[Cite as State v. Byrd, 2012-Ohio-2659.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :            C.A. CASE NO. 24583

v.                                                 :            T.C. NO.   10CR1804

RODNEY C. BYRD                                     :            (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellant                 :

                                                   :

                                           ..........

                                           OPINION

                         Rendered on the    15th       day of       June      , 2012.

                                           ..........

MELISSA M. REPLOGLE, Atty. Reg. No. 0084215, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

KRISTINE E. COMUNALE, Atty. Reg. No. 0062037, Assistant Public Defender, 117 S.
Main Street, Suite 400, Dayton, Ohio 45422
      Attorney for Defendant-Appellant

                                           ..........

FROELICH, J.

        {¶ 1}      Rodney Byrd was charged with possession of crack cocaine. He moved to

suppress the crack cocaine, and after a hearing, the trial court overruled the motion. Byrd

pled no contest to the charge and was sentenced to community control. Byrd appeals from
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his conviction, claiming that the trial court erred in denying his motion to suppress. He

contends that the pat down was unlawful because it was unjustified and, even if it were

justified, it was too broad.

        {¶ 2}     In reviewing the trial court’s ruling on a motion to suppress, we accept the

trial court’s findings of fact if they are supported by competent, credible evidence. State v.

Olden, 2d Dist. Montgomery No. 23137, 2010-Ohio-215, ¶ 21. But we “‘independently

determine, as a matter of law, whether the facts meet the appropriate legal standard.’” Id.,

at ¶ 21, quoting State v. Morgan, 2d Dist. Montgomery No. 18985, 2002-Ohio-268.

        {¶ 3}    The trial court stated its findings of fact, analysis, and legal conclusions on

the record at a hearing held a few days after the evidentiary hearing on the motion to

suppress.    The trial court’s statement of the facts, which we find are supported by

competent, credible evidence, is as follows:

                On June 6th, 2010, Dayton Officer John Howard and his partner,

        Officer Beavers, were working a special assignment prompted by a series of

        burglaries occurring in the Belmont and Patterson Park neighborhoods in

        Dayton’s east side.

                The first part of the shift, which was the shift occurring between

        8:00 p.m. and 4:00 a.m., was spent in the Belmont/Patterson Park

        neighborhoods with the second part of the shift being spent in the area where

        it was suspected that the items taken in the burglaries were either being

        exchanged for drugs or sold to purchase drugs.

                This second area, generally speaking, is in the area of Xenia Avenue,
                                                                               3

Burkhardt Avenue and Huffman Avenue, again, on Dayton’s east end.

       Officers Howard and Beavers, at 11:09 p.m., were in the second phase

of the shift. The officers were patrolling Martz Avenue which runs from

Burkhardt Avenue to Huffman Avenue when they observed Mr. Byrd

walking in the roadway on Martz, thus committing a jaywalking violation.

       The officers decided to stop Mr. Byrd to issue him a citation for the

jaywalking offense.   The stop of Mr. Byrd occurred, it seems, without

incident.

       Officers Howard and Beavers had an encounter with Mr. Byrd the

previous day, June 5th, based upon a citizen’s report that Mr. Byrd and two

other individuals were armed and selling drugs. This encounter with Mr.

Byrd, which occurred about two blocks from Martz Avenue, failed to reveal

either drugs or guns on Mr. Byrd’s person.

       Further, based on a field interview note displayed on the police

computer within the cruiser, Officer Howard was aware that Mr. Byrd some

time in 2009, reportedly ran from a (quote) dope house (end quote).

       Finally, the officers were aware that Mr. Byrd is apparently a member

of a gang known as the Dayton View Hustlers and that Mr. Byrd, as a result,

is on a list called the CIRGV list, the Community Initiative to Reduce Gun

Violence list.

       ***

       Officer Howard, after grabbing Mr. Byrd’s shirt, asked Mr. Byrd if he
                                                                                    4

had anything in his possession, guns, knives, weapons, anything that can hurt

me. Mr. Byrd responded in the negative.

         Officer Howard, in a conversation that Officer Howard described as

being fluid, then asked Mr. Byrd: Do you have anything I need to know

about? Mr. Byrd informed Officer Howard that in his right jeans’ pocket he

had a bag of marijuana.

