2023-05

State v. Tamas , 2023 Ohio 1710 ( 2023 )

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[Cite as State v. Tamas,

2023-Ohio-1710

.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2022-A-0070
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
BRANDON JOE TAMAS,
Trial Court No. 2021 CR 00331
Defendant-Appellant.
OPINION
Decided: May 22, 2023
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Christopher R. Fortunato,
Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-
Appellee).
Lucas M. Blower, Brouse McDowell, LPA, 388 South Main Street, Suite 500, Akron, OH
44311 (For Defendant-Appellant).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Brandon Tamas, appeals the judgment of the Ashtabula County
Court of Common Pleas following his conviction for Aggravated Trafficking in Drugs, a
first-degree felony in violation of R.C. 2925.03(A)(2). Appellant argues that trial counsel
was ineffective by failing to file a motion to suppress evidence of his arrest on the basis
that he was unlawfully detained as a passenger during a traffic stop in violation of his
Fourth Amendment rights.
{¶2} Having reviewed the record and the applicable caselaw, we find appellant’s
assignment of error to be without merit. Appellant cannot demonstrate from the record
that had his trial counsel filed a motion to suppress evidence, the court would have
granted it. Appellant was appropriately detained during the traffic stop for officer safety
on the basis that he had admitted at the scene to having a knife on his person. Further,
the arresting officer noted that appellant was not wearing a seatbelt, which would
constitute a sufficient basis to detain him. Finally, had appellant been permitted to leave
the traffic stop, it is likely the officer would have discovered the evidence either in plain
view or during a pat down for officer safety.
{¶3} Therefore, we affirm the judgment of the Ashtabula County Court of
Common Pleas.
Substantive and Procedural History
{¶4} Appellant was charged with Aggravated Trafficking in Drugs, a first-degree
felony in violation of R.C. 2925.03(A)(2). Appellant was arraigned on August 16, 2021,
and pled not guilty. Appellant’s trial counsel did not file a motion to suppress evidence
and the matter proceeded to trial on August 1, 2022.
{¶5} On November 25, 2020, appellant was a passenger in a vehicle subject to
a traffic stop. Sergeant Johns of the Ashtabula County Sheriff’s Office testified that he
observed a vehicle with suspected illegal window tint and initiated a traffic stop. The
vehicle pulled into a Pilot gas station on Route 45. Sergeant Johns identified the driver
as Joshua Kemmer. He also identified the passenger of the vehicle as appellant.
Sergeant Johns stated that during his initial encounter, he asked if there were any
weapons in the vehicle and appellant admitted to having a knife on his person.
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Case No. 2022-A-0070
{¶6} Sergeant Johns requested a K9 unit to respond to the traffic stop and he
verified that the window tint allowed only 16 percent light transfer rather than the minimum
50 percent opacity. Appellant then asked if he could get out of the vehicle and go into the
Pilot gas station. Sergeant Johns testified that appellant was not free to leave the traffic
stop until it was over and that he denied his request to get out of the car and walk away.
Sergeant John’s body camera footage was admitted into evidence. In that footage,
Sergeant Johns told appellant that he could not step out of the vehicle because the
Supreme Court had authorized the seizure of the driver and passenger of a vehicle upon
a traffic stop; he also said that appellant was not wearing a seatbelt and was not free to
leave for that reason.
{¶7} Once the K9 unit arrived, Sergeant Johns asked appellant to step out of the
vehicle. As appellant stepped out of the vehicle, Sergeant Johns noticed that appellant
picked up and put on a backpack when he got out of the car. Based on appellant’s
admission to having a knife, Sergeant Johns asked where it was located. Upon asking
where the knife was located, appellant reached his hand down to his pants pocket.
Sergeant Johns then noticed a bag containing a crystal substance which appellant was
attempting to shove back into his pocket. Sergeant Johns’ body camera captured the
footage and showed the bag in appellant’s pocket.
{¶8} Sergeant Johns believed the bag contained crystal methamphetamine and
placed appellant under arrest. He handcuffed appellant, located the knife, and located a
bag of crystal methamphetamine in appellant’s pocket along with four thousand dollars in
cash.
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Case No. 2022-A-0070
{¶9} Sergeant Johns Mirandized appellant at the scene and appellant admitted
that there were two black magnetic boxes in Kemmer’s car that belonged to appellant. He
admitted that those boxes contained crystal methamphetamine. According to Bureau of
Criminal Investigations analyst Erin Miller, the total weight of methamphetamine
recovered was 175.17 grams.
{¶10} The jury found appellant guilty. He was sentenced on September 1, 2022,
to an indefinite prison term of 8 to 12 years.
{¶11} Appellant timely appealed raising one assignment of error.
Assignment of Error and Analysis
{¶12} Appellant’s sole assignment of error states:
{¶13} “Brandon Tamas was denied his constitutional right to effective assistance
of counsel because his attorney failed to make a motion to suppress evidence obtained
after an unlawful detention.”
{¶14} In reviewing an ineffective assistance of counsel claim, the standard we
apply is “‘whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.’”
State v. Story, 11th Dist. Ashtabula No. 2006-A-0085,

