[Cite as State v. Walker, 2024-Ohio-303.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

 Plaintiff-Appellee,

 vs.

TROY WALKER,

 Defendant-Appellant.

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APPEAL NO. C-230339

TRIAL NO. B-2206032

 O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 31, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William F. Oswall, Jr., for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

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BERGERON, Presiding Judge.

{¶1} Through a motion to suppress, defendant-appellant Troy Walker sought 

to exclude evidence of a firearm recovered by police from his pocket during a traffic 

stop by challenging the officers’ grounds for the traffic stop and for asking him to step 

out of the vehicle. Having lost that argument, he tries a new approach on appeal, 

challenging the officers’ grounds for conducting a pat-down search on him, which 

uncovered the firearm. But because he failed to raise that argument below, we review 

the pat-down issue only for plain error. Finding no such error, we overrule his sole 

assignment of error and affirm the judgment of the trial court denying suppression of 

the firearm. 

I.

{¶2} During police surveillance of multiple hotels at which officers suspected 

ongoing drug, prostitution, and “some violent” activity, an undercover officer observed 

a car driven by Mr. Walker repeatedly moving in and out of a parking spot at one hotel. 

Suspecting the car’s involvement in drug activity, he notified other officers about the 

vehicle. Another undercover officer observed the driver commit multiple traffic 

violations including a turn signal violation, speeding, and reckless operation. A third

officer initiated a traffic stop and noticed a strong smell of raw marijuana emanating

from the vehicle as she approached it. She asked the driver, Mr. Walker, to step out 

and inquired about the smell. He admitted to possessing marijuana in the car and 

acknowledged that he and his passenger had recently consumed marijuana. But he 

also produced his medical marijuana card, which the officer confirmed was valid. 

{¶3} Soon after, the undercover officer who observed Mr. Walker’s car at the 

hotel arrived and asked him to step behind the vehicle to perform a pat-down search. 
OHIO FIRST DISTRICT COURT OF APPEALS

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He felt a “hard box” object in his right pants pocket and asked him about it. Mr. Walker 

insisted, “It’s not mine.” As he started to move his hands, the officer instructed him 

not to move, unzipped the pocket, and pulled out a firearm. The officer testified that 

he initiated the pat-down after observing Mr. Walker repeatedly looking at the vehicle 

and making “movements,” raising suspicion that he might try to flee in the vehicle. 

Further, when he asked Mr. Walker to move behind the police car before the pat-down 

so that they would be out of the roadway, he saw something heavy dragging down his 

pants below his waist as he moved. Combined with the hotel surveillance and his view 

that “drugs and guns often come together,” these observations led the officer to suspect 

that Mr. Walker carried a firearm and to conduct the pat-down. The state later 

indicted him on three felony gun charges: Carrying Concealed Weapons, in violation 

of R.C. 2923.12(A)(2), Having Weapons While Under Disability, in violation of R.C. 

2923.13(A)(2), and Improperly Handling Firearms in a Motor Vehicle, in violation of 

R.C. 2923.16(B).

{¶4} Mr. Walker filed a motion to suppress, claiming officers violated Article 

I, Section 14 of the Ohio Constitution and the Fourth and Fourteenth Amendments to 

the U.S. Constitution by searching the vehicle without probable cause, but he did not 

challenge the pat-down search that uncovered the firearm. During cross-examination 

of the officers at the suppression hearing, defense counsel briefly asked one officer 

whether the pat-down was performed on suspicion of any crime, but he did not crossexamine the officer who performed the pat-down. Near the end of the hearing, the 

court asked defense counsel whether the firearm was found on Mr. Walker’s person 

and not in the vehicle, which counsel confirmed. The court asked counsel whether 

that changed his argument, and counsel said, “No. My argument is that there was no 
OHIO FIRST DISTRICT COURT OF APPEALS

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reasonable grounds to even get him out of the car in the first place.” The trial court 

denied the motion in a brief entry, finding “the traffic stop was lawful, the defendant 

was not removed from the car illegally, and the Terry search was reasonable under the 

totality of the circumstances,” referencing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 

L.Ed.2d 889 (1968). Mr. Walker pleaded no contest to the gun charges, and the trial

court imposed a sentence of community control. He now challenges the pat-down 

search on appeal, and the state contends he waived the issue by failing to challenge it 

at the suppression hearing.

II.

{¶5} At the outset, we conclude that Mr. Walker failed to raise the 

constitutionality of the pat-down search under Terry and its progeny in the trial court 

below. Generally, when a defendant fails to object or raise an issue below, the issue is 

not preserved for appeal, and a reviewing court can only reverse on plain error 

grounds. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); Crim.R. 

52(B); see State v. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 33 

(assessing Fourth Amendment search issue only for plain error after defendant 

withdrew motion to suppress in the trial court). When a party “ ‘intentional[ly] 

relinquish[es] or abandon[s] [] a known right,’ ” though, that issue is fully waived and 

cannot be considered on appeal, even for plain error. United States v. Olano, 507 U.S. 

