[Cite as State v. Davis, 2020-Ohio-619.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-19-17

        v.

JUSTIN M. DAVIS,                                           OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 18 CR 0255

                                       Judgment Affirmed

                           Date of Decision: February 24, 2020




APPEARANCES:

        John M. Kahler, II for Appellant

        Angela M. Boes for Appellee
Case No. 13-19-17


PRESTON, J.

       {¶1} Defendant-appellant, Justin M. Davis (“Davis”), appeals the May 15,

2019 judgment of sentence of the Seneca County Court of Common Pleas. For the

reasons that follow, we affirm.

       {¶2} On November 21, 2018, the Seneca County Grand Jury indicted Davis

on a single count of possession of heroin in violation of R.C. 2925.11(A), (C)(6)(a),

a fifth-degree felony. (Doc. No. 1). On December 12, 2018, Davis appeared for

arraignment and entered a plea of not guilty. (Doc. No. 9).

       {¶3} On December 21, 2018, Davis filed a motion to suppress. (Doc. No.

10). On February 4, 2019, the State filed its opposition to Davis’s motion to

suppress. (Doc. No. 14). The trial court held a hearing on the motion to suppress

on February 5, 2019 and February 12, 2019. (Doc. No. 18). On March 13, 2019,

the trial court denied Davis’s motion to suppress. (Id.).

       {¶4} On April 8, 2019, Davis withdrew his plea of not guilty and entered a

no contest plea to the count in the indictment. (Doc. No. 22). The trial court found

Davis guilty and ordered a pre-sentence investigation. (Id.). On May 15, 2019, the

trial court sentenced Davis to three years of community control. (Doc. No. 24).

       {¶5} Davis filed his notice of appeal on June 6, 2019. (Doc. No. 25). He

raises two assignments of error, which we address together.




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                            Assignment of Error No. I

       The trial court erred when it denied Appellant’s motion to
       suppress evidence on the grounds that the Appellant consented
       to the search or that the search was warranted by exigent
       circumstances.

                           Assignment of Error No. II

       The trial court erred in denying Appellant’s motion to suppress
       evidence as the officer had no jurisdiction to detain Appellant for
       a traffic violation committed outside of the officer’s
       jurisdictional territory.

       {¶6} In his first assignment of error, Davis argues that the trial court erred by

denying his motion to suppress because he did not consent to a search of his person

and the search was not warranted by exigent circumstances.              In his second

assignment of error, Davis argues that the trial court erred by denying his motion to

suppress because Sergeant Joe Feld (“Sergeant Feld”) acted outside of his authority

by detaining Davis outside of Sergeant Feld’s jurisdiction.

       {¶7} “Appellate review of a motion to suppress presents a mixed question of

law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a

suppression hearing, the trial court assumes the role of trier of fact and, as such, is

in the best position to evaluate the evidence and the credibility of witnesses. Id. See

also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a

motion to suppress, deference is given to the trial court’s findings of fact so long as

they are supported by competent, credible evidence. Burnside at ¶ 8, citing State v.


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Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of

law, however, our standard of review is de novo; therefore, we must decide whether

the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124

Ohio App.3d 706, 710 (4th Dist.1997).

       {¶8} The Fourth Amendment to the United States Constitution guarantees

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures * * *.” “‘The primary purpose of the

Fourth Amendment is to impose a standard of reasonableness upon the exercise of

discretion by law enforcement officers in order to “safeguard the privacy and

security of individuals against arbitrary [governmental] invasions.”’” State v. Kerr,

3d Dist. Allen No. 1-17-01, 2017-Ohio-8516, ¶ 12, quoting State v. Carlson, 102

Ohio App.3d 585, 592 (9th Dist.1995), quoting Delaware v. Prouse, 440 U.S. 648,

99 S.Ct. 1391 (1979). “‘The Fourth Amendment does not proscribe all state-

initiated searches and seizures; it merely proscribes those which are unreasonable.’”

Id., quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801 (1991), citing

Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793 (1990). “Thus, ‘[t]he touchstone

of the Fourth Amendment is reasonableness.’” Id., quoting Jimeno at 250.

