[Cite as State v. Pattson, 2011-Ohio-3507.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :   C.A. CASE NO. 24224

vs.                                                :    T.C. CASE NO. 09CR1215

JOSEPH J. PATTSON                                   :   (Criminal Appeal from
                                                         Common Pleas Court)
        Defendant-Appellant                         :

                                        . . . . . . . . .

                                              O P I N I O N

                     Rendered on the 15th day of July, 2011.

                                        . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Timothy J. Cole, Asst. Pros.
Attorney, Atty. Reg. No.0084117, P.O. Box 972, Dayton, OH 45422
     Attorney for Plaintiff-Appellee

Richard S. Skelton, 130 W. Second Street, Suite 1818, Dayton, OH
 45402
     Attorney for Defendant-Appellant

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Joseph Pattson, appeals from his conviction

and mandatory six year prison sentence for possession of heroin,

between ten and fifty grams, R.C. 2925.11(A), which was entered

on his no contest plea after the trial court overruled Defendant’s

motion to suppress evidence.                     On appeal, Defendant challenges only
                                                                  2

the trial court’s decision overruling his motion to suppress

evidence.

     {¶ 2} The facts set forth in the State’s memorandum in

opposition to Defendant’s motion to suppress, which the trial court

adopted as its own findings of fact in this case, are as follows:

     {¶ 3} “On April 14, 2009, at approximately 10:40 a.m., Officer

Danielle Miller from the Miami Township Police Department was

dispatched to the south lot of the Macy’s parking lot on a report

of a black Chevy Tahoe engaged in possible drug transactions with

at least two separate vehicles.   Officer Miller has been a police

officer for approximately 10 years.

     {¶ 4} “The initial call to the police department came from

Anthony Coffey who was working Dayton Mall Security.    Mr. Coffee

was operating the mall surveillance cameras when he came upon a

Chevy S-10 pickup truck that pulled into a parking space next to

a black Chevy Tahoe.    Mr. Coffey testified that he observed what

appeared to be a drug trafficking transaction between the passenger

of the S-10 and the sole occupant of the Chevy Tahoe.   Mr. Coffey

then contacted Miami Township Police Department and reported his

observations.   While Mr. Coffey was on the phone with Miami

Township Police Department, he observed what he believed to be

another drug trafficking transaction involving the Chevy Tahoe

and a maroon SUV.      Mr. Coffey was still on the phone with the
                                                                 3

dispatcher and relayed this information as well.

     {¶ 5} “As Officer Miller responded to the call, she indicated

that she was concerned for her safety because in her experience,

weapons are usually involved with drug trafficking.       Officer

Miller also testified that the Dayton Mall parking lot is a high

crime area.   When Officer Miller responded to the parking lot of

Macy’s, she observed the black Chevy Tahoe and made contact with

 the driver and sole occupant, which was the Defendant.   At that

time, Officer Miller had not initiated her overhead lights or

sirens.    Officer Miller told Defendant about the complaint and

asked him what he was doing.     Defendant responded that he was

dropping someone off at the mall.   Officer Miller next asked for

Defendant’s license and insurance, and he complied with her

request.   Officer Miller testified that Defendant’s vehicle was

running during this encounter.

     {¶ 6} “Officer Miller testified that when she initially

approached the vehicle, Defendant’s hands were down out of her

view and that she asked him to place them on the steering wheel.

 Officer Miller testified that as she was talking to Defendant,

Defendant took his hands off of the steering wheel where she could

not see them.    Officer Miller testified that this caused her

concern for her safety because she could not tell whether he was

attempting to reach for a weapon.   Officer Miller testified that
                                                                        4

she could not see what his hands were doing at all because of the

height of the Chevy Tahoe and this additionally caused her to be

concerned for her safety.

      {¶ 7} “Major Dipietro of the Miami Township Police Department

arrived while Defendant was still inside of the vehicle talking

to Officer Miller.    Officer Miller asked Defendant to exit the

vehicle based upon his hand movements and the fact that she could

not see down into the vehicle due to its height.    Defendant complied

with the officer’s request and exited the vehicle.      Officer Miller

advised Defendant that she was going to pat him down for weapons

and then completed a pat-down of this Defendant with negative

results.   Officer Miller then had Major Dipietro due (sic) a more

thorough pat-down since he was a male officer.

