[Cite as State v. Olding, 2010-Ohio-4171.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 17-09-13

        v.

ROBERT A. OLDING,                                       OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Shelby County Common Pleas Court
                            Trial Court No. 08CR000314

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: September 7, 2010




APPEARANCES:

        Konrad Kuczak for Appellant

        Jeffrey J. Beigel for Appellee
Case No. 17-09-13


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Robert A. Olding (“Olding”) brings this appeal

from the judgment of the Court of Common Pleas of Shelby County finding him

guilty of one count of illegal conveyance of weapons or prohibited items onto the

grounds of a detention facility in violation of R.C. 2921.36(A)(2), a third degree

felony and sentencing him to two years in prison. For the reasons set forth below,

the judgment is affirmed in part and reversed in part.

       {¶2} On October 18, 2009, Shelby County Deputy Sheriff, Sergeant Brad

Pleiman (“Pleiman”) observed a vehicle approaching with its headlights going off

and on. As the car passed, Pleiman noticed that the vehicle lacked a rear license

plate. Pleiman then followed the vehicle and observed it turn into the Phoenix Bar

parking lot and proceed to park at the far end of the parking area, away from all

other vehicles. Pleiman pulled into the parking lot and then activated his overhead

lights and spot light. He observed a female, later identified as Giavanna Peredo

(“Peredo”), walking away from the passenger side of the vehicle. A male, later

identified as Olding, was next to driver’s side of the vehicle and walking away.

Pleiman instructed both Olding and Peredo to return to the vehicle.         Olding

returned to the car and Pleiman told him to keep his hands out of his pockets.

Pleiman then called Peredo back to the patrol car to “get her side of the story”

concerning the flickering lights and missing license plate.



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      {¶3} While Pleiman was questioning Peredo, Olding began yelling and

cursing at Pleiman for questioning Peredo rather than Olding while throwing his

arms around. Pleiman called for backup due to Olding’s erratic behavior. Peredo

explained that she and Olding had been having an argument which might explain

his angry behavior. Olding kept interrupting the discussion. Olding then walked

around to the rear of his vehicle and sat on the trunk. When Pleiman told him to

get off, he got down, and started to reach into his pants pocket. Pleiman told him

to remove his hand from the pocket. Pleiman then observed Olding remove a

white object and put it behind his back at the waistband. When Olding’s hand was

visible again, it was empty. Pleiman then instructed Olding to lie on the ground

with his hands out to the side and away from his body. Olding complied at first,

then moved his hands close to his body and refused to move them.

      {¶4} Upon the arrival of backup, it was decided to handcuff Olding due to

his anger and reported prior incidents between the police and Olding. Olding was

not under arrest at this point. A quick pat down search was performed by Deputy

Howell (“Howell”) while Olding was on the ground. After handcuffing him,

Howell stood him up and performed a more thorough pat down search.             In

Olding’s coat, a sock containing two clear bags of white powder wrapped in tissue

paper was found. Believing the substance to be cocaine, Olding was placed under

arrest and taken to the Shelby County Jail to be booked. During the booking



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process, another bag of suspected cocaine was either dropped or fell from Olding’s

pants.

         {¶5} On November 13, 2008, Olding was indicted for one count of

possession of drugs, in violation of R.C. 2925.11, one count of trafficking in

drugs, in violation of R.C. 2925.03(A)(2), and one count of illegal conveyance of

drugs onto the grounds of a detention facility, in violation of R.C. 2921.36(A)(2).

Olding entered a plea of not guilty on November 21, 2008. On December 8, 2008,

Olding filed a motion to suppress evidence and to dismiss the charges. A hearing

was held on the motion to suppress on March 3, 2009. A hearing was held on the

motion to dismiss on March 14, 2009. On April 13, 2009, the trial court denied

both the motion to suppress and the motion to dismiss the charges.

         {¶6} On April 14, 2009, Olding entered into a plea agreement with the

State. Olding agreed to plead no contest to the third count of the indictment,

illegal conveyance of prohibited items onto the grounds of a detention facility, and

the State agreed to dismiss counts one and two and the specification associated

with count three. The trial court accepted the plea and found Olding guilty of

count three. The trial court then sentenced Olding to serve two years in prison.

Olding appeals from these judgments and raises the following assignments of

error.




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                            First Assignment of Error

       The trial court committed prejudicial error by overruling
       [Olding’s] motion to suppress evidence.

                           Second Assignment of Error

       The trial court committed prejudicial error overruling
       [Olding’s] motion to dismiss count III or in the alternative
       motion to suppress evidence.

                           Third Assignment of Error

       The trial court committed prejudicial error by finding [Olding]
       guilty when he was involuntarily of (sic) the premises of the
       detention facility.

       {¶7} The assignments of order will be addressed out of order.

       {¶8} Olding alleges in his second assignment of error that the trial court

erred in denying the motion to either suppress evidence of the bag of cocaine

found at the Shelby County Jail or to dismiss the third count of the indictment.