       {¶9} Because our decision with respect to Davis’s second assignment of

error could affect whether we address his first assignment of error or the manner in

which we do so, we will first address Davis’s argument that Sergeant Feld did not


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have jurisdiction to detain him for a traffic violation committed outside of Sergeant

Feld’s territorial jurisdiction. “Temporary detention of individuals during the stop

of an automobile by the police, even if only for a brief period and for a limited

purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning” of the Fourth

Amendment.” Whren v. United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769

(1996), citing Prouse at 653, United States v. Martinez-Fuerte, 428 U.S. 543, 556,

96 S.Ct. 3074 (1976), and United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95

S.Ct. 2574 (1975). Accordingly, “[a]n automobile stop is * * * subject to the

constitutional imperative that it not be ‘unreasonable’ under the circumstances.” Id.

at 810. An automobile stop based on probable cause that a criminal violation,

including a minor traffic violation, has occurred or was occurring “is not

unreasonable, and * * * an officer who makes a traffic stop based on probable cause

acts in an objectively reasonable manner.” Dayton v. Erickson, 76 Ohio St.3d 3,

11-12 (1996). In this context, “[p]robable cause ‘means less than evidence which

would justify condemnation,’ so that only the ‘probability, and not a prima facie

showing of criminal activity is the standard of probable cause.’” State v. Gonzales,

3d Dist. Seneca Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, ¶ 18, quoting State v.

George, 45 Ohio St.3d 325, 329 (1989).

       {¶10} Davis argues that because Sergeant Feld is a police officer with the

City of Tiffin Police Department, he did not have the jurisdiction to conduct a traffic


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stop of the vehicle outside of the city of Tiffin. In support of his position, Davis

relies on State v. Brown, which states that “[a] traffic stop for a minor misdemeanor

made outside a police officer’s statutory jurisdiction or authority violates the

guarantee against unreasonable searches and seizures established by Article I,

Section 14 of the Ohio Constitution.” 143 Ohio St.3d 444, 2015-Ohio-2438, ¶ 26.

However, based on the totality of the circumstances surrounding this incident, we

conclude that although law enforcement officers engaged the vehicle’s occupants in

a Terry stop, they did not engage the vehicle’s occupants in a traffic stop.

       {¶11} The trial court found that on June 5, 2017, Sergeant Feld, an officer

with the Tiffin Police Department, “discovered that a vehicle whose registered

owner had a suspended driver’s license was traveling on North Sandusky Street in

Tiffin, Ohio.” (Doc. No. 18). After perceiving that the driver of the vehicle fit the

physical description of the registered owner, Sergeant Feld followed the vehicle.

(Id.). The trial court found that “[t]he vehicle then traveled outside of Sergeant

Feld’s jurisdiction and made a sudden right turn into a driveway.” (Id.). Sergeant

Feld radioed Officer Justin Nowak (“Officer Nowak”), a fellow officer with the

Tiffin Police Department with his observations. (Id.).

       {¶12} The trial court found that when Officer Nowak arrived he “observed

two males in front of the parked car, and a third male walking to the front of the

residence.” (Id.). Officer Nowak also “observed one of the males bent down to the


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ground, who then stood up, looked at Officer Nowak, then turned around and made

a motion as if throwing something on the ground.”              (Id.).   Officer Nowak

“recognized the Defendant as one of the males standing in the driveway.” (Id.).

“The occupant of the residence did not know any of the persons from the car and

indicated they had not been invited to the residence.” (Id.). The vehicle occupants

were advised of their Miranda rights. (Id.). Chelsy Tyree (“Tyree”), another

occupant of the vehicle, “told officers that the group had driven to Fremont to

purchase heroin” and gave the officers two hypodermic needles she had concealed

in her bra. (Id.).

