[Cite as State v. Coleman, 2014-Ohio-2091.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :        C.A. CASE NO.       25924

v.                                                      :        T.C. NO.      12 CR 3390

LARON D. COLEMAN                                        :            (Criminal appeal from
                                                                      Common Pleas Court)
        Defendant-Appellant                             :

                                                        :

                                              ..........

                                              OPINION

                          Rendered on the        16th       day of         May        , 2014.

                                              ..........

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

DANIEL A. PERRY, Atty. Reg. No. 0087548, 123 Boggs Lane, Cincinnati, Ohio 45246
     Attorney for Defendant-Appellant

                                              ..........

DONOVAN, J.

                {¶ 1} This matter is before the Court on the Notice of Appeal of Laron

                Darnell
[Cite as State v. Coleman, 2014-Ohio-2091.]
Coleman, filed September 23, 2013. Coleman appeals from the trial court’s September 18,

2013 judgment entry of conviction, issued following the denial of his motion to suppress,

and subsequent no contest pleas, to one count of assault (police officer), in violation of R.C.

2903.13(A), a felony of the fourth degree, and one count of possession of heroin (less than

one gram), in violation of R.C. 2925.11(A), a felony of the fifth degree. Coleman was

sentenced to community control sanctions for a period of five years. We hereby affirm the

judgment of the trial court.

          {¶ 2}   At Coleman’s suppression hearing, Gordon L. Cairns testified that he is a

narcotics detective with the Dayton Police Department, having been so employed for six

months. Cairns stated that he has been employed by the Dayton Police Department for a

total of 11 years.      Prior to becoming a narcotics detective, Cairns stated that he was

assigned to the GDPM Task Force, formerly known as DMHA. Cairns stated that on

November 8, 2012, while working for the housing authority, he and Officer Guswiler, in

their cruiser and in the uniform of the day, proceeded to 5044 Caliph Court to conduct a

“knock and advise” based upon complaints the task force received regarding “possible drug

sales and illegal activity going on in that particular location.” According to Cairns, the

address is in “a multiple unit building, with its own individual address of 5044.” He stated

that each unit has its own front door, with “steps that come down off a very small concrete

porch.”     Cairns stated that Officers Coleman and Mullins also responded to the same

address, and that Officer Coleman advised him and Guswiler by radio that “there were two

individuals standing on the steps of 5044 Caliph,” and that one was wearing red and one was

wearing a darker color. As Cairns and Guswiler approached the address, they observed two

individuals “now walking away from that location, through the parking lot, * * * .”
[Cite as State v. Coleman, 2014-Ohio-2091.]
        {¶ 3}    Cairns stated that Coleman was wearing the darker colored clothing, and that

he and Officer Coleman approached him on foot, while Guswiler and Mullins approached

the other individual. Cairns stated that “the housing projects are all private property owned

by DMHA, so we always want to identify * * * people on the property and see, one, if they

live on the property. And then if they don’t, see if they’re trespassing or if there’s further

that goes on.” Cairns testified, “So we approach Mr. Coleman and I just say, you know,

‘You got anything on you,’ knowing that we’ve had complaints of drug activity from there in

the past and also the particular occasion over there that particular day.” Following Cairns’

question, Cairns testified, “Laron Coleman turns and basically puts his hands in the air.

From my 11 years of experience, that normally indicates, ‘Go ahead and search me. * * * Pat

me down.[’] So I begin just a Terry pat down just to make sure there’s no weapons before

we begin our investigation into who these people are and why they’re at that particular

location.” Cairns stated that Coleman “turned his back towards me, and we normally, when

we conduct our pat downs we always stand at the rear of the person when we do those.”

Cairns stated that in the course of his police work he has approached other individuals in the

street, and that “[m]any, many times,” he has observed conduct similar to that exhibited by

Coleman, namely the raising of hands upon approach by a police officer. Cairns testified

that he interpreted Coleman’s conduct as consent to the pat down.

        {¶ 4}    Cairns testified as follows:

                I began a pat down on him. The typical way I always do, I start on

        the right side and I start from the top. At no time was I told by Laron

        Coleman, “What are you doing? Stop. Don’t do any that sort of thing,” and

        I begin patting him down.             When I get to his right pants pocket, I
                                                                                             4

       immediately feel cellophane bags with something in them.