       Typically, the burden of proving that lost or destroyed evidence
       is materially exculpatory and that the evidence cannot be
       obtained by other reasonable methods is placed on the
       defendant. * * * However, when a defendant requests evidence
       and the State fails to respond in good faith to such a request, the
       State then bears “the burden of proof as to the exculpatory
       value of the evidence.” [City of Columbus v. Forest] (1987), 36
       Ohio App.3d at 173, 522 N.E.2d 52.

State v. Cahill, 3d Dist. No. 17-01-19, 2002-Ohio-4459, ¶14.

       {¶9} Olding had requested a copy of the video generated during his

intake at the jail. However, the video was destroyed before it could be turned



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over to Olding. The trial court made a finding of fact that the State destroyed the

recording in bad faith and thus had the burden of demonstrating that the video did

not contain exculpatory material. Here, the trial court relied upon Defendant’s

Exhibit E, which included portions of Pleiman and Howell’s reports. Both of

these reports indicated that a bag of a substance resembling cocaine fell from

Olding as he was walking in the jail. This court agrees with Olding that the video

would not have shown that the content of the bag was cocaine.              However,

contrary to Olding’s argument, the video also would not have shown that the

content of the bag was not cocaine either. The fact that the video may not be

inculpatory as to the content of the bag does not automatically make it

exculpatory. Thus, this court does not find that the trial court erred in finding that

the video was not exculpatory. The second assignment of error is overruled.

       {¶10} Olding claims in the first assignment of error that the pat down

search was not permitted and that the removal of the contraband was not

supported by the “plain feel” doctrine.

       Under [Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20
       L.Ed.2d 889], a limited protective search of the detainee’s
       person for concealed weapons is justified only when the officer
       has reasonably concluded that “the individual whose suspicious
       behavior he is investigating at close range is armed and
       presently dangerous to the officer or to others * * *.” Id. at 24,
       88 S.Ct. at 1881, 20 L.Ed.2d at 908. Justice Harlan’s concurring
       opinion in Terry emphasizes that “the right to frisk must be
       immediate and automatic” where the lawfully stopped detainee
       is under suspicion for a crime of violence. Id. at 33, 88 S.Ct. at


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       1886, 20 L.Ed.2d at 913. “The purpose of this limited search is
       not to discover evidence of crime, but to allow the officer to
       pursue his investigation without fear of violence * * *.” Adams
       v. Williams (1972), 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32
       L.Ed.2d 612, 617.        “Where 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 a protective search for the safety of himself and
       others.” State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d
       489, paragraph two of the syllabus.

       A [Pennsylvania v. Mimms (1977), 434 U.S. 106, 98 S.Ct. 330, 54
       L.Ed.2d 331] order does not automatically bestow upon the
       police officer the authority to conduct a pat-down search for
       weapons. In analyzing the ensuing Terry frisk, the question we
       must ask is whether, based on the totality of the circumstances,
       the officers had a reasonable, objective basis for frisking
       defendant after ordering him out of the car. See State v.
       Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271. “The
       touchstone      of    our     analysis    under     the    Fourth
       Amendment is always ‘the reasonableness in all the
       circumstances of the particular governmental invasion of a
       citizen’s personal security.’” Mimms, supra, 434 U.S. at 108-
       109, 98 S.Ct. at 332, 54 L.Ed.2d at 335, quoting Terry, supra, 392
       U.S. at 19, 88 S.Ct. at 1878-1879, 20 L.Ed.2d at 904.

State v. Evans (1993), 67 Ohio St.3d 405, 408-409, 618 N.E.2d 162. If during the

frisk an officer detects contraband, the items may be lawfully seized. Minnesota

v. Dickerson (1993), 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334.

       The rationale of the plain-view doctrine is that if contraband is
       left in open view and is observed by a police officer from a
       lawful vantage point, there has been no invasion of a legitimate
       expectation of privacy and thus no “search” within the meaning
       of the Fourth Amendment - or at least no search independent of
       the initial intrusion that gave the officers their vantage point. * *
       * The warrantless seizure of contraband that presents itself in
       this manner is deemed justified by the realization that resort to


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       a neutral magistrate under such circumstances would often be
       impracticable and would do little to promote the objectives of
       the Fourth Amendment. * * * The same can be said of tactile
       discoveries of contraband. If a police officer lawfully pats down
       a suspect’s outer clothing and feels an object whose contour or
       mass makes its identity immediately apparent, there has been no
       invasion of the suspect’s privacy beyond that already authorized
       by the officer’s search for weapons; if the object is contraband,
       its warrantless seizure would be justified by the same practical
       considerations that inhere in the plain-view context.