         This is an appropriate time to discuss the clothing Mr. Byrd was

wearing. And I must admit I had some difficulty; I listened to that testimony

on more than one occasion about the clothing that Mr. Byrd had on that day.

But I think I understand.

         Mr. Byrd, in addition to a long shirt that he was wearing outside of his

pants, was wearing a pair of jean shorts which were low on his body with the

top of the pants, what I’ll call the waistband, being positioned below Mr.

Byrd’s buttocks.     And actually somewhere around Mr. Byrd’s mid-thigh

area, and being secured in this position with a belt.

         Mr. Byrd, underneath the jean shorts, was also wearing a pair of nylon

basketball shorts, with the shorts worn in a more traditional fashion; that is,

with the waistband being around that which would approximate Mr. Byrd’s

waist.

         However, the bottom of the right pocket had been cut out, allowing

something dropped into this pocket to fall through the pocket and become

entrapped in the lining of the shorts.
                                                                                 5

       Officer Howard, upon being informed of the marijuana, reached into

Mr. Byrd’s pant pocket to retrieve the marijuana. [Officer Howard], in doing

so, felt two items that felt like small rocks or pebbles. Officer [Howard]

indicated that when he initially felt the two items, he did not immediately

know what the items were.

       ***

       And I note that Officer Howard also testified that the two rock-like

items appeared to be located in the lining of the basketball shorts, near the

bottom of the shorts.

       Officer Howard, upon feeling the two items, which he did not believe

to be weapons, pulled up Mr. Byrd’s jeans and conducted a pat down of the

outside of the jeans. Officer Howard once again felt the two pebble-like

objects.

       And this is testimony that I listened to, quite honestly, over and over

again, trying to make sure that I understood that which Officer Howard was

conveying. And I have concluded that, after very carefully listening to the

testimony on multiple occasions, that Officer Howard testified as follows:

       Officer Howard testified how the objects felt to him – I’m talking

about when he was doing the pat-down search on the outside of the jeans after

the retrieval of the marijuana. He testified about previous recovery of crack

or heroin in the lining of mesh basketball shorts and he concluded, based

upon that which he was feeling and his experience, that the objects were
                                                                                               6

       either crack or heroin.

               Officer Howard at this point retrieved the items which, of course,

       turned out to be crack cocaine.

               The final factual issue concerns Officer Howard’s decision to perform

       a pat-down search upon Mr. Byrd.           Officer Howard indicated that the

       rationale for this decision included the area where the stop occurred and Mr.

       Byrd’s membership with the Dayton View Hustlers.              And the criminal

       activity identified with the group know as the Dayton View Hustlers.

       [Howard had testified that this group is a violent gang that “has been

       responsible for eight of the homicides that we’ve had in the 2009 * * * and

       six of the ones that we had in 2008.” (Tr. 33-34). Howard said that gang

       members have been convicted of federal gun-related charges. It is extremely

       likely, said Howard, that members of this gang are armed.] (Tr. 42-46).

       {¶ 4}     The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968).         Under Terry, police officers may briefly stop and/or

temporarily detain individuals in order to investigate possible criminal activity if the officers

have a reasonable, articulable suspicion that criminal activity may be afoot. State v. Martin,

2d Dist. Montgomery No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry. We determine the

existence of reasonable suspicion by evaluating the totality of the circumstances, considering

those circumstances “through the eyes of the reasonable and prudent police officer on the

scene who must react to events as they unfold.” State v. Heard, 2d Dist. Montgomery No.
                                                                                            7

19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, 565

N.E.2d 1271 (1991). The officer must have more than an inchoate hunch or suspicion to

justify an investigatory stop.

          {¶ 5}   “Authority to conduct a patdown search for weapons does not automatically

flow from a lawful stop[.]”        State v. Stewart, 2d Dist. Montgomery No. 19961,

2004-Ohio-1319, ¶ 16. Once a lawful stop has been made, the police may conduct a limited

protective search for concealed weapons if the officer reasonably believes that the suspect

may be armed or a danger to the officer or to others. State v. Evans, 67 Ohio St.3d 405,

408, 618 N.E.2d 162 (1993); State v. Molette, 2d Dist. Montgomery No. 19694,

2003-Ohio-5965, ¶ 13. “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 * * *.”

Evans at 408, quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612

(1972).

