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State v. Brown

Court of Appeals of Ohio, Tenth District

November 19, 2019

State of Ohio, Plaintiff-Appellee/ [Cross-Appellant],
Ronald E. Brown, Defendant-Appellant/ [Cross-Appellee].

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CR-5580

         On brief:

          Todd W. Barstow, for defendant-appellant.

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for plaintiff-appellee.


          Michael P. Walton.

          Todd W. Barstow.


          KLATT, P.J.

         {¶ 1} Defendant-appellant/cross-appellee, Ronald E. Brown ("defendant"), appeals from the December 20, 2018 judgment of the Franklin County Court of Common Pleas. Plaintiff-appellee/cross-appellant, State of Ohio ("the state"), appeals from the same judgment. For the reasons set forth below, we affirm in part, reverse in part, and remand the matter with instructions.

         {¶ 2} Shortly before 5:00 a.m. on May 1, 2015, Columbus Police Officers Pennell and Johnson were dispatched to an apartment at 6216 Lowridge on a report of a burglary in progress. Upon arrival, the officers were met at the door by the woman who had reported the burglary, who averred that the man who was trying to break in was now inside the apartment. The officers found the man, later identified as defendant, in the kitchen/hallway area. Defendant was ordered into the living room, and he complied without incident. Because he had been dispatched to the scene on a reported burglary, Pennell handcuffed defendant and conducted a pat-down search of his outer clothing to determine if he was carrying a weapon. During the pat-down, defendant spontaneously stated that he had a baggie of powder cocaine in his right pocket. Pennell searched defendant's right pocket and recovered the cocaine. Defendant was placed under arrest. Shortly after he was arrested, defendant informed the officers that he lived at the apartment on at least a part-time basis.

         {¶ 3} On October 7, 2016, defendant was indicted on one count of possession of cocaine in violation of R.C. 2925.11, a felony of the second degree. He initially entered a not guilty plea. On June 27, 2017, defendant filed a motion to suppress the cocaine recovered during the pat-down search. Following a September 5, 2017 evidentiary hearing, the trial court orally denied the motion. On October 10, 2017, defendant filed a motion to dismiss the indictment on speedy trial grounds. Following a hearing on November 16, 2017, the trial court denied the motion.

         {¶ 4} On the same day, November 16, 2017, the trial court conducted a plea hearing during which defendant entered a no contest plea to possession of cocaine as charged in the indictment; the trial court found him guilty. Following a sentencing hearing on December 19, 2018, the trial court imposed a prison term of five years and determined that defendant was entitled to 199 days of jail-time credit. The trial court memorialized its judgment in an entry filed December 20, 2018.

         {¶ 5} Defendant timely appeals, advancing the following three assignments of error for this court's review:

I. The trial court erred to the prejudice of appellant by overruling his motion to suppress evidence.
II. The trial court erred to the prejudice of appellant by overruling his motion to dismiss.
III. Appellant's trial counsel was ineffective, thereby depriving him of his [right] to effective assistance of counsel under the United States and Ohio Constitutions.

         {¶ 6} In his first assignment of error, defendant contends the trial court erred in denying his motion to suppress. We disagree.

         {¶ 7} Appellate review of a trial court's disposition of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court assumes the role of trier of fact and is thus in the best position to resolve factual questions and evaluate witness credibility. Id., citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). As such, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982). "Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id., citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

         {¶ 8} Defendant challenges the constitutionality of the detention and pat-down search, specifically claiming that the state failed to demonstrate that Pennell had a reasonable, articulable suspicion of criminal activity sufficient to detain him and conduct a pat-down search. Defendant maintains that because the pat-down search was constitutionally impermissible, the evidence (cocaine) discovered during that search was inadmissible. We note that defendant's argument does not include a challenge to the evidence establishing that during the pat-down search he spontaneously admitted to having cocaine on his person.