       From my experience and training I know that’s normally the way drugs are carried in

baggies in a pocket. I just pat the bags, you know, I feel it from the outside, and I just say,

“What is that?” And he indicates that it[’]s marijuana.

       {¶ 5}        Cairns stated that Coleman was not under arrest in the course of the pat

down, that it was not Cairns’ intention to take him into custody, and that he did not say or do

anything to convey to Coleman that he was not free to leave. When asked if he knew what

the items were in Coleman’s pocket, Cairns stated that “[i]t felt immediately like drugs.”

The following exchange occurred:

                Q. And what happened after he indicated that it was just marijuana

       in the pocket?

                A.      He indicated that it was marijuana, at which time Officer

       Coleman grabbed a hold of Laron Coleman’s left arm and as he did that

       Laron Coleman put his right hand into his right pocket, the same pocket I had

       just felt.

                Q. And what happened after that?

                A. I grabbed a hold of his right hand and basically at this point he’s

       now indicating he has illegal drugs upon him. I didn’t want him to destroy

       those drugs or be something else in there that could be even more hazardous

       to us. So I grabbed a hold of his right hand and try to prevent him from

       doing what he’s going to get out of the pocket or do into the pocket.

                Q. And what happened after you grabbed his right hand?
                                                                                   5

         A. I grabbed his right hand and he tenses up and I have to basically

try to force his hand from his pocket. He pulls his hand out of his pocket and

at the same time as he pulls his hand - - his right hand out of his right pocket

he turns in a counterclockwise motion, just to kind of set it up; I’m to - - I’m

on the right side and Officer Coleman is on my left and Laron Coleman

would be at this point standing directly in front of us facing away from us.

         He pulls the right hand out of his pocket and simultaneously breaks

free of my grip on his right hand and does a counterclockwise spinning

motion and then with that right hand punches Officer Coleman directly in the

chest.

         Q. And what happens after that?

         A. Officer Coleman is able to keep a hold of his arm, and basically at

that point I pull out my taser and go to fire a taser as Mister - - as Laron is

trying to pull away from Officer Coleman.

         Q. And what happens next?

         A. I fire the taser, but the probes malfunctioned or something, they

did not come out, and Laron Coleman pulls from Officer Coleman’s grip and

he begins to flee north through the parking lot.

         A. And what happens next?

         Q. We pursue him. There’s probably, I would say, 50 to 100 feet,

through this parking lot. We get to the end of the building and just to kind of

set it up. We are about the third apartment in at this point in the parking lot
                                                                                 6

and he gets to the end of the building, in the grassy area, and we are able to

push him to the ground, and then at this point we were going to attempt to

take him into custody for assault on a police officer.

       ***

       Q. And what happens after you detain Mr. Coleman?

       A. Once we eventually get him detained, we pick him up and then

right on that area where a semi-lengthy struggle had just previously occurred,

take him into custody; there are two tasers laying on the ground with taser

cartridges, and also where his arms were, two bags, one of marijuana, one of

suspected heroin.

       Q. * * * And was Mr. Coleman searched - - or was - -at that point was

Mr. Laron Coleman under arrest?

       A. He was.

       Q. And what was he under arrest for, if you recall?

       A. Assault on a police officer at that point and then once we seen

that one of those baggies contained what’s suspected as being heroin,

possession of drugs.

       Q. And at that point is he placed into a cruiser?

       A. Yes, he is.

       Q. Before he’s placed in a cruiser, is he searched again?

       A. He is.

       Q. Did you find anything during that search?
[Cite as State v. Coleman, 2014-Ohio-2091.]
                 A. Yeah. Another bag of actually powdered heroin was found on

        his person, in his left front pants pockets.

        {¶ 6}            Cairns stated that he and Guswiler took Coleman to the hospital from

the scene to treat injuries he received in the scuffle. Cairns stated that Coleman was not

advised of his rights and that the officers did not question him en route to the hospital, but

that Coleman made statements. The following exchange occurred:

                 Q. And what did Mr. Coleman say?

                 A.   He just made the mistake - - the statement that he couldn’t

        believe this happened, and then - - that he didn’t feel anything during the

        encounter.

                 Q. And after he made that statement, did you or Officer Guswiler

        question him?

                 A. No. Officer Guswiler, he made the statement, * * * “It must

        have been all that crack that you,” or “it must have your crack you smoked.”