       {¶13} At the suppression hearing, Sergeant Feld testified that on June 5,

2017, he was on duty traveling northbound on North Sandusky Street waiting to turn

left at the intersection of North Sandusky Street and Tyber Road when he observed

a vehicle approach from the southbound lane of North Sandusky Street and make a

right turn onto Tyber Road, essentially crossing directly in front of him. (Feb. 5,

2019 Tr. at 4-7). Sergeant Feld testified that the southbound lane of North Sandusky

Street is immediately adjacent to the northbound lane of North Sandusky Street. (Id.

at 16). The northbound lane of North Sandusky Street is in the city of Tiffin but the

southbound lane of North Sandusky Street and the relevant portion of Tyber Road

are outside of the city limits and therefore out of Sergeant Feld’s jurisdiction. (Id.).




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       {¶14} As Sergeant Feld was stopped at the intersection of North Sandusky

Street and Tyber Road, he conducted a license-plate check on the oncoming vehicle.

(Id. at 7). The license-plate check indicated that the registered owner of the vehicle,

Adam Cornett (“Cornett”), had a suspended driver’s license. (Id.). After verifying

that the driver of the vehicle matched the LEADS description of Cornett, Sergeant

Feld intended to follow the vehicle which had turned onto Tyber Road. (Id.). As

Sergeant Feld followed the vehicle, the vehicle turned into the first driveway on the

right so quickly that Sergeant Feld was not able to turn in after it. (Id.). Sergeant

Feld informed Officer Nowak, a fellow officer with the City of Tiffin Police

Department who was patrolling traffic in the area, of the possible suspended driver

turning into the driveway on Tyber Road. (Id. at 6-7). As Sergeant Feld traveled a

distance to turn around, Officer Nowak arrived at the scene. (Id. at 7-8, 26-27). As

Officer Nowak approached the scene, he recognized the residence to be that of Jason

Keller (“Keller”). (Id. at 28). The residence is located outside the City of Tiffin but

inside Seneca County. (Id.).

       {¶15} Officer Nowak testified that in addition to his work as a police officer

with the Tiffin Police Department, he is a member of the Seneca County Drug Task

Force METRICH Enforcement Unit (“METRICH Unit”). (Id. at 24). According to

Officer Nowak, the METRICH Unit is a multi-jurisdictional task force “specifically

designated to investigate drug operations and illegal activity throughout Seneca


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County.” (Id.). Officer Nowak testified that as a member of the METRICH Unit,

he participates in a dual role as a patrol officer and a narcotics investigator. (Id. at

25). As a member of the METRICH Unit, Officer Nowak has additional drug-

related and search-and-seizure training and is aware of all drug intelligence that

comes in through the METRICH Unit. (Id. at 25-26).

       {¶16} Officer Nowak testified that he learned from Sergeant Feld that

Cornett was the suspected driver of the vehicle. (Id. at 28-29). Officer Nowak

testified that he knew of Cornett through drug intelligence and had several

encounters with Cornett through his work in law enforcement. (Id. at 29). Officer

Nowak further testified that although he never came into personal contact with

Davis before June 5, 2017, Officer Nowak was familiar with Davis through his name

and photograph because Davis was a suspect in an ongoing burglary investigation.

(Id. at 26). Officer Nowak was also familiar with Davis as an individual suspected

of drug activity throughout Seneca County. (Id. at 26-27).

       {¶17} Officer Nowak stated that as he pulled in behind Cornett’s vehicle, he

saw Davis and Tommy Halcomb, Jr. (“Halcomb”) located in front of the vehicle.

(Id. at 30). Officer Nowak testified that he recognized Halcomb from previous

interactions he had with him regarding drug-related activities. (Id. at 30-31).

Officer Nowak testified that as he pulled into the driveway, he observed Davis

standing in close proximity to Halcomb, who was bent over. (Id. at 31). Halcomb


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then looked over his shoulder at Officer Nowak and stood up and made a motion

consistent with throwing something to the ground. (Id.). Officer Nowak testified

that in his experience as a law enforcement officer, persons that he was stopping or

about to detain have attempted to hide or conceal items to avoid discovery, including

by throwing items to try to get rid of them before law enforcement makes contact

with them. (Id. at 32-33).

       {¶18} Officer Nowak made contact with Davis and Halcomb and then

located Tyree, Davis’s girlfriend, in the rear passenger seat of the vehicle. (Id. at

33). Officer Nowak also recognized Tyree as an individual named on drug-activity

intelligence information and removed Tyree from the vehicle. (Id. at 33-34).

