[Cite as State v. Bean,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2015-07-136

: OPINION - vs - 3/7/2016 :

DESMOND BEAN, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2015-01-0100

Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Daniel E. Whiteley, Jr., 602 Main Street, Suite 1309, Cincinnati, Ohio 45202, for defendant- appellant

HENDRICKSON, J.

{¶ 1} Defendant-appellant, Desmond Bean, appeals a decision of the Butler County

Court of Common Pleas denying his motion to suppress evidence. For the reasons stated

below, we affirm the decision of the trial court.

{¶ 2} Around 1:10 a.m. on December 31, 2014, Butler County Deputy Sheriff William

Bowling was patrolling in a rural area when he observed a vehicle traveling at a slow rate of Butler CA2015-07-136

speed. Deputy Bowling followed the vehicle for approximately three miles, during which time

the vehicle continued to travel well below the 55 m.p.h. speed limit. Deputy Bowling then

initiated a traffic stop for slow speed and impeding traffic.

{¶ 3} Deputy Bowling approached the vehicle and found four men inside: Bean, who

was in the driver's seat; a male passenger in the front; and two additional male passengers

seated in the back of the vehicle. Deputy Bowling recognized the two passengers in the

backseat of the car as John Ingersoll and Michael Estes because the men had frequent

contact with law enforcement. Deputy Bowling asked Bean why he was traveling so slowly

and Bean did not respond. However, one of the backseat passengers volunteered that they

had seen deer in the area. Deputy Bowling obtained identification for all of the occupants

and returned to his police cruiser to check for warrants.

{¶ 4} Deputy Bowling's initial check for warrants indicated that the front seat

passenger had a robbery warrant and Ingersoll had a warrant from Hamilton Municipal Court.

Later during the traffic stop, Deputy Bowling discovered that the check indicating the front

seat passenger had a warrant was incorrect and a "sound alike," an individual who had a

similar name and social security number or date of birth. However, Deputy Bowling did not

discover this information until much later in the stop.

{¶ 5} After discovering some of the occupants had active arrest warrants, another

deputy arrived at the scene. The deputies returned to the vehicle and observed an orange

cap, indicative of a syringe, on the rear floorboard near Ingersoll. Ingersoll was then

removed and patted down. Before Ingersoll was patted down, he was asked if he had any

narcotics or anything that would "stick or poke" the officer, to which Ingersoll replied "no."

However, during the pat-down, the deputy was stuck by a syringe in Ingersoll's pocket. The

pat-down continued and a gallon-size freezer bag containing methamphetamine was found in

Ingersoll's shoe. Ingersoll was then placed in the back of a police cruiser. -2- Butler CA2015-07-136

{¶ 6} The deputies continued to remove, pat-down, and place the occupants of the

vehicle in the back of police cruisers. Because there were only two police cruisers at the

scene, Estes was placed in the back of a police cruiser with Ingersoll, while the front seat

passenger was placed in Deputy Bowling's cruiser. Bean, the last occupant to be removed,

was frisked, handcuffed, and also placed in the back of Deputy Bowling's cruiser. Deputy

Bowling did not recover any items from Bean during the frisk. While Bean was wearing a

padded, zipped-up Carhartt jacket, Deputy Bowling did not unzip the jacket during the frisk.

{¶ 7} After all the occupants were frisked and placed into the cruisers, Deputy Donald

Gabbard arrived at the scene. When Deputy Gabbard arrived, he was asked to separate

Bean and the front seat passenger, as both men were still in the back of Deputy Bowling's

cruiser. Deputy Gabbard removed Bean and performed another pat-down search. During

the pat-down, Deputy Gabbard could not feel underneath Bean's Carhartt jacket due to its

bulkiness. Deputy Gabbard unzipped the jacket, patted down the inside pockets, and felt two

hard syringes and two plastic bags which he suspected contained narcotics. The items were

removed and the plastic bags were discovered to contain heroin.

