State v. Jacko , 2011 Ohio 6494 ( 2011 )

[Cite as State v. Jacko, 2011-Ohio-6494.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24371
vs. : T.C. CASE NO. 10CR833
ALVIN L. JACKO : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
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OPINION
Rendered on the 16th day of December, 2011.
.........
Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros. Attorney, Atty. Reg. No.
0069384, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
A. Mark Segreti, Jr., Atty. Reg. No. 0009106, 1405 Streamside Drive, Dayton, OH 45459
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} Defendant, Alvin Jacko, appeals from his conviction and sentence for
possession of crack cocaine, which was entered on his plea of no contest after the trial court
overruled Defendant’s motion to suppress evidence.
{¶ 2} On January 3, 2010, Trotwood Police Sergeant Joseph McCrary was
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dispatched to a gas station on Salem Avenue on a report that a customer had attempted to pass
a counterfeit twenty dollar bill. The dispatch included a description of the suspect and his
vehicle. Upon arriving, Sergeant McCrary observed a man and a vehicle matching the
description at one of the gas pumps. The man was Defendant, Alvin Jacko.
{¶ 3} Sergeant McCrary approached Defendant and explained why he was there.
Defendant said he knew police had been called. Sergeant McCrary asked Defendant to go
inside the station with him to talk to the station’s clerk. Once inside, the clerk explained that
Defendant had attempted to pay for his gas with a twenty dollar bill that the clerk, upon
inspection, determined was counterfeit. When the clerk told Defendant that the bill was fake,
Defendant said he had gotten it at a bank, and he asked the clerk to return the counterfeit bill
so he could take it back to the bank. The clerk refused and called police. Defendant then
paid the clerk with a real twenty dollar bill and began pumping his gas.
{¶ 4} Sergeant McCrary asked Defendant where he had obtained the counterfeit bill.
Defendant said he got it at a store. McCrary then asked Defendant if he had any more
counterfeit bills. Defendant said he did not. Sergeant McCrary then asked Defendant, “Do
you mind if I check?” Defendant said, “No, go right ahead,” and then pulled out his wallet
and showed McCrary the bills in his wallet. After examining the money in Defendant’s
wallet, Sergeant McCrary then asked if he could pat defendant down in order to make sure he
didn’t have any more counterfeit money hidden on his person. Defendant said, “That’s fine,”
and raised his arms for the patdown.
{¶ 5} As Sergeant McCrary began the pat down he felt and heard crumpling paper in
Defendant’s jacket pocket, which he suspected was more counterfeit money. When Sergeant
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McCrary asked Defendant what was in his jacket pocket, Defendant became agitated. He
brought his arms down and began to reach toward that jacket pocket, as though he didn’t want
McCrary to check that pocket. Defendant asked Sergeant McCrary “Do we really have to do
this?” Sergeant McCrary explained that it was necessary.
{¶ 6} When a back-up officer entered the gas station, Defendant put his arms back up
in the air and Sergeant McCrary resumed patting down Defendant’s jacket pocket. Sergeant
McCrary reached in and removed three one dollar bills from that jacket pocket. The bills
were real. When Sergeant McCrary then felt that jacket pocket again, he still heard the same
“crumpling” sound. As Sergeant McCrary began to once again reach inside that jacket
pocket, Defendant became more agitated, turned away from McCrary, and began yelling. At
that point, Sergeant McCrary handcuffed Defendant for safety reasons. McCrary then
reached inside Defendant’s jacket pocket and removed a plastic baggie containing crack
cocaine. Defendant was arrested for possession of cocaine.
{¶ 7} Defendant was indicted on one count of possession of crack cocaine, less than
one gram, in violation of R.C. 2925.11(A). Defendant filed a motion to suppress evidence.
Following a hearing, the trial court overruled Defendant’s motion. The court held that
Sergeant McCrary had reasonable suspicion of criminal activity to justify the investigatory
stop and detention of Defendant under Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889. Additionally, the court held that while Defendant initially voluntarily
consented to the patdown of his person by Sergeant McCrary, Defendant had revoked his
consent for the patdown by the time Sergeant McCrary had to handcuff an agitated Defendant
in order to continue the patdown of his jacket pocket. However, by that time, Sergeant
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McCrary had probable cause to believe that contraband, counterfeit money, was concealed on
Defendant’s person based upon “plain feel” and hearing a “crinkling” sound when patting
down Defendant’s jacket pocket. That permitted Sergeant McCrary to reach inside that
pocket and remove the item inside.
{¶ 8} Defendant subsequently entered a plea of no contest to the cocaine possession
charge and was found guilty. The trial court sentenced Defendant to five years of community
control sanctions.
{¶ 9} Defendant appeals.
FIRST ASSIGNMENT OF ERROR
{¶ 10} “THE TRIAL COURT ERRED IN FAILING TO GRANT THE MOTION TO
SUPPRESS.”
