[Cite as State v. Brandon, 2016-Ohio-271.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. Sheila G. Farmer, P.J.
                                              :       Hon. W. Scott Gwin, J.
                        Plaintiff-Appellant   :       Hon. William B. Hoffman, J.
                                              :
-vs-                                          :
                                              :       Case No. CT2015-0039
RONALD J. BRANDON                             :
                                              :
                     Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Muskingum
                                                  County Court of Common Pleas, Case No.
                                                  CR2014-0075




JUDGMENT:                                         Reversed and Remanded



DATE OF JUDGMENT ENTRY:                           January 25, 2016

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

D. MICHAEL HADDOX                                 JOHN WEAVER
Muskingum County Prosecutor                       542 S. Drexel Ave.
27 N. Fifth St.                                   Bexley, OH 43209
Box 189
Zanesville, OH 43702
Muskingum County, Case No. CT2015-0039                                                    2

Gwin, P.J.

      {¶1}   Defendant-appellant Ronald Brandon [“Brandon”] appeals his conviction

and sentence from the Muskingum County Court of Common Pleas on one count of

possession of drugs. Plaintiff-appellee is the State of Ohio.

                                 Facts and Procedural History

      {¶2}    On March 5, 2014, the Muskingum County Grand Jury indicted Brandon on

one count of possession of drugs (cocaine) in violation of R.C. 2925.11(A), a felony of

the fourth degree, and one count of possession of drugs (marijuana) in violation of R.C.

2925.11(A), a minor misdemeanor. At his arraignment on March 26, 2014, Brandon

entered a plea of not guilty to the charges.

      {¶3}   On May 22, 2014, Brandon filed a Motion to Suppress Evidence. Brandon,

in his motion, argued that he was illegally seized and detained and that the two

subsequent searches of his person and his vehicle were illegal. The state filed a

response to appellant’s motion on May 30, 2014.

      {¶4}   On June 3, 2014, the trial court held an evidentiary hearing on the motion.

At the conclusion of the hearing, the trial court denied the Motion to Suppress, stating its

belief that the “officers acted appropriately and reasonably under the circumstances.” No

written findings of fact were filed. Nor was there an entry memorializing the court’s

decision.

      {¶5}   On June 4, 2014, appellant pleaded no contest to possession of drugs

(cocaine) in violation of R.C. 2925.11(A). The remaining count was dismissed. Pursuant

to an Entry filed on August 29, 2014, appellant was sentenced to 11 months in prison.
Muskingum County, Case No. CT2015-0039                                                    3


      {¶6}   Brandon appealed and this court remanded the case to the trial court to

make findings of fact and conclusions of law based upon the evidence adduced at the

suppression hearing. See, State v. Brandon, 5th Dist. Muskingum No. CT2014-0039,

2015-Ohio-2072.

      {¶7}   On July 2, 2015, the trial court filed findings of fact and conclusions of law

in support of the denial of Brandon’s motion to suppress.

      {¶8}   Brandon filed a notice of appeal on Aug. 3, 2015.

                                     Assignments of Error

      {¶9}   Brandon raises three assignments of error,

      {¶10} “I. THE TRIAL COURT INCORRECTLY DENIED APPELLANT'S MOTION

TO SUPPRESS EVIDENCE.

      {¶11} “II. THE TRIAL COURT'S FINDINGS OF FACT WERE AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

      {¶12} “III. THE TRIAL COURT APPLIED THE WRONG STANDARD WHEN

DECIDING THE MOTION TO SUPPRESS AND ERRED AS A MATTER OF LAW.”

                                            Analysis

      {¶13} Brandon’s three assignments of error relates to the propriety of the trial

court’s overruling of his motion to suppress. Subsumed within this generalized objection

are three challenges to the trial court's ruling. Specifically, appellant contends that: (1)

he was arrested without probable cause; (2) there was no reasonable suspicion to justify

a Terry stop (3) no reasonable suspicion existed to justify a belief that Brandon was

armed and dangerous.
Muskingum County, Case No. CT2015-0039                                                     4


      Standard of Review.

      {¶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, 1995-Ohio-243, 652 N.E.2d 988;

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.