       {¶19} Sergeant Feld arrived on the scene and found Cornett, the driver of the

vehicle, at the rear of the residence knelt down beside an air conditioning unit and

appearing to be attempting to hide. (Id. at 7-8, 30). As Sergeant Feld accompanied

Cornett to the front of the house, Keller came out of the residence and told law

enforcement that he did not know Davis, Cornett, Halcomb, or Tyree and did not

invite them on the property. (Id. at 8). Keller stated that Cornett was knocking on

the door of his property and when Officer Nowak pulled in the driveway, Cornett

ran to the rear of the residence. (Id. at 30).

       {¶20} Davis and Halcomb were placed in handcuffs and secured at the scene

for officer safety purposes while Sergeant Feld retrieved Cornett from the rear of


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the residence. (Id.). Officer Nowak stated that he believed that investigatory

detainment of Halcomb and Davis was appropriate because initially there were four

total subjects and only two law enforcement officers on the scene. (Id. at 35).

Moreover, they had knowledge that Davis was a suspect for burglary, Cornett had

already attempted to run and hide, and Officer Nowak observed Halcomb throw

something as Officer Nowak pulled into the driveway. (Id. at 35-36). Moreover,

all four of the subjects were known to the officers through drug activity-intelligence.

(Id. at 36).

       {¶21} Officer Nowak spoke to Tyree who claimed that she did not know why

Cornett had pulled into Keller’s driveway, but admitted that she, Davis, Halcomb,

and Cornett were returning to town after traveling to Fremont to purchase heroin.

(Id. at 34). Tyree told Officer Nowak that Cornett and Halcomb were shooting up

heroin while driving down the road and that once they pulled into Keller’s driveway,

Cornett gave Tyree two hypodermic syringes and asked her to hide them. (Id. at

34-35). Tyree turned over the syringes to Officer Nowak. (Id. at 35). Tyree also

informed Officer Nowak that two spoons were hidden underneath the driver’s seat

of the vehicle. (Id.).

       {¶22} When the Seneca County Sheriff’s Department arrived on the scene,

they conducted a search of the vehicle where they found a marijuana pipe belonging

to Halcomb and spoons located under the driver’s seat. (Feb. 12, 2019 Tr. at 13-


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14). Additionally, they discovered a small bag of suspected heroin in an area of

grass near the location where Davis and Halcomb were located upon Officer

Nowak’s arrival to the scene. (Id. at 14).

       {¶23} Officer Nowak asked the four suspects if he could search them. (Id.

at 10-11). Davis was searched and inside a dollar bill located in his wallet, Officer

Nowak discovered a white-powder substance that Davis admitted was heroin. (Id.

at 11-12).

       {¶24} At no point during the encounter did Officer Nowak or Sergeant Feld

activate the lights on their patrol vehicles. (Id. at 27); (Feb. 5, 2019 Tr. at 17). At

the conclusion of the encounter, Davis was released from the handcuffs and his

detention ended. (Feb. 12, 2019 Tr. at 15). According to Officer Nowak, the entire

encounter lasted approximately 25 to 30 minutes. (Id. at 13).

       {¶25} Thus, we find that the trial court’s findings of fact are based on

competent, credible evidence.

       {¶26} After reviewing the record, we conclude that neither Officer Nowak

nor Sergeant Feld engaged the vehicle’s occupants in a traffic stop. Neither Officer

Nowak nor Sergeant Feld activated their overhead lights or used any other

demonstration of authority to cause the vehicle to stop. See State v. Gonzales, 9th

Dist. Medina No. 18CA0072-M, 2019-Ohio-1928, ¶ 15 (noting that the fact that the

engaging officer did not activate his overhead lights or use another show of authority


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to cause the vehicle to stop is a factor indicating that the law enforcement officer

did not conduct a traffic stop on the vehicle).    Rather, when Officer Nowak, who

was the first law enforcement officer to arrive, pulled up on the scene, the vehicle

was already stopped in Keller’s driveway. Moreover, three of the four passengers

were no longer in the vehicle—Davis and Halcomb were located nearby the vehicle

and Cornett was hiding at the back of Keller’s property. Furthermore, it was Officer

Nowak and not Sergeant Feld that ultimately initiated contact with the vehicle’s

occupants. Because this incident was not a traffic stop, Davis’s reliance on Brown

is misplaced as Brown specifically concerns police authority to conduct traffic stops.

See Gonzales at ¶ 15. Rather, the totality of the circumstances surrounding the

incident lead us to conclude that Officer Nowak engaged the vehicle’s occupants in

a Terry stop that was not a traffic stop.

          {¶27} Although we have concluded that the encounter with Davis was not a

traffic stop, we must still determine whether Officer Nowak had the authority to

engage Davis and the other vehicle occupants in a Terry stop outside of the city of

Tiffin.

          {¶28} The protections of the Fourth Amendment to the United States

Constitution extend to brief investigative stops that fall short of traditional arrest.

State v. Hairston, 156 Ohio St.3d 363, 2019-Ohio-1622, ¶ 9, citing United States v.

Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744 (2002). The United States Supreme Court


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has analogized a typical traffic stop to a Terry stop. State v. Hemmer, 3d Dist. Logan

No. 8-99-20, 2000 WL 681651, *3 (May 25, 2000), citing Berkemer v. McCarty,

468 U.S. 420, 104 S.Ct. 3138 (1984). However, not all Terry stops are traffic stops.

“An officer may perform [a Terry stop] when the officer has a reasonable suspicion

based on specific and articulable facts that criminal behavior has occurred or is

imminent.” Hairston at ¶ 9, citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868

(1968). “And when the officer is ‘justified in believing’ that an individual may be

‘armed and presently dangerous,’ the officer may conduct a limited protective

search of the individual for concealed weapons.” Id., citing Terry at 24 and Adams

v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921 (1972).

       {¶29} “The reasonable-suspicion standard is less demanding than the

probable-cause standard used when analyzing an arrest.” Id. at ¶ 10, citing United

States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581 (1989). “The determination

whether an officer had reasonable suspicion to conduct a Terry stop must be based

on the totality of circumstances ‘viewed through the eyes of the reasonable and

prudent police officer on the scene who must react to events as they unfold.’” Id.,

quoting State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991). “An assessment of the

totality of the circumstances ‘does not deal with hard certainties, but with

probabilities.’” Id., citing United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690

(1981). The cumulative facts are considered “‘not in terms of library analysis by


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scholars, but as understood by those versed in the field of law enforcement.’” Id.,

quoting Cortez at 418.

        {¶30} Here, the cumulative facts support the conclusion that Officer Nowak

engaged Davis in a proper Terry stop. First, as Officer Nowak approached the

vehicle passengers, he observed a number of suspicious behaviors. As Officer

Nowak approached the scene, he witnessed Halcomb throw an object upon seeing

Officer Nowak. Moreover, Officer Nowak recognized Davis as a suspect in a

burglary investigation and recognized Davis and Halcomb through drug-activity

intelligence. Additionally, Officer Nowak was aware that Sergeant Feld witnessed

Cornett make evasive movements. Officer Nowak was also aware that none of the

individuals resided at the residence. Moreover, shortly after arriving on the scene,

Officer Nowak learned that Cornett had fled to the back of the house as Officer

Nowak arrived on the scene. Given the cumulative facts, we find that Officer

Nowak would have had reasonable suspicion to justify detaining Davis for a Terry

stop.

        {¶31} Moreover, while Officer Nowak is police officer for the city of Tiffin,

he is also assigned to the METRICH Unit.           As Office Nowak testified, the

METRICH Unit has jurisdiction throughout Seneca County to investigate drug-

related criminal activity. Accordingly, Officer Nowak had the jurisdiction to initiate




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a Terry stop of Davis on suspicion of drug-related activity in Seneca County in his

capacity as an investigator with the METRICH Unit.

       {¶32} Davis argues that the law enforcement officers exceeded the scope of

their authority by placing him in handcuffs. However, a police officer may restrain

an individual’s movement with handcuffs during a Terry stop if the facts warrant it.

“‘Force may be used, even in the form of handcuffs, during a Terry stop if it is

reasonably necessary and is limited in scope and duration.’” In re E.H., 8th Dist.

Cuyahoga No. 107614, 2019-Ohio-2572, ¶ 36, quoting State v. White, 2d Dist.

Montgomery No. 18731, 2002 WL 63294 (Jan. 18, 2002), fn.1, and citing United

States v. Chavez, 812 F.2d 1295, 1301 (10th Cir.1987) and United States v. Bautista,

684 F.2d 1286 (9th Cir.1982).       “‘Handcuffing a suspect in the course of an

investigative detention does not necessarily turn that investigative detention into an

arrest, so long as handcuffing is reasonable under the circumstances; for instance,

to maintain the status quo and prevent flight.’” Id., quoting State v. Carter, 2d Dist.

Montgomery No. 21145, 2006-Ohio-2823, ¶ 20. “‘Whether handcuffing or other

methods of detention are reasonable [during a Terry stop] “depends on whether the

restraint was temporary and lasted no longer than was necessary to effectuate the

purpose of the stop, and whether the methods employed were the lest intrusive

means reasonably available to verify the officers’ suspicions in a short period of

time.”’” Id. at ¶ 37, quoting State v. Payne, 2d Dist. Montgomery No. 13898, 1994


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WL 171215, *4 (May 4, 1994), quoting United States v. Glenna, 878 F.2d 967 (7th

Cir.1989). Moreover, “[i]t is well-recognized that during an investigative stop, a

police officer is entitled to ensure their own safety by handcuffing the detainee

should the situation warrant it.” State v. Feliciano, 11th Dist. Lake No. 2004-L-

205, 2006-Ohio-1678, ¶ 27, citing Terry, 392 U.S., State v. Shirey, 5th Dist. Fairfield

No. 04 CA 68, 2005-Ohio-5952, State v. White, 2d Dist. Montgomery No. 18731,

2002-Ohio-262, State v. Whitfield, 7th Dist. Mahoning No. 99 CA 111, 2000-Ohio-

2596, State v. Pickett, 8th Dist. Cuyahoga No. 76295, 2000 WL 1060653 (Aug. 3,

2000), State v. Boykins, 1st Dist. Hamilton No. C-990101, 1999 WL 979168 (Oct.

29, 1999).

       {¶33} Here, the facts justify Davis’s restraint in handcuffs during the Terry

stop. At the time Davis was handcuffed, there were four suspects and only two law

enforcement officers on the scene. Additionally, one of the suspects, Cornett, had

fled upon seeing Officer Nowak arrive at the scene. Moreover, Officer Nowak

observed Halcomb throw an object. Furthermore, Sergeant Feld had witnessed

Cornett make evasive movements with his vehicle, such as turning suddenly into

the first available driveway, when Sergeant Feld followed him in his vehicle.

Moreover, all four subjects were known to Officer Nowak through drug-activity

intelligence.




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       {¶34} As the encounter unfolded, officers learned additional information to

justify Davis’s continued detainment in handcuffs. For instance, the officers

received confirmation from Keller that he did not know the suspects and did not

invite them to his residence. Additionally, Officer Nowak learned from Tyree that

the group was returning from a trip to Fremont to purchase heroin. Moreover, Tyree

turned over drug paraphernalia to Officer Nowak that she was hiding on her person.

Finally, the entire encounter only lasted for approximately 25 to 30 minutes, at

which time the handcuffs were removed and Davis was free to leave. Based upon

these facts, we conclude that the officers’ acts were reasonable under the

circumstances.

       {¶35} Having concluded that Officer Nowak had jurisdiction to conduct a

Terry stop of Davis and that a Terry stop was justified upon the facts and

circumstances of the encounter, we next discuss Davis’s first assignment of error in

which he argues that the trial court erred by denying his motion to suppress evidence

because he did not voluntarily consent to the search, and the search was not

warranted by exigent circumstances. For the reasons that follow, we disagree.

