[Cite as State v. Whitten, 2012-Ohio-4455.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 25031
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 11-CR-1426
v.                                                :
                                                  :
JERRY S. WHITTEN                                  :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
        Defendant-Appellant                       :
                                                  :
                                               ...........

                                              OPINION

                            Rendered on the 28th day of September, 2012.

                                               ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post
Office Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MICHAEL C. THOMPSON, Atty. Reg. #0041420, 5 North Williams Street, Wright-Dunbar
Business Village, Dayton, Ohio 45402-2843
       Attorney for Defendant-Appellant


                                              .............

HALL, J.

        {¶ 1}     Jerry S. Whitten appeals from his conviction and sentence following a
                                                                                          2


no-contest plea to one count of crack cocaine possession, a fifth-degree felony.

       {¶ 2}    In his sole assignment of error, Whitten contends the trial court erred in

overruling his motion to suppress the evidence against him.

       {¶ 3}    The facts underlying the present appeal are set forth in the trial court’s

November 28, 2011 entry and order overruling the motion. The trial court’s factual findings,

which were based on suppression-hearing testimony, are as follows:

               On April 20, 2011 Officers Timothy Braun and Don Boegner were

       working the 11:30 PM-7:30 AM shift as police officers for the City of Dayton.

       Officer Braun has been with the Dayton Police Department for fourteen years,

       but has served as a police officer for twenty-three years. Previously, for six

       years Officer Braun was assigned to work with the DEA Task Force and was

       also with the drug unit of the Dayton Police Department. Both officers were

       wearing the uniform of the day and were traveling in a marked City of Dayton

       police cruiser. Officer Boegner was driving the cruiser that morning, with

       Officer Braun as the passenger.

               At approximately 3:30-3:45 AM on April 20, 2011, the officers were in

       the area of Steele and Clover in the City of Dayton, Montgomery County, Ohio.

       The Dayton Police Department had received numerous citizen complaints

       about drug sales in the area of Steele and Clover, and other officers had made

       drug arrests in the same general area. The citizen complaints were very specific

       and were related to the one block area around Steele and Clover. From the

       experience of the officers, drug sales in that area have increased in the past
                                                                                       3


year, along with criminal activity, such as theft, robberies and burglaries, which

are often experienced in an area where there is drug activity. Officers Braun

and Boegner were on Steele driving southbound from Clover when they

observed a red pickup truck driving northbound on Steele make a right hand

turn eastbound on Clover without signaling the turn. Officer Braun had

obtained the license number and, after running the information, learned that the

registered owner of the vehicle had numerous field interview cards in the police

department’s MIS system, indicating that the owner had been interviewed

regarding, and at times arrested for, possession of cocaine. Most of the field

interviews had taken place in west Dayton. The Steele and Clover area is in

east Dayton. It was raining, although eventually, during a traffic stop described

below, the rain turned into what Officer Braun described as “a downpour.”

There was no other traffic in the area.

       The officers turned their vehicle around to make contact with the

vehicle. The vehicle turned from Clover onto St. Paul. In following the path of

the vehicle, the officers traveled to the area of Xenia Avenue, where they lost

contact with the vehicle. The officers remained in the area and a short time

later observed the same vehicle turn off McClain and onto McClure Avenue.

Officer Braun confirmed, based upon the license plate information previously

obtained, that it was the same vehicle. The officers initiated a traffic stop of the

vehicle for the violation previously observed. The vehicle stopped immediately.

The officers exited their cruiser; Office[r] Boegner approached the driver’s side
                                                                                    4


of the vehicle and Officer Braun approached the passenger side of the vehicle.

As Officer Braun approached the vehicle the window was already down.

Officer Braun had already made verbal contact with the passenger as he

approached the vehicle. He noticed that the passenger, later identified as the

defendant herein, Jerry Whitten, was leaning over in what was described by the

officers as an “unnatural position,” with his right hand down at the floorboard.

The passenger was not wearing a seat belt. Officer Braun asked Whitten for

identification and advised him that he was going to write him a citation for not

wearing his seatbelt. Officer Braun could not see what Whitten was doing or

what he may have had as he was leaning. Whitten was not moving around and

Officer Braun found his position, particularly, to be suspicious and alarming.

Officer Braun was concerned that Whitten had a weapon. He did not want to

lean in the vehicle to see if it was a weapon out of concern for his safety.

Officer Braun was concerned that, based upon the manner in which Whitten

was sitting, that he had a weapon. Officer Braun opened the passenger door to

make certain that Whitten did not have a weapon, given his unusual

movements. Upon opening the door Officer Braun observed an open 40 ounce

can of beer between the passenger seat and the door of the vehicle. The can

contained liquid, which Braun believed was alcohol.