{¶ 8} A Butler County Grand Jury indicted Bean on one count of possession of heroin

in violation of R.C. 2925.11(A) and one count of possession of drug abuse instruments in

violation of R.C. 2925.12(A). Subsequently, Bean filed a motion to suppress the evidence.

After an evidentiary hearing, the trial court denied Bean's motion to suppress.

{¶ 9} On May 18, 2015, Bean entered a no contest plea to all the counts of the

indictment and the court found Bean guilty of possession of heroin and possession of drug

abuse instruments. Bean was sentenced to a five-year community control period on the

possession of heroin charge which was ordered to run concurrently to a three-year

community control period, with a suspended 90-day jail sentence on the drug abuse

instrument charge. -3- Butler CA2015-07-136

{¶ 10} Bean now appeals, asserting a sole assignment of error:

{¶ 11} THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO

SUPPRESS.

{¶ 12} Bean challenges his removal from the vehicle, the ensuing two pat-downs, and

the trooper's retrieval of contraband from his person. Specifically, Bean relies on the Ohio

Supreme Court's decision in State v. Lozada,

(2001), in arguing that the

pat-down searches before he was placed into the police cruisers were unreasonable.

{¶ 13} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Burnside,

,

, ¶ 8; State v. Jones,

12th Dist. Brown No. CA2015-05-014,

. When considering a motion to

suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in

order to resolve factual questions and evaluate witness credibility. Jones at ¶ 8. In turn,

when reviewing the denial of a motion to suppress, this court is bound to accept the trial

court's findings of fact if they are supported by competent, credible evidence.

"An

appellate court, however, independently reviews the trial court's legal conclusions based on

those facts and determines, without deference to the trial court's decision, whether as a

matter of law, the facts satisfy the appropriate legal standard."

{¶ 14} The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution prohibit unreasonable searches and seizures, including

unreasonable automobile stops. Bowling Green v. Godwin,

, 2006-Ohio-

3563, ¶ 11. During a lawful traffic stop, it is reasonable for a police officer to order a motorist

to get out of a car, even if the officer does not have suspicion of criminal activity.

Pennsylvania v. Mimms,

,

(1977); Maryland v. Wilson,

,

(1997). Police officers are permitted to order motorists out of a

vehicle because the "legitimate and weighty" concerns of officer safety during traffic stops -4- Butler CA2015-07-136

outweigh the de minimis intrusion into the driver's personal liberty. Mimms at 110-111.

{¶ 15} In Lozada,

, the Ohio Supreme Court addressed whether law

enforcement could take one step further; whether during a routine traffic stop, an officer may

search a motorist for weapons before placing the motorist into the officer's cruiser even

where the officer "has no belief that the driver is armed or dangerous."

. The

Supreme Court held "it is reasonable for an officer to search the driver for weapons before

placing the driver in a patrol car, if placing the driver in the patrol car during the investigation

prevents officers or the driver from being subjected to a dangerous condition and placing the

driver in the patrol car is the least intrusive means to avoid the dangerous condition."

at

paragraph one of the syllabus. However, it is unreasonable for an officer to conduct a pat-

down search of an individual before placing him in the patrol car if the sole reason is for

convenience of the officer.

at paragraph two of the syllabus.

{¶ 16} In the case at bar, the initial pat-down and placement of Bean in Deputy

Bowling's police cruiser was not merely for the convenience of the officers. The evidence at

the suppression hearing established: the stop occurred late at night on a rural road; there

were four occupants in the vehicle, two of which Deputy Bowling was familiar with due to their

frequent involvement with law enforcement; Deputy Bowling's initial check indicated two of

the occupants had outstanding arrest warrants; Deputy Bowling observed a syringe cap in

the vehicle's rear floorboard; Ingersoll was found to be in possession of syringes and

methamphetamine; and an officer was stuck by one of the syringes found on Ingersoll. After

all these events occurred, Deputy Bowling decided to place Bean into his police cruiser and

conduct a pat-down search for weapons. In light of all the facts available to Deputy Bowling,

the pat-down search of Bean before placing him into the police cruiser was to prevent law

enforcement from being subjected to a dangerous condition and was the least intrusive

means of avoiding the dangerous condition. Therefore, Deputy Bowling's actions were -5- Butler CA2015-07-136

reasonable.