      {¶ 8} “Major Dipietro, an officer with over twenty-two years

of   experience,   then   conducted   a   more   thorough   pat-down   of

Defendant’s private region.     Major Dipietro testified that when

 he initially responded to the call, he was concerned for officer

safety since the initial dispatch indicated that Defendant’s

vehicle was possibly engaged in drug trafficking.       Major Dipietro

testified that it has been his experience during his twenty two

years of police work that weapons are commonly involved in drug

trafficking.

      {¶ 9} “As Major Dipietro patted down Defendant, he indicated
                                                                   5

that Defendant appeared nervous and fidgety.    Major Dipietro also

testified that while he was patting down Defendant, Defendant also

removed one of his hands from the Tahoe, which also caused Major

Dipietro concern.    In addition, Major Dipietro testified that

based on his observations, it appeared Defendant did not want to

get too far away from the open driver’s door.       Major Dipietro

testified that after the pat-down, he asked Defendant to move down

towards the rear of the vehicle so that he could check the lunge

area to make sure that there were no weapons.       Major Dipietro

testified that based on Defendant’s actions, it appeared again

that he did not want to get too far away from the driver compartment

area.   Therefore, Major Dipietro asked Defendant to move down

further to which Defendant complied.

     {¶ 10} “At that time, Major Dipietro searched the lunge area

in order to make sure that Defendant could not gain access to any

weapons.   At the time Major Dipietro searched the lunge area, he

testified that it was possible that Defendant was going to be placed

back inside the vehicle.    Further, when Major Dipietro searched

the lunge area of the vehicle, Defendant was standing very close

to the open driver’s door unrestrained, and not in handcuffs.

     {¶ 11} “During the search of the lunge area for weapons, Major

Dipietro saw two baggies of heroin capsules sticking out from

underneath the center console.      Major Dipietro then finished
                                                                   6

searching the lunge area for weapons before exiting the vehicle.

 Once outside, Major Dipietro gave the indication to Officer Miller

to place handcuffs on Defendant.      Once Officer Miller attempted

to handcuff Defendant, Defendant broke free and took off running

through the mall parking lot before being apprehended.”

ASSIGNMENT OF ERROR

     “THE SEARCH OF MR. PATTSON’S AUTOMOBILE VIOLATED HIS FOURTH

AMENDMENT CONSTITUTIONAL PROTECTIONS.”

     {¶ 12} Defendant argues that the trial court erred when it

overruled his motion to suppress the evidence because his Fourth

Amendment rights were violated when police conducted a protective

 search of the interior of his vehicle for weapons in the absence

of a reasonable suspicion that he was armed and dangerous and might

gain immediate control of a weapon hidden inside the vehicle.

That search for weapons produced the heroin capsules that form

the basis for the possession charge in this case.

     {¶ 13} When considering a motion to suppress the trial court

assumes the role of the trier of facts and is therefore in the

best position to resolve factual questions and evaluate the

credibility of the witnesses.   State v. Roberts, 110 Ohio St.3d

71, 2006-Ohio-3665.   Consequently, an appellate court must accept

the trial court’s findings of fact if they are supported by

competent, credible evidence.   Id.   Accepting those facts as true,
                                                                    7

the appellate court must then independently determine, without

deference to the trial court’s conclusion, whether those facts

satisfy the applicable legal standard.     Id.

     {¶ 14} Defendant does not challenge the trial court’s findings

that the officers’ initial investigative stop and detention

pursuant to Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20

l.Ed.2d 889, was justified by a reasonable suspicion of illegal

drug activity, a conclusion with which we agree.   Rather, Defendant

challenges only the search of the interior, driver’s area of his

vehicle for weapons during that Terry stop, claiming that police

lacked the necessary legal justification for that warrantless

weapons search; that police had a reasonable suspicion that there

was a weapon inside the car.

     {¶ 15} In   State   v.    Wilcox,   177     Ohio   App.3d   609,

2008-Ohio-3856, ¶17-18, this court wrote:

     {¶ 16} “The United States Supreme Court has found that during

an investigative stop, a police officer may conduct a protective

search of the interior of the vehicle for weapons. Michigan v.

Long (1983), 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201. This

search is consistent with and is an extension of the principles

set forth in Terry regarding a frisk of a person. Id.; Terry v.