       Officer Braun asked Whitten to step out of the vehicle. He advised

Whitten that it was an arrestable offense to have an open container of alcohol in

a motor vehicle. Whitten stood up and Braun had Whitten face away from him
                                                                                   5


for the purpose of conducting a pat-down of his person. Officer Braun, who

was holding Whitten’s waistband, asked Whitten if he had any weapons on

him. Whitten responded “no.” However, Officer Braun could see the outline of

a pocket knife in Whitten’s back right pocket. He asked Whitten again if he had

any weapons on him. Whiten responded “that’s just a little pen knife.” Officer

Braun removed the knife, which was about three inches long when folded. He

then continued to pat down Whitten for any additional weapons.

       Whitten had not been advised that he was under arrest, nor had Officer

Braun drawn his weapon. Officer Braun has conducted thousands of pat downs

in his career. While still standing behind Whitten and while he was patting

down Whitten right below Whitten’s belt line in his underwear below his navel

Officer Braun felt a hard cigarette pack, which he immediately recognized as

such. During his career, when conducting a pat down, Officer Braun has found

hundreds of cigarette packs in pockets. In the past he has found cigarette packs

in the area he felt the pack on Whitten’s body, each time containing drug[s],

drug paraphernalia or weapons. Officer Braun stated to Whitten “you have

some stuff on you, don’t you.” Whitten shook his head in the affirmative.

Braun replied “crack?” Whitten responded “yeah, just a twenty.” Officer Braun

walked Whitten back to the police cruiser, handcuffed Whitten, and removed

the cigarette pack from Whitten’s person by pushing it out of his waistband. As

he was pushing the pack upward out of Whitten’s pants the cigarette package

opened. Officer Braun states “whoops,” to which Whitten spontaneously
                                                                                               6


       replied, “don’t worry, it’s at the bottom.”

               In the cigarette package was a plastic baggie which appeared to contain

       crack cocaine. Officer Braun continued the search. While he continued the

       search he felt an object near Whitten’s test[i]cles which he immediately

       recognized as a crack pipe. As Braun was about to retrieve the object Whitten

       stated “you don’t have to get it, it’s falling out.” Whitten then shook his leg and

       the crack pipe fell to the ground, where Officer Braun retrieved the object.

               Defendant was then placed in the officers’ cruiser. The driver of the

       vehicle, James Coots, who was the registered owner of the vehicle, was also

       placed in the cruiser and issued a citation for the traffic violation. When the

       driver had exited the cruiser Whitten was then transported to jail.

               At the jail Officer Braun verbally advised Whitten of his Miranda

       rights. Whitten agreed to speak with Officer Braun. Whitten had an odor of

       alcohol on his breath but was very coherent and very polite. Whitten advised

       Braun that he knew Coots from prison and that Coots had called him and they

       had driven to Dayton with the purpose of purchasing crack. Whitten also told

       Officer Braun that shortly before the officers had first seen the vehicle on

       Steele they had purchased crack cocaine.

(Doc. #11 at 1-4).

       {¶ 4}    Based on the foregoing facts, the trial court found a traffic stop justified due to

an observed turn-signal violation. The trial court further found that Braun possessed a

reasonable, articulable suspicion that Whitten was armed, thereby authorizing a pat down.
                                                                                              7


Although the pat down resulted in Braun feeling a cigarette package, the trial court concluded

that Braun could not remove the package based on an assumption that it contained contraband.

Instead, the trial court found removal of the package justified based on Whitten’s statements

to Braun. The trial court concluded that Whitten was not “in custody” for Miranda purposes

when Braun patted him down and inquired about the cigarette package. The trial court

reasoned that Whitten’s admission about possessing crack cocaine gave Braun probable cause

to conduct a search incident to arrest, including a search of the cigarette package. Finally, with

regard to Whitten’s post-arrest statements at the jail, the trial court concluded that they were

preceded by a valid Miranda waiver and that they were made voluntarily. As a result, the trial

court overruled Whitten’s suppression motion. (Id. at 5-11).

       {¶ 5}    Following the trial court’s ruling, Whitten pled no contest to one count of

crack cocaine possession. The trial court found him guilty and sentenced him to community

control. This appeal followed.

       {¶ 6}    In his assignment of error, Whitten challenges the trial court’s suppression

ruling. Whitten advances three arguments in support. First, he contends Braun unlawfully

arrested him for a minor-misdemeanor open-container violation. Second, if only an

investigatory detention occurred, Whitten claims Braun lacked reasonable, articulable

suspicion to justify a weapons pat down. Third, assuming the pat down was lawful, Whitten

asserts that Braun unlawfully seized and searched the cigarette package when its incriminating

character was not readily apparent.

       {¶ 7}    “In reviewing a decision of a trial court on a motion to suppress, an appellate

court gives broad deference to a trial court’s findings of fact. * * * But whether the facts found
                                                                                             8


by the trial court justify suppression of the evidence is a question of law subject to de novo

review.” State v. Anderson, 2d Dist. Montgomery No. 24678, 2012-Ohio-441, ¶ 10. Having

reviewed the record, we conclude that the trial court’s factual findings are supported by

Officer Braun’s suppression-hearing      testimony. Applying those facts to the legal issues

before us, we find, for the reasons below, that Whitten was not arrested for a minor

misdemeanor, that Braun had reasonable, articulable suspicion justifying a weapons pat down,

and that Braun lawfully seized and searched the cigarette package.

