STATE OF OHIO, Plaintiff-Appellee, - vs - JOSHUA OROSZ, Defendant-Appellant.
CASE NO. 2016-L-057
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
February 21, 2017
[Cite as State v. Orosz, 2017-Ohio-707.]
DIANE V. GRENDELL, J.
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR 000643. Judgment: Affirmed.
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
O P I N I O N
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Joshua Orosz, appeals the denial of his Motion to Suppress in the Lake County Court of Common Pleas. The issue before this court is whether a police officer has probable cause and/or reasonable suspicion to remove and search a passenger in a vehicle driven by a known drug dealer after observing the passenger hiding something in his pants. For the following reasons, we affirm the decision of the court below.
{¶3} On December 18, 2015, Orosz waived the right to be present at arraignment and entered a plea of “Not Guilty” to all charges.
{¶4} On January 22, 2016, Orosz filed a Motion to Suppress.
{¶5} On February 12, 2016, the State filed its Response to Defendant’s Motion to Suppress.
{¶6} On February 18, 2016, a suppression hearing was held. The State presented the testimony of the following witnesses:
{¶7} Officer Ryan Butler of the Mentor Police Department testified that, on the evening of August 2, 2015, he observed a southbound vehicle on State Route 306 operated by Carlos Pino, “known by [the] department for dealing drugs” and “arrested quite a few times by [the Mentor police] in the past.” Within the preceding week, the department received “information from one of our narcotics detectives that Carlos was recently released from prison and they had reason to believe that he was again dealing heroin within the area.”
{¶8} At about 10:04 p.m., Officer Butler stopped Pino’s vehicle at a Shell gas station at the corner of Mentor Avenue for “fail[ing] to signal at least one hundred feet prior to making a turn into the gas station.” Before Officer Butler could approach the
{¶9} Officer Butler approached the vehicle from the passenger’s side1 and advised Pino of the reason for the stop. He described his interaction with Orosz thus: “He spoke to me a little bit about where they were coming from, but I could tell he was breathing really heavily from his chest, you know, rapidly rising and lowering. I can tell he was avoiding eye contact with me. He wasn’t very comfortable with me being there, with being stopped.”
{¶10} Officer Butler determined to issue Pino a warning for the turn signal violation and to request a K-9 unit. During this time, other police officers arrived on the scene.
{¶11} Officer Richard Smith of the Mentor Police Department testified that during his three-and-a-half years with the police department he had engaged in “several hundred” drug-related arrests. On August 2, 2015, he responded to the Shell station where Officer Butler has stopped Pino’s vehicle.
{¶12} Upon arriving, Officer Smith observed an Officer Wayne speaking with the occupants of the vehicle from the driver’s side. Officer Smith took a stand about ten feet from “the right rear quarter panel of the vehicle” where he “had a good view of both occupants inside the vehicle.” Officer Smith overheard Orosz ask Officer Wayne several times if he could leave the scene. Officer Smith noted that Orosz’ “entire body was shaking” and, based on his “motions inside the vehicle” and “wanting to get out of the vehicle,” that “he was nervous to be around police officers.”
{¶14} Officer Smith ordered Orosz out of the vehicle. He placed Orosz in handcuffs, removed him a few feet from the vehicle, and had him spread his legs at which point a bindle of heroin fell out of the right pants leg. Officer Smith testified: “I want to make sure that there’s no weapons, immediate weapons. And then most of the time what we’ll do is we’ll just kind of shake their shorts out which will hopefully knock loose * * * whatever’s in there and that’s what happened in this case.”
{¶15} Officer Smith placed Orosz under arrest and a bindle of cocaine was found in his sock.
{¶16} At the conclusion of the hearing, the trial court denied the Motion to Suppress. In concluding that there was probable cause to remove Orosz from the vehicle and search him, the court remarked on his several attempts to leave the scene
{¶17} On February 19, 2016, the trial court issued a Judgment Entry memorializing the denial of Orosz’ Motion to Suppress.
{¶18} On May 2, 2016, Orosz entered a plea of “no contest” to both Counts of the Indictment.
{¶19} On May 6, 2016, the trial court issued a Judgment Entry of Sentence, sentencing him to two years of community control.
{¶20} On June 3, 2016, Orosz filed a Notice of Appeal. On appeal, Orosz raises the following assignment of error:
{¶21} “[1.] The trial court erred when it denied the defendant-appellant’s motion to suppress in violation of his due process rights and rights against unreasonable search and seizure as guaranteed by Sections 10 and 14, Article I of the Ohio Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.”
{¶22} “Appellate review of a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. At a suppression hearing, “the trial court is best able to decide facts and evaluate the credibility of witnesses.” State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 41. “Its findings of fact are to be accepted if they are supported by competent, credible evidence, and we are to independently determine whether they satisfy the applicable legal standard.” Id. The reviewing court must then “independently determine as a matter of law, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” (Citation omitted.) State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12; Kirtland Hills v. Jenisek, 11th Dist. Lake No. 2015-L-1117, 2016-Ohio-3401, ¶ 11 (“[o]nce the appellate court accepts the trial court’s factual determinations, the appellate court conducts a de novo review of the trial court’s application of the law to these facts“) (citation omitted).
{¶23} The
{¶24} “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.‘” Pennsylvania v. Mimms, 434 U.S. 106, 108-109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), quoting Terry v. Ohio, 391 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (“[t]he Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.“). “[T]he reasonableness of such seizures depends on a balance between the public interest and the individual’s
{¶25} It is well-established that warrantless searches, i.e., “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.” (Footnote omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 N.E.2d 576 (1967).
{¶26} One such exception is known variously as a protective search or “patdown” or “stop and frisk“: “a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Terry at 27. “The 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.” Id. “And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id.
{¶27} In considering the reasonableness of protective searches in the context of automobile stops, the United States Supreme Court has “recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.” Mimms, 434 U.S. at 110, 98 S.Ct. 330, 54 L.Ed.2d 331. Further recognizing that the “danger to an officer from a traffic stop is likely to be greater when there are passengers in addition
{¶28} “To justify a patdown of the driver or a passenger during a traffic stop * * *, 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); State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph two of the syllabus (“[w]here a police officer, during an investigative stop, has a reasonable suspicion that an individual is armed based on the totality of the circumstances, the officer may initiate a protective search for the safety of himself and others“).
{¶29} In the present case, Orosz “does not challenge the stop of the car in which he was a passenger,” but “he [does] challenge the officer’s search of his person, asserting that the officers possessed neither reasonable suspicion or specific and articulable facts upon which to base the warrantless search.” Appellant’s brief at 4-5. Orosz emphasizes that association with a suspected drug dealer, nervous behavior, and furtive movements do not necessarily support a reasonable suspicion sufficient to justify the warrantless search. We disagree. Considering the totality of the circumstances, Officer Smith reasonably suspected Orosz of being armed and properly conducted a protective search for weapons.
{¶30} The fact that Orosz was in a vehicle being driven by a known and/or suspected drug dealer is significant. As the United States Supreme Court has recognized the enhanced risks encountered by police officers during automobile stops,
{¶31} Orosz’ association with Pino was not the only circumstance justifying the search.
{¶32} The trial court was careful to note that Orosz’ nervousness was extreme (“breathing really heavily“; “avoiding eye contact“; “entire body was shaking“; and “wanting to get out of the vehicle“). Although it is recognized that any encounter with law enforcement may cause a person to become nervous, Orosz’ level of distraction was atypical. It was Pino who was the focus of the traffic stop. As Orosz was only a passenger in the vehicle, his discomfort was not normal given the circumstances and reasonably contributed to the officers’ suspicions.
{¶33} Finally, Orosz was observed in the act of deliberately concealing, or possibly retrieving, something Officer Smith justifiably under the circumstances believed to be contraband or a weapon. We emphasize that Orosz’ actions were not equivocal furtive gestures, but a recognizable attempt to conceal something.
{¶34} Considering the totality of the circumstances, Officer Smith reasonably suspected that Orosz might have been armed and dangerous. This conclusion is readily confirmed by a consideration of the circumstances in which other courts have upheld the constitutionality of protective searches.
{¶36} In State v. Hall, 8th Dist. Cuyahoga No. 97722, 2012-Ohio-4155, a passenger in a vehicle stopped for driving at night without headlights was properly patted down where: “during his initial approach of the vehicle, [the officer] observed Hall shove an unidentified object into his right boot” and “testified that he has, in previous instances, recovered small guns that were concealed in the type and style of boot that Hall was wearing.” Id. at ¶ 10.
{¶37} In State v. Covert, 3d Dist. Seneca Nos. 13-11-02 and 13-11-03, 2011-Ohio-4713, a passenger in a vehicle stopped for driving without headlights at night was properly patted down, “[a]lthough [the officer] did not have an individualized suspicion that Covert or any of the other backseat passengers were armed and dangerous,”
{¶38} In State v. Sears, 2d Montgomery No. 20849, 2005-Ohio-3880, a passenger in a vehicle stopped because it was registered to a person with a suspended license was properly patted down where: the “[d]efendant reached down toward the floor of the vehicle while Officer Neubauer was preoccupied with the driver, examining his license“; “Officer Neubauer could not see what was in Defendant’s hand, and when Officer Neubauer ordered Defendant to show his hands Defendant did not immediately comply but rather had to be told repeated times to show his hands.” Id. at ¶ 28.
{¶39} In State v. Smith, 11th Dist. Portage No. 2013-P-0054, 2015-Ohio-1204, this court affirmed a protective search during a consensual encounter where: “Smith became loud and wanted to leave the scene, variously explaining that he needed to catch a bus to go to Ravenna and/or the Akron Children’s Hospital“; “Smith was also ‘moving around and waving his arms around,’ behavior that Officer Poe described as not ‘normal‘“; “Smith was wearing ‘baggy’ clothes and had several bulges in the pockets of his pants“; and “Officer Poe had to order Smith to keep his hands out of his pockets.” Id. at ¶ 19.
{¶40} The sole assignment of error is without merit.
CYNTHIA WESTCOTT RICE, P.J.,
TIMOTHY P. CANNON, J.,
concur.