[Cite as State v. Wehr,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellant : Hon. John W. Wise, J. : -vs- : : Case No. 14CA46 DAVID A. WEHR II : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2013- CR-0764

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: October 1, 2014

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JILL COCHRAN JOHN O'DONNELL III Assistant Prosecuting Attorney 13 Park Avenue West 38 South Park Street Mansfield, OH 44902 Mansfield, OH 44902 [Cite as State v. Wehr,

.]

Gwin, P.J.

{¶1} Plaintiff-appellant the State of Ohio appeals the May 14, 2014 Judgment

Entry of the Richland County Court of Common Pleas granting defendant-appellee

David A. Wehr, II’s motion to suppress.

Facts and Procedural History

{¶2} On January 13, 2014, Wehr, was indicted with one count of possession of

heroin in an amount greater than five grams but less than ten grams, in violation of R.C.

§ 2925.11(A) & (C)(6)(c), a felony of the third degree, one count of trafficking in heroin

in an amount greater than five grams but less than ten grams in violation of R.C. §

2925.03(A)(2) & (C)(6)(d), a felony of the third degree, one count of tampering with

evidence, in violation of R.C. § 2921.12(A)(1), a felony of the third degree, and one

count of possession of Oxycodone (schedule II) in an amount less than bulk, in violation

of R.C. § 2925.11(A) & (C)(1)(a), a felony of the fifth degree.

{¶3} On March 24, 2014, Wehr filed a motion to suppress the evidence seeking

to suppress evidence found on his person as a result of a Terry pat down for weapons.

The state filed a response on April 21, 2014. Wehr filed a supplemental memorandum

on April 28, 2014. An evidentiary hearing was held on April 28, 2014. During the

suppression hearing, the state called one officer, Deputy Raymond Frazier with the

Richland County Sherriff's Department.

A. Deputy Raymond Frazier.

{¶4} Deputy Frazier has worked for the Richland County Sheriff’s Department

for 14 years. Deputy Frazier is also a canine handler. On November 17, 2013, Deputy

Frazier was parked in his marked cruiser in the parking lot of the Budget Inn located at Richland County, Case No. 14CA46 3

1336 Ashland Road in Mansfield, Ohio as part of his routine patrol. The hotel

management did not like people loitering on the property. Officers generally would drive

around the parking lot to make their presence known and keep an eye out for people

drinking or loitering in the parking lot.

{¶5} At 8:54 p.m., Deputy Frazier saw a 2002 White Toyota four-door with two

people sitting inside at the Budget Inn parking lot with no lights on. As the officer pulled

behind the Toyota on his way to exit the parking lot, the passenger exited the vehicle

and ran towards the hotel office. Deputy Frazier testified that he exited his vehicle and

yelled at the man, "Hey, where are you going?" and received no response.

{¶6} At this point, Officer Frazier approached the Toyota to make contact with

the driver and registered owner, Wehr, as he was concerned that a crime might have

just occurred or that the Wehr might need some further assistance. During the

conversation, Deputy Frazier noticed that Wehr was reaching and fidgeting with

something down near the floorboards of the vehicle. Deputy Frazier asked Wehr several

times to stop reaching down near the floorboards. Wehr continued to reach near the

floorboards of the vehicle and did not show his hands, causing Deputy Frazier to be

concerned that Wehr could have a weapon.

{¶7} Deputy Frazier requested assistance, which arrived shortly thereafter.

After back up had arrived, Wehr was removed from the vehicle and questioned as to

what he was doing reaching down near the floor. Deputy Frazier briefly checked the

floor to determine if there were any visible weapons. Seeing none, he became

concerned that Wehr might have secreted a weapon on his person. Deputy Frazier then

conducted a pat down search for officer safety. During the pat down, a pill bottle was Richland County, Case No. 14CA46 4

located in Wehr's sock in his right pant leg. Deputy Frazier removed the pill bottle and

found it to be an Advil bottle. When asked by Deputy Frazier what was inside the pill

bottle, Wehr responded that he did not know. Deputy Frazier opened the pill bottle and

found individually wrapped bindles of heroin and Oxycodone pills inside.

{¶8} Wehr was questioned again about the pill bottle. He indicated that he did

not know what was inside of the bottle. Wehr explained that the passenger had thrown

the pill bottle on the floor prior to exiting the vehicle and that Wehr had picked the bottle

up and tucked it into his sock.

{¶9} A free-air canine sniff was performed of the vehicle and the canine alerted

to both sides of the vehicle. During a search of the vehicle a kitchen plate, razor blade,

a cut straw and a set of digital scales were recovered from the area of the front

passenger side floorboards. These items are known to be associated with drug activity

according to Deputy Frazier’s training and experience.

