State v. Seth J. Potts
| Decision Date | 07 December 1994 |
| Docket Number | 94-LW-1241,93 CA 29 |
| Parties | State of Ohio, Plaintiff-Appellee v. Seth J. Potts, Defendant-Appellant |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: Teresa D. Schnittke, ASSISTANT WASHINGTON COUNTY PUBLIC DEFENDER, 330 Fourth Street, Marietta, Ohio 45750.
COUNSEL FOR APPELLEE: Robert J. Smith, MARIETTA CITY ASSISTANT LAW DIRECTOR, 301 Putnam Street, Marietta. Ohio 45750.
DECISION
This is an appeal from a judgment of the Marietta Municipal Court. Potts was found guilty of violating R.C. 2925.11(A) possession of marijuana, and guilty of violating R.C 2925.14(C)(l), possession of drug paraphernalia. We reverse.
At approximately 3:00 p.m., on March 8, 1993, Ohio State Highway Patrol Trooper, Victor Knick, was on routine patrol on Interstate 77 in Washington County when he noticed a vehicle with a cracked windshield. He pulled the vehicle over, and went to the passenger side where he talked to the owner of the vehicle, Jeffrey Barton. Barton gave Knick his driver's license and registration. Knick then went to the driver's side and asked the driver, Potts, for his driver's license. Potts said he had a North Carolina driver's license but did not have it with him. Knick detected a slight odor of marijuana and asked Potts to exit the vehicle until he could verify that Potts had a valid driver's license. Before Potts entered the patrol car, Knick conducted a "Terry"-type pat down. During the pat down, Knick noticed a hard bulge in one of Potts' pockets. He asked Potts to remove the object, which turned out to be a pipe, used for smoking marijuana. Knick radioed for back-up.
Back-up arrived, and Barton was secured in the second patrol car. The officers proceeded with an in-depth search of Barton's vehicle, including the luggage. Knick's patrol car contained a video camera which recorded the officers as they removed everything from Barton's vehicle and opened and inspected the assorted packages. As a result of the search, the troopers found a baggie containing seven grams of marijuana and three two-hundred pound cylinders of nitrous oxide, commonly known as laughing gas.a Potts was arrested for violating R.C. 2925.11(A), possession of marijuana, violating R.C. 2925.14(C)(1), possession of drug paraphernalia, violating R.C. 2925.31(A), possession of a harmful intoxicant, and violating R.C. 4507.02, driving without an operator's license.
Potts filed a motion to suppress arguing that the arresting officer unlawfully exceeded the scope of the detention associated with the initial investigatory stop. The trial court found that Trooper Knick had sufficient cause to stop the vehicle because of the cracked windshield. See R.C. 4513.02. The court also found that the " Terry "-type pat down was proper and the detention to prohibit Potts from fleeing, as an unlicensed driver, was proper. The motion was denied.
On September 9, 1993, Potts pleaded no contest to violating R.C. 2925.11(A), possession of marijuana, and to violating R.C. 2925.14(C)(l), possession of drug paraphernalia. The remaining two counts were dismissed. The court found Potts guilty upon his plea. Potts timely filed a notice of appeal and assigns the following error.
Potts says the court should have granted his motion to suppress. He says the initial frisk was unlawful because there was no reasonable, articulable suspicion that he was violating any law.
In a motion to suppress, the trial court assumes the role of trier of fact, and as such, 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, citing State v. Fanning (1982), l Ohio St.3d 19. See, also, State v. Dreher (July 28, 1992), Highland App. No. 786, unreported. Accordingly, in our review, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Fausnaugh (Apr. 30, 1992), Ross App. No. 1778, unreported. 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. Dreher, supra; Fausnaugh, supra.