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

to perform a protective search, the officer must have ‘a reasonable
                                                                      8

belief based on “specific and articulable facts which, taken

together with the rational inferences from those facts, reasonably

warrant” the officers in believing that the suspect is dangerous

and the suspect may gain immediate control of weapons.’ Id., quoting

Terry, 392 U.S. at 21, 88 S.Ct. 1868, 20 L.Ed.2d 889; see also

State v. Smith (1978), 56 Ohio St.2d 405, 10 O.O.3d 515, 384 N.E.2d

280. The search must be limited to those areas in which a weapon

may be placed or hidden. Id.

     {¶ 17} “The   standard   employed   in   determining   whether   a

protective search is justified is an objective standard: ‘[W]ould

the facts available to the officer at the moment of the seizure

or the search “warrant a man of reasonable caution in the belief”

that the action taken was appropriate?’ State v. Bobo (1988), 37

Ohio St.3d 177, 178-179, 524 N.E.2d 489, quoting Terry, 392 U.S.

at 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889. In determining whether

a protective search is objectively warranted, courts look at the

totality of the circumstances, as viewed through the eyes of a

reasonable and prudent police officer on the scene who must react

to events as they unfold. State v. Andrews (1991), 57 Ohio St.3d

86, 565 N.E.2d 1271, citing United States v. Hall (C.A.D.C.1976),

525 F.2d 857. Courts generally consider factors such as the

high-crime nature of the area, the time of day, the experience

of the officers involved, whether the officer was away from his
                                                                        9

cruiser, and suspicious activities by the defendant, such as

furtive gestures. State v. Bobo (1988), 37 Ohio St.3d 177, 524

N.E.2d 489; Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271. See also

Smith, 56 Ohio St.2d 405, 10 O.O.3d 515, 384 N.E.2d 280 (protective

search was justified when the police officers saw defendant push

something under his seat after car was stopped); State v. Woods

(1982), 8 Ohio App.3d 56, 8 OBR 87, 455 N.E.2d 1289 (protective

search was justified when police had information that defendant

was armed and police saw defendant make furtive gesture). But see

State v. Vineyard (Jan. 11, 2008), Montgomery App. No. 22266,

2008-Ohio-204, 2008 WL 186669 (protective search not justified

in stop for tinted windows, even though officer had knowledge that

defendant had been implicated in drug information hotline calls,

had previously been subject of a search warrant for drugs,

recognized principle that drugs and weapons normally go hand in

hand, and stop was in high-crime area; trial court was correct

in conclusion that these factors were tempered by factors that

defendant was cooperative, no weapons or drugs were found during

pat-down search, and no information indicated defendant was

involved in a drug deal at the time).”

     {¶ 18} In   arguing   that   the   totality   of   the   facts   and

circumstances in this case do not give rise to a reasonable

suspicion that there was a weapon inside Defendant’s vehicle, and
                                                                    10

therefore justify a limited search of the interior, driver’s area

of that vehicle for weapons, Defendant claims that other than the

fact police were investigating possible drug activity, there was

nothing else that caused the officers to be reasonably concerned

for their safety.     The officers themselves observed no illegal

activity by Defendant, it was 10:40 in the morning, no contraband

or weapons were seen, Defendant made no furtive movements,

Defendant cooperated fully with police, and there were two police

officers   present.     Although   Officer   Miller   testified   that

Defendant’s conduct in moving his hands to a position where she

could not see them caused her to be concerned for her safety,

Defendant moved his hands once to get his driver’s license, at

Officer Miller’s request, and moved his hands a second time but

immediately placed them back on the steering wheel when requested

to do so by Officer Miller.

     {¶ 19} Dayton Mall security officer, Anthony Coffey, while

monitoring video surveillance cameras, observed a white Chevy S-10

pickup truck pull into the South Macy’s parking lot and park in

a space near pole 49, right next to a black Chevy Tahoe.           An

individual exited the S-10 and entered the Tahoe.     Coffey observed

an exchange of items take place, something being passed back and

forth, and that the individual then exited the Tahoe, got back

into the S-10, and drove away.     Believing he had just witnessed
                                                                  11

a drug transaction, Coffey called Miami Township police.      While

Coffey was still on the phone with police relating what he had

just seen, a maroon SUV pulled into the parking space just vacated

by the S-10.   Once again, an individual exited the maroon SUV and

entered the Tahoe.   Coffey again observed an exchange of items,

some kind of transaction in the front seat, followed by the

individual exiting the Tahoe, getting back into the maroon SUV,

and then driving away.   Coffey described these events to the police

dispatcher in real time as they happened.    Both officers who were

dispatched to the scene, Officer Miller and Major Dipietro, were

advised by their dispatcher that possible drug transactions had

just occurred in the Dayton Mall parking lot.        Both officers

testified that the Dayton Mall parking lot is known for drug

activity, and drug transactions often involve weapons.

