APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 12 03 0918.
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL
BETH WHITMORE, JUDGE.
(¶ 1} Defendant-Appellant, Tramanne Farrey, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
(¶ 2} Officer Brian Nida and Detective Ted Male were working the Street Narcotics Uniform Detail ("SNUD") on March 28, 2012. The officers were in the area of Maxen Drive and Biruta Street responding to drug complaints when they noticed two cars parked in an empty lot. The officers noticed Farrey, who was standing at the front of the cars, turn and look at them, put his hand inside his right front pants pocket, walk hurriedly to the back of the cars, bend over, and make a throwing motion as if throwing something underneath the vehicle. Farrey then walked back to the front of the cars and began yelling that the officers were on private property as they pulled into the parking lot.
(¶3} Officer Nida approached Farrey to frisk him for weapons and noticed a "baggy of marijuana partially protruding from his right [pants] pocket." Upon discovering the marijuana, Detective Male detained the two other individuals that were on scene. Detective Male then went to search under the rear of the car in the area where they had witnessed Farrey make the throwing motion. Detective Male discovered a bag of heroin and a bag of crack cocaine.
(¶4} Farrey was indicted on: (1) one count of possession of heroin, in violation of R.C. 2925.11(A)/(C)(6), a felony of the fifth degree; (2) one count of possession of cocaine, in violation of R.C. 2925.11(A)/(C)(4), a felony of the fifth degree; and (3) one count of possession of marijuana, in violation of R.C. 2925.11(A)/(C)(3), a minor misdemeanor. Additionally, Farrey's indictment contained two criminal forfeiture specifications for $226 in cash that the police discovered in Farrey's pocket. A jury found Farrey guilty of possession of heroin and cocaine and found that the cash was subject to forfeiture. The court found Farrey guilty of possession of marijuana. Farrey was sentenced to six months in jail and a $100 fine. Farrey now appeals and raises two assignments of error for our review.
Assignment of Error Number One
FARREY'S CONVICTION OUGHT TO BE REVERSED BECAUSE HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED HIM BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
(¶5} In his first assignment of error, Farrey argues that the totality of the circumstances did not permit the police to conduct a Terry stop and that his counsel was ineffective for failing to file a motion to suppress the evidence discovered as a result of the unlawful search.
(¶6} To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that counsel's performance was deficient to the extent that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) that but for counsel's deficient performance the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Accord State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus.
(¶ 7} The Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Accord Ohio Constitution, Article I, Section 14. "For a search or seizure to be reasonable under the Fourth Amendment, it must be based upon probable cause and executed pursuant to a warrant." State v. Moore, 90 Ohio St.3d 47, 49 (2000). Searches conducted without a warrant are presumptively unreasonable, unless an exception to the warrant requirement applies. See Payton v. New York, 445 U.S. 573, 586 (1980).
(¶ 8}An investigatory stop, or Terry stop, is one such exception to the warrant requirement. Terry v. Ohio, 392 U.S. 1 (1968). For an investigatory stop to be justified, an officer must be able to point to "specific and articulable facts, which taken together with rational inferences from those facts, " support a reasonable suspicion of criminal ...