       {¶36} “[N]either a warrant nor probable cause is needed for a search where

the person subject to the search gives consent.” State v. Marland, 3d Dist. Logan

No. 8-16-15, 2017-Ohio-4353, ¶ 24, citing State v. Posey, 40 Ohio St.3d 420, 427

(1988), citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct 2041 (1973).


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Whether consent is voluntary or is instead the product of duress or coercion is a

question of fact to be determined based on the totality of the circumstances. State

v. LaPrarie, 2d Dist. Greene No. 2010CA-0009, 2011-Ohio-2184, ¶ 50. Factors to

be considered in determining whether consent is voluntarily given include: (1) the

suspect’s custodial status and the length of the detention; (2) whether consent was

given in public or at a police station; (3) the presence of threats, promises, or

coercive police procedures; (4) the words and conduct of the suspect; (5) the

suspect’s awareness of his right to refuse consent and his status as a “newcomer to

the law”; and (6) the suspect’s education and intelligence. State v. Fry, 4th Dist.

Jackson No. 03CA26, 2004-Ohio-5747, ¶ 23, citing Schneckloth at 248-249.

Consent is not rendered involuntarily or coerced simply because police indicate a

willingness to obtain a warrant in the event consent is withheld. Marland at ¶ 27,

citing State v. Dunwoody, 5th Dist. Licking No. 2004CA49, 2005-Ohio-219, ¶ 19.

Here, Davis does not argue that his consent to the search was not voluntary; rather,

he contends that he did not give consent to the search at all.

       {¶37} At the suppression hearing, Officer Nowak testified that after arriving

on the scene, he and Sergeant Feld detained Davis, Halcomb, Tyree, and Cornett for

investigatory purposes. (Feb. 12, 2019 Tr. at 9). Officer Nowak stated that for

officer safety purposes, the four individuals were detained in handcuffs. (Id.). After

Officer Nowak handcuffed Davis, he conducted a pat down. (Id. at 22). During this


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pat down, Officer Nowak testified that he felt Davis’s wallet in his pant pocket but

did not remove the wallet. (Id. at 28-29). Officer Nowak testified that he asked

Davis and the others in the group whether there was anything illegal or that could

harm the officers that was on their persons. (Id. at 23). The group responded that

they did not have anything illegal or potentially harmful on their persons. (Id.).

       {¶38} Officer Nowak testified that he then asked the group, as a whole,

whether they consented for him to search their persons. (Id.). Officer Nowak

testified that in response, Davis verbally indicated that he consented to the search of

his person. (Id. at 23-24). Officer Nowak was unable to recall the exact words that

Davis used to acknowledge his consent to search his person. (Id. at 24).

       {¶39} Officer Nowak then commenced the search of Davis. (Id.).

During the search, Officer Nowak removed a wallet from Davis’s rear pant pocket.

(Id. at 11). Officer Nowak testified that before he opened the wallet, he asked Davis

if he could look in the wallet. (Id. at 12). When he opened the wallet, Officer

Nowak found a folded dollar bill inside. (Id. at 11). Officer Nowak testified that

before he unfolded the dollar bill, he asked Davis “if there was going to be anything

in there * * * that would harm an officer.” (Id.). Davis then admitted that there was

heroin inside the dollar bill. (Id. at 11-12). Officer Nowak unfolded the dollar bill

and observed a white powder located therein. (Id. at 12). Officer Nowak testified




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that if Davis had not consented to the search, he would not have searched him. (Id.

at 36).

          {¶40} On the other hand, Davis testified that after Officer Nowak patted

them down for weapons, Officer Nowak asked the group as a whole whether they

consented to a search. (Id. at 46). Davis stated that nobody in the group, including

himself, answered the question. (Id. at 48, 50). Davis also denied giving any kind

of nonverbal gesture to indicate his consent. (Id.). Rather, Davis stated that after

Officer Nowak asked the group for consent to search he just “stood there.” (Id. at

48). However, according to Davis, Officer Nowak proceeded to search him anyway.