Id. at 375-76. Although contraband found during a Terry search may be seized,

there are limits on the search. Id. at 376. The officer must still have probable

cause to believe the item is contraband.      Id at 377.   The officer may not

manipulate an object previously determined not to be a weapon in order to

determine its incriminating nature. Id. See also. Evans, supra at fn. 5. If the

item must be manipulated to determine its nature, then a further search has been

conducted. Id. Generally, for the item to be removed, it must either be clearly

contraband or be of the size and density of a weapon. Evans, supra at 415. “If the

protective search goes beyond what is necessary to determine if the suspect is

armed, it is no longer valid under Terry and its fruits will be suppressed.”

Dickerson, supra at 366-67. See also, Sibron v. New York (1968), 392 U.S. 40, 88

S.Ct. 1889, 20 L.Ed.2d 917.

      {¶11} In this case, Olding was frisked because of his behavior and because

the officers were concerned he might have been armed. Pursuant to Terry, this is

permissible. The Terry pat down search was performed by Howell and Howell


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was the officer who found the contraband. However, Howell did not testify at the

suppression hearing. The State presented the testimony of only Pleiman, who did

not perform the search. Pleiman testified as follows.

       Deputy Howell placed him in handcuffs, and he was on the
       ground. Did not locate anything. He then stood him up so he
       could do a better patdown, make sure he didn’t have any
       weapons.

       At that time Deputy Howell found, I believe, a white sock in the
       coat pocket and handed that to Deputy Dotson who showed up
       by that time, and Deputy Dotson looked inside that sock and
       found two bags of cocaine that was wrapped in, like, a napkin or
       tissue paper.

March 3, 2009, Tr. 17. At the time of the search, Olding was not under arrest.

The reason for the stop was the headlights flickering on the car and a lack of a

rear license plate. Pleiman testified that he was questioning Olding’s passenger to

see if any other criminal behavior had occurred, which made Olding angry. The

sole reason given for Olding’s arrest was the drugs found during the search.

Thus, if the contraband was improperly seized, then the arrest and any subsequent

statements following the arrest were improper and should have been suppressed.

      {¶12} The State failed to put on any evidence that would indicate that the

contraband was properly seized. Howell did not testify at all. Pleiman did not

testify to any comments made by Howell that would indicate that the contraband

was either suspected of being a weapon or that it was clearly contraband.

According to Pleiman, the contents of the sock, which was removed from


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Olding’s pocket, were not known until the sock was opened and the tissue paper

was unwrapped. This is clearly a manipulation of the item and a violation of the

standard set forth in Dickerson, supra.        Without evidence that Howell had

knowledge that the item he felt was contraband when he removed the item from

the pocket, the search does not comply with the narrow constraints of Terry. See

Dickerson, supra; Michigan v. Long (1983), 463 U.S. 1032, 103 S.Ct. 3469, 77

L.Ed.2d 1201; and Sibron, supra. Based upon the failure of the State to present

any evidence to show that the seizure of the contraband was proper, this court has

no choice but to find that the trial court should have suppressed the results of the

search and any fruits of the search. The first assignment of error is sustained.

       {¶13} In the third assignment of error, Olding claims that he should not be

charged with conveying a prohibited substance into a detention facility since he

did not voluntarily enter the detention facility.       At oral argument, Olding

conceded that this issue has recently been directly addressed by the Ohio Supreme

Court in State v. Cargile, 123 Ohio St.3d 143, 2009-Ohio-4939, 916 N.E.2d 775.

In Cargile, the Ohio Supreme Court determined that a person taken to a detention

facility pursuant to an arrest and who possesses a prohibited item at the time he or

she is taken to the facility, has the requisite actus reus. Given this ruling, this

court must follow the mandate of the Ohio Supreme Court and determine that the

drugs were voluntarily taken into the facility. However, since the testimony



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concerning the pat down search and discovery of the drugs was insufficient, the

drugs found during that time should have been suppressed. Thus, Olding would

not have been taken into custody and would not have transported the drugs into

the facility. The third count of the indictment should have been dismissed. For

this reason, the third assignment of error is sustained.

       {¶14} For the reasons set forth above, the judgment of the Court of

Common Pleas of Shelby County is affirmed in part and reversed in part. The

matter is remanded to the trial court for further proceedings.

                                                           Judgment Affirmed in Part,
                                                                Reversed in Part and
                                                                    Cause Remanded

ROGERS, J., concurs.

/jlr



SHAW, J., concurs in part and dissents in part.

       {¶15} I concur in the majority decision regarding the video in the second

assignment of error. I respectfully dissent as to every other aspect of the majority

decision.

       {¶16} In my view, the testimony of the police officer who was an

eyewitness to the totality of circumstances in this case, including the disorderly

conduct of the defendant at the scene and the resulting pat down and search of the



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defendant at the scene, is sufficient to establish all of the requisite grounds for the

arrest and transport of the defendant. And, while the testimony of the officer who

conducted the pat-down would always be the better practice at a suppression

hearing, I do not agree with the rule implied by the majority decision that only the

testimony of the officer who personally conducted the pat-down is sufficient in

any given case to establish probable cause for a contraband arrest.

       {¶17} I would affirm the decision of the trial court in its entirety.

/jlr




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