State v. Covert

[Cite as State v. Covert, 2011-Ohio-4713.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-11-02
v.
SETH A. COVERT, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-11-03
v.
SETH A. COVERT, OPINION
DEFENDANT-APPELLANT.
Appeals from Tiffin Municipal Court
Trial Court No. CRB 1001024AB
Judgments Affirmed
Date of Decision: September 19, 2011
APPEARANCES:
Richard A. Kahler for Appellant
Richard H. Palau for Appellee
Case Nos. 13-11-02 and 13-11-03
SHAW, J.
{¶1} Defendant-appellant, Seth Covert (“Covert”), appeals two judgments
of the Municipal Court of Tiffin, Ohio, filed on January 28, 2011. In the first
appeal (Appellate Case No. 13-11-02), the trial court found him guilty of
possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a
misdemeanor of the fourth degree, and sentenced him to one year of non-reporting
probation, thirty days in jail, all of which were suspended, assessed a $150.00 fine
and court costs, and suspended his license for six months. In his second appeal
(Appellate Case No. 13-11-03), the trial court found Covert guilty of possession of
marijuana in violation of R.C. 2925.11(A), a minor misdemeanor, and ordered him
to pay a fine of $100.00 and court costs, and suspended his license for six months.
{¶2} The facts relevant to these appeals are as follows. On November 13,
2010, at approximately 7:00 p.m., Officer Eric Aller of the Tiffin Police
Department witnessed a motor vehicle that was traveling without using its
headlights. Officer Aller initiated his overhead lights, signaling the driver to stop.
The driver of the vehicle pulled inside the parking lot of a gas station, and Officer
Aller approached the vehicle. Inside the vehicle were the driver, a female
passenger in the front passenger seat, and three male passengers in the back.
Covert, one of the backseat passengers, was seated directly behind the driver.
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When Officer Aller advised the driver of the reason he stopped him, the driver
stated that he simply forgot to turn on his lights.
{¶3} Officer Aller asked all of the occupants for identification and they
complied, including Covert. Officer Aller then asked his dispatcher to verify each
person’s identification through the computerized LEADS system. This check
revealed that there was a misdemeanor warrant out of Hancock County for the
female passenger. In addition, the dispatcher advised Officer Aller that the driver
had a prior drug arrest. According to Officer Aller, this information raised
concerns to him that the driver could possibly still be using drugs or possibly be
operating his vehicle while under the influence of drugs, which caused Officer
Aller to pay closer attention to him.
{¶4} Officer Aller had the driver exit the vehicle, and he asked him about
the prior drug arrest and whether there was anything illegal in the vehicle. The
driver explained that he did not live that type of life any longer and that to his
knowledge there was nothing illegal in his car. Officer Aller then asked the driver
if he had any problem with Officer Aller searching his vehicle, and the driver gave
his consent for Officer Aller to search the car.
{¶5} Before searching the vehicle, Officer Aller patted down the driver in
order to ascertain whether he had any weapons on him. He did not, and Officer
Aller had him step to the back of the vehicle where another patrolman, Officer
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Chandler, who had stopped to assist Officer Aller, waited. Officer Aller then
began having the backseat passengers exit the vehicle one at a time. Each
passenger was patted down for weapons and asked to step back to where Officer
Chandler was located. Covert, who was seated directly behind the driver, was the
second occupant to exit the vehicle.
{¶6} Prior to patting down Covert, Officer Aller told him that he was going
to pat him down for weapons for officer safety. While he was patting down
Covert, a third officer, Officer Watson, arrived on the scene. During the pat down
of Covert, Officer Aller asked him if he could place his hands inside of Covert’s
pockets. Covert consented to this request, and inside of his pockets, Officer Aller
found two metal pipes and a light film canister that contained marijuana. Covert
told Officer Aller that he had forgotten that those items were in his pocket and that
he had been smoking marijuana to help him deal with some stress caused by a
family member dying. Officer Aller confiscated these items, finished patting
down Covert, and then had him stand with Officer Watson while he continued
patting down the remaining occupants and searched the car.