          {¶ 6}   Under the plain feel doctrine, an officer conducting a patdown for weapons

may lawfully seize an object if he has probable cause to believe that the item is contraband.

Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); State

v. Phillips, 155 Ohio App.3d 149, 2003-Ohio-5742, 799 N.E.2d 653, ¶ 41-42 (2d Dist.).

The “incriminating character” of the object must be “immediately apparent,” meaning that

the police have probable cause to associate an object with criminal activity. Dickerson, 508

U.S. at 375; State v. Buckner, 2d Dist. Montgomery No. 21892, 2007-Ohio-4392. The

officer may not manipulate the object to identify the object or to determine its incriminating

nature.     Dickerson, supra; State v. Lawson, 180 Ohio App.3d 516, 906 N.E.2d 443,
                                                                                             8

2009-Ohio-62, ¶ 25 (2d Dist.).

        {¶ 7}    In the present case, the police observed Byrd jaywalking, and they were

authorized to stop Byrd to issue him a citation for that offense. See State v. Lovins, 2d Dist.

Montgomery No. 23530, 2010-Ohio-3916, ¶ 11.           Once Byrd admitted, in what was a

non-custodial dialogue, to having marijuana in his pocket, the officers were permitted to go

into his pocket and to seize the marijuana. We agree with the trial court that the seizure of

the marijuana was lawful.

        {¶ 8}    While retrieving the marijuana, Officer Howard felt two items that felt like

small rocks or pebbles, but he “did not immediately know what the items were.” Howard

did not, however, believe the items were weapons. Because the incriminating nature of the

item was not immediately apparent, the officer could not manipulate the object or reach into

Byrd’s pocket to determine what it was or ascertain its incriminating nature. Dickerson’s

plain feel exception was not applicable.

        {¶ 9}     The officer then pulled up the jean shorts and conducted a pat down during

which he felt what he concluded was crack cocaine or heroin, both of which are contraband.

Thus, the incriminating nature of the “small items” in Byrd’s pants was discovered during

this pat down, and the seizure of the crack cocaine was lawful to the extent this pat down

itself was constitutionally justified.

        {¶ 10} In addressing this issue, the trial court first acknowledged that a credible

argument could be made that the pat down was not justified:

        It can certainly be argued that Mr. Byrd, since he had been cooperative, had

        made no threats or otherwise taken any action to trigger a concern, that he
                                                                                           9

       was armed and thus dangerous, that Officer Howard should simply have

       issued a citation for the marijuana, a citation for the jaywalking and not

       performed a pat-down search upon Mr. Byrd’s person.      (Tr. 52).

       {¶ 11} The trial court ultimately concluded that the pat down was justified, given

Byrd’s affiliation with the Dayton View Hustlers.      The court stated that “the criminal

activities associated with this group gave Officer Howard the needed articulable suspicion

that Mr. Byrd was armed and dangerous.” The court further considered that time of night

and the area of Dayton in which the stop had occurred. The court concluded that all of the

facts, considered together, created a reasonable belief that Byrd was armed and that the pat

down was justified even though Byrd was handcuffed when the pat down occurred. The

court noted that a handcuffed individual might still access a weapon and that “if Officer

Howard had not performed a pat-down search, Mr. Byrd, after the citations were issued,

would, of course, have been free to leave, leaving the officers in a dangerous, vulnerable

situation.”

       {¶ 12}   We disagree with the trial court’s conclusion that Officer Howard was

justified in patting down Byrd after retrieving the marijuana. The officer testified that the

decision to pat down Byrd was based on the area in which the stop occurred and Byrd’s gang

membership. Terry requires a particularized suspicion developed by the officer with respect

to each individual suspect. “One’s status as a gang member, however, even a gang member

with a known arrest or conviction record, does not, without more, create the reasonable and

articulable suspicion necessary to justify an investigative detention.”     United States v.

Daniel, 804 F.Supp. 1330, 1335, fn. 10 (D.Nev.1992). Such knowledge may certainly be a
                                                                                             10

component of the required articulable suspicion, but it must be accompanied by something

more to ensure that an officer has a “particularized and objective basis” for suspicion.

(Internal citations omitted.) United States v. Amoroso, 257 F.Supp.2d 310, 315, fn. 9

(D.Me.2003).