        (Sic).

                 Q. And did Mr. Laron Coleman make any statements or anything in

        response to that?

                 A. He did. He made the statement, “that was not crack. That was

        seven grams of heroin.”

                 Q. * * * And other than this exchange, was there any other

        questioning of Mr. Coleman?

                 A. There was not.

Cairns stated that Coleman was taken to jail upon release from the hospital.
[Cite as State v. Coleman, 2014-Ohio-2091.]
        {¶ 7}    On cross-examination, Cairns stated that the officers arrived at 5044 Caliph

Court at 11:00 a.m. He stated that the officers did not have a search warrant for the subject

address. Cairns stated that three officers and a supervisor routinely conduct knock and

advises together. Cairns acknowledged that Officer Coleman did not indicate via radio that

the individuals he observed were engaged in a drug deal, and he further acknowledged that

the individuals could have been residents of different apartments within the complex. The

following exchange occurred:

                Q. * * * And so you walk up with the intent to investigate?

                A. Yes.

                Q. * * * That means ask questions?

                A. Yes.

                Q. * * * That means, “Who are you? Show me some identification.”

                A. Correct.

                ***

                Q. * * * Is that the only people in the parking lot at the time?

                A. It is.

                Q. * * * So you don’t go to 5044 Caliph Court, you don’t just go up to

        there; you instead stop these two individuals in the parking lot?

                A. Correct.

                Q. Did you see any bulge on them that would indicate the presence

        of a weapon?

                A. No.

                Q. Did you see them engage in any activity that looked like they
                                                                                  9

were casing a joint, looking to rob something?

         A. No.

         Q. You didn’t see them looking into cars to see - - looking at stereos

              or anything like that?

         A. Nope.

         Q. No objective indication that any criminal activity was afoot?

         A. Besides coming from the location of a drug complaint.

         Q. Well, of a suspected drug house that you had no warrant for,

right?

         A. Correct.

         Q.    And that you had, on your own, you had no independent

knowledge other than what the report from the management was?

         A. That is correct.

{¶ 8}     On redirect, the following exchange occurred:

         Q. If Mr. Coleman would have simply said, “I have nothing on me.

I don’t want to talk to you.” Would you have pursued him?

         A. No.

         ***

         Q. And this pat down of Mr. Coleman, just so the record is clear.

Your testimony today, the only reason you patted him down was because you

believed he was consenting to a pat down?

         A. That is correct
[Cite as State v. Coleman, 2014-Ohio-2091.]
                Q. Prior to the pat down you didn’t think he was armed or anything

        like that?

                A. I had no indication that he was, just, you know, due to the area,

        and the complaints from that area we wanted to verify for safety that there

        was no weapons involved.

        {¶ 9}    In its “Decision, Order and Entry Sustaining in part and Overruling in part

Defendant’s Motion to Suppress,” the trial court determined as follows:

                In the case at bar, Cairns initiated a consensual encounter with

        Defendant. Cairns credibly testified that he approached Defendant and that

        Defendant consented to a pat-down. Defendant was not in custody when

        Cairns asked what he felt in Defendant’s pocket. Cairns did not reach into

        the pocket until after Defendant shoved his hand in it, broke free and punched

        another officer. Until the point that Defendant allegedly assaulted the officer

        and ran, the encounter between Cairns and Defendant was consensual. Thus,

        the pat-down and any statements made by Defendant during it are not subject

        to suppression.

The court concluded that “the officer’s remark about Defendant smoking crack was likely to

elicit an incriminating response.        Thus, Defendant’s statement in response to Officer

Gusweiler’s (sic) comment is hereby suppressed.”

        {¶ 10} Coleman asserts one assignment of error herein as follows:

        “THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT’S

MOTION TO SUPPRESS IN IT’S (sic) TOTALITY AS DEFENDANT WAS INITIALLY

SUBJECT TO A WRONGFUL DETENTION, AND THEREFORE DEFENDANT’S
                                                                                           11

CONSENT TO BE SEARCHED WAS INVOLUNTARY.”

