[Cite as State v. Luther, 2018-Ohio-4568.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                             LAKE COUNTY, OHIO


 STATE OF OHIO,                                       :      OPINION

                  Plaintiff-Appellee,                 :
                                                             CASE NO. 2018-L-039
         - vs -                                       :

 DOMINIC J. LUTHER,                                   :

                  Defendant-Appellant.                :


 Criminal Appeal from the Lake County Court of Common Pleas.
 Case No. 2017 CR 000767.

 Judgment: Reversed and remanded.


 Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
 Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
 Painesville, OH 44077 (For Plaintiff-Appellee).

 Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
 Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
 Appellant).



TIMOTHY P. CANNON, J.

        {¶1}      Appellant, Dominic J. Luther, appeals from the Lake County Court of

Common Pleas’ February 26, 2018 judgment entry sentencing appellant to three years of

community control following a no contest plea to possession of heroin, aggravated

possession of drugs, and possession of drug abuse instruments. At issue on appeal is

the trial court’s denial of appellant’s motion to suppress. The judgment is reversed and

this matter is remanded to the trial court.
        {¶2}   A criminal complaint was filed in Willoughby Municipal Court on July 3,

2017, charging appellant with possession of heroin. The matter was bound over to the

Lake County Court of Common Pleas, and appellant was indicted by the grand jury on

September 15, 2017, for (1) possession of heroin (0.16 grams), a fifth-degree felony in

violation of R.C. 2925.11; (2) aggravated possession of drugs (a substance containing

fentanyl and carfentanil), a fifth-degree felony in violation of R.C. 2925.11; and (3)

possessing drug abuse instruments, a second-degree misdemeanor in violation of R.C.

2925.12. All three counts included forfeiture specifications.

        {¶3}   Appellant filed a motion to suppress all evidence obtained as a result of the

pat-down search that prompted his arrest. Appellant argued the arresting officers violated

his constitutional rights by conducting an unreasonable search and seizure without a

warrant. A hearing was held, at which the arresting officers and representatives from the

Lake County Crime Laboratory testified.

        {¶4}   The trial court denied appellant’s motion to suppress on December 19,

2017.

        {¶5}   On December 20, 2017, appellant pleaded “no contest” to each count in the

indictment. A presentence investigation report was completed. Appellant was sentenced

on February 14, 2018, to three years of community control. The trial court’s judgment

entry of sentence was filed February 26, 2018, and this appeal followed.

        {¶6}   Appellant raises one assignment of error for our review:

        {¶7}   “The trial court erred by denying the defendant-appellant’s motion to

suppress in violation of his due process rights and rights against unreasonable search

and seizure as guaranteed by the Fourth and Fourteenth Amendments to the United

States Constitution and Article I, Sections 10 and 14 of the Ohio Constitution.”

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       {¶8}   “Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. ‘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. Polk, 150 Ohio St.3d 29, 2017-Ohio-2735, ¶35, quoting State v. Codeluppi, 139 Ohio

St.3d 165, 2014-Ohio-1574, ¶7, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, ¶8.

       {¶9}   The following factual findings, as made by the trial court, are supported by

competent, credible evidence.

       {¶10} On July 1, 2017, the Eastlake Police Department received a report of

indecent exposure (public urination) at 34150 Beachpark Drive. Dispatch described the

suspect as a white male, six feet tall, wearing a long-sleeve grey shirt and dark pants.

Officer Gary Hotchkiss and Officer Christopher Weber responded from the police

department. Less than two minutes later, Officer Weber was traveling west on Beachpark

Drive when he saw appellant riding towards him on a bicycle that appeared too small for

him. Appellant, a white male, was wearing dark pants and a three-quarter-sleeve shirt

that appeared to be dark grey; Officer Weber could not determine appellant’s height

because of the way he was riding the bicycle. It was later determined that appellant is

five feet and six inches tall. Officer Weber asked dispatch to repeat the description and

confirm the address. After appellant’s eyes met Officer Weber’s, appellant turned onto

349th Street and started peddling faster. Officer Weber followed appellant, and Officer

Hotchkiss was approximately 30-40 feet behind. Appellant dropped the bicycle in the

grass near a house that fronted on Roberts Road and started walking across the back

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yard but did not approach the house. Officer Weber asked appellant to come over and

speak with him, and appellant complied.

