State v. Howard

[Cite as State v. Howard, 2020-Ohio-1400.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2019AP110045
:
JERROD R. HOWARD :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2018CR120477
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: April 7, 2020
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
MICHAEL J. ERNEST NICOLE R. STEPHAN
TUSCAWARAS CO. PROS. OFFICE TUSC. CO. PUBLIC DEFENDER
125 East High Ave. 153 N. Broadway St.
New Philadelphia, OH 44663 New Philadelphia, OH 44663
Tuscarawas County, Case No. 2019AP110045 2
Delaney, J.
{¶1} Appellant state of Ohio appeals from the October 30, 2019 Judgment Entry
of the Tuscarawas County Court of Common Pleas granting the motion to suppress of
appellee Jerrod R. Howard.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record of the suppression
hearing on September 20, 2019.
{¶3} This case arose on May 28, 2018, when Officer James Miller of the New
Philadelphia Police Department was on routine traffic patrol around 10:15 a.m. Miller was
northbound on Tuscawaras Avenue Northwest and passed a blue Honda driven by
Natasha Harding, a person known to Miller from drug-related and D.U.S. incidents. Miller
observed a male passenger in the vehicle—appellee. Suspecting Harding did not have
a valid operator’s license, Miller radioed dispatch to check the status of her license.
Dispatch responded that Harding’s license was suspended. Miller executed a traffic stop
in the 500 block of Fair Northwest.
{¶4} Miller approached the vehicle and told Harding her license was suspended.
He asked Harding to step out of the vehicle, intending to place her in his cruiser, and
asked if there was anything illegal in the vehicle. In response, Harding pulled a baggie of
marijuana out of her bra and handed it to Miller. Harding was then placed in the cruiser.
{¶5} The male passenger did not have an operator’s license with him but
provided Miller with the Social Security Number (S.S.N.) of “Joseph Howard.” Miller
pulled up a photo of Joseph Howard on his in-car computer and believed appellee to be
the person in the photo.
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{¶6} A second officer on scene, DeMattio, assisted Miller. When Harding
produced the marijuana from her bra, Miller stated to DeMattio, “She has weed on her;
check him.” DeMattio patted appellee down and felt something in the right pocket of his
cargo shorts; officers suspected the item was a baggie of narcotics, specifically
methamphetamine. Miller seized and secured the contraband to submit for testing.
Appellee was not arrested at the scene but was released pending test results on the
contraband.
{¶7} Miller encountered appellee again several days later. A vehicle was parked,
running, outside a “suspected narcotics house” and police were watching the vehicle.
When it pulled away, the driver committed a traffic violation and the vehicle was stopped.
The driver was Larry Austin Short, whose operator’s license was suspended, and
appellee was a passenger in the vehicle. Appellee again provided the S.S.N. of “Joseph
Howard.” As Miller investigated, a deputy of the Tuscarawas County Sheriff’s Department
(T.C.S.O.) overheard the traffic stop on the radio and asked Miller if the suspect had a
tattoo sleeve. The deputy noted that if the suspect had a tattoo sleeve, he was likely
Jerrod Howard, not Joseph Howard; the two were related and often used each other’s
identifying information, especially when one or the other had an arrest warrant. Jerrod
had a tattoo sleeve; Joseph did not.
{¶8} A deputy came to the scene of the traffic stop and identified appellee as
Jerrod Howard. Jerrod had an active felony arrest warrant and a knee injury which proved
to be from a gunshot wound. He was arrested and transported to a hospital for treatment.
{¶9} Upon cross-examination, Miller acknowledged that he told the other officer
to pat appellee down as soon as he knew Harding had drugs. When asked the purpose
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of the pat-down, Miller responded to find drugs in the vehicle and for officer safety. He
acknowledged, though, that he intended to search appellee as soon as he knew Harding
had drugs on her person.
