State v. Jones, 2004 Ohio 7280 (OH 12/16/2004)
| Decision Date | 16 December 2004 |
| Docket Number | Case No. 03CA61. |
| Citation | 2004 Ohio 7280 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Travis Jones, Defendant-Appellant. |
| Court | Ohio Supreme Court |
David H. Bodiker, Ohio Public Defender, and Luis D. Delos Santos, Assistant State Public Defender, Columbus, Ohio, for Appellant.
Alison L. Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Travis Jones appeals the trial court's denial of his motion to suppress the cocaine found in two containers on his person following a vehicle stop. Jones contends that the officer unreasonably detained the vehicle and its occupants beyond the scope and duration necessary for the initial stop in order to conduct a canine check on the outside of the vehicle. We reject that contention because the canine check occurred during the time necessary to effectuate the original purpose of the stop, i.e., the officer was still awaiting the results of the license plate and warrant checks.
{¶2} Jones also argues that the arresting officer had no basis for conducting a pat down search of his person since he did not have a reasonable suspicion that Jones possessed a weapon. However, we conclude that the officer was justified in conducting a Terry frisk for his own safety because the officer observed Jones making "furtive" movements while he was following the vehicle, a canine check had revealed that drugs were in the vehicle, and guns often accompany illegal drugs.
{¶3} Finally, Jones contends that even if the pat down was appropriate, the officer could not open the containers discovered during the search because it was unreasonable to believe the containers held weapons. Because the small size of containers refuted the claim that they could have contained weapons, we agree.
{¶4} Nonetheless, we affirm the trial court's denial of the motion to suppress. The officer had probable cause to believe that Jones had illegal drugs on his person given his past involvement with drugs, the canine's positive reaction to the vehicle while Jones was seated in it, Jones' attempts to prevent a complete pat down search of his person, and the officer's discovery of the containers between Jones' buttocks and in his underwear. We conclude that probable cause combined with exigent circumstances justified the warrantless search since Jones could have destroyed any evidence of his crime if the officer allowed him to leave pending the obtainment of a warrant. Accordingly, we affirm the trial court's denial of the motion to suppress.
{¶5} The factual context for this appeal is based upon a hearing on appellant's motion. While on routine patrol shortly after 1:00 in the morning, Officer Scott Smeeks of the Belpre Police Department observed a vehicle traveling towards him at a slow rate of speed. Officer Smeeks turned his cruiser around and began following the vehicle. He saw the car "jerking" back and forth in its lane and, based on the slow speed of the vehicle and the jerking, he suspected that the driver was intoxicated. Officer Smeeks also "noticed that the back seat passenger was making quite a bit of movements * * *."
{¶6} Officer Smeeks radioed the dispatcher to check the vehicle's license plate; however, before the dispatcher responded to the request, Officer Smeeks observed an expired registration sticker. Because the vehicle was heading towards a bridge to West Virginia, Officer Smeeks decided to stop the vehicle before receiving the dispatcher's response.
{¶7} Officer Smeeks approached the vehicle and asked the driver and both passengers for identification. Jones did not have any identification, but the driver and front seat passenger produced their identification. The driver also gave Officer Smeeks the vehicle registration, which was expired.
{¶8} Officer Smeeks asked the driver to exit the vehicle and escorted the driver to the police cruiser. Officer Smeeks testified that he did not smell any alcohol on the driver and the driver did not have any coordination problems, but he "was pretty sure [he] could smell the odor of burnt marijuana in the vehicle."
{¶9} Officer Smeeks testified that he asked the driver for Jones' identity and recognized Jones once he learned his name. Previously, some burglars had broken into Jones' home because they believed he possessed the drug "ecstasy." Also, Officer Smeeks, a canine control officer, had previously been summoned to conduct a canine search of Jones' car during which he discovered marijuana.
