[Cite as State v. Trice, 2018-Ohio-78.]


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

STATE OF OHIO                                           C.A. No.        28636

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
MYLES TRICE                                             COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
        Appellant                                       CASE No.   CR 2017 01 0085

                                  DECISION AND JOURNAL ENTRY

Dated: January 10, 2018



        TEODOSIO, Judge.

        {¶1}     Appellant, Myles M. Trice, appeals from his convictions in the Summit County

Court of Common Pleas. We affirm.

                                                   I.

        {¶2}     Two Akron police officers on patrol one night noticed a parked car occupied by

several people in an otherwise vacant parking lot. Upon checking the license plate number, they

discovered that the female owner of the vehicle had an outstanding warrant. They saw a female

in the driver’s seat, so the officers conducted a traffic stop of the vehicle.

        {¶3}     The officers noticed a strong odor of marijuana emanating from the vehicle. They

detained the driver on her warrant and anticipated towing the vehicle. Mr. Trice was in the front

passenger seat and was asked to step out of the vehicle. Officer Hudnall asked Mr. Trice if he

had any weapons on him and Mr. Trice said, “No.” The officer performed a protective patdown

for weapons and felt a gun in Mr. Trice’s abdomen area. Mr. Trice was arrested and searched
                                                2


incident to arrest.    He was charged with carrying concealed weapons and possession of

marijuana.

       {¶4}    Mr. Trice filed a motion to suppress, which was denied by the trial court. He then

pled no contest to the indictment and the trial court found him guilty of the offenses. The trial

court sentenced him to twelve months in prison, suspended the prison sentence, and placed him

on two years of community control.

       {¶5}    Mr. Trice now appeals from his convictions and raise one assignment of error for

this Court’s review.

                                               II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY OVERRULING THE DEFENDANT’S
       MOTION TO SUPPRESS, VIOLATING MR. TRICE’S FOURTH
       AMENDMENT RIGHTS TO BE FREE FROM UNREASONABLE SEARCH
       AND SEIZURE.

       {¶6}    In his sole assignment of error, Mr. Trice argues that the trial court erred in

denying his motion to suppress because the police officers did not have a reasonable suspicion to

believe Mr. Trice was armed in order to justify a patdown for weapons. We disagree.

       {¶7}    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.

State v. Oberholtz, 9th Dist. Summit No. 27972, 2016-Ohio-8506, ¶ 5, quoting State v. Burnside,

100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
                                                3


       {¶8}    The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated * * *.”    Article I, Section 14, of the Ohio Constitution contains nearly identical

language. “For a search or seizure to be reasonable under the Fourth Amendment, it must be

based upon probable cause and executed pursuant to a warrant, unless an exception to the

warrant requirement applies.” State v. Hetrick, 9th Dist. Lorain No. 07CA009231, 2008-Ohio-

1455, ¶ 19, citing Katz v. United States, 389 U.S. 347, 357 (1967).

       {¶9}    One such exception is that “a police officer may conduct a brief, warrantless

search of an individual’s person for weapons if the officer has a reasonable and articulable

suspicion that the ‘individual whose suspicious behavior he is investigating at close range is

armed and presently dangerous to the officer or to others.’” State v. Wade, 9th Dist. Summit No.

26275, 2012-Ohio-4255, ¶ 8, quoting Terry v. Ohio, 392 U.S. 1, 24 (1968). “‘The purpose of

this limited search is not to discover evidence of crime, but to allow the officer to pursue his

investigation without fear of violence.’” Wade at ¶ 8, quoting State v. Evans, 67 Ohio St.3d 405,

408 (1993), quoting Adams v. Williams, 407 U.S. 143, 146 (1972).

       {¶10} Reasonable suspicion is something less than probable cause and is based on the

totality of the circumstances. State v. Hahn, 9th Dist. Summit No. 28079, 2016-Ohio-7585, ¶ 8.

An analysis of whether reasonable suspicion existed requires this Court to look at “the facts

available to the officer at the moment of the seizure or the search” and consider whether those

facts would “warrant a man of reasonable caution in the belief that the action taken was

appropriate.” State v. Smiley, 9th Dist. Summit No. 23815, 2008-Ohio-1915, ¶ 19, quoting State

v. Bobo, 37 Ohio St.3d 177, 178-179 (1988), quoting Terry at 21-22.
                                                  4


       {¶11} It is well-settled that “an officer making a traffic stop may order passengers to get

out of the car pending completion of the stop.” Maryland v. Wilson, 519 U.S. 408, 415 (1997).

