[Cite as State v. Williams ,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 10CA3162 : vs. : Released: February 15, 2011 : PERNELL E. WILLIAMS, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Pamela C. Childers, Chillicothe, Ohio, for Defendant-Appellant.

Michael M. Ater, Ross County Prosecutor, and Jeffrey C. Marks, Ross County Assistant Prosecutor, Chillicothe, Ohio, for Plaintiff-Appellee. _____________________________________________________________

McFarland, J.:

{¶1} Defendant-Appellant, Pernell E. Williams, appeals the

decision of the Ross County Court of Common Pleas finding him guilty of

aggravated possession of drugs. Williams argues the trial court erred in

denying his motion to suppress. His argument is unwarranted. During the

incident in question, the officer properly detained and patted-down Williams

under the authority of Terry v. Ohio. Further, the doctrine of “plain feel”

gave the officer the necessary probable cause to conduct the subsequent Ross App. No. 10CA3162 2

search. Accordingly, we overrule Williams’ assignment of error and affirm

the decision of the court below.

I. Facts

{¶2} In June 2009, State Highway Patrol Trooper Nick Lewis,

conducted a traffic stop of a vehicle driven by Williams. In addition to

Williams, two other men were in the car, a Mr. Donahoe and a Mr. Murphy.1

Lewis called for backup, including a canine unit which arrived shortly

thereafter. While checking Murphy’s Michigan ID card, Lewis placed him

in his patrol car, but he allowed Williams and Donahoe to remain in their

vehicle. Once the canine unit and other officers arrived at the scene, the

canine officer conducted a drug check around the vehicle. The canine

subsequently alerted to the presence of drugs.

{¶3} After the positive drug alert, officers removed Donahoe and

Williams from their vehicle. During his pat-down of Williams, Trooper

Lewis felt the presence of a small, round object between Williams’ buttocks.

Lewis believed it was a package containing drugs, but due to safety concerns

he did not remove the object at that time. Lewis then placed Williams in

restraints and put him in his cruiser.

{¶4} Lewis then searched Murphy, and discovered a baggie

containing white powder. After finding the baggie, Lewis handcuffed

1 The record does not contain the first names of the two men. Ross App. No. 10CA3162 3

Murphy and placed him in a cruiser. Another officer then observed Murphy

attempting to conceal something in the backseat. Officers removed Murphy

from the cruiser and searched the area. Their search revealed that Murphy

had been attempting to conceal two OxyContin pills. When Lewis

questioned Murphy about his actions, Murphy admitted the pills were his

and further stated that he had received them from Williams. After Lewis

spoke with Murphy, he questioned Donahoe. Donahoe told Lewis that

Williams and Murphy were involved in selling drugs. He further stated that

Williams and Murphy presently had drugs on their persons. Donahoe was

released at the scene and Williams and Murphy were transported to the

station. There, Williams removed the object between his buttocks that

Lewis had located. The object was a package containing illegal drugs -

OxyContin pills.

{¶5} Williams was subsequently indicted under R.C. 2925.11, for

aggravated possession of drugs - Oxycodone, in an amount equal to or

exceeding five times the bulk amount but less then fifty times the bulk

amount. Williams moved to suppress the evidence on the basis that Lewis

arrested him as soon as he was handcuffed and placed in back of the cruiser,

and that, at that time, Lewis lacked probable cause. Lewis, on the other

hand, testified that when he handcuffed Williams, he was under Ross App. No. 10CA3162 4

“investigative detention,” not arrest. After a full hearing, the trial court

denied the motion to suppress. Pursuant to a plea agreement with the State,

Williams entered a plea of no contest and was sentenced to two years in

prison. Following that sentence, Williams timely filed the current appeal.

II. Assignment of Error

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS IN VIOLATION OF THE FOURTH AMENDMENT OF UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION FOURTEEN OF THE OHIO CONSTITUTION.

III. Standard of Review {¶6} Appellate review of a motion to suppress presents a mixed

question of law and fact. State v. Burnside,

, 2003-Ohio-

5372,

. In a motion to suppress, the trial court assumes

the role of trier of fact and, as such, is in the best position to resolve

questions of fact and evaluate witness credibility. State v. Mills (1992),

,

, citing State v. Fanning (1982),

,

. Accordingly, in our review, we are bound to

accept the trial court's findings of fact if they are supported by competent,

credible evidence. State v. Guysinger (1993),

,

. Accepting those facts as true, we must independently determine

as a matter of law, without deference to the trial court's conclusion, whether Ross App. No. 10CA3162 5

they meet the applicable legal standard. State v. Klein (1991),

,

.