      Officers Encounter with Brandon.

      {¶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,

¶23–27. The first is contact initiated by a police officer for purposes of investigation.
Muskingum County, Case No. CT2015-0039                                                       5


“[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

States 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. 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. In holding that
Muskingum County, Case No. CT2015-0039                                                 6


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 simply shrug his shoulders and allow a crime

      to occur or a criminal to escape. On the contrary, Terry recognizes that it

      may be the essence of good police work to adopt an intermediate response.

      A brief stop of a suspicious individual, in order to determine his identity or

      to maintain the status quo momentarily while obtaining more information,

      may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 145–47, 92 S.Ct. 1921, 1923–24, 32 L.Ed.2d

612(1972).

      {¶17} The third type of contact arises when an officer has “probable cause to

believe a crime has been committed and the person stopped committed it.” Richardson,

2005-Ohio-554, ¶27; Flowers, 909 F.2d at 147. A warrantless arrest is constitutionally

valid if: “[a]t the moment the arrest was made, the officers had probable cause to make

it-whether at that moment the facts and circumstances within their knowledge and of

which they had reasonably trustworthy information were sufficient to warrant a prudent

man in believing that the * * * [individual] had committed or was committing an offense.”

State v. Heston, 29 Ohio St.2d 152, 155–156, 280 N.E.2d 376(1972), quoting Beck v.
Muskingum County, Case No. CT2015-0039                                                    7

Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142(1964). “The principal components

of a determination of reasonable suspicion or probable cause will be the events which

occurred leading up to the stop or search, and then the decision whether these historical

facts, viewed from the standpoint of an objectively reasonable police officer, amount to

reasonable suspicion or to probable cause.” Ornelas v. United States, 517 U.S. 690,

696, 116 S.Ct. 1657, 1661–1162(1996). A police officer may draw inferences based on

his own experience in deciding whether probable cause exists. See, e.g., United States

v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589(1975).

      {¶18} The Ohio Supreme Court has held that a police officer's statement “Hey,

come here a minute,” while nominally couched in the form of a demand, is actually a

request that a citizen is free to regard or to disregard. State v. Smith, 45 Ohio St.3d 255,

258–259, 544 N.E.2d 239, 242(1989), reversed sub nom. Smith v. Ohio, 494 U.S. 541,

110 S.Ct. 1288, 108 L.Ed.2d 464(1990); State v. Crossen, 5th Dist. Ashland No. 2010-

COA-027, 2011-Ohio-2509, ¶13.

      {¶19} In the case at bar, the officers did not stop the vehicle that Brandon was

driving. The officers were in an unmarked, undercover vehicle that never activated lights

or siren. The officers never motioned or otherwise requested Brandon to pull over or to

stop the vehicle. Accordingly, the officers’ approach and encounter with the stationary

vehicle was consensual in nature, thereby making the Fourth Amendment inapplicable.

The officers’ request for appellee’s identification was permissible. INS v. Delgado, 466

U.S. 210, 216, 104 S.Ct. 1758, 1762-1763, 80 L.Ed.2d 247. Neither officer ordered

Brandon to get out of his car; rather, Brandon testified that he voluntarily got out of the

car to speak to the officers. (T. at 48; 56).
Muskingum County, Case No. CT2015-0039                                                         8


      Terry pat-down protective search.

      {¶20} Authority to conduct a pat down search does not flow automatically from a

lawful stop and a separate inquiry is required. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968). The Fourth Amendment requires an officer to have a

“reasonable fear for his own or others’ safety” before frisking. Id. Specifically, “[t]he officer

... must be able to articulate something more than an ‘inchoate and unparticularized

suspicion or hunch.’” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104

L.Ed.2d 1 (1989), citing Terry, supra, 392 U.S. at 27. Whether that standard is met must

be determined from the standpoint of an objectively reasonable police officer, without

reference to the actual motivations of the individual officers involved. United States v.

