[Cite as State v. Bolds, 2013-Ohio-2355.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 2012CA00187
ORION BOLDS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2012CR0759


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         June 3, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                               STEVEN A. REISCH
PROSECUTING ATTORNEY,                          Stark County Public Defenders Office
STARK COUNTY, OHIO                             200 West tuscarawas St., Suite 200
                                               Canton, Ohio 44702
By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2012CA00187                                                    2

Hoffman, P.J.


       {¶1}   Defendant-appellant Orion Bolds appeals the September 6, 2012

Judgment Entry entered by the Stark County Court of Common Pleas denying his

motion to suppress evidence. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On May 7, 2012, the Canton Police Department responded to a call of a

person brandishing a weapon. The caller stated a black male, wearing a red hooded

sweatshirt was waving a handgun and screaming at other individuals in the area.

Officer Richard Hart of the Canton Police Department was within the area, and

responded to the call. As Officer Hart approached the 1000 block of Fulton Avenue, he

witnessed a black male, wearing a red hooded sweatshirt and gray pants walking

around with his hands inside his pants. He ordered him to show him his hands and to

come to the front of his cruiser.

       {¶3}     Appellant was placed in handcuffs for the Officer's safety, and Officer

Hart initiated a pat-down search during which a baggie fell from Appellant's pant leg.

Prior to initiating the pat-down, Officer Hart grabbed Appellant's pants to pull them up

pursuant to his common practice.

       {¶4}   Appellant was indicted on one count of possession of cocaine. Appellant

filed a motion to suppress the evidence. Via Judgment Entry of September 6, 2012, the

trial court denied the motion to suppress the evidence. Appellant then entered a plea of

no contest to the charge. The trial court convicted Appellant of the charge, and entered

sentence accordingly.

       {¶5}   Appellant now appeals, assigning as his sole error:
Stark County, Case No. 2012CA00187                                                           3


       {¶6}   “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S

MOTION TO SUPPRESS THE EVIDENCE FOUND DURING A SEARCH WHICH

EXCEEDED THE SCOPE OF A PAT-DOWN SEARCH.”

       {¶7}   Appellate review of a trial court's decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,

713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the

role of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030

(1996). A reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court

must independently determine as a matter of law, without deference to the trial court's

conclusion, whether the trial court's decision meets the applicable legal standard. State

v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other

grounds.

       {¶8}   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 finding 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, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (1991). Second, an appellant may argue 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, Williams, supra. Finally,
Stark County, Case No. 2012CA00187                                                       4


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. Curry, 95 Ohio

App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

      {¶9}    In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the

United States Supreme Court held 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, 618 N.E.2d 162

(1993). The court must determine whether the officer had a reasonable, objective basis

for frisking the suspect. See, State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271

(1991). 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, 37 Ohio St.3d 177,

180, 524 N.E.2d 489 (1988). 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.

       {¶10} The Second District Court of Appeals held in State v. Rutledge (Feb. 27,

1998), 2nd Dist. No. 16577,

       {¶11} "In order to be reasonable, the scope of a Terry weapons search must be

minimally intrusive in relation to the particular suspicions that occasion it. However, the

Terry court declined to adopt specific limitations for those searches, preferring instead
Stark County, Case No. 2012CA00187                                                      5


to allow those limitations 'to be developed in the concrete factual circumstances of

individual cases.' Id., at p. 29. *** A defendant who files a motion to suppress is not,

however, precluded from presenting evidence through cross-examination or otherwise

to show that those suspicions could in the particular circumstances involved have

reasonably been resolved by an examination of the exterior of a purse. In that event, the

officer's further inspection of the interior of the purse could be unreasonable, requiring

suppression of articles found within it.

       {¶12} "We have no record from which to know the appearance of the purse that

the Defendant-Appellant carried when Officer Hursh approached her and asked to look

inside. Therefore, we cannot determine whether a manipulation or other examination of

the exterior of the purse would reasonably have resolved the officer's suspicions that

she had a gun inside. As in Terry, 'the record evidences the tempered act of a

policeman who in the course of an investigation had to make a quick decision as to how

to protect himself and others from possible danger, and took limited steps to do so.' Id.,

at p. 28. Therefore, we cannot find that the inspection of the interior of the purse that

Officer Hursh performed was unreasonable under the circumstances."