IV. Legal Analysis

{¶7} We first note that the legality of the initial traffic stop is not in

dispute and is not an issue in the current matter. Rather, Williams’

assignment of error is based on two arguments 1) there were no articulable

facts to justify Lewis’ pat-down of Williams; 2) even if the pat-down was

warranted, Lewis did not have probable cause as a result of that pat-down to

arrest Williams. For the following reasons, we disagree.

{¶8} The Fourth Amendment to the United States Constitution and

Article I, Section Fourteen of the Ohio Constitution protect individuals from

unreasonable searches and seizures. The Supreme Court of the United

States recognizes three types of police-citizen interactions in this context: 1)

a consensual encounter; 2) a Terry stop; and 3) a full-scale arrest. State v.

Travis, 4th Dist. No. 06CA3098,

, citing Florida v.

Royer (1982),

,

and United States v.

Mendenhall (1980),

,

. Fully addressing the

issues in the case sub judice requires an analysis of both the second and third

types of interactions, the Terry stop, and probable cause for an arrest.

{¶9} In Terry v. Ohio, (1968),

,

, the

Supreme Court ruled that one exception to the Fourth Amendment warrant Ross App. No. 10CA3162 6

requirement allows a police officer to conduct a brief investigative stop if

the officer possesses a reasonable suspicion that criminal behavior is

imminent.

; see, also, United States v. Brignoni-Ponce (1978),

,

,

; State v. Andrews (1991),

,

. Under Terry, a police officer may stop or detain

an individual without probable cause when the officer has a reasonable

suspicion of criminal activity, but that suspicion must be based on specific,

articulable facts. State v. Dearth, 4th Dist. No. 09CA3122,

,

at ¶10, citing

. “Reasonable suspicion cannot be justified by

mere intuition, but instead must be based upon specific, articulable facts and

such rational inferences as may be drawn from those facts.” State v. Boggs,

4th Dist. No. 04CA2803, 04CA2804,

, citing

.

{¶10} Additionally, to pat-down an individual during a Terry stop,

the officer must have reason to believe the individual is armed. “ * * *

[T]here must be a narrowly drawn authority to permit a reasonable search

for weapons for the protection of the police officer, where he has reason to

believe that he is dealing with an armed and dangerous individual, regardless

of whether he has probable cause to arrest the individual for a crime. The

officer need not be absolutely certain that the individual is armed; the issue Ross App. No. 10CA3162 7

is whether a reasonably prudent man in the circumstances would be

warranted in the belief that his safety or that of others was in danger.”

. The purpose of a Terry search “is not to discover evidence of a crime,

but to allow the officer to pursue his investigation without fear of violence *

* * .” State v. Evans (1993),

,

,

quoting Adams v. Williams (1972),

,

.

{¶11} In the instant matter, and despite Williams’ arguments to the

contrary, we find that Trooper Lewis’ pat-down constituted a valid

application of the Terry doctrine. As already noted, a canine unit was called

to the scene and alerted to the presence of drugs in the vehicle. Ohio courts

have determined that such canine checks of the exterior of a vehicle do not

constitute a search within the meaning of the U.S. and Ohio Constitutions.

See, e.g., State v. Williams, 12 Dist. No. CA2009-08-014,

,

at ¶22. Accordingly, before conducting a canine check, there need not be a

reasonable, articulable suspicion of criminal activity. Further, it is well

established that once a canine has positively alerted to the scent of drugs in

the vehicle, police have probable cause to search it. See, e.g., State v.

Dewitt, 2nd Dist. No. 23735, 2010-

, at ¶45; State v. Johnson, 12th

Dist. No. CA2009-12-307,

, at ¶58. Ross App. No. 10CA3162 8

{¶12} Here, when the canine alerted to the presence of drugs,

Williams, along with Donahoe, was still sitting in the vehicle. Thus,

Trooper Lewis had a reasonable suspicion, based on articulable facts, of the

existence of criminal activity. As such, he was fully justified, under Terry,

in detaining Williams and removing him from the vehicle.

{¶13} We also find that Lewis’ subsequent pat-down of Williams

was fully justified under Terry. Ohio courts have recognized that people

involved in illegal drug activity are often armed and officers have a right to

pat-down those people for their protection. “The right to frisk is virtually

automatic when individuals are suspected of committing a crime, like drug

trafficking, for which they are likely to be armed.”

.

Accordingly, we find that both Williams’ detention and pat-down were

properly conducted under the authority of Terry v. Ohio. We now turn to the

second part of our analysis, whether or not Lewis had probable cause for

Williams’ arrest.

{¶14} As previously stated, when Lewis patted-down Williams, he

discovered a suspicious object in the rear of his pants. “Although Terry

limits the scope of the search to weapons, the discovery of other contraband

during a Terry search will not necessarily preclude its admissibility.” State

v. Hansard, 4th Dist. No. 07CA3177,

. The United Ross App. No. 10CA3162 9

States Supreme Court adopted this “plain feel” doctrine in Minnesota v.