2007-Ohio-4959

, ¶ 49, quoting
Strickland v. Washington,

466 U.S. 668

, 686,

104 S.Ct. 2052

80 L.Ed.2d 674

 (1984). An
appellant must demonstrate (1) his counsel was deficient in some aspect of his
representation, and (2) there is a reasonable probability, were it not for counsel's errors,
the result of the proceedings would have been different. Strickland at 669. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”

Id.

 A failure
to “satisfy one prong of the Strickland test negates a court’s need to consider the other.”
4
Case No. 2022-A-0070
State v. Madrigal,

87 Ohio St.3d 378

, 389,

2000-Ohio-448

721 N.E.2d 52

, citing
Strickland at 697.
{¶15} An appellant “must be able to demonstrate that the attorney made errors so
serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth
Amendment, and that he was prejudiced by the deficient performance.” Story, supra,
quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031,

2007-Ohio-2305

, ¶ 42.
Ohio courts presume that every properly licensed attorney is competent, and therefore a
defendant bears the burden of proof. State v. Smith,

17 Ohio St.3d 98

, 100,

477 N.E.2d 1128

 (1985). “Counsel’s performance will not be deemed ineffective unless and until
counsel’s performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance.” State v.
Bradley,

42 Ohio St.3d 136

, 142,

538 N.E.2d 373

 (1989). “Debatable trial tactics generally
do not constitute a deprivation of effective counsel.” State v. Phillips,

74 Ohio St.3d 72

,
85,

656 N.E.2d 643

 (1995). “Failure to do a futile act cannot be the basis for claims of
ineffective assistance of counsel, nor could such a failure be prejudicial.” State v.
Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at ¶ 42.
{¶16} When a defendant files a motion to suppress evidence obtained during a
warrantless search, “the state has the burden of showing that the search fits within one
of the defined exceptions to the Fourth Amendment's warrant requirement. Athens v.
Wolf,

38 Ohio St.2d 237

, 241,

313 N.E.2d 405

 (1974).” State v. Banks-Harvey,

152 Ohio St.3d 368

2018-Ohio-201

96 N.E.3d 262

, ¶ 17-18. In context of ineffective assistance
of counsel claims, the record must demonstrate that the motion would have been
successful if the issues had been raised. State v. Howard, 11th Dist. Lake No. 2019-L-
5
Case No. 2022-A-0070
153,