Hill, 131 F.3d 1056, 1059 (D.C.Cir.1997), citing Ornelas v. United States, 517 U.S. 690,

696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

      {¶21} In State v. Lozada, 92 Ohio St.3d 74, 2001–Ohio–149, 748 N.E.2d 520, the

Ohio Supreme Court had the opportunity to discuss detentions and searches similar to

the one in the case at bar. In Lozada, an Ohio State Trooper stopped a vehicle for

speeding, and asked the driver to exit his vehicle. Even though the driver denied having

any weapons, the trooper patted him down and found two small bags of cocaine.

      {¶22} The Supreme Court found the initial traffic stop was proper, and the issue

presented was whether it was reasonable to search the appellant for weapons and place

him in a patrol car. The Supreme Court found whether an officer may pat a person down

before placing him in a vehicle depends upon the legitimacy of placing him in the police

car in the first place, Lozada at 523, citing People v. Kinsella, 139 A.D.2d 909, 527

N.Y.S.2d 899(1988). The Lozada court noted numerous courts have held an officer may
Muskingum County, Case No. CT2015-0039                                                        9


ask a driver to sit in his or her patrol car to facilitate the traffic stop, but the question of

whether the driver may be searched for weapons before entering the patrol car is more

problematic. In Lozada, the court found the placement of a driver in a patrol car during a

routine traffic stop may be constitutionally permissible, but may not be used simply to

justify a search of the driver. The intrusion of asking a driver to sit in a patrol car to

facilitate a traffic stop may be relatively minimal, but the level of intrusion dramatically

increases when the person is subject to a pat-down search for weapons before entering

the patrol car. The Supreme Court found this violates the requirement of specific and

articulable belief an individual is armed and dangerous first set forth in Terry v. Ohio, 392

U.S. 1, 88 Sup.Ct. 1868, 20 L.Ed.2d 889 (1969).

      {¶23} The Lozada court held it is unreasonable for an officer to search a driver for

weapons before placing him or her in a patrol car if the sole reason for placing the driver

in the patrol car during the investigation is for the convenience of the officer. The

Supreme Court found, however, it is reasonable to place a driver in a patrol car and even

subject him or her to a pat-down search for weapons where placement of the person in

the patrol car is justified to protect the officer or the driver from dangerous conditions,

Lozada at 525, citations omitted. The court gave the example of a hostile crowd

threatening the officer and the driver, as an example of a dangerous condition

necessitating the placement of the driver into the patrol car. Ultimately, the court

concluded that no dangerous condition existed and that the state trooper’s search of the

defendant for weapons before placing him in the patrol car was unreasonable. Id. at 81.

Accord, State v. Scarbury, Fifth Dist. Knox No. 03CA000016, 2003-Ohio-6483, ¶¶15-17.

      {¶24} In the case at bar, Detective Randy Wilson testified,
Muskingum County, Case No. CT2015-0039                                                 10


            I remember Captain Welker asking Ronald if he would come to the

     office and speak to us, and he said he would; although, he said he didn't

     want to ride down with us and he wanted to drive himself. He wasn't given

     any sort of answer for that, whether that was going to be allowed or not. At

     that point we had not checked his driving status to see if it was valid, which

     would be something I would do. If I'm going to allow somebody to drive a

     vehicle back to our office once I'm out with them I'm going to make sure

     they're valid.

            So at that point Captain Welker started to check the interior of the

     vehicle, told him he was going to check the interior of the vehicle for

     weapons. Ronald stepped away from the door. We were backed up a few

     steps. And I asked Ronald if he had anything on his person and told him

     that I was going to pat him down. And the reason for that was if we were

     going to transport him down there I was going to be concerned for my safety

     if he's going to get in one of our vehicles. I wanted to make sure he didn't

     have any weapons. And the way he was acting I was concerned that he --

     he may have a weapon on him.

            Q.        Did his reluctance to accept your offer to drive him down, did

     that raise any particular red flags?

            A.        Yes.

            Q.        In -- in what way?

            A.        Why wouldn't he ride down with us. [sic.] You know, we hadn't

     -- we didn't tell him he was under arrest for anything. You know, we merely
Muskingum County, Case No. CT2015-0039                                                  11

      wanted to speak to him about the missing juvenile. And I had asked him if

      he was living at that location, which he denied. But any time I get a complaint

      on one of these sex offenders, you know, just because they tell me, no, I'm

      not staying there, I don't just walk away from it. At that point I want to sit

      down with them in depth and speak to them about it.

