[Cite as State v. Jacko,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24371

vs. : T.C. CASE NO. 10CR833

ALVIN L. JACKO : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

.........

OPINION

Rendered on the 16th day of December, 2011.

.........

Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros. Attorney, Atty. Reg. No. 0069384, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellee

A. Mark Segreti, Jr., Atty. Reg. No. 0009106, 1405 Streamside Drive, Dayton, OH 45459 Attorney for Defendant-Appellant

.........

GRADY, P.J.:

{¶ 1} Defendant, Alvin Jacko, appeals from his conviction and sentence for

possession of crack cocaine, which was entered on his plea of no contest after the trial court

overruled Defendant’s motion to suppress evidence.

{¶ 2} On January 3, 2010, Trotwood Police Sergeant Joseph McCrary was 2

dispatched to a gas station on Salem Avenue on a report that a customer had attempted to pass

a counterfeit twenty dollar bill. The dispatch included a description of the suspect and his

vehicle. Upon arriving, Sergeant McCrary observed a man and a vehicle matching the

description at one of the gas pumps. The man was Defendant, Alvin Jacko.

{¶ 3} Sergeant McCrary approached Defendant and explained why he was there.

Defendant said he knew police had been called. Sergeant McCrary asked Defendant to go

inside the station with him to talk to the station’s clerk. Once inside, the clerk explained that

Defendant had attempted to pay for his gas with a twenty dollar bill that the clerk, upon

inspection, determined was counterfeit. When the clerk told Defendant that the bill was fake,

Defendant said he had gotten it at a bank, and he asked the clerk to return the counterfeit bill

so he could take it back to the bank. The clerk refused and called police. Defendant then

paid the clerk with a real twenty dollar bill and began pumping his gas.

{¶ 4} Sergeant McCrary asked Defendant where he had obtained the counterfeit bill.

Defendant said he got it at a store. McCrary then asked Defendant if he had any more

counterfeit bills. Defendant said he did not. Sergeant McCrary then asked Defendant, “Do

you mind if I check?” Defendant said, “No, go right ahead,” and then pulled out his wallet

and showed McCrary the bills in his wallet. After examining the money in Defendant’s

wallet, Sergeant McCrary then asked if he could pat defendant down in order to make sure he

didn’t have any more counterfeit money hidden on his person. Defendant said, “That’s fine,”

and raised his arms for the patdown.

{¶ 5} As Sergeant McCrary began the pat down he felt and heard crumpling paper in

Defendant’s jacket pocket, which he suspected was more counterfeit money. When Sergeant 3

McCrary asked Defendant what was in his jacket pocket, Defendant became agitated. He

brought his arms down and began to reach toward that jacket pocket, as though he didn’t want

McCrary to check that pocket. Defendant asked Sergeant McCrary “Do we really have to do

this?” Sergeant McCrary explained that it was necessary.

{¶ 6} When a back-up officer entered the gas station, Defendant put his arms back up

in the air and Sergeant McCrary resumed patting down Defendant’s jacket pocket. Sergeant

McCrary reached in and removed three one dollar bills from that jacket pocket. The bills

were real. When Sergeant McCrary then felt that jacket pocket again, he still heard the same

“crumpling” sound. As Sergeant McCrary began to once again reach inside that jacket

pocket, Defendant became more agitated, turned away from McCrary, and began yelling. At

that point, Sergeant McCrary handcuffed Defendant for safety reasons. McCrary then

reached inside Defendant’s jacket pocket and removed a plastic baggie containing crack

cocaine. Defendant was arrested for possession of cocaine.

{¶ 7} Defendant was indicted on one count of possession of crack cocaine, less than

one gram, in violation of R.C. 2925.11(A). Defendant filed a motion to suppress evidence.

Following a hearing, the trial court overruled Defendant’s motion. The court held that

Sergeant McCrary had reasonable suspicion of criminal activity to justify the investigatory

stop and detention of Defendant under Terry v. Ohio (1968),

,

,

. Additionally, the court held that while Defendant initially voluntarily

consented to the patdown of his person by Sergeant McCrary, Defendant had revoked his

consent for the patdown by the time Sergeant McCrary had to handcuff an agitated Defendant

in order to continue the patdown of his jacket pocket. However, by that time, Sergeant 4

McCrary had probable cause to believe that contraband, counterfeit money, was concealed on

Defendant’s person based upon “plain feel” and hearing a “crinkling” sound when patting

down Defendant’s jacket pocket. That permitted Sergeant McCrary to reach inside that

pocket and remove the item inside.

{¶ 8} Defendant subsequently entered a plea of no contest to the cocaine possession

charge and was found guilty. The trial court sentenced Defendant to five years of community

control sanctions.