        {¶11} Officer Weber conducted a pat-down search for officer safety because it

appeared appellant had tried to evade the officers on his bicycle, was “pouring sweat,”

appeared nervous and agitated, and kept looking around as though he was considering

trying to escape. Both officers testified that, in their experience, a suspect looking to flee

poses a risk to officer safety because the suspect might harm an officer to create an

opportunity to flee.

        {¶12} Officer Weber felt a large, sturdy object in appellant’s right front pants

pocket, which appellant claimed was “cigarettes.” Because the sturdy object was not

consistent with the feel of cigarettes, Officer Weber was concerned it might be a weapon.

He removed the object from appellant’s pocket.                      It was a silver “clamshell” case,

approximately 4 inches long by 2¾ inches wide by ½ inch thick. Because it appeared to

him large enough to contain a razor blade, knife, or small-caliber gun, Officer Weber

opened the case. Inside was a razor blade, two syringes, and a paper fold with an off-

white powder inside.1 The officers arrested appellant on charges of possessing drugs

and drug abuse instruments.2




1. The Lake County Crime Laboratory later confirmed that the paper fold contained a mixture of heroin and
carfentanil; heroin residue was found on the razor blade; and residue from heroin, fentanyl, and carfentanil
was found on one of the syringes.

2. Although not included in the trial court’s factual findings, we note the officers testified that appellant was
placed in the back of a patrol car and transported to the area of the initial dispatch to inquire if appellant
was the subject of the indecent exposure/public urination report. Another white male matching the same
clothing description was in the driveway of 34150 Beachpark Drive. It was determined that this second
male either lived or was staying at that residence, and he claimed to have no knowledge of the indecent
exposure/public urination call.



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       {¶13} On appeal, appellant challenges the pat-down search conducted by Officer

Weber; he does not challenge the propriety of the initial investigatory stop.

       {¶14} Appellant asserts the arresting officers possessed no specific or articulable

facts or reasonable suspicion upon which to base the search of his person when he was

stopped for questioning related to a report of a man urinating in public. Thus, he argues

the continued detention and search of his person violated his constitutionally guaranteed

right to be free from unreasonable searches and seizures, and any evidence obtained as

a result must be suppressed.

       {¶15} “Courts must exclude evidence obtained by searches and seizures that

violate the Fourth Amendment.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,

¶181, citing Mapp v. Ohio, 367 U.S. 643 (1961) (extending the exclusionary rule to the

states). “‘The primary purpose of the exclusionary rule is to remove incentive from the

police to violate the Fourth Amendment.’” State v. Eggleston, 11th Dist. Trumbull No.

2014-T-0068, 2015-Ohio-958, ¶17, quoting State v. Casey, 12th Dist. Warren No.

CA2013-10-090, 2014-Ohio-2586, ¶29.

       {¶16} The Fourth Amendment to the United States Constitution guarantees 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, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” The

language of Article I, Section 14 of the Ohio Constitution is nearly identical, and it has

been interpreted by the Ohio Supreme Court as affording the same protection as the

Fourth Amendment. State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, ¶11, citing

State v. Robinette, 80 Ohio St.3d 234, 238-239 (1997).

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       {¶17} “‘The touchstone of the Fourth Amendment is reasonableness.’” State v.

Leak, 145 Ohio St.3d 165, 2016-Ohio-154, ¶14, quoting Florida v. Jimeno, 500 U.S. 248,

250 (1991). “‘“[W]hether a search and seizure is unreasonable within the meaning of the

Fourth Amendment depends upon the facts and circumstances of each case.”’” Id.,

quoting South Dakota v. Opperman, 428 U.S. 364, 375 (1976), quoting Cooper v.

California, 386 U.S. 58, 59 (1967). “[W]arrantless searches are per se unreasonable

without prior approval by a judge or magistrate, subject to only a few specific exceptions.”

Id. at ¶15, citing Arizona v. Gant, 556 U.S. 332, 338 (2009), citing Katz v. United States,

389 U.S. 347, 357 (1967).

       {¶18} One exception to the warrant requirement is a brief investigatory stop based

upon reasonable suspicion of recent, ongoing, or imminent criminal activity. Terry v.

Ohio, 392 U.S. 1 (1968). An investigatory stop may include a limited protective search

for the safety of the officer and the public. Id. at 27; see also State v. Bobo, 37 Ohio St.3d

177, 180 (1988).

