State v. Ward

• Decision Date: 14 April 2017
• Docket Number: No. 27030,27030
• Citation: 2017 Ohio 1391,89 N.E.3d 124
• Parties: STATE of Ohio, Plaintiff–Appellee v. Brian J. WARD, Defendant–Appellant
• Court: Ohio Court of Appeals

89 N.E.3d 124

2017 Ohio 1391

STATE of Ohio, Plaintiff–Appellee

v.Brian J. WARD, Defendant–Appellant

No. 27030

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on April 14, 2017

MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff–Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 2372 Lakeview Drive, Suite H, Beavercreek, Ohio 45431, Attorney for Defendant–Appellant

OPINION

WELBAUM, J.

{¶ 1} In this case, Defendant–Appellant, Brian J. Ward, appeals from his conviction and sentence on one count of Possession of Heroin and one count of Tampering with Evidence. Ward contends that the trial court erred in overruling his motion to suppress evidence, because he was unconstitutionally detained by the police and because his consent to search was involuntary.

{¶ 2} We conclude that the trial court did not err in overruling Ward's motion to suppress evidence. Both Ward's initial and second encounters with a police officer were consensual, and Ward voluntarily consented to a search. Furthermore, once the search began, the officer found weapons and had a reasonable, articulable suspicion of danger that would justify seizing Ward and continuing the search.

{¶ 3} Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 4} The following facts were disclosed at a suppression hearing held in the trial court. The only witness at the hearing was Miamisburg Police Officer, Kevin Current. On July 25, 2015, Current was patrolling an area called the 2–Beat, which was located north of Interstate 75. Current was wearing the uniform of the day and was in a marked cruiser.

{¶ 5} At about 12:35 a.m., while traveling in the area of North 11th Street and Pearl Avenue, Current encountered a man (later identified as Brian Ward), walking north on North 11th Street. This was nothing out of the ordinary and did not concern Current. However, Current had been working in that area for quite a while, knew most of the residents, and did not recognize Ward.

{¶ 6} When Current first saw Ward, Ward was walking toward him. Current stopped his cruiser and asked Ward who he was and where he was headed. Ward said he was in town from Kentucky and was working in the area for a realtor. Ward also said he was going to a friend's house where he was visiting or staying. The friend was an individual named Ernest W. Current was familiar with Ernest, as the police had dealt with Ernest numerous times for various criminal reasons, including drugs. Current stated that the police had prior drug issues at Ernest's house and also at the house next door.

{¶ 7} Current initially spoke with Ward through the window of his cruiser. He stated that Ward did not smell of alcohol, did not look intoxicated, and did not look as if he were under the influence of drugs.

{¶ 8} After obtaining Ward's social security number, Current pulled up the street and parked his cruiser. He ran Ward's information and found Ward did not have any outstanding warrants. Current then began entering comments to the call screen on his computer. While he did this, Ward continued to walk north on North 11th Street, on the opposite side of the street from the cruiser. When Ward reached the area where Current was parked, Current exited the cruiser and again engaged in conversation with Ward. Because of the location where Ward was headed and the people Ward associated with, Current asked Ward if he had anything illegal. Ward said no. After Ward said no, Current continued to walk towards him. Current then asked Ward if he could "check," and Ward said yes. Transcript of Proceedings, p. 28.

{¶ 9} As the search began, Current noticed box-cutters that were attached to Ward's front pants pockets. The cutters were inside Ward's pockets, and were attached with a clip on the outside of the pocket. Current's testimony is unclear as to whether he could actually see the box-cutters or could only see the clips on the outside of Ward's pockets. See Transcript of Proceedings, p. 29. In this regard, the following exchange occurred:

Q. Now, you said he had these box-cutters affixed to him, to his pants?

A. Yes.

Q. Were they covered?

A. They were in his front pockets with a clip. They have clips, so they were clipped. Like the box-cutter was inside and the clips were on the outside of the pockets.

Q. Okay. And you could see them before you put your hands on them?

A. Yes.

Id.