             Q.     Okay. But as far as him not wanting to get in your car, did that

      cause you to believe he may have contraband or a weapon on his person?

             A.     Yes.

             Q.     And so at that point you say that you asked -- or told him that

      you were going to pat him down?

             A.     Yes.

             Q.     All right. And your reason for doing that was what?

             A.     Officer safety.

T. at 36-38. (Emphasis added). Detective Captain Steve Welker testified,

             Q.     And then you said to him [Brandon], come downtown and

      make a statement?

             A.     I don't remember that.

             Q.     But –

             A.     We -- we could have discussed that. I honestly don't

      remember. By this time I believe Detective Wilson was there, and he and -

      - and Ron were talking then. By that time I think I was looking in the car.

                                           ***
Muskingum County, Case No. CT2015-0039                                               12


             Q.     All right. You don't remember but you may have told him

      [Brandon] I want you to come downtown and make a statement?

             A.     That's not something I would say. I might ask him to come

      downtown -- to start with, we weren't downtown anyway, so I'm sure I

      wouldn't have said downtown.

             Q.     Okay.

             A.     Secondly, I would never say come downtown to make a

      statement. That's not how I would say it. I would say, would you come to

      the office and talk to us. I might have said something like that.

             Q.     Okay. And -- and Mr. Brandon said yes?

             A.     I don't remember if we even had that conversation for sure.

T. at 26-27. (Emphasis added).

             There is no doubt that at some point in the investigative process,

      police procedures can qualitatively and quantitatively be so intrusive with

      respect to a suspect’s freedom of movement and privacy interests as to

      trigger the full protection of the Fourth and Fourteenth Amendments.

      Dunaway, [442 U.S.] at 212 [2256]; Florida v. Royer, 460 U.S. 491, 499 [103

      S.Ct. 1319, 1325, 75 L.Ed.2d 229] (1983) (plurality opinion). And our view

      continues to be that the line is crossed when the police, without probable

      cause or a warrant, forcibly remove a person from his home or other place

      in which he is entitled to be and transport him to the police station, where

      he is detained, although briefly, for investigative purposes. We adhere to

      the view that such seizures, at least where not under judicial supervision,
Muskingum County, Case No. CT2015-0039                                                     13


       are sufficiently like arrests to invoke the traditional rule that arrests may

       constitutionally be made only on probable cause.

Hayes v. Florida, 470 U.S. 811, 815–16, 105 S.Ct. 1643, 1646–47, 84 L.Ed.2d 705 (1985)

(footnote omitted).

       {¶25} In the case at bar, both officers concede that Brandon was not under arrest

when asked by the officers to come down to the office and make a statement. It is further

clear that Detective Wilson corroborated Brandon’s testimony that Brandon declined the

officers’ invitation to ride to the office in the unmarked police car; rather Brandon told the

officers that he would drive his own vehicle voluntarily to the office to answer any further

questions the officers might have for him. It is also evident that the officers had no

legitimate reason for placing Brandon in the unmarked police car and transporting him

to the office for questioning. Detective Captain Welker had found no weapon inside

Brandon’s vehicle prior to the request. Brandon and the officers were in close proximity

while Brandon answered the questions the officers posed to him, without having been

patted down for weapons. It was daytime on a public street. The officers did not express

any reasonable, articulable suspicion that Brandon was armed. Brandon never

consented to the search of his car or his person.

       {¶26} We conclude the officers did not provide sufficient reasons to justify a

reasonable belief Brandon was armed and presently dangerous. Accordingly, the pat

down search of Brandon was illegal. Further, it was unreasonable for the officers to

conduct a pat down search of Brandon before placing Brandon in the unmarked police

car and transporting him to the office for questioning.
Muskingum County, Case No. CT2015-0039                                           14


      {¶27} The judgment of the Muskingum County Court of Common Pleas is

reversed, and this case is remanded to that Court for proceedings in accordance with

our opinion and the law.

Gwin, J.,

Farmer, P.J., and

Hoffman, J., concur