{¶7} None of the remaining occupants had any weapons or contraband on
them. A search of the vehicle also revealed no weapons or contraband. After
searching the car, Officer Aller confirmed through the Findlay Police Department
that the warrant for the female passenger was still in effect and placed her under
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arrest. Officer Aller also issued the driver a warning for the headlight violation,
issued citations to Covert for possession of marijuana and possession of drug
paraphernalia, and released all four of the men.
{¶8} Both charges were filed in the Tiffin Municipal Court and assigned
individual case numbers. Covert made his initial appearance for these charges on
November 15, 2010. He requested a continuance, which was granted, and the
matter was rescheduled for November 22, 2010. At that time, Covert pled no
contest in both cases. The trial court found him guilty of both charges and
sentenced him. However, on December 2, 2010, Covert filed motions in both
cases to permit him to withdraw his pleas of no contest. The trial court granted
these motions, and on December 16, 2010, Covert pled not guilty to the two
charges. One week later, Covert filed motions to suppress in both cases, and a
hearing was held on these motions on January 11, 2011. The trial court overruled
the motions to suppress on January 25, 2011. Three days later, Covert entered
pleas of no contest in both cases, was found guilty, and sentenced accordingly.
This appeal followed, and Covert now asserts one assignment of error for our
review.
THE TRIAL COURT ERRED IN OVERRULING THE
DEFENDANT’S MOTION TO SUPPRESS EVIDENCE.
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{¶9} In his brief to this Court, Covert does not challenge the legality of the
vehicle stop, whether Officer Aller was permitted to check the identification of all
of the occupants, or whether the driver’s consent to search the vehicle was valid.
Rather, Covert contends that Officer Aller violated his Fourth Amendment rights
to be free from unreasonable searches and seizures by patting him down and
placing his hand in Covert’s pockets where the marijuana and pipes were located.
{¶10} Initially, we note that appellate review of a decision on a motion to
suppress evidence presents a mixed question of law and fact. State v. Bressler, 3rd
Dist. No. 15–05–13, 2006–Ohio–611. At a suppression hearing, the trial court
assumes the role of trier of fact and is in the best position to resolve factual
questions and evaluate the credibility of witnesses. State v. Carter, 72 Ohio St.3d
545, 552, 1995-Ohio-104, 651 N.E.2d 965. When reviewing a trial court’s
decision on a motion to suppress, an appellate court must uphold the trial court’s
findings of fact if they are supported by competent, credible evidence. State v.
Dunlap, 73 Ohio St.3d 308, 314, 1995-Ohio-243, 652 N.E.2d 988. We must defer
to “the trial court’s findings of fact and rely on its ability to evaluate the credibility
of the witnesses,” and then independently review whether the trial court applied
the correct legal standard. State v. Anderson (1995), 100 Ohio App.3d 688, 691,
654 N.E.2d 1034.
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{¶11} The Fourth Amendment to the United States Constitution and
Section 14, Article I of the Ohio Constitution guarantee “[t]he right of the people
to be secure in their persons, houses, papers, and possessions, against
unreasonable searches and seizures.” Accordingly, the State is prohibited from
making unreasonable intrusions into areas where people have legitimate
expectations of privacy without a search warrant. United States v. Chadwick
(1977), 433 U.S. 1, 7, overruled on other grounds in California v. Acevedo (1991),
500 U.S. 565. The touchstone of any Fourth Amendment analysis
“is always ‘the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal
security,’” Mimms, 434 U.S., at 108–109, 98 S.Ct. at 332 (quoting
Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878–1879, 20
L.Ed.2d 889 (1968)), and that reasonableness “depends ‘on a
balance between the public interest and the individual’s right to
personal security free from arbitrary interference by law
officers,’” Mimms, 434 U.S. at 109, 98 S.Ct. at 332 (quoting
United States v. Brignoni–Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574,
2579, 45 L.Ed.2d 607 (1975)).
Maryland v. Wilson (1997), 519 U.S. 408, 411. When trying to prove an
exception to the Fourth Amendment’s warrant requirement exists, the State bears
the burden of proof in order to survive a motion to suppress. State v. Kessler
(1978), 53 Ohio St.2d 204, 207, 373 N.E.2d 1252.
