State v. Gardner, C.A. CASE NO. 24308

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtFROELICH
Citation2011 Ohio 5692
PartiesSTATE OF OHIO Plaintiff-Appellee v. DAMAAD S. GARDNER Defendant-Appellant
Docket NumberT.C. NO. 10CR910,C.A. CASE NO. 24308
Decision Date04 November 2011

2011 Ohio 5692

STATE OF OHIO Plaintiff-Appellee
DAMAAD S. GARDNER Defendant-Appellant

C.A. CASE NO. 24308
T.C. NO. 10CR910


Dated: November 4, 2011

(Criminal appeal from Common Pleas Court)


TIMOTHY J. COLE, Atty. Reg. No. 0084117, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

REBEKAH S. NEUHERZ, Atty. Reg. No. 0072093, 150 N. Limestone Street, Suite 218, Springfield, Ohio 45501 Attorney for Defendant-Appellant


{¶ 1} Defendant-appellant Damaad Gardner appeals from his conviction for possession of cocaine. For the following reasons, the judgment of the trial court is Reversed, and the case is Remanded.


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{¶ 2} According to the testimony at the motion to suppress hearing, on the evening of March 17, 2010, Detective David House of the Dayton Police Department was patrolling in an unmarked cruiser in a high crime area, when he found himself behind a pick-up truck bearing out-of-county plates. Knowing that it is common for drug buyers to come from outside of Montgomery County to that area of Dayton to purchase illegal drugs, Detective House followed the truck. He checked the truck's registration through LEADS and learned that it was registered to a Clinton County man who had a 2003 conviction for a drug offense. Detective House continued to follow the truck to see if the driver was going to a known drug house.

{¶ 3} The driver parked the truck in the driveway of a residence. The driver and his passenger got out and entered the residence. Detective House decided to watch the house believing that a short stay could be indicative of drug activity. Seeing no suspicious activity, Detective House left after about fifteen minutes.

{¶ 4} Approximately three hours later, Detective House drove past the residence again. The truck was still in the driveway, along with a car. The car was registered to Richard Easter, who had an active warrant for his arrest from Butler County for failure to appear for trial on a drug charge. The LEADS system described Easter as a 56-year-old white male, approximately six feet tall, 160 pounds, with brown hair and brown eyes.

{¶ 5} Detective House moved up the street and resumed watching the house to see if Easter would emerge. Two younger (than Easter's listed age) men came out of the house. One, later identified as Gardner, sat in the passenger seat

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of the car, and the other sat in the back seat. A few minutes later, at approximately 11:10 p.m., a man matching Easter's description came out of the house, got into the driver's seat of the car, and began to drive away. Detective House followed the car, and was going to call for a marked cruiser to conduct a stop to see whether the driver was Easter and, if so, to place him under arrest for the outstanding warrant.

{¶ 6} Before House was able to contact a marked cruiser, the driver turned into a gas station and parked, got out of the car, and walked up to the window and purchased cigarettes. Detective House, who was wearing a Dayton Police Department utility vest, parked 25 or 30 feet away and approached the driver. The man admitted that he was Richard Easter, and Detective House placed him under arrest. As Detective House was handcuffing Easter near the driver's door, he saw Gardner moving around inside the car, appearing to be ready to exit the car. Detective House walked Easter behind the car and around to the passenger side so that the detective could talk to the passengers. As the detective and Easter walked around the car, Detective House could see Gardner rise out of his seat and appear to reach into the back of his shorts. Concerned that Gardner might be armed, Detective House shouted for Gardner to place his hands on the dashboard, and Gardner did as told.

