State v. Lewis

[Cite as State v. Lewis, 2017-Ohio-1195.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27152
:
v. : Trial Court Case No. 15-CR-3613
:
DERRICK LEWIS : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 31st day of March, 2017.
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MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road, N.E.,
Bloomingburg, Ohio 43106
Attorney for Defendant-Appellant
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HALL, P.J.
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{¶ 1} Derrick Lewis appeals from his conviction and sentence following a no-
contest plea to charges of heroin possession and aggravated drug possession.
{¶ 2} In his sole assignment of error, Lewis contends the trial court erred in
overruling his motion to suppress the drugs at issue. More specifically, he asserts that a
police officer was not entitled to pat him down during a traffic stop, that his subsequent
arrest was invalid, and that all evidence discovered was subject to suppression.
{¶ 3} The record reflects that Dayton police officer Terry Perdue, the only witness
at the suppression hearing, saw Lewis driving a Chevy Trailblazer with very darkly tinted
windows. Lewis proceeded to make a lane change without signaling properly before
pulling into a drug-store parking lot. Perdue turned his cruiser around and pulled into the
parking lot, intending to perform a traffic stop for the turn-signal violation and an apparent
window-tint violation. When Perdue approached the Trailblazer, however, Lewis was
gone. A passenger in the Trailblazer, Makayla Patton, identified the driver as Derrick
Lewis and explained that he was inside the drug store. Perdue ran a computer check on
Patton and discovered that she had at least one unspecified warrant and a history of “field
interviews” for drugs.
{¶ 4} While Perdue was dealing with Patton, Lewis exited the drug store. After
Patton again identified Lewis as the driver of the Trailblazer, Perdue called him over to
the cruiser. Perdue asked Lewis for identification, which Lewis did not possess. Perdue
also asked whether Lewis had been driving, which Lewis denied. At that point, Perdue
placed one hand on Lewis’ back in an attempt to perform a pat down before placing him
in the cruiser and running a computer check on him. Perdue testified that the attempted
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pat down was for officer safety to make sure Lewis did not have a weapon. Perdue was
concerned about possible weapons primarily because of passenger Patton’s prior drug-
related field interviews.
{¶ 5} In any event, Lewis fled on foot when Perdue touched his back to start the
pat down. Lewis ran into the middle of the street and fell. Perdue caught him there, put
handcuffs on him, and placed him under arrest for obstructing official business based on
his flight from the traffic stop. During a search incident to arrest, Perdue found Percocet,
Xanax, heroin, and $1,500 cash in Lewis’ pants pockets. The Trailblazer was inventoried
and towed, but the suppression-hearing transcript does not identify what additional
evidence was found in it.
{¶ 6} Lewis ultimately was charged on four drug-related counts, and he moved to
suppress all evidence discovered in connection with the traffic stop. Based on the
testimony presented, the trial court overruled the motion. In relevant part, it reasoned:
In the case at bar, Perdue credibly testified that he had observed the
traffic violations. Further, he believed that a pat-down for officer safety was
necessary because the passenger in the car had been linked to drug activity
through the field identification cards on her. Perdue intended to place
Defendant in his cruiser while he ran Defendant’s identification information.
Based on the foregoing the attempted pat-down of Defendant was justified.
Further, after Defendant fled the scene, the search of his person incident to
his arrest was justified.
Finally, Defendant objects to the search of his Trailblazer because it
was conducted without a warrant. Perdue testified, however, that the search
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was conducted in accordance with the City of Dayton’s tow policy, which
provides for an inventory search of impounded vehicle[s]. Defendant was
an unlicensed driver, and since he was being arrested, the Trailblazer was
impounded. * * *
(Doc. #20 at 4).
{¶ 7} Lewis later pled no contest to one count of heroin possession, a fourth-
degree felony, and aggravated drug possession, a fifth-degree felony. The trial court
imposed five years of community control.
{¶ 8} On appeal, Lewis contends his passenger’s history of drug-related field
interviews did not authorize Perdue to pat him down as part of a traffic stop. Lewis asserts
that his case is distinguishable from State v. Thompson, 2d Dist. Montgomery No. 26130,
2014-Ohio-4244, a case discussed below. Lewis claims the defendant’s own actions
justified a pat down in Thompson, whereas the trial court improperly relied on his
passenger’s history of field interviews here. Finally, based on his belief that the attempted
pat down was unlawful, Lewis reasons that his subsequent arrest was invalid and that all
evidence discovered should have been suppressed.
{¶ 9} Upon review, we find Lewis’ argument to be unpersuasive. In Thompson, a
police officer, Jeff Hieber, observed defendant Thompson speeding before turning into a
parking lot without signaling. Thompson’s vehicle also appeared to have excessive
window tint. Thompson proceeded inside a cell-phone store, where Hieber approached
him to address the traffic violations. Id. at ¶ 4-5. Thompson became defensive and loud
when confronted, denied driving, and escalated the situation. Id. at ¶ 6-7. As Thompson
moved around and refused to cooperate, Hieber attempted to escort him out of the store.
