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State v. Billups

Court of Appeals of Ohio, First District, Hamilton

June 16, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
MYRON BILLUPS, Defendant-Appellant.

         Criminal Appeal From: Hamilton County, Court of Common Pleas Trial No. B-1405443

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Paul Croushore, for Defendant-Appellant.

          OPINION

          DETERS, JUDGE.

         {¶1} Defendant-appellant Myron Billups appeals his conviction for trafficking in heroin. On appeal, he challenges the trial court's denial of his motion to suppress evidence recovered from his person and his vehicle during a traffic stop. Billups argues the police officers lacked reasonable suspicion to conduct a Terry pat-down, the pat-down exceeded the permissible scope, the officers excessively detained him to await the arrival of a drug-sniffing canine, and the officers lacked probable cause to arrest him. Finding none of his arguments meritorious, we affirm the trial court's judgment.

         Trial Court Proceedings

         {¶2} Billups was charged with two second-degree felonies, trafficking in heroin, a violation of R.C. 2925.03, and possession of heroin, a violation of R.C. 2925.11. Billups moved to suppress all the evidence obtained from the search of his person and vehicle and requested an evidentiary hearing. At the hearing, the state stipulated that it had lacked a warrant to arrest Billups, and therefore, it had the burden to prove probable cause to arrest him. The state presented testimony from Officer Eric Schaible. Billups presented four exhibits, which the trial court admitted into evidence: the video of the traffic stop, the photographs of the items seized during the stop, and the traffic citation. At the conclusion of the hearing, the trial court took the matter under advisement. The trial court subsequently denied the motion to suppress, providing detailed findings of fact and conclusions of law.

         {¶3} Thereafter, Billups entered a no-contest plea, and the trial court found him guilty of both counts of trafficking in heroin and possession of heroin. At sentencing, the trial court merged, at the state's election, the possession count with the trafficking count and sentenced Billups to four years in prison for the trafficking offense.

         Analysis

         {¶4} In a single assignment of error, Billups argues the trial court erred by denying his motion to suppress.

         {¶5} Appellate review of a motion to suppress presents a mixed question of fact and law. See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The trial court, acting as the trier of fact, is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, an appellate court must accept the factual findings if they are supported by competent, credible evidence, but it reviews de novo the trial court's application of the law to the facts. Id.; see also State v. Sweeten, 1st Dist. Hamilton No. C-150583, 2016-Ohio-5828, ¶ 8.

         Trial Court's Factual Findings

         {¶6} The trial court made the following findings of fact, which are supported by competent credible evidence. Officer Schaible and his partner were in uniform and on patrol in a marked police cruiser. They were watching Billups and others at a United Dairy Farmers store. When Billups drove away, the officers followed his vehicle. Billups's vehicle entered a turn lane and quickly changed lanes. The officers initiated a traffic stop for improper change of course and for improperly tinted windows.

         {¶7} The officers then approached Billups's vehicle and spoke with him. Billups was moving around in the vehicle and seemed very nervous, which caused Officer Schaible to suspect something illegal might be in the vehicle. Officer Schaible and his partner went back to their cruiser and ordered a drug dog to the scene. Officer Schaible started filling out the citation for the window-tint violation and the improper change of course, as well as a contact card that he is required to complete during all stops. He also ran Billups's record. Billups had been charged with a weapons violation ...


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