[Cite as State v. Williams , 2019-Ohio-5142.]

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

STATE OF OHIO Plaintiff-Appellee

v. NEWELL WILLIAMS Defendant-Appellant : : : : : : : : : : Appellate Case No. 28299

Trial Court Case No. 2018-CR-3051 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 13th day of December, 2019.

. . . . . . . . . . . MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery Coun ty Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 S outhmoor Circle NW, Kettering, Ohio 45429 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FROELICH, J.-2- {¶ 1} Newell Williams was convicted after a jury trial in the Montgom ery County Court of Common Pleas of aggravated possession of drugs, posses sion of heroin, possession of cocaine, aggravated possession of drugs, and tamp ering with evidence. The trial court imposed an aggregate sentence of 48 months in p rison. {¶ 2} Williams appeals from his conviction, claiming that his counsel rendered ineffective assistance by failing to “file and pursue a motion to suppress evidence.” For the following reasons, the trial court’s judgment will be affir med. I. Factual and Procedural History {¶ 3} The evidence at trial established the following facts. {¶ 4} On August 1, 2018, Detectives Justin Ellis and Matt Gray of the Violent Offender Unit were on patrol in an unmarked police vehicle in a particular area of Dayton due to a high volume of weapon complaints in that area. Both o fficers had been detectives for a year or less, but both had previously been pat rol officers. Detective Ellis testified that he previously had been a patrol officer in that specific area of Dayton. {¶ 5} While on patrol, the detectives observed a red Prism driving “k ind of slow in the area,” which they found suspicious. They continued to obse rve the vehicle and saw it meet up with a light green sedan, with the two cars facing i n opposite directions. The detectives then observed what they believed to be a hand-to-han d drug transaction. Detective Gray explained that “the drivers of both vehicles qui ckly exchanged something through their windows as they were next to each other. The tra nsaction didn’t last very long and both vehicles drove away.” (Tr. at 131.) {¶ 6} Believing the green vehicle’s occupant was the seller, the dete ctives attempted to follow that vehicle and get its license plate, but the detectives lost sight of it.-3- However, they chanced upon the red Prism that they had previous ly observed. Detective Ellis testified that, due to the hand-to-hand transaction, the detectives requested a uniformed officer to stop the Prism. (Tr. at 122.) Detective Gray testified that they “observed several traffic violations,” and they requested a uni formed crew to make a “traffic stop on the vehicle.” (Tr. at 132.) {¶ 7} Officer Christopher Smith, a 28-year veteran with the Dayton po lice, was on patrol in a marked cruiser when he was instructed by Detectives Ellis and Gray to pull over a red Chevy Prism. The detectives reported that they had witnessed a hand-tohand transaction between the occupants of the Prism and another vehicle. Smith

followed the detectives’ instructions on their location and hea ding, and he was able to locate and initiate a stop of the Prism. Smith testified that he activated his overhead lights, which also activated his onboard camera. Detectives El lis and Gray were at the scene when the Prism was pulled over, and they joined Smith for the stop. {¶ 8} Upon pulling over the Prism, Officer Smith and the detectives a pproached the vehicle and learned that Cassandra Brumbaugh was the driver of the vehicle and Williams was the front-seat passenger. Two small children were in the backseat area. When Smith asked Brumbaugh for her driver’s license, she indica ted that she did not have any driver’s license or photo identification. The officer s asked Brumbaugh to step

out of the vehicle. Because the driver’s door handle was broke n, the officers asked Williams to step out of the vehicle to allow Brumbaugh to exit from the passenger side. Detective Gray took Williams to Smith’s cruiser, patted him dow n for weapons, and placed him in the backseat. No drugs were discovered during this pat down. {¶ 9} Detective Ellis testified that, from the passenger side of the vehicle, he saw-4- “in plain view, a clear plastic bag with what I suspected to be methamphetamine.” Ellis stated that it was “kind of poorly shoved between the passenger seat and the center console, in between that area.” (Tr. at 125.) Ellis indicated that Williams had been seated in the front passenger seat. Ellis removed the bag from the car, so that it would

not be accessible to the children who remained in the vehicle. {¶ 10} Officer Smith asked Williams for his identifying information, b ut Williams provided information related to his brother. (When attempting to verify the information, Smith pulled up a photo of Williams’s brother, who had a tattoo on his neck, which Williams did not have.) Smith eventually learned Williams’s ac tual identity. {¶ 11} From Smith’s cruiser, Williams watched the interaction between Brumbaugh and the detectives. At Williams’s request, Smith opened the wi ndow so Williams could have some fresh air. At one poi nt, Williams called out, “If th ere is anything in that car, it’s mine.” Based on the detectives’ finding suspected drugs a nd Williams’s statement, the detectives decided to arrest Williams. Detective Gray info rmed Williams of his

