[Cite as State v. Hall, 2017-Ohio-5805.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :       Hon. William B. Hoffman, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
LEVI HALL                                    :       Case No. 16CA102
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2016-CR-0274




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    July 11, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

BENJAMIN W. ZUSHIN                                   JEFFEREY R. STIFFLER
38 South Park Street                                 21 North Walnut Street
Mansfield, OH 44902                                  Mansfield, OH 44902
Richland County, Case No. 16CA102                                                   2

Wise, Earle, J.

       {¶1}   Defendant-Appellant, Levi Hall, appeals the August 22, 2016 judgment of

the Court of Common Pleas of Richland County, Ohio, denying his motion to suppress

evidence. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2}   On February 3, 2016, Mansfield Police Officers were dispatched to the

Cherry Hill area in Mansfield in response to a citizen's call of a suspicious person

walking in the area. Upon arriving on the scene, Mansfield Police Sergeant Nelson

Kilgore and Officer Matt Davis stopped appellant and his companion, Corey West.

Sergeant Kilgore conducted a pat-down search for weapons of appellant's person.

Sergeant Kilgore felt what he thought was a hypodermic needle in appellant's pocket.

Appellant first gave Sergeant Kilgore consent to retrieve the item, then immediately

rescinded the consent. Sergeant Kilgore asked appellant if the needle was capped and

appellant answered in the affirmative.

       {¶3}   Sergeant Kilgore placed appellant under arrest for possession of drug

paraphernalia and conducted a search incident to an arrest. Sergeant Kilgore retrieved

heroin and cocaine from appellant's person.

       {¶4}   On May 5, 2016, the Richland County Grand Jury indicted appellant on

two counts of possession of controlled substances (heroin and cocaine) in violation of

R.C. 2925.11. On July 25, 2016, appellant filed a motion to suppress, claiming an

illegal search of his person. A hearing was held on August 10, 2016. By judgment

entry filed August 22, 2016, the trial court denied the motion.
Richland County, Case No. 16CA102                                                     3


      {¶5}   On December 7, 2016, appellant pled no contest to the charges.          By

sentencing entry filed December 9, 2016, the trial court found appellant guilty and

sentenced him to two years of community control.

      {¶6}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶7}   "THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S

MOTION TO SUPPRESS, THEREBY VIOLATING THE DEFENDANT'S RIGHTS

AGAINST UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY

THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND

ARTICLE 1, SECTION 14 OF THE OHIO CONSTITUTION."

                                           II

      {¶8}   "THE APPELLANT WAS DEPRIVED [OF] HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE COUNSEL AT THE TRIAL LEVEL."

                                            I

      {¶9}   In his first assignment of error, appellant claims the trial court erred in

denying his motion to suppress. We agree.

      {¶10} As recently stated by the Supreme Court of Ohio in State v. Leak, 145

Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:



             "Appellate review of a motion to suppress presents a mixed

      question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-

      Ohio-5372, 797 N.E.2d 71, ¶ 8. In ruling on a motion to suppress, "the
Richland County, Case No. 16CA102                                                        4


      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." Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d

      972 (1992). On appeal, we "must accept the trial court's findings of fact if

      they are supported by competent, credible evidence." Id., citing State v.

      Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accepting those

      facts as true, we must then "independently determine as a matter of law,

      without deference to the conclusion of the trial court, whether the facts

      satisfy the applicable legal standard." Id.



      {¶11} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S.

690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal."

      {¶12} In Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the

United States Supreme Court determined 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." However, for the propriety of a brief investigatory stop pursuant to

Terry, the police officer involved "must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant that

intrusion." Id. at 21. Such an investigatory stop "must be viewed in the light of the

totality of the surrounding circumstances" presented to the police officer.       State v.

Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), paragraph one of the syllabus.
Richland County, Case No. 16CA102                                                        5


      {¶13} During the suppression hearing, the trial court heard from Sergeant

Kilgore and Officer Davis. Sergeant Kilgore testified on February 3, 2016, a citizen

called the police to describe a "white male, gray jacket and blue jeans" that was

observed "pacing back, appeared as if he was waiting on someone. Their terms were, it

appeared as if he was waiting on someone to buy drugs." August 10, 2016 T. at 5-6.

