Court of Appeals of Ohio, Fourth District, Scioto
CRIMINAL APPEAL FROM COMMON PLEAS COURT
A. Tieman, Scioto County Prosecuting Attorney, and Pat Apel,
Scioto County Assistant Prosecuting Attorney, Portsmouth,
Ohio, for appellant.
Jeffrey Moore, Columbus, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
1} This is an appeal from a Scioto County Common
Pleas Court judgment that granted a motion to suppress
evidence. The State of Ohio, plaintiff below and appellant
herein, assigns the following error for review:
"THE TRIAL COURT ERRED IN GRANTING THE APPELLEE'S
MOTION TO SUPPRESS EVIDENCE."
2} On March 25, 2017, Ohio State Highway Patrol
Trooper Nick Lewis stopped a large pickup truck after
clocking the vehicle traveling 65 miles per hour in a 55
mile-per-hour zone. The trooper approached the driver,
appellee, and asked her to exit the vehicle. A protracted
series of events ensued, and the traffic stop eventually led
to the discovery of a large amount of illegal drugs.
3} On May 16, 2017, a Scioto County grand jury
returned an indictment that charged appellee with four
first-degree-felony drug related offenses, tampering with
evidence, assault, and resisting arrest.
4} Appellee later filed a motion to suppress
evidence and alleged that the trooper's seizure and
ensuing search violated her Fourth Amendment rights against
unreasonable searches and seizures. Appellee thus requested
the trial court to suppress all evidence obtained as a result
of the traffic stop.
5} On January 17 and 29, 2019, the trial court held
a hearing to consider appellee's motion to suppress.
Trooper Lewis testified that after he stopped appellee's
vehicle and made the initial contact with appellee, he noted
that her pants were undone. The trooper obtained
appellee's driver's license and asked her to exit the
vehicle. Before appellee exited the vehicle, she took a
jacket from the truck and tied it around her waist. The
trooper explained that he was curious why appellee's
pants were undone and she had tied a jacket around her waist
and he asked for permission to pat her down. The trooper
claimed that appellee agreed to a pat-down search. During the
pat-down search, the trooper stated that he felt something
"hard" between appellee's legs. As the trooper
started to question appellee about it, he saw appellee
attempt to reach into the front of her waistband. The trooper
thought it appeared as though appellee was attempting to
remove a condom from her waistband. The trooper again patted
appellee down to see if the hard object remained, and it did.
The trooper then decided to place appellee under arrest.
6} The state also played the video of the traffic
stop. The transcription of the video reveals that the trooper
asked appellee to step out of the vehicle so that he could
check her license. The trooper also informed appellee that he
was going to pat her down to ensure she did not have any
weapons. As he did so, the trooper noted that he felt
something "hard." He asked appellee whether she had
anything in her pants, and she responded that she did not. He
then told appellee he was going to "check again real
quick." The trooper asked appellee to "[w]iden
[her] stance." He asked appellee if she
"want[ed]" to remove the item he felt. She again
denied having anything in her pants. The trooper once more
asked appellee to "[w]iden [her] stance."
7} At this point appellee objected and demanded that
a female officer be present. The trooper stated that none
were working at that time. Appellee stated: "Well,
you're going to have to call one. You're not allowed
to search me. You're not allowed to search me." The
trooper told her that he is "allowed" to search
her. She responded: "No, you're not. You asked me if
I had weapons on me. I don't have any weapons." The
trooper stated: "but when I pat you down (inaudible)
contraband." Appellee again denied having anything in
her pants. The trooper stated: "Ma'am, you have
drugs right there." Appellee once again denied having
anything in her pants and stated that she was "on [her]
period." She also denied having "a hard
object" in her pants. The trooper then advised appellee
of her rights and stated, "I can see it sticking out of
8} The trooper next explained to appellee that she
could either cooperate with him and hand over the "hard
object" he felt in her pants, or she could continue to
deny that she had anything in her pants and he would take her
to jail. Appellee continued to deny that she had anything in
her pants. The trooper thus transported appellee to the state
highway patrol post. A later series of events resulted in the
discovery of a large amount of illegal drugs.
9} On cross-examination, the trooper agreed that the
reason he asked appellee to exit the vehicle was because he
noted that her pants were undone. The trooper stated that he
suspected that appellee's pants were undone because she
was attempting to conceal contraband. The trooper also agreed
that appellee did not verbally consent to a pat-down search.
He nevertheless believed that appellee consented by
acquiescence. The trooper explained: "She could have
said no, but she consented to my request." The trooper
also stated that even though he "had a hunch that
[appellee] had something down her pants," the purpose of
his pat-down search was to check for weapons. The ...