{¶10} A sergeant from the T.C.S.O. testified that he catalogues arrest warrants
and protection orders, and that on May 28, 2018 appellee had an active warrant for felony
nonsupport. The sergeant was aware that Jerrod Howard and Joseph Howard use each
other’s identifying information to avoid arrest. Jerrod has a sleeve of tattoos that Joseph
does not have.
{¶11} Upon cross examination, the sergeant testified he is unaware whether
appellee knew of the existence of the active arrest warrant when he was involved in the
traffic stop on May 28, 2018.
{¶12} Appellee was charged by indictment with one count of aggravated drug
possession pursuant to R.C. 2925.11(A) and (C)(1)(B), a felony of the third degree [Count
I] and one count of identity theft pursuant to R.C. 2913.49(B)(1) and (I)(2), a felony of the
fifth degree [Count II]. Appellee was initially summonsed upon the indictment, but he
failed to appear and a warrant was issued for his arrest. We note that the Judgment Entry
on Arraignment filed March 26, 2019 indicates appellee was arraigned upon Count I,
aggravated drug possession, and entered a plea of not guilty, but the entry and record
are silent as to Count II, identity theft.
{¶13} On August 6, 2019, appellee filed a motion to suppress evidence flowing
from his stop and arrest, arguing the officer did not possess specific, articulable facts to
believe appellee was armed and dangerous, or engaged in criminal activity, to justify the
pat-down of his person. Appellant responded with a memorandum in opposition. The
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matter proceeded to an evidentiary hearing on the motion to suppress on September 20,
2019, after which the trial court permitted the parties to file supplemental memoranda.
{¶14} By Judgment Entry filed October 30, 2019, the trial court sustained
appellee’s motion to suppress, finding that the scope of the search of appellee went
beyond the scope of that permitted for a passenger under the totality of the
circumstances.
{¶15} Appellant filed a notice of appeal pursuant to R.C. 2945.67(A) on November
5, 2019. Appellant appeals from the trial court’s judgment entry of October 30, 2019,
raising one assignment of error:
ASSIGNMENT OF ERROR
{¶16} “THE APPELLEE WAIVED HIS RIGHT TO ALLEGE THAT HIS RIGHTS
UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION
WERE VIOLATED BASED UPON HIS OWN WRONGDOING.”
ANALYSIS
{¶17} In its sole assignment of error, appellant argues the trial court erred in
sustaining appellee’s motion to suppress. We disagree.
{¶18} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713
N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role
of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145,
Tuscarawas County, Case No. 2019AP110045 6
675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must
independently determine as a matter of law, without deference to the trial court’s
conclusion, whether the trial court’s decision meets the applicable legal standard. State
v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other
grounds.
{¶19} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court’s findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to
apply the appropriate test or correct law to the findings of fact. In that case, an appellate
court can reverse the trial court for committing an error of law. See, Williams, supra.
Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final
issues raised in a motion to suppress. When reviewing this type of claim, an appellate
court must independently determine, without deference to the trial court’s conclusion,
whether the facts meet the appropriate legal standard in any given case. State v. Curry,
95 Ohio App.3d 93, 96, 620 N.E.2d 906 (8th Dist.1994).
{¶20} In the instant case, appellant argues the trial court incorrectly decided the
ultimate issue posed by the motion to suppress, to wit, whether the pat-down of appellee
went beyond the permissible scope for a passenger. Appellant argues sustaining the
motion to suppress allows appellee to benefit from his own wrongdoing (giving a false
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name), and that the evidence from the pat-down should be admissible pursuant to the
doctrine of inevitable discovery.
