[Cite as State v. Robinson, 2012-Ohio-2428.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                        C.A. No.       10CA0022

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MAURICE D. ROBINSON                                  COURT OF COMMON PLEAS
                                                     COUNTY OF WAYNE, OHIO
        Appellant                                    CASE No.   10-CR-0341

                                 DECISION AND JOURNAL ENTRY

Dated: June 4, 2012



        MOORE, Judge.

        {¶1}     Appellant, Maurice Robinson, appeals the judgment of the Wayne County Court

of Common Pleas. We reverse.

                                                I.

        {¶2}     On July 25, 2010, Officer Quinn McConnell of the City of Wooster Police

Department initiated a traffic stop on Maurice Robinson which ultimately led to the officer’s

search of Robinson and the discovery of cash in Robinson’s pockets and of two bags of alleged

cocaine in Robinson’s sock. The Wayne County Grand Jury indicted Robinson, charging him

with two counts of drug possession, in violation of R.C. 2925.11(A), with one of these counts

constituting a second degree felony, and the other constituting a fourth degree felony.

        {¶3}     Robinson moved to suppress evidence, the discovery of which he argued resulted

from an illegal traffic stop and an illegal search. After holding an evidentiary hearing, the trial

court denied his motion. Robinson subsequently amended his plea to no contest, and the trial
                                                   2


court found him guilty on both counts. On April 7, 2011, the trial court sentenced Robinson to

two years of incarceration on the second degree felony and twelve months of incarceration on the

fourth degree felony, to be served concurrently.

       {¶4}    Robinson timely filed a notice of appeal and presents one assignment of error for

our review.

                                                II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DENIED [ROBINSON]’S MOTION
       TO SUPPRESS EVIDENCE IN VIOLATION OF HIS RIGHT AGAINST
       UNREASONABLE SEARCH AND SEIZURE AS GUARANTEED BY THE
       FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND
       ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.

       {¶5}    In his sole assignment of error, Robinson argues that the trial court erred in

denying his motion to suppress. We agree.

       Appellate review of a motion to suppress presents a mixed question of law and
       fact. 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. Consequently, an appellate court must
       accept the trial court’s findings of fact if they are supported by competent,
       credible evidence. 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.

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶6}    After careful review of the record, we accept the trial court’s findings of fact set

forth below, as they are supported by competent, credible evidence. See id. On July 25, 2010,

Officer McConnell observed a truck with out-of-town plates parked at Wooster Towers, which is

located in an area known for drug trafficking. The officer learned that the truck was registered to

Robinson, who had a prior drug conviction. When the officer saw Robinson leave Wooster

Towers driving his truck, the officer followed and observed Robinson commit two traffic
                                                3


violations. Officer McConnell stopped Robinson, and called for the K9 unit to come to the scene

to perform a drug sniff while Officer McConnell prepared the citation. Robinson explained to

the officer that he was leaving Wooster Towers after dropping off an individual, and he was

driving home to Alliance, Ohio. Officer McConnell was familiar with the individual referenced

by Robinson as one involved in illegal drug activity.

       {¶7}    The K9 officer arrived, and Robinson became agitated and argumentative with the

K9 officer when the officer told him he intended to conduct a canine sniff. Robinson would not

respond to the officers’ questions of whether drugs were in the vehicle. During the canine sniff,

the canine alerted at the driver’s door, and Officer McConnell asked Robinson to exit the vehicle

and handcuffed him to prevent him from attempting to flee or to destroy contraband. Robinson

denied having any drugs. Officer McConnell then began a pat-down search of Robinson while

the K9 officer searched the vehicle.      Officer McConnell discovered a wad of money in

Robinson’s pocket. Shortly after the officer discovered the money, the K9 officer advised

Officer McConnell that he had discovered loose marijuana on the floor of the vehicle. Officer

McConnell requested that Robinson sit on the bumper of the cruiser and remove his shoes, and

Robinson complied. The officers then discovered two bags of cocaine in Robinson’s sock and

placed Robinson under arrest.

       {¶8}    On appeal, Robinson argues that the evidence obtained from the search of his

person should be suppressed as it was obtained through an unjustified search of his person, to

which he did not consent. The State contends that the trial court did not err in denying the

motion to suppress because Robinson consented to the search, the search was a justified pat-

down search pursuant to Terry v. Ohio, and the search was a proper search incident to arrest.

Exclusionary Rule
                                                 4


       {¶9}    The Fourth Amendment to the United States Constitution and Article I, Section

14, of the Ohio Constitution prohibit law enforcement from conducting unreasonable and

warrantless searches and seizures. “Warrantless searches are per se unreasonable under the

Fourth Amendment subject only to a few specifically established and well-delineated exceptions.