{¶ 7} Detective House had Easter sit on the ground with his back against the rear door and then tried to open the front passenger door, but it was locked. He ordered Gardner to get out of the car, and Gardner complied. Because he was still the only officer on the scene, Detective House handcuffed Gardner. Detective

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House told Gardner that he was not under arrest and that he was being handcuffed for the officer's safety. Detective House conducted a pat down for weapons. He found no weapons, but he did feel something that he said he immediately recognized to be crack cocaine in Gardner's shorts. Detective House removed the item and placed Gardner under arrest. Before any Miranda warnings were given, Gardner spontaneously stated, "something to the effect 'He gave it to me to hide it.'" After other officers appeared on the scene, they took custody of Gardner and determined that he had an outstanding traffic warrant for his arrest.

{¶ 8} The trial court overruled the motion to suppress. Gardner pled no contest to one count of possession of cocaine and was sentenced to community control. Gardner appeals.


{¶ 9} Gardner's Assignment of Error:


{¶ 11} In his sole assignment of error, Gardner claims that the trial court should have granted his motion to suppress because the officer lacked reasonable, articulable suspicion of criminal activity to justify detaining him and patting him down. When assessing a motion to suppress, the trial court is the finder of fact, judging the credibility of witnesses and the weight of evidence. State v. Jackson, Butler App. No. CA2002-01-013, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20. An appellate court must rely on those findings and determine "'without

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deference to the trial court, whether the court has applied the appropriate legal standard.'" Id., quoting State v. Anderson (1995), 100 Ohio App.3d 688, 691. When the trial court's ruling on a motion to suppress is supported by competent, credible evidence, an appellate court may not disturb that ruling. Id., citing State v. Retherford (1994), 93 Ohio App.3d 586, 592.

{¶ 12} Both the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution protect an individual's reasonable expectation of privacy from warrantless searches and seizures, subject only to a few narrow, well-defined exceptions. See, e.g., Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576; State v. Andrews (1991), 57 Ohio St.3d 86, 87, fn 1.

{¶ 13} In overruling the motion, the court discussed, but specifically did not make factual findings, whether there was a reasonable, articulable suspicion to justify the pat down or whether the seizure resulted from the plain feel doctrine. Rather, the court held that when a valid warrant exists for a defendant's arrest, the individual has no reasonable expectation of privacy, and the exclusionary rule does not apply to exclude evidence that may have otherwise been unlawfully obtained by a police officer, even when the officer is not aware of the existence of the warrant until after the unlawful detention.

{¶ 14} In Dayton v. Click (Oct. 5, 1994), Montgomery App. No. 14328, discretionary appeal not allowed, (1995), 71 Ohio St.3d 1477, Click was the driver of a vehicle that, the court found, was stopped with "no reasonable suspicion that [he] was involved in criminal activity." He originally gave a false name and was

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cited for driving without an operator's license. While still at the scene, he eventually gave his correct name and "said he gave a fictitious name because he had outstanding warrants in his name." Id. He was charged with obstruction of official business and moved to suppress all statements and any evidence gained by his seizure. This Court affirmed the denial of the motion finding that "at the time of the stop Click had no reasonable expectation of privacy in his vehicle because Click knew that there were outstanding warrants for his arrest." Id. We then held that in "view of the above we do not get to the issue of whether the exclusionary rule applies to evidence of an illegal act which occurred after the unlawful stop." A concurring opinion commented that "Click's decision to give a false identity * * * was not a product of the illegality or the officer's efforts to exploit it." Id.

{¶ 15} In State v. Brown (Jan. 28, 2000), Montgomery App. No. 17965, the trial court found that the officer "did not have the requisite reasonable suspicion to detain and question" the defendant. We held that when a warrant was subsequently discovered, "the warrant justified Brown's arrest" and that the search of the vehicle incident to arrest was lawful; the drugs that were found were not subject to suppression.

{¶ 16} In State v. Jamison (May 11, 2001), Montgomery App. No. 18453, appeal dismissed 93 Ohio St.3d 1413 (2001), the trial court found that the stop and pat down of Jamison were justified, but that the seizure of his identification card, as opposed to any weapons or contraband, exceeded Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Therefore, despite the fact that the officers determined, based on this identification, that there was a warrant for his arrest, the

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