“To justify a patdown of the driver or a passenger during a traffic stop, * * * just as in the case of

a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable

suspicion that the person subjected to the frisk is armed and dangerous.” Arizona v. Johnson,

555 U.S. 323, 327 (2009).

       {¶12} At the suppression hearing, Akron Police Officers Jeremy Sosenko, Thomas

Hudnall, Devin Lane, and Amber Lowe all provided very similar and consistent testimony as to

the circumstances surrounding the traffic stop in this case. Around midnight on January 7, 2017,

Officers Sosenko and Hudnall were on patrol and noticed a parked car occupied by several

people in a poorly lit and otherwise vacant parking lot near 15th Street Southwest and Kenmore

Boulevard in Akron, Ohio. All four officers testified that the surrounding area, which included

two bars and some drug houses, was a high crime area where fights, shootings, and homicides

were known to occur. Officers Sosenko and Hudnall ran the license plate number of the vehicle

and discovered that the female owner of it had an outstanding warrant. The officers could see a

female in the driver’s seat, so they conducted a traffic stop of the vehicle.

       {¶13} When the two officers approached the vehicle, they noticed a strong odor of

marijuana emanating from it. The officers both testified that due to the strong odor of marijuana,

they were concerned someone in the vehicle could be armed because, in their experience, drugs

are usually accompanied by weapons. The active warrant for the driver raised further suspicions

for Officer Hudnall. Officer Sosenko testified that the occupants “seemed like they were high”

because they were slow to respond to questions. The officers confirmed the driver’s identity and

detained her. As they transferred her to the back of their patrol car, Officers Devin Lane and
                                                 5


Amber Lowe arrived at the scene as backup.           Officer Lane testified that he also smelled

marijuana coming from the vehicle.

       {¶14} Anticipating towing the vehicle after the driver was detained for her warrant, the

officers began asking the other four occupants to step out of the vehicle one at a time. Mr. Trice

was in the front passenger seat. Although all of the officers testified that they did not observe the

occupants of the vehicle making any furtive movements, Mr. Trice placed his hands inside of his

pockets one time. Officer Hudnall asked Mr. Trice to take his hands out of his pockets and Mr.

Trice complied. When Mr. Trice exited the vehicle, Officer Hudnall asked him if he had any

weapons on him and Mr. Trice said, “No.” Officer Lane testified that Mr. Trice was acting

nervous and his voice was quiet. Officer Hudnall performed a protective patdown for weapons

and felt what he immediately recognized as a gun in Mr. Trice’s abdomen area. Mr. Trice was

handcuffed and arrested.

       {¶15} The trial court found that, based on the totality of the circumstances, the officers

had a reasonable suspicion that Mr. Trice could be armed and dangerous and they were therefore

permitted to conduct a limited patdown search of Mr. Trice for weapons. In its order, the court

summarized the totality of the circumstances in this case as follows:

       The stop occurred in a high crime area known for guns and weapons, the event
       occurred in the late hours during cover of darkness, it was difficult for the officers
       to observe what four different passengers crowded into the vehicle were doing
       with only limited light available from flashlights, the area was open and the
       officers lacked cover from attack, and the officers’ frequent experience with guns
       and other weapons discovered during traffic stops. The heavy smell of marijuana
       in the vehicle contributed to the legitimate concern that other illegal substances
       may be present and, along with those other substances, guns and weapons could
       be present to protect their possession. * * * [A]dditional potential danger occurs
       when removing multiple passengers from the vehicle without a pat down search.

       {¶16} After a review of the suppression hearing transcript, we accept the trial court’s

findings of fact as supported by competent and credible evidence. We conclude that the trial
                                                 6


court did not err in denying Mr. Trice’s motion to suppress, as the trial court properly concluded

that, based on the totality of the circumstances, the officers possessed a reasonable suspicion that

Mr. Trice was armed and dangerous and subsequently conducted a lawful, limited patdown of

Mr. Trice for weapons.

       {¶17} Mr. Trice’s sole assignment of error is overruled.

                                                III.

       {¶18} Mr. Trice’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       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 Summit, 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 Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT
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HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JACLYN PALUMBO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting                     Attorney,   and   RICHARD   S.   KASAY,
Assistant Prosecuting Attorney, for Appellee.
