[Cite as State v. Jones, 2011-Ohio-535.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   Julie A. Edwards, P.J.
                                               :   William B. Hoffman, J.
                          Plaintiff-Appellee   :   Patricia A. Delaney, J.
                                               :
-vs-                                           :   Case No. 2010CA00039
                                               :
                                               :
EIERONSTAN D. JONES                            :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Stark County
                                                    Court of Common Pleas Case No.
                                                    2009-CR-1153

JUDGMENT:                                           Reversed and Remanded

DATE OF JUDGMENT ENTRY:                             January 31, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     BARRY T. WAKSER
Prosecuting Attorney                                Stark County Public Defender’s Office
Stark County, Ohio                                  200 W. Tuscarawas Street, Suite 200
                                                    Canton, Ohio 44702
BY: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South – Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Jones, 2011-Ohio-535.]


Edwards, P.J.

        {¶1}     Appellant, Eieronstan D. Jones, appeals a judgment of the Stark County

Common         Pleas      Court      convicting   him   of   possession   of   cocaine   (R.C.

2925.11(A)(C)(4)(b)). Appellee is the State of Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     During the evening hours of July 21, 2009, Canton Police Sgt. Lester

Marino and Officer Scott Dendinger were on patrol in the northeast section of Canton,

Ohio. They were working an extra detail pursuant to a grant for extra patrol in high

crime areas known as the Weed and Seed Grant. Sgt. Marino had been a police officer

for 14 years, while Officer Dendinger had been on the police force for about 18 months.

The officers were in a marked cruiser, in uniform, working the 10:00 p.m. to 2:00 a.m.

shift. The northeast section of Canton was known to Sgt. Marino as a high crime area

with high rates of drug activity, gun violence and prostitution.

        {¶3}     Around 11:00 p.m., the officers saw appellant walking in the middle of the

roadway in violation of a Canton City Ordinance.               Sgt. Marino pulled up next to

appellant, and both officers exited the cruiser. Marino asked appellant to step over to

the car so they could speak with him. Due to the high level of criminal activity in the

area, Sgt. Marino began a Terry pat down of appellant when appellant approached the

cruiser. Appellant pushed away from the cruiser and attempted to flee. Sgt. Marino

apprehended appellant, and after appellant was handcuffed, found a plastic bag

containing crack cocaine in appellant’s pocket. Officer Dendinger observed a smaller

bag containing crack cocaine fall from appellant’s person as Sgt. Marino apprehended

appellant.
Stark County App. Case No. 2010CA00039                                                    3


       {¶4}   Appellant was indicted by the Stark County Grand Jury with one count of

possession of cocaine. He moved to suppress the cocaine on the basis that the Terry

pat-down was not supported by a reasonable, articulable suspicion that appellant was

armed. Following an evidentiary hearing, the court overruled the motion. Appellant

thereafter entered a plea of no contest to the charge. He was convicted and placed on

community control for three years. He assigns a single error on appeal:

       {¶5}   “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION

TO SUPPRESS EVIDENCE.”

       {¶6}   There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See State v.

Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583 and State v. Klein (1991), 73 Ohio

App.3d 486, 597 N.E.2d 1141. Second, an appellant may argue that the trial court failed

to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. See State v.

Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141. Finally, an appellant may argue

the trial court has incorrectly decided the ultimate or final issues raised in a motion to

suppress. When reviewing this type of claim, an appellate court must independently

determine, without deference to the trial court's conclusion, whether the facts meet the

appropriate legal standard in any given case. State v. Claytor (1994), 85 Ohio App.3d

623, 620 N.E.2d 906.
Stark County App. Case No. 2010CA00039                                                 4


       {¶7}   Appellant argues that Sgt. Marino’s pat-down search of appellant was

unconstitutional.   In Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.,

the United States Supreme Court held that a limited pat-down search is justified when

an officer reasonably concludes the individual, whose suspicious behavior he is

investigating at close range, may be armed and, thus, dangerous to the police officer

and others. Id. at 24. Officers need not forsake reasonable precautionary measures

during the performance of their duties. State v. Evans, 67 Ohio St.3d 405, 410, 1993-

Ohio-186, 618 N.E.2d 162. The court must determine whether the officer had a

reasonable, objective basis for frisking the suspect. See, State v. Andrews (1991), 57

Ohio St.3d 86. In determining whether an officer's beliefs are reasonable, a court must

consider the totality of the circumstances involved in the stop. State v. Bobo (1988), 37

Ohio St.3d 177, 180, 524 N.E.2d 489. An officer need not testify he was actually in fear

of a suspect, but he must articulate a set of particular facts which would lead a

reasonable person to conclude a suspect may be armed and dangerous. Evans, supra,

at 413. Rather, “[e]vidence that the officer was aware of sufficient specific facts as

would suggest he was in danger” satisfies the test set forth in Terry, supra. Id.

