State v. Wehr

• Decision Date: 01 October 2014
• Docket Number: No. 14CA46.,14CA46.
• Citation: 20 N.E.3d 1116
• Parties: STATE of Ohio, Plaintiff–Appellant v. David A. WEHR II, Defendant–Appellee.
• Court: Ohio Court of Appeals

20 N.E.3d 1116

STATE of Ohio, Plaintiff–Appellant

v.David A. WEHR II, Defendant–Appellee.

No. 14CA46.

Court of Appeals of Ohio, Fifth District, Richland County.

Oct. 1, 2014.

Jill Cochran, Assistant Prosecuting Attorney, Mansfield, OH, for Plaintiff–Appellant.

John O'Donnell III, Mansfield, OH, for Defendant–Appellee.

W. SCOTT GWIN, P.J., SHEILA G. FARMER, J., and JOHN W. WISE, J.

OPINION

GWIN

, P.J.

{¶ 1} Plaintiff-appellant the State of Ohio appeals the May 14, 2014 Judgment Entry of the Richland County Court of Common Pleas granting defendant-appellee David A. Wehr, II's motion to suppress.

Facts and Procedural History

{¶ 2} On January 13, 2014, Wehr, was indicted with one count of possession of heroin in an amount greater than five grams but less than ten grams, in violation of R.C. § 2925.11(A)

& (C)(6)(c), a felony of the third degree, one count of trafficking in heroin in an amount greater than five grams but less than ten grams in violation of R.C. § 2925.03(A)(2) & (C)(6)(d), a felony of the third degree, one count of tampering with evidence, in violation of R.C. § 2921.12(A)(1), a felony of the third degree, and one count of possession of Oxycodone (schedule II) in an amount less than bulk, in violation of R.C. § 2925.11(A) & (C)(1)(a), a felony of the fifth degree.

{¶ 3} On March 24, 2014, Wehr filed a motion to suppress the evidence seeking to suppress evidence found on his person as a result of a Terry pat down for weapons. The state filed a response on April 21, 2014. Wehr filed a supplemental memorandum on April 28, 2014. An evidentiary hearing was held on April 28, 2014. During the suppression hearing, the state called one officer, Deputy Raymond Frazier with the Richland County Sherriff's Department.

A. Deputy Raymond Frazier.

{¶ 4} Deputy Frazier has worked for the Richland County Sheriff's Department for 14 years. Deputy Frazier is also a canine handler. On November 17, 2013, Deputy Frazier was parked in his marked cruiser in the parking lot of the Budget Inn located at 1336 Ashland Road in Mansfield, Ohio as part of his routine patrol. The hotel management did not like people loitering on the property. Officers generally would drive around the parking lot to make their presence known and keep an eye out for people drinking or loitering in the parking lot.

{¶ 5} At 8:54 p.m., Deputy Frazier saw a 2002 White Toyota four-door with two people sitting inside at the Budget Inn parking lot with no lights on. As the officer pulled behind the Toyota on his way to exit the parking lot, the passenger exited the vehicle and ran towards the hotel office. Deputy Frazier testified that he exited his vehicle and yelled at the man, “Hey, where are you going?” and received no response.

{¶ 6} At this point, Officer Frazier approached the Toyota to make contact with the driver and registered owner, Wehr, as he was concerned that a crime might have just occurred or that the Wehr might need some further assistance. During the conversation, Deputy Frazier noticed that Wehr was reaching and fidgeting with something down near the floorboards of the vehicle. Deputy Frazier asked Wehr several times to stop reaching down near the floorboards. Wehr continued to reach near the floorboards of the vehicle and did not show his hands, causing Deputy Frazier to be concerned that Wehr could have a weapon.

{¶ 7} Deputy Frazier requested assistance, which arrived shortly thereafter. After back up had arrived, Wehr was removed from the vehicle and questioned as to what he was doing reaching down near the floor. Deputy Frazier briefly checked the floor to determine if there were any visible weapons. Seeing none, he became concerned that Wehr might have secreted a weapon on his person. Deputy Frazier then conducted a pat down search for officer safety. During the pat down, a pill bottle was located in Wehr's sock in his right pant leg. Deputy Frazier removed the pill bottle and found it to be an Advil

bottle. When asked by Deputy Frazier what was inside the pill bottle, Wehr responded that he did not know. Deputy Frazier opened the pill bottle and found individually wrapped bindles of heroin and Oxycodone pills inside.

{¶ 8} Wehr was questioned again about the pill bottle. He indicated that he did not know what was inside of the bottle. Wehr explained that the passenger had thrown the pill bottle on the floor prior to exiting the vehicle and that Wehr had picked the bottle up and tucked it into his sock.

{¶ 9} A free-air canine sniff was performed of the vehicle and the canine alerted to both sides of the vehicle. During a search of the vehicle a kitchen plate, razor blade, a cut straw and a set of digital scales were recovered from the area of the front passenger side floorboards. These items are known to be associated with drug activity according to Deputy Frazier's training and experience.

{¶ 10} The state did not present any other evidence. Camp did not offer any evidence or call any witnesses.

B. The Trial Court's Decision.

{¶ 11} The trial court filed a judgment entry on May 14, 2014, granting Wehr's motion to suppress the evidence. The trial court did not find any issue with the officer's contact with Wehr or the subsequent pat down of Wehr for officer safety. The trial court found that the incriminating nature of the object, in this case an Advil

bottle, was not immediately apparent to Deputy Frazier and, therefore, he was not justified in removing the bottle from the Appellee's person and opening it.

Assignment of Error

{¶ 12} The state raises one assignment of error,

{¶ 13} “I. THE TRIAL COURT ERRED WHEN IT GRANTED THE APPELLEE'S MOTION TO SUPPRESS.”

Analysis

{¶ 14} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 154–155, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8

. When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and to evaluate witness credibility. See State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d 988 (1995) ; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must defer to the trial court's factual findings if competent, credible evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998) ; State v. Medcalf, 111 Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has accepted those facts as true, it must independently determine as a matter of law whether the trial court met the applicable legal standard. See Burnside, supra, citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist 1997) ; See, generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ; Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review Ornelas, supra. Moreover, due weight should be given “to inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

Deputy Frazier's Initial Contact with Wehr.

{¶ 15} Contact between police officers and the public can be characterized in three different ways. State v. Richardson, 5th Dist. Stark No. 2004CA00205, 2005-Ohio-554, 2005 WL 332804, ¶ 23–27

. The first is contact initiated by a police officer for purposes of investigation. “[M]erely approaching an individual on the street or in another public place [,]” seeking to ask questions for voluntary, uncoerced responses, does not violate the Fourth Amendment. United States v. Flowers, 909 F.2d 145, 147 (6th Cir.1990). The United State Supreme Court “[has] held repeatedly that mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ; see also

INS v. Delgado, 466 U.S. 210, 212, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage.” Bostick, 501 U.S. at 434–435, 111 S.Ct. 2382 (citations omitted).

The person approached, however, need not answer any question put to him, and may continue on his way. Florida v. Royer (1983), 460 U.S. 491, 497–98 [103 S.Ct. 1319, 75 L.Ed.2d 229]

. Moreover, he may not be detained even momentarily for his refusal to listen or

answer. Id. So long as a reasonable person would feel free “to disregard the police and go about his business,” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991)

, the encounter is consensual and no reasonable suspicion is required.

Bostick, 501 U.S. at 434, 111 S.Ct. 2382, 115 L.Ed.2d 389

.

{¶ 16} The second type of contact is generally referred to as “a Terry stop” and is predicated upon reasonable suspicion. Richardson, supra; Flowers, 909 F.2d at 147

; See

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This temporary detention, although a seizure, does not violate the Fourth Amendment. Under the Terry doctrine, “certain seizures are justifiable ... if there is articulable suspicion that a person has committed or is about to commit a crime” Florida, 460 U.S. at 498, 103 S.Ct. 1319. In holding that the police officer's actions were reasonable under the Fourth Amendment, Justice Rehnquist provided the following discussion of the holding in Terry,

In Terry this Court recognized that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. The Fourth Amendment does not require a police officer who lacks the precise level of information necessary for probable cause to arrest to

...