{¶ 17} We also find that Deputy Gabbard's second pat-down search of Bean was

reasonable and was the least intrusive means of avoiding a dangerous condition. In so

holding, we recognize that the rationale for a protective Terry search "becomes attenuated

with successive searches." State v. Hackett,

,

(6th Dist.). While a "protective search for weapons is acceptable to a point * * * when the use

of multiple protective services exceeds the rationale behind a Terry-type investigation, it

becomes unreasonable." Id. at ¶ 17. However, in this case, Deputy Gabbard was faced with

an active narcotics investigation and one of the police officers at the scene had already been

stuck by a needle. It is well-established that officers have legitimate concerns regarding

violence when investigating drug activity and these concerns will often justify a pat-down

search for weapons. See State v. Oatis, 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-

6038, ¶ 23. Moreover, before Deputy Gabbard's pat-down search, Bean was placed in the

back of a police cruiser with an individual who police believed had an outstanding felony

arrest warrant. Deputy Gabbard explained that he conducted another pat-down search for

his own safety, he did not observe the first pat-down, and that he will always pat-down an

individual before placing them into his own police cruiser. See State v. Willette, 4th Dist.

Washington No. 11CA32,

(second pat-down reasonable when concerns

regarding adequacy of first pat-down). Therefore, in light of all the circumstances available to

Deputy Gabbard, we find the second pat-down frisk was reasonable.

{¶ 18} Lastly, we find that Deputy Gabbard's seizure of the syringes and drugs inside

Bean's pocket was permissible pursuant to the "plain feel" doctrine. Under the "plain feel"

doctrine, if, during a pat-down, the officer feels an object whose contour or mass makes its

identity immediately apparent as contraband, the officer may seize the object. Minnesota v.

Dickerson,

,

(1993). The "immediately apparent" -6- Butler CA2015-07-136

requirement is satisfied if the officer has probable cause to associate the object with criminal

activity, based on the totality of the surrounding circumstances. State v. Grant, 12th Dist.

Preble No. CA2014-12-014,

, ¶ 17. Further, under the "plain feel" doctrine,

an officer may not manipulate the object to determine its incriminating nature.

{¶ 19} At the hearing, Deputy Gabbard testified that when he patted down Bean's right

inside coat pocket, he felt multiple syringes and two plastic bags. Deputy Gabbard stated he

did not manipulate the items in any way and after he felt the items, he asked Bean what was

inside his pocket. Bean replied "you know." Deputy Gabbard asked a second time and Bean

gave the same response. Based on the totality of the circumstances, we find that Deputy

Gabbard had probable cause to believe the items in Bean's pocket were contraband.

Further, we find this case distinguishable from State v. Rodriguez, 12th Dist. Butler No.

CA2014-03-073,

. In Rodriguez, this court held that when an officer knew a

bulge in the defendant's pocket was not a weapon or contraband but instead "a large wad of

cash," he could not, under the plain feel doctrine, pull out the cash. Id. at ¶ 22. Unlike

Rodriguez, in this case Deputy Gabbard immediately recognized the items in Bean's pocket

as contraband. Therefore, Deputy Gabbard properly seized the syringes and drugs pursuant

to the "plain feel" doctrine.

{¶ 20} Accordingly, the trial court did not err in denying Bean's motion to suppress.

Bean's sole assignment of error is overruled.

{¶ 21} Judgment affirmed.

M. POWELL, P.J., and RINGLAND, J., concur.

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