[Cite as State v. Smith, 2012-Ohio-4292.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98111


                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLANT

                                               vs.

                                  THOMAS SMITH, SR.
                                                     DEFENDANT-APPELLEE



                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-548487

        BEFORE: Sweeney, P.J., S. Gallagher, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: September 20, 2012
ATTORNEYS FOR APPELLANT

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: James Hofelich, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Mary Jo Tipping, Esq.
Mark B. Marein, Esq.
Marein & Bradley
222 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114
JAMES J. SWEENEY, P.J.:

       {¶1} The     State   of   Ohio    (“the     State”)   appeals   the   court’s   granting

defendant-appellee Thomas Smith, Sr.’s (“defendant”) motion to suppress evidence in

this case involving drug-related offenses.       After reviewing the facts of the case and

pertinent law, we affirm.

       {¶2} On March 18, 2011, defendant was arrested for his involvement in

trafficking heroin and other associated offenses.       On March 7, 2012, the court held a

suppression hearing, and on March 16, 2012, the court granted defendant’s motion to

suppress the evidence against him.

       {¶3} The State appeals and raises one assignment of error for our review.

                                              I.

       The trial court erred in granting appellee’s motion because the contraband
       was detected during a lawful pat-down and was immediately apparent to the
       officer to be heroin bundles.

               Appellate review of a trial court’s ruling on a motion to
                      suppress presents mixed questions of law and fact.
                      An appellate court is to accept the trial court’s factual
                      findings unless they are clearly erroneous. We are
                      therefore required to accept the factual determinations
                      of a trial court if they are supported by competent and
                      credible evidence. The application of the law to those
                      facts, however, is subject to de novo review.
State v. Polk, 8th Dist. No. 84361, 2005-Ohio-774, ¶ 2.

       {¶4} Warrantless searches are presumptively unconstitutional subject to a limited

number of exceptions, one of which is the stop and frisk investigatory search under Terry

v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, a police officer
may pat down a detained suspect to reasonably search for weapons. Id. A Terry frisk is

limited in scope and designed to protect law enforcement agents. State v. Evans, 67 Ohio

St.3d 405, 618 N.E.2d 162 (1993).

       {¶5} The United States Supreme Court expanded Terry to include discovery of

contraband other than weapons under the “plain feel” doctrine, “[i]f a police officer

lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass

makes its identity immediately apparent * * *.” Minnesota v. Dickerson, 508 U.S. 366,

375, 113 S.Ct. 2130, 124 L.Ed. 2d 334 (1993).

       {¶6} In the instant case, Cuyahoga Metropolitan Housing Authority (“CMHA”)

Detective Clinton T. Ovalle testified that he had over 20 years experience as a police

officer and has been a narcotics investigator for the past seven years.   He estimated that

he has made between 1,500 and 2,000 drug arrests in his career.       Det. Ovalle testified

that one particular way heroin can be packaged for sale is in small packets of blue wax

paper called “bindles,” which are rubberbanded together in groups of ten and referred to

as “bundles.”

       {¶7}     Det. Ovalle received information from a confidential informant (“the CI”)

that defendant was trafficking heroin at 10955 Shaker Blvd. in Cleveland. Det. Ovalle

and three other CMHA officers met with the CI on March 18, 2011, at approximately

8:00 p.m., which, according to the CI, was when the tenant of the property typically

arrived home from work and waited for defendant.       By 9:00 p.m., surveillance was set

up, and the tenant and defendant were inside the residence.    At   approximately    11:30
p.m., defendant left the building drinking from a red cup, threw the cup to the ground, and

got into his car.   Det. Ovalle approached defendant and “could smell alcohol coming

from him.”    The officers asked defendant to exit the vehicle so they could speak with

him. According to Det. Ovalle, defendant was nervous, and he “continued to feel the

left side of his coat pocket.”   Det. Ovalle conducted a pat-down search of defendant, and

“[i]n the left coat pocket I could feel from my experience to be three bindles” of heroin.

       {¶8}   Det. Ovalle explained that from his experience in narcotics and drug arrests,

the objects “were squared and rectangular.”    Asked what it was, defendant replied that it

was money. Det. Ovalle believed that defendant was lying, so he “reached inside the

pocket and recovered three bindles of heroin.”     The officer explained that “[t]here were

three packs with ten bindles, ten envelopes of wax paper rubberband[ed] together making

approximating three bundles.”

       {¶9}   Ultimately, 303 packets, or bindles, of heroin were recovered on the night

in question. After the initial drugs were found in defendant’s coat pocket, Det. Ovalle

conducted what he thought was a thorough pat-down of defendant to search for weapons,

arrested and handcuffed defendant, and placed him in the rear of the police vehicle.         A

short time later, defendant was observed sitting in the back of the police car kicking the

remaining 273 bindles of heroin under the front passenger seat.

       {¶10} On April 5, 2011, defendant was indicted for drug trafficking, drug

possession, tampering with evidence, and possessing criminal tools.         On March 16,

2012, after a hearing, the court granted defendant’s motion to suppress.    The court found
that Det. Ovalle’s pat-down of defendant was justified given the totality of the

circumstances, including the high drug activity location and the information provided by

the CI. The court stated in its journal entry and opinion, “[t]he question then, is upon

determining that the Defendant had no weapon did the search have to cease.”

       {¶11}   The court found Det. Ovalle’s testimony to be “the difficult issue” in the

case at hand, ultimately concluding that he lacked credibility.   “At a suppression hearing,

the evaluation of evidence and the credibility of witnesses are issues for the trier of fact.”

 State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1991). The court made the

following findings:

       The officer did not recall the kind of coat being worn by the Defendant and
       the date of the incident, March 18, 2011, could require anything from a light
       spring jacket with little or noinsulation in the pocket to a winter parka with
       a great deal of padding. It is further confounding that the officer did not
       appreciate a much larger package or amount of heroin bindles that were
       later discovered on the floor of the police cruiser. The exhibit presented
       contained 303 bindles and even if they had been packaged at the time of the
       stop, would have comprised 30 bundles of heroin.

       {¶12} The court concluded that, once it became clear that defendant had no

weapon, the search should have stopped under Terry.         See State v. Clay, 8th Dist. No.

91942, 2009-Ohio-2725 (“although the trial court could have concluded that it was

immediately apparent to Det. Mitchell that Clay had marijuana in his jacket pocket, it did

not * * * and we will not reverse its decision on the facts before us”).

       {¶13} Upon review, the trial court did not err in granting defendant’s motion to

suppress the evidence, and the State’s sole assignment of error is overruled.

       {¶14} Judgment affirmed.
       It is ordered that appellee recover of appellant his costs herein taxed.

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Common

Pleas Court to carry this judgment into execution.     Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




JAMES J. SWEENEY, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY
