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Date: 04-10-2019

Case Style:

STATE OF OHIO vs. DOMINIQUE D. BROWN

Case Number: 18CA3644

Judge: Peter B. Abele

Court: COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

Plaintiff's Attorney: Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney

Defendant's Attorney: James T. Boulger

Description:




On July 24, 2017, Chillicothe Police Officer Christopher King, a K-9 handler and a member of
a drug-interdiction unit, was sitting in a convenience store parking lot shortly after 5:00 p.m.
when he noticed a white Cadillac Escalade with distinctive chrome rims. Although King did
not know the sources, he testified that the police department had received tips about this
vehicle’s involvement in drug activity and that the vehicle is registered to a drug trafficker.
King also observed damage to the rear bumper, which obscured a portion of the license plate.
King then observed the driver commit two marked-lanes violations - one striking the curb and
one traveling left of center. Subsequently, King activated his pursuit lights and stopped the
vehicle.
{¶ 4} Officer King opted to approach the vehicle’s passenger side for safety reasons, including the
fact that very dark window tint that restricted his view. King recognized the appellant when
he stuck his head out the front passenger window and looked at the officer, and then King
shook appellant’s hand after appellant extended his hand. King knew that appellant was
involved in drug activity from tips from the public, as well as reports from fellow officers.
Also, during a warrant roundup, appellant had been charged with drug trafficking.
{¶ 5} Officer King also observed Shawna Smith in the driver’s seat, alongside with appellant seated
in the front passenger seat. When King asked for the vehicle registration, appellant told him
that the vehicle had been purchased within the last three days. When appellant could not find
the registration, he then explained that his cousin had title to it. Upon request, appellant gave
King his social security number. Another officer, Officer Lawhorn, arrived and directed
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traffic. A third officer, Officer Shipley, also a K-9 officer, arrived soon thereafter and King
advised appellant that Officer Shipley intended to walk his dog around the vehicle.
Approximately five minutes and 41 seconds after King stopped the vehicle, the dog made a
positive alert for drugs near the driver’s door. King testified that if he had run all the
information concerning the vehicle’s VIN to police dispatch, he believed that it would have
taken over ten minutes to receive that information.
{¶ 6} Before the positive drug alert, Officer King also noticed appellant’s nervous and deceptive
manner: (1) he ate multiple mints and took many drinks; (2) he had an unlit cigarette in his
mouth during the conversation with the officer; (3) he tried to speak for the driver and
answered questions directed at her, rather than allowing her to speak; and (4) he claimed they
were traveling to get the driver’s nails done, but no nail salons are in the area.
{¶ 7} At that point, Officer King directed appellant to exit the vehicle for a weapons pat-down.
King testified that when he performs a pat-down search for weapons, he first locates the
private parts and works back from there. Appellant was wearing a t-shirt and gym shorts
and, during his pat-down, which lasted less than 15 seconds, King felt an abnormality - a
large bulge between Brown’s legs - that, through his drug-interdiction experience, he
immediately knew was contraband, although he did not know the particular type of
contraband. According to King, based on his experience, suspects often keep drugs in that
area of the body. Although King used his fingers to conduct the pat-down, he denied
appellant’s counsel’s assertions that he grabbed or probed appellant, and it does appear that
the body-camera footage does not establish that King grabbed or groped. King did not try to
remove the contraband at that time, but instead advised another officer that they would
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identify the object in a subsequent strip search. King then handcuffed appellant and advised
him of his Miranda rights.
{¶ 8} After officers told the driver to exit the vehicle and performed a pat-down, they began to
search the vehicle. During the search, Officer Shipley told appellant that if he was holding
something and gave it up, he would probably not go to jail that day, and that he would not
inform his probation officer. Officer King told appellant that taking the contraband to the
Ross County Jail could also result in additional charges. Appellant, however, repeatedly
denied that he had any contraband and invited the officers to search him again. After King
conducted another pat-down and again felt the contraband, appellant stated that he would
retrieve it. Appellant then removed the object and voluntarily placed it in a bag that Officer
Shipley provided. The object tested positive for cocaine.
{¶ 9} Subsequently, a Ross County Grand Jury returned an indictment that charged appellant with
one count of possession of cocaine in an amount equal to or exceeding 27 grams, but less
than 100 grams, in violation of R.C. 2925.11, a felony of the first degree. Appellant pled not
guilty to the charge and filed a motion to suppress the testimonial, documentary, and physical