{¶ 9} Defendant appeals.

FIRST ASSIGNMENT OF ERROR

{¶ 10} “THE TRIAL COURT ERRED IN FAILING TO GRANT THE MOTION TO

SUPPRESS.”

{¶ 11} In arguing that the trial court erred when it overruled his motion to suppress

evidence, Defendant raises multiple claims regarding why the stop, detention, and search of

his jacket pocket that produced crack cocaine violated his Fourth Amendment rights. We

shall address those in order.

{¶ 12} When considering a motion to suppress, the trial court assumes the role of the

trier of facts and is therefore in the best position to resolve factual questions and evaluate the

credibility of the witnesses. State v. Roberts,

,

.

Consequently, an appellate court must accept the trial court’s findings of fact if they are

supported by competent, credible evidence.

Accepting those facts as true, the appellate

court must then independently determine, without deference to the trial court’s conclusion,

whether those facts satisfy the applicable legal standard.

5

Initial Stop/Detention

{¶ 13} In State v. Cosby,

,

, this court

observed:

{¶ 14} “Warrantless searches and seizures are per se unreasonable under the Fourth

Amendment, subject to only a few well-recognized exceptions. Katz v. United States (1967),

,

,

. One of those exceptions is the rule regarding

investigative stops, announced in Terry,

,

,

, which

provides that a police officer may stop an individual to investigate unusual behavior, even

absent a prior judicial warrant or probable cause to arrest, where the officer has a reasonable,

articulable suspicion that specific criminal activity may be afoot.

{¶ 15} “An officer's inchoate hunch or suspicion will not justify an investigatory stop.

Rather, justification for a particular seizure must be based upon specific and articulable facts

that, taken together with the rational inferences from those facts, reasonably warrant that

intrusion. The facts must be judged against an objective standard: whether the facts available

to the officer at the moment of seizure or search would warrant a person of reasonable caution

in the belief that the action taken was appropriate.

See also State v. Grayson (1991),

,

.

{¶ 16} “Whether an investigative stop is reasonable must be determined from the

totality of the circumstances that surround it. State v. Freeman (1980),

,

,

. The totality of the circumstances are ‘to be viewed through the

eyes of the reasonable and prudent police officer on the scene who must react to events as they

unfold.’ State v. Andrews (1991),

, 87–88,

, citing United 6

States v. Hall (C.A.D.C. 1976),

;

,

,

.”

{¶ 17} Sergeant McCrary was dispatched to the gas station on a report that a customer

had tried to pass a counterfeit twenty dollar bill. The dispatch included a description of the

suspect and his vehicle. Upon arriving at the scene, Sergeant McCrary observed Defendant,

who matched the suspect’s description, pumping gas into a vehicle that matched the suspect

vehicle description. When Sergeant McCrary approached Defendant and explained that he

was there to investigate the passing of counterfeit money, Defendant said he knew police had

been called. Defendant concedes in his appellate brief that Sergeant McCrary had sufficient

reasonable, articulable suspicion of criminal activity to justify an investigatory stop and

detention of Defendant under Terry v. Ohio, supra. We agree.

Consent to Search

{¶ 18} Defendant went inside the gas station with Sergeant McCrary, who spoke to

the station clerk in Defendant’s presence. The clerk related what had happened. McCrary

then asked Defendant if he had any more counterfeit money on his person. Defendant said he

did not. Sergeant McCrary asked Defendant, “Do you mind if I check?” Defendant said,

“No, go right ahead.” Defendant then handed McCrary his wallet and McCrary examined the

money in Defendant’s wallet and determined that it was not counterfeit. Knowing from his

experience as a police officer that counterfeit money is typically not kept or carried in a wallet,

but on the subject’s person, Sergeant McCrary asked Defendant if he could pat him down in

order to make sure that he didn’t have any counterfeit money anywhere on his person.

Defendant said, “That’s fine,” and raised his arms up for the patdown. Sergeant McCrary 7

then began the patdown.

{¶ 19} Defendant argues that he did not consent to the patdown procedure but rather

merely acquiesced and submitted when Sergeant McCrary told him the patdown was normal

procedure. The trial court, however, concluded that McCrary’s testimony on the consent

issue is more credible than Defendant’s, and that the totality of the evidence demonstrates that

Defendant initially freely and voluntarily consented to the patdown procedure. We agree.

{¶ 20} Defendant also claims that the patdown procedure violated his Fourth

Amendment rights because a patdown or frisk is permissible only when the officer reasonably

believes that the suspect may be armed and dangerous, and the limited, protective search is

performed solely for the purpose of discovering concealed weapons. Terry; State v. Evans

(1993),

. That argument is unavailing in this case, however, given that

Defendant was told that the purpose of the pat-down was not to locate a weapon but to find

any counterfeit money hidden on his person, and Defendant gave his voluntary consent for

that patdown procedure.

