State v. Fowler

[Cite as State v. Fowler, 2018-Ohio-241.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, : Case No. 17CA3599
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
MONICA L. FOWLER, :
RELEASED: 01/18/2018
Defendant-Appellant. :
APPEARANCES:
Timothy Young, Ohio Public Defender, and Patrick T. Clark, Ohio Assistant Public
Defender, Columbus, Ohio, for appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Harsha, J.
{¶1} After the trial court denied Monica Fowler’s motion to suppress evidence,
the court found her guilty of possession of cocaine on her no-contest plea and
sentenced her to prison. Fowler asserts that the trial court erred by denying her motion
to suppress because the police who searched her for weapons after a traffic stop did
not have a reasonable suspicion that she was armed, and in any event, exceeded the
scope of a reasonable search by patting down her vaginal area.
{¶2} We reject Fowler’s assertions because she did not pursue these
objections to the search and acknowledged the propriety of the pat-down search at the
suppression hearing. Thus she forfeited and/or invited any potential error by the trial
court in denying her motion. Consequently, we overrule her assignment of error and
affirm the judgment of the trial court.
I. FACTS
Ross App. No. 17CA3599 2
{¶3} The Ross County Grand Jury returned an indictment charging Monica
Fowler with one count of possession of cocaine in violation of R.C. 2925.11, a first-
degree felony.
{¶4} Through her appointed trial counsel, Fowler filed a motion to suppress “all
evidence obtained as a result of the unlawful and illegal warrantless arrest by the Ohio
State Highway Patrol.” Her motion raised the following grounds: (1) the state trooper
lacked probable cause to search her after ordering her from a vehicle; the smell of
marijuana coming from the vehicle, which had two other occupants, did not justify the
search because the trooper did not notice the odor of marijuana coming from Fowler
and she did not admit marijuana use; (2) the trooper’s protective pat-down search of
Fowler, which revealed a hard object between her legs in her groin area, did not provide
probable cause to detain her further; and (3) the trooper lacked probable cause for the
warrantless arrest of Fowler after the pat-down search because the trooper lacked a
reason to remove the hard object.
{¶5} The record of the suppression hearing reveals that the Ohio Highway
State Patrol learned that the Columbus Task Force had been monitoring a drug house.
The Task Force observed a person, who they suspected of moving large amounts of
crack cocaine, get into a rented Toyota 4Runner sports utility vehicle with two other
persons, and head south on U.S. 23. Trooper Nick Lewis spotted such a vehicle on
U.S. 23 in Ross County and pulled it over after observing several traffic violations,
including the vehicle crossing marked lanes and following too closely behind the vehicle
in front of it.
Ross App. No. 17CA3599 3
{¶6} When Trooper Lewis approached the SUV, he noticed a strong odor of
marijuana coming from the vehicle. The driver advised the trooper that he did not have
a valid driver’s license and admitted that he had been following the vehicle ahead of
them too closely. The trooper asked the driver to step out of the vehicle, smelled
marijuana on his person, patted him down, and placed him in the cruiser. The driver
admitted that he had smoked marijuana.
{¶7} Trooper Lewis then asked the middle seat passenger to step out of the
vehicle and noticed a strong odor of marijuana coming from this person. The passenger
admitted that all three of the occupants of the SUV had been smoking marijuana earlier.
When the trooper patted him down, he felt something in the rear of this passenger’s
pants and asked the passenger to remove the object. The passenger then removed a
baggie containing a small amount of marijuana and nine Oxycodone pills. The trooper
placed him in another trooper’s cruiser.
{¶8} Next Trooper Lewis asked the final occupant of the SUV, Fowler, who was
sitting in the front seat, to exit the vehicle. The trooper noticed that the whole car and
everybody in it, including Fowler, smelled of marijuana. The trooper gave Fowler
Miranda warnings and then patted her down to make sure she did not have any
weapons. In conducting the pat-down search Trooper Lewis got between Fowler’s legs
with the back of his hand and felt a hard object. When the trooper asked Fowler what
the object was, she hesitated before stating it was a tampon; she then changed her
answer to say it was a pad, and finally claimed it was a tampon and a pad. Based on
the information he had, including the information from the Columbus Task Force that the
car was transporting crack cocaine, and his belief that the object felt like a rock-type
Ross App. No. 17CA3599 4
substance, Trooper Lewis believed that it was crack cocaine or some other contraband.