         {¶ 9} "In general, '[t]he Fourth Amendment of the United States Constitution, applied to the states through the Fourteenth Amendment, protects persons against unreasonable searches and seizures.'" State v. Richardson, 10th Dist. No. 15AP-870, 2016-Ohio-5801, ¶ 18, quoting State v. Jones, 9th Dist. No. 12CA010270, 2013-Ohio-2375, ¶ 8. For a search or seizure to be reasonable, it must be based upon probable cause and executed pursuant to a warrant, unless an exception to the warrant requirement applies. State v. Battle, 10th Dist. No. 10AP-1132, 2011-Ohio-6661, ¶ 26, citing State v. Moore, 90 Ohio St.3d 47, 49 (2000). "One such exception, recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to 'stop or detain an individual without probable cause when the officer has a reasonable suspicion, based on specific, articulable facts, that criminal activity is afoot.'" State v. Pinckney, 10th Dist. No. 14AP-709, 2015-Ohio-3899, ¶ 18, quoting State v. Jones, 188 Ohio App.3d 628, 2010-Ohio-2854, ¶ 16 (10th Dist.). "Reasonable suspicion entails some minimal level of objective justification, 'that is, something more than an inchoate and unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause.'" Jones at ¶ 17, quoting State v. Jones, 70 Ohio App.3d 554, 556-57 (2d Dist.1990), citing Terry at 27.

         {¶ 10} "The propriety of an investigative stop [or detention] by a police officer must be viewed in light of the totality of the surrounding circumstances." State v. Bobo, 37 Ohio St.3d 177 (1988), paragraph one of the syllabus. "[T]he circumstances surrounding the stop [or detention] must 'be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.'" Id. at 179, quoting United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976); State v. Michael, 10th Dist. No. 12AP-508, 2013-Ohio-3889, ¶ 12.

         {¶ 11} Thus, Terry permits a law enforcement officer who suspects criminal activity to lawfully stop or detain an individual and make a limited search of that person based on grounds less than probable cause. State v. Andrews, 57 Ohio St.3d 86, 89 (1991). The standard to perform an investigative search, like the standard for an investigatory stop or detention, is an objective one based on the totality of the circumstances. Terry at 27. The legal justification for such a search is the protection of the police officer and others nearby, and the permissible scope of the search is limited to a search reasonably designed to discover concealed "guns, knives, clubs, or other hidden instruments for the assault of the police officer." Id. at 29. Thus, an officer must have a reasonable individualized suspicion that the subject is armed and dangerous before the officer may conduct a pat-down for weapons. Id.

         {¶ 12} Here, the testimony presented by Pennell at the suppression hearing established that the detention and subsequent pat-down search of defendant were legally justified under Terry. Pennell, a 10-year veteran of the Columbus Police Department, testified that police officers typically approach the scene of a burglary in progress "with high awareness." (Sept. 5, 2017 Tr. at 6.) Pennell acknowledged that he was aware, via information provided in the dispatch, that the alleged burglar was the father of the woman's child; however, when the woman met the officers at the door, she stated only that the man who was trying to break in was now inside the apartment. She then directed the officers to where defendant was located inside the apartment. The woman provided no information to the officers regarding her relationship, if any, with defendant and did not recant her statement to the police dispatcher that defendant was breaking into her house.

         {¶ 13} Pennell further testified that once defendant emerged from the kitchen area, Pennell immediately detained him "[b]ecause the facts that we had at the time was that he had just broken into that apartment." Id. at 7. He then conducted a pat-down search of defendant's outer clothing "[f]or my protection, for the protection of other people within the residence." Id. Pennell described his motivation for, and the mechanics of, the pat-down search, stating "[p]hysically you're outside of the clothing and you're patting and you're feeling for things like weapons because an offense like a burglary typically comes with some sort of weapon. And we're just * * * making sure that the suspect doesn't have any weapons readily available." Id. at 8.

         {¶ 14} Thus, under the totality of the surrounding circumstances in this case, Pennell's detention and subsequent pat-down search of defendant was not based on a mere suspicion or hunch but on articulable facts that would permit a reasonably prudent police officer to believe that ...

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