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State v. Fryer

December 4, 2008

STATE OF OHIO PLAINTIFF-APPELLEE
v.
GERALD FRYER DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-499062, JUDGMENT: AFFIRMED.

The opinion of the court was delivered by: Colleen Conway Cooney, P.J.

JOURNAL ENTRY AND OPINION

BEFORE: Cooney, P.J., Gallagher, J., and Stewart, J.

{¶1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1.

{¶2} Defendant-appellant, Gerald Fryer ("Fryer"), appeals the trial court's denial of his motion to suppress. Finding no merit to the appeal, we affirm.

{¶3} In 2007, Fryer was charged with drug possession, drug trafficking, and possessing criminal tools. Fryer moved to suppress the drugs and contraband seized during a traffic stop. The trial court denied his motion after a full hearing. The following evidence was presented at the suppression hearing.

{¶4} In July 2007, Officer Gregory Drew ("Drew"), of the Cuyahoga Metropolitan Housing Authority police, was on foot patrol in the 2600-2700 block of Cedar Avenue when he smelled a strong odor of marijuana. He then observed a Cadillac directly across the street, with Fryer in the driver's seat and Steve Hardin ("Hardin") in the front passenger seat. He saw Fryer bring a glass pipe to his mouth and hold a lighter to the pipe. Drew immediately recognized the pipe as drug paraphernalia. He radioed for a zone car to stop Fryer and Hardin.

While waiting for assistance, Fryer noticed that Drew was watching him and drove off. Fryer drove about 100 feet before he was stopped by the zone cars. Drew and Officer Alcantara approached Hardin and immediately observed a clump of marijuana on Hardin's lap.*fn1 They removed Hardin from the vehicle and placed him under arrest. They also found an ecstacy pill on the passenger seat where Hardin had been seated.

{¶5} After Hardin was arrested, Drew testified that he observed Officers Higgenbotham and Beese remove Fryer from the vehicle. Upon opening the door, Drew observed a marijuana pipe, which Higgenbotham said was still warm to the touch, and Ziploc bags containing marijuana in the door compartment. Higgenbotham then removed these items, and Fryer was arrested for using a motor vehicle to solicit, in violation of Cleveland Codified Ordinance 619.23(c), a first degree misdemeanor.*fn2

{¶6} During the search incident to Fryer's arrest, Drew observed the officers retrieve an ecstasy pill, a digital scale, and $262 from Fryer's pockets. Fryer was then placed under arrest for a felony drug violation.

{¶7} The officers then ordered a tow of the vehicle pursuant to the arrests. They completed an inventory search of the vehicle prior to the tow. Drew discovered a large glass jar containing marijuana under the driver's seat. The officers also discovered boxes of sandwich baggies inside the vehicle. In the trunk, they found a large bag of potting soil, a bag of plant fertilizer, and several glass jars containing marijuana or marijuana residue.

{¶8} Fryer's version of the facts differed from Drew's testimony. Fryer claimed that he was pulled over at gunpoint, told to lay down on the ground, and was handcuffed. Then, the officers went into his pockets and took everything out without telling him why he was stopped or arrested. He denied smoking marijuana in his car.

{¶9} At the conclusion of the hearing, the trial court denied Fryer's motion to suppress, finding that the search was lawful. Fryer pled no contest to the charges and the trial court sentenced him to two years of community control sanctions.

{ΒΆ10} Fryer appeals, raising one assignment of error in which he argues that the trial court erred in denying his motion to suppress. He claims that there was no evidence by the State proving that his arrest and search were based on reasonable suspicion and probable cause because the ...


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