The state has the burden of establishing the application of one of the exceptions to this rule

designating warrantless searches as per se unreasonable.” (Internal citations and quotations

omitted.) State v. Kessler, 53 Ohio St.2d 204, 207 (1978). Courts are required to exclude

evidence obtained by means of searches and seizures that are found to violate the Fourth

Amendment. Mapp v. Ohio, 367 U.S. 643, 657 (1961).

       {¶10} A police-initiated stop of an automobile is a seizure under the Fourth Amendment

and falls within the purview of Terry v. Ohio, 392 U.S. 1 (1968). See Delaware v. Prouse, 440

U.S. 648, 653, 663 (1979). Therefore, officers must possess a reasonable suspicion of criminal

activity in order to justify a traffic stop. See Terry, 392 U.S. at 21. Here, on appeal Robinson

does not challenge the justification for his traffic stop or the canine sniff. Instead, Robinson

challenges the justification for the search of his person. The trial court concluded that “once a

trained drug dog alerts to the odor of drugs from a lawfully detained vehicle, an officer has

probable cause to search the vehicle for contraband. The search of [Robinson]’s vehicle and

person were justified.” Thus, it appears that the trial court determined that a positive canine alert

alone justified the search of the vehicle and Robinson. We disagree, as, in State v. Kay, we

declined to follow the precedent of the Tenth Circuit, which holds that “when a drug dog alerts

on a vehicle, it provides probable cause not only to search the vehicle, but probable cause to

arrest the occupants.” State v. Kay, 9th Dist. No. 09CA0018, 2009-Ohio-4801, ¶ 20. Therefore

in regard to the arrest or full search of the occupant of a vehicle, the canine alert alone does not
                                                  5


provide the requisite level of probable cause. See id. Thus, in the facts before us, the canine

alert did not justify the full search of Robinson’s person.

         {¶11} However, the trial court further found that “[Robinson] consented to the search by

removing his shoes when the officer asked him if he would be willing to remove his shoes.” In

addition, the State contends that the search of Robinson’s person was justified as a Terry pat-

down search and as a search incident to arrest. Because Robinson does not now dispute the

justification for, nor the duration of, the traffic stop, we will begin our discussion with the canine

sniff.

Actions Taken Upon Canine Alert

         {¶12} Here, Officer McConnell testified that, during the canine sniff, Robinson was

arguing with the officers about whether or not the police had the legal authority to conduct the

sniff without probable cause. In addition, Robinson continued to remove his hands from the

steering wheel after the officer repeatedly told him to keep his hands on the wheel, and then

Robinson attempted to open the car door. In response, the officer stepped into the vehicle door,

pushed it closed, and ordered him to stay in the vehicle. Thereafter, the officer noted that he had

Robinson’s full compliance. After the canine alerted, Officer McConnell ordered Robinson to

exit his vehicle and placed him in handcuffs.

         {¶13} During a valid traffic stop, officers may order the occupants of a vehicle out of the

vehicle pending completion of the stop without violating the Fourth Amendment. See Maryland

v. Wilson, 519 U.S. 408 (1997). Officer McConnell testified that, after Robinson exited the

vehicle, the officer placed him in handcuffs and told him “he was not under arrest, however he

was being taken into custody.”       The officer further explained, “I did so, again that’s not

something that’s typically done, um, I’ve only done that probably on a handful of occasions as
                                                  6


well, but due to the circumstances of his behavior and the nature of the traffic stop I just wanted

to keep him from attempting to reach for a weapon, attempt to destroy drugs or flee at that time.”

In the trial court’s findings of fact, it determined that Robinson “was handcuffed to prevent him

from attempting to flee or destroy any contraband.”

       {¶14} This Court has held that “Terry does recognize that the police are entitled to take

reasonable measures to ensure their own safety, including handcuffing should the situation

warrant it. The facts and circumstances must warrant the use of handcuffs; without an element

of risk, the officer safety rationale will not apply.” (Citations and quotations omitted.) State v.

Mills, 9th Dist. Nos. 02CA0037-M, 02CA0038-M, 2002-Ohio-7323, ¶ 11. Here, the trial court

determined that Robinson had become “argumentative and agitated” during the canine sniff.