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Thompson pulled away, and the officer decided to conduct a pat down for his safety and
the safety of others in the store. Hieber feared that Thompson, who was wearing layers
of clothing, might have a weapon. Thompson refused to cooperate with the pat down and
was handcuffed. Id. at ¶ 9. Once outside the store, Hieber observed drugs protruding from
Thompson’s pocket. Thompson was arrested, and an inventory search of his car yielded
additional drugs and other contraband. Id. at ¶ 10-12. In overruling Thompson’s
suppression motion, the trial court found, among other things, that Hieber was justified “in
conducting a pat-down search for his safety and the safety of the store patrons due to
Thompson: lying about driving the vehicle; escalating the encounter by being
uncooperative; yelling at Hieber; and being defensive.” Id. at ¶ 13.
{¶ 10} Addressing the pat down on appeal, this court reasoned:
Here, Hieber testified that he initially attempted to pat Thompson
down on two occasions inside the cell phone store after Thompson’s actions
led him to believe that his safety and the safety of the store patrons may
have been in danger. At that point in time, Thompson had: (1) lied to Hieber
about driving to the store; (2) stood up and yelled excitedly at Hieber
multiple times while flailing his arms; (3) was defensive and refused to calm
down after Hieber merely asked to talk to him about his window tint; and (4)
was uncooperative when Hieber asked him to come outside the store.
Hieber also testified that it was cold outside and that Thompson had layers
of clothes on in which a weapon could have been concealed. Based on the
totality of these circumstances, we conclude that the initial pat down
attempts in the cell phone store were justified.
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The pat down, however, could not be completed in the cell phone
store, because Thompson continually tried to place his hand in his right
pants pocket. Accordingly, Hieber was unable to discern whether
Thompson had a weapon and therefore, chose to handcuff him and escort
him out the store. After they were outside the store, Thompson again
reached for his right pants pocket and began pulling out a cellophane bag
while Hieber was turned around. When Hieber saw the top of the bag
emerging from Thompson’s pocket, he told Thompson to stop and
subsequently completed the pat-down search. Due to Thompson’s behavior
inside the store, his repeated attempts to reach his pocket, and his attempt
to pull out a cellophane bag while Hieber was not looking, we find that the
completed pat-down search outside the store was justified as well.
Id. at ¶ 27-28.
{¶ 11} Lewis contends his case is distinguishable from Thompson because he did
nothing to justify a pat down when Perdue confronted him in the drug-store parking lot.
We note that “ ‘[o]nce a lawful stop has been made, the police may conduct a limited
protective search for concealed weapons if the officers reasonably believe that the
suspect may be armed or a danger to the officers or to others.’ ” Id. at ¶ 25, quoting State
v. Lawson, 180 Ohio App. 3d 516, 2009-Ohio-62, 906 N.E.2d 443, ¶ 21 (2d Dist.). It is
perhaps a close question whether Perdue reasonably believed Lewis might have been
armed. We need not resolve that issue, however, because the suppression motion
properly was overruled even if we assume, arguendo, that Perdue was not entitled to
conduct a pat down in the parking lot.
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{¶ 12} The traffic stop itself was lawful based on Perdue’s observation of apparent
traffic violations. Even if Perdue impermissibly attempted a pat down as part of the stop,
Lewis was not entitled to respond by fleeing on foot and forcing the officer to chase him
into the street. Although an unlawful pat down may have resulted in exclusion of any
evidence discovered, “ ‘absent bad faith on the part of a law enforcement officer, [a
defendant] cannot obstruct the officer in the discharge of his duty, whether or not the
officer’s actions are lawful under the circumstances.’ ” State v. Burns, 2d Dist.
Montgomery No. 22674, 2010-Ohio-2831, ¶ 19, quoting State v. Stevens, 5th Dist.
Morgan No. 07-CA-0004, 2008-Ohio-6027, ¶ 37, and State v. Pembaur, 9 Ohio St. 3d 136,
138, 459 N.E.2d 217 (1984). We see no evidence of bad faith by Perdue. Therefore, by
fleeing the scene of a lawful traffic stop, Lewis subjected himself to a valid arrest for
obstructing official business. See, e.g., State v. Jackson, 1st Dist. Hamilton No. C-
990371, 2000 WL 376420 (April 14, 2000), *1-2 (holding that a vehicle occupant’s flight
on foot from a valid traffic stop gave police probable cause to arrest the occupant for
obstructing official business in violation of R.C. 2929.31).
{¶ 13} Notably, the drugs at issue were not found during Perdue’s attempted pat
down in the parking lot. Rather, they were found when he conducted a pat down pursuant
to Lewis’ lawful arrest for obstructing official business. Again, if Lewis believed the
attempted pat down in the parking lot constituted an impermissible extension of the traffic
stop, he should have cooperated with it and then sought suppression of any evidence
discovered. By electing instead to flee, Lewis subjected himself to arrest for obstructing
official business, and Perdue was entitled to search him incident to that arrest. Therefore,
the drugs in Lewis’ possession lawfully were discovered, as were any drugs or contraband
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that may have been found during an inventory search of the impounded Trailblazer. That
being so, the trial court correctly overruled the suppression motion.
{¶ 14} The assignment of error is overruled, and the trial court’s judgment is
affirmed.
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WELBAUM, J., and, TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck
Meagan D. Woodall
George A. Katchmer
Hon. Barbara P. Gorman