Dickerson (1993),

,

,

. There,

the court stated, “If a police officer lawfully pats down a suspect's outer

clothing and feels an object whose contour or mass makes its identity

immediately apparent, there has been no invasion of the suspect's privacy

beyond that already authorized by the officer's search for weapons; if the

object is contraband, its warrantless seizure would be justified by the same

practical considerations that inhere in the plain-view context.”

at 375-

376. “If the illegal nature of the suspicious object is not immediately

apparent, police are not permitted to continue touching, feeling or

manipulating the object to identify its nature.”

{¶15} We have approved the application of the “plain feel” doctrine

in circumstances very similar to the case sub judice. In State v.

a police officer made a vehicle stop, removed the defendant, and

patted him down for safety reasons. During the pat down, the officer located

a tennis ball-sized object on the inside of the defendant’s thigh. The officer

removed the object which proved to be packets of crack cocaine. The

defendant moved to suppress the evidence, arguing that the officer lacked

probable cause to remove the object and arrest him. In overruling the

defendant's argument, we determined that the nature of the object as Ross App. No. 10CA3162 10

contraband was immediately apparent. “In the context of the plain feel

exception to the warrant requirement, ‘immediately apparent’ is a term of art

- it simply means the officer has probable cause to associate the object with

criminal activity.” Id. at ¶31.

{¶16} We further stated in Hansard that determining probable cause

involves a legal conclusion and, thus, requires de novo review. Id. at ¶35.

Additionally, we stated there is probable cause for a search when an officer

has a reasonable suspicion “that is sufficiently strong to warrant a prudent

person in believing that the place to be searched contains evidence of a

crime.” Id., citing State v. Williams, 11th Dist. No. 2003-T-0071, 2004-

Ohio-6337, at ¶16. Finally, in determining probable cause, courts must

“look to the totality of the facts and circumstances, including a police

officer's specialized knowledge.” Hansard at ¶35, citing State v. Jones, 4th

Dist. No. 03CA61,

.

{¶17} In the case sub judice, though the trial court found that Lewis

unquestionably had the right to pat-down Williams, it did not think that

locating the object during the pat-down established probable cause. The

court stated, “Based solely upon the feel of the hard object, this Court Ross App. No. 10CA3162 11

doesn't think that there was probable cause to make the arrest.” 2 We

disagree with that finding.

{¶18} It was immediately apparent to Lewis that the object was

contraband from more than just the “feel of the hard object.” The first and

most obvious indicator was that the canine had alerted to the presence of

drugs in the vehicle while Williams was still inside. As such, Lewis had a

reasonable suspicion that illegal drugs were in the vicinity. Next was the

physical characteristics and the location of the object itself. At the

suppression hearing, Lewis stated that it was a hard, golf ball-like object

located between Williams’ buttocks. When asked about his opinion as to

what the object was, Lewis testified that “I believed it was some form of

narcotic, an illegal drug. * * * Based on my experience. I've had several

stops that have went that way where I found something in the rear of

someone's pants, and it's always been an illegal drug.” Thus, Lewis’

specialized knowledge also enabled him to form a reasonable suspicion as

to the nature of the object.

{¶19} Lewis did not remove the object at the time of its discovery

due to safety concerns. “I prefer that the defendant, or the subject at the time

2 Though the trial court did not believe that probable cause was established at that point under the “plain feel” doctrine, it still denied Williams’ motion to suppress. The court found that additional, subsequent evidence, including statements from Murphy and Donahoe, and the discovery of the two OxyContin pills, combined with the object found during William’s pat-down, did constitute probable cause. Ross App. No. 10CA3162 12

would remove it themselves, basically for my safety.” However, based on

the totality of the facts and circumstances, we find that Lewis had probable

cause to do so.

{¶20} The crux of Williams’ argument is that, despite Lewis’

testimony to the contrary, Williams was placed under arrest the moment he

was handcuffed and placed in back of the cruiser. Williams argues that

because Lewis lacked probable cause at that point, the drug evidence must

be suppressed. However, we do not find it necessary to determine the exact

moment of Williams’ arrest. Even assuming that Williams is correct and he

was functionally under arrest immediately following the pat-down, our

“plain feel” analysis related above demonstrates that Lewis did, in fact, have

the necessary probable cause.

V. Conclusion {¶21} After reviewing the record below, we find that Trooper Lewis

was justified in detaining and patting down Williams under the authority of

Terry v. Ohio. Further, under these particular facts and circumstances, it

was immediately apparent that the object Lewis discovered during the pat-

down was contraband. As such, there was probable cause for the search, and

the trial court's decision to overrule Williams’ motion to suppress was

correct. Accordingly, we overrule Williams’ sole assignment of error.

JUDGMENT AFFIRMED. Ross App. No. 10CA3162 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.