       {¶ 13}    Here, the officer stopped Byrd for jaywalking. The officer had stopped

him the day before and found no weapons. Byrd was cooperative. The officer seized

marijuana which Byrd volunteered that he possessed.           The only testimony about the

neighborhood is that it was an area where it was suspected that stolen goods were sold for

drugs. There was insufficient basis to believe that this particular defendant at this particular

time and location was armed and dangerous and, thus, the pat down, during which the crack

cocaine was found, was not permissible.

       {¶ 14} The sole assignment of error is sustained.

       {¶ 15} The judgment of the trial court will be reversed, and the case will be

remanded for further proceedings.

                                          ..........

GRADY, P.J., concurs.

HALL, J., dissenting:

       {¶ 16}    I disagree and would affirm the denial of the defendant’s motion to

suppress.

       {¶ 17} The discrete questions here are whether the arresting officer was

constitutionally permitted to continue to pat down the defendant after the defendant admitted

that he had a small amount of marijuana in his possession, and whether the plain feel
                                                                                               11

doctrine allowed retrieval of crack cocaine from the defendants shorts.

           {¶ 18}    With regard to the pat down, the trial court’s reasoning, with parentheticals

added, was as follows:

                    * * * Mr. Byrd’s affiliation with the Dayton View Hustlers [a local

           gang] and the criminal activities associated with this group gave Officer

           Howard the needed articulable suspicion that Mr. Byrd was armed and

           dangerous.

                    This is particularly so given the time of night that the stop occurred

           [about 11:00 PM] and the area in which the stop occurred. I concluded that

           these factors come together to make the pat-down decision more than a mere

           hunch. This is so even though Mr. Byrd was handcuffed at the time the

           pat-down search occurred.

                    I come to this conclusion first because it has been recognized that a

           handcuffed individual may still be able to gain access to a weapon. This was

           noted again by the recent decision in State v. Victoria, 2010 Ohio 4536 at

           paragraph 33.

                    And secondly, and perhaps more importantly, if Officer Howard had

           not performed a pat-down search, Mr. Byrd, after the citations were issued,

           would, of course, have been free to leave, leaving the officers in a dangerous,

           vulnerable situation. (Tr. 52-53).

           {¶ 19}    In addition, the court’s facts indicate further reasonable suspicion by the

officer:
                                                                                          12

                Officers Howard and Beavers had an encounter with Mr. Byrd the

       previous day, June 5th, based upon a citizen’s report that Mr. Byrd and two

       other individuals were armed and selling drugs. This encounter with Mr.

       Byrd, which occurred about two blocks from Martz Avenue, failed to reveal

       either drugs or guns on Mr. Byrd’s person.

                Further, based on a field interview note displayed on the police

       computer within the cruiser, Officer Howard was aware that Mr. Byrd some

       time in 2009, reportedly ran from a (quote) dope house (end quote).

                Finally, the officers were aware that Mr. Byrd is apparently a member

       of a gang known as the Dayton View Hustlers and that Mr. Byrd, as a result,

       is on a list called the CIRGV list, the Community Initiative to Reduce Gun

       Violence list.

                                              ***

                Howard had testified that this group [Dayton View Hustlers] is a violent gang

       that “has been responsible for eight of the homicides that we’ve had in the 2009 * * *

       and six of the ones that we had in 2008.” (Tr. 33-34). Howard said that gang

       members have been convicted of federal gun-related charges. It is extremely likely,

       said Howard, that members of this gang are armed.

       {¶ 20}    Given all of the above undisputed factual circumstances, I disagree that

mere gang membership was the officers’ only justification for the pat down. I agree with the

trial court that a pat down of the defendant was constitutionally justified.

       {¶ 21}    With regard to the plain-feel doctrine, the trial court concluded: “Officer
                                                                                            13

Howard was lawfully performing a pat-down search. He, upon feeling the objects, felt they

were contraband and there is nothing in the record to suggest that he manipulated the objects

before he came to this conclusion.” (Tr. 53-54). We should defer to the trial court’s factual

determination that the officer did not manipulate the objects he knew were contraband.

Accordingly, I also agree with the trial court’s resolution of the plain-feel issue.

       {¶ 22}    I would affirm the trial court’s denial of the defendant’s motion to suppress.

                                          ..........

Copies mailed to:

Melissa M. Replogle
Kristine E. Comunale
Hon. Michael L. Tucker