{¶10} The state did not present any other evidence. Camp did not offer any

evidence or call any witnesses.

B. The Trial Court’s Decision.

{¶11} The trial court filed a judgment entry on May 14, 2014, granting Wehr’s

motion to suppress the evidence. The trial court did not find any issue with the officer's

contact with Wehr or the subsequent pat down of Wehr for officer safety. The trial court

found that the incriminating nature of the object, in this case an Advil bottle, was not

immediately apparent to Deputy Frazier and, therefore, he was not justified in removing

the bottle from the Appellee's person and opening it. Richland County, Case No. 14CA46 5

Assignment of Error

{¶12} The state raises one assignment of error,

{¶13} “I. THE TRIAL COURT ERRED WHEN IT GRANTED THE APPELLEE'S

MOTION TO SUPPRESS.”

Analysis

{¶14} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside,

,

,

. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap,

,

,

; State v. Fanning,

,

(1982). Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See

Dunlap, supra; State v.

Long,

,

(4th Dist. 1998); State v. Medcalf,

,

(4th Dist. 1996). However, once this Court has

accepted those facts as true, it must independently determine as a matter of law

whether the trial court met the applicable legal standard. See

citing

State v. McNamara,

,

(4th Dist 1997); See,

generally, United States v. Arvizu,

,

,

(2002);

Ornelas v. United States,

,

,

(1996). That

is, the application of the law to the trial court's findings of fact is subject to a de novo

standard of review

Moreover, due weight should be given “to inferences Richland County, Case No. 14CA46 6

drawn from those facts by resident judges and local law enforcement officers.”

,

.

Deputy Frazier’s Initial Contact with Wehr

{¶15} Contact between police officers and the public can be characterized in

three different ways. State v. Richardson, 5th Dist. Stark No. 2004CA00205, 2005–

Ohio–554, ¶23–27. The first is contact initiated by a police officer for purposes of

investigation. “[M]erely approaching an individual on the street or in another public place

[,]” seeking to ask questions for voluntary, uncoerced responses, does not violate the

Fourth Amendment. United States v. Flowers,

(6th Cir. 1990). The

United State Supreme Court “[has] held repeatedly that mere police questioning does

not constitute a seizure.” Florida v. Bostick,

,

,

(1991); see also INS v. Delgado,

,

,

(1984). “[E]ven when officers have no basis for suspecting a particular

individual, they may generally ask questions of that individual; ask to examine the

individual's identification; and request consent to search his or her luggage.” Bostick,

,

(citations omitted).

The person approached, however, need not answer any question

put to him, and may continue on his way. Florida v. Royer (1983),

, 497–98. Moreover, he may not be detained even momentarily

for his refusal to listen or answer.

So long as a reasonable person

would feel free “to disregard the police and go about his

business,” California v. Hodari D.,

,

, Richland County, Case No. 14CA46 7

1552,

(1991), the encounter is consensual and no

reasonable suspicion is required.

Bostick,

,

,

.

{¶16} The second type of contact is generally referred to as “a Terry stop” and is

predicated upon reasonable suspicion. Richardson, supra; Flowers,

;

See Terry v. Ohio,

,

,

(1968). This temporary

detention, although a seizure, does not violate the Fourth Amendment. Under the Terry

doctrine, “certain seizures are justifiable ... if there is articulable suspicion that a person

has committed or is about to commit a crime” Florida,

. In holding that

the police officer's actions were reasonable under the Fourth Amendment, Justice

Rehnquist provided the following discussion of the holding in Terry,

In Terry this Court recognized that a police officer may in

appropriate circumstances and in an appropriate manner approach a

person for purposes of investigating possible criminal behavior even

though there is no probable cause to make an arrest. The Fourth

Amendment does not require a police officer who lacks the precise level of

information necessary for probable cause to arrest to simply shrug his

shoulders and allow a crime to occur or a criminal to escape. On the

contrary, Terry recognizes that it may be the essence of good police work

to adopt an intermediate response. A brief stop of a suspicious individual,

in order to determine his identity or to maintain the status quo mo-

monetarily while obtaining more information, may be most reasonable in

light of the facts known to the officer at the time. Richland County, Case No. 14CA46 8

Adams v. Williams,

, 145–47,

, 1923–24,

(1972).