{¶ 10} When Current began to patdown Ward, he got behind him, as he normally does. Once he got to the pocket, he asked Ward if he could remove the box-cutters. Ward said no. Transcript of Proceedings, p. 30. However, when Current explained that he wished to remove the box-cutters for his safety and would return them, Ward agreed. At that point, Current had hold of Ward's arm. He folded Ward's arm away from the box-cutters and removed them.

{¶ 11} Current then continued the patdown and felt gel capsules in the right front pocket of Ward's pants. Current felt them through the outside of Ward's pants, with his fingers. Based on his experience in detecting gel caps, Current immediately knew these were gel caps, and concluded that they probably contained heroin.

{¶ 12} Current asked Ward if he could reach in his pocket and remove the gel caps, but Ward said no. Current then told Ward that he knew Ward had heroin in his pocket. At that point, Ward pulled away from Current and began to run. Ward ran north towards Ernest's house. Current then called for help on his portable radio and ran after Ward. He was able to grab Ward's sleeve for a moment, but Ward got away.

{¶ 13} In the area where Ward was stopped, the road runs across a creek, and a little tree-line leads down into the creek bed. The road forms a bridge across the creek, and Current ran onto the bridge so that he could maintain visual contact with Ward. Ward ran straight through the tree-line and down to the creek. Ward was about 10 to 12 feet away, at the bottom of the creek, and Current spotlighted Ward with his flashlight. Current could see Ward clearly, and Ward was pulling items from his right pocket and dropping them in the creek. At that time, Current was ordering Ward to stop, to keep his hands out of his pocket, and to come out of the creek. However, Ward continued to pull items from his pocket.

{¶ 14} Once Ward finished dropping items from his pocket, he began to come out of the creek area. By that time, Officer Priest had arrived on the scene. Priest detained Ward and placed him in the rear of the cruiser. Current and Priest then went down to the bottom of the creek to check the area where Ward had been dumping items from his pocket. They found three gel capsules floating right where Ward had been standing. Current had Latex gloves in his possession and used one to collect the capsules. Gel capsules are water soluble and they were already beginning to deteriorate when Current got them into the glove. Another officer then took photographs of the capsules at the scene.

{¶ 15} Because Ward was complaining about his arm, medics took him to Sycamore Hospital. Ultimately, Current went to the hospital and questioned Ward after administering Miranda warnings.

{¶ 16} Ward was indicted in November 2015 for one count of Possession of Heroin of less than one gram, a fifth-degree felony, and one count of Tampering with Evidence, a third-degree felony. After Ward pled not guilty, he filed a motion to suppress on December 11, 2015. The trial court held a hearing on January 20, 2016, at which the above evidence was elicited from Officer Current. The court overruled the motion to suppress the same day.

{¶ 17} On January 27, 2016, Ward pled no contest to both charges, and was found guilty. The trial court subsequently sentenced Ward to up to five years of community control, with various conditions. Ward now appeals from his conviction and sentence.

II. Alleged Error in Overruling the Motion to Suppress

{¶ 18} Ward's sole assignment of error states that:

The Trial Court Erred in Overruling Appellant's Motion to Suppress.

A. Alleged Unlawful Detention

{¶ 19} Ward presents two issues under this assignment of error. The first is that the motion should have been granted because the police unlawfully seized him. Ward acknowledges that the police may validly detain individuals briefly for questioning, but argues that an unlawful seizure occurred in this case when Officer Current further investigated without reasonable articulable facts giving rise to a suspicion of criminal activity. In contrast, the State contends that Ward's first two encounters with the police were consensual and that the Fourth Amendment was not implicated. In addition, the State contends that Ward consented to the search of his person.

{¶ 20} In its decision, the trial court found Officer Current credible. The court also found that both of Current's initial encounters with Ward were consensual and did not implicate the Fourth Amendment. The court also concluded that Ward's consent was voluntary.

{¶ 21} "Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." (Citation omitted). State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." (Citation omitted.) Id. "Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." (Citation omitted.) Id.

{¶ 22} "The Fourth Amendment to the United States...