Officer McConnell testified that Robinson had attempted to exit his vehicle after the officer had

instructed him to remain inside the car. In addition, Robinson had just left an area known for

drug trafficking, the canine had alerted prior to the officer placing Robinson in handcuffs, and

the officer testified that he was concerned that Robinson may attempt to reach for a weapon after

he was ordered to exit the vehicle. Although, as set forth above, the canine alert alone does not

establish probable cause sufficient to fully search or arrest the occupant of a vehicle, it is one

factor upon which an officer may base his reasonable suspicion that the individual poses a safety

risk during an investigatory stop.        See Alabama v. White, 496 U.S. 325, 330 (1990)

(“[R]easonable suspicion can arise from information that is less reliable than that required to

show probable cause.”). Based upon these facts, the use of handcuffs during the stop did not

violate Robinson’s Fourth Amendment rights, as the totality of the circumstances here warranted

the use of handcuffs for the officers’ safety. See Mills at ¶ 11.
                                                7


Terry Search

       {¶15} After Robinson had exited the vehicle and had been handcuffed, Officer

McConnell testified that Robinson denied having any contraband and told the officers that they

could search him. Officer McConnell began to search Robinson and felt “a wad of money” in

Robinson’s pocket. The officer then began to remove the money, but let go of the money when

Robinson clarified that he was authorizing only a “Terry pat[-]down.”

       {¶16} Pursuant to the Supreme Court’s holding in Terry, an officer is justified in

conducting a limited pat down search of an individual’s outer clothing for weapons during an

investigatory stop, if the officer has a “reasonable suspicion, [based on the totality of the

circumstances], that the individual whose behavior he is investigating at close range may be

armed and dangerous.” State v. Andrews, 57 Ohio St.3d 86, 89 (1991), citing Terry, 392 U.S. at

27; see also Minnesota v. Dickerson, 508 U.S. 366, 373 (1993), quoting Terry, 392 U.S. at 26

(“[A] protective search—permitted without a warrant and on the basis of reasonable suspicion

less than probable cause—must be strictly ‘limited to that which is necessary for the discovery of

weapons which might be used to harm the officer or others nearby.’”).

       {¶17} Here, the officers had a reasonable, objective basis to reasonably suspect that

Robinson might be armed and dangerous. As set forth above, Robinson was confrontational and

noncompliant with the officers during the canine sniff. Further, Officer McConnell was aware

that Robinson was traveling from an area known for drug trafficking, that Robinson there had

been visiting an individual known for engaging in drug activity, that Robinson had a previous

drug-related conviction, and that the canine had alerted to Robinson’s vehicle. In addition,

Officer McConnell specifically testified that due to the nature and circumstances of the stop, he

was concerned that Robinson would reach for a weapon. Thus based upon the totality of the
                                                8


circumstances, the Terry pat-down did not did violate Robinson’s Fourth Amendment rights.

Because the officers were justified in conducting a Terry search, we make no determination as to

whether Robinson voluntarily consented to a “Terry pat[-]down.”

Search Inside Robinson’s Pockets

       {¶18} When the K9 officer advised Officer McConnell that he had found loose

marijuana on the vehicle’s floor, Officer McConnell removed the cash that he had felt during the

pat-down from Robinson’s pocket. He then searched within Robinson’s other pockets, removing

more money.

       {¶19} A Terry search is limited in scope to a pat-down search of an individual’s outer

clothing for weapons. See State v. Prince, 9th Dist. No. 21130, 2003-Ohio-723, ¶ 12. Thus, the

search inside an individual’s pockets is not permissible as part of a Terry search. See id.

However, if during the course of a Terry search, an officer 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.” Minnesota v. Dickerson, 508 U.S. 366, 370, 375-376 (1993)

(describing the “plain-feel” exception to the warrant requirement).        In addition, the Ohio

Supreme Court has held that during a pat-down, if the officer detects an object that “through his

or her sense of touch, reasonably believes could be a weapon, the officer may seize the object[.]”

State v. Evans, 67 Ohio St.3d 405 (1993), paragraph two of the syllabus.

       {¶20} Here, the testimony is unclear as to whether the nature of the “wad of money” was

apparent by touch during the Terry search, or whether the officer reasonably believed the “wad”

in Robinson’s pocket to be a weapon. Moreover, the record does not indicate that Officer
                                                  9


McConnell at any point subjectively believed that the “wad” in Robinson’s pocket was a

weapon. Therefore, the seizure of the money from Robinson’s pockets is not justified by the

Terry search or the plain feel doctrine. See Maumee v. Weisner, 87 Ohio St.3d 295, 297 (1999)

(“Generally, at a suppression hearing, the state bears the burden of proving that a warrantless

search or seizure meets Fourth Amendment standards of reasonableness.”)

       {¶21} However, the State responds that the search of Robinson’s person was consensual.