{¶17} The third type of contact arises when an officer has “probable cause to

believe a crime has been committed and the person stopped committed it.” Richardson,

; Flowers,

. A warrantless arrest is constitutionally

valid if:

“[a]t the moment the arrest was made, the officers had probable

cause to make it-whether at that moment the facts and circumstances

within their knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in believing that the *

* * [individual] had committed or was committing an offense.”

State v. Heston,

, 155–156,

(1972), quoting Beck v.

Ohio,

,

,

(1964). “The principal components

of a determination of reasonable suspicion or probable cause will be the events which

occurred leading up to the stop or search, and then the decision whether these

historical facts, viewed from the standpoint of an objectively reasonable police officer,

amount to reasonable suspicion or to probable cause.” Ornelas v. United States,

,

, 1661–1162(1996). A police officer may draw inferences

based on his own experience in deciding whether probable cause exists. See, e.g.,

United States v. Ortiz,

,

(1975).

{¶18} The Ohio Supreme Court has held that a police officer's statement “Hey,

come here a minute,” while nominally couched in the form of a demand, is actually a

request that a citizen is free to regard or to disregard. State v. Smith,

, Richland County, Case No. 14CA46 9

258–259,

(1989), reversed sub nom. Smith v. Ohio,

,

,

(1990); State v. Crossen, 5th Dist. Ashland No. 2010-

COA-027,

.

{¶19} Upon review, under the totality of the circumstances, we conclude the

events in the case sub judice constituted a consensual encounter such that the Fourth

Amendment was not implicated. United States v. Mendenhall,

,

,

(1980). In this case, the officer approached a parked vehicle and

engaged in conversation with the driver after a passenger in the driver’s vehicle ran

from the vehicle. Deputy Frazier testifed he was concerned that a crime may have taken

place or that the driver was otherwise in need of assistance.

Terry pat-down of Wehr.

{¶20} Authority to conduct a pat down search does not flow automatically from a

lawful stop and a separate inquiry is required. Terry v. Ohio,

,

,

(1968). The Fourth Amendment requires an officer to have a

“reasonable fear for his own or others’ safety” before frisking.

Specifically, “[t]he

officer ... must be able to articulate something more than an ‘inchoate and

unparticularized suspicion or hunch.’” United States v. Sokolow,

,

,

(1989), citing

. Whether that

standard is met must be determined from the standpoint of an objectively reasonable

police officer, without reference to the actual motivations of the individual officers

involved. United States v. Hill,

(D.C.Cir. 1997), citing Ornelas v.

United States,

,

,

(1996). Richland County, Case No. 14CA46 10

{¶21} When Deputy Frazier approached the car, the passenger exited the

vehicle and ran. Wehr immediately began digging around the floorboard area of the car.

Weir ignored several requests by Deputy Frazier to stop and to show his hands. Under

the totality of the circumstances, a reasonable officer could believe that Wehr may have

been reaching for a weapon. State v. Shrewsbury, 4th Dist. Ross. No. 13CA3402, 2014-

Ohio-716, ¶26. In Adams v. Williams,

,

,

(1972), a case also involving a Terry stop, the officer ordered the defendant to step out

of the car so he could see the defendant’s movements more clearly.

The defendant

ignored the officer’s order, and this provided ample reason for the officer to fear for his

safety.

{¶22} In the case at bar, we find under the totality of the circumstances the pat

down in of Wehr was lawful because a reasonably prudent person in this situation would

have been justified to believe his safety was compromised.

Removal of the pill bottle from Wehr’s sock.

{¶23} The permissible scope of a Terry search is “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.” Terry

v. Ohio,

,

,

(1968). “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), citing Adams v. Williams,

,

,

(1972). Richland County, Case No. 14CA46 11

{¶24} 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.

In Minnesota v. Dickerson,

,

,

(1993), the

United States Supreme Court adopted the “plain feel” doctrine as an extension of the

“plain view” doctrine. The Supreme 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.

Dickerson,

,

,

. Accord, State v.

Evans,

,

(1993), paragraph two of the syllabus.

{¶25} In the case at bar, Deputy Frazier testified that it was immediately

apparent that the object concealed in Wehr’s sock was a pill bottle. It is unusual for a

person to carry a pill bottle concealed in one’s sock. Coupled with the flight of the

passenger upon the approach of the police cruiser, Wehr’s reaching and fidgeting with

something near the floorboard of his car, and Wehr’s assertion that he did not know

what was in the Advil bottle, we find the removal of the pill bottle from Wehr’s sock to

permissible.

Deputy Frazier’s opening of the pill bottle.