{¶21} In the instant case, appellee was subjected to a pat-down. The Fourth
Amendment to the United States Constitution and Section 14, Article I of the Ohio
Constitution prohibit the government from conducting unreasonable searches and
seizures of persons or their property. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968); State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991). Even
without probable cause, however, a police officer may stop an individual and investigate
unusual behavior when the officer reasonably concludes that the individual is engaged in
criminal activity. Terry, supra. Terry requires that before stopping an individual, the officer
must have specific and articulable facts which, taken together with rational inferences
from those facts, reasonably leads the officer to conclude that the individual is engaged
in criminal activity. Id. at 21. In determining whether an officer's beliefs are reasonable, a
court must consider the totality of the circumstances involved. State v. Bobo, 37 Ohio
St.3d 177, 180, 524 N.E.2d 489 (1988).
{¶22} The issue posed by this case is whether officers had a reasonable fear for
their safety before patting appellee down. The authority to conduct a pat down search
does not flow automatically from a lawful stop and a separate inquiry is
required. Terry, supra, at 30. The Fourth Amendment requires an officer to have a
“reasonable fear for his own or others' safety” before frisking. Id. Specifically, “[t]he officer
... must be able to articulate something more than an ‘inchoate and unparticularized
suspicion or hunch.’” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104
L.Ed.2d 1 (1989), citing Terry, supra, 392 U.S. at 27. Whether that standard is met must
Tuscarawas County, Case No. 2019AP110045 8
be determined from the standpoint of an objectively reasonable police officer, without
reference to the actual motivations of the individual officers involved. United States v.
Hill, 131 F.3d 1056, 1059 (D.C.Cir.1997), citing Ornelas v. United States, 517 U.S. 690,
696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
{¶23} It is well-settled that “an officer making a traffic stop may order passengers
to get out of the car pending completion of the stop.” Maryland v. Wilson, 519 U.S. 408,
415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). “To justify a pat-down of the driver or a
passenger during a traffic stop, * * * just as in the case of a pedestrian reasonably
suspected of criminal activity, the police must harbor reasonable suspicion that the person
subjected to the frisk is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327,
129 S.Ct. 781, 172 L.Ed.2d 694 (2009).
{¶24} The trial court found the pat-down of appellee was not supported by
reasonable suspicion and we agree. The cases cited by the trial court in the decision
sustaining the motion to suppress are applicable here. In State v. Brown, the defendant
walked down the street with an acquaintance who was drinking from an open container.
83 Ohio App.3d 673, 615 N.E.2d 682 (8th Dist.1992). Police stopped both men and
arrested the acquaintance on outstanding warrants. They also patted down the
defendant, Brown, and found contraband in his pocket. The Eighth District found that
although the stop and detention of the acquaintance was justified by the open-container
violation, police had no indication Brown was involved in criminal activity, therefore his
detention and subsequent pat-down were improper. Id., at 676, citing State v. Farese, 71
Ohio App.3d 60, 62–63, 593 N.E.2d 32 (8th Dist.1990). As the Supreme Court stated
in Ybarra v. Illinois , 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), “a person's
Tuscarawas County, Case No. 2019AP110045 9
mere propinquity to others independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person.” Id.{¶25} Further, the Eighth District found, even if the initial stop of Brown was
proper, the subsequent search exceeded the limitations of a Terry search because the
officer had no reasonable basis to believe that his safety required a pat-down of Brown
for weapons. Terry, supra, 392 U.S. at 27; State v. Smith, 56 Ohio St.2d 405, 409, 384
N.E.2d 280 (1978). A pat-down search for weapons is not to be used to discover evidence
or contraband. Terry, supra. In the instant case, the candid admission by the officer that
he intended to search appellee as soon as he knew Harding had marijuana indicates the
pat-down of appellee was to discover evidence, not for officer safety.
{¶26} Similarly, in State v. Sturm, 5th Dist. Stark No. 1994-CA-0154, 1994 WL
728193, at *2, we reviewed a case with facts similar to the case at bar: the appellant was
a passenger in a car stopped because the driver was under suspension; the driver was
arrested; the appellant was searched as a matter of course, absent articulation of any
belief in a concern for officer safety or evidence of criminal wrongdoing.
