Nos. 74545 and 74555. | Ohio Ct. App. | Nov 15, 1999
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *588
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *589
At 1:00 p.m. on February 17, 1998, Metropark Ranger John Weseloh observed a 1989 Oldsmobile without a front license plate enter the Garfield Park Reservation parking lot. Weseloh activated his lights and siren and approached the vehicle from behind on the driver's side. While walking along the side of the car, *590 Weseloh looked through the rear window and noticed a partially concealed red bow with five blunt-tipped arrows on the back seat.
Weseloh arrived at the driver's side window and asked the driver, Paul Skerl, and his passenger, Stephen Skerl, "if they had any other weapons, drugs or sharp objects on their persons." Both Skerls responded they were in possession of marijuana. Immediately, Weseloh asked Paul Skerl to exit the vehicle and Weseloh initiated a pat-down search. Weseloh found rolling papers in Skerl's right front pocket and a plastic bag containing marijuana in Skerl's left front pocket. Next, Weseloh handcuffed Paul Skerl and placed him in the police car. Weseloh then initiated a pat-down search of Stephen Skerl and discovered a pipe in his right front pocket and a plastic bag of marijuana in his left front pants pocket. After handcuffing Stephen Skerl and placing him in the police car, Weseloh searched the interior of the car and found a full unopened bottle of beer under the front passenger's seat. Weseloh also took possession of the bow and arrow set.
Stephen Skerl was charged with possession of under 100 grams of marijuana and possession of drug paraphernalia. Paul Skerl was charged with possession of under 100 grams of marijuana, possession of drug paraphernalia, and improper display of front license plates. He was also charged under Cleveland Metroparks Ordinances for possession of alcohol and propelling or shooting missiles. At their arraignment, both Skerls pleaded not guilty to all the charges. Each Skerl then filed a motion to suppress arguing there was no lawful search, the pat-down searches did not meet any of the recognized exceptions to warrantless searches; and their statements were obtained in violation of their right against self-incrimination.
At a suppression hearing, Weseloh testified he stopped the car because he did not observe a front license plate. He said he asked the Skerls whether they had any drugs or weapons based on his observation of the bow and arrows in the back seat. Weseloh stated he felt he had probable cause to arrest the Skerls after he found the drug paraphernalia and marijuana. After finding the marijuana, Weseloh said he continued to search as a safety precaution in case the Skerls had any other weapons. On cross-examination, Weseloh testified he never saw either of the Skerls throw, shoot, or propel the arrows.
Paul Skerl testified he was on his lunch break and was showing his brother the Metroparks. Skerl said he was looking for a park where he and his son could shoot off model rockets. He stated he pulled into a parking lot and immediately saw the Ranger pull up behind him. Skerl testified the Ranger was very rude and said "[p] ut your hands on the dash and don't move." Skerl said the Ranger asked them "[d] o you have any other weapons or drugs in your car? You better tell me right now, because otherwise I will take you in *591 for fraud." At this point, Skerl said he and his brother admitted to possession of marijuana. Skerl stated the Ranger asked him to exit the car and then he began a pat-down search. Skerl also testified the Ranger threatened them with additional criminal charges if they "did not answer him right here." Skerl then admitted his license plate was not on the front of the car but instead was displayed in the front windshield. Lastly, Skerl said he purchased the bow and arrow set as a present for his thirteen year-old son.
At the conclusion of the suppression hearing the trial court overruled both motions to suppress. A trial was set April 20. 1998, and on that day both Skerls pleaded no contest to all the charges. A month later, the Skerls filed their separate notice of appeals. We consolidated the appeals. The Skerls present three assignments of error.
In their first assignment of error, the Skerls state as follows:
THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANTS' MOTIONS TO SUPPRESS.