       {¶ 11} As this Court has previously noted:

                In regards to a motion to suppress, “the trial court assumes the role of

       trier of facts and is in the best position to resolve questions of fact and

       evaluate the credibility of witnesses.” State v. Hopfer, 112 Ohio App.3d 521,

       548, 679 N.E.2d 321 (2d Dist.1996), quoting State v. Venham, 96 Ohio

       App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). The court of appeals must

       accept the trial court's findings of fact if they are supported by competent,

       credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No.

       20662, 2005-Ohio-3733, citing State v. Retherford, 93 Ohio App.3d 586, 639

       N.E.2d 498 (2d Dist.1994). Accepting those facts as true, the appellate court

       must then determine, as a matter of law and without deference to the trial

       court's legal conclusion, whether the applicable legal standard is satisfied. Id.

       State v. Ginn, 2d Dist. Montgomery No. 25325, 2013-Ohio-1692, ¶ 12.

       {¶ 12}     Coleman asserts that the trial court erred in denying his motion to suppress

since he “was initially subject to a wrongful detention by the City of Dayton Police, and

therefore Defendant’s consent to a search of his person was involuntary.” Coleman asserts

that Cairns’ “intent was not to investigate the complaint [of drug-related activity at the

Caliph Court address] but to single out [Coleman] and wrongfully detain him.” According

to Coleman, if “Officer Cairns[’] intent was to investigate he would have asked the

Defendant his name, would have asked for ID, or would have asked a variety of other

questions inherent in any investigation.”      Coleman asserts, under “the totality of the
                                                                                         12

circumstances, it is clear that the Defendant was in ‘custody’ and subject to custodial

interrogation and was not free to leave at this moment.” Coleman argues that “Officer

Cairns’ act of making the statement ‘got anything on you,’ would lead a reasonable person to

believe that he was not free to leave, and therefore amounts to an illegal detention of the

Defendant.” Coleman emphasizes that he “was not suspected of a crime,” and that even if

his conduct of raising his arms and turning around “could be considered as consent to be

searched, as the Defendant was illegally detained, the consent would be considered

involuntary * * *.”

       {¶ 13}    Coleman relies upon State v. Spain, 10th Dist. Franklin No. 10AP-319,

2011-Ohio-322, which he argues is analogous to the matter herein. In Spain, after the Tenth

District remanded the matter for the trial court to determine if Spain consented to be

searched, while stopped for jaywalking by Officers Kane and Radich, in a “‘high narcotic’

area,” the trial court concluded that Spain’s “consent was involuntary because it was

obtained during an illegal detention.” Id., ¶ 2, 17. At the initial suppression hearing,

Officer Radich testified to the following events upon the stop of Spain:

                * * * Radich asked appellee if he had any drugs and if he had any

       prior arrests. Appellee told the officers that he did not have any drugs, but

       he admitted that he had prior drug-related arrests. Radich asked if appellee

       would consent to be searched, and appellee said yes. After a brief discussion

       with Kane, Radich repeated his request to search appellee, and appellee again

       agreed. Radich conducted the search and found crack cocaine on appellee.

       Afterward, Appellee admitted that he also had a crack pipe, and Radich
                                                                                         13

       retrieved that item, too. Appellee was arrested for drug possession, but he

       was not cited for jaywalking.

              After testifying on direct examination that appellee was free to leave

       at the time he consented to the search, Radich conceded on cross-examination

       that appellee was, in fact, not free to leave. Also on cross-examination,

       Radich testified that he did not feel threatened by appellee, and he was not

       expecting to find drugs or guns during his search of appellee. Id., ¶ 2-3.

       {¶ 14} On the State’s appeal following the remand, the Tenth District determined as

follows:

              We have already concluded that the fact that appellee was jaywalking

       did not provide a basis for Radich to prolong the stop he made for that

       offense in order to conduct a search. [State v. Spain, 10th Dist. Franklin No.

       09AP-331, 2009-Ohio-6664, ¶ 21]. Stated another way, the search was

       unrelated to appellee’s jaywalking offense.     When an officer prolongs a

       detention to conduct a search, and the search is not related to the original

       purpose for the stop, the prolonged detention constitutes an illegal seizure if

       the officer does not have “articulable facts giving rise to a suspicion of some

       illegal activity.” State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762,

       1997-Ohio-343, paragraph one of the syllabus.        There is nothing in the

       record to establish that Radich had articulable facts allowing him to suspect

       that appellee was involved in some illegal activity beyond jaywalking. In

       fact, Radich testified that he did not feel threatened by appellee. Thus,
                                                                                           14

       Radich had no basis to prolong appellee’s detention for a search, and the trial

       court correctly concluded that appellee was being illegally detained when he

       consented to be searched.

