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State v. Nolen

Court of Appeals of Ohio, Fourth District, Scioto

January 8, 2020

STATE OF OHIO, Plaintiff-Appellee,
v.
STEVEN A. NOLEN, [1] Defendant-Appellant.

          Samuel H. Shamansky, Donald L. Regensburger, and Colin E. Peters, Samuel H. Shamansky Co., L.P.A., Columbus, Ohio, for appellant.

          Shane A. Tieman, Scioto County Prosecutor, and Jay Willis, Scioto County Assistant Prosecutor, for appellee.

          DECISION AND JUDGMENT ENTRY

          Michael D. Hess, Judge.

         {¶1} Steven Nolan appeals from his convictions, following a no contest plea, for possession of heroin, assault, and escape. The charges stemmed from a traffic stop during which an Ohio State Highway Patrol trooper conducted a pat-down search that resulted in the discovery of approximately 80 grams of heroin. Nolan contends the trial court erred in multiple ways when it denied his motion to suppress. For the reasons that follow, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶2} The Scioto County grand jury indicted Nolan on one count each of felonious assault, possession of heroin, trafficking in heroin, assault, escape, obstructing official business, and endangering children. He moved to suppress all evidence obtained as a result of the traffic stop that led to the charges, and the trial court conducted a hearing on the motion.

         {¶3} Ohio State Highway Patrol Trooper Nick Lewis testified that on May 18, 2018, he was on duty in a marked cruiser traveling northbound on U.S. 23 into Lucasville, Ohio. A gold Honda Accord passed him heading southbound on U.S. 23. Five or six months earlier, a detective from the Scioto County Sheriffs Office had advised Trooper Lewis that a vehicle with the same tag number as the Accord "was transporting drugs from Columbus to Portsmouth." The tag number "came back to a black female out of Columbus." Trooper Lewis turned his cruiser around to follow the vehicle. As he was "coming up behind" the vehicle, he observed it "make a lane change from the left lane to the right lane without the use of a turn signal." He "[caught] up to the vehicle" and saw it "cross over the white fog line several times."

         {¶4} Trooper Lewis testified that he initiated a traffic stop based on these traffic violations. He approached the vehicle and made contact with the driver, Nolan, who had his three-year-old son in the back seat. Trooper Lewis requested Nolan's driver's license and the vehicle registration. Nolan advised the trooper that his "old lady" owned the vehicle. Trooper Lewis testified that he saw marijuana on the center console by the gearshift. He described the marijuana as "residue" in his report but described it as "two small pieces of marijuana" during his testimony. Trooper Lewis testified that he had been a trooper for about 14 years, been trained to recognize illicit drugs such as marijuana, and "made thousands of marijuana arrest[s]."

         {¶5} Trooper Lewis asked Nolan to step out of the vehicle while he checked Nolan's driver's license and advised him of the reasons for the stop. Once Nolan exited the vehicle, Trooper Lewis asked whether he had any "weapons or anything" on him. Nolan said he did not. Trooper Lewis testified that he requested permission to conduct a pat-down search, and Nolan "just kind of threw his hands up as - -as if to say go ahead." Therefore, Trooper Lewis was "under the impression it was a consensual pat-down." During the pat-down search, Nolan asked why Trooper Lewis had pulled him over. Trooper Lewis said: "You crossed over the white line a couple times when I come up behind you. Widen your stance for me, please. You got something down the front of your pants?" Nolan denied having anything.

         {¶6} Trooper Lewis testified that he "felt a hard object in the middle of [Nolan's] pants, basically between his - -his buttocks." Later, Trooper Lewis clarified that he could not tell if it was "between [Nolan's] buttocks or if it was up underneath his genitalia." Trooper Lewis "recognized" the object "as contraband." He explained the object "felt like a hard square object" that was "tied in a bag or something." Trooper Lewis testified that he had been in a "scenario like this, probably 3 or 400 times," and every time he has located an object where he located the object in this case, it has "been drugs." However, Trooper Lewis testified, "I'm checking for weapons," and, "Obviously, I don't want to miss a weapon there."

         {¶7} After finishing the pat-down search, Trooper Lewis "went to grab [Nolan's] hands to handcuff him" and place him under arrest. Nolan then "pulled away" and "put his left hand down the front of his pants" or "down towards the front of his pants." Trooper Lewis "tackled him into a ditch." Trooper Lewis testified that Nolan punched him a few times, and Trooper Lewis restrained Nolan until backup arrived. At some point, Trooper Lewis retrieved the object in Nolan's pants, and testing revealed it contained about 80 grams of heroin.

