State v. Hughes

[Cite as State v. Hughes, 2013-Ohio-808.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25152
Plaintiff-Appellee :
: Trial Court Case No. 12-CRB-1458
v. :
:
ASHLEY T. HUGHES : (Criminal Appeal from
: (Dayton Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of March, 2013.
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JOHN J. DANISH, Atty. Reg. #0046639, by STEPHANIE L. COOK, Atty. Reg. #0067101,
City of Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
LORI R. CICERO, Atty. Reg. #0079508, Cicero Law Office, LLC, 500 East Fifth Street,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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FAIN, P.J.
{¶ 1} Defendant-appellant Ashley Hughes appeals from his conviction and sentence
for Possession of Drug Abuse Instruments, in violation of R.C. 2925.12. He contends that the
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trial court erred by overruling his motion to suppress evidence that he claims was obtained as
a result of an unlawful search and seizure. He further contends that because he was under the
influence of drugs, he did not knowingly, voluntarily and intelligently waive his rights
pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) prior to
giving statements to the police.
{¶ 2} We conclude that the trial court did not err in overruling the motion to
suppress. The facts support a finding that the handcuffing and pat-down of Hughes was
justified by a legitimate concern for officer safety. We also conclude that, based upon the
evidence in the record, the trial court could conclude that Hughes ability to understand, and
intelligently waive, his Miranda rights was not vitiated by reason of heroin that he may have
injected himself with just prior to his questioning. Accordingly, the judgment of the trial
court is Affirmed.
I. The Traffic Stop and Pat-Down
{¶ 3} One night in early March 2012, Dayton Police Officers Mark Orick and
Robert Clingner were on patrol near West Third Street and Gettysburg Avenue. They were
heading to a gas station that Orick knew, based upon his experience as an officer, to be “a very
high drug area [where] a lot of drug sales are completed.” During the previous four years,
Orick had been involved in “between seventy-five to one hundred” drug arrests at that
location. As they approached the gas station, Orick and Clingner observed a driver, later
identified as Hughes, make a sudden turn into the station. As they parked in the alley, the
officers noticed the vehicle driven by Hughes head to the “far side” of the station lot and stop
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next to a gas pump.
{¶ 4} As the officers watched the vehicle, they noted that no one entered or exited
and the car remained there, running, for approximately “three to five minutes.” Then the
vehicle pulled out of the station and headed onto Gettysburg Avenue. The officers followed
the car and noted that the driver failed to utilize a turn signal when turning onto West Third
Street.
{¶ 5} At that point, Orick activated the overhead lights on the patrol car. Hughes
did not stop, but continued on West Third Street. Hughes then made “a very abrupt” turn into
the parking lot of a fast-food restaurant. Hughes still did not stop, but continued to drive
around the restaurant; Orick sounded his air horn twice. Again, Hughes failed to stop; Orick
turned on his siren. Hughes continued to drive toward the rear of the restaurant, and ran into
a trash dumpster, which caused the vehicle to come to a stop.
{¶ 6} The officers pulled up directly behind Hughes’s vehicle, exited, and
approached the vehicle. Orick noted that a female passenger kept looking back and forth over
her shoulders at the officers and that Hughes was leaning forward with his hand down toward
the front of his seat. Orick opened Hughes’s door, pulled him out of the vehicle, and placed
him on his stomach on the ground.
{¶ 7} Orick proceeded to place handcuffs on Hughes, while his partner dealt with
the passenger. While Orick was on the ground, he observed in Hughes’s vehicle a brown,
braided leather belt that had been looped. He also saw a soft drink can that was turned upside
down. The base of the can showed condensation and had a “small piece of brownish-grayish
like cotton” in the middle of the can. Orick recognized the looped belt as something heroin
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users use as a tourniquet to aid in the injection of the drug. He also recognized the soda can
as something used by heroin users to “process or cook” the heroin.
{¶ 8} Orick pulled Hughes to his feet and conducted a pat-down to look for
weapons. Orick felt, and immediately recognized, a pocket-knife in Hughes’s right pocket.
Upon removing the knife, Orick noted the knife had a razor blade, rather than a normal knife
blade. Orick then began patting down the left pocket when he felt “a long, thin, spherical
[sic] item,” which he did not remove. Orick asked Hughes whether Hughes was carrying
anything that would “poke” or “stick” the officer. Hughes answered affirmatively and
indicated that he had a needle. Orick then asked if the needle had a cap, and Hughes again
answered affirmatively. Orick requested and received permission to remove the needle.
