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The State of Ohio v. Calvin Caldwell

October 18, 2011

THE STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
CALVIN CALDWELL, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2010- CR-535H Affirmed in part; Reversed in part and Remanded JUDGMENT:

The opinion of the court was delivered by: Gwin, P.J.

Cite as State v. Caldwell,

JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J.

OPINION

{¶1} Defendant-appellant Calvin C. Caldwell appeals from his convictions and sentences entered in the Richland County Court of Common Pleas for possession of crack cocaine in violation of R.C. 2925.11(A), a felony of the fifth degree. Plaintiffappellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 4, 2010, Officer Terry Rogers of the Mansfield Police Department was patrolling a high drug area and observing a known drug house. As he was observing the house, Officer Rogers noticed a van driving down the street that did not have its taillights illuminated. The van had not come from the driveway of the particular house that was under surveillance; rather it was just passing through the area driving down the street. Officer Rogers did not observe anyone exit the home and enter or approach the van, nor did he observe anyone exit the van and approach the home.

{¶3} Officer Rogers initiated a traffic stop of the van based upon the taillight violation. Appellant was the driver of the van. Appellant was accompanied by one passenger, Larry Petty. Appellant was able to provide a valid driver's license to the officer; the passenger was not able to produce a valid driver's license, but did provide the officer with a social security number. Appellant informed Officer Rogers that the taillights were activated by a separate switch which appellant had forgotten to turn on. He did so, and Officer Rodgers indicated to appellant that if his information checked out, the officer would simply issue appellant a warning citation. As Officer Rogers was running appellant's and his passenger's information through the computer system, Officer Phil Messer, Jr. arrived at the traffic stop to assist Officer Rogers.

{¶4} Mr. Petty was found to have an active felony warrant for failure to appear*fn1 . Officer Rogers removed Mr. Petty from the van. Officer Messer initiated his contact with appellant. As Officer Messer spoke with appellant, appellant began looking around the vehicle and moving his hands around a lot. The officer decided to remove appellant from the vehicle.

{¶5} Officer Messer immediately initiated a pat-down search of appellant, at which time the officer noticed something large in appellant's pocket. Officer Messer asked appellant what was in his pocket. Appellant informed him that it was cash. Officer Messer asked appellant if he had anything else in his pocket. Appellant responded he did not think he did have anything else in his pocket. Appellant informed Officer Messer that he had just been released from jail and that he had a receipt from the jail for the cash. Officer Messer asked appellant if he, Officer Messer, could reach into appellant's pocket and retrieve the cash. Appellant said yes. Officer Messer retrieved the cash but did not count it at that time. Officer Messer asked appellant where he got the money. Appellant told Officer Messer that he had a receipt for the cash inside the van.

{¶6} Officer Rogers went to the van to retrieve the receipt. As he approached the passenger side of the vehicle and looked inside he saw a baggie lying in the console area of the van. When he picked up the baggie, Officer Rogers observed a small amount of what he believed to be crack cocaine inside the baggie*fn2 . The receipt for the cash was located underneath the baggie. Appellant was arrested.

{¶7} Appellant was indicted by the Richland County Grand Jury in September, 2010 for one count of Possession of Crack Cocaine, a schedule II narcotic, in violation of R.C. 2925.11(A), a felony of the fifth degree. Appellant filed a motion to suppress on November 3, 2010. A hearing was held on December 22, 2010. By Judgment Entry filed December 22, 2010 the trial court overruled the motion.

{¶8} A two day jury trial commenced on January 24, 2011. The jury found appellant guilty of Possession of Crack Cocaine on January 26, 2011.

{¶9} Appellant has timely appealed raising the following assignments of error,

{¶10} "I. THE COURT ERRED WHEN IT DENIED THE DEFENSE'S MOTION TO SUPPRESS, AND THUS FAILED TO EXCLUDE CERTAIN EVIDENCE SEIZED IN VIOLATION OF RIGHTS GUARANTEED THE ACCUSED BY THE FOURTH, FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

{¶11} "II. THE COURT ERRED AND DUE PROCESS WAS VIOLATED WHEN THE COURT FAILED TO ORDER THE RETURN OF ALL MONIES THAT HAD BEEN UNCONSTITUTIONALLY SEIZED FROM THE ACCUSED.

{¶12} "III. ASSUMING THE COURT DETERMINED A VOLUNTARY CONSENT TO SEARCH WAS GIVEN, THE COURT ERRED, AND THE ACCUSED WAS DENIED DUE PROCESS, IN THE WAKE OF THE COURT SO RULING.

{¶13} "IV. GIVEN THE EVIDENCE HERE IS INSUFFICIENT TO SUPPORT ANY FINDING OF GUILT BEYOND A REASONABLE DOUBT, IT FOLLOWS THE

COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL MADE AT THE CLOSE OF ALL THE EVIDENCE." I. & III.

{¶14} In his First Assignment of Error, appellant cites as error the trial court's decision to overrule his motion to suppress the evidence. In his Third Assignment of Error appellant argues that any consent to search given by appellant was the result of an illegal search and seizure of his person before the consent was obtained. Appellant's First and Third assignments of error raise common and interrelated issues; therefore, we will address the arguments together.