{¶26} The Fourth Amendment to the United States Constitution, and Article I,

Section 14 of the Ohio Constitution proscribes, except in certain well-defined Richland County, Case No. 14CA46 12

circumstances, the search of property unless accomplished pursuant to a judicial

warrant issued upon probable cause. See, e.g., Skinner v. Railway Labor Executives’

Assn.,

,

,

(1989); Mincey v.

Arizona,

,

,

(1978); Katz v. United

States,

,

,

(1967). That guarantee

protects alike the "traveler who carries a tooth brush and a few articles of clothing in a

paper bag,” and "the sophisticated executive with the locked attaché' case." United

States v. Ross,

,

,

(1982). Smith

v. Ohio,

,

,108 L Ed. 2d 464(1990). Many a closed

container is accessible; opening it requires justification. See United States v. Chadwick,

, 14–15,

,

(1977).

{¶27} This Court has observed,

If an object is in a closed container, the object “is not in plain view

and the container may not be opened unless the packing gives away the

contents.” Katz [Ohio Arrest, Search and Seizure (1997 Ed.) 214, Section

13.01] at 221, citing United States v. Williams (1994),

,

certiorari denied (1995),

,

,

.

State v. Smith, 5th Dist. Stark No. 1998CA00322,

(June 21, 19990) at

*3. The Ohio Supreme Court has held that “[t]he ‘immediately apparent’ requirement of

the ‘plain view’ doctrine is satisfied when police have probable cause to associate an

object with criminal activity.” State v. Halczyszak,

,

,

paragraph three of the syllabus (1986); see Arizona v. Hicks,

,

,

(1987). “In ascertaining the required probable cause to Richland County, Case No. 14CA46 13

satisfy the ‘immediately apparent’ requirement, police officers may rely on their

specialized knowledge, training and experience [.]” Halczyszak,

,

at paragraph four of the syllabus. The United States Supreme Court has

also explained that, in the context of determining whether contraband is in plain view,

“probable cause is a flexible, common-sense standard. It merely requires that the facts

available to the officer would ‘warrant a man of reasonable caution in the belief,’ that

certain items may be contraband or stolen property or useful as evidence of a crime; it

does not demand any showing that such a belief be correct or more likely true than

false.” Texas v. Brown,

,

,

(1983)

(quoting Carroll v. United States,

,

,

(1925)).

“A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is

required.”

(quoting Brinegar v. United States,

,

,

(1949); State v. Smith, 5th Dist. Stark No. 1998CA00322,

;

State v. Lorenzo, 9th Dist. Summit No. 26214,

. Probable cause to

associate an object with criminal activity does not demand certainty in the minds of

police, but instead merely requires that there be “a fair probability” that the object they

see is illegal contraband or evidence of a crime. State v. George,

,

, paragraph one of the syllabus.

{¶28} In the case at bar, Deputy Frazier had probable cause to search the

container based upon the suspicious location where Wehr was storing the container, the

flight of the passenger from the automobile, Wehr’s reaching around toward the

floorboard area of the car, his refusal to show his hands and Wehr’s assertion that he

did not know what was inside the Advil bottle. In the case at bar, the container was Richland County, Case No. 14CA46 14

within the automobile at the time Deputy Frazier initiated his conversation with Wehr

and had he not discovered it, it would have left the scene with Wehr.

{¶29} Under the totality of the circumstances and given the information known to

Deputy Frazier at the time of the search, the evidence supports a finding that Deputy

Frazier had probable cause to associate the Advil bottle with criminal activity. Therefore,

Deputy Frazier had probable cause to open the Advil bottle.

{¶30} Accordingly, Deputy Frazier’s search of the Advil bottle did not violate

Wehr’s rights under the Fourth Amendment, and the court erred in granting Wehr’s

motion to suppress.

Conclusion

{¶31} We find that the trial court incorrectly decided the ultimate or final issue

raised in Wehr's motion to suppress, and further that the trial court failed to apply the

appropriate test or correct law to the findings of fact. State v. Curry,

,

(8th Dist. 1994); State v. Claytor,

,

(4th Dist. 1993); State v. Guysinger,

,

(4th Dist. 1993); State v. Bickel, 5th Dist. Ashland No. 2006-COA-034, 2007-Ohio-

3517, ¶32. Richland County, Case No. 14CA46 15

{¶32} We find that Deputy Frazier had probable cause to associate the container

with criminal activity and his seizure and search of the container was justified under the

plain-view doctrine.

{¶33} For the forgoing reasons, the judgment of the Richland County Court of

Common Pleas, Ohio is reversed and this case is remanded for further proceedings

consistent with this opinion.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur