State v. Adam Ennedy, 99-LW-4172

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtABELE, J.
PartiesSTATE OF OHIO, Plaintiff-Appellee v. ADAM ENNEDY, Defendant-Appellant Case
Decision Date30 September 1999
Docket Number99 CA 2472,99-LW-4172

STATE OF OHIO, Plaintiff-Appellee
v.

ADAM ENNEDY, Defendant-Appellant

No. 99 CA 2472.

99-LW-4172 (4th)

Court of Appeals of Ohio, Fourth District, Ross

September 30, 1999


COUNSEL FOR APPELLANT: J. Jeffrey Benson, 36 South Paint Street, Chillicothe, Ohio 45601.

COUNSEL FOR APPELLEE: Judith Heimerl Brown, Assistant City Law Director, 32 South Paint Street, Chillicothe, Ohio 45601.

DECISION

ABELE, J.

This is an appeal from a judgment of conviction and sentence entered by the Chillicothe Municipal Court. After a trial to the court, the court found Adam Kennedy, defendant below and appellant herein, guilty of possessing a controlled substance (i.e. less than 100 grams of marijuana) in violation of R.C. 2925.11(A), a minor misdemeanor. The following "errors" are assigned for our review:[1]

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY FINDING THAT THE ARRESTING OFFICER HAD PROBABLE CAUSE TO STOP APPELLANT."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY NOT SUPPRESSING THE RESULTS OF THE `PAT DOWN SEARCH'."

The record reveals the following facts pertinent to this appeal. On July 4, 1998, Officers Washburn and Goble of the Chillicothe Police Department were working plain clothes "drug interdiction," around the area of Main Street in Chillicothe, Ohio. Shortly after midnight, they observed a white Chevy Astro van driving southbound on Sugar Street. The van travelled left of center and very close to the left-hand curb. This prompted Officer Washburn to call in "for a marked cruiser" to stop the vehicle. A nearby police officer responded and stopped the van.

Officer Washburn approached the van and asked to see the driver's (appellant) license, registration and proof of insurance. During a "LEADS check" for outstanding warrants, Officer Washburn requested that a canine unit be brought to the scene to "sniff . . . the air around the vehicle" for drugs. Within minutes Officer Hartley arrived with a dog that walked around the van and scratched the driver's side of the vehicle with its paw. The officer asked appellant to exit the vehicle and Officer Washburn performed a "pat down" search for weapons. During this procedure, Officer Washburn discovered a "baggie" sticking out from the front of appellant's pants but partially concealed by his shirt. The baggie contained "[g]reen leafy vegetation" later found to be marijuana.

Appellant was thereafter given a misdemeanor citation for possession in violation of R.C. 2925.11. He pled "not guilty" to the offense and, on July 23, 1998, filed two (2) separate motions to suppress evidence. In the first motion, appellant asserted that the police did not have "probable cause to stop and/or arrest [him]." The second motion asserted that Officer Washburn found and seized the contraband during an illegal search. Appellant concluded, under both motions, that the marijuana found on his person should be suppressed.

A hearing on these motions, as well as a bench trial, was conducted on November 6, 1998. Officer Washburn testified at that time and recounted that the only reason he and Officer Goble had appellant stopped by another policeman was because appellant was driving left of center. The officer also related that, when he gave appellant the pat down for weapons, he immediately recognized the object concealed under appellant's shirt as a "cellophane baggie." Officer Washburn explained that, in his experience, a plastic baggie concealed in that manner usually contains contraband such as drugs. The State also called Officer James Hartley, the canine handler for the City of Chillicothe, who explained his qualifications and described how the dog "hit several different places on the vehicle" driven by appellant, "most notably on the passenger door and the driver's door." Officer Hartley expounded that this was the dog's method of "indicating" that there was a "smell of drugs" emanating from within the vehicle. The State rested and appellant presented no evidence in his defense. Both sides thereafter submitted post-hearing memoranda addressing the various constitutional issues raised during the hearing.

The trial court, on December 3, 1998, overruled both suppression motions. The trial court determined that the initial stop of appellant's vehicle was "supported by sufficient probable cause and/or reasonable articulable suspicion of criminal activity" in that Officer Washburn had observed appellant driving in violation of a Chillicothe Municipal Ordinance requiring vehicles to be driven on the right side of the roadway. The court further found that the marijuana discovered on appellant was admissible into evidence because it was discovered during a lawful "pat down" and was determined to be contraband under the so-called "plain feel" exception to the Fourth Amendment to the United States Constitution. Appellant was thus found guilty and given a $100 fine together with a six (6) month suspension of his operator's license. This appeal followed.

We will jointly consider the two (2) assignments of error as they both go to the trial court's ruling(s) on the motion(s) to suppress evidence. It should be noted at the outset that appellate review of such rulings present mixed questions of law and fact. See State v. McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539, 541; State v. Brite (1997), 120 Ohio App.3d 517, 519; 698 N.E.2d 478, 479; also see United States v. Martinez (C.A. 11 1992), 949 F.2d 1117, 1119; United States v. Wilson (C.A.11 1990), 894 F.2d 1245, 1254. A trial court assumes the role of trier of fact during proceedings on motions to suppress. State v. Payne (1995), 104 Ohio APP.3d 364, 367, 662 N.E.2d 60, 61-62; State v. Robinson (1994), 98 Ohio App.3d 560, 570, 649 N.E.2d 18, 25; State v. Rossiter (1993), 88 Ohio App.3d 162, 166, 623 N.E.2d 645, 648. Thus, the evaluation of evidence and credibility of witnesses during those proceedings are issues to be determined by the trial court. State v. Smith (1997), 80 Ohio St.3d 89, 105, 684 N.E.2d 668, 685; State v. Brooks (1996), 75 Ohio St.3d 148, 154, 661 N.E.2d 1030, 1036-1037; State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584-585. Factual findings by the court are to be accepted by us unless they are "clearly erroneous." State v. Long (1998), 127 Ohio App.3d 328, 332, 713 N.E.2d 1, 3; State v. Babcock (Feb. 13, 1997), Washington App. No. 95CA40, unreported; also see United States v. Lewis (C.A.1 1994), 40 F.3d 1325, 1332. That is to say that a reviewing court is bound to accept the factual determinations of a trial court during a suppression hearing so long as they are supported by competent and credible evidence. State v. Harris (1994), 98 Ohio App.3d 543, 546, 649 N.E.2d 7, 9; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908; also see State v. DePalma (Jan. 18, 1991), Ross App. No. 1633, unreported. The application of the law to those facts, however, is then subject to de novo review. Harris, supra at 546, 649 N.E.2d at 9; State v. Anderson (1995), 100 Ohio App.3d 688, 691, 654 N.E.2d 1034, 1036; also see Lewis, supra 1332; Wilson, supra at 1254. With these principles in mind, we turn our attention to the merits of this case.

Appellant argues that the trial court should have suppressed the marijuana found by Officer Washburn because: (1) the police did not have sufficient "probable cause" to stop his vehicle; and (2) the contraband was discovered during a "pat down" that exceeded the limited parameters allowed under the United States and Ohio Constitutions. We disagree with both arguments.

Our analysis begins with the Fourth Amendment to the United States Constitution which guarantees the rights of people to be secure against unreasonable searches and seizures. This protection is made applicable to the states through the Fourteenth Amendment Due Process Clause, see generally Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and, in any event, similar safeguards are provided under Section 14, Article I of the Ohio Constitution. See State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio St.3d 82, 88, 661 N.E.2d 728, 733; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271, 1273. These constitutional guarantees ensure that searches and seizures, conducted outside the judicial process without prior approval by judge or magistrate, are per se unreasonable subject only to a few specifically established and well delineated exceptions. See Thompson v. Louisiana (1984), 469 U.S. 17, 1920, 93 L.Ed.2d 246, 250, 105 S.Ct. 409, 410; Katz v. United States (1967), 389 U.S. 347, 357, 19 L.Ed.2d 576, 585, 88 S.Ct. 507, 514; also see State v. Veit (May 26, 1998), Athens 97CA34, unreported.

One such exception is for so-called "Terry" stops. This exception allows for brief investigative stops provided police can point to specific and articulable facts which, taken together

with rational inferences therefrom, give rise to a reasonable

suspicion of criminal activity. Terry v. Ohio (1967), 392 U.S. 1, 21, 20 L.Ed.2d 889, 906, 88 S.Ct. 1868, 1880; also see Andrews, supra at 87, 565 N.E.2d 1271, 1273, at fn. 1; State v. Loza (1994), 71 Ohio St.3d 61, 71, 641 N.E.2d 1082. Of course, when police officers observe criminal activity taking place, such as traffic violations being committed, they are automatically justified in effecting a Terry stop and pulling over the motor vehicle involved. See e.g. State v. Lawless (Jun. 25, 1999), Portage App. No. 98-P-0048, unreported; State v. Carleton (Dec. 18, 1998), Geauga App. No. 97-G-2112, unreported; State v. Sheets (Mar. 16, 1994) Gallia App. No. 93CA07, unreported; State v. Chelikowsky (Aug. 8, 1992), Pickaway App. No. 91CA27, unreported. This is precisely what happened in this case.

The provisions of Chillicothe ordinance No. 331.01(a) generally require that,vehicles be driven...

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