{¶ 21} In State v. Arnold, Montgomery App. No. 24195,

, at ¶20-22,

we stated:

{¶ 22} “Under applicable legal standards, the State has the burden of showing the

validity of a warrantless search, because warrantless searches are ‘per se unreasonable under

the Fourth Amendment-subject only to a few specifically established and well delineated

exceptions.’ State v. Hilton, Champaign App. No. 08-CA-18,

, ¶ 21-22, citing

City of Xenia v. Wallace (1988),

,

.

{¶ 23} “Consent is one exception to the warrant requirement, and requires the State to 8

show by ‘“clear and positive” evidence that the consent was “freely and voluntarily” given.’

State v. Posey (1988),

,

(citations omitted). ‘A “clear

and positive” standard is not significantly different from the “clear and convincing” standard

of evidence, which is the amount of proof that will produce in the mind of the trier of fact a

firm belief or conviction as to the allegations to be proved. It is an intermediate standard of

proof, being more than a preponderance of the evidence and less than evidence beyond a

reasonable doubt.’ State v. Ingram (1992),

,

(citations omitted).

{¶ 24} “In order to be valid, consent cannot be the product of coercion. ‘“Consent”

that is the product of official intimidation or harassment is not consent at all. Citizens do not

forfeit their constitutional rights when they are coerced to comply with a request that they

would prefer to refuse.’ Florida v. Bostick (1991),

,

,

. Furthermore, ‘the question whether a consent to a search was in fact “voluntary”

or was the product of duress or coercion, express or implied, is a question of fact to be

determined from the totality of all the circumstances.’ Schneckloth v. Bustamonte (1973),

,

,

.”

{¶ 25} The totality of the facts and circumstances in this case support the trial court’s

finding that Defendant initially freely and voluntarily consented to the patdown search for

counterfeit money. There is no evidence of duress or coercion by Sergeant McCrary who

simply asked Defendant for permission to pat him down for counterfeit currency. Defendant

was fully cooperative and said, “that’s fine,” and then raised his arms up to facilitate the

patdown. These facts and circumstances demonstrate that Defendant freely and voluntarily 9

consented to the patdown search for counterfeit money, at least initially.

Revocation of Consent

{¶ 26} A suspect may revoke his consent to a search or limit the scope of the search to

which he consents. State v. Rojas (1993),

; State v. Brown,

,

; State v. Jordan (Mar. 31, 1995), Clark App. No. 94CA55; State

v. Casey (May 26, 2000), Miami App. No. 99CA43.

{¶ 27} When Sergeant McCrary began his patdown of Defendant, he felt and heard

crumpling paper in Defendant’s jacket pocket, which he suspected was more counterfeit

money. When McCrary asked Defendant what was in his jacket pocket, Defendant became

agitated, lowered his arms, and began to reach for that pocket, indicating that he did not want

McCrary to search that jacket pocket. Defendant asked Sergeant McCrary, “Do we really

have to do this?” Sergeant McCrary explained that it was necessary. When a back-up

officer entered the gas station, Defendant put his arms back up in the air and Sergeant

McCrary resumed patting Defendant’s jacket pocket, and reached into that jacket pocket and

removed three one dollar bills that were not counterfeit. Sergeant McCrary then patted that

pocket again, whereupon he again heard the same “crumpling” sound. Believing there still

might be more counterfeit money in that pocket, Sergeant McCrary started to reach inside that

jacket pocket a second time when an increasingly more agitated Defendant turned away and

began yelling. At that point, Sergeant McCrary handcuffed Defendant for safety reasons, and

then reached inside Defendant’s jacket pocket and removed the plastic baggie containing

crack cocaine which led to Defendant’s arrest.

{¶ 28} The trial court concluded that when Defendant became increasingly more 10

agitated during the patdown, it appeared to Sergeant McCrary that Defendant did not want the

patdown to extend to his jacket pocket. However, he did not revoke his consent for the

patdown at that point in time. Later, when Defendant had to be handcuffed to continue the

patdown, Defendant effectively revoked his consent.

{¶ 29} The State concedes in its appellate brief that Defendant effectively revoked

his consent for the patdown search of his jacket pocket well before Sergeant McCrary

handcuffed him. The State admits that Defendant’s consent was likely revoked once he

lowered his arms and protested whether “we really have to do this,” demonstrating by his

conduct that he did not consent to the patdown search extending to his jacket pocket. We

agree. See e.g. United States v. Sanders (8th Circuit, 2005),

. After that, in

order to search Defendant’s pocket for contraband, which was his purpose, Sergeant McCrary

had to have probable cause to believe that the pocket contained more counterfeit bills.

