State v. Shoenberger

[Cite as State v. Shoenberger, 2022-Ohio-253.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0011
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
SHAWN E. SHOENBERGER,
Trial Court No. 2019 CR 00505
Defendant-Appellant.
OPINION
Decided: January 31, 2022
Judgment: Reversed; remanded
Colleen M. O’Toole, Ashtabula County Prosecutor, Shelley M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (for Plaintiff-Appellee).
Aaron A. Schwartz and Megan M. Patituce, Patituce & Associates, LLC, 16855 Foltz
Industrial Parkway, Strongsville, OH 44149 (for Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Shawn Shoenberger, appeals the January 30, 2020, judgment of
the Ashtabula County Court of Common Pleas denying his motion to suppress. Appellant
asserts three assignments of error alleging that law enforcement illegally initiated contact
with Shoenberger, illegally detained him, and illegally searched and seized evidence from
his person. For the following reasons, we find that the lower court erred by denying
appellant's motion to suppress. Therefore, we vacate the judgment of conviction, reverse
the order denying appellant's motion to suppress, and remand for further proceedings.
{¶2} On February 18, 2019, Officer Howell of the Ashtabula Police Department
overheard radio traffic calling for the Ashtabula Fire Department to respond to a possible
overdose. The report indicated a man, possibly overdosed, was slumped over in a white
car in the driveway at 1504 West 9th Street. Howell was in the area and responded. When
he arrived, he encountered another man in a vehicle who pointed to a white car in the
driveway of 1504 West 9th Street and said “Oh, he must have woken up.” The man in the
car then drove away and Howell never identified him.
{¶3} Howell then approached the vehicle in the driveway and advised the
occupant that he was investigating a possible overdose. The man in the vehicle identified
himself as Shoenberger. He denied passing out and said he had dropped his cell phone
on the floor of the car and had bent over to pick it up. He further said he was waiting for
his girlfriend who lived at the residence.
{¶4} Howell asked Shoenberger to step out of the vehicle to investigate the
overdose claim further. He then told Shoenberger that he was going to pat him down and
Shoenberger turned around. During the pat down, Howell felt a circular bulge in
Shoenberger’s front left pocket. Howell asked what the object was and Shoenberger
immediately shoved his hand in his pocket. Howell grabbed Shoenberger’s wrist to stop
him from retrieving the item because he “was afraid he was going to pull a weapon out.”
Howell again asked what the object was and Shoenberger slowly pulled the object out
revealing a circular change container with a zipper around it. Shoenberger also pulled a
twenty-dollar bill from his pocket at the same time.
{¶5} When Howell saw that the item was not a weapon, he released
Shoenberger’s wrist, but noticed that Shoenberger appeared to be shielding the item from
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view. Howell again asked what the item was and Shoenberger said that he had a twenty-
dollar bill. Howell asked about the change container and Shoenberger sighed and said it
was “something I shouldn’t have.”
{¶6} After being called to the scene for a possible overdose and Shoenberger’s
evasiveness and ultimate admission that the item contained something he should not
have, Howell believed the item contained “something illegal.” He therefore took the
change container, opened it, and found two baggies with two different rock substances
inside which appeared to be heroin.
{¶7} Then, the ambulance arrived in response to the possible overdose call.
Howell seized the change container and Shoenberger spoke to ambulance personnel
who examined and released him. After this, Howell allowed Shoenberger to enter his
girlfriend’s house rather than placing him in custody.
{¶8} On October 9, 2019, the Ashtabula County Court of Common Pleas indicted
Shoenberger for Aggravated Trafficking in Drugs, a felony of the third degree, Aggravated
Possession of Drugs, a felony of the third degree, Trafficking in Fentanyl Related
Compound, a felony of the fourth degree, Trafficking in Heroin, a felony of the fourth
degree, Possession of Fentanyl Related Compound, a felony of the fourth degree,
Possession of Heroin, a felony of the fourth degree, and Possessing Criminal Tools, a
felony of the fifth degree.