{¶ 11} In arguing that the trial court erred when it overruled his motion to suppress
evidence, Defendant raises multiple claims regarding why the stop, detention, and search of
his jacket pocket that produced crack cocaine violated his Fourth Amendment rights. We
shall address those in order.
{¶ 12} When considering a motion to suppress, the trial court assumes the role of the
trier of facts and is therefore in the best position to resolve factual questions and evaluate the
credibility of the witnesses. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665.
Consequently, an appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence. Id. Accepting those facts as true, the appellate
court must then independently determine, without deference to the trial court’s conclusion,
whether those facts satisfy the applicable legal standard. Id.5
Initial Stop/Detention
{¶ 13} In State v. Cosby, 177 Ohio App.3d 670, 2008-Ohio-3862 at ¶16-18, this court
observed:
{¶ 14} “Warrantless searches and seizures are per se unreasonable under the Fourth
Amendment, subject to only a few well-recognized exceptions. Katz v. United States (1967),
389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. One of those exceptions is the rule regarding
investigative stops, announced in Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, which
provides that a police officer may stop an individual to investigate unusual behavior, even
absent a prior judicial warrant or probable cause to arrest, where the officer has a reasonable,
articulable suspicion that specific criminal activity may be afoot.
{¶ 15} “An officer's inchoate hunch or suspicion will not justify an investigatory stop.
Rather, justification for a particular seizure must be based upon specific and articulable facts
that, taken together with the rational inferences from those facts, reasonably warrant that
intrusion. The facts must be judged against an objective standard: whether the facts available
to the officer at the moment of seizure or search would warrant a person of reasonable caution
in the belief that the action taken was appropriate. Id. See also State v. Grayson (1991), 72
Ohio App.3d 283, 594 N.E.2d 651.
{¶ 16} “Whether an investigative stop is reasonable must be determined from the
totality of the circumstances that surround it. State v. Freeman (1980), 64 Ohio St.2d 291, 18
O.O.3d 472, 414 N.E.2d 1044. The totality of the circumstances are ‘to be viewed 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), 57 Ohio St.3d 86, 87–88, 565 N.E.2d 1271, citing United
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States v. Hall (C.A.D.C.1976), 525 F.2d 857, 859; Freeman, supra, at 295, 18 O.O.3d 472,
414 N.E.2d 1044.”
{¶ 17} Sergeant McCrary was dispatched to the gas station on a report that a customer
had tried to pass a counterfeit twenty dollar bill. The dispatch included a description of the
suspect and his vehicle. Upon arriving at the scene, Sergeant McCrary observed Defendant,
who matched the suspect’s description, pumping gas into a vehicle that matched the suspect
vehicle description. When Sergeant McCrary approached Defendant and explained that he
was there to investigate the passing of counterfeit money, Defendant said he knew police had
been called. Defendant concedes in his appellate brief that Sergeant McCrary had sufficient
reasonable, articulable suspicion of criminal activity to justify an investigatory stop and
detention of Defendant under Terry v. Ohio, supra. We agree.
Consent to Search
{¶ 18} Defendant went inside the gas station with Sergeant McCrary, who spoke to
the station clerk in Defendant’s presence. The clerk related what had happened. McCrary
then asked Defendant if he had any more counterfeit money on his person. Defendant said he
did not. Sergeant McCrary asked Defendant, “Do you mind if I check?” Defendant said,
“No, go right ahead.” Defendant then handed McCrary his wallet and McCrary examined the
money in Defendant’s wallet and determined that it was not counterfeit. Knowing from his
experience as a police officer that counterfeit money is typically not kept or carried in a wallet,
but on the subject’s person, Sergeant McCrary asked Defendant if he could pat him down in
order to make sure that he didn’t have any counterfeit money anywhere on his person.
Defendant said, “That’s fine,” and raised his arms up for the patdown. Sergeant McCrary
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then began the patdown.
{¶ 19} Defendant argues that he did not consent to the patdown procedure but rather
merely acquiesced and submitted when Sergeant McCrary told him the patdown was normal
procedure. The trial court, however, concluded that McCrary’s testimony on the consent
issue is more credible than Defendant’s, and that the totality of the evidence demonstrates that
Defendant initially freely and voluntarily consented to the patdown procedure. We agree.
{¶ 20} Defendant also claims that the patdown procedure violated his Fourth
Amendment rights because a patdown or frisk is permissible only when the officer reasonably
believes that the suspect may be armed and dangerous, and the limited, protective search is
performed solely for the purpose of discovering concealed weapons. Terry; State v. Evans
(1993), 67 Ohio St.3d 405. That argument is unavailing in this case, however, given that
Defendant was told that the purpose of the pat-down was not to locate a weapon but to find
any counterfeit money hidden on his person, and Defendant gave his voluntary consent for
that patdown procedure.