     {¶ 20} The well recognized nexus between guns and drug

activity, particularly where, as here, the suspected drug activity

involves drug trafficking and not merely use or possession of drugs,

and an officers’s fear of violence when investigating that type

of activity, will justify a pat down search for weapons.       See:

State v. Evans (1993), 67 Ohio St.3d 405, 413; State v. Martin,

Montgomery App. No. 20270, 2004-Ohio-2738, at ¶17; State v. Hunter,

Montgomery App. No. 20917, 2006-Ohio-2678 at ¶8-15.

     {¶ 21} Officer Miller testified that she was concerned for
                                                                  12

her safety because Defendant would not keep his hands on the

steering wheel where she could see them, despite her requests that

he do so.   Major Dipietro became concerned because Defendant

appeared to be reluctant to comply with their requests to move

away from the driver’s compartment of the vehicle while Dipietro

searched that area of the vehicle for weapons.

     {¶ 22} Based   upon   the   totality   of   these   facts   and

circumstances, including that police were investigating possible

drug trafficking activities, the recognized nexus between guns

and drug trafficking, and Defendant’s failure to keep his hands

in plain sight and his reluctance to move away from the driver’s

area of his vehicle, police had a reasonable suspicion that

Defendant might be armed and dangerous and might gain immediate

control of a weapon inside his vehicle upon returning to it.

Accordingly, the limited protective search of the driver’s area

of Defendant’s vehicle for weapons was reasonable and did not

violate Defendant’s Fourth Amendment rights.       Terry v. Ohio,

supra; Michigan v. Long, supra; Wilcox, supra.

     {¶ 23} In support of his claim that the limited protective

search of the driver’s area of his vehicle for weapons violated

his Fourth Amendment rights, Defendant cites our decision in State

v. Vineyard, Montgomery App. No. 22226, 2008-Ohio-204.    That case

is factually distinguishable.     In Vineyard, unlike this case,
                                                                       13

police did not have a reasonable suspicion that Defendant was

engaged in drug transactions at the time he was stopped by police.

 The information police had in Vineyard regarding the defendant’s

involvement in drug activities concerned past, not present, events.

      {¶ 24} Defendant also cites State v. Kaine, Cuyahoga App. No.

90719, 2008-Ohio-5486, wherein the Eighth District Court of Appeals

concluded that the trial court erred in denying Defendant’s motion

to suppress where officers stopped and searched Defendant’s vehicle

in a high drug activity area after conducting surveillance on

Defendant’s vehicle in a parking lot and observing what appeared

to be a drug transaction.      While the facts in Kaine have several

similarities to the facts in this case, there are two important

differences.        First, this case involves two suspected drug

transactions involving Defendant’s vehicle and other vehicles in

a short period of time, not just one transaction.        Second, in this

case, unlike Kaine, during each of the two separate transactions

an exchange of items was observed.         In short, there is a stronger

reasonable suspicion of drug trafficking present in this case.

      {¶ 25} Based upon the totality of the facts and circumstances

in   this   case,   officers   possessed    a   reasonable,   articulable

suspicion that Defendant might be armed and might gain immediate

control of a weapon inside his vehicle upon returning to that

vehicle.       As the Supreme Court found in Terry, “the record
                                                                  14

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, the protective search of

the driver’s area of Defendant’s vehicle for weapons did not violate

Defendant’s Fourth Amendment rights.

     {¶ 26} Defendant’s assignment of error is overruled.       The

judgment of the trial court will be affirmed.




DONOVAN, J. And FROELICH, J., concur.




Copies mailed to:

Timothy J. Cole, Esq.
Richard S. Skelton, Esq.
Hon. Dennis J. Adkins