{¶9} Shoenberger sought to suppress the evidence of his arrest on the basis that
Howell illegally detained Shoenberger in an investigatory stop without reasonable
suspicion, illegally removed him from his vehicle, and illegally searched his person and
possessions. The trial court overruled his motion after a hearing. Shoenberger then
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entered a plea of no contest to all counts and was sentenced to two-years of intensive
community control. Shoenberger timely filed this appeal and raises three assignments of
error relating to his motion to suppress.
{¶10} “‘Appellate review of a motion to suppress presents a mixed question of
law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶
8. At a hearing on a motion to suppress, the trial court, as the trier of fact, is in the best
position to weigh the evidence by resolving factual questions and evaluating the credibility
of witnesses. Id.; State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). A
reviewing court must accept the facts determined by the trial court as true and
“independently determine, without deference to the conclusion of the trial court, whether
the facts satisfy the applicable legal standard.” Burnside, supra, citing State v.
McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).
{¶11} The Fourth Amendment to the United States Constitution guarantees “[t]he
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures * * *.” Fourth Amendment, United States
Constitution. The Ohio Constitution likewise protects against arbitrary government
invasions. State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 11,
citing State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762 (1997). “The touchstone of
both is reasonableness.” State v. Brown, 11th Dist. Lake No. 2020-L-002, 2020-Ohio-
5140, ¶ 8, citing State v. Michael, 2013-Ohio-3889, 995 N.E.2d 286, ¶ 10 (10th Dist.).
{¶12} “‘[S]earches conducted outside the judicial process, without prior approval
by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well-delineated exceptions.’” (Footnote
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omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
“When a defendant moves to suppress evidence recovered during a warrantless search,
the state has the burden of showing that the search fits within one of the defined
exceptions to the Fourth Amendment's warrant requirement. Athens v. Wolf, 38 Ohio
St.2d 237, 241, 313 N.E.2d 405 (1974).” State v. Banks-Harvey, 152 Ohio St.3d 368,
2018-Ohio-201, 96 N.E.3d 262, ¶ 17-18.
{¶13} “Courts must exclude evidence obtained by searches and seizures that
violate the Fourth Amendment.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,
45 N.E.3d 127, ¶ 181, citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081(1961) (extending the exclusionary rule to the states). “ ‘The primary purpose of the
exclusionary rule is to remove incentive from the police to violate the Fourth Amendment.’
” State v. Eggleston, 11th Dist. Trumbull, 2015-Ohio-958, 29 N.E.3d 23, ¶ 17,
quoting State v. Casey, 12th Dist. Warren No. CA2013-10-090, 2014-Ohio-2586, 2014
WL 2733098, ¶ 29.
{¶14} Appellant raises three assignments of error:
{¶15} “[1.] THE TRIAL COURT ERRED IN FINDING THAT OFFICER HOWELL
HAD ACTED AS A COMMUNITY-CARETAKER.”
{¶16} “[2.] OFFICER HOWELL WAS ENGAGED IN AN INVESTIGATORY STOP
WITHOUT REASONABLE SUSPICION AND, AS SUCH, THE TRIAL COURT ERRED IN
FINDING THAT THERE HAD BEEN A CONSENSUAL ENCOUNTER.”
{¶17} “[3.] OFFICER HOWELL LACKED A CONSTITUTIONAL BASIS TO
REMOVE MR. SHOENBERGER FROM THE VEHICLE AND CONDUCT A SEARCH.”
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{¶18} Shoenberger argues that it was not permissible for Howell to approach
Shoenberger in his vehicle and question him under the community-caretaking exception
to the Fourth Amendment; that the trial court incorrectly determined that his encounter
with Howell was consensual; that Howell improperly removed him from his vehicle; and
that Howell improperly subjected him to a Terry pat down.
{¶19} We address the Terry pat down issue at the outset because it is dispositive
of the case.
{¶20} A frisk search for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968), justified “on the basis of reasonable suspicion less than probable
cause—must be strictly ‘limited to that which is necessary for the discovery of weapons
which might be used to harm the officer or others nearby.’” Minnesota v. Dickerson, 508
U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), quoting Terry, at 26.
{¶21} There are three steps to a Terry analysis. First, to justify the investigatory
stop, the officer must have reasonable suspicion that “criminal activity may be afoot.”
Terry, supra, at 30. Second, if the officer reasonably believes the person “may be armed
and presently dangerous,” the officer may perform a limited pat down to determine if the
person has a gun or other weapon. Id.; State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489(1988), paragraph two of the syllabus (An officer must have “a reasonable suspicion that
an individual is armed based on the totality of the circumstances * * *.”) Third, the officer
may perform a more thorough pat down of the person if the officer has a reasonable belief
that an object is a weapon. Id. at 21-22.
{¶22} “The frisk, or protective search, approved in Terry is limited in scope to a
pat-down search for concealed weapons when the officer has a reasonable suspicion that
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the individual whose behavior he is investigating at close range may be armed and
dangerous.” State v. Andrews, 57 Ohio St.3d 86, 89, 565 N.E.2d 1271 (1991),
citing Terry, supra, at 27. “While probable cause is not required, the standard to perform
a protective search, like the standard for an investigatory stop, is an objective one based
on the totality of the circumstances.” Id. “The rationale behind the protective search is to
allow the officer to take reasonable precautions for his own safety in order to pursue his
investigation without fear of violence.” Id., citing Terry, at 24, 30.
{¶23} In State v. Luther, 11th Dist. Lake No. 2018-L-039, 2018-Ohio-4568, 123
N.E.3d 296, this court concluded that a pat down search was appropriate where the
officers involved “were concerned” the suspect “might try to harm them in order to flee
because it appeared appellant had attempted to evade the officers on his bicycle, was
sweating profusely, refused to make eye contact, and was looking around as though for
an escape route.” Id. at ¶ 21. Based on the totality of the circumstances in that case, the
pat down search to determine if the suspect was armed was not unreasonable.
{¶24} In this case, Howell told Shoenberger to step out of the vehicle and told him
that he “was going to pat him down for weapons.” To have been permitted to conduct the
weapons frisk, Howell must have reasonably believed that Shoenberger was “armed and
presently dangerous.” Terry, supra, at 30. The trial court described the encounter
between Shoenberger and Howell by saying “the defendant provided a suspicious answer
about dropping his cell phone.” However, it is telling that Howell himself did not
characterize this response as suspicious in his testimony. Instead, Howell described
Shoenberger as “cooperative,” “went with the program, listened to my commands,” and
“responsive.”
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{¶25} Howell testified that he did not see anything in plain view in the vehicle. He
did, however, testify that he performs a pat down “any time there’s drugs, weapons, stuff
like that involved, I always like to pat someone down * * * just for my protection and their
protection.” Although Howell made this general statement about his typical pat down
practices, he did not point to any particular facts that justified his belief that Shoenberger
himself was armed and presently dangerous.
{¶26} Howell went to the scene to investigate a possible overdose but found no
evidence to corroborate the call. Shoenberger was alert, did not seem intoxicated, was
cooperative, and answered all of Howell’s questions. Howell did not testify that
Shoenberger made any furtive movements or acted evasively. Unlike in Luther, supra,the totality of the circumstances in this case does not demonstrate a reasonable suspicion
that Howell believed Shoenberger was armed and presently dangerous. Howell’s pat
down was an unreasonable search and a violation of Shoenberger’s Constitutional rights.
As a result of this illegal search, the evidence obtained from it must be excluded. Adams,
144 Ohio St.3d 429, at ¶ 181.
{¶27} As our decision on the Terry pat down is dispositive and requires the
exclusion of the evidence obtained from it, the remaining assignments of error are moot.
State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d 720, ¶ 26. (An
“assignment of error is moot when an appellant presents issues that are no longer live as
a result of some other decision rendered by the appellate court.”).
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{¶28} Accordingly, appellant’s conviction is reversed and the matter is remanded
for further proceedings consistent with this opinion.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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