Sergeant Kilgore did not "find anything on the street that we initially got called out on,"

but as he was driving past Plainview, he "looked down the street and observed a male

matching that description." Id. at 6. The distance from the call location to Plainview

was a walkable distance during the time the police were responding. Id. at 7. Because

the area had a prominent neighborhood watch group, Sergeant Kilgore "felt he had a

duty to at least check the individual." Id. The individual matching the description was

Corey West, who was walking in the lane of traffic with appellant. Id. at 8. Sergeant

Kilgore could have issued them a citation for jaywalking, but chose not to do so. Id. at

11. Sergeant Kilgore's initial reaction was to identify the individuals and conduct a pat-

down search for weapons. Id. at 9, 12. Sergeant Kilgore explained "[w]e normally do

conduct a pat down on everyone we come into contact with."            Id. at 21.   He also

explained, "normally with drug use or drug sales, it is common to find individuals with

some sort of weapon, whether it be a knife, gun, lots of needles." T. at 12. In his

career, he has seen weapons and drugs together sixty to seventy-five percent of the

time. Id. During the pat-down of appellant, Sergeant Kilgore "felt something in his

pocket that was, to me, felt like it was very consistent with a hypodermic needle." Id. at

9. Sergeant Kilgore asked appellant if he could retrieve the item, and he said yes, then

immediately rescinded the consent. Id. at 10. Sergeant Kilgore asked appellant if the
Richland County, Case No. 16CA102                                                            6

needle was capped and appellant answered in the affirmative.               Id.   At that point,

Sergeant Kilgore placed appellant in handcuffs and conducted a search of his person

incident to an arrest. Id. Sergeant Kilgore discovered heroin and cocaine on appellant.

Id. Other than the citizen's telephone call, Sergeant Kilgore admitted there was nothing

about appellant that made him look suspicious or that he was up to no good. Id. at 20-

21. He had no reason to believe appellant had drugs and/or weapons. Id. at 21. He

stated the area was not a necessarily high area for drug activity, but he had made many

arrests for drugs in that area prior to the date in question. Id. at 22.

       {¶14} Officer Davis testified although he was first on the scene, Sergeant Kilgore

took over after he arrived and Officer Davis was only there for officer safety purposes.

Id. at 43. He did not pat-down anyone or radio dispatch about anyone. Id. Officer

Davis corroborated that the individuals were walking in the roadway. Id. at 44. Officer

Davis stated the initial reason for why they looked suspicious was the citizen's call, "but

the probable cause is because they were walking in the roadway." Id. Officer Davis

stated he does not always conduct pat-downs for officer safety when he stops people

for walking in the roadway. Id. at 47. He normally will not do a pat-down for jaywalking

unless he has consent. Id. at 48.

       {¶15} In denying the motion to suppress, the trial court stated on the record: "As

they [the officers] approached these people they could see these people were both

walking in the road which was a violation of law. That gave them basis to head that

way, but also to stop those people specifically, and that permitted them to do a pat

down." Id. at 63.

       {¶16} As the Terry, supra, court held at 30:
Richland County, Case No. 16CA102                                                       7




              We merely hold today that where 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.



       {¶17} The citizen's call came in for an individual matching the description of Mr.

West. Appellant was not mentioned or identified in the telephone call. Upon stopping

both Mr. West and appellant, Sergeant Kilgore admitted he had no reason to be

suspicious of appellant. He agreed he did not have any reason to suspect appellant of

having drugs and/or weapons. There is nothing in the record to establish the police

officers observed unusual conduct leading them to reasonably conclude in light of their

experience that the individuals they were dealing with may be armed and dangerous.

Sergeant Kilgore explained he normally conducted a pat-down on everyone he comes

into contact with, even if the individual does not look armed and dangerous. Sergeant

Kilgore was not alone with the two individuals, as Officer Davis testified he remained on

the scene for officer safety.
Richland County, Case No. 16CA102                                                   8


       {¶18} Upon review, we find the facts do not support a reasonable specific and

articulable suspicion that appellant was armed and dangerous justifying the need for a

pat-down/weapons check for officer safety.       The answer to the question about the

capping of the needle was tainted by the improper pat-down search. We find the trial

court erred in denying the motion to suppress.

       {¶19} Assignment of Error I is granted. Assignment of Error II is moot.

       {¶20} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby reversed, and the matter is remanded to said court for further proceedings

consistent with this opinion.

By Wise, Earle, J.

Delaney, P.J. and

Hoffman, J. concur.




EEW/sg 608