evidence seized during the traffic stop, as well as statements he made to the officers after his
initial detention.
{¶ 10} After the trial court held a hearing on the motion, the court ordered the parties to submit
post-hearing briefs. After the court considered the evidence and counsels’ arguments, the
court found three reasons to deny the motion: (1) the positive canine sniff gave the officers
probable cause to search the vehicle and its occupants, including appellant; (2) the Terry frisk
enabled the police to search appellant for weapons and the immediate feel of the contraband
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gave them probable cause to continue the search; and (3) appellant voluntarily consented to
handing the cocaine to the police. At this point, appellant entered a no contest plea to the
charge of possession of cocaine and, after the trial court accepted the plea, the court
sentenced appellant to serve a mandatory five-year prison term. This appeal followed.
{¶ 11} In his sole assignment of error, appellant asserts that the search of his person violated his
constitutional rights under the Ohio Constitution and the United States Constitution.
{¶ 12} In general, “appellate review of a motion to suppress presents a mixed question of law and
fact.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶7. “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.” 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.” 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.’” Codeluppi at ¶7, quoting
Burnside at ¶8.
{¶ 13} Appellant argues that the trial court erred by denying his motion to suppress evidence. In
particular, appellant contests the propriety of the officer’s pat-down search for weapons.
{¶ 14} The Fourth Amendment to the United States Constitution and the Ohio Constitution, Article
1, Section 14, prohibit unreasonable searches and seizures.” State v. Emerson, 134 Ohio
St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶15. This constitutional guarantee is protected
by the exclusionary rule, which mandates the exclusion at trial of evidence obtained from an
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unreasonable search and seizure. Id.
{¶ 15} This case involves an investigatory stop, which must be supported by reasonable, articulable
suspicion. See State v. Shrewsbury, 4th Dist. Ross No. 13CA3402, 2014-Ohio-716, ¶15,
citing United States v. Williams, 525 Fed.Appx. 330, 332 (6th Cir.2013), and Florida v.
Royer, 460 U.S. 491, 501-507, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Here, the officer’s
observation of traffic violations justified the initial investigatory stop. See, e.g., State v.
Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, syllabus (“A traffic stop is
constitutionally valid when a law-enforcement officer witnesses a motorist drift over the lane
markings in violation of R.C. 4511.33, even without further evidence of erratic or unsafe
driving”). Moreover, the officer had the authority to order appellant to exit the vehicle after
the stop. See State v. Fowler, 4th Dist. Ross No. 17CA3599, 2018-Ohio-241, ¶17, quoting
State v. Alexander-Lindsey, 2016-Ohio-3033, 65 N.E.3d 129, ¶14 (4th Dist.)(“‘Officers may
order a driver and a passenger to exit a vehicle, even absent any additional suspicion of a
criminal violation’”). Furthermore, “a lawfully detained vehicle may be subjected to a
canine check of the vehicle’s exterior even without the presence of a reasonable suspicion of
drug-related activity.” State v. Debrossard, 4th Dist. Ross No. 13CA3395, 2015-Ohio-1054,
¶18, citing State v. Rusnak, 120 Ohio App.3d 24, 28, 696 N.E.2d 633 (6th Dist. 1997). “‘In
determining if an officer completed these tasks within a reasonable length of time, the court
must evaluate the duration of the stop in light of the totality of the circumstances and
consider whether the officer diligently conducted the investigation.’” Debrossard at ¶17,
quoting State v. Aguirre, 4th Dist. Gallia No. 03CA5, 2003-Ohio-4909, ¶36. In the case sub
judice, the less-than-six-minute delay that occurred between the vehicle’s initial stop and the
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canine sniff is reasonable based on the totality of the circumstances, including the testimony
that it would have taken over 10 minutes to receive information for a police dispatch about
the vehicle’s VIN number. See State v. Cook, 65 Ohio St.3d 516, 521-522, 605 N.E.2d 70
(1992) (15 minute detention is reasonable); United States v. Sharp, 470 U.S. 675, 686-687,
105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (20-minute detention is reasonable).
{¶ 16} Here, although appellant does not contest the propriety of the vehicle’s investigatory stop, the
officer’s direction for him to exit the vehicle, or the stop’s duration, we conclude that they
were indeed proper.
A. Terry Frisk/Pat-Down Search for Weapons
{¶ 17} Appellant first asserts that a K-9 alert on a motor vehicle should not support a reasonable
suspicion that the vehicle’s occupants are engaged in drug trafficking so as to support a
pat-down search for weapons. In Terry v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968), the Supreme Court of the United States held that a police officer may
conduct a limited search for weapons in order to protect himself and others within the
immediate vicinity.
[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