Miranda rights. Williams told the detectives that the drugs were his. Once Gray asked Williams more about from whom he had gotten the drugs, Williams said he wanted to end

the interview. {¶ 12} Williams was then handcuffed behind his back, and Smith transpo rted him to jail. During transport, Williams began to “mov[e] around ve ry violently. He was moving up and down and manipulating his hands.” (Tr. at 114.) Officer Smith put on his rear camera lights so that he could watch Williams through his camera mounted on the front windshield. Smith observed Williams “bowing forward and tugging and pulling at the back of his blue jeans pants. * * * And his handcuffs ke pt flicking and banging-5- against the back of [the] plastic molding [in the backseat].” ( Id .) Smith asked Williams why he was moving, to which Williams responded that the handcuf fs were too tight and his fingers were going numb. Officer Smith testified that, fro m his experience, Williams was “trying to pull something out of his back, rear.” ( Id . at 115.) {¶ 13} Once Williams got to jail, a corrections officer performed a cl othed pat down search of Williams in the receiving area; the corrections offic er felt something in Williams’s

buttocks area. The corrections o fficer asked for an additional unit and a sergeant to respond. Deputy Sheriff Andrew Whittman went to the receiving area and performed another pat down of Williams. Two baggies of drugs were recove red from Williams’s buttocks or groin area. After the baggies were photographed, O fficer Smith received those additional drugs to package as evidence. Smith took the drugs directly to the police property room with a laboratory analysis sheet so the cr ime lab could test them. (State’s Exhibit 6.) Detective s Gray and Ellis separately subm itted the drugs found in the Prism to the property room. (State’s Exhibit 5). {¶ 14} The Miami Valley Regional Crime Lab received two submissions. Testing on the drugs revealed that Submission 1 contained 1.1 grams (gr oss weight) of methamphetamine. Submission 2 consisted of the one baggie cont aining 5.98 grams (net weight) of methamphetamine and a second baggie containing 2.34 grams (net weight) of a powder that contained heroin, fentanyl, and cocain e. {¶ 15} Williams testified on his own behalf at trial. He indicated th at he, his two daughters, and the mother of his children were in a car that wa s pulled over by the police. Soon after the stop began, he was placed in the back of a cruis er. Williams acknowledged that he told the officers that whatever was found in the vehicle was his.-6- He indicated that he made that statement because he saw the mot her of his children crying. Williams testified that he did not know that anything was in the car at the time. Williams indicated that he fidgeted in the cruiser while being taken to jail because it was hot, the handcuffs were tight, and his fingers were going numb. Williams denied that he had drugs on his person when he was patted down at the jail. {¶ 16} On September 21, 2018, Williams was indicted for aggravated pos session of drugs (methamphetamine) (bulk but <5 times bulk), a third-de gree felony (Count 1), possession of heroin (1 gram but less than 5 grams), a fourth-d egree felony (Count 2), possession of cocaine (less than 5 grams), a fifth-degree felon y (Count 3), aggravated possession of drugs (fentanyl), a fifth-degree felony (Count 4) , and tampering with evidence (alter/destroy), a third-degree felony (Count 5). {¶ 17} The record does not contain a motion to suppress, but on Octobe r 30, 2018, the trial court scheduled a hearing on a motion to suppress for November 15, 2018. Defense counsel subsequently sought a continuance of the Novemb er 15 hearing. The court granted the motion and continued the hearing until Decemb er 11, 2018. On November 21, 2018, the trial court approved a written request b y defense counsel to withdraw the motion to suppress. {¶ 18} The matter proceeded to a jury trial in January 2019; the jury convicted Williams of all charges. Williams appeals, claiming that his t rial counsel rendered ineffective assistance by failing to move to suppress the evide nce against him.

II. Ineffective Assistance – Failu re to File Motion to Suppress {¶ 19} To establish ineffective assistance of counsel, a defendant mus t demonstrate both that trial counsel’s conduct fell below an obj ective standard of-7- reasonableness and that the errors were serious enough to creat e a reasonable probability that, but for the errors, the outcome of the case w ould have been different. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley , 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not permitted to distort the assessment of what was reasonable in l ight of counsel’s perspective at the time, and a debatable decision concerning tr ial strategy cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook , 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Fields , 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.). Trial counsel is also entitled to a strong pr esumption that his or her conduct falls within the wide range of reasonable assistance. Strickland at 689. {¶ 20} The “failure to file a suppression motion does not constitute p er se ineffective assistance of counsel.” State v. Madrigal , 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), quoting Kimmelman v. Morrison , 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Rather, “trial counsel’s failure to file a motion to suppress constitutes ineffective assistance of counsel only if the failu re to file the motion caused the defendant prejudice; that is, when there is a reasonable pr obability that, had the motion to suppress been filed, it would have been granted.” State v. Blackshear , 2d Dist. Montgomery No. 24302, 2011-Ohio-2059, ¶ 26; see also State v. Vineyard , 2d Dist. Montgomery No. 25854, 2014-Ohio-3846, ¶ 31. {¶ 21} On appeal, Williams claims that his counsel should have filed a motion to suppress, because Officer Smith did not lawfully stop the vehic le in which Williams was a passenger. Williams argues: Officer Smith did not initiate a traffic stop of Defendant’s ve hicle for-8- any offenses committed in his presence. Officer Smith initiate d a traffic stop based upon a request from Detectives Ellis and Gray. The trial transcript reflects that Detectives Ellis and Gray directed Off icer Smith to initiate a traffic stop of a red Chevy Prism based upon their o bservation of what they believed was a hand-to-hand transaction between vehic les. There is no evidence that any other identification as to this v ehicle, such as year, make, or license plate number, was provided to Officer Sm ith for purposes of initiating a traffic stop. The trial transcript re flects that Detectives Ellis and Gray had been detectives for less than a y ear. No evidence was set forth as to their experience and training in t he matter of alleged drug transactions and being detectives for a year or le ss is indicative of their lack of experience and training in these matters. The failure to file and pursue a motion to suppress cannot be considered sound trial strategy under these circumstances. * * * {¶ 22} Williams does not raise any issues related to the officers’ con duct after initiating the stop of the Prism, such as the placement of Will iams in the police cruiser and the seizure of the drugs, either from the car or at the jail. Williams also does not claim that, had a motion to suppress been filed, there is a reasonabl e probability that the trial court would have suppressed any statements that he made. We co nfine ourselves to the specific issue that Williams raises, i.e., the lawfulness o f the stop. {¶ 23} The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry , police officers may briefly stop and/or-9- temporarily detain individuals in order to investigate possible criminal activity if the officers have a reasonable, articulable suspicion that criminal activity may be afoot. Id .; State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8. We determine the existence of reasonable suspicion by evaluating the totality of the circumstances, considering those circumstances “through the eyes of the reason able and prudent police officer on the scene who must react to events as they unfold.” State v. Heard , 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews , 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991); State v. Hairston , 156 Ohio St.3d 363, 2019-Ohio1622, 126 N.E.3d 1132, ¶ 10. {¶ 24} “[P]olice officers are entitled to rely on information received from other