A search by law enforcement does not implicate the Fourth Amendment when officers have

obtained a voluntary consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973); State v. Comen, 50 Ohio St.3d 206, 211 (1990).

       {¶22} Here, Officer McConnell testified that, after officers had placed Robinson in

handcuffs, Robinson denied having contraband and told the officers to search him. However,

when Officer McConnell began to remove the money from Robinson’s pocket, Robinson

instructed the officers that he was authorizing a “Terry pat[-]down” only.               “When law

enforcement officers rely upon consent as the basis for a warrantless search, the scope of the

consent given determines the permissible scope of the search.” United States v. Gant, 112 F.3d

239, 242 (6th Cir.1997). Because the search inside the pockets exceeded the scope of a Terry

search, as set forth above, we must conclude that Robinson did not voluntarily consent to the

search of his person, at least as to the extent that this consent included the search of his pockets.

       {¶23} The State contends that, even if Robinson did not consent to the search of his

person, the search was justified as a search incident to arrest.      “[A] full search of the person

incident to a lawful custodial arrest is not only an exception to the warrant requirement of the

Fourth Amendment but is also a ‘reasonable’ search under that amendment.” State v. Mathews,

46 Ohio St.2d 72, 74 (1976), citing United States v. Robinson, 414 U.S. 218 (1973). “Pursuant
                                                 10


to their authority to conduct a search incident to arrest, police are authorized to conduct a full

search of the arrestee’s person and the area within his immediate control[.]” State v. Myers, 119

Ohio App.3d 376, 380 (2d Dist.1997), citing Chimel v. California, 395 U.S. 752 (1969).

Moreover, “[w]here the police officer has probable cause to arrest independent of the items

obtained in the search, but does not arrest until shortly after the search, the search is not

offensive to the Fourth Amendment to the United States Constitution.” State v. Bing, 134 Ohio

App.3d 444, 447-48 (9th Dist.1999), citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980).

       {¶24} Here, the State contends that the search of Robinson was justified as a valid

search incident to arrest once the officers discovered marijuana in Robinson’s vehicle. However,

in order to justify a search as one incident to arrest, there must be probable cause to arrest. State

v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, syllabus. The test for probable cause to arrest

without a warrant is whether “the facts and circumstances known to the officer warrant a prudent

man in believing the offense has been committed.” State v. Perez, 124 Ohio St.3d 122, 2009-

Ohio-6179, ¶ 73, quoting Henry v. United States, 361 U.S. 98, 102 (1959).            The offense of

possession of marijuana in an amount less than 100 grams constitutes a minor misdemeanor.

R.C. 2925.11(C)(3)(a), (b). Absent proof of a valid statutory exception, an arrest for a minor

misdemeanor is precluded in Ohio, and any evidence obtained in a search incident to a prohibited

minor misdemeanor arrest is subject to the exclusionary rule. R.C. 2935.26; Brown at ¶ 25.

       {¶25} Here, Officer McConnell reported that the K-9 officer indicated to him that there

was a significant amount of loose marijuana discovered. On cross-examination, the officer

stated “Um, I don’t know if they said large amount. They said there, there was quite a bit. I, I

used large amount in my report. I can’t say if they used the uh, that exact, that exact phrase, but

it was, the way they indicated it to me it sounded like it was pretty obvious and there was quite a
                                                 11


bit in there.”    However, Officer McConnell noted that the K9 officer’s report stated that he

discovered only a small amount of loose marijuana on the floor of the vehicle.

          {¶26}   It is unclear from the officer’s testimony whether he reasonably believed that the

amount of marijuana discovered was sufficient to allow an arrest of Robinson. Nothing in the

record indicates the quantity of marijuana discovered by the officers, and no evidence indicates

that the marijuana was confiscated by the police. Further, there is no indication that a valid

exception to the prohibition for arrests for minor misdemeanors applied in this case.

Accordingly, we cannot determine that the full search of Robinson was justified as a valid search

incident to arrest.

          {¶27} Because we see no exception to the warrant requirement justifying the search of

Robinson’s pockets, and because we have determined that Robinson did not consent to the

search of his pockets, the search violated Robinson’s Fourth Amendment rights. Accordingly,

the trial court erred in failing to exclude the evidence obtained from Robinson’s pockets.

Search of Robinson’s Socks

          {¶28} After searching Robinson’s pockets, Officer McConnell then requested Robinson

to remove his shoes. The trial court determined that Robinson then consented to the search of his

sock “by removing his shoes when the officer asked him if he would be willing to remove his

shoes.”