So he handcuffed Fowler and put her in the back of his cruiser next to the driver of the
SUV.
{¶9} When the troopers arrived at the Chillicothe post with the occupants of the
SUV, they watched video footage from Trooper Lewis’s cruiser, which revealed the
driver telling Fowler to push the contraband further into her body when she asked him
what to do with it. Confronted with what was on the video, Fowler voluntarily agreed to
remove the item from her vagina. The package removed contained 17 grams of crack
cocaine and 65 grams of powder cocaine.
{¶10} In her trial attorney’s argument, counsel acknowledged that Trooper
Lewis’s pat-down search of Fowler was appropriate but contended the trooper could not
remove the object from Fowler’s vagina, and the trooper did not have probable cause to
arrest her upon feeling the hard object during his pat-down search:
MR. CORNELY: THANK YOU, YOUR HONOR. I’M NOT GOING TO
ADDRESS THE FIRST PART OF MY MOTION WHETHER OR NOT
THERE WAS PROBABLE CAUSE TO SEARCH HER AS A RESULT OF
THE SMELL OF MARIJUANA BECAUSE THE OFFICER TESTIFIED
THAT HE CONDUCTED A PAT DOWN STOP -- OR A PAT DOWN OF
HER. * * * SO WE WOULD ARGUE THAT FIRST, HE DOESN’T HAVE
THE ABILITY TO REMOVE THE OBJECT FROM HER; SECOND, HE
CERTAINLY DOES NOT HAVE PROBABLE CAUSE FOR ARREST, SO
WHAT HAPPENS AFTER [S]HE IS ARRESTED IS IRRELEVANT
BECAUSE IT WAS AN ILLEGAL ARREST AT THAT POINT IN TIME.
{¶11} The trial court noted that Fowler’s trial counsel had acknowledged that the
dispositive issue in the case was whether the “plain feel” doctrine supported the
troopers’ seizure of the cocaine from her body. The court concluded that “based upon
the totality of the circumstances, * * * a reasonably prudent officer would believe the
Ross App. No. 17CA3599 5
object probably was crack cocaine and would be justified in removing the object under
the plain feel doctrine.” The court denied Fowler’s motion to suppress.
{¶12} Fowler then pleaded no contest to the cocaine possession charge, and the
trial court found her guilty and sentenced her to three years in prison.
II. ASSIGNMENT OF ERROR
{¶13} Fowler assigns the following error for our review:
THE TRIAL COURT ERRED BY DENYING MS. FOWLER’S MOTION TO
SUPPRESS.
III. STANDARD OF REVIEW
{¶14} In general, “appellate review of a motion to suppress presents a mixed
question of law and fact.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10
N.E.3d 691, ¶ 7. “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.” State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial
court's findings of fact if they are supported by competent, credible evidence.” Id. “
‘Accepting these facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard.’ ” Codeluppi at ¶ 7, quoting Burnside at ¶ 8.
IV. LAW AND ANALYSIS
{¶15} In her assignment of error Fowler asserts that the trial court erred by
denying her motion to suppress; specifically she contests the propriety of Trooper
Lewis’s pat-down search for weapons.
Ross App. No. 17CA3599 6
{¶16} “The Fourth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State
v. Emerson, 134 Ohio St.3d 191, 2012–Ohio–5047, 981 N.E.2d 787, ¶ 15. This
constitutional guarantee is protected by the exclusionary rule, which mandates the
exclusion at trial of evidence obtained from an unreasonable search and seizure. Id.This case involves an investigatory stop, which must be supported by a reasonable,
articulable suspicion. See State v. Shrewsbury, 4th Dist. Ross No. 13CA3402, 2014-
Ohio-716, ¶ 15, citing United States v. Williams, 525 Fed.Appx. 330, 332 (6th Cir.2013),
and Florida v. Royer, 460 U.S. 491, 501–507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
The investigatory stop here was justified by the observation of traffic violations by the
SUV in which Fowler was riding. See, e.g., State v. Mays, 119 Ohio St.3d 406, 2008-
Ohio-4539, 894 N.E.2d 1204, ¶ 23-24.
