[Cite as State v. Walker,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24542

v. : T.C. NO. 10CR721

DANIEL J. WALKER : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 2nd day of March , 2012.

..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOYCE M. DEITERING, Atty. Reg. No. 0005776, 8801 N. Main Street, Suite 200, Dayton, Ohio 45415 Attorney for Defendant-Appellant

..........

FROELICH, J.

{¶ 1} After the trial court overruled his motion to suppress, Daniel Walker pled 2

no contest to possession of heroin, a fourth degree felony.1 As part of the negotiated plea, a

charge of possession of drug abuse instruments was dismissed. The trial court found

Walker guilty and sentenced him to community control.

{¶ 2} Walker appeals from his conviction, claiming that the trial court erred in

denying his motion to suppress. For the following reasons, the trial court’s judgment will

be affirmed.

I.

{¶ 3} Detective David House and Officer Raymond Dine of the Dayton Police

Department testified at the hearing on Walker’s motion to suppress. Their testimony

revealed the following facts.

{¶ 4} At approximately 8:00 p.m. on February 26, 2010, Detective House, a

19-year police veteran, was patrolling in an unmarked police vehicle in the 2100 block of

South Edwin C. Moses Boulevard near Interstate 75. The parking lots of the four

businesses in that block, including a McDonald’s restaurant, are well-known to the police as

locations where drug transactions occur and where individuals gather to use illegal drugs that

were purchased nearby. House indicated that he specifically patrolled this area on a nightly

basis looking for such activity.

{¶ 5} As Detective House drove, he saw a white panel van parked on the west side

of the McDonald’s lot in a location where individuals involved in illegal drugs often park,

due to its distance from the front doors to the restaurant and the fact that the drive-through

1 The judgment entry states that Walker pled guilty to possession of heroin. Based on the plea form that Walker signed, the trial court’s reference to a guilty plea appears to be a typographical error. 3

window is on the other side of the building. House observed that the van had out-of-county

license plates. He stated that many individuals come from outside of Montgomery County

to purchase drugs. House ran the license plates through his on-board computer and found

that the plates had expired in October 2009. The detective circled the restaurant and parked

near the front of the building, where he could watch the van.

{¶ 6} Detective House saw that the van contained a driver, later identified as

Michael Burcham II, and a passenger, later identified as Walker. House did not see either

person eating in the van, and they did not go into the restaurant. As House watched, Walker

got out of the passenger side and leaned back into the vehicle to manipulate something;

House could not see what Walker had in his hands. Walker re-entered the vehicle. A

couple of minutes later, Walker exited the vehicle and began to walk toward a trash can, but

he stopped in the middle of the parking lot and returned to the van. The van then backed

out of the parking space and headed toward the parking lot’s exit. House did not, at any

time, view the occupants in the van engaging in a drug transaction or using illegal drugs.

{¶ 7} At 8:10 p.m., Detective House drove around the restaurant in the opposite

direction as the van, activated the red and blue flashing lights on the visor of his unmarked

car, and stopped his vehicle. The white van stopped a few feet from the police vehicle,

facing it. House testified that he stopped the van for the expired license plates and for a

drug investigation.

{¶ 8} House got out of his vehicle, wearing a utility vest that identified him as a

police officer. He illuminated the interior of the van with his flashlight, and shouted,

“Dayton police.” House could not see the hands of the men inside the van, and he observed 4

both individuals “moving frantically as if they were trying to hide something or retrieve

something.” House yelled, “Show me your hands,” and moved toward the front of the van;

neither individual complied. The detective then drew his weapon, pointed it at the driver

through the front windshield, and again ordered the men to show their hands. Burcham

complied. When Walker did not and kept reaching toward the floorboard area, House went

to the driver’s side window and yelled for Walker to show his hands; Walker did.

{¶ 9} Detective House got Burcham out of the vehicle, handcuffed him, patted

him down, and had him sit on the curb. While doing so, House advised Burcham that he

was not under arrest at that point and that he was being secured in handcuffs for the officer’s

safety. House then removed Walker from the van, advised that he was not under arrest,

handcuffed him, patted him down, and sat him near Burcham. During Walker’s patdown,

the detective retrieved a box cutter tool from Walker’s coveralls. House then radioed for

back-up. As he waited, he notified the men of their Miranda rights. Both men indicated

that they understood their rights and were willing to answer questions. House asked them

from where they had come.