{¶15} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 797 N.E.2d 71, 74, 2003- Ohio-5372 at ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and to evaluate witness credibility. See State v. Dunlap (1995), 73 Ohio St.3d 308, 314, 652 N.E.2d 988; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. Accordingly, a reviewing court must defer to the trial court's factual findings if competent, credible evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v. Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d 1; State v. Medcalf (1996), 111 Ohio App.3d 142, 675 N.E.2d 1268. However, once this court has accepted those facts as true, it must independently determine as a matter of law whether the trial court met the applicable legal standard. See Burnside, supra, citing State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539; See, generally, United States v. Arvizu (2002), 534 U.S. 266, 122 S.Ct. 744; Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657. That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review. Ornelas, supra. Moreover, due weight should be given "to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, supra at 698, 116 S.Ct. at 1663.

{¶16} In the case at bar, the appellant does not challenge that the van which appellant was driving was lawfully stopped for a traffic violation.

{¶17} A. Prolonged stop.

{¶18} Appellant first contends that the lawful detention for the equipment violation became an unlawful detention when the officers continued to detain appellant after arresting the passenger.

{¶19} "'[W]hen detaining a motorist for a traffic violation, an officer may delay a motorist for a time period sufficient to issue a ticket or a warning.'" State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, at ¶ 12. (Quoting State v. Keathley (1988), 55 Ohio App.3d 130, 131). "This measure includes the period of time sufficient to run a computer check on the driver's license, registration, and vehicle plates. Further, [i]n determining if an officer completed these tasks within a reasonable length of time, the court must evaluate the duration of the stop in light of the totality of the circumstances and consider whether the officer diligently conducted the investigation. State v. Batchili, supra. (Internal quotation marks and citations omitted).

{¶20} However, "[a]n officer may not expand the investigative scope of the detention beyond that which is reasonably necessary to effectuate the purposes of the initial stop unless any new or expanded investigation is supported by a reasonable, articulable suspicion that some further criminal activity is afoot." Batchili, supra 113 Ohio St.3d 403, 2007-Ohio-2204 at ¶ 15. (Citing State v. Howard, Preble App. Nos. CA2006-02-002 and CA2006-02-003, 2006-Ohio-5656 at ¶ 16). "In determining whether a detention is reasonable, the court must look at the totality of the circumstances." State v. Matteucci, 11th Dist. No.2001-L-205, 2003-Ohio-702, ¶ 30, citing State v. Bobo (1988), 37 Ohio St.3d 177, 178.

{¶21} In the case at bar, the record check of appellant's passenger revealed an outstanding warrant. Thus, the stop was lawfully prolonged by the resulting arrest of the passenger.

{¶22} B. Ordering appellant out of the van.

{¶23} Recently, in Arizona v. Johnson (2009), 555 U.S. 323, 129 S.Ct. 781, the United States Supreme Court noted, "[t]hree decisions cumulatively portray Terry's application in a traffic-stop setting... In [Pennsylvania v.] Mimms, [434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (per curiam)], the Court held that 'once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment,' Id. at 111, n. 6, 98 S.Ct. 330, because the government's 'legitimate and weighty' interest in officer safety outweighs the 'de minimis' additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, Id., at 110-111, 98 S.Ct. 330...[Maryland v.] Wilson, [519 U.S. 408, 414, 117 S.Ct. 882] held that the Mimms rule applies to passengers as well as drivers, based on 'the same weighty interest in officer safety...' Brendlin [v. California, 551 U.S. 249, 263, 127 S.Ct. 2400,] held that a passenger is seized, just as the driver is, 'from the moment [a car stopped by the police comes] to a halt on the side of the road.' A passenger's motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U.S., at 414, 117 S.Ct. 882. And as 'the passengers are already stopped by virtue of the stop of the vehicle,' Id., at 413-414, 117 S.Ct. 882, 'the additional intrusion on the passenger is minimal,' Id., at 415, 117 S.Ct. 882. Pp. 786 - 787." Arizona v. Johnson, supra, 555 U.S. 323, 129 S.Ct. at 786-787.

{¶24} Accordingly, under the facts of this case we find Officer Messer's request that appellant exit the van to be lawful.

{¶25} C. The pat-down of appellant.

{¶26} Authority to conduct a pat-down search does not flow automatically from a lawful stop; a separate inquiry is required. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889. The Fourth Amendment requires that an officer have had a "reasonable fear for his own or others' safety" before frisking. Terry at 30, 88 S.Ct. 1868, 20 L.Ed.2d 889. Specifically, "[t]he officer ... must be able to articulate something more than an 'inchoate and unparticularized suspicion or hunch.'" United States v. Sokolow (1989), 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). Whether that standard is met must be determined from the standpoint of an objectively reasonable police officer, without reference to the actual motivations of the individual officers involved. United States v. Hill (D.C.Cir.1997), 131 F.3d 1056, 1059 (quoting Ornelas v. United States (1996), 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911). [Internal quotation marks omitted].

{ΒΆ27} The frisk, or protective search, approved in Terry is limited in scope to a pat-down search for concealed weapons when the officer has a reasonable suspicion that the individual whose behavior he is investigating at close range may be ...


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