{¶ 18} Therefore, “[w]here a police officer, during an investigative stop, has a reasonable suspicion
that an individual is armed based on the totality of the circumstances, the officer may initiate
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a protective search for the safety of himself and others.” State v. Bobo, 37 Ohio St.3d 177,
524 N.E.2d 489 (1988), paragraph two of the syllabus.
{¶ 19} Although appellant argues that the positive K-9 alert, by itself, could not provide the requisite
reasonable suspicion that he was armed, the Supreme Court of Ohio has consistently
recognized that “ ‘[t]he right to frisk is virtually automatic when individuals are suspected of
committing a crime, like drug trafficking, for which they are likely to be armed.’ ” State v.
Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 61,1 quoting State v. Evans,
67 Ohio St.3d 405, 413, 618 N.E.2d 162 (1993); see also Katz, Martin, and Macke,
Baldwin’s Ohio Criminal Law, Section 15:7 (2018) (citing Evans as one example for when
the Ohio Supreme Court “has adopted automatic rules”). The reason for this view is because
“‘police officers face an inordinate risk when they approach an automobile during a traffic
stop.’ ” State v. Hansard, 4th Dist. Scioto No. 07CA3177, 2008-Ohio-3349, ¶ 26, quoting
State v. Jones, 4th Dist. Washington No. 03CA61, 2004-Ohio-7280, ¶ 33. “Ohio courts
have long recognized that persons who engage in illegal drug activities are often armed with
a weapon.” Hansard at ¶ 26.
{¶ 20} Moreover, in the instant case additional factors also support Officer King’s reasonable
suspicion that Brown could be armed. Here, King testified that appellant acted nervously
and deceptively during the investigatory stop, including not allowing the driver to talk and
giving a false reason for their trip. Appellant also initially could not give King clear
information about the vehicle’s registration. Alexander-Lindsey, 2016-Ohio-3033, 65
1Jordan has been legislatively overruled insofar as the General Assembly subsequently provided a statutory remedy for the failure of a trial court to properly impose post-release control, but not for the pertinent part of the opinion here. See State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶22-23.
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9
N.E.2d 129, at ¶ 23, quoting State v. Simmons, 2013-Ohio-5088, 5 N.E.3d 670, ¶ 17 (12th
Dist.) (“While ‘[some] degree of nervousness during interactions with police officers is not
uncommon, * * * nervousness can be a factor to weigh in determining reasonable
suspicion”). Furthermore, King testified that reports from other police officers had noted
appellant’s involvement in drug activity, and that during a warrant roundup appellant had
been charged with drug trafficking. See State v. Kelley, 4th Dist. Ross No. 10CA3182,
2011-Ohio-3545, ¶ 20 (information received from other police officers can justify a Terry
pat-down search).
{¶ 21} Therefore, based upon the foregoing reasons, we conclude that the trial court correctly
rejected appellant’s contention that Officer King lacked the requisite reasonable suspicion for
the pat-down search.
B. Scope of Terry Frisk; Plain-Feel
{¶ 22} Appellant next argues that Officer King’s initial pat-down search exceeded the permissible
scope of the Terry frisk. “The pat-down search is limited to discovering weapons that might
be used to harm the officer.” Fowler, 2018-Ohio-241, ¶ 17. “The protective pat down
under Terry is limited in scope to this protective purpose and cannot be employed by the
searching officer to search for evidence of the crime.” Evans, 67 Ohio St.3d at 414, 618
N.E.2d 162.
{¶ 23} Here, appellant claims that Officer King’s initial search consisted of “vigorous groping” and
“clearly exceeded the scope of a weapons pat down.” However, King’s initial pat-down
search lasted less than 15 seconds, and he testified that he did not grab or probe appellant.
During the limited pat-down search, King felt the abnormality, i.e., a large bulge between
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appellant’s legs, which he immediately knew was contraband, based on his experience in
drug investigations. “ ‘Under the “plain feel” doctrine, if in the process of conducting a
limited pat down search for weapons an officer detects an object whose criminal character is
immediately apparent to him, he is justified in seizing the object from the * * * person being
searched.’ ” Fowler, 2018-Ohio-241, ¶ 17, quoting State v. Crayton, 2017-Ohio-705, 86
