100 arrests in the area in which Bobo
was parked;
{¶45} "(4) The officer had knowledge of how drug transactions occurred in that
area;
{¶46} "(5) The officer had observed Bobo disappear from view, reappear when
the police car was close, look directly at the officers, and then bend down as if to hide
something under the front seat;
Stark County App. Case No. 2011CA00101 14
{¶47} "(6) The officer had experience in recovering weapons or drugs when an
individual would make the type of gesture made by Bobo in ducking under his seat; and
{¶48} "(7) The police officers were out of their vehicle and away from any
protection if defendant had been armed." Katz, Ohio Arrest, Search and seizure (2009)
348-349, §15:17.
{¶49} In this case, appellant was a potential trespasser in the apartment
complex at 1:00 a.m. which was in a high crime/drug area and when he observed the
police, he immediately changed his course and quickened his pace away from the
officers.
{¶50} I would find the officers' reasonable suspicion of criminal activity was
appellant's trespass on the property and his evasive behavior. Once stopped, and
under the totality of the circumstances, the officers had the right to pat-down appellant.
{¶51} I would find the trial court did not err in denying the motion to suppress.
________________________________
HON. SHEILA G. FARMER
[Cite as State v. Holmes, 2012-Ohio-1589.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOSEPH HOLMES :
:
Defendant-Appellant : CASE NO. 2011CA00101
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is reversed and remanded to the
trial court for further proceedings. Costs assessed to appellee.
_________________________________
_________________________________
_________________________________
JUDGES