First, the Skerls (hereinafter "defendants") argue the bow and arrows did not give rise to a reasonable suspicion of criminal activity; thus, Ranger Weseloh was precluded from asking defendants questions about any drugs, weapons, or drug paraphernalia in the car. As a result, defendants argue the trial court should have granted their motion to suppress regarding the subsequent discovery of the marijuana, paraphernalia, and bottle of beer. In support, defendants cite State v. Anderson (1995),
Initially, we note that in a hearing on a motion to suppress evidence, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Robinson (1994),
Defendants do not contest the legality of the initial stop; therefore, we focus our discussion on events occurring after the stop. The first question is *592
whether Ranger Weseloh was justified in asking defendants whether they had any drugs or weapons in the car. We believe State v.Robinette (1997),
"[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in criminal prosecution his voluntary answers to such questions." Id. at 497.
In the present case, Weseloh approached defendants and asked them if they had any drugs or weapons in the car. According toRobinette, this question was justified as simple questioning and did not amount to an intrusion sufficient to activate the protections of the Fourth Amendment. As to the applicability ofState v. Anderson (1995),
Second, defendants complain there is no evidence sufficient to justify a "Terry" frisk. They argue mere possession of the bow and arrows did not justify a frisk. They maintain the bow and arrows were in the back seat of the car, and they made no furtive movements toward the bow and arrows. Plus, they were not in a high crime area, but rather in a park parking lot at 1:00 p.m. on a lunch break. In addition, defendants claim the fact that they informed Weseloh they were in possession of marijuana is also insufficient to justify a "Terry" frisk because Weseloh testified he would have searched them even if they did not admit to possession of marijuana.
In Terry v. Ohio (1968),
Weseloh asked defendants whether they had any drugs or weapons in the car. Defendants responded they were in possession of marijuana. Based on defendant's response, Weseloh had reasonable suspicion, under Terry, that criminal activity was afoot. Therefore, a pat-down search or frisk of defendants was permissible.
Next, we must determine whether Weseloh exceeded the scope of aTerry frisk when he patted down defendants and discovered marijuana and drug paraphernalia on their persons. In conducting a Terry pat-down search, an officer may remove an object he reasonably believes is a weapon. State v. Evans (1993),
In State v. Zachery (1996),
*594From our review of the record, there is sufficient evidence in the record to justify the trial court's conclusion that police officer Goodwill had a sufficient basis for a weapon frisk, pat-down search, and that the weapons frisk, in turn led to a reasonable conclusion that the object Goodwill was feeling was a plastic baggie containing crack cocaine.
Applying Zachery and the above-mentioned principles to the facts of the instant case, we find that Weseloh did not violate the protections of the Fourth Amendment and conduct an illegal search. Defendants admitted to Weseloh that they were in possession of marijuana. Weseloh asked each defendant to individually exit the car. After each defendant exited the car Weseloh initiated a pat-down search of each defendant. At the suppression hearing, Weseloh testified on direct examination and cross-examination that he searched the defendants for weapons to guarantee his own safety and for drugs which defendants admitted to possessing. Therefore, during the pat-down search Weseloh was feeling for objects that felt like drugs or weapons. As he conducted the pat-down searches, Weseloh discovered rolling papers in Paul Skerl's right front pocket and a plastic bag containing marijuana in his left front pocket. While searching Stephen Skerl, Weseloh discovered in his right front pocket a pipe with what later turned out to be marijuana residue, and in his left front pocket a plastic bag containing marijuana.
An ancillary argument defendants present is that Weseloh only searched them based on his belief that the bow and arrow set in the back seat was a weapon. In support of this argument defendants cite to the transcript of the suppression hearing where Weseloh stated on cross-examination that he would have searched defendants even if they had not admitted to possession of the marijuana. Defendants maintain the bow and arrow set was not an illegal weapon, but was a legal item purchased by Paul Skerl at K-Mart for $29.00 as a present for his son. Thus, Weseloh basing his pat-down search on his observation of the bow and arrow set was a weapon and the possibility of defendants being armed and dangerous is clearly outside the parameters of aTerry pat-down because the bow and arrow set could not possibly be construed as a weapon.