       {¶8}   An officer must have a reasonable individualized suspicion that the

suspect is armed and dangerous before he may conduct a pat-down for weapons. See

Terry, supra; Ybarra v. Illinois (1979), 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238. See

also Maryland v. Buie (1990), 494 U.S. 325, 334, fn. 2, 110 S.Ct. 1093, 108 L.Ed.2d 276

(“Even in high crime areas, where the possibility that any given individual is armed is

significant, Terry requires reasonable, individualized suspicion before a frisk for

weapons can be conducted.”)
Stark County App. Case No. 2010CA00039                                                   5

      {¶9}   In Ybarra, police officers had a search warrant to search a public tavern

and a bartender for narcotics. When the officer entered the bar, they announced that

they were also going to search the patrons for weapons. One of the officers frisked

Ybarra, who was one of the patrons, twice, and removed a cigarette pack containing

several packets of heroin from his pocket. The United States Supreme Court held that

the pat-down search of Ybarra was unconstitutional under Terry, supra, because the

warrant did not authorize a search of the patrons and officers did not have reasonable

suspicion to frisk Ybarra. Ybarra, 444 U.S. at 90-93.

      {¶10} The United States Supreme Court held: “The initial frisk of Ybarra was

simply not supported by a reasonable belief that he was armed and presently

dangerous, a belief which this Court has invariably held must form the predicate to a

pat-down of a person for weapons. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct.

1921, 1923, 32 L.Ed.2d 612; Terry v. Ohio, supra, 392 U.S., at 21-24, 27, 88 S.Ct., at

1879-1881, 1883. When the police entered the Aurora Tap Tavern on March 1, 1976,

the lighting was sufficient for them to observe the customers. Upon seeing Ybarra, they

neither recognized him as a person with a criminal history nor had any particular reason

to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson

later testified, Ybarra, whose hands were empty, gave no indication of possessing a

weapon, made no gestures or other actions indicative of an intent to commit an assault,

and acted generally in a manner that was not threatening. At the suppression hearing,

the most Agent Johnson could point to was that Ybarra was wearing a 3/4-length

lumber jacket, clothing which the State admits could be expected on almost any tavern

patron in Illinois in early March. In short, the State is unable to articulate any specific
Stark County App. Case No. 2010CA00039                                                    6


fact that would have justified a police officer at the scene in even suspecting that Ybarra

was armed and dangerous.” Id at 92-93 (footnote omitted).

       {¶11} In State v. Gilmer, Stark App. No. 2009 CA 00283, 2010-Ohio-4631, this

Court found that police did not have a reasonable, articulable suspicion to justify a pat-

down of a bar patron.     Officers had entered the bar to check the validity of the liquor

license of the establishment. While in the bar, officers asked the patrons to produce

identification.   Appellant appeared nervous and attempted to quickly finish the two

drinks in front of him so he could leave the bar. We concluded that the officer did not

have an individualized suspicion that appellant was armed and dangerous because the

officer testified that he did not go to the bar to find appellant, he had no reports that

appellant was involved in any criminal activity and he never saw appellant with a gun.

Id. at ¶41. The officer further testified that he did not see a bulge or any metal object on

appellant that looked like a weapon and when appellant stood up, he did not see any

suspicious objects on appellant. Id. The officer testified that the only reason he believed

that appellant might have a weapon on him was because appellant was nervous while

everyone else at the bar “seemed to …be okay with the fact that the police are in there

checking the liquor license, asking for people’s identification.” Id.

       {¶12} In the instant case, appellant was stopped for a minor misdemeanor

offense. Sgt. Marino testified that he patted appellant down because of the “activity that

goes on in that area.”      Tr. 9.   Sgt. Marino admitted that he had no evidence or

information that appellant was committing any offense other than walking along a

roadway, and no information to suggest that appellant was armed. Tr. 11. Officer

Dendinger likewise testified that he had no evidence or information that appellant was
Stark County App. Case No. 2010CA00039                                              7


committing an offense other than the misdemeanor offense for which he was stopped,

and had no information or evidence that appellant was armed. Tr. 16-17.

      {¶13} Based on the evidence presented at trial, the officers did not have a

reasonable individualized suspicion that appellant was armed. As noted earlier, even

though appellant was stopped in a high crime area where the possibility that any given

individual is armed may be significant, Terry requires a reasonable, individualized

suspicion before a frisk for weapons can be conducted. Maryland v. Buie, supra.

      {¶14} The assignment of error is sustained.
Stark County App. Case No. 2010CA00039                                                                  8


        {¶15} The judgment of the Stark County Common Pleas Court overruling

appellant’s motion to suppress is reversed. This cause is remanded to that court for

further proceedings according to law and consistent with this opinion.1



By: Edwards, P.J.

Hoffman, J. and

Delaney, J. concur

                                                            ______________________________



                                                            ______________________________



                                                            ______________________________

                                                                           JUDGES

JAE/r1014




1
  In the instant case, the search incident to a lawful arrest exception does not apply because under R.C.
2935.26, a suspect may not be arrested for a minor misdemeanor absent special circumstances set forth
in the statute, which were not alleged in the instant case. Therefore, an arrest would have violated
Section 14, Article 1 of the Ohio Constitution and any evidence seized in a search incident to such arrest
would be suppressed. State v. Brown, 99 Ohio St.3d 323, 792 N.E.2d 175, 2003-Ohio-3931, ¶25.
[Cite as State v. Jones, 2011-Ohio-535.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
EIERONSTAN D. JONES                               :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2010CA00039




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is reversed and remanded to the

trial court for further proceedings. Costs assessed to appellee.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