       ***

               Radich testified on cross-examination that appellee was not free to

       leave when he consented to be searched * * * . Because appellee consented

       to be searched under circumstances where a reasonable person would not

       believe that he was free to leave, the trial court had a proper basis for

       concluding that appellee’s consent was not voluntary. State v. Spain, 10th

       Dist. Franklin No. 10AP-319, 2011-Ohio-322, ¶ 18, 20.

       {¶ 15} The State responds that Coleman’s “initial encounter with police was

consensual. This is because during the initial encounter, there was no physical force or

show of authority demonstrated.       Laron Coleman and the other individual were not

summoned to the officer’s presence; rather the officers approached them.” The State asserts

that there “is nothing in the record that suggests the officers’ presence was in any way

threatening; there was no display of a weapon, of physical touching in the initial encounter.”

  The State asserts that Cairns’ question to Coleman “was a mere request for information,

one that was reasonable considering the surrounding circumstances: [t]he officers were at the

housing projects specifically because of a complaint from management about possible drug

sales and illegal activity from a particular address,” namely the “same address the officers

observed Coleman and his companion depart from.” Finally, the State asserts that there was

no show of force until Officer Coleman grabbed Coleman’s arm, which occurred “after
                                                                                           15

Coleman gave his physical manifestation of consent, consent that Coleman does not now

challenge,” and after “Coleman admitted that the cellophane baggies in his pants contained

marijuana.” The State asserts that Coleman’s reliance upon Spain is misplaced and directs

our attention in part to State v. Ohlert, 2d Dist. Montgomery No. 25389, 2013-Ohio-2579.

       {¶ 16} As this Court noted in Ohlert:

              A person is seized, for Fourth Amendment purposes, “only when, by

       means of physical force or a show of authority, his freedom of movement is

       restrained.” U.S. v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64

       L.E.d2d 497 (1980). “Only when such restraint is imposed is there any

       foundation whatever for invoking constitutional safeguards.” Id.

              “[A] person has been ‘seized’ within the meaning of the Fourth

       Amendment only if, in view of all the circumstances surrounding the

       incident, a reasonable person would have believed that he was not free to

       leave.” Id. at 554.

              “Examples of circumstances that might indicate a seizure, even where

       the person did not attempt to leave, would be the threatening presence of

       several officers, the display of a weapon by an officer, some physical

       touching of the person of the citizen, or the use of language or tone of voice

       indicating that compliance with the officer’s request might be compelled. * *

       *.   In the absence of some such evidence, otherwise inoffensive contact

       between a member of the public and the police cannot, as a matter of law,

       amount to a seizure of that person.” Id., at 554-555. (Emphasis added).
                                                                                            16

       Ohlert, ¶ 19-21.

       {¶ 17} In State v. Ingram, 82 Ohio App.3d 341, 612 N.E. 2d 454 (2d Dist. 1992),

this Court determined that Ingram’s encounter with police officers constituted a seizure

where two officers approached him on private property, in uniform and carrying weapons.

Id., at ¶ 2. The evidence relating to the show of authority also included the fact that Ingram,

who was wearing blue shorts, a dark T-shirt, and a ball cap, was sitting on a “small railed

porch, waiting for someone; his way was blocked so that he could not exit to the street.” Id.,

345. The officers stood close to Ingram, and one officer asked Ingram his “name, date of

birth, Social Security number, and he answered accurately. Ingram then asked why they

wanted to know; [the officer] responded that they had been dispatched there because

someone [wearing light blue shorts, a dark T-shirt, and ball cap] was selling crack.” Id., 344.

