[Cite as State v. Wade,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26275

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE RYAN P. WADE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CR 2011 10 2745

DECISION AND JOURNAL ENTRY

Dated: September 19, 2012

CARR, Judge.

{¶1} Appellant, State of Ohio, appeals the judgment of the Summit County Court of

Common Pleas granting the motion to suppress filed by appellee, Ryan Wade. This Court

reverses.

I.

{¶2} Wade was a passenger in a Ford Expedition that was stopped by the Akron police

on October 4, 2011. Police subsequently discovered a gun lodged under the back seat where

Wade had been sitting. On October 17, 2011, the Summit County Grand Jury indicted Wade on

one count of carrying a concealed weapon, one count of receiving stolen property, and one count

of improperly handling firearms in a motor vehicle. On November 4, 2011, Wade filed a motion

to suppress all evidence obtained as a result of the traffic stop. After a hearing, the trial court

issued an order granting the motion on January 17, 2012. 2

{¶3} The State filed a timely notice of appeal. On appeal, the State raises one

assignment of error.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING THE MOTION TO SUPPRESS.

{¶4} In its assignment of error, the State contends that the trial court erred in granting

Wade’s motion to suppress. This Court agrees.

{¶5} In support of its assignment of error, the State contends that the trial court’s

factual findings were not supported by competent, credible evidence. The State further contends

that the officers were lawfully permitted to retrieve the gun and conduct a subsequent search for

officer safety in the area of the vehicle where Wade had been observed making furtive

movements.

{¶6} A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside,

,

, ¶ 8. “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.”

citing State v. Mills,

(1992). Generally, a reviewing court “must accept the trial court’s findings of

fact if they are supported by competent, credible evidence.” Burnside at ¶ 8. The reviewing

court must then “independently determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard.” Id.

{¶7} The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Accord Ohio

Constitution, Article I, Section 14. “[A] search conducted without a warrant issued upon 3

probable cause is ‘per se unreasonable * * * subject only to a few specifically established and

well-delineated exceptions.’” Schneckloth v. Bustamonte,

(1973), quoting

Katz v. United States,

(1967).

{¶8} In Terry v. Ohio,

(1968), the United States Supreme Court recognized

one general exception to the warrant requirement. The high court held that a police officer may

conduct a brief, warrantless search of an individual’s person for weapons if the officer has a

reasonable and articulable suspicion that the “individual whose suspicious behavior he is

investigating at close range is armed and presently dangerous to the officer or to others.”

. “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.” State v. Evans,

(1993), quoting Adams v. Williams,

(1972).

{¶9} The court extended its precedent in Terry to protective searches of automobiles in

Michigan v. Long,

(1983), holding that “the search of the passenger compartment

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

permissible if the police officer possesses a reasonable belief based on ‘specific and articulable

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

officers in believing that the suspect is dangerous and the suspect may gain immediate control of

weapons.”

, citing

. The Long court further stated that “protection of

police and others can justify protective searches when police have a reasonable belief that the

suspect poses a danger, that roadside encounters between police and suspects are especially

hazardous, and that danger may arise from the possible presence of weapons in the area

surrounding a suspect.” Id. at 1049. 4

{¶10} In determining whether a protective search is justified, courts apply an objective

standard to determine if the “facts available to the officer at the moment of the seizure or the

search ‘warrant a man of reasonable caution in the belief that the action taken was

appropriate[.]’” State v. Bobo,

(1988). Applying this objective

standard, courts review the totality of the circumstances “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), citing United States v. Hall,

(D.C.Cir. 1976).

{¶11} Turning to the evidence presented at the suppression hearing, Officers Michael

Stanar and Drew Reed of the Akron Police Department were working together in a marked

cruiser on October 4, 2011. Both officers testified at the suppression hearing.

{¶12} Officer Stanar testified that he was riding as a passenger with Officer Reed in a

marked cruiser when they noticed a white Ford Expedition with no front license plate. The

officers initiated a traffic stop and noticed three individuals inside the SUV. Officer Stanar

testified that as he approached the vehicle, he noticed the backseat passenger bending over and

reaching down. Officer Stanar continued, “It appeared he was stuffing or making movements

like he was stuffing something by his legs or maybe underneath his seat as I was approaching the

vehicle on the right-hand side.” Officer Reed approached the driver’s side while Officer Stanar

approached and made contact with both passengers. Officer Stanar testified that the officers

obtained the identifications of the SUV’s occupants and ran their identifications through the

LEADS system. The officers discovered that the front seat passenger had an outstanding warrant,

and Officer Stanar handcuffed her and placed her in the back of the cruiser.

{¶13} Officer Stanar then asked the back seat passenger, whom he identified in court as

Wade, to step out of the vehicle. When Officer Stanar told Wade to put his hands on top of his 5

head, Wade was “hesitant” to do so. Officer Stanar testified that, “When [Wade] got his hands

on his head, he kept wanting to go, kind of reach down towards his feet, so a couple times I had

to kind of put his hands on his head and told him to interlock his fingers, and he was hesitant to

do that. After two or three times he finally did.” Officer Stanar did not discover anything on

Wade when he patted him down for weapons. Officer Stanar then brought Wade to the area

behind the SUV and in front of the cruiser and Officer Reed did the same with the driver.

Officer Stanar then watched Wade and the driver while Officer Reed “looked in the area where

Mr. Wade was seated.” Officer Stanar testified that Officer Reed searched that area because that

was where it appeared Wade had attempted to hide something “underneath the seat or

somewhere on the floor area.” When asked if the movements were the only reason for searching

the back seat, Officer Stanar testified that, “Mr. Wade appeared he was trying to hide something.

Working in law enforcement, when somebody makes those sorts of movements, they could be

hiding a weapon; they could be hiding drugs, something illegal they don’t want the police to

find.” After a weapon was found in the backseat, the officers read Wade his rights and placed

him under arrest. The driver was permitted to return to the SUV because he had a valid license.

{¶14} On cross-examination, Officer Stanar testified that there was nobody in the SUV

when Officer Reed searched the backseat, and that the backseat was the only portion of the

vehicle that was searched. Officer Stanar also clarified that the officers had not received

permission from the driver to search the SUV but they felt it was reasonable to look in the

backseat of the vehicle based on the furtive movements they had observed upon initiating the

stop. Officer Stanar further testified that he could not see Wade’s hands as he made the

movements when the officers were approaching the SUV. 6

{¶15} Officer Reed also testified on behalf of the State at the suppression hearing.

Officer Reed testified that after initiating a traffic stop of the SUV because it did not have a front

license plate, he noticed the vehicle’s rear passenger “looking back” and he appeared to be

“shoving something down.” To Officer Reed, it appeared as though Wade was “trying to

conceal something.” When he approached the driver’s side of the SUV, he noticed that the rear

passenger looked “very nervous” and appeared to be “breathing heav[ily].” Officer Reed

testified that Officer Stanar indicated that the front passenger had a warrant and proceeded to

place her in the back of the cruiser. Officer Reed testified that Officer Stanar also had the

backseat passenger, Wade, step out of the SUV. Officer Reed testified that, “[Officer Stanar had

him step out of the vehicle to pat him down for weapons, and when we started to pat him down

he looked, started reaching down, reaching down which obviously made us more on edge. And

so he -- ended up patting him down and I looked -- whenever he opened the door and came out, I

looked underneath like where he was shoving, and you could see [] the butt of a gun.”

{¶16} Officer Reed clarified that he saw the gun when Wade was being patted down for

weapons. Officer Reed observed the gun from outside the vehicle, explaining that he simply

looked at the area where it had appeared Wade had shoved something. When he saw the gun,

Officer Reed then told Officer Stanar to take Wade into custody. While both the front seat

passenger and Wade were taken into custody, Officer Reed testified that the driver was allowed

to drive away after receiving citations for not having a front license plate and not wearing a seat

belt.