Orick noticed that the syringe contained a brownish-gray substance, which he believed to be
heroin.
{¶ 9} Hughes and the passenger were placed in the back of the police cruiser while
the officers checked their identification. The officers discovered that Hughes had a
suspended driver’s license. Hughes was placed under arrest, and his rights were explained to
him. He agreed to speak without the presence of a lawyer, and stated that he had traveled to
Dayton to buy heroin and that he had pulled into the gas station lot in order to use the heroin
he had purchased.
II. The Course of Proceedings
{¶ 10} Hughes was charged with one count of Possession of Drug Abuse
Instruments, in violation of R.C. 2925.12, a second-degree misdemeanor; Failure to Signal, a
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minor misdemeanor; Driving Under Suspension, a first-degree misdemeanor; and Failure to
Display, a first-degree misdemeanor. He moved to suppress evidence on both grounds of an
illegal search and seizure and on grounds that statements had been obtained from him in
violation of Miranda v. Arizona. Following a hearing, the suppression motion was denied.
{¶ 11} Hughes entered a no-contest plea to all
charges. The trial court found him not guilty of the Failure to Display charge, but
guilty of the other charges. The trial court sentenced Hughes to 90 days in jail, with
15 days suspended, and with credit for 23 days served, for a total of 52 days. Hughes
appeals from his conviction and sentence.
III. No Evidence Was Obtained as the Result
of an Unlawful Search and Seizure
{¶ 12} Hughes asserts the following as his sole assignment of error:
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION
TO SUPPRESS.
{¶ 13} Hughes contends that he was “illegally seized when he was removed from the
vehicle, handcuffed and patted down in violation of his Fourth Amendment rights.”
{¶ 14} “In reviewing a decision of a trial court on a motion to suppress, an appellate
court gives broad deference to a trial court's findings of fact. * * * But whether the facts found
by the trial court justify suppression of the evidence is a question of law subject to de novo
review.” State v. Anderson, 2d Dist. Montgomery No. 24678, 2012-Ohio-441, ¶ 10.
{¶ 15} Hughes does not dispute the lawfulness of the traffic stop based on a
turn-signal violation. Dayton v. Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, 665 N.E.2d 1091.
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Because the officers directly observed a traffic violation, the stop was valid.
{¶ 16} “Once 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.” State v. Rodriguez, 12th Dist. Preble No.
CA2009-09-024, 2010-Ohio-1944, ¶ 28, quoting State v. Lawson, 180 Ohio App.3d 516,
2009-Ohio-62, 906 N.E.2d 443, ¶ 21 (2d Dist.). “The purpose of this limited search is not to
discover evidence of crime, but to allow the officer to pursue his investigation without fear of
violence.” State v. Evans, 67 Ohio St.3d 405, 422, 1993-Ohio-186, 618 N.E.2d 162, citing
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In order to justify a
pat-down, “the police officer must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant that intrusion.”
Terry at 27. “The officer need not be absolutely certain that the individual is armed; the issue
is whether a reasonably prudent man in the circumstances would be warranted in the belief
that his safety or that of others was in danger.” Id. Ohio courts have recognized that the need
for a protective pat-down becomes more pronounced in situations involving illegal drugs.
“The very nexus between drugs and guns can create a reasonable suspicion of danger to the
officer.” State v. Thompson, 1st Dist. Hamilton No. C–050400, 2006-Ohio-4285, ¶ 11.
{¶ 17} Orick’s testimony provides a reasonable basis to believe that Hughes might
have been armed and dangerous. The area in which the officers first observed Hughes is
known for its high rate of drug crimes. Hughes sat in his car for three to five minutes at the
gas station without getting out of the vehicle. He then ignored signals to stop his vehicle and
continued to drive until he collided with a trash dumpster. Hughes then made a reaching
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motion to the front bottom of his seat and Orick was unable to observe what he was doing.
Orick testified that in areas known as high drug areas, officers need to be aware of weapons as
an officer-safety issue. Moreover, he testified that his “initial belief” was that Hughes may
have had a weapon, based upon the motions Hughes made as the officers approached the
vehicle. These factors, taken together and viewed objectively through the eyes of the officer
on the scene, warrant a reasonable belief that Hughes might have been armed and dangerous,
justifying a brief weapons pat-down.