Weseloh stated during the suppression hearing that he thought the bow and arrow set was a weapon. However, he said he initiated the pat-down searches based on defendants' admissions that they possessed marijuana and out of concern for his own safety. The fact that Weseloh stated he would have searched defendants regardless of their admissions creates a hypothetical scenario which this court need not address. In any event, a police officer's subjective motivations are irrelevant. Whren v. UnitedStates (1996),
Weseloh conducted the pat-down searches for drugs as a result of defendants' admissions and in order to guarantee his own safety. Based on the holding and analysis in Dickerson, we hold the pat down searches did not violate the Fourth Amendment protection against illegal search and seizures. Accordingly, defendants' first assignment of error is overruled. *595
Defendant's second assignment of error states as follows:
THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY TO APPELLANT PAUL SKERL'S PLEA OF NO CONTEST TO THE MISDEMEANOR CHARGES OF FIRING THE BOW AND ARROW IN THE METROPARK AND OF ALCOHOL VIOLATIONS.
Defendant Paul Skerl (hereinafter "Skerl") argues the trial court's guilty verdict on his plea of no contest to a violation of Cleveland Metroparks Ordinance 549.02, prohibiting the throwing or shooting of missiles was erroneously entered by the trial court. Skerl claims there is no evidence in the record which substantiates the fact that he threw, shot, or propelled any of the arrows found in the backseat of his car. He maintains there is nothing in the ordinance about simply possessing a bow and arrow set and therefore the trial court erred in entering a finding of guilt.
The state counter-argues a plea of no contest in a case precludes a defendant from challenging the factual merits of the underlying charge.
Criminal Rule 11(B)(2) prescribes that "with reference to the offense or offenses to which the plea is entered," the "plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment. Thus, there being no admission of guilt by a no contest plea and such plea only admitting the truth of the facts alleged in the indictment, if those facts do not, in and of themselves, constitute the allegation of an offense under the statute, or statutes, involved, the defendant has admitted to nothing upon which the court can base a conviction. A conviction without trial, based merely on a no contest plea to an indictment which does not allege facts sufficient to constitute an offense is not only a nullity but completely void." State v. Luna (1994),
An indictment must contain words which are "sufficient to give the accused notice of all the elements of the offense with which he is charged." Crim.R. 7(B). Furthermore, the indictment must contain "the essential facts constituting the offense for which an accused will be tried." State v. Coburn (1992),
The complaint charging Skerl stated "possession of throwing or shooting missile, to wit bow arrows." It then listed 549.02 as the ordinance Skerl allegedly violated.
Cleveland Metroparks Ordinance section 549.02 codifies illegally throwing or shooting missiles and states: *596
"No person shall throw, shoot, propel release possession of an arrow, missile, pellet, stone, metal, paint ball, or other similar substance capable of causing physical harm to persons or property except at authorized ranges."
At the suppression hearing Weseloh testified on cross-examination that he ever saw defendants throw, shoot, or propel the arrows. Weseloh maintained it was his interpretation of the ordinance that mere possession of the arrows was illegal. A review of the indictment and Weseloh's suppression testimony indicates the indictment does not contain facts constituting an offense, under the ordinance, for which defendant could be tried. The first ward of the indictment states "possession" and under the ordinance mere possession is not illegal. Moreover, Weseloh stated he never saw Skerl shoot, throw, or propel an arrow.
We find the trial court erred by accepting Skerl's no contest plea. The ordinance does not prohibit mere possession of a bow and arrow set, it only prohibits the use of a bow and arrow set.
Similarly, Skerl applies the same argument presented above to the no contest plea he entered to possession of an alcoholic beverage; i.e., bottle of beer. The indictment states Skerl was charged with "consumption. Possession of an alcoholic beverage to wit: Budweiser Beer." The indictment then states this is a violation of ordinance 529.01.
Cleveland Metroparks Ordinance 529.01 Consumption, Sale or Possession; reads as follows:
(a) As used in this section, "alcohol" and "intoxicating liquor" have the same meanings as used in Ohio R.C.