Plain Feel

{¶ 30} The trial court concluded that when Sergeant McCrary first patted

Defendant’s jacket pocket and heard a crinkling noise and felt paper, that gave rise under the

“plain feel” doctrine for probable cause to believe that Defendant had contraband, counterfeit

currency, concealed on his person, which permitted Sergeant McCrary to reach inside that

jacket pocket and remove the item.

{¶ 31} In State v. Victoria, Clark App. No. 2009CA95,

at ¶35, we

stated:

{¶ 32} “Under the plain feel doctrine, an officer conducting a patdown for weapons

may lawfully seize an object if he has probable cause to believe that the item is contraband. 11

Minnesota v. Dickerson (1993),

,

,

; State v.

Phillips,

,

, 2003–Ohio–5742, ¶ 41–42. The

‘incriminating character’ of the object must be ‘immediately apparent,’ meaning that the

police have probable cause to associate an object with criminal activity. Dickerson,

; State v. Buckner, Montgomery App. No. 21892, 2007–Ohio–43392. The officer may

not manipulate the object to identify the object or to determine its incriminating nature.

State v. Lawson,

,

, 2009–Ohio–62, ¶

25.”

{¶ 33} Sergeant McCrary testified that when he first felt the area outside Defendant’s

pocket he felt “paper in [the] pocket . . . it made a crumbling noise, like either loose paper or

money . . . if you squeezed the pocket.” (Tr. 11). When asked whether it was “[f]air to say

you were moving the object that was in his pocket . . . kind of crumpling it, moving it?”,

Sergeant McCrary replied “yes.” (Tr. 28). Sergeant McCrary further testified: “Once I hear

the crumbling, then I want to see if there’s any counterfeit money inside.” (Tr. 23).

{¶ 34} When Sergeant McCrary was asked whether “[a]t that point it’s not readily

apparent as to what that crumbling is. You have your suspicions, it’s not readily apparent,”

the officer replied, “Right.” (Tr. 28). Sergeant McCrary explained that, after removing the

three one dollar bills, “[t]here’s something else inside that pocket that he didn’t want me to

get to. So I reached inside and grabbed – and pulled out the plastic bag.” (Tr. 34).

Sergeant McCrary confirmed that he was “looking for counterfeit money” when he again

reached inside Defendant’s pocket, (Tr. 34), and that he reached inside and pulled the

{¶ 35} object out “prior to knowing what it was.” (Tr. 31). 12

{¶ 36} Taken as a whole, Sergeant McCrary’s testimony was that he heard what he

described as a “crumbling sound,” similar to the sound of paper money that’s moved, when he

first patted down the area outside Defendant’s pocket, “if you squeezed the pocket.”

Squeezing the pocket in that way is the kind of manipulation to determine the identity of what

was in the pocket that Dickerson prohibits. Sergeant McCrary conceded that it was not then

readily apparent to him what the object was, and because Defendant didn’t want him to know

what was in the pocket, Sergeant McCrary reached inside and pulled the object out, for the

purpose of seizing any counterfeit money that was inside. That seizure was not one which

was reasonable under the “plain feel” doctrine of Dickerson, because the criminal character of

what the officer felt was not readily apparent to him when he performed the search of

Defendant’s pocket that resulted in the seizure. The trial court erred when it denied

Defendant’s motion to suppress.

{¶ 37} Defendant’s first assignment of error is sustained.

SECOND ASSIGNMENT OF ERROR

{¶ 38} “THE JUDGMENT ENTRY IS UNLAWFUL IN ERRONEOUSLY

INDICATING HOW THE COURT FOUND DEFENDANT GUILTY.”

{¶ 39} Defendant argues that the judgment of conviction is invalid because the

judgment entry erroneously indicates that Defendant pled guilty when, in fact, he pled no

contest and was found guilty by the court.

{¶ 40} We previously recognized this error in the record of the trial court’s

proceedings and remanded this case back to the trial court to correct that error. See: Decision

and Entry filed March 22, 2011. Pursuant to our remand, on May 26, 2011, the trial court 13

filed an Amended Termination Entry that correctly reflects that Defendant pled no contest and

was found guilty by the trial court. This assignment of error has become moot.

{¶ 41} Defendant’s second assignment of error is overruled.

{¶ 42} Having sustained Defendant’s first assignment of error, the judgment of the

trial court will be reversed and the matter remanded for further proceedings.

FAIN, J., And DONOVAN, J., concur.

Copies mailed to:

Andrew T. French, Esq. A. Mark Segreti, Esq. Hon. Barbara P. Gorman