The test for a constitutional stop of an automobile is limited to the finding of reasonable suspicion. Berkemer v. McCarty (1984), 468 U.S. 420. The question is whether there was reasonable and articulable suspicion to warrant the original investigatory stop. Terry v. Ohio (1968), 392 U.S. 1. When a reviewing court determines whether the stop was proper, it must consider the totality of the circumstances. State v. Freeman (1980), 64 Ohio St.2d 291, paragraph one of the syllabus. See, also, State v. McCraig (1988), 51 Ohio App.3d 94, at syllabus. An investigatory stop must be justified by some objective manifestation that the person stopped is engaged or about to engage in some form of criminal activity. United States v. Cortez (1981), 449 U.S. 411. A brief stop of a suspicious individual to determine his identity or to maintain the status quo may be most reasonable in light of the facts known to the officer at the time. State v. Williams (1990), 51 Ohio St.3d 58 citing Terry, supra. These circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. State v. Andrews (1991), 57 Ohio St.3d 86 citing United States v. Hall (C.A. D.C. 1976), 525 F.2d 857 Hence, the test is objective in nature, i.e., "[W]ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" State v. Bobo (1988), 37 Ohio St.3d 177.
The minority believes that the Ohio Supreme Court decision in State v. Evans (1993), 67 Ohio St.3d 405 is controlling in this case. In Evans, a divided court construed the holding of the U.S. Supreme Court in Pennsylvania v. Mimms, (1977), 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 vis a vis the holding Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1886, 20 L.Ed.2d 889. Terry holds that an officer conducting an investigative stop may do a pat down search for weapons only if when the officer can reasonably conclude that "the individual * * * is armed and presently dangerous." Mimms holds that a police officer may ask the individual to exit his vehicle during an investigatory stop, the so called "Mimms order."In Evans, the operator of the vehicle was asked to step out of his vehicle and subjected to a pat down search. Thus, it may be argued that Evans allows a pat down search of any motorist stopped for a traffic violation merely by asking them to step out of the vehicle or asking them to step into the cruiser while the officer writes a ticket or conducts a radio investigation. We do not think that this is the holding in Evans because without a reasonable belief that a motorist is "armed and presently dangerous," Terry, supra, prohibits such conduct.
We do not believe that Evans is applicable here. The Ohio Supreme Court stated in Evans, at p. 408:
"A Mimms order does not automatically bestow upon the police officer the authority to conduct a pat down search for weapons."
At p. 414, the court further stated:
"Under Terry and its progeny, the police may search only for weapons when conducting a pat down of the suspect."
The three minority justices in Evans based their dissent primarily on the facts, i.e., that when the officer doing the pat down felt a soft wad in Evans shirt pocket, he knew it wasn't a weapon, but searched the pocket because he suspected drugs. The majority in Evans found, at p. 410:
"* * * the police officers proffered justification in patting down the driver - their own personal security.
While the minority in Evans pointed out at p. 418: "Surprisingly, the majority points to no evidence that the officers had an objectively reasonable belief that Evans was armed."
Although the facts in Evans may be construed differently, the Terry standard, "armed and presently dangerous," still applies in Ohio.
In the case before us, there is no question, as there was in Evans, about the concern of the officers that the driver might be dangerous or a pat down of the suspect for weapons. Perhaps most significantly, appellee's brief does not even cite or rely on the holding in Evans. The standard of review in this case pure Terry. There was no testimony that the officers thought Potts was armed or dangerous. There is no testimony in the record to justify a Terry search.
Potts' assignment of error is well taken. The judgment of the trial court is reversed.
I believe our decision follows the clear holding in Terry, supra, that an officer conducting an investigative stop may conduct a pat-down search for weapons only when the officer can reasonably conclude that "the individual *** is armed and presently dangerous." The dissent contends we are bound by the Ohio Supreme Court's holding in Evans, supra, to uphold such a pat down where the record is totally devoid of any reasonable belief in the existence of the Terry mandate. I disagree since I believe the United States Supreme Court is the final arbiter of the mandates of the United States Constitution, the pronouncement in Evans, supra, not to the contrary.
In reality, what Evans does is allow the state to pat down any motorist stopped for any traffic violation by merely asking them to step into the cruiser while the officer writes a ticket or conducts a radio...
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