Court of Appeals of Ohio, Fifth District, Richland
Criminal appeal from the Richland County Court of Common
Pleas, Case No. 18-CR-62R
Plaintiff-Appellee JOSEPH SNYDER Assistant Prosecuting
Defendant-Appellant RANDALL FRY
JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon.
Earle E. Wise, J.
Appellant Paul Dave appeals the August 20, 2018 judgment
entry of the Richland County Court of Common Pleas overruling
his motion to suppress. Appellee is the State of Ohio.
& Procedural History
On January 25, 2018, appellant was indicted with one count of
possession of heroin, a felony of the fifth degree. Appellant
posted bond on April 10, 2018. The trial court revoked
appellant's bond on May 23, 2018 due to cocaine use.
Appellant filed a motion to suppress evidence on June 7,
2018. On July 20, 2018, appellee filed a response to the
motion to suppress, requesting the motion to suppress be
overruled because the motion failed to state specific factual
and legal grounds that would provide appellee with notice of
what evidence appellant was challenging. The trial court
dismissed the motion to suppress, finding the motion did not
comply with Criminal Rule 47.
Appellant filed a second motion to suppress evidence.
Appellant argued appellee had no warrant to conduct the
search and thus the trial court should suppress the heroin
illegally seized from his person during the warrantless
search. Appellee filed a response and argued the search of
appellant's person was a lawful consensual search, as
appellant gave officers consent to search his vehicle and his
The trial court held a hearing on appellant's motion to
suppress on August 17, 2018. Officer Freeman Nixon
("Nixon") of the Mansfield Police Department
testified appellant was driving with a cracked windshield, so
he performed a traffic stop. Appellant was the driver of the
vehicle and there was a female in the front passenger seat.
Nixon testified appellant gave consent to search the vehicle,
so Nixon removed the female passenger from the car and
Officer Underwood removed appellant from the car. Nixon was
not sure how long the stop lasted, but thought it was about
fifteen to twenty-five minutes since he requested that the
canine come to the stop. Nixon believes the canine was called
out after Underwood found drugs on appellant.
On cross-examination, Nixon testified he asks for consent to
search a vehicle if he believes there are drugs or any type
of crime in the vehicle.
Officer Heath Underwood ("Underwood") of the
Mansfield Police Department testified that after Nixon made a
traffic stop, he went to assist. Underwood made contact with
appellant while Nixon made contact with the female passenger.
Underwood testified he told appellant why the vehicle was
stopped and then asked him if he could search the car.
Underwood testified he said to appellant, "You were
stopped for the cracked windshield. Do you mind if we search
the car for illegal contraband or drugs?" Underwood
stated appellant said he didn't care if they searched the
vehicle. When appellant gave consent, Underwood did not
immediately get him out of the car, but watched Nixon get the
female passenger out of the car first. Underwood then asked
appellant to step out of the car. Underwood asked appellant
to put his hands on the hood for a quick patdown for weapons
before he searched the vehicle. When Underwood was making
sure there were no weapons in his waistband, he felt a crack
pipe in appellant's pocket. Underwood testified that,
from his experience, he knew what it was, but he asked
appellant, "What's in your right front pocket?"
Appellant told Underwood he didn't know. Underwood asked
appellant if he cared if Underwood looked inside the pocket
to see what it was and appellant told him he did not care if
Underwood searched. Underwood then slowly opened the pocket
and looked inside, and saw part of the broken glass of the
crack pipe. Underwood testified he could also see a small
cellophane bag in the bottom of the pocket. Underwood
retrieved the bag and stated he believed it to be heroin.
Underwood described appellant's demeanor as calm but
On cross-examination, Underwood testified when he approached
the vehicle, he did not have any suspicion of other crimes at
the time, other than the cracked windshield. When asked why
he completed a pat-down, Underwood stated it was for officer
safety and since appellant gave consent to search the
vehicle, as appellant stood back there, Underwood did not
want to have to worry about getting shot in the back while he
was bending over in the car. Underwood testified he did not
know if appellant was armed.
After the parties presented their witnesses and evidence, the
trial court overruled appellant's motion to suppress.
Subsequent to the trial court's ruling on the motion to