{¶12} One such exception to the warrant requirement has been commonly
referred to as a “Terry pat-down.” In the landmark case of Terry v. Ohio, the
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United States Supreme Court held that an investigatory stop and frisk may be
conducted on a person without violating the Fourth Amendment if two conditions
are met. Terry v. Ohio (1968), 392 U.S. 1. “First, the investigatory stop must be
lawful[,]” and “[s]econd, to proceed from a stop to a frisk, the police officer must
reasonably suspect that the person stopped is armed and dangerous.” Arizona v.
Johnson (2009), 555 U.S. 323, citing Terry, supra.{¶13} Recently, the United States Supreme Court addressed the authority of
a police officer to “stop and frisk” a passenger in a motor vehicle temporarily
seized upon police detection of a traffic infraction. See Arizona v. Johnson
(2009), 555 U.S. 323. In addressing this issue, the Court relied upon a number of
its earlier decisions. The Court first noted that “[f]or the duration of a traffic stop
* * * a police officer effectively seizes ‘everyone in the vehicle,’ the driver and all
passengers.” Id., quoting Brendlin v. California (2007), 551 U.S. 249, 255.
Furthermore, “traffic stops are ‘especially fraught with danger to police officers’ *
* * [and] ‘[t]he risk of harm to both the police and the occupants [of a stopped
vehicle] is minimized,’ * * * ‘if the officers routinely exercise unquestioned
command of the situation.’” Johnson, supra (internal citations omitted). The
Court also noted that
once a motor vehicle has been lawfully detained for a traffic
violation, the police officers may order the driver to get out of
the vehicle without violating the Fourth Amendment * * *
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[because] [t]he government’s “legitimate and weighty” interest
in officer safety, the Court said, outweighs the “de minimis”
additional intrusion of requiring a driver, already lawfully
stopped, to exit the vehicle.
Johnson, supra, citing Pennsylvania v. Mimms (1977), 434 U.S. 106, 110-111.
{¶14} Likewise, the Supreme Court has extended this rule to passengers in
stopped motor vehicles because “the same weighty interest in officer safety, * * *
is present regardless of whether the occupant of the stopped car is a driver or
passenger.” Wilson, 519 U.S. at 413-415. In Wilson, the Supreme Court
recognized that “the risk of a violent encounter in a traffic-stop setting ‘stems not
from the ordinary reaction of a motorist stopped for a speeding violation, but from
the fact that evidence of a more serious crime might be uncovered during the
stop.’” Johnson, supra, quoting Wilson, 519 U.S. at 414. Thus, “‘the motivation
of a passenger to employ violence to prevent apprehension of such a crime * * * is
every bit as great as that of the driver.’” Johnson, supra, quoting Wilson, supra.
In addition, the Court found that “danger to an officer from a traffic stop is likely
to be greater when there are passengers in addition to the driver in the stopped
car.” Wilson, 519 U.S. at 415. As such, the Court in Wilson, held that an officer
may order the passengers of a legally stopped motor vehicle to exit the vehicle.
Id.
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{¶15} Based on this line of cases, the Court found in Johnson, that “in a
traffic-stop setting, the first Terry condition – a lawful investigatory stop – is met
whenever it is lawful for police to detain an automobile and its occupants pending
inquiry into a vehicular violation.” Johnson, supra. Additionally, the police may
proceed to the next step of patting down the passenger for weapons, if they
“harbor reasonable suspicion that the person subjected to the frisk is armed and
dangerous.” Id. The Court then concluded that given the facts in Johnson, the
officer was permitted to have the passengers of a stopped motor vehicle exit the
vehicle during the time the vehicle was lawfully detained and to conduct a pat-
down search of Johnson, a backseat passenger, if the officer had a reasonable
suspicion that he was armed and dangerous.1 Id.{¶16} Here, the only evidence before the trial court was Officer’s Aller’s
testimony. This testimony established that the vehicle in which Covert was a
passenger was stopped for driving at night without using the headlights. Once
Officer Aller ran each of the five occupant’s driver’s licenses, he learned that the
driver had a prior drug arrest and that the female passenger had an outstanding
misdemeanor warrant for her arrest. This heightened Officer Aller’s attention
1
The Supreme Court noted that the issue of whether the officer had a reasonable suspicion that Johnson
was armed and dangerous was not before it because the lower court had assumed arguendo that the officer
had a reasonable suspicion that Johnson was armed and dangerous. Rather, the issue before the Supreme
Court concerned whether Johnson was still lawfully detained at the time of the pat-down or whether his
conversation with the officer on a matter unrelated to the initial traffic stop ceased any authority the officer
had to conduct a pat-down of Johnson absent a reasonable suspicion that Johnson had engaged or was about
to engage in criminal activity (the first requirement of Terry). Johnson, supra.