{¶ 10} After other officers arrived, Detective Hall spoke with Walker as House and

another detective searched the front portion of the van. Detective House looked around the

van’s passenger’s seat while Detective Reigle looked around the driver’s seat. (House had

informed Reigle that the driver had been reaching down toward the seat.) Reigle located a

cellophane wrapper with ten gel caps, each with suspected heroin. House recovered $2,600

located in a glass jar in the center floorboard area of the front seat.

{¶ 11} Detective House returned to Burcham and asked him about the heroin. 5

Burcham stated that the heroin belonged to Walker. Detective Hall relayed to House that

Walker was saying that the heroin belonged to Burcham. Both men were arrested for

possession of heroin.

{¶ 12} Officer Dine reported to the McDonald’s for the purpose of transporting

Walker and Burcham, who had already been arrested, to jail. Prior to placing Walker into

his cruiser, Dine searched Walker for any weapons or additional contraband. Dine

discovered a hypodermic syringe in Walker’s front right pants pocket. After Walker was

placed in the cruiser, Dine observed him squirming in his seat. Walker was removed from

the cruiser and searched again; no additional drugs or contraband were located.

{¶ 13} During the drive to the jail, Officer Dine continued to see Walker “making

a lot of suspicious movements”; Walker was still squirming and appeared to be trying to

raise his legs up to the bench seat and move his hands toward the bottom portion of his

trousers. Burcham informed Dine that Walker was trying to place contraband in the back of

the police car. After Walker was removed from the cruiser at the jail, Officer Dine

recovered a baggie with thirteen capsules of heroin from the floorboard of the vehicle.

{¶ 14} Walker was indicted for possession of heroin and possession of drug abuse

instruments. He moved to suppress all evidence obtained as a result of the stop of the van.

A hearing on the motion was held on October 26, 2010. At the conclusion of the hearing,

the trial court orally overruled the motion. Later, the court issued a written entry denying

Walker’s motion. Walker subsequently pled no contest to possession of heroin, and he was

sentenced accordingly.

II. 6

{¶ 15} Walker’s sole assignment of error states:

THE TRIAL COURT ERRED WHEN DENYING THE

DEFENDANT-APPELLANT’S PRE-TRIAL MOTION TO SUPPRESS

FINDING THE ARREST AND THE SEARCH WERE LAWFUL.

{¶ 16} In his assignment of error, Walker claims that the trial court erred in denying

his motion to suppress, because (1) he was arrested, without probable cause, at the time of

the initial traffic stop; (2) the warrantless search of the vehicle was impermissible due to lack

of probable cause; and (3) the warrantless search of the vehicle was contrary to Arizona v.

Gant,

,

,

(2009).

{¶ 17} In addressing a motion to suppress, the trial court assumes the role of the

trier of fact. State v. Morgan, 2d Dist. Montgomery No. 18985,

, citing State

v. Curry,

,

(8th Dist. 1994). The court must

determine the credibility of the witnesses and weigh the evidence presented at the hearing.

In reviewing the trial court’s ruling, an appellate court must accept the findings of fact

made by the trial court if they are supported by competent, credible evidence.

However, “the reviewing court must independently determine, as a matter of law, whether

the facts meet the appropriate legal standard.”

{¶ 18} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio,

,

,

(1968). Under Terry, police officers may briefly stop and/or

temporarily detain individuals in order to investigate possible criminal activity if the officers

have a reasonable, articulable suspicion that criminal activity may be afoot. State v. Martin, 7

2d Dist. Montgomery No. 20270,

, citing Terry. We determine the

existence of reasonable suspicion by evaluating the totality of the circumstances, considering

those circumstances “through the eyes of the reasonable and prudent police officer on the

scene who must react to events as they unfold.” State v. Heard, 2d Dist. Montgomery No.

19323,

, ¶ 14, quoting State v. Andrews,

,

(1991). The officer must have more than an inchoate hunch or suspicion to

justify an investigatory stop.

