State v. Scott Waterman

• Decision Date: 13 July 1982
• Docket Number: 82-LW-4572,2-81-37
• Parties: STATE OF OHIO, PLAINTIFF-APPELLEE, v. SCOTT WATERMAN, DEFENDANT-APPELLANT. CASE NUMBER 2-81-37.
• Court: Ohio Court of Appeals

STATE OF OHIO, PLAINTIFF-APPELLEE, v. SCOTT WATERMAN, DEFENDANT-APPELLANT.

No. 2-81-37.

82-LW-4572 (3rd)

Court of Appeals of Ohio, Third District Auglaize

July 13, 1982

Court of Appeals of Auglaize County.

MESSRS HENKENER & MILLER, Mr. Ronald H. Miller, of counsel, for Appellant.

MR FREDERICK D. PEPPLE, Prosecuting Attorney, Mr. Mark Spees Assistant Prosecuting Attorney, for Appellee.

OPINION

GUERNSEY J.

Defendant Scott Waterman was convicted and sentenced in the Court of Common Pleas of Auglaize County on a plea of no contest to a charge of violation of R.C. 2925.11(A)(C)(1), drug abuse. He appeals assigning prejudicial error of the trial court in overruling his motion to suppress all evidence relative to a small baggie containing marijuana and three pills.

It was undisputed in the evidence adduced on the motion to suppress that at about 11:30 p.m. on April 18, 1981, the defendant and a friend Keith Carter were parked in a car owned and driven by Carter in a privately owned portion of a parking lot located adjoining the Wapakoneta business section; that none of the places of business were open at that time; that Officers Harrison and Baum of the Wapakoneta Police Department while cruising through the lot in their patrol car noted the presence of the parked car and, in purported enforcement of a Wapakoneta loitering ordinance, approached the parked car to make inquiry as to such presence; that while doing so Officer Baum saw an open container of beer between the driver's legs and two pipes, said to be "marijuana" pipes, protruding from under the driver's seat; that the beer container and the pipes were removed from the car and placed in the patrol car, the pipes being noted to contain or be coated with residue typical of that created from the smoking of marijuana; that the defendant and his friend stood outside the car while the officers searched same revealing no contraband; that the defendant and his friend then emptied their pockets on the hood (or the trunk) of the car revealing no contraband except a marijuana cigaret contained with commercial cigarets in a commercial cigaret packet which had been in the defendant's pocket; that Officer Baum destroyed the marijuana cigaret; that Officer Baum patted down the defendant and found and removed a small bag of marijuana from his shirt pocket; that Officer Baum opened the bag and found three pills inside identified by the officers as methaqualone; and that at that time the defendant was placed under arrest and transported to the police station.

Although there seems to be no dispute as to whether the owner of the car consented to its being searched after the presence of the "marijuana" pipes was discovered, there is conflict as to what consent occurred thereafter. Officer Harrison testified that before they emptied their pockets Officer Baum asked the defendant and his friend, "Would you mind emptying your pockets on the hood of the car?" (Tr., p. 29) Without objection, they then proceeded to do so. Harrison further testified (Tr., p. 30) that Officer Baum did not ask either the defendant or his friend "for permission to empty the pockets himself," but did testify that he believed that Officer Baum did ask both the defendant and his friend if they minded if Baum patted them down, and that, although he did not remember defendant's response the defendant did comply. (Tr., p. 34) This testimony as to belief was qualified, however, by the explanation that his belief was based upon past practice and the fact that Officer Baum had asked Carter whether he would mind being patted down. (Tr., p. 56)

The defendant testified on the other hand that Officer Baum did not ask but ordered him to place his belongings on the trunk, that he did not ask to pat him down (Tr., p. 50), that he didn't ask to search him (Tr., pp. 51 and 63), that after the pipes were handed out they were told, "We are going to have to search you guys as well as the car," and that after his other pockets were emptied there could have remained a bulge in his shirt pocket indicating the presence of the baggie to Officer Baum (Tr., p. 61).

The narrow issue presented by the appeal is whether, on the evidence, there was legal justification for the search of defendant's person and the seizure therefrom of the contraband drugs.

We have previously established in the case of State v. Vostatek, Auglaize County Case No. 2-81-25, decided April 22, 1982, that a similar confrontation under the purported authority of the loitering ordinance here involved was legal, not constituting a "poisonous tree" bearing poisonous fruit.

Although the case of Terry v. State of Ohio, 392 U.S. 1, 88 S. Ct. 1868, was cited in the Vostatek case to justify the confrontation in the interests of a legitimate investigative function, and is likewise so applicable here, the Terry case does not here justify the "frisk" of defendant conducted by the police officers. A Terry frisk is for the limited purpose of finding weapons "for the assault of the police officer," not for the general purpose of finding evidence of the commission of a crime. Terry generally permits an officer to place his hands in pockets or under the outer surface of garments only after the officer has by virture of a pat down felt what appears to be a weapon. Under the better view a search is not permissible when the object felt is soft in nature. 3 LaFave, Search and Seizure 127 et seq., "Frisk" for Weapons, Sec. 9.4. Here the pat down was obviously not to discover weapons but to obtain evidence of the possession of marijuana. The pat down could only have disclosed a soft object in the defendant's shirt pocket, i.e.,...