{¶ 18} Orick’s concern that Hughes might have had a weapon allowed him to
lawfully remove Hughes from the car. Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137
L.Ed.2d 41 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331(1977). Given the legitimate concern about weapons and the fact that Orick’s partner was on
the other side of the vehicle dealing with the passenger, we conclude that it was reasonable for
Orick to place Hughes on the ground and place handcuffs on him. See, State v. Payne, 2d
Dist. Montgomery No. 13898, 1994 WL 171215 (May 4, 1994) (hand-cuffing a suspect in the
course of an investigative detention does not necessarily turn that investigative detention into
an arrest, so long as handcuffing is reasonable under the circumstances – for instance, to
maintain the status quo and prevent flight)
{¶ 19} As Orick was handcuffing Hughes, he saw – in plain view – what appeared to
be a belt and soda can frequently employed by heroin users. We conclude that these facts
taken together gave Officer Orick a reasonable, articulable suspicion justifying a weapons
pat-down prior to removing the handcuffs.
[Cite as State v. Hughes, 2013-Ohio-808.]
IV. There Was No Miranda Violation
{¶ 20} Hughes contends that his Miranda rights were violated both by questioning
before his Miranda rights were recited to him, and by questioning after they were recited to
him, because he claims that he was under the influence of heroin. The State concedes that
under all of the circumstances, Hughes was in custody when Orick asked him if he had
anything on his person that could “poke or stick” Hughes, which was before Orick advised
Hughes of his Miranda rights.
{¶ 21} An exception to the requirements of Miranda v. Arizona exists when “the
need for answers to questions in a situation posing a threat to the public safety outweighs the
need for the prophylactic rule protecting the Fifth Amendment’s privilege against
self-incrimination.” New York v. Quarles, 467 U.S. 649, 657, 104 S.Ct. 2626, 81 L.Ed.2d
550 (1984).
{¶ 22} “ ‘The public safety exception allows the police, under certain circumstances,
to temporarily forgo advising a suspect of his Miranda rights in order to ask questions
necessary to securing their own immediate safety or the public's safety.’ ” State v. Strozier
172 Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 23 (2d Dist.), quoting from
State v. Santiago 9th Dist. Lorain No. 01CA007798, 2002-Ohio-1114.
{¶ 23} Our holding in State v. Strozier is instructive. In that case, the defendant was
asked: “Do you have anything I need to know about? Anything that might stick me?” We
concluded that “the avoidance of being stuck by a needle during a lawful pat-down is a
legitimate safety concern for police officers.” Id., at ¶ 27. However, we concluded that the
question asked in that case was too broad to fit within the Quarles public-safety exception to
Miranda, because it was not narrowly tailored to address that legitimate concern, but went
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beyond the specific concern regarding being stuck by a needle. Id. at ¶ 28.
{¶ 24} In the case before us, Orick’s question was narrowly tailored to his legitimate
concern, after he felt the cylindrical 1 object in Hughes’s pocket, that Hughes might have
something on his person that would “poke or stick” Orick. Thus, this case does fit within the
Quarles public-safety exception to Miranda.
{¶ 25} We next address Hughes’s claim that his statements made after he was read
his Miranda rights were not made knowingly, intelligently or voluntarily, because he was
under the influence of heroin he had injected at the gas station.
{¶ 26} Miranda requires that a suspect be warned prior to any questioning that he has
the right to remain silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so desires. Miranda at 479. The
prosecution has the burden to prove, by a preponderance of the evidence, that the defendant
knowingly, intelligently, and voluntarily waived his Miranda rights based on the totality of the
circumstances. State v. Gumm, 73 Ohio St.3d 413, 429, 653 N.E.2d 253 (1995).
{¶ 27} Orick testified that Hughes did not appear to be under the influence. He
further testified that Hughes “was speaking normally. He was answering my questions and he
was cooperating.” Orick further testified that Hughes was not staggering. In light of this
testimony, we conclude that the trial court reasonably found that Hughes knowingly,
intelligently, and voluntarily waived his Miranda rights.
{¶ 28} Hughes’s sole assignment of error is overruled.
1
Orick referred to the object as “spherical,” but from the rest of his description, it is clear that he meant cylindrical.
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V. Conclusion
{¶ 29} Hughes’s sole assignment of error having been overruled, the judgment of the
trial court is Affirmed.
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FROELICH and WELBAUM, JJ., concur.
Copies mailed to:
John J. Danish
Stephanie L. Cook
Lori R. Cicero
Hon. Christopher D. Roberts