         {¶8} On cross-examination, Trooper Lewis acknowledged he had been trained to prepare "complete and accurate" reports. He admitted his report did not include all of the details about the information he had received from the detective but testified this was because it pertained to an "ongoing investigation" he did not want to hamper. When defense counsel asked Trooper Lewis to read the portion of his report that referenced the signal violation, he said: "The second sentence. 'I turned on the vehicle. Observed it make a lane change from the left lane into the right lane.'" Upon further inquiry, Trooper Lewis acknowledged the report did not actually mention the signal violation. Trooper Lewis testified that he "thought it was in the report," and the omission was an oversight. Trooper Lewis agreed that the signal violation was "not visible on the video" and that when he responded to Nolan's inquiry about the reason for the stop, he did not mention that violation. Trooper Lewis noted that he was "doing the pat-down during that time."

         {¶9} The trial court denied the motion to suppress. The court found that Trooper Lewis "observed the gold Honda Accord change lanes without signaling and travel across the right fog line several times as the vehicle proceeded south on U.S. Rt. 23." The court noted that the state "offered a video of the Trooper's in-car camera which, while difficult to see at times, because of distance and focus, supports and bolsters the Trooper's testimony as to the edge line, or fog line violations." In addition, the court found that "within 1 ½ minutes from the time of the stop Trooper Lewis observed a small amount of marijuana on the center console." The court found that Trooper Lewis asked Nolan to get out of the vehicle and "asked to pat him down." The court also found: "Upon patting the defendant down the Trooper testified, and the video shows Defendant begin to pull away from the trooper. Immediately the Trooper reached for the defendant's arm to place him in hand-cuffs whereupon Defendant begins to fight with the Trooper."

         {¶10} The trial court concluded that Trooper Lewis had reasonable suspicion to stop the Accord because his testimony about the traffic violations was "credible." The court concluded about two minutes elapsed between the stop and physical altercation, which was "well within the time necessary to conduct a traffic stop, and the testimony at the hearing showed the Trooper was beginning that process when the altercation started." The court also determined that "the scope of the stop, and its purpose, was expanded when the Trooper observed the marijuana upon the center console area of Defendant's vehicle, upon his initial approach to the vehicle." Regarding the scope of the pat-down search, the court concluded the search "was in areas of Defendant's body, and conducted by Trooper Lewis in a manner to search, where a weapon may be found." The court found that nothing in the video showed "any manipulation of Defendant's person of [sic] clothing beyond what would be necessary in determining if he had a weapon." The court noted that the object Trooper Lewis found was not removed until "after Defendant pulled away from and assaulted the Trooper." The court also stated that Trooper Lewis "testified that he believed the item to be contraband based on its location and feel, although the Trooper[']s inquiry as to the nature of the item[ ] was interrupted by Defendant's attempted flight, and assault of the Trooper." Finally, the court concluded probable cause supported the arrest based on the "observation of marijuana in Defendant's vehicle, the feeling of a hard object in Defendant's buttock area, the Trooper[']s experience of finding contraband hidden similarly, that Defendant initially began to pull away from the Trooper, and that before the Trooper could place Defendant under arrest, the fact that he ran and subsequently assaulted the Trooper."

         {¶11} Nolan pleaded no contest to possession of heroin, assault, and escape. The trial court found him guilty of those offenses and dismissed the remaining counts. The court imposed an aggregate sentence of eight years in prison, with four years being mandatory.

         II. ASSIGNMENTS OF ERROR

         {¶12} Nolan presents four assignments of error:

1. The trial court erred when it failed to grant Appellant's Motion to Suppress, where the traffic stop of his vehicle was conducted in the absence of reasonable suspicion, in violation of Appellant's rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution.
2. The trial court erred when it failed to grant Appellant's Motion to Suppress, where the scope of the stop was expanded in the absence of reasonable suspicion, in violation of Appellant's rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution.
3. The trial court erred when it failed to grant Appellant's Motion to Suppress, where the search of Appellant's person exceeded the scope of a Terry pat-down and was without probable cause, in violation of Appellant's rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution.
4. The trial court erred when it failed to grant Appellant's Motion to Suppress, where the Appellant was arrested without probable cause, in violation of his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution.

         III. STANDARD OF REVIEW

         {¶13} In general "appellate review of a motion to suppress presents a mixed question of law and fact." State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The Supreme Court of Ohio has explained:

When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without ...

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