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State v. Dave

Court of Appeals of Ohio, Fifth District, Richland

July 11, 2019

STATE OF OHIO Plaintiff-Appellee
PAUL DAVE Defendant-Appellant

          Criminal appeal from the Richland County Court of Common Pleas, Case No. 18-CR-62R

          For Plaintiff-Appellee JOSEPH SNYDER Assistant Prosecuting Attorney

          For Defendant-Appellant RANDALL FRY

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Earle E. Wise, J.


          GWIN, P.J.

         {¶1} 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.

         Facts & Procedural History

         {¶2} 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.

         {¶3} 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 person.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 nervous.

         {¶7} 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.

         {¶8} 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 suppress, ...

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