Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Heard

Court of Appeals of Ohio, Second District

July 12, 2013

STATE OF OHIO Plaintiff-Appellant
v.
SHEM L. HEARD Defendant-Appellee

(Criminal Appeal from (Common Pleas Court) Trial Court Case No. 2012-CR-1593

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellant.

GEORGE A. KATCHMER, Atty. Reg. #0005031, Attorney for Defendant-Appellee.

OPINION

HALL, J.

{¶ 1} The State of Ohio appeals from the trial court's decision and entry sustaining defendant-appellee Shem L. Heard's motion to suppress the evidence against him.[1]

{¶ 2} The State advances two assignments of error on appeal. First, it challenges the trial court's finding that a stop of Heard's vehicle was unlawful because police lacked reasonable, articulable suspicion of a traffic violation. Second, it claims the trial court erred in finding that Heard did not voluntarily consent to a search of his vehicle.

{¶ 3} The record reflects that a grand jury indicted Heard on one count of cocaine possession, a third-degree felony. He subsequently moved to suppress the cocaine, which police found during a search of his vehicle following a traffic stop. The trial court held a December 4, 2012 hearing on the motion. In a February 8, 2013 suppression ruling, it made the following findings of fact:

* * * Officer Steven Hupp ("Officer Hupp") has been with the Sinclair Police Department for six years. On May 24, 2012, Officer Hupp and Officer Noah Sebastinas ("Officer Sebastinas") were on patrol outside of the Sinclair Community College campus on a street in the City of Dayton. At 8:30 p.m. that night, Officer Hupp was traveling westbound on Washington Street and observed a black pickup truck traveling in the same direction that turned northbound onto Longworth Street. Officer Hupp observed a weight bench in the bed of the truck and as the truck made the northbound turn, the weight bench shifted and almost fell out of the truck. Officer Hupp stopped the truck for violation of unsecure[d] load. Further, when Officer Hupp observed the weight bench, he tried to get a license plate number, but a ball hitch on the truck was covering the license plate. Officer Hupp said the "unsecure[d] load" was a secondary offense to the license plate being "not readable" to him. Officer Hupp then initiated a traffic stop.
When Officer Hupp got out of his police cruiser and walked up to the truck, he was able to read the truck's license plate number. Officer Hupp initiated contact with the Defendant and informed him the reasons for the stop. While Officer Hupp was speaking to the driver, dispatch relayed to him that the registered owner of the truck, the Defendant, had prior drug convictions, but no further information regarding the date of the conviction was provided. Officer Hupp asked the Defendant for his license and insurance and the Defendant provided the same. Officer Noah Sebastinas ("Officer Sebastinas") asked who the vehicle belonged to and the Defendant responded that he owned the truck. The Defendant looked for the registration in the glove compartment but was unable to locate the same. Officer Hupp then asked the Defendant if there is "anything in the car I need to be concerned about" and the Defendant said "no." The Defendant was immediately instructed to turn off the vehicle. Officer Hupp asked "you don't have any problem with me looking." The Defendant indicated that he had his keys in his pocket but Officer Hupp instructed him not to reach for anything. Officer Hupp asked again if there was anything in the truck that he needed to be concerned about and the Defendant again replied "no." Officer Hupp said "you don't mind if I check" and the Defendant said "sure, I ain't got no weapons on me."
The Defendant and his passenger got out of the truck and Officer Hupp searched the vehicle. On the passenger side of the truck, Officer Hupp pulled back the bench seat and saw a clear plastic bag with a white powdery substance. The Defendant was placed under arrest at this time. Officer Sebastinas advised the Defendant of his Miranda rights.

(Doc. #20 at 1-2).

{¶ 4} After making its factual findings, the trial court concluded that the officers lacked reasonable, articulable suspicion to stop Heard's vehicle. With regard to the allegedly unsecured load, it held that the facts did not establish a violation of R.C. 4513.31(A), which provides: "No vehicle shall be driven or moved on any highway unless the vehicle is so constructed, loaded, or covered as to prevent any of its load from dropping, sifting, leaking, or otherwise escaping therefrom * * *." The trial court reasoned that the unsecured weight bench did not violate the statute because it "did not drop, sift, leak, or otherwise escape from the vehicle." (Id. at 5). As for Heard's license plate, the trial court found no violation of R.C. 4503.21, which governs the display of license plates. The trial court noted that the only thing obstructing Heard's license plate was a hitch and that Officer Hupp was able to read the plate upon approaching the vehicle. (Id. at 5-6).

{¶ 5} In addition to finding no lawful basis to stop Heard's vehicle, the trial court addressed his consent to search. It reasoned:

The Court takes issue with Officer Hupp's request for consent to search the Defendant's vehicle. Officer Hupp testified that while he was speaking to the suspect he was advised over his earpiece that the Defendant had a prior drug conviction. However, Officer Hupp did not know the date of the drug conviction or any additional information. From this point, the traffic stop took a sharp turn into a search of the Defendant's vehicle. The Court finds that Officer Hupp's request for consent to search the vehicle begins when he asks the Defendant if there is "anything in the car I need to be concerned about" and the Defendant says "no." Officer Hupp instructs the Defendant to turn off the vehicle and asks "you don't have any problem with me looking." The Defendant indicates that he has his keys in his pocket but Officer Hupp instructs him not to reach for anything. Officer Hupp asks again if there is anything in the truck that he needs to be concerned about and the Defendant again replies "no." Officer Hupp says "you don't mind if I ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.