{¶ 21} In State v. Arnold, Montgomery App. No. 24195, 2011-Ohio-238, at ¶20-22,
we stated:
{¶ 22} “Under applicable legal standards, the State has the burden of showing the
validity of a warrantless search, because warrantless searches are ‘per se unreasonable under
the Fourth Amendment-subject only to a few specifically established and well delineated
exceptions.’ State v. Hilton, Champaign App. No. 08-CA-18, 2009-Ohio-5744, ¶ 21-22, citing
City of Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218, 524 N.E.2d 889.
{¶ 23} “Consent is one exception to the warrant requirement, and requires the State to
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show by ‘“clear and positive” evidence that the consent was “freely and voluntarily” given.’
State v. Posey (1988), 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (citations omitted). ‘A “clear
and positive” standard is not significantly different from the “clear and convincing” standard
of evidence, which is the amount of proof that will produce in the mind of the trier of fact a
firm belief or conviction as to the allegations to be proved. It is an intermediate standard of
proof, being more than a preponderance of the evidence and less than evidence beyond a
reasonable doubt.’ State v. Ingram (1992), 82 Ohio App.3d 341, 346, 612 N.E.2d 454(citations omitted).
{¶ 24} “In order to be valid, consent cannot be the product of coercion. ‘“Consent”
that is the product of official intimidation or harassment is not consent at all. Citizens do not
forfeit their constitutional rights when they are coerced to comply with a request that they
would prefer to refuse.’ Florida v. Bostick (1991), 501 U.S. 429, 438, 111 S.Ct. 2382, 115
L.Ed.2d 389. Furthermore, ‘the question whether a consent to a search was in fact “voluntary”
or was the product of duress or coercion, express or implied, is a question of fact to be
determined from the totality of all the circumstances.’ Schneckloth v. Bustamonte (1973), 412
U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854.”
{¶ 25} The totality of the facts and circumstances in this case support the trial court’s
finding that Defendant initially freely and voluntarily consented to the patdown search for
counterfeit money. There is no evidence of duress or coercion by Sergeant McCrary who
simply asked Defendant for permission to pat him down for counterfeit currency. Defendant
was fully cooperative and said, “that’s fine,” and then raised his arms up to facilitate the
patdown. These facts and circumstances demonstrate that Defendant freely and voluntarily
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consented to the patdown search for counterfeit money, at least initially.
Revocation of Consent
{¶ 26} A suspect may revoke his consent to a search or limit the scope of the search to
which he consents. State v. Rojas (1993), 92 Ohio App.3d 336; State v. Brown, 158 Ohio
App.3d 21, 2004-Ohio-3364; State v. Jordan (Mar. 31, 1995), Clark App. No. 94CA55; State
v. Casey (May 26, 2000), Miami App. No. 99CA43.
{¶ 27} When Sergeant McCrary began his patdown of Defendant, he felt and heard
crumpling paper in Defendant’s jacket pocket, which he suspected was more counterfeit
money. When McCrary asked Defendant what was in his jacket pocket, Defendant became
agitated, lowered his arms, and began to reach for that pocket, indicating that he did not want
McCrary to search that jacket pocket. Defendant asked Sergeant McCrary, “Do we really
have to do this?” Sergeant McCrary explained that it was necessary. When a back-up
officer entered the gas station, Defendant put his arms back up in the air and Sergeant
McCrary resumed patting Defendant’s jacket pocket, and reached into that jacket pocket and
removed three one dollar bills that were not counterfeit. Sergeant McCrary then patted that
pocket again, whereupon he again heard the same “crumpling” sound. Believing there still
might be more counterfeit money in that pocket, Sergeant McCrary started to reach inside that
jacket pocket a second time when an increasingly more agitated Defendant turned away and
began yelling. At that point, Sergeant McCrary handcuffed Defendant for safety reasons, and
then reached inside Defendant’s jacket pocket and removed the plastic baggie containing
crack cocaine which led to Defendant’s arrest.
{¶ 28} The trial court concluded that when Defendant became increasingly more
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agitated during the patdown, it appeared to Sergeant McCrary that Defendant did not want the
patdown to extend to his jacket pocket. However, he did not revoke his consent for the
patdown at that point in time. Later, when Defendant had to be handcuffed to continue the
patdown, Defendant effectively revoked his consent.
{¶ 29} The State concedes in its appellate brief that Defendant effectively revoked
his consent for the patdown search of his jacket pocket well before Sergeant McCrary
handcuffed him. The State admits that Defendant’s consent was likely revoked once he
lowered his arms and protested whether “we really have to do this,” demonstrating by his
conduct that he did not consent to the patdown search extending to his jacket pocket. We
agree. See e.g. United States v. Sanders (8th Circuit, 2005), 424 F.3d 768. After that, in
order to search Defendant’s pocket for contraband, which was his purpose, Sergeant McCrary
had to have probable cause to believe that the pocket contained more counterfeit bills.
