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State v. Oliver

Court of Appeals of Ohio, Fifth District, Guernsey

July 24, 2019

STATE OF OHIO Plaintiff - Appellee
v.
GRETA J. OLIVER Defendant-Appellant

          Appeal from the Guernsey County Court of Common Pleas, Case No. 18CR44

          For Plaintiff-Appellee JASON R. FARLEY Assistant Guernsey County Prosecuting Attorney

          For Defendant-Appellant MICHAEL GROH

          JUDGES: Hon. John W. Wise, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          BALDWIN, J.

         {¶1} Greta J. Oliver appeals the Guernsey County Court of Common Pleas denial of her motion to suppress evidence. The State of Ohio is Appellee.

         STATEMENT OF FACTS AND THE CASE

         {¶2} A Terry search of Appellant led to the discovery of illicit drugs in Appellant's pocket and charges of two counts of Aggravated Possession of Drugs in violation of R.C. 2925.11(C)(1)(a), felonies of the fifth degree. Appellant alleged the search exceeded the parameters of a Terry search and filed a motion to suppress the evidence discovered during the search. The trial court disagreed and found the search was subject to the plain feel doctrine. After the motion to suppress was denied, Appellant entered a no contest plea and was found guilty of one count of Aggravated Possession of Drugs in violation of R.C. 2925.11(C)(1)(a).

         {¶3} Detective Dustin Gerdau of the Cambridge, Ohio Police Department, was on duty watching a house for suspected drug activity. Appellant's vehicle stopped at the house, stayed for about thirty minutes and left. Detective Gerdau followed the vehicle and noticed that it did not have a functional license plate light, a misdemeanor offense. He stopped Appellant at approximately 2:00 AM and cited her for a violation of local ordinance 74.05(A)(2) which prohibits operation of a vehicle without a functioning license plate light.

         {¶4} After Appellant stopped, Detective Gerdau requested her identification and the identification of her passenger, John Work. He asked if Appellant had anything illegal in the car and Appellant revealed that there was a knife in the car, but she denied having any marijuana and stated she did not do drugs. Detective Gerdau asked if he could search the vehicle and she began exiting the car. The Detective asked her to wait and that they would have her and her passenger exit separately. During this time, another officer confirmed that her passenger, John Work, was subject to a warrant for his arrest. He was removed from the vehicle and placed under arrest and in the back of a cruiser.

         {¶5} When Appellant exited the car, Detective Gerdau asked if she had anything on her and if he could search her pockets. Her response was unclear and he asked several times until she stated that she did not want him to touch her. Detective Gerdau admitted he did not have reason to search Appellant and did not do so.

         {¶6} Patrolman Bridget L. Vickers arrived at the scene and was ordered to watch Appellant during the search. Patrolman Vickers was not told anything more about the situation and did not know if the Appellant was the driver or the passenger. She noticed that the Appellant was acting odd, digging in her pockets and stating she was going to get sick. She complained on several occasions of being ill and suffering intestinal distress. The Patrolman thought Appellant's behavior was suspicious and described her as "going for the same side pocket and kind of leaning. I believed she was trying to hide a weapon or something in that pocket. She didn't want me to know what she was doing." At that point she decided to conduct a search to insure that she did not have any weapons.

         {¶7} Patrolman Vickers was a new officer, still in training, but she had previously served in the Guernsey County Jail for two and one half years, as well as three years in the juvenile corrections system. During this time she was responsible for searching persons coming into the jail. She testified that she performed thousands of searches during her tenure in the County Jail and the juvenile corrections system.

         {¶8} During the search of Appellant, Patrolman Vickers noticed a small lump in the watch pocket of Appellant's jeans, which had the consistency of a baggie sliding underneath the cloth of the jeans. She testified that it was immediately apparent to her that this was contraband, something that should not have been there. She explained that "[generally when people put things in that pocket and it's a lump, and you feel that underneath the pocket, it's drugs." She removed the item from Appellant's pocket and discovered a plastic bag containing a round tablet and a crystalline substance identified afterward as methamphetamine. The tablet was identified as Oxycodone. Patrolman Vickers testified her expectation that she ...


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