State v. Hitsman
2018 Ohio 5315
Ohio Ct. App.2018Background
- Night-shift Officer Gregory Hayest responded to a call about three people smoking marijuana in an apartment-complex parking lot. He located an empty vehicle matching the report and then observed another parked car with three people nearby.
- Hayest approached and conversed with Joshua Hitsman, who was outside the parked car and appeared unsteady, bloodshot-eyed, lethargic, and attempting to light the wrong end of a cigarette. Hitsman was also seen on the ground searching around the car.
- Officer Hayest had prior contact at the same location involving Hitsman and a complaint that one of the men carried a firearm; during the present encounter a rear passenger repeatedly reached toward the car interior.
- Because Hayest was alone and concerned for safety, he separated Hitsman from the vehicle, conducted a pat-down/weapons frisk, and asked Hitsman to empty his pockets; a cellophane wrapper fell out.
- Hayest arrested Hitsman after believing the wrapper might contain heroin; after Miranda warnings, he examined the wrapper and believed it contained LSD. Hitsman was indicted for trafficking in LSD, moved to suppress and to dismiss when testing showed the substance was counterfeit.
- The trial court denied suppression and dismissal; Hitsman pleaded no contest, received community control, and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether initial encounter was a warrantless stop requiring reasonable suspicion | Implicitly argued officer lacked reasonable, articulable suspicion for detention or frisk | Officer’s encounter was consensual then evolved into a justified detention and weapons frisk based on circumstances and prior knowledge | Court held initial encounter was consensual and, under totality of circumstances, officer had reasonable suspicion to detain and frisk; suppression denied |
| Whether pat-down and request to empty pockets exceeded Terry frisk authority | Argued pat-down and pocket-emptying were unjustified and produced fruit of an unlawful search | Officer’s prior experience, observed behavior, passengers’ movements, overnight solo patrol justified frisk and pocket-emptying for safety | Court held frisk and pocket-emptying were reasonable under Terry and derivative evidence admissible |
| Whether indictment charging trafficking in LSD must be dismissed after testing showed counterfeit substance | Claimed statute for counterfeit controlled substances (R.C. 2925.37(B)) is the applicable, exclusive charge and thus indictment under R.C. 2925.03(A)(1) is improper | State argued different statutes proscribe different conduct; charging under trafficking statute was permissible despite counterfeit nature | Court held R.C. 2925.03 and R.C. 2925.37(B) do not conflict; dismissal improper; indictment sustained |
| Whether R.C. 1.51 requires applying the counterfeit statute over the trafficking statute | Argued R.C. 1.51 gives precedence to the special statute (counterfeit) over general trafficking statute | Court explained both statutes are general and proscribe different conduct, so R.C. 1.51 inapplicable | Court held R.C. 1.51 does not apply; no statutory conflict; conviction pathway valid |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (establishes officer's authority to frisk for weapons during a lawful stop when reasonably necessary for safety)
- Arizona v. Johnson, 555 U.S. 323 (2009) (officer may frisk when reasonably suspects person is armed and dangerous)
- State v. Burnside, 100 Ohio St.3d 152 (2003) (standard of appellate review for suppression rulings: factual findings deferential, legal conclusions de novo)
- State v. Bobo, 37 Ohio St.3d 177 (1988) (Ohio recognition of Terry frisk standard)
- State v. Patterson, 69 Ohio St.2d 445 (1982) (knowledge about the true nature of a substance not necessarily dispositive of trafficking culpability)
- State v. Chandler, 109 Ohio St.3d 223 (2006) (discussion of offering to sell and related sufficiency principles)
- State v. Conyers, 87 Ohio St.3d 246 (1999) (statutory construction re: general vs. special statutes)
- State v. Chippendale, 52 Ohio St.3d 118 (1990) (distinguishing general and special criminal statutes for R.C. 1.51 analysis)
- State v. Palmer, 131 Ohio St.3d 278 (2012) (Crim.R. 12(C) and when pretrial motions to dismiss can be resolved)