         [Cite as State v. Dotson, 2018-Ohio-499.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-170214
                                                         TRIAL NO. B-1503232
        Plaintiff-Appellee,                          :
                                                            O P I N I O N.
  vs.                                                :

ANTHONY DOTSON,                                      :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 9, 2018

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



M ILLER , Judge.

       {¶1}   Anthony Dotson appeals the trial court’s denial of his motion to

suppress. We affirm.

       {¶2}   Sheriff’s deputies responded to a 9-1-1 call reporting that a man

appeared to be tampering with vehicles in a Home Depot parking lot. Dotson

matched the description of the suspect.      Deputies Lipps and Booster motioned

Dotson over and asked Dotson to consent to a pat down search for weapons. Deputy

Lipps testified that Dotson consented to the search. The deputies recovered a pocket

knife and a very thin, small straw. According to Deputy Lipps, the straw was not a

drinking or stirring straw, but was the type of straw generally used for snorting

drugs. The deputies subsequently searched Dotson’s car and recovered marijuana, a

pipe, and pills. Based on the evidence found in the car only, Dotson was later

charged with multiple drug-related crimes.

       {¶3}   In his written motion to suppress, Dotson contended that the pat down

search was illegal, and all evidence that flowed from it had to be suppressed. At the

suppression hearing, however, Dotson stated on the record that he was contesting

the pat down search only, and was not attacking the subsequent search of the

automobile. Dotson testified that he never consented to a pat down search. When

the state asked Dotson if he had consented to the search of his car, defense counsel

objected, stating “Beyond the scope. We are not contesting that.” The trial court

sustained the objection.

       {¶4}   Dotson subsequently contended in his written closing argument that

evidence seized during the search of his car was “fruit of the poisonous tree” that

must be suppressed.




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       {¶5}     The trial court found Deputy Lipps’s testimony regarding Dotson’s

consent to be credible, determined that the pat down search was consensual, and

overruled Dotson’s motion to suppress.

       {¶6}     In his sole assignment of error, Dotson contends (1) the warrantless

pat down search was unreasonable because there was no indication that he was

armed and dangerous, (2) even if the court determines that he consented, under the

totality of the circumstances, his consent was involuntary, (3) even if his consent was

voluntary, under the plain feel doctrine it was not readily apparent that the straw was

contraband, and (4) even if the pat down search and subsequent seizure of the straw

was lawful, discovery of the straw did not justify further detention and search of

Dotson’s car.

       {¶7}     The Pat Down Search and Waiver. The parties stipulated that

there was no warrant in this case. The burden was therefore on the state to show the

reasonableness of the search and seizure. Xenia v. Wallace, 37 Ohio St.3d 216, 218,

524 N.E.2d 889 (1988). In reviewing a motion to suppress, we defer to the trial

court’s factual findings, but apply the law de novo. See State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

       {¶8}     Here, the trial court determined that Dotson had consented to the pat

down search.      While we accept this finding, the record establishes that the

responding officers asked Dotson if he would consent to a pat down search for

weapons only. Dotson agreed. Thus, the scope of his consent was limited. State v.

Riggins, 1st Dist. Hamilton No. C-030626, 2004-Ohio-4247, ¶ 28-30 (a suspect may

limit the scope of his consent to a search); (Citations omitted.) Florida v. Jimeno,

500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (“[t]he standard for

measuring the scope of a suspect’s consent is that of ‘objective reasonableness’—what



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would the typical reasonable person have understood by the exchange between the

officer and suspect?”). The state presented no evidence that it was immediately

apparent from a plain feel perspective that the straw was contraband. See Minnesota

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

lawful pat down for weapons, where it is immediately apparent that an object is

contraband, its warrantless seizure is justified); State v. Milhouse, 133 Ohio App.3d

527, 530, 728 N.E.2d 1123 (1st Dist.1999) (applying Dickerson). The state therefore

did not meet its burden to demonstrate the reasonableness of the warrantless seizure

of the straw and we need not address whether Dotson’s consent was voluntary.

       {¶9}   While we hold that the straw should have been suppressed from

evidence, Dotson’s victory is pyrrhic. The state did not use the straw as evidence

against him. It was the contraband found in Dotson’s car that formed the basis for

Dotson’s multiple drug charges.

       {¶10} Dotson affirmatively waived his right to contest to the search of his

car. When asked by the trial court whether the pat down “is really the issue,”

Counsel answered “yes.” And when the state attempted to explore whether Dotson

may have consented to the search of his car, defense counsel objected on the ground

that Dotson was not contesting that search. Based on counsel’s representation, the

objection was sustained, and the facts surrounding the car search were never

developed. Thus, although he raised it in his written motion to suppress, Dotson

relinquished the right to attack the search of his car in open court. See State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 538 N.E.3d 860, ¶ 20 (waiver is the

intentional relinquishment of a known right).

       {¶11} Dotson, having waived the issue of the car search at the hearing,

cannot later protest that the contraband found in the car was the fruit of the



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poisonous tress. It is unclear if the officers used the straw as the basis to search

Dotson’s car, or whether there were independent grounds to justify the car search.

For example, the 9-1-1 call reporting vehicle tampering combined with the officers’

investigation might have provided probable cause to search the car. Since the state

was not on notice that it had to justify the car search, the record was never developed

in this regard. See Wallace, 37 Ohio St.3d at 218, 524 N.E.2d 889 (holding that the

defendant must specify the grounds for challenging a warrantless search or seizure

so that the prosecutor may prepare his or her case accordingly). Moreover, Dotson

may have consented to the search of his car. Defense counsel’s objection prevents us

from knowing. Had there been a finding that Dotson consented, the question before

us would most likely be whether Dotson’s consent to the car search was voluntary, or

whether it was tainted by the illegal seizure of the straw. See Wong Sun v. United

States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

       {¶12} In sum, the facts surrounding the car search were never developed.

Dotson bears the burden of showing error on appeal by reference to matters in the

record, State v. Skaggs, 53 Ohio St.2d 162, 163, 372 N.E.2d 1355 (1978). Because he

waived the issue, he is unable to do so.

       {¶13} Ineffective Assistance of Counsel. Anticipating our holding

above, Dotson next contends that counsel was ineffective for waiving the issue of

whether the car search and subsequent seizure of evidence was constitutional. To

prove ineffective assistance of counsel, a defendant must demonstrate that counsel’s

performance was deficient and that the deficient performance was prejudicial.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989).

Prejudice results when there is a reasonable probability that, but for counsel’s



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unprofessional errors, the result of the proceeding would have been different.

Strickland at 694; Bradley at 142. On the record before us, we cannot say that

counsel was deficient, or that any deficiency was outcome-determinative. Since the

issue was waived, and the record undeveloped, it is not possible to determine

whether there were grounds to suppress the contraband found in Dotson’s car.

       {¶14} Dotson’s sole assignment of error is overruled.           The trial court’s

judgment is affirmed.

                                                                     Judgment affirmed.

M YERS , P.J., and D ETERS , J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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