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during the remainder of the stop and led to his questioning the driver about the
prior arrest and whether there was anything illegal in his vehicle. The driver
stated that he did not live that kind of life any longer, informed Officer Aller that
he did not have anything illegal in his vehicle, and gave Officer Aller consent to
search the vehicle upon Officer Aller’s request. In order to conduct the search of
the vehicle, Officer Aller had all the occupants exit the vehicle one at a time and
patted each down for weapons. Officer Aller also testified that he patted down the
occupants of the vehicle for officer safety because when he is searching a vehicle
he wants to make sure that there is nothing that can harm him while he is
searching.
{¶17} Although he did not have an individualized suspicion that Covert or
any of the other backseat passengers were armed and dangerous, the situation, in
and of itself, called for precaution. Unlike the facts at issue in the cases previously
discussed herein, Officer Aller was preparing to search a motor vehicle occupied
by a number of people with only one other officer for back-up. The facts known
to Officer Aller at the time were that the driver had previously been involved with
drugs, having albeit claimed that he no longer lived that kind of life, the female
passenger had a misdemeanor warrant for her arrest on an unknown charge that
Officer Aller was having the dispatcher verify, and the other three occupants of the
vehicles were males who were each approximately 5’ 8” tall and weighed between
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160-180 pounds. As previously noted, when Officer Aller had everyone exit the
vehicle and began to pat them down, he had only one other officer there with him
and he was planning to conduct a search of the vehicle, which would mean that his
attention was going to be focused on the vehicle and its contents rather than on the
five individuals removed from the car, leaving only one other officer to watch five
people.
{¶18} As stated in Terry, “[t]he 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.” Terry, 392 U.S. at 27, citing Beck v. State of Ohio (1964), 379 U.S.
89, 91; Brinegar v. United States (1949), 338 U.S. 160, 174-176; Stacey v. Emery
(1878), 97 U.S. 642, 645. We find that under these circumstances, a reasonably
prudent officer, who is about to search a vehicle, leaving five people (two of
whom had issues that would cause any officer concern) to be watched by only one
officer, would be warranted in the belief that his safety or that of his fellow officer
was in danger. To require an officer to conduct a search of a vehicle under these
circumstances without first conducting a minimal pat-down search of the vehicle’s
occupants simply because the five occupants were cooperative and the area of the
search was not classified as “high-crime,” places the officer in a potentially deadly
situation. Although the officer did not have to ask for consent to search the
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vehicle, the law permits him to do so, and the driver’s consent to such a search
allowed him to then conduct the search. Once the officer knew he was about to
search the vehicle, it would have been a very unwise decision not to first take steps
to ensure his safety. Therefore, we find that the pat-down of Covert was not
unreasonable.
{¶19} Our review does not end here as we must now address whether
Officer Aller violated Covert’s Fourth Amendment rights by placing his hand in
Covert’s pockets. The trial court found that Covert voluntarily consented to this
action.2
{¶20} Both the United States Supreme Court and the Ohio Supreme Court
have held that when “‘the State attempts to justify a search on the basis of consent,
the Fourth and Fourteenth Amendments require that it demonstrate that the
consent was in fact voluntarily given, and not the result of duress or coercion,
express or implied. Voluntariness is a question of fact to be determined from all
the circumstances[.]’” State v. Robinette, 80 Ohio St.3d 234, 242-243, 1997-Ohio-
343, 685 N.E.2d 762, quoting Schneckloth v. Bustamonte (1973), 412 U.S. 218,
2
The trial court also found that the initial pat-down of Covert revealed an object which he testified he could
not identify and could be a weapon. Thus, Officer Aller was permitted to retrieve this item from Covert’s
pocket to see if it was a weapon. See State v. Evans, 67 Ohio St.3d 405, 415-416, 1993-Ohio-186, 618
N.E.2d 162. However, the only testimony elicited from Officer Aller regarding what this object felt like
was that he felt “some object” in Covert’s pocket. He never testified that he could not identify the object
during the pat-down, that it could be a weapon, or that its identity as contraband was immediately apparent
to him during the pat-down, see Minnesota v. Dickerson (1993), 508 U.S. 366, 375. Given this state of the
evidence, we will not address the “plain feel” doctrine.
