State v. Jones , 2011 Ohio 535 ( 2011 )

[Cite as State v. Jones, 2011-Ohio-535.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Julie A. Edwards, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Patricia A. Delaney, J.
:
-vs- : Case No. 2010CA00039
:
:
EIERONSTAN D. JONES : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2009-CR-1153
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: January 31, 2011
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 W. Tuscarawas Street, Suite 200
Canton, Ohio 44702
BY: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South – Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Jones, 2011-Ohio-535.]
Edwards, P.J.
{¶1} Appellant, Eieronstan D. Jones, appeals a judgment of the Stark County
Common Pleas Court convicting him of possession of cocaine (R.C.
2925.11(A)(C)(4)(b)). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} During the evening hours of July 21, 2009, Canton Police Sgt. Lester
Marino and Officer Scott Dendinger were on patrol in the northeast section of Canton,
Ohio. They were working an extra detail pursuant to a grant for extra patrol in high
crime areas known as the Weed and Seed Grant. Sgt. Marino had been a police officer
for 14 years, while Officer Dendinger had been on the police force for about 18 months.
The officers were in a marked cruiser, in uniform, working the 10:00 p.m. to 2:00 a.m.
shift. The northeast section of Canton was known to Sgt. Marino as a high crime area
with high rates of drug activity, gun violence and prostitution.
{¶3} Around 11:00 p.m., the officers saw appellant walking in the middle of the
roadway in violation of a Canton City Ordinance. Sgt. Marino pulled up next to
appellant, and both officers exited the cruiser. Marino asked appellant to step over to
the car so they could speak with him. Due to the high level of criminal activity in the
area, Sgt. Marino began a Terry pat down of appellant when appellant approached the
cruiser. Appellant pushed away from the cruiser and attempted to flee. Sgt. Marino
apprehended appellant, and after appellant was handcuffed, found a plastic bag
containing crack cocaine in appellant’s pocket. Officer Dendinger observed a smaller
bag containing crack cocaine fall from appellant’s person as Sgt. Marino apprehended
appellant.
Stark County App. Case No. 2010CA00039 3
{¶4} Appellant was indicted by the Stark County Grand Jury with one count of
possession of cocaine. He moved to suppress the cocaine on the basis that the Terry
pat-down was not supported by a reasonable, articulable suspicion that appellant was
armed. Following an evidentiary hearing, the court overruled the motion. Appellant
thereafter entered a plea of no contest to the charge. He was convicted and placed on
community control for three years. He assigns a single error on appeal:
{¶5} “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION
TO SUPPRESS EVIDENCE.”
{¶6} 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 findings 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 (1982), 1 Ohio St.3d 19, 437 N.E.2d 583 and State v. Klein (1991), 73 Ohio
App.3d 486, 597 N.E.2d 1141. 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 (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. 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 (1994), 85 Ohio App.3d
623, 620 N.E.2d 906.
Stark County App. Case No. 2010CA00039 4
{¶7} Appellant argues that Sgt. Marino’s pat-down search of appellant was
unconstitutional. In Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.,
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, 1993-
Ohio-186, 618 N.E.2d 162. The court must determine whether the officer had a
reasonable, objective basis for frisking the suspect. See, State v. Andrews (1991), 57
Ohio St.3d 86. 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 (1988), 37
Ohio St.3d 177, 180, 524 N.E.2d 489. 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.{¶8} 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 (1979), 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238. See
also Maryland v. Buie (1990), 494 U.S. 325, 334, fn. 2, 110 S.Ct. 1093, 108 L.Ed.2d 276(“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.”)
Stark County App. Case No. 2010CA00039 5
{¶9} 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, 444 U.S. at 90-93.
{¶10} 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., at
1879-1881, 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,
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
Stark County App. Case No. 2010CA00039 6
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).
{¶11} In State v. Gilmer, Stark App. 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.
{¶12} In the instant case, appellant was stopped for a minor misdemeanor
offense. Sgt. Marino testified that he patted appellant down because of the “activity that
goes on in that area.” Tr. 9. Sgt. Marino admitted that he had no evidence or
information that appellant was committing any offense other than walking along a
roadway, and no information to suggest that appellant was armed. Tr. 11. Officer
Dendinger likewise testified that he had no evidence or information that appellant was
Stark County App. Case No. 2010CA00039 7
committing an offense other than the misdemeanor offense for which he was stopped,
and had no information or evidence that appellant was armed. Tr. 16-17.
{¶13} Based on the evidence presented at trial, the officers did not have a
reasonable individualized suspicion that appellant was armed. As noted earlier, even
though appellant was stopped in a high crime area where the possibility that any given
individual is armed may be significant, Terry requires a reasonable, individualized
suspicion before a frisk for weapons can be conducted. Maryland v. Buie, supra.{¶14} The assignment of error is sustained.
Stark County App. Case No. 2010CA00039 8
{¶15} The judgment of the Stark County Common Pleas Court overruling
appellant’s motion to suppress is reversed. This cause is remanded to that court for
further proceedings according to law and consistent with this opinion.1
By: Edwards, P.J.
Hoffman, J. and
Delaney, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r1014
1
In the instant case, the search incident to a lawful arrest exception does not apply because under R.C.
2935.26, a suspect may not be arrested for a minor misdemeanor absent special circumstances set forth
in the statute, which were not alleged in the instant case. Therefore, an arrest would have violated
Section 14, Article 1 of the Ohio Constitution and any evidence seized in a search incident to such arrest
would be suppressed. State v. Brown, 99 Ohio St.3d 323, 792 N.E.2d 175, 2003-Ohio-3931, ¶25.
[Cite as State v. Jones, 2011-Ohio-535.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
EIERONSTAN D. JONES :
:
Defendant-Appellant : CASE NO. 2010CA00039
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