725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), quoting Johnson v. Zerbst, 304 U.S. 

458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); see State v. Rogers, 143 Ohio St.3d 385, 

2015-Ohio-2459, 38 N.E.3d 860, ¶ 20. Holding that he failed to raise the issue, rather 

than intentionally relinquishing it, we review the trial court’s judgment on the Terry 

pat-down for plain error.
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶6} Accordingly, Mr. Walker must show that an error occurred, that the 

error was plain, meaning “obvious,” and that the error affected his “substantial rights,” 

meaning it “affected the outcome of the trial.” Barnes at 27; Crim.R. 52(B). To show 

the error affected the outcome, the defendant must “demonstrate [] a reasonable 

probability that but for [the error], the outcome of the trial would have been different.” 

State v. Mounts, 1st Dist. Hamilton No. C-210608, 2023-Ohio-3861, ¶ 48-52 

(synthesizing recent Supreme Court of Ohio plain error cases); see State v. Bailey, 171 

Ohio St.3d 486, 2022-Ohio-4407, 218 N.E.3d 858, ¶ 8; State v. Brunson, 171 Ohio 

St.3d 384, 2022-Ohio-4299, 218 N.E.3d 765, ¶ 25; State v. West, 168 Ohio St.3d 605, 

2022-Ohio-1556, 200 N.E.3d 1048, ¶ 22. We will reverse the trial court’s judgment 

based on plain error only “under exceptional circumstances and only to prevent a 

manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 

(1978).

{¶7} The U.S. Supreme Court recognized an exception to the Fourth 

Amendment to the U.S. Constitution’s general prohibition on warrantless searches in 

Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. 

Under Terry, a limited protective search of the detainee's person for 

concealed weapons is justified only when the officer has reasonably 

concluded that “the individual whose suspicious behavior he is 

investigating at close range is armed and presently dangerous to the 

officer or to others * * *.” [Terry at 24.] * * * “Where a police officer, 

during an investigative stop, has a reasonable suspicion that an 

individual is armed based on the totality of the circumstances, the 

officer may initiate a protective search for the safety of himself and 
OHIO FIRST DISTRICT COURT OF APPEALS

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others.” State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), 

paragraph two of the syllabus. 

State v. Evans, 67 Ohio St.3d 405, 408-409, 618 N.E.2d 162 (1993).

{¶8} The trial court’s conclusion that the officer’s Terry search of Mr. Walker 

was reasonable does not constitute plain error. The officer’s observation of a heavy 

object weighing down Mr. Walker’s pants as he walked is particularly persuasive. See

State v. Billups, 1st Dist. Hamilton No. C-150500, 2017-Ohio-4309, ¶ 12 (holding a 

Terry frisk reasonable in part because the suspect had a bulge in his pants pocket, 

among other factors); State v. Rogers, 1st Dist. Hamilton No. C-210666, 2022-Ohio4535, ¶ 31. His additional suspicions regarding Mr. Walker’s movements and glances 

toward the vehicle contributed to the reasonableness of the officer’s suspicion that Mr. 

Walker was presently dangerous to those around him. See State v. Olagbemiro, 1st 

Dist. Hamilton Nos. C-170451 and C-170452, 2018-Ohio-3540, ¶ 20. 

{¶9} Mr. Walker relies on two cases where this court held a Terry search 

unreasonable. First, a Terry pat-down was unreasonable where officers received a call 

about two people trying to get into a business, and the defendant initially distanced 

himself from a responding officer, placed his hands in his pockets, and acted 

nervously. State v. Showes, 1st Dist. Hamilton No. C-180552, 2020-Ohio-650, ¶ 15. 

Second, a pat-down was unreasonable where officers received a shot-spotter alert but 

did not hear shots, arrived in the “high crime” source area after dark five minutes later, 

located a man and a woman loading children into a car, did not observe the man make 

concerning gestures, and did not observe a bulge in any pocket. State v. Henson, 1st 

Dist. Hamilton No. C-210244, 2022-Ohio-1571, ¶ 25-31. By contrast, here, the officer 

observed a heavy object on Mr. Walker’s person weighing down his pants. In the 
OHIO FIRST DISTRICT COURT OF APPEALS

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context of the traffic stop, that observation is enough for us to conclude there was no 

obvious error in the trial court’s determination of the reasonableness of the pat-down. 

{¶10} And “when 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].” Evans, 67 Ohio St.3d 

at 416, 618 N.E.2d 162. Because the trial court’s determination that the officer stayed 

within the bounds of Terry did not constitute plain error, it did not err in denying the 

motion to suppress.

* * *

{¶11} Having overruled his sole assignment of error, we affirm the judgment 

of the trial court denying Mr. Walker’s motion to suppress.

Judgment affirmed.

CROUSE and WINKLER, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.