4301.01 .(b) No person shall drink, sell, possess or offer for sale any intoxicating liquor or alcoholic beverage, except where received from, or offered by, an authorized holder of a liquor permit issued by the Ohio Department of Liquor Control or authorized by permit. (ORC
4301.62 )
This ordinance prohibits persons from drinking, selling, possessing, or offering for sale liquor not received from an authorized holder of a liquor permit. The ordinance then makes a reference to R.C.
During Weseloh's search of Skerl's car, he found an unopened bottle of Budweiser Beer under the driver's seat. Budweiser Beer is commercially produced at Budweiser breweries and is sold only by authorized holders of liquor permits. Therefore, we can assume Skerl received the bottle of Budweiser Beer from an authorized holder of a liquor permit. *597
Reading the ordinance and state statute in pari materia, we find they do not prohibit the conduct exhibited by Skerl. There is no language in either the ordinance or the statute, which prohibits a person from possessing a legally purchased unopened bottle of Budweiser Beer.
The indictment charged Skerl with consumption and possession of a Budweiser Beer. We find the indictment does not contain facts constituting an offense, under the ordinance, for which Skerl could be tried. The ordinance does not prohibit possessing a bottle of beer and Skerl was not consuming any beer so Skerl could not be tried for the offense charged in the indictment.
Based on the above analysis, we sustain Skerl's second assignment of error. Consequently, we vacate Paul Skerl's convictions for shooting, throwing, or propelling a missile and for possession/consumption of alcohol.
Skerl's third assignment of error states as follows:
THE TRIAL COURT ERRED IN ORDERING SEIZURE AND FORFEITURE OF THE BOW AND ARROW SET, SINCE THIS SET WAS LEGALLY POSSESSED BY THE APPELLANT.
Skerl states the bow and arrow set seized from the back seat of his car was purchased at K-Mart for $29.00 and was a present for his son. He claims the bow and arrow set was legally obtained and was not used in the commission of any crime. Skerl maintains he made a motion at the suppression hearing to have the bow and arrow set returned to him, but the motion was improperly denied by the trial court. Because the bow and arrow set was not involved in the commission of any crime, Skerl argues the order of forfeiture should be revoked and the bow and arrow set should be returned to him.
In a forfeiture proceeding, the state bears the burden of proving that the seized property is contraband by a preponderance of the evidence. R.C.
"(1) Property that in and of itself is unlawful for a person to acquire or possess;
"(2) Property that is not in and of itself unlawful for a person to acquire or possess, but that has been determined by a court of this state, in accordance with law, to be contraband because of its use in an unlawful activity or manner, of its nature, or of the circumstances of the person who acquires or possesses it; . . ."
The law does not favor forfeiture. State v. Hill (1994),
There is no evidence showing Skerl used the bow and arrow set in the commission of any criminal offenses. In addition, the bow and arrow set does not satisfy the elements, as defined in R.C.
Judgment affirmed as to defendants' convictions for possession of drugs and drug paraphernalia; vacated as to Paul Skerl's convictions for shooting, throwing, or propelling a missile and possession/alcohol consumption; and reversed as to the forfeiture of Paul Skerl's bow and arrow set.
This cause is affirmed in part, reversed in part, vacated in part and remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, considered that said appellee and appellants share equally the costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JAMES M. PORTER, A.J. CONCURS., DIANE KARPINSKI, J., CONCURSWITH CONCURRING OPINION.
(See Concurring Opinion, Karpinski, J., attached)
_________________________________ JUDGE JOHN T. PATTON
KARPINSKI, J., CONCURRING:
Concurrence Opinion
Ranger Weseloh legitimately stopped the Skerls' car for a suspected license plate violation. In Berkemer v. McCarty (1984),
Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to "investigate the circumstances that provoke suspicion." United States v. Brigoni-Ponce (1975),
422 U.S. 873" court="SCOTUS" date_filed="1975-06-30" href="https://app.midpage.ai/document/united-states-v-brignoni-ponce-109311?utm_source=webapp" opinion_id="109311">422 U.S. 873 ,881 . "[T]he stop and inquiry must be `reasonably related in scope to the justification for their initiation.'" Ibid. (quoting Terry v. Ohio [(1968),392 U.S. 1" court="SCOTUS" date_filed="1968-06-10" href="https://app.midpage.ai/document/terry-v-ohio-107729?utm_source=webapp" opinion_id="107729">392 U.S. 1 ], at 29.) Typically, this means that the officer may ask the detainee moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released.