2020-Ohio-5057

, ¶ 39, citing State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-
Ohio-1550, ¶ 28 (collecting cases).
{¶17} The threshold question to determine is whether the motion to suppress
would have been successful if raised. If yes, then a reviewing court must also determine
that there is a reasonable probability that if trial counsel had filed a motion to suppress,
the outcome of the proceedings would have been different. Such a two-tiered inquiry is
necessary because an appellant must demonstrate both that a motion to suppress would
be successful, indicating that trial counsel’s representation was deficient, and that the
failure to file the motion affected the outcome of the case, resulting in prejudice to the
appellant. See Strickland,

supra, at 669

.
{¶18} The Fourth Amendment to the United States Constitution guarantees “[t]he
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures * * *.” Fourth Amendment, United States
Constitution. The Ohio Constitution likewise protects against arbitrary government
invasions. State v. Hoffman,

141 Ohio St.3d 428

2014-Ohio-4795

25 N.E.3d 993

, ¶ 11,
citing State v. Robinette,

80 Ohio St.3d 234

685 N.E.2d 762

 (1997). “The touchstone of
both is reasonableness.” State v. Brown, 11th Dist. Lake No. 2020-L-002, 2020-Ohio-
5140, ¶ 8, citing State v. Michael,

2013-Ohio-3889

995 N.E.2d 286

, ¶ 10 (10th Dist.).
{¶19} “‘[S]earches conducted outside the judicial process, without prior approval
by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well-delineated exceptions.’” (Footnote
omitted.) Katz v. United States,

389 U.S. 347

, 357,

88 S.Ct. 507

19 L.Ed.2d 576

 (1967).
“Courts must exclude evidence obtained by searches and seizures that violate the Fourth
6
Case No. 2022-A-0070
Amendment.” State v. Adams,

144 Ohio St.3d 429

2015-Ohio-3954

45 N.E.3d 127

, ¶
181, citing Mapp v. Ohio,

367 U.S. 643

81 S.Ct. 1684

6 L.Ed.2d 1081

 (1961) (extending
the exclusionary rule to the states). “‘The primary purpose of the exclusionary rule is to
remove incentive from the police to violate the Fourth Amendment.’” State v. Eggleston,
11th Dist. Trumbull,

2015-Ohio-958

29 N.E.3d 23

, ¶ 17, quoting State v. Casey, 12th
Dist. Warren No. CA2013-10-090,

2014-Ohio-2586

, ¶ 29.
{¶20} “The touchstone of our analysis under the Fourth Amendment is always ‘the
reasonableness in all the circumstances of the particular governmental invasion of a
citizen's personal security.’” Pennsylvania v. Mimms,

434 U.S. 106

, 108,

54 L.Ed.2d 331

98 S.Ct. 330 (1977)

, quoting Terry v. Ohio,

392 U.S. 1

, 19,

88 S.Ct. 1868

, 1878,

20 L.Ed.2d 889

 (1968). In general, an officer may order a passenger out of a vehicle pending
completion of a stop. Maryland v. Wilson,

519 U.S. 408

137 L.Ed.2d 41

117 S.Ct. 882 (1997)

, syllabus. Further, the danger to an officer from a traffic stop is likely to be greater
where passengers are present.

Id.

 Under Mimms, an officer may request a driver and
passenger to step out of a vehicle as a safety precaution. Mimms, at 108; State v.
Scimemi, 2nd Dist. Clark No. 94-CA-58,

1995 WL 329031

, *4 (June 2, 1995). (Collecting
cases holding that a Mimms order applies to passengers.) The order to step out of the
vehicle requires no quantum of constitutional suspicion. State v. Evans,

67 Ohio St.3d 405

, 408,

618 N.E.2d 162

 (1993). As an officer may lawfully request that a driver and
passenger step out of the vehicle for officer safety, “the underlying rationale * * * supports
a holding that an officer may also lawfully request that the driver and passengers remain
in the vehicle during the stop if the officer determines that remaining in the vehicle is
necessary for safety reasons.” Scimemi, at *4.
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Case No. 2022-A-0070
{¶21} Additionally, an officer may request passengers to provide their identity
although there is no legal requirement for a passenger to carry identification. State v. Fry,
9th Dist. Summit No. 23211,

