Criminal Appeal from Common Pleas Court, Trial Court Case No. 2011-CR-04329
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Attorney for Plaintiff-Appellee
KRISTINE E. COMUNALE, Atty. Reg. #0062037, Attorney for Defendant-Appellant
(¶ 1} Defendant-appellant Wesley T. Tritt appeals from his conviction and sentence for Possession of Heroin in an amount less than one gram. Tritt contends that the trial court erred in overruling his motion to suppress evidence, because the police officer who discovered the heroin did not have reasonable grounds to conduct a pat-down.
(¶ 2} We conclude that the trial court did not err in overruling Tritt's motion to suppress. Accordingly, the judgment of the trial court is Affirmed.
I. A Turn-Signal Violation Leads to a Traffic Stop, a Pat-Down Search for Weapons, and an Arrest for Possession of Heroin
(¶ 3} On the evening of December 25, 2011, Dayton Police Officers Mark Orick and Robert Clinger were on patrol near westbound State Route 35 when they observed a vehicle driven by Tritt preparing to turn from James H. McGee Boulevard onto the entrance ramp to State Route 35. Officer Orick and Tritt have differing versions as to what happened next.
(¶ 4} According to Officer Orick, he initiated a traffic stop of Tritt's vehicle when Tritt failed to activate his turn signal before turning onto the entrance ramp. Officer Orick approached the driver's side window of Tritt's vehicle, while Officer Clinger approached the passenger side. Officer Orick told Tritt that the traffic stop was initiated due to Tritt's failure to use his turn signal. Officer Orick asked for Tritt's driver's license. Tritt fumbled for his driver's license and began volunteering information about the fact that he was traveling from his girlfriend's place, but he could not recall her address. Tritt's hand was shaking badly when he handed his driver's license to Officer Orick, and Tritt appeared very nervous. Tritt also began fumbling around to get his insurance card, despite the fact that Officer Orick had not yet asked for any insurance information.
(¶ 5} Officer Orick gave the driver's license to Officer Clinger, who returned to the cruiser to confirm Tritt's identification on the in-cruiser computer system. While Officer Clinger ran Tritt's information, Officer Orick stood back from the driver's side window and observed Tritt make a call on a cellular phone. Officer Clinger alerted Officer Orick that the in-cruiser computer system revealed Tritt had previously been charged with resisting arrest and assault. Officer Orick then observed Tritt bend over and manipulate something in the area of his left leg for a few seconds. Officer Orick became concerned that Tritt might be reaching for a weapon.
(¶ 6} Officer Orick approached the driver's side door and ordered Tritt out of the vehicle. Officer Orick opened the door, pulled Tritt out of the vehicle, and then placed him against the car. Officer Orick began a pat-down of Tritt. During the pat-down, a baggie full of capsules fell out of Tritt's pants. Officer Orick immediately recognized the capsules as likely to contain heroin. After a positive field test for heroin, Tritt was arrested.
(¶ 7} Tritt's version of events is different. According to Tritt, he did not fail to use his turn signal when he turned onto the ramp. Tritt believed that he was being pulled over for a loud muffler. Furthermore, Officer Orick did not tell Tritt that the traffic stop was due to a failure to use a turn signal, and Tritt did not recall receiving a ticket for failing to use his turn signal. Tritt did subsequently pay a fine for failing to use his turn signal. Tritt also disputes making any furtive movement toward his leg during the traffic stop. Finally, Tritt testified that Officer Orick shook him for almost two minutes during the pat-down, until the heroin fell out of his pants.
(¶ 8} The trial court found Officer Orick's testimony to be more ...