State v. JimenezState v. Jimenez
William F. Oswall, Jr., 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶ 1} Appellant, Erick S. Jimenez, appeals from his conviction in the Warren County Court of Common Pleas for possession of heroin. For the reasons stated below, we affirm the decision of the trial court.
{¶ 2} On April 27, 2011, Sergeant Shannon Cotton was patrolling the downtown area of Franklin, Ohio. The Franklin Police Department has made this area a targeted patrol
{¶ 3} Once Cotton had stopped appellant on the sidewalk, he patted down the exterior of his clothing to ensure that he was not carrying any weapons. During the pat-down, Cotton stood behind appellant and felt his waistband and front pockets for weapons. Cotton saw that appellant‘s pants contained a side cargo pocket that was “gaping open.” Inside this pocket, there was a fragment of a yellow plastic grocery bag tied into a bundle. The bag appeared to be from the Dollar Store, which was approximately three blocks from their location. The bag was partially transparent and Cotton saw four gel caps inside the bundle. Cotton testified that he immediately believed this bundle and gel caps contained illegal drugs because this is a common way to package heroin and cocaine. Cotton seized the bundle and gel caps and arrested appellant. A subsequent test revealed that the gel caps contained heroin.
{¶ 4} On June 10, 2011, appellant was indicted for one count of possession of heroin. Appellant moved the court to suppress evidence of the heroin, arguing Cotton did not have reasonable suspicion that appellant was engaging in criminal activity to stop him. The trial court denied appellant‘s motion to suppress. Thereafter, appellant pled no contest to possession of heroin, a fifth-degree felony. Appellant was sentenced to three years of community control, five years of driver license suspension, and 100 hours of community
{¶ 5} Appellant now appeals the trial court‘s decision, raising a single assignment of error:
{¶ 6} THE TRIAL COURT ERRED WHEN [IT] OVERRULED DEFENDANT-APPELLANT‘S MOTION TO SUPPRESS WHICH VIOLATED HIS U.S. AND OHIO CONSTITUTIONAL RIGHTS.
{¶ 7} In appellant‘s sole assignment of error, he argues that the trial court erred when it overruled his motion to suppress the evidence obtained during his encounter with Cotton. Specifically, he argues that Cotton did not possess reasonable suspicion to detain and pat him down and that the seizure of the drugs located in appellant‘s pocket were obtained illegally as the drugs were not in plain view.
{¶ 8} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Davenport, 12th Dist. No. CA2008-01-011, 2009-Ohio-557, ¶ 6; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. State v. Eyer, 12th Dist. No. CA2007-06-071, 2008-Ohio-1193, ¶ 8. In turn, the appellate court must accept the trial court‘s findings of fact so long as they are supported by competent, credible evidence. State v. Lange, 12th Dist. No. CA2007-09-232, 2008-Ohio-3595, ¶ 4, citing State v. Bryson, 142 Ohio App.3d 397, 402 (8th Dist.2001). After accepting the trial court‘s factual findings as true, the appellate court must then determine, as a matter of law, and without deferring to the trial court‘s conclusions, whether the trial court applied the appropriate legal standard. State v. Forbes, 12th Dist. No. CA2007-01-001, 2007-Ohio-6412, ¶ 29; State v. Dierkes, 12th Dist. No. 2008-P-0085, 2009-Ohio-2530, ¶ 17.
{¶ 9} The Fourth Amendment to the United States Constitution and Section 14,
{¶ 10} In general, in order for a police officer to search a person, the officer must possess a warrant. Arnold v. Cleveland, 67 Ohio St.3d 35, 45 (1993). However, there are a number of specifically established exceptions to this general rule. A police officer may briefly stop and detain an individual without an arrest warrant or probable cause for an arrest in order to investigate the officer‘s reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868 (1968). In doing so, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” State v. Andrews, 57 Ohio St.3d 86, 87 (1991), citing Terry at 21-22.
{¶ 11} The Ohio Supreme Court has recognized that “the reputation of an area for
{¶ 12} “The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances.” Freeman at paragraph one of the syllabus. The circumstances surrounding the stop must “be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.” State v. Bobo, 37 Ohio St.3d 177, 179 (1988), quoting United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976).
{¶ 13} We find that based on the totality of the circumstances, Cotton had reasonable suspicion to conduct an investigatory stop of appellant. The evidence presented at the suppression hearing established that appellant was running “very hard” down a sidewalk, wearing baggy jeans and a white t-shirt, and did not appear to be exercising or running recreationally. Moreover, the area in Franklin in which appellant was detained is a high crime area that is known for drug activity. Cotton is an experienced police officer and has received specialized drug training. Further, Cotton was informed by his colleagues and an informant that appellant was involved in drug trafficking. Cotton testified that as he approached appellant in his vehicle, he was able to view his face and he immediately recognized appellant as a known drug trafficker. In light of these circumstances, we find that Cotton possessed reasonable suspicion of criminal activity to detain appellant.
{¶ 14} We next turn to whether Cotton‘s pat-down of appellant was proper. “Once a
{¶ 15} Additionally, it is well-recognized that the need for a protective pat-down becomes more urgent where drugs are involved. The Ohio Supreme Court has stated that “the right to [pat-down] is virtually automatic when individuals are suspected of committing a crime, like drug trafficking, for which they are likely to be armed.” Evans at 413. Further, “[r]ecognizing the prevalence of weapons in places where illegal drugs are sold and used * * * an officer‘s fear of violence when investigating drug activity is a legitimate concern that will justify a pat-down search for weapons.” State v. Oatis, 12th Dist. No. CA2005-03-074, 2005-Ohio-6038, ¶ 23, citing State v. Taylor, 82 Ohio App.3d 434 (2nd Dist.1992).
{¶ 16} We find that based on the totality of the circumstances, Cotton articulated a reasonable basis to believe that appellant may be armed and dangerous. The area in Franklin in which Cotton stopped appellant was known for its high rate of crime and
{¶ 17} Finally, we address whether Cotton properly seized the drugs in appellant‘s pocket. The plain view doctrine allows a police officer, under particular circumstances, to seize contraband even if the officer does not have a search warrant for that item. State v. Cobb, 12th Dist. No. CA2007-06-153, 2008-Ohio-5210, ¶ 30, citing State v. Halczyszak, 25 Ohio St.3d 301, 303 (1986). “The doctrine ‘is grounded on the proposition that once police are lawfully in a position to observe an item first-hand, its owners’ privacy interest in that item is lost.‘” Halczyszak at 303, quoting Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319 (1983). The Ohio Supreme Court set out a three-part test in order to determine if an object is in plain view. Halczyszak at 303. In order to seize an item in plain view, (1) the police must be in a lawful position to view the item, (2) the object‘s discovery must be inadvertent, and (3) the object‘s incriminating nature must be immediately apparent. Id. An object‘s incriminating nature is immediately apparent when a police officer has probable cause to believe the item is associated with criminal activity. Id. at 304, citing Texas v. Brown, 460 U.S. 730, 741-742, 103 S.Ct. 1535 (1983).
{¶ 18} Upon a thorough review of the record, we find that Cotton properly seized the plastic bundle as it was in plain view. As discussed above, Cotton was in a position to view
{¶ 19} Appellant‘s sole assignment of error is overruled.
{¶ 20} Judgment affirmed.
POWELL, P.J., and PIPER, J., concur.