       {¶19} “The frisk, or protective search, approved in Terry is limited in scope to a

pat-down search for concealed weapons when the officer has a reasonable suspicion that

the individual whose behavior he is investigating at close range may be armed and

dangerous.” State v. Andrews, 57 Ohio St.3d 86, 89 (1991), citing Terry, supra, at 27.

“While probable cause is not required, the standard to perform a protective search, like

the standard for an investigatory stop, is an objective one based on the totality of the

circumstances.” Id. “The rationale behind the protective search is to allow the officer to

take reasonable precautions for his own safety in order to pursue his investigation without

fear of violence.” Id., citing Terry, supra, at 24, 30; see also Adams v. Williams, 407 U.S.

143, 146 (1972).

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       {¶20} “‘A search for weapons in the absence of probable cause to arrest, however,

must, like any other search, be strictly circumscribed by the exigencies which justify its

initiation. * * * Thus it must be limited to that which is necessary for the discovery of

weapons which might be used to harm the officer or others nearby * * *.’” State v. Evans,

67 Ohio St.3d 405, 414 (1993), quoting Terry, supra, at 25-26. “[W]hen an officer is

conducting a lawful pat-down search for weapons and discovers an object on the

suspect’s person which the officer, through his or her sense of touch, reasonably believes

could be a weapon, the officer may seize the object as long as the search stays within

the bounds of [Terry].” Id. at paragraph two of the syllabus. Conversely, “once the officer

determines from his sense of touch that an object is not a weapon, the pat-down frisk

must stop. The officer, having satisfied himself or herself that the suspect has no weapon,

is not justified in employing Terry as a pretext for a search for contraband.” Id. at 414.

       {¶21} We determine the totality of the circumstances demonstrates that Officer

Weber had a reasonable suspicion that appellant, whom he was investigating at close

range, may have been armed and dangerous. Both officers testified they were concerned

appellant might try to harm them in order to flee because it appeared appellant had

attempted to evade the officers on his bicycle, was sweating profusely, refused to make

eye contact, and was looking around as though for an escape route. Thus, the decision

to conduct a pat-down search to determine whether appellant was armed was not

unreasonable.

       {¶22} We further conclude that Officer Weber acted within the scope of Terry

when he retrieved the metal case from appellant’s pocket. Officer Weber testified the

object felt large and sturdy, which was not consistent with appellant’s answer that it was

“cigarettes.” Through his sense of touch and his experience as a police officer, Officer

                                             7
Weber could not conclude that the object, while still inside appellant’s pocket, was not a

weapon. Removing it was a reasonable precaution in order to assess the object and to

proceed with his investigation safely.

       {¶23} We conclude, however, that Officer Weber exceeded the scope of Terry

when he opened the metal case, as it was not based on a reasonable suspicion that it

contained a weapon that might harm the officers or others nearby.

       {¶24} According to Officer Weber’s testimony, appellant stated the object in his

pocket was “cigarettes.” When asked if the metal case was consistent with “cigarettes,”

Officer Weber answered, “I know that those cases are actually marketed as cigarette

packs but I have not ever seen one used for cigarettes. I’ve never, outside of a movie,

seen a metal box like that used as a cigarette case.” Officer Hotchkiss affirmed that

appellant stated the case was his “cigarette container” when it was discovered during the

pat-down, and that it was possible the metal case was consistent with something that

contains cigarettes or a cigarette pack.

       {¶25} Officer Hotchkiss testified it was possible the case could contain a weapon

“because of its size and we didn’t know what was in it.” When asked why he opened the

case, Officer Weber stated, “When I saw what it was it wasn’t immediately apparent what

it contained so I opened it to see if there was a weapon in it.” He testified that a stun gun,

a pocket knife, razor blades, or a firearm that was broken down could have fit inside the

case. Officer Weber also stated that he has taken weapons from suspects that would fit

inside the case. He further testified about small-caliber firearms he has encountered that

might fit inside the case.