officers.” State v. Wortham , 145 Ohio App.3d 126, 130, 761 N.E.2d 1151. As we stated

in Wortham : If an officer detains an individual suspected of criminal behav ior in reliance on information received from a fellow officer, who has a reason able suspicion to make a stop, he need not have independent grounds for suspecting criminal activity but may rely on the information gi ven via the dispatch. However, the [S]tate must show that the officer who provided the information had a valid reasonable suspicion of criminal activi ty.”

Id. at 130, citing Maumee v. Weisner , 87 Ohio St.3d 295, 298, 720 N.E.2d 507 (1999). {¶ 25} In this case, the detectives’ testimony at trial indicated that they were on patrol in an area known for a high volume of weapons complaints . Although Ellis and Gray had been detectives for no more than a year, both had prev iously been patrol officers, and Ellis testified th at he had been a patrol officer in the area at issue. While on-10- patrol, the detectives observed the red Prism in which Williams was a passenger and another vehicle engage in what they believed was a hand-to-hand drug transaction. Detective Gray explained that the vehicles stopped facing in op posite directions, the drivers of the vehicles exchanged something quickly, and then t he vehicles drove away. The evidence at trial supported a conclusion that, based on the ir experience, the detectives had a reasonable articulable suspicion that the occu pants of both vehicles had engaged in criminal (drug) activity, warranting a stop of their vehicles. See, e.g., State

v. Smith , 2d Dist. Montgomery No. 28207, 2019-Ohio-4373 (officer had re asonable articulable suspicion that he was observing a drug transaction when he requested assistance from another officer, who stopped the defendant’s ve hicle). {¶ 26} Detective Gray further testified, albeit summarily, that he obs erved several traffic violations before requesting assistance from Officer Sm ith. It is well established that the observation of a minor traffic violation can provide r easonable articulable suspicion that criminal activity is afoot, justifying a traffic stop. E.g., State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8; State v. Cannady , 2d Dist. Montgomery No. 28115, 2019-Ohio-1543, ¶ 15. {¶ 27} Officer Smith did not have to personally observe the drug trans action or any traffic violation in order to stop the red Prism. He was entit led to rely on the observations of Detectives Ellis and Gray, which justified the stop. Althou gh there was no testimony at trial that the detectives relayed the Prism’s license plate number or model year, Officer

Smith testified that he followed the detectives’ instructions “ on the location they were headed” and, based on that information, was able to initiate a stop. Detective Ellis

indicated that the detectives were “at the scene” when Officer Smith pulled the Prism-11- over, and the detectives proceeded to assist with the stop. Ha d a motion to suppress been filed, the trial court could have reasonably concluded tha t the Officer Smith was provided sufficient information to initiate a stop of the red P rism that the detectives had

observed. {¶ 28} Based on the record before us, Williams has not established tha t there was a reasonable probability that, had the motion to suppress been filed, the trial court would have concluded that the stop of the red Prism was unlawful. Be cause Williams has not demonstrated that a reasonable probability exists that a motion to suppress would have been successful, we cannot conclude that Williams was prejudice d by the trial counsel’s failure to file and pursue a suppression motion. {¶ 29} Williams’s assignment of error is overruled.

III. Conclusion {¶ 30} The trial court’s judgment will be affirmed.

. . . . . . . . . . . . . WELBAUM, P.J. and DONOVAN, J., concur.

Copies sent to:

Mathias H. Heck Lisa M. Light J. David Turner Hon. Mary Katherine Huffman