from the Franklin County Court of Common Pleas C.P.C. No.
W. Barstow, for defendant-appellant.
O'Brien, Prosecuting Attorney, and Michael P. Walton, for
Michael P. Walton.
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