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State v. Ohlert

Court of Appeals of Ohio, Second District

June 21, 2013

STATE OF OHIO Plaintiff-Appellee
v.
DAVID OHLERT Defendant-Appellant

Criminal Appeal from Dayton Municipal Court Trial Court Case No. 2012 CR 6161

JOHN J. DANISH, Atty. and STEPHANIE L. COOK, by ANDREW D. SEXTON, Attorney for Plaintiff-Appellee.

THADDEUS HOFFMEISTER, Attorney for Defendant-Appellant.

OPINION

FAIN, P.J.

{¶ 1} Defendant-appellant David Ohlert appeals from his conviction and sentence for Possession of a Drug Abuse Instrument, in violation of R.C. 2925.12(A), a misdemeanor of the second degree, following a no-contest plea. Ohlert contends that the trial court erred by overruling his motion to suppress the evidence upon the ground that it was obtained as the result of an unlawful search and seizure.

{¶ 2} We conclude that the trial court did not err in overruling Ohlert's motion to suppress. There is evidence in the record that would support a conclusion that the initial contact between Ohlert and the police was a consensual encounter. Thereafter, Ohlert consented to a weapons pat-down. During the pat-down, as a result of Ohlert shifting his stance, the clearly recognizable needle-end of a syringe protruded from his jeans pocket, coming into plain view of the police officer, who seized it.

{¶ 3} The judgment of the trial court is Affirmed.

I. The Encounter and Search

{¶ 4} One evening in late July 2012, Dayton Police Detective Michael A. Auricchio was returning home, in an unmarked car, after having served in a special detail covering Michelle Obama's visit to the Dayton area. Auricchio, a 23-year veteran of the Dayton Police Department, with fifteen years as a detective, was in uniform, but off duty.

{¶ 5} Auricchio noticed Ohlert and a woman, who were on foot. They matched the general descriptions of two suspects in a burglary that had been committed in the immediate vicinity three days earlier. Auricchio got out of his car, approached them, and asked if he could speak with them for a few minutes.

{¶ 6} Auricchio told the pair that they matched the descriptions of two suspects in a recent burglary in the immediate area. After learning that they had no identification on them, Auricchio told them, truthfully, that his radio had stopped working, but that an officer was on his way, and would be there shortly to check out their identities. Ohlert and the woman were cooperative during the entire time.

{¶ 7} Three to four minutes later, Dayton Police Sergeant Mark Ponichtera arrived on the scene and "took over" the investigation. Auricchio remained at the scene, however. Ponichtera decided to do a pat-down.

{¶ 8} Ponichtera asked Ohlert: "I would like to pat you down. You don't mind, do you?" Ohlert responded, "no." During the pat-down, Ohlert shifted his stance, and the capped needle-end of a syringe protruded out of his jeans pocket, plainly visible. Ponichtera immediately recognized the object as a hypodermic syringe, and seized it.

II. The Course of Proceedings

{¶ 9} Ohlert was charged with Possession of a Drug Abuse Instrument. He moved to suppress the evidence, contending that it was obtained as the result of an unlawful search and seizure.

{¶ 10} At the conclusion of the hearing, the trial court overruled the motion, reasoning as follows:

O.K. Based upon the evidence and the testimony presented today, I do believe it was a voluntary encounter. Even if it weren't a voluntary encounter, I would also believe it to be a reasonable stop based upon the information. It wasn't just the information that a burglary had occurred in the area. It was the fact that there was a burglary and you had two people who were there together who strongly matched the description of those involved in that burglary. These weren't just minor details. They were somebody relatively tall who had the same description and the female who had the same description. So I believe it was first a voluntary encounter and then, even if that weren't the case, it was a reasonable stop.
With regards to the frisk. The officer asked or indicated that he would like to pat him down and asked the defendant do you mind? And the defendant said no and raised his hands. I do believe it was a consensual pat down. I don't believe that the interlocking of the fingers takes it away from being consensual. I believe that again, it just ensures the safety of the officer during the pat down. It was a quick pat down. The officer discovered the needle.
I guess the last point would be to note what the State said. This whole encounter was six to eight minutes from the time Detective Auricchio first talked to him to the time the defendant was placed in cuffs was approximately six to eight minutes if you give it the three to four minute time line that each officer gave. (Paragraph breaks added.)

{¶ 11} Ohlert pled no contest. He was sentenced to 90 days in jail, with credit for 30 days served, and the 60-day balance suspended. He was given one year of supervised probation, and entered into a drug treatment program.

{¶ 12} From his conviction and sentence, Ohlert appeals, assigning two errors:

THE OFFICERS VIOLATED THE APPELLANT'S FOURTH AMENDMENT RIGHTS WHEN THEY STOPPED AND SEARCHED HIM WITHOUT REASONABLE SUSPICION.
MR. OHLERT MERELY ACQUIESCED TO A PAT DOWN SEARCH.

{¶ 13} In both of his assignments of error, Ohlert essentially contends that the trial court erred when it overruled his motion to suppress.

III. Ohlert's Contact with the Police Was a Consensual Encounter

{¶ 14} We agree with the trial court that Ohlert's contact with Auricchio, and later with Ponichtera, was a consensual encounter.

{¶ 15} Ohlert and his female companion were on foot. Auricchio parked his car, without blocking them. After getting out of his car, Auricchio approached them; he did not draw his weapon or "lay hands" upon either of them. Auricchio asked if he could speak with them:

A. I asked if I could speak with them for a moment and they walked over towards me. When they got to me I explained the reason why I stopped and wanted to talk to them. I told them that there has been a burglary a couple of days earlier in the neighborhood and they matched the physical description of the two burglars. I asked if they had any identification on them. They both stated that they did not. My radio was dead, I told them that there would be a crew here in just a moment and we could check their information on the radio. I just began asking them some general questions. Where do you live? They both told me they were from Piqua and just made some small talk there with them until Sargent [sic] Ponichtera got there.
Q. Alright and when you asked them to come back over they were fifteen or twenty feet ...

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