{¶ 19} At the outset, we agree with Walker that Detective House lacked a

reasonable suspicion of drug activity when he stopped the van in the parking lot. House did

not observe either occupant eating while they were seated in the van, but he also did not see

any drug transactions or drug use by Walker or Burcham. The van’s presence in a location

away from the front door and drive-through window is itself innocent, or at most ambiguous,

and not indicative, by itself, of criminal activity. Moreover, the fact that the van had

out-of-county plates is also innocent, particularly since the McDonald’s restaurant is located

close to an exit from an interstate highway. “[T]he mere fact that this innocent or

ambiguous conduct occurred in an area where crimes had occurred does not make it criminal

in character or give rise to a reasonable suspicion of specific criminal activity.” State v.

Belcher, 2d Dist. Montgomery No. 24385,

.

{¶ 20} Nevertheless, Walker acknowledges that the expired license plates created a

lawful basis for Detective House to stop the van. A police officer may lawfully stop a

vehicle if the officer has a reasonable articulable suspicion that the operator has engaged in

criminal activity, including a minor traffic violation. State v. Mays,

, 8

,

. Once House learned that the van’s license plates

had expired, the detective was authorized to stop the vehicle.2

{¶ 21} Walker contends that he was immediately arrested by Detective House

when the officer approached the vehicle with his gun drawn and handcuffed him.

According to Walker, this level of seizure exceeded a Terry stop and required the existence

of probable cause.

{¶ 22} It is well-established that not all seizures rise to the level of a formal arrest.

As stated above, under Terry, police officers may conduct an investigatory detention that is

more intrusive than a consensual encounter, but less intrusive than a formal custodial arrest.

E.g., State v. Keggan, 2d Dist. Greene No. 2006 CA 9,

. “The test

for determining if a seizure is an arrest rather than a Terry-type detention is if a reasonable

person in the suspect’s position would have understood the situation to constitute a restraint

on freedom of movement of the degree which the law associates with formal arrest.”

citing Yarborough v. Alvarado,

,

,

(2004).

“‘A seizure is equivalent to an arrest when (1) there is an intent to arrest; (2) the seizure is

made under the real or pretended authority; (3) it is accompanied by an actual or constructive

seizure or detention; and (4) it is so understood by the person arrested.’ An arrest must be

based on probable cause.” (Citation omitted.) State v. Lewis, 2d Dist. Montgomery No

22726,

.

{¶ 23} Detective House testified that he stopped the white panel van, in a high

2 Walker argued to the trial court that Detective House could not initiate a traffic stop – and was precluded by Evid.R. 601(C) from testifying about the stop – because he was in an unmarked police vehicle and undercover attire. See R.C. 4549.14; R.C. 4549.16. The trial court rejected these arguments, and Walker has not challenged this ruling on appeal. 9

crime area, for the dual purposes of conducting a drug investigation and issuing a ticket for

the expired license plates. Upon exiting his vehicle, House illuminated the interior of the

van with his flashlight and shouted, “Dayton police.” House drew a gun only after seeing

Walker and Burcham “moving frantically as if they were trying to hide something or retrieve

something” and after neither man responded to his initial command that they show their

hands. House drew his weapon because he feared that the two men might be reaching for a

weapon.

{¶ 24} The record further reflects that House removed Burcham and Walker from

the vehicle and handcuffed them to ensure his safety. The stop occurred after dark, and

House was alone with two individuals who may have hidden a weapon in their vehicle, a

fact that “increases the possible sources of harm to the officer.” Maryland v. Wilson,

,

,

(1997). House specifically informed both

men that they were not under arrest and that they were being placed in handcuffs for his

safety. After the men were placed on the curb, House requested back-up from other

officers.

{¶ 25} Considering the totality of the circumstances, the detective’s actions of

drawing his gun and handcuffing Walker did not constitute an arrest. Given Walker’s

frantic movements below the dashboard upon being stopped by the police, his failure to

comply when ordered to show his hands, and their location in a high crime area, House took

reasonable actions to ensure his safety while initiating an investigatory detention. See State

v. Mayberry, 2d Dist. Montgomery No. 23736,

.