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248-249. Further, “[v]oluntary consent, determined under the totality of the
circumstances, may validate an otherwise illegal detention and search.”
Robinette, 80 Ohio St.3d at 241, citing Davis v. United States (1946), 328 U.S.
582, 593-594.
{¶21} In the case sub judice, Officer Aller obtained consent to search the
vehicle from the driver. He patted down the driver, told him to stand by Officer
Chandler, and then asked Covert, who was seated directly behind the driver’s seat
to step out of the vehicle. He next informed Covert that he was going to pat him
down for weapons for officer safety. He had Covert place his hands on the hood
of the car and slightly spread his feet apart. He then began the pat-down of Covert
at Covert’s shoulders and proceeded to work his way down Covert’s body. When
he got to Covert’s pocket, he was able to feel an object inside the pocket. At this
time, he asked Covert for permission to put his hand in the pocket. Covert gave
him permission, and Officer Aller placed his hand in his pockets, discovering the
pipes and marijuana. He placed these objects on the hood of the car and asked
Covert about them.
{¶22} Officer Aller then continued patting Covert down for weapons. After
discovering Covert had no weapons, the officer had Covert step over to where
Officer Chandler and the driver were and continued to search the other occupants
of the vehicle, none of whom had weapons or contraband, one by one. Officer
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Aller searched the vehicle once he had checked each occupant for weapons. Upon
finding no weapons or contraband in the vehicle and confirming that the warrant
for the female passenger remained active, Officer Aller placed her in custody,
gave the driver a warning for not using his headlights, and issued a citation and
summons to Covert for the paraphernalia and marijuana. The driver, Covert, and
the two other male passengers were then released from the scene. Covert thanked
Officer Aller for giving him a citation in lieu of arrest and left with the others.
Officer Aller testified that everyone involved in the stop was very cooperative
throughout the stop.
{¶23} Given the totality of the circumstances, we do not find that Covert’s
consent was the result of duress or coercion, express or implied. There is no
evidence that Covert felt compelled to submit to Officer Aller’s request to place
his hand in his pockets. In fact, although Officer Aller told Covert that he was
going to pat him down for weapons for officer safety, he stopped this pat down
and specifically asked Covert for permission to enter his pockets. At this point,
Covert told Officer Allen that he could. Additionally, only the driver had been
patted down for weapons when Covert was subjected to his pat-down and there
was no evidence that Officer Aller placed his hand in any of the driver’s pockets.
Thus, it cannot be said that Covert witnessed the pat down of a number of his
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companions, that each of the others also had their pockets searched, and that he
was merely submitting to a claim of lawful authority as the others had done.
{¶24} In short, the evidence before the trial court did not indicate that any
of the officer’s actions were coercive nor did it indicate that Covert was subjected
to deceptive practices by the officer to elicit his consent or that he felt duress
during the encounter with Officer Aller. Rather, the evidence established that the
driver, Covert, and the other passengers had been cooperative throughout the
incident of their own accord. Therefore, we do not find that the trial court erred in
finding that Covert voluntarily consented to a search of his pockets, and Covert’s
assignment of error is overruled.
{¶25} For all of these reasons, the judgments of the Tiffin Municipal Court
are affirmed.
Judgments Affirmed
WILLAMOWSKI, J., concurs.
ROGERS, P.J., Concurring Separately.
{¶26} I concur in judgment only as to the opinion of the majority. Further,
it is my opinion that this matter was improperly assigned two case numbers in the
Tiffin Municipal Court. Multiple misdemeanor charges resulting from “the same
act, transaction, or series of acts or transactions” should be assigned only one case
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number. See Sup. R. 43(B)(3) and the attendant commentary. To assign separate
case numbers and to report them separately artificially inflates the statistics
reported by the court and judge pursuant to Sup. R. 37.
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