{¶10} Officer Smeeks decided to walk his dog around the vehicle and called for Patrolman Combs to assist. When Officer Smeeks requested assistance, he had not yet heard from the dispatcher regarding the vehicle's license plate check. He was also awaiting the warrant checks for both the driver and the front seat passenger. Both Officer Smeeks and Patrolman Combs testified that Combs arrived approximately two minutes after he was contacted.
{¶11} Officer Smeeks removed the canine from the patrol car and conducted a canine check of the outside of the vehicle. The dog "hit" on the backseat passenger door. Therefore, Officer Smeeks decided to manually search the vehicle. Officer Smeeks instructed both passengers to place their hands in front of them. Because in his experience guns often accompany drugs and because Jones was moving around prior to the stop, Officer Smeeks decided to frisk the passengers.
{¶12} After conducting a pat down search of the front seat passenger, Officer Smeeks asked Jones to step out of the car, turn around, and place his hands on the hood. Since Officer Smeeks knew Jones, they conversed during the search. Officer Smeeks testified that Jones repeatedly looked back at him and failed to keep his hands on the hood of the car. As Officer Smeeks began searching Jones' waist area, Jones turned around and tried to talk to Officer Smeeks. Officer Smeeks suspected that Jones was either going to try to grab a weapon or to run. After Officer Smeeks repeatedly instructed Jones to keep his hands in place, Patrolman Combs assisted Officer Smeeks in handcuffing Jones.
{¶13} As Officer Smeeks continued patting Jones down, he felt "something protruding out of [Jones'] butt." Officer Smeeks testified that he tried to "grab hold of it and pull" to see if he could identify the object, and it fell on the ground. Officer Smeeks discovered it was a blue, round Blistex ointment container. Officer Smeeks continued the search and felt a hard object in Jones' pants. After Jones denied he had anything in his pants, Officer Smeeks undid Jones' pants and removed a Tylenol container from his underwear. The container was approximately three inches long and a half inch wide. Officer Smeeks opened both containers and discovered a white, powdery substance with chunks in it, which he believed was cocaine or methadone. In response to an inquiry by Patrolman Combs, Jones admitted that the substance was cocaine. Officer Smeeks later found a razor with residue on it in the back seat where Jones was sitting.
{¶14} Officer Smeeks acknowledged that LEADS revealed that the vehicle's registration was not actually expired; however, he did not discover this information until he returned to the police station.
{¶15} Adam Berardi, the front seat passenger, refuted Officer Smeeks' version of the events. Berardi testified that he was still in the vehicle when Officer Smeeks searched Jones, that Jones did not struggle, and that Officer Smeeks patted Jones' pants for at least sixty seconds. Berardi also testified that he did not see anything fall out of Jones' pants.
{¶16} The Washington County Grand Jury indicted Jones on one count of possession of drugs, a felony of the fourth degree, and Jones pled not guilty. Defense counsel filed a motion to suppress evidence and statements. After the hearing noted above, the trial court denied the motion as to the physical evidence but granted the motion as to the statements. Jones changed his plea to no contest and the trial court sentenced Jones to a five year community control sanction.
{¶17} Jones filed a timely appeal, assigning the following error: "The trial court committed reversible error when it failed to suppress the evidence obtained by the police as a result of an illegal seizure and search, in violation of the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution."
{¶18} In a motion to suppress, the trial court assumes the role of trier of fact and, accordingly, is in the best position to resolve questions of fact and evaluate witness credibility. See, e.g., State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583; see, also, State v. Williams (1993), 86 Ohio App.3d 37, 41, 619 N.E.2d 1141. Thus, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594, 621 N.E.2d 726. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard. Ornelas v. United States (1996), 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911; State v. Klein (1991), 73 Ohio App.3d 486, 488, 597 N.E.2d 1141; Williams; Guysinger.
{¶19} The Fourth Amendment to the United States Constitution protects individuals against unreasonable governmental searches and seizures. See, e.g., United States v. Arvizu (2002), 534 U.S. 266, 122 S.Ct. 744, 750, 151 L.Ed.2d 740; Terry v. Ohio (1968), 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889. "Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States (1967), 389 U.S. 347, 357, ...
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