{¶ 26} Walker next claims that the warrantless search of the van was 10

impermissible. He argues that House lacked probable cause to believe that the occupants

had engaged in any criminal activity, other than driving in a car with expired plates. He

further argues that the officers could not conduct a protective search of the vehicle once

Burcham and Walker were handcuffed and placed on the curb.

{¶ 27} “Authority to conduct a patdown search for weapons does not automatically

flow from a lawful stop[.]” State v. Stewart, 2d Dist. Montgomery No. 19961,

. Once a lawful stop has been made, the police may conduct a limited

protective search for concealed weapons if the officer reasonably believes that the suspect

may be armed or a danger to the officer or to others. State v. Evans,

,

(1993); State v. Molette, 2d Dist. Montgomery No. 19694,

. “The purpose of this limited search is not to discover evidence of

crime, but to allow the officer to pursue his investigation without fear of violence ***.”

Evans at 408, quoting Adams v. Williams,

,

,

(1972).

{¶ 28} Similarly, the police may search the passenger compartment of an

automobile, limited to those areas in which a weapon may be placed or hidden, if an officer

possesses a reasonable belief that an individual is dangerous and may gain immediate control

of weapons located in the vehicle upon returning to it. Michigan v. Long ,

,

,

(1983); State v. Roye, 2d Dist. Greene No. 2001-CA-5,

(June 22, 2001).

{¶ 29} To justify a patdown search or the search of a passenger compartment, “the

police officer must be able to point to specific and articulable facts which, taken together 11

with rational inferences from those facts, reasonably warrant that intrusion.” Terry,

,

,

. However, “[t]he officer need not be absolutely

certain that the individual is armed; the issue 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.”

; State v. Smith,

,

(1978). The

totality of the circumstances must “be viewed through the eyes of the reasonable and prudent

police officer on the scene who must react to events as they unfold.” Andrews,

,

, citing State v. Freeman,

,

(1980).

{¶ 30} In this case, Detective House, a lone officer, initiated a traffic stop after

dark in a high crime area. He testified that, after he activated his flashing lights, shone a

flashlight into the van, and identified himself as a police officer, he observed Walker and

Burcham frantically moving their hands near the floorboard, out of the officer’s sight. The

men did not immediately respond to his commands that they show their hands. The

detective stated that he had concerns that they might “come up with a weapon.” Under the

totality of the circumstances, Detective House had a reasonable basis to believe that Walker

or Burcham may have been armed and/or that a weapon may have been hidden in the front

passenger area of the van. Accordingly, House was entitled to conduct a limited protective

search for weapons for his safety.

{¶ 31} The lawfulness of House’s protective search of the passenger area of the

vehicle was not limited by the fact that the men were handcuffed and seated on the curb

when the search occurred. House testified: “After checking the area where these individuals 12

had been reaching, if nothing had been discovered, Mr. Burcham would have been issued a

citation for driving with an expired license plate. And both individuals would have been

allowed to leave.” Considering that, at the time of the search, it was likely that one, if not

both, of the occupants would be permitted to return to the van, House acted reasonably

when, out of a concern for the officers’ safety, the van was searched for weapons prior to

allowing Burcham and Walker to re-enter the vehicle. See State v. Nelson, 2d Dist.

Montgomery No. 22718,

, ¶ 47.

{¶ 32} Finally, Walker claims that, if he were under arrest when the van was

searched, the search was unlawful under Arizona v. Gant,

,

,

. Gant addressed whether the search-incident-to-arrest exception to the Fourth

Amendment’s warrant requirement – set forth in Chimel v. California,

,

,

(1969), and applied to automobile searches in New York v.

Belton,

,

,

(1981) – permitted the search of a

vehicle after a motorist was arrested and placed in the back of a patrol car.

{¶ 33} As stated above, we have concluded that Walker was not under arrest at the

time the front passenger area of the van was searched for weapons, and there was a

possibility that one or both of the men would be permitted to return to the vehicle. This

matter did not involve a search incident to an arrest. Accordingly, the search of the van is

governed by Long, and Gant does not apply.

{¶ 34} Walker’s assignment of error is overruled.

III.

{¶ 35} The trial court’s judgment will be affirmed. 13

..........

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Michele D. Phipps Joyce M. Deitering Hon. Frances E. McGee