N.E.3d 77, ¶ 29 (11th Dist.). Although during a pat-down search for weapons an officer
cannot squeeze or manipulate an object to determine whether it is contraband, here we see no
evidence that King either squeezed or manipulated the object to determine its identity as
contraband. Once King felt the contraband during the pat-down search, he could seize the
object, although here he actually waited until appellant eventually handed it to him during the
second pat-down search. See Fowler at ¶ 17; State v. Billups, 1st Dist. Hamilton No.
C-150500, 2017-Ohio-4309, ¶ 14, quoting State v. Milhouse, 133 Ohio App.3d 527, 530, 728
N.E.2d 1123 (1st Dist.1999) (“If, during the course of a Terry pat-down search of a
subject’s clothing for weapons, ‘a police officer feels an object whose contour or mass makes
its incriminating character as contraband immediately apparent, and the officer has a lawful
right of access to the object, the officer is entitled to seize the object’ under the plain-feel
doctrine”); see also Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d
334 (1993).
C. Inevitable Discovery
{¶ 24} Moreover, even if we assume that Officer King would not have been justified in seizing the
contraband after his initial pat-down search, we believe that the evidence that appellant
sought to suppress would have nevertheless been admissible under the inevitable-discovery
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exception to the exclusionary rule. “Under that exception, illegally obtained evidence may
be admitted in a proceeding once the state establishes that the evidence would inevitably have
been discovered in the course of a lawful investigation.” State v. Banks-Harvey, 152 Ohio
St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 27. Here, once King felt the contraband, he had
probable cause to arrest Brown and the cocaine would have been discovered in a search
incident to arrest at the jail. See State v. Hapney, 4th Dist. Washington Nos. 01CA30 and
01CA31, 2002-Ohio-3250, ¶ 45 (although Terry pat down was improper, the
inevitable-discovery exception permitted the contraband to be introduced at trial because the
officer would have discovered it during a search incident to arrest).
{¶ 25} Consequently, because the trial court correctly denied appellant’s motion to suppress
evidence, we overrule his sole assignment of error.
D. Alternative Grounds for Trial Court’s Decision
{¶ 26} In the case sub judice, the trial court also found additional, alternative grounds for its decision
to deny Brown’s motion to suppress evidence. The court concluded that the positive canine
sniff gave the officers probable cause to search the vehicle and its occupants,2 including
appellant, and that appellant voluntarily consented to handing the cocaine to the police.
Because we have already determined that the trial court correctly denied appellant’s
suppression motion as the Terry frisk enabled the police to search appellant for weapons and
the immediate feel of the contraband gave them the authority to seize it, we need not address
2In Debrossard, 2015-Ohio-1054, ¶47 (Abele, J., concurring), the author of this opinion expressed the view that “when probable cause does indeed exist to search a motor vehicle for drugs or contraband, I do not think it unreasonable for the authorities to have the ability to expand the search of the vehicle’s passengers beyond the scope of a terry pat-down frisk for weapons.” See also State v. Urdiales, 2015-Ohio-3632, 38 N.E.3d 907, ¶29 (3rd Dist.) (“There appears to be a disagreement between courts over whether a canine alert to the vehicle, alone, is sufficient to
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these additional grounds. See State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d
262, 2005-Ohio-6432, 838 N.E.2d 658, ¶ 34, quoting PDK Laboratories, Inc. v. United
States Drug Enforcement Administration (D.C.Cir.2004), 362 F.3d 786, 799 (Roberts, J.,
concurring in part and in the judgment) (“ ‘This is a sufficient ground for deciding this case,
and the cardinal principle of judicial restraint—if it is not necessary to decide more, it is
necessary not to decide more—counsels us to go no further” ’); see also State v. Brewer,
2014-Ohio-1903, 11 N.E.3d 317, ¶ 31 (4th Dist.).

Outcome: Accordingly, based upon the foregoing reasons, we overrule appellant’s assignment of error
and affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:

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