Berkemer v. McCarty,
The Court has also said that "reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop * * *" and that "[t]he scope of the detention must be carefully tailored to its underlying justification." Florida v. Royer (1983),
In this case, Ranger Weseloh's traffic stop of the Skeris' car was clearly a "seizure" within the meaning of the Fourth Amendment.1 Under the Fourth Amendment, Ranger Weseloh could briefly detain the driver, see Pennsylvania v. Mimms (1977),
The spate of recent Ohio cases in which an officer making an otherwise routine traffic stop asks whether the vehicle's occupants were in possession of any weapons or drugs suggests that Ranger Weseloh's conduct here was no aberration. See, e.g.,State v. Robinette (1997),
It may be that nothing prohibited Ranger Weseloh from asking the Skerls whether they were in possession of drugs. "[T]he mere asking of questions during a traffic stop, even if those questions are not narrowly related to the traffic violation, is not necessarily overly intrusive." United States v. Letourneau
(N.D. Ohio 1996),
But the Skerls did answer Ranger Weseloh's question, and their refreshingly candid admission to marijuana possession furnished anger Weseloh with sufficient grounds to investigate. And because Ranger Weseloh made his inquiry *600 before he had completed his investigation of the suspected license violation, this is not a case in which the original justification for stopping and detaining the suspect had concluded before the law enforcement officer went fishing for additional grounds to detain the suspect. It is for that reason that I would distinguish this case from cases like State v. Robinette, supra; State v. Riddle,supra; State v. Anderson, supra; and State v. Retherford, supra. I accordingly concur that Ranger Weseloh did not violate the Skerls' Fourth Amendment rights.
I also agree that Paul Skerl's conviction for violating Metropark ordinance 529.01 cannot stand. I am mystified as to exactly what this ordinance proscribes.2 It cannot reasonably be understood to criminalize the mere possession of an unopened alcoholic beverage in the Metropark. In his "possession" of this alcoholic beverage, Paul Skerl was no different from any other motorist who drives home from the grocery store through the Metropark. There is no indication that Paul Skerl was going to consume the beer at the time of the traffic stop.
If, however, the ordinance is intended to criminalize the mere possession of an unopened alcoholic beverage, the ordinance expressly excepts the alcoholic beverage "received from, or offered by, an authorized holder of a liquor permit issued by the Ohio Department of Liquor Control or authorized by permit." The prosecutor gives us no reason to think that this exception did not apply; that is, nothing in the record indicates that this alcoholic beverage was received from or offered by anyone other than an authorized holder of a liquor permit issued by the Ohio Department of Liquor Control or authorized by permit.
On its face, the exception seems to transform the ordinance into a prohibition of moonshine. If, however, the phase "except where" is understood in its formal meaning of "location," then the ordinance would criminalize possessing an alcoholic beverage lawfully received anywhere else except on the Metropark premises. But such a distinction based merely on the geographical origin of a can of beer might run afoul of the Commerce Clause.
If, on the other hand, the ordinance applies only to open containers, as the ordinance's reference to R.C.
I am also in full agreement with the majority that Paul Skerl's conviction for violating Section 549.02 cannot stand and that the forfeiture of the bow and arrow set should be set aside.
No person shall drink, sell, possess or offer for sale any intoxicating liquor or alcoholic beverage, except where received from, or offered by, an authorized holder of a liquor permit issued by the Ohio Department of Liquor Control or authorized by permit. (ORC
4301.62 )