{¶17} On cross-examination, Officer Reed testified that the driver was still in the

vehicle at the time that he observed the gun. When asked why the investigation report did not

indicate that he observed the gun prior to the time that the search was initiated, Officer Reed 7

testified that he did note write the report. When presented with a copy of the report, Officer

Reed testified, “It just says that I searched the area where he was seated.” Like Officer Stanar,

Officer Reed testified that he had not received consent to search the vehicle and that there was no

need to tow the SUV.

{¶18} On re-direct examination, Officer Reed reiterated that he did not write the report

discussed during cross-examination. When asked if the report accurately reflected his

recollection of the events, Officer Reed testified that it had omitted the fact that he observed the

gun before the vehicle was actually searched. Officer Reed further clarified that he found the

gun underneath the rear passenger seat. On re-cross examination, Officer Reed again indicated

that he saw the gun underneath the seat while Wade was being patted down.

{¶19} In granting the motion to suppress, the trial court highlighted that while Officer

Reed testified that the butt of the gun was in plain view while Wade was being patted down and

the driver remained in the vehicle, Officer Stanar testified Officer Reed discovered the gun

during a search after Wade and the driver had been taken to the rear of the vehicle. After

concluding that the State failed to meet its burden of proof that the gun was in plain view due to

the fact that the police report seemed to substantiate Officer Stanar’s testimony, the trial court

relied on Arizona v. Gant,

(2009), for the proposition that because neither Wade

nor the driver had access to the vehicle at the time of the search, the concerns relating to safety

and destruction of evidence were not applicable. The trial court further found that because there

was no indication that any occupant of the vehicle was dangerous, a protective search as

contemplated in Long was unnecessary.

{¶20} After a review of the record, we conclude that the trial court erred in granting

Wade’s motion to suppress. The parties do not dispute that the officers had authority to initiate 8

the initial traffic stop because the SUV was missing a front license plate. See Dayton v.

Erickson,

(1996). As the officers approached the SUV, they observed Wade

making movements consistent with someone attempting to conceal a weapon. Officer Reed

testified that Wade was breathing heavily and appeared to be “very nervous” as the officer

obtained the identifications of the SUV’s occupants. Although some degree of nervousness

during encounters with police is not uncommon, nervousness can be a factor to weigh in

determining reasonable suspicion. State v. Broughton, 10th Dist. No. 11AP-620, 2012-Ohio-

2526, ¶ 23. When the officers obtained the identifications of the passengers, they learned that

the passenger in the front seat had an outstanding warrant. After arresting the front seat

passenger and placing her in the back of the cruiser, Wade was asked to step out of the SUV.

When Officer Stanar removed Wade removed from the vehicle, Wade was hesitant to comply

with the request to place his hands on top of his head so Officer Stanar could pat him down for

weapons. Under these circumstances where a passenger made movements consistent with

concealing a weapon, exhibited excessive nervousness and hesitated to comply with police

requests, and a fellow passenger had already been placed under arrest, it was reasonable for the

officers to conduct a protective search for officer safety.

; see also Broughton at ¶

24, ¶ 37 (holding that a protective search was reasonable as a preventive measure when the

occupants were temporarily removed from the vehicle and would ultimately be permitted to

return). While the trial court’s analysis focused on purported inconsistencies in the officers’

testimony, there is no question that the circumstances in this matter differ from the facts the

Supreme Court confronted in Gant in that there was no testimony here that Wade and the driver

were arrested, handcuffed, and placed in the back of a cruiser at the time the search occurred.

Gant,

. In light of the facts available to the officers in this case, a limited search 9

of the area underneath Wade’s seat was a reasonable protective measure given that Wade would

have otherwise been permitted to return to the SUV at the conclusion of the traffic stop where he

could have regained immediate control of a weapon.

; Broughton at ¶ 37.

{¶21} It follows that the State’s sole assignment of error is sustained.

III.

{¶22} The State’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas is reversed and the cause remanded for further proceedings consistent

with this decision.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 10

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

WHITMORE, P. J. DICKINSON, J. CONCUR.

APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellant.

SCOTT A. RILLEY, Attorney at Law, for Appellee.