 Ingram “was not told that he had the right to refuse to answer questions.” Id., 345. The

officer testified that Ingram “threw up his hand and stood up and says, ‘Not me man, I don’t

do that stuff. Search me, man.’” Id., 344.     One officer patted Ingram down and the other

one asked for Ingram’s hat. The officer “found a rock in the lining of the cap, which later

tested positive for cocaine.” Id., 344. The trial court determined “that the consent, where

the officers ‘accost[ed] him in such a manner as to precipitate his volunteering to let them

search him, [was] not a voluntary action under the circumstances * * * .’” Id., 347. This

Court noted as follows:

               While this record may have supported a contrary finding that Ingram

       was not seized, in considering the totality of the circumstances, and keeping

       in mind the deference that an appellate court must give to a trial court’s
                                                                                          17

       determination of the credibility of the witnesses and the proper construction

       to be placed upon testimony that may be subject to interpretation, especially

       where the record is somewhat opaque, we cannot say that the finding that

       Ingram was not free to leave, and therefore was seized, is clearly erroneous.

       Id., 345-46.

       {¶ 18} Regarding whether or not Ingram freely and voluntarily consented to the

search of his person, this Court noted as follows:

               The state bears the burden of proving that the consent was, in fact,

       freely and voluntarily given. This burden cannot be discharged by showing

       merely an acquiescence to a claim of lawful authority. Bumper v. North

       Carolina (1968), 391 U.S. 543, 549, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797,

       802. Further, the degree of proof required to show that the consent was not

       contaminated by duress, coercion, or trickery is proof by “clear and

       convincing evidence.” A “clear and positive” standard is not significantly

       different from the “clear and convincing” standard of evidence, which is the

       amount of proof that will produce in the mind of the trier of fact a firm belief

       or conviction as to the allegations to be proved.        It is an intermediate

       standard of proof, being more than a preponderance of the evidence and less

       than evidence beyond a reasonable doubt. * * *

               The voluntariness of the consent is a question of fact to be determined

       from the totality of the circumstances. Schneckloth v. Bustamonte (1973),

       412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854, 862. “But the
                                                                                         18

       Fourth and Fourteenth Amendments require that a consent not be coerced, by

       explicit or implicit means, by implied threat or covert force. For, no matter

       how subtly the coercion was applied, the resulting ‘consent’ would be no

       more than a pretext for the unjustified police intrusion against which the

       Fourth Amendment is directed.” Id. at 228, 93 S.Ct. at 2048, 36 L.Ed.2d at

       863. Ingram, 346-47.

       {¶ 19} The issue of consent in this case is not free from difficulty. The trial court

concluded that Officer Cairns testified credibly that Coleman “consented to a pat down.”

The trial court’s opinion does not include any analysis of Bumper v. North Carolina, 391

U.S. 543, which emphasizes the State’s burden on the issue of consent “cannot be

discharged by showing no more than acquiescence to a claim of lawful authority.” The

State would have us infer from certain facts that Coleman’s non-verbal raising of his arms

demonstrates an intention to consent to a pat down, not acquiescence. An equally plausible

inference from Coleman’s non-verbal conduct is that he submitted to what he viewed as the

intimidating presence of four armed and uniformed officers, one of whom just asked an

accusatory question. See generally, Froelich, J., dissenting in Ohlert.

       {¶ 20} However, we need not decide the issues of wrongful detention nor consent to

a pat down, since the drugs that are the subject of this indictment were discovered in plain

view, under Coleman’s person after an assault upon a police officer.            “Under the

plain-view exception, ‘police may seize an article when its incriminating nature is

immediately apparent to an officer who comes in contact with the item through lawful

activity.’ [State v. Pounds, 2d Dist. Montgomery No. 21257, 2006-Ohio-3040, ¶ 19], citing
                                                                                           19

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).” State v.

Thompson, 2d Dist. Montgomery No. 25658, 2013-Ohio-4825, ¶ 13, appeal not accepted for

review, 138 Ohio St.3d 1449, 2014-Ohio-1182, 5 N.E.3d 667. Any additional drugs which

were the subject of this indictment were found upon Coleman’s person after a search

incident to arrest for assault (peace officer). Search incident to arrest is another exception

to the warrant requirement “which allows officers to conduct a search that includes an

arrestee's person and the area within the arrestee's immediate control. * * * This exception

‘derives from interests in officer safety and evidence preservation that are typically

implicated in arrest situations.’ * * * .”         State v. Smith, 124 Ohio St.3d 163,

2009-Ohio-6426, 920 N.E.2d 949, ¶ 11.

       {¶ 21} Accordingly, we affirm.

                                          ........

FROELICH, P.J. and WELBAUM, J., concur.

Copies mailed to:

April F. Campbell
Daniel A. Perry
Hon. Barbara P. Gorman