{¶17} “Officers can order a driver and a passenger to exit a vehicle, even absent
any additional suspicion of a criminal violation.” See State v. Alexander-Lindsey, 2016-
Ohio-3033, 65 N.E.3d 129, ¶ 14 (4th Dist.), and cases cited there. After lawfully
detaining a person, an officer may frisk the person if the officer has reasonable grounds
to believe the person is armed. See State v. Hansard, 4th Dist. Scioto No. 07CA3177,
2008-Ohio-3349, ¶ 25, citing Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968). The pat-down search is limited to discovering weapons that might
be used to harm the officer. Id. But “[u]nder the ‘plain feel’ doctrine, if in the process of
conducting a limited pat down search for weapons an officer detects an object whose
criminal character is immediately apparent to him, he is justified in seizing the object
Ross App. No. 17CA3599 7
from the * * * person being searched.” State v. Crayton, 2017-Ohio-705, 86 N.E.3d 77,
¶ 29 (11th Dist.); Hansard at ¶ 30.
{¶18} Fowler challenges Trooper Lewis’s authority to conduct a Terry pat-down
search for weapons, claiming he did not have a reasonable suspicion that she was
armed or dangerous, and in any event, the trooper exceeded the scope of a permissible
search when it included a pat down of the area of her genitals. However, Fowler did not
raise these challenges in presenting her suppression motion. Instead, she attacked the
propriety of the search because the trooper did not smell marijuana on her person, and
further contested her arrest and the removal of the cocaine from her vagina after
Trooper Lewis felt the hard object between her legs.
{¶19} And at the suppression hearing Fowler effectively conceded that she no
longer challenged the propriety of Trooper Lewis’s pat-down search, but instead
narrowed her challenge to the removal of the cocaine from her vagina, and whether the
troopers had probable cause to arrest her upon feeling the hard object during the pat-
down. In essence, Fowler abandoned any challenge she had to Trooper Lewis’s
authority to conduct a pat-down search, and invited the trial court to focus on the issue
of whether the plain-feel doctrine permitted the troopers to remove the contraband from
Fowler’s body and arrest her.
{¶20} “Where a suppression motion is filed asserting a specific argument, a trial
court does not commit error in failing to address a different argument.” State v. Smith,
7th Dist. Belmont No. 15 BE 0064, 2017-Ohio-2708, ¶ 52. Likewise, the state’s burden
in a suppression hearing is limited to those contentions that are asserted with sufficient
particularity to place the prosecutor and court on notice of the contested issues. Id.Ross App. No. 17CA3599 8
citing Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1998). “By requiring
the defendant to state with particularity the legal and factual issues to be resolved, the
prosecutor and court are placed on notice of those issues to be heard and decided by
the court and, by omission, those issues which are otherwise being waived.” State v.
Shindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994); State v. Box, 10th Dist. Franklin
No. 16AP-371, 2017-Ohio-1138, ¶ 13.
{¶21} Fowler’s abandonment of the claims she now raises results in forfeiture of
the right to raise them on appeal. See State v. Kerns, 4th Dist. Highland No. 15CA6,
2016-Ohio-63, ¶ 25; State v. Merryman, 4th Dist. Athens No. 12CA28, 2013-Ohio-4810,
¶ 43.
{¶22} At the suppression hearing, she narrowed the scope of her motion to the
removal of the cocaine from her body and her arrest after the pat-down search. She
thus invited any potential error by the trial court in assuming the pat-down search was
appropriate. Consequently she is precluded from raising the issue now, even under a
plain-error analysis. See State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-
4849, 775 N.E.2d 517, ¶ 27 (“Under [the invited-error] doctrine, a party is not entitled to
take advantage of any error that he himself invited or induced”); State v. Rorhbaugh,
126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 10 (even plain error is waived
where error is invited); see also State v. Robinson, 4th Dist. Washington No. 16CA22,
2017-Ohio-8273, ¶ 32 (a defendant who abandons a claim raised in his motion to
suppress waives even plain error on appeal).
Ross App. No. 17CA3599 9
{¶23} Therefore, we do not address the merits of Fowler’s assignments of error
because she acknowledged the propriety of the trooper’s pat-down search at the
hearing on her motion to suppress. We overrule her assignment of error.
V. CONCLUSION
{¶24} Fowler has failed to establish that the trial court erred by denying her
motion to suppress. Having overruled her assignment of error, we affirm the judgment
of the trial court.
JUDGMENT AFFIRMED.
Ross App. No. 17CA3599 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.