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State v. Drake

Court of Appeals of Ohio, Tenth District

March 2, 2017

State of Ohio, Plaintiff-Appellant,
v.
Frederick D. Drake, Defendant-Appellee.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 14CR-6277)

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton.

         Argued:

          Michael P. Walton.

          DECISION

          HORTON, J.

         {¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a Franklin County Court of Common Pleas decision granting the motions to suppress filed by defendant-appellee, Frederick D. Drake ("Drake"). For the following reasons, we reverse the judgment of the trial court.

         I. FACTS AND PROCEDURAL BACKGROUND

         {¶ 2} A Franklin County Grand Jury indicted Drake with one count of improperly handling firearms in a motor vehicle, in violation of R.C. 2923.16. Drake entered a plea of not guilty and filed two motions to suppress, seeking to exclude both a recovered firearm and his statements to the officers.

         {¶ 3} The trial court held an evidentiary hearing. The state called two police officers to testify: John D. Narewski and Kevin George. Officer Narewski testified that, while on patrol on September 3, 2014, he and Officer George were driving to check the parking lot of the Prime Ultra Lounge because there had been numerous arrests in the past. It was routine for them to check the area on Wednesday evenings because the bar was usually very crowded due to a special on chicken wings. As the officers approached the parking lot, Officer Narewski noticed two males sitting in a black Chevy Tahoe. Officer Narewski later identified Drake as the one in the driver's seat. The officers parked on the street. As they exited the cruiser, the individuals walked towards the bar entrance. Officer George testified that they walked "quickly, hurriedly" which drew his attention to them. (Sept. 23, 2015 Tr. at 56.) Officer Narewski stated that Drake began to return to the Tahoe but then Officers Brammer and Baase arrived in a marked cruiser and Drake "did an about-face and walked directly back towards the bar, kept looking over his shoulder at the other [Columbus Police Department] cruiser on the lot." (Tr. at 13.)

         {¶ 4} Officer Narewski walked over to the Tahoe and could "smell a strong odor of burnt marijuana coming from the motor vehicle." Id. The officer looked in the driver's side window of the Tahoe, and "observed a digital scale with a bag of marijuana sitting atop the cup holder located by the center console." Id.

         {¶ 5} At that point, the officers walked to the front of the bar where Drake was standing and asked the two men to return to the Tahoe. Drake asked "why" and Officer Narewski informed him what he observed in the vehicle. (Tr. at 14.) When they returned to the vehicle, Officer Narewski informed Drake he was going to pat him down for weapons. As he was conducting the pat down, Drake "blurted out, hey, I don't have anything on me other than a bag of marijuana" and Officer Narewski recovered a bag of marijuana and the keys to the Chevy Tahoe in Drake's front right pants pocket. (Tr. at 15.) When asked why Officer Narewski searched Drake, he responded:

Basically, his statement that he had the marijuana on him. Usually, because of the drugs in the car, we believed there could possibly be weapons. I conducted a pat-down of his person for weapons. During that pat-down, ...

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