Plain Feel
{¶ 30} The trial court concluded that when Sergeant McCrary first patted
Defendant’s jacket pocket and heard a crinkling noise and felt paper, that gave rise under the
“plain feel” doctrine for probable cause to believe that Defendant had contraband, counterfeit
currency, concealed on his person, which permitted Sergeant McCrary to reach inside that
jacket pocket and remove the item.
{¶ 31} In State v. Victoria, Clark App. No. 2009CA95, 2010-Ohio-4536 at ¶35, we
stated:
{¶ 32} “Under the plain feel doctrine, an officer conducting a patdown for weapons
may lawfully seize an object if he has probable cause to believe that the item is contraband.
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Minnesota v. Dickerson (1993), 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334; State v.
Phillips, 155 Ohio App.3d 149, 799 N.E.2d 653, 2003–Ohio–5742, ¶ 41–42. The
‘incriminating character’ of the object must be ‘immediately apparent,’ meaning that the
police have probable cause to associate an object with criminal activity. Dickerson, 508 U.S.
at 375; State v. Buckner, Montgomery App. No. 21892, 2007–Ohio–43392. The officer may
not manipulate the object to identify the object or to determine its incriminating nature.
Dickerson, supra; State v. Lawson, 180 Ohio App.3d 516, 906 N.E.2d 443, 2009–Ohio–62, ¶
25.”
{¶ 33} Sergeant McCrary testified that when he first felt the area outside Defendant’s
pocket he felt “paper in [the] pocket . . . it made a crumbling noise, like either loose paper or
money . . . if you squeezed the pocket.” (Tr. 11). When asked whether it was “[f]air to say
you were moving the object that was in his pocket . . . kind of crumpling it, moving it?”,
Sergeant McCrary replied “yes.” (Tr. 28). Sergeant McCrary further testified: “Once I hear
the crumbling, then I want to see if there’s any counterfeit money inside.” (Tr. 23).
{¶ 34} When Sergeant McCrary was asked whether “[a]t that point it’s not readily
apparent as to what that crumbling is. You have your suspicions, it’s not readily apparent,”
the officer replied, “Right.” (Tr. 28). Sergeant McCrary explained that, after removing the
three one dollar bills, “[t]here’s something else inside that pocket that he didn’t want me to
get to. So I reached inside and grabbed – and pulled out the plastic bag.” (Tr. 34).
Sergeant McCrary confirmed that he was “looking for counterfeit money” when he again
reached inside Defendant’s pocket, (Tr. 34), and that he reached inside and pulled the
{¶ 35} object out “prior to knowing what it was.” (Tr. 31).
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{¶ 36} Taken as a whole, Sergeant McCrary’s testimony was that he heard what he
described as a “crumbling sound,” similar to the sound of paper money that’s moved, when he
first patted down the area outside Defendant’s pocket, “if you squeezed the pocket.”
Squeezing the pocket in that way is the kind of manipulation to determine the identity of what
was in the pocket that Dickerson prohibits. Sergeant McCrary conceded that it was not then
readily apparent to him what the object was, and because Defendant didn’t want him to know
what was in the pocket, Sergeant McCrary reached inside and pulled the object out, for the
purpose of seizing any counterfeit money that was inside. That seizure was not one which
was reasonable under the “plain feel” doctrine of Dickerson, because the criminal character of
what the officer felt was not readily apparent to him when he performed the search of
Defendant’s pocket that resulted in the seizure. The trial court erred when it denied
Defendant’s motion to suppress.
{¶ 37} Defendant’s first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
{¶ 38} “THE JUDGMENT ENTRY IS UNLAWFUL IN ERRONEOUSLY
INDICATING HOW THE COURT FOUND DEFENDANT GUILTY.”
{¶ 39} Defendant argues that the judgment of conviction is invalid because the
judgment entry erroneously indicates that Defendant pled guilty when, in fact, he pled no
contest and was found guilty by the court.
{¶ 40} We previously recognized this error in the record of the trial court’s
proceedings and remanded this case back to the trial court to correct that error. See: Decision
and Entry filed March 22, 2011. Pursuant to our remand, on May 26, 2011, the trial court
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filed an Amended Termination Entry that correctly reflects that Defendant pled no contest and
was found guilty by the trial court. This assignment of error has become moot.
{¶ 41} Defendant’s second assignment of error is overruled.
{¶ 42} Having sustained Defendant’s first assignment of error, the judgment of the
trial court will be reversed and the matter remanded for further proceedings.
FAIN, J., And DONOVAN, J., concur.
Copies mailed to:
Andrew T. French, Esq.
A. Mark Segreti, Esq.
Hon. Barbara P. Gorman