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State of Ohio v. Damaad S. Gardner

November 4, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DAMAAD S. GARDNER DEFENDANT-APPELLANT



T.C. NO. 10CR910 (Criminal appeal from Common Pleas Court)

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

Cite as State v. Gardner,

OPINION

{¶1} Defendant-appellant Damaad Gardner appeals from his conviction for possession of cocaine. For the following reasons, the judgment of the trial court is Reversed, and the case is Remanded.

I

{¶2} According to the testimony at the motion to suppress hearing, on the evening of March 17, 2010, Detective David House of the Dayton Police

Department was patrolling in an unmarked cruiser in a high crime area, when he found himself behind a pick-up truck bearing out-of-county plates. Knowing that it is common for drug buyers to come from outside of Montgomery County to that area of Dayton to purchase illegal drugs, Detective House followed the truck. He checked the truck's registration through LEADS and learned that it was registered to a Clinton County man who had a 2003 conviction for a drug offense. Detective House continued to follow the truck to see if the driver was going to a known drug house.

{¶3} The driver parked the truck in the driveway of a residence. The driver and his passenger got out and entered the residence. Detective House decided to watch the house believing that a short stay could be indicative of drug activity. Seeing no suspicious activity, Detective House left after about fifteen minutes.

{¶4} Approximately three hours later, Detective House drove past the residence again. The truck was still in the driveway, along with a car. The car was registered to Richard Easter, who had an active warrant for his arrest from Butler County for failure to appear for trial on a drug charge. The LEADS system described Easter as a 56-year-old white male, approximately six feet tall, 160 pounds, with brown hair and brown eyes.

{¶5} Detective House moved up the street and resumed watching the house to see if Easter would emerge. Two younger (than Easter's listed age) men came out of the house. One, later identified as Gardner, sat in the passenger seat of the car, and the other sat in the back seat. A few minutes later, at approximately 11:10 p.m., a man matching Easter's description came out of the house, got into the driver's seat of the car, and began to drive away. Detective House followed the car, and was going to call for a marked cruiser to conduct a stop to see whether the driver was Easter and, if so, to place him under arrest for the outstanding warrant.

{¶6} Before House was able to contact a marked cruiser, the driver turned into a gas station and parked, got out of the car, and walked up to the window and purchased cigarettes. Detective House, who was wearing a Dayton Police Department utility vest, parked 25 or 30 feet away and approached the driver. The man admitted that he was Richard Easter, and Detective House placed him under arrest. As Detective House was handcuffing Easter near the driver's door, he saw Gardner moving around inside the car, appearing to be ready to exit the car. Detective House walked Easter behind the car and around to the passenger side so that the detective could talk to the passengers. As the detective and Easter walked around the car, Detective House could see Gardner rise out of his seat and appear to reach into the back of his shorts. Concerned that Gardner might be armed, Detective House shouted for Gardner to place his hands on the dashboard, and Gardner did as told.

{¶7} Detective House had Easter sit on the ground with his back against the rear door and then tried to open the front passenger door, but it was locked. He ordered Gardner to get out of the car, and Gardner complied. Because he was still the only officer on the scene, Detective House handcuffed Gardner. Detective House told Gardner that he was not under arrest and that he was being handcuffed for the officer's safety. Detective House conducted a pat down for weapons. He found no weapons, but he did feel something that he said he immediately recognized to be crack cocaine in Gardner's shorts. Detective House removed the item and placed Gardner under arrest. Before any Miranda warnings were given, Gardner spontaneously stated, "something to the effect 'He gave it to me to hide it.'" After other officers appeared on the scene, they took custody of Gardner and determined that he had an outstanding traffic warrant for his arrest.

{¶8} The trial court overruled the motion to suppress. Gardner pled no contest to one count of possession of cocaine and was sentenced to community control. Gardner appeals.

II

{ΒΆ9} Gardner's Assignment ...


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