Here, at the time of the traffic stop, appellant was merely an
innocent third-party riding as a passenger in a vehicle that was to be
impounded for its driver's wrong-doing. Therefore, at the time the
driver was taken into custody, no probable cause existed to arrest
appellant and the subsequent search of appellant, cannot be justified
as incident to a lawful arrest. Nevertheless, the search of appellant,
including her personal effects, would be reasonable if Deputy
Benedict could articulate specific facts, based upon his experience,
Tuscarawas County, Case No. 2019AP110045 10
that justified his belief that his safety or that of others was in danger.
No such articulation is present in this case.
{¶27} In the instant case, the evidence at the suppression hearing established
police resolved to search appellee as soon as the driver, Harding, produced contraband.
Accordingly, based on the authority of Terry v. Ohio, supra, the search of appellee was
unreasonable under the facts of this case. A citizen may not be frisked on a belief that
he possesses drugs; the belief must be that the citizen possesses a weapon. Ybarra v.
Illinois, supra, 444 U.S. at 85 (stating that frisks are not permissible merely because the
police have a reasonable belief that a person is connected with drug trafficking and may
be concealing or carrying away contraband). The officer's assessment that Harding had
drugs, so her passenger might have drugs, is insufficient to support the search of
appellee. See, State v. Cantelupe, 7th Dist. Harrison No. 99-511 CA, 2000 WL 875356,
*2.
{¶28} Appellant argues, though, that the evidence is not subject to suppression
on two bases. First, appellant argues that suppressing the evidence permits appellee to
benefit from his own bad actions. Appellant cites two illustrations of this general principle,
the first being a defendant failing to appear at various stages of his own trial in Diaz v.
United States, 223 U.S. 442, 458, 56 L.Ed. 500, 32 S.Ct. 250 (1912) and attempting to
benefit from the resulting delays; and the second Evid.R. 804(B)(6), which prevents
exclusion of certain hearsay statements if the witness’s unavailability is due to the
defendant’s wrongdoing. We find neither of these scenarios extend to reversing the
outcome of an impermissible pat-down. Even if we were to accept appellant’s premise
for the sake of argument, the general principle does not fit the facts of the instant case.
Tuscarawas County, Case No. 2019AP110045 11
Appellee’s bad act of providing false information was wholly independent of the pat-down.
The impermissible pat-down occurred before appellee gave the name and identifying
information of Joseph Howard. His providing of false information played no role in the
officer’s decision to pat him down; Miller testified he was determined to search appellee
as soon as Harding produced the marijuana from her bra. Appellant’s first argument is
unavailing.
{¶29} Appellant further argues that the methamphetamine would have been found
regardless because appellee would have been arrested upon the identity theft and the
methamphetamine would have been discovered, therefore the evidence is admissible
pursuant to the doctrine of inevitable discovery. We find this argument also inapplicable
to the facts of the instant case. Our review of the record indicates that during Miller’s
interaction with appellee during the Harding arrest, he was not aware appellee was not
“Joseph Howard.” Appellee was not arrested after the Harding interaction because the
only wrongdoing the officers knew of was possession of methamphetamine, and appellee
was released because the substance was seized for testing. It was not until the later
encounter with appellee during the traffic stop of Larry Austin Short that appellee’s
deception was revealed. Appellant also alludes to the fact that if the arrest warrant for
appellee would have been discovered, the contraband would be an inevitable discovery
upon his arrest. The arrest warrant, though, was not discovered until the Short encounter.
We fail to discern, therefore, how inevitable discovery applies to evidence seized during
the first traffic stop.
{¶30} We conclude the trial court properly granted appellee’s motion to suppress.
Appellant’s sole assignment of error is not well-taken.
Tuscarawas County, Case No. 2019AP110045 12
CONCLUSION
{¶31} Appellant’s sole assignment of error is overruled and the judgment of the
Tuscarawas County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Gwin, J., concur.