(Id. at 45-46). Davis further denied that Officer Nowak asked permission before

searching his wallet. (Id. at 45). Davis acknowledged that he admitted to Officer

Nowak that the dollar bill located in his wallet contained heroin. (Id. at 46).

          {¶41} Davis argues that the trial court erred by determining that he consented

to a search of his person because Officer Nowak’s testimony is “highly suspicious.”

(Appellant’s Brief at 11).        Specifically, Davis argues that Officer Nowak’s

testimony that Davis consented to a search is suspect because Officer Nowak did

not include the fact of Davis’s consent to the search in his police report of the

incident. (Id. at 11-12).

          {¶42} With respect to the issue of consent, the trial court found that “[t]he

Defendant consented to a search of his person by Officer Nowak.” (Doc. No. 18).


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Case No. 13-19-17


       {¶43} At the suppression hearing, Officer Nowak admitted that he did not

include the fact of Davis’s consent to the search in his report of the incident, which

was written shortly following the encounter. (Feb. 12, 2019 Tr. at 24-25, 28). (See

Defendant’s Ex. B). However, Officer Nowak testified that he conducts hundreds

of stops every year and follows a standard procedure during each stop. (Id. at 32-

33). Officer Nowak stated that part of his standard procedure includes asking for

consent to search a person and that he follows this standard procedure in every stop

of a similar nature. (Id. at 33). Officer Nowak stated that due to his heavy case

load, when he writes reports on investigatory stops, he does not always specifically

lay out every step he takes. (Id. at 33-34). Officer Nowak testified that although

the fact of consent to a search is often included in the police report of an incident,

police officers, including himself, do not always specifically include this standard

protocol when writing their reports because it is standard procedure that is always

followed and is therefore implied. (Id. at 26, 33-34).

       {¶44} After reviewing the record, we find the trial court’s finding that Davis

consented to the search was based on competent, credible evidence. Despite the

conflicting testimonies, the trial court considered the evidence presented at the

suppression hearing and found Officer Nowak’s testimony to be credible. As

previously indicated, when reviewing a ruling on a motion to suppress, this court

gives deference to the trial court’s findings of fact so long as they are supported by


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Case No. 13-19-17


competent, credible evidence. See Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

at ¶ 8. The trial court was therefore free to believe all, part, or none of Officer

Nowak’s testimony and Davis’s testimony. See State v. Coleman, 12th Dist. Fayette

No. CA2011-09-020, 2012-Ohio-3630, ¶ 19.            “[W]e defer to the credibility

determinations made by the trial court at a suppression hearing.” State v. Klump,

12th Dist. Brown No. CA2000-01-001, 2000 WL 744981, *2 (June 12, 2000). See

State v. Deluca, 12th Dist. Butler No. CA2016-03-055, 2017-Ohio-1235, ¶ 17

(deferring to the trial court’s determination that the law enforcement officer was

credible despite referencing additional facts during his testimony that were not

included in his police report).

       {¶45} Davis further argues that the trial court erred by denying his motion to

suppress because Officer Nowak exceeded the limits of a Terry stop by searching

his person and his wallet.        (Appellant’s Brief at 14-16).   However, Davis’s

arguments are premised on the assumption that he did not consent to the search. As

we have concluded that the trial court’s finding that Davis consented to the search

was based on competent, credible evidence, we need not address these arguments.

Likewise, as Davis consented to the search, we need not address Davis’s argument

that exigent circumstances did not exist to necessitate the search of his person.

       {¶46} Davis further argues that even if he did consent to the search, the trial

court should have suppressed the fruits of that search because they did not have


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Case No. 13-19-17


reasonable suspicion to detain Davis. (Id. at 12). Davis characterizes the stop as an

“arrest” and argues that law enforcement officers did not possess probable cause to

arrest Davis. (Id. at 12-13). However, as detailed in our discussion above, despite

the fact that Davis was placed in handcuffs during the encounter, the incident

constituted a Terry stop and not an arrest or traffic stop. Thus, the trial court did not

err in denying Davis’s motion to suppress the evidence obtained during the search.

       {¶47} Accordingly, for the aforementioned reasons, Davis’s first and second

assignments of error are overruled.

       {¶48} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                   Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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