       {¶ 8}    As an initial matter, Whitten does not dispute the lawfulness of the traffic stop

based on a turn-signal violation. Dayton v. Erickson, 76 Ohio St.3d 3, 1996-Ohio-431, 665

N.E.2d 1091. Officer Braun approached the stopped vehicle, asked Whitten for identification,

and explained that Whitten was going to be cited for not wearing a seatbelt. Whitten noticed

that Braun was leaning over with his right hand near the floorboard. Concerned that he might

be holding a weapon, Braun opened the car door and observed an open can of beer. At that

point, Braun lawfully ordered Whitten out of the car. Maryland v. Wilson, 519 U.S. 408, 117

S.Ct. 882, 137 L.Ed.2d 41 (1997) and Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54

L.Ed.2d 331 (1977). Although Braun told Whitten an open-container violation was an

arrestable offense, the record does not reflect that Whitten actually was arrested at that point.

(Suppression Tr. at 10).

       {¶ 9}    As Whitten exited the car and stood up, Braun had him face away and asked

whether he had any weapons on him. Whitten responded negatively. Braun knew this was

untrue because he could see the outline of a knife in Whitten’s back pocket. (Tr. at 11-12).

Whitten’s denial and Braun’s observation of the knife gave the officer reasonable, articulable
                                                                                           9


suspicion to conduct a pat down for additional weapons. That pat down resulted in Braun

feeling what he immediately recognized as a cigarette package down the front of Whitten’s

underwear.

       {¶ 10} Without removing the cigarette package, Braun stated: “You have some stuff

on you, don’t you.” (Id. at 15). Whitten responded affirmatively. (Id.). Braun asked whether it

was crack, and Whitten responded, “Yeah, just a 20.” (Id.). When Whitten made these

admissions, he had been “seized” for purposes of an investigatory detention but was not yet

“in custody” for purposes of Miranda warnings. See, e.g., State v. Healy, 2d Dist.

Montgomery No. 18232, 2000 WL 1062197, *6 (Aug. 4, 2000) (recognizing that a person

temporarily detained for a Terry stop is not “in custody” for purposes of Miranda). At that

point, the restraint on Whitten’s freedom of movement was not at a level associated with a

formal arrest. The record does not reflect that Whitten was held at gunpoint, that he was

ordered to the ground, that he was told to place his hands behind his back, or that he was

handcuffed. The detention was brief, Whitten remained next to the truck, and he was not told

that he was under arrest. Therefore, Miranda warnings were not necessary when Braun

inquired about the contents of the cigarette package.

       {¶ 11} Whitten’s admission that he possessed crack cocaine gave Braun probable

cause to arrest him for drug possession, to seize the cigarette package, and to look inside.

Compare State v. Lee, 2d Dist. Montgomery No. 18517, 2001 WL1048550, *3 (Sept. 14,

2001) (“On appeal, the State relies on Lee’s response to House’s question about what was in

his pocket—‘just a little weed, if anything’—as justification for the removal of what turned

out to be crack cocaine. Although Lee did not admit to possessing crack cocaine, he did admit
                                                                                          10


to possessing contraband drugs. It was not necessary during this investigative detention that

House Mirandize Lee before asking him what was in his pocket, and Lee’s answer furnished

probable cause for seizure of what turned out to be crack cocaine.”); State v. Martin, 2d Dist.

Montgomery No. 19186, 2002-Ohio-2621, ¶ 35 (“The trial court simply thought it

inappropriate for Emerson to ask a jaywalker about drugs. While this inquiry may have been

inappropriate, it did not convert an investigative stop into a formal arrest or a restraint on

Martin’s freedom of the degree commonly associated with an arrest. Accordingly, Officer

Emerson was not required to comply with the requirements of Miranda before asking

questions of Martin. Accordingly, Martin’s admissions provided the basis for probable cause

to search her for the cocaine she possessed.”); State v. Mapson, 8th Dist. Cuyahoga No.

87409, 2006-Ohio-5248, ¶ 22 (“Since Douglas’ investigatory stop of Mapson ‘did not rise to

the level of a custodial arrest,’ his question of whether Mapson had ‘anything’ on his person

did not ‘trigger the requirement of Miranda warnings.’ Mapson’s answer, viz., that he was

carrying a type of illegal contraband, in turn, gave Douglas cause immediately to remove the

item from Mapson’s pocket.” (Citation omitted.)). Finally, contrary to Whitten’s argument in

his reply brief, we are unpersuaded that his incriminating admission was too vague to be

meaningful.

       {¶ 12} Based on the foregoing reasoning, we find no error in the trial court’s denial of

Whitten’s suppression motion. Whitten’s assignment of error is overruled, and the judgment

of the Montgomery County Common Pleas Court is affirmed.

                                       .............

FAIN and DONOVAN, JJ., concur.
                       11




Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Michael C. Thompson
Hon. Mary K. Huffman