          {¶29} The state has the burden of proving that the necessary consent to a warrantless

search was obtained and that the consent was voluntarily given. Florida v. Royer, 460 U.S. 491,

497 (1983). “This burden cannot be discharged by showing no more than acquiescence to a

claim of lawful authority.” Bumper v. N. Carolina, 391 U.S. 543, 548-49 (1968). Consent to

search is voluntarily given where a reasonable person would believe that he or she had the
                                                12


freedom to refuse a request to search. State v. Robinette, 80 Ohio St.3d 234, 245-246 (1997).

Voluntariness is a question of fact to be judged by the totality of the circumstances. Id., citing

Bustamonte, 412 U.S. at 245.

       {¶30} Here, the evidence weighs against the voluntariness of consent to search

Robinson’s socks. First, as set forth above, Officer McConnell had instructed Robinson to

comply with orders during the canine sniff. The officer then ordered Robinson out of the vehicle

and handcuffed him.        At the time that Robinson took off his shoes, the officers had just

previously exceeded the scope of his purported consent to a pat-down search by searching the

interior of his pockets.    Under these circumstances, the weight of the evidence indicates that

Robinson’s act of removing his shoes, rather than providing voluntary consent to search his

socks, demonstrated that Robinson was acquiescing to the officer’s claim of authority. See State

v. Polansky, 8th Dist. No. 45402, 1983 WL 3012 (May 19, 1983) (where guards detained

defendant awaiting police arrival and instructed defendant to empty his pockets, defendant’s

compliance with the guard’s instruction was insufficient to establish voluntary consent to search

pockets.) However, as set forth above relative to our discussion of the search of Robinson’s

pockets, the State argues that the full search of Robinson’s person was justified as a valid search

incident to arrest. This argument must again fail as it pertains to the search of Robinson’s socks.

The testimony indicates no further facts which, between the time of the discovery of the

marijuana and the search of Robinson’s socks, would warrant a reasonable officer to believe that

Robinson had committed an arrestable offense.

       {¶31} The State further argues that the search of Robinson’s socks was justified by

Terry. However, there is no indication from the record that the officers performed a pat down of

the sock or whether the officers reasonably believed that the item within the sock was a weapon.
                                               13


Instead, Officer McConnell testified that he observed “a large bulge on the inside of

[Robinson’s] right sock. It almost appeared if you could say like a tumor. It was a big bulge

sticking from around the ankle area of the sock. It was clear that it wasn’t [ ] part of his

anatomy, [ ] that it was something concealed in his sock.” Based upon Officer McConnell’s

testimony, we conclude that there was no indication that the officer was able to detect any

incriminating character of the bulge in Robinson’s sock by touch or sight. Thus, the search

inside Robinson’s sock was not justified by the plain feel doctrine. See State v. Groves, 156

Ohio App.3d 205, 2004-Ohio-662, ¶ 44 (2d Dist.2004) (without any testimony indicating that

officers had a reasonable belief that the item felt was contraband or a weapon, search within sock

not justified under Terry and the plain feel doctrine), and see State v. Morton, 9th Dist. No.

25117, 2010-Ohio-3582, ¶ 20 (application of the plain feel doctrine is “limited to detecting the

object’s incriminating character by merely patting the exterior clothing without manipulating the

object to identify it as contraband”). Further, there is no indication from his testimony that

Officer McConnell believed that a weapon was creating the bulge in Robinson’s sock. See

Evans, 67 Ohio St.3d at paragraph two of the syllabus. Instead, Officer McConnell testified that

he noticed the “bulge” in Robinson’s sock, where he believed Robinson concealed “something.”

Officer McConnell’s belief that Robinson concealed “something” in his sock is insufficient to

establish that the officer reasonably believed that Robinson had there concealed either a weapon

or contraband.

       {¶32}     Accordingly, the search of Robinson’s pockets and sock was not justified under

the Fourth Amendment, and the weight of the evidence demonstrates that Robinson did not

voluntarily consent to these searches. Therefore, the trial court erred in failing to suppress the

evidence seized from these searches, namely: the money seized from Robinson’s pockets and the
                                                14


baggies of purported crack and powder cocaine seized from his sock.              Robinson’s sole

assignment of error is sustained, and the judgment of the Wayne County Court of Common Pleas

is reversed.

                                                                              Judgment reversed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.


                                                     CARLA MOORE
                                                     FOR THE COURT


BELFANCE, P. J.
CARR, J.
CONCUR.

APPEARANCES:

EUGENE O’BYRNE, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and LATECIA E. WILES, Assistant Prosecuting
Attorney, for Appellee.