2007-Ohio-3240

, ¶ 16.
{¶22} Appellant asserts that his trial counsel was ineffective because Sergeant
Johns did not have a reasonable articulable basis to detain him as a passenger of the
vehicle during the traffic stop. He argues that his request to leave the vehicle and walk to
the Pilot gas station should have been granted and that Sergeant Johns’ unlawful
detention resulted in the evidence used to charge appellant.1 Appellant states that had
his trial counsel filed a motion to suppress, all of the evidence used to convict him would
have been excluded.
{¶23} In support of his argument, appellant cites State v. Wilcox, 2nd Dist. Clark
No. 2011 CA 99,

2012-Ohio-3400

. In Wilcox, the State appealed the trial court’s judgment
granting the defendant’s motion to suppress. Id. at ¶ 1. Wilcox was a passenger in a
vehicle stopped for having a continuously blowing horn. The officer stopped the vehicle
to determine if the vehicle had an emergency or a malfunction.
{¶24} The driver of the vehicle had a suspended license and the officer asked
Wilcox if he had a valid license to drive. Id. at ¶ 4. He was unresponsive, did not provide
his name, and appeared intoxicated. Id. Wilcox stepped out of the vehicle, was patted
down, and then provided his name. He stated that he needed to urinate and made
requests to use a restroom and then attempted to urinate on the curb. Id. at ¶ 5. The
officer warned Wilcox that he would be arrested for public indecency if he did so. Id.
1. Appellant has not asserted trial counsel should have filed a motion to suppress Sergeant Johns’ search
and arrest of appellant.
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Case No. 2022-A-0070
Wilcox was told to sit in the vehicle while the officer wrote the driver a ticket. Id. A short
time later, Wilcox was seen urinating on the curb and was then arrested for public
indecency. Id. at ¶ 6. Upon his arrest, the officer found drugs on Wilcox’s person. Id. at ¶
7.
{¶25} The trial court suppressed the evidence because the arrest for public
indecency was improper under the circumstances as Wilcox was not committing a
criminal act but was responding to a biological function and the situation was “acerbated
by the refusal of the officers to allow him to leave to find a more appropriate facility, even
though there were no facts justifying the defendant’s further detention.” Id. at ¶ 9.
{¶26} The court of appeals affirmed the decision, finding that the officer violated
Wilcox’s constitutional rights by “insisting that he remain in the car or at the scene of the
traffic stop while the driver’s citation was issued.” Id. at ¶ 21. However, the court noted
that an officer may be justified in “detaining a passenger at the scene of a traffic stop,
where there is some reasonable, articulable basis for doing so. In this case, however, the
trial court did not find any such circumstances existed.” Id. at ¶ 22.
{¶27} We find Wilcox to be distinguishable from the present case and that
appellant cannot demonstrate a reasonable probability of prejudice from trial counsel not
filing a suppression motion. First, appellant stated he had a knife, Sergeant Johns verified
that the window tint was indeed too dark, and Sergeant Johns observed that appellant
was not wearing a seatbelt. This sequence of events indicates that a suppression motion
would not have been successful.
{¶28} Sergeant Johns’ observation that appellant was not wearing a seatbelt
would constitute a sufficient independent basis to detain him. Wilcox, supra, at ¶ 22; see
9
Case No. 2022-A-0070
Cleveland v. Hasan, 8th Dist. Cuyahoga No. 98490,

2013-Ohio-820

, ¶ 5 (a seatbelt
violation is a traffic offense).; see State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-
Ohio-968, ¶ 21 (once arresting officer decided to issue Jones a citation for the seat belt
violation, it was reasonable for her to detain him to ascertain his identity).
{¶29} Sergeant Johns’ knowledge that appellant was armed and his observation
that he had committed a traffic offense by failing to wear a seatbelt could justify his
decision to detain appellant where he could observe him during the traffic stop for his own
safety, and the safety of people in the Pilot facility, rather than letting appellant leave
unattended. See Maryland v. Wilson,

519 U.S. 408

137 L.Ed.2d 41

117 S.Ct. 882

 and
Scimemi, 2nd Dist. Clark No. 94-CA-58,