       {¶26} The prosecutor introduced photographs of two small firearms that Officer

Weber testified he has seen at the Eastlake Police Department. During the testimony of

                                              8
a representative from the Lake County Crime Laboratory, it was determined the

photographed firearms were from a collection at the laboratory. The representative

testified that the dimensions of one firearm are 3.94 x 2.20 x .73 inches, and the

dimensions of the other are 3.65 x 2.45 x .82 inches. No one attempted to actually fit

either firearm into the metal case, either before or during the hearing.3 It is clear from the

dimensions of the case, 4.00 by 2.75 x .50, that neither of these firearms would actually

fit in the metal case found on appellant. In any event, the photographs of these firearms

are irrelevant to the task at hand.

        {¶27} We must remain mindful that “[t]he 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[.]” Adams, 407 U.S. at 146. “And in justifying the particular intrusion the police

officer must be able to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that intrusion.” Terry, supra, at

21.

        {¶28} Here, we find no evidence that would reasonably support a suspicion that

the metal case contained a weapon as opposed to cigarettes, as was claimed by

appellant. The case itself was not contraband. Officer Weber testified to his trained

instinct that the case did not contain cigarettes. Once it was in the hands of the officer in

the circumstances presented here, however, there was no basis for Officer Weber to form

a belief that the small case contained a weapon that could harm him or others nearby.

Accordingly, under the circumstances at hand, once the officers identified that the object



3. Because the metal case contained fentanyl and carfentanil, it remained at the crime laboratory during
the hearings. The trial court judge indicated he would visit the crime laboratory after the hearing was
concluded to view the metal case. Photographs of the metal case were presented at the hearing in its
place.

                                                   9
in appellant’s pocket was a metal cigarette case and not a weapon, we hold any further

search by opening the case was beyond the scope of Terry. Again, as stated in Adams

and Evans, a protective search is not to be used as a pretext to search for evidence of a

crime.

         {¶29} We find further support for this determination in a case out of the Second

Appellate District, which provides:

               Finally, we note that ‘[i]n determining what objects might be a
               weapon, consideration must be given to what types of objects could
               be so employed in the setting of the particular case.’ ‘Generally
               speaking, it may be said that certain items which might be employed
               as weapons in a surprise attack from the rear would not be effective
               during the face-to-face encounter of a field interrogation. And in a
               particular situation, it may be apparent that a particular type of
               weapon would be of no use because of the superior police presence.’
               These case-specific considerations militate against a finding that the
               container in Howard’s pocket even posed a realistic threat to officer
               safety on the basis that it could hold razor blades.

State v. Howard, 2d Dist. Montgomery No. 25276, 2013-Ohio-2123, ¶18, quoting 4

LaFave, Search and Seizure, Section 9.6(c), at 909 (5th Ed.2012). See also Evans,

supra, at 416, quoting 3 LaFave, Search and Seizure, Section 9.4(c), at 522 (2d Ed.1987).

(“‘[S]omething of the size and flexibility of a razor blade could be concealed virtually

anywhere, and accordingly provide the pretext for any search, however thorough.’ Such

a police procedure would, therefore, be impermissible under Terry because it would be

tantamount to allowing the more intrusive search incident to custodial arrest to be made

without reasonable grounds to arrest.”).

         {¶30} Similarly here, we find that the face-to-face encounter during daylight hours

between two armed police officers and appellant, who was complying with the officers’

orders and had only a bicycle by which he could escape, militates against a finding that




                                             10
any item discovered in that metal case could have posed a realistic threat to the officers’

safety, particularly once the officers had possession of the case.

      {¶31} “‘[T]he touchstone of the Fourth Amendment analysis in determining the

reasonableness of a governmental invasion in a citizen’s personal security is based on a

balance between the public interest and the individual’s right to personal security free

from arbitrary interference by law officers.’” Eggleston, supra, at ¶35, quoting State v.

Troutman, 3d Dist. Marion No. 9-11-17, 2012-Ohio-407, ¶43. To that end, we find the

scope of the protective search conducted on July 1, 2017, violated appellant’s rights

under the Fourth Amendment to the United States Constitution and Article I, Section 14

of the Ohio Constitution. The motion to suppress should have been granted.

      {¶32} Appellant’s sole assignment of error has merit.

      {¶33} The judgment of the Lake County Court of Common Pleas denying

appellant’s motion to suppress is hereby reversed. This matter is remanded for further

proceedings consistent with this opinion.



CYNTHIA WESTCOTT RICE, J., concurs,

THOMAS R. WRIGHT, P.J., concurs in judgment only.




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