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State v. Murray

Court of Appeals of Ohio, Eleventh District, Lake

December 29, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
CHAD A. MURRAY, Defendant-Appellant.

         Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2016 CR 000549.

          Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, (For Plaintiff-Appellee).

          Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, (For Defendant-Appellant).

          OPINION

          CYNTHIA WESTCOTT RICE, P.J.

         {¶1} Appellant, Chad A. Murray, appeals the judgment of the Lake County Court of Common Pleas denying his motion to suppress evidence. At issue is whether the trial court erred in finding appellant's consent to search his shoes was voluntary and in denying his motion to suppress. For the reasons that follow, we affirm and remand.

         {¶2} On July 8, 2016, appellant was indicted for possession of heroin, a felony of the fourth degree with a forfeiture specification - contraband (heroin). Appellant pled not guilty. Subsequently, he filed a motion to suppress evidence, and the trial court held a suppression hearing.

         {¶3} The evidence revealed that on May 20, 2016, at about 10:00 a.m., Mentor Police Officer Bryan Distelrath was patrolling traffic on Emerald Court in Mentor when he saw a Pontiac Grand Prix fail to signal his turn at a stop sign before entering the Sam's Club Gas Station.

         {¶4} Officer Distelrath activated his overhead lights and siren. The driver of the Grand Prix drove into the gas station and stopped near the gas pumps. The officer exited his cruiser and approached the vehicle on the driver's side. There were four occupants in the Pontiac. None of them had a driver's license or identification card, but they all provided their names and other identifying information. The driver was Michael Murray. His girlfriend, Cortinei Andrews, was in the front passenger seat. The driver's brother, appellant, was seated in the back passenger seat on the driver's side. Brandy Simmons was in the back passenger seat next to appellant.

         {¶5} While Officer Distelrath was standing at the driver's side of the vehicle talking to the occupants, he smelled the odor of alcohol coming from the vehicle and saw two open beer cans in the back seat area within appellant's reach. The officer saw that appellant was slouched down in his seat, breathing heavily, nervous, and avoided looking at the officer. Ms. Simmons appeared to be under the influence because her pupils were constricted and she looked lethargic.

          {¶6} Officer Distelrath then left the vehicle and its occupants and returned to his cruiser to run their information through LEADS. The officer learned that the driver, Michael Murray, did not have a valid driver's license and had multiple driver's license suspensions. Appellant had no warrants for his arrest, but had a prior conviction for operating a vehicle while under the influence.

         {¶7} Officer Distelrath requested a second vehicle to provide backup, and Mentor Officer Jason Myers responded. Officer Distelrath brought Officer Myers up to date, and both officers then approached the suspect vehicle. Officer Distelrath asked Michael to step outside. Officer Distelrath told him he was being arrested for driving without a valid driver's license and handcuffed him. Michael was then secured in the back seat of Officer Distelrath's cruiser.

         {¶8} The officers then returned to the vehicle. Officer Distelrath asked appellant to exit the car. As he did, the officer told appellant he was not under arrest. After appellant stepped out of the car, he was still acting nervously. He was breathing heavily and his hands were trembling.

         {¶9} Officer Distelrath told appellant he was going to perform a pat down search. The officer testified he conducted a pat down of appellant as he was trained to do. He had appellant put his hands behind his back and, while holding onto both of appellant's hands with one hand, the officer conducted a pat down of appellant's outer clothing with his other hand to see if he had any weapons. The frisk, which lasted less than ten seconds, did not reveal any weapons or contraband.

         {¶10} Officer Distelrath then released appellant's hands and asked him where they were coming from and going. Appellant said they were from Delaware County and were in Mentor visiting a friend or relative in the hospital.

         {¶11} Officer Distelrath then asked appellant if he would mind emptying his pockets real quick. Appellant said he would not mind and complied without any hesitation, showing the officers his pockets were empty.

         {¶12} Officer Myers said that when appellant exited the car, he noticed his shoes were untied and loose. As a result, after appellant showed them his pockets were empty, Officer Myers asked appellant, "Could you just do me a quick favor? Do you mind, just take off your shoes real quick. Just take your shoes off for me." At that time, Officer Distelrath was standing a couple feet in front of appellant and Officer Myers was standing behind appellant a couple feet to the right of him. Neither Officer had his hands on appellant and he was still not under arrest. Appellant immediately kicked off his shoes, starting with his right shoe. The officers saw a clear plastic baggie ...


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