       {¶13} "***

       {¶14} "An officer is always authorized to search an area or object within a

detainee's immediate access for weapons the officer reasonably suspects the detainee

may have and use against him when the officer is otherwise authorized to detain the

person for investigation or arrest. United States v. Riggs, 474 F.2d 699 (2d Cir.), cert.

denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973); United States v. Poms, 484

F.2d 919 (4th Cir., 1973). Therefore, when an officer reasonably suspects that a
Stark County, Case No. 2012CA00187                                                    6


weapon is inside a purse that a detainee is carrying, he may look inside the purse to

neutralize the threat to him and others that the weapon presents, unless his suspicion

can reasonably be resolved by a less intrusive form of inspection. United States v. Vigo

487 F.2d 295 (2d Cir.1973); State v. Fisher (June 9, 1992), Montgomery App. No.

12978, unreported."

       {¶15} Officer Hart testified at the August 1, 2012 Suppression Hearing,

       {¶16} “Q. How did you - - explain or demonstrate the pat down for the Court.

       {¶17} “A. Yes. When I handcuffed him I was standing fairly close to him. I

wrapped my hands around his front and did a pat down of his waist area and then I

moved up to check his shoulders, under his arms, down the sides, around the front and

then patted down his legs as I moved down.

       {¶18} “Q. And the way you are demonstrating that, your hands are open, they

are not clenched at all?

       {¶19} “A. That’s correct.

       {¶20} “Q. Did you do anything else with his clothing or anything like that? Did

you do anything different than what you just described?

       {¶21} “A. When I first walked up behind him I did grab his pants and pull them up

to make sure that they are up properly.

       {¶22} “Q. Where were his pants?

       {¶23} “A. They were below his waistline, probably four to six inches.

       {¶24} “Q. When you are saying below his waist, was the waist of his pants down

around his the top of his thigh?

       {¶25} “A. That’s correct.
Stark County, Case No. 2012CA00187                                                     7


      {¶26} “Q. Why did you pull up his pants?

      {¶27} “A. It’s common practice.

      {¶28} “Q. What are you attempting to do when you pull up his pants? Why do

you do that?

      {¶29} “A. To make sure his pants are up properly and to make sure that there is

nothing possibly concealed in his groin or in his waistband.

      {¶30} “Q. This a pat down - - you can have a seat. This is a pat down for

weapons?

      {¶31} “A. Correct.

      {¶32} “Q. Is there concern that an individual might carry a weapon in his groin or

crotch area?

      {¶33} “A. Yes. I’ve recovered multiple handguns from subjects over the years.

      {¶34} “Q. And if an individual’s pants are sagging or drooping down, is that an

effort to conceal a handgun, would that be easier to conceal a handgun in the crotch

area or the groin area?

      {¶35} “A. Possibly.

      {¶36} “Q. You stated you went down his legs and you continued with the open

hand pat down; is that correct?

      {¶37} “A. Correct.”

      {¶38} Tr. at 11-13.

      {¶39} We find the Officer's search initiated by pulling up Appellant's pants to his

waist was minimally intrusive and done to facilitate the search for weapons. The officer

testified the waist of Appellant's pants were down around the top of his thigh. Officer
Stark County, Case No. 2012CA00187                                                     8


Hart was responding to a call of a person waiving a handgun at persons nearby, and he

had recently observed Appellant with his hands in his pants. The cocaine was found

incident to the process as it dropped down from Appellant’s pants rather than as a result

of being felt by the officer during the pat down. We find the trial court did not err in

denying Appellant's motion to suppress the evidence.

      {¶40} The September 6, 2012 Judgment Entry entered by the Stark County

Court of Common Pleas denying Appellant's motion to suppress is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE


                                            s/ Craig R. Baldwin ___________________
                                            HON. CRAIG R. BALDWIN
Stark County, Case No. 2012CA00187                                               9


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
ORION BOLDS                              :
                                         :
       Defendant-Appellant               :         Case No. 2012CA00187


       For the reasons stated in our accompanying Opinion, the September 6, 2012

Judgment Entry entered by the Stark County Court of Common Pleas is affirmed. Costs

to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ John W. Wise _____________________
                                         HON. JOHN W. WISE


                                         s/ Craig R. Baldwin ___________________
                                         HON. CRAIG R. BALDWIN
